|
The concept of marine
salvage
has been recognized by the law since the times of
Byzantine Empire. In modern times, the Salvage
Convention of 1910 was adopted by an international
panel and ratified by the United States in 1913. The
U.S. also adopted a Salvage Act in 1912 to
supplement the Convention and address new
circumstances.
Unlike land based volunteer
acts to save property, the person who saves property at
sea is entitled to a reward which is generously computed
in light of the fundamental public policy involved.
Public policy, to encourage mariners to provide prompt
service in emergencies, is to award compensation much
greater than the value of the actual labor involved.
The formal requisites of an act
of salvage, in a way similar to those required for
general average, are the following:
1) there must be a serious peril from which the vessel
or property could not have been rescued without the
salvor's assistance;
2) the salvor's act must be voluntary (no legal or
official duty to render assistance);
3) the act must be successful in saving all or part of
the property at risk.
When the property has been
abandoned, anyone may become a salvor and if the owner
later wants to reclaim his property, he would take it
subject to a lien for the salvage claim. The owner in
possession of the property, however, does not have to
accept an offer of salvage. While the typical act of
salvage involves the rescue and tow of a vessel at sea,
the range of situations which can constitute salvage is
quite broad. Among examples of salvage are the
following: the escorting of a distressed ship to a
position where aid can be rendered; giving information
on how to avoid an obstruction such as an ice floe or to
avoid running aground; carrying a message which results
in the provision of emergency assistance. In general, it
can be said that, so long as a vessel is in danger,
almost any voluntary act which contributes to its
ultimate safety or rescue may qualify as an act of
salvage.
As was noted earlier, certain
tests must be met for an act to qualify for salvage. For
property to become subject to salvage it must be on the
water or on a beach or reef. It was also mentioned that
since the act of salvage must be voluntary, a person who
is under a duty to provide assistance cannot claim as a
salvor. A crew member, for example, would not qualify
under any circumstance. The same goes for passengers.
Public employees such as firemen or even licensed pilots
are not entitled to an award for saving property if it
was their duty to do so. On the other hand, a salvage
claim is not defeated by the fact that the salving
vessel is professionally equipped to render assistance
or engage in salvage operations. It should be noted
that, while nothing prevents a government from claiming
salvage, the U.S. Coast Guard has long provided a rescue
service with a traditional policy of not claiming
salvage for its rescue efforts.
For what concerns the amount of
a salvage award, a court opinion from The Blacwall
is often cited:
"Courts of admiralty
usually consider the following circumstances as the main
ingredients in determining the amount of the award to be
decreed for a salvage service:
"(1) The labor expended by the salvors in
rendering the salvage service.
"(2) The promptness, skill and energy displayed
in rendering the service and saving the property.
"(3) The value of the property employed by the
salvors in rendering the service, and the dangers to
which such property was exposed.
"(4) The risk incurred by the salvors in
securing the property from the impending peril.
"(5) The value of the property saved.
"(6) The degree of danger from which the
property was rescued."
The items taken into account in
assessing the value of the property are the ship,
freight and cargo. The salvage award can never be
greater than the value of the salved property and will
always be substantially lower except in the case of
abandoned or derelict property. Where substantial values
are involved, awards tend to be under 20% of the value
of the property.
Salvage awards are for salvage
of property, not life.The 1912 statute does not provide
for awards for the pure salvage of life unaccompanied by
salvage of property. Salvors of human life, however, who
have taken part in the services rendered on the occasion
of the accident giving rise to salvage, are entitled to
a fair share of the remuneration awarded to the salvors
of the ship, her cargo and accessories. In other words,
the trial court will also consider moral as well as
economic issues.
There are two types of salvage
contracts. One is the agreement in extremis
entered into by the master of a vessel in danger under
the stress of circumstances. The second type can be
entered into by the owner and a professional salvage
team after the immediate peril has ceased. The in
extremis agreement will be enforced only if the
court finds that it has been fairly negotiated and not
entered into under duress with the result of an
extortionary bargain for the salvor. If the court finds
that a form of extortion was attempted, it may reduce
the award or forfeit it entirely.
A suit to enforce a maritime
lien for salvage can be brought both in rem
against the vessel or in personam against any
person who may be liable. The trend for the resolution
of salvage disputes, however, seems to be arbitration
even if extrajudicial resolutions are not necessarily
binding on crews of salving vessel.
|