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Law of Marine Salvage DETAILED OUTLINE

Law of Marine Salvage DETAILED OUTLINE. 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

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Law of Marine Salvage DETAILED OUTLINE

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  1. Law of Marine Salvage DETAILED OUTLINE • 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

  2. Law of Marine Salvage DETAILED OUTLINE 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.

  3. Law of Marine Salvage DETAILED OUTLINE “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.”

  4. Law of Marine Salvage DETAILED OUTLINE 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.

  5. Law of Marine Salvage DETAILED OUTLINE C. Cases on Wrecks: Historic or otherwise • HMS Edinburg • Titanic • Simon v. Taylor [1975] • Treasure Salvors Inc. v. Unidentified Wreck and Abandoned V/L [1985] • The Lusitania [1986] • The Mary Rose

  6. Law of Marine Salvage DETAILED OUTLINE 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.

  7. Law of Marine Salvage DETAILED OUTLINE LAW OF SALVAGE Fundamental Principles • Prevention of Unjust Enrichment and Providing Restitution • Public Policy • Maritime Property — Subject of Salvage Equitable Notions of — • Restitution • Unjust Enrichment • Implied Contract • Quasi Contract • Quantum Meruit • Salvage is sui generis

  8. Law of Marine Salvage DETAILED OUTLINE 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.

  9. Law of Marine Salvage DETAILED OUTLINE (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.

  10. Law of Marine Salvage DETAILED OUTLINE 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.]

  11. Law of Marine Salvage DETAILED OUTLINE 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

  12. Law of Marine Salvage DETAILED OUTLINE 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”.

  13. Law of Marine Salvage DETAILED OUTLINE (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]

  14. Law of Marine Salvage DETAILED OUTLINE (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 self- preservation 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]

  15. Law of Marine Salvage DETAILED OUTLINE (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.

  16. Law of Marine Salvage DETAILED OUTLINE 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.

  17. Law of Marine Salvage DETAILED OUTLINE 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

  18. Law of Marine Salvage DETAILED OUTLINE 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.

  19. Law of Marine Salvage DETAILED OUTLINE 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.

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