IN RE DOROTHY J V. CITY OF NEW YORK

f the salvage operation and the rate of the drift are based on assumptions of fact that are contrary to evidence that I credit. ( See Clifford Tr. 380-82; Pls. Ex. 17, Nautical Chart.) Clifford's testimony regarding the duration of the salvage operation — that it took around 35 minutes — was totally inconsistent with contemporary documentary evidence obtained from the FDNY, including EMS and Fire/Rescue reports, which establish that 20 to 21 minutes elapsed between the allision and when the Barberi was returned to the slip. ( See Clifford Tr. 432, 442-45; Def. Ex. 32, FDNY EMS Report, at 3, 6; Def. Ex. 33, FDNY Fire/Rescue Report, at 3, 5.) Similarly, his testimony that the Barberi was drifting at 3 to 5 knots is inconsistent with other evidence that the vessel was less than half a mile from the slip when it turned around 16 minutes after the allision.

Against this backdrop, I move specifically to the two stages during which the plaintiffs allege the Dorothy J provided assistance in a way that expedited the Barberi's return to the slip.

1. Arresting the Drift

The Barberi was drifting in the southeastern direction for most of the 16 minutes between the allision until control of the engines and propulsion system was transferred to the New York pilothouse, but was drifting very slowly, particularly after hitting the second pier. ( See Gansas Tr. 1008, 1010, 1022, 1024; Flecker Tr. 267.) The Dorothy J arrived alongside the Barberi about 10 minutes after the allision, sometime after the Barberi moved out from the second pier. ( See Flecker Tr. 241, 245-46, 264-65; see also Seckers Tr. 32-33.) It took another few minutes for the Dorothy J crew to secure the line ( see Seckers Tr. 38; Flecker Tr. 248), at which point the Dorothy J may have slowed, but did not stop, the Barberi's slow drift ( see Gansas Tr. 1072-73; Def. Ex. 96, Covella Dep., at 73-74). This assistance lasted for a very brief period — likely no more than 2 minutes — because the tug was already on the opposite end of the Barberi with a wire attached when control of the engines and propulsion system was transferred to the New York pilothouse about 16 minutes after the allision (Seckers Tr. 45-50; Flecker Tr. 254-55, 264-65). The plaintiffs submitted no calculations to show the extent to which the tug actually arrested the Ferry's slow drift or whether and to what extent this fleeting assistance expedited the Ferry's return to the slip. Under these circumstances, the plaintiffs have failed to meet their burden of establishing that it is more likely than not that the brief slowing of an already slow drift expedited the Barberi's return.

Nor did the plaintiffs establish that it is more likely than not that this assistance provided a "useful result" in the form of significantly reducing the risk that the Barberi would encounter a real and impending danger. Indeed, the fleeting nature of the assistance alone is sufficient to reject any such suggestion. Moreover, the plaintiffs' own witness admitted that the Barberi was not at risk of sinking, capsizing, or structurally collapsing after the initial allision unless it collided with another ship or pier. ( See Cushing Tr. 674.) By the time the Dorothy J arrived alongside the Barberi, the latter had already cleared all of the piers. ( See Gansas Tr. 1008-10.) The Barberi was also in no imminent danger of colliding with another ship, despite Seckers's testimony that he heard a security call over the radio from a ship that was heading toward the Verrazano Bridge to anchor in the Stapleton Anchorage (Seckers Tr. 37), because it was drifting toward the middle of the channel where there were no structures or other vessels with which it could have collided ( see Gansas Tr. 1009-10, 1024, 1028; see also Seckers Tr. 134). Indeed, it is unclear whether the ship to which Seckers referred had crossed into the Narrows from the Atlantic Ocean side of the Verrazano Bridge when Seckers heard its security call over

All ships entering the New York Harbor come through the Stapleton Anchorage. As cargo ships come into the Harbor, they often anchor around the Verrazano Bridge. ( See Pls. Ex. 17, Nautical Chart.) There they generally remain anchored while they unload cargo and wait for the tides. Larger ships often use captains familiar with the Harbor to pilot the ship through the Narrows and into the Anchorage. ( See Clifford Tr. 335-39.)

the radio. ( See Clifford Tr. 390-91.) This consideration aside, Gansas alerted the Coast Guard of the allision within minutes ( See Gansas Tr. 1005-06), and the Coast Guard as a matter of course would have alerted any incoming vessels to steer clear of the Barberi (Clifford Tr. 401, 408, 466-67).

Ships that are coming inbound toward or through the Stapleton Anchorage usually make security calls at a variety of locations, including when approaching the narrows on the Atlantic Ocean side of the Verrazano Bridge, once inside the Narrows, and if and when they enter the Anchorage. (Clifford Tr. 390-91.) It is unclear whether the ship to which Seckers referred in his testimony was on the Atlantic Ocean side of the Verrazano Bridge approaching the Narrows, somewhere in the Narrows, or entering the actual Anchorage.

More significantly, because the Barberi never lost propulsion or steering capability, Gansas was always in a position to maneuver the vessel away from an approaching hazard. Indeed, Smith and Gansas each maneuvered the Ferry from the Staten Island pilothouse when dangerous situations arose after the allision. Although Smith lost consciousness or situational awareness in the moments leading up to the allision, he regained some awareness after the Ferry hit the pier and proceeded to reverse the Ferry and steer it away from another vessel moored nearby. (Def. Ex. 21, NTSB Marine Accident Report, at 4; Def. Ex. 22, NTSB Operations Group Factual Report, at 8.) Indeed, the plaintiffs' expert admits that Smith's ability to effect this

Gansas never had any problems with the power, and to the extent that others heard him discussing issues with the power, he was referring only to the goal of locating Covella to assist him in switching control to the New York pilothouse. (Gansas Tr. 1069.)

The plaintiffs urge that portions of the NTSB reports marked as Defendant's Exhibits 21 and 22 contain hearsay. So, for example, they point to the testimony of Robert Rush, who served as the senior mate on the Barberi the day of the allision, a portion of which is summarized in the text above. The plaintiffs did not object to the admission of the relevant NTSB exhibits nor to any statements or testimony contained therein. ( See Trial Tr. 941.) "This fact by itself may prohibit the evidence from being considered hearsay." Gronowski v. Spencer, 424 F.3d 285, 294 n. 1 (2d Cir. 2005) (citing Diaz v. United States, 223 U.S. 442, 450 (1912) ("[I]f hearsay evidence is admitted without objection, it is considered and given its natural probative effect as if it were in law admissible.")). In this respect, I have taken into account that Rush had no apparent motive to lie and that there is no reason to believe that his words were not correctly recorded by the NTSB. Under the circumstances, it is unnecessary to reach the issue of whether the statements contained in the NTSB reports may be independently admissible under Federal Rule of Evidence 803(8)(C).

maneuver establishes that immediately after the allision the Ferry had power and maneuverability. ( See Clifford Tr. 452.) Covella, who was down in the engine room at the time, testified that immediately after the allision the pitch controls were at 100 percent and the RPMs were still at full speed ahead, but that someone in the Staten Island pilothouse — presumably Smith — "purposely" reduced the RPMs and brought the pitch on the fore/aft controls to 0 percent less than 2 minutes after the allision, which placed the Ferry in neutral. (Covella Dep., at 27-29, 42.) When Gansas arrived in the Staten Island pilothouse, he observed that the pitch on the fore/aft controls had been brought to 0 percent (Gansas Tr. 987, 992-93), which he surmised Smith had done to prevent the Barberi from moving any further forward (Gansas Tr. 1001).

Gansas also grabbed the pitch controls in the Staten Island pilothouse in an effort to avoid an additional allision. Soon after entering the Staten Island pilothouse, Gansas noticed that the Barberi was approaching a second pier, and he grabbed the New York wheel in an effort to steer away from the pier. (Gansas Tr. 989-95, 1001-03.) Nevertheless, the Ferry laid up against the second pier, which Gansas attributed to the fact that he initiated the maneuver too late to actually stop the movement, rather than a problem with the pitch controls: "[i]f I was a little earlier, I would — I probably would have be[en] able to do something." (Gansas Tr. 1002.)

Although Gansas otherwise decided not to use the engines and propulsion system while control was vested in the Staten Island pilothouse (Gansas Tr. 1033-34), during which time the Barberi was slowly drifting southeast, he nevertheless remained in command and was capable of piloting the Ferry had another allision risk arisen. As Gansas explained, he decided to leave the Ferry in neutral during the time it was safely drifting at an insubstantial rate because, "I didn't want to move the boat fore or aft or in any direction [until control of the engines and propulsion system was transferred to the New York pilothouse because] I didn't know the extent of the damage[, and] I didn't want to make a bigger problem than it was." (Gansas Tr. 1020; see also Clifford Tr. 450-51.)

2. Assisting the Barberi into the Slip

I also find that the Dorothy J did not provide any further assistance in hastening the Barberi's return to the slip at St. George after the brief episode allaying the drift on the Staten Island end. Specifically, despite my previous summary judgment order, I find that the Dorothy J did not help push the Barberi back to the passenger slip once control of the engines and propulsion system was transferred to the New York pilothouse. Seckers testified that, at Gansas's request, he pressed the Dorothy J up against the damaged side of the Barberi at a 90 degree angle as Gansas maneuvered into the slip. (Seckers Tr. 50-52.) This assistance saved the Barberi valuable time, Seckers testified, because the location of the Ferry, together with the wind and sea conditions, made it impossible for the Barberi to propel directly into the slip on its own: "[The Barberi] would've had to go more or less out round up to get into a Ferry slip. And [Gansas] didn't want to do that." (Seckers Tr. 50-52.)

Seckers recollection of the matter appears to have been influenced by his belief that the Barberi is like a conventional ship with a rudder and separate propeller. A vessel with a conventional rudder and propeller cannot make tight turns because it cannot spin, and thus in the absence of assistance would have had to go out into the harbor to turn around and then line up with the slip. (Gherardi Tr. 539-43.) In contrast, the Barberi's Voith-Schneider propulsion system allows the vessel to spin up to 360 degrees in any direction at once. Indeed, to orient the New York end of the Barberi toward St. George, Gansas merely "put a few degrees of pitch on and then [] turned the New York propeller steering control counterclockwise." (Gansas Tr. 1039.)

Seckers conceded that he "do[esn't] know anything about the Barberi," and was entirely unaware of the Barberi's Voith-Schneider propulsion system. (Seckers Tr. 100.)

Likewise, notwithstanding Seckers's insistence to the contrary, the Barberi's maneuverability was not materially affected by the wind and sea conditions. According to both Gansas, who maneuvered the Barberi on the date of the allision and has extensive experience with the Barberi, and Trevor Gherardi, who was the Assistant Engineer aboard the Barberi on the date of the allision and is now the Chief Engineer of the DOT, the Barberi's Voith-Schneider propulsion system counteracted the wind and sea conditions experienced on October 15, 2003 (Gherardi Tr. 514; Gansas Tr. 1082; see also Def. Ex. 22, NTSB Operations Group Factual Report, at 15 ("On the day of the accident, . . . [i]t was windy with gusts estimated up to 30 miles per hour and there was an outgoing tidal current, but not beyond the vessel's capabilities to compensate according to other ferry Masters the Board interviewed.")).

Seckers's account is also undermined by the extensive evidence indicating that Gansas was fully capable of maneuvering the Barberi into the slip on its own once control of the engines and propulsion system was vested in the New York pilothouse. Specifically, Gansas had full control over each of the engines and propulsion units while he was maneuvering the Ferry into the slip, and the vessel responded to his commands perfectly. (Gansas Tr. 1032, 1042-43, 1079, 1082.) Although Gansas did not know whether the Dorothy J had pushed on or otherwise assisted the Ferry as it moved into the slip, he did not request or require any such assistance. (Gansas Tr. 1042.) Gherardi, who was in the Barberi's engine room at the time of the crash, confirmed that the Barberi never lost propulsion or power before, during, or after the allision. (Gherardi Tr. 525-28, 532-33.) Covella gave similar testimony at his deposition. ( See Def. Ex. 96, Covella Dep., at 55-56) Significantly, as previously observed, NTSB tests conducted after the allision confirmed that both Voith-Schneider units and all four engines were functioning satisfactorily. ( See Def. Ex. 23, NTSB Engineering Group Factual Report.)

These considerations aside, Seckers's account of the events is fraught with internal discrepancies that undermine his credibility as well as the plaintiffs' effort to establish that it is more likely than not that the Dorothy J assisted the Barberi in the manner in which he testified at trial. Thus, Seckers originally stated in an affidavit that the crew had a line up when it pushed the Barberi into the slip (Seckers Tr. 122-23), but testified at trial that the crew had removed the wire it had originally attached to the New York end of the Barberi and did not have any wire or line up during the time Gansas was maneuvering the vessel into the slip (Seckers Tr. 122). Although Flecker corroborated Seckers's testimony that the crew released the wire once the Ferry started moving toward the slip, at which point the tug went alongside midship to guide the Ferry into the slip (Flecker Tr. 256), at his deposition Flecker testified that cross wires remained on the Ferry until the Ferry was in slip and did not recall the Dorothy J moving midship to assist the Ferry into the slip ( see Flecker Tr. 278, 289-91 (referring to Def. Ex. 94, Flecker Dep., at 43)). On the other hand, Druda, who did not seek a salvage award, testified that once Seckers relayed that the Ferry did not need the tow wires any longer, they "put the tow wires back onto the tug and followed the Ferry into the slip." (Druda Tr. 717.) This effort did not expedite the Barberi's return to the slip.

B. Providing Comfort and Aid to Passengers and Crew

Nevertheless, the plaintiffs' efforts were not entirely devoid of value. "The act of salvage need not be dramatic and need not consist in rendering physical assistance." Reynolds Leasing Corp. v. Tug Patrice McAllister, 572 F. Supp. 1131, 1134 (S.D.N.Y. 1983). As the leading treatise on admiralty law explains, "Giving `aid and comfort' to [a] vessel, at her request, can be a valid salvage service. . . . Being assured of aid at hand is of help to the salved ship as her crew is enabled to put forth redoubled efforts with their minds relieved of the thoughts of being left to their fate." Martin J. Norris, 3A Benedict on Admiralty, § 26; see also The Pendragon Castle, 5 F.2d 56, 58 (2d Cir. 1924) ("Whether that jettison did more than calm the nerves of the Sapinero's master is rather doubtful; but that it was a good thing for and a real service to this vessel to have an apparently properly commanded and able ship in attendance is not doubted."); Reynolds Leasing Corp., 572 F. Supp. at 1134 (concluding that the salvage vessel "performed a successful salvage service" in part because it provided "a rescue potential" to the distressed vessel).

On this issue, it is significant that Gansas contacted the Coast Guard after the allision and requested assistance from any surrounding vessels. (Gansas Tr. 1005-06.) The Dorothy J was the only vessel available to render assistance in the immediate aftermath of the allision, and its presence on the scene provided comfort to Gansas and some passengers on the Barberi during the height of the stress from the allision. Gansas described a feeling of relief when he learned that the Dorothy J was alongside the Ferry: "I felt somebody else was helping me. I didn't feel like I was alone." (Gansas Tr. 1083; see also Gansas Tr. 1052 ("I felt a sense of relief [when I learned the Dorothy J had a line attached to the Barberi]. . . . [b]ecause I knew somebody was helping me.").) John Downey, who was a passenger on the Barberi when the allision occurred, described a similar reaction when he spotted the Dorothy J arrive alongside the Barberi: "I was a little relieved that there's going to be some help, you know, get us to safety." (Downey Tr. 326.) The rescue potential that the Dorothy J offered had particular importance because the Dorothy J's presence placed it in a position to rescue passengers who, out of sheer panic, may have jumped ship. Indeed, when the Dorothy J first approached the New York end of the Barberi, the crew was concerned that passengers would swamp the tug in an effort to escape the Ferry. At that time, the crew assured the passengers that the Ferry was not at risk of sinking and had the tug back away from the Ferry until the passengers were calm enough that the tug felt comfortable returning. (Flecker Tr. 284-85.)

Moreover, although the testimony is conflicting and difficult to sort out, there is some evidence that aid was also supplied to injured and frightened passengers. Seckers and Flecker both testified that Captain Creamer boarded the Ferry to offer a first aid kit, blankets, and sweaters to passengers while the Dorothy J was alongside the New York end (Seckers Tr. 47; Flecker Tr. 257, 260-61, 288), although Flecker stated during his deposition that Druda was the only crew member to board the Ferry from the time the Dorothy J arrived alongside it until it returned to the slip (Def. Ex. 94, Flecker Dep., at 52). According to Flecker, the crew also offered aid after the Barberi had moored. (Flecker Tr. 295.) While the comfort and aid that the Dorothy J provided may not have directly contributed to the Barberi's safe return, it was nevertheless "useful" to Gansas and the passengers aboard the Barberi, and is deserving of a salvage award.

In sum, to the extent the plaintiffs can claim that they partially succeeded in rescuing the Barberi from peril or contributed to the success the Barberi experienced in safely returning to the slip, that success was extremely limited and had little effect on the outcome. Nevertheless, "[t]he quality and degree of contributory service need only be slight to justify a salvage award; the extent of the service may affect the amount of the award, but not its validity." Markakis v. S/S Volendam, 486 F. Supp. 1103, 1110 (S.D.N.Y. 1980). Thus, I proceed with an analysis of the appropriate amount of the salvage award, an analysis which actually provides a means for calibrating any salvage award to the "measure of success obtained by the salvors." 1989 Salvage Convention Art. 13(1).

III.

The appropriate salvage award in a particular case is highly circumstantial and generally "should not be based upon fixed percentages of the value of the salved property or upon comparisons to percentages from previous awards." Jones, 30 F.3d at 364. The district court has wide discretion to determine the appropriate size of a salvage award after considering the facts and circumstances of a case. See The Connemara, 108 U.S. 352, 359 (1883). In The Blackwall, 77 U.S. 1 (1869), the Supreme Court listed six factors district courts should consider in determining awards for salvage services:

(1.) The labor expended by the salvors in rendering the salvage service. (2.) The promptitude, skill, and energy displayed in rendering the service and saving the property. (3.) The value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed. (4.) The risk incurred by the salvors in securing the property from the impending peril. (5.) The value of the property saved. (6.) The degree of danger from which the property was rescued.

Id. at 14.

These six Blackwall factors were essentially adopted, although not in identical language, by the 1989 Salvage Convention. Martin Davies, Whatever Happened to the Salvage Convention 1989?, 39 J. Mar. L. Com. 463, 474-75 (2008). The Salvage Convention inserts the words "and life" at the end of the second Blackwall factor and adds four factors to consider: (1) "the skill and efforts of the salvors in preventing or minimizing damage to the environment," (2) "the measure of success obtained by the salvor," (3) "the availability and use of vessels or other equipment intended for salvage operations," and (4) "the state of readiness and efficiency of the salvor's equipment and the value thereof." 1989 Salvage Convention Art. 13(1).

The plaintiffs indicate in their reply brief that the "state of readiness and efficiency of the salvor's equipment" is a consideration that is limited to professional salvors. ( See Pls. Post-Trial Mem. at 6 n. 1; Pls. Reply to Def. Post-Trial Mem. at 6.) The plaintiffs cite no authority to support that assertion.

The Salvage Convention does not include as a factor warranting consideration the concept of "liability salvage," namely that salvors should be entitled to additional remuneration for having relieved shipowners from liability to third parties. Indeed, it was explicitly considered and rejected in the context of pollution damage, which was one of the principle concerns of the drafters, because of the difficulty and raw unpredictability involved in estimating the monetary value of a reduction in liability. Michael Kerr, The International Convention on Salvage — How it Came to Be, 39 Int'l Comp. L.Q. 530, 537 (1990). "[I]t would have required salvage arbitrators to determine what, if any, liability would or might have been incurred, presumably on a balance of probability, by the shipowners but for the salvors' efforts, and if so, to make some assessment of the amount of the avoided liability. This would have transformed salvage arbitrations into contests of a very different kind and created field-days for lawyers and experts." Id.; see also Davies, supra, at 494.

These concerns are only exacerbated in the context of liability for personal injury and wrongful death because of the inherent difficulty in determining the extent of liability averted. At the individual level, an accident resulting in a catastrophic injury does not necessarily translate into lesser liability than an accident resulting in death. So, for example, a passenger on the Barberi who suffered a spinal injury resulting in permanent quadriplegia received an award of $18,278,000 (reduced by the district judge from $22,945,168), an award that did not include lost earnings because no proof was offered. See McMillan v. City of New York, Nos. 03-CV-6049, 08-CV-2887, 2008 WL 4287573 (E.D.N.Y. Sept. 17, 2008). This award substantially exceeded the amount that would have been awarded in a wrongful death action had this passenger not survived. Indeed, the highest amount awarded to the family members of a deceased passenger was $8,750,000, by way of settlement. In any event, the principal case upon which the plaintiffs rely to establish the availability of liability salvage stands only for the proposition that "the factor of potential exposure to third party liability operates generally to inform the fixation of the global [salvage award] figure," without consideration of specific evidence relating to the value of liability avoided. United Salvage, 163 FCR at 165 (Austl.). I would decline to apply this vague factor here, even if there was evidence that the efforts of the Dorothy J actually resulted in reducing liability to third parties by hastening the Barberi's return to the slip.

IV.

The Blackwall and 1989 Salvage Convention factors are grouped together below based on their relevance to each other and this case. Many of these factors have limited relevance because of my above finding that the Dorothy J did not contribute to the Barberi's prompt and safe return to the slip.

A. Plaintiffs' Effect on Outcome

1. The Measure of Success Obtained by the Salvor

The only assistance that the Dorothy J rendered that justifies a salvage award of any kind is the comfort that its presence provided the passengers and crew. While this may be sufficient to qualify for a salvage award, its success had a minimal effect on the overall outcome. 2. The Degree of Danger from which the Property was Rescued

This factor is of little significance to the salvage award determination because the assistance which justifies a salvage award had no direct impact on averting any danger to which the Barberi was exposed. Indeed, even if I accepted the plaintiffs' argument that they are entitled to a salvage award for other reasons, by the time the Dorothy J was alongside the Barberi, the Barberi was in no danger of further collision or grounding, and there was no danger of collapse of superstructure, damage to engines and propellers, fire or explosion, or additional death or serious injury to passengers as a consequence of such events.

3. The Availability and Use of Vessels or Other Equipment Intended for Salvage Operations

The Dorothy J happened to be docked at St. George when the Barberi allided with the maintenance pier. Because of its close proximity to the Barberi at the time of the allision, it was the only boat that came to the assistance of the Barberi in the 20 to 21 minutes after the allision occurred.

4. The State of Readiness and Efficiency of the Salvor's Equipment and the Value Thereof

The Dorothy J is a small tugboat that is not equipped for the purposes of salvage operations. It had difficulty assisting the Barberi in a useful way. Thus, while its presence may have provided the passengers and crew with some comfort, it was not capable of rendering any significant additional assistance. Indeed, Seckers analogized the Dorothy J's efforts in assisting the Barberi to that of an "an ant on an elephant." (Seckers Tr. 54.) 5. The Value of the Property Saved

While the parties stipulate that the post-salvage value of the Barberi was $14,385,000 ( In re The Dorothy J, Robert Seckers, and Paul Flecker, Docket No. 09-cv-3512, Doc. 62, Joint Pretrial Order, Mar. 23, 2010, at 1), the value of the Barberi is of little significance to the salvage award determination because the Barberi was not actually in danger of sinking, capsizing, crashing, collapsing, or otherwise experiencing total destruction, and because the Dorothy J was not actually responsible for preventing any further damage to the Barberi.

B. Plaintiffs' Effort in Offering Assistance

1. The Promptitude, Skill, and Energy Displayed in Rendering the Service and Saving the Property (and Life)

From the moment Seckers spotted the Ferry approaching the pier, the crew members acted promptly and energetically to render assistance to the Barberi. (Seckers Tr. 41-42.) Seckers immediately sounded the deck whistle and began screaming that there was an emergency, alerting Druda to the situation. ( See Seckers Tr. 109-10; Druda Tr. 700.) Druda acted quickly to start the engine, wake sleeping crew members, and release the lines, which allowed the tug to cast off within a few minutes of the allision. ( See Seckers Tr. 32; Flecker Tr. 241; Druda Tr. 702.)

Once alongside the Barberi, the crew attached a line to the port side of the Staten Island end, which required Druda to board the Ferry to secure the line and reboard the tug to complete the attachment, and then Seckers pulled north with the Dorothy J in a failed effort to stop the drift for a few minutes. (Seckers Tr. 38; Flecker Tr. 248-49.) The crew also tried, albeit unsuccessfully, to attach face wires to the New York end, which again required Druda to cross back and forth between the Ferry and tug. (Seckers Tr. 48-49; Flecker Tr. 254.) Henry Marine's

president, Dorothy Julian, also took measures intended to assist the Ferry by ordering her docking pilot and a second tug, the Flossie Gellatly, to the scene. (Julian Tr. 168-70.) Although these measures did not help the Barberi in any way (Julian Tr. 183-88), her actions demonstrate Henry Marine's response to the allision and general willingness to assist in any way it could.

2. The Skill and Efforts in Preventing or Minimizing Damage to the Environment

Because the Barberi was not in danger of capsizing, sinking, exploding, collapsing, or otherwise contaminating the New York Harbor, this factor has little relevance here. Moreover, to the extent that the plaintiffs' efforts justify a salvage award, they did not directly relate to reducing the risk of any danger to the environment.

C. The Risks Run or Liabilities Incurred by Salvors

1. Risks to Salvors' Equipment and Property

a. Value of Slavors' Property

In February 2002, Rick Meyerrose, whom Julian described as "one of the most respected, if not the most respected, surveyor in New York Harbor" (Julian Tr. 194), surveyed the Dorothy J and assessed its value at $730,000 and replacement value at $1.9 million (Julian Tr. 157; Pls. Ex. 21, Condition Valuation Survey (2002); Def. Ex. 11, Condition Valuation Survey (2002)). The City noted that in 2003, Julian declared to her insurance company that the value of the Dorothy J was $530,000. (Julian Tr. 159; Def. Ex. 12, Condition Valuation Survey (2003).) Although the insurance value may have relevance to the extent it reflects Julian's belief about the tug's value, insurance value does not necessarily represent fair market value, because a party may intentionally agree to a lower value for insurance purposes to keep premiums low. In fact, Julian claimed she did just that. (Julian Tr. 192-93.) Thus, Julian refers to Meyerrose's valuation report as a better reflection of the Dorothy J's value in October 2003. (Julian Tr. 194.)

Julian testified that the value of the Dorothy J would have actually increased between the February 2002 survey and the salvage operation in October 2003 because she was making regular and ongoing improvements to the tug. However, she admitted that she had been making those regular improvements every year and they generally did not affect Meyerrose's yearly valuations. (Julian Tr. 195-97; compare Def. Ex. 11, Condition Valuation Survey (2002), with Def. Ex. 12, Condition Valuation Survey (2003).) Accordingly, based on surveys performed in 2002 and 2003, the approximate value of the Dorothy J on October 15, 2003 was $730,000. ( See Pls. Ex. 21 Condition Valuation Survey (2002); Def. Ex. 11, Condition Valuation Survey (2002); Def. Ex. 12, Condition Valuation Survey (2003).)

b. Risks to which the Property was Exposed

Although the Dorothy J incurred no damage, it exposed itself to certain risks in attempting to assist the Barberi. The plaintiffs list several risks, including damage to its engine from starting without warming up and damage to its underwater propeller from debris in the Harbor. They introduced no evidence to suggest that a single instance of starting the engines without warming up could cause damage or that lifejackets or debris floating in the water could damage its propeller. The plaintiffs also assert that the Dorothy J exposed itself to other general risks, such as the risk of colliding with the Ferry, many of which arose during the course of their unsuccessful efforts to assist the Barberi. Most of the risks that the plaintiffs cite were also risks of the type normally experienced in a towing operation. Nevertheless, I take into account the fact that the Dorothy J was not obligated to incur those risks on the occasion in question.

c. The Time Used and Expenses and Losses Incurred by the Salvors

The entire salvage operation took only 20 to 21 minutes from the time the plaintiffs began reacting to the allision until the Barberi returned to the slip. Julian admitted that during that time the only costs Henry Marine incurred to execute the salvage operation were the fixed costs of operating the Dorothy J (Julain Tr. 210-11), which she conceded did not exceed the $239 per hour rate she had negotiated with the DOT (Julian Tr. 218). Indeed, as Seckers spotted the Barberi approaching the maintenance pier, the Dorothy J was being paid the contractual rate by the City to stand idle at the pier and await further instructions to tow an oil barge. ( See Seckers Tr. 29-30.) Julian testified that she ultimately absorbed non-fixed costs for the Flossie Gellatly and the pilot captain she ordered to the St. George Ferry Terminal shortly after the allision. (Julian Tr. 171-72, 210-11.)

2. Risks to Salvors in Securing the Property from the Impending Peril

The crew members did expose themselves to risks in attempting to assist the Barberi. So, for example, Druda or Flecker could have been injured if either the line or the face wire had split while Druda was securing them to the Barberi. (Seckers Tr. 45-46.) Likewise, Druda could have lost his balance when stepping back and forth between the vessels and fallen into the water. While these risks were ones the members of the crew were not required to assume, they are of limited relevance to determining the appropriate award because they did not contribute to assisting the Barberi in any significant way.

This consideration aside, the risks to which the crew members exposed themselves were not unlike the risks that crew members ordinarily face on the tugboat. As Seckers testified, towing vessels in general can be dangerous and carries many of the same risks. (Seckers Tr. 127-28.) Indeed, Druda, who was the only crew member to board the Barberi between the time of the allision and when it entered the slip (Def. Ex. 94, Flecker Dep., at 52), testified that the risks he incurred that day were no greater than the risks encountered any time he assisted in making the tug fast to a vessel that would be towed (Druda 785-86), and that he did not perceive any risks or dangers to himself beyond those he ordinarily experienced when he boarded vessels (Druda Tr. 723-24). Despite the plaintiffs' suggestion to the contrary, the bow of the tug was level with the deck of the Ferry each time Druda crossed, and there was no rocking, which allowed him to step between the tug and the Ferry without jumping or climbing. (Druda Tr. 710-12, 724-25; see also Def. Ex. 73, FDNY Photo, NYC 10823 (Druda testified that this picture, taken after the Barberi was in the slip, accurately reflected the level of the Dorothy J's bow in relation to the Barberi's deck each time he crossed over).) Nor was Druda at risk of injuring himself on debris from the allision when he boarded the Barberi because the Dorothy J was not adjacent to the damaged portion during any portion of the salvage operation. (Druda Tr. 712, 724-25.)

Moreover, the actual tasks that each crew member completed aboard the Dorothy J were not unlike those the crew members might undertake during normal operations. Indeed, Seckers admitted that, emergency conditions aside, all of the tasks he performed during the salvage operation — steering, operating the throttle, conducting necessary radio communication, instructing the crew — are part of his normal and routine duties on the tug. (Seckers Tr. 125.) Likewise, Flecker remained on the tug and assisted in extending, securing, and releasing lines and face wires, which he admitted is exactly what deckhands ordinarily do. (Flecker Tr. 282.)

Even Druda, who was employed as an "engineer," was accustomed to performing the type of deckhand duties he performed during the salvage operation. In addition to engineering duties, Druda frequently contributed services that would ordinarily fall to a "deckhand," particularly when the crew was short a deckhand. ( See Druda Tr. 719, 731-32; see also Def. Ex. 9, Dorothy J Engine Room Log (Druda's entry for October 15, 2003 includes "Decked on Ferry Emergency").) Indeed, Julian expected Druda to serve the role of a "deckineer," which is a deckhand who has engine duties. (Druda Tr. 784-85 (discussing a letter Julian sent to Druda which read in part, "I felt it necessary to document in writing just what . . . I expect from you as a deckineer on one of my vessels" (emphasis added)).) Although Druda had been with Henry Marine for less than a year when the Ferry allision occurred, his deckhand duties had already required him to board vessels that were being towed (Druda Tr. 698), and he had extensive experience making up vessels for towing by putting out tow lines, push gear, and soft lines (Druda Tr. 697). Accordingly, when the Dorothy J was short a deckhand on October 15, 2003 (Flecker Tr. 249), it was natural for Druda to fill that void.

Moreover, though perhaps emotionally draining, the labor required during the salvage operation was not exceptionally demanding. Only 20 to 21 minutes elapsed from the time Seckers observed the Barberi off course and began alerting the Dorothy J crew until the Barberi's safe return to the slip. ( See Def. Ex. 32, FDNY EMS Report, at 3, 6; Def. Ex. 33, FDNY Fire/Rescue Report, at 3, 5; Def. Ex. 34, FDNY Synopsis of Emergency Response, at 1.) No more than 10 to 11 minutes passed from the time the Dorothy J arrived alongside the Barberi until the latter moored. During that time, with the possible exception of Druda and Creamer, who are not claimants in this case, the actual labor expended was similar to and no more arduous than that required during ordinary tugboat operations.

V.

The parties appear to agree that my goal in this analysis is to "reconstruct the salvage contract that would have been negotiated ex ante if a competitive market transaction had been feasible." William M. Landes Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83, 102 (1978). If this is the case, the contract Henry Marine negotiated with the City appears highly relevant. This contract "clearly encompasses services that have a salving effect," such as "firefighting, aid[ing] stranded ferry vessels as an emergency response vessel, and other authorized work as required." In re Andrew J. Barberi, 534 F. Supp. 2d at 379 (referring to Def. Ex. 2, Contract Between Henry Marine City, § 8, at C-3). As indicated in my previous opinion, these services included the services provided in this case. See id. at 381 ("The services, for which salvage is sought here, fit easily within those services contemplated by the clause of the contract obligating Henry Marine to provide `other authorized work.'"). In entering into that contract, Henry Marine agreed to perform those services at a $239 hourly rate. (Julian Tr. 197, 199-201.) Indeed, the only reason Henry Marine was not obligated to provide the salvage services in the immediate aftermath of the allision was that the City did not call upon it to do so, as required in the contract. See In re Andrew J. Barberi, 534 F. Supp. 2d at 381-82.

Nevertheless, it would undermine the "fundamental public policy" underlying salvage awards, which is the "encouragement of seamen to render prompt service in future emergencies," Kimes v. United States, 207 F.2d 60, 63 (2d Cir. 1953) (emphasis added), if I were to simply award the plaintiffs the raw amount due to them under the terms of a contract which they were not obligated to uphold when they rendered the salvage services. As the Blackwall Court explained, "Compensation as salvage is not viewed by the admiralty courts merely as pay, on the principle of a quantum meruit, . . . but as 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." See Blackwall, 77 U.S. at 14. To adequately induce salvors to act, "the law must provide for a proper and reasonable salvage award," Margate Shipping Co. v. M/V JV Orgeron, 143 F.3d 976, 986 (5th Cir. 1998), and "[t]he award should not be so little as to discourage salvage aid nor so much as to encourage or exaggerate service." Norris, 3A Benedict on Admiralty, § 241.

While it seems clear that the crew of the Dorothy J acted purely out of altruistic motives and without expectation of an award of salvage, "salvage awards are not based on the altruistic principle of good samaritanism — that virtue is its own inducement and its own reward." Margate, 143 F.3d at 987. With the policy justification for salvage awards in mind, namely inducing salvage operations in the future, I find that Henry Marine and the crew aboard the Dorothy J on October 15, 2003 are entitled to $75,000, which far exceeds the normal compensation to which Henry Marine would have been entitled under its contract with the DOT and the wages the crew was due from Henry Marine. In fixing this amount, which provides a relatively minimal award, particularly when divided between Henry Marine and each of the crew members, I have also taken into account the admonition that "[i]n setting the price for the salvage service, . . . the court must consider — and consider primarily — the benefit that the service conferred on the recipient." Margate, 143 F.3d at 988.

VI.

Article 15 of the 1989 Salvage Convention specifies that "[t]he apportionment of a [salvage] award between the owner, master and other persons in the service of each salvage vessel shall be determined by the law of the flag of that vessel." "There appears to be no fixed rule [under federal law] with respect to the apportionment of the salvage reward between the owners of the salving vessel and her officers and crew. The distribution in all cases of this kind is a matter resting in the discretion of the court, and is governed largely by the peculiar circumstances of each individual case." Conekin v. Lockwood, 231 F. 541, 544 (E.D.S.C. 1916); see also Jacobson v. Panama R. Co., 266 F. 344, 346-47 (2d Cir. 1920); Rivers v. Lockwood, 239 F. 380, 383 (E.D.S.C. 1917).

Although there is no "fixed rule," the owner of a salving vessel "generally receives a greater portion of the total award than its crew." Waterman S. S. Corp. v. Dean, 171 F.2d 408, 412 (4th Cir. 1948). Owners are generally allotted larger shares of salvage awards in recognition of the fact that a salving vessel, rather than the efforts of a crew, usually plays the central role in facilitating the success of a salvage operation. As the United States District Court for the Eastern District of South Carolina explained in an 1816 salvage award case:

In the days of sailing vessels, as the salvage depended more upon the individual efforts of the salving crew than the efficiency of the salving vessel, the portion of the crew was much more favorably regarded, and the larger part of the salvage award was generally apportioned to the officers and crew. [Now, with the steamboat,] it is really the vessel which conduces most to the effectuation of the salvage result. . . . The proportions, therefore, have varied so as to allow a much larger portion to the owner of the vessel.

Conekin, 231 F. at 544-45.

Because the salving vessel is generally so important to the success of a salvage operation, salvage awards are designed to induce owners to maintain vessels with sufficient power and equipment to perform salvage services efficiently. Id. Vessels that are maintained in proper condition to perform salvage services are "more difficult to procure," and far more valuable to an endangered vessel, than vessels ill-equipped for the task which "would use inefficient attempts" at salvage. Id. As such, owners who maintain their vessels in sufficient condition to render salvage services, and whose vessels are able to successfully render salvage services as a result, are rewarded generously. See id.

The owner need not take part in, direct, or even know about the salvage operation, to share in the award, although such participation or direction may increase the owner's proportionate share. See The Camanche, 75 U.S. 448, 461, 470, 472-73 (1869). Corporations and other entities that own salvage vessels are treated as individual owners would be for salvage award apportionment purposes. See id. at 474. An owner's share generally increases when the salving vessel is of large value, when the salving vessel or owner was exposed to substantial risk in rendering the services, id. at 473, when the principle service was performed by the vessel, see Conekin, 231 F. at 544-45, or when the owner directed the service, see Cape Fear Towing Transp. Co. v. Pearsall, 90 F. 435, 439 (4th Cir. 1898). In contrast, the share apportioned to the crew generally increases when the risk sustained by the crew was exceptionally high, the salving vessel was not exposed to serious risk or danger, see Markham v. Simpson, 22 F. 743, 744 (S.D.N.Y. 1884), or where the efficiency of the salvage vessel itself played a small role in the services rendered relative to the individual efforts of the crew, see Conekin, 231 F. at 544-45. Moreover, in cases that do not involve professional salvors, consideration should be given to the fact that the crew took the initiative in coming to the aid of the vessel in distress. See id. at 545.

The portion of a salvage award allowed to the salving vessel's crew is frequently divided among them in proportion to their wages. Id. at 545. However, a "master upon whom the responsibility of the direction and the determination to make the effort exists is allowed frequently a larger proportionate share," as may be "such members of the crew as may show exceptional effort and merit in their service." Id.

In this case, the normal justification for apportioning the owner of a salving vessel the majority of the salvage award does not apply. Henry Marine did not maintain the Dorothy J with sufficient power and equipment to perform salvage services on the Barberi efficiently. No suitable vessel was available, which is why the Dorothy J — a vessel ill-equipped for the task — responded, and made such a small contribution to the Barberi's rescue. Indeed, the policy behind generously rewarding owners who maintain their vessels in salvage condition is to prevent just that from happening. See Conekin, 231 F. at 544-45.

Nor did the Dorothy J ultimately play a central role in facilitating the success of the salvage operation. Indeed, the salvage award in this case really acknowledges the effort of the crew to assist the Ferry despite the tug's inadequacy. The crew acted with promptness, energy, and skill during the operation, and exhausted the capacity of the tug in its effort to provide assistance. In particular, Seckers and Druda deserve credit for their service during the operation. While little evidence was presented on the role Captain Creamer played in the salvage operation other than some conflicting evidence relating to his efforts to provide aid to passengers on the Barberi, Seckers, as mate, apparently took the lead in directing the operation, and worked quickly to assist the Barberi from the moment he sounded the deck whistle to alert the crew of the emergency. Druda, who was officially hired as an engineer, took a uniquely hands-on role in the effort, crossing back and forth between the vessels several times at two different locations. Indeed, Julian acknowledged that Druda was "the biggest hero of the day." (Julian Tr. 224.)

It is unclear whether Julian actually knew about the allision prior to the time the Barberi arrived in the slip. Julian testified that she ordered the Flossie Gellatly to the allision site as soon as Captain Creamer notified her that the Staten Island Ferry had crashed (Julian Tr. 168-70, 183), but the Flossie Gellatly did not depart the mooring until an hour after the Barberi arrived safely in the slip ( see Def. Ex. 18, Flossie Gellatly Vessel Log (revealing that the Flossie Gellatly departing the mooring at 4:40 PM); Def. Ex. 32, FDNY EMS Report, at 6 (revealing that the Barberi arrived in the slip at 3:43 PM)). While Julian need not have known about the operation or participated in directing it for Henry Marine to receive a share of the salvage award, see Camanche, 75 U.S. at 461, 470, 472-73, the assistance Julian attempted to provide once she was informed of the allision was unrelated to the Dorothy J's salvage effort and had no effect on the Barberi's relatively prompt return to the Ferry slip. Consequently, those efforts do not impact the portion of the award to which Henry Marine is entitled.

Accordingly, the award of $75,000 is to be apportioned 1/3 to Henry Marine, and 2/3 amongst the crew. The $50,000 (2/3) apportioned to the crew is to be divided among the crew according to the percentage of the total daily wages each position received, with adjustments for exceptional contributions to the operation. As depicted in Table 1 below, Seckers is to receive an adjustment of ×2, and Druda is to receive an adjustment of ×2.5. Once the $50,000 is divided according to each crew member's percentage of the total adjusted wages, Creamer is entitled to $9,252.44, Seckers is entitled to $16,257.06, Druda is entitled to $19,544.23, and Flecker is entitled to $4,946.26.

Daily wage rates, which are displayed in Table 1, are taken from the Collective Bargaining Agreement between Henry Marine and Local 33 ( see Def. Ex. 16, Collective Bargaining Agreement) which were in effect on October 15, 2003. Although Julian claims the Agreement does not precisely reflect the wages of the crew aboard the Dorothy J on October 15, 2003 (Julian Tr. 214-15), it was the only evidence supplied to the court regarding wages of the crew.

Table 1

Position Dorothy J Crew Daily Wage Adjst. Adjst. Wage % of Total Share of Party (10/15/03) (Total = $1244.25) Value (Total = $2063.78) Adjst. Wage $50,000 Status Captain Mark Creamer $381.90 × 1 $381.90 18.50% $9252.44 Nonparty Mate Robert Seckers $335.51 × 2 $671.02 32.51% $16257.06 Claimant Engineer Michael Druda $322.68 × 2.5 $806.70 39.09% $19544.23 Nonparty Deckhand Paul Flecker $204.16 × 1 $204.16 9.89% $4946.26 Claimant This action was brought by Henry Marine on its own behalf and not, as would have been permitted, in its own name on behalf of the crew. See Castner, Curran Bullitt v. United States, 5 F.2d 214, 216-17 (2d Cir. 1925). Nevertheless, there is authority for the proposition that, under such circumstances, a court may "intervene [o]n behalf of those wards of the admiralty." Id. at 217. One such method of intervention is to direct that the respective shares of those who were not parties to the action be paid into the registry of the court and remain there pending final orders of distribution in proceedings initiated by the respective parties. See, e.g., Brooks v. The Adirondack, 2 F. 872, 873-74 (S.D.N.Y. 1880); The Leipsic, 5 F. 108, 113-14 (S.D.N.Y. 1880). In this case, however, there is no reason for any special dispensation for Druda and Creamer. Although it is unclear whether the nineteenth and early twentieth century case law that extended salvage claims to absent members of the crew retains any force after the enactment of the statutory period of limitation, see 48 U.S.C. § 80107(c), the practice apparently reflected the understanding that seamen are transient and might not be in a position to press their claims, and Creamer and Druda were in no such predicament. Druda testified that he received phone calls from both sides regarding the case, evaluated his options with his counsel, and declined to join the action. (Druda Tr. 760, 762-66.) Indeed, Druda confirmed receiving one phone call in which counsel for Henry Marine informed him that Flecker had joined the action, and that if Druda was interested in asserting a salvage claim, "[this] was [his] opportunity to do so." (Druda Tr. 762.) While the record does not reveal whether Creamer received similar calls from representatives of the parties, he was at least aware that the action was pending, because he signed an affidavit in July 2005 in connection with this case. ( In re The Dorothy J, Robert Seckers, and Paul Flecker, Docket No. 09-cv-3512, Doc. 4, Ex. 6, Affidavit of Mark Creamer, July 25, 2005.) Creamer was also listed by the plaintiffs as a potential witness on the joint pretrial order ( see In re The Dorothy J, Robert Seckers, and Paul Flecker, Docket No. 09-cv-3512, Doc. 62, Joint Pretrial Order, Mar. 23, 2010, at 5), and may have been deposed prior to trial.

Under the circumstances, as both parties agree, non-prosecution by Druda and Creamer "inures to the benefit of the salved vessel[]." Rauch v. Gulf Refining Co., 129 F. Supp. 843, 844 (E.D. La. 1955); see also Blackwall, 77 U.S. at 12 ("[N]on-prosecution by one set of salvors enures, not to the libellants prosecuting the claim, but to the owners of the property saved."); Spencer v. The Charles Avery, 22 F. Cas. 917, 919 (S.D. Ohio 1857) (reducing the total salvage award by the amount to which those salvors who waived their claims would have been entitled); 3A Norris, Benedict on Admiralty § 222. Consequently, the salvage the City of New York is required to pay is reduced by $28,796.67, the amount to which Creamer and Druda would have been entitled had they not relinquished their claims as salvors.

The foregoing makes it unnecessary to consider whether Druda and Creamer are also barred from receiving their respective shares by 48 U.S.C. § 80107(c), which provides that "[a] civil action to recover remuneration for giving aid or salvage services must be brought within 2 years after the date the aid or salvage services were given."

VII.

The plaintiffs are entitled to prejudgment interest on the salvage award. See Steelmet, Inc. v. Caribe Towing Corp., 842 F.2d 1237, 1243-44 (11th Cir. 1988). Under Article 24 of the 1989 Salvage Convention, "[t]he right of the salvor to interest on any payment due under this Convention shall be determined according to the law of the [country] in which the tribunal seized of the case is situated." Under federal law, district courts have broad discretion in deciding whether to award prejudgment interest. "In federal question cases, the rate of prejudgment interest is [also] committed to the discretion of the district court." Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 63 (3d Cir. 1986); see also Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 208 (3d Cir. 2004) (explaining that a district judge with federal question jurisdiction has "broad discretion to set a rate of prejudgment interest sufficient to compensate Plaintiff for the true costs of [the money] damages incurred"); EEOC v. Erie County, 751 F.2d 79, 82 (2d Cir. 1984) ("The appropriate rate for prejudgment interest [in a federal question case] is `essentially [a matter] for the discretion of the trial judge.'" (alteration in original)).

The discretion I have enables and compels me to prescribe a rate that approximates the true costs of damages incurred as a result of any delay in judgment. See Skretvedt, 372 F.3d at 208. I do not adopt the prejudgment interest rate designated under N.Y. CPLR § 5004, which is "nine per centum per annum," because that the application of that rate would produce a windfall for the plaintiffs in light of the historically low rates of interest and inflation that have prevailed over much of the relevant period. Indeed, with consumer prices down since late 2008, "monthly Social Security and Supplemental Security Income benefits . . . [did] not automatically increase in 2010," which made it "the first year without an automatic Cost-of-Living Adjustment (COLA) since they went into effect in 1975." See Press Release, U.S. Social Security Administration, Prompt Passage of Economic Recovery Act Payment for 2010 Needed: Law Does Not Provide for a Social Security Cost-of-Living Adjustment for 2010 (Oct. 15, 2009), http://www.ssa.gov/pressoffice/pr/2010cola-pr.pdf.

Under these circumstances, combined with the failure of the plaintiffs to brief the issue of the appropriate rate of prejudgment interest, I follow other federal courts in holding that the plaintiffs are entitled to prejudgment interest at the rate prescribed under 28 U.S.C. § 1961 for post-judgment interest. Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 139 (2d Cir. 2000) (noting that "[t]here is no federal statute that purports to control the rate of prejudgment interest," and discussing 28 U.S.C. 1961 as one source on which district courts often rely in setting the appropriate rate); see also Norville v. Staten Island Univ. Hosp., 112 F. App'x. 92, 95 (2d Cir. 2004) (upholding the district court's award of prejudgment interest at the rate provided in 28 U.S.C. § 1961(a)); Nelson v. EG G Energy Measurements Grp., Inc., 37 F.3d 1384, 1391 (9th Cir. 1994) ("The interest rate prescribed . . . under 28 U.S.C. § 1961 is appropriate for fixing the rate of prejudgment interest unless the trial judge finds, on substantial evidence, that the equities of that particular case require a different rate."); Sun Ship, 785 F.2d at 63 ("[B]ecause the rate to be charged is a matter of district court discretion the case must be remanded for a determination of an appropriate rate of interest. In exercising that discretion, however, the court may be guided by the rate set out in 28 U.S.C. § 1961."); EEOC v. Wooster Brush Co. Emps. Relief Ass'n, 727 F.2d 566, 579 (6th Cir. 1984) ("[T]he matter of prejudgment interest remains essentially one for the discretion of the trial judge. Undoubtedly in the future, district courts may be influenced by the congressional wisdom expressed in the amendment of 28 U.S.C. § 1961(a).").

CONCLUSION

The Clerk is directed to order a judgment in the amount of $46,203.33 in salvage and prejudgment interest at the rate prescribed under 28 U.S.C. § 1961, to be apportioned between the plaintiffs as described above.

SO ORDERED.