Shipping Law
Protection of the Marine
Environment-Under pressure from the salvage operators, the LOF 1980 was modified to permit the recovery of the salvors expenses, where the salvage operation concerned oil tankers, if the salvage reward under the no-cure no-pay principle was insufficient. The Salvage Convention is the salvage law for England overriding all pre-existing laws of salvage.
The Salvage
Convention-The SC applies where salvage matters are brought before an English court or an arbitration panel seated in England. Thus it applies irrespective of the flag of the ships involved, or the area of the sea in which the salvage operation is undertaken (war ships and state owned vessels are generally excluded). The UK has reduced the scope of the application of the salvage convention by excluding salvage operations in inland waters, where all vessels involved are that of inland navigation.
Unless permanently and intentionally attached to the shore, an object or structure can be subject to salvage, such as freight or cargo. For an operation to fall under the definition of salvage, the relevant property must be in danger (Art. 1 (a)). The Salvage Convention does not define the term danger. The pre-existing requirement under English law is that of “real danger, reasonably apprehended”. This notion is widely accepted. The danger does not need to be present at the time of the sustained damage, provided that it is reasonably expected that it will arise before self-help can remedy the situation. Thus a ship immobilised by engine failure is in a general state of danger, even if it is anchored and the weather is calm and if there is no possibility for repairs to be performed. Refer to The Troilus and the Glenogle (1951). Also, a vessel breaking one mooring line, and swinging around its mooring point would be in danger, if there was a risk of a collision with a buoy. Refer to The Hantum and the St John (1999), or if it unable to turn around in a strong current. Refer to The Tramp (2007.
Whether the vessel is in danger or not is to be decided objectively by the judge or arbitrator. The Master’s opinion is not conclusive in this respect, Refer to The Hantum and the St John (1999). Even if he is the person who will request or accept the salvage assistance.
The salvor is under a duty to perform the salvage operation with due care, and in doing so to minimise environmental damage and, to seek assistance from other salvors if needed. If the salvor fails to fulfil these duties, he may receive a reduced reward or, no reward at all (Art. 18). The owners of the property in danger are under an obligation to cooperate fully with the salvor, to prevent or minimise environmental damage, and to accept re-delivery at a place of safety.
Refer to The Troilus and the Glenogle (1951). One could argue that the following term would be a better definition; “a place of physical safety can be a place where the property can stay without being under immediate threat from the elements, even if it cannot be repaired and returned into service. One may also argue that once the property/vessel has been brought into physical safety, cheaper methods of transportation to a place of repair, eg towage, could and should be employed, if available. If a salvage operation has a useful result, then a right to a reward arises (Art. 12). The SC does not define what a useful result is, the term may imply an improvement to the condition, value or quantity of the property salved, and not merely that just some property has been salved.
So if for eg, the salvors save property that would have been saved without their assistance, clearly no useful result has been achieved, meaning that no reward should be given. Also, under English law, salvors are liable for any damage caused as a result of their negligence, and ship-owners can recover such damages. Refer to The Tojo Maru (1972). However salvors do possess a limited liability
exposure under schedule 7 of the Merchant Shipping Act 1995.
The wording in Art 12 suggests that the term useful, implies more than the mere salvage of property. As such, an alternative argument may be that the salvage of any property is in itself a useful result, subject to the reservation that where the salvor has not exercised due care or has not been efficient, he may face a reduced reward under Art 13, or full deprivation of the reward under Art 18. Where the saving of lives at sea does not alone provide a right for reward, when the life is saved together with property, the SC provides for a fair share of the amount paid for salvage. (due to increased risk). Who can claim the salvage reward?-
The right to a SR is supported by a maritime lien of the highest priority, refer to The Bold Buccleugh (1851) & The Ruta (2000), and by a possessory lien. The only restriction stopping a maritime lien from being imposed is when security is provided. To enhance the probability of recovery for the salvor, the SC provides that the ship or other property salved, should not be moved from the port prior to the provision of security.
Apportionment of the SR and limitation of
