                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                    MARCH 11, 2008
                                                  THOMAS K. KAHN
                            No. 07-13237
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 06-61099-CV-JEM

CAPE ANN TOWING,

                                                  Plaintiff-Appellant,

                                  versus

M/Y "UNIVERSAL LADY",
in rem,
BP ENTERPRISES OF FLORIDA, LLC,


                                                  Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (March 11, 2008)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
       Cape Ann Towing sued Motor Yacht Universal Lady (“M/Y Universal

Lady”) in rem claiming it was entitled to a salvage award in the amount of

$487,500 for recovery and towing services provided to M/Y Universal Lady.1

Following a non-jury trial, the district court found that Cape Ann Towing had not

established the requisite existence of a maritime peril to M/Y Universal Lady

necessary to a salvage award and thereby concluded that Cape Ann Towing was

not entitled to a salvage award. Instead, the district court entered a final judgment

awarding compensation to Cape Ann Towing in the amount of $2706.37 on the

basis of quantum meruit for marine towing services.

       In order to establish a claim for a salvage award, a potential salvor must

demonstrate (1) the existence of a maritime peril from which the property could

not have been saved without the salvor’s assistance; (2) a voluntary act on the part

of the salvor; and (3) the salvor’s success in saving the property.2 Klein v.

Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th


       1
          Salvage awards have been awarded as a matter of public policy to encourage seamen to
render aid in emergency situations and are not limited to quantum meruit compensation but
rather take into consideration several factors first articulated by the Supreme Court in The
Blackwall, 77 U.S. 1, 14 (1869), including the value of the property saved, the time and skill of
the rescuers and degree of danger involved.
       2
        At trial, the parties did not dispute that the actions of Cape Ann Towing were voluntary
and successful, but rather only disagreed whether M/Y Universal Lady was subject to a maritime
peril.

                                                2
Cir. 1985); see also Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d

137, 139 (5th Cir. 1968) 3 (explaining that the maritime peril need not be imminent

but rather reasonably apprehended).

       On appeal, Cape Ann Towing argues that the district court erred in its

determination that the M/Y Universal Lady was not in a situation of reasonable

apprehension of maritime peril at the time Cape Ann Towing rendered its services.

Additionally, Cape Ann Towing argues that the district court erred in calculating

the compensation owed to Cape Ann Towing based on the standard hourly rate for

marine towing rather than on the per foot of vessel charge which is customary in a

salvage award.

       We are not permitted to set aside the judgment of a trial court, sitting

without a jury in an admiralty case, unless it is clearly erroneous. McAllister v.

United States, 348 U.S. 19, 20 (1954); Harbor Tug & Barge, Inc. v. Belcher

Towing Co., 733 F.2d 823, 825 (11th Cir. 1984). The district court’s findings of

fact are also reviewed for clear error. See Flagship Marine Servs., Inc. v. Belcher

Towing Co., 966 F.2d 602, 604 (11th Cir. 1992), reinstated by 23 F.3d 341 (11th

Cir. 1994).



       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.

                                               3
      Upon review of the district court’s detailed factual findings of the

circumstances under which Cape Ann Towing rendered services to M/Y Universal

Lady, we find that the district court did not clearly err in its determination that the

M/Y Universal Lady was not in a situation where there was a reasonable

apprehension of maritime peril, thereby precluding Cape Ann Towing from

entitlement to a salvage award. Notwithstanding Cape Ann Towing’s assertions

that the weather was still perilous and M/Y Universal Lady was positioned next to

and above broken concrete pilings, upon review of the evidence presented at the

non-jury trial, the district court found that (1) the weather had dramatically

improved from the earlier hurricane conditions; (2) the M/Y Universal Lady was

located in a marina, afloat, and secured by a rope to another boat, and (3) Cape

Ann Towing had presented no credible evidence that the concrete pilings had

damaged or posed further risk of damage to M/Y Universal Lady’s hull.

      The district court’s factual findings cannot be reversed unless they are

clearly erroneous such that “although there is evidence to support [them], the

reviewing court on the entire evidence is left with a definite and firm conviction

that a mistake has been committed.” McAllister, 348 U.S. at 20. We do not find

any such mistake here. While we recognize that there were strong wind conditions

at the time Cape Ann Towing came upon the M/Y Universal Lady, the evidence



                                            4
presented also showed that the center of the hurricane had already passed through

the area and was moving to the northeast. Thus, it was not clearly erroneous for

the district court to conclude that the weather conditions did not support a

reasonable apprehension of maritime peril where the adverse weather conditions

had begun to dissipate and would continue to do so as the hurricane moved on its

northeastern track. Furthermore, although M/Y Universal Lady was next to several

broken concrete pilings, the testimonial evidence and photographs demonstrate that

she was afloat in the marina, secured by rope to another yacht and without any

apparent damage that would have put her at risk of sinking. Given these

circumstances, coupled with the improving weather conditions, we cannot state

that the district court clearly erred in concluding that the broken concrete pilings

did not pose a reasonable apprehension of maritime peril to M/Y Universal Lady.4

       Additionally, we find no merit to Cape Ann Towing’s argument that the

district court should have awarded compensation for the rendered services on a per

foot of vessel charge typically used in salvage situations as the district court

concluded that Cape Ann Towing had not established that it acted as a salvor to


       4
         We also note that unlike other maritime salvage cases where courts have found the
presence of a maritime peril, M/Y Universal Lady had not been driven aground, was not on fire,
was not leaking with the possibility of sinking, nor was she at the mercy of the sea due to a
collision or loss of power. See Fine v. Rockwood, 895 F. Supp 306, 309 (S.D. Fla. 1995) (listing
numerous cases where courts historically have found the existence of a maritime peril for
purposes of a salvage award).

                                               5
M/Y Universal Lady.

     AFFIRMED.




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