Sunglory Maritime, Ltd. v. PHI, Inc.
Sunglory Maritime, Ltd. v. PHI, Inc.
Opinion of the Court
SECTION: “G” (5)
JUDGMENT AND REASONS
This matter came before the Court for trial without a jury from March 17, 2016, to March 18, 2016.
The Court has carefully considered the testimony of all of the witnesses and the exhibits entered into evidence during the trial, as well as the record. After reviewing all of the evidence and pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts
I. BACKGROUND
This case involves a claim for salvage pursuant to the 1989 Salvage Convention arising out of an incident in which a helicopter operated by Defendant PHI, Inc. (“PHI”) made an emergency landing aboard a vessel owned by Sunglory Maritime Ltd. and managed by Aeolian Investments S.A. after experiencing unusual vibrations while en route to an offshore oil platform in the Gulf of Mexico. The vessel then carried the helicopter back to shore, where it was removed by crane.
In April of 2015, Plaintiffs filed a claim for costs, seeking the additional fuel expenses and demurrage incurred carrying the Aircraft to port, as well as their survey costs.
Plaintiffs filed the instant complaint on March 28, 2015.
On July 13, 2016, the Court ordered additional briefing to address several issues that had not been adequately covered in the parties’ pretrial memoranda.
II. FINDINGS OF FACT
A. The Parties and Property Involved
1. Plaintiffs Sunglory Maritime Ltd. (“Sunglory”) and Aeolian Investments SA (“Aeolian Investments”) (collectively, “Plaintiffs”) are corpo- • rations organized and existing under the laws of the Republic of Greece, with their principal office and place of business in Piraeus, Greece.17 *628 Sunglory is the owner, and Aeolian Investments is the manager, of the M/V AEOLIAN HERITAGE (the “Vessel”), a Panamax bulk carrier engaged in international trade.18
2. PHI, Inc. (“PHI”) is a Louisiana corporation with its principal place of business in Lafayette, Louisiana.19 The company operates aircraft engaged in passenger transportation under Part 135 (“Commuter and On-Demand Operations”) of the Federal Aviation regulations.20
3. The insured value of the PHI helicopter no. N764P at the time of the landing on the Vessel was approximately $2,000,000.00.21
4. The helicopter weighed 10,800 pounds.22
5. The helicopter had a life raft and pontoons aboard it.23
6. The Vessel has a value of $50,000,000.00.24
B. Events Leading to Landing on the Vessel
7. On March 24, 2013, PHI helicopter no. N764P (the “Aircraft”) was traveling on an outbound flight over the Gulf of Mexico carrying two crew members and seven passengers.25
8. At the time the helicopter departed, it had a full tank of fuel.26
9. In addition, the pilots and passengers aboard the Aircraft were wearing life vests, and the helicopter had life rafts onboard.27
10. Approximately ten miles from shore, the pilot in command, Dean Cole (“Cole”), detected a vibration coming from the Aircraft.28
11. First, co-pilot Joshua Brackett (“Brackett”) heard an initial pop or bang and felt a slight yaw,29 defined as a motion about the vertical axis of the helicopter, or in other words, a left and right movement.30
12. Following the bang, and yaw, the pilots began to experience an unusual and recurring vibration that could be heard by the pilots and felt through their feet.31
13. Unsure of the source of-the vibration, and approximately 50 miles away from the destined platform, Cole immediately turned the Aircraft around and headed for shore.32
*629 14. After detecting the vibration, Cole tested the Aircraft’s controls and found no obvious problems.33
15. Cole then attempted to reach air traffic control but was unable to reach them, apparently because the helicopter was in a dead zone portion of the Gulf of Mexico, where radio coverage was unavailable.34
16. After Cole was unable to make contact with anyone, he activated the emergency, or “may day,” switch, which informed PHI—but not the Coast Guard—that the helicopter was experiencing a problem.35
17. The pilots pulled out an “emergency check list” published by PHI to see if they could identify the problem they were experiencing, but the list did not help the pilots diagnose the cause of the vibrations.36
18. Although the Aircraft was fully controllable, the vibrations continued and grew in duration and strength.37
19. At that point, the Aircraft was about six minutes from land, and flying above a staging area for the port of Corpus Christi, where cargo ships anchor awaiting berths.38 '
20. Cole then decided that the safest course of action was to land on one of the anchored vessels.39
21. This decision was made in order to avoid “something worse [that] might happen,”40 and because of Cole’s fear that it “would be hard to explain to the FAA if [the helicopter] did not make it ... why [he] passed up a heliport or helipad underneath [him].”41
22. Although the pilots believed they were making a precautionary landing, they acknowledged that, because they did not know the cause of the vibration, one possible outcome of not landing as soon as possible was that they might have to “ditch” the helicopter into the water.42
23. The Aircraft initially approached a different ship, but that ship was unsuitable for landing due to obstructions on the deck.43
24. The Aircraft crew then sighted the Plaintiffs’ vessel, which was along the helicopter’s flight path44 and had a hatch cover marked with the “H” designation, the customary way to designate the location where helicopters should land on a vessel.45
*630 25. The helicopter then circled the Vessel twice to make sure that the helipad was clear of obstructions and people.46
26. Neither Cole nor his co-pilot, Joshua Brackett (“Brackett”), was able to contact anyone aboard the Vessel, and the Vessel did not grant permission for the Aircraft to ■ land.47
27. Because Brackett had a better view for landing, Brackett took over the controls48 and executed a normal, controlled landing.49
28. Brackett landed the helicopter on hatch cover # 6, which has an “H” designated for helicopters.50
29. The helicopter landed in the center of the “H” marking, which is not located precisely in the center of the hatch cover. The tail of the helicopter initially hung past the hatch cover so that it was not accessible from below.51
30. At the time the helicopter landed, the Vessel was rolling from side to side and sometimes pitching.52
31. The Vessel has several mast heads,53 a large accommodation area,54 a crane on the back of the ship,55 piping and equipment on her deck,56 stairs leading to hatch # 6,57 and raised hatch covers on her deck and around the deck of the vessel.58
32. Nevertheless, Cole and Brackett had no trouble safely navigating the obstructions and landing at a normal speed and angle.59
33. Because the helicopter had a nearly full tank of fuel, had it landed in the water, it could have caused some pollution.60
34. Likewise, if it had landed improperly or crashed on the deck of the Vessel, the Aircraft could have caused a fire or an explosion.61
35. However, neither outcome was very likely to occur. The pilots landed the helicopter aboard the Vessel as a precautionary measure to avoid a real but uncertain risk of danger to the property or passengers, but little evidence has been*631 presented to suggest that if the helicopter had not landed aboard the Vessel when it did, it would have been unable to return to shore and would have been forced to ditch into the Gulf of Mexico instead.62
36. At the time the helicopter landed on the Vessel, the pilots did not know whether her cargo was flammable or explosive, or whether her hatch cover could support the weight of the helicopter with nine people onboard.63
C. Events Following the Helicopter’s Landing
37. After the helicopter landed,'certain crew members asked the PHI pilots why they had landed on the Vessel and whether they were with the U.S. Coast Guard.64
38. At the time that the helicopter landed, the chief mate of the Vessel—Spyridon Panagiotopolous— was in his cabin, from where he heard a “loud mechanical noise” coming from the helicopter.65
39. Panagiotopolous saw grey smoke emanating from the helicopter when he looked through his port hole and when he came on the deck.66
40. The PHI helicopter was much bigger than any other helicopter that the chief mate had ever seen land on the Vessel.67
41. Ordinarily, helicopters that land on hatch # 6 are two-person helicopters used to deliver pilots.68
42. When small helicopters deliver pilots to the Vessel, they keep their propellers spinning, rather than place their full weight on the hatch cover.69
*632 43. By the time Panagiotopolous got to the deck, but before the phots or passengers had exited the helicopter, he saw crew members standing by with fire hoses.70
44. Pilot Cole informed the captain of the ship that the helicopter had made an emergency landing due to engine problems.71 That information was recorded by the Vessel’s second mate on the deck log.72
45. When the passengers disembarked from the helicopter, the Vessel crew perceived them to be in shock and afraid.73
46. With assistance from the Vessel’s crew, the PHI crew secured the Aircraft on the helipad where it had landed with tie-down lines they had aboard the Aircraft.74
47. After landing on the ship, the crew and passengers of the helicopter were accommodated by the master and crew of the Vessel.75
48. The helicopter’s pilots and passengers were provided coffee, drinks, and food and were made comfortable.76
49. The master of the Vessel advised Plaintiffs of the incident by telephone, then confirmed by e-mail that a helicopter landed on the Vessel in an emergency.77
50. Phaidon Moustakas, acting as principal on behalf of the owners and managers of the Vessel, authorized the actions that were taken on-board with respect to the PHI helicopter, namely assisting the crew and passengers and taking measures to secure the helicopter.78
51. After the incident, PHI sent two helicopters to land on the vessel. The helicopters picked up the passengers from the Vessel and took them to shore, and dropped off two helicopter mechanics on the Vessel.79
52. These subsequent helicopter landings were coordinated through the Vessel’s captain, who selected hatch cover # 2 as a suitable location for these landings.80
53. When the two additional PHI helicopters landed, the Vessel’s crew was at the ready with fire hoses and emergency equipment.81
54. Thé crew of the Vessel assisted in shifting the helicopter so it could be inspected by PHI’s mechanics.82
55. PHI’s mechanics were unable to diagnose the mechanical problem*633 with the helicopter while it was aboard the Vessel.83
56. The pilots elected not to fly the helicopter off the Vessel without knowing what was the problem or having the problem diagnosed and repaired.84
57. The two pilots and the two mechanics remained on board the Vessel overnight, and were provided food and shelter by the master of the Vessel, who housed them in the ship owner’s cabin, the captain’s empty room, and the hospital.85
58. PHI arranged for off-loading the helicopter at a lay berth in Corpus Christi, and the Vessel made arrangements to sail to that berth to off-load the helicopter.86
59. Plaintiffs voluntarily instructed the Vessel’s master and her crew to transport the helicopter, pilots and mechanics to the port for the helicopter’s discharge.87
60. The Sherwin Terminal, where the Vessel was headed to discharge its cargo, advised that the Vessel would not be allowed to dock while the helicopter was still on board.88
61. The Vessel, which had been cleared to come into port before the Aircraft landed, delivered the Aircraft to a dock where it was unloaded by PHI on Monday, March 25, 2013, at berth no. 8 in Corpus Christi without incident.89
62. The helicopter was removed by crane through a contractor.90
63. PHI delivered the Aircraft to its facility in Lafayette, Louisiana, where it was determined that the high-frequency vibration and yawing was caused by broken bolts in the helicopter’s tail rotor hanger bearing.91
64. It was necessary to replace the tail rotor drive shaft due to the broken bolts.92
65. Plaintiffs required PHI to-execute a “Limitation of Liability and Release Agreement” freeing the Vessel’s owners from any liability for loss or damage to the helicopter while stowed and being transported on the Vessel.93
66. The Vessel suffered no physical damage from the landing.94
D. Facts Concerning Actual Expenses Incurred in Rendering Assistance to PHI
67. The hatch cover of the Vessel was surveyed following the incident to determine whether any damage had resulted from the helicopter landing on it.95
*634 68. At the time of the incident, the Vessel was chartered to Aquavita International SA (“Aquavita” or “Charterer”) at a rate of $11,550 per day pursuant to a charter agreement (“Time Charter”).96
69. The Time Charter includes Clause 38, contained in a rider agreement, which states that “Should the vessel deviate or put back during a voyage, contrary to the orders or directions of the Charterers, the hire is to be suspended from the time of her deviating or putting back until she is again in the same or equidistant position from the destination and the voyage resumed therefrom.”97
70. The Time Charter also states that “whilst on hire the Charterers shall provide and pay for all the fuel except as otherwise agreed.”98
71. The Vessel deviated from its otherwise scheduled path in order to offload the helicopter at berth # 8 in Corpus Christi, Texas.99
72. At the time of the incident, the Vessel did not go off-hire.100
73. Plaintiffs incurred a $500 agency fee paid to Biehl & Co., L.P. for its coordination of delivery of the Aircraft back to shore.101
74. Plaintiffs were concerned that the helicopters that landed aboard hatch #6 had caused damage to the hatch cover, because it appeared to be heavier than the helicopters that normally landed on the Vessel and for which the hatch cover was designed.102
75. Accordingly, Plaintiffs contacted three different entities to board the Vessel for inspections: (1) Sabine Surveyors, to inspect hatches #2 and # 6 for visible external damage to the hatch covers and to gather basic information about the incident; (2) MacGregor/CargoTech, who manufactured the hatch covers, and could thus determine whether the hatch covers or associated machinery were damaged; and (3) the Classification Society Det Norske Veritas (“DNV”), who are responsible for ensuring that the Vessel is at all times “in class.”103
76. Plaintiffs incurred fees to Sabine Surveyors, Ltd. in the amount of $1,690.87.104
77. Plaintiffs incurred survey expenses to DNV in the amount of $3,983.77.105
78. Plaintiffs incurred inspection fees to MacGregor/CargoTech in the amount of €3,694.10 ($5,046.98).106
On March 4, 2016, the Court issued an order denying PHI’s motion for partial summary judgment, wherein it addressed a number of the issues that the parties continued to contest in their pretrial mem-oranda and throughout trial.
A. Applicable Law
In its motion for summary judgment, PHI initially argued that the 1989 Salvage Convention did not appear to apply to salvage claims in the United States, as it is rarely invoked by parties or mentioned by U.S. courts, and that courts nevertheless continue to apply general maritime principles of law in evaluating salvage claims.
Plaintiffs, however, urge the Court to conclude that the Convention applies to the instant dispute.
The Salvage Convention, which was adopted on April 28, 1989 and ratified by
Nevertheless, PHI is correct that the Salvage Convention is mentioned only occasionally in briefs and rarely in published opinions.
Although the Salvage Convention indeed appears to be often ignored, PHI presents the Court with no argument or reason why the treaty should not be regarded as the supreme law of the land. However, as the relationship between the Salvage Convention and the general maritime law appears to remain undecided, as indicated by the Fifth Circuit in Solana,
B. Salvage Liability
“The law' of marine salvage is of ancient vintage. In contrast to the common law, which does not grant a volunteer who preserves or saves the property of another any right to a reward, a salvor of imperiled property on navigable waters gains a right of compensation from the owner.’.’
Pursuant to the Salvage Convention, a “[s]alvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoev
1. Party Asserting a Salvage Claim
In an argument that is collateral to the elements of a salvage claim and akin to the requirement that a plaintiff have “standing,” PHI claims that Plaintiffs, as the Vessel’s owners, have only a limited right, if any, to claim a salvage award in this matter.
In response, Plaintiffs contend that the Salvage Convention does not instruct a tribunal assessing a salvage claim to consider whether other parties not before the tribunal could potentially have sought an award.
Although PHI argues that a vessel owner may not recover any reward unless the vessel encounters some kind of physical danger during the course of a salvage operation, the Court agrees with Plaintiff that the Salvage Convention includes no such requirement, and simply states that liability for a salvage award may attach to any “salvage operations which have had a useful result.”
Moreover, considering this matter under the general maritime law would lead to the same result. The leading treatise on the law of admiralty, Benedict on Admiralty, clearly states that “[t]here is no limitation as to the type of person who may be entitled to a salvage award.”
Although it is a general rule that a party who does not participate in the salvage service is not entitled to a salvage award, an exception to the rule permits the owner of a salving vessel to share in the award,
Although at trial the parties disputed the degree of danger allegedly faced by the Vessel in receiving and transporting the helicopter, PHI has cited no authority in which an owner of a vessel that undoubtedly provided salvage services was denied a salvage award because the vessel in question faced an insufficient degree of danger. In support of its claims, PHI cites The Blackwall and The Camanche, two 1869 Supreme Comet decisions that stated, in rebutting arguments to the contrary, that vessel owners could indeed recover salvage awards based on the premise that their vessels bore some risk in providing salvage services.
A more recent case in the Ninth Circuit, Bartholomew v. Crowley Marine Services, Inc., expressed a similar view to that espoused by PHI, noting that “it has been considered a general, if not universal, rule that the reward is available not only to the salvors but also to the owner of the salving vessel, if there was a risk that the vessel could be affected during the salvage operation.”
The owner need not take part in, direct, or even know about the salvage operation, to share in the award, although such participation or direction may increase the owner’s proportionate share.... An owner’s share generally increases when the salving vessel is of large value, when the salving vessel or owner was exposed to substantial risk in*641 rendering the services ... when the princip[al] service was performed by the vessel, ... or when the owner directed the service.... In contrast, the share apportioned to the crew generally increases when the risk sustained by the crew was exceptionally high, the salving vessel was not exposed to serious risk or danger ... or where the efficiency of the salvage vessel itself played a small role in the services rendered relative to the individual efforts of the crew ....155
Furthermore, courts have granted salvage awards to salving vessel owners without evidence that the salving vessels faced significant risks. For example, in DOROTHY J v. City of New York, a judge concluded that a tugboat owner was entitled to a salvage award where the tugboat and its crew provided successful salvage service to a city-owned ferry by arriving alongside the ferry ready to provide potential rescue or other assistance following the ferry’s allision with a pier.
Therefore, the Court concludes that the crew need not join the suit in order for the Vessel owners to pursue a claim, and the Vessel need not have faced significant risk of damage in order to allow the Vessel owners to seek a salvage award in this matter. Nevertheless, even if some kind of danger to the Vessel is required, the Court has already found, supra, that the Aircraft that landed on hatch # 6 was much larger and heavier than the helicopters that normally land aboard the Vessel, that it was emitting smoke at the time that it landed, and that if it had landed improperly or crashed on the deck of the Vessel, the Aircraft could have caused a fire or an explosion.
2. Property Subject to a Salvage Award
Next, PHI argues that, as a matter of law, a helicopter is not the kind of proper
Here, PHI argues that historically, property subject to a claim of salvage has included vessels, property aboard vessels, property thrown overboard or jetsam, property found freely floating on the sea or flotsam, property on the sea attached to buoys, and property washed up to shore-Cin other words, property with a strong “maritime nexus.”
Plaintiffs, by contrast, rely on the broad definition of salvageable “property” provided by the Salvage Convention, which states that “[property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.”
While the requirement for a “maritime nexus” has a long history, some courts have criticized, for more than a century, the “narrow and restricted doctrine of limiting the subject of salvage services to a ship or goods coming from a ship.”
PHI also points to the decision of a judge in the District of Maine, in Historic Aircraft Recovery Corp. v. Wrecked & Abandoned Voight F4U-1 Corsair Aircraft, which strongly questioned the extension of the law of maritime salvage to claims regarding even abandoned aircraft.
Although Executive Jet expressed some reluctance to extend admiralty jurisdiction, at least in the context of torts, to matters involving aviation, Executive Jet involved a situation that is distinguishable from the facts in this case. In Executive Jet, an airplane, upon striking a flock of seagulls as it was taking off, crashed into the navigable waters of Lake Erie on a flight intended to travel from Cleveland, Ohio to Portland, Maine and then to White Plains, New York—in other words, “a flight that would have been almost entirely over land [and] within the continental United States.”
Citing Barger v. Petroleum Helicopters, Inc., a 1982 Fifth Circuit case, PHI also argues that the Fifth Circuit has clearly held that helicopters, unlike seaplanes, are not “vessels” for purposes of maritime commerce, even if they fly over the sea.
The Supreme Court came to the same conclusion in Offshore Logistics, Inc. v. Tallentire, a 1986 case in which the Court, citing Executive Jet, stated:
[AJdmiralty jurisdiction is appropriately invoked here under traditional principles because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Although the decedents were killed while riding in a helicopter and not a more traditional maritime conveyance, that helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an “island,” albeit an artificial one, to the shore.201
Thus, both the U.S. Supreme Court and the Fifth Circuit have recognized that a helicopter that transports passengers to an offshore platform engages in a function traditionally performed by waterborne vessels, and therefore bears a sufficient nexus to traditional maritime activity such that admiralty jurisdiction may be invoked when accidents befall such helicopters. Although this Court recognizes that these decisions have arisen in cases examining the applicability of admiralty jurisdiction, rather than in addressing the law of salvage, this Court sees no reason, and PHI has not offered any, why the question of whether an activity “bear[s] a significant relationship to a traditional maritime activity”
Finally, PHI makes a policy argument that allowing a salvage claim in this case “would potentially open the door for vessel or rig owners to assert a claim for salvage every time a helicopter made a landing because of low fuel, storm activity or an operational concern,” an outcome that would create an undesirable disincentive for a pilot to act prudently for fear of a salvage claim being asserted against the helicopter.
Accordingly, the Court concludes as a matter of law that pursuant to either the Salvage Convention or general maritime law, a helicopter that transports passengers to offshore platforms may be subject to a salvage award if recovered or saved in navigable waters.
3. Traditional Elements of a Salvage Award
As outlined earlier, to succeed on a salvage claim pursuant to the general maritime law, a plaintiff must prove three elements: (1) that the property faced a marine peril; (2) voluntary service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation.
a. Marine Peril
Plaintiff bears the burden at trial of showing that the property faced a marine peril
PHI argues that the helicopter did not face a marine peril because: (1) the aircraft was at no time actually facing any imminent threat or immediate peril, particularly by the time that the limited services provided by the Vessel—namely carrying the helicopter to a berth for offloading—were rendered;
Therefore, having found no authority, binding or otherwise, stating that, as a matter of law, a court shall not consider it to be a “marine peril” when an airplane faces an alleged risk, however small, of being unable to return to shore while flying above navigable waters, the Court declines to conclude as a matter of law that aircraft cannot face “marine perils” solely by virtue of the fact that they are not vessels. Moreover, as the Court already noted above, once PHI’s crew decided that they could not or would not fly the helicopter back to land, the helicopter became akin to “cargo” that, without the aid of the Vessel and its crew, would have been stranded at sea.
The Court has already made a factual finding that the Aircraft’s pilots believed that had the helicopter not landed on the Vessel, there was a reasonable risk that it would not safely complete its flight, which could require it to “ditch” into the sea.
b. Voluntary Service
As PHI does not contest the third element of a salvage claim—success in whole or in part—the final consideration regarding salvage liability is whether the Vessel performed the services in this matter voluntarily, while under no legal obligation or compulsion to do so.
Plaintiffs respond that, under the Salvage Convention, which defines “salvage operation” to mean “any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever,” Plaintiffs clearly performed an “act” insofar as they received the aircraft onboard, assisted in pushing it to a location where it could be inspected for damage, provided shelter and sustenance to the helicopter’s crew, authorized additional landings to accommodate PHI, and safely transported the helicopter and PHI’s personnel to shore.
Although PHI makes much of the question of whether Plaintiffs “acted” to rescue the helicopter given the alleged lack of awareness on the part of the Vessel’s crew that the helicopter was in fact seeking refuge on the Vessel, general maritime law—which PHI argues should apply here—has long defined voluntariness not as “a service rendered solely from one’s
Therefore, the Court concludes that pursuant to both the Salvage Convention and the general maritime law, Plaintiffs performed a voluntary act in furtherance of a salvage operation.
4. Conclusion
In light of the foregoing, the Court concludes that Plaintiffs have standing to bring a claim for salvage despite the fact that other parties who could have joined the suit chose not to do so, and the helicopter in this instance was property subject to a salvage award. Furthermore, the Court finds that Plaintiffs have satisfied their burden by a preponderance of the evidence and as a matter of law of proving the traditional three elements of a salvage claim, namely that: (1) the property faced a marine peril; (2) voluntary service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation. Accordingly, Plaintiffs are eligible for a salvage award, and the Court next determines the amount to which Plaintiffs are entitled.
C. Salvage Award
“A salvage award is decreed in a court of admiralty not in the way of mere quantum meruit for work and labor performed, but as a bounty given on grounds of public policy, to ensure safety of property and life at sea; to promote commerce and trade; to save and restore property to its owners; to induce and encourage others to risk life and limb, if need be, in the interest of saving distressed property; and to eliminate any temptation on the part of the rescuers to despoil the saved property.”
The appropriate salvage award in a particular case is highly circumstantial and generally “should not be based upon fixed percentages of the value of the salved property or upon comparisons to percentages from previous awards.”
Under the general maritime law, courts have long utilized a six-factor test laid out by the Supreme Court in The Blackwall, wherein courts consider:
1. The labor expended by the salvors in rendering the salvage service.
2. The promptitude, skill, and energy displayed in rendering the service and saving the property.
3. The value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed.
4. The risk incurred by the salvors in securing the property from the impending peril.
5. The value of the property saved.
6. The degree of danger from which the property was rescued.253
In evaluating the Blackwall factors, the Fifth Circuit has advised courts to use the first, second, third, fourth, and sixth factor to arrive at a percentage to be applied to the fifth factor.
1. The salved value of the vessel or other property;
2. The skill and efforts of the salvors in preventing or minimizing damage to the environment;
3. The measure of success obtained by the salvor;
4. The nature and degree of the danger;
5. The skill and efforts of the salvors in salving the vessel, other property and life;
6. The time used and expenses and losses incurred by the salvors;
7. The risk of liability and other risks run by the salvors or their equipment;
8. The promptness of the services rendered;
9. The availability and use of vessels or other equipment intended for salvage operations;
10. The state of readiness and efficiency of the salvor’s equipment and the value thereof.256
At trial, Professor Martin Davies testified that the Blackwall factors do not apply to cases under the Salvage Convention, and the Salvage Convention’s ten factors, as stated in Article 13 of the treaty, should be applied instead.
Finally, the Court notes at the outset of its analysis that “[w]hen salvage claims are asserted, the salvor bears the burden of persuasion regarding salvage value.”
1. The Salved Value of the Vessel or Other Property
It is undisputed that'the value of the salved property in this instance was $2,000,000.
Traditionally, “life salvage,” as established by the Life Salvage Act, means that a salvor of human life who has, while others have participated in traditional salvage services aimed at saving property, foregone his opportunity to participate in the more profitable endeavor, is entitled to a fair share of the remuneration awarded to salvors of a vessel or her cargo.
The Life Salvage Act does not provide compensation for life salvage, it only allows salvors- of life who have participated in the services rendered on the occasion of the accident giving rise to salvage, a fair share of the property salvage award. Thus, whatever may be the social injustice involved, life salvors are entitled to only a fair share of the compensation awarded to property sal-vors. Their share must come out of the property award and they have no cause of action against the beneficiaries of their service.268
Thus, while the Court may take into account the fact that human lives were involved in the incident at issue in this case—such as in weighing the degree of danger facing the property or human life, below
Likewise, although the Salvage Convention directs courts to consider the “skill and efforts of the salvors in salving the vessel, other property and life,”
2. The Skill and Efforts of the Sal-vors in Preventing or Minimizing Damage to the Environment
At trial, Plaintiffs presented minimal evidence that the Aircraft, but for the Plaintiffs’ efforts, would have caused any damage to the environment. As the Court addresses in greater detail below, Plaintiffs presented no evidence to suggest that, had the helicopter not landed on the Vessel at the time that it did, it would more likely than not have crashed into the waters.
3. The Measure of Success Obtained by the Salvor
The assistance rendered by the Vessel contributed to the success of the operation. Namely, through the efforts of the Vessel and her crew, accommodations and nourishment were provided to the crew and passengers of the Aircraft, and the equivalent of towing or cargo services were provided by the Vessel, which ferried, the helicopter to shore.
4. The Nature and Degree of the Danger
The Court has already concluded that the danger faced by PHI’s property and the lives aboard the helicopter was sufficient to meet Plaintiffs’ minimal burden of proving that a “marine peril” or a “danger in navigable waters” faced the helicopter such that Plaintiffs are entitled to a salvage award for their efforts in this matter.
At best, persistent questioning of the only testifying witnesses with any knowledge of the mechanics of helicopters revealed that, had the helicopter not landed on the Vessel at the moment it did, there
Q: And it’s true then when you felt the vibrations you wanted to land immediately because you thought something else might go wrong, right?
A. It could happen, yes, sir.
[[Image here]]
Q. And, in fact, you made a descent to safer air speed in case something worse might happen; right?
A. Yes.
Q. Did you have any idea what function the helicopter might lose or what might happen due to these vibrations?
A. No.
Q. Something catastrophic might have happened, right?
A. It could have.
Q. And the something catastrophic might be that you end up ditching into the water?
A. There is always the possibility.
A witness’s statement that “there is always the possibility” that, should something go “catastrophic[ally]” wrong midair, a helicopter would have to ditch into the Gulf of Mexico, does not meet Plaintiffs’ burden to persuade the Court by a preponderance of the evidence that the helicopter—or the people aboard it—faced a significant danger of ditching into the ocean. The only evidence the Court has before it regarding the physical problems faced by the helicopter is the yaw reported by the pilots,
5. The Skill and Efforts of the Sal-vors in Salving the Vessel, Other Property and Life
As noted above, although Plaintiffs focus primarily on the danger faced by the helicopter at the time that it landed on the Vessel, Plaintiffs presented no evidence to suggest that the Vessel or its crew took any actions to alleviate that danger, such as clearing the deck for a safe landing, or repairing or replacing the tail rotor drive shaft. Accordingly, the skills and efforts the Court must consider are those made after the helicopter landed. The Court has found, supra, that the Vessel’s crew members stood by with fire hoses both when the Aircraft landed and when subsequent helicopters arrived to dron off mechanics and retrieve the Aircraft’s passengers.
6. The Time Used and Expenses and Losses Incurred by the Salvors
Plaintiffs and PHI heavily dispute the actual costs incurred by the salvors in lending assistance to PHI. Plaintiffs assert that “there is no dispute” that they incurred $24,638.73 in actual costs incurred as a result of the Aircraft’s landing, Plaintiffs’ efforts to return the Aircraft and her crew and passengers to shore, and Plaintiffs’ reasonable steps to determine whether the helicopter landings had caused any physical or structural damage to the Vessel’s hatch covers.
Loss of Use/Deviation Costs: $7,459.83
$5,687.73 Additional Bunkers/Fuel Consumed:
Additional Agency Fees: $500.00
Local Survey’s Attendance: $1,690.87
Classification Surveyor Attendance: $3,983.77
Hatch Cover Manufacturer’s Attendance: $5,046.98.
Accordingly, of the four categories of damages outlined above, PHI concedes that it is responsible for paying at least $11,221.62 (the $500 agency fees, plus the sum of the three surveys).
Although “loss of use” damages more often are discussed by the Fifth Circuit in cases involving a collision or other maritime tort, rather than as an element of actual costs incurred during a salvage operation, the prevailing rule regarding establishing damages for loss of use of a vessel is that the burden of proving the damages actually sustained during a deviation is placed on the Vessel owner, and such damages must be proved with reasonable certainty.
Should the vessel deviate or put back during a voyage, contrary to the orders or directions of the Charterers, the hire is to be suspended from the time of her deviating or putting back until she is again in the same or equidistant position*660 from the destination and the voyage resumed therefrom.302
Here, it is undisputed that the Vessel deviated from its otherwise scheduled path in order to offload the Aircraft at a lay berth in Corpus Christi.
Plaintiffs bear the burden of proving their actual costs incurred as a result of giving aid to PHI during the salvage operation. Here, Plaintiffs present no evidence that the Vessel actually went off-hire, such as, for example, an invoice reflecting off-hire time for which the Charterer did not pay, a credit that was paid back to the Charterer, or written correspondence or testimony from the Charterer and/or the Vessel owner stating that as a matter of fact, Aquavita would not pay for the time the Vessel spent aiding PHI.
Likewise, Plaintiffs contend that they spent $6,974.66 for the cost of bunkers, or fuel, consumed in navigating to berth # 8 to' discharge the helicopter and then back to the Sherwin Terminal, of which PHI is
Accordingly, in terms of actual costs incurred in the salvage operation, Plaintiffs have only produced evidence regarding the $500 agency fee,
7. The Risk of Liability and Other Risks Run by the Salvors or Their Equipment
Although it is undisputed that the Vessel ultimately incurred no physical damage,
Finally, it is undisputed that PHI signed a limitation of liability agreement with Plaintiffs on March 24, 2013.
8. The Promptness of the Services Rendered
PHI does not appear to dispute that, to the extent that Plaintiffs rendered services, they did so promptly. It is undisputed that the crew of the Vessel accommodated the crew and passengers of the Aircraft, providing coffee, drinks, and food, as well as overnight accommodations for PHI’s two pilots and two mechanics.
The ninth and tenth factors that the Court considers in determining a salvage award appear to “reflect a policy of rewarding professional salvage companies for undertaking the substantial expense of maintaining equipment on stand-by, ready to respond to a casualty on short notice.”
10. Weighing the Factors
Plaintiffs argue that the skills and efforts of the Vessel and its crew, the risk borne by the Vessel from the unannounced emergency landing, and the value of the property saved entitles them to an award of at least 20% of the value of the $2,000,000 helicopter saved, “to include also the ‘value’ ascribed to the nine lives saved.’ ”
The Salvage Convention provides little guidance regarding how the Court is to weigh the ten factors, stating only that: “The reward shall be fixed with a view to encouraging salvage operations, taking into account the [ten factors] without regard to the order in which they are presented ....”
“Because of the peculiar dangers of sea travel, public policy has long been held to favor a legally enforced reward in this limited setting, to promote commerce and encourage the preservation of valuable resources for the good of society.”
Accordingly, the Fifth Circuit has stated that the law of salvage aims to “create a post-hoc solution that will induce the parties to save the ship without first agreeing on terms.”
As Defendant has repeatedly urged this Court to consider, the facts and circumstances of this case are unique, and while the Court has analogized certain issues in this matter to cases involving towage or cargo, the parties cited no case, nor could the Court find any, that involved so many of the unusual situations involved in this matter, such as property that is not traditionally associated with a vessel and “salvage” operations that were performed without the initial consent of the would-be salvors. Therefore, with little guidance from case law, the Court must remember that its overarching goal in determining a proper salvage award must be to “encourage rescues in settings of high transaction costs”
With these considerations in mind, the Court first considers what need, if any, there was to incentivize the actions taken by Plaintiffs. On the one hand, Plaintiffs generally did not need the law to encourage them to act as they did. It is undisputed that Plaintiffs had no notice of the Aircraft’s impending landing, as the Aircraft landed without the pilots making radio contact with the Vessel to notify it that they planned to land.
On the other hand, the fact that PHI essentially gave the Vessel little choice but to comply with its requests should not inure to the benefit of PHI, lest helicopters that find themselves in similar potential distress see a benefit to purposefully avoiding seeking permission from vessels before landing, or force themselves upon those who have no desire to act as salvors. The helicopter’s decision to land on the Vessel was unilateral and unconsented to, and the Court declines to incentivize such commandeering of a foreign vessel, particularly when, as here, the company then argues that not only should no salvage award be issued, but few if any actual costs were incurred by virtue of the helicopter’s landing.
PHI argues that Plaintiffs should only be able to recover their actual costs incurred—or essentially what they term an award of “quantum meruit.”
Neither party has suggested a reasonable salvage award to the Court. On the one hand, Plaintiffs quite clearly seek a windfall, asking for at least $400,000 as an award in a matter in which even by Plaintiffs’ calculations, the services rendered cost Plaintiffs no more than $24,648.73. As a judge in the Southern District of New York responded in a case with a similarly unsupported request of between $700,000 and $5,000,000 in damages:
These sums are grotesquely disproportionate with reality, with the work done, the risk incurred and the actual benefits conferred by the plaintiffs upon the ship and cargo owners who are asked to pay them. It is certainly the policy of the maritime law to grant salvage awards that will encourage seamen to incur risk in going to the aid of vessels in distress; but it was never the policy of the law to allow a situation created by calamity to be converted into a windfall of unreasonable extravagance.354
On the other hand, PHI unconvincingly argues that Plaintiffs should be awarded no more than the minimum costs that they can prove to the Court by a preponderance of the evidence, and that any such award should be further split in light of the fact that other parties failed to join suit to claim a salvage award.
Thus, weighing all of the factors above, as well as the policy considerations of salvage awards, the Court concludes that a salvage award that is more than de minimis, but far less than the windfall requested by Plaintiffs, is appropriate. Weighing the factors against one another, and considering the actual costs incurred by Plaintiffs, the Court concludes that a $50,000 salvage award, in addition to the $15,649.12 in actual costs incurred, is appropriate in this matter.
D. Apportionment of the Award
PHI alleges that pursuant to the general maritime law, any award to the Vessel’s owners should be reduced in light of the fact that the master, crew, and charterer of the Vessel did not join in the suit.
1. Apportionment Between the Owners, Master, and Crew
Under American general maritime law, PHI is correct that the law is clear that the failure of one set of potential plaintiffs to join in a suit for a salvage award inures, not to the benefit of the plaintiffs who do bring suit, but to the owner of the salved property.
Under the general maritime law, the total percentage of an award to which a vessel owner should be entitled is not fixed at a particular percentage of the total award, but must be determined by the Court in light of the role played by the Vessel, as compared to the master and the crew.
However, the Court has already determined, supra, that although the general maritime law may be helpful in interpreting the Salvage Convention, the Salvage Convention is the supreme law of the land, and “to the extent that there may be a conflict between the treaty and general maritime principles, per the Supremacy Clause, the Salvage Convention must determine the outcome.”
When analyzing foreign law, the Court “may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”
Plaintiffs acknowledge that Article 251 provides the basis for apportioning an award between co-salvors, but argue that it “does not mean that where one or more of them (the master, crew, or owner) does not make a claim, the remaining salvor(s) cannot make [a] claim for the entire amount.”
In addition, Plaintiffs argue that although the Pireaeus Court of Appeals, in Judgment No. 455/2008, found that owners were not entitled to recover the salvage award portion of master and crew, that case is inapplicable here because it did not involve an assignment of claims.
In response, PHI argues that under Article 251 of the CPML, Plaintiffs are statutorily limited to recovering 50% of the total salvage award due.
Furthermore, PHI argues, although Plaintiffs contend that they were “assigned” the master and crew’s share of the salvage award, Articles 460 of the Greek Civil Code states that “[a]n assignee shall not acquire any right in regard to the debtor and third parties before the assign-ee or the assignor have notified the assignment to the debtor.”
Although Plaintiffs urge the Court to ignore the Piraeus Court of Appeal’s decision in No. 455/2008 because Greece is a civil code country where case law is nonbinding, this Court—which sits in Louisiana and therefore is especially familiar with the application and consideration of persuasive authority in a civil code jurisdiction—nevertheless finds helpful the persuasive authority of a Greek appellate court applying Greek law. As both Plaintiffs and PHI agree that decision No. 455/2008 would bar Plaintiffs from recovering the portion allotted to the master or crew unless they received a valid assignment of such claims, the Court concludes that, unless Plaintiffs have met their burden of proving that an assignment took place, Plaintiffs are barred from recovering more than 50% of any salvage award in this matter. Moreover, this conclusion is consistent with the American general maritime law, to the extent that it also prohibits Plaintiffs from recovering the portion of any salvage award that could have been claimed by other salvors who did not bring suit.
The Court' therefore considers whether Plaintiffs have shown that an assignment of claims occurred in this matter. Although Plaintiffs allege that the Court can infer an assignment because the conduct of the master and crew evidences an intent not to pursue a claim and to instead allow Plaintiffs to pursue a full recovery,
Plaintiffs’ complaint does not cite any assignment of claims,
2. Apportionment Between the Owners and Charterer
In addition to the arguments regarding apportionment between the owners, the master, and the crew, PHI argues that any salvage award in this matter should be further divided because Aquavita, the Charterer, elected not'to participate in this suit.
The Court has already held that Greek law, rather than the general maritime law, applies to questions regarding the apportionment of a salvage award in this matter. Nevertheless, for the sake of completeness, the Court considers PHI’s arguments regarding the general maritime law herein. In The Kanawha, a 1918 Second Circuit case involving a salvage clause essentially identical to the one in the instant Time Charter, the Second Circuit held that such a clause gave the charterer the right to intervene in a salvage claim in order to recover its share of a salvage award.
Likewise, setting aside the question of whether the Time Charter’s salvage clause should be interpreted according to English rather than Greek law, the Court is similarly left unpersuaded by PHI’s assertion that Greek law would require this Court to withhold Aquavita’s allegedly unclaimed portion of the owners’ award. To the extent that Greek counsel hired by PHI opined on the issue, they stated only that “a Greek Court would give effect” to “the provision of the charterparty [sic] in respect of equal splitting of the salvage award between owners and charterers.”
Therefore, while the Court agrees that the Time Charter’s salvage clause confers a contractual right to Aquavita to claim its half of any salvage award granted to Plaintiffs, the Court has not been presented with binding authority under the general maritime law, Greek law, English law, or otherwise suggesting that this Court must give effect to the provision of the Time Charter by denying to Plaintiffs their right to recover the full amount of the Vessel owner’s share of any salvage award. Therefore, the Court declines to further split by 50% Plaintiffs’ salvage award in this matter.
E. Prejudgment Interest
Finally, Plaintiffs request that any award granted by the Court include prejudgment interest at a rate of 9%.
In the alternative, PHI contends, if the Court does grant prejudgment interest, it should consider the actual loss incurred, if any, to the Plaintiffs in being temporarily deprived of the funds awarded, and it may look to the judgment creditor’s actual cost of borrowing money or to other reasonable guideposts indicating a fair level of compensation.
Pursuant to the Salvage Convention, “[t]he right of the salvor to interest on any payment due under this Convention shall be determined according to the law of the [country] in which the tribunal seized of the case is situated.”
Here, once again, both Plaintiffs and Defendant take extreme and opposing positions, with one side advocating for an unusually high interest rate of 9%, and the other arguing that no pre-judgment interest should be awarded at all.
Accordingly, weighing the facts and circumstances of this case, and considering the lack of evidence by Plaintiffs that they were forced to borrow at a higher interest rate than usual, the Court finds an award of prejudgment interest from the date of judicial demand is appropriate in this case for past damages as described above, at the 4% rate of interest set by Louisiana law for prejudgment interest.
IV. CONCLUSION
For the reasons above, the Court finds that Plaintiffs have prevailed on their cause of action for a claim of salvage pursuant to the 1989 Salvage Convention and/or general maritime law, and are entitled to a $50,000 salvage award, in addition to the $15,649.12 in actual costs incurred. However, pursuant to the Salvage Convention, which. compels the Court to apply Greek law in determining the apportionment of any salvage award between the “owner, master and other persons in the
Accordingly,
IT IS HEREBY ORDERED that there be judgment in favor of Plaintiffs Sunglory and Aeolian Investments and against Defendant PHI on Plaintiffs’ claim for a salvage award in the amount of $40,649.12.
IT IS FURTHER ORDERED that Plaintiffs are entitled to prejudgment interest on their award in the amount of 4%.
. Rec. Doc. 59.
. Apr. 28, 1989, S. Treaty Doc. No. 102-12, 1953 U.N.T.S. 193.
. See infra Part III.A.
. Rec. Doc. 53 at 4.
. Id.
. Rec. Doc. 54 at 4.
. Id. at 4-5.
. Rec. Doc. 1.
. Rec. Doc. 17.
. Rec. Doc. 16.
. Rec. Docs. 44, 53.
. Rec. Doc. 59.
. Rec. Doc. 63.
. Rec. Doc. 64.
. Rec. Doc. 65.
. Rec. Doc. 68.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 2.
. This fact is uncontested. See id.
. This fact is uncontested. See id.
. This fact is uncontested. See id.
. This fact is uncontested. See id. at 5.
. This fact is uncontested. Id. at 8.
. This fact is uncontested. Id.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 90:24.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 7.
. Test, of Dean Cole, Trial Tr., Mar. 17, 2016, at 16:20-21.
.Id. at 34:3-5.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 7.
. . Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 52:23-25.
. Test, of Dean Cole, Trial Tr., Mar. 17, 2016, at 20:15-16.
. Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 53:14-22.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 7.
. This fact is uncontested. See id.
. This fact is uncontested. See id.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 34:13-17, 35:2-9; Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 58:25-59:1.
. Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 26:10-27:29.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 7.
. This fact is uncontested. See id.
. This fact is uncontested. See id. at 8.
. Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 56:8-10.
. Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 33:14-17.
. See Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 56:2-17.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 36:4-15.
. Id. at 36:16-18.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 37:16-23.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5; see also Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 40:20-22.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 18, 2016, at 10:13-17.
. Id. at 13:14-19.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5.
. See Test, of Dean Michael Cole, Tried Tr., Mar. 17, 2016, at 43:13-44:1.
. Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 71:2-3.
. Pis.' Ex. 10.14.
. Id.; see also Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 38:9-11.
. Pis.’ Ex. 10.14; see also Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 39:17-20.
. Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 38:22-24.
. See Test, of Joshua Brackett, Trial Tr., Mar. 17, 2016, at 59:19-20; see also Pis.’ Ex. 10.2.
. See Pis.’ Exs. 10.2, 10.21.
. Test, of Dean Michael Cole, Trial Tr., Mar. 18, 2016, at 8:24-9:10; 9:19-23; 13:14-19.
. Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 16:20-21.
. Id. at 40:6-8.
.The Court discusses this fact—and the effect it has on both the issue of liability for a salvage award as well as the amount that ought to be awarded—in more detail in its conclusions of law. See infra Parts III.B.3.a; III.C.4. The degree of danger faced by the helicopter is a central issue in this case, and Plaintiffs bear the burden to prove the facts upon which they rely in this matter by a preponderance of the evidence. Although Plaintiffs’ briefing and questions posed at trial repeatedly suggested that Plaintiffs' efforts saved the helicopter and the lives aboard it from “imminent peril that would have been faced had they ditched in the Gulf of Mexico,’’ see Rec. Doc. 42 at 17, they present little evidence to suggest that ditching was a likely outcome. Pilot Cole testified at trial that he had never considered ditching the helicopter into the ocean. See Test, of Dean Michael Cole, Trial Tr., Mar. 18, 2016, at 10:18-19. Although Cole testified that the failure of a tail rotor driveshaft mid-flight—the part that ultimately needed to be replaced—could force a pilot to need to shut down a helicopter and ditch, no evidence was presented in the form of expert testimony or otherwise that would persuade the Court to find that the helicopter was in fact moments away from needing to ditch, and that without Plaintiffs’ aid, it would not have been able to make it the six minutes back to shore. See Test, of Dean Michael Cole, Trial Tr., March 17, 2016, at 47:15-19. Although the Court can reasonably infer that the pilots believed they faced some serious risk in order to land on a vessel with which they had not communicated and from which they did not have permission to land, the Court concludes in its analysis below that the danger was possible but not probable.
. See Test, of Dean Michael Cole, Trial Tr., March 17, 2016, at 40:12-14; 40:18-19.
. See Test, of Joshua Brackett, Trial Tr., Mar. 18, 2016, at 22:8-12.
. Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 66:20-23.
. Id. at 67:7-10.
. Mat 68:4-7.
. Mat 68:8-13.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 91:16-20.
. Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 67:11-17.
. Mat 71:17-22.
. Pis.’ Ex. 2.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 71:23-72:3.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 18, 2016, at 11:14-19. Pilots Cole and Brackett testified that the Vessel’s crew was in no way involved in tying down the helicopter; however, the Court credits the testimony of Spyridon Panagiotopolous on this point. See Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 87:24-88:2.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5.
. This fact is uncontested. Id.
. See Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 94:15-24; Pis.’ Ex. 29.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 95:19-96:3.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 45:24-46:2.
. Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 72:17-20.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 5.
. This fact is uncontested. Id.
. This fact is uncontested. Id.
. This fact is uncontested. Id.
. This fact is uncontested. Id.
. This fact is uncontested. Id.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 97:1-10; Pis.' Ex. 31.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 7, 8.
. Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 82:1-3.
. This fact is uncontested. See Rec. Doc. 54, Pretrial Order, at 6, 8.
. This fact is uncontested. Id. at 8.
. Pis.’ Ex. 46.
. This fact is uncontesled. See Rec. Doc. 54, Pretrial Order, at 8.
. This fact is uncontested. Id.
. Pis. Ex. 6; Dep. Test, of Phaidon Mousta-kas, Trial Tr., Mar. 17, 2016, at 93:13-22; Def.'s' Ex. 20.
. Def.’s Ex. 20.
. Id.
. Rec. Doc. 54 at 6-7; Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 105:18-106:1.
. This fact, and the evidence weighed by the Court in coming to its conclusion, is discussed in greater detail in the Court's conclusions of law. See infra Part III.C.6.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 104:15-105:9; Pis.’ Ex. 15.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 99:13-18.
. Id. at 101:3-102:17; 148:6-8.
. Pis.' Ex. 18.
. Pis.’ Ex. 19.
. Pis.’ Ex. 12. Defendant does not challenge Plaintiffs’ Euro-to-U.S. Dollar conversion, which values the Euro at about $1.37. As of
. Rec. Doc. 44.
. Id.
. Rec. Doc. 17-1 at 17. PHI repeated this argument in its pretrial memorandum, filed prior to the Court’s issuance of its order deny-tag summary judgment. See Rec. Doc. 40 at 13-14.
. Rec. Doc. 57 at 13 (citing DOROTHY J v. City of New York, 749 F.Supp.2d 50 (E.D.N.Y. 2010); Tow Tell Marine Serv. v. M/V 28’ SPENCER, 2013 WL 6212192 (S.D. Fla. 2013)).
. See id. at 17-23.
. Rec. Doc. 56 at 15-16.
. Id. at 15.
. See Test, of Martin Davies, Trial Tr., Mar. 17, 2016, at 152:14-153:4; 161:2-11; 162:9-164:14.
. Martin Davies, Whatever Happened to the Salvage Convention 1989?, 39 J. Mar. L. & Com. 463, 464 (2008) [hereinafter, Davies, Salvage Convention ]; Int’l Mar. Org., Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-General Performs Depository or Other Functions 452 (2016), http://www.imo.org/en/AbouV Conventions/StatusOfConventions/ Documents/Status-2016.pdf; Jonathan Joseph Beren Segarra, Above Us the Waves: Defending the Expansive Jurisdictional Reach of American Admiralty Courts in Determining the Recovery Rights to Ancient or Historic Wrecks, 43 J. Mar. L. & Com. 349, 384 (2012) [hferein-after Segarra, Above Us the Waves ].
. U.S. Const, art. VI, § 2.
. See, e.g., Medellin v. Texas, 552 U.S. 491, 505-08, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (explaining that a treaty is self-executing when it "operates of itself without the aid of any legislative provision,” meaning that it acts as a directive to domestic courts and does not require enforcement by the executive branch) (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829)).
. Salvage Convention art. 2.
. One exception would be in salvage operations that take place pursuant to a pre-exist-ing agreement, known as "contract salvage.” See Davies, Salvage Convention, supra note 115, at 465. In such cases, the Salvage Convention states that any agreement between parties to a salvage contract prevails to the extent that the agreement is inconsistent with the terms of the Salvage Convention. Id.
. See Davies, Salvage Convention, supra note 115, at 464; see also Segarra, Above Us the Waves, supra note 115, at 384 ("[The Convention] is entitled to be treated as 'the supreme law of the land' in the United States, although it has been strangely ignored by the majority of American admiralty courts.”).
. See Davies, Salvage Convention, supra note 115, at 464 ("In some cases, [the] failure to acknowledge the applicability of the [Convention] has no practical impact, as the Convention would have the same effect as the preexisting general maritime law of salvage.”); DOROTHY J v. City of New York, 749 F.Supp.2d 50, 70 (E.D.N.Y. 2010) (stating that the general maritime law’s consideration of six factors to determine the value of a salvage award was "essentially adopted, although not in identical language, by the 1989 Salvage Convention”).
. Solana v. GSF Dev. Driller I, 587 F.3d 266, 270 (5th Cir. 2009) ("[W]e wish to make clear that we are not determining whether the general maritime law in this area survives the Convention. We simply assume, without deciding, that general-maritime-law principles are applicable, since in this case, the result is the same irrespective of whether the general maritime law or the Convention determines whether a salvage award is owed.”).
. Port Everglades Launch Serv., Inc. v. M/Y SITUATIONS, No. 10-60571, 2011 WL 1196017, at *7 n.4 (S.D. Fla. Mar. 29, 2011).
. See, e.g., Tow Tell Marine Serv., LLC v. MTV 28’ SPENCER, No. 13-20488, 2013 WL 6212192, at *3 (S.D. Fla. Nov. 27, 2013); In re Mielke, No. 10-13519, 2013 WL 5913681, at *6 (E.D. Mich. Nov. 1, 2013); DOROTHY J v. City of New York, 749 F.Supp.2d 50, 63, 70 (E.D.N.Y. 2010) (referring to the Salvage Convention as "rephrasfing]” and “adoptfing], although not in identical language,” concepts of the general maritime law of salvage).
. Solana, 587 F.3d at 270; see also id. at 272 (“We will assume, but we stress that we are not deciding, that the Convention is enforceable in this nation’s courts....”).
. 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16-1 (5th ed. 2015) (footnote omitted); see also Mason v. The Blaireau, 6 U.S. 240, 266, 2 Cranch 240, 2 L.Ed. 266 (1804) (Marshall, J.) (noting that, although it is true that when property on land exposed to grave peril is saved by a volunteer, no remuneration is given, “DGet precisely the same service, at precisely the same hazard, [b]e rendered at sea, and a very ample reward will be bestowed in the courts of justice”).
. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir. 1998) (citing B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 337 (2d Cir. 1983)).
. The Sabine, 101 U.S. 384, 25 L.Ed. 982 (1880).
. Salvage Convention art. 1(a).
. United States v. EX-USS CABOT/DEDALO, 297 F.3d 378, 381 (5th Cir. 2002) (citing Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190, 1199 (5th Cir. 1989)); see also Test. of Martin Davies, Trial Tr., Mar. 17, 2016, at 156:11-13; 161:19-22; 165:11-14.
. See Rec. Doc. 54 at 14-15.
. Rec. Doc. 40 at 11; Rec. Doc. 57 at 16.
. Rec. Doc. 57 at 16 (citing Martin J. Norris, The Law of Seamen § 9:13 (4th ed. 1985)).
. Id. at 17.
. Rec. Doc. 40 at 11.
. Id. (citing St. Paul Marine Transp. Corp. v. Cerro Sales Corp., 505 F.2d 1115, 1117 (9th Cir. 1974)).
. Id.
. Rec. Doc. 56 at 18.
. Id.
. Rec. Doc. 52 at 5 (citing Rec. Doc. 44 at 35).
. Salvage Convention art. 12(1). However, Article 15 of the Salvage Convention specifies that ‘‘[t]he apportionment of a [salvage] award between the owner, master and other persons in the service of each salvage vessel shall be determined by the law of the flag of that vessel.” Therefore, the Court evaluates the portion of the salvage award to which Plaintiffs are entitled below. See infra Part III.D.
. The Court addresses PHI’s arguments regarding the alleged lack of a voluntary act below. See infra Part III.B.3.b. In the alternative, the Court has already found as a matter of fact that Phaidon Moustakas, on behalf of the Vessel’s owners, had knowledge of and authorized the crew's actions during the salvage operation. See supra Part II.C.
. 3A Benedict on Admiralty § 47.
. Id.
. Rec. Doc. 40 at 12 (citing Martin J. Norris, The Law of Seamen § 9:13 (4th ed. 1985)).
. 3A Benedict on Admiralty § 57 (citing The Blackwall, 77 U.S. 1, 10 Wall. 1, 19 L.Ed. 870 (1869); The Camanche, 75 U.S. 448, 8 Wall. 448, 19 L.Ed. 397 (1869)).
. DOROTHY J v. City of New York, 749 F.Supp.2d 50, 77 (E.D.N.Y. 2010).
. The Blackwall, 77 U.S. at 13 ("Beyond doubt remuneration for salvage service is awarded to the owners of vessels on account of the danger to which the service exposes their property, and the risk which they run of loss in suffering their vessels to engage in such perilous undertakings, but it is not admitted that the amount of the allowance must be reduced on that ground. Corporations, as the owners of vessels, whether sail-vessels or steamers, may promote a salvage suit, and it makes no difference in that respect whether they were present or absent, provided it appears that the vessel employed was well manned and equipped for the service.”).
. Mat 12.
. See id. at 13; The Camanche, 75 U.S. at 448.
. The Nathaniel Hooper, 17 F.Cas. 1185, 1200 (C.C.D. Mass. 1839).
. The Missouri, 17 F.Cas. 484, 489 (D. Mass. 1854) ("The whole service was co-ordinate. The men could not act without the ship, nor the ship without the men. The right to salvage accrues from the use of the vessel.”).
. 337 F.3d 1083, 1088 (9th Cir. 2003), as amended (Sept. 12, 2003).
. See DOROTHY J v. City of New York, 749 F.Supp.2d 50, 77 (E.D.N.Y. 2010).
. Id. (citing The Camanche, 75 U.S. 448, 461, 470, 472-73; Conekin v. Lockwood, 231 F. 541, 544-45 (E.D.S.C. 1916); Cape Fear Towing & Transp. Co. v. Pearsall, 90 F. 435, 439 (4th Cir. 1898); Markham v. Simpson, 22 F. 743, 744 (S.D.N.Y. 1884)).
. DOROTHY J, 749 F.Supp.2d at 65.
. 505 F.2d 1115, 1117 (9th Cir. 1974).
. Id. (quoting The Centurion, 1 Ware 490 (D. Me. 1839)).
. See supra Part II.C.
. Id.
. Rec. Doc. 40 at 2; Rec. Doc. 57 at 14.
. 3A Benedict on Admiralty § 32.
. See id. at §§ 32-38.
. Id. at § 38.
. Id.; see also The Crawford Bros. No. 2, 215 F. 269 (W.D. Wash. 1914); Matter of Reinhardt v. Newport Flying Serv. Corp., 232 N.Y. 115, 133 N.E. 371 (1921); Lambros Seaplane Base, Inc. v. The Batory, 215 F.2d 228 (2d Cir. 1954).
. See, e.g., Broere v. Two Thousand One Hundred Thirty-Three Dollars, 72 F.Supp. 115, 116 (E.D.N.Y. 1947) (holding that money found on a body floating in navigable waters could be the subject of salvage, despite arguments to the contrary); Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1306 (9th Cir. 1980) (stating as a matter of law, before addressing the question of marine peril, that "[ujnattended logs floating in navigable waters are subject to the law of salvage.”).
. Rec. Doc. 40 at 3.
. Id.
. Rec. Doc. 56 at 19 (citing Salvage Convention, art. 1(c)).
. Robert Force, Fed. Judicial Ctr., Admiralty and Maritime Law 164 (2d ed. 2013).
. Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627, 7 S.Ct. 336, 30 L.Ed. 501 (1887). The Supreme Court in the same opinion broadened its own pronouncement, however, and also stated that "[i]f 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. It is true that the terms 'ships and vessels’ are used, in a very broad sense, to include all navigable structures intended for transportation.” Id. The Court further noted that items belonging to a ship or vessel, such as furniture and cargo, "clearly” may be the property of salvage, whereas property that has “no connection with a ship or vessel” had met with split authorities regarding whether they could be the subject of salvage. Id.
. Allseas Mar., S.A. v. M/V Mimosa, 812 F.2d 243, 248 (5th Cir. 1987).
. Lambros Seaplane Base v. The Batory, 215 F.2d 228 (2d Cir. 1954).
. Broere v. Two Thousand One Hundred Thirty-Three Dollars, 72 F.Supp. 115 (E.D.N.Y. 1947).
. Provost v. Huber, 594 F.2d 717 (8th Cir. 1979).
. 3A Benedict on Admiralty § 34.
. 9 F.Cas. 47, 48 (D. Mass. 1871).
. 16 F.Cas. 564, 566 (E.D. Va. 1879).
. Id.
. Rec. Doc. 40 at 4.
. Rec. Doc. 57 at 14.
. 215 F.2d 228, 233 (2d Cir. 1954) ("On all the foregoing considerations, we sustain the ruling below that a seaplane when on the sea is a marine object which is subject to the maritime law of salvage.”).
. Id. at 231.
. Id. at 233.
. The other case cited by PHI for this proposition—International Aircraft Recovery L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, 218 F.3d 1255, 1256-57, 1260 & n.13 (11th Cir. 2000)—similarly, upon closer examination, fails to support PHI’s argument.
. Rec. Doc. 57 at 14 (citing 294 F.Supp.2d 132, 139 (D. Me. 2003)).
. Historic Aircraft Recovery, 294 F.Supp.2d at 135.
. Id. at 139 (citing Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972)).
. Id.
. Executive Jet Aviation, 409 U.S. at 270, 93 S.Ct. 493.
. Rec. Doc. 40 at 4-5.
. Executive Jet Aviation, 409 U.S. at 272, 93 S.Ct. 493.
. Id. at 273, 93 S.Ct. 493.
. Id. at 272, 93 S.Ct. 493.
. Id. at 271, 93 S.Ct. 493.
. Pretrial Order, Rec. Doc. 54 at 7.
. Rec. Doc. 40 at 5 (citing 692 F.2d 337, 339-40 (5th Cir. 1982)).
.Barger, 692 F.2d at 338.
. Id. at 338-39 (citing Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982)).
. 609 F.2d 824, 824 (5th Cir. 1980).
. 477 U.S. 207, 218-19, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (citation omitted).
. Id.
. Rec. Doc. 40 at 6.
. Rec. Doc. 54 at 6.
. id.
. United States v. EX-USS CABOT/DEDALO, 297 F.3d 378, 381 (5th Cir. 2002) (citing Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190, 1199 (5th Cir. 1989)).
. See Evanow v. M/V Neptune, 163 F.3d 1108, 1114 (9th Cir. 1998) (citing Clifford v. M/V Islander, 751 F.2d 1, 5 (1st Cir. 1984)).
. See Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968).
. 3A Benedict on Admiralty § 63; see also Am. Home Assurance Co. v. L & L Marine Serv., Inc., 875 F.2d 1351, 1355 (8th Cir. 1989) (citing Clifford, 751 F.2d at 6).
. EX-USS CABOT/DEDALO, 297 F.3d at 381-82.
. Id. at 381 (citing Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190, 1199 (5th Cir. 1989)).
. Salvage Convention, art. 1(a).
. 3A Benedict on Admiralty § 63 (citing Harrison v. S/V Wanderer, 25 F.Supp.2d 754 (S.D. Tex. 1998)) ("To constitute a salvage service, [i]t is not necessary that there be danger immediately impending, but if the vessel is stranded so that it is subject to the potential danger of damage or destruction she may well be a subject of salvage services.” (citation omitted)).
. Id.; see also In re Complaint of The City of New York, as Owner & Operator of M/V ANDREW J. BARBERI, 534 F.Supp.2d 370, 376-77 (E.D.N.Y. 2008) (citing McConnochie v. Kerr, 9 F. 50, 53 (S.D.N.Y. 1881) (requiring only that a ship be confronted by "a situation of actual apprehension, though not of actual danger”), modified sub nom. McConnochin v.
. B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 338 (2d Cir. 1983) (quoting Phelan v. Minges, 170 F.Supp. 826, 828 (D. Mass. 1959)).
. M/V ANDREW J. BARBERI, 534 F.Supp.2d at 377 (citing B.V. Bureau Wijsmuller, 702 F.2d at 338).
. Rec. Doc. 40 at 9.
. Rec. Doc. 57 at 15 (citing Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 270, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972)).
. See supra Part II.B.
. 3A Benedict on Admiralty § 63.
. Harrison v. S/V Wanderer, 25 F.Supp.2d 754 (S.D.Tex. 1998).
. See 3A Benedict on Admiralty § 63 (stating that courts may consider the degree of peril when determining the amount of the salvage award, but not in assessing whether a salvage award is warranted); see also The Alaska and Her Cargo, 23 F. 597, 607 (S.D.N.Y. 1885) (holding that the degree of peril only "affect[s] the degree of the service, not its nature.”).
. Harrison, 25 F.Supp.2d at 758 (quoting Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968)).
. See, e.g., Miss. Valley Barge Line Co. v. Indian Towing Co., 232 F.2d 750 (5th Cir. 1956); The Kanawha, 254 F. 762 (2d Cir. 1918); Star Towing Co. v. Barge ORG-6504, 301 F.Supp. 819, 822 (E.D. La. 1969); The Varzin, 180 F. 892 (S.D.N.Y. 1910); The Saragossa, 21 F.Cas. 425 (S.D.N.Y. 1867).
. Rec. Doc. 40 at 9 (arguing that “[t]he very definition of ‘marine peril' has no meaning in the context of an aircraft in flight”).
. Salvage Convention, art. 1(a).
. See 3A Benedict on Admiralty § 64 (citing The Mercer, 297 F. 981 (2d Cir. 1924); Steamer Avalon Co. v. Hubbard S.S. Co., 255 F. 854 (9th Cir. 1919); The Roanoke, 214 F. 63 (9th Cir. 1914)).
. See Evanow v. M/V Neptune, 163 F.3d 1108, 1114 (9th Cir. 1998) (citing Clifford v. M/V Islander, 751 F.2d 1, 5 (1st Cir. 1984)).
. Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978).
. See supra Part III.B.2.
. See supra Part II.B.
. Salvage Convention, art. 1(a).
. Test, of Martin Davies, Trial Tr., Mar. 17, 2016, at 166:1-5.
. See United States v. EX-USS CABOT/DEDALO, 297 F.3d 378, 381 (5th Cir. 2002).
. Rec. Doc. 40 at 9-10.
. Id. at 10 (quoting Fine v. Rockwood, 895 F.Supp. 306, 306 (S.D. Fla. 1995)).
. Id.
. Id.
. Rec. Doc. 56 at 16.
. Id. at 22 (citing Veverica v. Drill Barge Buccaneer No. 7, 488 F.2d 880, 883 (5th Cir. 1974)).
. Id. at 22-23 (citing B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 338-39 (2d Cir. 1983)).
. 3A Benedict on Admiralty § 68.
. See B.V. Bureau Wijsmuller, 702 F.2d at 339 ("Whatever motive impels the true volunteer, be it monetary gain, humanitarian purposes or merely error, it will not detract from the status accorded him by law.”) (citing 3A Benedict on Admiralty § 68).
. 3A Benedict on Admiralty §§ 15-31.
. See infra Part II.C.
. Markakis v. S/S Volendam, 486 F.Supp. 1103, 1110 (S.D.N.Y. 1980).
. 3A Benedict on Admiralty § 232.
. See Lancaster v. Smith, 330 F.Supp. 65 (S.D. Ala. 1971); The Missouri, 17 F.Cas. 484 (D. Mass. 1854).
. See The Rio Grande, 22 F. 914 (S.D.N.Y. 1885); The Arizonan, 144 F. 81 (2d Cir. 1906).
. Jones v. Sea Tow Servs. Freeport N.Y. Inc., 30 F.3d 360, 364 (2d Cir. 1994).
. See The Connemara, 108 U.S. 352, 359, 2 S.Ct. 754, 27 L.Ed. 751 (1883); 3A Benedict on Admiralty § 237.
. See, e.g., B.V. Bureau Wijsmuller v. United States, 487 F.Supp. 156, 174 (S.D.N.Y. 1979), aff'd, 633 F.2d 202 (2d Cir. 1980) ("Rarely, if ever, are two salvage cases precisely alike and for that reason salvage awards in other cases can seldom be looked to as dependable precedent.”) (quoting 3A Benedict on Admiralty § 239); The Rescue v. The George B. Roberts, 64 F. 139 (E.D. Pa. 1894) ("There is no rule by which the value of the services in such cases can be accurately measured. At best the award must be the result of an intelligent guess.”); The Waterloo, 29 F.Cas. 399, 402-03 (S.D.N.Y. 1830) ("[M]arked fluctuations in allowances ... occur! ] not only between different tribunals, but the books supply us many instances in which enlightened and cautious judges will reward, at one time, with a liberal hand, services which, at another, are compensated sparingly. These diversities arise from the effort of the law to have each cause, in salvage claims, disposed of upon its own particular merits, and, with this view, the whole matter is referred to the discretion of the court which acts in the cause.”).
. 77 U.S. 1, 10, 10 Wall. 1, 19 L.Ed. 870 (1869).
. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 989 (5th Cir. 1998).
. Id.
. Salvage Convention, art. 13.
. Test. of Martin Davies, Trial Tr., Mar. 17, 2016, at 161:7-11.
. DOROTHY J v. City of New York, 749 F.Supp.2d 50, 70 (E.D.N.Y. 2010) (citing Davies, Salvage Convention); see also In re Mielke, No. 10-13519, 2013 WL 5913681, at *6 (E.D. Mich. Nov. 1, 2013).
. 3A Benedict on Admiralty § 237 (citing DOROTHY J, 749 F.Supp.2d at 70); Baltic Captain Shipping Co. Ltd. v. Blessey Enters., Inc., No. 06-2499, 2008 WL 4018550, at *7 (S.D. Tex. Aug. 29, 2008); In re Mielke, 2013 WL 5913681, at *6.
. See supra Part III.A.
. Allseas Mar., S.A. v. M/V Mimosa, 812 F.2d 243, 249 (5th Cir. 1987).
. See Rec. Doc. 42 at 16-18.
. See Rec. Doc. 56 at 3.
. Rather than brief damages, Plaintiffs chose to urge the Court to strike portions of PHI’s briefing that Plaintiffs contended went beyond the scope of Plaintiffs’ own limited briefing. See, e.g., Rec. Doc. 52; Rec. Doc. 68. At trial, the Court informed Plaintiffs that it would not strike PHI’s pre-trial reply memorandum, and that both parties would have an opportunity to revise their proposed findings of fact and conclusions of law in light of the fact that the Court had issued an order on summary judgment that potentially disposed of certain issues, and following a full day of trial that would constitute the bulk of the proceedings before the Court. See Trial Tr., Mar. 17, 2016, at 8:7-10:5. After the Court ordered additional briefing largely aimed at Plaintiffs’ failure to address certain issues regarding damages, see Rec. Doc. 63, Plaintiffs again objected to an opposition filed by PHI that Plaintiffs contended “re-urges proposed conclusions of law that deal specifically with general maritime law (not the Salvage Convention), many of which are completely irrelevant to the issues raised by the Court, and raises arguments which have been fully briefed, have in some cases already been rejected.” Rec. Doc. 68 at 2. The Court judges the merits of the parties' arguments—and the appropriateness of any remedy requested— based on the governing law and binding or persuasive precedent, and not on whether a particular argument is repeated to the Court in more than one briefing. Moreover, this Court has never denied Plaintiffs the opportunity to provide additional briefing to address any points they feel have been raised for the first time by Defendant or that they have not previously had an adequate opportunity to address. Accordingly, the Court declines to strike or ignore any portion of Defendant's briefing, and evaluates the arguments presented solely according to their merits.
. Rec. Doc. 54, Pretrial Order, at 2.
. Rec. Doc. 42 at 16.
. See Life Salvage Act, 46 U.S.C. §§ 729 (stating that ”[s]alvors of human life, who ■have taken part in the services rendered on
.305 F.Supp. 796, 800 (D. Or. 1969).
. See, e.g., Joseph v. J.P. Yachts, LLC, 436 F.Supp.2d 254, 273 (D. Mass. 2006) (noting that the crew was not in peril in determining the degree of danger faced by the salved vessel); Taylor v. 42 Foot Egg Harbor Hull, 1994 WL 779759, at *11 (D.N.J. June 22, 1994) (same).
. Salvage Convention, art. 13(1)(e).
. Rec. Doc. 54, Pretrial Order, at 2.
. See infra Part III.C.4.
. See supra Part II.B.
. Id.
. Id.
. Id.
. See supra Parts II.B & III.B.3.a.
. See supra Part II.B.
. See Rec. Doc. 42 at 17.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 18, 2016, at 10:18-19.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 47:15-19.
. Test of Joshua Brackett, Trial Tr., March 17, 2016, at 56:2-18.
. Rec. Doc. 54 at 6.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 30:17-21.
. See Dep. Test, of Spyridon Panagiotopo-lous, Trial Tr., Mar. 17, 2016, at 77:6-8. Pilot Cole testified that he did not believe that any smoke had been coming from the helicopter prior to landing, and said that he would have been able to see such smoke because the helicopter circled the Vessel before landing. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 41:4—13. Therefore, Cole stated, any smoke seen was likely just the ordinary smoke that is emitted by the engines any time the helicopter is shut down. Id. at 41:1-3. However, the Court has already credited the testimony of Spyridon Panagiotopolous in finding that the helicopter was indeed emitting some kind of smoke by the time it landed on the Vessel, though no evidence was presented at trial to suggest that the helicopter emitted smoke while it was still in the air. See supra Part II.B. Moreover, Panagiotopolous testified that although he saw smoke coming from the tail of the helicopter, he did not know if it was coming from the engine or some other part of the helicopter. See Dep. Test, of Spyridon Panagiotopolous, Trial Tr., Mar. 17, 2016, at 77:6-12.
. Rec. Doc. 54 at 8.
. Id. at 7.
. Part II.B.
. Id.
. Id.
. Rec. Doc. 42 at 18.
. Rec. Doc. 50 at 9.
. Rec. Doc. 65 at 8.
. Id.
. Rec. Doc. 57 at 20.
. The three surveys cost $1,690.87, $3,983.77, and $5,046.98, the sum of which is $10,721.62.
. Rec. Doc. 61 at 1.
. See Dow Chem. Co. v. M/V Roberta Tabor, 815 F.2d 1037 (5th Cir. 1987).
. See Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 93:23-94:4.
.Pis.’ Ex. 6.
. Def.'sEx. 20.
. Rec. Doc. 54 at 6.
. Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 139:18-24.
. Id. at 139:25-140:4; 141:13-18.
. See id. at 141:5-12 ("Q. So, it's, in fact, certainly possible that the very time you are charging PHI ... for offloading its helicopter and that you are also receiving—that you are also receiving at the very same time charter hire from Aquavita International; is that correct? A. If it didn’t put us off-hire, it would be the case. But I don’t think that this is off-hire. I would have to check it again.”).
.Although Moustakas testified that, pursuant to his understanding of the Time Charter, he believed that the Vessel had gone off-hire, he did not testify that he actually knew as a matter of fact that the Vessel had done so, and stated that he could not remember whether it had. See id. at 142:13-19. Although Plaintiffs produced evidence of a debit note that they sent to PHI to recover for the costs they alleged they incurred from the loss of hire and additional bunkers consumed, see Pis.’ Ex. 21, they did not produce evidence of a similar note sent by Aquavita to Sunglory.
. Rec. Doc. 56 at 11.
. Def.’s Ex. 20.
. Dep. Test, of Phaidon Moustakas, Trial Tr„ Mar. 17, 2016, at 142:7-8.
. See id. at 104:15-105:9; Pls.’ Ex. 15.
. Pls.’ Ex. 18.
. Pls.’ Ex. 19.
. Pls.’ Ex. 12.
. See Rec. Docs. 57 at 20 (suggesting the Court award damages for the time spent "carrying the aircraft to Dock No. 8 at the rate of $481.25 per hour or $2,502.50); 61 at 1 (correcting a previous mathematical error and suggesting that the amount owed is $4,427.50).
. This total is the sum of the three surveys ($1,690.87 + $3,983.77 + $5,046.98), plus the $500 agency fee, plus the $4,427.50 suggested by Defendant (for 9.2 hours x $481.25 hourly rate).
. Rec. Doc. 54 at 8.
. Rec. Doc. 42 at 17.
. See supra Part II.C.
. Id.
. See Dep. Test, of Phaidon Moustakas, Trial Tr„ Mar. 17, 2016, at 120:7-121:18 (testifying that there was no measure of how much the hatch cover could bear in the place where he alleged that the helicopter had landed, and that nevertheless weight capacity alone would be an insufficient measure in light of the fact that the speed of the landing, which was also unknown, would affect the calculation of the force on the hatch cover).
. See supra Part II.B.
. Id.
. Pls.' Ex. 46.
. Id.
. Id.
. Rec. Doc. 54 at 5-6.
. See supra Part II.C.
. Id.
. 3A Benedict on Admiralty § 237.
. Rec. Doc. 42 at 16.
. Rec. Doc. 50 at 4-7 (citing The High Cliff, 271 F. 202, 203 (2d Cir. 1921)).
. Salvage Convention, art. 13.
. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir. 1998).
. Id. at 985-87.
. Id. at 986 (quoting William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Leg. Stud. 83, 100 (1978)).
. Id. (footnote and citation omitted).
. Id.
. Id.
. Id. at 987.
. Id. at 986.
. Id. at 989.
. Id. at 986.
. Id. at 989.
. Rec. Doc. 54 at 5.
. See Test, of Dean Michael Cole, Trial Tr., Mar. 17, 2016, at 46:17-24.
. Pls.' Ex. 31.
. See id.
. See Rec. Doc. 40 at 16.
. Rec. Doc. 57 at 20 (citing The High Cliff, 271 F. 202, 203 (2d Cir. 1921)).
. See, e.g., Fine v. Rockwood, 895 F.Supp. 306, 308 (S.D. Fla. 1995) ("The salvage award, which is unique to maritime and admiralty law, is not one of quantum meruit as compensation for work performed. Rather, it is a bounty given on grounds of public policy to encourage the rescue of life and property imperiled at sea and to foster maritime commerce.”); Seaman v. Tank Barge OC601, 325 F.Supp. 1206, 1209 (S.D. Ala. 1971) (“It is unquestioned that salvage awards are not quantum meruit, but are rewards for seamen who voluntarily act to rescue life and property from the perils of the sea. It is public policy that these awards be liberal in order to encourage mariners to instinctively respond to need.”).
. The Blackwall, 77 U.S. 1, 14, 10 Wall. 1, 19 L.Ed. 870 (1869).
. See Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 987 n.14 (5th Cir. 1998) ("Because the salvor gets nothing for an unsuccessful rescue, one of his legitimate costs is that risk. To even things out, the salvor will want to receive a premium in the instances where he is successful.”) (citation omitted).
. Sobonis v. Steam Tanker Nat’l Def., 298 F.Supp. 631, 640 (S.D.N.Y. 1969).
. See infra Part III.D.
. Although the Salvage Convention includes actual costs incurred as part of the overall salvage award, in this instance, bundling the actual costs incurred with the award would lead to an inequitable result, whereby Plaintiffs would recover little more than their actual costs incurred because the Court has concluded that Plaintiffs are only entitled to 50% of the total award, in light of the fact that the master of the Vessel and its crew did not join in this suit. See infra Part III.D. As Benedict on Admiralty advises, "[ejxpenses, disbursements and damages are sometimes included in the award and sometimes stated separately from the award. The better practice is to include it in the award unless an award to the salving crew is being considered, in which case it should be stated separately from the award. Otherwise, the crew may be sharing in the owner's expenditures when the apportionment between owner and crew is made.” 3A Benedict on Admiralty § 210.
Here, no award is being made to other salvors, but, below, the Court concludes that Plaintiffs cannot be awarded the share that, under Greek law, the master and crew would otherwise be entitled to. Accordingly, the Court concludes that Plaintiffs should be awarded their actual costs separately from the salvage award to which they are otherwise entitled.
. See Rec. Doc. 50 at 1-4.
. Rec. Doc. 65 at 3, 6.
. Rec. Doc. 57 at 17 (citing The Blackwall, 77 U.S. 1, 12, 10 Wall. 1, 19 L.Ed. 870 (1869)).
. Rec. Doc. 56 at 18.
. See. Rec. Doc. 63 at 1.
. The Blackwall, 77 U.S. at 19; see also Allseas Mar., S.A. v. M/V Mimosa, 812 F.2d 243, 247 (5th Cir. 1987).
. See, e.g., DOROTHY J v. City of New York, 749 F.Supp.2d 50, 80 (E.D.N.Y. 2010) (reducing the salvage award that the defendant needed to pay by $28,796.67 in light of the fact that the salvors who would have been entitled to that amount did not join the suit); Spencer v. The Charles Avery, 22 F.Cas. 917, 919 (S.D. Ohio 1857) (reducing the total salvage award by the amount to which those salvors who waived their claims would have been entitled).
. See Conekin v. Lockwood, 231 F. 541, 544 (E.D.S.C. 1916) ("There appears to be no fixed rule [under federal law] with respect to the apportionment of the salvage reward between the owners of the salving vessel and her officers and crew. The distribution in all
. Waterman S.S. Corp. v. Dean, 171 F.2d 408, 412 (4th Cir. 1948).
. DOROTHY J, 749 F.Supp.2d at 77.
. Supra Part. III.A.
. Rec. Doc. 64 at 2.
. Salvage Convention, art. 15.
. See Rec. Docs. 50 at 10-12; 57 at 17.
. Fed. R. Civ. P. 44.1.
. See Vgenopoulos & Partners Law Firm’s Legal Opinion on Law Greek, Rec. Doc. 64—1 (Plaintiffs opinion); Ince & Co.’s Legal Opinion, Rec. Doc. 65-1 (PHI's opinion).
. Compare Vgenopoulos & Partners Law Firm’s Legal Opinion on Law Greek, Rec. Doc. 64-1 at 2 (Plaintiff's opinion) with Ince & Co.’s Legal Opinion, Rec. Doc. 65-1 at 3 (PHI’s opinion).
. Vgenopoulos & Partners Law Firm's Legal Opinion on Law Greek, Rec. Doc. 64-1 at 2. The code, as translated by PHI, does not differ in any significant manner.
. Rec. Doc. 64 at 2.
. Id.
. Id.
. Rec. Doc. 64-1 at 1.
. Rec. Doc. 64 at 3.
. Id.
. Id.
. Rec. Doc. 65 at 4.
. Id. (quoting Vgenopoulos & Partners Law Firm’s Legal Opinion on Law Greek, Rec. Doc. 64-1 at 2.)
.Id. at 5.
. Id.
. Id.
. Rec. Doc. 65-1 at 6.
.Id.
. Id. (citing Dep. Test, of Phaidon Mousta-kas, Trial Tr., Mar. 17, 2016, at 116:3-7).
. Rec. Doc. 64 at 2.
. See Rec. Doc. 65-1 at 6.
. See Rec. Doc. 1.
. See Dep. Test, of Phaidon Moustakas, Trial Tr., Mar. 17, 2016, at 116:3-7.
. Rec. Doc. 56 at 18.
. Rec. Doc. 50 at 11.
. Id. (citing Def.’s Ex. 20, at cl. 19).
. Id. (quoting 1 Norris, The Law of Seamen § 9:15 (5th ed.)).
. Id. (citing Castner, Curran & Bullitt v. United States, 5 F.2d 214, 217 (2d Cir. 1925)).
. Rec. Doc. 65-1 at 8.
. Id. at 7 (citing Blue Whale Corp. v. Grand China Shipping Dev. Co., 722 F.3d 488, 496 (2d Cir. 2013); Budisukma Permai SDN BHD v. N.M.K. Prods. & Agencies Lanka (Private) Ltd., 606 F.Supp.2d 391 (S.D.N.Y. 2009)).
. Rec. Doc. 68 at 2.
. 254 F. 762, 764 (2d Cir. 1918).
. 248 F. 74, 80 (3d Cir. 1918).
. Rec. Doc. 65 at 7.
. See The Johnson Lighterage Co. No. 24, 248 F. at 82.
. 5 F.2d 214, 217 (2d Cir. 1925).
. Id.
. Id. at 18.
. Rec. Doc. 65-1 at 8.
. Rec. Doc. 64 at 5.
. Id. (citing Everett v. Atl. Sounding Co., 2009 WL 1668507, at *13, 2009 U.S. Dist. LEXIS 50168, at *36 (E.D. La. June 12, 2009); Cashman Scrap & Salvage, L.L.C. v. Bois d’Arc Energy, Inc., No. 07-7068, 2009 WL 3150234, at *6 (E.D. La. Sept. 28, 2009), aff'd sub nom. Cashman Scrap & Salvage LLC v. Bois d’Arc Energy, Inc., 413 Fed.Appx. 758 (5th Cir. 2011)).
. Id. (citing Platoro, Ltd. v. Unidentified Remains of Vessel, 695 F.2d 893 (5th Cir. 1983)).
. Id. at 6.
. Rec. Doc. 65 at 9.
. Id. (citing Thuan Vo Tran v. Abdon Callais Offshore, LLC, 120 F.Supp.3d 554, 571 (E.D. La. 2015); Comar Marine, Corp. v. Raider Marine Logistics, L.L.C., 792 F.3d 564, 580 (5th Cir. 2015); Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209, 1217 (5th Cir. 1980)).
. Id. at 10.
. Id.
. Id. (citing Comar Marine, 792 F.3d at 580).
. Id. (quoting Comar Marine, 792 F.3d at 580-81).
. Id. at 10-11 (citing Baltic Captain Shipping Co. v. Blessey Enters., Inc., No.06-2499, 2008 WL 4018550, at *9 (S.D. Tex. Aug. 29, 2008); Osprey Ship Mgmt., Inc. v. Foster, No. 05-390, 2008 WL 4371376, at *30 (S.D. Miss. Sept. 18, 2008), aff'd, 387 Fed.Appx. 425 (5th Cir. 2010); In re M/V Nicole Trahan, 10 F.3d 1190, 1197 (5th Cir. 1994); J. Gerber & Co. v. M/V GALIANI, No. 90-4913, 1993 WL 185622, at *17 (E.D. La. May 25, 1993)).
. Salvage Convention, art. 24.
. Jauch v. Nautical Servs., 470 F.3d 207, 214-15 (5th Cir. 2006).
. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, Her Cargo, Apparel, Tackle, & Furniture, in a Cause of Salvage, Civil & Mar., 695 F.2d 893, 907 (5th Cir. 1983).
. Reeled Tubing, Inc. v. M/V Chad G., 794 F.2d 1026, 1028 (5th Cir. 1986).
. Moreover, neither party even briefed the issue until the Court prompted them to do so post-trial. See Rec. Doc. 63.
. Cf. Thuan Vo Tran v. Abdon Callais Offshore, LLC, 120 F.Supp.3d 554, 571 (E.D. La. 2015) (Zainey, J.) (declining to award prejudgment interest in a case that had two trial dates set shortly after the incident, both of which were continued on motion by the plaintiffs over the objections of the defendants).
. See Comar Marine, Corp. v. Raider Marine Logistics, L.L.C., 792 F.3d 564, 580 (5th Cir. 2015) (affirming a denial of prejudgment interest where the awarded damages were substantially less than originally claimed).
. Cf. St. James Stevedoring Partners, LLC v. Motion Navigation Ltd., No. 13-541, 2014 WL 3892178, at *19 (E.D. La. Aug. 6, 2014) (Lemmon, J.) (declining to award prejudgment interest to either party where there was a genuine dispute over a good faith claim and mutual fault). PHI argues that a "good faith dispute” is sufficient to deny an award of prejudgment interest, but in fact, the Supreme Court has explicitly rejected such a broad basis for denial of prejudgment interest. City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 198, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995) ("In sum, the existence of a legitimate difference of opinion on the issue of liability is merely a characteristic of most ordinary lawsuits. It is not an extraordinary circumstance that can justify denying prejudgment interest.”).
. La. R.S. 13:4202(B)(1).
Reference
- Full Case Name
- SUNGLORY MARITIME, LTD. v. PHI, INC.
- Status
- Published