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. Airforce, had “abandoned” it’s ownership of the Aircraft. The Court went on to hold that the Aircraft is a 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 Books 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. Airforce 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).