Arnaud Girard v. M/Y Quality Time , 596 F. App'x 846 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10931
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-10010-KMM
ARNAUD GIRARD,
Plaintiff-Appellant,
versus
M/Y QUALITY TIME,
Official #1184408, HID # MDNC2013I405, her boats,
tackle, apparel, and furniture, engines and appurtenances,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 6, 2015)
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Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Arnaud Girard, a professional salvor, operates a salvage company out of Key
West, Florida. On December 26, 2012, the M/Y Quality Time ran aground off the
coast of Key West. Mr. Girard responded, and in a joint effort with the United
States Coast Guard, he salvaged the Quality Time. He subsequently filed an in
rem action against the vessel seeking a salvage award. Following a bench trial, the
district court sitting in admiralty awarded Mr. Girard $16,896.05 (12% of the
Quality Time’s post-casualty value) for his efforts. Mr. Girard argues that the
award was inadequate in light of the risk he undertook to salvage the vessel and the
skill with which he performed the recovery.
Mr. Girard does not quarrel with the district court’s factual findings. Rather,
he argues that the district court’s conclusions of law are inconsistent with its
factual findings, and that, based on the factual findings, the district court should
have calculated a higher award. Mr. Girard further argues that the district court
applied the incorrect law, and that in light of the public policy undergirding
salvage awards, that he should have been awarded 33% of the Quality Time’s post-
casualty value.
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Mr. Girard’s claims do not hold water. For the reasons that follow, we
affirm. 1
I
There is no precise formula for calculating salvage awards. Allseas Mar.,
S.A. v. M/V Mimosa, 812 F.2d 243, 246 (5th Cir. 1987). Rather, “[t]he calculation
of [an] award is specific to the facts of each case, and compensation is given as a
reward ‘for perilous services, voluntarily rendered, and as an inducement to
seamen and others to embark in such undertakings to save life and property.’”
Offshore Marine Towing, Inc. v. MR23, 412 F.3d 1254, 1257 (11th Cir. 2005)
(quoting The Blackwell, 77 U.S. (10 Wall.) 1, 14 (1869)). Courts calculate salvage
awards based on the well-established factors announced in The Blackwell. See
Offshore Marine Towing, 412 F.3d at 1257. The factors, which relate to the
salvor’s skill and the risk undertaken, are:
(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. (6.) The degree of danger from which the
property was rescued.
1
Mr. Girard filed an unopposed motion for leave to file a reply brief after the filing deadline.
The motion is granted, and we have considered his reply brief.
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Id. (quoting The Blackwall, 77 U.S. at 14).
We are loath to disturb a salvage award, and will do so only when the award
“is based on erroneous principles or a misapprehension of the facts or is so grossly
. . . inadequate as to be deemed an abuse of discretion.” Compania Galeana, S.A.
v. The Motor Vessel Caribbean Mara, 565 F.2d 358, 360 (5th Cir. 1978).2
A
Mr. Girard claims that the factual findings made by the district court are
inconsistent with its legal conclusions and that the inconsistency resulted in an
inadequate salvage award. We find no inconsistency and agree with the district
court’s finding that this was a low-level salvage. Mr Girard’s efforts, while
commendable and worthy of compensation, were limited to routine salvage
services typical of a professional salvor. These services included pumping or
dewatering the Quality Time, patching her hull, and towing her to the boatyard.
The seas were moderate, and the weather was relatively calm. And, the Coast
Guard—which arrived on scene prior to Mr. Girard and departed only after the
Quality Time had been stabilized—had already removed the passengers from the
Quality Time. The district court took into account the risks associated with the
nighttime dive to repair the Quality Time’s hull, as well as the fact that Mr. Girard
completed the salvage promptly and efficiently. The district court’s salvage award,
2
Under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we are
bound by Fifth Circuit decisions handed down prior to October 1, 1981.
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“although stated . . . in the form of a conclusion of law, is largely a matter of fact
and discretion, which . . . depends upon a consideration of all the circumstances of
each case.” The Connemara, 108 U.S. 352, 359 (1883). We find no errors or
inconsistencies between the district court’s findings and conclusions.
B
Mr. Girard also asserts that the district court erroneously applied the fourth
Blackwell factor. We disagree.
“We review the district court's conclusions of law de novo.” Venus Lines
Agency, Inc. v. CVG Int'l Am., Inc., 234 F.3d 1225, 1228 (11th Cir. 2000). In
evaluating the fourth Blackwell factor (the risk incurred by the salvors in securing
the property from peril), the district court concluded that Mr. Girard was not
entitled to a liberal award because the risks he faced were not out of the ordinary
for a typical salvor. The district court cited B.V. Bureau Wijsmuller v. United
States, 702 F.2d 333 (2d Cir. 1983), as support for this proposition.
In Wijsmuller, the Second Circuit stated that the fourth Blackwell factor
“should be considered in the light of the hazards which are normally encountered
by men who go to sea. It is risks out of the ordinary for men of that calling which
are recognized and liberally rewarded in salvage cases.” Id. at 340 (emphasis
added and quotation marks omitted). Mr. Girard argues that the phrase “men who
go to sea” means the ordinary person—i.e, not a professional salvor. He claims
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that because he took risks that an ordinary person would not have taken, he is
entitled to a liberal award. Mr. Girard misapprehends the phrase “men who go to
sea.” The phrase is modified in the second sentence by “men of that calling.”
Thus, where a professional salvor undertakes risks out of the ordinary for a
professional salvor, he may be liberally rewarded.
Here, the district court found that Mr. Girard did not face any risks out of the
ordinary for the typical professional salvor, and thus he was not entitled to a liberal
award. The district court did not err in its application of the fourth Blackwell
factor, as Mr. Girard claims. Rather, based on the facts and circumstances of this
case, the district court arrived at a reasonable salvage award.
C
Mr. Girard contends that based on public policy—i.e., in order to incentivize
salvors—the district court should have awarded him 33% of the Quality Time’s
post-casualty value. In support of his argument, Mr. Girard cites The Lamington,
86 F. 675 (2d Cir. 1898), and the survey of salvage award cases therein. See id. at
685-95. He calls our attention to 13 cases in which he claims the salvage award
was not less than 33% of the ship’s value and rarely below 50%. Mr. Girard
mischaracterizes The Lamington, and not surprisingly, cherry-picks instances that
support his position. Of the 118 cases surveyed by the Second Circuit over a
century ago in The Lamington, 82 (69.5%) resulted in awards of 50% or less (this
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can hardly be considered rare), and 43 (36.4%) resulted in awards of 25% or less.
We also note that 80 cases (67.8%) were decided before the Supreme Court’s
decision in The Blackwell.
In any event, “fixed percentages of value and comparisons to percentages
from previous awards should play no role in the salvage award.” Wijsmuller, 702
F.2d at 339. It is well settled that awards are based on the facts and circumstances
of each case. See The Connemara, 108 U.S. at 359. The district court applied the
Blackwell factors to the facts of this case to determine the salvage award.
Mr. Girard has failed to demonstrate that the district court abused its
discretion. We therefore affirm the district court’s salvage award.
II
Finally, Mr. Girard argues that the district court erred in not awarding pre-
judgment interest. “It is the general rule of this circuit to award pre-judgment
interest in admiralty cases.” Sunderland Marine Mut. Ins. Co. v. Weeks Marine
Const. Co., 338 F.3d 1276, 1280 (11th Cir. 2003). Although the Quality Time
asserts that the district court chose to deny pre-judgment interest because Mr.
Girard obtained less at trial than he sought, it does not cite to anything in the record
to support its assertion, and we have been unable to find any ruling by the district
court on this issue. Because the order in this case does not mention pre-judgment
interest, we remand to allow the district court to address the issue in the first
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instance. See St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d
1181, 1192 (11th Cir. 2009) (remanding for a calculation of pre-judgment interest
where, as here, the relevant findings said nothing about the issue).
III
The district court’s salvage award is affirmed. The case is remanded for the
district court to consider the matter of pre-judgment interest.
AFFIRMED IN PART, REMANDED IN PART.
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