World Academic Publishing    

Marine Salvage and the Protection of the Marine Environment: The Reassessment of the ‘No Cure-No Pay’Principlefor the Protection of the Marine Environment
Full Paper(PDF, 126KB)
Abstract:
Marine salvage is one of the most important institutes of Maritime Law. Arisen from customary law, it came to be regulated by law and currently has specific rules.One of the principal rules inmarine salvage is the ‘no cure no pay’ principle.In this, the savior only will receive the payment by the salvage work if a useful result is achieved.The ‘no cure no pay’ was always an imperative principle in marine salvage. However, currently it is gradually being relativized.This practice occurs because of the needs to protectthe marine environment. Thus, even without a useful result, the savior can receive a payment for their services if they protected the marine environment. This article examines this development in principle ‘no cure no pay’ and how the maritime law applies it.
Keywords:Marine Salvage; No cure-no pay Principle; Marine Law; Marine Environment
Author: Tiago V. Zanella1
1.PhD student in International and European Law at the University of Lisbon, FDUL, Portugal
References:
  1. Nuno Aureliano, A Salvação Marítima. Ed. Almedina, Coimbra – PT, P. 9 and 10, 2006.
  2. In this sense, Tiago V. Zanella.Curso de Direito do Mar. Ed. Juruá, Curitiba; P. 22: “In maritime navigation, bad weather always represented one of the greatest dangers, and it was regarded as a mortal challenge in old times. For centuries, it was only possible to navigate in the so-called “beautiful season” and, even then, only during daytime. The oceans were respected in such a way that, for the Greeks, navigation only occurred between March and October and, for the Romans, it was only possible to enter the seas between March 6th and November 3rd.”, 2013.(freely translated).
  3. In this sense, AldoChircop, OlofLinden (org.) Places of Refuge for Ships: emerging environmental concerns of a maritime custom. Martinus Nijhoff Publishers. The Netherlands; P. 2: “Marine navigation involves various perils, not least of which are the possibility of bad weather and rough seas and the consequent stresses experienced by the ship’s hull, and occasionally security risks such as those posed by modern-day pirates, thieves and terrorists. For most ships, however, navigating in bad weather is part of the trade, and when the ship is seaworthy, has a competent master and crew, and is sailed competently, the voyage is completed and the next maritime adventure follows”, 2006.
  4. Robin R. Churchill, Alan V.Lowe,The law of the sea. 3rded, Manchester University Press, England, P. 246, 1999.
  5. The expression was used for the first time by AntoineVialard. Droit maritime. PUF, Paris; 1997. P. 53 that contrasts salvage and maritime assistance as icons of solidarity outside the institute of common damages, in which the internal maritime solidarity is characterized. In addition, marine insurance can be identified with leading figures of a third way: the organizational solidarity.
  6. Ignacio A. Martínez. Curso de derecho maritimo. 2nd ed., Ed. Civitas, Barcelona; 2005. P. 731.
  7. Tiago V. Zanella.Supra note 2, P. 89.
  8. UNCLOS. Art. 98.
  9. As highlighted by Tan T. Eng.Law of Salvage. In. Can intellectual property rights form a part of the salvors’ traditional rights, and can a balance be achieved between them? The position of english, american and south african salvors in light of the recent decisions of the ‘R.M.S. Titanic’ cases in the United States of America. University of Cape Town Press, South Africa; 2004. P. 12: “The riches of the cargoes carried by vessels which had succumbed to the sea were enticing, and naturally led to efforts at recovering them from an environment which was “A dark/Illimitable ocean without bound,/Without dimension, where length, breadth, and highth,/And time and place are lost.” The methods used initially were simple and rudimentary – nets, hooks and unencumbered but courageous divers – until developments in technology, spurred on by the rewards of plundering the deep, led to the invention of the brass diving bell, the hard-hat diving suit, and the self-contained underwater breathing apparatus (SCUBA), which made diving and submarine exploration accessible to almost everyone. Today, the use of robotics, Global Positioning Systems and improved diving submersibles have increased the stakes in recovering wrecks and their cargoes from what was once thought to be depths unreachable by man”.
  10. Craig J.S. Forrest, Has the Application of Salvage Law to Underwater Cultural Heritage Become a Thing of the Past? In. Journal of Maritime Law & Commerce, Vol. 34, no.2, P. 311, 2003.
  11. The 1910 Brussels Convention was a significant milestone in the regulation of the matter; however, and as international maritime navigation advanced, the reguratory framework had to be reviewed. This was conducted by the London Convention of 1989, which is the main document in the current international legal regime on the subject. On June 3rd 2009, Brazil signed, and the Plenary session approved, the text of the London Convention of 1989 by means of Legislative Decree Draft No. 269/08. The President of Brazil still has to ratify the international treaty for it to be in force in the entire national territory. The PDJ, as well as the full text of the London Convention of 1989, is available at http://www.senado.gov.br/atividade/materia/getPDF.asp?t=52997&tp=1. Accessed on Jan. 24th 2015.
  12. London Salvage Convention, 1989. Art. 1, a.
  13. Despite the fact that the London Salvage Convention reinforces in article 10 the principle of providing assistance to people in distress at sea: “Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea”. Nevertheless, the purpose of the London Salvage Convention is not to regulate the matter, but to regulate only the marine salvage of assets.
  14. The protection of human life at sea is regulated, inter alia, by SOLAS: “International Convention for the Safety of Life at Sea”, 1974. According to the International Maritime Organization (IMO): The SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The 1974 version includes the tacit acceptance procedure - which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. As a result the 1974 Convention has been updated and amended on numerous occasions. The Convention in force today is sometimes referred to as SOLAS, 1974, as amended. The main objective of the SOLAS Convention is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. Flag States are responsible for ensuring that ships under their flag comply with their requirements, and a number of certificates are prescribed in the Convention as proof that this has been done. Control provisions also allow Contracting Governments to inspect ships of other Contracting States if there are clear grounds for believing that the ship and its equipment do not substantially comply with the requirements of the Convention - this procedure is known as port State control. The current SOLAS Convention includes Articles setting out general obligations, amendment procedure and so on, followed by an Annex divided into 12 Chapters”. Available at http://www.imo.org/about/conventions/listofconventions/pages/international-convention-for-the-safety-of-life-at-sea-(solas),-1974.aspx . Accessed on Jan. 24th 2015.
  15. In this sense, NunoAureliano. Supra Note 1. P. 52: “The salvor finds himself bound to provide an obligation that is liable to constitute a legal fact, such as hiring proper means of intervention, but which, as a rule, is identified with a merely material fact. The same subject may limit himself to the practice of an isolated act or may develop an activity, delaying the fulfillment of the respective obligation and adjusting that first situation to the latter”. (freely translated)
  16. Manuel J. C.Gomes.Entre a Salvação marítima e o Reboque. A propósito do AC. STJ 05.06.2003 – O caso da “Ilha da Madeira”. In. Estudos em memória do professor Doutor António Marques dos Santos. P. 1053 to 1082, Ed. Almedina, Coimbra; 2005.
  17. José L. G.García.Curso de derecho marítimo internacional. Marcia Pons, Madrid; 2012. P. 689: “An essential element for the existence of salvage is the occurrence of danger threatening the assets under assistance. It is precisely this situation of actual and extraordinary risk, different from the ordinary risk that is inherent to every maritime navigation operation, which justifies and is the basis of marine salvage. Based on this and basically following the Anglo-Saxon jurisprudence, danger may be deemed to have occurred, which distinguishes salvage from other institutions (such as the mere towing of an asset)”.(freely translated)
  18. José L. G.García.Supra Note 17. P. 689; SOROA, José María Ruiz. Manual de derecho de la navegación marítima.3rd edition, Marcia Pons, Madrid; 2006. P. 662.
  19. Ramón M.Soldevila.El salvamento marítimo. Bosch, Barcelona; 1997. P. 239; Geoffrey Brice. Maritime law of salvage. 3rd ed., Sweet and Maxwell, London; 1999. P. 50; Nuno Aureliano. Supra Note 1. P. 52 -53; Susan Hodges, Christopher Hill. Principles of maritime law. LLP, London; 2001. P. 202; AzevedoMatos. Princípio de direito marítimo III – Dos acontecimentos de mar. Ática, Lisbon; 1958. P. 179; MárioRaposo. Assistência marítima. Evolução e problemas. In. Studies of the new Maritime Law. Coimbra editora, P. 75 to 107, Coimbra; 1995. P. 80; José V. Esteves. Direito Marítimo – Acontecimentos de mar. Petrony, Lisbon; 1987. P. 53; Manuel J. C.Gomes.Supra Note 16. P. 21; RenéRodière,EmmanuelDu Pontavice. Droit maritime. 11th ed, Dalloz, Paris; 1991. P. 377.
  20. London Salvage Convention. Art. 10.
  21. London Salvage Convention. Art. 19: Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention.
  22. London Salvage Convention. Art. 13: The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below: (a)the salved value of the vessel and other property;(b)the skill and efforts of the salvors in preventing or minimizing damage to the environment;(c)the measure of success obtained by the salvor;(d)the nature and degree of the danger;(e)the skill and efforts of the salvors in salving the vessel, other property and life;(f) the time used and expenses and losses incured by the salvors;(g) the risk of liability and other risks run by the salvors or their equipment;(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.
  23. London Salvage Convention. Art. 6.
  24. London Salvage Convention. Art. 12.
  25. JohnReeder. Brice on Maritime Law of Salvage. Sweet & Maxwell, London; 2011, P. 2.
  26. Ignacio A.Martínez.Comentarios al Convenio de Salvamento de 1989. In.: Estudios de derecho marítimo. Bosh, Barcelona; 1995. P. 338; MARTÍNEZ, Ignacio Arroyo. Compendio de derecho marítimo. Tecnos, Madri; 2002. P. 187; Ramón M.Soldevila.Supra Note 19. P. 36; BRICE, Geoffrey. Supra Note 19. P. 2; Nuno Aureliano.Supra Note 1. P. 59; José L. G.García.Supra Note 17. P. 691; Santiago R.Alemán.El salvamento marítimo. La circusntancias de peligro y su jurisprudencia. Dijusa, Madrid; 2003, P. 307; JohnReeder. Supra Note 25. P. 1; HarryNewson. The Law of Salvage, Towage, and Pilotage. BiblioBazaar, USA; 2010, P. 54.
  27. London Salvage Convention. Art. 12, No. 1.
  28. London Salvage Convention. Art. 12, No. 2.
  29. SusanHodges, ChristopherHill. Supra Note 19. P. 177.
  30. EnricoVincenzini. International Salvage Law. Informa Pub, United Kingdom; 1992, P. 60 and 61: “Thus the English version of the text should be understood as more correct and more in keeping with the spirit of the Convention's rules, for it brings out not only the conditions deemed by the Convention to be necessary in effecting salvage: the "success" (or "useful result") and the "beneficial result" (or "beneficial service"), the final useful result, but also the fact that the salvor's services which have usefully contributed to the salvage are related to it as cause to effect”.
  31. Partial salvage is allowed, as explains José L. G.García. Supra Note 17. P. 691: “Regarding the success of the operation, it does not have to be total or complete, as it may be partial, that is, covering only part of the assets in danger (e.g. vessel or cargo) or it can have limited usefulness (i.e. recover the vessel with damages or the cargo with losses). The final value of the salvage will obviously influence the amount of remuneration but not the existence of the salvage itself”.(freely translated)
  32. Donald A.Kerr.The Past and Future of No Cure-No Pay. In.: Journal of maritime law and commerce. Vol 23, No. 3, P. 411 – 428, P. 414, 1992.
  33. OliviaLennox-King. Laying the mark to port and starboard: salvage under duress and economic duress at contract law. In.: Australian & New Zealand maritime law journal. Vol. 21, No. 1, P. 32 – 69, P. 49. 2007.
  34. Tiago V., Zanella.Água de Lastro: um problema ambiental global. Juruá, Curitiba; 2010; Carla A.Gomes.Apontamentos sobre a protecção do ambiente na jurisprudência internacional. In.: Elementos de apoio è disciplina de Direito Internacional do Ambiente. P. 367 to 408. AAFDL, Lisbon, P. 370, 2008.
  35. Guido F. da S.Soares.A proteção internacional do meio ambiente: emergência, obrigações e responsabilidades. 2nd Ed. Atlas, São Paulo, P. 227, 2003: “(...) the marine and ocean environments have suffered the most catastrophic natural damages, with the introduction of supertankers, which are supersized vessels that carry with them risks of an extraordinary capacity to destroy the marine environment and the commercial and entertainment activities related to the use of the beach in such countries”.(freely translated)
  36. An example of this occurred in the case of the ship Prestige. As outlined by Eloy R.Gayán.Claves de derecho privado en el asunto Prestige. In.: Revista Española de Derecho Internacional. Vol. LV, P. 117-147, P. 124, 2003: “The Prestige had already produced environmental damages and all that interested the salvors was to achieve a useful result (save the ship or cargo in order to receive the remuneration)”.(freely translated)
  37. LiangChen. Recent developments in the law of salvage. In.: The international Journal of Marine and Coastal Law. Vol. 16, No. 4, P. 686-698, P. 686, 2001.
  38. Miso Mudric. Liability salvage - environmental award: a new name for an old concept. Poredbeno pomorsko pravo, vol. 49, No. 164, P. 471 – 492, P. 474, 2010.
  39. PierreBonassies. La convention internationale de 1989 sur l’assistance. In. : DMF, P. 239-259, P. 244, 2003.
  40. London Salvage Convention, Preamble.
  41. London Salvage Convention. Art. 1, d.
  42. London Salvage Convention. Art. 8, No. 1, b.
  43. London Salvage Convention. Art. 8, No. 2, b.
  44. London Salvage Convention. Art. 9.
  45. London Salvage Convention. Art. 11.
  46. London Salvage Convention. Art. 13, No. 1, b.
  47. Resumes PierreBonassies. Supra Note 39. P. 251: “This is the real contribution of the 1989 Convention in the field of common law compensation”.
  48. BriceGeoffrey. The Law of Salvage: A time for change? “No cure-no pay” no Good? In.: The Tulane Law Review Association. Vol. 73, P. 1831 - 1845; 1999, P. 1835.
  49. Manuel J. da C. Gomes. O ensino do direito marítimo. O soltar das amarras do direito da navegação marítima. Ed. Almedina, Coimbra, P. 197, 2005.
  50. This accident occurred on March 16th 1978 along the Bretagne region of France. The vessel ran aground, broke in two, and caused one of the biggest environmental disasters in history, throwing overboard all its cargo of 1,604,500 barrels (almost 220 thousand tons) of crude oil.
  51. PierreBonassies, Supra Note 39. P. 252.
  52. Lloyd’s Open Form, Article 1, a. 1980.
  53. MartineRemond-Gouilloud. Droit maritime.A. Pedone, Paris, P. 235, 1988.
  54. In this sense, NunoAureliano. Supra Note 1. P. 143: “Thus, in addition to a situation of environmental assistence of any sort, which is not necessarily connected to the socially typical situations of hydrocarbons or the transport of other toxic substances [...]”.(freely translated)
  55. In this respect stresses MárioRaposo. Supra Note 19. P. 101, and in particular article 14, No. 2 of the London Salvage Convention, is not very clear and understanding could be facilitated by the drafters of the text.
  56. The definition of environmental damage, as already mentioned, is in the London Salvage Convention, Art. 1, d.
  57. London Salvage Convention. Art. 14, No. 1.
  58. London Salvage Convention. Art. 14, No. 4.
  59. London Salvage Convention. Art. 14, No. 3.
  60. London Salvage Convention. Art. 14, No. 2.
  61. In this respect stresses BriceGeoffrey. Salvage and the Marine Environment. In.: 70 Tulane Law Review, P. 669 – 677; 1995. P. 675: Thus, the mere reimbursement of expenses without any profit element was a sufficient incentive to a salvor, in that it was a distinct improvement over the existing law. They contended that, in essence, Article 14 was concerned with compensating for proved expenditure, not granting an entitlement to recover a rate with a profit element”.
  62. London Salvage Convention. Art. 14, No. 2.
  63. Donald A.KerrSupra Note 32. P. 422.
  64. London Salvage Convention. Art. 14, No. 5.
  65. Manuel J. da C. Gomes. Supra Note 49. P. 199.
  66. Nuno Aureliano.Supra Note 1. P. 145.
  67. House of Lords. Judgments - Semco Salvage & Marine Pte. Ltd. v. Lancer Navigation. Opinions of the lords of appeal for judgment in the cause. 06 February 1997. Available at http://www.publications.parliament.uk/pa/ld199697/ldjudgmt/jd970206/semco02.htm . Accessed on Jan 29th 2015.
  68. MárioRaposo. Supra Note 19. P. 102.
  69. SusanHodges, ChristopherHill. Supra Note 19. P. 362. Similarly, BriceGeoffrey. Supra Note 48. P. 1838 outlines: “Although the Nagasaki Spirit decision is binding on all English courts, the Convention is international, and other non-English courts may not adopt an interpretation so restrictive. The assessment of direct and indirect expenses involves accountancy. This might be difficult if the salvor operated several craft and was based in a jurisdiction where modem systems of accounts, maintained in the English language, might not exist”.
  70. SCOPIC Clause. Special Compensation P & Y Club’s Clause. 2011. Available at http://www.lloyds.com/the-market/tools-and-resources/lloyds-agency-department/salvage-arbitration-branch/scopic . Accessed on Jan. 29th. 2015. This is the latest version of the SCOPIC clause.
  71. This is a French expression that means an agreement by which one party of the contract is obliged to do or provide something for a right price, losing or gaining with the agreement.
  72. In this sense, MisoMudric. Supra Note 38. P. 478: “The SCOPIC" clause is an industry response to the special compensation scheme in the London, providing for a voluntary and alternative way of calculating special compensation, offering predetermined rates and tariffs for personnel, tugs and other salvage equipment. Having in mind the House of Lords' decision over the definition of the term ‘fair rate’ in the Nagasaki Spirit case, the industry decided to propose its own scheme of special compensation on a voluntary basis”.
  73. In this sense, Manuel J. da C. Gomes. Supra Note 49. P. 210; Susan Hodges, Christopher Hill. Supra Note 19. P. 200 and 201; José M. R. Soroa. Supra Note 18. P. 686 and 687. And, as explains Brice Geoffrey. Supra Note 48. P. 1839: “Although the title “SCOPIC” includes the expression “Special Compensation”, it has nothing to do with Convention article 14, save that when SCOPIC is invoked there must be no claim for Article 14 special compensation. Further, it is not dependent on or in any way related to a threat of damage to the environment”.
  74. EmilioPiombino. Il Lloyd’s Open Form 200 e la Scopic Clause. In.: DM. Vol. III, P. 1233 - 1250; 2001, P. 1238.
  75. NunoAureliano. Supra Note 1. P. 172.
  76. SCOPIC Clause. 2011. Art. 3, I.
  77. Says EmilioPiombino. Supra Note 74. P. 1239, which, in practice this warranty will be provided by the P & Y Club of rescued items.
  78. SCOPIC Clause. 2011. Art. 5, IV.
  79. NunoAureliano. Supra Note 1. P. 173.
  80. Manuel J. da C. Gomes. Supra Note 49. P. 210 and 211.