U.S. v. Ex-Uss Cabot/Dedalo, 00-41358.

• Decision Date: 01 July 2002
• Docket Number: No. 00-41358.,00-41358.
• Citation: 297 F.3d 378
• Parties: UNITED STATES of America; et al., Plaintiffs, United States of America, Plaintiff-Appellee, v. EX-USS CABOT/DEDALO, etc., Defendant, Marine Salvage & Services, Inc., Intervenor Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.3d 378

UNITED STATES of America; et al., Plaintiffs United States of America, Plaintiff-Appellee, v. EX-USS CABOT/DEDALO, etc., Defendant Marine Salvage & Services, Inc., Intervenor Plaintiff-Appellant.

No. 00-41358.

United States Court of Appeals, Fifth Circuit.

July 1, 2002.

Peter Glenn Myer (argued), U.S. Dept. of Justice, Torts Branch Civil Div., Washington, DC, for Plaintiff-Appellee.

T. Mark Blakemore (argued), Rentfro, Faulk & Blakemore, Brownsville, TX, for Marine Salvage & Services Inc.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, WIENER, and PARKER, Circuit Judges.

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 allided¹ 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 U.S.C. § 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 Center² $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 of $20,908.00.

The following year, Marine Salvage and others sued the CABOT in 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 were dismissed.

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 CABOT. 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.

II. ANALYSIS

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...