Nearly every marine casualty can involve a salvage, towage and/or environmental impact. The towing of a vessel from one place to another, rushing to the aid of sinking yacht, or responding to a grounding invokes the application of some of the oldest maritime laws in the world today. The attorneys at McLeod Brock have over 25 years of experience investigating, asserting and defending claims involving:
- Pure Salvage
- Treasure Salvage
- Contract Salvage
- Defense of Environmental Claims
- Wreck Removal
Marine Salvage & Towing
Typically salvers are considered the “first responders” on the ocean often arriving before and/or instead of the United States Coast Guard, Marine Patrol, etc. Salvors constantly monitor marine radio listening for PAN PAN, SOS, or other calls for assistance from vessels in peril from stranding, grounding, sinking, fire, collision, allission and any other conceivable event that would place a vessel at risk. Maritime salvage companies also work as towage companies, so it is important to distinguish between the type of service provided. This is especially true as the compensation to the salvor can be drastically different depending on whether he is engaged in pure salvage, contract salvage or towage.
In a pure salvage situation, the salvor responds to a vessel in immediate peril. The salvor’s compensation is on a “no cure no pay” basis. If the salvor’s efforts are not successful to save the vessel, he is not paid. If, however, the salvor’s efforts are successful in whole or in part, he is entitled to an “award” or “bounty”. The public policy is to incentivize the salvor to come to the aid of vessels in distress.
A salvage “award” is determined by considering a number of factors established by the general maritime law and international convention including the post casualty value of the property saved, the skill and promptitude of the salvor, the value of the gear and equipment used and placed at risk by the salvor during the operation, the personal safety risk the salvor faced during the operation, the degree of peril the vessel was in, and whether environmental impact was abated. Based on these factors, the salvor may be awarded a percentage of the post casualty value of the vessel. Pure salvage can be very lucrative for the salvor when the post casualty value of the vessel and degree of peril are high.
Treasure salvage is similar to pure salvage in that the salvor earns an “award” as compensation. The maritime treasure salvage industry is highly specialized and ultra-competitive. Treasure salvors are historians who search for lost vessels all over the world. More often than not, treasure salvors are looking for vessels that were carrying valuable cargo that were lost in storms possibly hundreds of years ago. For example, a number of vessels have been located in the Florida Keys, in the Bahamas, and off the east coast of the United States that were carrying gold coins and other valuables hundreds of years ago. Once the vessel is located, the treasure salvor marks the location, retrieves an exemplar portion of the vessel, and requests the United States District Court to arrest the vessel similar to the process discussed at in the commercial maritime law. If the salvage is uncontested, the salvor continues to recover as much of the vessel and its treasure as possible, and the court issues an award determined by factors similar to pure salvage. Depending on the value of the treasure, gold coins, etc. recovered, the salvor’s award can be significant. More often than not, however, the salvage is contested by the country who owned the vessel at the time of loss in which case the treasure salvor must show that the vessel had been abandoned over time.
Contract salvage occurs in situations where the salvor and the vessel owner agree to a predetermined price to rescue the vessel often on a dollar per foot basis. Many recreational vessel owners are members of clubs similar to AAA on land where emergency response is included in the price of membership. In other scenarios, the vessel is not facing immediate peril such as a soft sand grounding where the vessel could remain for days without significant damage. Under these circumstances, the salvor may agree before the service is provided to be compensated on a dollar per foot basis. On a completely different scale, the salvage of the vessel may entail a massive project which will take months to perform and involve hundreds of vendors. In this scenario, the negotiation for salvage compensation is often governed by international convention and is complex.
Unlike salvage, towage contracts are considered contracts of affreightment meaning contracts to carry cargo from on location to another. In the recreational world, a salvor may enter into a towage contract to pull another vessel from one location to another on a dollar per foot compensation basis. On a larger scale, a commercial towage company may contract with a barge owner or charterer to push or pull a barge loaded with cargo from one location to another. Commercial towage contracts can be very complex, contain their own nomenclature, express and implied warranties, red letter clauses, exculpatory provisions, and name and wave provisions.
State & Federal Environmental Issues
Nearly every maritime casualty carries with it a potential environmental impact. Governmental fines and penalties may be assessed for a minimal oil leak by a small recreational craft moored to its residential dock to a ship grounding on a coral reef in a national marine sanctuary. Everyone remembers the Exxon Valdez oil spill in Alaska and the BP Horizen disaster in the Gulf of Mexico. Proactive response to environmental impact issues is mandatory to yield positive results.
Environmental issues also commonly arise when involved in maritime construction and repair. For example, permits and variances may be necessary to build or extend a dock or mooring platform. The attorneys at McLeod Brock have over 25 years of experience investigating and defending claims involving:
- Responding to Notices of Violation
- environmental due diligence
- mitigation issues
- Environmental litigation in state and federal courts
- Defense of RCRA actions, CERCLA claims and citizen suits
- Resolving enforcement actions
- litigation of state and federal administrative claims before administrative bodies such as DEP, DOAH and USCG
- dredge & fill permitting
- submerged lands leases
- water quality
- Rule challenges
- Private citizens’ lawsuits
- Real estate development issues
Whether you need assistance in obtaining approvals, mitigating damages, or with seeking relief from the government, resolving compliance issues, or if you just need advice on your specific environmental circumstance, our team will be there to help you efficiently manage and resolve your issues.
In Rem Liability
Significantly, salvage, towing and environmental claims give rise to maritime liens against the vessel involved no matter how large or small the vessel is. These liens are often considered liens of first priority and cannot be ignored. Accordingly, there are occasions where the involved vessel may be seized via the process of maritime arrest to secure the salvage, towing and/or environmental claim during litigation.