             Case: 15-15803   Date Filed: 11/03/2016   Page: 1 of 8


                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-15803
                         ________________________

                     D.C. Docket No. 4:13-cv-10171-JEM



ARNAUD GIRARD,

                                                            Plaintiff – Appellant,

                                     versus

M/V “BLACKSHEEP,” her boats, tackle, apparel, and furniture, engines, and
appurtenances, In Rem,

                                                          Defendant – Appellee.

                         ________________________

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

                              (November 3, 2016)
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Before HULL and MARTIN, Circuit Judges, and WRIGHT, * District Judge.

MARTIN, Circuit Judge:

       Arnaud Girard is a marine salvor, who works to rescue ships in peril. In

December 2013, he undertook a rescue mission for a 125-foot yacht known as the

M/Y Blacksheep. Afterward, he filed this action in rem against the Blacksheep,

seeking a salvage award for services he provided to the yacht. After a two-day

bench trial, the District Court found that Mr. Girard failed to show that his services

were necessary to the rescue of the Blacksheep, and entered judgment against him.

Because a claim for a salvage award does not require such a showing, we reverse

and remand for proceedings consistent with this opinion.

                                              I.

       On December 28, 2013, the Blacksheep was under the command of Captain

Alan Wooldridge. The vessel was located a few hundred feet offshore near the

Galleon Marina in Key West, Florida. While testing the port engines’ controls,

Captain Wooldridge heard a “clunk.” Captain Wooldridge instructed the vessel’s

engineer to investigate. The engineer discovered that the port propeller shaft had

dislocated from the gear box coupling and the yacht was taking on water.




       *
        Honorable Susan Webber Wright, United States District Judge for the Eastern District
of Arkansas, sitting by designation.


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      Captain Wooldridge then made a radio distress call to the U.S. Coast Guard.

He said: “I’ve got an emergency here. I’m just in the front of the Galleon Marina.

My prop shaft’s come out. I’m anchored. Could someone give me some

assistance with some pumps please.” In response to Captain Wooldridge’s call, the

Coast Guard announced over the radio:

      Coast Guard received a report of a vessel BLACKSHEEP taking on
      water near Galleon Marina. All vessels are requested to keep a sharp
      lookout and assist if possible. The United States Coast Guard sector
      Key West Florida out. Break.

      Again, Mr. Girard is a professional maritime salvor and heard the call come

over the radio. He responded within four minutes. When Mr. Girard arrived at

the scene, Captain Wooldridge made clear that he wanted Mr. Girard’s help and

asked if Mr. Girard had a pump. At this point, there was about two feet of water

in the bilge (the lowest internal part of a ship). Mr. Girard first deployed his

high­capacity pump to dewater the bilge. Then, Mr. Girard, along with his co-

salvor, Eric Denhart, dove under the Blacksheep. They repositioned the propeller

shaft, bringing it closer to its proper location. Mr. Girard also installed a

temporary patch to limit the amount of water coming into the boat. The Coast

Guard assisted by placing a patch on the inside of the Blacksheep. Eventually,

the Blacksheep was towed to the dock by Towboat U.S. Captain Wooldridge

recorded the incident in his logbook, explaining that he had “coordinated safety

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procedures to prevent any sinking of [the] vessel.”

      Mr. Girard brought a claim seeking a salvage award for the marine salvage

operation. This type of action is an in rem action, meaning it is brought against the

ship and any recovery would necessarily be limited by the value of the ship. The

District Court held a two-day bench trial in December 2014 and ruled in favor of

the Blacksheep. This appeal timely followed.

                                          II.

      A salvage award is “the compensation allowed to persons by whose

voluntary assistance a ship at sea or her cargo or both have been saved in whole or

in part from impending sea peril.” The Sabine, 101 U.S. 384, 384, 25 L. Ed. 982,

982 (1879). In Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758

F.2d 1511 (11th Cir. 1985), this court stated that, in order to obtain a salvage

award, the salvor must prove three elements:

      (1) A maritime peril from which the ship or other property could not
      have been rescued without the salvor’s assistance.
      (2) A voluntary act by the salvor—that is, he must be under no official
      or legal duty to render the assistance.
      (3) Success in saving, or in helping to save at least part of the property
      at risk.

Id. at 1515. The first prong of Klein’s three-prong test requires two distinct

showings: first, that the vessel was in “maritime peril” (or “marine peril”) and,

second, that the vessel “could not have been rescued without the salvor’s

assistance.” Id. The District Court applied Klein. The court found that the
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Blacksheep was in “marine peril.” But, as to the second showing, the court found

that Mr. Girard failed to show “what would have happened to the Vessel had [he]

not arrived on-scene.” The court then found that “Plaintiff’s efforts were not

necessary to rescue the Vessel” and that “[t]he Vessel would not have submerged

or sustained additional damage without the assistance of Plaintiff.” Because Mr.

Girard failed to meet his burden under Klein by proving that the ship “could not

have been rescued without the salvor’s assistance,” the District Court found Mr.

Girard was not entitled to a salvage award.

      Mr. Girard argues that this second showing required under the first prong of

Klein—that the ship “could not have been rescued without the salvor’s

assistance”—is not a proper element of a salvage award claim. Rather, Mr. Girard

argues, a plaintiff satisfies the first element of a marine salvage claim by

establishing only “marine peril.” Under binding precedent, his argument prevails.

      The elements of a salvage award claim were articulated by the Supreme

Court over a century ago. See The Sabine, 101 U.S. at 384, 25 L. Ed. at 982. In

The Sabine, the Supreme Court held that “[t]hree elements are necessary to a valid

salvage claim: 1. A marine peril. 2. Service voluntarily rendered when not

required as an existing duty or from a special contract. 3. Success in whole or in

part, or that the service rendered contributed to such success.” Id. See also Legnos

v. M/V Olga Jacob, 498 F.2d 666, 669–71 (5th Cir. 1974) (citing and applying the

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The Sabine standard for a salvage award claim). 1 Neither The Sabine nor Legnos

requires a plaintiff to show that the vessel could not have been rescued without the

salvor’s assistance to satisfy the first prong. Rather, all a plaintiff must show to

establish the first element is that the ship was under a “marine peril.” As the

former Fifth Circuit explained in Legnos, it is a “mistaken notion that for salvors to

establish peril they must prove that their actions were necessary to eliminate or

alleviate such condition. The law of salvage makes no such demand.” Id. at 671.

Klein’s requirement that the ship “could not have been rescued without the salvor’s

assistance” is in clear conflict with this precedent.

       Klein’s “necessity” requirement in the first prong also undercuts the policy

interests that the salvage award is intended to further. The law of salvage is rooted

in a public policy to encourage mariners to come to the aid of a ship in distress.

See The Sabine, 101 U.S. at 384, 25 L. Ed. at 982; Mason v. Ship Blaireau, 6 U.S.

(2 Cranch) 240, 266 (1804); Int’l Aircraft Recovery, L.L.C. v. Unidentified,

Wrecked & Abandoned Aircraft, 218 F.3d 1255, 1261 (11th Cir. 2000).

Specifically, the law of salvage aims to induce “all to render aid in the face of

marine peril,” Legnos, 498 F.2d at 671 (emphasis added), and to do so “before it is

a do-or-die wager with high risks.” Miss. Valley Barge Line Co. v. Indian Towing

       1
        Under Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we are
bound by all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.


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Co., 232 F.2d 750, 755 (5th Cir. 1956) (emphasis added). A rule that limits

compensation to those who can prove that the ship “could not have been rescued

without the salvor’s assistance” is at odds with these principles. Legnos, 498 F.2d

at 671; see also Mason, 6 U.S. (2 Cranch) at 266 (describing the law of salvage as

a “liberal and enlarged” compensatory system).

       Because the added requirement in the first prong of the Klein test is

inconsistent with both Supreme Court and binding circuit precedent, it cannot

govern here.2 To satisfy the first element of a salvage award claim, the salvor must

show “marine peril,” but need not make the additional showing that the ship “could

not have been rescued without the salvor’s assistance.” Because the District Court

found that the Blacksheep was in “marine peril”—a finding we do not disturb—

Mr. Girard has established the first element of his salvage award claim.




       2
          “Under the well-established prior panel precedent rule of this Circuit, the holding of the
first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels
unless and until the first panel’s holding is overruled by the Court sitting en banc or by the
Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
         While the first prong of the Klein test conflicts with our prior panel precedent, the same
is not true of the second and third prongs of Klein’s test. They closely track the second and third
elements of a salvage award claim as set forth by the Supreme Court in The Sabine and by our
prior panel in Legnos. Compare Klein, 758 F.2d at 1515, with The Sabine, 101 U.S. at 384, 25
L. Ed. at 982, and Legnos, 498 F.2d at 669–71. The second and third prongs of the Klein test
thus remain good law.


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                                          III.

      Because the District Court found that Mr. Girard failed to satisfy the first

prong of the Klein test, the District Court ruled against him without reaching the

second or third prongs of the test. The second prong—that the salvor’s services

were rendered voluntarily—is not disputed. The third prong requires a showing

that the salvor succeeded “in saving, or in helping to save at least part of the

property at risk.” Klein, 758 F.2d at 1515. The District Court’s findings and some

facts from the record could support the conclusion that Mr. Girard’s actions

contributed to saving the Blacksheep. Mr. Girard deployed his high-capacity

dewatering pump; dove below the ship where he successfully pushed the propeller

shaft twelve inches closer to its intended position; and applied packing material to

prevent further flooding. But we will leave it to the sound judgment of the District

Court, in its role as the factfinder, to decide whether Mr. Girard contributed to

saving the Blacksheep and, if he did, the value of any salvage award.

      REVERSED AND REMANDED.




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