Transcript Law of Marine Salvage DETAILED OUTLINE

Law of Marine Salvage
DETAILED OUTLINE
A. Topics
• Relevance of Wreck & Salvage to MA; Law of Wrecks
• Historical Origin of Salvage and Definitions, Principles of Salvage
Law
• Maritime Property: Subjects of Salvage Salvage as a Proprietary
Interest
• Ingredients of Salvage: Danger, Voluntariness and Success
• Salvorial Negligence: Tojo Maru and DRT/Cadwallader Articles
• LOF and Convention Law
• Environmental Dimension: Salvage Convention, 1989, Art. XIV
• Art. XIV contd. and Nagasaki Spirit
• SCOPIC and Wrap-up
Law of Marine Salvage
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B. Law of Wrecks
1. Definition –
Main features:
(a) flotsam, jetsam, lagan, derelict;
(b) cargo, stores, tackle, equipment;
(c) property of shipwrecked persons.
2. Wreck as Maritime Property
(a) At common law, wreck was defined as “parts of a ship cast
ashore by ebb and flow of tide” – restrictive definition;
(b) Inclusion of “jetsam, flotsam, lagan and derelict” by statute.
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“Flotsam is when a ship is sunk, or otherwise perished, and the
goods float on the sea; jetsam is when the ship is in danger of being
sunk, and to lighten the ship the goods are cast into the sea, and
afterwards notwithstanding the ship perish.
Lagan (vel potius ligan) is when the goods which are so cast into the
sea, and afterwards the ship perishes, and such goods cast are so
heavy that they sink to the bottom, and the mariners, to the intent
to have them again, tie to them a buoy, or cork, or such other thing
that will not sink, so that they may find them again, & dicitur lig. A
ligando; and none of these goods which are called jetsam, flotsam
or ligan, are called wreck so long as they remain in or upon the sea;
but if any of them by the sea be put upon the land, then they shall
be said wreck.”
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3. Basis of Wreck Law
(a) Protection of private property by Government;
(b) Historic wreck protection –prima facie property
of State; Creation of regulatory regime for Salvors.
(c) Creation of Regulatory Regime for navigational
safety.
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C. Cases on Wrecks: Historic or otherwise
1.
2.
3.
4.
5.
6.
HMS Edinburg
Titanic
Simon v. Taylor [1975]
Treasure Salvors Inc. v. Unidentified Wreck and Abandoned V/L
[1985]
The Lusitania [1986]
The Mary Rose
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LAW OF SALVAGE
D. Historical Origin and Principles of Salvage Law
1. Historical Origin
(a) Principle of equity unknown to the common law; imported
from European maritime codes of the medieval ages.
(b) Form of Equity existed in Roman Law – emanated from
decisions of the Roman Praetors (similar to English
Chancellors)
(c ) English law did not recognise the notion of rewarding a
person for saving another person or property. Civil liability
was based on contract or tort (no liability for non-feasance)
(d) Salvage is unique to maritime law.
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LAW OF SALVAGE
Fundamental Principles
1.
2.
3.
Prevention of Unjust Enrichment and Providing Restitution
Public Policy
Maritime Property — Subject of Salvage
Equitable Notions of —
1.
Restitution
2.
Unjust Enrichment
3.
Implied Contract
4.
Quasi Contract
5.
6.
Quantum Meruit
Salvage is sui generis
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2. Definition of Salvage
(a) Classical Definition – [ Kennedy on Salvage ]
“The jurisdiction…is of a peculiarly equitable character. The right to
salvage…is a presumption of law arising out of the fact that property
has been saved that the owner of the property who has had the benefit
of it should make remuneration to those who have conferred the benefit
upon him, notwithstanding that he has not entered into any contract on
the subject.
(per. Hannen J. Five Steel Barges (1890), 15 P.D. 142, 146).
In speaking of salvage both the salvor’s service and the salvor’s reward
are referred to, and for practical purposes a salvor’s service has been
defined as a “service which saves or helps to save maritime property –
a vessel, its apparel, cargo or wreck – or lives of persons belonging to
any vessel, when in danger, either at sea or on the shore of the sea, or
in tidal waters, if and so far as the rendering of such service is
voluntary and attributable neither to legal obligation, nor to the interest
of self-preservation, nor to the stress of official duty.
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(b) Dual meaning
i. the act of saving or helping to save maritime property,
without any prior legal or contractual obligation.
ii.the reward which the successful salvor receives from the
beneficiary of his services.
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3. Maritime Property – Subjects of Salvage
Only “maritime property” can be subjects of salvage; i.e., vessel,
apparel, cargo, including flotsam, jetsam, lagan, derelict and
wreck of these and freight.
[NOTE: In The Gas Float Whitton No. 2 (1895), P. 301; (1987),
A.C. 337, a gas float adrift from moorings was considered not to
be a subject of salvage.]
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4. Salvage as a Proprietary Interest
(a) Position of original owner in loss or abandonment of maritime
property;
(b) (i) Possession is prima facie right of ownership in the absence
of a better claim.
(ii) Right of Reward in event of a better claim comparison
between common law and salvage law
(c ) Doctrine of Effective Control.
The Tubantia
(d) Doctrine of res nullius: The Titanic; Simon v. Taylor (1975) 2
Lloyd’s Rep. 338
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5. Ingredients of a Salvage Claim
(a) DANGER
i. Real and sensible, neither fanciful nor needing to be
absolute or immediate.
(Dr. Lushington in The Charlotte (1848), 3 Wm. Ro 6.68 at 71
said “It is not necessary….that the distress should be actual
or immediate or imminent and absolute; it will be sufficient if,
at the time assistance is rendered, the ship has encountered
any damage or misfortune which might possibly expose her
to destruction if the service were not rendered.)
ii. Kennedy describes the test for immediacy of danger as “so
much a just cause of present apprehension, that, in order to
escape out of it or to avoid it (as the case may be) no
reasonably prudent and skilful seaman in charge of the
venture would refuse the salvor’s help if it were offered to
him upon the condition of his paying for it the salvor’s
reward”.
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(b) VOLUNTARINESS
i. 1) Service rendered solely under pre-existing contractual
duty, is not a salvage.
2) Distinction between “salvage agreement” and “contract
salvage”. The latter gives rise to no maritime lien; and
remuneration is paid according to quantum meruit or an
agreed amount. The former provides for arbitration to fix
award.
ii. Service rendered solely under official duty not a Salvage
1) Government officials’ statutory duty to remove wrecks, or
carry out any other acts of salvage, not entitled to
remuneration.
2) Ships’ crew cannot claim salvage because it is a
contractual or official duty; unless salvage services rendered
after employment is terminated; i.e. through abandonment,
capture, etc.[See The San Demetrio (1941), 69 LL.L. Rep.5]
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(b) VOLUNTARINESS (cont.)
iii. Interest of Self-Preservation does not give rise to
salvage claim
1) E.g. Passengers of a ship would normally be working for
their own safety;
2) However, mere presence of the interest of selfpreservation does not negate a salvor’s claim for want of
voluntariness, so long as “qua that property he is a
volunteer.”
[The Lomonosoff (1921) p.97]
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(c) SUCCESS
i. Basis of “no cure no pay” principle in LOF Salvage Agreement;
ii. Success includes ultimate preservation of res.
[NOTE: Exception – If distressed ship requests assistance, and
assisting ship renders salvage service, but ship is eventually
saved through some other cause, assisting ship is entitled to
salvage. Manchester Liners v. M.V. Scotia Trader, (1971), F.C.
Rep. (F.C.C.T.D.)]
iii. Partial Success is rewardable as salvage so long as service is
rendered “without any negligence or want of ordinary skill”
(LOF. Clause 15).
iv. “Contract Salvage” containing provision for compensation
for expenses in the absence of success held to be a “Salvage
Agreement” by House of Lords in Admiralty Commissioners v.
Valverda (Owners) (1983) A.C.
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6. Life Salvage
(a) Life Salvage not payable originally on the grounds that
something more must be saved in order to provide a fund
out of which the salvor can be remunerated.
Brett L.J. in The Renpor (1883), 8 P.D. 115 at 117
(b) As a matter of public policy there may be a statutory right
to life salvage, payable in priority to all other claims for
salvage.
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7. Salvorial Negligence
The Tojo Maru [1971] 1 Lloyd’s Rep. 341.
Salvage diver fired Cox bolt gun against hull shell plating of crippled tanker. Bolt
shot through tank which had not been gas freed, resulting in massive explosion and
substantial damage to Tojo Maru. Salvors Wijsmuller claimed for award; ship owners
counter-claimed for damages for negligence.
Arbitration — Salvors liable for negligence - entitled to limitation
Trial (Wilmer J.) Not entitled to limit liability (act not committed from tug)
C.A. (Lord Denning) - No liability of salvors for negligence, but award should be
adjusted to take account of negligence (Shield Approach)
H.L. — a) Salvors award in full as if without negligence
b) Shipowner entitled to counterclaim: Salvor liable for
negligence [Sword Approach]
c) Award and damages set off against each other
£125,000 -3 Award; £330,000 damages; Difference = £205,000-)
Salvors to pay
d) No limitations Tonnage of tug would have limited liability to =
£10,000
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8. LLOYD’S OPEN FORM OF SALVAGE AGREEMENT (LOF)
(a) Embodied principle of “no cure no pay” strictly since 1892. Until
1980, there have been few amendments.
(b) LOF 1990 and 2000 contain some significant changes.
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1989 SALVAGE CONVENTION: SALIENT FEATURES
Art.1 -Environmental considerations recognised.
Definition of “damage to environment”.
Art.5 - Control of salvage operations by public authorities
Art.8 - Duties of salvor, owner and master to exercise due care
to prevent or minimize damage to environment.
Art.9 - Rights of coastal State to protect their coastlines; right to
give directions to salvor
Art,12 & 13- Criteria for award- “skill and efforts of salvors in
preventing or minimizing pollution.
Art. 14 - Special compensation.