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Ruling strikes down tow captain's claim

Appeals court says plaintiff faced no real danger securing boat that broke loose in Florida hurricane


A federal appeals court has upheld a lower court ruling denying a $487,500 award to a tow captain who says he and his crew saved a 75-foot Azimut after the $2.2 million motoryacht broke loose from its Fort Lauderdale, Fla., dock during Hurricane Wilma.

The Miami appellate judges saw no real danger or imminent peril in what the salvors did, so they agreed with the district court that it was just a tow job. The award to Cape Ann Towing: $2,706.37. It wasn’t exactly what Cape Ann’s Capt. Courtney Day was expecting. “I still can’t believe it,” he says.

Universal Lady, a 2002 Azimut that goes by the name Lucky Lady now, broke loose from a dock at the Marina Marriott near the 17th Street Causeway Bridge and blew across the Intracoastal Waterway in hurricane-force winds the morning of Oct. 24, 2005. The windblown juggernaut plowed into the Hyatt Regency Pier 66 Marina, where it struck a megayacht on A Dock and knocked down a concrete T-head before wedging between the yachts Daydream and Katina on B Dock, according to the complaint that Howard Fink, attorney for Cape Ann Towing of Fort Lauderdale, filed in U.S. District Court in Miami.

Later that afternoon, Cape Ann towboat Capt. Kelly Esser set out to survey boat damage on the ICW, but he thought better of it because of the 50-knot winds. He turned around and headed back up the 15th Street Canal to wait for the wind to die down, but as he was motoring back he met a police officer who told him that Universal Lady had broken loose about a half-hour earlier. It had drifted out of the canal and into the ICW, dragging a piling with it.

Day, Esser’s boss, gave his OK for Esser to go out and look for it. He found it a quarter-mile across the water in the neighboring marina. Though the worst of the hurricane already had blown through, the weather was “awful,” says Day. “It was blowing pretty good — I figured at least 40 knots,” he says. Day says he later found out from weather records it was blowing 51 knots.

He says he and Esser assessed that Universal Lady’s stern was dangerously close to some broken concrete pilings. He was worried that, in the wind and on a falling tide, the yacht — which he describes as “rolling around” in the wind on B Dock — would drift over submerged pilings and be holed, or pound against Katina and cause more damage to itself and the other yacht.

“We didn’t know if there were pilings under it or not,” Day says. “We thought it would be a good thing if [Universal Lady] was not there when the tide went out.”

Esser had contacted the yacht’s captain, Capt. Francis “Sam” Paige, who was at home digging out from Wilma, and he told Esser to “do what was necessary to rescue the yacht,” according to Cape Ann’s complaint. So using two twin-diesel towboats, Esser and Day eased Universal Lady away from Katina and Daydream and towed it back across the ICW to its dock, where Paige was waiting.

Day says he thought Universal Lady was in peril, that conditions still were dangerous when he towed it, and that his crew did a masterful job of pulling the Azimut away from the other boats without doing any more damage. So he asked the court for a salvage fee under maritime law instead of just a towing fee. He asked for $487,500 — about a quarter of the vessel’s prehurricane value — which wouldn’t be out of line if Day had risked his two $180,000 towboats in dangerous conditions to save Universal Lady from sinking or suffering devastating damage. (Her superstructure and topsides already had suffered structural damage, and the interior was rain-soaked. But the hull wasn’t holed, and the engines were intact, the district judge says in his opinion.)

Neither the district nor appeals court judges bought Day’s assessment of the situation. The judges say weather conditions weren’t that dangerous. Universal Lady wasn’t in imminent peril. And it took Day and his crew only 35 minutes to take Universal Lady in tow and get it back to the dock. It was just a tow job, the judges say.

Miami District Judge Jose E. Martinez says weather conditions had “dramatically improved” by the time the tow operation got under way. “When Cape Ann arrived on the scene, the [photo] evidence shows that the weather had calmed, [and] unidentified individuals were standing aboard the Universal Lady and the Katina, exhibiting no concern whatsoever,” he writes.

Alfred Geraci, manager of Scutti Sark, the yacht Universal Lady smashed into as she blew into the marina, says by the time the towboats arrived, Universal Lady was tied up to Katina and “secured in that position” with fenders between them. Another captain, John Drugach on Katina, testified that Universal Lady was tied up to both his yacht and the dock, with fenders deployed between the two boats.

And, “contrary to his stated concerns about the Universal Lady’s bottom being ‘holed’ and taking on water, Capt. Day did not feel it was necessary to deploy either one of the pumps on board the Universal Lady as a precaution against this possible occurrence,” Martinez writes. “Capt. Day admitted that he saw no evidence of the vessel having taken on any water below the waterline, and he did not know whether the vessel had actually sustained any physical damage from any of these cutoff pilings. … A later inspection of the vessel would reveal that she did not sustain any damage from the pilings.”

The judge noted, too, that Esser “instead of taking action to save the Universal Lady … upon his arrival chose to document the scene first by not only photographing the vessel from different angles but then also taking 13 minutes of time to photograph other vessels and areas around Pier 66.”

Martinez says Universal Lady’s “rescue” did not approach the threshold set in other cases for maritime peril: a boat driven aground on rocks, shoals or reefs; a vessel at the mercy of the sea and winds after a collision or because of engine failure; a boat on fire and in danger of exploding; a vessel in danger of sinking, or one stranded on a beach where it is pounded by waves.

“The court finds that unlike these cases, the situation in this case is not one where ‘destruction appeared imminent or inevitable,’ ” the judge writes.

“The bottom line is the judge said there was no peril and if there is no peril, then there is no salvage,” says John D. Kallen, attorney for Universal Lady and its owner at the time, BP Enterprises of Florida LLC. No one disputes the value of what salvors or towboat operators do in cases like this, but outcomes usually are fairer to both parties if the value of the service performed is negotiated out of court instead of litigated, Kallen says. The two sides did negotiate, but failed to settle. “When you have to go to trial, you take a risk,” he says.

Day knows that as well as anyone. “If I knew [$2,706.37] was what I was going to get from it, I’d just have stayed at the dock,” he says.

This article originally appeared in the July 2008 issue.



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