Summary – Article by David E. Irwin on Salvage under the general maritime law of the United States. This article focuses on the basics for establishing the amount of salvage award granted to persons rescuing a distressed vessel.
When the subject of admiralty and maritime law comes up there are usually questions of great speculation and interest. This is largely due to the ancient traditions of the sea which form the basis of modern day admiralty law. Indeed, even the United States, a part of the “new world,” bases its general maritime law on traditional maritime law principles. In fact, much of the case law relied on by maritime attorneys today is precedent set by cases which were heard in courts during the nineteenth century.One subject of maritime law in particular is often of interest to those who sail the seas. That is the question of salvage rights. It is true that a person, a crew of persons or an entity can claim an interest in a vessel which was rescued from a certain marine peril.
Salvage is defined as compensation allowed to persons by whose assistance a ship or its cargo have been saved, in whole or in part “from impending peril on the sea, or in recovering such property from actual loss, as in the case of shipwreck, derelict or recapture.” The Blackwall, 77 U.S. 1 (1869).
Basic salvage is a common law right. That means there is no written statue or codified law on the matter, but rather that past decisions from competent courts spell out how the law will be applied. In the case of common law salvage rights, there are two essential elements which are required for anyone seeking to enforce those rights against a vessel. First there must be a marine peril which is reasonably perceived by the salvor. Second, the service must be voluntary and not the duty of the person conducting the salvage operation. Terms like “marine peril” and “the duty” have been more specifically defined in case law through the years. In general, a marine peril exists when a vessel at sea will surely go to waste if something is not done. A crew member of a yacht may not be in a position to claim a salvage right if the vessel he or she saves is the vessel he or she is charged with sustaining, operating and maintaining.
Common law salvage rights are often asserted after a rescue of property in cases when no one was around to “save the sinking ship” except the magnanimous salvager who, with skills and effort put out the fire or pumped the bilge. In cases of common law salvage the courts have formed an equitable method of reaching what is considered a just salvage award.
Courts in the US will consider the following factors in awarding salvage rights: 1) the time and labor expended by the salvors in rendering salvage services, 2) the promptness, skill and energy displayed by the salvors in rendering service and saving property, 3) the value of the property employed by the salvors in rendering service, 4) the danger and risk in which salving vessels, equipment and crew were exposed in securing property from peril, 5) the value of the property saved and 6) the degree of danger from which the lives and property were saved. The Blackwall, 77 U.S. 1 (1869).
Of course these factors come into play when there was no prior agreement for salvage and the property was saved voluntarily. Often salvage is a matter of contract. Both the potential salvor and the owner of a vessel in marine peril may have an interest in contracting for salvage when time permits and the parties are available to one another.
In contract salvage the rescuer and the owner or owner’s representative agree upon an amount to be paid for the salvor’s services. This is often the case when a vessel simply needs a tow in, but can also arise from pre-existing contracts such as those with some of the towing services currently available. Contract salvage has benefits for both parties. For the salvor, he or she need not go to the lengths it takes to prove all the elements of salvage or the factors of a just award because the terms are already set out in the party’s agreement. From the perspective of the owner or owner’s representatives, there is not costly surprise. The terms are known from the out set and the costs expected in the event of a breakdown or mechanical failure.
As a potential salvor you may have the opportunity to create a contract salvage situation if an owner representative is available and you can make an agreement (even an oral one) before responding. Likewise, as a mariner in trouble at sea, time permitting, upon contact with the potential salvor an agreement for payment can be made prior to the salvor extending its efforts.
December 5th, 2008
Summary – Florida’s 4th District Court of Appeals ruled in favor of Appelles’ to keep their action for contract rescission and breach of warranty in a Florida court even when the Defendant yacht manufacturer was a New Jersey corporation. Attorney David E. Irwin authored the Appellees’ Answer Brief which may be reviewed by clicking on the link below. The Court’s final opinion based on this Brief appears in the previous Post.
For the complete Answer Brief, please click on the link below -
October 23rd, 2008
Summary – In the decision below, Florida’s 4th District Court of Appeals holds that in an action for rescission and breach of warranty, a south Florida forum was proper against a New Jersey yacht manufacturer, where warranty repairs were directed by the manufacturer to be conducted in a Palm Beach boat yard. David E. Irwin was responsible for writing the Appellees’ Brief upon which the Court’s decision was based. The Appellees prevailed in keeping an action for rescission of the purchase contract and for breach of warranty in Palm Beach Circuit Court, rather than the action being transferred to New Jersey.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
OCEAN YACHTS, INC. and STATEN ISLAND YACHT SALES, INC.,
Appellants,
v.
ANTHONY TANTILLO and NISSAN 112 SALES CORPORATION,
Appellees.
No. 4D08-269
[August 20, 2008j
KLEIN, J.
Plaintiff Nissan 112 Sales Corporation purchased in New York a boat manufactured by Ocean Yachts in New Jersey. Nissan sued Ocean Yachts in Palm Beach County, where the boat was being operated, and Ocean Yachts moved to dismiss for improper venue. We affirm the denial of the motion, because Ocean Yachts authorized a boat yard in Palm Beach County, as its representative, to perform warranty repair work on the defective boat.
The complaint alleged that Ocean Yachts had made some warranty repairs to the defective boat at its New Jersey facility, but the repairs were not satisfactory, and other defects appeared after the boat was brought to Florida. Ocean Yachts then directed that further warranty work be done at a Florida boat yard.
Section 47.051, Florida Statutes (2007), which addresses venue provides in part:
Actions against foreign corporations doing business in this state shall be brought in a country where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.
The trial court concluded that venue was proper in Palm Beach County, because the complaint alleged that warranty work was performed in Palm Beach County by agents or representatives of Ocean Yachts, and this allegation was not controverted by Ocean Yachts.
Ocean Yachts relies o n its warranty, which provides that its “designated service representatives are not the agents of Ocean Yachts.” Our statute, however, says venue against a foreign corporation will lie in a county where the corporation has “an agent or other representative,” and in Piper Aircraft Corp. v. Schwendemann, 564 So. 2d 546 (Fla. 3d DCA 1990), the court held that a service center which was authorized by the defendant to perform warranty work was a representative, for purposes of venue, even though it may not have been an agent of the manufacturer. See also Breed Techs. v. Allied Signal, Inc., 861 So. 2d 1227 (Fla. 2d DCA 2003) (agreeing with Piper and noting that labels in agreements are not conclusive as to actual legal relationships).
We agree with Piper and Breed and therefore affirm.
SHAHOOD, C.J and DAMOORGIAN, J., concur.
* * *
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Robin L. Rosenberg, Judge; L.T. Case No. 50- 2007CA00826 1XXXXMB.
Samuel Cozzo and Michel 0. Weisz of Berger Singerman, Miami, for appellant Ocean Yachts, Inc.
Cindy L. Ebenfeld and Mark Hicks of Hicks & Kneale, P.A., Hollywood, for appellant — Staten Island Yacht Sales, Inc..
Andrew W. Anderson and David E. Irwin of Houck Anderson P.A., Ft. Lauderdale, for appellees.
Not final until disposition of timely filed motion for rehearing
October 23rd, 2008
Summary – The link below contains an article by David E. Irwin published in Smart Business Broward/Palm Beach in August 2005. The article provides an overview yacht purchases and what to watch out for from a legal perspective.
Boat Purchases can be tricky
October 23rd, 2008
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