THE
FEDERAL COURT OF CANADA ALLOWS SALVAGE OF
A U.S. AIR FORCE BOEING B-17 “FLYING FORTRESS” |
On May 17, 2004 the Federal
Court of Canada released its decision in Brooks Aviation v. The
Wrecked and Abandoned Boeing SB17-G, Docket: R-217-02, Citation:
2004FC710. In February 2002, Brooks Aviation, Inc. (“Brooks Aviation”)
filed the salvage claim against the wrecked and abandoned Boeing SB-17G
Aircraft. Brooks Aviation had previously searched for and located the
aircraft at the bottom of a Labrador lake. The search and discovery was
documented in an article entitled “Lost and Found: One B-17 Aircraft”
published in the April 2000 issue of “Flight Journal” Magazine and in a
December 2001 episode of the Discovery Channel series “Flight Path”.
Although the question of ownership of the B-17 Aircraft was at issue,
the Court held that, for the purpose of determining salvage rights in
the Federal Court, the U.S. Air Force, had “abandoned” its ownership of
the Aircraft. The Court went on to hold that the Aircraft is derelict
and subject to the Brooks Aviation salvage claims. The Court held that
whoever the ultimate owner is determined to be, that owner cannot
preclude the salvage of the B-17.
The effect of the Federal Court’s decision is that Brooks Aviation is
now allowed to proceed with the salvage of the B-17 Aircraft and to
apply for protection by injunction or damages for protection of the
priority rights of Brooks Aviation as finder of the Aircraft. Once
recovered, the Canadian Receiver of Wrecks will take control over the
Aircraft. The Province of Newfoundland and Labrador will then be
allowed to assert a claim of ownership. If the Province is declared to
be the owner, then the Federal Court will determine a reasonable
salvage award to be paid to Brooks Aviation. Upon such payment, the
B-17 Aircraft would be turned over to the Province. If no claim of
ownership by the Province succeeds or the Province refuses to pay the
salvage claim then the Receiver of Wrecks can transfer ownership of the
B-17 Aircraft to Brooks Aviation as satisfaction of its salvage claim
or sell the Aircraft and pay the salvage claim from the proceeds of the
sale.
Brooks Aviation began the search for the B-17 Aircraft in 1991. For a
number of years before commencing its action in the Federal Court,
Brooks Aviation tried to reach agreement with the Province of
Newfoundland and Labrador concerning the recovery and restoration. The
costs of recovery and restoration will exceed the sum of USD $2.0
million. The agreement proposed by Brooks Aviation would have included
the Province in the recovery process and provided a Newfoundland
Aviation Museum with an interpretative plan and exhibit documenting the
role of this type of aircraft during WWII, as well as its loss,
recovery and restoration. Brooks Aviation continues to remain hopeful
that an arrangement with the Province will be reached which would best
serve the public interests of Canada and the United States.
The B-17 Aircraft called the “Flying Fortress,” served the U.S. Air
Force admirably during WWII. It is believed that worldwide there are
only 48 aircraft of this type still in existence, ten of which are
flying or flyable. It is to be hoped that the B-17 Aircraft in the
Labrador lake will soon become the 11th B-17 restored to flying
condition.
Brooks Aviation is owned by Mr. Don Brooks who owns and flies a C-47
Aircraft that was used to drop paratroopers behind German lines on
D-Day in 1945. He was recently involved in the recovery of a World War
II P-38 “Lightning” Fighter which he located and recovered from 295
feet below the surface of the Greenland Icecap.
Brooks Aviation is represented by attorney David Paul Horan of Key
West, Florida (305 – 294-4585) and attorney Cecily Strickland of St.
Johns, Newfoundland, Canada. (709 - 722-4270).
UAS will be developing the Salvage plan and will start salvage in
August this year. |
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