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Is this Salvage Fee Fair in Your Opinion?

Discussion in 'General Yachting Discussion' started by MBevins, Oct 16, 2012.

  1. MBevins

    MBevins Senior Member

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    Lawyer says America's Cup boat salvage claim is valid

    A San Francisco lawyer is defending Todd Tholke’s claim to a $200,000 salvage award after he discovered the French America's Cup World Series racing team's 45-foot catamaran adrift in the middle of the night and returned it to safe harbor.
    "I’m really trying to defend Todd’s reputation because it’s really taken a beating,” lawyer John Edgcomb told Soundings Trade Only. “I’m trying to give the perspective that he really does have a valid salvage claim so we can avoid terms like ‘hostage’ and ‘pirate.’ ”

    The racing cat, Energy, is now in two containers inside a warehouse leased by the America’s Cup Event Authority, where it has been since Friday night, Edgcomb said. The vessel was “arrested” on the evening of Oct. 7 as part of the legal dispute, which calls up a centuries-old maritime law regarding salvage at sea.

    Tholke spotted the AC45 catamaran on some rocks Sept. 30 near Treasure Island, a few miles from where the sailboat broke free from its San Francisco mooring as it awaited its next America’s Cup race.

    Tholke surprised the sailing community by filing a salvage claim Oct. 4 in U.S. District Court entitling him to an award — $200,000 plus procedural costs incurred.

    The lawsuit has drawn ire from the sailing community.

    “The exchanges I’ve had with my friends about it — and not only the French — they’re really not printable in any magazine,” San Francisco-based sailor and lawyer Jean-Yves Lendormy told Trade Only.

    Edgcomb says he has ignored several calls from the press seeking comment, but wanted an opportunity to give his client’s perspective on a “valid salvage claim.”

    “Todd was a volunteer — the vessel was in peril on the rocks and susceptible to wind and wave damage,” Edgcomb told Trade Only. “He was successful. He pulled the vessel off the rocks and pulled it into safe harbor. He has a valid claim, and that gave way to a valid lien. So we were entitled to arrest the vessel.”

    Edgcomb and Tholke agreed not to interfere with the America’s Cup World Series races that were occurring Oct. 4-7 in San Francisco to avoid bad publicity, Edgcomb said.

    On Oct. 7, about 9 p.m., a U.S. marshal served the arrest warrant for the sailboat “in a low-key manner,” Edgcomb said.

    “We didn’t do that to be mean,” Edgcomb said. “They were putting it into containers, and we thought they were going to ship them back to France, and if they did that we would have no legal recourse.”

    Edgcomb said he and Tholke agreed to let the containers be stored in a warehouse leased by the event authority, but will consider requesting “a more permanent security system” because the court has had no response from the vessel’s owner or insurance provider.
  2. luckylg

    luckylg New Member

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    Is the fee fair? That depends. The article lays out the conditions for there to be a salvage claim and those were clearly met:

    1. There must be a marine peril (a boat abandoned and adrift is, by definition, in a marine peril).
    2. There must be no pre-arranged contract for salvage (e.g., a membership with a towing company like Sea Tow or TowBoat US is a pre-arranged contract for some specific services including towage).
    3. There must be success in whole or in part. Limited details here but at least the hull appears to have been saved. (No success, no pay)

    In the US, after the determination that a salvage exists, the Blackwell standards are how the salvage award is determined:

    (1) the labor expended by the salvors in rendering the salvage service;
    (2) the promptitude, skill, and energy displayed in rendering the service
    and saving the property;
    (3) the value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed;
    (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and
    (6) the degree of danger from which the property was rescued.

    There are several aspects of this that require analysis but I think it fair to assume that this was not a professional salvor but a chance salvor, therefore there will be a lower salvage award. A professional who keeps specialized equipment and a 24/7 emergency watch will be entitled to higher awards than someone who chances upon a boat adrift.

    Another factor is the value of the vessel saved (3); in this case, no doubt, it's a very valuable vessel. Generally, the higher the value of the salved vessel the lower (as a percentage) the award. For example, a $30,000 fishing boat saved from total constructive loss, might incur a 30% (or more) salvage award or $9,000. Whereas, a $3 million dollar vessel might incur a 6% award or $180,000 for the exact same work. (E.g., if the value of the vessel were $7 million and the claim was a 3% claim that equates to $210,000)

    There is another factor at play here, and that's the public good that comes from having salvors rewarded for the dangerous work they do. While the danger in this case may be more or less than some I've been involved with (over 200 in ten years), the principle is the same. It is to the benefit of the public, vessel owner, and insurer that salvors take the risk of losing their own ship to save what can be saved from total constructive loss. If people don't take the risk, then losses from maritime casualties would be significantly higher, rates would escalate, pollution would foul the beaches, etc.

    Finally, arresting the vessel ensures that the owner and insurer show up to court proceedings. If the owner or underwriter post a bond with the court equal to the value of the claim the boat will be released. It's a guarantee that they don't leave the jurisdiction and ignore the claim. It's not done to be mean, it's simply a legal claim that must be satisfied.

    So, while I can't comment on the case at hand, I can say that I would not be surprised that the value is reasonable. The court (or mediation or arbitration as the case may be) will determine the final award. It may be higher or lower or the court may determine that no salvage exists.

    In closing, it's possible that a situation like this might have been treated differently by a chance salvor. One sailor doing another a favor. It happens, but there are two things to keep in mind. First, any salvage (including towing) involves substantial risk for the salvor and his vessel. Second, declining to pursue a salvage claim does not mean that the validity of a claim is in question.

    Hope this helps...
  3. maldwin

    maldwin Senior Member

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    Wether or not the salvage claim is valid, Tholke loses all claim to being a Yachtsman. Any Yachtsman should render assistance when he or she is able to do so, without expecting compensation beyond any damage or expense incurred.
    The only open question is wether we should refer to Mr Tholke as a rogue, a pirate, a "Marin d'eau douce", or something more epice. (spicy)
    Best,
    Maldwin
  4. PropBet

    PropBet Senior Member

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    It's a bull**** case of greed and politics which I can only hope that Tholke gets the same treatment when he's out at sea in dire need of assistance. As in a dead EPIRB, radio, and raft.

    Laying claim to salvage is one thing, which this is not. It's greed and tripe clogging an already taxed legal system.
  5. luckylg

    luckylg New Member

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    The obligation to render assistance is to persons, NOT to vessels.

    The claim is by these accounts legitimate and only the price remains to be negotiated.
  6. maldwin

    maldwin Senior Member

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    Tholke appears to have rendered assistance to the vessel, so your first point is moot. The courts will decide your second point, but Tholke is no Yachtsman.
    Best,
    Maldwin
  7. MBevins

    MBevins Senior Member

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    The first thing that came to mind was that at the very least he is capitilizing on opportunism. The French syndicate certainly had a lapse in judgement when they left the vessel on a mooring ball unattended in the first place. I wonder if they reneged at paying any type of recovery "reward" and that is what prompted this whole mess. Personally I would have paid him at recovery just to avoid the embarrassment of further press.
  8. ychtcptn

    ychtcptn Senior Member

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    1. Who says Tholke is a Yachtsman, maybe he is Joe blow, out in his bow rider and saved the boat.
    2. The boat was several miles from where it was tied up, boat was on the rocks.
    3. Obviously if the boat was on the rocks, and Tholke rescued it, there was some peril to Tholke.
    4. Why is Tholke being made out to be the bad man, in theory he probably save the French much more money than they are going to be paid out.
    5. If anything the French should be looking bad for letting their boat go adrift and then not offering anything to the Tholke.
    6. Pure and simple, no lives on the Cat were at stake and Tholke saved it, if it had been a commercial tower that saved it, I am sure the salvage reward would be a lot more.
    7. "The lawsuit has drawn ire from the sailing community." Now that statement really gave me a chuckle. They seem to think because they are sailboats that the rules do not apply to them.
    8 I bet the French were trying to get it shipped out ASAP to avoid all legal responsabilities.


    PS- Even if you have a Sea Tow or Tow BoatUS, and you are on the rocks they will put in for a salvage claim.
  9. Capt Ralph

    Capt Ralph Senior Member

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    SOFT is the magic word in soft groundings. Where there is NO peril to people, boat, equipment or ENVIRONMENT.

    It was salvage in removing boats from the grass beds in Key Biscayne or off the outer protected reefs years ago. I assume it's still the same..

    Nobody has commented here if those rocks were on protected property or park land. A good job should have resulted to less damage to the rocks than if left in place.

    Did he really drag the boat off the rocks or work (lift?) it off?
  10. MBevins

    MBevins Senior Member

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    A further report stated he was a live aboard moored in the bay. Therefore I highly doubt there was any 'lifting' it off rocks.
  11. T.T.

    T.T. Member

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    We motored past these moored cats before the race. On a calm day, these lightweight racers were bobbing like crazy on inflatable moorings.
  12. ttkrule

    ttkrule Member

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    What's with the criticisms of Tholke?

    He rendered a service of public utility which is clearly recognized as such. The party that lost the boat is dragging their feet about paying up and apparently intended to flee.

    It has never been so clear cut and unequivocal who's the hero and who is the villain; both legally and morally. Just my 2c.
  13. luckylg

    luckylg New Member

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    If my boat is in trouble, keep your yachtsman. I want a salvor. I want someone who has the equipment and experience to bring my boat to safety and to hell with the cost. That's what insurance is for. If the claim is for too much then the insurance company will fight it. If it's fair, they will pay it.

    Yachtsman. In an emergency, you can have them. I want a hardened salvor who has the gear, keeps it in top shape, arrives promptly, and knows how to save the ship. And, I'll be glad to pay them too. Worth every penny, nickle, dime and dollar.
  14. MBevins

    MBevins Senior Member

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    I would agree 100%. I once found myself on a bar and while waiting for the professionals 3 "Yachtsman" attempted to pull me off. ( I had time to kill as I was told the wait time would be 4 hours) Needless to say no Joy. In 4 hours the professional showed, 20 minutes later I was limping to a lift.
  15. maldwin

    maldwin Senior Member

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    Professionals are just as likely to be Yachtsmen as non pros, maybe more so. My view is that the correct thing to do is to render assistance and if one is offered a consideration so much the better, but if not the good deed pays for itself. Obviously a commercial towing service should be paid, but a good samaritan is just that until he sues and becomes a leech.
    Legally this man may have a case, and we shall see what the courts decide, but he is not helping the US' reputation for being litigious.
    Best,
    Maldwin
  16. ArcanisX

    ArcanisX Senior Member

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    A good Samaritan must by definition be above taking money. And ideally die by starvation, that would make him good saint material.
    As soon as he expects poor and suffering owners of multimillion yachts (who apparently couldn't care to moor it correctly) to pay him in legally established manner, he becomes a leech.
    You are so right...
  17. maldwin

    maldwin Senior Member

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    You are assuming facts not yet in evidence. We will have to agree to disagree about Tholke's character, and wait for the evidence to trickle in.
    Best,
    Maldwin
  18. ArcanisX

    ArcanisX Senior Member

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    I am assuming nothing but the obvious - the price of the yacht and the nature of ideal good samaritan according to your quote. And not even going to dig deeper in the matter of "assuming facts" which is fairly godawful form of denial, not to mention wrong.

    Noone's talking about character either. Character has very little to do with legality of the claim. Resorting to ad hominem is a fair sign of weak position.

    Besides, I agreed with you :)
  19. captainviv

    captainviv Member

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    lets assume .... the "yachty" in question did nothing and people knew about it - then they would say he was not worthy...... , but , now because he did "rescue" the vessel and wants compensation people are saying he is a ...... .
    if there was no-one on board and no-one asked for "his" help , then , i think he he deserves compensation . how much , is debatable
  20. ArcanisX

    ArcanisX Senior Member

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    Still, the validity of salvage claim and whether salvager is a douche are two fairly unrelated topics.

    And last time I checked, we tried our best to avoid the sort of the latter on these forums.