Lawyer says America’s Cup boat salvage claim is valid

Posted on 16 October 2012

A San Francisco lawyer is defending Todd Tholke’s claim to a $200,000 salvage award after he discovered the French America's Cup World Series racing team's 45-foot catamaran reportedly aground in the middle of the night and returned it to safe harbor.

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“I’m really trying to defend Todd’s reputation because it’s really taken a beating,” lawyer John Edgcomb told Soundings Trade Only. “I’m trying to give the perspective that he really does have a valid salvage claim so we can avoid terms like ‘hostage’ and ‘pirate.’ ”

The racing cat, Energy, is now in two containers inside a warehouse leased by the America’s Cup Event Authority, where it has been since Friday night, Edgcomb said. The vessel was “arrested” on the evening of Oct. 7 as part of the legal dispute, which calls up a centuries-old maritime law regarding salvage at sea.

Tholke spotted the AC45 catamaran on some rocks Sept. 30 near Treasure Island, a few miles from where the sailboat broke free from its San Francisco mooring as it awaited its next America’s Cup race.

Tholke surprised the sailing community by filing a salvage claim Oct. 4 in U.S. District Court entitling him to an award — $200,000 plus procedural costs incurred.

The lawsuit has drawn ire from the sailing community.

“The exchanges I’ve had with my friends about it — and not only the French — they’re really not printable in any magazine,” San Francisco-based sailor and lawyer Jean-Yves Lendormy told Trade Only.

Edgcomb says he has ignored several calls from the press seeking comment, but wanted an opportunity to give his client’s perspective on a “valid salvage claim.”

“Todd was a volunteer — the vessel was in peril on the rocks and susceptible to wind and wave damage,” Edgcomb told Trade Only. “He was successful. He pulled the vessel off the rocks and pulled it into safe harbor. He has a valid claim, and that gave way to a valid lien. So we were entitled to arrest the vessel.”

Edgcomb and Tholke agreed not to interfere with the America’s Cup World Series races that were occurring Oct. 4-7 in San Francisco to avoid bad publicity, Edgcomb said.

On Oct. 7, about 9 p.m., a U.S. marshal served the arrest warrant for the sailboat “in a low-key manner,” Edgcomb said.

“We didn’t do that to be mean,” Edgcomb said. “They were putting it into containers, and we thought they were going to ship them back to France, and if they did that we would have no legal recourse.”

Edgcomb said he and Tholke agreed to let the containers be stored in a warehouse leased by the event authority, but will consider requesting “a more permanent security system” because the court has had no response from the vessel’s owner or insurance provider.

Read more in the December issue of Soundings.

— Reagan Haynes

Comments

Does anyone else find it odd that he and only HE saw this boat drifting in the night. I lived on the bay four five years, I don't recall a single time when it was so devoid of boat traffic as that no one saw this thing drift across the bay? How did this boat come lose? did a mooring line break?

I just find it odd the boat came "free" and was magically found by this dirtbag drifting shortly there after. It doesn't pass the smell test, but maybe that is just me being cynical...

If indeed it did legit float free and he happened to be the one and only person who saw this thing adrift and he then took it upon himself to go get the boat, with out calling for help, with out telling anyone of his plan, and did so with out effort then yes he is entitled to some money. Of course the stand up thing to d here is to see certainly go ahead and bring the boat back, say your welcome ask for a ride on the bass ass cat maybe some team gear, and a promise that when the Big cats come to play they will give you a ride on that as well... everyone goes home happy. Sadly this is not to be the case. I am just glad to see his yacht club is bringing him up on charges at least!

My impression was that this "good samaritan" noticed the French AC boat had broken loose and drifted near the rocks, he used his 13' Whaler to pull the boat off the rocks and towed her back to the French dock. The AC crew was very grateful and offered him a chance to come out with them for a sail a few days later as "reward"....he apparently accepted the invitation and that seemed to be the end of the story. No claim of "salvage" was made until days later when I get the feeling that some "ambulance-chaser" of a Lawyer contacted him and encouraged him to sue for the "salvage" claim of $200K. (The lawyer would of course be due his "fee" for filing the lawsuit of course!) I was giving him the benefit of hte doubt, and assuming the suit was not originally his idea....perhaps I'm wrong? Let us not be too quick to judge this guy, who may actually have the Whaler as a tender to a sailboat?

BTW: I have towed a couple of powerboats over the years using my sailboat as a towboat (under power of course) so it does happen sometimes! (Ironically the last time the boat I towed was a 13' Whaler!)

History is on his side. This is the law of the seas. Negotiate a settlement and pay the man, then tell him mercì...

The vessel was in peril and depending on wind and sea conditions, could have sustained substantial damage. If the commercial tow pirates can get away with charging upwards of $250.00 per foot for an ungrounding by calling it salvage, I think Mr. Tholke should be entitled to a similar fee for his services. As far as claiming a salvage prize that is a percentage of the value of the vessel, I believe that is abuse of an old law. The law was intended to reward those that put life and very expensive equipment in peril in order to save ships and cargo. The abuse of that law in the small boat world is disgusting.

This law creates such stupid claims as we can read in this article, again! Unbelievable to claim such payments

It seems there is a slant here of "who cares if it is an insurance company paying" -- I hope some people have a longer range view of what is good and what is harmful to this industry.

If the boat had been destroyed on the rocks, I wonder what the insurance claim would have been?

It is unfortunate that this case involves a "personality" and a well known craft - but surely the legality of the salvage is not in question?
It would appear that Tholke [but it could have been anyone] found a ship adrift, without a crew, and in danger of severe damage. He merely towed the vessel to a safe haven and made her secure. The "arrest" of the craft, in maritime tradition, was made pending agreement on salvage.
Had a local fisherman effected this salvage would anyone be up in arms that he is seeking salvage?
Surely the question to be asked is what a craft of this high status was doing adrift in the first place - after all it's hardly a diminutive boat.

What is all the fuss about? If this was a fishing boat or large cruising boat on the rocks and was pulled off by a for hire towing company like
Sea Tow there wouldn't be a story..The insurance company would simply pay the claim. Just because it was a non professional that recovered the boat does not make the claim any less valid, and the French teams insurance company should be glad they are not having to pay to build a new boat and only a salvage claim.

In normal circumstances this would be deplorable and beyond the pale. However this is the America's cup and for years the big boys have spent millions of $ in court with suits and counter suits to get their view of how the boat should be built, or sailed, or designed. This always leads to different boats or keels. Now one team is getting a bit of their own back.
I am no lover of lawyers but there has been little sporting behavior surrounding the America's cup for years.

We have pulled several vessels of 45' off rocks, and out of harms way. Sounds like a $3,000 job at best, especially for a low drafted catamaran.

Edcomb sounds like an ambulance chasing lawyer. Todd playing Mr. Nice Guy ... is a money grabber. Glad they're on the west coast, and not the
Great Lakes.

Typical blow-boater response. Blame the power-boater! Ha! Only in the sailing world! I find your comment despicable and unsportsmanlike! I've towed in more than my fair share of sailboats over the years, yet I've never been towed in by a sailboat... ;)

Is anybody surprised that he found a lawyer to agree with him (that is not evidence, it is money driven drivel). Rescuing a boat "in peril" by himself in a BW 13 should tell you about the effort that went into this -it is the same as putting out a fire in a bush and wanting to be paid the value of the house. Like many things, the law evolves, it does not stagnate in the 1700's.

That's pathetic and does nothing for the sport of sailing. Good Samaritan actions are what make the sailing community - just that - community, lest we become stink potters.
I find that despicable and unsportsmanlike conduct

A lawyer says it's a valid claim? That's news? No, that's not news. That's predictable.

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