The opinion of the court was delivered by: TENNEY
These actions, involving claims for salvage, have been consolidated with the exoneration/limitation proceedings instituted by Ta Chi Navigation (Panama) Corp., S.A. ("Ta Chi"). The actions arise out of the fire and explosion aboarad the vessel S.S. EURYPYLUS and its subsequent abandonment on November 10, 1975 while the ship was en route from Kobe, Japan to the Panama Canal. The salvage claims filed in these proceedings include claims by Elseguro Inc. ("Elseguro"), the alleged owner of the M/V JANICE L,
claims by El Fortuna, Inc. ("El Fortuna"), the alleged owner of the M/V LARRY L,
and a claim by Fred Devine Diving and Salvage, Inc. ("Devine"), the owner of the SALVAGE CHIEF.
Commencing on January 29, 1979, a trial was held before this Court solely on the issue of whether the petitioner Ta Chi should be entitled to exoneration from and/or limitation of liability. Thereafter, this Court denied exoneration/limitation to Ta Chi. Complaint of Ta Chi Navigation (Panama) Corp., 504 F. Supp. 209 (S.D.N.Y. 1980). This decision was appealed to the Court of Appeals for the Second Circuit, which on April 14, 1982 remanded the case to this Court for further proceedings consistent with its opinion. 677 F.2d 225.
This Court, having indicated that it would hear the various salvage claims at the same time as the hearing on the remand, conducted hearings for these purposes on October 13 and 14 and on November 16, 1982. On October 26, 1983, this Court filed its opinion on remand, again denying exoneration/limitation to Ta Chi. Complaint of Ta Chi Navigation (Panama) Corp., 574 F. Supp. 418 (S.D.N.Y. 1983). The Court has now decided the salvage claims, and for the reasons stated below the Court holds that the JANICE L should be awarded a small sum for its salvage efforts; that the LARRY L is not entitled to a salvage award; and that Devine is entitled to $60,936.52 plus interest.
Since some familiarity with the prior opinions describing the explosion and fire will be assumed, see id.; 504 F. Supp. 209, it is sufficient to state that the disaster occurred at about 1:50 P.M. on November 10, 1975, that the EURYPYLUS, 491 feet in length with a gross tonnage of 8,601 tons, was abandoned approximately one hour later; that following the explosion and fire the vessel was without electricity; and that wireless communication was limited to a small emergency hand-powered transmitter. Her location by dead reckoning was Latitude ("Lat.") 24 deg. 15" N, Longitude ("Long.") 119 deg. 35" W.The vessel was on fire in the main accommodation housing; the fire extended through that structure and into the three holds aft of it and into an abutting hold forward. The ship had been deprived of all fire fighting capability. At the time the ship was abandoned four of the crew members had been seriously burned and several others had less severe burn injuries.
The salvage claims will be considered chronologically, that is, in the order of the appearance of the claimants on the scene of the disaster.
On November 10, 1975 the JANICE L was en route from the Panama Canal to Dairen, China, carrying cargo under a time charter party to China National Foreign Trade Transportation Corporation of Peking. The JANICE L, built in 1968, was a bulk carrier of dry cargo, carrying grain for private charters. She was 182 meters (597 feet) in length, and 27,382 deadweight tons. According to the testimony, the agent for the vessel, which was under the Greek flag, was Seres Hellenic Shipping Enterprises, Ltd. of greece ("Seres Hellenic"), Trial Transcript ("T.") at 62; the subagent in the United States was Seres Shipping, Inc. ("Seres"). Id. The subagent obtained the charters for the vessel.
At 10:35 P.M. on November 10, 1975 the JANICE L sighted a ship on fire ahead of her at a disstance of thirteen miles -- approximate position Lat. 24 deg. 38" N, Long. 119 deg. 38" W. She sounded her alarm, ordered lifeboats prepared for lowering, and reported to the United States Coast Guard by radio. By 11:00 P.M. she had approached the vessel sufficiently to sight a lifeboat at a considerable distance from the burning vessel and at 11:15 P.M.,
while circling to pick up the first boat, sighted another boat. She proceeded to pick up 19 survivors from the second lifeboat, two of whom were badly burned and had to be put aboard with the help of a crane. A motorboat from the JANICE L, which had gone to rescue the survivors in the first lifeboat sighted, broke down and it was necessary for the ship at 2:00 A.M. on November 11 to retrieve it. It rescued four survivors from that boat, including the master, who advised that the abandoned vessel was the EURYPYLUS. At 2:20 A.M. a Coast Guard plane appeared on the scene, and with its assistance the JANICE L picked up 11 survivors from a third lifeboat at 4:00 A.M. Two of these survivors were seriously burned. Finally, between 6:30 and 8:10 A.M. a fourth boat with 2 survivors was recovered. A total of 36 officers and crewmen were rescued.
After the master of the EURYPYLUS was brought aboard the JANICE L at approximately 2:00 A.M. on the 11th, he sent two radio telegrams to Kee Yah Shipping Company ("Keeship"), Ta Chi's agents in Taipei, Taiwan. The first message advised them of the explosion and abandonment of the ship, the rescue by the JANICE L, and the number rescued; the second message gave the names of four missing crewmen and the names of the seriously burned and advised them that the latter were to be hospitalized via United States Coast Guard helicopter. Janice L Exhs. 5 and 6.
Contemporaneously, the JANICE L communicated with her owner's subagent, Seres, and reported the discovery of the EURYPYLUS, the rescue of her master and crew, the loss of four crewmen who were missing and presumed dead, and the injury of four crewmen who were seriously burned. Seres' house counsel, Livanos, checked and determined that the EURYPYLUS was owned by Ta Chi, and that its agent in the United States was Transnational Maritime ("Trans Mar") in New York whom he contacted for instructions. T. at 63-64. Trans Mar directed that the survivors be taken to the nearest port. Livanos replied that the JANICE L could salvage the ship and take the survivors to Honolulu, which was on her projected route to China. T. at 65.
By 8:10 A.M. on November 11 the rescue of the survivors had been completed. The JANICE L was aware that four of the crew were missing. At that time it seems clear that the JANICE L intended to take EURYPYLUS in tow and proceed to Hawaii with the disabled ship and her survivors. However, the condition of the seriously burned survivors was deteriorating, and by the time the Coast Guard plane had departed at 8:20 A.M., it was decided that the JANICE L would proceed on a true course of 40 deg. from the position of EURYPYLUS until she rendezvoused with a helicopter that would transport the injured men to a hospital in the United States. At that time the JANICE L was some 18 miles from the EURYPYLUS.
At 10:40 A.M., on course 40 deg., the JANICE L passed close to the EURYPYLUS, and according to the JANICE L's log, Janice L Exh. 4 at 3, "perceived something which appeared like a person requesting help." Although the weather conditions were "worsening," id., at 11:20 A.M. a lifeboat with 6 crewmen at the oars was lowered and endeavors were made to board the ship. These were not successful until 2:30 in the afternoon, when the crewmen, using a line and pilot ladder brought from their vessel, finally succeeded in boarding the EURYPYLUS near #3 hold. Even though it was not possible to proceed aft of the accommodation house a search was made for survivors. This was unsuccessful and the JANICE L was so informed. Following this, the crew attempted to attach a line from the EURYPYLUS to the JANICE L. The latter ship made an approach along the starboard side of the EURYPYLUS and Ikonomakos, a member of the boarding crew, attempted to pass a line to his ship but failed. Janice L Exh. 1 at 24. The six crewmen then got into the lifeboat with the light line which had been made fast to the anchor winch on the EURYPYLUS and brought it to the JANICE L. However, during this attempt to tow the ship, the line broke. In the course of these operations the JANICE L collided with the starboard side of the EURYPYLUS leaving a thirty-three foot hold in the forward part of that vessel near her bow. See Ta Chi Exh. QQQ, at 83, 208. After this collision the attempt to tow the vessel was abandoned, and the JANICE L, at 5:30 P.M. on November 11, continued on a true course of 40 deg. to its rendezvous with the helicopter.
Meanwhile, Livanos called Trans Mar back and informed them that the survivors would be taken to the nearest port. Although there is no documentary evidence of the imposition of conditions by Seres, Livanos claims that the rights to salvage were expressly reserved. T. at 65. Whether Livanos' call was on November 11 or 12 is not clear. It is clear, however, that on November 12 Seres received two messages from Trans Mar. The first requested that the JANICE L be diverted to the nearest convenient port to discharge all the survivors of the EURYPYLUS. The second advised that the towage services of the JANICE L were no longer required since Trans Mar was arranging a towage contract. Janice L Exh. 9; T. at 67-68. Livanos was also informed by Trans Mar that it had requested that the Coast Guard send a helicopter to pick up the four seriously burned survivors. T. at 68-69.
On November 11 at 5:30 P.M., after the JANICE L resumed her mission to rendezvous with the helicopter, the master of the EURYPYLUS sent another radio message to the owners in Taiwan advising them of the position of his ship when it was abandoned -- Lat. 24 deg. 15" N, Long. 119 deg. 35" W -- and its position when he last saw it on the afternoon of November 11 -- Lat. 23 deg. 50" N, Long. 119 deg. 40" W. He further advised that when they reached port he would telephone a request for cash to pay for the survivors' shoes and clothes. Janice L Exh. 7. It seems clear that he did not know then which port that might be.
The JANICE L reached the rendezvous position -- Lat. 25 deg. 09" N, Long. 118 deg. 17" W -- shortly after 3:00 A.M. on November 12, 1975, but was instructed to continue on course until 8:00 A.M. because the helicopter could not reach the rendezvous. Similar instructions were received at 8:00 A.M., and the rendezvous was finally effected at 10:45 A.M. -- Lat. 26 deg. 30" N, Long. 117 deg. 30" W. Janice L Exh. 4; Appendix to Janice L Post Trial Memorandum. By 11:00 A.M. the four seriously burned survivors had been raised to the helicopter, and the JANICE L proceeded -- "[f]ull ahead to our destination" -- no longer on a true course of 40 deg. but to the northwest on a true course of 351 deg. Id. It was not until 4:55 P.M. on November 12 that Seres instructed the JANICE L to proceed to Cedros Island, west of Baja California, Mexico, which was then almost directly abeam approximately 125 miles to the east. Id. Altering course some 95 deg. to the east, she reached the Cedros Island anchorage and, with the assistance of a captain of a United States ship, cleared and landed the survivors at 5:30. By 6:00 A.M. on the morning of November 13, the JANICE L was en route "to [her] destination Dairen, China -- true course 270 deg." Id. On the following day, November 14, the JANICE L radiogrammed Keeship to Taiwan and informed it of the helicopter transfer and the disembarkment of the other survivors. Janice L Exh. 8.
On January 13, 1976 Seres presented Trans Mar an invoice for $29,856.63 for deviation and other expenses in connection with the "[s]alvage of crew of M/V Eurypylus at sea -- November 1975." Janice L Exh. 10. Accordingly, claimant Elseguro, as owner of the JANICE L, seeks an award of $29,856.63 for its rescue and deviation expenses. In addition, or alternatively, it seeks a salvage award in the amount of $50,000 to be paid either as a part of the award given to the other salvors or as an independent property salvage award.
In order to recover a traditional salvage award, the salvor must prove three essential elements: " marine peril;  service voluntarily rendered, not required by duty or contract; and  success in whole or in part, with the service rendered having contributed to such success." B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 338 (2d Cir. 1983). "Volunteer assistance rendered to such property when in peril, and which is successful in saving the property or some portion of it, constitutes the proper foundation to support an action for salvage in rem against the ship and cargo or the proceeds thereof." The Sabine, 101 U.S. 384, 389, 25 L. Ed. 982 (1879); Markakis v. S/S Volendam, 486 F. Supp. 1103, 1106 (S.D.N.Y. 1980); In re Sun Oil Co., 342 F. Supp. 976, 981-82 (S.D.N.Y. 1972), aff'd, 474 F.2d 1048 (2d Cir. 1973). "[A] claim for salvage in an American court arises out of the jus gentium and does not depend on the local laws of particular countries." Sobonis v. Steam Tanker Nat'l Defender, 298 F. Supp. 631, 635 (S.D.N.Y. 1969) (citing cases).
Life salvage, unlike jus gentium or traditional property salvage, is a statutory creation. In 1912 Congress enacted what is now 46 U.S.C. § 729 (1976) which provides as follows: "Salvors of human life, who have taken part in the services rendered on the occasion of the accident giving rise to salvage, are entitled to a fair share of the remuneration awarded to the salvors of the vessel, her cargo, and accessories."
In order to make a claim for life salvage the claimant, in addition to saving lives, must "have taken part in the services rendered on the occasion of the accident giving rise to [traditional] salvage." If he has, "he is entitled to a fair share of the [traditional salvage]." Thus, life salvage is not an additional award, but a fair share of the traditional award. Accordingly, the courts have held that a life salvage award can be granted only to those who have forgone the opportunity to engage in the more profitable work of traditional property salvage. See Markakis v. S/S Volendam, supra, 486 F. Supp. at 1110 n.28 (citing cases); Saint Paul Marine Transp. Corp. v. Cerro Sales Corp., 313 F. Supp. 377, 379 (D. Hawaii 1970) (Hereinafter St. Paul I). Otherwise, life salvage "would be nothing more than a participation by each [salvor] in his own property award." In re Yamashita-Shinnihon Kisen, 305 F. Supp. 796, 800 (D. Or. 1969). Furthermore, a life salvage services must be contemporaneous with the traditional salvage services in which the life salvor is entitled to share. The Eastland, 262 F. 535 (N.D. Ill. 1919); St. Paul I, 313 F. Supp. at 379. Finally, life salvors are not entitled to share in a contract salvage award. In re Yamashita-Shinnihon Kisen, supra, 305 F. Supp. at 800.
Insofar as life salvage is concerned, the instant case is quite similar to St. Paul I. In that case the ST. PAUL received a radio message on June 23, 1968 from the United States Coast Guard that the NORTH AMERICA was afire in its vicinity and needed assistance. The ST. PAUL diverted course and came upon the NORTH AMERICA an hour later, took aboard crewmen from two lifeboats, and notified the Coast Guard and the owners of the NORTH AMERICA of her abandonment by its officers and crew and of her location and condition. Shortly thereafter the ST. PAUL's crew boarded the NORTH AMERICA, fought the fires, closed compartment doors and rigged a tow line running to the ST. PAUL. When an attempt to tow was made, the line parted. Before the attempted tow, the ST. PAUL had cruised around looking for missing seamen. On the following day, June 24, after again cruising around looking for missing seamen, the ST. PAUL put five of its crew aboard the NORTH AMERICA to fight fires and, in the afternoon, another tow line was attached. The second attempt to tow ended shortly when the tow line parted.Thereafter the ST. PAUL gave up the attempt to tow and proceeded to Honolulu, landing the NORTH AMERICA crew there on June 26, 1968. Meanwhile, the tug MALIE had been dispatched in an attempt to salvage the vessel. The MALIE located the NORTH AMERICA on July 2, 1968 and on July 5 towed her into Honolulu, at which time the MALIE brought an action for salvage. The ST. PAUL sought life salvage in a separate action.
The district court denied any award of life salvage to the ST. PAUL on two grounds. The court stated:
Here, the St. Paul was in no manner inhibited in its property salvage efforts by the fact that it picked up the crew of the North America out of the two lifeboats. The St. Paul's crew members twice boarded the North America, carried on salvage work, and twice the St. Paul tried to tow her but each time the tow lines parted. Then the St. Paul gave up all salvage efforts -- not to "save lives" but because it just could not tow the North America.
Moreover, while it is claimed that the St. Paul did perform work which aided in the ultimate salvage of the ship and cargo (a matter not herein decided), St. Paul's life salvage efforts, vis-a-vis the services of Dillingham in the actual and successful finding, boarding and towing of the North America into Honolulu, were not "rendered on the occasion of the accident." It was on June 24, 1969, that the St. Paul gave up its own salvage attempts and proceeded to Honolulu. It was not until July 2, eight days later, that, after intensive and prolonged search, the Malie found the North America abandoned and adrift, and took her in tow. St. Paul's life salvage efforts were here not performed either actually or even substantially at the time the Malie was searching for and picking up the North America. Plaintiff therefore can have no derivative right under 46 U.S.C. § 729 to any of the property salvage awards made to Dillingham or the Master and crew of the Malie.
313 F. Supp. at 379 (footnote omitted).
It is important to note that the district court in St. Paul I was concerned with whether life salvage could be awarded under those circumstances, and not with whether property salvage could be awarded. That court reached that issue at a later point.
In the instant case, there is no serious question that the JANICE L, after taking aboard the survivors of the EURYPYLUS and purportedly searching for further survivors aboard that ship, made at least two unsuccessful efforts to take the EURYPYLUS in tow.During the second of these she collided with and seriously damaged that ship. The question therefore arises whether the JANICE L "gave up all salvage efforts -- not to "save lives' but because it just could not tow the [EURYPYLUS]." Id. at 379. The Court concludes that it gave up because it could not tow her.
Furthermore, the JANICE L's life salvage efforts from November 10 to 13, like those of the ST. PAUL were not rendered on the occasion of the property salvage but some 6 or 10 days prior thereto. The LARRY L arrived on the scene on November 19, and the contract salvor, Devine, arrived on November 23. Accordingly, for the foregoing reasons, the Court holds that the JANICE L has no right under 46 U.S.C. § 729 to a life salage award.
Apparently aware of the weakness of her life salvage claim, the JANICE L relies on Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers, Inc., 553 F.2d 830 (2d Cir.), cert. denied, 434 U.S. 859, 54 L. Ed. 2d 131, 98 S. Ct. 183 (1977) (hereinafter Peninsular & Oriental), to support a quasi-contract claim for reimbursement for its rescue and deviation expenses of $29,856.63. In essence the JANICE L seeks to change the traditional rule against award for pure life salvage. The facts of the Peninsular & Oriental case, set forth in the appellate opinion, may be summarized briefly as follows.
The OVERSEAS PROGRESS, an American flag tanker owned by defendant Overseas Oil Carriers ("Overseas Oil"), was en route from Haifa, Israel to Baltimore when on July 4, 1973 a member of her crew was stricken with a heart attack. The OVERSEAS PROGRESS did not have a doctor aboard, but, guided by the ship's medical books and radio advice from the Public Health Service, her officers attempted to care for the stricken man. When, on the following day, he had a further attack, the master of the OVERSEAS PROGRESS called by radio for responses from all vessels in the vicinity with a doctor aboard. The nearest vessel to respond was the CANBERRA, a British flag passenger vessel owned by Peninsular & Oriental Steam Navigation Company, an English company. She was en route from Dakar, Senegal to New York. She had a maximum speed of 25 knots and was equipped with her own hospital and medical personnel. The OVERSEAS PROGRESS sent a second message to the CANBERRA requesting a rendezvous and the transfer of the stricken crew member. At that time the OVERSEAS PROGRESS was 740 miles from the nearest hospital in Newfoundland. The OVERSEAS PROGRESS, a vessel of approximately 13,000 gross tons with a maximum speed of about 13.8 knots, could not have reached there in less than 57 hours. The CANBERRA, by increasing her normal speed to 25 knots, was able to effect the rendezvous in 6-1/2 hours. After the transfer was made, the CANBERRA resumed her course to New York, still at 25 knots, and arrived there only 2-1/2 hours later than her scheduled arrival, but she had to travel an additional 232 miles to save the life of the crewman.
Although Overseas Oil, as owners, paid CANBERRA's surgeon for services rendered, it refused to pay Peninsular & Oriental for the expenses incurred due to the extra distance travelled at increased speed, including the additional fuel consumed.Suit was instituted in this court, and the district court granted summary judgment to Overseas Oil, except that it granted an award for nursing services. The decision was based on the traditional rule that there could be no award for pure life salvage where there was no simultaneous recovery of property.
The court of appeals, although critical of this traditional doctrine, did not direct an award of life salvage, nor could it have done so, since Peninsular & Oriental was not asking for life salvage as a share of a nonexistent property salvage award but rather as reimbursement for its expenses. However, the Court on a theory of quasi-contract awarded the owners of the CANBERRA $8,500 as reimbursement for their expenses.
A key factor in the court's decision in Peninsular & Oriental was the observation that the owner of the OVERSEAS PROGRESS had a "maintenance and cure" obligation to the stricken seamen. Once the seaman became ill the ship was obligated to provide him with swift medical care and to take him speedily to a shore facility where the necessary care could be given.The court held that the CANBERRA had performed this duty on behalf of the OVERSEAS PROGRESS. The court noted that the services of the CANBERRA were immediately necessary to prevent injury or suffering. A significant factor in its quasi-contractual analysis was the fact that the OVERSEAS PROGRESS, having in fact requested the aid, had knowledge of and gave consent to the actions taken by the CANBERRA. The following statement of the court is instructive:
Although the law ordinarily frowns on the claims of a "mere volunteer", there is a class of cases where it is imperative that a duty be performed swiftly and efficiently for the protection of the public or an innocent third party, in which a "good Samaritan" who voluntarily intervenes to perform the duty may receive restitution for his services. This rule has become crystallized in the doctrine that performance of another's duty to a third person, if rendered by one qualified to provide such services with intent to charge for them, is a ground for recovery in quasi-contract. This principle is limited to cases where the services are immediately necessary to prevent injury or suffering.
553 F.2d at 834 (citations omitted).
While the rescue of the crew of the EURYPYLUS by the JANICE L was of a somewhat different nature, it appears to fit comfortably within the quasi-contractual requirements established by Peninsular & Oriental. Most significantly, and, in contract to many rescues at sea where the survivors may not require emergency medical attention, the JANICE L rescue involved several severely burned seamen who required prompt treatment. The services of the JANICE L were necessary to prevent suffering and perhaps to save the lives of these men.Certainly, the captain of the EURYPYLUS was in no position to provide the proper "maintenance and cure" at that time since the EURYPYLUS was totally disabled. Nor was Ta Chi able to provide the assistance since the JANICE L could not be reached by a doctor via helicopter.
Ultimately, the Court must conclude that the JANICE L performed the "maintenance and cure" duty which Ta Chi owed to all of the injured crewmen. This includes the four taken off by helicopter at the rendezvous point and the remaining injured crew members dropped off at Cedros Island.
The other major factor which binrgs this claim within the rule set forth in Peninsular & Oriental and which may set it apart from many other rescues at sea is that here Ta Chi made a specific request to Elseguro that the JANICE L perform certain services.Ta Chi requested a rendezvous with a helicopter to obtain emergency medical treatment for the four seriously injured crew members and a discharge of the remaining crew at Cedros Island.
It is true that the services performed by the JANICE L in this instance were more in the nature of transportation to medical aid than medical aid itself. In contrast to the CANBERRA, the JANICE L had no medical doctor on board and was only able to provide first aid treatment.This should not, however, detract from the position that the services of the JANICE L constituted a form of "maintenance and cure." In Murphy v. American Barge Line Co., 169 F.2d 61 (3d Cir.), cert. denied, 335 U.S. 859, 93 L. Ed. 406, 69 S. Ct. 133 (1948), it was determined that the shipowner not only had the obligation to furnish medical care, but also the duty to provide the means to transport an ailing crew member to a doctor or hospital. The Peninsular & Oriental court also clearly recognized this aspect of "maintenance and cure." "On vessels that do not carry a surgical staff, the ship's master has a duty, in the sound exercise of his judgment and depending on the circumstances, to have the seaman taken speedily to a hospital or the nearest port where surgical care may be obtained." 553 F.2d at 834 (citations omitted). Accordingly, the Court finds that on a theory of quasi-contract the owner of the JANICE L is entitled to reimbursement for its proper expenses, as set out in the margin, and not for the somewhat inflated expenses claimed.
However, this does not close the matter insofar as the JANICE L is concerned. Even though she is not entitled to life salvage pursuant to 46 U.S.C. § 729, the issue remains whether she is entitled to property salvage. There is no question that a ship, denied life salvage. This was the situation in Saint Paul Marine Transp. Corp. v. Cerro Sales Corp., 332 F. Supp. 233 (D. Hawaii 1971), aff'd, 505 F.2d 1115 (9th Cir. 1974) (hereinafter St. Paul II), a companion case to St. Paul I. See also the William Rockefeller, 55 F.2d 904, 905 (2d Cir. 1932). It will be recalled that in St. Paul I, supra, the ST. PAUL was denied life salvage because it had discontinued all salvage efforts not to save lives, but because it just could not tow the NORTH AMERICA. However, in St. Paul I the court did not consider whether any property salvage award should be made to the ST. PAUL. In the second action the ST. PAUL souoght a property salvage award. In that action it was found that the vessel and crew of the ST. PAUL, while failing to effect a tow of the NORTH AMERICA did put some eight crewmen aboard the burning vessel. The crewmen closed doors and portholes in the after accommodations and extinguished fires which might have consumed the after hatches. These actions contributed to the preservation of a vital portion of the vessel's integrity, and, thereby, substantially contributed to the ultimate salvage of the NORTH AMERICA by the tug MALIE. The court found that "the mere closing of [the] portholes . . . in all probability saved the NORTH AMERICA." 332 F. Supp. at 238. The court also found that the radio information and "communication services provided by the ST. PAUL not only contributed immeasurably to the eventual salvage of NORTH AMERICA but provided the factual basis upon which the success of the salvage venture was predicated and made possible." Id. at 235.
In the instant case the crew members of the JANICE L boarded EURYPYLUS purportedly to search for survivors but primarily to rig lines to tow the ship. T. at 65. No effort was made to fight fires or improve the vessel's integrity. Indeed, the vessel's integrity was diminished by the collision with the JANICE L. However, the JANICE L did perform a service which was beneficial to the shipowner and cargo interests. She notified the Coast Guard of the disaster and transmitted information to Ta Chi about the disaster and the location of the vessel.
"One who is the means or instrumentality of securing or bringing aid to the distressed ship can be a salvor. Securing aid or assistance to the salved vessel, thus enabling her to be placed in a position to be saved is a salvage service." 3A M. Norris, Benedict on Admiralty § 26, at 2-19 to -20 (6th ed. 1983) (footnote omitted). "[S]tanding by" at the scene of a disaster and making available wireless and radio communication facilities have been characterized as property salvage services "of a low order." In re Yamashita-Shinnihon Kisen, supra, 305 F. Supp. at 800.
In the instant case the Coast Guard was alerted to the distressed vessel by the JANICE L before the vessel was identified. However, the Coast Guard made no effort to salve the vessel since its prime concern was the preservation of life. The more important messages for the purpose of this claim were those sent by the master of the EURYPYLUS via the communication facilities of the JANICE L to the owners advising them of the disaster to their vessel, its location at the time of the disaster, and when it was last observed. Janice L Exhs. 5, 7, and 8.
The Court finds that the JANICE L is entitled to a property salvage award for forwarding reports by the master of the EURYPYLUS to her owner since this furthered the ultimate property salvage. This award, however, excludes the services rendered in the unsuccessful attempt to tow.
In determining the amount to award in a successful salvage operation, courts usually consider the value of the ship and cargo salved, as well as the value of the salvor ship. But this is not necessarily required where, as here, the attempted salvage effort was unsuccessful and indeed inflicted damage on the distressed ship.
Hence, the elements which courts usually consider in determining the amount of the salvage award are not of particular importance in the instant case.
Where the property salvage consisted of little more than securing aid the recent awards in this circuit have been relatively small. Nicholas E. Vernicos Shipping Co. v. United States, 349 F.2d 465, ...