Opinion
CV-00-1245-ST.
April 4, 2001.
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, F.D.S. Marine, LLC ("FDS Marine"), brings this action against Shaver Transportation Co. ("Shaver"), Brix Maritime Towing, Inc., Brix Maritime Co., Marine Equipment Leasing Co., and Brix Rafting Sorting Co. dba Foss Maritime Co. ("Foss "). FDS Marine is an Oregon company engaged in the business of underwater diving, marine construction, and marine salvage. It seeks to recover for work performed between November 19 and December 19, 1999, to rescue Shaver's tugboat DESCHUTES which was stranded on the broken launch ways of Foss' yard on the Columbia River, Oregon.
The Second Amended Complaint alleges a maritime salvage claim against Shaver (First Claim for Relief), a quantum meruit claim against Shaver (Second Claim for Relief), and a breach of oral contract claim against Foss (Third Claim for Relief). Foss has filed counterclaims against FDS Marine for breach of contract, breach of implied warranties, negligence, fraud, and violation of the Oregon Unfair Trade Practices Act ("UTPA"). This court has federal question jurisdiction over FDS Marine's salvage claim under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.
After the filing of these motions, this court allowed the filing of a Third Amended Complaint. However, that amendment does not affect these motions because it realleges the claims at issue here.
This court has recommended dismissal of Foss' Fifth Counterclaim for violation of the UTPA.
Now before the court are Shaver's Motion for Summary Judgment of Dismissal on the Issue of Salvage (docket #16) and Motion for Summary Judgment of Dismissal on the Issue of Quantum Meruit (docket #31). For the reasons set forth below, those motions should be granted.
STANDARDS
Federal Rule of Civil Procedure ("FRCP") 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id at 1468.
FACTS
A review of the parties' facts, as well as the other materials submitted by the parties, including affidavits, reveals the following:
Shaver is a marine transportation company operating on the Willamette and Columbia rivers and is the owner and operator of a tugboat named DESCHUTES. Affidavit of Dennis Malloy ("Malloy Aff"), ¶ 2. In November 1999, the DESCHUTES was in need of various repairs that necessitated the vessel be hauled out of the water. Id. Pursuant to an agreement with Shaver, Foss hauled the DESCHUTES out of the water in order to conduct the needed repairs. Id, ¶ 3; Affidavit of Steve Branch ("Branch Aff"), ¶ 2.
Foss operates a shipyard on the Columbia River in Rainier, Oregon. Branch Aff, 6 1. At this facility, vessels are hauled out of the water by means of a marine railway system, referred to as "ways." The ways consist of several steel rails mounted on large timbers or pilings. The timbers are supported by cross-timbers mounted on pilings driven into the river bottom. To raise a vessel, Foss lowers a large cradle down the rails and into the water. Foss' employees then secure the vessel to the cradle and haul both out of the water with a powerful hydraulic winch. The vessel typically remains on the cradle above the high-water mark while repairs are performed.
On November 19, 1999, Foss finished the repairs on the DESCHUTES and prepared to launch the vessel. Id, ¶ 3. The cradle supporting the vessel, however, became stuck on the ways partway down the rails, and the vessel could not be launched. Affidavit of Roy Jordan ("Jordan Aff"), ¶ 3. Foss left the cradle there and contacted FDS Marine to inspect the ways. Id, ¶ 4.
FDS Marine has no permanent employees but is run by the two shareholders, Fred and Cherie Stambaugh, husband and wife. Deposition of Fred Stambaugh ("Stambaugh Depo"), pp. 4-5, attached as Exhibit ("Ex") A to Affidavit of James W. Talbot ("Talbot Aff"). FDS Marine (and its predecessors) has provided services for Foss in the past. Talbot Aff, Ex. B-1 (referring to Foss as "a 20 year client"). Fred Stambaugh ("Stambaugh") arrived at the Foss shipyard on November 19, 1999, and dove in the river to inspect the ways. Stambaugh Depo, p. 25. He determined that several of the rails and supporting timbers were in need of repairs. Id at 29-30. Stambaugh and Foss then agreed that FDS Marine would undertake the repair of the ways. Second Amended Complaint, ¶ 13.
Foss hauled the DESCHUTES above the high water line, where it remained until FDS Marine indicated that the ways were sufficiently repaired to launch the vessel. Jordan Aff, 66 4- 6. The DESCHUTES was successfully launched on December 12, 1999.
On February 18, 2000, FDS Marine submitted an invoice for $400,411.08 to Foss for its repair services. Talbot Aff, Ex B. After receiving the invoice, Foss investigated and determined that there were substantial inconsistencies with the billing. Id, Ex C. Within a few months, the ways failed again and Foss paid another company over $200,000.00 in repairs. Id, Ex D. Foss eventually paid FDS Marine $50,000.00, but refused to pay the rest of the invoice. Stambaugh Depo, p. 24. In response, FDS Marine filed suit for damages against both Foss and Shaver.
DISCUSSION
I. Motion for Summary Judgment on the Issue of Salvage
Shaver first seeks summary judgment against FDS Marine's First Claim for Relief for marine salvage. "The legal concept that a marine salvor is entitled to a reward for the saving of imperiled marine property has been a recognized part of admiralty law for more than 3,000 years." Andrew Anderson, Salvage and Recreational Vessels: Modern Concepts and Misconceptions, 6 U.S.F. MAR. L.J. 203, 206 (Fall 1993). The policy behind salvage "is that an individual who risks himself and his property voluntarily to successfully rescue the property of another from peril at sea and restore it to him has bestowed a benefit on the owner and should be rewarded by the owner commensurate with the magnitude of the benefit bestowed." Id. Professional salvors who perform their services for monetary gain, such as FDS Marine, may claim salvage awards. See e.g., Fred Devine v. Liberian S/T ELLIN, 1969 AMC 1739, 1740 (S.D. Cal 1966); Fred Devine v. United Transp., 1957 AMC 175, 181 (W.D. Wash 1956).
In order to recover under a claim of salvage, the salvor bears the burden of proving three elements:
1. A maritime 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.
Nott v. The SABINE, 101 U.S. 384, 384 (1879); U.S. Dominator, Inc. v. Factory Ship ROBERT E. RESOFF, 768 F.2d 1099, 1104 (9th Cir 1985), superceded by rule on other grounds, Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir 1996).
Shaver contends that FDS Marine cannot establish any of the three requisite elements of a salvage claim. Specifically, Shaver asserts that the tug DESCHUTES never faced a maritime peril; FDS Marine did not voluntarily assist the DESCHUTES; and, in any event, FDS Marine did nothing to "save" the DESCHUTES.
A. Maritime Peril
To support its argument that at no time was the DESCHUTES in any peril, Shaver submits the affidavits of Foss's Rainier facility foreman, Roy Jordan ("Jordan"), and Shaver's Port Engineer Dennis Malloy ("Malloy"). Jordan opines that "[a]t no time was the vessel ever in any type of danger," but "remained high and dry, above the high-water line." Jordan Aff, 6 6. According to Malloy, "[o]nce Foss personnel had hauled the DESCHUTES out of the weather, it was never in any kind of danger" and "was safe and secure until it was launched." Malloy Aff, 6 5. FDS Marine responds that it has presented, or is capable of presenting, sufficient evidence of marine peril to create a question of material fact and forestall summary judgment. This court agrees.
This may be a typographical error since the word "water" makes more sense in this context.
In order to constitute a salvage service, the peril need not be "immediate or absolute; it is sufficient that at the time the assistance is rendered the ship has encountered any danger or misfortune which might possibly expose her to destruction if the service were not rendered." The PLYMOUTH ROCK, 9 F. 413, 416 (D N.Y. 1881) (citation omitted). Likewise, "it is sufficient if, at the time assistance was rendered, the vessel was stranded so that it was subject to the potential danger of damage or destruction." McNabb v. O.S. BOWFIN, 565 F. Supp. 22, 23 (W.D. Wash 1983) (citations omitted).
FDS Marine asserts that Shaver's affiants fail to discuss the peril to the DESCHUTES at two critical times: (1) on November 19, 1999, when the tug was stuck on the ways before being winched onto high ground, and (2) on December 12, 1999, just before the tug was refloated. Although Malloy does not specifically address the first time period, his affidavit does cover the second time period and Jordan's affidavit is sufficiently broad to arguably include both time periods.
However, FDS Marine also submits the affidavits of Fred Stambaugh and Ronald Vandehey, a structural engineer, who both conclude that the DESCHUTES was in fact in peril. Stambaugh, who has many years of salvage experience, opines that after diving under the ways, he found the DESCHUTES stranded on broken ways at an angle, partly awash, and "crushed down on deteriorated timbers and steel rails which sat on old pilings." Stambaugh Aff, 6 6(a). He concludes that in this stranded position,"[t]here was a high likelihood that the tug could have `turned turtle' or rolled over, which could have destroyed the tug." Id, 6 6(b). In addition, he opines that between November 19 and December 12, 1999, the DESCHUTES also "was in danger of de-railing and settling in the river, causing a constructive total loss to the vessel." Id. Similarly, he states that the DESCHUTES was again in peril when relaunched on December 12, 1999, because Foss insisted on quickly refloating the vessel when portions of the ways remained in a deteriorated condition, which "consisted of trying an untested-until-used method in which the DESCHUTES could have rolled over." Id, 6 6(f).
Although Vandehey cannot yet provide an opinion that the DESCHUTES faced the potential of a rollover while out of the water between November 19 and December 12, 1999, until he has obtained additional documents from Foss and Shaver, he nonetheless confirms Stambaugh's assessment of the other type of marine peril facing the DESCHUTES. He states that "due to the reported broken and deteriorated materials supporting the tug, it was in danger of de-railing and settling in the river, causing a potential constructive total loss." Affidavit of Ronald Vandehey ("Vandehey Aff"), 6 6.
Thus, even without Vandehey's opinion concerning a the potential of a rollover, FDS Marine has presented evidence to create a genuine issue of material fact concerning the existence of a marine peril. Given the genuine disagreement concerning whether the DESCHUTES was in any peril during the course of its forced stay at the Foss facility, Shaver is not entitled to summary judgment on this issue. However, this does not end the inquiry, as Shaver also argues that FDS Marine cannot establish the remaining two elements of a marine salvage claim.
B. Voluntary Salvage
Shaver argues that because FDS Marine had an agreement with Foss to repair the ways, FDS Marine was under a preexisting duty and cannot show that its efforts in regards to the DESCHUTES were "voluntary" in order to recover in salvage against Shaver.
"The policy underlying marine salvage is to encourage volunteers to risk their persons and property to save property in peril. The logical extension for this policy is to deny a salvage award to someone under a preexisting duty to care for the property that is saved." ERASTUS C. BENEDICT, BENEDICT ON ADMIRALTY, § 8.02[A][5] (7th ed. 2000) (emphasis in original). Simply put, salvage services must be voluntary. The SABINE, 101 U.S. at 384; Sobonis v. Steam Tanker NATIONAL DEFENDER, 298 F. Supp. 631, 637 (S.D. N.Y. 1969). "[T]he salvor's act must be voluntary such that he must be under no official or legal duty to act." U.S. Dominator, Inc., 768 F.2d at 1104.
Shaver also argues that is a third-party beneficiary of the contract between Foss and FDS Marine for the repair of the ways. However, FDS Marine responds that it had no enforceable contract with Foss, and, citing Sisters of St. Joseph of Peace, Health, and Hosp. Servs., 318 Or. 370, 867 P.2d 1377 (1994), argues that even if there were such a contract, Shaver cannot meet the requirements of a third-party beneficiary under Oregon law. This court need not address that dispute since its decision rests on an alternate analysis.
A preexisting duty to care for the property may be premised upon the status of the putative salvor, such as a public employee or crew member. See e.g., Fireman's Charitable Ass'n v. Ross, 60 F. 456, 458-59 (5th Cir 1893) (fireman who helped extinguish blaze upon ship precluded from salvage award); The CACHEMIRE, 38 F. 518, 522 (D S.C. 1889) (pilots acting within the scope of their employment duties precluded from salvage award). A preexisting duty also may exist if the salvor acts pursuant to a contract with the owner of the distressed vessel to be paid for his services. However, "someone under a contractual duty to perform a salvage-type service can recover a salvage award, so long as the compensation for the service is contingent upon success." BENEDICT, supra, § 8.02[A]; The ELFRIDA, 172 U.S. 186 (1896). In ascertaining whether services rendered by a salvor are voluntary, "the rule is that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage."
As noted in Markakis v. S/S VOLUNDAM, 486 F. Supp. 1103, 1109 n 21 (S.D. N.Y. 1980), this type of "pre- existing duty" exception has been considerably narrowed in more recent cases.
Flagship Marine Servs. Inc. v. Belcher Towing Co., 966 F.2d 602, 605 (11th Cir 1992), citing The CAMANCHE, 75 U.S. 448, 477 (1869).
Analysis of the marine salvage claim in this case is complicated because it involves not only Shaver, the owner of the distressed vessel, and FDS Marine, the putative salvor, but also a third party, Foss, the repair facility. If Foss were not involved and Shaver had requested or acquiesced to FDS Marine's services to rescue the stranded DESCHUTES, then FDS Marine might present a salvage claim for its role in rescuing the DESCHUTES. In that event, FDS Marine would have had no pre-existing duty to Shaver or contract with Shaver to pay for its services regardless of success. However, Foss occupies a central role as the party who hired FDS Marine to perform work on the ways. Thus, this court must examine how both the relationship between Foss and Shaver and the relationship between FDS Marine and Foss affect FDS Marine's salvage claim against Shaver.
It is not necessary that the vessel owner affirmatively agree to the rendering of salvage services if, under the circumstances, a prudent man would have accepted. Merritt Chapman Derrick Wrecking Co. v. United States, 274 U.S. 611 (1927). Here Shaver, as a prudent owner, would have accepted.
As between Foss and Shaver, this case does involve a preexisting duty, namely the contractual duty owed by Foss to Shaver to repair and relaunch the tug, which necessarily includes the duty not to place the tug in peril. If the DESCHUTES was in any l during its stay at the Foss shipyard, then that peril was caused by Foss' ways which were in disrepair. Foss, as the cause of the marine peril, could not save the DESCHUTES and then pursue a marine salvage claim against Shaver. BENEDICT, supra, § 8.02[A][4]; Henry Corp. v. Aircraft Rescue Vessels, 113 F. Supp. 198 (E.D. La 1953) (tug found to be at fault in placing its tow in peril is not entitled to any reward for services rendered thereafter in saving the tow).
FDS Marine repaired the ways only because Foss requested its assistance. FDS Marine argues, and this court will assume for purposes of this motion, that it did not have an enforceable oral contract with Foss, but at best, had only an implied contract to pay for services rendered. Though the parties now dispute the nature and quality of FDS Marine's repair work, it is apparent that Foss' obligation to pay FDS Marine was not conditioned on any measure of success benefitting the DESCHUTES or Foss. Both parties knew that Foss hired FDS Marine because it was able to do specialized underwater repairs to the ways. Although the record is somewhat murky, it appears that Foss expected to be billed by FDS Marine after the repairs were completed for services rendered.
Because FDS Marine performed the repairs to the ways on behalf of Foss, it should have no better salvage claim against Shaver than Foss has against Shaver. From Shaver's standpoint, Foss caused the peril and Shaver should not have to pay Foss any salvage award to remove the peril, and certainly should not have to pay anything to a third-party hired by Foss to assist in that effort. Instead, Foss, the party that caused the peril, was obligated to rescue the DESCHUTES at its own cost and expense. By repairing the ways, FDS Marine removed the peril which Foss had a pre-existing duty to remove for Shaver. Thus FDS Marine is incapable of showing that it acted voluntarily in providing any salvage services to Shaver.
This court has found at least one case reaching this same conclusion under similar facts, although without any helpful analysis. In Bay Delta Tractor Tug Co. v. The Barge PACIFIC TRADER, 1998 AMC 494, 1997 WL 797935 (N.D. Cal 1997), a tow line broke between a barge and the tug towing the barge, which placed the barge in peril. To assist in retrieving the barge, the tug hired two other tugs at their usual hourly rates, whether their services were successful or not. The assisting tugs then filed a salvage claim against the barge. After a court trial, the court denied recovery on the salvage claims of the first assisting tug "because it had a contract to be paid for its services, and because its services did not otherwise meet the requirements for a salvage claim" and of its crew because they knew "that they had been hired to engage in an operation for which they were going to be paid, regardless of their success, and because their acts did not otherwise meet the requirements for a salvage claim." 1997 WL 797935 at *4. The court also denied recovery on the salvage claim by the crew of the second assisting tug because they "knew and agreed that they were being paid an hourly wage, regardless of the success of their work." Id at *5.
That said, Foss hired FDS Marine to perform only a narrow range of work. Had FDS Marine exceeded the scope of that work in order to save the DESCHUTES from peril, this court might have less hesitation in finding a salvage award appropriate. One court has explained that:
Where an individual performs a salvage service outside the normal scope of his employment, the rule is that "nothing short of a contract (between the owners of the salved vessel and the salvors) to pay a given sum for the services to be rendered, or a binding agreement to pay at all events, whether successful or unsuccessful, in the enterprise, will operate as a bar to a meritorious claim for salvage."
Markakis, 486 F. Supp. at 1108-09 (S.D. N.Y. 1980) (emphasis added), quoting The CAMANCHE, 75 U.S. at 477.
FDS Marine has presented no evidence, however, that it exceeded the scope of its work for Foss in providing any substantial assistance to the imperiled DESCHUTES. At best, FDS Marine claims that it provided "different services to Shaver than were provided to Foss, including marine salvage efforts, services designed to safely refloat the stranded tug DESCHUTES without causing destruction or damage, and services designed to accommodate Shaver's schedule." Stambaugh Aff, 6 8. FDS Marine also proffers that it "performed tasks specific to Shaver such as alerting Shaver to cold weather conditions and its effect on the tug, ensuring that the tug was safely refloated, and attempting to refloat the tug as soon as possible as a convenience to Shaver." Plaintiff's Memorandum on Voluntary Prong of Maritime Salvage Claim, p. 17.
The type of help provided a vessel in peril need not be overly substantial. "[T]he giving of advice is sufficient to sustain a salvage award when that advice prevents a grounding" and "[p]roviding radio assistance so that others can find and save a disabled vessel, is sufficient to sustain a salvage award." BENEDICT, supra, § 8.02[A][4]. Although FDS Marine characterizes its services for Shaver as "different" than its services for Foss, they were in fact the same. Foss hired FDS Marine to fix the ways in order to safely and quickly relaunch the DESCHUTES and that is precisely what it purported to do. Moreover, there is no evidence that FDS Marine's separate advice to Shaver about cold weather conditions would have saved the DESCHUTES from any danger or injury, or that Shaver acted upon that advice. Thus, this court discerns no rescue efforts by FDS Marine provided to Shaver above and beyond the scope of its duty owed to Foss.
In contrast, where an employee or agent greatly exceeds his or her scope of employment in performing salvage services, those services may be said to be voluntary. For example, the vessel owner in Markakis argued that crew members of the salvor were not entitled to a salvage award because they assisted his ship only out of obedience to their officers' orders. The court rejected such a conclusion, finding that the crew were called upon to perform tasks beyond the ordinary scope of their employment, "in an unusual situation, and with an added degree, however slight, of peril. Their decision to follow an order their employer could not otherwise lawfully have required them to obey is a voluntary act." Markakis, 486 F. Supp. at 1109. Similarly, in Smith v. Union Oil Co. of California, 274 F. Supp. 248 (N.D. Cal 1966), the trial court determined that the contract between the ship owners and the salvors covered only services connected with discharging cargo and getting the vessel ready for towing. The salvage efforts, on the other hand, involved firefighting and controlling the flow of sea water into the engine room.
Both cases are readily distinguishable from this case because the purported salvors performed duties above and beyond their scope of employment. Here, FDS Marine can not demonstrate that it "voluntarily" came to the assistance of the DESCHUTES when it was contacted and hired by Foss.
FDS Marine cites Lago Oil Transport Co. v. United States, 218 F.2d 631 (2nd Cir 1955) and Kimes v. United States, 207 F.2d 60 (2nd Cir 1953) in support of its argument that it was a voluntary salvor in this instance. Neither case will save its claim, however. In Lago Oil Transport, the putative salvor billed the defendant shipowner for services rendered, was paid, and then also successfully brought a salvage claim. The court explained that the case turned "on the view taken of the relationship of the parties, and the rights and obligations growing out of them, as they existed prior to the payment of [the] bill." Lago Oil Transport Co., 218 F.2d at 633. It continued: "In the absence of any specific provision of the agency contract — and none was shown — the perilous undertakings of the night of April 13 would not constitute a part of the normal obligation of a ship's agent at a port of call." Id. In the case at bar, this court has determined that FDS Marine's actions in fixing the ways were in fact a part of its pre-existing obligation to Foss. In other words, FDS Marine did nothing substantial above and beyond what it was hired by Foss to do.
In Kimes, the wartime crew of a salvor was paid by their employer for their services in connection with saving a distressed vessel, but the crew nevertheless then filed an additional salvage claim. Noting "no express agreement covering this salvage enterprise," the Second Circuit found that the crew's action was voluntary because they had refused to perform a later salvage task set to them and that despite a "moral obligation to render these services," the "libelants were [not] under a legal duty to perform this salvage work." Kimes, 207 F.2d at 63-64. The present case involves no express contract, but does involve an implied contract between Foss and FDS Marine for the work on the ways. Thus, unlike the crew in Kimes, who truly volunteered to rescue the imperiled vessel, FDS Marine was hired to perform work on the ways and has not shown that any alleged salvage efforts went beyond the scope of that hire.
Another case allowing a third party to pursue a marine salvage claim also is distinguishable. In E. N. Bisso Son, Inc. v. One Twenty-Two Foot Survey Boat, 1996 WL 715505 (E.D. La 1996), the salvor of the M/V CANARY hired a tug and derrick barge from Bisso and also rented a survey boat from Premier. When the survey boat capsized during the salvage attempt, Bisso's derrick crane lifted the survey boat out of the water and placed it aboard its barge. Bisso then filed a marine salvage claim against the survey boat. The court allowed that claim because Bisso had no contractual relationship with Premier, the owner of the salvaged survey boat, and "submitted no evidence to suggest that Bisso's contract with [the salvor] for the salvage of the M/V CANARY included any duty or responsibility on the part of Bisso for the safe keeping and well being of the [survey boat]." Id at *2. FDS Marine is not like Bisso. Although FDS Marine had no contractual relationship with Shaver, the owner of the salvaged vessel, its implied contract with Foss, the salvor, included a duty to protect the DESCHUTES while repairing the ways.
In this court's view, FDS Marine does not state a standard marine salvage claim. Ordinarily, if the court denies a request for a salvage award, the putative salvor will not recover its time and effort expended in what is often a perilous rescue attempt. In this case, however, FDS Marine has an alternative source of payment, namely Foss. FDS Marine provided services pursuant to an implied contract with Foss to be paid to fix the ways and thus should look to Foss for recompense.
In addition, FDS Marine argues that Shaver's motion must fail because it did not plead in its Answer that it had paid or tendered payment to FDS Marine in accordance with a contract for salvage. "Defenses in salvage suits, as well as in other suits in admiralty, must be set up in the answer, and if not, and the services proved were salvage services, the libelants must prevail." The CAMANCHE, 75 U.S. at 477. Shaver does not contend, however, that it had a contract for salvage with FDS Marine. Rather, it argues that Foss and FDS Marine had a contract for services, and this need not be pled in the Answer.
The denial of a maritime salvage claim to a third party hired by the person performing work on the vessel may seem odd, given the contrary result reached under a similar situation occurring on land. In the construction industry, a subcontractor hired by the general contractor may not only seek recovery against the general contractor by virtue of an express or implied contract, but also may claim a lien against the property for work performed. However, maritime law derives from a different source and contains the unique requirement of voluntary service. "[T[he public policy reason for rewarding salvors is to encourage mariners to aid one another despite the risk to themselves and their vessels." Berry v. BOAT GIANNINA B., Inc., 460 F. Supp. 145, 149 (D Mass. 1978). Such considerations do not come into play in the construction industry and no such public policy would be served by a salvage award in this case. FDS Marine's attempt to bypass (or supplement) its implied contract with Foss and pursue a more lucrative marine salvage claim against Shaver is "like trying to place a square peg into a round hole; with enough brute force it can be done, but not without serious damages to both peg and hole." Hernandez v. Gates, 100 F. Supp.2d 1209, 1220 (C.D. Cal 2000). Thus, Shaver's motion for summary judgment should be granted as to FDS Marine's First Claim for Relief.
C. Success
Because this court concludes that FDS Marine did not voluntarily assist the DESCHUTES, it need not address Shaver's additional argument that FDS Marine did nothing to rescue the DESCHUTES.
III. Motion for Summary Judgment on the Issue of Quantum Meruit
Shaver also moves for summary judgment against FDS Marine's Second Claim for Relief, a claim of quantum meruit for services allegedly rendered the DESCHUTES. Shaver argues that this claim must fail because of an express oral contract between FDS MARINE and Foss. According to Shaver, Oregon law does not allow FDS Marine to pursue both claims.
Quantum meruit is:
a form of restitution where the plaintiff has performed services for defendant and seeks to recover their fair value. The law, in appropriate situations, will imply a quasi-contract. It is not consensual. It is not a contract. It is a remedial device which the law affords to accomplish justice and prevent unjust enrichment. Quantum meruit presupposes that no enforceable contract exists. ashmir Corp. v. Patterson, 43 Or. App. 45, 47-48, 602 P.2d 294, 296 (1979), aff'd, 289 Or. 589, 616 P.2d 468 (1980) (citation omitted).
Shaver cites Kashmir and its progeny in support of the argument that an express oral contract between FDS Marine and Foss forecloses the possibility of a quantum meruit claim against Shaver. Kashmir, however, does not address the situation in this case, where the contract or agreement is allegedly between the plaintiff and one defendant and the quantum meruit claim is between the same plaintiff and a different defendant. In addition, FDS Marine has now been allowed to amend the complaint by replacing the breach of oral contract claim against Foss with a quantum meruit claim. FDS Marine also has repudiated its earlier allegation that it and Foss arrived at an enforceable oral contract concerning the repair work on the ways.
Nevertheless, FDS Marine's quantum meruit claim suffers from a fatal flaw. In order to recover in quantum meruit, a party must establish that it conferred a benefit upon the other party, and that the other party elected to retain that benefit. Kashmir Corp., 289 Or at 592, 616 P.2d at 468. More specifically, the elements of a quantum meruit claim are:
a benefit conferred, awareness by the recipient that a benefit has been received and, under the circumstances, it would be unjust to allow retention of the benefit without requiring the recipient to pay for it. For an injustice to be found, one of three things must be true: (1) the plaintiff had a reasonable expectation of payment; (2) the defendant should reasonably have expected to pay; or (3) society's reasonable expectations of security of person and property would be defeated by non-payment.
Yanney v. Koehler, 147 Or. App. 269, 279, 935 P.2d 1235, 1241, rev denied, 325 Or. 368, 939 P.2d 45 (1997) (citation omitted).
In this case, several of the required elements for a quantum meruit claim are troubling at best. However, only the last element merits discussion. This court can simply find no injustice in denying FDS Marine's attempts to collect payment from Shaver. As explained above, in order to establish an injustice, FDS Marine will have to demonstrate one of three scenarios, and this it cannot do. First, neither party has presented the court with evidence that would indicate that at any time FDS Marine reasonably expected or could have reasonably expected payment from Shaver. Rather, FDS Marine agreed to do the work on the ways for Foss, FDS Marine billed Foss for its work, and it was understood by all parties that Foss would pay FDS Marine for all work performed. Second, Shaver could not reasonably have expected to pay FDS Marine for its services rendered on the ways. Shaver hired Foss to repair and safely relaunch the DESCHUTES, and Foss, not Shaver, hired FDS Marine to repair the ways that belong to Foss. Lastly, it cannot be said that "society's reasonable expectations of security of person and property would be defeated by non-payment." FDS Marine has a remedy against Foss.
Thus, summary judgment should be granted for Shaver against FDS Marine's Second Claim for Relief for quantum meruit.
RECOMMENDATIONS
For the reasons set forth above, Shaver's Motion for Summary Judgment of Dismissal on the Issue of Salvage (docket #16) and its Motion on the Issue of Quantum Meruit (docket #31) should be GRANTED and Shaver should be dismissed as a defendant in this action.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due April 20, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 7, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.