SEMINAR PAPER ON

“LAW OF SALVAGE- A COMPARATIVE STUDY BETWEEN INDIA AND USA ”

By-

UDAY KRISHNA

5 Year Integrated B.A.,LL.B. (Hons.) Course

MARITIME LAW

Under the supervision of

MS. PRATHUSHA

FACULTY OF MARITIME LAW, DSNLU

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM-531035

ANDHRA PRADESH, INDIA

April 23rd, 2019

 CERTIFICATE

This is to certify that the dissertation entitled “LAW OF SALVAGE- A COMPARATIVE STUDY

BETWEEN INDIA AND USA” for the Seminar Paper of “MARITIME LAW” Damodaram
Sanjivayya National Law University, Visakhapatnam is a record of original work done by
Uday Krishna under my supervision and guidance to my satisfaction.

SIGNATURE OF THE GUIDE

Visakhapatnam

Date: 23/04/19
 ACKNOWLEDGEMENT

We would like to express our very special thanks of gratitude to Ms. Prathusha, for giving us
a golden opportunity to do a wonderful seminar paper on such topic which helped us in doing
a lot of research and we came to know many things about the “LAW OF SALVAGE- A

COMPARATIVE STUDY BETWEEN INDIA AND USA”. We are really thankful to her for giving us
such an important topic which gave immense knowledge about this particular area in the
subject of Maritime Law.

Secondly, we would also like to thank our parents and friends who have helped us a lot in
finishing this seminar paper within a stipulated time. We have worked on this paper not only
for marks but to also increase our knowledge.
 DECLARATION

We declare that thesis titled “LAW OF SALVAGE- A COMPARATIVE STUDY BETWEEN INDIA AND

USA” is an authentic record of my own contribution and bonafide research, carriedout under

the supervision of Ms. Aruna in accordance with regulations of the Damodaram Sanjivayya
National Law University, for the award of the Degree in Law.

This research work has not been previously submitted to any University or Institution for the
award of any Diploma, Degree or any other similar title.

Visakhapatnam Name of the Students:

Uday krishna
2013123

Date: 23.04.2018
 Aims & Objectives:

 To understand the history of Salvage Laws and their evolution.

 To look into efforts made by India in this regard.
 To suggest any reform required in this area of law taking into consideration the present
scenario and the existing legal framework.
 To compare and analyze the issues of Salvage Laws in United States and suggest the
modifications

Sources of Data:

Both Primary and Secondary sources are used by the researchersin the form of reports,
bare acts, books, articles and internet materials for the compilation of this research work.

Research Methodology:

The research methodology adopted is doctrinal keeping in mind the conceptual,

theoretic and evaluative aspects of the topic. Extensiveuse of books, articles, reports, legal
texts, statutory provisions, judgments, etc. has been made for the purposes of this research
work.

Mode of Citation:

The researchers shall be following uniform mode of citation i.e. Bluebook citation 19th
edition, throughout the research work.

Hypothesis:

The researchers believe that the rules and regulations which are in place for governing
the Salvaging of Shipwrecks are not self sufficient and there are certain modifications which
have to be implemented and amended so as to make more effective and on par with the
international standards.
 Research Questions:

 What is the ambit of “Salvage Laws”?

 What are the various international instruments that recognize‘Salvage Laws’, what are
the bodies formed under such instruments and what are the focal areas of their work?
 What efforts have been made by India for the advancement of the Laws to tackle the
situations, which arise out of the ‘Salvage Laws’?
 What are the possible reforms, which can be taken from the other nations like United
States etc.?

ABSTRACT:

Maritime issues of Salvage are not new to the history of mankind. They exist almost from the time the
birth of the ships in the process of evolution of the ships happened. As the part of the economy it is
important to decide about the issues of the salvage laws. Now to analyze the issues the history is the
prime aspect which has to be taken into consideration. With this the issues of the appreciation and the
applicability also play a major role. The application of the laws is different from one nation to another
nation. With this the main aim of this particular Dissertation is to identify the laws which are in place
in a nation like United States because the history of application of the laws of Salvage in US is
regarded of high stature. The evolution of the laws in India is compared to the laws in India and
thereby with the comparison the faults in the nation and the application of the laws is identified and
with the help of the comparative study the laws are being analyzed with various tables and statistics
and thereby the suggestions are given. With these suggestions which are given the development is
tried to be achieved with the required modifications done in the Act.
 TABLE OF CONTENTS

Certificate
Acknowledgement
Declaration
Aim & Objective
Sources of Data
Research Methodology
Mode of Citation
Hypothesis
Research Questions
Abstract
Table of Contents
CHAPTER I-INTRODUCTION

The history of the law of the sea has been conditioned by conflicts over access to and control over
the ocean’s resources. Many believed that when the U.N. Convention on the Law of the Sea
(UNCLOS) was adopted in 1982, a fifty-year battle between coastal State interests and those of
maritime powers would be satisfactorily resolved. This prediction has, alas, not been fulfilled, as
witnessed by renewed claims to resources located beyond the limits of national jurisdiction.

One such skirmish has emerged over the exploitation and recovery of objects from historic
shipwrecks and other submerged sites, what has come to be called the “underwater cultural
heritage.” Those wanting to change the law of historic salvage have most clearly staked their
positions. The nautical archaeology community has spoken eloquently of the need to protect
historically significant shipwrecks from benign neglect by coastal States; from looting by negligent
sports divers; and from, worst of all, unscrupulous and avaricious treasure hunters. A number of
coastal States have recently gone on record as declaring title to shipwrecks located within two
hundred miles of their shores or, in the alternative, assertions of regulatory authority over that
underwater cultural heritage. Coastal States have thus discovered that there lies within their grasp a
resource that international law has yet to allocate to governmental control: the historic
salvageindustry. Taking advantage of a vacuum, coastal States have rushed in with their claims

To date, however, no one from the private historic salvage sector in maritime commerce has yet
spoken against the proposals of these coastal States. This is quite surprising since it appears that
some coastal State authorities and many nautical archaeologists have expressed a desire to end the
historical practice of salvaging property lost at sea and returning it to the stream of commerce. Many
of the proposals that have been tendered to create a new international legal regime for underwater
cultural heritage would all but abolish the private, commercial recovery of historic shipwrecks. They
would also divest the claims of record owners of property more recently lost at sea, in essence
expropriating that property in the service of historic preservation

1.1 THE U.S. HISTORIC SALVAGE INDUSTRY

Historic salvage, also known as “treasure salvage,” has become a multi-billion dollar activity for
U.S. maritime interests, defying the overall trend diminishing the importance of the United States in
the maritime sector1and preservation of artifacts and valuable goods sunken on shipwrecks. It is an
industry that combines sophisticated technology and concern for historic preservation values, all
with an aim of returning long lost objects to public appreciation and to the stream of commerce.
Historic salvage interests are often allied with those of the sport diving community, which adds
tourism revenue and aesthetic values to many coastal regions around the United States and abroad.

Modern technology has made possible the recovery of long lost and forgotten historic
shipwrecks.2The invention of SCUBA by Jacques Yves Cousteau in 1942 was the first development
.Then followed the design of sophisticated side-scan sonar and other search techniques which make
possible the location of finds and deposits on the ocean floor. Mixed-gas diving has permitted
adventurous human beings to reach ocean depths that had previously been unimaginable. Finally, the
use of submersibles and remote-robotic technologies has allowed recovery from wrecks at the very
bottom of the ocean abyss. As one can imagine, diving technology has not come cheap. Vast
investments of money, as well as the time, toil, and sacrifice of divers, have made it possible. In all
of this, U.S. historic salvage firms have led the way.

Sparked by the epic efforts of Arthur McKee and Mel Fisher in locating Spanish galleons off the
Florida coast during the 1950s and 1960s, American treasure salvors have been active in diving
operations in all of the world's oceans. U.S. historic salvors have acquired the reputation of being the
most technologically advanced, the most daring, and also the most concerned with preserving
historical values of the items they recover. Most treasure salvors recognize that certain objects they
recover are not only priceless in a monetary sense, but also in an intangible way as part of national
(or international) cultural patrimonies. Such items are routinely donated to museums or traveling
cultural exhibitions.

1.2 Traditional U.S. Law of Shipwreck Salvage:

Traditional rules of maritime law-observed by all seafaring nations in the world-provided the
necessary legal security for those prepared to invest time and money in finding lost shipwrecks 3The
admiralty laws of salvage and finds grant to those who locate and save property lost at sea, either (1)

11
See David Arnold, Treasure Hunting Becoming a Growth Industry, BOSTO0N GLOBE, Oct. 21, 1991, Health-
Science Sec. at p. 27
2
For more on this, see Feasibility Study for the Drafting of a New Instrument for the Protection of the Underwater
Cultural Heritage, UNESCO Doc. 146 EX127, at 1-2, 1I 7-10 (Mar. 23, 1995) [hereinafter Feasibility Study];
William J. Broad, Deepest Wrecks Now Visible to Cameras, N.Y. TIMES, Feb. 2, 1993, at C1.
3
For the application of the admiralty law doctrines of salvage and finds to historic shipwrecks, see Anne M.
Cottrell, The Law of the Sea and International Marine Archaeology: Abandoning Admiralty Law to Protect
Historic Shipwrecks, 17 FORDHAM INVL L.J. 667 (1994); Douglas S. Cohen, Should NoliFodendi Apply to
Sunken Ships?, 73 B.U. L. REV. 193 (1993).
a claim to a reward from the owner of the lost property, or (2) if the property is abandoned and has
no owner, outright title to the find. The power to grant these incentives has, under the traditional
maritime law, been left to the judges of courts exercising admiralty or maritime law jurisdiction. In
the United States, these are the federal courts.

Salvage is a core subject of admiralty jurisdiction, which has always been the exclusive preserve of
the federal courts. The law of salvage is of ancient vintage.4 Under the law of salvage,

Compensation [is] allowed to persons by whose voluntary assistance a ship at sea or her cargo or
both have been saved in whole or in part from impending sea peril, or in recovering such property
from actual peril or loss, as in cases of ship wreck, derelict or recapture.5

The original owner of the imperiled vessel retains title thereto, but the salvor is entitled to a very
liberal salvage award from the res of the vessel.6 The courts have recognized that liberal salvage
awards further the fundamental public policy of encouragingsalvage and recovery efforts and reward
those who engage in laborious, costly, and potentially dangerous undertakings.7

By operation of law, the salvor has a maritime lien against the res of the recovered vessel and its
cargo.8 The salvor enforces the lien by bringing an in rem action in federal court against the vessel
and its cargo.9 As explained by Chief Justice Taney in the case of Houseman v. The Cargo of The
SCHOONER NORTH CAROLINA,”10 in rem salvage actions against vessels fall squarely within
the exclusive admiralty jurisdiction of the federal courts conferred under Article III, Section 2, of the
U.S. Constitution:

Now, the matter in dispute, is merely a question of salvage.... Upon such questions, there can be no
doubt of the jurisdiction of a court of admiralty; nor of its authority to proceed in rem, and attach the
property detained. The admiralty is the only court where such a question can be tried; for what other
court, but a court of admiralty, has jurisdiction to try a question of salvage? 11

4
See GRANT GILMORE & CHARLES BLACK, THE LAW OF ADMIRALTY 532-33 (2d ed., 1975).
5
The SABINE, 101 U.S. 384, 384 (1880). See also Columbus-America Discovery Group v. Atlantic Mutual Ins.
Co., 974 F.2d 450, 459-60 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993) [hereinafter CADG]
6
See CADG, 974 F.2d at 459.
7
See GILMORE &BLACK, supra note 4, at 532 (citing numerous cases).
8
See id. at 628.
9
See FED. R. Civ. P., Supp. Adm. R. C (1)(a).
10
40 U.S. (15 Pet.) 40 (1841).
11
Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059,
1063-64 (1st Cir. 1987) (in rem action for salvage award against artifacts recovered from antiquated shipwreck is
governed by general federal maritime law and is within the federal courts' exclusive jurisdiction); Cobb Coin
Company, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 548 (S.D. Fla. 1982)
1.3 Modern U.S. Law of Shipwreck Salvage:

Despite its historic origins, the law of salvage has readily evolved to meet modern concerns
regarding historic preservation of shipwrecks. Because the salvor essentially acts as an agent of the
district court in recovering the wreck and bringing it into the jurisdiction of the court, judges have
broad discretion both in the initial selection and appointment of the salvor, and later, in deciding the
amount of the salvor’s award. The federal courts have exercised that discretion to ensure that the
historical values of antiquated shipwrecks are preserved in the salvage process.

It has been suggested that ancient and modern salvage laws have developed over centuries without
any regard for archaeology. The underlying policy thrust of the assertion is that the hoary admiralty
law of salvage is totally unsuited to the "modern" problem of managing historic shipwrecks as a
cultural resource. The policy alternative advocated by many historic preservationists is that salvage
law be replaced by further governmental regulation of shipwrecks, regulation that will uniquely
privilege decisionmaking by nautical archaeologists. The clear message is that shipwrecks should,
under no circumstances, be considered an economic resource, as lost property to be restored to the
“stream of commerce.”

Indeed, it has been suggested that wreck salvage has never been part of admiralty jurisdiction. This
is utterly fallacious. All salvage of property lost at sea implicates maritime commerce, a central
concern of admiralty law.12 And the power to regulate such activities was specifically reserved by
Congress in the Submerged Lands Act.13 Courts have consistently held that salvage of wrecked
vessels is within the scope of traditional admiralty jurisdiction. 14Wrecked vessels are still subject to
marine peril, under the traditional rule of The SABINE.15

It might be helpful to the debate to realize that the admiralty law of salvage is not as rigid or as
single-focused as has been supposed. At least as applied in admiralty courts in the United States,
historic preservation values have been merged with “traditional” salvage law. It has become the
consistent practice of U.S. courts that the granting or denial of exclusive salvage rights over an
historic shipwreck to a commercial recovery outfit is at least partially contingent on salvors

(same). See also The MOSES TAYLOR, 71 U.S. (4 Wall.) 411 (1866) (state courts may not provide in rem
remedies); The HINE v. Trevor, 71 U.S. (4 Wall.) 555 (1866) (same).
12
See Insurance Co. v. Dunham, 78 U.S. 1 (1871); DeLovio v. Boit, 7 F. Cas. 418, 444 (C.C.D. Mass. 1815) (No.
3776).
13
See 43 U.S.C. § 1314(a) (1988) (expressly retained for the United States "all its...powers of regulation and
control of said lands and navigable waters for the constitutional purposes of commerce [and] navigation....").
14
North Pacific S.S. Co. v. Hall Bros. Co., 249 U.S. 119 (1919); The George W. Elder, 206 F. 268 (9th Cir. 1913).
15
101 U.S. 384 (1880). See also Treasure Salvors, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 569
F.2d 330, 337 (5th Cir. 1978); Cobb Coin, 549 F. Supp. at 557.
observing archaeological protocols that protect evidence for future study and research about the
wreck and its contents. For example, in the MDM Salvage case, 16the District Court denied the
applications of two differentsets of commercial salvors to recover property from a Spanish galleon,
noting that neither firm had attempted to preserve the “archaeological integrity” of the wreck. The
Court noted that:

Archaeological preservation, onsite photography, and the marking of sites are particularly
important.. .as the public interest is compelling in circumstances in which a treasure ship,
constituting a window in time, provides a unique opportunity to create a historical record of an
earlier era. These factors constitute a significant element of entitlement to be considered when
exclusive salvage rights are sought.17

Thus, U.S. courts have made express that the potential salvors fidelity to archaeological values is
among the elements to be considered in granting a salvage award.18 This is not to say, of course, that
commercial salvors have been held to exactly the same technical standards as adopted by nautical
archaeologists. Under special circumstances, U.S. courts have allowed for some modest deviations
from these protocols19

1.4 THE 1982 U.N. LAW OF THE SEA CONVENTION

Prior to the 1980s, no coastal nation purported to exercise regulatory jurisdiction over historic
shipwrecks, except for those located within its “territorial sea”, originally set at three nautical miles
and later expanded to twelve20. Even with the development of the regime of the continental shelf,
historic shipwrecks were explicitly not included-only “natural” resources (such as oil, gas, or
shellfish) were included.21 U.S. law reflects this rule.22Under the Outer Continental Shelf Lands

16
631 F. Supp. 308, 310-11 (S.D. Fla. 1986).
17
Id. at 310
18
See CADG, 974 F.2d 450, 468 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993); Deep Sea Research, Inc. v.
The BROTHER JONATHAN, 883 F. Supp. 1343, 1362 (N.D. Cal. 1995), aft'd, 102 F.3d 379 (9th Cir. 1996), afl'd
in part, vacated in part, and remanded, 118 S.Ct. 1484 (1998).
19
See Moyer v. The ANDREA DORIA, 836 F. Supp. 1099, 1107 (D.N.J. 1993) (where the Court noted that
because the ocean liner was of "decidedly modern vintage, [tihere exist extensive photographs, deck plans, models,
and other documentation"); Platoro Limited, Inc. v. Unidentified Remains of a Vessel, 518 F. Supp. 816, 822
(W.D. Tex.1981).
20
But see Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and
Maritime Boundaries in the Area Between the Two Countries, including the Area Known as Torres Strait, and
Related Matters, Dec. 18, 1978, Austi-Papua New Guinea, art. 9, 18 I.L.M. 291, 298 (apparently claiming general
jurisdiction over shipwrecks located on mutual continental shelves). Australian legislation appeared to make this
claim, as well. See Historic Shipwrecks Act, 1976, ch. 190 (Austl.). See also Agreement on Old Dutch Shipwrecks,
Austl.-Neth., 1972 Austl. T.S. No. 18.
21
See Convention on the Continental Shelf, Apr. 29, 1958, art. 2, para. 1, 499 U.N.T.S. 312 ("The coastal state
exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural
resources.") (emphasis added). "Natural resources" are defined as "the mineral and other non-living resources of
Act,23the United States takes title only to natural resources of the seabed or subsoil. Jurisdiction over
shipwrecks remains in the hands of the admiralty courts, applying the traditional maritime law of
salvage or finds.

UNCLOS was negotiated between 1973 and 1982. Questions of coastal State jurisdiction over
historic shipwrecks were never problematic,24 being raised for the first time only in the 1980 session
of the negotiations. It was quickly agreed that the absolute limit of coastal State authority over
"archaeological and historical objects found at sea was twenty-four nautical miles, the outer limit of
the contiguous zone, established under Article 33 of the Convention. Article 303, paragraph 2,
codifies this understanding:

In order to control traffic in such objects [archaeological and historic objects found at sea], the
coastal State may, in applying article 33 [on Contiguous Zones], presume that their removal from the
sea-bed in the zone referred to in that article without its approval would result in an infringement [of
its laws]25.

The United States, despite the demands of a group of Mediterranean countries (which wanted a 200-
mile zone for regulatory control over shipwrecks), insisted that twenty-four miles should be the
outward limit of such jurisdiction. Happily, the United States' position prevailed. Moreover, Article
303,paragraph 3, explicitly reserved the rights of salvage or finds under traditional maritime law: 26
“Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of
admiralty (“r~gles du droit maritime” in French), or laws or practices with respect to cultural
exchanges.”27 Article 303 was a full and complete vindication of the United States' negotiating

the seabed and subsoil together with living organisms belonging to sedentary species...." Id. art.2, para. 4. In the
deliberations of the International Law Commission, leading up to the drafting of the 1958 Convention, coastal State
jurisdiction over shipwrecks located on continental shelves was explicitly considered and rejected. See U.N.
GAOB, 11th Sess., Supp. No. 9, at 42, U.N. Doec. A/3159 (1956) ("It is clearly understood that the rights in
question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or
covered by the sand of the subsoil."). See also Anthony Clark Arend, Archaeological and Historical Objects: The
International Implications of UNCLOS 111, 22 VA. J. INr L. 777, 784-86 (1982)
22
See Treasure Salvors v. Unidentified Wreck, 569 F.2d 330, 337-40 (5th Cir. 1978)
23
43 U.S.C.§§ 1331 et seq. (1988).
24
Beyond the scope of this Article is a consideration of the 1982 Law of the Sea Convention's provisions allowing
coastal State regulation of marine scientific research in various maritime zones. See United Nations Convention on
the Law of the Sea, part XUI, U.N. Doec. AICONF.62122 (1982), 21 I.L.MI 1261, 1316-20 [hereinafter
UNCLOSI.
25
Id. art.303, para. 2, 21 I.L.M. at 1326
26
For a complete description of the negotiating history of Article 303, consult 5 UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 158-62 (Myron H. Nordquist ed. 1989).
27
UNCLOS, supra note 24, art. 303, para. 3, 21 I.L.M. at 1326
strategy at UNCLOS III to limit inappropriate claims of coastal State jurisdiction, especially where
such claims interfere with vested rights or free enterprise exploitation of ocean resources. 28

1.5 RECENT INITIATIVES TO REVISE ARTICLE 303

Article 303 of the 1982 UNCLOS was intended to be the definitive word on coastal State jurisdiction
over shipwrecks. But no sooner had the ink dried on the treaty, than initiatives began to promote
further, creeping jurisdiction over underwater cultural heritage located beyond twenty-four nautical
miles from shore.

A. 1984 Council of Europe Draft Convention

The first such move was the Council of Europe’s 1984 Draft Convention on the Underwater Cultural
Heritage (Council of Europe Draft).29This instrument acknowledged the twenty-four nautical mile
limit on coastal State jurisdiction reflected in Article 303 of UNCLOS.30It nevertheless purported to
suggest thatcoastal States could exercise such power on their respective continental shelves31a result
that had been explicitly rejected in Article 303 and the earlier 1958 Convention on the Continental
Shelf32. Rather mysteriously, the Council of Europe Draft allowed a “[contracting State to apply, in
conformity with international law, its laws and regulations relating to the protection of underwater
cultural property within an area beyond its territorial sea,33thus seemingly encouraging the expansion
of coastal State authority. Moreover, the Council of Europe Draft called upon a party to “require its
nationals to report to its competent authorities any discovery of underwater cultural property outside
the jurisdiction of any State.34 The Council of Europe Draft also evidenced some ambivalence
towards commercial salvage of historic shipwrecks. While the Draft allowed Contracting States to

28
See Bruce E. Alexander, Treasure Salvage Beyond the Territorial Sea: An Assessment and Recommendations, 20
J. MAR. L. & COM. 1 (1989); Arend, supra note 21 at 787-91, 793-99; Jean-Pierre Beurier, Pour un droit
international de l'archeologie sous-marine, 93 REVUE GNERALE DE DROIT INTERNATIONAL PUBLIC 45
(1989); Lucius Caflisch, Submarine Antiquities and the International Law of the Sea, 13 NETHERLANDS Y.B.
INTL L. 3 (1982); John P. Fry, The Treasure Below: Jurisdiction over Salving Operations in International Waters,
88 COLUM. L. REV. 863 (1988).
29
Draft Convention on the Protection of the Underwater Cultural Heritage, DIR/JUR (84) 1 (1984) [hereinafter
Council of Europe Drafti]; Final Activity Report of the Ad Hoc Committee of Experts on the Underwater Cultural
Heritage, Doc. No.CAHAQ (85) 5 (1985) (on file with author); Council of Europe, Parliamentary Assembly
Recommendation No. 848, 30th Sess., 2d part (Oct. 4, 1978). This instrument was modeled on a Report prepared
by Lyndell V. Prott& P.J. O'Keefe, Final Report on Legal Protection of Underwater Cultural Heritage, Appendix II
to Council of Europe, in THE UNDERWATER CULTURAL HERITAGE 45 (1978).
30
See Council of Europe Draft, supra note 29, art. 2, para.
31
Id. art.2, para. 5 ("Each Contracting State, in the exercise of its jurisdiction over the exploration for and
exploitation of the natural resources of its continental shelf, shall take appropriate measures for the protection of
underwater cultural property .....
32
See supra text accompanying note 21.
33
Council of Europe Draft, supra note 29, art. 2, para. 6.
34
Id. art. 15.
grant “authorisations to carry out survey, excavation or recovery operations…..to private
persons,35such authorisations may be granted only on the basis of scientific considerations...” 36What
such considerations might be is not elaborated in the Draft, but the clear implication is that
commercial recovery of artifacts from historic shipwrecks may never be justified by “scientific
considerations.” Finally, the Council of Europe Draft called upon Contracting Parties to take steps to
identify underwater cultural property that had been illegally recovered in, or illegally exported from,
a coastal State’s area of jurisdiction (including its territorial sea, contiguous zone or beyond), 37 to
restore it to the proper State,38 and to facilitate recovery for damages to that cultural property.39

Despite some promising aspects of the Council of Europe Draft, objections to its increased scope of
coastal State jurisdictiondoomed it to failure.40No final version of that instrument was ever opened
for signature

B. 1989 Salvage Convention

In 1989, the International Maritime Organization, a specialized agency of the United Nations
charged with the regulation of shipping, concluded an International Convention on
Salvage41Convention on Salvage, which did not contain any provisions on historic shipwrecks. It has
been argued that the 1989 Salvage Convention impliedly excluded historic shipwrecks from its
application.42 The Convention defines “salvage operations” as “any act or activity to assist a vessel
or any other property in danger in navigable waters or in any waters whatsoever.” 43 The argument
would run that because shipwrecks are not in danger, they would not qualify for salvage. But, as
already mentioned,44shipwrecks are often characterized as being in marine peril under the general

35
Id. art.5, para. 1.
36
Id. art.5, para. 2.
37
See id. art. 12.
38
See id. art. 13.
39
See id. art 14.
40
See Patrick J. O'Keefe & James A-R. Naffiger, Report: The Draft Convention on the Underwater Cultural
Heritage, 25 OcEANDEv.& INT'L L. 391, 397 (1994).
41
International Convention on Salvage, IMO Doc. LEGCONF.7/27 (May 2, 1989), [hereinafter 1989 Salvage
Convention]. For more background on the 1989 Convention, see Geoffrey Brice, Salvage and the Marine
Environment, 70 TUL. L. REV. 669 (1995); Nicholas J.J. Gaskell, The International Salvage Convention of 1989,
4 INVL J. ESTUARINE & COASTAL L. 268 (1989); Brian F. Binney, Protecting the Environment with Salvage
Law: Risks, Rewards, and the 1989 Salvage Convention, 65 WASH. L. REV. 639 (1990).
42
See O'Keefe &Nafriger, supra note 40, at 393.
43
1989 Salvage Convention, supra note 41, art. 1, para. 1
44
See supra text accompanying note 15.
maritime law, and thus do qualify for salvage.45 So this purported exclusion of shipwreck salvage
from the 1989 Salvage Convention appears doubtful or, at best, ineffective.46

More pertinently, the 1989 Salvage Convention allows a State, upon ratification, to make a
reservation not to apply the provisions of th[e] Convention….when the property involved is
maritime cultural property of prehistoric, archeological or historic interest and is situated on the sea-
bed.47This obviously means that the 1989 Convention would, in the absence of a Contracting State
making a reservation, apply to salvage of historic shipwrecks. Upon its ratification, the United States
declined to reserve against the Convention’s application to historic shipwrecks.As of 1996, only
eight States had made the necessary reservation regarding the non-applicability of the Convention to
historic salvage.48The Convention entered force of July 14, 1996, and as of January 1998 has twenty-
five parties representing over a quarter of the world's ocean-going shipping tonnage.49

As of this writing, it is uncertain whether the 1989 Salvage Convention will have any impact on the
recovery of artifacts from historic shipwrecks. Arguably the 1989 Convention has no bearing on the
question of coastal State authority to regulate shipwreck recovery, that matter having been
presumably settled in the 1982 UNCLOS. Nevertheless, the provisions of the 1989 Salvage
Convention lend credence to the principle that historic salvage is not to be presumptively excluded
from the ambit of salvage operations and that the general maritime law of salvage continues to
extend to recovery of historic wrecks.50

C. Unilateral Assertions of Coastal State Control over Shipwrecks

Despite the 1982 Law of the Sea Convention’s bar on coastal States’ claiming title to or asserting
regulatory authority over historic shipwrecks located beyond a State’s contiguous zone (twenty-four
nautical miles from shore), a handful of countries have done just that. As already noted, 51Australia
was probably the first to do so in section 28 of its 1976 Historic Shipwrecks Act, although the

45
This matter was discussed extensively in the International Maritime Organization (IMO) Legal Committee
deliberation on the 1989 Salvage Convention. See IMO Does. LEG/564(5; LEG 56/WP. 14.
46
See also Feasibility Study, supra note 2, at 3, 19 (incorrectly suggesting that French and Spanish efforts to
exclude historic shipwrecks from salvage under 1989 Convention were "accepted").
47
1989 Salvage Convention, supra note 41, art. 30, para.1(d).
48
. See STATUS OF MULTILATERAL CONVENTIONS AND INSTRuMENTS IN RESPECT OF WHICH THE
INTERNATIONAL MARITIME ORGANIZATION OR ITS SECRETARY GENERAL PERFORMS
DEPOSITARY OR OTHER FUNCTIONS 458 (Dec. 31, 1993) (reservations of Mexico, Saudi Arabia, and Spain);
See also Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Doc.
CLT-96/CONF.605/6, at 12, 91 48 (May 22-24, 1996) [hereinafter Report of the Meeting of Experts]
49
See IMO, Summary of Status of Conventions as of Jan. 5, 1998,
50
But see Report of the Meeting of Experts, supra note 48, at 12, 91 48 (where an expert from the IMO, Mr.
Augustin Blanco-Bazn, opined that "because of the private-law, nonmandatory character of the Convention, the
right to exclude the application of salvage law existed even without express reservation.").
51
See supra note 20.
provision is qualified by reference to internationallaw. So, at least one commentator has suggested
that Australia’s claim to shipwrecks located on its continental shelf may, on its own terms, be
ineffective.52Other countries-including China, Cyprus, Ireland, Norway, Portugal, Spain, and the
former Yugoslavia-have made claims to shipwrecks situated on their respective continental
shelves.53Yet other nations have linked their claim to historic shipwrecks to the Exclusive Economic
Zone (EEZ) regime. These include Cape Verde, Denmark, Jamaica, Morocco, and
Romania,54although quite a number of States have asserted sovereign rights over “all resources” of
the EEZ, and not just the “natural resources” of the Zone as permitted by Article 56(1) of the 1982
Law of the Sea Convention55None of these claims appears to be qualified by reference to
international law.

Nevertheless, some writers have concluded that “Itihe limited number of States….which have
expanded their jurisdiction over underwater cultural property on the continental shelf, cannot provide
the basis for the creation of a customary rule.... The same would seem to apply to cultural property
found in the EEZ.”56 Other scholars appear to disagree.57As has been aptly described, the situation
for cultural property located beyond the territorial sea is in confusion.58

D. The International Law Association Draft Convention:

The last major challenge to the 1982 UNCLOS's settlement of coastal States' rights to historic
shipwrecks was the fashioning of a Draft Convention on the Protection of the Underwater Cultural
Heritage by the International Law Association (ILA Draft). 59TheILA is an international organization
of academic international law specialists, acting in their individual capacities. The ILA Draft was
under consideration for a few years, but no input was invited from any person or entity other than
those concerned with historic preservation values. The final product of the ILA's work was adopted
at Buenos Aires in 1994.

52
ANASTASIA STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN
EMERGING OBJECTIVE OF THE CONTEMPORARY LAW OF THE SEA 259 (1995).
53
See id. 289-90 n.95. See also Feasibility Study, supra note 2, at 4, 23.
54
See STRATI, supra note 52, at 292 n.100.
55
For a list of these nations, see id. at 292 n.101 (including North Korea, Mauritius, Pakistan, Seychelles, Vanuatu,
Barbados, Grenada, Guyana, Philippines, and Tanzania).
56
Id. at 269.
57
See,e.g., Janet Blake, The Protection of Underwater Cultural Heritage, 45 INTL & COMP. L. Q. 819 (1996). See
also Feasibility Study, supra note 2, at 5, 24 (suggesting that coastal States have recognized customary
international law extending jurisdiction over shipwrecks beyond contiguous zone)
58
See O'Keefe &Nafziger, supra note 40, at 394.
59
For the purposes of the discussion here, I refer to the version of the ILA Draft
While a treaty of the sort proposed by the ILA certainly benefits the public by promoting the
educational, cultural, and recreational value represented by underwater cultural heritage, this
particular draft is problematic at best. At worst, it damages the very interests it purports to serve. The
ILA Draft would have sounded the death knell for the international community of sports and treasure
divers, and consequently, whatever gains it would have achieved would only have been pyrrhic. The
ILA Draft, as written, strikes a Faustian bargain in which the delineated protections of the
underwater cultural heritage would eventually herald that very heritage’s doom. The ILA Draft
features definitional ambiguities, novel maritime zones that violate (or dramatically alter) pre-
existing international treaty regimes, and anarchical retroactive enforcement. All of these
problemwill certainly vitiate any positive steps made by the ILA Draft

In fact, the ILA Draft threatens to put an end to all but the most disreputable operations for the
salvage and recovery of shipwrecks (among other underwater artifacts). The increased expense for
such excavation will drastically lower profitability margins, and the inapplicability of salvage law
will nearly eliminate any commercial interest in such activity. Not surprisingly, the ILA Draft was
unacceptable to the international diving and historic salvage communities, and, paradoxically, it
should be opposed for the very reasons that the treaty enlists in support of its goals.

1.6 Definitional Problems

The definitions set out in Article 1 of the ILA Draft are overinclusive and ambiguous. As such, they
are prone to misinterpretation or confusion, as the following examples will show.

a. Underwater Cultural Heritage

The term “underwater cultural heritage” itself is problematic. It is so broadly inclusive that it
stretches to “all underwater traces of human existence.”60 Does this mean that pieces of a splintered
surfboard or even a soda can thrown overboard on a fishing outing should be countenanced by the
ILA Draft? Certainly not, but the definition would seem to cover such items. The term, which is
defined to include “sites, structures, buildings,”61could easily be read also to include support beams
of piers, lobster traps, and oil rig platforms.

Article 1, paragraph 1, further confuses matters with the definition of “wreck” in paragraph 1(b) as
including “a vessel, aircraft, or other vehicle or any part thereof, its cargo or other contents,” 62 and

60
ILA Draft, art.1, para. 1, reprinted in O eefe&Nafziger, supra note 40, at 405
61
Id. art.1, para. 1(a)
62
Id. art.1, para.1(b).
the official commentary amplifies the inclusion of the cargo and other contents of the wreck.63 Does
this mean that the ship's cargo is covered by the ILA Draft even if it has drifted off or has washed
ashore? The commentary to these definitions points out that “Iclontext is one of the most essential
aspects of archaeological heritage in providing knowledge of life during a particular era,”64 but
despite the inclusion of the archaeological and natural contexts in the definition of “underwater
cultural heritage,” there is no definition of the scope of such contexts.

Furthermore, the definitions of “underwater cultural heritage” are so expansive as to be outlandish.

The commentary states that “[t]his is likely to include all aspects of the underwater cultural heritage
of significance to the history of humanity.65 This over inclusive definition ignores the necessity for a
requirement of significance, whether cultural or historical. In order to create both a manageable
regime and one worthy of international treaty, only wrecks of significance should be included in the
definition.

These definitions, in tandem with the commentary provided by the drafters, seem to falsely equate
age with historical significance. Under the ILA Draft, cargo could be considered “underwater
cultural heritage” because of its contents but then be deniedprotection of this definition if that cargo
lacks “historical significance.” For example, if a cargo ship loaded with simple raw materials sank,
its contents would be considered underwater cultural heritage. But, in this situation, the cargo has no
independent historical significance and thus would not be considered underwater cultural heritage.
The glaring absence in paragraph 1 of an additional provision which would remedy the problem of
the faulty assumption that age equals significance is a tremendous failing of the ILA Draft. A
provision to the effect that the treaty shall apply to those articles that have historical significance and
substantively add to historical understanding would be a start for focusing perhaps the most
important definition of the treaty66 Concomitant with the limited definition of underwater cultural
heritage, the ILA Draft needs to adopt some sort of tentative list (albeit a list that is not exclusive)
that would identify the types of historically significant items that would be granted the protection of
the ILA Draft. A listing approach, such as the National Register system in the United States,67might
be a suitable vehicle for such identification.68This process would enable each State Party to an

63
Id. art.1, para.1(b).
64
Id.
65
Id.
66
ILA Draft, art.1, para. 2, reprinted in O'Keefe &Nafziger, supra note 40, at 405.
67
As referenced in The Abandoned Shipwreck Act, 43 U.S.C. §§ 2102(b), 2105 ((a)(3) (1988); see also National
Historic Preservation Act, 16 U.S.C. § 470a (1988).
68
But see Feasibility Study, supra note 2 at 8, TI 42 (doubting whether the 1972 UNESCO Convention on the
Protection of the World Cultural and Natural Heritage could be applied to shipwreck sites offshore or the artifacts
recovered therefrom).
international regime to create a list of “significant” wrecks, thereby giving full information to divers.
This definition would also create a rebuttable presumption and allow for continued exploration of
shipwrecks and the recovery of property lost at sea.

b. Abandonment

Article 1, paragraph 2, indicates that the ILA Draft only applies to underwater cultural heritage that
has been “abandoned.”69The definition propounded in this paragraph, however, is unacceptable due
to confusing and unrealistic time constraints. This definition allows a period of twenty-five
yearsfrom the discovery of technology sufficient to recover the heritage, or if no technology was
available to permit recovery, fifty years from the last assertion of interest by the owner of the
underwater cultural heritage before the heritage is deemed legally abandoned.70 This is too short a
time span to assume that the owner or interested party has abandoned all hope of ever locating the
item. The ILA Draft creates a new international standard for abandonment that isquite inconsistent
with the longstanding general maritime law.

In Columbus-America Discovery Group v. Atlantic Mutual Insurance Co.71 the U.S. Court of
Appeals for the Fourth Circuit held that a group of insurance companies which had assumed title to
the SS Central America (which sank in 1857 off the coast of South Carolina) but had failed to
recover the wreck within the intervening 135 years was still the proper owner. Similarly lengthy time
frames were at issue in negotiations between Australia and the Netherlands over the ownership of
wrecks of vessels that had belonged to the Dutch East India Company.72

The general maritime law has, moreover, consistently held that currently identifiable owners of
property unwillingly lost at sea are presumed not to have abandoned their rights and interests. 73That
is why the legal test for abandonment (whether on land or at sea) has always required two elements:
(1) an intent to abandon; and (2) an act carrying that intent into effect 74Indeed, some courts have

69
ILA Draft, art.1, para. 2, reprinted in O'Keefe &Nafziger, supra note 40, at 405.
70
See id.
71
See id
72
See supra text accompanying note 20; see also Robinson v. Western Australian Museum, [1977] 16 A.L.R. 623,
647-48, 654, 663, 671-74 (Austl.) (holding that original owner retained title); Simon v. Taylor, [19751 2 Lloyd's
Rep. 338 (Sing. Ct. 1974) (same)
73
The AKABA, 54 F. 197, 200 (4th Cir. 1893); Wilkie v. 250 Boxes of Sugar, 29 F. Cas. 1247 (D.S.C. 1796) (No.
17,662).
74
See CADG, 974 F.2d 450, 461 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993); Friedman v. United States,
347 F.2d 697, 704 (8th Cir. 1965) (abandonment is an ultimate fact or conclusion based upon a combination of act
and intent); Morrissette v. United States, 187 F.2d 427, 430 (6th Cir. 1951), rev'd on other grounds, 342 U.S. 246
(1952) (same).
required “strong and convincing evidence” for proof of abandonment.75 Presumptive periods for
abandonment have thus been disfavored in the general maritime law.76

In passing U.S. legislation known as the Abandoned Shipwreck Act of 1987 (ASA) 77Congress
intended that courts apply the general maritime law's presumption against abandonment of property
involuntarily lost at sea.78Indeed, the ASA does not directly define the term abandonment. However,
Congress desired that the Act apply to certain abandoned shipwrecks, which have been deserted and
to which the owner has relinquished ownership rights with no retention.79 Congress use of the terms
“deserted” and “relinquished” require, at a bare minimum, a strongly evinced intent to abandon.
These words may even be regarded as terms-of-art, a congressional recognition that the maritime law
applies a strong presumption against abandonment.80 Congress obviously had the opportunity to
establish a statutory presumption of abandonment and did not do so

In cases of involuntary loss at sea, the consistent standard used by admiralty courts has been to
ascertain whether the owner had the knowledge and means to recover the property. If the owner
knew of the location of the wreck and had the technical means to economically recover the wreck,
but failed to do so, that constitutes an abandonment. If not, then the wreck cannot be deemed to be
abandoned by inference.81 This is utterly consistent with the intent of Congress as expressed in the
ASA's legislative history: “[T]he term abandoned does not require the original owner to actively
disclaim title or ownership. The abandonment or relinquishment of ownership rights may be implied
or otherwise inferred, as by an owner never asserting any control over orotherwise indicating his
claim of possession of the shipwreck.82 Rather, following from the suggestive language in the ASA

75
1990). I should not be seen as suggesting that wrecks of truly "ancient" vintage are never deemed abandoned. The
general maritime law's requirement of a currently identifiable owner resolves this concern. Many courts have
required an authentic chain-of-title from the original hull or cargo owner to the current salvor-claimant. See Bemis
v.The RMS LUSITANIA, 884 F. Supp. 1042 (E.D. Va. 1995), affd, 99 F.3d 1129 (4th Cir. 1996).
76
But see Abandoned Wreck Law (Revised), 1977, §§ 2, 3, 12 (Cayman Is.); Historic Shipwrecks Act, 1976, § 4A
(Austl.), both abstracted in 0'Keefe &Nafziger, supra note 40, at 395.
77
43 U.S.C. §§ 2101-2106 (1988).
78
This result was confirmed in the U.S. Supreme Court's decision in California v. Deep Sea Research, Inc., 118
S.Ct. 1464, 1473 (1998) (indicating that the definition of .abandonment" in Abandoned Shipwreck Act of 1987
should follow that in admiralty law).
79
. 43 U.S.C. § 2101(b) (1988)
80
See Nunley v. M/V DAUNTLESS COLOCOTRONIS, 863 F.2d 1190, 1198 (5th Cir. 1989) (valid abandonment
occurs through act of "deserting" property); Katsaris v. United States, 684 F.2d 758, 762 (11th Cir. 1982)
(abandonment does not occur unless there is a "total desertion" by the owner); Everhart v. State Life Ins. Co., 154
F.2d 347, 356 (6th Cir. 1946) (abandonment is an "absolute relinquishment or renunciation" of a right).
81
See CADG, 974 F.2d 450, 461 4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993); Zych v. The LADY ELGIN,
755 F. Supp. 213, 217 (N.D. IMI. 1990).
82
Abandoned Shipwreck Act of 1987, Pub.L. No. 100-298, 1988 U.S.C.C.A.N. (102 Stat.) 365, 366.
legislative history, a court can infer abandonment, but only when the owner has failed to "assert
control" or "otherwise indicated a claim of possession.83

While the ILA Draft claims to “stabilize expectations” and to preserve the reasonable rights of
owners,84the fifty-year limit does no such thing. The provisions regarding the availability of
technology suitable to recovery of cultural heritage are convoluted and obtuse. It is unclear whether
the two clauses85 the possibility of reading an indefinite time period into the ILA Draft such as a
twenty-five-year span following the discovery of technology that would make recovery feasible.
However, clause 2(b) allows only fifty years following an assertion of the owner's rights if no
technology suitable to the task was available.

The ambiguity resulting from these definitions leaves much to be desired and will certainly cause the
ILA Draft to falter. At a minimum, these provisions appear to shift the burden from a presumption of
ownership to one of abandonment. Not only does this conflict with the general maritime law, it will
necessitate a case-by-case analysis to determine whether an item was truly abandoned by the rightful
owner.

Ironically, the ILA Draft does assume that one class of underwater cultural heritage is never
abandoned: “any warship, military aircraft, naval auxiliary or other vessels or aircraft owned or
operated by a State...86According to the ILA Commentary, “[t]he mere passage of time should not be
interpreted to establish abandonment of such material.87Although this is not the place to consider
whether sovereign vessels or aircraft lost at sea can be abandoned, 88it is interesting to note that the

83
According to well established precedent, a cargo insurer who declares a total loss and pays the full policy limits
takes title of the property via subrogation. This can be accomplished through a formal tender of abandonment or by
simply paying the full claims. See Great Western Ins. Co. v. Fogarty, 86 U.S. 640 (1873); Patapso Ins. Co. v.
Southgate, 30 U.S. (5 Pet.) 604, 622-23 (1831); CADG, 974 F.2d at 457 ("Under applicable law, then and now,
once the underwriters paid the claims made upon them by the owners of the gold, the treasure became theirs.");
The TASHMOO, 1937 A-M.C. 1536, 1539-1541 (Arb. 1937) ("an underwriter who has fully reimbursed his
insured in respect to a loss is entitled to any salvage that results in respect to such loss.... ."). Insurers do not lightly
declare total losses and pay full policy limits. When they do so, they expect to take title and to acquire the benefits
of any subsequent salvage. Marine insurers have led in the recovery of valuable property from shipwrecks, and its
return to the stream of commerce, precisely because they have invested in that property when they paid on the loss
policies
84
ILA Draft, reprinted in OlKeefe&Nafziger, supra note 40, at 406 cmt. 2
85
See id. art. 1, 2(a) & (b) reprinted in O Keefe &Nafziger, supra note 40, at 405.
86
Id. art.2, para. 2, reprinted in O'Keefe &Nafziger, supra note 40, at 407.
87
Id. cmt. 2, reprinted in O'Keefe &Nafziger, supra note 40, at 407
88
I have previously advocated this position. See Steininetz v. United States, 973 F.2d 212 (3d Cir. 1992), cert.
denied, 507 U.S. 984 (1993). I believe the "custom" that sovereigns never abandon their vessels is actually of very
recent origin. The United States has admitted that until quite recently it was generally acknowledged that nations
could be divested of title to their sunken warships under the admiralty law of finds. See 1980 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 999, 1003-05 (M.N. Leiched.) (Opinion of State
Dep't Legal Advisor, Dec. 30, 1980) (collecting authorities). Prior to the 1960s, the decisions of courts in this
country clearly evinced the position that a State could abandon title in its sunken warships. See, e.g., Baltimore,
ILA Draft resolves this issue in favor of States, thus removing a possible ground for objection to the
Draft.89

CHAPTER II-MARITIME SALVAGE

Marine salvage is the process of rescuing a ship, its cargo, or other property from peril. Salvage
encompasses rescue towing, putting out fires, patching or repairing a ship, refloating a sunken or
grounded vessel, moving a disabled vessel in order to clear navigation channels, and raising
sunken ships or their cargo. Equipment involved in salvage operations may include cranes,
floating dry docks, and support vessels (such as tugboats). Commercial divers may be called
upon to perform underwater tasks and monitor progress below the surface.

Marine salvage is the process of recovering a ship, its cargo, or other property after a shipwreck.
Salvage encompasses towing, refloating a sunken or grounded vessel, or patching or repairing a
ship. Today the protection of the environment from cargoes such as oil or other contaminants is
often considered a high priority.

2.1 CLASSIFICATION OF SALVAGE

2.1.1.OFFSHORE SALVAGE

The refloating of ships stranded or sunk in exposed waters is called offshore salvage. In this type
of salvage, vessels are exposed to waves, currents and weather and are the most vulnerable and
difficult to work on. They also tend to deteriorate more rapidly than such vessels in protected
harbors. Offshore salvage may provide only a short window of opportunity for the salvage team
due to unusually high tide or inclement weather for instance. The work window may not come
around again for as long as weeks or months and in the interim, the vessel will continue to
deteriorate. As a result, it is often imperative to work quickly. Typically, offshore salvage is
conducted from pre-outfitted salvage tugs and other tugboats. In addition, portable diving
facilities may be transported by helicopter or small boat to the work area. From a tactical point of
view, working in unprotected waters is less hospitable for floating cranes, construction tenders,

Crisfield & Onancock Line, Inc. v. United States, 140 F.2d 230, 234 (4th Cir. 1944) (U.S. battleship sunk as target
practice in 1911); State ex rel. Bruton v. Flying "W" Enters., Inc., 160 S.E.2d 482 (N.C. 1968) (Confederate
blockade runners and other vessels); State by Ervin v. Massachusetts Co., 95 So. 2d 902, 903 (Fla. 1956), cert.
denied, 355 U.S. 881 (1957) (U.S. battleship sunk as target practice in 1922, found in 1952); Deklyn v. Davis, 1
Hopk. Ch. 154 (N.Y. 1824) (British frigate sunk in 1781 or 1782, found 30 years later).
89
See Report of the Meeting of Experts, supra note 48, at 5-7, T 22-26 (confirming the need to exclude warships
from the provisions of any draft convention).
dredges and equipment barges. Plus, it is often difficult to depend upon a stable workforce
(welders, carpenters, etc.) as all personnel must be present on site for the duration.

2.1.2 HARBOUR SALVAGE

The term harbour salvage refers to the salvage of vessels stranded or sunk in sheltered waters.
Such vessels are not normally subject to the same deterioration caused by marine and weather
conditions as offshore salvage vessels are. In addition, unless the vessel to be salvaged is
obstructing navigation, then there is no need to work as swiftly as in offshore salvage. Also,
harbour pre-salvage survey and planning stages tend to be less time consuming and
environmentally dependent. It is also easier to gain access to local labour resources and heavy
equipment such as floating cranes and barges.

2.1.3 CARGO AND EQUIPMENT SALVAGE

Saving the cargo and equipment aboard a vessel may be of higher priority than saving the vessel
itself. The cargo may pose an environmental hazard or may include expensive materials such as
machinery or precious metals. In this form of salvage, the main focus is on the rapid removal of
goods and may include deliberate dissection, disassembly or destruction of the hull.

2.1.4 WRECK REMOVAL

Wreck removal focuses on the removal of hazardous or unsightly wrecks that have little or no
salvage value. Because the objectives here are not to save the vessel, the wrecks are usually
refloated or removed by the cheapest and most practical method possible. In many cases,
hazardous materials must be removed prior to disposing of the wreck. The most common
techniques used in wreck removal are cutting the hull into easily handled sections or refloating
the vessel and scuttling it in deeper waters.

2.1.5 AFLOAT SALVAGE

The salvage of a vessel that is damaged but still afloat is called afloat salvage. This type of
salvage is mostly unobtrusive and involves primarily damage control work such as hull welding,
stabilization (rebalancing ballast tanks and shifting cargo) and structural bracing. In some cases,
the vessel can remain underway with little disruption to its original purpose and crew.

2.1.6 CLEARANCE SALVAGE

Clearance salvage is the coordinated removal or salvage of numerous vessels in a harbor or
waterway. It typically follows a catastrophic event such as a tsunami, hurricane or an act of war
(e.g. Pearl Harbor). There may be multiple vessel obstructions with varying degrees of damage
due to collision, fire or explosions.

2.2TYPES OF SALVAGE

2.2.1 CONTRACT SALVAGE

In contract salvage the owner of the property and salvor enter into a salvage contract prior to the
commencement of salvage operations and the amount that the salvor is paid is determined by the
contract. This can be a fixed amount, based on a "time and materials" basis, or any other terms
that both parties agree to. The contract may also state that payment is only due if the salvage
operation is successful (a.k.a. "No Cure, No Pay") or that payment is due even if the operation is
not successful

2.2.2 PURE SALVAGE

In pure salvage (also called "merit salvage"), there is no contract between the owner of the goods
and the salvor. The relationship is one which is implied by law. The salvor of property under
pure salvage must bring his claim for salvage in a court which has jurisdiction, and this will
award salvage based upon the "merit" of the service and the value of the salvaged property.

Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage,
the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment
in order to salvage the property that is in peril. Examples of high-order salvage are boarding a
sinking ship in heavy weather, boarding a ship which is on fire, raising a ship, plane, or other
sunken property, or towing a ship which is in the surf away from the shore. Low-order salvage
occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage
include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a
sand bar. Salvors performing high order salvage receive substantially greater salvage award than
those performing low order salvage.

In order for a claim to be awarded three requirements must be met: The property must be in peril,
the services must be rendered voluntarily (no duty to act), and finally the salvage must be
successful in whole or in part.
There are several factors that would be considered by a court in establishing the amount of the
salvor’s award. Some of these include the difficulty of the operation, the risk involved to the
salvor, the value of the property saved, the degree of danger to which the property was exposed,
and the potential environmental impacts. It would be a rare case in which the salvage award
would be greater than 50 percent of the value of the property salvaged. More commonly, salvage
awards amount to 10 percent to 25 percent of the value of the property.

Private boat owners, to protect themselves from salvage laws in the event of a rescue, would be
wise to clarify with their rescuer if the operation is to be considered salvage, or simply assistance
towing. If this is not done, the boat owner may be shocked to discover that the rescuer may be
eligible for a substantial salvage award, and a lien may be placed on the vessel if it is not paid.

2.2.3 NAVAL SALVAGE

Several navies have Rescue Salvage vessels which are to support their fleet and to come to the
aid of vessels in distress. In addition they may have Deep Salvage Units. A DSU (salvage) is an
attached unit to the US Navy Submarine Rescue Unit. Technical diving marine salvage units
which can operate in depths unworkable by civilian divers, and which requires saturation diving
or trimix (breathing gas) diving techniques. This type of Unit is at times formed by a commercial
diving company contracting to government via the Baltic Exchange.

2.3 LEGAL INSTRUMENTS

 Sec. 6 of the Admiralty Court Act, 1840

 Sec/ 20(2) j of the Supreme Court Act, 1981
 Sec. 20(6) of the Supreme Court Act, 1981
 Clause 5 (2) j of the Admiralty Bill, 2005
 402 (1) (a) and 402(2) of the Merchant Shipping Act, 1958
 Brussels Convention on Assistance and Salvage at Sea, 1910
 International Salvage Convention, 1989
 International Convention on Maritime Liens and Mortgages, 1993
2.4 CONDITIONS REQUIRED
Although salvage laws vary from one country to another, generally there are conditions that must
be met to allow a claim of salvage. The article under salvage must be fit into certain recognized
categories. The vessel must be in peril, which is defined broadly. The person rendering aid (the
"salvor") must be acting voluntarily and under no pre-existing contract. Finally, the salvor must
be successful in his efforts, though payment for partial success can be granted in certain
circumstances.
RECOGNIZED SUBJECT MATTER
Traditionally, salvage only recognizes a ship or craft ("vessel"), cargo on board, freight payable,
and bunkers carried on board as the subject of property in danger. The concept of property has
been expanded by the 1989 Salvage Convention. The Convention does not consider saving lives
to be part of salvage, but the protection of the environment is part of salvage. Oil pollution can
cause damage to the environment. If the salvor prevents oil pollution from happening, he indeed
performs a valuable service to the community as mentioned by (1997) 1 Lloyd's Rep 323 (HL),
pp 326–28. Therefore, the salvor will be rewarded with special compensation, i.e., liability
salvage instead of property salvage.
REAL DANGER
Danger needs to be real but not necessarily immediate or absolute. The subject of salvage must
be in real danger, which means the property is exposed to damage or destruction.The burden of
proof lies on the salvor, which means the salvor needs to prove real danger existed when the
performance of service commenced. The court or arbitrators must determine whether the
property was truly in danger. As every situation differs, both subjective and objective tests will
be conducted. Common considerations are:
It is incumbent upon the court to assess the existence and level of danger, both present and
future. The case of the Troilus (1951 1 Lloyd's Rep. 467, HL) illustrated the concept of future
danger that the court must take into account when determining the existence of danger. In this
particular case, the cargo owners contended that the ship was in perfect safety when she reached
Aden, and therefore it constituted ocean towage but not salvage when towing from Aden to UK.
The court held that even though the ship and cargo was in physical safety, the services rendered
still amounted to salvage service on the grounds that the master of a damaged ship must do his
best to preserve the ship and cargo and bring them to their destination as cheaply and efficiently
as possible. The salvage award was reasonable as long as the master acts reasonably for the
combined benefit of ship and cargo.
In the modern world, the dispute normally is not about whether there is just the existence of
danger, but also the degree of danger, as it determines the extent of the award.
VOLUNTARY SERVICE
Voluntary means that the services are not rendered under a pre-existing contract agreement or
under official duty or purely for the self-preservation interests of the salvor. Because of this,
there is no limitation to the class of persons that can be considered as volunteers.
A pre-existing agreement refers to any agreement entered into before the time of the existence of
danger. It includes ship's master and crew who have pre-existing employment agreement with
ship-owners. They have the duty to preserve the ship and cargo, and therefore they cannot
convert themselves into salvors in the event of trouble.
Notwithstanding, exceptions still exist in this area. Salvage can still be rendered if the pilot or
crews of the ship in peril rendered service outside or beyond the scope of their duties under the
contract. The case of the Sandefjord (1953 2 Lloyd's Rep. 557) held that the pilot brought his
personal knowledge of the local conditions and his seafaring skills to bear when faced with a
grounding. Moreover, the pilot relieved the ship owner of paying a vast salvage award for tug
assistance. Under these conditions, the pilot was entitled to a salvage award.
Crewmen cannot claim themselves as individual salvors unless their employment contract has
been actually or constructively terminated before the salvage service commenced. The
termination of contract could be brought by: authorized abandonment of the ship under the
Master's authority; or the Master's discharge of the crew concerned; or the capture of the vessel
in hostile encounter.
Authorized abandonment refers to a condition wherein, at the time the Master decided to
abandon ship, there was no hope or intention of returning to the stricken ship. There can be no
suggestion that a mere temporary abandonment would dissolve the crew's contract of
employment. The case of the Albionic (1941 70 L1.L.Rep.257) ruled that there was no express
order given by the Master to abandon the ship, and therefore the crew's contracts of service were
not terminated at the time when they performed the salvage service. The San Demetrio (1941 69
L1.L.Rep.5) case demonstrated a good example of an authorized abandonment of ship under the
Master's authority. If the ship was properly abandoned under the orders from the master, the
vessel’s own crews who saved the vessel or cargo on board were entitled to claim salvage.
In the case of the Master's discharge of crew concerned, the Warrior Lush (476) case ruled that if
the master properly discharges the crew, their employment contract is validly terminated.
Therefore, any crew who returned to and saved the vessel were truly salvors.
Additionally, hostile capture of the crew effectively causes the dissolution of the sailors'
employment contract, as the general and expected duties for the seamen no longer exist. The Two
Friends (1799 1 Ch Rob 271) provided support for this argument.
SUCCESS
The requirement for the service to be successful can be summed up from the common expression
no cure; no pay. However, success need not be total. Partial success, provided that there is some
measure of preservation to the owners, is sufficient. The TojoMaru90 examined certain
characteristics of salvage contracts and concluded that the primary consideration is that the
person rendering the salvage service is not entitled to any remuneration unless he saves the
property in whole or in part.
If the ship's peril following the service is as grave as before, no award will be given. Likewise, if
the salvage services which rescue a vessel from one danger eventually make the situation worse,
no salvage award is typically granted. The Melanie v The San Onofre91 held that the services
which rescued a vessel from one danger, but eventually left her in a position of even greater
danger, did not contribute to ultimate success and therefore do not amount to salvage.
SALVORS RIGHT TO LIMIT LIABILITY
Prior to 1976 Limitation Liability Convention, salvors had no right to limit their liabilities in
cases of negligence or misconduct which blame on salvor their liabilities were unlimited for
example the TojoMaru Case in 1972.92
1976 Limitation of Liability Convention, states that ship owners and salvors as defined, may
limit their liability in accordance with rules of this convention for claims in respect of loss or
damaged to property occurring on board in relation to salvage operation93 subject to certain
exceptions such as gross negligence if proved limitations will not be allowed. This new
development was a direct consequence of 1972 TojoMaru case. Limitation Liability Convention,
ratified by 52 States about 50% of world shipping tonnage and its latest protocol with higher
amount of limits has ratified by 37 states about 42 % of the world shipping tonnage. 1996
protocol to Limitation Liability Convention provides an enhanced compensation regime compare
to the former. USA is not a party to these conventions but thy have their own statutory
provisions.Inclusion of salvors for limitation of liability is a recent development in favor of their
rights.
NEGLIGENCE OF SALVORS
Salvor taking the risk to save the property and during the salvage operation accidents occur due
to salvors negligence or misconduct the question is to what extend these negligence or
misconduct affect the salvage award and whether the ship owner can make a counterclaim for

90
1972 AC 242 HL
91
1925 AC 246
92
TojoMaru case salvors were not allowed to limit liability under the old sys-tem existed before 1976 Limitation
of liability Convention.
93
Article 2 (1) (a) claims in respect of loss of life or personal injury or loss of or damage to property (including
damage to harbor works, basins and water-ways and aids to navigation), occurring on board or in direct
connection with the operation of the ship or with salvage operations, and consequential loss resulting
damages. Decisions on these were difficult because of the extra ordinary nature of the job and
involvement of the high risk.
Although both UK and USA are the signatories to the 1989 Salvage Convention the
interpretation of provisions on salvors negligence by the courts have been different. Under the
convention the salvor shall owes a duty to the owner of the vessel or other property in danger to
carry out the salvage operations with due care also to exercise due care to prevent minimize
damages to the environment and take assistance when reasonably requested.94 The salvor’s
negligence may also deprive him of whole or part of the award95 the convention is silence on
how they are measured and, it has left the decisions to national courts.
The case “Alenquer” courts description to what extend the leniency can be granted has a notable
value. A brief outcome of the English law cases de-scribed below.
Case 1947 TheDelphinula (Court of Appeal)
The salvor guilty of misconduct reduction in salved value due to his misconduct was taken into
consideration and also a counter claim or independent action.
Case 1972 TojoMaru(House of Lords)96
It was held that when the salvage operation is successful but there is negligence of the salvor in
the case of successful salvage the owners can counter-claim damages from the salvor and the
measure of damage is the difference between undamaged value of the ship base on “no
negligence” of the salvor and damaged value of the ship and, the salvage award to be calculated
base on undamaged value of the ship.
Finally the salvage award and owners counter-claim will set off against each other the balance
will be due owner or salvor. It was also held that when there is no success in salvage there can be
no counter claims as well.

94
Article 8 - Duties of the salvor and of the owner and master
1. The salvor shall owe a duty to the owner of the vessel or other property in danger:
(a) to carry out the salvage operations with due care;
(b) in performing the duty specified in subparagraph (a), to exercise due care to prevent or minimize damage to
the environment;
(c) whenever circumstances reasonably require, to seek assistance from other salvors; and
(d) to accept the intervention of other salvors when reasonably requested to do so by the owner or master of
the vessel or other property in danger; provided however that the amount of his reward shall not be prejudiced
should it be found that such a request was unreasonable.
95
Article 18 - The effect of salvor's misconduct
A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that the
salvage operations have become necessary or more difficult because of fault or neglect on his part or if the
salvor has been guilty of fraud or other dishonest conduct.
96
1972 TojoMaru collision accident in Persian Gulf salvors agreed to tow her to Kobe during the salvage
operation, the salvors negligence caused an explo-sion and heavy damages to the ship. They however were
successful in towing her to final destination. The owners counterclaim damages from salvor due to negligence.
This case has the highest authority the House of Lords however its calculation of the award
taking into account undamaged value of the ship although there were “no negligence” has created
a friction between it and “no cure no pay” principle. There are also other concerns on application
of this case law to cases with two or more salvors with only one at fault and how it can affect the
one who is not at fault.
With regard to Limitation of liability of the salvors the Court of Appeal in the above case held
that limitation of liability could be applied before setting off owners counter claim.
When considering the salvors’ negligence or misconduct the American method is different from
the English courts. They categorize them as distinguishable damages and independent damages.
Distinguishable damages means they inherit in the situation for example the TojoMaru case was
a distinguishable damage and the independent damages means they were caused independently
by the salvor any counter claim for damages the independent damages may only consider.
Limitation of liability under the American statute is the damagedvalue of the ship plus the freight
in the course of being earned.
Under the Llloyd Open Form 2000 the salvor is required to have observed best endeavors31,
there has been no definition of best endeavors it is commonly used in industry and widely known
therefore best endeavor means Standard of reasonableness is that of a prudent sailor acting
properly in the interest of salved property.
The law with respect to negligence and misconduct of salvors their interpretations by English
Courts are conflicting and the American Courts interpretations much preferred with respect to
preservation of salvors rights.
2.5 SALVAGE CLAIMS AND LIENS
English law embraces the salvage claim as a maritime lien as described under English Supreme
Courts Act states that under any contract in relation to salvage services whether covered under
salvage convention or not. Under the English law salvage awards are given priority on liens.
They consider among other things damage done by a ship, sea-men’s wages, masters wages and
disbursements. The courts will determine the distribution of the funds in order of their
priorities97but there are no strict rules of rankings.

1 Admiralty Marshal’s cost

2 Claimant’s cost

3 Maritime Lienees

97
Supreme Court Act, 1981 S.21(6)
 4 Mortgagees

5 Other in rem claimants

− When there are several salvors the last in time take priority.

− When there are different categories

− When a claimant has a damage lien subsequent to lien that preserved the ship (salvage)
the damage lien will take priority over salvage.98

English law considers the extinction of maritime liens under the following circumstances:
Immunity; delay of law suit; upon providing financial security by the defendant; establishment of
limitation fund; wavier; destruction of property; Judgment on liability; Judicial sale and; sister
ship arrest.

1993 International Convention on Maritime Liens and Mortgages came into force in Sept 2004.
Few countries have so far ratified this convention they are: Indonesia, Ecuador, Estonia, Nigeria,
Monaco, Russia, St Vincent and Grenadians, Spain, Tunisia, Ukraine and Vanuatu.99 This
convention contained the provisions in relation to maritime liens similar to that have generally
accepted by major maritime nations and it also has the provisions that each state under its own
law may grant maritime liens on a vessel to secure claims other than those generally
recognized.100

2.6 SPECIAL COMPENSATION

Special compensation was introduced in 1989 Salvage Convention to compensate the salvors if
their salvage operation has contributed to protection of the marine environment even though they
could not earn full or any salvage award.

Under the 1989 Salvage Convention if a salvor has carried out salvage operation in respect of a
vessel which by itself or its cargo threatened damage to the environment and has failed to earn

98
The case “Veritas” 1901 the vessel was safely towed by the salvors but un-fortunately her engine failed and a
second salvor assisted her to prevent her from sinking. During the operation the vessel came into contact with
landing stage belonging to the Dock Board. The Board used its statutory powers to re-move the vessel and claim
against the ship in this case priority was given to the Boards claim against the ship before considering the
salvage awards.
99
Article 4 (1) ( c ) Maritime Liens - Claim for reward for the salvage of the ship
Article 5 - Priority of maritime liens; Article 15- Conflict of laws ; Article 16 - Extinction of maritime liens because
of time limit
100
Article 6 –Other maritime liens Each State Party may, under its law, grant other maritime liens on a vessel to
secure claims…subject to condition which include time bar and rank below Salvage lien.
reward under article 13 he shall be entitled to special compensation from the owner of the vessel
equivalent to his expenses as defined in article 14. This appear to be a another step to encourage
the salvor for saving the environment but the calculation of the salvage expenses without
considering the profits or bonuses turn out to be an unpractical one. The principle issue in the
Nagasaki Spirit case was concern with the definition of expenses in Article 14(3) and, in
particular, that part of it which refers to “fair rate for equipment and personnel actually and
reasonably used in the salvage operation…”.101 The question was whether is it permissible to
include a market or profitable rate, or whether the salvor was entitled to solely to reimbursement
of expenditure. House of Lords delivering the judgment held that fair rate under article 14(3)
meant fair rate of expenditure and did not include any element of profits. This draws strong re-
action from the salvors and after lengthy discussions the marine salvage community arrived with
the solution. This was a set of clause giving the basis for calculation of special compensation
including bonuses under the guide lines set up by International Salvage Union (ISU) and
clarifying other relevant criteria known as Special Compensation and Indemnity Clause
(SCOPIC). The solution provided by SCOPIC is, the parties to a salvage contract may agree to
incorporate SCOPIC into any LOF contract by reference, therefore contracting out of Article 14
of the Convention. Such contracting out is allowed under article 6 of the Salvage Convention.102
The ship owners P&I clubs have agreed through a code of conduct (a gentlemen agreement
between P& I Clubs and ISU) to provide financial security required for SCOPIC compensation
by a standard guarantee form known as ISU5.

Special compensation available to salvors under the convention have faced with problems in
practical application, SCOPIC so introduced is a contractual obligation and not a statutory one.
Salvage convention compensation limits to apply if SCOPIC is not agreed.

101
14(3) Salvor's expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses reasonably
incurred by the salvor in the salvage opera-tion and a fair rate for equipment and personnel actually and
reasonably used in the salvage operation, taking into consideration the criteria set out in article 13, paragraph 1
(h), (i) and (j).
Article 13 the Criteria for fixing the rewards
(h)the promptness of the services rendered;
(i) the availability and use of vessels or other equipment intended for salvage operations;
(j) the state of readiness and efficiency of the salvor's equipment and the value thereof.
102
Article 6 - Salvage contracts. 1. This Convention shall apply to any salvage operations save to the extent that a
contract otherwise provides expressly or by implication
2.7 CASE LAWS

Arielle Shipping Ltd v Owners of the “Lady Emma” 103

Marine Salvage- contract for towage service- not agreement for salvage

The defendant’s vessel, the ‘Lady Emma’ was blown ashore and grounded high and dry as the
result of a cyclone. After 2 failed attempts by a salvage company to refloat the vessel, the
defendant asked the plaintiff , captain of the vessel ‘Arielle’ to pull the ‘Lady Emma’ free from
where she was stranded. The ‘Arielle’ had been used to tow oil rigs but was not designed for
salvage operations and had never been used as such. The plaintiff advised the defendant that he
considered that the ‘Lady Emma’ could be towed off the reef. The plaintiff asked the defendant
to supply the salvage equipment and the diver and stipulated a $3000 per day charge whether or
not the operation was successful. A $3000 deposit was paid and the plaintiff tried to refloat the
vessel for 3 days, but was unsuccessful. The defendant refused payment claiming that the
operation was not carried out in a workmanlike manner.

DECISION: Action allowed

HELD: The plaintiff agreed to perform a towing job. This was evidenced by the oral agreement
between the parties and by the fact that the defendant paid a $3000 deposit. The defendant
required a salvage operation. The court compared towage and salvage services where salvage is
voluntary with no title to award unless the ship freight or cargo is saved. The court was of the
view that this was a contractual towage service for which payment was agreed. The duty of care
of the plaintiff was not that of a salvage contractor undertaking a continual obligation until the
ship is lost or salvaged. The plaintiff’s duty of care was that he use reasonable skill and care in
the provision of the services.

Bohn v Vanuatu Maritime Authority104

Marine salvage- contract to salvage terminated when salvage operation almost complete- party
contracted to salvage entitled to reasonable value of work done The parties contracted for the
salvage of 2 vessels that posed a safety threat to the harbour. The contract stipulated that the
work was to be completed in 30 days. The plaintiff encountered many difficulties in the operation
particularly in finding equipment and competent personnel. After 37 days the plaintiff wrote to

103
[1993] FJHC 11; (11 February 1993)
104
[2001] VUSC 127; Civil Case 115 of 2000 (9 September 2001);
the defendant requested an extension of the allowable time to complete the contract. The
defendant failed to respond and the plaintiff continued with the salvage operation on an implicit
understanding. After 4 months on the job the parties had a difficult relationship frustrating the
operation further. After nearly 8 months the salvage was completed and arrangements were made
to scuttle the vessels. The defendants appeared to have encouraged the plaintiffs to complete the
contract after the time period. However the defendant refused to pay on the basis of a breach of
the contract in that the plaintiff did not complete in time. The defendant claimed that work done
by the plaintiff after the expiration of the contract was as a voluntary salvor, and the defendant
challenged the competency of the work done. The plaintiff claimed quantum meruit for the value
of the work done under the contract.

DECISION: for the Plaintiff

HELD: The defendant had the right to terminate the contract. However when the contract was
terminated most of the work had been completed. The court found on the evidence that the work
had been done competently. Therefore the plaintiff was entitled to a reasonable value of the work
done.

Mauitoga v Consort Shipping Line Ltd105

Marine salvage- Apportioning the share of the owner of the salving vessel

The owner of a salving vessel received a $25,000 award for the salvage of a vessel. The salvage
was undertaken by the Captain and crew of the salving vessel and these parties applied to the
court for a determination of the proportion of the award that they were entitled to. The owner of
the salving vessel argued that no apportion was necessary as wages had been paid during the
salvage operation.

DECISION: 75% to the owner and 25% to Captain and crew (of the latter amount, 1/3 to the
Captain and the rest divided amongst crew members

HELD: Although the Captain and the crew members were paid their usual wages as employees
of the vessel owner, according to maritime practice they were entitled to their respective share in
the reward. Since 1883 and the demise of sail, the apportionment to the owner has been generally
75%.

105
[1995] FJHC 16; (18 January 1995)
Owner of the Ship Classique v Marine Services Ltd106

Marine salvage- quantum- claim for salvage is not a claim for a liquidated amountanalogous to a
claim for damages at common law. Jurisdiction- Lloyd’s contract provided for arbitration to
proceed in London, but court would not allow challenge to jurisdiction 2 years after defendant
had taken a step in the action.

The salvor claimed $85,000 for salvage. The vessel was arrested, but the owner took the ship out
of the jurisdiction in contempt of the court ordered arrest. Subsequently the salvor was awarded
judgment of $85,000 in default. The trial court upheld the judgment, and the owner appealed on
the grounds that the judgment was irregular, no evidence having been considered in establishing
quantum. The owner also disputed jurisdiction, arguing that the contract provided for arbitration
in London.

DECISION: Appeal allowed.

HELD: The judgment was irregularly obtained because there was no evidence at all before the
Judge supporting the quantum of the judgment. As to jurisdiction, the defendant could not
challenge jurisdiction 2 years after it had entered an appearance.

Seafreight Pty Ltd v The Ship ‘Manutea’107

Marine salvage- Lloyd’s “no cure- no pay” agreement- claim must be quantified to be considered
proper claim for purposes of arrest of vessel for security

The defendant ship (Manutea) was successfully salved by the plaintiff. During the extensive tow
the two captains entered an oral salvage agreement which was to be in terms of a Lloyd’s
Salvage Agreement described as a “no cure- no pay” agreement. Contrary to the agreement the
salved ship was moved from her place of safety without the consent of the salvor. The plaintiff
had her arrested and filed an in rem claim for salvage fees. The claim for salvage fees was made
after the arrest. The owner of the Manutea applied for an order to set aside the warrant to arrest
and to release the vessel from the arrest made under the warrant.

DECISION: Order granted

106
[1993] SBCA 3
107
[1975] PGSC 28; [1975] PNGLR 64 (29 March 1975)
HELD: The court looked at clauses 4 & 5 of the contract. Pursuant to this contract the salvor
must notify Lloyd’s of the amount for which he requires security be given- this was not done by
the salvor in this case. The contract also provided that the property would not be arrested or
detained unless security was not given within 14 days. The court decided that there was a period
after the successful salvage operation and before the claim under a “no cure- no pay” agreement
where there is no maritime lien except where there is reason to believe that removal of the salved
property is contemplated. The ship had been moved without the consent of the plaintiff but the
court found that there was good reason to move the ship and it had not been moved to a foreign
port. There had not been a claim made for salvage at the time of the arrest because at that time
the claim had not been quantified.

CHAPTER III- SALVAGE LAWS IN USA:

The United States is a party to both the 1910 Brussels Salvage Convention108 and the 1989 Salvage
Convention109. However, U.S. courts usually decide salvage controversies under the principles of the
general maritime law without reference to international conventions. Important innovations were
introduced in the 1989 Convention, especially in regard to salvage efforts that protect against
environmental damage. Federal courts have exclusive jurisdiction over salvage cases that are brought
in rem. It is not clear whether state courts may entertain a salvage claim brought in personam, but
such cases are rare. Suit for a salvage award may be brought against either the owner of the vessel
salvaged or the vessel itself in rem.110 The statute of limitations for filing a salvage award claim is
two years. A claim for salvage is a claim either for “pure salvage” or “contract salvage.” The
Supreme Court has stated that “no structure that is not a ship or vessel is a subject of salvage.”111
Nevertheless, it is apparent that cargo, fuel, and other property salvaged from or with a vessel may
also give rise to a salvage award. In order for a court to make a salvage award, there should be a
nexus between the item salvaged and traditional maritime activities. Lower federal courts, however,
have liberally interpreted the Court’s statement in determining whether the property has a maritime
connection. Accordingly, some courts have found such items as seaplanes and money found on a

108
International Convention for the Unification of Certain Rules Relating to the Salvage of Vessels at Sea, signed at
Brussels, Sept. 23, 1910; codified with minor modifications in the United States as the Salvage Act, 46 U.S.C. app.
§§727–731 (2000)
109
International Convention on Salvage, signed in London, Apr. 28, 198
110
The Sabine, 101 U.S. (11 Otto) 384 (1879) (a lien arises against a salvaged vessel in favor of the salvor of the
vessel). Where salvage services are rendered without request by the owner or someone acting on authority of the
owner, the salvor may be limited to its lien as the sole remedy. See, e.g., Jupiter Wreck, Inc. v. Unidentified,
Wrecked & Abandoned Sailing Vessel, 691 F. Supp. 1377 (S.D. Fla. 1988
111
Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887).
floating human body to be proper subjects of salvage. One court has, however, held that a house that
sank while it was being transported by truck over a frozen lake lacked a maritime relationship. A
party may render salvage services to a vessel without the request of the owner, master, or other agent
of the vessel if it appears that a reasonable owner would have availed itself of the services had it
been present at the scene. However, a party who renders services to a vessel despite the objection of
a person who has authority over the vessel will be denied a salvage award.112
Elements of “Pure Salvage” Claims:
“Pure salvage” is a reward for perilous service. Public policy mandates a pure salvage award for
laborious, and sometimes dangerous, efforts to provide maritime assistance. Awards are therefore
designed to be reasonably liberal in the salvor”s favor. There are three elements of a pure salvage
claim. First, the property must be exposed to a marine peril. Second, the salvage service must be
voluntary, whereby the salvor is under no pre-existing duty to render the service. Third, the salvage
operation must be successful in whole or in part. A salvor is anyone who saves maritime property
from a peril. An “inadvertent” salvor does not qualify for a salvage award. The would be salvor must
have the specific intent to confer a benefit on the salved vessel. For example, where a person was
trying to put out a fire to save a wharf and in the process saved a ship, the unintended result was not
a salvage service. To qualify as a marine peril the danger need not be imminent. There only needs to
be a reasonable apprehension of peril. A claimant seeking a salvage award must show that, at the
time assistance was rendered, the salved vessel had been damaged or exposed to some danger that
could lead to her destruction or further damage in the absence of the service provided. The party
seeking a salvage award has the burden to prove that a marine peril existed. Services must be
rendered voluntarily. The owner of the salved vessel has the burden of proving that the salvage
services were not voluntarily rendered. In order for the services to be considered voluntary, they
must be “rendered in the absence of any legal duty or obligation.” This requirement does not
preclude professional salvors from claiming salvage awards, but may bar certain people, such as
firemen, from claiming salvage awards. Similarly, a vessel’s crew is generally precluded from
claiming salvage awards because of their pre-existing duty to the vessel. They may, however, be
eligible for awards under exceptional circumstances. It is clear, however, that persons may claim a
salvage award for rendering services to an endangered vessel notwithstanding the fact that they are
members of the crew of another vessel owned by the same person who owns the salved vessel.113

112
Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893 (5th Cir.), cert. denied, 464 U.S. 818 (1983)
113
Markakis v. S.S. Volendam, 486 F. Supp. 1103 (S.D.N.Y. 1980)
3.1 Salvage and Finds Distinguished:
Disputes arising out of the discovery and excavation of historic shipwrecks require courts to
distinguish between the law of salvage and the law of finds. Under the law of salvage, title to a
salvaged vessel remains with the owner of the vessel. Although the salvor of the vessel has a lien on
the vessel and may claim a salvage award, the salvor does not gain title to the vessel.114 In contrast,
under the law of finds, the finder acquires title to the property upon a determination that property has
been permanently abandoned.115
The laws of salvage and finds may be subject to statutory laws conferring federal government
control over historic structures. In an effort to protect artifacts that may be retrieved from historic
ship wrecks within the United States, Congress passed the Archaeological Resources Protection Act
of 1979116, which protects archaeological remains within federally owned lands other than the Outer
Continental Shelf. The United States claims shipwrecks in specified areas subject to U.S. control.
Under the Abandoned Shipwreck Act117, the United States asserts ownership to all shipwrecks
embedded in the land within state territorial waters and, in turn, transfers title to those vessels to the
state in which the shipwreck is located. The Act further provides that neither the law of salvage nor
the law of finds applies to shipwrecks covered under the Act. The Antiquities Act of 1906 118 confers
control in the federal government over historic landmarks, historic and prehistoric structures, and
items of historic and scientific interest located on land owned and controlled by the United States.
The Outer Continental Shelf Land Act, which extends jurisdiction and control of the United States
over the Continental Shelf, relates to the exploitation of the mineral resources on the Continental
Shelf, and, as made clear by the Convention on the Continental Shelf119, does not apply to wrecked
ships and their cargo lying on the seabed or covered by sand or subsoil.
3.2 Salvage Awards:
If a court finds that a salvage service was performed, it must then determine the amount of the
salvage award. Each salvage situation is unique, and the circumstances of each case must be
considered in fixing the award. In The Blackwall,120 the Supreme Court listed a set of factors that
should be considered in determining a salvage award:

114
Chance v. Certain Artifacts Found & Salvaged from the Nashville, 606 F. Supp. 801 (S.D. Ga. 1984), aff”d, 775
F.2d 302 (11th Cir. 1985)
115
Id. See also Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.
1978)
116
16 U.S.C. §470aa (2000
117
43 U.S.C. §§2101–2106 (2000)
118
. 16 U.S.C. §§431–433 (2000)
119
857. Convention on the Continental Shelf, done Apr. 29, 1958, 15 U.S.T. 471, 11 U.N. GAOR, Supp. No. 9, at
42, U.N. doc. A/3159 (1956) (entered into force June 10, 1964). See also Treasure Salvors, 569 F.2d at 339.
120
59. 77 U.S. (10 Wall.) 1
(1) The labor expended by the salvors in rendering the salvage service;
(2) The promptitude, 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 degree of
danger 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 saved property; and
(6) The degree of danger from which the property was rescued..
Misconduct of Salvors:
“[A] salvor must act in good faith and exercise reasonable skill and prudent seamanship” in
providing salvage services. A salvor’s negligence may result in a reduction of the salvage award, a
total denial of any award, and liability for affirmative damages. Mere negligence that results in an
unsuccessful salvage will, in turn, result in a denial of an award under the “no cure–no pay” rule.
Negligence that only reduces the degree of success will result in a reduction of the award. However,
where a salvor is guilty of “gross negligence or willful misconduct” the salvor not only will be
denied a reward or suffer a reduction of its award, but will be liable for affirmative damages for loss
or damage to the salved vessel. Furthermore, there is authority for the proposition that even in the
absence of gross negligence, if the salvor inflicts a “distinguishable” or “independent” injury on the
salved vessel, it may be held liable to pay affirmative damages. A “distinguishable” injury “is some
type of damage caused by the salvor to the salved vessel other than that which she would have
suffered had salvage efforts not been undertaken to extricate her from the perils to which she was
exposed.” Finally, a salvor may be denied a salvage award when there is dishonesty or fraudulent
conduct involved. Dishonesty by the master of a salving vessel is attributed to the vessel’s owner so
as to deny the owner an award. Dishonesty by the master will not be attributed to the crew unless
they had knowledge of the master’s conduct.121
The general definition of salvage122 is, “a reward for saving property at sea”. Reward for saving life
has also come up and wil be discussed, but historically, salvage has to do with the saving of
property.123 Both the amount of the property at risk and the reward has increased with the greater

121
Jackson Marine Corp. v. Blue Fox, 845 F.2d 1307 (5th Cir. 1988)
122
The best recent discussion of the subject of salvage in a short compass is the introduction to Arnold W. Knauth
(1936) 36 COL. L. Rav. 224, Aviation and Salvage.
123
The contrast between the admiralty view and the common law view in respect to the treatment of the volunteer
salvor, brought out by Chief Justice Marshall in Mason v.The Ship Balireau, 2 Cranch 240 (1804) at p. 266: "If the
property of an individual on land be exposed to the greatest peril, and be saved by the voluntary exertion of any
person whatever; if valuable goods be rescued from a house in flames, at the imminent hazard of life by the salvor,
no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service as great as if
rendered at sea. Yet the claim for salvage could not, perhaps, be supported. It is certainly not made. Let precisely
the same hazard be rendered at sea, and a very ample reward will be bestowed in the courts of justice."
values of maritime ventures during modern times, and it was during the early nineteenth century that
the salvage doctrines of the admiralty took their present form, largely under the hands of Lord
Stowell, who was judge of the admiralty court in England for thirty years, from 1798 to 1828. In the
expanded definition of Mr. Justice Clifford in TheBlackwall124:
“Salvage is the compensation allowed to persons by whose
assistance a ship or her cargo has been saved, in whole or in
part, from impending peril on the sea, or in recovering such
property from actual loss, as in cases of shipwreck, derelict, or
recapture. Success is essential to the claim; as if the property
is not saved, or if it perish, or in case of capture if it is not
retaken, no compensation can be allowed.Compensation as
salvage is not viewed by the admiralty courts merely as pay,
on the principle of a quantum meruit or as a remuneration pro
operaet labore, but as a reward given for perilous services,
voluntarily rendered, and as an inducement to seamen and
others to embark in such undertakings to save life and
property.
The salvage idea thus involves a service to marine property which is at risk or in peril and it is
stressed that the service must be by those who are under no legal obligation to render it. Although
the cases argue that it must result in success, it will appear that the success need not be completely
achieved by the particular salvors claiming a share of the total reward.

3.3 TYPES OF SALVAGE SERVICE

The service may take a multitude of forms. Saving a derelict, or a wreck which has been abandoned
at sea, is the favorite subject of the adventure writer. Such a story is Kipling’s “Bread upon the
Waters”, in “The Day”s Work”. It may take the form of protecting marine property from wreckers
and looters, saving marine property from fire, for which the award was given in The Blackwall125.

3.3.1 MARITIME PROPERTY THE SUBJECT OF SALVAGE

The property to which the service is rendered must be marine property. Just what objects fall into
this category is frequently fought over in the cases. The ship itself is a most obvious example. So
also is a box or cask lost overboard from a ship and upon the sea. Even if it is washed ashore and is
there saved, salvage may be claimed upon it. But if a train were wrecked while passing over a long
trestle such as used to be found on the Florida Keys, and some of the cargo left floating upon the
water, it would not, apparently, be subject to salvage. The subject matter of salvage was much

124
The Blackwall, 10 Wall. 1 (1869), 19 L. ed. 870, at p. 12
125
Supra
bruited in the famous case of Cope v. Valette Dry-Dock Co.126 Already discussed in previous articles
with reference to “What is a vessel?”127, There the Court denied salvage to persons who rescued a
dry-dock which had broken loose from permanent moorage. After giving various definitions from
the texts, Mr. Justice Bradley said:
“If we search through all the books from the Rules of Oleron
to the present time, we shall find that salvage is only spoken
of in relation to ships and vessels and their cargoes, or those
things which have been committed to or lost in the sea or its
branches or other public navigable waters and have been
found and rescued. There has been some conflict of decision
with respect to claims for salvage service in rescuing goods
lost at sea, and from floating on the surface or cast upon the
shore. When they have belonged to a ship or vessel as parts of
its furniture or cargo, they clearly come under the head of
wrecks, flotsam, jetsam, ligan, or derelict, and salvage may be
claimed upon them, but when they have no connection with a
ship or vessel, some authorities are against the claim and
others are in favor of it.”

Showing conflicting decisions with reference to rafts of timber found floating at sea.128
In Crawford Brothers No. 2,129 a libel in rem for repairs to an airplane was excepted to and the court
sustained the exception, holding that it had no jurisdiction in the matter. The exception was entered
by an intervening libelant who asserted claim for having saved the airplane after it had fallen into
navigable waters, but he expressly stated that he did not wish to enforce a maritime lien for salvage.
Inferentially, the court agreed with the idea that the salvor had no maritime lien for the salvage. In
Reinhardt v. NewportFlying Service Corporation,130 Reinhardt was injured while seeking to prevent
an anchored aircraft from dragging her anchor and going on the beach at Gravesend Bay, in
navigable waters of the United States. The case came up on his demand for workmen’s
compensation, which was denied. Judge Cardozo incidentally remarked that: “Ahydro-aeroplane,
while afloat upon waters capable of navigation is subject to the admiralty... If, moving upon the

126
Cope v. Valette Dry-Dock Co., 119 U. S. 625, 7 Sup. Ct. 336, 30 L. ed. 501 (1887)
127
See (1935) 21 CORNELL L. Q. at p. 74
128
In 50,000 Feet of Timber, 2 Lowell 64 (D. C. Mass. 1871) Judge Lowell took a firm stand in respect to two rafts
of timber found floating in Boston Harbor. He awarded salvage despite some prior cases to the contrary. Certainly
in dealing with the sort of vast timber rafts that ply the Pacific seaboard, a contrary decision would be absurd. But
Judge Lowell went far beyond his needs, saying: "If the services are rendered, it is of no consequence whether the
goods are a ship or part of a ship or were ever on board of a ship. A great many of the cases are of mere derelict
goods picked up at sea; and no one has ever heard that it would be a defense to a proceeding for salvage, that the
goods had been washed out to sea from the shore by a gale or a flood, or had been dropped from a balloon."
129
Crawford Bros. No. 2, 215 Fed. 269 (D. C. W. D. Wash. 1913),
130
Reinhardt v. Newport Flying Service Corp., 232 N. Y. 115, 133 N. E. 371, 18
A.L.R. 1324 (1921)
water, it becomes disabled, and is rescued on the high seas by a ship, it will be subject to a lien for
salvage.”
In 1934 these casual expressions of judicial opinion were supplemented by Watson v. S. C. Victor
Co.131 One Hutchinson, an American aviator, undertook to cross the Atlantic in a seaplane,
accompanied by his wife, two daughters, a crew of four, and some equipment, amounting in value to
some $15,000. Forced to make a descent onto the sea, the seaplane was damaged and sank near a
bare, rocky islet,”5on which the party found refuge, taking with it parts of the valuable equipment.
Hearing their S.O.S., an English trawler came to the islet and rescued the party, along with the
property. The trawler’s suit for salvage was dismissed on the ground that a seaplane was not a vessel,
so that the common law principles of maritime salvage, which relate only to vessels and their
cargoes, would not apply in the trawler’s behalf. Two international conventions have answered
affirmatively the question which the court answered in the negative. They consider that a salvage
service may be rendered to aircraft, at least upon the high seas.132 Neither if these agreements refer to
the Maritime Salvage Convention of 1910 at Brussels, since adopted by many nations, including the
United States, which enacted corresponding domestic legislation. Of this legislation, as stated
“The purpose is to harmonize our law with the provisions of
the salvage treaty adopted by the Conference at Brussels in
1910. The United States ratified the Convention in 1912, and
the treaty relates to salvage of both seagoing vessels, things on
board, freight and passage money, and also services of the
same nature granted to each other by seagoing vessels and
vessels of inland navigation.”

3.3.2 LIFE SALVAGE:

In The Zephyrus133, persons who claimed salvage from the owners of a vessel did what the court
called a very meritorious service in attempting to rescue vessel and cargo. In this endeavor they met
complete failure, but did rescue the crew of the ship. Upon general principles a mere attempt to save
vessel and cargo, if unsuccessful, could not bring a salvage reward. Dr. Lushington accordingly gave
none. He then addressed himself to the claim for salvage based upon the rescue of the persons. He

131
Watson v. R. C. A. Victor Co., Inc. 50 Lloyd”s List L. Rep. 77 (1935), 1935 U. S. Av. REP. 147, 1935 American
Maritime Cases 1251.
132
Mr. Knauth refers to the Havana Air Convention of 1928, Art. 26, 1932 U. S. Aviation Report, 298. This
Convention is now in effect among Mexico, Nicaragua, Panama, Guatemala, The United States, The Dominican
Republic, Costa Rica and Honduras. The Paris Air Navigation Convention of 1919, Art. 23, known as the
Convention Relating to the Regulation of Aerial Navigation (see text in HoTcHxiss, AVIATION LAW (1928) at p.
103) now in effect among various countries provides that in absence of an agreement to the contrary, salvage of
aircraft at sea is to be governed by the principles of maritime law.
133
The Zephyrus, 1 W. Rob. 329 (1842)
denied the claim. The point became settled that life salvage brought no salvage award. The bare
statement, however, requires explanation for life salvors are not always left unrewarded. In The
Zephyrus, the rescuers rescued life only, and no property. For doing it they got nothing. But if they
rescue life and also property, the admiralty law gives the salvors in that case an allowance out of the
property for having rescued life. In such a case neither the passengers nor the crew are liable
anymore than if life only were saved. The reward is only out of the property saved. The American
cases agree on these points with the English. The George W. Clyde134, held that the tug which took
off the passengers and crew but did nothing for the ship or cargo got nothing. “Services of that
character do not give rise to a claim for salvage against the ship.” To make the owner of the ship
rescued pay a greater amount of salvage if life and property are saved than he would pay for the
mere saving of his vessel, has seemed to some writers unjust.
The injustice which lies in failure to make provision for salvage for mere life. Salvor’s lives and
salvor’s property are more imperilled sometimes in such services than in the cases where the salvors
rescue property. Often the conditions are so adverse as to permit only taking people off of the
distressed vessels and seas and winds prevent salvage of property. In England this injustice has led to
some modification of the law. The British Act of 1854 went to the extent of making claim for life
salvage prior to the claim for the property salvaged. The whole of the property saved might,
conceivably, thus be applied to the payment of life salvage, so that the ship owner whose vessel was
saved along with the lives got no benefit from the ship’s rescue. Later, England made funds available
for life salvors who saved no property.135
The legislation of the United States passed to carry out the International Salvage Convention does
not go so far as this. It reads: “Salvors of human life, 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 vessel, her cargo and accessories.” The statute thus merely perpetuates
the previous rule that property must be saved if the salvors of life are to get anything, and that the
salvors get their reward out of the property saved. As was stated in The Doctor George J. Moser,136
“This [statute] gives to salvors of life a share in the award of those who save property.” The Moser
took from another tug, when both had arrived at the scene of disaster to a tank steamer, a member of
the tanker’s crew who had been injured by being blown off the vessel. The Moser took him ashore
then came back and aided the tanker.

134
The George W. Clyde, 80 Fed. Rep. 157 (D. C. E. D. N. Y. 1897)
135
England now provides that where no property is saved "the Board of Trade may in their discretion, award to the
salvor, out of the Mercantile Marine Fund." See The Merchant Shipping Act, 1894 (57-58 Victoria C. 60) S. 544
(3).
136
The Doctor George J. Moser, 55 F. (2d) 904 at 905 (C. C. A. 2d, 1932)
Taking the man ashore was regarded as pure life salvage, and no award was made for it against the
tanker. The court said, however, that in the very case “It does not impose a lien upon the salved
vessel because of the rescue of her crew. So far as The Moser has any claim under it, it is therefore
against the award of those whom she set free to help the ship.” In theproposed Air Salvage
Convention, referred to above, it is provided that if both lives and property are saved, the life salvor
shall, in addition to his indemnity for expenses, have a “fair share” of the remuneration of the
property salvor, thus carrying out the idea in the courts mind in the Moser case.

3.3.3 THE PERIL

It is, of course, not sufficient that the property be merely a maritime object. It must be also a
maritime object which is in fact in peril; and a peril not brought about by the salvor’s fault. This
appeared in TheCharlotte137,where men put out from shore and rescued a ship which they considered
to be in danger and which her master averred was not. This is a not infrequent case and is considered
in a case by the Supreme Court of the United States which remarked: “It is enough that if under the
circumstances any prudent man would have accepted” the offer of assistance. In The Charlotte, Dr.
Lushington said:
“According to the principles which are recognized in this
court... all services rendered at sea to a vessel in danger or
distress are salvage services. It is not necessary, I conceive,
that the distress should be actual or immediate, or that the
danger should be imminent and absolute. It will be sufficient
if, at the time the assistance is rendered the ship has
encountered any damage or misfortune which might possibly
expose her to destruction if the services were not rendered.”

In the actual case, the vessel was among the breakers and the mast and all her sails had been cut
away; the court considered that she was a vessel in distress.138
The peril need not be on the seas nor yet a peril of the seas. If a ship, tied to a wharf, is in danger
from a fire spreading from the land, its rescue makes it liable to salvage. This was held in The Kaiser
Wilhelm der Grosse139, a consolidation of no less than nineteen cases involving twenty-three tugs
which had hauled the Atlantic Queen of her day from a historic fire on her owner’s piers. That rescue
from fire was a salvage act had long before been decided in The Blackwall.140 How far a maritime

137
The Charlotte, 3 W. Rob. 68 (1848), 71
138
Judge Shipman remarked in Towle v. The Great Eastern (D. C. S. D. N. Y. 1864) Fed. Cas. No. 14110 at p. 80,
first column: "This doctrine (of the Charlotte) has been repeatedly sanctioned by the courts of the United States and
very recently by this tribunal. See also, Hennessey v. Versailles, Fed. Cas. No. 6365; Williamson v. The Alphonso,
Fed. Cas. No. 17749; Winso v. The Cornelius Grinnel, Fed. Cas. 17883."
139
The Kaiser Wilhelm der Grosse, 106 Fed. 963 (D. C. So. D. N. Y. 1901)
140
Supra
object may be “out of its element” and yet in such peril that its rescue may base a salvage claim has
been considered in several cases involving a ship under repair. A ship may be in a dry dock at the
time of her peril and still be a subject of salvage. This was decided in The Steamship Jefferson141,
The vessel was under repair -that is, she was not a new vessel building, in which case, on the
authorities, she would not have been a maritime object. She was locked in a dry dock which was
actually dry at the moment when fire broke out in the plant. The fire had attacked her upper structure
when the salvors got to work. They played water on her. The libel was dismissed below because the
ship was in dry dock. The court considered it not subject to maritime peril. The Supreme Court, in
reversing, reviewed the fire cases and the cases where salvage for rescue had been awarded whether
the ship was at sea or at a pier. It held that the fact that the ship was in dry dock did not take it out of
admiralty jurisdiction for salvage, relying on The Robert W. Parsons.142

3.4 VOLUNTARY SERVICE BY THOSE UNDER NO LEGAL OBLIGATION

One of the conditions of the salvage award is that the person rendering the service must be under no
legal obligation to render it. He must, that is, be a “volunteer”. He is often an eager volunteer, and, as
the court remarked in The Moser143“Salvage must not, of .course, be made merely an opportunity for
officious interlopers. A vessel in distress is not to be killed by kindness, particularly that of
interested friends.” In The Moser case, various tugs rushed to the aid of a big tanker. Of the tanker,
the court said: “At least she can turn away these which she does not want.” Ordinarily, at least, the
distressed vessel has no duty to the would-be salvor to submit to being rescued-a point dealt with
later. Nor has the salvor first on the spot an absolute right to do the rescue. This last point is brought
out in the cases where the first salvor” on the spot seeks to “shoo away” others who rush in with
their assistance. In The Amethyst144three schooners at sunset fell in with a derelict. Men from one
boarded the derelict but did not stay and the three schooners agreed to stand by during the night and
tow the derelict in next day. They stood near enough to be in danger of collision with the derelict.
They saw the wreck at ten and at twelve o’clock, but when daylight came the derelict was a mile
away and a fourth schooner bearing down on it. In the rush for possession the stranger’s boat arrived
first. In the fight that followed the stranger’s men were ousted; and the three towed in the wreck. It
was greatly injured by a storm which arose en route. The court considered that the wreck was in the

141
The Steamship Jefferson, 215 U. S. 130 (1909), noted (1910) 19 YALE L. J. 584
142
The Robt. W. Parsons, 191 U. S. 17, discussed by Robinson, Introduction to American Admiralty (1935) 21
CORNELL L. Q. 45, 81
143
THE MOSER Supra
144
The Amethyst, 2 Ware (Nov. 20) 28, 1 Fed. Cas. 762 No. 330 (D. C. Me. 1840).
“legal possession” of the three schooners, yet “the boarding her” was also stressed as giving them
“the right to possession” which “having become perfect was not lost”bytheir other acts. But, the
fourth argued, the three owed aduty to the owners of the derelict to act for the latter’s safety; it
therefore was their duty to accept aid even though it would diminish their share of the salvage. The
argument presents a question not without its thorns. The court conceded that if the salvor first on the
spot cannot handle the jobhe is bound as a matter of duty to the distressed vessel to let the others aid.
“If [he] cannot with his own force [act] without imminent risk of a total or material loss, he cannot
consistently with his obligation to the owner refuse the assistance.”
The question of fact is obviously a most difficult one. In the very case on the facts found, the
stranger was awarded nothing. In The Edilio145, the salvage issue was complicated bythe fact that the
ship, imperilled bybeing ashore, was still under command. Great point is made ofwhether or not the
captain contracted with the first salvor, Hayes, to get her off entirely or only to pull at the vessel to
see if she could be got off by that method. Hayes worked two days to no avail and another person
was hired to lighten her whogot her off. Hayes would not cast off his lines and the ship cut them.
The dispute hinged on this fact and the form of the arrangements.
The case is long, and to read it is in itself an education in practical aspects of salvage as a business.
The court said:
It is well settled, upon just principles, that as between two sets
of salvors if it appears that the claim of a set of salvors to a
share in the salvage reward is based upon the dispossession,
against their will, of other persons who were at the time
continuously engaged in salving the vessel in distress, and
who were willing themselves to persevere in the service which
they had begun, the court allows the claim only, if it is clearly
proved that the first salvors had not any fair prospect of
success. In the absence of such proof, the burden of which lies
upon the second set of alleged salvors, the court holds the
dispossession to be wrongful, and treats the subsequent
service rendered by the wrongdoers as inuring wholly to the
benefit of those who have been dispossessed, and not as
entitling the wrongdoers to any share in the salvage award.

From this principle it follows that if, as contended by libelants, the captain of the Edilio made a
contract with Mr. Hayes, as alleged, and he (Hayes) was ready, willing, and able to perform on his
part, he was entitled to do so, and the refusal on the part of the captain wrongful.” When the salvor
appears, the property, as in the Edilio, may still be in charge of those who were originally in charge
of it. It may be abandoned, that is, no persons are present aboard it or in connection with it. The

145
The Edilio, 246 Fed. 470 (D. C. E. D. N. C. 1917)
difference in the circumstances makes it possible to talk of “contract salvage”, as from “voluntary
salvage”, since those in possession will bargain as distinguished best they can. This furnishes
another aspect of voluntariness. Neither in voluntary non-contract nor in contract salvage can an
award be made to those who are under a duty to aid the vessel. If there is an antecedent duty, the
contract, if one is made, is not a valid one. The whole theory of salvage is predicated upon the
proposition that by the general admiralty law there is no legal duty to aid a thing or person who is in
distress. However much this problem may exercise the mind of the legal philosophers, the admiralty
basis of salvage is that there is no such duty. The present statute of the United States, however,
creates the curious situation of imposing a duty to aid and at the same time continuing the salvage
law in its original form. Section 928 of 46 U. S. C. A. provides “The master or person in charge of a
vessel shall, so far as he can do so without serious danger to his own vessel, crew, or passengers,
render assistance to every person who is found at sea in danger of being lost; and if he fails to do so,
he shall, upon conviction, be liable to a penalty of not exceeding $1,000 or imprisonment for a term
not exceeding two years, or both.” This applies only to the assistance of persons in danger. No one
can complain under it that his derelict ship or other maritime property was left to its own devices. If,
however, the assistance is to a vessel and to persons, and the vessel is saved, the rescuers including
the captain would be entitled to salvage. That the master is also obeying the obligation of the statute
does not deprive him of his share. In Warschauer v. Lloyd Sabaudo S. A.146statute. He was adrift on
the high seas in a disabled motorboat without gasoline and without food, and, he alleged, the
defendant company’s steamship passed within hailing distance, ignoring his signal of distress,
which, he asserted, was clearly observed. He sued the owner for damages and the district court
dismissed his complaint. The Court of Appeals affirmed. In the International Salvage Treaty was
designed to carry out, the corresponding section has the addition: “The owner of the vessel incurs no
liability by reason of the contravention of the foregoing provision.” This treaty the court considered
self-executing, and that the employer came under no liability, either civil or criminal, as a result of
the captain’s neglect. This reading of the act makes the statute of little pecuniary value to the non-
rescued. The legislation at its best seems largely to be a humanitarian gesture. Without it, gallant
rescues were made in the past. Since its enactment, the master lives under a threat. He has a heavy
burden in deciding whether he can give aid “without serious danger etc.” to his own vessel, its crew
and its passengers. He may be called upon to risk the whole ship and a thousand lives to save thirty-
five or forty. He is practically certain to be called upon to risk a boat’s crew. He must necessarily be
the sole judge, and he must make his decision on the spot and under the conditions then prevailing.

Warschauer v. Lloyd Sabaudo S. A., 6 Fed. Supp. 433 (1933) (D. C. S. D. N. Y.), aff”d 71 F. (2d) 146 (C. C. A.
146

2d 1934), noted (1934) 12 N. Y. U. L. Q. REv. 301-3; (1935) 3 GEo. WASH. L. REv. 256-7.
Sometimes his passengers, who are safeguarded by his decision, and the newspapers ashore have
undertaken to tell him what he might have done, and he may be called upon to face an official
armchair review when he comes ashore.

In the Gilbertain sense, his life is not a happy one. Another phase of the doctrine that the service
must be done “voluntarily” concerns the particular persons who may be entitled to salvage. Those
who are under obligation to serve are disentitled. The most obvious of these who are disqualified are
the imperilled ship’s own crew. Let the ship be imperilled and their duty to save it increases with the
peril. Why or how she is in peril is of no consequence. Salvage is also denied when the ship saves its
own cargo.

3.5EFFORTS RESULTING IN BENEFIT TO THE PROPERTY EVENTUALLY SAVED

Success in the salvage effort is also a condition of an award. The typical success, of course, occurs
when the salvor brings the salvaged vessel safely into port unassisted, and the success is complete.
The typical failure of success is where his effort is frustrated and he does nothing for her. In
between, however, are cases where the salvage claimant may have done something to assist the
general victory ultimately achieved either by the people in charge of the vessel or by other people
who take hold of her after the first salvor’s efforts have been defeated. "It is not necessary in order to
establish a claim for salvage that the salvor should actually complete the work of saving the property
at risk. It is sufficient if the endeavour to do so and his efforts have a casual relation to the eventual
preservation of it.” In The Strathnevi147, the salving steamer, unable to get the imperilled vessel into
port, was forced to leave her 60 miles off shore. Her services in towing the disabled vessel nearly
500 miles and bringing her nearer to port and in the way of passing vessels was sufficient to entitle
her to salvage. The Annie Lord148, shows the possibility of reward for work which contributed to the
ultimate success of the salvage operation as a whole. The Lord was waterlogged and unmanageable
in midwinter, and the crew exhausted with exposure when the Oliver found her, and took off her
crew whom she carried safely to port. She also towed the Lord for some distance, but had to abandon
her. On the Oliver’s arrival in port, however, she gave knowledge to the United States revenue
vessels of the location of the Lord, and they brought her in. The court found, that the services of the
Oliver and her crew were the proximate cause of assistance being sent out to the Lord, and awarded
salvage.

147
The Strathnevis, 76 Fed. 855, 862 (D. C. Wash. 1896)
148
The Annie Lord, 251 Fed. 157 (D. C. Mass. 1917)
3.6THE AMOUNT OF THE AWARD AND ITS DIVISION AMONG VARIOUS SALVORS:

The Value of the Adventure:

In the judicial technique of handling the salvage cases, the first step isto state the respective values of
the vessels, or rather of the ventures, forthe value of the cargo on the rescued ship is also stated. The
award ismade with reference to these values, and to the danger involved. In thedanger is reckoned
both that in which the rescued vessel was at the time,and the risk to which the other vessel exposed
itself in aiding her. Thelength of the service and its danger and difficulty, and the degree of
successattained, the value of the salvor’s property risked-all are factors inthe problem of how much
the actual award will be. These items are usedto base an award in addition to the actual out-of-pocket
expense or the incidentalexpense, loss of time, etc., for deviation and so on to which thesalvor’s may
be exposed.149
The value upon which the salvage award is based is the value at the time of the salvage, which
usually means that the property rescued is then ina damaged state. The problem is rendered doubly
difficult thereby. In TheLomonosoff150, the vessel was valued at $48,000 subject to a deductionof
$300 for damage by the Bolsheviks in the fight at the pier. The cost ofthe repairs is more easily
found than the value of the vessel. The courtsrun into the same difficulty in the salvage cases that is
so frequently encounteredin determining value in other branches of the law. In Rand v.Lockwood151,
a yacht, built for $42,000 nine years prior to the salvage, hadbeen bought by the then owners for
$9,000. The salvor showed the cost of reproduction new-a “value” accepted in a leading collision
case and urgeda value on that basis at $30,000. Said the court (at page 759):

149
See Atlantic Transport Co. Ltd. v. United States, 42 F. (2d) 583 (Ct. Claims 1930); The Shreveport, 42 F. (2d)
524 (D. C. E. D. S. Car. 1930) ; The Nikara, 15 F. (2d) 73 (D. C. E. D. La. 1926).
150
Supra
151
Rand v. Lockwood, 6 F. (2d) 757 (C. C. A. 4th 1927), noted (1927) 40 HARV. L. Rev. at 1018. The Harvard
note states: "The value of the property saved . . . has been determined in various ways. Some courts have taken the
market value. The San Onofre (1917) p. 96. Others have arrived at the value by deducting the cost of repairing the
salved ship from the proceeds of its sale after repairs. The Lamington, 86 Fed. 675 (C. C. A. 2d, 1898). The value
to the owners has also been taken as a basis for the award even though it was apparently greater than the market
value. The Hohenzollern (1906) p. 339. In the absence of a market, the value has been computed by one court by
deducting annual depreciation and the cost of repairs from the cost of constructing a similar ship. The Anahuac,
295 Fed. 346 (D. Me. 1924), aff”d 3 F. (2d) 250 (C. C. A. 1st 1924). In that case the value thus found exceeded the
value to the owners, for it turned out to be greater than the amount left after deducting the cost of repairs from the
proceeds of the sale of the repaired ship. This method of computation was borrowed from a collision case, where
the owner of a sunken vessel was entitled to restitution from the negligent defendant. The Cushing, 292 Fed. 560
(C. C. A. 2d 1923). In such a case the replacement cost may well be a fair compensation to the owners. But the
court in the principal case properly distinguished collision cases from salvage cases, in which there is no element
of restitution. In salvage cases the award itself can never exceed the value of the salved property to the owners. See
The Lamington, supra, at 678. And it seems that since the award in a salvage case is a bounty for saving another”s
property, the important consideration in determining the amount of the award should be the value of that property
to its owners."
 “In a salvagecase ... it (the property) should not be appraised at
more than it isworth to its owner. Ordinarily that is what he can
get for it in the market.If it is not saleable, its value would be
measured by what it earned for him,or by the value he puts
upon the pleasure he gets out of it, not exceedingwhat it would
cost to build another like it. In this as in other salvage cases,it is
unnecessary to reach anything more precise than a rough
approximationof the w6rth of the salved property in the
condition it was upon the completion of the salvage service.”
It then took a jump, and decided that,after the explosion and fire had done their work, the yacht was
not worthmore than $7,500, and made an award of $1,500, cutting down the DistrictCourt’s award,
which had been $2,500.
The “value” for the basis of a salvage award is that of the whole venture,vessel, cargo and, indeed,
the freight, assuming that the salvage assistanceis such that it enables the ship to earn freight. 152The
three togethership, cargo, and freight are the classic combination on which salvage awards are
figured in ascertaining “value” on the side of the rescued. Value is alsoconsidered on the salvor’s
side; what he risks in property values is also anitem in calculating the salvage award. The value on
the salvor’s side, however,is confined to that of the ship and freight. The salvor’s cargo is
notincluded since the latter is given no share of the award as will be shownlater. The value of the
salvor ship is squabbled over in the same terms asthe value of the rescued ship. The value of the
salvor’s freight is not adifficult matter to ascertain as a rule but there has been some question
aboutthe value of the rescued vessel’s freight. The freight for the actual voyageif the voyage is made
possible by the salvor is a clear value.

2. The Apportiomnent of the Award among the Salvor’s:

Having ascertained the salved value of the rescued vessel, the value of thesalvor’s vessel and
equipment, etc., the risks and the effort, the courts nowhave the material upon which to make the
award. If the rescued vesselis entirely a derelict, there is a frequent tendency to grant the salvor
onehalf value. The English once regarded it as obligatory to give such a share.153

152
When freight is earned is discussed in the chapter on "The Maritime Carrier." See also Borchard, THE
*EARNING OF FREIGHT ON INCOMPLETED VOYAGES (1921) 30 YALE L. J. 362.
153
The Dumper No. 8, 129 Fed. 98 (C. C. A. 2d 1904) may perhaps mean that the crew was given an award when
the owner would not have been. The Moran Company sent out tug X with two dumpers. It later notified The Ivins,
another of its tugs, that the dumpers were "adrift" and The Ivins found them "abandoned by their tug." The Ivins”
crew brought them in. The Moran Company "released" the dumper from any claim of the Ivins for salvage but her
crew were awarded $1,175. Whether the Moran Company’s tug X was *in fault was not discussed at all, and why
the Moran Company itself made no salvage claim is not stated. But it had a general contract to tow all the dumper
owner’s vessels, and if the tug X was in fact in fault in abandoning the dumpers in the first place the Moran
Company’s restraint in not claiming salvage for itself.
In The “Shreveport, supra, however, the court said: “I do not thinkthe moiety rule is a fixed rule of
law, even in the case of technical derelicts.” In addition to the salvage the courts will award also the
expense of makingthe rescue and allowance for time loss, etc., from the prosecution of the
salvor’svoyage. This was set forth in detail in Atlantic Transport Co. v. UnitedStates154, where the
Bardic, the salvor, sustained injuries, and at Halifaxmade expenditures for survey and, subsequently,
for dry-docking and repairs. The items included provisions and wages during the extra period atsea,
ship stores, coal consumed, and loss of profits, making a total duringan eight and three-quarter day
period for all these items of $21,000, whichthe court awarded in addition to a salvage award of a
moderate character inthe sum of $9,000. The whole subject of the amount of award was
muchdiscussed in The Lamington155, showing the percentages in the various casesunder various
circumstances, and other awards, not on a percentage basis,as already stated. The notes in the report
to this case show the amounts ofawards over a period of approximately one-hundred years in USA”s
admiraltyexperience. The elements of the problem have been put forth by Mr. JusticeClifford in The
Blackwall156, as follows: “Courts of admiralty usuallyconsider the following circumstances as the
main ingredients in determiningthe amount of the reward to be decreed for a salvage service:
(1) The labor expended by the salvors in rendering the salvage service.
(2) The promptitude, 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 danger to
which such property was exposed.
(4) The risk incurred by the salvors in securing the property from the impendingperil.
(5) The value of the property saved.
(6) The degree of danger from which the property was rescued.”

3.7SALVAGE AFTER A COLLISION

In a collision both ships may be in fault, or neither in fault; one may bein fault and the other not.
There is a duty to stand by and the ships, of course,assist each other. Questions have arisen as to
whether or not assistance givenafter collision by one of the vessels to the other may base a claim for
salvage,and in The Clarita and the Clara157, the Supreme Court stated thegeneral doctrine. In that
case the tug Clarita undertook to tow a blazing ferry boat to a flat. She negligently used a hemp

154
Atlantic Transport Co. v. United States, 42 F. (2d) 583 (Ct. Claims 1930)
155
The Lamington, 86 Fed. 674 (C. C. A. 2d 1898)
156
The Blackwell, 10 Wall. 1, 19 L. ed. 870 (1869).
157
The Clarita and the Clara, 23 Wall. (90 U. S.) 1, 23 L. ed. 146 (1874).
hawser which burned, andthe drifting tow set fire to the anchored schooner, Clara. After draggingthe
ferry boat away from the schooner, the tug let it sink, returned to theClara, and extinguished the fire.
For this service she claimed a salvageaward from the Clara. This generaldoctrine was reiterated in
The Jefferson158, later. The duty to repair the damage is, of course, the background of this doctrine
that the vessel in faultgets no salvage from its victim.
In the collision cases, an initial inquiry is whether or not the presentstand-by-and-assist statute159,
imposes such a duty to give aid that no salvagemay be claimed under any circumstances even by a
vessel not in fault.This point, which does not seem to have been dealt with in the United States, has
been settled in England by the House of Lords in 1925.In Owners of S.S. Melanie v. Owners of S.S.
San Onofre160, the statutoryduty, it was held, would not bar an award of salvage.
Where both ships are infault it is settled in England that no award will be given; neither to theowners
nor yet to the crew. If we concede that mutual fault bars salvage-amatter which itself is arguable-to
exclude the negligent master or officerseems fair enough and to make the owner stand or fall with
him seems fair enough also. None of USA statutes which excuse the owner fro respondeat superior
liability for negligent navigation and the like on the part ofhis officers, excuse him to persons other
than his own cargo owners. He is,therefore, liable to the other ship and to her cargo for their fault.

CHAPTER IV-LAW OF SALVAGE IN INDIA:

4.1 EVOLUTION OF MERCHANT SHIPPING ACT 1958:

The development of the Merchant Shipping Law in India has had a long history of over a century. The
first Act on the subject, passed by the British Parliament, was the Lascars Act, 1823. This Act, which was
partly repealed later, enabled rules to be made by the Indian Legislature to be observed by “Masters and
Officers, Owners of ships and vessels trading under the authority of the Act.” 161 There was further
legislation enacted by the British Parliament, under the authority of which the Indian Registration of Ships
Act of 1841 was passed in India. Similarly, in 1855, by virtue of a British Act, the Indian Sea Passengers
Act of 1855 was enacted. The next Statute, the Merchant Shipping Act, 1894 has been the most important
Act of the British Parliament relating to Merchant Shipping and this Act has consolidated all the earlier
Parliamentary legislation and also defined the application of the British Acts to India and other parts of
the British Empire.162

158
T”he Jefferson, 215 U. S. 130, 141.
159
33 U. S. C. A. § 367
160
Owners of S. S. Melanie v. Owners of S. S. San Onofre (1925) A. C. 246
161
J.S Gill, “MANUAL OF MERCHANT SHIPPING ACT,1958-INTRODUCTION & INTERPRETATION”,
Bhandarkar Publications, Mumbai, Pg no: 6
162
Ibid., Pg No: 9
Before the passing of the new Merchant Shipping Act, the British Merchant Shipping Act, 1894, applied
to most matters relating to Indian Ships and Indian seamen. There were various parts of the British Act,
which required certain returns to be submitted to the authorities in the U.K., and it was by executive
orders only that their submission had been stopped. It was this lacuna in Indian law and the anomaly in the
application of British Acts to Indian ships even 10 years after the attainment of independence, which
made the existing legal position untenable as well as unsatisfactory. The Indian Merchant Shipping Act,
1958, therefore, came in response to a long felt need.163

In the light of the above historical background, it could be neither feasible nor desirable for India to adopt
a completely divergent path in regard to its merchant shipping laws after her Independence. The British
laws were basically sound in their technical application and merit and the I.M.S. Act of 1958 rightly takes
its inspiration from the following two major sources164:

 International Conventions: The merchant shipping law deals mainly with technical matters
and many of these are regulated by International Conventions like the Safety Pollution,
Limitation of Liability, Prevention of Collisions and Loadline Convention, the I.L.O.
Conventions, Salvage Convention, etc.,
 The U.K. law on Merchant Shipping: In 1931, the U.K. and the various Dominion
Governments entered into the Commonwealth Merchant Shipping Agreement which provided
that for various matters like registration, standards of safety, ship’s articles, certificates of
officers, ship enquiries, etc., the law throughout the Commonwealth should as far as possible,
be uniform. Although India was not a party to this Agreement as she was not a Dominion in
1931, she had adhered to the Commonwealth arrangements to the extent that was possible and
desirable.
4.2 SALVAGE UNDER INDIAN LAW:
Maritime casualties are on the rise along the Indian coastal line. Total elimination of shipping accidents is
impossible because the risk of natural perils ofthe sea is inherent in the transportation of goods. Lack of
co-ordination betweenvarious authorities, willful and negligent violations of international and
nationalsafety rules, inept communication and signal systems, lack of commitment on thepart of
regulators and ship owners have contributed to the increase in the numberof shipping casualties in the
recent past.165Accidents continue to occur irrespectiveof the technology advancements and capacity
building measures to prevent it. Yetit remains a reality that the response measures and investigative and
adjudicatorymechanisms remain the same as it was a hundred years ago.

163
Directorate General of Shipping, “MERCHANT SHIPPING ACT-ITS INTENT AND PURPOSE”
http://www.dgshipping.gov.in/Content/PageUrl.aspx?page_name=ShipManualChap1 last seen on 18th April
2018.
164
Supra.,
165
Kennedy & Rose, “LAW OF SALVAGE”, Sweet & Maxwell Ltd, 9th Ed., Pg no: 20
Under the Indian law, wreck and salvage are dealt under of the Merchant Shipping Act 1958166. India has
ratified 1989 Salvage Convention and therefore review committee has suggested that provisions of this
Convention may be inserted amending Section 402 (1) and 404167.
According to Section 402 of the Merchant Shipping Act 1958, Salvage is payable for saving life, cargo or
wreck when services are rendered wholly or in part within the territorial waters of India in saving life
from any vessel, or elsewhere in saving life from a vessel registered in India or in assisting a vessel or
saving the cargo or equipment of a vessel which is wrecked, stranded or in distress at any place on or near
the coasts of India or by any person other than the receiver of wreck in saving any wreck, there shall be
payable to the salvor by the owner of the vessel, cargo, equipment or wreck, a reasonable sum for salvage
having regard to all the circumstances of the case.168

When the owner of the vessel is paying salvage in respect of the preservation of lifeIt shall be payable in
priority to all other claims for salvage.169

Accordingly, the salvor is entitled to claim proportionate to the services rendered in saving the cargo and
life of persons. Under the Act, the salvage operations inside the port area should be authorized by the port
authority and will not, entitle any person to salvage in respect of any property recovered by creeping or
sweeping in contravention of the Indian Ports Act, 1908.170

Under the Indian Ports Act, 1908, if a ship is wrecked, stranded or sunk within the port limits, the
Conservator of the Ports or in the absence of such an office, the Harbour master may give notice to the
owner of the vessel, to raise, remove or destroy the vessel within such period as may be specified in the
notice and to furnish such adequate security to the satisfaction of the conservator to ensure that the vessel
shall be raised, removed or destroyed within the said period. If the owner does not comply and act upon
the notice, the conservator may raise, remove or destroy the property and claim the compensation from the
owner. Mostly, the salvage activity will be done by private salvors in agreement with the Port Trust.
Within the port limits, the capacity of the party to carry out salvage, the methods used to raise or remove
or destroy the vessel is subjected to the expert opinion of the deputy conservator of the port. Normally, the
court will not interfere with these technical decisions.171

For example, on 16th June 2013, M.T.Pratibha Tapi172, which was anchored along the Mumbai coast
drifted towards the Maldha Island and capsized, thereby raising considerable public outrage against the

166
Ibid., Pg no:28
167
The Merchant Shipping Act, 1958, Part XIII
168
Supra., S. 402(1),402(2)
169
Ibid., s. 402(2)
170
The Indian ports Act, 1908, s.29
171
Cochin Port Trust & the Deputy Conservator, Cochin Port Trust v. Laxmi Cranes and Ors., W.A.No. 1803 of
2010, of the High Court of Kerala, decided on 16th November, 2010
172
See, http://www.ndtv.com/article/cities/merchant-vessel-drifts-near-sea-link-in-mumbai111683, last accessed
in June 2013
authority delay in initiating the response proceedings. The vessel was under financial distress and was
allowed to operate with lesser number of required crew during the pre-monsoon season. The D.G.
Shipping requested the shipping corporation of India to send emergency towage vessel to tow the tanker
off the port area. The ship had 2000 tones of fuel oil on board.

Two years back in June 2011, M.V. Wisdom173, a vessel of 9000 tons of heavy fuel oil had run aground at
the Juhu beach in Mumbai. By a joined effort by the Indian navy, coast guard and international salvor, the
vessel was finally towed off the port area.

During the collision between MSC Chitra and M.V. Khalija, salvage operations were delayed because the
equipment’s for salvage could not be brought inside the port area due to complex customs formalities.

Generally the salvage operations India follows a government alone approach and these laws are not
integrated with the NOSDCP Contingency Plan. The response operations are carried out under the
coordination of the Indian Coast Guard and subsequently maritime claims are invoked against the owner
or master of the ship.

Submarine INS Sindhurakshak, on which 18 sailors were killed after it sank due to “internal explosions”
at the Mumbai naval dockyard last August, has finally been fished out of water in the complex salvage
operation underway since February. The salvage operation undertaken by US based firm Resolve
Marine under the Rs 240 crore contract inked with it on January 31 involved defusing the unexploded
missiles and torpedoes still present in the forward two compartments of the 3,000-tonne submarine and
then restoring the “water-tight integrity” of the last four compartments. INS Sindhurakshak’s sinking had
marked the beginning of a series of naval mishaps.174

In January 2011175, The Indian Navy frigate INS Vindhyagiri had a collision with a merchant vessel in
late January. The incident that led to the submersion of the INS Vindhyagiri occurred on January 30 in the
navigation channel of the Mumbai harbour. A convoy of navy ships was coming into Mumbai harbour
after a ‘day at sea’ for families of sailors and officers. INS Vindhyagiri was in the fifth position coming
towards the naval dockyard, which is on the far side of the port. Because of the naval dockyard’s location,
ships often have to cross each other’s paths.

As the convoy was entering the port, the Cyprus flagged loaded container ship MV Nordlake was leaving
the dock for the open sea. The lead ship in the naval convoy established communications with Nordlake

173
Ibid.,
174
V Narayani, “INDIAN ARM OF US COMPANY WINS SINDHURAKSHAK SALVAGE BID” (2013),
https://timesofindia.indiatimes.com/india/Indian-arm-of-US-company-wins-Sindhurakshak-salvage-
bid/articleshow/30312587.cms last retrieved on 18th April 2018
175
Abhishek Bhanawat, “ACTIONS TO BE TAKEN BY THE MASTER AND PARTIES INVOLVED IN CASE OF
COLLISION OF SHIPS IN INDIAN WATERS” (2015), https://www.marineinsight.com/maritime-law/actions-to-
be-taken-by-the-master-and-parties-involved-in-case-of-collision-of-ships-in-indian-waters/ last retrieved on 19th
April 2018
and it was decided that both would go to the right of each other. The ships behind the lead ship had to
follow its course. However, the INS Godavari had fallen behind and established its own communications
with Nordlake, asking that both ships pass to the left of each other.176 “This created a major confusion as
rest of the convoy was passing right-to-right,” said an officer investigating the case.
To give space to INS Godavari to pass to its left, Nordlake turned right. Meanwhile, another inbound
merchant ship, the Seychelles flagged MV Sea Eagle, which was moving towards the harbour and was
ahead of Vindhyagiri, had come parallel to Vindhyagiri.
Then, both Nordlake and Sea Eagle were facing each other and thus established quick communication.
They finally decided to pass to the right of each other. As soon as Nordlake crossed Sea Eagle it found
INS Vindhyagiri right ahead of it.By now, it was too late to maneuver the ship and Nordlake crashed into
the right side of Vindhyagiri at a right angle, leading to a fire in the ship’s boiler room. 177

This Vindhagiri collision is the most recent incident in a series of naval accidents over the last several
years. In January 2008178 the submarine INS Sindhughosh bumped the MV Leeds Castle while surfacing
north of Mumbai, causing damage to the conning tower. In April 2006 the Veer class corvette INS Prahar
hit the container ship MV Rajiv Gandhi off the western coast near Goa, and sank. And in December 2005
the Talwar class frigate INS Trishul collided with the Ambuja Lakshmi at the Mumbai port.179

4.3 GENERAL AVERAGE AND SALVAGE:

Though the Merchant Shipping Act 1958 does not contain any specific provisions or rules in relation to
general average, it is determined by the common law and the provisions of the contract between the
parties. Generally, the contract or a bill of lading incorporates the “York Antwerp Rules” for adjustment
of general average and for security and payment of general average contribution. 180

However, Section 352A(3)(b) exempts claims for salvage or to claims for contribution in general average
from the limitation of liability.

176
Guy Martin, “INDIAN NAVY TO SALVAGE SUNKEN FRIGATE” (2011),
http://www.defenceweb.co.za/index.php?option=com_content&task=view&id=13471&catid=51&Itemid=106
last retrieved on 19th April 2018
177
Supra Note 15.,
178
Amit Mayekar, “THE NAVY STARTS SALVAGE OPERATIONS ON INS VINDHYAGIRI BUT OFFICIALS
SAY THEY WILL HAVE TO TAKE A CALL ON WHETHER TO RETRIEVE THE SHIP OR SCRAP IT, GIVEN
THE PROHIBITIVE COST OF RETRIEVING IT AND THE FACT THAT IT IS TO BE DECOMMISSIONED IN
2012” (2011), https://timesofindia.indiatimes.com/The-Navy-starts-salvage-operations-on-INS-Vindhyagiri-but-
officials-say-they-will-have-to-take-a-call-on-whether-to-retrieve-the-ship-or-scrap-it-given-the-prohibitive-cost-
of-retrieving-it-and-the-fact-that-it-is-to-be-decommissioned-in-2012-/articleshow/7405398.cms last retrieved on
19th April 2018
179
Supra Note 16.,
180
Alexander Robertson, “WHAT IS GENERAL AVERAGE-AN
INTRODUCTION”(2014),https://shippingandfreightresource.com/what-is-general-average-2/ last retrieved on
19th April 2018.
In the event of a shipping sinking no general average will be declared, as the voyage was not “preserved
from peril”. Should there have been the successful salvaging of cargo from the vessel prior to her
becoming a total loss, there can be declared a salvage award to the salvors as was the case with the “MSC
Napoli” back in January 2007 when she was purposely run aground to save her.181

Cargo was discharged with the help of barges and salvors. There was the successful salvaging of a large
portion of the cargo. The ship later sank off the coast after splitting in two but the salvors claimed a 60%
salvage award for the successful salvaging of the cargo.

4.4 SALVAGE UNDER MERCHANT SHIPPING BILL 2016:

The Merchant Shipping Act, 1958 had become a bulky piece of legislation as a result of seventeen
amendments made to the Act between 1966 and 2014. The Act contained sections on procedural and
process aspects, which require frequent up gradation in tune with modern business practices and
uniformity with international usage thereby causing implementation bottlenecks.182The existing penalty
provisions, particularly the monetarypenalty, were meager and warranted enhancement to ensure effective
compliance. Besides, a set of international maritime conventions, to which India has already become a
party or those to which India proposes to become a party were also to be incorporated in the Merchant
Shipping Act, 1958, in force. Therefore, the Government has decided to introduce a fresh legislation in the
form of Merchant Shipping Bill, 2016 in supersession of the Merchant Shipping Act, 1958.183

The proposed amendments to the Merchant Shipping Act 1958, if enacted, shall also give effect to the
Nairobi Wreck Removal Convention and the Salvage Convention of IMO to which India is already a
party. It will facilitate more purposeful approach towards removal of wrecks and salvage, protect Indian
waters from the wreck hazards and introduce internationally recognized and approved rules for removal of
wrecks.184

Salvage services provided by the Government shall also be entitled to rights and remedies as those of any
other salvor. The Bill provides for duties of the salvor, owner and master of a vessel. It also provides for
rights and duties of the Central Government in cases of maritime casualty in protecting its environment
and coastline and to pass directions with regard to salvage operations. The disputes relating to claims shall

181
Ibid.,
182
http://www.prsindia.org/uploads/media/Merchant%20Shipping/SCR%20Merchant%20Shipping%20Bill,%202
016.pdf last retrieved on 19th April 2018
183
Ibid.,
184
BS Reporter, “CABINET APPROVES AMENDMENTS TO MERCHANT SHIPPING ACT,1958” (2015),
http://www.business-standard.com/article/economy-policy/cabinet-approves-amendments-to-merchant-shipping-
act-1958-115061000722_1.html last retrieved on 20th April 2018
be determined by the High Courts. Action on payment for salvage shall extinguish if such claim is not
made within two years.185

4.4.1 SALVAGE CONTRACT:

This new bill has expressly provided that the master shall have the authority to conclude contracts for
salvage operations on behalf of the owner of the vessel. The master or the owner of the vessel shall have
the authority to conclude such contracts on behalf of the owner of the property on board the vessel.186

4.4.2DUTIES OF SALVOR, OWNER AND MASTER:

SALVOR187:

 Carry out the salvage operations with due care

 Exercise due care to prevent or minimize damage to the environment during salvage operations
 Seek assistance from other salvors including port authorities or public authorities when
circumstances so require
 Accept the intervention of other salvors when reasonably requested to do so by the owner or
master of the vessel or other property in danger. Provided that if it is found that such a request
was unreasonable, it shall not prejudice the amount of reward of such salvor
OWNER188:

 Co-operate fully with the salvor during the course of the salvage operations
 Exercise due care to prevent or minimize damage to the environment during the salvage
operations
 When the vessel or other property has been brought to a place of safety, to accept redelivery
when reasonably requested by the salvor to do so
 Provide satisfactory security for the claim, including interest and costs of the salvor for salvage
operations, at the request of the salvor.

4.4.3PRECAUTIONS TAKEN BY CENTRAL GOVERNMENT189:

According to Section 233 of Merchant Shipping Bill 2016, The Central Government shall take such
measures as may be prescribed to protect its coastline or related interests from pollution or threat of
pollution arising out of a maritime casualty or acts relating to such casualty, which may result in major

185
Ibid.,
186
Section 231(2) of Merchant Shipping Bill, 2016
187
Section 232(1)of Merchant Shipping Bill, 2016
188
Section 232(2)of Merchant Shipping Bill, 2016
189
Section 233of Merchant Shipping Bill, 2016
harmful consequences. It shall give such directions as it deems fit to the concerned vessel owner or the
master or the salvor or a port authority or a public authority or any other person in relation to salvage
operations.

For the purposes of efficient and effective salvage operations, saving life or property in danger and
preventing damage to the environment, seek cooperation from the concerned vessel owner or the master
or the salvor or a port authority or a public authority or any other person, to give assistance to vessel in
need, to admit to ports of vessel in distress or in need of assistance and to give facilities to salvors.

In the existing Merchant Shipping Act 1958, express duties of the government have not been given due to
which they were delays in authorizing salvage operations, which caused financial distress and
environmental degradation.

4.4.4 RIGHTS OF SALVOR190:

According to Section 234 of the Merchant Shipping Bill 2016, the salvors shall have the right to:

 Payment for the services rendered by him relating to salvage operations, Provided that no such
payment shall be made where there is express and reasonable prohibition from the owner or
master of vessel or owner of any other property in danger.
 Enforce his maritime lien against the owner or master of vessel or owner of any other property
in danger when such person has not provided satisfactory security for his claim, including
interest and costs.
4.4.5 ADJUDICATION OF CLAIMS191:

Under the Merchant Shipping Bill 2016, the claims shall be determined upon application made by either
of the disputing parties to the concerned High Court. Whereas, under the Merchant Shipping Act 1958 the
claims arising concerning the amount due under this section shall be determined upon application made
by either of the disputing parties to a magistrate, where the amount claimed does not exceed ten thousand
rupees to the High Court, where the amount claimed exceeds ten thousand rupees.

Under the Bill 2016, the High Court may, by interim order, direct that the salvor shall be paid such
amount as may appear to it to be fair and just, upon such terms, including terms as to security, as may
appear to it to be necessary, fair and just, according to the circumstances of each case.192

4.4.6 LIMITATION:

190
Section 234of Merchant Shipping Bill, 2016
191
Section 235of Merchant Shipping Bill, 2016, Section 402(4) of Merchant Shipping Act 1958
192
Section 235(4)of Merchant Shipping Bill, 2016
Whereas, previously when there is no time limit, under this new bill a limitation period of two years from
the date of completion of salvage operations has been introduced wherein no action for any claim will be
entertained after the said limitation period.193

4.5 COMPARISION BETWEEN INDIA AND US:

GENERAL AVERAGE RULE:

Difference:The Indian Law follows the General Average rule which has been laid down in 1994 York-
Antwerp Rules under the common law system where according to English law general average act is
something done to preserve the property from physical peril. Whereas, according to US laws the
General Average act is only the joint benefit of the ship and cargo for the safe completion of the
adventure.

LIMITATION:

Difference:According to US Laws, The statute of limitations for filing a salvage award claim is two
years. Whereas, under the Merchant Shipping Act, 1958 no such limitation has been provided. This
Limitation has been laid down in Salvage Convention 1989 as per the international norms.

PRINCIPLE OF APPLICABILITY:

Similarity:U.S. courts usually decide salvage controversies under the principles of the general
maritime law with reference to international conventions. Whereas, the salvage controversies are
usually decided under the principles of common law and international conventions as the salvage law
in India is still at its nascent stage.

RIGHTS AND DUTIES OF SALVOR:

Similarity: In regard to the rights and duties of the salvor both the nations follow the general
principles laid down in 1989 Salvage Convention as per the international norms.

SUGGESTIONS:

With the increase in the maritime perils in India, still the Indian law on salvage is still outdated. The
current laws, which are in the Merchant Shipping Act, 1958, are not able to solve the existing issues
coming up. The following are the suggestions that are made:

 The laws laid down in the international convention to which India is a party has to be laid
down in the internal law and a comprehensive legislation has to be made. This makes the rules

193
Section 236of Merchant Shipping Bill, 2016
 more binding in nature rather than leaving the applicability of the rules of international norms
at the discretion of the judges.
 Due to the domination of international salvors, the entry of Indian companies is being limited
thereby changing the dynamics of the industry. The government has to encourage the national
companies and they have to be given equal opportunity.
 Ship-owners legally liable to remove wrecks from the territorial waters only, and then too only
if they pose a hazard in the shipping lanes or lie close to a navigation channel. Ship-owners,
managers and underwriters abandon their property, as the provisions of our law do not bind
them to get rid of the nuisance, posing a hazard not only to marine life but to the earth’s
ecosystem as well. Thus, steps have to be taken in order to provide assurance to the ship-
owners.
 Indian salvage operators are at a disadvantage compared to many maritime countries. Where in
the U.S., the Jones Act is in force, there is not much encouragement or reforms brought into
place by the government of India to promote or support Indian players. “A lack of recognition
of national competence is purely driven by ignorance and this has to change,” he said. “There
is an imperative need to reform our sabotage law and to promote capacity building as there is
enough talent and capacity in the country to be self sufficient.”
 There has to be limitation on the salvage period as the process can take up to years and in the
mean time the value of the sabotaged property will reduce with the passing of time than it is at
the time of the wreck. This will also cause environmental hazard if the property is not salvaged
at the earliest.
CONCLUSION:

In salvage operations and wreck removal, India follows a governmentalone approach. The response
operations are carried out under the coordination of the Indian Coast Guard and subsequently maritime
claims are invoked against the owner or master of the ship. In this regard, the United States has
followed an innovative enforcement measure. Accordingly, every vessel should have a pollution
response contract with a government recognized Ship Pollution Response Organization. The Maritime
Safety Agency recognizes a few agencies and have conferred them valid Ship Pollution Response Unit
Qualification Certificate for clean- up response. In the absence of the Pollution Response Contract, the
ship will be denied port entry or if it is within the port area, clearance to next port of call will not be
allowed. It is suggested that Indian law should also incorporate mandatory provisions for ship pollution
response contracts authorized by the port authority as a port entry requirement. The Contingency
Planning and Response system in the USA is based upon the, potential polluter pays‟ principle
whereas in India it is the Government only Approach.The main drawback of the Indian system is that
the ability to deal with major spill is contingent on the happening of the incident. These countries by
means of legislation have integrated the salvage operations with the contingency plan. Therefore,
expert towing arrangements are readily available. The vessels in distress are given safer options or at
least helped to find other alternatives. The USA under the OPA 90 scheme follows a proactive
response approach and hence is far more capable in dealing with salvage situations. Thus, there is an
immediate need for a comprehensive legislation on par with the international standards and other
nations maritime laws to deal with the salvage of shipwrecks as the current laws are inadequate to deal
with the situations present in today’s world