B.V. Bureau Wijsmuller v. U.S., s. 69

• Decision Date: 02 March 1983
• Docket Number: 133,D,Nos. 69,s. 69
• Citation: 702 F.2d 333
• Parties: B.V. BUREAU WIJSMULLER, Plaintiff-Appellant-Cross-Appellee, v. The UNITED STATES of America, Defendant-Appellee-Cross-Appellant. ockets 82-6050, 82-6090.
• Court: U.S. Court of Appeals — Second Circuit

Page 333

702 F.2d 333

B.V. BUREAU WIJSMULLER, Plaintiff-Appellant-Cross-Appellee, v. The UNITED STATES of America, Defendant-Appellee-Cross-Appellant.

Nos. 69, 133, Dockets 82-6050, 82-6090.

United States Court of Appeals Second Circuit.

Argued Sept. 2, 1982.

Decided March 2, 1983.

Richard M. Ziccardi, New York City (Gordon W. Paulsen and Curtis E. Pew, Haight, Gardner, Poor & Havens, New York City, of counsel), for plaintiff-appellant-cross-appellee.

Janis G. Schulmeisters, New York City (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., and John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, of counsel), for defendant-appellee-cross-appellant.

Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

The law of salvage is a concept with roots deeply embedded in antiquity. We are called upon to apply this old and venerable law to a case involving modern shipping. On this appeal we review the propriety of a $500,000 award for salvage services to which the United States District Court for the Southern District of New York (Goettel, J.) added $135,000 as an "equitable uplift." Our reasons for affirming follow.

FACTS

In August 1977 the M.V. PIONEER COMMANDER, a vessel privately owned by United States Lines, Inc., set sail from Bremerhaven, West Germany for Bayonne, New Jersey. Aboard the vessel were 757 tons of military cargo owned by the defendant United States of America. The value of this cargo and the ship's bunkers was fixed by the district court at $6,480,925.

On August 13, 1977 the ship ran aground on a rocky ledge off the northern coast of Scotland. Although two of the ship's bottom plates were cracked, its watertight integrity was unimpaired. Attempts to extricate itself under its own power and with local help were unavailing. Realizing the gravity of the situation, the captain radioed a request for professional salvage assistance; the plaintiff, B.V. Bureau Wijsmuller (Wijsmuller) a professional salvor from the Netherlands, responded. Upon receipt of the call, Wijsmuller immediately dispatched its tug TYPHOON to the scene.

Radio contact was established between the TYPHOON and the grounded ship. The master of the PIONEER COMMANDER asked for a lightering craft in order to discharge the ship's bunkers. This message, together with a request that a salvage officer be flown in, was passed on to Wijsmuller's main office by the master of the TYPHOON.

Three hours later the tug arrived at the scene. Before salvage operations began Captain Scott, master of the PIONEER COMMANDER, entered into an agreement with Wijsmuller under which Wijsmuller would use its best efforts to salve the vessel. The contract--"Lloyd's Standard Form of Salvage Agreement--No Cure-No Pay"--provided that if successful in its efforts to refloat the casualty, Wijsmuller would be paid a salvage award in an amount to be later determined; if unsuccessful, Wijsmuller would receive no payment. Additionally, the contract contained an "equitable uplift" provision intended to protect the salvor from the effects of currency fluctuations and inflation.

Salvage operations commenced the same day. Using the tug's small boat, soundings were taken all around the PIONEER COMMANDER. Various specifications, particularly the ship's departure drafts, were provided by Captain Scott. Unfortunately, because these drafts were taken when the ship was in brackish water, they were inaccurate for seawater.

The following day divers surveyed the situation underwater. The vessel's bow and stern hung over deep water so that the TYPHOON could navigate up to and alongside her. Later that day a salvage officer, Captain Hopman, flew in from Holland to take command of the salvage operation. Upon boarding the stranded vessel, Captain Hopman observed the considerable effect of the strong tidal currents. Moreover, the spring tide which intensified those currents was to peak in only four days, on August 18. Unpredictable weather capable of sudden deterioration greatly concerned Captain Hopman. He suggested that the vessel be ballasted down so that she would hold her present position. As a further precaution he decided to lay out beaching gear from the stern of the PIONEER COMMANDER. In this way she could swing freely and avoid a rock formation on her starboard side, if she came afloat.

Further calculations indicated that the vessel was held fast about three feet below her mean average draft and that she would have to be lightened to achieve flotation. On the 15th a sounding survey was carried out aft of the ship in order to establish the best route by which she could be refloated. An unsuccessful attempt was made by the TYPHOON to pull the vessel off the strand. The beaching gear was rigged using the PIONEER COMMANDER's spare anchor which was moved to her stern and then taken on board the salvage tug. This work was not completed until August 17.

Because of the possibility of an oil spill, the tanker MARE SILENTIUM, which had been chartered for the purpose of emptying the PIONEER COMMANDER's bunkers, came alongside the casualty on the afternoon of August 17. During a nighttime pumping operation, the MARE SILENTIUM's bridge and forecastle were damaged when powerful waves, induced by the ever-increasing current caused her to roll against the PIONEER COMMANDER. The pumping operation was soon discontinued as the sea grew steadily rougher. In disengaging from the stranded vessel, the tanker sustained further damage by again rolling into the PIONEER COMMANDER.

On August 18 the spring tide peaked. Shocks were felt running through the vessel and a slight change in her heading occurred. These vibrations continued until the tide ebbed. Owing to the heavy damage sustained the previous day, the master of the MARE SILENTIUM agreed to resume defueling only after Wijsmuller promised to indemnify her owners for any damage not covered by insurance. Because the mooring ropes and bunker hose parted, defueling could not begin, and again the TYPHOON had to tow the tanker to safety.

A decision had been made previously to attempt refloatation on August 19. To this end deballasting had begun on the 16th. The deballasting process was painfully slow because the fuel which was being removed to lighten the ship was unheated and, therefore, viscous. Only 310 tons of fuel had been removed when weather conditions halted the defueling operation.

At 0150 hours on August 20 a substantial vibration shook the PIONEER COMMANDER, altering her heading 20 degrees to starboard. When this occurred the PIONEER COMMANDER was ballasted down, but the TYPHOON was not secured to her and the beaching gear was not tensioned. As the change in the heading became more pronounced, Captain Scott had Captain Hopman awakened. The beaching gear was immediately tensioned and the TYPHOON came alongside the PIONEER COMMANDER. A line was passed and pulling commenced at 0235 hours. The beaching gear was engaged in conjunction with the PIONEER COMMANDER's capstan, and the vessel's engines were started simultaneously. Just short of an hour later the PIONEER COMMANDER floated free. The fast release hook of the beaching gear supplied by Wijsmuller jammed; the line had to be cut and the anchor was lost. The main engines of the casualty, which had been running full astern, were immediately stopped. The TYPHOON then towed the PIONEER COMMANDER into deep water and escorted it to Scapa Flow.

On August 23, again escorted by the TYPHOON, the PIONEER COMMANDER sailed for Newcastle, England. During the passage the TYPHOON, which accompanied the vessel at the request of United States Line, Inc., provided no further assistance. On August 24 the salvage services were completed upon the issuance of a Certificate of Delivery.

Pursuant to the salvage agreement entered into between Wijsmuller and the master of the PIONEER COMMANDER, an arbitration was held in London. A salvage award was made against the United States Lines as owner of the vessel and against the United States as owner of the cargo and bunkers. Invoking the doctrine of sovereign immunity, the United States refused to participate in that arbitration and has since refused to pay its share of the arbitrator's award.

The district court found that the refloatation of the vessel on August 20--although a surprise to the salvage officer--occurred because of its reballasting on August 18 and 19 which adjusted its trim aft. With the vessel weighted heavily aft, the swift current and large swells at night's high tide apparently caused it to pivot and move astern. The trial court found that Wijsmuller's services had been rendered in a professional manner and that the salvage plan would have been effective had the difficulties recited in removing the bunkers not been encountered. It also found that the laying out of the beaching gear and the tug's assistance when the vessel came alive were important to safe removal from the strand.

In making its findings the district court placed the value of Wijsmuller's salvage services at $500,000. It added an "equitable uplift" factor of 27 percent to the award for a total of $635,000, together with four percent interest. In making this addition to the award, the trial court cited its broad discretion in fixing salvage awards and the delay incurred by Wijsmuller in recovering this award from the United States. Both parties appeal, contesting the amount of the award. Wijsmuller claims that the court below erred by improperly applying the relevant salvage criteria and by refusing to reopen the trial in order to admit new evidence. The United States argues that the imposition of the "equitable uplift" exceeded the district court's authority.

DISCUSSION

I

Unknown to the common law, the law of salvage occupies a unique position in the Anglo-American legal system. In Mason v. The Ship Blaireau, 6 U.S. (2 Cranch) 240, 2 L.Ed. 266 (1804), Chief Justice Marshall commented that when property on land exposed to grave peril...