IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 98-01637-CV-JLK
INTERNATIONAL AIRCRAFT RECOVERY,
a Nevada Limited Liability Company,
THE UNIDENTIFIED, WRECKED AND ABANDONED
AIRCRAFT, her armament, apparel, and cargo located within
one marine league of a point located
at 25-00043'34" N Latitude
and 80-2'8" W Longitude,
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Florida
(July 17, 2000)
Before EDMONDSON, BARKETT and KRAVITCH,
KRAVITCH, Circuit Judge:
The United States appeals a district
court order upholding the right of International Aircraft Recovery
("IAR") to salvage, over the objection of the federal
government, a Navy torpedo bomber that crashed in the Atlantic
Ocean during World War II. We hold that the United States, as
owner of the plane, can prohibit IAR's salvage efforts; accordingly,
I. BACKGROUND AND PROCEDURAL HISTORY
This lawsuit involves a Navy "Devastator"
TBD-1 torpedo bomber that crashed off the Florida coast during
a training flight in 1943. Built in 1938, the plane flew "neutrality
patrol" in the central Atlantic until it was assigned in
mid-1941 to the aircraft carrier Yorktown operating in the Pacific.
In 1942, the plane participated in the Battles of Midway and
the Coral Sea. During the Battle of the Coral Sea, TBD-1 torpedo
bombers sank the Japanese aircraft carrier Shoho and badly damaged
the carrier Shokaku. The Yorktown suffered substantial damage
itself during the battle, but the carrier was able to recover
many of her aircraft, including the subject of this suit.
After overhauling the TBD-1, the
Navy used the plane for training in Miami, Florida. During a
torpedo attack instruction flight on July 1, 1943, the TBD-1
experienced mechanical difficulties. The pilot and crew parachuted
safely from the plane, which crashed in deep international waters
approximately eight miles east of Miami Beach.
The Navy did not know exactly where
the TBD-1 crashed, and it "struck" the plane from the
inventory of active aircraft in September 1943. Since that time,
the Navy has taken no steps to locate or salvage the plane.
In 1990, a group searching for Spanish
galleons located the TBD- 1 and offered to sell the location
to the National Museum of Naval Aviation. The museum declined
because it did not have a budget for new acquisitions. The discoverers
then sold the plane's location to Windward Aviation, a corporation
controlled by Douglas Champlin, a private collector of fighter
planes. Champlin negotiated to salvage the plane and turn it
over to the Museum of Naval Aviation in exchange for other aircraft,
but the parties never reached an agreement.
Since purchasing the location of
the TBD-1, Champlin has conducted two brief salvage operations.
In 1994, salvors filmed the wreck site and recovered a portion
of the torpedo bomber's canopy. In 1998, Champlin made another
videotape and recovered the plane's radio mast. Champlin and
the companies he controls, including IAR, have invested over
$130,000 in the salvage of the TBD-1.
Worried that other salvors would
assert claims to the wreckage, Champlin, as President of Windward
Aviation, Inc., filed an in rem action in 1994 to secure
his exclusive salvage rights. After the federal government expressed
its objections to Champlin's salvage efforts, he voluntarily
dismissed the lawsuit and turned the canopy over to the National
Museum of Naval Aviation.
After more unsuccessful negotiations
with the Navy, Champlin filed this second in rem action
through IAR. The action sought an injunction barring any interference
with the plaintiff's exclusive salvage rights, and either a full
and liberal salvage award or title to the aircraft under the
law of finds. The government intervened and both parties filed
motions for summary judgment. The district court, holding that
IAR had the right to continue its salvage efforts and that it
would be entitled to a salvage award, granted IAR's motion and
entered final judgment. The court retained jurisdiction to determine
the salvage award later, and granted the United States permission
to intervene in those proceedings.
IAR claims it is not interested
in keeping the TBD-1 itself, but still believes that the plane
belongs on display at the National Museum of Naval Aviation.
In its final order, the court intimated that during salvage proceedings
it might award the TBD-1 to the museum and calculate appropriate
compensation for IAR. Both parties agree that the in
rem defendant aircraft is of substantial historical value,
both because of its participation in the Battles of Midway and
the Coral Sea, and because no TBD-1 planes have been preserved
for display or study. In fact, the only other known TBD-1 also
lies submerged in deep water.
In its final order, the district
court granted IAR permission to proceed with salvage operations
over the objection of the United States. The United States argues
that it is the owner of the crashed TBD-1, and that as such,
it can reject salvage efforts by third parties.
The law of salvage generally governs
efforts to save vessels in distress. Under the law of salvage,
rescuers take possession of, but not title to, the distressed
vessel and its contents. See Columbus-America Discovery
Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 459 (4th Cir.
1992); Martin J. Norris, The Law of Salvage, in 3A Benedict on
Admiralty § 150 (rev. 7th ed. 1999). A court then fashions
an appropriate award for the salvors' services. A vessel without
owner, however, is subject to the law of finds, summed up succinctly
as "finders keepers," rather than the law of salvage.
See id. at 459-60; Norris, supra, §
158. Admiralty law presumes that owners do not give up title
to ships and cargo in marine peril, even if cargo is swept overboard
or a crew has to leave its vessel on the open water. See
Columbus- America, 974 F.2d at 460 (quoting Hener v.
United States, 525 F. Supp. 350, 356-57 (S.D.N.Y. 1981));
Norris, supra, § 150. The law recognizes, however,
that owners can "abandon" all interests in their vessels.
See Fairport Int'l Exploration, Inc. v. The Shipwrecked
Vessel, 177 F.3d 491, 498 (6th Cir. 1999); Treasure Salvors,
Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel,
569 F.2d 330, 336-37 (5th Cir. 1978).1
IAR argues that the district court
made a factual finding, which we would review for clear error,
that the Navy had abandoned all interest in the wrecked TBD-1.
A careful reading of the court's opinion, however, reveals that
it contains no such finding. Although the district court discussed
in its opinion whether the United States retained ownership of
the TBD-1 or had abandoned the plane, it did not resolve the
matter. "[T]he issue of abandonment and ownership are [sic]
secondary to the question of whether this Court can protect the
Plaintiff's ongoing federal salvage rights as to the In Rem
Defendant aircraft," wrote the court.2 Consistent with this focus on salvage
rights rather than title under the law of finds, the court retained
jurisdiction and clearly envisioned conducting salvage award
proceedings in the future. Had IAR acquired title to the TBD-1
through the law of finds, there would be no basis for salvage
award proceedings because courts do not supervise the efforts
of owners to preserve their own property.
Although the court's opinion strongly
suggests that the court believed the United States had abandoned
the TBD-1, it was correct to avoid such a holding based on the
evidence before it. The Constitution gives Congress the power
to dispose of all property, real and personal, belonging to the
United States. See U.S. Const. art. IV, § 3, cl.
2 ("the Property Clause"). As courts consistently have
recognized, the federal government cannot abandon property absent
an affirmative act authorized by Congress. See Royal
Indem. Co. v. United States, 313 U.S. 289, 294, 61 S. Ct.
995, 997 (1941).
The Government, which holds its
interests . . . in trust for all the people, is not to be deprived
of those interests by the ordinary court rules designed particularly
for private disputes over individually owned pieces of property;
and officers who have no authority at all to dispose of Government
property cannot by their conduct cause the Government to lose
its valuable property rights by their acquiescence, laches, or
failure to act.
United States v. California, 332 U.S. 19, 40, 67 S. Ct. 1658, 1669
(1947). In the realm of admiralty law, courts have held that
the United States has not abandoned its interests in ships sunk
over a century ago during the Civil War. See United
States v. Steinmetz, 973 F.2d 212, 222-23 (3d Cir. 1992);
Hatteras, Inc. v. The U.S.S. Hatteras, 1984 A.M.C. 1094,
1097-1101 (S.D. Tex. 1981).
IAR argues that the Navy abandoned
all interests in the TBD-1 when it struck the bomber from its
inventory of active planes. This argument relies heavily on the
response of Dr. William Dudley, the Director of Naval History
for the U.S. Navy, to a hypothetical question during his deposition.
Asked how an aircraft carrier captain who destroyed excess planes
at sea before returning to port at the end of World War II would
indicate the "final disposition of those aircraft"
to a new captain taking over command of the carrier, Dr. Dudley
speculated that "[i]f there is an inventory, I would expect
to see some kind of an inventory," and that "[t]he
term usually used [on such an inventory] is stricken."3
Dr. Dudley qualified his answer
as conjectural, and expressed the need to research the question.4 Moreover,
Dr. Dudley's answer does not address how the Navy would officially
divest itself of all property interests in those destroyed planes.
Later during the deposition, Dr. Dudley clarified that the Navy
could abandon title to an aircraft only by asking Congress to
pass specific legislation.5
In an earlier affidavit, Dr. Dudley testified that "[t]he
term `stricken' refers to the administrative action which removes
an aircraft from active service and the related maintenance and
reporting requirements for such service, but it does not denote
or imply a final disposition of such aircraft."6 This interpretation is consistent
with a Navy circular distributed in 1944 recommending the "striking"
of all aircraft that had crashed or were heavily damaged, to
be followed by salvage operations.7 IAR did not cite, and we could
not find, any statute in effect in 1943 authorizing the Navy
to abandon planes by simply "striking" them from the
inventory of active aircraft.
The district court suggested that
the Navy may have abandoned the TBD-1 pursuant to the Surplus
Property Act of 1944, which directed that "[s]urplus property
shall be disposed of." Pub. L. No. 78-457, § 4, 58
Stat. 765, 768 (1945). Far from a rigid decree, however, the
Act mandated only that the disposal of surplus property occur
"to such extent, at such times, in such areas, by such agencies,
at such prices, upon such terms and conditions, and in such manner,
as may be prescribed in or pursuant to this Act." Id.
The Act did not mention the abandonment of property; its focus
instead was on the sale of surplus of World War II matériel,
including salvage and scrap. See id. §§
2 & 15, 58 Stat. at 766, 772-73.8
The Act established a Surplus Property
Board to regulate and facilitate the disposal of excess military
supplies, see id. at § 5, 58 Stat. at 768,
and subsequent legislation renamed the Board as the Surplus Property
Administration, see Pub. L. No. 79-181, 59 Stat. 533,
533 (1945). It was the Surplus Property Administration that first
adopted regulations permitting agencies to abandon war matériel.
See Surplus Property Administration Regulation §
8319, 10 Fed. Reg. 14966 (1945).9 Even in the most permissive scenario,
according to these regulations, agencies could only abandon property
after an affirmative finding made by a "responsible officer,
approved by a reviewing authority," and reduced to writing.
See id. § 8319.7, 10 Fed. Reg. at 14967.10
The Navy neither made such findings nor compiled the written
report required to abandon property pursuant to the Surplus Property
As an alternative argument, IAR
claims that the Property Clause does not apply in the admiralty
context and that we instead should apply the common law test
for abandonment to determine whether the federal government has
lost title to the TBD-1. In support of its position, IAR cites
the Supreme Court's statement in California v. Deep Sea Research,
Inc., 523 U.S. 491, 508, 118 S. Ct. 1464, 1473 (1998), that
"the meaning of `abandoned' under the [Abandoned Shipwreck
Act] conforms with its meaning under admiralty law." Deep
Sea Research is inapposite, however, for we have no cause
to interpret the Abandoned Shipwreck Act in this case.12
Furthermore, Deep Sea Research involved a privately-owned
steamship with privately-insured cargo. See id.
at 495, 118 S. Ct. at 1467. IAR cites no other cases for the
proposition that the common law of admiralty supercedes the Constitution,
and we do not find the argument convincing.
In ruling that the United States
could not prevent IAR's efforts to raise the in rem defendant
TBD-1, the district court concluded that the law of salvage gives
salvors the absolute right to aid any vessel that is in a state
of marine peril if a prudent owner would have accepted the assistance.
No one disputes that the TBD-1 torpedo bomber, submerged in a
corrosive environment and slowly disintegrating, is in a state
of marine peril.13
The district court, however, under- appreciated the authority
of a vessel's owner to prevent others from interfering with its
The law of salvage is intended to
encourage rescue, see Columbus-America, 974 F.2d
at 460 (quoting Hener v. United States, 525 F. Supp. at
356), and often aid must be administered quickly when ships are
in peril. Therefore, when a ship is in distress and has been
deserted by its crew, anyone can attempt salvage without the
prior assent of the ship's owner or master. See The
Laura, 81 U.S. (14 Wall.) 336, 344-45 (1871); The Barque
Island City, 66 U.S. (1 Black) 121, 128 (1861); Norris, supra,
§ 136. Put another way, when a salvor comes upon a vessel
in distress, he can assume the owner would want assistance. The
owner of the derelict vessel cannot contest the salvor's right
to attempt a rescue by claiming after the fact that the assistance
was unwanted. See, e.g., The Laura, 81 U.S. at
This rule of law, however, does
not mean that an owner cannot reject salvage assistance in a
timely manner. It is useful to quote the full passage in the
Supreme Court opinion cited by the district court for its "prudent
owner" proposition: "While salvage cannot be exacted
for assistance forced upon a ship, her request for or express
acceptance of the service is not always essential to the validity
of the claim. It is enough if, under the circumstances, any prudent
man would have accepted." Merritt & Chapman Derrick
& Wrecking Co. v. United States, 274 U.S. 611, 613, 47
S. Ct. 663, 664 (1927) (citation omitted).
In support of its order, the district
court cited one relatively recent opinion in which the Ninth
Circuit suggested that an owner could only reject salvage services
if doing so were prudent. See Tidewater Salvage, Inc.
v. Weyerhaeuser Co., 633 F.2d 1304, 1307 (9th Cir. 1980)
("An owner, acting as a prudent person, may refuse salvage
assistance by completed communication to the prospective salvor
at any time before the act of salvage."). The court authorized
a salvage award, however, because it determined that the Weyerhaeuser
lumber company had not rejected effectively the assistance of
The caveat in Tidewater Salvage about the "prudent
owner" is therefore dicta, and it appears never to have
been put to the test; we could find no decision based on the
prudence of rejecting salvage services.
A related basis for the district
court's holding was the theory that owners can only reject salvage
services if they have made alternative plans to recover their
vessels. The court cited Spreckels v. The State of California,
45 F. 647, 649 (N.D. Cal. 1890), which reads, "where the
owners of a vessel in peril have taken all measures in their
judgment necessary to insure her safety, and those measures are
adequate, and all that prudence requires, other parties have
no right to obtrude their services." The Spreckels
court later stated that "[t]he owner of a vessel disabled
or in distress does not thereby lose the control of his property.
He has the right to refuse or accept any offers of assistance
that may be made, or to adopt his own measures for the
preservation of his vessel." Id. at 650 (emphasis
added). The equivocation is understandable, for both of the statements
quoted above are dicta, unconnected to the resolution of the
case. The Spreckels court, like the Ninth Circuit in Tidewater
Salvage, granted a salvage award because the owner of the
distressed vessel had not rejected the salvors' services.15
See id. at 651.
We reject the district court's reasoning
and instead interpret the law of salvage to permit the owner
of a vessel in marine peril to decline the assistance of others
so long as only the owner's property interests are at stake.
This view is consistent with the Supreme Court's statement in
Merritt & Chapman that "salvage cannot be exacted
for assistance forced upon a ship." 274 U.S. at 613, 47
S. Ct. at 664.
Other cases strongly support this
interpretation of salvage law as well. In an oft-cited case,
a district court in Louisiana stated the rule in forceful language:
"If the master of a burning vessel prefers to allow her
to burn rather than to permit outside parties to extinguish the
flames, he may do so. He has a perfect right to decline any assistance
that may be offered him: he should not be assisted against his
will." New Harbor Protection Co. v. Steamer Charles P.
Chouteau, 5 F. 463, 464 (D. La. 1881); accord The
Indian, 159 F. 20, 25 (5th Cir. 1908) ("Under nearly
all supposable circumstances when the master is in command and
control of his own ship he may refuse and reject salvage services,
and no volunteer salvor can force on him, and be rewarded for,
services which he forbids."); cf. Legnos v. M/V
Olga Jacob, 498 F.2d 666, 672 (5th Cir. 1974) ("So long
as the services . . . are not rejected by those in authority
a bystander or interloper is eligible for salvage award in proportion
to the value of his contributory efforts.").16 We have no occasion in this case
to consider whether an owner could refuse salvage assistance
if anything other than its own property interests were at stake.17
Cf. Ramsey v. The Pohatcong, 77 F. 996, 997 (S.D.N.Y.
1896) (holding that a tug boat was "bound to respect the
master's decision [refusing salvage assistance], and had no legal
right to impose [its] services upon him," at least as long
as the refusal did not injure, among other things, the property
interests of others).
In the context of salvage claims
pertaining to historic wrecks, numerous courts have held that
title holders can prevent salvors from raising long submerged
vessels. The Fifth Circuit noted that "[a] salvage award
may be denied if the salvor forces its services on a vessel despite
rejection of them by a person with authority over the vessel,"
but held that the titleholder to an historic ship submerged off
its shores had not rejected the plaintiff's salvage services.
See Platoro Ltd. v. The Unidentified Remains of a Vessel,
695 F.2d 893, 901-02 (5th Cir. 1983). A Virginia district court
held that a plaintiff could not continue salvage operations on
an 1802 Spanish shipwreck without the permission of Spain, which
retained title to the submerged vessel. See Sea Hunt,
Inc. v. The Unidentified, Shipwrecked Vessel or Vessels,
47 F. Supp. 2d 678, 692 (E.D. Va.1999); see also Lathrop
v. The Unidentified, Wrecked & Abandoned Vessel, 817
F. Supp. 953, 964 (M.D. Fla. 1993); Jupiter Wreck, Inc. v.
The Unidentified, Wrecked and Abandoned Sailing Vessel, 691
F. Supp. 1377, 1389 (S.D. Fla. 1988) ("`[P]otential salvors'
do not have any inherent right to save distressed vessels. Their
activities must be subject to the owner's acquiescence.").
Finally, this circuit considered the case of an eighteenth century
ship sunk in the waters of Biscayne National Park and, after
holding that the plaintiff was not entitled to a salvage award
because the vessel was not in marine peril, noted that "the
owner of the property [the United States] may not even have desired
for the property to be `rescued.'" See Klein v.
The Unidentified, Wrecked & Abandoned Sailing Vessel,
758 F.2d 1511, 1515 (11th Cir. 1985).
Based on this review of the law
of salvage, we conclude that IAR has no right to continue salvage
operations over the express objections of the TBD-1's owner.
On the other hand, IAR may be eligible for a salvage award for
Champlin's past efforts. A party states a valid claim for a salvage
award if it renders voluntary assistance that contributes to
the rescue of a vessel in marine peril. See id.
at 1515 (describing elements of a salvage award claim); Norris,
supra, § 2. Champlin's past endeavors appear to satisfy
these general criteria; the TBD-1 has been in a state of marine
peril since he learned of its location, Champlin's efforts to
recover the plane have not been based on a legal duty or contractual
obligation, and Champlin has taken constructive steps toward
the ultimate preservation of the aircraft.
Whether IAR is eligible for a salvage
award for Champlin's efforts obtaining the location of the submerged
TBD-1, videotaping the wreck, and returning the plane's canopy
and radio mast to dry land depends on when the United States
rejected the salvage efforts of Champlin and his companies. The
record contains evidence of objections by the United States to
Champlin's efforts stretching back to at least 1993.18
Furthermore, some courts have entertained the possibility that
laws regulating the use of public property could provide a "constructive
rejection" of salvage of publicly owned vessels. See
Lathrop, 817 F. Supp. at 964; cf. Platoro,
695 F.2d at 902. On the other hand, IAR maintains that Champlin
negotiated with the Navy about trading the TBD-1 torpedo bomber
for vintage aircraft already in the government's possession,
and some evidence in the record might indicate that the Navy
at times acquiesced to Champlin's salvage efforts.19 We remand for the district court
to consider when the United States effectively rejected the salvage
efforts of IAR and its predecessors-in-interest, and to calculate
a salvage award, if appropriate, for their past efforts.
We REVERSE the district court order
permitting IAR to continue salvage operations on the in rem
defendant aircraft, the TBD-1, and we REMAND for further proceedings
consistent with this decision.
Decisions by the former Fifth
Circuit issued before October 1, 1981 are binding as precedent
in the Eleventh Circuit. See Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981 (en banc).
Op. at 17, in R1, Tab
Dudley Dep. at 61, in
R1, Tab 28, Ex. A.
See id. at 60.
See id. at 71.
Dudley Aff. at para. 11, in
R1, Tab 20, Ex. 1.
See J.S. McCain, Deputy
Chief of Naval Operations, Aviation Circular Letter No. 72-44,
Aircraft - Striking and Disposition Of, at para. 2 (July 24,
1944), in R1, Tab 28, Ex. B. The analogous case of Kern
Copters, Inc. v. Allied Helicopter Serv., Inc., 277 F.2d
308 (9th Cir. 1960) also is consistent with this interpretation.
In Kern, the Ninth Circuit concluded that the Army did
not abandon a helicopter that had crashed in Guatemala by "dropping
[it] from accountability records." Id. at 312-13.
The Act also permitted the
donation of surplus supplies in certain circumstances. See
Pub. L. No. 78-457 § 13(b), 58 Stat. at 768, 771.
See also Surplus Property
Administration Regulation § 8304.13, 11 Fed. Reg. 180 (1946)
(dictating that the "abandonment of surplus aeronautical
property shall be governed by the provisions of Part 8319").
Typically, the process for
abandoning property was more onerous, requiring not only written
factual findings about the property's value or the cost of maintenance
and handling, but also publication of a notice for thirty days
offering to sell or donate the property. See id.
§ 8319.3 & 8319.6, 10 Fed. Reg. at 14967.
IAR points out that these
regulations only apply to property in "the continental United
States, its territories and possessions." Surplus Property
Administration Regulations §§ 8304.2 & 8319.2.
Even assuming that these regulations would not cover an airplane
that was based in the continental United States but that crashed
in international waters, however, does not lead to the conclusion
that the United States has abandoned the in rem defendant
TBD-1. As explained in the text, the primary method for disposing
of surplus property under the 1944 Act was by sale. This holds
true for aircraft beyond the United States' territorial limits.
See Surplus War Property Administration Regulation §
4, 9 Fed. Reg. 11727 (1944) (establishing a pricing policy for
surplus aircraft both within the United States and abroad). Before
Regulation § 8304, the Surplus Property Board or Administration
apparently had to consider requests to dispose of surplus property
in an extraordinary manner (such as by abandonment) on a case-by-case
basis. See, e.g., Surplus Property Board Special Order
18, 10 Fed. Reg. 11039 (1945) (permitting the abandonment of
surplus submarine and torpedo netting by the Navy). There is
no indication in the record that the Surplus Property Board or
Administration granted permission to abandon crashed Navy planes.
The Abandoned Shipwreck Act
asserts title to abandoned shipwrecks "embedded in submerged
lands of a State" on behalf of the federal government, and
then transfers that title "to the State in or on whose submerged
lands the shipwreck is located." 43 U.S.C. § 2105 (2000).
Neither party has argued that the Act applies in this case, perhaps
because the in rem defendant is not a shipwreck and is
not "embedded in the submerged lands of a State."
Nor do the parties dispute
that the law of salvage can apply to submerged airplanes. Although
the archetypical case of salvage may involve a damaged ship in
danger of sinking, "[i]t is settled that all manner of objects
other than vessels and their cargo are subject to salvage."
2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16-2
(2d ed. 1994). Raising sunken craft and property is a recognized
salvage service, see Norris, supra, § 31,
and courts have allowed salvage claims for long- submerged wrecks,
see, e.g., Platoro Ltd. v. The Unidentified Remains
of a Vessel, 695 F.2d 893, 901-02 (5th Cir. 1983).
The salvors in Tidewater
Salvage retrieved logs in Coos Bay that had drifted away
from lumber mills. The court determined that Weyerhaeuser's blanket
policy rejecting such assistance did not put the salvors on notice
to ignore particular logs, because the salvors could not determine
a log's owner until they had already recovered the drifting lumber.
See 633 F.2d at 1307.
The court cited two other
cases, but neither supports either the proposition that owners
can reject aid only if it would be "prudent" or the
notion that owners can reject aid only if they have made arrangements
to save their vessels on their own. Manchester Brigade v.
United States, 276 F. 410, 413 (E.D. Va. 1921) simply holds
that a salvage award is available when a vessel calls for and
accepts assistance, but dismisses the responding vessel before
its mission is accomplished. In Hamburg-American Line v. United
States, 168 F.2d 47, 56 (1st Cir. 1948), the First Circuit
held that the Navy was entitled to a salvage award for saving
a German freighter scuttled and abandoned by its crew. The First
Circuit concluded that the freighter's master had never rejected
the offer of salvage assistance. The court also considered the
"dictates of equity": the ship's owner could not claim
both that it wanted the freighter to sink and that the ship should
be returned to its possession. Id. at 55-56.
The authors of admiralty treatises
agree that owners can reject salvage assistance. According to
Martin J. Norris, "Salvage services should not be thrust
upon the unwilling. . . . It is the privilege of the master to
accept proffered salvage services or not, so long as the vessel
in distress is then in a position where nothing but ordinary
property interests are involved." Norris, supra,
§ 114 (footnote omitted). Another treatise expresses the
same view: "Salvage cannot be forced upon an owner or his
agent in possession of the vessel; a salvor who acts without
the express or implied consent of the owner is a `gratuitous
intermeddler,' who is not entitled to any salvage award."
2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16-1
(2d ed. 1994). Addressing the more specific issue of historic
wrecks, the treatise author reasons that "[o]nly in a rare
case where the governmental owner gives express or implied consent
to salvage, should an award be given because the government has
full power to reject or prohibit the services." Id.
at § 16-7 (footnote omitted).
IAR suggests that as a matter
of policy, we should permit the salvage of the TBD-1 because
its condition is deteriorating and time for recovering the plane
is running short. We have no occasion to consider this policy
argument, however, because it does not implicate any rights or
legally cognizable interests--beyond that of the United States
in its own property--that could affect our interpretation of
the law of salvage.
See Letter from W.S.
Dudley, Director of Naval History, United States Navy, to Douglas
L. Champlin, President, Historic Aircraft Recovery, Inc. (Nov.
17, 1998), in R1, Tab 12, Ex. 6; Letter from Damon Miller,
Trial Attorney, Department of Justice, to David Paul Horan (Feb.
29, 1995), in R1, Tab 12, Ex. 8; Letter from J. Bernard
Murphy, Federal Preservation Officer, United States Navy, to
Milan G.W. Slahor (June 25, 1993), in R1, Tab 12, Ex.
See Facsimile from
Douglas L. Champlin to Capt. R.L. Rasmussen, Director, National
Museum of Naval Aviation (July 26, 1995), in R1, Tab 18,