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VI. Popular Salvage "Myths & Misconceptions"

A number of other issues frequently arise in the context of salvage of pleasure boats which are misunderstood by both sides. These include questions of whether the vessel owner must affirmatively assent to salvage of his vessel, whether the salvor may retain the vessel until paid and whether the salvor becomes the owner of an "abandoned" vessel.

A frequent complaint heard by salvors from both vessel owners and their insurers is that the salvor did not obtain permission prior to beginning salvage operations and thus became a trespasser or officious inter-meddler. There is no question but that salvage services cannot be thrust upon an unwilling vessel master or owner who refuses them. However, it is not necessary that the vessel master or owner affirmatively agree to the rendering of salvage services if, under the circumstances, a prudent man would have accepted. Thus, it will be a question of fact as to whether the vessel master or owner took affirmative steps to decline salvage services or implicitly agreed to them. When a vessel is exposed to a marine peril and no one is aboard to refuse or accept the salvage services (whether it is derelict, abandoned or has simply been temporarily left), it is not necessary for the salvor to attempt to locate the owner or to obtain permission prior to undertaking salvage operations. Under such circumstances, the salvor is not a trespasser but may proceed to assist the vessel and make a claim for a salvage award.

With regard to the salvor's right to retain possession of the vessel, the answer is less clear. The salvor who has earned the right to a salvage award through successful, voluntary salvage services to a vessel in peril has a high-priority possessory, preferred maritime lien on the vessel. A salvor in possession of a vessel is not bound to surrender it on demand to the owner until reasonable security has been provided for his claim. On the other hand, the salvor must move with all deliberate speed to either arrange for the posting of security or bring an action in rem against the vessel to foreclose his lien. However, it is improper for the salvor to deny the owner or his agents access to his vessel or property to inspect or preserve it. Thus, the general rule is that the salvor may retain possession of a vessel until either the owner posts adequate security or it is established that he will not. The salvor must, in the former case, release the vessel to the owner or, in the latter case, turn the vessel over to the U.S. Marshal and proceed to foreclose his lien. When the salvor is not in possession of the vessel, such as when he tows a vessel with its crew still aboard off a strand and it then can proceed on its own, there is little that the salvor can do when the vessel throws off the towline and departs. The salvor must rely on his lien and seek enforcement by an action against the vessel or its owner. The question of ownership of "abandoned" vessels is a thorny one which is much given to both litigation and misunderstanding. Indeed, even the concept of what constitutes an "abandoned" vessel is confusing to many because the law uses the term "abandoned" variously for different purposes. One of the most popular myths associated with salvage is that a derelict vessel found adrift or abandoned becomes the property of the finder.

Technically, an "abandoned" vessel, more properly called by the proper nautical term "derelict", is one which was left by its crew without intention to return and without hope of recovery. Such a vessel may also be properly called a wreck. Previously, whether or not a vessel had been "abandoned" and becomes a derelict was extremely significant because the customary award in such cases was a moiety (half) of the vessel's value. However, that practice has long since been abandoned. Today, such circumstances affect the salvage award only in the degree of peril from which the vessel was saved.

Even when a vessel is "abandoned" and left without intention to return or hope of recovery, the vessel remains the property of her owner absent some affirmative act by the owner which clearly and convincingly establishes a positive intent on the part of the owner to part with ownership. The salvor who finds such a vessel obtains a possessory lien on the vessel but not ownership. The salvor must care for the vessel and make reasonable efforts to identify and locate the owner. The salvor may, of course, file an in rem action to foreclose his salvage lien and, if the owner fails to appear or make suitable arrangements to pay the salvage award, the salvor may bid his judgment at the marshal's sale and obtain clear title to the vessel.

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