Markakis v. S/S VOLENDAM, 79 Civ. 0945.

• Decision Date: 19 February 1980
• Docket Number: No. 79 Civ. 0945.,79 Civ. 0945.
• Parties: John E. MARKAKIS, Plaintiff, v. S/S VOLENDAM (ex S/S Monarch Sun) and S/S Veendam (ex Monarch Star), Defendants.
• Court: U.S. District Court — Southern District of New York

486 F. Supp. 1103

1980 AMC 915

John E. MARKAKIS, Plaintiff, v. S/S VOLENDAM (ex S/S Monarch Sun) and S/S Veendam (ex Monarch Star), Defendants.

No. 79 Civ. 0945.

United States District Court, S. D. New York.

February 19, 1980.

Herbert Lebovici, New York City, for plaintiff.

Burlingham, Underwood & Lord, New York City, for defendants; William M. Kimball, Richard L. Dutton, New York City, of counsel.

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

EDWARD WEINFELD, District Judge.

Plaintiff, master of the vessel S.S. Monarch Sun (the "Sun") commenced this suit on behalf of himself and the crew members of the Sun, to recover a salvage award for services allegedly rendered to the S.S. Monarch Star (the "Star") between January 10, 1977 and January 11, 1977.¹ At the time of the alleged salvage service, the Sun and the Star were both Panamanian flag passenger cruise vessels, each weighing about 15,000 gross tons. Both were engaged in passenger cruise voyages from Miami, Florida, to various points in the Caribbean Sea, and return. Both vessels were owned by Monarch Cruise Lines, N.V., and operated by the same agent, Technical Marine Planning ("TMP") of Miami, Florida.

The basic material facts are not seriously disputed. On January 10, 1977, the Star, which was carrying 368 passengers and a crew of an almost equal number, sustained an engine failure while sailing off the northern coast of Cuba. Her deck log indicates that at 14:35 hours on that day, she was "rendered powerless due to engine difficulties and blackout." The main engine was "completely stopped," although the emergency generator, which supplied power for lights and for the radio, was still in operation. Almost eight hours later, at 23:30, while the ship was still "lying stopped in the Old Bahama Channel," north of Cuba, its captain reported that the emergency generator had also failed. Thus, the ship was left without power or lights, and with only batteries to operate its radio. According to the ship's radio log, the emergency generator remained inoperative until January 11 at 9:21 hours.² Throughout this time, the Star was having difficulty communicating with the head office in Miami.

During the aforementioned period, the Sun was enroute from Florida to Puerto Rico. At 21:15 hours on January 10, or almost seven hours after the Star's initial engine failure, TMP, the agent for the owners of both vessels, radio-telephoned the master of the Sun, the plaintiff Markakis, that the Star was disabled and instructed him to change course, head toward, and render assistance to the Star. The Sun thereupon altered course and headed toward the northern coast of Cuba, where the Star lay disabled off the Cuban coast at various distances estimated from between twelve to fifteen miles. The ships rendezvoused on January 11 at 11:00 hours. The two captains agreed on procedures for transferring the passengers, some of the crew, baggage, and provisions of the crippled ship to the Sun. The transfer operation, carried out on tenders sent from the Sun and manned by the Sun's crew, began at noon on January 11, and was completed five hours later. One crewman was slightly injured in the operation when he fell off one of the tenders. After it was completed, Captain Avdelas and other members of his crew remained on board the star. Thereafter, at Captain Avdelas' request, TMP ordered Markakis to tow the Star farther away from the coast of Cuba and into the Old Bahama Channel, a deep and well-traveled shipping route. Avdelas himself acknowledged that the purpose of the tow was to bring the ship "to a safer place" until a tugboat sent from Miami by the Star's owners arrived and finished the job.

Towing of the Star commenced at 18:05 and lasted about four hours. The Sun, with passengers from both vessels aboard, towed the Star a distance of approximately 13 miles in a generally northeasterly direction and away from the coast of Cuba. At 22:00 the tow lines were released at the request of Captain Avdelas. The Sun resumed its journey, embarking at destinations on its own route as well as those that would have been on the Star's itinerary. The Star was left in the Old Bahama Channel to await its appointed rendezvous with the tug Curb, which arrived on January 12 at about 13:00 and which eventually towed the Star 324 miles back to Miami.

From the time that its engines first failed until the time of its rendezvous with the Curb, the Star remained close to the coast of Cuba and in constant motion. When its engines first stopped, the Star was located 12 miles off the coast. The Captain reported that he could see lights from the land and two Cuban gunboats were visible on the horizon. Immediately thereafter, the ship began to drift with the currents; first it was carried slightly south toward Cuba,³ and thereafter, on a steady line to the northwest along the Channel, running roughly parallel to the coast, although gradually moving away from it. During part of this time, the ship was in total blackness. The seas were calm. Although the prevailing winds at this time of the year were from the northeast and, if active, would have tended to push a drifting vessel toward the coast of Cuba, during this portion of the drift there was no wind. The vessel was directed solely by the force of the currents, which ran parallel to the coast of Cuba. By the time of its rendezvous with the Sun, the Star had drifted 34.4 miles northwest from the point of its breakdown; when the Sun began to tow the Star it was then 23.3 miles off the coast of Cuba. It was towed 13.8 miles directly east, which brought it six more miles away from the coast. After the Sun had released its tow ropes, the wind picked up from the east, carrying the Star across the water currents and directly toward the Cuban coast. By the time of the arrival of the Curb, on January 12 at 13:00 hours, the Star had drifted 23 miles back toward Cuba and was only 17 miles from its coast. Although Captain Avdelas vehemently contended that the ship was in no danger, in that the water current flowing parallel to the coast was stronger than the wind blowing toward it, he did admit that a "very stormy" east wind could have carried the ship all the way to the coast. At the point toward which the Star was drifting, the shore is rocky and lined with reefs; there is no shallow water in which to anchor. The captain also admitted that when he asked the Sun to tow him away from the coast he was "apprehensive about an easterly wind." Indeed, by the time the tug Curb had arrived, the Star reported the weather as "Fresh breeze, rough sea." Captain Avdelas' fears were allayed, however, by the knowledge that the Sun would tow him to the middle of the Old Bahama Channel, that at least one other ship, the Stella Solaris, was available and ready to assist; that the Coast Guard cutter Dauntless was patrolling the vicinity; and that the tug Curb had been dispatched to complete the rescue.

In order to prevail upon a claim for a salvage award, the plaintiff must prove three essential elements: "1. A marine peril. 2. Service voluntarily rendered when not required as an existing duty or from a special contract. 3. Success in whole or in part, or that the service rendered contributed to such success."⁴ There is no dispute that the third element has been satisfied. The combined efforts of the Sun and the tugboat Curb eventually did bring success; the passengers, their baggage, and the ship's provisions were all successfully transferred to the Sun to complete the balance of the voyage. The Star safely reached Miami, where it was repaired.

However, the defendant disputes both of the other elements. It claims that the Star's predicament was not sufficiently perilous to warrant a salvage award, and that the actions of the plaintiff and the crew of the Sun in coming to the Star's assistance were involuntary, because they were taken at the direction and under the orders of the ship's owners. We find neither of these arguments persuasive and hold that plaintiff has sustained the claim for a salvage award.

A. Marine Peril

In determining whether there exists a marine peril sufficient to justify a salvage award, the Court must decide "not whether the peril is imminent, but rather whether it is `reasonably to be apprehended.'"<sup>5</sup> In order to prevail, the plaintiff need only establish that "`at the time the assistance was rendered, the ship had encountered any damage or misfortune which might expose her to destruction if the service were not rendered.'"⁶

A variety of services, many of which seem more mundane than daring, qualify for salvage awards. As one commentator has stated:

The prototypical act of salvage is rescuing a ship in peril at sea and towing her to a place of safety. . . . In deciding whether to make an award . . . courts look to the situation that existed at the time the ship was taken in tow: If she was not under command, unable to navigate or to reach port unaided, the service will be considered salvage even though the ship was not in imminent danger of destruction and even though the towage itself was calm and uneventful. . . . The act of salvage need not be so dramatic and need not even consist in rendering physical assistance: standing by or escorting a distressed ship in a position to give aid if it becomes necessary, giving information on the channel to follow . . . to avoid running aground, carrying a message as a result of which necessary aid and equipment are forthcoming have all qualified. So long as the ship is in peril, any voluntary act which contributes to her ultimate safety may rank as an act of salvage.⁷

The most frequent instances of salvage awards involve situations in which the salvor renders assistance to a vessel lodged in a sandbar or run aground on a reef. In such situations, the courts often justify the award by citing the possibility that storms could arise and further injure the stranded vessel, which is incapable of dislodging...