United Kingdom and British Maritime Law Association's Joint Response to the IMO Questionnaire on Salvage Convention 1989

 

1          What type of national instrument has authorized the ratification of or accession to the Salvage Convention 1989?

 

The Merchant Shipping Act 1995, section 224 and Schedule 11.

The Merchant Shipping (Salvage and Pollution) Act 1994 (Commencement No.2) Order SI 1994/2971 brought the Convention into force on 1st January 1995.

 

2          Has your country made any of the reservations permitted by article 30(1) of the Convention?

 

Yes - The United Kingdom made three reservations when depositing her instrument of ratification with the IMO. The reservation were:

 

‘In accordance with the provisions of article 30, paragraph 1(a), (b) and (d) of the Convention, the United Kingdom reserves the right not to apply the provisions of the Convention when:

(i)             the salvage operation takes place in inland waters and all vessels are of inland navigation; or

(ii)           the salvage operations take place in inland waters and no vessel is involved; or

(iii)          the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed’

 

However, when introducing the Convention into domestic law the UK government adopted an alternative approach. Schedule 11 Part II of the Merchant Shipping Act 1995 states:

 

2(1)     The provisions of the Convention do not apply –

(a)  to a salvage operation which takes place in inland waters of the United Kingdom and in which all the vessels involved are of inland navigation; and

(b)  to a salvage operation which takes place in inland waters of the United Kingdom and in which no vessel is involved

2(2)    In this paragraph ‘inland waters’ does not include any waters within the ebb and flow of the tide at ordinary spring tides, or the waters of any dock which is directly or (by means of one or more other docks) indirectly connected with such waters’

 

Accordingly, no actual reservation was made under article 30(1)(d).

 

3         Have the provisions of the Convention been given the force of law, or incorporated in the law of your country

 

The provisions of the Convention have been given the force of law by Section 224(1) of the Merchant Shipping Act 1995, unless the parties expressly or implicitly exclude the Convention as permitted by Art.6.

4          If the provisions of the Convention have been given the force of law, or incorporated in the law of your country

            4.1      by what instrument has this taken place?

4.1 Section 224 of the Merchant Shipping Act 1995

            4.2      have the national rules on salvage previously in force been                     expressly abrogated or have they remained in force in                             areas, if any, to which the Convention does not apply?

 

4.2 The UK denounced the 1910 Salvage Convention, even though it was never formally incorporated into UK law it was always recognised that it reflected many principles of existing English Admiralty Law.

There has been no express abrogation of pre-existing English law on salvage. However, in matters governed by the Convention, the Convention prevails.

 

In interpreting the Convention, the English courts will adopt a purposive international approach rather than seek to instinctively apply pre-existing English legal concepts to the Convention. To aid that process, the English courts may have regard to the Parliamentary debates on the Convention and to the travaux preparatoire to the Convention. The travaux preparatoire includes the proceedings of the 1989 diplomatic conference, the proceedings of the IMO Legal Committee 1983-88, the CMI proceedings 1978-81, and the travaux preparatoire to the 1910 Convention.

 

It is unclear to what extent the pre-existing English law may be used to interpret the Convention. The English court must start with the Convention text, but may refer to the general principles of English salvage law to aid the interpretation and application of the Convention. To give but one example, Art.1(a) refers to ‘danger’ but does not define it. Accordingly, the English case law on the meaning of danger may be consulted.


The pre-existing English law will continue to apply in respect of salvage operations started before 1 January 1995 by virtue of MSA 1995 s.224(4).

 

 

5          If the reservation under Article 30(1)(a) and/or (b) has not been made, is it accepted in your country that the provisions of the Convention apply also when the salvage operation takes place in inland waters and all vessels involved are vessels of inland navigation and/or when the salvage operations take place in inland waters and no vessel is involved?

 

Not applicable as reservation is in place

 

6          If the reservation under article 30(1)(d) has not been made:

 

6.1           Is it accepted in your country that the provisions of the Convention apply even when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea bed?

Yes

 

6.2           Has your country ratified the UNESCO 2001 Convention on the Protection of Underwater Cultural Heritage or is it your country’s intention to ratify it? If so, in particular if the reservation under article 30(1)(d) of the Salvage Convention has not been made, [how do you consider avoiding potential conflicts in the implementation of the two Conventions?]

 

No

 

7          Does the term ‘property’ as defined in article 1(c) cover sunken ships and other  property whether or not inside a sunken ship?

 

The meaning of property within article 1(c) covers virtually all property on board a ship, such as cargo, equipment, stores and personal belongings.

 

Under English law a wreck may be a subject of salvage. The definition of wreck includes flotsam, jetsam, and lagan, which are all descriptions of cargo and other items that are no longer inside a vessel.

 

The UK delegation to the 1989 Diplomatic Conference were of the view that sunken vessels were included in ‘property’ within 1(c).

 

The pre-Convention English case law reveals that English law faced little difficulty in applying the law of salvage to sunken ships and other property.  If such property has come from a ship it is "wreck", even if it is found outside the sunken ship.

 

 

8          Has your country extended the scope of application of the provisions of the Convention to:

 

(a)            platforms and drilling units

 

No, under article 3 "this Convention, shall not apply to fixed or floating platforms or to mobile offshore drilling units when such platforms or units are on location engaged in the exploration, exploitation or production of sea-bed mineral resources.

 

(b)       warships and other non-commercial vessels, owned or                           operated by the State?

 

Yes, by virtue of section 230 of the Merchant Shipping Act 1995 (subject to section 29 of the Crown Proceedings Act 1947) the law relating to civil salvage, whether of life or property applies in relation to salvage services in assisting any of Her Majesty's ships, or in saving life therefrom, or in saving any cargo or equipment belonging to Her Majesty in right of Her Government in the United Kingdom, in the same manner as if the ship, aircraft, cargo or apparel belonged to a private person.

 

Under section 29 of the Crown Proceedings Act 1947 no proceedings in rem are permissible in respect of any claim against the Crown nor is the arrest, detention, and sale of any of Her Majesty’s ships or cargo or any other property nor can anybody give a lien over such things.

 

Thus no distinction is drawn between war ship and non-commercial vessels of the state, and any other vessel of the state.

 

9          Have provisions been enacted in order to entitle public authorities that perform salvage operations to avail themselves of the rights and remedies provided for in the Convention?

 

Yes, under section 230(2) of the Merchant Shipping Act 1995 where salvage services are rendered by or on behalf of Her Majesty, whether in right of Her Government in the United Kingdom or otherwise, Her Majesty shall be entitled to claim salvage in respect of those services to the same extent as any other salvor.

 

Employees of public authorities cannot claim salvage if they are acting within their normal duties (Brice, Maritime Law of Salvage, 4th Ed.).

 

Where the public authority is not acting in pursuance of its normal duties, it appears that it may bring a claim for salvage.

 

10       Have measures been adopted in your country to enforce the duty of the master to render assistance to any person in danger of being lost at sea?

 

Yes, section 93 of the Merchant Shipping Act 1995 imposes a duty on the master of a ship to assist ships etc. in distress and provides a sanction for failing in that duty. 

 

11            Have provisions been adopted in your country for the protection of its coastline or related interest from pollution or the threat of pollution following upon a maritime casualty that may to any extent adversely affect the performance of salvage operations?

 

Under Schedule 3A of the Merchant Shipping Act 1995 the Secretary of State has wide powers to give directions to owners, masters and salvors in possession (amongst others) where there has been an accident and there is a risk of pollution.  The powers can be exercised in relative any shape in UK territorial waters and under certain areas outside territorial waters.

 

Also section 156(2)(d) of the Merchant Shipping Act 1995 excludes liability for pollution damage caused by ‘any person performing salvage operations with the consent of the owner of the ship or on the instruction of a competent authority’. Any person providing salvage operations without the consent of the owner or instruction of a competent authority would not be immune from liability.

 

12            Have provisions been enacted in your country in respect of the admittance to ports or places of safety in your county’s territorial waters of vessels in distress?

Schedule 3A to the Merchant Shipping Act, mentioned above gives the Secretary of State powers to intervene in a situation and direct a ship to be moved or not moved from/to a specified place.  He can direct a person in charge of a harbour to make facilities available to a ship to allow (for example) repairs to be made or cargo landed.

 

13       Are there any rules in force in your country in respect of the apportionment of the salvage reward between the owners, master and other persons in the service of a salving vessel?

 

English law has no compulsory or automatic divisions between owner, master and crew.

 

Owner generally receives by far the greater proportion of an award. Extent of master’s responsibilities and manner of his discharging them will be significant. Regard may be had to any individual effort worthy of particular attention. 

 

Often under English law it is not uncommon to find that crew share inter se in accordance with their monthly rates of pay if no special award called for.