By Michael J. O’Brien
In the Gulf of Mexico, helicopters have replaced seagoing vessels as the primary mode of transporting workers from shore to their jobs on offshore platforms and rigs. It is black letter law that a seagoing vessel in peril that is rescued is subject to an award for salvage. Since helicopters have replaced vessels in the Gulf, the follow up question is whether a helicopter can be subject to a salvage award. This very issue was recently examined by Judge Nanette Jolivette-Brown of the Eastern District of Louisiana in Sunglory Maritime LTD, et. al. v. PHI, Inc., et. al., No. 15-896, 2016 WL 852476 (E.D. La. 3/4/16).
It is important to note that helicopters take off, land, and refuel offshore on a daily basis. However, the incident involved in Sunglory is quite different from the norm. Specifically, in March 2013, a helicopter owned and operated by PHI was traveling to an offshore platform over the Gulf of Mexico carrying two crew members and seven passengers. When the helicopter was approximately ten (10) miles from shore, the pilot detected an unusual vibration coming from the aircraft. As the flight continued, the vibrations grew in duration and strength. Unsure of the vibration, the pilot turned the helicopter around and headed back to shore. Approximately six minutes from land, the pilot decided the safest course of action was to land on an anchored vessel in the Port of Corpus Christi. Without calling first to request permission to land, the helicopter landed on the AEOLIAN HERITAGE without incident.
PHI’s mechanics were dispatched to examine the helicopter aboard the AEOLIAN HERITAGE, and they were unable to find any obvious reason for the helicopter’s vibration. As such, the helicopter was returned to shore aboard the vessel and offloaded. It was later determined that the tail rotor drive shaft was in need of repair. The pilot recorded the landing as an “emergency,” and PHI later admitted that the incident in question was an “emergency landing.” Thereafter the vessel and its owners filed a claim for an award of maritime “salvage” under the general maritime law and the 1989 Salvage Convention. PHI disputed the vessel’s entitlement to a salvage award and moved for summary judgment.
In her lengthy opinion, Judge Brown noted that the law of marine salvage is of ancient vintage. In contrast to the common law, which does not grant a volunteer who preserves or saves the property of another any right to an award, a salvor of imperiled property on navigable waters gains a right of compensation from the owner. 2 Thomas J. Schoenbaum, Admiralty and Maritime Law 16-1 (5th ed. 2015). Because of the particular dangers of sea travel, public policy has long been held to favor a legally-enforced award in this limited setting to promote commerce and encourage the preservation of valuable resources for the good of society. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 984 (5th Cir. 1998). An award of salvage is generally appropriate when property is successfully and voluntarily rescued from marine peril. The Sabine, 101 U.S. 384 (1880).
To succeed on a salvage claim, a salvor must prove three elements: (1) that the property faced marine peril; (2) voluntarily service was rendered when not required as an existing duty or from a special contract; and (3) the salvage attempt succeeded in whole or in part, or contributed to the success of the operation. U.S. v. EX-USS CABOT/EDEALO, 297 F.3d 378, 381 (5th Cir. 2002).
Citing prior jurisprudence that the issue of whether an aircraft recovered in navigable waters is properly the subject of a salvage award remains unsettled, PHI moved for summary judgment. Simply stated, PHI argued that a helicopter is not the kind of property that may be subject to a salvage award. In response, the vessel cited the broad definition of “salvageable property” in the 1989 Salvage Convention which provides: “property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.” Under this definition, it is clear that a helicopter, which is not permanently attached to the shoreline, would constitute salvable property.
When PHI disputed that the Salvage Convention was applicable to the exclusion of the general maritime law, the court quickly dismissed these claims. The District Judge noted the Salvage Convention was ratified by the U.S. Senate in 1991 and became part of U.S. law in 1996. Thus, the court found that PHI presented no reason or argument why the treaty should not be regarded as the supreme law of the land and the helicopter at issue was salvageable property.
Nevertheless, as there was a question as to the Salvage Convention’s applicability, the District Court conducted an in depth review as to whether the helicopter in question was also property subject to a salvage award under the general maritime law. Courts have held that to make a salvage award, there should be a nexus between the item salvaged and traditional maritime activities. PHI argued that its helicopter was not salvageable property under the general maritime law because it lacked a sufficient maritime nexus. To this end, PHI argued that the “bone dry, land based civilian helicopter” was the kind of non-vessel property that may not be the subject of a salvage claim.
The court disagreed citing prior jurisprudence that helicopters need not be a “vessel” to bear a sufficient maritime nexus to warrant a salvage award. Judge Brown also pointed out that the U.S. Supreme Court and the U.S. Fifth Circuit have each recognized that a helicopter that transports passengers to an offshore platform engages in a function traditionally performed by waterborne vessels; therefore, helicopters bear a sufficient nexus to traditional maritime activity such that admiralty jurisdiction may be invoked when accidents befall such helicopters. The court saw no reason (nor did PHI offer any evidence) why a helicopter that bears a significant relationship with traditional maritime activity would not “bear a strong maritime nexus.” Thus, the court could not agree with PHI that this helicopter could not be subject to a salvage award.
Ultimately, the Court denied PHI’s motion for summary judgment insofar as the issues of whether the helicopter actually faced a marine peril or whether the vessel’s salvaging service was “voluntary” were questions of fact that could not be resolved on summary judgment. However, it is critical to note that while the court ultimately deferred its final ruling, there can be no question that Judge Brown ruled that a helicopter is marine property subject to a salvage award.