Maritime Law That Dating Back to the Byzantine Era - Report Example

The law of salvage, dating back to the Byzantium era, is comprised of five elements. These are voluntary, (2) services, (3) maritime property, (4) danger and (5) success. The accurate understanding of the common law of salvage and how cases within are decided is dependant upon a comprehension of the implications of each of these terms/elements of salvage law. It is, thus, that each shall now be discussed in turn and as they have been defined by both the Merchant Shipping Act, 1995 and case law, or decided cases. The first fact which must be determined when assessing maritime claims is whether or not the vessel in question was in danger. This means that in order for there to be grounds or justification for a salvage operation, or effort, it is imperative that a vessel be identified as confronting imminent pr potential peril. The danger, or peril, referred to here implies the actual, imminent or potential confrontation of conditions which would, or already have, exposed the vessel to the threat of loss, destruction or deterioration. Not only that but, for salvage to be justified, the vessel in question cannot have the situation under control. Quite simply stated, if the supposedly endangered vessel has threat under control, then there are no grounds for salvage. Hence, salvage is predicated on the presence of a risk to all that which is on board the vessel. As pertains to the concept of danger, it is necessary to highlight the importance of English case law as regards its precise meaning and implications. This is because, even though the Merchant Shipping Act, 1995, sections 224 and schedule 111 have ratified the Salvage Convention, 1989 and, in so doing, conceded t its supremacy, the fact is that many terms remain undefined in the mentioned convention. Among these terms is that of danger which, although mentioned in Article 1(a) of the Convention is not defined by it. Precisely because of this, case law emerges as important. In the matter of Semco Salvage & Marine Pte Ltd v. Lancer Navigation [1997] UKHL 2; [1997] 1 All ER 502; [1997] 2 WLR 298; [1997] 1 Lloyds Rep 323 (6th February, 1997) the House of Lords found that danger was threat which may or may not be imminent or which may or may not have actually unfolded but which is, nevertheless, the possibility of peril due to the vessel's position, the tide, the wind or the state of the sea. In this instance, it is apparent that the term, as used in the context of the law of salvage, is encompasses varying degrees of threat/peril. The identification of the degree of danger which a vessel was confronting, or could probably confront prior to the salvage effort is, as outlined in Semco Salvage & Marine Pte. Ltd. v. Lancer Navigationessential for the determination of he amount of the salvage reward. Prior to defining the other components of the law of salvage, it is necessary to explain the precise nature of the services referred to. Under the law of salvage, and as Friedell (1979) explains, the referred to services are generally, and most commonly, towing services, as entails towing the imperiled vessel away from the endangering situation to safety. Apart from that, however, services further include any form of assistance rendered to an endangered vessel, including but not limited to, standing by the vessel until assistance arrives or moving persons on board the endangered vessel for the purpose of saving both life and maritime property (Friedell, 1979). Although the meaning of services is straightforward, it would be informative to turn to case law for determination of its precise implications. In the matter of Tavoulareas v Tsavliris & Ors [2003] EWHC 550 (Comm) (21 March 2003), the court reiterated the fact that within the context of salvage operations, services referred to any acts which were executed for the purpose of alleviating the danger confronting the vessel in question and, included both services which were contracted for and services which were not contracted for. In other words, services could be extended by any party irrespective of whether or not there was a pre-existing salvage contract and comprised any and all acts which were executed for the specific purpose of saving the vessel in question and her cargo and freight. The third fact which must be considered is that nature of maritime property. This, as Boovsen (1991) explains, refers to the vessels, all equipment on the vessel, the cargo and freight she is carrying and, in cases of wreck, the wreck itself. It is interesting to note here that maritime property covers all that which is on board with the exception of the crew. The implication here is that there are no rewards attached to the salvation of human beings/crew members as that, under the law, is considered an obligation. Therefore, rewards can only be claimed in relation to the successful salvage of the vessel and all that is on board, but not in relation to crew members. Fiona Trust & Holding Corp & Ors v Privalov & Ors [2006] EWHC 2583 (Comm) (20 October 2006) affirmed this definition of maritime property, emphasising that it included all that which was on board a vessel, including the vessel itself but not the persons on it. The fourth fact to be considered here is the outcome of the salvage efforts. This is because rewards can only be claimed in relation to successful outcomes. This means that I order for a salvage reward to be made, it is imperative that the effort be, in whole or in part, successful. Some property on board the vessel must have been saved. Again, it is imperative to stress here that if the success of the salvage is limited to life, then no salvage rewards are made. This is because it is the obligation of all those on sea to rescue/save life on sea when it is in peril r in danger. Accordingly, within the context of the stated, success refers to the salvage of maritime property. Although the concept of success seems to be self-explanatory, it is not defined by the law of salvage and, hence, it is imperative to turn to case law in order to understand precisely what it means. In the matter of Semco Salvage & Marine Pte Ltd v. Lancer Navigation [1997] UKHL 2; [1997] 1 All ER 502; [1997] 2 WLR 298; [1997] 1 Lloyds Rep 323 (6th February, 1997) the term salvage was precisely defined. As stated, success refers to "preserving the ship, cargo and associated interests," in part or in whole. Salvage efforts which are not successful, as in their not resulting in the preservation of any part of the cargo, vessel or its equipment has little, if any, value to the vessel owners, in which case the salvor is not entitled to a salvage reward. Indeed, in the cited case the aforementioned was described as "logical," even if, in the course of the salvage efforts, the salvor protected the community/environment from such damage as, for example, would have been caused by oil spills. Quite simply stated, the owner of the vessel, irrespective of the services which the salvor may have rendered to the community, only has a stake in the recovery of his vessel, equipment and cargo and, to the extent that nothing is recovered, he does not make any reward payments. Assuming that the vessel was in danger and that maritime property was successfully salvaged, a salvage reward still cannot be made unless the services rendered were voluntary. The implication here is that the person(s) undertaking the salvage efforts must be doing so voluntary, under their own free will and not because they are obliged to do so consequent to the nature of their public duty or because of a preexisting contractual obligation. It is important to note, however, that if a public authority undertakes a successful salvage while not acting in his/her professional/official capacity, he/she's services are considered voluntary. Added to that, even when a public authority is acting in his/her official capacity, in which case they have a public duty and responsibility to undertake salvage efforts, section 230(2) of the Merchant Shipping Act, 1995, entitles Her Majesty to claim salvage to the same extent as would any other volunteer salvor. It is further important to note that professional salvors are, even while considering that they are acting purely for economic gain, entitled to a salvage reward as they are considered to have voluntarily rendered their services. Accordingly, even though entitlement to successful salvage rewards is dependant on the salvage having been voluntary, individual members of the relevant public authorities are entitled if they are acting while off-duty, as are professional salvors. On the basis of the facts and case law reviewed in the above, therefore, it is evident that salvos can only make a claim for a salvage award if the vessel in question was in peril, and if the salvor was a volunteer whose efforts results in the successful salvage of maritime property. References Merchant Shipping Act.' 1995. http://www.opsi.gov.uk/ACTS/acts1995/Ukpga_19950021_en_1.htm Booysen, H. (1991) The recognition of foreign maritime liens in South African law: A final word by the appellate division .' The International and Comparative Law Quarterly, 40(1), 151-162. Friedell, S.F. (1979) Compensation and reward for saving life at sea.' Michigan Law Review, 77(5), 1218-1289. Kennedy, W.R., Steel, D., and Rose, F.D. (1985) Law of Salvage: British Shipping Law Library. London: Sweet and Maxwell. Salvage Convention.' 1989. http://www.jus.uio.no/lm/imo.salvage.convention.1989/portrait Semco Salvage & Marine Pte Ltd v. Lancer Navigation [1997] UKHL 2; [1997] 1 All ER 502; [1997] 2 WLR 298; [1997] 1 Lloyds Rep 323 (6th February, 1997). Tavoulareas v Tsavliris & Ors [2003] EWHC 550 (Comm) (21 March 2003). Fiona Trust & Holding Corp & Ors v Privalov & Ors [2006] EWHC 2583 (Comm) (20 October 2006) Read More