Concept of Salvage in the Law of England and Wales - Essay Example

? Maritime Law: "Critically discuss the concept of salvage as found in the law of England and Wales" Introduction In maritime law, the concept of salvage states that an individual who helps in the recovery of another person’s ship after some danger or risk at sea is entitled to a reward to appreciate their efforts according to the value of the property saved. The law of salvage has been in place over the centuries in cognizance of the dangers and the risks associated with the sea. The right to be compensated for salvage at sea is usually based on equitable principles. A contract is not a requirement for a reward on the basis of salvage law to be offered. Essentially, the owner of the vessel in peril does not have to authorize the rescue efforts. It is assumed that a prudent owner would accept the salvage terms offered if time and circumstances allowed for negotiations. The right to salvage compensation is a legal liability arising from the fact that a property has been recovered. It is recognized that an individual who voluntarily risks his life and property to successfully rescue another vessel in peril at sea should be appropriately rewarded by the owner of the saved property. The amount of compensation for rescue efforts is not only evaluated to reward the humanitarian efforts but also to encourage marine commerce. Therefore, the amount of reward given is not measured in relation to the labour and time that the salvors provide. In reality, the courts have allowed for liberal rewards even when the little effort has been put in. 2. Conditions required There are basic conditions that must be met for a salvage claim to be valid in the eyes of the law. First, the equipment under salvage must fit in the defined categories of recognized vessels. The vessel must also be in peril or imminent danger. The definition of peril and danger is broad since the scenarios in the sea are expansive. The salvor must act voluntarily without the necessity of a contract. Also, the action of salvage must be successful for a claim of payment to be valid. 2.1. Recognized Subject Matter for Salvage In the early times, salvage only recognized a ship and the cargo on board. However, the definition of the subject matter has been expanded in the recent times culminating into the 1989 Salvage Convention which is in line with the Merchant Shipping Act. A vessel includes any ship or structure that can navigate in the seas. The cargo carried in a vessel is considered under the subject matter for salvage. All the merchandise that is carried in the vessel is included in the consideration of claims in regard to salvage compensation. However, according to The Winson [1982] 1 Lyod’s Rep 117, personal effects and items for ordinary use are not considered as subject matter for salvage claims. The freight at risk is also considered under the subject matter of salvage. This is in cognizance of the fact that the freight in the vessel could have otherwise been raised save for the rescue effort. Notably, the freight which is advance is not considered as a subject of salvage. The money that is required for passage fees is also included as freight. In the case law of The King v Forty-nine Casks of Brandy [1836] 3 Hagg 257, it was held that the wreck of the ship is also part of the subject matter in salvage consideration. According to Davis (2004), the jetsam, flotsam and lagan found at the sea or shores of the sea are considered a part of the wreck. The issue of life salvage has also been a subject of debate in the realm of maritime law. Life salvage is only payable out of the property that is salvaged. For salvage claims to be valid, there must be something saved more than life. Essentially, saving only a life does not warrant a sufficient ground for salvage claims. It should be noted that the protection of the environment is considered as part of salvage. Accordingly, a valuable service that is performed to help the community must be rewarded. 2.2 Real Danger on the Vessel Under the maritime law, the vessel to be rescued has to be in real danger that has the capability to destroy or damage the vessel. However, the danger does not have to be immediate or absolute for it to qualify has a genuine ground for salvage. Hence, it is sufficient to consider cases where there is reasonable apprehension of danger or future harm. Abandoned vessels left at sea and rescued as derelict are include in the consideration for salvage claims. The burden of proof to ascertain the existence of danger lies with the salvor. The salvor has to show that real danger existed before the service of salvage begun. The court has the obligation to conduct objective tests to assess the validity of a claim of danger. One of the considerations that a court has to make in determining the existence of danger is how a reasonable Master of the vessel in distress would have responded to an offer of assistance. This is necessary to evaluate if indeed there was danger that would warrant acceptance of assistance. The other question that the courts ponder in determination of validity of danger is whether there was a real apprehension of danger even if the danger may not have come to pass. The credibility of the perceived danger must also be investigated to assess whether they are fanciful or remote. In the case of Troilus (1951 1 Lloyd's Rep. 467, HL), the court had to determine the credibility of future danger. The vessel docked safely at the harbor although it was not in perfect condition. The Salvor helped to tow the vessel to the UK and therefore made salvage claims. The court upheld that indeed the owner was liable to pay the salvage claims even though the danger on the ship had not materialized In the application of the law, the point of interest is usually not only the existence of danger but the extent of the danger under consideration. This is critical considering that the courts issue awards depending on the severity of the danger. The award issued has to commensurate with the danger that was averted. 2.3. Voluntary Service This essentially means that the salvage service has to be rendered without any pre existing contracts or agreements. The salvor also has to act beyond the interest of self preservation for the salvage claims to be valid. In this context of voluntary service, there is no limit on who can offer salvage services.Under normal circumstances, it is held that the Master and crewman have a pre existing employment agreement and therefore their actions cannot amount to salvage. The actions of the crew is taken to be within the ordinary course of duty and hence do not warrant issuance of compensation. However, as noted in Akerblom v Price, Potter, Walker & Co. (1881) QBD 129, it is possible to compensate the crew if they act beyond the ordinary call of duty. It is possible for crewmen to be considered as salvors under special conditions. This can occur if their employment contracts are actually or constructively terminate before the commencement of the salvage. One of the scenarios that can imply termination of contract is if there is authorized abandonment of the ship under the Master’s authority (Hill, 2003). If the crew is discharged by the Master, then any action that they may perform to rescue the vessel is considered as the action of salvors. Authorized abandonment of a vessel is a condition whereby anticipated return to the vessel is nil. However, temporary abandonment does not confirm termination of contract for the crewmen hence they are still considered to be duty bound to the vessel. If a vessel is captured in a hostile encounter, then it is considered that the employment contract for the crewmen has been terminated. Therefore, any duties that the crewmen may perform are not considered to part of their duties. The crew is entitled to obtain salvage if they perform a rescue operation on the ship after a hostile encounter. 2.4. Success The final element of the right to salvage is the success of the operation. The consideration for success may be either full or partial with the salvor making a substantisive contribution to that success. The basis for success as an element of the right to salvage is informed by the maxim that “no pain, no gain.” The salvor has to save part or whole of the property that is under consideration. There has to be a measure of preservation to the owners for the right to salvage to be valid. The salvage service has to redeem the vessel in peril otherwise no award will be given. If the efforts result in destruction or worsen the situation of the vessel, then the salvor is not in a position to receive a reward. Suffice to say, if the salvor is the cause of the situation that resulted in the need for salvage services, then it is not tenable to expect compensation for the services rendered. The issue of success in a salvage operation is subject to various interpretations depending on the contextual circumstances surrounding the case. In Melanie v The San Onofre (1925 AC 246), it was held if the rescue operation results in further danger, then it does not qualify to be considered for salvage compensation. The effort of the salvor has to contribute to the ultimate success of the rescue operation for it to qualify for a reward. Notably, the salvor is required to exercise due diligence and care when rescuing a vessel since they are liable for any damages that may occur due to recklessness on their part. This literally means that in as much as one may qualify for a right to salvage; there might be claims of damages laid upon the salvor by the owner of the vessel. 3. Recent Developments One of the recent developments in the area of maritime law relating to salvage is the issue of the environment. Any action that helps to alleviate damage to the environment is entitled to a reward on the salvage. The previous laws do not allow for rewards when the rescue effort does not result in a successful salvage operation. However, the Salvage Convention of 1989 introduced special compensation that was meant to encourage salvors to minimize damage done to the environment due to oil spills and fuel leakages. This essentially means that salvors are entitled to a form of reward for their efforts to salvage a vessel with oil spills even if they are not successful. Specifically, the salvor receives full compensation for the resources used and a reward of 200% even if their efforts are futile. Under article 14 of the Salvage Convention (1989), if the operation of rescue is successful the salvor is entitled to receive enhanced special compensation.  This means that the salvor may receive compensation of thirty percent on top of their expenses. The increased consideration on the issues concerning the environment is due to the importance of a stable and healthy marine and human environment. Damage to the environment is catastrophic and every effort has to be made to encourage the preservation and protecting of the environment. There have been cases of oil spills that have resulted in destruction of priceless marine ecosystem. The introduction of the special compensation system serves the purpose of motivating the sea farers to initiate rescue operations for oil vessels in order to minimize the risk to the environment. 4. Considerations for Salvage Rewards In the past salvage rewards were made solely based on the value of the vessel. However, recent developments have made it necessary for the courts to consider a number of factors before rewarding salvage claims. Some of the factors considered are the value of the vessel and the anticipated success of the salvor. Besides, the danger that was averted by the salvor is also critical in determining the amount of reward due. This is because the reward has to commensurate with the danger that was avoided in order for the reward to be fair in recognition of the efforts of the salvor. It is also essential for the salvor to be compensated for the time and labour that they put into the rescue effort. The salvor puts their life and equipment in danger in order to salvage a vessel in danger. Hence, the courts are obliged to at least compensate them for the resources that they put in the rescue operation. 5. Conclusion The concept of salvage in marine law is important in order to reward the humanitarian effort of the salvors and encourage marine commerce. The guidelines for a right to salvage claims lay emphasis on the existence of danger and also the success of an operation. The amount of reward that the salvor receives is dependent on the contextual circumstances in the operations and other factors specific to a given salvage operations. However, the amount of award that the salvor receives is ultimately the discretion of the courts. Bibliography Baughen, S.,2009. Shipping Law. Oxford, Oxford University Press. Brice, G. 2003. Maritime Law of Salvage, 4th ed. Sweet and Maxwell, London. Davis, C. 2004. Maritime Law Deskbook. Pearson, New York. De Burgh, W., 2009. 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The Modern Law of Marine Insurance. Prentice Hall, New York. Read More