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AN OVERVIEW ON SALVAGE: LEGAL FRAMEWORK, DUTIES, REWARDS AND ENVIRONMENTAL RESPONSIBILITY
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AN OVERVIEW ON SALVAGE: LEGAL FRAMEWORK,
DUTIES, REWARDS AND ENVIRONMENTAL RESPONSIBILITY
AUTHORED BY - ADV. ARDRA MINI SATISH &
ADV. ARUN R.S.
3rd Semester, LL.M., Maritime Law, Bharata Mata
School of Legal Studies, Aluva
ABSTRACT
This article gives an overview
of the concept of Salvage
and the legal framework
regulating it. Maritime salvage is a voluntary operation through which
a vessel together
with all its properties
at peril is saved fully or partially by the salvor.
Salvage operation carried
out by a vessel is very
risky and expensive and thus should be encouraged with proportionate award. The
legal framework ensures that salvors are compensated for their successful recovery
efforts, under "no cure, no pay" principle. The International
Convention on Salvage, 1989 outlines salvage rewards, the rights of salvors,
and environmental protection measures. Modern salvage law emphasizes minimizing
environmental harm, especially in cases involving hazardous materials. Overall,
salvage law aims to balance the interests of salvors, property owners, and
environmental protection.
INTRODUCTION
Ships frequently find themselves in need of assistance at sea due to various
incidents that affect their safe navigation. The law and
practice of salvage was very simple in olden times, but massive developments
have occurred in recent years in this area. Brice defines salvage as a right in law, which arises
under English law when a person, acting
as a volunteer (i.e., without any pre-existing contractual or
other legal duty) preserves or contributes to preserving at sea any vessel,
cargo. According to the law of Salvage, the efforts of the salvor is not considered if
the endeavour is unsuccessful and no reward is given. This is the legal reasoning
behind the ‘no cure-no pay’ doctrine. The current
legal framework on Salvage was first
established in the 18th
and 19th centuries by the decisions of the Admiralty Court in the
UK. During this time, salvage was purely voluntary, rendered by ordinary ships
that happened to be passing by the distressed ship and thus non-contractual.
Thus, prior to the end of the nineteenth century, express salvage contracts
were unknown.
LEGAL FRAMEWORK
The law on salvage has its roots in maritime customs dating
back to ancient civilizations, including the Romans, where salvage was based on
the idea of rewarding those who saved property
in danger at sea. During the middle ages, customs
governed salvage rights in various
port cities and maritime nations. These customs were often informal but
recognized the importance of encouraging individuals to help in times of distress.
In England, admiralty
courts became the formal
venues for resolving
salvage disputes and it started
to formalize salvage
law which required salvors to claim their reward in court. Later,
because of globalization, there arose a need for unification and elaboration of
a uniform international approach in relation to cases of assistance and salvage. It was undertaken by Comité Maritime
International, soon after it was founded in 1897. The
discussion started at the International Conference of Brussels in 1905 and
concluded in 1910. The 1910 Convention consists of 19 articles and it remained
in operation for several
decades outlasting a lot of changes in the technological and public policy landscapes. The necessity for a new institutional regime
became critical, after the Amoco Cadiz major oil spill accident which
paved the way to the new salvage convention.
Later, the International Convention on Salvage,
1989 was formally
agreed upon in London and came into force on 1 July 1996.It
consist of 34 articles divided into V Chapters. The 1989 Convention has been widely
adopted, and it has shaped
how maritime nations
regulate salvage operations
within their own jurisdictions. Under this Convention a new emphasis was placed
on encouraging salvors to protect the marine environment through
Article 1, 8, 12, 13 and
14, particularly in cases involving the threat of pollution. By virtue of
Article 13(2), payment of the reward must
be in proportion to the
respective values of salved property and Article 13(3) states that the reward shall not exceed the value of
the vessel and thus the value
of the reward will be influenced by
the value of the property salved.
ELEMENTS OF SALVAGE
The principal elements
of salvage are:
•
RECOGNISED SUBJECT MATTER
Article 1(a) of the 1989 Convention defines salvage operations as including
services rendered to vessels, or to any other property in danger. Property
means any property not permanently and intentionally attached to the shoreline and includes freight at risk (Art 1(c)). Therefore the Convention does not apply to fixed
or floating platforms or mobile offshore
drilling units on a
location, engaged in the
exploration, exploitation of seabed mineral resources (Art 3). And all merchandise being carried on the vessel could be subject to salvage except personal effects
of the crew, master and passengers.
Pure life salvage did not exist prior to the 1989 Convention;
instead, it was contingent upon whether property was salvaged. In the Admiralty Court, compensation for the
simple salvage of life was not recoverable if no property was salvaged. Now, life salvage is dealt
with by Art 16 of the 1989
Convention and thus saving life was included in salvage services. Thereby on the occasion of an accident giving rise
to salvage, a salvor of human life is entitled to a fair share of the payment
awarded to the salvor of property
•
DANGER
Before, any ship or vessel at sea can be salvaged, the ship must be in
danger and the danger must expose it to the possibility of damage. In the
Phantom, Lord Lushington stated inter alia that – ‘it is not necessary
that there should be absolute danger in order to constitute salvage services, it is sufficient if there is a state of difficulty, and reasonable apprehension’. According to Art 13(1)(b) of the 1989 Salvage Convention, ‘the
skill and efforts of the salvors in preserving or minimising damage to the
environment’ is one of the relevant factors in the assessment of the award.
Also, Art 14 allows to salvors who prevent or minimise damage to the environment, a special compensation.
Thus a salvor is entitled to a reward from the salved (the owner of the vessel), if he
successfully saves a maritime property and at the same time reduces the damage
that would have been caused to a third party.
•
VOLUNTARY SERVICE (VOLUNTARINESS)
Voluntariness in the law of salvage means salvage services
rendered without any prior or preexisting contractual relationship between the
parties. It also includes services not done in the line of official duty or for
self-preservation. There is no limit to the class of persons that can be considered as volunteers. As long as the persons
are recognised under law as volunteers
and they provide salvage services,
they are entitled to salvage
remuneration. As per Art 17 of the 1989 Convention, no payment
is due under the Convention unless the services
rendered go beyond what can be reasonably considered as due performance of a contract made before the danger arose. So the general rule
is that, in salvage operations,
individuals who have entered into agreements with the ship owner prior to the
occurring of danger are not recognised as salvors because of an already
existing obligation or duty to protect and preserve the ship and cargo.
•
SUCCESS
The most important element of a
salvage operation is success. Traditionally, the salvor is not entitled to
reward if a salvage operation is not successful, this principle is known as the
‘No Cure – No Pay’. Thus, the principles of traditional salvage also did not
provide for an award for environmental protection where no property was saved.
This doctrine has caused a lot of difficulties to professional salvors,
particularly because they receive no reward despite spending money and
resources on the salvage operations,
even when the salvage operation is unsuccessful. But this principle
of ‘No Cure No Pay’ has been somewhat mitigated
particularly in the area of environmental protection.
SALVAGE AGREEMENTS
In olden times, Salvage was rendered by persons or ships using personal
skill and efforts chancing their lives
to rescue the maritime property
from danger without
any specific contract. Thus there was no obligation to
continue the services and can withdraw from it anytime, yet claim a reward if
his services contributed to successful saving of the property. By half of the
20th century, most of the salvage services are performed by professional
salvors under a salvage agreement. With the development in technology and
communication, professional salvors under contract
have more facilities for salvage, with each party
having rights and duties
governing the relationship. Thus under salvage contract, there is a continuing
obligation to salve the ship by using his best endeavours to earn salvage
reward. Under this contract, in recent years a concept of special compensation
has also developed for the efforts made to prevent or minimize any damage to
the environment, whether or not property is salved.
DUTIES OF SALVOR
As mentioned earlier, a salvage operation is a service that is rendered
voluntarily and as such there are no
specific mandated duties that could be imposed on a salvor in the absence of a
salvage contract between him and the owner of the vessel that is being salved under ordinary maritime law. The salvor
can even discontinue the salvage service without incurring any liability.
However, under the Lloyd’s standard forms and the convention, there are a few
obligations upon the salvor. Due care and best endeavors are the major duties
that a salvor is expected to fulfil during a salvage operation. The LOF provide
that the salvor should use his best endeavors to salve the property and deliver it to either a place
agreed or to a place
of safety and while doing so,
the salvor must ensure that his acts does not cause any more damage that could
be prevented. This is applicable both to the salved
property as well as the damage to the
environment. In the Indian context, the Merchant Shipping act, 1958 imposes a
duty on the salvor to avoid pollution and mitigate environmental risks. The salvors
also have a duty to cooperate with not only other
salvors who are doing the salvage operation
over the same vessel
but must also cooperate with the maritime authorities and must adhere to the
relevant regulations to ensure the safety and
security of salvage operations. And
in case if the salvage operation is with respect to a cargo that is dangerous
or has the potential to create greater pollution if released then the salvor
has a duty to inform the authorities
about the same.
DUTIES AND OBLIGATIONS OF THE SALVED
The salvage operations are done to save the property of another person
thus, the owner and master of the
vessel or the owner of other property in danger shall owe a duty to the salvor as per the provisions of the International Convention on Salvage, 1989. The salved has a
duty to fully co-operate with the
salvor during the course of the salvage operations. This also means that if the
salvor requests the deployment of additional salvors during the salvage operations
then the owner must fulfil
the same. And in so doing, the salved also has a duty to exercise due care
to minimize or prevent damage
to the environment. When the salvor completes
the salvage operation and the vessel or other property has
been brought to a place of safety, the owner of the vessel must accept redelivery when reasonably
requested by the salvor to do so.
SALVAGE AWARD AND SPECIAL
COMPENSATION
Salvage award is the amount that is payable to the salvor upon the
complete or partial success of a
salvage operation and the handover of the
salved property. It is awarded in proportion to the value of the property
salved. Thus, it follows that a salvage award can never exceed the value of the property
salved. The salvage
reward will be ascertained and fixed so that the future
salvors would be encouraged to partake in them. Thus certain criteria are taken
into account while ascertaining the savage reward like the value of the vessel
and other property, the skill and efforts of the salvor
on preventing or minimizing damage
to the environment, the
measure of success obtained by the salvor, the nature and degree of the danger,
the skill and effort of the salvors in salving the vessel, the property and life, the time used and losses and
expenses incurred by the salvors, the risk of liability and other risks run by the salvors
or their equipment, the promptness of the services rendered, the availability and use of vessels or other
equipment intended for salvage operations and the state or readiness and
efficiency of the salvor’s equipment and the value thereof.
Special compensation given to the salvors is a way of compensating for the care that the salvors
took while doing a salvage operation in such a manner so as to minimize or
prevent the environmental pollution. Even if the salvage operation was a failure,
the salvor shall be entitled to a special compensation from
the owner that is equivalent to the expenses incurred by the salvor.
CONCLUSION
The law of salvage underwent radical changes: it went
from being a simple customary practice to a highly developed and codified system of rules
under national and international regimes. The International Convention on Salvage, 1989, was perhaps the crowning
glory of this legal development as it incorporated modern features such
as environmental protection incentives and structured salvage agreements. These
advances achieve a balance between the need to reward salvors' voluntary and
skilled efforts and the requirement to minimize environmental impact,
particularly during a period of increased ecological awareness. Salvage
operations currently feature a delicate balance of ancient maritime principles
and contemporary legal adjustments, with success, voluntariness, danger, and
cooperation all considered vital components.
The rights and obligations of both salvors
and salved parties are defined with all clarity under this law; it also states
the criteria for awarding salvage and special compensations. The law thus
ensures fairness and prepares the minds for potential emergencies in maritime.
The framework, therefore, achieves more than mere incentive for rescue efforts.
It helps in the protection of marine environments and economic interests,
highlighting the need for salvage law in modern maritime practice.
REFERENCE
1. Aleka
Mandaraka-Sheppard, Modern Admiralty Law 649-730
(Cavendish Publishing Limited, London and Sydney, 1st edn., 2001).
2. Simon Baughen,
Shipping Law 292-322 (Routledge-Cavendish, London and New York, 4th edn, 2009).
3. Evan Calder
Williams, “Salvage” 49 Journal of American
Studies. Cambridge University
Press (2015).
4. IMO, International Convention on Salvage,
1989, Published by Lex Mercatoria.
Article Information
AN OVERVIEW ON SALVAGE: LEGAL FRAMEWORK, DUTIES, REWARDS AND ENVIRONMENTAL RESPONSIBILITY
Authors: ADV. ARDRA MINI SATISH, ADV. ARUN R.S.
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/12
- Issue 7
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International Journal for Legal Research and Analysis
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