Beruflich Dokumente
Kultur Dokumente
SALVAGE LAW
Module One: General Principles of Salvage
Course Director
Archie Bishop
Consultant and Former Senior Partner of
Holman Fenwick Wilan
1. Welcome
Welcome to the Certificate in Marine Salvage Law.
Marine salvage encompasses a diverse range of operations and processes that flow from rescuing
ships, cargo or other property from danger and in so doing protect the environment. A diverse range
of organisations and individuals play various parts. All of these players and processes operate within a
complex framework of legal principles, conventions, forms and contracts.
In recent years, there have been many developments and changes in the working practices of salvors
and in the law which governs them, and it is more important than ever for anyone involved, or
potentially involved, in any aspect of salvage to have a solid and up-to-date understanding of the
relevant legal principles that govern all parties in any salvage operation.
As a participant in this programme, you will be learning the legal issues that can arise in any salvage
operation from experienced legal practitioners with practical experience. Knowledge of these issues
and the legal principles underpinning them will be invaluable to you, whether directly or indirectly
involved in salvage or towage operations, as a salvor, shipowner or manager; or as a professional
working in sectors such as insurance, surveying or investigation.
Remember to use the online course forum to ask questions, discuss issues with your fellow students
and share your ideas.
I am sure you will enjoy this invaluable programme and am delighted to welcome you as a participant.
Archie Bishop
Course Director
Consultant, Holman Fenwick Willan
Each module has an online assessment that is accessed via the online learning portal. Please see your
Welcome Pack for more details.
• History
• Definition
Volunteer
Success
Subjects of salvage
Danger
• Abandonment
• History
• Chapter I
Article 1 – Definitions
Article 11 – Co-operation
Article 24 – Interest
• History
• Administration
Currency of award
Clauses A–L
Important notices
• Statistics
Lloyd’s guarantees
• The problem
• The solution
• Appendix A
• Appendix B
• Appendix C
• SCR digests
• Towage contracts
Towcon 2008
Towhire 2008
Wreckfixed
Wreckstage
Wreckhire
Those who complete this course will have a much better understanding of the principles of salvage law
and sufficient knowledge to play an effective part in the handling of a modern-day salvage claim
whether it be from the point of view of the shipowner, underwriter, P&I Club, salvage contractor or
indeed a Salvage Master.
The notes in the course are necessarily brief but can be expanded, should the student desire, by
reference to either or both of the two Bibles of the salvage practitioner, Brice on Maritime Law of
Salvage – 4th Edition, edited by John Reeder (Sweet and Maxwell) and Kennedy and Rose on the Law
of Salvage (Sweet and Maxwell).
You will find “salvage” a most interesting and colourful branch of the Law – Relax and enjoy it!
Learning Outcomes
On successfully completing this module you will be able to:
• Understand the general principles that underpin modern salvage law.
• Appreciate the distinction between common law salvage and contractual salvage.
• Learn the four essential elements of any salvage claim
In England, an Act passed in the reign of King Edward III in 1352 provided that salvage services should
be properly rewarded and as Britain’s sea trade developed, there are many references to salvage
claims in the records of the English common law and courts of equity in the 17th, 18th and 19th
centuries. In those times cases were generally subject to the jurisdiction of the courts and there were
few, if any, arbitrations. As a result, considerable case law was established, particularly by the
Admiralty Court in the 19th and early 20th centuries. Cases which still have relevance today.
At the beginning of the 20th century, the law of salvage was codified by the Salvage Convention of
1910. While the UK was a signatory to that Convention it did not actually pass an Act to endorse it for
much of the Convention was already part of English common law. Such changes as were necessary to
comply with the Convention related to the time for commencement of proceedings and were
incorporated into section 8 of the Maritime Conventions Act 1911. (Now section 190 of the Merchant
Shipping Act 1995).
The twentieth century also brought with it the world’s first international salvage contract. Conceived
in 1894 as a salvage contract for a casualty in the Dardanelles, Lloyd’s Open Form (LOF) was published
for international use in 1908. LOF was (and still is) subject to English law and, therefore, incorporated
all English case law (the common law). It was (and still is) subject to arbitration which over the years
has gradually taken over and replaced the salvage actions previously dealt with by the Admiralty Court.
More and more cases were heard and decided by way of arbitration and fewer and fewer by the
Admiralty Court. As a result, there are fewer judicial precedents in the late 20th century though a
whole raft of arbitral precedents have been built up by the arbitration system under Lloyd’s Form (see
LOF Digest published by Lloyd’s).
In the latter part of the 20th century there was a move to amend the 1910 Convention. This gained
momentum following the grounding of the Amoco Cadiz in 1978 off the north-west coast of France,
which resulted in a spill of some 220,000 tonnes of crude oil on a beautiful and rocky coastline causing
immense damage to tourism and fisheries. The consequence was the 1989 Salvage Convention which,
as we will see later, whilst endorsing much of the English common law of salvage, made fundamental
changes and additions to it.
Those ancient reasons for the right to salvage hold good today, notwithstanding the greater presence
of ships on the sea and modern communication, which permit immediate calls for assistance. However,
in recent times, another reason has been added – the protection of the environment. The Salvage
Convention of 1989 in its preamble states:
“NOTING that substantial developments, in particular the increased concern for the protection
of the environment, have demonstrated the need to review…”
“CONSCIOUS of the major contribution which efficient and timely salvage operations can make
to the safety of vessels and other property in danger and to the protection of the environment.”
“CONVINCED of the need to ensure that adequate incentives are available to persons who
undertake salvage operations in respect of vessels and other property in danger.”
To promote the new objective, the protection of the environment, the Convention imposes a new
obligation on the salvor to exercise due care to prevent damage to the environment and makes
provision for a new fail-safe system of remuneration to the traditional salvage award. The old “no cure
– no pay” rule of salvage has been breached. Under Article 14, a minimum award, called special
compensation, can now be given whenever there is a threat of damage to the environment and the
traditional award is insufficient. Thus, the modern-day salvor is not only encouraged to go to the
assistance of ships and property upon the sea but also, when salving them, to prevent and minimise
damage to the environment. We shall be discussing these provisions in greater detail in Module 2.
“A service voluntarily rendered in relieving property from an impending peril at sea by those
having no obligation to do so.”
Phelan v Minges (1959) AMC 975.
The 1989 Salvage Convention (Article 1(a)) defines “salvage operations” as:
“The act or activity undertaken to assist a vessel or any other property in danger in navigable
waters or in any other waters whatsoever.”
However, one of the most complete definitions is that given by the late Geoffrey Brice QC in his book
Maritime Law of Salvage:
“In English law the right to salvage arises when a person, acting as a volunteer, preserves or
contributes to preserving at sea any vessel, cargo, freight or other recognised subject of
salvage in danger.”
The distinction between towage and salvage, therefore, is rarely a problem today but it was frequently
a problem in the days of sail and steam. Sailing ships that had become becalmed or defeated by the
tide would often take a tow from a steam tug to save time. Was this, in law, towage or salvage? In The
Reward (1841), which involved such a dispute, it was said:
“A towage may be described as the employment of one vessel to expedite the voyage of
another when nothing more is required than the acceleration of her progress.”
In The Princess Alice [1849] 3 W Rob 138, the Admiralty Judge said:
“I apprehend that mere towage service is confined to vessels that have received no injury or
damage, and that mere towage is payable in those cases only where the vessel receiving the
service is in the same condition she would ordinarily be in without having encountered any
danger or accident.”
The essential difference between salvage and towage is therefore primarily one of danger but there
are also other practical differences. The following summarises those differences:
(ii) Normally salvage involves a claim against both the shipowner and the cargo owner
whilst towage normally only involves the shipowner;
(iii) A successful salvage claim requires ultimate success whilst towage often does not
(iv) Salvage gives rise to a maritime lien whilst towage only gives a right to a statutory lien.
However, while there are still common law salvage claims, today the vast majority of modern-day
salvage operations are carried out under contract. Some contracts, such as those for wreck removal,
The Salvage Convention of 1989 has largely codified salvage law and both common law and contractual
salvage claims are governed by it. However, it should be noted that the Convention is not the exclusive
source of salvage law. Where silent on a particular issue or where there is uncertainty as to its meaning,
the old English common law rules continue to apply. Numerous examples of this will be seen later in
this module. It should also be noted that it is possible to contract out of most of the provisions of the
Salvage Convention (see Article 6.1). Those that cannot be contracted out of are limited to the
annulment or modification of contracts (see Article 7) and the duty of the salvor, the owner and the
master to prevent or minimise damage to the environment (see Article 6.3).
2. To be successful;
While these are not all essential elements to a salvage contract (which, like LOF, accepts that the vessel
is in danger and that the property to be salved is a proper subject of salvage) they are all essential
elements to a “common law” salvage claim. We will, therefore, examine each in some detail.
4.5.1 Volunteer
To be entitled to recover salvage remuneration for a common law salvage claim, the salvor must be
recognised in law as a volunteer. There is no guidance or limitation to be found in the 1989 Salvage
Convention as to what constitutes a volunteer, and to resolve this problem we need to look at the old
English common law position. Generally speaking, the owners, masters and crew of a vessel or vessels
rendering the salvage assistance will be volunteers, but there are cases where they are not and it is
easier to describe the exceptions.
A person acting under a pre-existing contractual duty will not be recognised as acting in a voluntary
capacity. This is reinforced by Article 17 of the 1989 Salvage Convention which provides:
“No payment is due under the provisions of this Convention unless the services rendered
exceed what can reasonably be considered as due performance of a contract entered into
before the danger arose.”
However, it would seem that a contractual duty to act for one person does not preclude a claim against
a third party who was not privy to the contract and to whom no duty was owed (The Sava Star [1995]
2 Lloyd’s Rep 134 and The Sarpen [1916] P 306).
The following are examples of a pre-existing contractual duty to act. To be permitted to claim salvage,
the claimant must prove what he did was outside the scope of his pre-existing contractual relationship
– something that was not envisaged by the parties when they contracted.
A typical example of a contractual obligation under a towage contract would be for the tug to
reconnect if the towline broke at any point. It may not be stated in the contract, but it is something
that could be reasonably envisaged by the parties when they entered into it and the tug would not be
able to claim salvage for so doing. However, if the towline broke, through no fault on the part of the
tug, and the ship ran aground before the towline could be re-established, no one would expect any
subsequent service to refloat the ship to be governed by the towage contract. It would be work of a
very different nature and outside the scope of the work envisaged by the contract. In such
circumstances, salvage could be validly claimed (The Minnie Haha [1861] Lush PC 335).
4.5.4 Pilotage
Similarly, a pilot has a duty to navigate the vessel within his designated area. However, if that vessel
were to ground through no fault on his part, perhaps because of a steering failure, and he were to
assist in her refloating with his knowledge of the locality, tides and currents, he would be entitled to
claim salvage, for the assistance he rendered was not a service contemplated by the terms of his
original contract (The Aeolus (1873) Asp MLC 516 at 518 and The Luigi Accame (1938) 60 Ll L Rep 106):
“A pilot is entitled to claim salvage if the ship is in danger by reason of circumstances which could not
reasonably have been contemplated when he was engaged and the services rendered could not
reasonably be regarded as being within the scope of his engagement.” (The Aldora [1975] Lloyd’s Rep
617 at 623).
The crew of the ship, under the terms of their employment, are under a duty to safeguard the vessel.
So, if there were to be a fire on board or anything else untoward were to happen which endangered
the ship, they would not normally be entitled to make a claim for salvage, for any assistance they gave
would be a duty imposed by the terms of their contract. If, on the other hand, they had legitimately
and reasonably abandoned the ship (thereby releasing them from their duties of employment) and
some time later re-boarded her, extinguished the fire and took her to safety, they would be entitled
to a salvage award (The San Demetrio (1941) 69 Ll L Rep 5).
In recent years, to protect their coastlines a number of governments (South Africa, France, Germany,
Holland and the UK) have entered into arrangements with tug owners for the provision of station tugs
in pre-designated areas with a view to ensuring salvage assistance is readily available if required. The
precise terms of these governmental contracts vary but, generally speaking, they provide that if the
station tug ultimately has to provide salvage assistance she is released from her government contract.
Such a provision is designed to protect the volunteer status of the salvor. However, it is probably not
necessary for as we have seen above it would seem no duty is owed to a third party who is not privy
to the contract. The quid pro quo for releasing the tug from her government contract is usually that
the government shares in the salvage award in some way.
The RNLI is a charity which operates around the coast of the UK. Its sole purpose is the saving of life at
sea. As we shall see, the salvage of life does not give rise to a claim against that life but if property from
the same accident is salved, it does give rise to a claim against that property (Article 16 Salvage
Convention). As the RNLI and the crew of its lifeboats have a duty to save life, they cannot benefit from
these provisions, but in many cases, aside from saving life they do actually assist in saving property. In
such circumstances they would be entitled to claim salvage against that property. In the event, it is the
policy of the RNLI not to claim salvage against property. However, they permit their crews to claim and
this they often do.
The attitude of the courts towards such claims is illustrated by two cases:
(1) In The Viscount [1996] 1 Lloyd’s Rep 328, the judge said:
“The primary duty of lifeboat men manning lifeboats and by the Royal National
Lifeboat Institution is the saving of life. It must be clearly understood that in the course
of standing by to save life, this court is giving no encouragement to lifeboat men to
get a line on board a disabled vessel at all costs; but nevertheless they must be
encouraged to stand by and give such assistance without unduly risking the craft,
where necessary.”
(2) In The Africa Occidental [1951] 2 Lloyd’s Rep 10, the judge said:
“If lifeboat men, at their own risk, go beyond what is strictly required in the
performance of their main duty of saving life, what they do can only be regarded as
highly meritorious, and ought to be remunerated by an award which will encourage
them, and others, in the future.”
A prime example of this would be a fire brigade in the UK. Under the Fire Services Act 1947, a fire
authority has a duty to assist in extinguishing any fire. It follows that a fire authority or its firemen are
not volunteers and are not entitled to claim salvage for services rendered within their jurisdiction or
The above should be distinguished from private fire brigades, such as those created for a specific
installation. In such cases much would depend on whether they had a contractual duty to act and to
whom that duty was owed.
In a recent case before the Supreme Court of South Africa, the port authority whose tugs had rendered
services in the nature of salvage to a visiting ship, were found to be unable to claim a salvage award
for their successful efforts because under the relevant harbour regulations the port authority had a
general statutory obligation to furnish tug and towage services to users of the port. (Transnet v The
m.v. Cleopatra Dream (163/10) 2011 ZASCA 12 (11 March 2011)
One of the principal duties of the armed forces of the UK is to protect shipping from hostile attack.
They are, therefore, not entitled to claim salvage for so doing.
“…the Court must be very careful indeed not to lay it down that whenever such protection is
afforded by one of His Majesty’s ships the services thus rendered are to be rewarded by
salvage remuneration.”
In The Belle [1809] All ER 165, while evacuating British troops from Corunna, a ship grounded
accidentally and was abandoned. A naval officer, at great personal risk, boarded and refloated her. It
was held that he had been performing his duty and thus was not entitled to salvage.
However, while the Royal Navy have a duty to protect nationals from warlike operations they have no
duty to proceed to the assistance of other ships in a non-war situation, so if they render salvage
services they are not precluded from claiming by reason of not being a volunteer.
An interesting point arises from the recent piracy cases off Somalia. Many naval ships are present
protecting merchant shipping. If they prevent an act of piracy would they be able to make a valid
salvage claim against the salved property? A British naval vessel protecting a British ship would
probably not be able to, but what if she protects a foreign flag vessel? Again, probably not for that’s
the very reason she has been sent to the area but much would depend on her duty under the
international arrangement that has been made. What about those who negotiate and pay the
ransoms? It is likely that they would be prevented from claiming because they have a duty under their
contract to do what they do.
4.6.4 HM Coastguard
The coastguards’ duties include assisting vessels in distress, and to that extent, in rendering services
of a salvage nature they are performing their public duty. It follows that generally they are not
volunteers and cannot claim salvage. However, if the services they render are outside their public duty,
a salvage claim could be made.
The motive of the salvor in rendering the service does not prevent him from being a volunteer. A
professional salvor’s principal motive is to earn money from salvage but this does not prevent him
from being a volunteer. In an American case, The Lee (1884) 24 F 47, it was said:
“It is important to note that the concept of salvage does not require that the salvor’s act out
of any spirit of charity or social concern. Rather the purpose of the salvage award is to
encourage individuals to render prompt assistance where needed at sea. Thus, the fact that
the plaintiffs have been motivated by the opportunity for material gain does not prevent them
from receiving an award for salvage.”
This is reinforced by Article 13 of the Salvage Convention (Article 13.1(i) and (j)) which clearly envisages
that salvage will be carried out by professional salvors.
Nor does the motive to save one’s own life disentitle one to a salvage claim if there is still a voluntary
act. In The Lomonoscoff [1921] P 97, British and Belgian officers in enemy territory, of their own
volition, boarded and took control of a captured ship and then escaped with the ship from the
Bolsheviks. Their principal objective was to save themselves but in so doing they also saved the ship
for her legitimate owners. They were held to be entitled to salvage (see also The Sava Star [1995] 2
Lloyd’s Rep 134 and The San Demetrio (1941) 69 Ll L Rep 5).
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