For Men of That Calling: A Newly Articulated Test in Salvage Cases¹

Jason R. Harris and Ellen G. Shults

For those evaluating or litigating salvage claims, gauging the value of the services rendered may involve the dry-heeled-desk-jockey occasionally putting his or herself in the “Sneads Ferry Sneakers” (eastern North Carolina vernacular for shin-high muck-wader shoes) of those tending to the dilemma at sea. Lending strength to the test of at least one other court, the Eleventh Circuit Court of Appeals has very recently determined that when evaluating the risks faced by professional salvors, it will consider those risks ordinary “for men of that calling” as opposed to the risks someone other than a professional salvor might undertake. While salvors may proclaim little value to the decision since apparently a “professional uplift” was not necessarily rejected by the decision, the new holding seems generally favorable to the defense bar and insurance industry. Arnaud Girard v. M/Y Quality Time, No. 14-10931 (11th Cir. Jan. 6, 2015).

In a rare United States Court of Appeals decision involving the application of salvage law, the Eleventh Circuit Court of Appeals affirmed the district court for the Southern District of Florida’s award of $16,896.05 (12% of the vessel’s post-casualty value) to Arnaud Girard, a professional salvor, in connection with the salvage of the M/Y Quality Time following its grounding off the coast of Key West in 2012. Mr. Girard, appearing pro se, made three arguments on appeal: (1) the district court’s conclusions of law were inconsistent with its factual findings; (2) the district court applied the incorrect law; and (3) in light of public policy, he should have been awarded 33% of the vessel’s post-casualty value.

Rejecting Mr. Girard’s argument that the district court’s conclusions of law were inconsistent with its factual findings, the Eleventh Circuit, applying the Blackwall factors, found that a low-level salvage award was appropriate because Mr. Girard’s efforts were limited to routine salvage services typical of a professional salvor such as pumping or dewatering the vessel, patching the hull, and towing the vessel to the boatyard. The court noted that the seas were “moderate” and the weather was relatively calm at the time of the operation. The Court of Appeals further noted that in making the award, the district court had considered the risks Girard took during the nighttime dive to repair the vessel’s hull and Girard’s promptness and effectiveness in completing the salvage. In light of the district court’s application of the Blackwall factors to the factual findings, the Court of Appeals found no inconsistencies between the court’s findings and its conclusions.

Turning to Mr. Girard’s contention that the district court erroneously applied the fourth Blackwall factor when it found that he was not entitled to a liberal award because he did not face risks out of the ordinary for a professional salvor, the Court of Appeals noted that the appropriate standard to apply when evaluating whether to liberally reward the salvor is whether the salvor took risks out of the ordinary “for men of that calling,” the typical professional salvor — as opposed to the risks that an ordinary person would take, adopting a standard earlier espoused by the Second Circuit Court of Appeals in B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983). Therefore, the Court of Appeals held that the district court did not err in its application of the fourth Blackwall factor and had appropriately made a low-level salvage award.

The Court of Appeals similarly dismissed Mr. Girard’s argument that the lower court should have awarded him 33% of the Quality Time’s post-casualty value as a means to incentivize salvors. In support of his contentions, Mr. Girard cited cases in which he claimed the salvage award was not less than 33% of the ship’s value. The Court of Appeals disputed Girard’s characterization of the cited cases, but found “in any event” that “fixed percentages of value and comparisons to percentage from previous awards should play no role in the salvage award” and concluded by affirming the district court’s salvage award.

Mr. Harris is a partner with Welch and Harris, LLP. in Jacksonville, North Carolina, conveniently located between the Ports of Wilmington and Morehead City. He concentrates on civil litigation, including maritime and admiralty law; he is frequently called upon to assist with cases and investigations involving the intersection of maritime and criminal law. Mr. Harris is a Proctor member of the Maritime Law Association and serves as the Chairman of the Salvage Committee. Mr. Harris is a member of the adjunct faculty at Campbell University’s Law School and UNCW. Mr. Harris earned his B.A. from Auburn University in 1997, his J.D. from Wake Forest University in 2000, his LL.M. in Ocean and Coastal Law from The University of Miami in 2001 and he was Honorably Discharged from the Army National Guard in 2000.

Ellen earned her J.D., cum laude, in 2005 from the University of Alabama School of Law, where she served as managing editor of the Alabama Law Review. While in law school, Ellen received several honors including the Book Award in Civil Procedure. Ellen received a B.A., summa cum laude, in Political Science from Auburn University in 2002. Prior to becoming an associate, Ellen worked in private practice in California and Alabama. Ellen is a member of the North Carolina State Bar, the Alabama State Bar and the District of Columbia Bar.

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¹ Originally published in the International Association of Marine Investigators, Inc., Newsletter, January–March 2015.