IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA; ET AL.,
UNITED STATES OF AMERICA,
EX-USS CABOT/DEDALO, etc.,
MARINE SALVAGE & SERVICES, INC.,
Appeal from the United States District Court
for the Southern District of Texas
July 1, 2002
Before JONES, WIENER, and PARKER, Circuit
WIENER, Circuit Judge:
Intervenor Plaintiff-Appellant Marine Salvage
& Services, Inc. ("Marine Salvage"), which asserted a lien for marine
necessaries against the Ex-U.S.S. Cabot/Dedalo ("the Cabot"),
appeals from the district court's ruling that Plaintiff-Appellee the United
States of America ("the government") has a salvage lien against the same
ship, priming Marine Salvage's lien. We hold that the government cannot
assert a salvage claim in the circumstances of this case, and therefore
reverse and remand.
I. FACTS AND PROCEEDINGS
The Cabot was the last remaining light
aircraft carrier (CVL) that saw service in the Pacific Theater during World
War II. After the war, the Navy used the Cabot for training, decommissioned
her, mothballed her, and first lent and then sold her to Spain, which renamed
her the Dedalo. In 1989, the U.S.S. Cabot Dedalo Museum Foundation,
Inc. (the "Foundation"), a non-profit corporation, acquired the Cabot
and moved her to New Orleans, with a view to establishing an on-board museum
and docking her permanently in Kenner, Louisiana. The Foundation removed
the Cabot's screws, winterized her engines, and stripped the ship
of most of her operational equipment.
By 1993, the Foundation had moored the unmanned
Cabot on the east bank of the Mississippi in New Orleans, at the
Press Street Wharf (the "Wharf"), which is owned by the Board of Commissioners
of the Port of New Orleans (the "Dock Board"), a state agency. After the
mayor of Kenner withdrew the offer of a mooring site for the Cabot
museum, the Dock Board requested that the Foundation either move the ship
from the Wharf or begin to pay dockage fees, which the Dock Board had previously
waived. In March 1994, the Dock Board sued to evict the Cabot from
the Wharf. As of April 1996, however, the Cabot was still moored
at the Wharf.
In that month, Captain G.D. Marsh of the United
States Coast Guard, the Captain of the Port of New Orleans, wrote to inform
the Foundation "that the dilapidated condition of the wharf and the unsatisfactory
condition of the vessel's moorings pose an immediate threat to the safety
of the port," given the approach of hurricane season. Exercising his authority
under 33 U.S.C. Chapter 25 to ensure the safety of the Port, Captain Marsh
ordered the Foundation to move the Cabot to a safer berth by the
first of June.
The Foundation did nothing, so Captain Marsh
wrote again, this time stating that he "plan[ned] to pursue a civil penalty"
against the Foundation and that the Coast Guard would thereafter "conduct
all response activities" under 33 U.S.C. § 1321(c)(1) ---- a provision
of the Federal Water Pollution Control Act ("FWPCA") ---- including stabilization,
threat abatement, and oil and hazardous material removal. Captain Marsh
added that the Coast Guard would invoice the Foundation for expenses incurred
in these activities, whereupon the Foundation filed for protection in bankruptcy.
In July, Captain Marsh informed the Foundation that the Coast Guard had
removed chemical drums and some oil from the Cabot and had upgraded
her mooring at the Wharf by installing hurricane moorings. He ordered the
Foundation to continue monitoring the Cabot's moor.
Almost a year later, as the bulk carrier M/V
Tomis Future was steaming downriver, her pilot brought her too close
to the east bank, and she allided(1) with
the Cabot, substantially damaging both the Cabot and the
Wharf. The owner of the Tomis Future called out emergency response
tugs to berth that vessel and to secure the
Cabot against the Wharf.
After Commander Daniel Whiting, the Coast Guard's Chief of Port Operations,
inspected the damage, the Coast Guard again became concerned for the safety
of the Cabot's moor, particularly because the Mississippi was running
high. Three days after the allision, Captain Marsh issued another order
under 33 U.S.C. Chapter 25, requiring the Foundation to hire a tug to stand
by the Cabot and, within three days, to move the Cabot "to
a safe hurricane mooring site" or a "robust hurricane mooring location."
The next day, the owner of the Tomis Future took his tugs off hire
and his vessel departed the port (without posting adequate security).
The Foundation did not call out a tug of its
own, so Captain Marsh immediately notified the Foundation that the Coast
Guard "assumed responsibility for providing the assist tug to properly
maintain the safety of the vessel." He also wrote that the Coast Guard
did so "in accordance with 33 USC 1321(c)" and that it would seek reimbursement
under 33 U.S.C. § 1321(f), both referenced subsections being provisions
of the FWPCA. Under this authority, the Coast Guard hired tugs to stand
by the Cabot for seven weeks, at the end of which Captain Marsh
again wrote to the Foundation, advising that the Coast Guard had completed
preparations "to move the vessel to a safe hurricane mooring" under the
authority of 33 U.S.C. § 1321(c). The Coast Guard then shifted the
Cabot from the Wharf to Violet, Louisiana, some forty miles downstream.
This move (including the seven weeks' tug service, at about $5,000 per
day, and post-allision repairs to the moor) cost the Coast Guard and the
National Pollution Funds Center(2) $500,868.94.
In October of that year (1997), the Cabot
made a dead-ship move from Violet to Port Isabel, Texas. At approximately
the same time, the Foundation sold the Cabot. Under contract with
the new owner, Marine Salvage provided wharfage and security services to
the ship in Port Isabel. Later, when the Cabot began to list in
her berth, Marine Salvage acted to prevent her from capsizing, at a cost
The following year, Marine Salvage and others
sued the Cabotin rem in the Southern District of Texas. Several
months later, the government sued the Cabot, also in rem.
The Cabot was arrested both times, but was released when those suits
The government again sued the Cabot
in 1999, and the district court for the Southern District of Texas arrested
the Cabot for a third time. Other claimants intervened, including
(1) the Dock Board, which sought in rem enforcement of an in
personam judgment against the Foundation rendered by the district court
for the Eastern District of Louisiana; and (2) Marine Salvage, which sought
to recover on both a salvage lien and a lien for necessaries. The district
court in Texas authorized the U.S. Marshal to auction the
At the marshal's sale, a shipwrecker bid and subsequently paid $185,000
for the Cabot, about half of which was paid to its substitute custodian
and to the U.S. Marshals Service, leaving $91,250.68 (plus interest) to
be distributed to other claimants. The government, Marine Salvage, and
the Dock Board asserted lien claims to the funds that remained in the registry
of the district court. Following a trial to determine the priority and
amounts of the liens, the district court held that Marine Salvage had a
valid salvage lien of $20,908.00 with priority over a valid salvage lien
of the government, which in turn was entitled to the balance of $70,342.68
that would remain in the court's registry after paying Marine Salvage.
As the government's salvage lien exhausted the deposited funds, the district
court did not evaluate the merits or priorities of the $56,872.39 lien
for necessaries asserted by Marine Salvage or the $399,685.48 lien for
necessaries asserted by the Dock Board. This appeal followed.
Marine Salvage contends that (1) the Coast
Guard cannot make a salvage claim for the actions it took under the authority
of 33 U.S.C. § 1321; (2) the district court clearly erred in finding
"marine peril" to the Cabot; and (3) the district court abused its
discretion in calculating a salvage award based on the Coast Guard's costs,
which Marine Salvage contends were unreasonable. As we agree with Marine
Salvage's first contention, we do not reach the issues of marine peril
or award calculation.
A. Standard of Review in Salvage Cases
In appeals of admiralty cases, as in most
other cases, we review a district court's factual findings for clear error
and its conclusions of law de novo.(3)
"A [factual] finding is clearly erroneous when, although there is evidence
to support it, the reviewing court based on all of the evidence is left
with the definite and firm conviction that a mistake has been committed."(4)
As the Supreme Court has stated, however, "[w]here there are two permissible
views of the evidence, the factfinder's choice between them cannot be clearly
erroneous."(5) Assessing the credibility
of witnesses is a task exclusively for the trier of fact.(6)
The doctrine of salvage is settled. "A successful
salvage claim requires three proofs: (1) marine peril; (2) voluntary service
rendered when not required as an existing duty or from a special contract;
and (3) success in whole or in part, or contribution to the success of
the operation."(7) The instant case turns
on the voluntariness prong, which is ordinarily an issue of fact.(8)
Here, however, the question of voluntariness is also presented, in two
ways, as an issue of law. First, the district court's analysis of the voluntariness
question was grounded in a precedent of ours, and to that extent was a
legal analysis. We review de novo a district court's interpretation
of our cases. Second, the trial court's voluntariness determination also
turned on identifying and interpreting the provisions of law under which
the Coast Guard acted; and statutory interpretation too is a question of
law that we review de novo.(9)
B. The District Court's Legal Analysis
The district court analyzed the Coast Guard's
claim as follows (notes in original):
The services rendered to salve a vessel cannot
be performed pursuant to a preexisting duty or contract. In other words,
an individual's efforts to protect a vessel from peril must be voluntary.
See The SABINE, 101 U.S. 384 (1879).... Actions taken pursuant
to a duty owed to a third party are voluntary. Hence, when the Coast Guard
salves a vessel, its actions are generally voluntary because its statutory
mandate exists to protect the public, not the vessel or its owner. See
In re American Oil Co., 417 F.2d 164, 169 (5th Cir. 1969).(10)
In addition, the Fifth Circuit indicated in dicta in In re American
Oil that the Coast Guard has discretion whether to act and therefore
its services are rendered voluntarily.(11)
Id. at 168. A later district court case adopted this statement and
held that the Coast Guard can be reimbursed for its salvage efforts. See
DFDS Seacruises (Bahamas) Ltd. v. United States, 676 F.Supp. 1193,
1200 (S.D.Fla.1987) (characterizing the rule that Coast Guard rescue services
are voluntary as "well-settled").(12)
Like Marine Salvage, the United States has
a valid salvage lien. It acted to avert a real risk to the Cabot after
the M/V Tomis Future collided with the vessel in New Orleans. If the Coast
Guard had not repaired the Press Street Wharf and positioned tugboats alongside
the Cabot, there was a significant possibility that the Cabot would have
broken free on the Mississippi [R]iver and been destroyed or severely damaged.
The Coast Guard acted voluntarily because the owner of the vessel, at that
time the U.S.S. Cabot Dedalo Museum Foundation, stood by and refused to
act in an emergency situation, and [the Coast Guard] had no pre-existing
legal duty to act.(13)
C. In re American Oil Co.(14)
The district court appears to have concluded,
and the government contends vigorously on appeal, that in American Oil,
we departed from the traditional rule that because the Coast Guard acts
out of a duty, its actions are not voluntary, and it therefore cannot bring
a salvage claim.(15) A brief analysis of
American Oil shows that this view of our precedent is incorrect.
In American Oil, a tanker moored dockside
in the Houston Ship Channel and laden with six million gallons of gasoline
and heating oil caught fire and was in danger of exploding.(16)
Firefighters from Houston, eighteen other cities and towns, and three Coast
Guard stations battled the blaze from midnight into the next morning, when
they ran out of the kind of foam required to fight petrochemical fires.(17)
The Coast Guard was forced to buy more foam from remotely located commercial
sources and have it flown to Houston on Air Force and Navy planes.(18)
In thus assisting the Coast Guard, the Air Force and Navy incurred expenses
totaling $89,676.60.(19) The government
presented, and the district court approved, a salvage claim in that amount,
which did not include any charges for the direct costs incurred by the
Coast Guard.(20) We upheld the award, noting
both that Congress had expressly authorized the Air Force and the Navy
to make salvage claims(21) and that local
firefighting units, rather than the Coast Guard, bore the primary legal
responsibility for fighting dockside fires.(22)
Therefore, we reasoned, the government could recover the expenses for salvage
services rendered by the Air Force and the Navy to the Coast Guard in aid
of its providing assistance to the vessel.(23)
Our American Oil opinion went further
than was required to decide that case, however. We concluded from the relevant
statutory language,(24) which we regarded
as permissive and not mandatory,(25) that
the Coast Guard had discretion whether to aid persons and save property
in peril. Possibly inadvertently, we then opened the door to the Coast
Guard's future assertion of salvage claims:
[T]he National Government has apparently concluded
as a matter of policy to make a salvage claim for services rendered by
the U.S. Coast Guard to the extent, and only to the extent, that the Coast
Guard used the services and supplies of the Air Force and Navy. This does
not mean that the Coast Guard has no right to salvage for its own services
and supplies. The pre-existing duty bar to salvage by the U.S. Coast Guard
has not been sustained by the Courts.(26)
This passage, clearly dictum, has had
a mixed reception among courts and commentators. Some courts ---- perhaps
including the district court in this case ---- have correctly recognized
American Oil discussion of the Coast Guard's entitlement
to assert a salvage claim was dictum.(27)
Other courts ---- rather inexplicably, given the reasoning and facts of
American Oil ---- have viewed it as a holding.(28)
Furthermore, the "old rule" against salvage recovery for the Coast Guard
still finds considerable support among authors of admiralty treatises,
who urge that the Coast Guard ought not usually be permitted to assert
a salvage claim.(29) For present purposes
it suffices that American Oil's discussion of the Coast Guard's
ability to bring salvage claims was dictum and therefore provides
no jurisprudential support for the district court's holding on this issue.
Whether, as a general proposition, the Coast Guard may bring a salvage
claim remains an open question in this Circuit; we need not address it
here and therefore reserve it for a later day.
D. Statutory Developments: FWPCA
In opposition to this dictum, argues
Marine Salvage, stands positive law. As a general rule, court-made admiralty
law applies only in the absence of relevant federal statutory law.(30)
Thus, even if here we were to assume without granting that in other circumstances
the Coast Guard could assert a salvage claim, this case requires only that
we address how that putative common-law right fares in the face of statutory
provisions enacted since
American Oil was decided.(31)
For it was pursuant to these post-American Oil enactments ---- portions
of the FWPCA ---- that the Coast Guard asserted it was acting to secure
the Cabot. Examination of those FWPCA provisions reveals that they
require the Coast Guard to abate threats of oil pollution.
For the district court to conclude that the Coast Guard had no pre-existing
duty to act in this case was therefore legal error.
The FWPCA declares a national policy that
"there should be no discharges of oil or hazardous substances into or upon
the navigable waters of the United States."(32)
To effect this policy, says the statute, the President "shall prepare and
publish a National Contingency Plan ["NCP"] for removal of oil."(33)
The FWPCA mandates that the NCP "shall provide for efficient, coordinated,
and effective action to minimize damage from oil and hazardous substance
discharges" and "shall include"
(C) Establishment or designation of Coast
Guard strike teams, consisting of----
(i) personnel who shall be trained, prepared
and available...to carry out the National Contingency Plan;
(ii) adequate...pollution control equipment
and material; and
(iii) a detailed oil and hazardous substance
pollution and [sic] prevention plan.(34)
"[A]ctions to minimize damage from oil and
hazardous substance discharges shall...be in accordance with" the NCP.(35)
The Secretary of Transportation "shall establish in each Coast Guard district
a Coast Guard District Response Group," which "shall consist of the Coast
Guard personnel and equipment...of each port within the district."(36)
The FWPCA further mandates that the NCP shall designate "the Federal official
who shall be the Federal On-Scene Coordinator" for each port or harbor
area."(37) The mandatory "shall" is ubiquitous
in the FWPCA.
These and other provisions(38)
of the FWPCA make abundantly clear that the Coast Guard's duty to respond
to a threatened oil spill is mandatory, not optional. Many of these mandatory
provisions were enacted in 1990, in the wake of the Exxon Valdez
oil spill in Alaska, and embody a congressional policy that the Coast Guard
must respond swiftly and effectively to threatened oil spills. The
Coast Guard therefore cannot forthrightly analogize its pollution-prevention
plan and mission to its search-and-rescue plan and mission, which we determined
in American Oil to be permissive or optional ---- not required or
mandatory ---- for the purposes of a salvage analysis.(39)
The government also advances a privity argument
American Oil: that the "pre-existing duty which can
disqualify a salvor from recovering must run between the salvor and the
owner of the vessel and cargo salved."(40)
This is only a partial statement of the law, however: As one leading treatise
puts it, the pre-existing duty to act can also arise
from the nature of the salvor's employment,
for example, salvage by firemen, pilots, or public officers and employees.
The general rule in such cases is that such
persons are not entitled to a salvage award if the services were performed
in the line of their assigned duties. . . . Firemen, pilots, and other
public employees and service personnel may qualify for an award only where
their service is outside the line of their official duties.(41)
Yet even if we were to read American Oil
overbroadly and decide that the Coast Guard is an exception to the rule
that salvage is within the regular duties of public officers, the Coast
Guard's § 1321 general duties to protect the public health and safety
obviously included preventing an oil spill from the Cabot. We are
not persuaded by the government's argument that even if the Coast Guard
was acting under § 1321, as it declared repeatedly at the time, it
still acted voluntarily and therefore may bring a salvage claim.
E. Nature of Coast Guard's Actions vis-á-vis
Having established the legal principle that
the Coast Guard had a mandatory duty to abate potential threats of oil
pollution, we now address the final question in our analysis of voluntariness:
Did the Coast Guard actually act here as a salvor or as a pollution abater?
The evidence demonstrates, beyond question, that Captain Marsh and Commander
Whiting acted under the FWPCA and not as salvors. Captain Marsh consistently
cited 33 U.S.C. § 1321 in his letters to the Foundation. Commander
Whiting testified that he was the representative of the On-Scene Coordinator
established by § 1321, and that the Coordinator ---- Captain Marsh
---- "was operating under the National Contingency Plan" in mitigating
the threat posed by the Cabot. Commander Whiting's deposition also
included the following exchange:
Q What permission did the Coast Guard get
or need from the Museum Foundation to take the actions it took?
A No permission from the Foundation. The on-scene
coordinator in this particular place, acting to abate substantial [sic]
threat to public safety, took action required of him under the National
Contingency Plan. He doesn't have a choice to act. He has a duty to act.
Q Why were the tugs required to stand by the
Ex-USS CABOT after the allision?
A . . .
It was the continued determination by the
Captain of the Port, by the on-scene coordinator Captain Marsh, that assistance
continued to be required on the CABOT.
The United States tries to trivialize this
testimony as that of a non-lawyer, and also argues that a servicemember's
perceptions of his duty do not bind the Coast Guard. The government's arguments
are not convincing. This testimony, and the letters sent to the Foundation,
accurately invoked or described mandatory provisions of the FWPCA which
applied perfectly to the context. Captain Marsh and Commander Whiting expressed
that they were acting pursuant to mandatory statutory provisions in §
1321; the Coast Guard told the Foundation it was doing so; and the Coast
Guard indisputably exercised its authority under that statute when it took
control of the Cabot.
G. Forced Assistance
There is yet another reason why salvage is
not available to the Coast Guard in the circumstances of this case. If
the Coast Guard had asserted from the beginning that it was salving the
the Foundation, if it so desired, could have forestalled the attempt. Under
the doctrine of salvage, an owner in possession of a vessel may refuse
proffered help and thereby deny a salvage claim to the would-be salvor.(42)
When the Coast Guard took the actions that it now attempts to describe
as salvage operations, it announced specifically that it was taking them
pursuant to statutes that give it broad authority to mitigate oil pollution
threats, even unto seizing or destroying vessels. By forcing its assistance
on the Foundation under authority of the statutes, thereby avoiding the
possibility of denial of salvage by the Foundation, the Coast Guard destroyed
any semblance of the hypothetical market for rescue services that the salvage
doctrine is designed to replicate.(43)
Having done so, in the process avoiding the possibility of denial of salvage
by the ship owner, the Coast Guard cannot now be heard to claim the role
The Coast Guard cannot seek salvage recovery
for actions unquestionably taken pursuant to mandatory provisions of the
FWPCA. The district court erred as a matter of law in deriving a contrary
rule from American Oil and relevant statutes. As a factual matter,
the evidence ---- particularly the Coast Guard's own contemporaneous declarations
that it was proceeding under § 1321 ---- leads inescapably to the
conclusion that in this instance, the Coast Guard acted on its mandatory
duty under the FWPCA, not as a voluntary rescuer. The district court therefore
clearly erred in concluding that the Coast Guard acted voluntarily and
may now make a salvage claim. We are constrained, therefore, to reverse
the court and remand this case to it for further consistent proceedings.
REVERSED and REMANDED.
1. A vessel allides if,
while under way, it runs into a stationary vessel. Black's Law Dictionary
69 (5th ed. 1979) (defining "allision").
2. The National Pollution
Funds Center administers the Oil Spill Liability Trust Fund, which pays
for certain costs of removing discharges of oil or mitigating substantial
threats of discharge. See 33 U.S.C. § 1321(s) (2000).
3. Bargecarib Inc. v.
Offshore Supply Ships Inc., 168 F.3d 227, 229-30 (5th Cir. 1999); Nunley
v. M/V Dauntless Colocotronis, 863 F.2d 1190, 1196 (5th Cir. 1989);
Fed. R. Civ. P. 52(a).
4. Walker v. Braus,
995 F.2d 77, 80 (5th Cir. 1993).
5. Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 574 (1985); accord, Harrison
v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 976 (5th Cir.
1978) ("It is not our duty or right on appeal to sift through the evidence
and determine whether we would have drawn the same inferences as did the
trier of fact and would have resolved credibility determinations in a like
6. Anderson, 470
U.S. at 575; Black Gold Marine, Inc. v. Jackson Marine Co., 759
F.2d 466, 470 (5th Cir. 1985).
7. Nunley, 863 F.2d
at 1200. See The "Sabine", 101 U.S. 384, 384 (1880).
8. Nunley, 863 F.2d
at 1201 (treating the question whether a ship's master acted in a contractual
or personal capacity, for purpose of voluntariness determination, as an
issue of fact).
9. Ott v. Johnson,
192 F.3d 510, 513 (5th Cir. 1999).
10. [Note 28 in original:]
See also Kelly v. United States, 531 F.2d 1144, 1147 (2d
Cir.1976) (stating that Coast Guard's salvage efforts are voluntary in
context of a negligence claim alleged against the Coast Guard); United
States v. DeVane, 306 F.2d 182, 186 (5th Cir.1962) (stating that Coast
Guard's salvage endeavors are voluntary in the context of determining the
Coast Guard's duty to those who relied on the rescue); In re Sincere
Nav. Corp., 327 F.Supp. 1024, 1025 (E.D.La.1971) (citing In re American
Oil with approval, but denying the government's salvage claim on other
grounds); Markakis v. S/S Volendam, 486 F. Supp. 1103, 1109 (S.D.N.Y.1980)
(stating that the Coast Guard has no pre-existing duty in dicta). Cf.
3A Benedict on Admiralty § 78 (7th ed.1997).
11. [Note 29 in original:]
The Fifth Circuit in In re American Oil Co. cites 14 U.S.C. §
88 for the proposition that the Coast Guard's actions were permissive.
Section 88(b) states that "the Coast Guard may render aid to persons and
protect and save property at any time and at any place at which Coast Guard
facilities and personnel are available and can be effectively utilized."
14 U.S.C. § 88(b).
12. [Note 30 in original:]
Cf. Port Tack Sailboats, Inc. v. United States, 593 F.Supp.
597, 599 n. 2 (S.D.Fla.1984) (stating in dicta that traditionally the Coast
Guard cannot recover for rescue services and stating that the Fifth Circuit's
statement in In re American Oil was dictum).
13. United States v.
Ex-USS Cabot/Dedalo, 179 F. Supp. 2d 697, 709-11 (S.D. Tex. 2000).
14. In re American
Oil Co. 417 F.2d 164 (1969).
15. For the traditional
rule, see United States v. Central Wharf Towboat Co., 3 F.2d
250, 251-52 (1st Cir. 1924) ("The cutter, being a government boat, was
not entitled to pay for its services and the coast guard and power boat
made no claim, and, so far as appears, stood in no better position to make
the claim than the cutter.");
The Kanawha, 254 F. 762, 764 (2d Cir.
1918) ("The Lady Laurier and Androscoggin being government property, no
claim was made for their services."); In re Sincere Navigation Corp.,
327 F. Supp. 1024, 1026 (E.D. La. 1971) (stating that "traditionally, recovery
has not been permitted the United States for the governmental services
it provides," and emphasizing that the Navy and Air Force have a statutory
right of salvage recovery); Puget Sound Tug & Barge Co. v. Waterman
S.S. Corp., 98 F. Supp. 123, 128 (N.D. Cal. 1951) ("The Coast Guard
cutters...have not claimed, nor are they entitled under the law to claim[,]
any pay for their share in the operation."). See also Gustavus H.
Robinson, Handbook of Admiralty Law in the United States § 102 at
16. American Oil,
417 F.2d at 165.
17. Id. at 165-66.
18. Id. at 166.
19. Id. at 166,
20. American Oil,
417 F.2d at 167.
21. Id. at 169.
We cited to 10 U.S.C. §§ 7365 (Navy) & 9804 (Air Force).
Section 7365 has since been reenacted as 10 U.S.C. § 7363 (2000).
22. American Oil,
417 F.2d at 168.
23. Id. at 170.
24. See 14 U.S.C.
§ 88(a) & (b), which state that the Coast Guard "may," rather
than shall, perform rescue duties. But see 14 U.S.C. § 2 ("Primary
Duties") (stating that the Coast Guard "shall develop, establish,
maintain, and operate...rescue facilities for the promotion of safety on...the
high seas and waters subject to the jurisdiction of the United States")
25. American Oil,
417 F.2d at 168-70.
26. Id. at 167-68.
27. Ex-USS Cabot/Dedalo,
179 F. Supp. 2d at 710; Port Tack Sailboats, Inc. v. United States,
593 F. Supp. 597, 599 n.2 (S.D. Fla. 1984):
Traditionally, [the] United States Coast Guard
provides rescue services pursuant to its statutory mission and does not
act therefore as a volunteer. 14 U.S.C. § 88, BENEDICT ON ADMIRALTY
Vol. 3A, § 59 (7th Ed. 1980); Gilmore and Black, THE LAW OF ADMIRALTY,
540 (2d Ed.);
Beach Salvage Corp. of Florida v. The Captain Tom,
201 F. Supp. 479 (S.D.Fla.1961); THE LYMAN M. LAW, 122 F. 816 (D.Me.1903).
However, [the] Fifth Circuit Court of Appeals specifically pointed out
that the Coast Guard is not barred from salvage claims for its own services
and supplies in United States v. American Oil Co., 417 F.2d 164
(5th Cir.1969), cert. denied, 397 U.S. 1036, 90 S.Ct. 1353, 25 L.Ed.2d
647 (1970) however [sic], the language of the Fifth Circuit was completely
28. DFDS Seacruises
(Bahamas) Ltd. v. United States, 676 F. Supp. 1193, 1200-01 (S.D. Fla.
1987) (relying on American Oil as binding precedent); Markakis
v. S/S Volendam, 486 F. Supp. 1103, 1109 n.21 (S.D.N.Y. 1980) (citing
American Oil as supporting the proposition that "The 'pre-existing
duty' exception has been considerably narrowed in modern cases; for example,
Coast Guard personnel performing rescue tasks in the line of duty are deemed
voluntary actors whose services may generate salvage awards").
29. See 3A Martin
J. Norris, Benedict on Admiralty: The Law of Salvage § 78 (1991) (interpreting
the result of American Oil as confined to fires taking place primarily
within the jurisdiction of local firefighting services) ("The determination
and disposition of [American Oil] by the Fifth Circuit does not
mean...that the Coast Guard would have entitlement to a salvage award for
rescue activities to distressed marine property and of persons on the high
seas."); 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16-3
at 362 (3d ed. 2001) ("Even the Coast Guard may qualify for salvage in
the case of extraordinary efforts...[citing to American Oil only];
but there are no grounds for an award for performance of its usual duties
of going to the aid of distressed vessels."); Charles M. Davis, Maritime
Law Deskbook 480 (2001) ("Normally, the services of the Coast Guard, municipal
firemen, and others who are under a duty to provide emergency services
to a vessel, are not considered to be 'voluntary.'"). Compare Grant
Gilmore & Charles L. Black, Jr., The Law of Admiralty § 8-5 at
551 (2d ed. 1975):
The [Fifth Circuit]...went out of its way
to construct a rationale which permits the Coast Guard to claim salvage
whenever it chooses. The result appears eminently sound when the property
saved belongs to a large corporation whose own corporate activities created
the peril in the first instance. There is no reason to believe that the
Coast Guard, under the Fifth Circuit dispensation, will make salvage claims
for the rescue of small fishing boats or privately owned yachts.
with Herbert R. Baer, Admiralty Law
of the Supreme Court § 20-8 at 598 (3d ed. 1979) ("By statute the
Coast Guard is charged with the duty of aiding vessels in distress and
in providing rescue services. Consequently, Coast Guard personnel engaging
in rescue or salvaging services are only performing their duty and are
not entitled to salvage.").
30. East River S.S.
Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986).
31. One such statute,
the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 486 (1990),
codified principally at 33 U.S.C. §§ 2701-2761 (2000), contains
a detailed and comprehensive scheme governing liability for oil-pollution
prevention and cleanup. See 33 U.S.C. §§ 2701-2720. The
parties dispute whether this scheme preempts the common law of admiralty,
including salvage, and provides the government its exclusive remedy in
this case. We do not reach this issue, as we determine for other reasons
that the government cannot bring a salvage claim in this case.
32. 33 U.S.C. § 1321(b)(1)
33. 33 U.S.C. § 1321(d)(1)
34. 33 U.S.C. § 1321(d)(2)
& (d)(2)(C) (2000).
35. 33 U.S.C. § 1321(d)(4)
36. 33 U.S.C. § 1321(j)(3)(A)
& (B) (2000). The Response Groups "shall provide technical assistance,
equipment, and other resources when required by a Federal On-Scene Coordinator."
33 U.S.C. § 1321(j)(3)(C) (2000).
37. 33 U.S.C. § 1321(d)(2)(K)
38. See 33 U.S.C.
§ 1321(c)(1)(A) (2000) ("The President shall, in accordance with the
National Contingency Plan..., ensure effective and immediate...mitigation
or prevention of a substantial threat of a discharge."); 33 U.S.C. §
1321(c)(2)(A) (2000) ("If...a substantial threat of a discharge...is of
such a size or character as to be a substantial threat to the public health
or welfare of the United States...the President shall direct all Federal...actions
to...mitigate or prevent the threat of the discharge."); 33 U.S.C. §
1321(c)(3)(A) (2000) ("Each Federal agency...shall act in accordance with
the National Contingency Plan or as directed by the President.").
39. American Oil,
417 F.2d at 169-70. We also observed that the search-and-rescue plan did
not encompass salvage operations. Id. at 170.
40. Id. at 169.
41. Schoenbaum, supra
note 29, § 16-3, at 362 (citations omitted).
42. Merritt & Chapman
Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613 (1927)
("[S]alvage cannot be exacted for assistance forced upon a ship.") (citing
The Bolivar v. The Chalmette, 1 Woods C.C. 397); Norris, supra
note 29, §§ 114-16; Gilmore & Black, supra note 29,
§ 8-2, at 536.
43. See Margate
Shipping Co. v. M/V Ja Orgeron, 143 F.3d 976, 986 (5th Cir. 1998) ("[T]he
law of salvage aims to create a post-hoc solution that will induce the
parties to save the ship without first agreeing on terms."). Margate
also quotes William M. Landes & Richard A. Posner, Salvors, Finders,
Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism,
7 J. Legal Stud. 83, 100 (1978) for the proposition that "[T]he purpose
of salvage awards is to encourage rescues in settings of high transaction
costs by simulating the conditions and outcomes of a competitive market."
Margate, 143 F.3d at 986.