from mayday to payday
Sailors may grabbing pitchforks and lighting torches for Todd Tholke, the hippie salvor who rescued Energy Team’s AC45 from Treasure Island’s rocky shore after the boat broke free from its mooring earlier this month, but we’re not so sure he should be subjected to a public stoning just yet. Tholke filed a maritime lien against the AC45 last week and had the US Marshals ‘arrest’ it, while his attorney filed a complaint seeking ‘more than $200,000’ in compensation for the three-hour rescue. Since then, the StFYC has called for a disciplinary hearing against the musician liveaboard (who is apparently a St.Francis member), while sailors have almost universally condemned Tholke as a ‘gold digger’.
But we’re not so sure.
Tholke’s filings reveal his frustration with attempts to contact ACRM staff and the Energy Team, and there’s little doubt that his salvage was both legal and difficult. After all, his rescue craft was a beat up Boston Whaler, and he had to pull a 45’ wingsailed cat from the rocks with it – alone, in the middle of the night. Tholke’s complaint says his boat was ‘nearly capsized’ and suffered damage to hull and engine, though it loses credibility by painting the bay as something of a tempest-tossed ocean rather than the near-millpond it was on the night in question. Sure he could’ve just left it alone, but both international maritime law and common sense gives Tholke the right to be paid for rescuing a boat that could have suffered substantial damage without him, and while the 200k number is a silly one, the lawyer’s ‘prayer for relief’ in a legal complaint is a useless number that’s more for settlement negotiations than it is reality. Given the fact that he is not up against both Energy Team’s local counsel and ACRM in-house lawyers, he’ll have to fight for every penny. Here’s a slightly more legal analysis from maritime attorney David Weil, and you can share your comments in the thread.
First, regardless of what the community thinks of Tholke’s ethics, under internationally recognized principles of salvage law he is entitled to some level of compensation. The only legal question presented here is the size of the award. And before I go further, based on the facts as I understand them, I agree with those who think he should have just made a few phone calls to alert the interested parties to come and fetch the wayward boat with something more substantial than a 14 ft Whaler. I’m offering this just as a legal perspective.
As far as the calculation of the award goes, Pothos and a few others have described the applicable law fairly accurately. The courts evaluate the 6 factors described by Pothos and basically come up with a percentage which is then applied to the post-incident value of the boat to determine a salvage award. For what it’s worth I write a regular column in The Log Newspaper in Southern Cal, and I wrote an article a few years ago that compared towing and salvage. I think it provides a pretty good overview of the applicable law in this case if you’re interested – – – Here’s a link:
In this case the value of the boat would be incredibly hard to calculate. It’s not like you’re going to get a few comps from YachtWorld and take an average. Expert witnesses would probably use appraisal methods similar to those used to value a business rather than a boat, since an AC boat these days is basically a business venture and a floating advertising platform. SInce the AC45 road show is almost over and the liklihood of these exact boats being used for that purpose again is pretty remote, I would expect the value of the boat to be a LOT less than the estimated million bucks.
The boat has been "arrested" as a consequence of the lawsuit. On the surface there is nothing particularly wrong with that procedure since it is a necessary step for the court to obtain jurisdiction over the vessel in the enforcement of a maritime lien. This boat was about to be shipped off to Italy, and the arrest procedure is available to keep the boat within the jurisdiction of the local court. And it was – technically – proper, so long as he can establish that he was entitled to recover at least a dollar for his salvage efforts. However – in cases where the vessel is part of a commercial enterprise and covered by a viable insurance policy, the parties will typically seek a "Letter of Undertaking" from the insurance company. This is a promise by the insurance company to pay the amount awarded by the court, up to an agreed amount, and it takes the place of the vessel in the court proceedings. The parties like to take that route because the actual custody of a vessel is very expensive and the "LOU" saves everyone a lot of hassle and money.
It appears that Tholke’s attorneys did in fact try to contact the French team through people at Race Management but were stonewalled in their efforts. They were advised that the matter had been referred to counsel for the French team but they were getting the run-around by intermediaries without being contacted by anyone with any authority to speak for the boat owners or their insurance company. Under those circumstances they probably had to go forward with the arrest or risk losing the boat. This again assumes that he wanted something more than a boat ride as compensation for the evening’s activities.
Finally, I talked about this in my article but I wanted to emphasize it – – – there is no set formula for these things. The fact that the boat drifted only a short distance and was only "free" for a short period of time will go into the mix in determining the percentage, but in the end it’s all a big guess. Also the fact that Tholke returned the boat (rather than holding it hostage) does not diminish his claim (as suggested ina few posts in this thread). In fact, if he had refused to return it he would have been sued for conversion and perhaps even faced some sort of criminal charge.
Bottom line: He is entitled to something but – as noted by almost everyone else in this thread – he is going about it in a way that sheds a bad light on the community – and – even if he does want to go for blood – he could get to where he wants to be with a lot less drama.