If the master of a burning vessel prefers to allow her to burn rather than to permit outside parties to extinguish the flames, he may do so. He has a perfect right to decline any assistance that may be offered him: he should not be assisted against his will. (1)
This article explores a doctrinal puzzle in contemporary admiralty law. Maritime law rules rewarding those that rescue property lost at sea have recently become the subject of searching judicial review and academic scholarship. (2) Generally speaking, salvors have been lauded by courts and commentators as semi-heroic figures for whom a reward is due, so long as their conduct is consistent with the policies and objectives of the general maritime law. This article considers situations in which courts have been obliged to determine whether an owner of property lost at sea actually desired rescue, and, thus, whether-and under what precise circumstances-salvage services can be legitimately refused.
This might be regarded as a peculiar meditation, but for the fact that there have come to be identified particular situations where the putative owner of property lost at sea may have strong economic and policy incentives to successfully refuse salvage. In the garden-variety salvage scenario, an owner of rescued property may simply wish to avoid paying a steep salvage award as ordered by an admiralty court, and thus reap (post hoc) the benefits of the salvor's services without paying the tariff. In historic salvage cases, where long-lost (and potentially valuable) shipwrecks and their cargoes are at issue, an original owner or insurer of such wrecks may be motivated by the same pecuniary considerations, but also seek to preserve or promote certain nautical archaeological or historic preservation values by disclaiming salvage.
This article attempts to solve this puzzle from both a doctrinal and policy perspective. After an exposition of the essential contours and policies of contemporary salvage law (particularly as relates to historic salvage), we will examine the checks-and-balances that have been developed in the case law to constrain unscrupulous owners of property lost at sea who would seek to frustrate those objectives by raising spurious refusal of salvage defenses. Some of these rules prevent procedural gambits by owners (and thus turn on concepts of notice and good faith), while others seek to strike the correct substantive equilibrium in encouraging mariners to engage in meritorious salvage conduct (and thus emphasize notions of possession and ownership for rescued property, along-side values of prudent seamanship). This contribution hopes to explore just one aspect of the genius of the judge-made maritime law. In the words of Judge John R. Brown:
Salvage at sea may and often does call for the performance of exciting acts of great bravery to rescue lives or property from the jaws of a near and certain doom ... Maritime salvage is not reserved for hero alone. Its generous but judicious liberality is to encourage mariners instinctively to respond to need-be it great or small, drab or spectacular, certain in the knowledge that the scale of [the maritime law] provides the means to find a balance. (3)
I. BACKGROUND CONCEPTS AND POLICIES FOR SALVAGE
The law of salvage was developed to create economic incentives for mariners who, observing property in peril on the high seas, undertook efforts to rescue that property. (4) To this end, courts have recognized that the reward offered to would-be salvors need be such that "all those in a situation and competent to render relief, shall be eager to do so, from the mere hope of gain." (5) To further encourage the would-be salvor to attempt to aid the property in peril, salvage law "presumes that the owner desires the salvage service." (6) However, to protect the interests of the property owners, courts will presume that the owners do not give up title to the property in marine peril. The practical effect of this second presumption is an expression of the maritime courts' preference for the law of salvage over the common law of finds. (8)
Described as "the ancient and honorable principle of 'finders, keepers,'" the common law of finds had traditionally only been applied in maritime situations to property which had no prior owner, such as creatures of the sea. (9) However, with the discoveries of "long lost and abandoned shipwrecks," (10) courts expanded the doctrine beyond its traditional application, to cover the discovered wrecks. (11) While such an expansion would seem to run contrary to the preference for salvage law expressed above, a minority of courts, (12) as well as Congress, (13)have sought to limit the application of the law of finds to shipwrecks by imposing high standards of abandonment for would-be finders to prove. The majority of circuits have, however, displayed a more permissive standard to the abandonment question. (14)
If a court decides to apply the law of salvage to a claim, the would-be salvor must have met three separate requirements in order to receive the salvage award: (1) the property must have been in marine peril; (2) the service must have been voluntary, and (3) the salvage must have been, to some degree, successful. (15)
In analyzing the first element, courts have displayed a very broad interpretation of what constitutes marine peril. Holding that a sunken ship was in marine peril, the Fifth Circuit wrote that "[m]arine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation." (16) Similarly, in a related case, the Fifth Circuit reaffirmed this principle when it wrote that peril existed even after the location of a sunken ship was uncovered because the ship was "still in peril of being lost through the actions of the elements." (17) This broad interpretation of marine peril is partially based on an earlier Fifth Circuit decision in which the court held that the peril required in salvage service need not necessarily be one of imminent or absolute danger, either presently or "reasonably to be apprehended." (18) Conversely, courts have held that a would-be salvor who renders aid to a ship not in immediate marine peril is an "officious intermeddler," and no salvor at all. (19)
The second element, the requirement of a voluntary act on the part of the would-be salvor, requires that the parties seeking the salvage award not have a prior existing legal obligation to perform the acts constituting the act of rescue. (20) Compliance with this element is determined from the point in time when the actions are performed, and not before; such that a salvor whose original salvage offer was rejected, but who later enters into a contract with a ship's owner for such services, cannot later claim to have acted voluntarily. (21) The third and final element, success in the salvage operation, does not require that the salvor completely save the property in question. Rather, courts merely require a level of success where at least some of the property was saved by virtue of the salvor's actions. (22)
The presence of the three elements above does not, however, insure the grant of a salvage award. Indeed, courts have held that Congress and the government may add additional requirements, such as obtaining a permit to salvage a sunken ship, because, "[b]y itself, possession of abandoned property is not sufficient to establish a salvage claim." (23) Because the courts interpret such power as stemming from the Property Clause of the U.S. Constitution, such power may only be exercised over government-owned land. (24)
These additional requirements, imposed on property found on government lands, fall under what is known as the embeddedness exception to the law of finds. This exception allows a property owner, possibly a sovereign, to claim title to property based on the property's location on the owner's land. (25) However, it is important to note that courts have recognized that the embeddedness exception applies even to property "not ... totally buried." (26) This exception to the law of finds has been codified by the Abandoned Shipwreck Act (ASA) of 1987, which vests title in a U.S state to abandoned shipwrecks that are embedded in the submerged lands of that state. (27) For the purposes of the statute, Congress defined the term "embedded" as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof." (28)
Courts have consistently ruled that salvage awards should be liberally granted, so as to promote and encourage the prompt, zealous, innovative and careful rescue of property lost at sea. As Chief Justice John Marshall observed:
This leads to an inquiry into the principles on which salvage is allowed. If the property of an individual on land be exposed to the greatest peril, and be saved by the voluntary exertions of any person whatever; if valuable goods be rescued from a house in flames, at the imminent hazard of life by the salvor, no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea. Yet the claim for salvage could not, perhaps, be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice. If we search for the motives producing this apparent prodigality, in rewarding services rendered at sea, we shall find them in a liberal and enlarged policy. The allowance of a very ample compensation for those services, (one very much exceeding the mere risk encountered, and labor employed in effecting them), is intended as an inducement to render them, which it is for the public interests, and for the general interests of humanity, to hold forth to those who navigate the ocean. (29)
Somewhat later, the Supreme Court observed in The Blackwall that:
Compensation as salvage is not viewed by the admiralty courts merely as pay, on the principle of a quantum meruit, or as a remuneration pro opere et labore, but as a reward given for perilous services, voluntarily rendered, and as an inducement to seamen and others to embark in such undertakings to save life and property. Public policy encourages the hardy and adventurous mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to embezzlement and dishonesty, the law allows him, in case he is successful, a liberal compensation. (30)
Salvage conduct consistent with these stated objectives, and compliant with all government regulations and general maritime law requirements, may still not produce a salvage award when the owner of the property to be rescued successfully and properly rejects salvage assistance. Generally, for a refusal of salvage to be considered valid, courts will first examine such substantive matters as whether the owner was in actual possession of the res at the time of refusing salvage, whether other property interests are at stake for the property rescued at sea, and whether (under the precise conditions that salvage services were offered) a prudent owner would have rejected the offer of assistance. In addition, courts will assess such procedural and "course of dealing" issues as whether the owner effectively communicated the rejection of salvage services, and whether, given the totality of the circumstances, the salvor's conduct was in good faith. This article will explore each of these broad requirements for rejection of salvage-substantive and situational-and their doctrinal implications. Additionally, this contribution will discuss proposals to expand the refusal of salvage doctrine by protecting State-owned shipwrecks as military gravesites.
II. SUBSTANTIVE ELEMENTS FOR REFUSAL OF SALVAGE
As already suggested, there are a number of crucial substantive elements in any judicial determination of whether an owner's refusal of salvage is proper. By "substantive," we are suggesting here that these turn on significant policy considerations rooted in the general maritime law and should be resolved even before the "course of dealing" between an owner and salvor is considered.
Indeed, the maritime law appears to categorically reject attempts by owners to refuse salvage when (1) they are not in actual possession of a vessel, (2) a reasonably prudent mariner would accept salvage services under the circumstances presented, or (3) the property of third parties is at risk of marine peril. The structure of the legal doctrine in this area is suggestive that an owner's failure to satisfy any one of these three elements results in an award for the salvor. This is consistent with the general presumption in the maritime law that an "owner desires the salvage service." (31)
A. ACTUAL POSSESSION AND DERELICT PROPERTY
Though possession, as discussed below, is an important element in rejecting a salvage offer, it is equally important as a means of overcoming sovereign immunity. In 1998, the Supreme Court ruled that possession of the salvaged property was sufficient to overcome the protections of the Eleventh Amendment for in rem proceedings pertaining to salvage. (32) In California v. Deep Sea Research, Inc. (hereafter Deep Sea Research), the Supreme Court enunciated an actual possession standard for the application of the Eleventh Amendment in salvage claims relating to state property. (33) Deep Sea Research involved an in rem action regarding the ship BROTHER JONATHAN off the coast of California. (34) The salvage company, Deep Sea Research, Inc., sought either a salvage award or title to the ship on the grounds that it actually possessed several artifacts from the BROTHER JONATHAN, and that it had expended effort in locating the ship. (35) Conversely, the State of California, claimed possession of the ship based on the Abandoned Shipwreck Act, which transferred title of shipwrecks embedded on State property to the state itself. (36) The State further claimed that since the state owned title to the BROTHER JONATHAN, Deep Sea Research's in rem claim was a violation of the Eleventh Amendment. (37)
In rejecting the State of California's claims, the Supreme Court held that a State must have actual possession of a res in order to employ the Eleventh Amendment to block an in rem action relating to the property. (38) The Court based its holding on "longstanding precedent respecting the federal courts' assumption of in rem admiralty jurisdiction over vessels that are not in the possession of a sovereign." (39) The Supreme Court made clear that the state's possession of the res under arrest had to be "actual"; (40) constructive possession did not suffice.
In Hamburg-American Line v. United States, American sailors, against the wishes of a German ship's commander, rescued the craft that had been scuttled by her crew. (41) In holding that the sailors' salvage claims were good over the German commander's rejection of the offer, the First Circuit held that "[sjalvage services are not compensable when forced upon a vessel after an offer of assistance has been expressly rejected, the crew remaining on board capable of meeting the peril." (42) The court of appeals properly concluded that because the German master and crew were no longer in actual possession of the vessel, and thus obviously incapable of meeting any peril that the ship confronted, they were absolutely barred from purporting to refuse salvage. (43)
Another example of such emphasis on possession and control can be found in the case of The Indian. In The Indian, the captain of the vessel, with the help of his sailors and a nearby boat, had managed to control a fire that had broken out on his ship. In the wake of the fire, a third ship pulled up alongside the Indian and, against the captain's explicit rejections, proceeded to douse the remaining fire.45 The Fifth Circuit, holding against the salvors, wrote that "[u]nder nearly all supposable circumstances when the master is in command and control of his own ship he may refuse and reject salvage services."46 In The Indian, the master and crew were in actual possession of the vessel and quite capable of responding to any threat of marine peril.
Conversely, in The Laura, the ship of that name rescued the crew of a ship called the savory from imminent danger. (47) As the LAURA was sailing away from the Savory, the Laura's captain told the SAVORY'S commander that he was planning on coming back for the ship after dropping off the savory crew.48 However, after hearing the offer of salvage, the captain of the Savory stated that he would go back to save his ship.49 Ignoring the Savory captain's statement, the LAURA'S captain returned to rescue the Savory, and claimed a salvage award. (50) However, because the Savory captain was not in any position to follow through on his words, the Supreme Court held for the captain of the LAURA on the grounds that he "was authorized to conclude that the SAVORY was in a condition of immediate peril, and abandoned so far as any timely effort to save her was contemplated." (51)
It is important to note, however, that some courts have interpreted the holding in The Laura to be based not so much on the captain's lack of possession or control, but on his ineffectual communication of the rejection. (52) This interpretation of the case will be discussed further below. Nevertheless, all of these decisions-Hamburg-American Line, The Indian, and The Laura--are in accord with language from another Supreme Court decision in which the Court wrote that cargo jettisoned from a ship in marine peril "has never been supposed to work any change in the ownership or an abandonment of the property, although it may subject it to the claim of salvors." (53)
Despite some contrary suggestions, (54) the rule pronounced by a majority of U.S. courts, including the U.S. Supreme Court (in Deep Sea Research, The Laura, and The Eliza Lines), is that an absolute requisite for refusal of salvage is that an owner be in actual possession of the property that is the subject of rescue. This is consistent with the notion that property lost at sea may have a retained owner, but will still be regarded as derelict, without having that owner in actual possession. (55) In such situations, where the owner cannot possibly be in a position to confront the marine peril affecting his property, he cannot legitimately refuse salvage.
B. THE PRUDENT MARINER TEST FOR REFUSING SALVAGE
Nevertheless, even if an owner of property in peril at sea is still in actual possession, this does not conclude the analysis. Rather, an admiralty court is obliged to consider whether a prudent mariner would have declined salvage services; this calculus has greatly influenced the development of refusal of salvage jurisprudence. (56) In Merritt & Chapman Derrick & Wrecking Co. v. United States, the Supreme Court wrote that "express acceptance of the service is not always essential to the validity of the claim. It is enough if, under the circumstances, any prudent man would have accepted." (57)
Similarly, in Tidewater Salvage, Inc. v. Weyerhaeuser Co., the Ninth Circuit held that "[a]n owner, acting as a prudent person, may refuse salvage assistance by completed communication to the prospective salvor at any time before the act of salvage." (58) In Tidewater, a number of logs, all of which were branded, floated away from a lumber mill on the banks of Coos Bay. (59) The lumber mill's owner, having already arranged a log retrieval service, informed Tidewater Salvage that the mill did not want salvage services. (60) The Ninth Circuit ruled that "a refusal of assistance, whether blanket or otherwise, is not completed ... until the salvor, acting as a reasonable person, has determined, or could determine, the ownership of the object of salvage." (61) Based on the circumstances of this case, the court held that "there was no completed communication as to any one floating log" in navigable waters until the salvor, "after taking a log aboard," determined ownership by observing the brand on the logs. (62) This good faith conduct aspect of Tidewater will be considered below, but at least one court has dismissed the Tidewater discussion of the prudent person as dicta, because the case was eventually decided on the lack of communication rejecting salvage. (63)
In Ramsey v. The Pohatcong, the court advocated a standard similar to that of the prudent person, but seemingly more lax. (64) Where the master of a ship refused the assistance of tug boats based on the knowledge that his own tug was coming soon, the district court held that "[t]he refusal of the master cannot be said to have been so palpably and so grossly wrong as to amount to positive misconduct." (65) Furthermore, the court held that the rejection was valid based on the grounds that the master's actions were not "outside of the fair scope of [his] judgment in the exercise of his authority under the instructions given him."
Six years earlier, a California district court suggested a slightly higher standard of review. In Spreckels v. California, the owners of a vessel, upon learning that the ship was disabled, contracted with a tug to provide salvage services to the property in danger for a fixed sum. (67) Later, the would-be salvors learned that the owner had contracted with another towing company to rescue the ship. (68) In response, the would-be salvors sent a second tug boat (other than the one that had been contracted for salvage) and rescued the vessel. (69)
In its holding, the district court speculated as to why the shipowner would have employed multiple tugs, and came to the conclusion that the owner had likely been under the mistaken belief that he could not have rightfully refused salvage against the tugs in the area. (70) As such, the court believed that the multiple contracts would not have been made had the shipowner known the true character of the law of salvage: refusal is acceptable "where the owners of a vessel in peril have taken all measures in their judgment necessary to insure her safety, and those measures are adequate, and all that prudence requires." (71) However, the court went on to hold the shipowner responsible for the original contract price of the salvage services because the would-be salvors had not received "any precise and definite announcement" that the salvage offer for that boat had been refused. (72)
However, in the same section of the Spreckels opinion discussing the higher standard for refusal, the court suggested a divergent standard of review in which the owner of the property "has the right to refuse or accept any offers of assistance that may be made, or to adopt his own measures for the preservation of his vessel." (73) Other courts have resolved this apparent contradiction in Spreckels by pointing out that the discussion of the appropriateness of the refusal is dicta because, as in Tidewater, the case was decided on the grounds that the refusal itself was not properly communicated. (74)
The prudent mariner test in the refusal of salvage doctrine must still be regarded as resting on firm foundations in the general maritime law. It is ultimately derived from the Supreme Court's decision in Merritt & Chapman, with at least some application in subsequent cases. The essential insight of the prudent mariner test is that an owner may remain in actual possession of his vessel, but still be under an obligation to take all necessary steps not only to preserve his property, but also to ensure against hazards of navigation. If an owner-in-possession of a vessel cannot accomplish those objectives, but a rescuer could, then a reasonably prudent mariner would not decline the proffered salvage services.
Nevertheless, whether the prudent mariner test for refusal of salvage has any real bearing in historic shipwreck cases remains questionable in certain circumstances. First, it may be enough for an admiralty court to conclude that the original owner is not in actual possession of a shipwreck site, and thus, categorically reject any attempt at refusal of salvage. Second, it is possible to imagine that a shipwreck site may still constitute a hazard to navigation within the meaning of the federal Wreck Act, (75) in which case a refusal to salvage such a site (and thus to ameliorate the hazard to navigation) would violate the prudent mariner test. Otherwise, the prudent mariner test should be confined to situations where a shipowner or master, in actual possession of a vessel, acts unreasonably in refusing salvage in such a fashion as to endanger his or other's property at risk of the perils of the sea.
C. REFUSAL WHERE THIRD-PARTY INTERESTS ARE AT STAKE
In International Aircraft Recovery v. Unidentified, Wrecked and Abandoned Aircraft, a salvor sought either title or a salvage award for the rescue of a military aircraft that had crashed off the coast of Florida during a training exercise. (76) The government claimed ownership of the military aircraft, and opposed the salvage efforts. (77) The court in International Aircraft Recovery, though dismissing both of the Spreckels statements as dicta, shaped its holding to generally conform with the more lenient of the two. Writing that their holding was consistent with the Supreme Court's decision in Merritt & Chapman, that "salvage cannot be exacted for assistance forced upon a ship," (78) the International Aircraft Recovery court interpreted "the law of salvage to permit the owner of a vessel in marine peril to decline the assistance of others so long as only the owner's property interests are at stake." (79) The court limited its opinion, which abrogated the prudent person standard for refusal of salvage for historic shipwrecks, to situations where no other "property interests were at stake." (80)
As such, the court rejected the salvage company's claim, holding that the U.S. government, as the owner of the sunken vessel, could reject the salvage offer because no other property interests were at stake. (81) However, the court allowed for the possibility that the salvage company could be eligible for a salvage award for services rendered before the government's rejection became effective. (82)
This holding is consistent with the suggestion of dicta found in Ramsey v. The Pohatcong, that a master of a ship may refuse salvage assistance in situations that do "not involve imminent danger to life, nor the danger of large losses of the property of third persons." (83) However, in Thames Shipyard and Repair Co. v. United States, the First Circuit recognized an exception to the "general rule" of refusal being valid where no other property interests exist: when the would-be salvor is the United States Coast Guard and the situation is "life threatening." (84) The Court believed that Congress intended "to confer powers analogous to those commonly possessed by state public safety officials." (85) The Thames opinion has, however, been criticized as lacking any discernible precedent and for placing policy over law. (86)
It is worth noting that, as mentioned above, courts will almost always accept the rejection of a salvage claim made by an owner in actual possession of a vessel and acting as a prudent mariner would when only the owner's property is in peril. The corollary of this would be that where another person's property is in danger, an owner's rejection of salvage will most certainly not negate a salvage award. This would include situations where a vessel is at risk (because of faulty navigation or as a hazard to navigation) to other vessels or structures, as well as situations where there may be cargo on board the vessel to be salved and that cargo belongs to third parties.
Where the salvage services provided are merely incidental to salvage services provided to another's property, the would-be salvors cannot claim a salvage award for the incidental services. (87) In The City of Columbia, a group of would-be salvors pulled a burning ship, the City of Atlanta, away from a tethered steamer, the CITY OF COLUMBIA. (88) The tugboats then claimed a salvage award against the steamer. (89) Citing that "the fire might have been in fact subdued without removing the City OF Atlanta," and that the removal of the City OF ATLANTA was "a reasonable duty to the adjacent property," the court rejected the salvage claim against the City of Columbia. (90)
In so deciding, the court reasoned that the service provided to the City OF COLUMBIA "was only an indirect benefit; not a direct service to her." (91) As such, while a shipowner cannot reject salvage services when a third party's property interests are at stake, if the services provide no direct benefit to the ship, they are not compensable. A later case however, limited the City of Columbia rule by holding that "where a boat is in the direct zone of danger, and the indirect services are a part ... of an attempt to save that boat ... there should be some award." (92)
These cases involving third-party interests offer a significant rationale in refutation of attempts to expand the situations where salvage can be legitimately refused. It is one thing to allow an owner in actual possession of a vessel, who is acting prudently, to decide to hazard his own property. "If the master of a burning vessel prefers to allow her to burn rather than to permit outside parties to extinguish the flames, he may do so." (93) It is quite another moral and ethical situation for an owner to place at risk the property of others, either situated in the hold of his vessel or outside, and the general maritime law has essentially ruled that refusals of salvage under such circumstances are prima facie invalid.
In the context of historic salvage cases, even if a party can establish ownership of the hull of a long-lost shipwreck and some form of actual possession over the remains or artifacts from the wreck-site, it still cannot refuse salvage in situations where the cargo of the vessel belongs to other parties. That appears to be the clear message from the Eleventh Circuit's recent decision in International Aircraft Recovery. (94) Cargo and hull interests have been recognized as having distinct characteristics in historic salvage cases. Even where no successor of a hull insurer has come forward to lay claim to a wreck, if there are successors to cargo interests, they may claim ownership of the cargo under theories of subrogation under the general maritime law. (95) Nevertheless, such cargo insurers are responsible for paying a salvage award to the salvor, and certainly cannot refuse salvage.
III. SITUATIONAL ELEMENTS FOR REFUSAL OF SALVAGE
The above discussion has focused on what we call the "substantive" conditions for refusal of salvage. Even if an owner satisfies these elements--actual possession of the vessel, acting as a prudent mariner would, and not purporting to refuse salvage for other's property-the admiralty court must then consider some situational aspects of the owner-salvor relationship. The chief of these is whether the owner effectively communicated a refusal of salvage to the salvor and whether the salvor acted in good faith in persisting to offer salvage services in the face of such a communication. These will be considered in turn.
A. EFFECTIVE COMMUNICATION OF REFUSAL
"It is ... well recognized that if there is a derelict or ... perilous situation, a would-be salvor need not await a request or invitation from the owner or master." (96) However, courts have outlined a number of exceptions to this rule, including when the owner has already given a third party a contract to perform the salvage. (97) In this respect, "equitable" or "pure" salvage, where a salvor receives a reward from an admiralty court after the rescue is accomplished, must be distinguished from "contractual" salvage where the compensation for the rescue is dictated by the parties in advance of the salvage services being performed.
Explicit permission to perform certain acts will normally be assumed to preclude an acceptance of equitable salvage. In Cuttyhunk Boat Lines v. The Pendleton, the would-be salvors performed salvage operations on a damaged hull, despite having had earlier salvage contract negotiations fail. (98) The owner gave explicit permission to the salvor only to "sound out" the ship's hull. (99) The district court held that the narrow permission to perform the limited operation was not acceptance even of contractual salvage and rejected the salvage award. (100)
Similarly, in Bonifay v. The Paraporti, under the guise of retrieving their equipment after their salvage contract expired, the would-be salvors attempted a last ditch rescue operation over the objections of the shipowners, who had allowed plaintiffs use of the ship merely for the purposes of the equipment retrieval. (101) The court held that the salvage offer was effectively rejected. (102) In these two cases-77ze Pendleton and The Paraporti-the salvors' behavior veered from officious intermeddling to affirmative misconduct. (103) It is also significant that in these two cases, the master-or someone with authority over the vessel-remained in actual possession of the vessel to be rescued. (104)
In the same vein, courts have entertained the idea of constructive rejection of would-be salvors, as a means for rebutting the presumption of acceptance. The Fifth Circuit has considered, and rejected, the idea that statutes requiring out-of-staters to get permits before excavating a shipwreck site, and subjecting them to possible penalties for removing objects from state lands, constituted a constructive rejection of a would-be salvor's attempts to rescue a shipwreck on state submerged lands. (105) The court of appeals noted that it could "find no case where a salvage award was denied because of a constructive rejection of salvage services." (106) Normally, the Fifth Circuit held, rejection is "direct and unequivocal ... usually by the master of the distressed ship." (107) The same appeals court has also suggested that, at the very least, constructive rejection of salvage services should bar an award only if the "rejection must reasonably have been understood by the salvor. (108)
The Eleventh Circuit has suggested (in dicta) that if an original owner is aware of the precise location of a submerged ship, and is capable of making arrangements to salvage it, her refrain is a suggestion, although not dispositive, that the offer of salvage was refused. (109) However, this statement rested on the flawed assumption that submerged sunken vessels were not in marine peril. (110) As discussed above, many federal courts have concluded that sunken shipwrecks remain in marine peril. (111) In such cases, there is no "constructive rejection" of salvage; refusal must be express.
Despite the existence of marine peril, courts have held that, given proper communication, the owner of property may prevent would-be salvors from raising submerged property." (112) For example, in Platoro, discussed above, the Fifth Circuit held that the State of Texas could reject the salvage attempts of a would-be salvor, but that the rejection was not effective because it had not been communicated properly. (113) This finding was due to the court's belief that the two laws on Texas's books-the one which required nonresidents to obtain a permit from the state before undertaking "any exploration or excavation in or on any ... archaeological ... site in Texas," and the other, which allowed the Attorney General to sue anyone who had "appropriated ... any minerals or other property of value" from state lands--could not be deemed to be constructive rejection of salvor services. (114)
The clarity and effectiveness of rejections of salvage services will always remain highly contextual and fact-specific, often turning on the course of dealing between the salvor and owner. Specifically, the Supreme Court has held that generalized or blanket statements are not a valid means of rejecting salvage services. (115)In The Laura, the master of an abandoned ship, ignoring the fact that there were no available boats, remarked to a would-be salvor that he intended to find a boat and return to rescue his ship. (116) The Supreme Court held that such a statement of future intent was a "casual observation" instead of a rejection of the would-be salvor's offer. (117)
Other courts have looked for an owner reaction amounting to an "utter repudiation" of the salvor's offer. (118) Further, in The Pohatcong, the district court held that refusal was complete when the aid was "positively and persistently refused." (119) In The Pohatcong, the master of the ship had been offered salvage assistance from the same would-be rescuer numerous times before the salvor finally ignored the rejections and proceeded to provide salvage services. (120) Courts have consistently ruled that, in any event, an effective communication of a refusal of salvage must be completed before the salvage services are performed.
In the Eleventh Circuit's recent International Aircraft Recovery decision, there was a clear instance of a would-be salvor attempting to negotiate in advance with a sovereign owner of a warship or military aircraft and being rebuffed in the clearest of language to not undertake salvage. (122) In this circumstance, the court easily concluded that a refusal of salvage had been effectively communicated. One problematic aspect of the International Aircraft Recovery case was that Navy officials may have actually encouraged the salvor's efforts, or at least acquiesced to them, but the Eleventh Circuit concluded that while such inducements may be fraudulent (an issue not before the court), they did not constitute a reversal of the earlier communication of refusal. (123) The Eleventh Circuit's decisions did not explain how the United States could refuse salvage of property that was not in its actual possession at the time the salvage services were rendered.
The cases involving effective communication of refusal of salvage have one thing in common. When salvors overreach and press their services on unwilling owners-or when salvors get frustrated with owners after unconsummated contractual salvage negotiations-courts will closely examine the course of dealing and look for clues about the owner's expressed intent to refuse salvage. (124) While the burden of effective communication of refusal is clearly on the owner, there will be circumstances where courts will veer from the traditional presumption that an owner desires that salvage occur.
B. GOOD FAITH AND KNOWLEDGE OF THE SALVOR
Nevertheless, even where there has been an effective communication of refusal of salvage, the analysis is not complete. Were it otherwise, unscrupulous owners of property subject to marine peril could purport to make blanket salvage refusals, and later (in circumstances which suit them), reap the experience, labor, and success of salvors without paying for it. It has thus been suggested that an explicit rejection may even be revoked after the salvage was done where the "dictates of equity" should prevent a party from stating they want the ship to sink only to later claim it back. (125) Specifically, it has been held that a party cannot claim a desire to have seen their ship sink and later seek return of the salvaged property without paying some type of compensation. (126)
Other courts have expanded this idea of equity beyond the context of deliberate scuttling in Hamburg, (127) or of jettisoned property in The Eliza Lines, (128) to a broader proposition that "[ajdmiralty's equitable power to make an award for salvage-recognized since ancient times in maritime civilizations-is a corollary to the assumption of nonabandonment and has been applied irrespective of the owner's express refusal to accept such service." (129) In Hener v. United States, the Southern District Court of New York granted a salvage award to two groups of competing salvors on the grounds that "both groups have made substantial investments, in time and money." (130)
Some courts have chosen to follow a completely different, although related, inquiry into the level of control necessary to effect a valid refusal of a salvage offer, focusing on the knowledge and good faith conduct of the would-be salvor, rather than on the communication of refusal by the owner of the property. In Lambros Seaplane Base v. The Batory, (131) a seaolane was found adrift twelve miles from shore with night approaching. The court indicated that a salvage award should be granted (had the res been within the jurisdiction of the court), based on the fact that the would-be salvor "might reasonably have believed that a prudent owner would have preferred to have its plane safe ... [and that they] could not be sure that even with prompt notice by wireless as to the location of the plane it could surely be salved by others." (132)
Likewise, in Tidewater, the Ninth Circuit held, "a refusal of assistance ... is not completed ... until the salvor, acting as a reasonable person, has determined, or could determine, the ownership of the object of salvage." (133) As mentioned above, Tidewater dealt with a series of claims relating to salvaged logs that had floated away from a lumber plant. (134) Despite the fact that the lumber company had explicitly rejected all salvage offers relating to the logs, the Ninth Circuit granted an award for the salvage of logs found in the water. (135) The holding was based on the fact that a contrary decision would "discourage salvage as to all floating logs; [because] not until a given log was taken aboard could the salvor, as a practical matter, determine the ownership and know that, as to that log, assistance had been refused." (136)
Both Lambros and Tidewater illustrate the general point that courts will rule in ways consistent with the general maritime law's goal of encouraging salvage, even in the face of an express refusal of salvage services. In Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, the Fourth Circuit accepted Spain's refusal of salvage, in circumstances where, unlike International Aircraft Recovery, virtually no recovery had occurred on a shipwreck site; therefore, the question of Spain's lack of actual possession was less acute. (137) The court of appeals accepted the Spanish government's claim that it "was and still is the true and bona fide owner of the vessels ... and that title and ownership interest ... has never been abandoned or relinquished or transferred by the Kingdom of Spain." (138)
The Fourth Circuit's acceptance of Spain's refusal of salvage was premised on the key factual findings that:
It is the right of the owner of any vessel to refuse unwanted salvage. Sea Hunt knew before bringing this action that the JUNO was a Spanish ship and that Spain might make a claim of ownership and decline salvage.... Because Sea Hunt had prior knowledge of Spain's ownership interests and had reason to expect Spain's ownership claim and refusal to agree to salvage activity on JUNO, Sea Hunt can not be entitled to any salvage award. (139)
This analysis thus turns on the state of knowledge that a salvor may exhibit in relation to the ownership of property lost at sea. But, as with logs floating on a river, the identity and ownership of a long-lost shipwreck may not be ascertainable until it is recovered and the artifacts are subjected to the stabilization, conservation, curation and forensic analysis required under the Supreme Court's Blackwall analysis in order to show the value and dignity of the historic salvor's services. (140)
So the case law seems to be settled that even where an owner of property in peril of the sea has effectively communicated a refusal of salvage services, salvage may still proceed (and be appropriately awarded) in situations where the identity and ownership of the rescued property is in some doubt. The combined teaching of the Tidewater, Sea Hunt, and International Aircraft Recovery cases (the trilogy of the most recent, and relevant, decisions on this subject) is that even when all other elements for declining salvage services have been satisfied (effective communication in instances where the owner actually possesses the rescued property, consistent with the prudent seamanship standard, and where refusal is not extended to the property of others), the salvor is still entitled to show its good faith in persisting with the salvage operations. (141)
IV. SUNKEN WARSHIPS AS GRAVESITES
In recent times, both the U.S. government and U.S. courts have shown a willingness to protect sunken military warships on the basis of protecting war graves. In Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, the Fourth Circuit sought to protect the "respect that international law accords Spain's claim of ownership with regard to its shipwrecks and the military grave sites that they contain." (142) Putting aside questions as to the actual ownership of such sites, which is beyond the scope of this article, (143) the question to be addressed here is what impact an assertion of military grave status should have on refusal of salvage services.
In a statement on United States policy in this regard, President Clinton in 2001, stated that:
The unauthorized disturbance or recovery of ... sunken State craft and any remains of their crews and passengers is a growing concern both within the United States and internationally. In addition to deserving treatment as gravesites, these sunken State craft may contain objects of a sensitive national security, archaeological or historical nature. (144)
President Clinton's statement suggested that the protection for the ships would extend to all ships, "whether located in the waters of the United States, a foreign nation, or in international waters." (145) The presidential statement goes on to indicate that salvage on such sites "should not occur without the express permission of the sovereign and should only be conducted in accordance with professional scientific standards and with the utmost respect for human remains." (146)
This governmental statement does not rise to the level of an unambiguous and blanket refusal of salvage regarding sunken U.S. warships or State craft. Likewise, foreign government statements, even when referencing the potential status of sunken warships as "maritime graves," do not constitute an effective communication of refusal of salvage services according to U.S. case law. It is doubtful that an owner of property lost at sea, even a sovereign nation, can issue an effective blanket refusal of salvage especially with respect to situations when the owner lacks actual possession of the property, and without reference to the particular peril at issue or the status of other ownership interests in it. In short, no matter how express, such refusals cannot overcome the actual possession, prudent mariner, other ownership interests, and salvor good faith inquiries discussed above.
The Sunken Military Craft Act (SMCA), legislated by Congress in 2004, (148) contains one provision relevant to this discussion. Section 1406(d) provides that "[n]o salvage rights or awards shall be granted with respect to: (1) any United States sunken military craft without the express permission of the United States; or, (2) any foreign sunken military craft located in United States waters without the express permission of the relevant foreign state." (149) This has been construed by some commentators as a legislative refusal of salvage. (150) However, this may be illusory. Congress is assumed to legislate in the maritime field against the backdrop of the judge-made general maritime law. (151)Because the phrase "express permission" is not defined or elaborated upon in the SMCA or in its legislative history, courts should presume that Congress intended to legislate in the context of the general maritime law's elaboration of rules for refusal of salvage, as discussed in this contribution.
Besides, any assertion that the status of a shipwreck site as a war or maritime grave would allow a party to categorically refuse salvage would be contrary to the weight of the maritime law authorities. Admiralty courts have granted salvage awards for objects found in association with human remains. (152) This is consistent with the general maritime law's broad construct of the sorts of property that are eligible for salvage. (153)
Moreover, there is nothing in international law to suggest that military gravesites of warships are, by reason of that status alone, immune from salvage. The relevant provisions of international humanitarian law instruments, the second Geneva Convention of August 12, 1949 (154) and its first Protocol of June 8, 1977, (155) do not prohibit salvage of sunken warships that may contain human remains. Geneva II Article 18's obligation "to protect ... against pillage ... [and] to search for the dead and prevent their being despoiled," was intended only to facilitate identification of fallen mariners: "[w]hen the shipwrecked and dead are picked up, all objects belonging to them or found in the vicinity should also be collected, for such objects may make it possible to identify the owners or missing persons." (156) Article 19 of Geneva II requires "identity disc[s], ... wills and any other documents of ... importance" to the next of kin, money and all "articles having an intrinsic or sentimental value," which are found on the dead to be collected; however, this provision applies "exclusively to the dead picked up at sea" and their personal effects. (157) To the extent that there is any implied prohibition of salvage contained in the Geneva Conventions, it relates only to those items actually "found on the dead." (158) But insofar as the Geneva Convention seeks to ensure the proper identification of such fallen mariners, it may be necessary to recover personal effects.
V. CONCLUSION: FINDING CORRECT INCENTIVES FOR SALVORS
It would be a mistake to assume that there is some categorical prohibition-under either U.S. or international law-against the salvaging of sunken warships, assuming that sites can be identified and characterized. Such finds have been subject in the past to assertions of sovereign immunity as sunken State craft. Moreover, claiming such a refusal of salvage over sunken warships as gravesites abrogates many of the freedoms enjoyed by ships on the high seas "by granting flag states certain privileges while restricting the freedom of other vessels on the high seas." (159) Furthermore, the idea that gravesite status prevents salvage has been attacked from an economics point of view. In analyzing the Sea Hunt case, Christopher R. Bryant wrote that the ships in question should be salvaged, because "the social, historical, scientific, and monetary value of the Juno as a salvaged vessel far exceeds its value as a so-called underwater cemetery." (160) Bryant argues further that, from a historical standpoint, the risk of marine peril posed by the elements, pirates, and recreational divers places sunken wrecks at "risk of ... deterioration and destruction, until the wreck is of little value." (161)
Similarly, Christopher Bordelon has pointed out the apparent contradiction in protecting property for its historical significance but keeping the property in such a place as to render it virtually inaccessible. Rather, Bordelon argues that encouraging salvage operations would truly honor the shipwrecks due to the fact that "if historically significant items that are recovered are put on display in a museum, then the 'supply' of history available to the public as 'consumers' would increase rather than decrease as a result of the salvors' recovery of the property and its subsequent disposition. (162)
Putting aside these legal and economic forms of analysis for incentivizing salvors, which are common in the academic literature, (163) the fundamental question posed in this article is how the judge-made general maritime law has reacted over time in adjusting the balance between the interests of owners of property lost at sea and those of salvors who would seek to rescue it. Because of the very nature and structure of "pure" or "equitable" salvage, (164) property owners might have strong incentives to appear to acquiesce in the provision of salvage service until it was clear that the salvage would be successful (and thus an award would be forthcoming), at which time the owner could then attempt to show prior refusal of salvage. Particularly in historic salvage cases, in which substantial resources of time, money, and technology can be expended in order to identify and recover a long-lost vessel and its cargo, the dangers of "owner's remorse" are evident. The result could be a refusal of salvage for the salvor and a windfall for the owner if allowed to reap the full value of the salvor's labor without providing adequate compensation. Additionally, owners of long-lost vessels might have an incentive to play favorites among rival groups of salvors, appearing to encourage all parties while in reality hoping that a voluntary salvor will locate and raise the wreck, only then to be refused salvage so that the owners can negotiate with another salvor for more favorable terms. Lastly, insofar as owners would seek to disclaim salvage in order to promote some archaeological or historical preservation values, such would run counter to the great weight of judicial authority that sunken shipwreck sites are considered to be in marine peril and subject to salvage.
The general maritime law has thus developed a number of mechanisms for preventing such owner misbehavior, even though (somewhat ironically) they are framed in the argot of response to salvor misconduct. As indicated in the epigraph for this contribution, "[i]f the master of a burning vessel prefers to allow her to burn rather than to permit outside parties to extinguish the flames, he may do so. He has a perfect right to decline any assistance that may be offered him: he should not be assisted against his will." (165) Maritime law has articulated substantial limitations and conditions for such refusals of salvage. The image of the owner as Nero-willfully fiddling as his property burns-is evocative enough, but it assumes that the master is still in actual possession of his ship, that he is acting as a prudent mariner would, and that in refusing rescue or assistance, he is endangering only his own property and not that of others. These substantive conditions are combined with more procedural ones, focusing on the nature of communications between salvor and owner and the objective knowledge and good faith exhibited by the salvor.
In historic shipwreck cases, even as questions of actual possession and prudent seamanship tend to be down-played by owners (since they can rarely be found to be in actual possession of such underwater sites), courts have been reluctant to go so far as to accept theories of "constructive" rejection of salvage. If it were otherwise, some classes of owners of property lost at sea (including marine insurers and sovereigns) would attempt to issue blanket prohibitions on salvage, in order to gain strategic advantages in cases where the identification of such property might be uncertain. This would raise situations where owners would attempt to convert salvage into a "strict liability offense," claiming ownership of recovered artifacts but still disclaiming the payment of any salvage award. Courts have been understandably reluctant to take the refusal of salvage doctrine so far, because it would place salvors in an untenable position. Short of granting salvors a quantum meruit recovery against the owner or allowing the salvor to consign the rescued property back to the deep, owners would be unjustly enriched at the expense of salvors.
Fundamentally, salvage is an equitable doctrine intended by generations (if not millennia) of admiralty courts to promote rescue of property lost at sea. Refusing salvage should thus not be viewed as a formalistic doctrinal exercise or as a way for owners to "game" the system, but rather in the context of the deep-seated goals and objectives of the general maritime law. Seen in this way, refusals of salvage should be allowed in only the most extreme of circumstances, where salvors have truly engaged in misconduct at the expense of the interests of owners whose property is in peril of the sea. Refusals of salvage should not be permitted in cases where owners simply desire to reap the benefits of the salvor's labor, in pursuit of financial gain or some vague notion of historic preservation. As puzzles go, putative refusals of salvage should be solved in favor of "the hardy mariners [who] encounter such risks to save the property" of those lost at sea. (166)
(1.) New Harbor Prot. Co. v. Steamer Charles P. Chouteau, 5 F. 463, 464 (D. La. 1881), affd, 9 F. 211 (C.C. E.D. La. 1881).
(2.) See, e.g., William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. legal STUD. 83 (1978) (for a ground-breaking scholarly contribution); R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, 435 F.3d 521, 531-33 (4th Cir. 2006); R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel, 286 F.3d 194, 202-07 (4th Cir. 2002); R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 961-64 (4th Cir. 1999).
(3.) Miss. Valley Barge Line Co. v. Indian Towing Co., 232 F.2d 750, 755 (5th Cir. 1956).
(4.) Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 962 (M.D. Fla. 1993).
(5.) Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1306 (9th Cir. 1980) (citing to Judge Sprague in The Missouri, 17 F. Cas. 484, 488 (D. Mass. 1854) (No 9654)).
(6.) R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 963 (4th Cir. 1999).
(7.) Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 460 (4th Cir. 1992).
(9.) Id. at 459-60.
(10.) Mat 460.
(11.) 3A Martin J. Norris, Benedict on Admiralty [section] 158, 11-16 to 11-18 (7th ed. 2007).
(12.) Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000).
(13.) Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, div. A, tit. XIV (passed Oct. 8, 2004; signed into law Oct. 28, 2004), 118 Stat. 2094 (codified at 10 U.S.C.A. [section] 113 (West 2005)) [hereinafter SMCA].
(14.) See generally, Zych v. Wrecked Vessel Believed to be the "Lady Elgin," 960 F.2d 665 (7th Cir. 1992).
(15.) The Sabine, 101 U.S. 384, 384 (1879).
(16.) Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d330, 337 (5th Cir. 1978).
(17.) Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 (5th Cir. 1980) (quoting Treasure Salvors, Inc., 569 F.2d at 337).
(18.) Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968).
(19.) Phelan v. Minges, 170 F. Supp. 826, 828 (D. Mass. 1959) (if a ship is in marine peril, salvage services cannot be regarded as "officious intermeddling"), but cf. The Bolivar v. The Chalmette, 3 F. Cas. 818, 818 (C.C. E.D. Tex. 1872) (No. 1611) (decrying "sharp practice and unconscionable speculation" of some salvors, but still allowing a salvage award for "low grade" of service).
(20.) The Sabine, 101 U.S. at 384.
(21.) Baker v. The Tros, 2 F. Cas. 479 (C.C. E.D. Pa. 1874) (No. 783).
(22.) The Sabine, 101 U.S. at 384.
(23.) Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 963 (M.D. Fla. 1993).
(24.) Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir. 1985) (discussing the Constitution's Property Clause, U.S. Const., art. IV, [section] 3, cl. 2).
(25.) Chance v. Certain Artifacts Found and Salvaged from The Nashville, 606 F. Supp. 801, 804-05 (S.D. Ga. 1984).
(26.) Id. at 806.
(27.) 43 U.S.C.A. [section] 2105(a), (c) (2000).
(28.) 43 U.S.C.A. [section] 2102(a) (2000).
(29.) Mason v. Ship Blaireau, 6 U.S. (2 Cranch) 240, 266 (1804).
(30.) The Blackwall, 77 U.S. 1, 14 (1869).
(31.) R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 963 (citing The Blackwall, 11 U.S. at 14).
(32.) California v. Deep Sea Research, Inc., 523 U.S. 491, 502 (1998).
(33.) Id. at 506-07.
(34.) Id. at 495-96.
(35.) Id. at 496.
(36.) Id. (discussing 43 U.S.C.A. [section] 2105).
(37.) Deep Sea Research, Inc., 523 U.S. at 496-97.
(38.) Id. at 507-08.
(39.) Id. at 507 (citing The Davis, 77 U.S. (10 Wall.) 15, 20-21 (1869)).
(40.) Id. at 506-07.
(41.) Hamburg-Am. Line v. United States, 168 F.2d 47, 49 (1st Cir. 1948).
(42.) Id. at 56.
(44.) The Indian, 159 F. 20, 24-25 (5th Cir. 1908).
(45.) Id. at 25.
(47.) The Laura, 81 U.S. 336, 337(1871).
(48.) Wat 338.
(51.) Wat 344.
(52.) See Consol. Towing Co. v. Hannah, 509 F. Supp. 1031, 1035-36 (W.D. Mo. 1981).
(53.) The Eliza Lines, 199 U.S. 119, 133-34 (1905).
(54.) On the opposite end of the spectrum, some courts have displayed a control/possession standard far beyond those outlined in The Laura and Hamburg-Am. Line. In Spreckels v. California, the district court wrote that "where the owners of a vessel in peril have taken all measures in their judgment necessary to insure her safety, and those measures are adequate, and all that prudence requires," the owner may properly refuse salvage. 45 F. 647, 649 (N.D. Cal. 1890).
(55.) See United States v. Dewey, 188 U.S. 254, 265 (1903) ("The vessels were not derelict, abandoned without hope of recovery..."); The Laura, 81 U.S. at 343-44 (discussing such English authorities as The L'Esperance, 1 Dods. 46, 165 Eng. Rep. 1227 (Adm. 1811) (Eng.); The Coromandel, Swab. 205, 166 Eng. Rep. 1097 (Adm. 1857) (Eng.)). See also The Bark Cleone, 6 F. 517, 525 (D. Cal. 1881) ("that unless the vessel has been utterly abandoned, and is, in contemplation of law, a derelict, even bona fide salvors have no right to the exclusive possession, and are bound to give up charge to the master on his appearing and claiming charge."); William Marvin, A Treatise on the Law of Wreck and Salvage 133-40 (Boston: Little Brown, 1858).
(56.) The prudent mariner test for refusal of salvage can be traced back to English admiralty precedents. See The Vandyck, 5 Aspinall's Maritime Law Cases 17 (C.A. 1882) (Eng.); The Annapolis, Lush. 355, 375, 167 Eng. Rep. 150 (P.C. 1861) (Eng.).
(57.) Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613 (1927).
(58.) Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1307 (9th Cir. 1980).
(59.) Id. at 1305-06.
(60.) Id. at 1306.
(61.) Id. at 1307.
(63.) See Int'l Aircraft Recovery, L.L.C. v. Unidentified, Wrecked and Abandoned Aircraft, 218 F.3d 1255, 1261-62 (11th Cir. 2000).
(64.) Ramsey v. The Pohatcong, 77 F. 996 (S.D.N.Y. 1896).
(65.) Id. at 997.
(67.) Spreckels v. California, 45 F. 647, 647-48 (N.D. Cal. 1890).
(68.) Id. at 648.
(69.) Id. at 650.
(70.) Id. at 649.
(71.) Id. See also Spaulding v. Alaska Com. Co., 1 Alaska 497 (D. Alaska 1902).
(72.) Spreckels, 45 F. at 650.
(73.) Id. at 650.
(74.) See Int'l Aircraft Recovery v. Unidentified, Wrecked and Abandoned Aircraft, 218 F.3d 1255, 1261-62 (11th Cir. 2000).
(75.) 33 U.S.C. [section] 409 (2004).
(76.) Int 7 Aircraft Recovery, 218 F.3d. at 1256-57.
(77.) Id. at 1257.
(78.) Id. at 1262 (quoting Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S. 611,613 (1927)).
(79.) Int 7 Aircraft Recovery, 218 F.3d. at 1262.
(80.) Id. at 1262 &n. 17.
(81.) Id. at 1263-64.
(82.) Id. In a subsequent decision, 373 F.3d 1147 (11th Cir. 2004), discussed further below, the Eleventh Circuit held that a refusal of salvage had been effectively communicated.
(83.) Ramsey v. The Pohatcong, 77 F. 996, 997 (S.D.N.Y. 1896).
(84.) Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 259 (1st Cir. 2003).
(86.) See Alberto E. Struck, Thames Shipyard & Repair Co. v. United States: Coast Guard Given Broad Authority to Forcibly Remove Unwilling Captains from Their Vessels, 4 Loy. Mar.L.J. Ill, 119(2005).
(87.) City of Columbia v. City of Atlanta, 56 F. 252, 255 (S.D.N.Y. 1893).
(88.) Id. at 253-54.
(89.) Id. at 254.
(92.) The Acre, 195 F. 1022, 1023 (E.D.N. Y. 1912).
(93.) New Harbor Prot. Co. v. Steamer Charles P. Chouteau, 5 F. 463, 464 (D. La. 1881).
(94.) See Int'l Aircraft Recovery v. Unidentified, Wrecked and Abandoned Aircraft, 218 F.3d 1255, 1261-62 (11th Cir. 2000).
(95.) See Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 460 (4th Cir. 1992).
(96.) The Snow Maiden v. White, 155 F. Supp. 518, 520 (D. Mass. 1957). See also The Barque Island City, 66 U.S. (1 Black) 121, 128 (1861); The Annapolis, Lush. 355, 375, 167 Eng. Rep. 150, 161 (P.C. 1861) (Eng.) ("[I]t would be dangerous to hold that if salvage service be actually furnished to a ship, she cannot be called upon to pay anything unless it can be shown that she either requested or expressly accepted service.").
(97.) The Snow Maiden, 155 F. Supp. at 520.
(98.) Cuttyhunk Boat Lines v. The Pendleton, 119 F. Supp. 608, 609-10 (D. Mass. 1953).
(100.) Id. at 610.
(101.) Bonifay v. Paraporti, 145 F. Supp. 879, 880-82 (E.D. Va. 1956).
(102.) Id. at 882.
(103.) See also The Bolivar v. The Chalmette, 3 F. Cas. 818, 818 (C.C. E.D. Tex. 1872) (No. 1611) (denouncing "sharp practice and unconscionable speculation" by salvors).
(104.) See The Indian, 159 F. 20, 25 (5th Cir. 1908); Legnos v. M/V Olga Jacob, 498 F.2d 666, 672 (5th Cir. 1974); Fort Myers Shell & Dredging Co. v. The Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968).
(105.) Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 902 (5th Cir. 1983).
(106.) Mat 902.
(109.) Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir. 1985).
(111.) See Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540, 557 (S.D. Fla. 1982); Bemis v. R.M.S. Lusitania, 884 F. Supp. 1042, 1051 (E.D. Va. 1995) ("Courts will usually find that underwater shipwrecks are in marine peril, because sunken vessels and their cargoes are in danger of being lost forever.").
(112.) Int'l Aircraft Recovery, L.L.C. v. Unidentified, Wrecked and Abandoned Aircraft, 218 F.3d 1255, 1263-64 (11th Cir. 2000) (remanding for additional fact-finding to determine if refusal of salvage was effectively communicated). See also Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F. Supp. 1377, 1389 (S.D. Fla. 1988) (ruling in favor of the application of a state submerged resources statute as a refusal of salvage, or otherwise it would "subordinate the rights of the 'owner' to those of the 'salvor.'"). A closer examination of Jupiter Wreck, Inc. indicates that it was decided on the basis that the court had no jurisdiction to impose salvage against the State of Florida. Id. at 1383-85. This holding was overturned by the U.S. Supreme Court in Deep Sea Research, 523 U.S. 491, 501-08(1998).
(113.) Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 902 (5th Cir. 1983).
(114.) Id. at 901-02.
(115.) The Laura, 81 U.S. 336, 344 (1871).
(116.) Mat 338.
(117.) Mat 344.
(118.) The Ragnarok, 158 F. 694, 697 (E.D.N.Y. 1908).
(119.) The Pohatcong, 77 F. 996, 997 (S.D.N.Y. 1896).
(121.) See Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 902 n.10 (5th Cir. 1983).
(122.) IntT Aircraft Recovery, L.L.C. v. Unidentified, Wrecked and Abandoned Aircraft, 373 F.3d 1147, 1150 (11th Cir. 2004) (discussing letter from the U.S. Navy to putative salvor providing, in pertinent part, that: "Any attempt at so salvaging the TBD, without the express written permission of the Department of the Navy, through its museum, will result in a recommendation from this office to institute whatever action is appropriate to prevent an unauthorized taking.").
(124.) See, e.g., Consol. Towing Co. v. Hannah, 509 F. Supp. 1031, 1035 (W.D. Mo. 1981) ("There can be no award to 'a persistent interloper, acting at his peril after repeated warnings.'") (quoting F. E. Grauwiller Transp. Co. v. The Jeanne, 229 F.2d 153 (2d Cir. 1956)); The Eastern Glen v. Dampsk-Selsk-Svenborg, 11 F. Supp. 995, 1000 (S.D.N.Y. 1935); The Richmond, 219 F. 714 (2nd Cir. 1914); The Yucatan, 30 F. Cas. 893 (S.D. Fla. 1847) (No. 18,194).
(125.) Hamburg-Am. Line v. United States, 168 F.2d 47, 55-56 (1st Cir. 1948).
(128.) The Eliza Lines, 199 U.S. 119, 133-34 (1905).
(129.) Hener v. United States, 525 F. Supp 350, 357 (S.D.N.Y. 1981) (citing The John Gilpin, 13 F. Cas. 675, 676 (S.D.N.Y. 1845) (No. 7,345)). This passage has been quoted with approval in Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir. 1992). For a similar application in English admiralty practice, see The Auguste Legembre,  P. 123, 128-29 (Eng.) (salvage award granted even where tug services were refused).
(130.) Hener, 525 F. Supp. at 364.
(131.) Lambros Seaplane Base v. The Batory, 215 F.2d 228, 230 (2nd Cir. 1954).
(132.) Id. at 235.
(133.) Tidewater, 633 F.2d at 1307.
(134.) Id. at 1305-06.
(135.) Id. at 1307.
(137.) Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, No. 2:98cv281, 1999 U.S. Dist. LEXIS 21752, at *4-5 (E.D. Va. June 25, 1999) (suggesting that because the salvor had not really initiated salvage services the fact that Spain was not in "actual possession of the vessel ... is merely a circumstance of the rejection, and not a requirement.").
(138.) Sea Hunt, Inc., 221 F.3d 634, 640(4th Cir. 2000).
(139.) Id. at 647 n.2 (quoting ruling of the district court); see also 1999 U.S. Dist. Lexis 21752, at *6-10 (E.D. Va. June 25, 1999) (discussing the course of dealing between the salvor and owner).
(140.) See Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 468 (4th Cir. 1992); MDM Salvage, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 631 F. Supp. 308, 310-11 (S.D. Fla. 1986); Cobb Coin Co., Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186, 208 (S.D. Fla. 1981).
(141.) See The Clarita, 90 U.S. (23 Wall.) 1,17 (1874) ("[S]alvage compensation presupposes good faith, meritorious service, complete restoration, and incorruptible vigilance."); R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999) (the law imposes on salvors the "duties of good faith, honesty, and diligence in protecting the property in [the] salvors' care.").
(142.) Sea Hunt. Inc., 221 F.3d at 644. See also 47 F. Supp. 2d 678, 692 (E.D. Va. 1999) (where the district court observed that "Spain has specifically indicated that it wishes to treat Juno as a maritime grave and does not want the wreck to be salvaged.").
(143.) But see David J. Bederman, Congress Enacts Increased Protections for Sunken Military Craft, 100 Am. J. Int'l L. 649 (2006); J. Ashley Roach, Sunken Warships and Military Craft, 20 Marine Pol'y 351 (1996); Sarah Dromgoole & Nicholas Gaskell, Who Has a Right to Historic Wrecks and Wreckage?, 2 Int'l J. Cultural Prop. 217, 230-31 (1993).
(144.) William J. Clinton, Statement on United States Policy for the Protection of Sunken Warships (Jan. 19, 2001), 37 Weekly Comp. Pres. Doc. 195 (Jan. 22, 2001).
(147.) See Statement of Germany, Protection of Sunken Warships, Military Aircraft and other Sunken Government Property, 69 Fed. Reg. 5647, 5647 (Feb. 5, 2004) ("[S]unken warships and aircraft are military graves, which have to be respected."); Statement of Japan, ("Such sunken vessels should be respected as maritime graves.") Id.; Statement of Spain, ("Many such vessels also are the resting place of military and/or civilian casualties.") Id. ; Statement of the United Kingdom, ("[M]any sunken State vessels and aircraft are maritime graves, which should be respected.") Id. at 5648.
(148.) See SMCA, supra note 13.
(149.) SMCA, supra note 13, [section] 1406(d).
(150.) See Rand R. Pixa, In DEFENSE OF PERPETUAL TITLE TO SOVEREIGN WRECKS (2004), available at http://www.history.navy.rnil/branches/orgl2-7m.htm.
(151.) See Stewart v. Dutra Constr. Co., 543 U.S. 481, 487 (2005) ("Although the statute is silent on who is a 'seaman,' both the maritime law backdrop against which Congress enacted the Jones Act and Congress' subsequent enactments provide some guidance."); Deep Sea Research, 523 U.S. at 508 ("[T]he meaning of 'abandoned' under the ASA conforms with its meaning under admiralty law."); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 312 (1970) (discussing Lauritzen v. Larsen, 345 U.S. 571, 577 (1953), and concluding that "Congress wrote against a backdrop of 'usage as old as the Nation.'").
(152.) See, e.g., Broere v. Two Thousand One Hundred Thirty-Three Dollars, 72 F. Supp. 115 (E.D.N. Y. 1947), later proceeding at 78 F. Supp. 635 (E.D.N. Y. 1948); Gardner v. Ninety-Nine Gold Coins, 111 F. 552 (D. Mass. 1899).
(153.) See Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 629 (1887) ("If we search through all the books, from the Rules of Oleron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to or lost in the sea or its branches, or other public navigable waters, and have been found and rescued.").
(154.) Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, arts. 18-20, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II].
(155.) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, arts. 32 & 34, 1125 U.N.T.S. 3.
(156.) JEAN S. PICTET ET AL., COMMENTARY, II GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF WOUNDED, SICK AND SHIPWRECKED MEMBERS OF ARMED FORCES AT SEA 133 (Jean S. Pictet ed., Int'l Committee of the Red Cross 1960).
(157.) See id. at 143-44.
(158.) Geneva Convention II, supra note 154, art. 19, [paragraph] 2.
(159.) Jason R. Harris, The Protection of Sunken Warships as Gravesites at Sea, 7 Ocean & Coastal L.J. 75,80 (2001).
(160.) Christopher R. Bryant, The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle Over Salvaging Historic Shipwrecks, 65 alb. L. Rev. 97, 103 (2001).
(161.) Id. at 112-13.
(162.) Christopher Z. Bordelon, Saving Salvage: Avoiding Misguided Changes to Salvage and Finds Law, 7 San Diego Int'l L.J. 173, 189 (2005).
(163.) See supra, note 2. See also Paul Hallwood & Thomas J. Miceli, Murky Waters: The Law and Economics of Salvaging Historic Shipwrecks, 35 J. Legal Stud. 285 (2006); Jance R. Hawkins, Reconsidering the Maritime Laws of Finds and Salvage: A Free Market Alternative, 30 Geo. Wash. J. Int'l L. & Econ. 75 (1996).
(164.) See The Elfrida, 172 U.S. 186, 192 (1898).
(165.) New Harbor Prot. Co. v. Steamer Charles P. Chouteau, 5 F. 463, 464 (D. La. 1881).
(166.) Hobson v. Lord, 92 U.S. 397, 409-10 (1875).
David J. Bederman, K.H. Gyr Professor of Private International Law, Emory University School of Law. The author served as counsel to the salvors in the Deep Sea Research, Sea Hunt and Titanic litigations, discussed in this article.
Brian D. Spielman, J.D. Candidate (Class of 2009), Emory University School of Law.
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|Author:||Bederman, David J.; Spielman, Brian D.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2008|
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