plaintiffs clearly hold fourth priority tort liens. See Texport Oil Co. v. M/V AMOLYNTOS, 11 F.3d 361, 367 (2d Cir. 1993) (affirming district court's ruling that "this action under COGSA is a maritime action in the nature of a mixed tort, contract and bailment cause of action"); All Pacific Trading, Inc. v. M/V HANJIN YOSU, 7 F.3d 1427, 1433 (9th Cir. 1993) ("when a cargo owner has a direct contractual relationship with the operator of a vessel, the cargo owner has a lien on the vessel for any injury caused by the operator's lack of due diligence"); Potash Co. of Canada v. M/V RALEIGH, 361 F. Supp. 120, 123 (D.C.C.Z. 1973) ("the Court sustains the position argued by the [cargo owner] that its lien resulting from the failure of the . . . voyage charter . . . is a lien sounding in tort arising out of the ship's violation of her duties as a common carrier"); Rayon v. Celanese Peruana, 471 F. Supp. at 1371 (cargo claim can always be brought in tort or contract). Because the cargo owners' tort lien exceeds the $ 111,563.72 that remains in the Registry, Christianssands is entitled to satisfaction of its claim out of the Registry only if its lien takes priority over plaintiffs' as a third priority salvage lien. See Stipulation and Consent Order dated August 29, 1993 at 3. For the reasons that follow, Christianssands's lien is not a salvage lien, however, and therefore judgment must be entered for the plaintiffs.
Salvage, simply stated, is the "service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger either present or to be reasonably apprehended." B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 338 (2d Cir. 1983) (quoting McConnochie v. Kerr, 9 F. 50, 53 (S.D.N.Y. 1881), modified sub nom. McConnochin v. Kerr, 15 F. 545 (C.C.S.D.N.Y. 1883); see also The Neshaminy, 228 F. 285, 288 (3d Cir. 1915). To determine that a salvage service, as distinct from a towing service, was performed, a court must find (1) that the salvaged vessel was in marine peril, (2) that the would-be salvor rendered the service voluntarily, and (3) that the salvage was successful in whole or in part, with the service rendered having contributed to such success. See B.V. Bureau Wijsmuller, supra, 702 F.2d at 338; The "Sabine", 101 U.S. 384 (1880).
Since World Marine successfully towed the M/V PACIFIC DAWN to safety in New York, the third requirement is clearly met. Nevertheless, even assuming, arguendo, that the vessel was in "marine peril" at the time that the tug came to its aid,
Christianssands's claim, upon which it bases its subrogation to the rights of World Marine, is not a salvage lien because World Marine was not a volunteer. See B.V. Bureau Wijsmuller, supra, 702 F.2d at 338 ("voluntary service, the sine qua non of marine salvage, is rendered in the absence of a legal duty or obligation"); The Clarita and The Clara, 90 U.S. 1, 16-17, 23 L. Ed. 146, 23 L. Ed. 150 (1875). Therefore, "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," B.V. Bureau Wijsmuller, supra, 702 F.2d at 339, and thus professional salvors -- who may perform their services with hopes of monetary gain -- may claim salvage awards. The Camanche, 75 U.S. 448, 19 L. Ed. 397 (1869).
Where, as here, a salvor's hopes of monetary gain are transformed from aspirations to a guarantee by a contract of towage, such a contract precludes a claim for salvage. See Munson Inland Water Lines, Inc. v. Seidl, 71 F.2d 791, 794 (7th Cir. 1934), cert. denied, 293 U.S. 606 (1934) (holding that towage contract providing for compensation irrespective of whether the salvage was successful "destroyed [tower's] asserted status as salvors and their liens as salvage liens"). Such towage services rendered at a fixed price, to wit, $ 7,500 per day, independent of success, give rise only to a sixth priority statutory lien for necessaries, not a lien for marine salvage. Id. Accordingly, Christianssands's claim can stand on no better footing than would that of World Marine. It follows that Christianssands cannot receive any Registry Funds until after satisfaction of the cargo owner's superior claims, which exceed the Registry Funds.
For the reasons stated above, judgment shall be entered for the plaintiffs. The Clerk of Court is directed to enter such judgment and to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
January 27, 1995
John E. Sprizzo
United States District Judge