FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 8, 2009

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH] 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 08-14925

 

D. C. Docket No. 08-20739-CV-PCH

BLUE WATER MARINE SERVICES, INC.,

a Florida corporation doing business

as TowboatU.S. South Dade,

Plaintiff-CounterDefendant-Appellant,

versus

M/Y NATALITA III,

a 100-foot Azimut S.R.L. motor

yacht, her engines, apparel and

appurtenances, in rem,

NATALITA III LIMITED,

Defendants-CounterClaimants-Appellees,

SAGICOR GENERAL INSURANCE

(COMPANY) LTD.,

in personam,

ALL UNDERWRITERS SUBSCRIBING 

TO COVER NOTE JY416008X, INCLUDING

SANTAM INSURANCE COMPANY LIMITED,

Defendants-Appellees.
_________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 8, 2009)

Before DUBINA, Chief Judge, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Blue Water Marine Services, Inc. (“Blue Water”) appeals the district court’s

order denying enforcement of Blue Water’s purported contract with the defendant,

Natalita III, and denying Blue Water’s claim for a pure salvage award. Blue Water

also appeals the district court’s closing of its case without addressing its claim

against Santam Insurance, Natalita III’s underwriter.

I. 

On March 19, 2008, the yacht Natalita III ran aground on a reef in Biscayne

National Park. The yacht’s captains radioed a local tow company for assistance. 

Upon overhearing the radio call, Blue Water dispatched one of its boats to assist

the yacht. After successfully removing the yacht to safe waters, Blue Water’s

captain asked a Natalita III captain to sign a form contract stating that Blue Water

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was entitled to a pure salvage award for the rescue. Natalita III’s captain signed

the contract. 

Natalita III’s owners later refused to pay Blue Water the pure salvage

award. Blue Water then sought to enforce the form contract provision in the

district court under admiralty jurisdiction. Following a bench trial, the district

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court sitting in equity found in favor of Natalita III. The district court found that

Blue Water and Natalita III reached an oral agreement on the cost of services

prior to Blue Water’s rescue effort. As a result of this oral agreement, Blue Water

could not recover a pure salvage award. In addition, the district court found that

even if Blue Water was entitled to seek an award for pure salvage, the post-rescue

form contract provision for pure salvage was unenforceable on a variety of

equitable grounds, including duress and violation of public policy. 

II.

The district court’s findings of fact must stand unless clearly erroneous, and

it is settled that the clearly erroneous standard of review applies in admiralty cases. 

McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6, 8 (1954). In reviewing

the district court’s findings of fact and conclusions of law, we note that “[n]o

greater scope of review is exercised by the appellate tribunals in admiralty cases

 Admiralty jurisdiction was proper under 28 U.S.C. § 1333. 1

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than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.” Id.

Thus, findings of fact only will be reversed if they are clearly erroneous. Id. The

district court’s interpretations of law or applications of law to particular facts are

subject to de novo review. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 501, 104 S. Ct. 1949, 1959 (1984). 

After reviewing the record, reading the parties’ briefs and having the benefit

of oral argument, we conclude that the district court’s findings of fact are not

clearly erroneous. 

III.

Blue Water first asserts that the district court erred by granting the

defendants’ motion to bifurcate the trial, which allowed Natalita III to present her

affirmative defenses before Blue Water presented its case in chief. Federal Rule

of Civil Procedure 42(b) specifically allows for the bifurcation of issues at trial. 

“For convenience, to avoid prejudice, or to expedite and economize, the court may

order a separate trial of one or more separate issues, claims, crossclaims,

counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). In Harrington v.

Cleburne County Board of Education, 251 F.3d 935, 938 (11th Cir. 2001), we

noted that “[Rule] 42(b) confers broad discretion on the district court in this area,

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permitting bifurcation merely ‘in furtherance of convenience.’” Thus, we

conclude that Blue Water’s procedural claims are without merit.2

Blue Water believes it is entitled to claim a pure salvage award on Natalita

III because a Natalita III captain agreed that Blue Water was so entitled by signing

a form contract provision providing for such an award after the rescue effort

concluded. A pure salvage award is more than a payment for services rendered; it

is “a reward given for perilous services, voluntarily rendered, and as an

inducement to seamen and others to embark in such undertakings to save life and

property.” The Blackwall, 77 U.S. (10 Wall.) 1, 14, 19 L. Ed. 870 (1869). There

are three elements to a pure salvage claim: marine peril; service voluntarily

rendered when not required by duty or contract; and success in whole or in part,

with the services rendered having contributed to such success. The Sabine, 101

U.S. 384, 384, 25 L. Ed. 982 (1879). 

When there is a contract to undertake a salvage service or to provide some

type of service to a distressed vessel, there is no “pure salvage.” See B.V. Bureau

Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983). Rather, if there is a

Blue Water claims that the district court did not give it the opportunity to be heard on the 2

issue of bifurcation. The record shows that after the defendants filed their motion to bifurcate, the

district court held a hearing where it considered Blue Water’s memorandum in opposition to

bifurcation, in addition to hearing oral arguments on the issue of bifurcation. Thus, we conclude 

that this argument similarly is without merit.

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contract between the parties, then the services were rendered pursuant to the

contract, not voluntarily. Flagship Marine Serv. v. Belcher Towing Co., 966 F.2d

602 (11th Cir. 1992). “The fact that a shipowner requests a salvage service and

that the salvors in response furnish it, standing alone, [however] does not create an

implied contract so as to defeat a salvage claim.” Fort Myers Shell & Dredging

Co. v. Barge NBC 512, 404 F.2d 137, 139 (5th Cir. 1968). 

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Blue Water argues that the district court erred in finding a pre-existing oral

contract between Blue Water and Natalita III because there was insufficient

evidence to support such a finding. The district court found that when those

aboard the yacht inquired about the cost of Blue Water’s services, Blue Water

offered to provide its services at a lower hourly rate than one its competitors had

offered, and those on the yacht accepted that hourly rate. The district court

concluded that Blue Water’s services were rendered pursuant to an oral agreement,

thus defeating a claim for pure salvage. The district court relied on this court’s

decision in Flagship Marine Services, in which a marine service company saved a

tugboat from sinking and then brought a claim for pure salvage, which the district

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh 3

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before

October 1, 1981.

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court granted. See Flagship Marine Services, 966 F.2d at 603. This court

reversed and remanded, holding that the verbal exchange between the captains of

the tugboat and marine service company created a valid oral agreement that barred

the marine service company from recovering an award on a pure salvage basis

because the services were not voluntarily rendered. Id. at 605–06. This court

stated:

Under the factual findings made by the district court, and in light of the

evidence found in the record, we agree that there was no contract to pay a

given sum for the services . . . rendered; nonetheless, we cannot agree with

the district court’s conclusion that the services . . . rendered were voluntary

salvage services. 

Clearly, [the marine services company] had no initial duty to come to

[the tugboat]’s assistance. Yet, when [the company] arrived on the scene,

the exchange between [the boats’ respective captains] created a binding

engagement in which [the tugboat] undertook to pay [the marine services

company] for its services, whether or not those services proved successful.

Id. at 605. 

Here, the district court found that there was an actual oral contract between

Blue Water and Natalita III before the services began. Therefore, Blue Water was

not entitled to a pure salvage award for the services it provided after it had an

obligation to perform for Natalita III. (R. 14 at 22.) Considering the factual

findings of the district court and the evidence in the record, this court agrees that

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there was a contract to pay a given sum for the services Blue Water rendered. 

Furthermore, even if there was not a legal contract between the parties, at the very

least there was an oral agreement that rendered Blue Water’s services not

voluntary. See Flagship Marine Services, 966 F.2d at 605 (holding that the verbal

exchange between the captains of a tugboat and marine service company created a

valid oral agreement that barred the marine service company from recovering an

award on a pure salvage basis because the services were not voluntarily rendered). 

The district court found in the alternative that the written contract was

unenforceable because it was created under duress. The seminal case for issues of

maritime duress is The Elfrida, 172 U.S. 186, 19 S. Ct. 146 (1898). In The

Elfrida, the Supreme Court indicated that a salvage contract will be set aside if it

was “corruptly entered into, or made under fraudulent representations, a clear

mistake or suppression of important facts, in immediate danger to the ship, or

under other circumstances amounting to compulsion, or when their enforcement

would be contrary to equity and good conscience.” The Elfrida, 172 U.S. at 192,

19 S. Ct. at 148. The district court concluded that Natalita III had no reasonable

choice other than to sign the contract. The court found that the following facts

created circumstances amounting to compulsion:

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(1) Prior to the rescue, Blue Water did not discuss with or disclose to

Natalita III’s captains that it intended to treat the rescue as a pure salvage

situation and that it would seek compensation under a pure salvage method;

(2) Blue Water had adequate time under the circumstances to provide

Natalita III the salvage contract prior to undertaking the salvage, and Blue

Water should have provided the written form contract after Natalita III’s

captains asked about paperwork and the method of payment prior to their

assent to the rescue;

(3) Blue Water gave Natalita III’s captain the option of either immediately

signing the form contract or being abandoned late in the afternoon in an area

where reefs continued to carry a peril and when the damage to the yacht was

unknown;

(4) Blue Water represented to Natalita III that another tow and salvage

company was incapable of performing the salvage job at hand. 

The district court also found that the written contract was unenforceable

because Blue Water violated public policy by violating its permit to operate. Blue

Water operates its commercial towing and salvage assistance business within

Biscayne National Park pursuant to a permit called a Commercial Use

Authorization. The permit provides that Blue Water may provide assistance to

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disabled vessels while serving and protecting park resources. The district court

found that Blue Water violated the terms of its permit because: 

A signed acknowledgment of services and charges from the visitor [is]

required prior to being performed. The services and intent of this provision

is to eliminate and prevent dishonest and misleading business practices,

particularly the action of “bait and switch,” informing the customer of one

price and service before the job and then billing the customer for much more

than the quoted price. A violation of these standards will be considered to

be a violation of the terms of the permit.

(R. 14 at 15.)

The district court found these policy considerations especially compelling

given that Blue Water’s claim is in equity, and the Supreme Court has made clear

that it is appropriate to set aside a salvage contract if it was, “corruptly entered

into, or made under fraudulent representations, a clear mistake or suppression of

important facts, in immediate danger to the ship, or under other circumstances

amounting to compulsion, or when their enforcement would be contrary to equity

and good conscience.” The Elfrida, 172 U.S. at 192, 19 S. Ct. 148. Here, the

district court found specific conduct on the part of Blue Water that it considered to

be “contrary to equity and good conscience.” Nothing in the record convinces this

court that the district court’s findings were clearly erroneous. We conclude

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therefore that the district court committed no reversible error in deciding not to

enforce the contract. 

In addition to its claim against Natalita III, Blue Water brought a claim

against Santam Insurance, Natalita III’s underwriter. Santam filed a Motion to

Quash Service and Dismiss the Amended Complaint in the district court. The

district court did not rule on the motion and did not address this separate claim

before closing the case after the trial. Santam argues that in order to recover

against Santam, Blue Water must first obtain a judgment against Santam’s insured, 

Natalita III. Under the law of this circuit, however, Blue Water may assert an

independent cause of action grounded upon the benefit accruing directly to Santam

by virtue of Blue Water’s salvage efforts. See Cresci v. Billfisher, 874 F.2d 1550,

1551 (11th Cir. 1989) (holding that plaintiff’s claim against insurer for salvage is

not a claim under the insurance policy, but rather an independent cause of action

grounded upon the benefit accruing directly to the insurer by virtue of plaintiff’s

salvage efforts). Because Blue Water may have a viable claim against Santam

under a pecuniary benefit theory, we REMAND Blue Water’s claim against

Santam for further proceedings by the district court. 

AFFIRMED and REMANDED.

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