11th Circuit Refines Klein’s Salvage Rule

11th Circuit Refines Klein’s Salvage Rule

By: John Yadamec

 Girard v. M/V “Blacksheep”, No. 15-15803, 2016 WL 6518524; 2016 U.S. App. LEXIS 19760 (11th Cir. Nov. 3, 2016).Arnaud Girard, a marine salvor, filed an in rem action against the M/V BLACKSHEEP (“BLACKSHEEP”) following his attempt to rescue the 125-foot yacht. The United States District Court for the Southern District of Florida found in favor of the vessel because “Girard failed to show that his services were necessary to the rescue ... .” The Eleventh Circuit reversed, holding that proof that the salvor’s assistance was required to save the vessel is not one of the three elements necessary to support a salvage claim.The BLACKSHEEP was a few hundred feet from a marina in Key West, Florida when the engineer heard a noise and saw that the port propeller shaft had broken, causing the vessel to take on about two feet of water in her bilge. Girard heard the vessel’s request for Coast Guard assistance, and he arrived about four minutes later with a high-capacity pump. In addition to deploying his pump to dewater the bilge, as requested by the master of the vessel, Girard and his partner dove under the ship to reposition the propeller shaft and apply a patch to the hull to slow the flow of water into the vessel. The BLACKSHEEP was towed to dock.According to The “Sabine,” there are three elements the salvor is required to prove in support of a salvage award: (1) a marine peril, (2) a voluntary act by the salvor, and (3) success in saving or in helping to save at least part of the property at risk. 101 U.S. 384 (1879). The district court relied on Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511 (11th Cir. 1985), which expressed the first prong of The” Sabine” test as “[a] maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance.” Thus because Girard offered no proof that the vessel would have been lost without his aid, the court denied his claim.The Eleventh Circuit explained that the first prong of Klein required to the salvor to make two showings: “first, that the vessel was in ‘maritime peril’ (or ‘marine peril’) and, second, that the vessel ‘could not have been rescued without the salvor’s assistance.’” The court ruled that the second part of Klein’s first prong was incorrect according to The “Sabine,” as well as under the Fifth Circuit’s ruling in Legnos v. M/V Olga Jacob, 498 F.2d 666, 669-71 (5th Cir. 1974). According to Legnos and The “Sabine,” the only requirement under first prong should be whether the vessel was in marine peril. The court further explained that the policy behind the rule was to encourage other mariners to assist vessels in distress, and that such a policy is thwarted under the more stringent requirement of Klein.Ultimately, the Eleventh Circuit reversed and remanded the case to the district court. The decision also provided guidance to the trial court in its concluding paragraph, finding that the first prong was satisfied according to the correct standard, the second prong was not at issue, and facts in the record showed that it was likely that Girard fulfilled the third prong as well.