Sunglory Maritime, Ltd. v. PHI, Inc. (212 F. Supp. 3d 618, 2016)

SECTION: “G” (5)

JUDGMENT AND REASONS

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

This matter came before the Court for trial without a jury from March 17, 2016, to March 18, 2016. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1333, which confers on the federal district courts original jurisdiction over admiralty and maritime claims, and pursuant to 28 U.S.C. § 1332, which provides for original jurisdiction over diversity actions. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and by stipulation between the parties, pursuant to a Letter of Undertaking dated March 25, 2013. The substantive law applicable to this case is the International Convention on Salvage, 1989 (“Salvage Convention”) and the general maritime law.

The Court has carefully considered the testimony of all of the witnesses and the exhibits entered into evidence during the trial, as well as the record. After reviewing all of the evidence and pursuant to Federal Rule of Civil Procedure Rule 52(a), the Court issues the following findings of fact and conclusions of law. To the extent that any finding of fact may be construed as a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts it as such.

I. BACKGROUND

This case involves a claim for salvage pursuant to the 1989 Salvage Convention arising out of an incident in which a helicopter operated by Defendant PHI, Inc. (“PHI”) made an emergency landing aboard a vessel owned by Sunglory Maritime Ltd. and managed by Aeolian Investments S.A. after experiencing unusual vibrations while en route to an offshore oil platform in the Gulf of Mexico. The vessel then carried the helicopter back to shore, where it was removed by crane.

In April of 2015, Plaintiffs filed a claim for costs, seeking the additional fuel expenses and demurrage incurred carrying the Aircraft to port, as well as their survey costs. PHI does not dispute that Plaintiffs are entitled to their reasonable and actual out-of-pocket costs incurred as a result of the aircraft landing on the Vessel. However, Plaintiffs also seek a reward for maritime “salvage” under the general maritime law and the Salvage Convention. As the owners of the vessel upon which the helicopter made its landing, Plaintiffs contend that they qualify as voluntary salvors of the helicopter, and should be awarded a monetary award based on the value of the aircraft and the lives saved by the vessel’s actions. PHI contends, on various grounds, that Plaintiffs are not entitled to a salvage award.

Plaintiffs filed the instant complaint on March 28, 2015. On January 5, 2016, PHI filed a motion for partial summary judgment, arguing that Plaintiffs are not entitled to an award of maritime salvage under either general maritime law or the 1989 Salvage Convention. On the same date, PHI filed a motion in limine seeking to exclude the expert testimony of Professor Martin C. Davies, a law professor at Tulane University specializing in maritime salvage law. The Court denied both motions, and a trial without a jury was held from March 17, 2016, to March 18, 2016.

On July 13, 2016, the Court ordered additional briefing to address several issues that had not been adequately covered in the parties’ pretrial memoranda. Plaintiffs submitted a post-trial memorandum on July 22, 2016, to which PHI filed a response on July 29, 2016. On August 4, 2016, with leave of Court, Plaintiffs filed a reply memorandum.

II. FINDINGS OF FACT

A. The Parties and Property Involved

1. Plaintiffs Sunglory Maritime Ltd. (“Sunglory”) and Aeolian Investments SA (“Aeolian Investments”) (collectively, “Plaintiffs”) are corpo- • rations organized and existing under the laws of the Republic of Greece, with their principal office and place of business in Piraeus, Greece. Sunglory is the owner, and Aeolian Investments is the manager, of the M/V AEOLIAN HERITAGE (the “Vessel”), a Panamax bulk carrier engaged in international trade.

2. PHI, Inc. (“PHI”) is a Louisiana corporation with its principal place of business in Lafayette, Louisiana. The company operates aircraft engaged in passenger transportation under Part 135 (“Commuter and On-Demand Operations”) of the Federal Aviation regulations.

3. The insured value of the PHI helicopter no. N764P at the time of the landing on the Vessel was approximately $2,000,000.00.

4. The helicopter weighed 10,800 pounds.

5. The helicopter had a life raft and pontoons aboard it.

6. The Vessel has a value of $50,000,000.00.

B. Events Leading to Landing on the Vessel

7. On March 24, 2013, PHI helicopter no. N764P (the “Aircraft”) was traveling on an outbound flight over the Gulf of Mexico carrying two crew members and seven passengers.

8. At the time the helicopter departed, it had a full tank of fuel.

9. In addition, the pilots and passengers aboard the Aircraft were wearing life vests, and the helicopter had life rafts onboard.

10. Approximately ten miles from shore, the pilot in command, Dean Cole (“Cole”), detected a vibration coming from the Aircraft.

11. First, co-pilot Joshua Brackett (“Brackett”) heard an initial pop or bang and felt a slight yaw, defined as a motion about the vertical axis of the helicopter, or in other words, a left and right movement.

12. Following the bang, and yaw, the pilots began to experience an unusual and recurring vibration that could be heard by the pilots and felt through their feet.

13. Unsure of the source of-the vibration, and approximately 50 miles away from the destined platform, Cole immediately turned the Aircraft around and headed for shore.

14. After detecting the vibration, Cole tested the Aircraft’s controls and found no obvious problems.

15. Cole then attempted to reach air traffic control but was unable to reach them, apparently because the helicopter was in a dead zone portion of the Gulf of Mexico, where radio coverage was unavailable.

16. After Cole was unable to make contact with anyone, he activated the emergency, or “may day,” switch, which informed PHI—but not the Coast Guard—that the helicopter was experiencing a problem.

17. The pilots pulled out an “emergency check list” published by PHI to see if they could identify the problem they were experiencing, but the list did not help the pilots diagnose the cause of the vibrations.

18. Although the Aircraft was fully controllable, the vibrations continued and grew in duration and strength.

19. At that point, the Aircraft was about six minutes from land, and flying above a staging area for the port of Corpus Christi, where cargo ships anchor awaiting berths. '

20. Cole then decided that the safest course of action was to land on one of the anchored vessels.

21. This decision was made in order to avoid “something worse [that] might happen,” and because of Cole’s fear that it “would be hard to explain to the FAA if [the helicopter] did not make it ... why [he] passed up a heliport or helipad underneath [him].”

22. Although the pilots believed they were making a precautionary landing, they acknowledged that, because they did not know the cause of the vibration, one possible outcome of not landing as soon as possible was that they might have to “ditch” the helicopter into the water.

23. The Aircraft initially approached a different ship, but that ship was unsuitable for landing due to obstructions on the deck.

24. The Aircraft crew then sighted the Plaintiffs’ vessel, which was along the helicopter’s flight path and had a hatch cover marked with the “H” designation, the customary way to designate the location where helicopters should land on a vessel.

25. The helicopter then circled the Vessel twice to make sure that the helipad was clear of obstructions and people.

26. Neither Cole nor his co-pilot, Joshua Brackett (“Brackett”), was able to contact anyone aboard the Vessel, and the Vessel did not grant permission for the Aircraft to ■ land.

27. Because Brackett had a better view for landing, Brackett took over the controls and executed a normal, controlled landing.

28. Brackett landed the helicopter on hatch cover # 6, which has an “H” designated for helicopters.

29. The helicopter landed in the center of the “H” marking, which is not located precisely in the center of the hatch cover. The tail of the helicopter initially hung past the hatch cover so that it was not accessible from below.

30. At the time the helicopter landed, the Vessel was rolling from side to side and sometimes pitching.

31. The Vessel has several mast heads, a large accommodation area, a crane on the back of the ship, piping and equipment on her deck, stairs leading to hatch # 6, and raised hatch covers on her deck and around the deck of the vessel.

32. Nevertheless, Cole and Brackett had no trouble safely navigating the obstructions and landing at a normal speed and angle.

33. Because the helicopter had a nearly full tank of fuel, had it landed in the water, it could have caused some pollution.

34. Likewise, if it had landed improperly or crashed on the deck of the Vessel, the Aircraft could have caused a fire or an explosion.

35. However, neither outcome was very likely to occur. The pilots landed the helicopter aboard the Vessel as a precautionary measure to avoid a real but uncertain risk of danger to the property or passengers, but little evidence has been presented to suggest that if the helicopter had not landed aboard the Vessel when it did, it would have been unable to return to shore and would have been forced to ditch into the Gulf of Mexico instead.

36. At the time the helicopter landed on the Vessel, the pilots did not know whether her cargo was flammable or explosive, or whether her hatch cover could support the weight of the helicopter with nine people onboard.

C. Events Following the Helicopter’s Landing

37. After the helicopter landed,'certain crew members asked the PHI pilots why they had landed on the Vessel and whether they were with the U.S. Coast Guard.

38. At the time that the helicopter landed, the chief mate of the Vessel—Spyridon Panagiotopolous— was in his cabin, from where he heard a “loud mechanical noise” coming from the helicopter.

39. Panagiotopolous saw grey smoke emanating from the helicopter when he looked through his port hole and when he came on the deck.

40. The PHI helicopter was much bigger than any other helicopter that the chief mate had ever seen land on the Vessel.

41. Ordinarily, helicopters that land on hatch # 6 are two-person helicopters used to deliver pilots.

42. When small helicopters deliver pilots to the Vessel, they keep their propellers spinning, rather than place their full weight on the hatch cover.

43. By the time Panagiotopolous got to the deck, but before the phots or passengers had exited the helicopter, he saw crew members standing by with fire hoses.

44. Pilot Cole informed the captain of the ship that the helicopter had made an emergency landing due to engine problems. That information was recorded by the Vessel’s second mate on the deck log.

45. When the passengers disembarked from the helicopter, the Vessel crew perceived them to be in shock and afraid.

46. With assistance from the Vessel’s crew, the PHI crew secured the Aircraft on the helipad where it had landed with tie-down lines they had aboard the Aircraft.

47. After landing on the ship, the crew and passengers of the helicopter were accommodated by the master and crew of the Vessel.

48. The helicopter’s pilots and passengers were provided coffee, drinks, and food and were made comfortable.

49. The master of the Vessel advised Plaintiffs of the incident by telephone, then confirmed by e-mail that a helicopter landed on the Vessel in an emergency.

50. Phaidon Moustakas, acting as principal on behalf of the owners and managers of the Vessel, authorized the actions that were taken on-board with respect to the PHI helicopter, namely assisting the crew and passengers and taking measures to secure the helicopter.

51. After the incident, PHI sent two helicopters to land on the vessel. The helicopters picked up the passengers from the Vessel and took them to shore, and dropped off two helicopter mechanics on the Vessel.

52. These subsequent helicopter landings were coordinated through the Vessel’s captain, who selected hatch cover # 2 as a suitable location for these landings.

53. When the two additional PHI helicopters landed, the Vessel’s crew was at the ready with fire hoses and emergency equipment.

54. Thé crew of the Vessel assisted in shifting the helicopter so it could be inspected by PHI’s mechanics.

55. PHI’s mechanics were unable to diagnose the mechanical problem with the helicopter while it was aboard the Vessel.

56. The pilots elected not to fly the helicopter off the Vessel without knowing what was the problem or having the problem diagnosed and repaired.

57. The two pilots and the two mechanics remained on board the Vessel overnight, and were provided food and shelter by the master of the Vessel, who housed them in the ship owner’s cabin, the captain’s empty room, and the hospital.

58. PHI arranged for off-loading the helicopter at a lay berth in Corpus Christi, and the Vessel made arrangements to sail to that berth to off-load the helicopter.

59. Plaintiffs voluntarily instructed the Vessel’s master and her crew to transport the helicopter, pilots and mechanics to the port for the helicopter’s discharge.

60. The Sherwin Terminal, where the Vessel was headed to discharge its cargo, advised that the Vessel would not be allowed to dock while the helicopter was still on board.

61. The Vessel, which had been cleared to come into port before the Aircraft landed, delivered the Aircraft to a dock where it was unloaded by PHI on Monday, March 25, 2013, at berth no. 8 in Corpus Christi without incident.

62. The helicopter was removed by crane through a contractor.

63. PHI delivered the Aircraft to its facility in Lafayette, Louisiana, where it was determined that the high-frequency vibration and yawing was caused by broken bolts in the helicopter’s tail rotor hanger bearing.

64. It was necessary to replace the tail rotor drive shaft due to the broken bolts.

65. Plaintiffs required PHI to-execute a “Limitation of Liability and Release Agreement” freeing the Vessel’s owners from any liability for loss or damage to the helicopter while stowed and being transported on the Vessel.

66. The Vessel suffered no physical damage from the landing.

D. Facts Concerning Actual Expenses Incurred in Rendering Assistance to PHI

67. The hatch cover of the Vessel was surveyed following the incident to determine whether any damage had resulted from the helicopter landing on it.

68. At the time of the incident, the Vessel was chartered to Aquavita International SA (“Aquavita” or “Charterer”) at a rate of $11,550 per day pursuant to a charter agreement (“Time Charter”).

69. The Time Charter includes Clause 38, contained in a rider agreement, which states that “Should the vessel deviate or put back during a voyage, contrary to the orders or directions of the Charterers, the hire is to be suspended from the time of her deviating or putting back until she is again in the same or equidistant position from the destination and the voyage resumed therefrom.”

70. The Time Charter also states that “whilst on hire the Charterers shall provide and pay for all the fuel except as otherwise agreed.”

71. The Vessel deviated from its otherwise scheduled path in order to offload the helicopter at berth # 8 in Corpus Christi, Texas.

72. At the time of the incident, the Vessel did not go off-hire.

73. Plaintiffs incurred a $500 agency fee paid to Biehl & Co., L.P. for its coordination of delivery of the Aircraft back to shore.

74. Plaintiffs were concerned that the helicopters that landed aboard hatch #6 had caused damage to the hatch cover, because it appeared to be heavier than the helicopters that normally landed on the Vessel and for which the hatch cover was designed.

75. Accordingly, Plaintiffs contacted three different entities to board the Vessel for inspections: (1) Sabine Surveyors, to inspect hatches #2 and # 6 for visible external damage to the hatch covers and to gather basic information about the incident; (2) MacGregor/CargoTech, who manufactured the hatch covers, and could thus determine whether the hatch covers or associated machinery were damaged; and (3) the Classification Society Det Norske Veritas (“DNV”), who are responsible for ensuring that the Vessel is at all times “in class.”

76. Plaintiffs incurred fees to Sabine Surveyors, Ltd. in the amount of $1,690.87.

77. Plaintiffs incurred survey expenses to DNV in the amount of $3,983.77.

78. Plaintiffs incurred inspection fees to MacGregor/CargoTech in the amount of €3,694.10 ($5,046.98).

III. CONCLUSIONS OF LAW

On March 4, 2016, the Court issued an order denying PHI’s motion for partial summary judgment, wherein it addressed a number of the issues that the parties continued to contest in their pretrial mem-oranda and throughout trial. Although the Court has previously addressed certain issues of law, the Court’s prior Order did not grant summary judgment in favor of either party on any issue. Therefore, the Court herein shall address each legal argument maintained by the parties in their pretrial memoranda, including those that the Court first considered in denying summary judgment.

A. Applicable Law

In its motion for summary judgment, PHI initially argued that the 1989 Salvage Convention did not appear to apply to salvage claims in the United States, as it is rarely invoked by parties or mentioned by U.S. courts, and that courts nevertheless continue to apply general maritime principles of law in evaluating salvage claims. In its proposed conclusions of law, PHI cites the Salvage Convention for its definitions of various terms, including “salvage,” but continues to maintain that even “the few cases that have applied the 1989 Sal--vage Act have continued to rely upon general maritime law in applying the Convention.” As such, PHI generally does not cite the Salvage Convention in forming its arguments relating to the elements of a salvage award, and argues that under the principles of general maritime law, Plaintiffs are not entitled to a salvage award.

Plaintiffs, however, urge the Court to conclude that the Convention applies to the instant dispute. According to Plaintiffs, the Salvage Convention effectively displaced any conflicting provisions of general maritime law because the Supremacy Clause of the United States Constitution requires binding international treaties to supersede conflicting common law. Furthermore, at trial, Plaintiffs’ expert Martin Davies (“Davies”), a law professor at Tulane University who specializes in the law of marine salvage, testified that there are numerous substantive differences between the Salvage Convention and the general maritime law, both small and large, and that the Salvage Convention should be applied to claims such as the one in this matter, rather than the general maritime law, which has now been displaced.

The Salvage Convention, which was adopted on April 28, 1989 and ratified by the U.S. Senate on October 31, 1991, entered into force for all original signatories on July 14, 1996. Pursuant to the Supremacy .Clause of the U.S. Constitution, “all Treaties made, of which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” PHI does not appear to dispute that the Salvage Convention was a self-executing treaty; as such, self-executing treaties become the law of the land even in the absence of implementing legislation. Furthermore, the Salvage Convention provides in Article 2 that it “shall apply whenever judicial or arbitral proceedings relating to matters dealt within this Convention are brought in a State Party.” As the United States is a State Party, and the instant matter is a judicial proceeding relating to matters dealt with in the Salvage Convention, the Court can see no reason— and PHI does not offer any—why the Salvage Convention should not govern as the applicable law in most salvage disputes in U.S. courts.

Nevertheless, PHI is correct that the Salvage Convention is mentioned only occasionally in briefs and rarely in published opinions. One possible explanation for courts’ failure to mention the Salvage Cón-vention is that, in some cases, the results under either the Salvage Convention or general maritime principles would be the same. The Fifth Circuit has declined to determine whether the general maritime law survives the adoption of the Salvage Convention, but in Solana v. GSF Development Driller I, the court assumed without deciding that general maritime principles continue to apply because, in the case at bar, the result would have been the same under either the treaty or general maritime law. A review of the few cases that have invoked the Salvage Convention reveals at least one other example in which a court side-stepped the question of the Salvage Convention’s applicability by determining that the outcome would remain unchanged regardless of the source of law, as well as several examples where courts have adopted the language of the Salvage Convention and accepted its applicability.

Although the Salvage Convention indeed appears to be often ignored, PHI presents the Court with no argument or reason why the treaty should not be regarded as the supreme law of the land. However, as the relationship between the Salvage Convention and the general maritime law appears to remain undecided, as indicated by the Fifth Circuit in Solana, in an abundance of caution, the Court will also consider principles of general maritime law in assessing the issues in this matter. However, to the extent that there may be a conflict between the treaty and general maritime principles, per the Supremacy Clause, the Salvage Convention must determine the outcome.

B. Salvage Liability

“The law' of marine salvage is of ancient vintage. In contrast to the common law, which does not grant a volunteer who preserves or saves the property of another any right to a reward, a salvor of imperiled property on navigable waters gains a right of compensation from the owner.’.’ “Because of the peculiar dangers of sea travel, public policy has long been held to favor a legally enforced reward in this limited setting, to promote commerce and encourage the preservation of valuable resources for the good of society.” An award of salvage is generally appropriate when property is successfully and voluntarily rescued from marine peril.

Pursuant to the Salvage Convention, a “[s]alvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.” The Salvage Convention does not appear to have eliminated the general maritime law’s requirement that, to succeed on a salvage claim, a plaintiff must prove three elements: (1) that the property faced a marine peril; (2) voluntary service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation. Here, PHI does not dispute the success of the operation, the third element of a salvage claim. However, before even reaching the three elements of a salvage claim, PHI urges the Court to find that, as a matter of law, the Vessel owners are not the proper parties to claim a salvage award in this matter, and the helicopter in the instant matter is not property subject to a salvage award. The Court will examine each argument in turn before assessing the elements of a salvage claim.

1. Party Asserting a Salvage Claim

In an argument that is collateral to the elements of a salvage claim and akin to the requirement that a plaintiff have “standing,” PHI claims that Plaintiffs, as the Vessel’s owners, have only a limited right, if any, to claim a salvage award in this matter. PHI claims that a shipowner may only share in a salvage award if it appears that the shipowner’s property was actually risked or at least at risk of being affected. Here, PHI contends, the owners of the Vessel did not place their Vessel at risk in connection with the landing of the helicopter, the provision of food and accommodations to the passengers and crew of the aircraft, or with the delivery of the helicopter to a berth where it was unloaded. Furthermore, PHI argues, even if it were assumed that the master and crew provided salvage services, neither the crew nor master were joined as plaintiffs. According to PHI, although all those who render service in a salvage operation may share in an award, Plaintiffs may not step in the shoes of the crew for purposes of obtaining a salvage award, and may only recover an award based on their own voluntary contribution and potential risk to their property from the salvage operation, which here was non-existent.

In response, Plaintiffs contend that the Salvage Convention does not instruct a tribunal assessing a salvage claim to consider whether other parties not before the tribunal could potentially have sought an award. According to Plaintiffs, the Salvage Convention’s statement that “[s]al-vage operations which have had a useful result give rise to a reward” does not in any way imply that a party whose salvage operation had a useful result should be denied an award, or see its award reduced, based on the decision of other potential salvors not to seek an award. Moreover, Plaintiffs contend, although the Salvage Convention provides the governing law in this case, they would be entitled to an award even under the general maritime law, citing the reasoning in this Court’s order denying summary judgment.

Although PHI argues that a vessel owner may not recover any reward unless the vessel encounters some kind of physical danger during the course of a salvage operation, the Court agrees with Plaintiff that the Salvage Convention includes no such requirement, and simply states that liability for a salvage award may attach to any “salvage operations which have had a useful result.” Accordingly, under the Salvage Convention, the Court can see no reason why Plaintiffs should be barred from bringing suit for a salvage award based solely on the alleged inaction of the Vessel’s owners (as opposed to the Vessel’s crew).

Moreover, considering this matter under the general maritime law would lead to the same result. The leading treatise on the law of admiralty, Benedict on Admiralty, clearly states that “[t]here is no limitation as to the type of person who may be entitled to a salvage award.” Instead, the treatise explains, the question of whether a person is eligible to receive a salvage reward is strongly tied to the question of whether a service was voluntarily rendered—which is already accounted for as an element of a salvage claim. Nevertheless, PHI argues that as a matter of law, shipowners are precluded from sharing in a salvage award or bringing a claim without evidence that the shipowner’s property was actually risked or at least at risk of being affected.

Although it is a general rule that a party who does not participate in the salvage service is not entitled to a salvage award, an exception to the rule permits the owner of a salving vessel to share in the award, even if the owner does not take part in, direct, or even know about the salvage operation. A salving owner is granted a salvage reward because of the risk and danger to which his property is exposed. Furthermore, “[s]alvors are not deprived of a remedy because another set of salvors neglect or refuse to join in the suit, nor will such neglect or refusal benefit the libellants by giving them any claim to a larger compensation, as the- non-prosecution by one set of sal-vors enures, not to the libellants prosecuting the claim, but to the owners of the property saved.” Thus, it is irrelevant here for the purposes of determining liability that the only plaintiffs bringing suit are the owner and manager of the Vessel; it is well-settled that, under the general maritime law, no other would-be salvors need join a suit in order for the owners of a vessel to make a claim for salvage.

Although at trial the parties disputed the degree of danger allegedly faced by the Vessel in receiving and transporting the helicopter, PHI has cited no authority in which an owner of a vessel that undoubtedly provided salvage services was denied a salvage award because the vessel in question faced an insufficient degree of danger. In support of its claims, PHI cites The Blackwall and The Camanche, two 1869 Supreme Comet decisions that stated, in rebutting arguments to the contrary, that vessel owners could indeed recover salvage awards based on the premise that their vessels bore some risk in providing salvage services. The Supreme Court’s pronouncements in those two cases recognized that, as a matter of policy, vessel owners were also entitled to potentially claim a salvage award, rather than limiting the circumstances in which an owner can claim an award to those of especially great risk to a vessel. Other courts have expressed additional policy interests, besides danger to a vessel, that would justify a salvage award to vessel owners, including discouraging masters of vessels from abusing their authority or unreasonably risking the safety of a vessel in order to pursue selfish gains, and to compensate an owner for the expenses of the rescue mission, including the wages of the crew, fuel, and provisions.

A more recent case in the Ninth Circuit, Bartholomew v. Crowley Marine Services, Inc., expressed a similar view to that espoused by PHI, noting that “it has been considered a general, if not universal, rule that the reward is available not only to the salvors but also to the owner of the salving vessel, if there was a risk that the vessel could be affected during the salvage operation.” However, the degree of risk borne by a vessel and its crew is usually better assessed in considering the size of a salvage award and how it should be appropriated between salvors, rather than whether one is warranted at all. In DOROTHY J v. City of New York, a judge in the Eastern District of New York summarized the law, adhered to across circuits, as follows:

The owner need not take part in, direct, or even know about the salvage operation, to share in the award, although such participation or direction may increase the owner’s proportionate share.... An owner’s share generally increases when the salving vessel is of large value, when the salving vessel or owner was exposed to substantial risk in rendering the services ... when the princip[al] service was performed by the vessel, ... or when the owner directed the service.... In contrast, the share apportioned to the crew generally increases when the risk sustained by the crew was exceptionally high, the salving vessel was not exposed to serious risk or danger ... or where the efficiency of the salvage vessel itself played a small role in the services rendered relative to the individual efforts of the crew ....

Furthermore, courts have granted salvage awards to salving vessel owners without evidence that the salving vessels faced significant risks. For example, in DOROTHY J v. City of New York, a judge concluded that a tugboat owner was entitled to a salvage award where the tugboat and its crew provided successful salvage service to a city-owned ferry by arriving alongside the ferry ready to provide potential rescue or other assistance following the ferry’s allision with a pier. Similarly, the Ninth Circuit in Saint Paul Marine Transportation Corp. v. Cerro Sales Corp. rejected arguments similar to PHI’s in a case where crew members went aboard a burning ship to rescue cargo, finding that both the salving vessel’s owner and crew members who did not board the burning ship were entitled to a salvage award. There, the court stated, “All who render service in a salvage operation may share in an award. Each individual need not actively participate by manning the small boats, boarding the salved vessel or fighting fires.... Every man’s duties on the salving ship contribute to the property salvage and the law extends a portion of the award to even a ‘scullion in the galley peeling potatoes while the actual salvage work is going on.’ ”

Therefore, the Court concludes that the crew need not join the suit in order for the Vessel owners to pursue a claim, and the Vessel need not have faced significant risk of damage in order to allow the Vessel owners to seek a salvage award in this matter. Nevertheless, even if some kind of danger to the Vessel is required, the Court has already found, supra, that the Aircraft that landed on hatch # 6 was much larger and heavier than the helicopters that normally land aboard the Vessel, that it was emitting smoke at the time that it landed, and that if it had landed improperly or crashed on the deck of the Vessel, the Aircraft could have caused a fire or an explosion. Accordingly, although the Court has also found that the helicopter was under the control of its pilots when it landed, the Vessel faced some risk of damage from the helicopter’s landing. Although it is undisputed that no damage actually occurred, any such risk would be sufficient even under PHI’s inaccurate statement of the law to warrant a finding that Plaintiffs have standing to bring suit in this matter. Therefore, the Court declines to conclude that Plaintiffs are not entitled to a salvage award because the Vessel faced an insufficiently large risk in rendering services to PHI’s helicopter and its crew.

2. Property Subject to a Salvage Award

Next, PHI argues that, as a matter of law, a helicopter is not the kind of property that may be subject to a salvage award. Although the kind of property at issue is not a formal element of a salvage claim, courts considering salvage claims pursuant to the general maritime law have often discussed whether salvage awards are limited only to the salvage of vessels or goods coming from a vessel. Courts have struggled with the question of whether the law of salvage even applies at all to non-vessel property, including cargo, freight, and aircraft. Indeed, “[t]he issue of whether an aircraft recovered in navigable waters is properly the subject of a salvage award remains unsettled.” In such cases, before courts even reach the elements of a salvage claim, the question of whether an aircraft is properly the subject of an award is often determined first by examining whether the aircraft was sufficiently “maritime” such as to invoke admiralty jurisdiction. The question also arises in situations where jurisdiction is not at issue. Therefore, the cases suggest that although proving that property is the proper subject of a salvage award is not a traditional element of a salvage claim, where a party alleges that the recovery of certain property, as a matter of law, cannot lead to a salvage award, courts examine that preliminary question separately from evaluating the elements of a salvage claim.

Here, PHI argues that historically, property subject to a claim of salvage has included vessels, property aboard vessels, property thrown overboard or jetsam, property found freely floating on the sea or flotsam, property on the sea attached to buoys, and property washed up to shore-Cin other words, property with a strong “maritime nexus.” PHI avers that courts have extended claims of salvage to non-vessel property recovered in navigable waters only in cases that are “extremely rare and the exception to the rule,” and only where property was derelict, lost, or otherwise “abandoned” and the salvor took affirmative action to recover the property.

Plaintiffs, by contrast, rely on the broad definition of salvageable “property” provided by the Salvage Convention, which states that “[property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.” Under that definition, it is clear that a helicopter, which is not permanently attached to the shoreline, would constitute salvageable property under the Salvage Convention, even if not necessarily under general maritime law, and the inquiry regarding whether a helicopter can be salvaged could end there.

However, in an abundance of caution, the Court herein addresses PHI’s arguments concerning whether a helicopter could constitute salvageable property under the general maritime law. PHI urges the Court to conclude that a helicopter is not salvageable property because it lacks a sufficient “maritime nexus.” Under traditional general maritime law, “[i]n order for a court to make a salvage award, there should be a nexus between the item salvaged and traditional maritime activities.” Traditionally, salvage awards were restricted to objects with explicit connections to ships and vessels; in fact, in 1887, the Supreme Court noted that “no structure that is not a ship or vessel is a subject of salvage.” Since then, however, salvage awards have been awarded for the recovery of cargo and fuel, and even to property such as seaplanes and money found on a drowned human body. On the other hand, the Eighth Circuit held in Provost v. Huber that a house that sank while being transported by truck over a frozen lake lacked a sufficient maritime relationship to warrant a salvage award.

While the requirement for a “maritime nexus” has a long history, some courts have criticized, for more than a century, the “narrow and restricted doctrine of limiting the subject of salvage services to a ship or goods coming from a ship.” In 1871, a judge in the District of Massachusetts determined in Fifty Thousand Feet of Timber that two rafts of timber found floating in the Boston Harbor could be the subject of a salvage award, declaring that “[i]f the services are rendered, it is of no consequence whether the goods are a ship or part of a ship, or were ever on board a ship.” Similarly, in 1879, a judge in the Eastern District of Virginia stated in Maltby v. Steam Derrick Boat that any property of value could be the subject of salvage provided that it was saved under conditions that gave rise to admiralty jurisdiction. The test seemingly applied in other cases, Maltby concluded, was not whether the property saved was a vessel or its cargo, “but whether the thing saved is a movable thing, possessing the attributes of property, susceptible of being lost and saved in places within the local jurisdiction of the admiralty.”

PHI argues that the “bone-dry” helicopter in this case is the kind of non-vessel property that may not be the subject of a salvage claim. Even where other courts have allowed the recovery of non-vessel property, PHI argues, those awards all involved “ ‘non-marine’ property [that was] derelict, lost, or otherwise ‘abandoned’ ... in which the salvor took affirmative action to recover the property.” Here, however, PHI conflates two separate analyses: first, whether property has a sufficient maritime nexus such that it may be considered salvageable, and second, whether the property was in peril. For example, in Lambros Seaplane Base, Inc. v. The Bato-ry, a case cited by PHI, the Second Circuit determined first, as a matter of law, that a seaplane was a marine object that could be subject to salvage. In that analysis, the Second Circuit made no mention of the fact that the seaplane had been abandoned, and focused its inquiry solely on the question of whether the seaplane was a “vessel which is susceptible of salvage under the maritime law.” Only after concluding that a seaplane was salvageable did the court turn to “whether the other necessary elements of salvage were proved,” wherein the Second Circuit discussed the pilot’s request for rescue and “that the pilot had no intention of voluntarily returning to the plane” as evidence that it was reasonable for the salvor to believe that the seaplane was in peril. PHI attempts to import factors considered by courts in determining whether a marine peril was present into the test this Court should adopt regarding whether property is a marine object subject to salvage, but it cites no case law to support such a requirement.

PHI also points to the decision of a judge in the District of Maine, in Historic Aircraft Recovery Corp. v. Wrecked & Abandoned Voight F4U-1 Corsair Aircraft, which strongly questioned the extension of the law of maritime salvage to claims regarding even abandoned aircraft. First, this Court notes that Historic Aircraft Recovery, which is not binding authority in this district, determined that a military plane found in Sebago Lake, Maine, was not the proper subject of a salvage award because the lake in which it was found was not navigable, and therefore not subject to admiralty jurisdiction. The court went on to analyze, however, as PHI does in its briefing, the Supreme Court’s decision in Executive Jet Aviation v. City of Cleveland, There, a judge in the District of Maine interpreted Executive Jet as the Supreme Court “expressing] its reluctance to extend admiralty jurisdiction to matters involving aviation, at least in the context of torts.” In Executive Jet, where the plaintiffs sought to invoke the law of admiralty for federal jurisdiction purposes, the Supreme Court stated that the rules and concepts developed through long experience in admiralty law would be “wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road.” PHI relies on this language to urge this Court to conclude that “an aircraft which safely comes to rest on the designated helicopter landing location on a vessel, and never touches navigable water, is [not] property that may be the subject of a salvage award.”

Although Executive Jet expressed some reluctance to extend admiralty jurisdiction, at least in the context of torts, to matters involving aviation, Executive Jet involved a situation that is distinguishable from the facts in this case. In Executive Jet, an airplane, upon striking a flock of seagulls as it was taking off, crashed into the navigable waters of Lake Erie on a flight intended to travel from Cleveland, Ohio to Portland, Maine and then to White Plains, New York—in other words, “a flight that would have been almost entirely over land [and] within the continental United States.” As such, the Supreme Court declined to extend admiralty jurisdiction in a situation “which is only fortuitously and incidentally connected to navigable waters and which bears no relationship to traditional maritime activity,” stating that the Court could find “no significant relationship between such an event befalling a land-based plane flying from one point in the continental United States to another, and traditional maritime activity involving navigation and commerce on navigable waters.” The Court acknowledged that the situation might be different, however, if a plane flying from New York to London crashed in the mid-Atlantic, as an “aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels.”. Here, it is undisputed the helicopter in question flew on an outbound flight, toward a platform, over the Gulf of Mexico, carrying two crew and seven passengers, and therefore “perform[ed] a function traditionally performed by waterborne vessels,” namely ferrying passengers over navigable waters.

Citing Barger v. Petroleum Helicopters, Inc., a 1982 Fifth Circuit case, PHI also argues that the Fifth Circuit has clearly held that helicopters, unlike seaplanes, are not “vessels” for purposes of maritime commerce, even if they fly over the sea. The helicopter need not be a “vessel,” however, in order to bear a sufficient maritime nexus to warrant a salvage award. Barger held that a pilot of a helicopter that transported passengers to the Outer Continental Shelf was not a “seaman” for purposes of the Jones Act, and thus the exclusive remedy for his wrongful death claim against his employer was the Longshore and Harbor Workers’ Compensation Act. Barger recognized, however, that Smith v. Pan Air Corp., a Fifth Circuit opinion decided months prior, had held that a pilot of a helicopter that crashed into the Gulf of Mexico could sustain a wrongful death claim in admiralty against a third party under the Death on the High Seas Act. Similarly, just two years prior, the Fifth Circuit in Ledoux v. Petroleum Helicopters, Inc. stated in a short opinion that “[t]he crash of the deceased’s helicopter, while it was being used in place of a vessel to ferry personnel and supplies to and from offshore drilling structures, bears the type of significant relationship to traditional maritime activity which is necessary to invoke admiralty jurisdiction.” As noted above, the situation cited in Ledoux is similar to the case at bar.

The Supreme Court came to the same conclusion in Offshore Logistics, Inc. v. Tallentire, a 1986 case in which the Court, citing Executive Jet, stated:

[AJdmiralty jurisdiction is appropriately invoked here under traditional principles because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Although the decedents were killed while riding in a helicopter and not a more traditional maritime conveyance, that helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an “island,” albeit an artificial one, to the shore.

Thus, both the U.S. Supreme Court and the Fifth Circuit have recognized that a helicopter that transports passengers to an offshore platform engages in a function traditionally performed by waterborne vessels, and therefore bears a sufficient nexus to traditional maritime activity such that admiralty jurisdiction may be invoked when accidents befall such helicopters. Although this Court recognizes that these decisions have arisen in cases examining the applicability of admiralty jurisdiction, rather than in addressing the law of salvage, this Court sees no reason, and PHI has not offered any, why the question of whether an activity “bear[s] a significant relationship to a traditional maritime activity” should have a different outcome than the question of whether property “bears a strong maritime nexus.”

Finally, PHI makes a policy argument that allowing a salvage claim in this case “would potentially open the door for vessel or rig owners to assert a claim for salvage every time a helicopter made a landing because of low fuel, storm activity or an operational concern,” an outcome that would create an undesirable disincentive for a pilot to act prudently for fear of a salvage claim being asserted against the helicopter. The Court is not persuaded by PHI’s argument. PHI ignores the fact that, even if its landing on the Vessel was precautionary in nature, PHI did not dispute at trial that its mechanics were unable to find any obvious reason for the helicopter’s vibration when they examined it on the Vessel, and therefore they decided to return the helicopter to shore aboard the Vessel. By contrast, when a helicopter lands on a vessel to refuel, or even due to storm activity, it is later able to leave the vessel of its own volition, without needing to be ferried to land. Although PHI argues that the helicopter here cannot be considered salvageable property because it was not cargo, where a helicopter either cannot or will not leave a vessel, its situation bears a strong resemblance to that of traditional cargo. Here, it is undisputed that the helicopter’s crew chose not' to fly the helicopter off the Vessel. Therefore, the Court is not persuaded by PHI’s argument that allowing a salvage claim in this instance would open the door to a slew of salvage suits whenever helicopters land aboard a vessel because of low fuel, storm activity or an operational concern.

Accordingly, the Court concludes as a matter of law that pursuant to either the Salvage Convention or general maritime law, a helicopter that transports passengers to offshore platforms may be subject to a salvage award if recovered or saved in navigable waters.

3. Traditional Elements of a Salvage Award

As outlined earlier, to succeed on a salvage claim pursuant to the general maritime law, a plaintiff must prove three elements: (1) that the property faced a marine peril; (2) voluntary service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation. Whether a marine peril exists is a question of fact. The peril necessary to constitute a salvage service need not be one of imminent and absolute danger; the danger must simply be present or “reasonably to be apprehended.” “The burden of proof that the vessel or property is in peril is upon the one claiming a salvage award.” Voluntariness is also ordinarily an issue of fact. Here, PHI does not dispute the success of the operation, the third element of a salvage claim.

a. Marine Peril

Plaintiff bears the burden at trial of showing that the property faced a marine peril or, as the Salvage Convention puts it, that the property was “in danger.” “The peril necessary to constitute a salvage service need not be one of imminent and absolute danger. The property must be in danger, either presently or reasonably to be apprehended.” Courts may consider the degree of peril when determining the amount of the salvage award, but not in assessing whether a salvage award is warranted. “ ‘Reasonable apprehension of injury or destruction if the services are not rendered’ is the standard by which peril is adjudged to be present.” Without any danger, however, services cannot be called marine salvage.

PHI argues that the helicopter did not face a marine peril because: (1) the aircraft was at no time actually facing any imminent threat or immediate peril, particularly by the time that the limited services provided by the Vessel—namely carrying the helicopter to a berth for offloading—were rendered; and (2) an inflight mechanical issue experienced by the aircraft does not qualify as a “marine peril” for purposes of maritime law. Regarding PHI’s first argument, the Court has already made a factual finding that at the time the helicopter chose to land on the Vessel, PHI’s crew reasonably believed that the helicopter was in danger of being unable to safely complete its flight to the oil rig. Even if it were to be clear in hindsight that the helicopter did not have a substantially high likelihood of crashing into the Gulf of Mexico, the “marine peril” test asks not whether the salved property faced an “imminent and absolute danger,” but rather whether the property was “subject to the potential danger of damage or destruction.” Nor is the Court persuaded by PHI’s argument that the aircraft faced no relevant marine peril because no service was rendered to the helicopter until after it landed aboard the Vessel and was carried to a berth for offloading, as any concern regarding the sufficiency of the services rendered is better addressed in setting the amount of an award. Moreover, without the aid of the Vessel, the helicopter would have been “stranded so that it is subject to the potential danger of damage or destruction,” which alone would be sufficient to constitute a “danger” pursuant to the Salvage Convention or a “marine peril” pursuant to general maritime law. Otherwise, by PHI’s logic, towage services would never allow for claims of a salvage award, as being stranded would be insufficient to constitute a marine peril—a proposition that is clearly rebutted by dozens of cases involving towage services.

Next, PHI argues that even if the helicopter faced some danger, the source of the danger was not maritime in nature and therefore, as a matter of law, it was not a “marine peril.” The Court notes at the outset that the Salvage Convention makes no mention of the term “marine peril” and discusses only the possibility of “danger in navigable waters or in any other waters whatsoever.” However, even under the general maritime law, mechanical difficulties and machinery breakdowns have been considered marine perils when vessels are affected. Although it is disputable whether the rules that would apply to a stranded or broken vessel should apply to a helicopter facing mechanical difficulties while flying over navigable waters, whether a marine peril exists is a question of fact. Moreover, “marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation.”

Therefore, having found no authority, binding or otherwise, stating that, as a matter of law, a court shall not consider it to be a “marine peril” when an airplane faces an alleged risk, however small, of being unable to return to shore while flying above navigable waters, the Court declines to conclude as a matter of law that aircraft cannot face “marine perils” solely by virtue of the fact that they are not vessels. Moreover, as the Court already noted above, once PHI’s crew decided that they could not or would not fly the helicopter back to land, the helicopter became akin to “cargo” that, without the aid of the Vessel and its crew, would have been stranded at sea.

The Court has already made a factual finding that the Aircraft’s pilots believed that had the helicopter not landed on the Vessel, there was a reasonable risk that it would not safely complete its flight, which could require it to “ditch” into the sea. To hold that the helicopter had to first enter navigable waters and then be rescued, or else no claim for marine salvage can be made, would lead to absurd and hyper-literal results. The Court agrees with Professor Davies, who succinctly explained at trial that for property to be considered “in danger in navigable waters,” as the Salvage Convention requires, it need not actually enter the water. Moreover, the Court also agrees with Professor Davies’ statement that “if you didn’t read [the Salvage Convention] as a composite whole, it wouldn’t even apply to cargo, which it plainly was intended to do, because the cargo—if the cargo is successfully salved, it never gets into navigable water. It was property that was protected from danger in navigable waters.” Although this reasoning was applied to the Salvage Convention, the reasoning applies just as strongly to the general maritime law. A successful salvage operation prevents salvageable property from succumbing to the elements; accordingly, the Court concludes that although the aircraft in question experienced a mechanical failure, because, without the intervention of the Vessel, the aircraft was at risk of “ditching” into the sea, or of remaining at sea aboard the Vessel with no ability to return to land of its own volition, the helicopter faced a “marine peril” pursuant to the general maritime law, as well as a “danger in navigable waters” pursuant to the Salvage Convention.

b. Voluntary Service

As PHI does not contest the third element of a salvage claim—success in whole or in part—the final consideration regarding salvage liability is whether the Vessel performed the services in this matter voluntarily, while under no legal obligation or compulsion to do so. PHI argues that Plaintiffs cannot satisfy the “voluntarily rendered” requirement for a salvage service because they did not “act” in any way to salvage the helicopter. PHI avers that a court in the Southern District of Florida has required a salvor to take “voluntary, affirmative action to aid, rescue or preserve the vessel, her crew, or cargo from a maritime peril.” Here, PHI argues, the Vessel took no affirmative action to assist PHI’s helicopter in landing on the Vessel’s designated helicopter landing spot. According to PHI, the Vessel’s crew did not clear objects from the landing spot, change course, or come to a standstill to allow the helicopter to land, nor did it secure the aircraft after it landed.

Plaintiffs respond that, under the Salvage Convention, which defines “salvage operation” to mean “any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever,” Plaintiffs clearly performed an “act” insofar as they received the aircraft onboard, assisted in pushing it to a location where it could be inspected for damage, provided shelter and sustenance to the helicopter’s crew, authorized additional landings to accommodate PHI, and safely transported the helicopter and PHI’s personnel to shore. Moreover, Plaintiffs argue, under the general maritime law, Plaintiffs’ actions constitute a voluntary act as well because general maritime law recognizes only two forms of marine salvage: pure salvage and salvage by contract. According to Plaintiffs, where a party renders salvage services without a contract, such aid constitutes “voluntary service” regardless of whether it is rendered for monetary gain, humanitarian purposes, or merely by error.

Although PHI makes much of the question of whether Plaintiffs “acted” to rescue the helicopter given the alleged lack of awareness on the part of the Vessel’s crew that the helicopter was in fact seeking refuge on the Vessel, general maritime law—which PHI argues should apply here—has long defined voluntariness not as “a service rendered solely from one’s free will,” but rather “performance under circumstances where the performer is not legally obligated to render the act.” For this reason, even services that are rendered by accident may be considered “voluntary” for purposes of a salvage claim. Thus, PHI’s arguments about the alleged lack of any “act” by the Vessel is unsupported by cases decided under the general maritime law, particularly in light of the fact that even very minor acts, such as giving advice or standing by, have been considered as sufficient to raise a claim for salvage. Moreover, even under the Salvage Convention, which does explicitly require some “act or activity,” the Court has already determined that the Vessel and its crew did considerably more than merely fail to interfere with the helicopter’s landing, including tying down and securing the helicopter, helping to move it in order to allow for inspection of the tail, using the Vessel’s stores to accommodate and make the helicopter crew comfortable, and providing sleeping accommodations for the pilots and mechanics overnight. Although PHI may argue that such aid, if any, was minimal, “[t]he quality and degree of contributory service need only be slight to justify a salvage award; the extent of the service may affect the amount of the award, but not its validity.”

Therefore, the Court concludes that pursuant to both the Salvage Convention and the general maritime law, Plaintiffs performed a voluntary act in furtherance of a salvage operation.

4. Conclusion

In light of the foregoing, the Court concludes that Plaintiffs have standing to bring a claim for salvage despite the fact that other parties who could have joined the suit chose not to do so, and the helicopter in this instance was property subject to a salvage award. Furthermore, the Court finds that Plaintiffs have satisfied their burden by a preponderance of the evidence and as a matter of law of proving the traditional three elements of a salvage claim, namely that: (1) the property faced a marine peril; (2) voluntary service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation. Accordingly, Plaintiffs are eligible for a salvage award, and the Court next determines the amount to which Plaintiffs are entitled.

C.