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Marine salvage and the protection of the marine environment

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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.

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Marine salvage and the protection of the marine environment

  1. 1. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 41 Marine Salvage and the Protection of the Marine Environment: The Reassessment of the ‘No Cure-No Pay’Principlefor the Protection of the Marine Environment Tiago V. Zanella* *PhD student in International and European Law at the University of Lisbon, FDUL, Portugal; tiagozanella@gmail.com 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. Keyword- Marine Salvage; No cure-no pay Principle; Marine Law; Marine Environment I. INTRODUCTION: MARINE SALVAGE Marine salvageis one of the most remarkable dogmatic specifications of Maritime Law, as it contributes to the autonomy of this branch of Law [1]. The marine adventure has always represented a great danger to human life and the material assets used in this activity, especially to the vessels [2]. Today, not only the bad weather, but also the threat of pirates and terrorists frighten and endanger a vessel, as it happened in old times. Facing bad weather conditions is no longer the challenge it once was, as it ispart of the maritime adventure itself, and the vessels are much better prepared for that [3].However, even today the vessels are not immune from the dangers of the seas. The current major enemies of vessels and the environment are structural problems with machinery and equipment that may deteriorateinbad weather conditions at sea (in addition to the possibility of human failure because of negligence, imprudence or malpractice) [4]. In this sense, based on ethical and religious purposes, the duty to provide assistance was establishedin the international maritime society, initially as an international custom, anchored in a concept of solidarity when facing the risk of maritime navigation. In legal terms, the duty of assistance has commonly been referred to as “external solidarity” [5] at sea. This way, on behalf of “a higher good well above the interests of the salvors and the saved” [6], the duty to provide marine salvage and assistance became a principle of maritime law. What was initially customary law is now part of several international texts, starting with the “Constitution of the Oceans” [7], the United Nations Convention on the Law of the Sea (UNCLOS) of 1982: Duty to render assistance 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: a) To render assistance to any person found at sea in danger of being lost; b) To proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; c) After a collision, to render assistance to the other ship, its crew and its passengers, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose [8]. Despite the duty to provide assistance and maritime solidarity, the wealth transported by the vessels isveryfinancially attractive, as well as the value of the vessels themselves. For this reason, marine salvage operations began not only out of solidarity, butfor financial reasons [9].Therefore, the first issue started to surface, especially with respect to the rights of the salvors and the saved, ishow much the salvors should be paid for services rendered and to which rights they would be entitled over the recovered goods [10].
  2. 2. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 42 Currently there are several international rules and regulations to regulate the marine salvage. Among them, we can highlight the Brussels Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, signed in Brussels on September 23rd 1910 (Convention of Brussels of 1910 or CB 1910) and the International Convention on Salvage, signed in London on April 28th 1989 (the Salvage Convention) [11]. A “salvage operation” is defined in subsection a) of Article 1 of the Salvage Convention of 1989 as “any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever” [12]. First of all, this concept excludes the rescue of people, which means that the protection of human life at sea is not covered. The legal regime applicable to the rescue of people is entirely different from the salvage of assets [13]. That is to say, the marine salvage covers only the assistance to another vessel or an economic asset [14]. Next in order, an act comes out from the concept, a salvage act, which may be expressed as repair of the hull of the vessel, clearance of the steering gear, operations of the vessel emergency and fire-extinguishing, escorting to a safe haven, the supply of fuel or food to the crew, or other acts of salvage [15]. Further, the assets need to be in danger. That is, the confirmation of danger is an essential prerequisite for marine salvage, and it is characterized as a point of distinction between the institute of marine salvage and the act of towage at sea [16]. Therefore, the danger posed to the assets, especially to the vessel and other goods, has always universally been the main feature of the institute of salvage that confers upon it justification and independence in maritime law [17]. Such danger may be of any nature, such as forces of nature (act of God), human acts (piracy, war, and terrorism), internal acts (human fault) or any other type. Thus, ifany danger happens, the salvage becomes necessary and is characterized [18].However, the concept of danger added a certain subjectivism in the doctrine, as errors of perception and the eminence of danger were debated for a while. Currently, the best doctrine defines danger as one that has already been characterized by the possibility of severe damage, of accident or loss of the ship or other assets that compose the vessel [19]. When analyzing the full text of the Salvage Convention of 1989, we can notice a few characteristics that regulate the marine salvage (in addition to the consolidated assets in danger and actions already analyzed), namely: a) the establishment of the duty to provide assistance to persons in distress at sea [20]; b) the prohibition of performing marine salvage in case of express refusal by the captain or by reasonable reason [21]; c)the definition of more objective criteria for the remuneration for marine salvage [22]; d) the autonomy of will to enter into marine salvage contracts [23]; and e)the requirement of a useful result for the right of remuneration by the salvors [24]. There are four essential elements for marine salvage: 1) volunteering; 2) danger of damages; 3) act of salvage; and 4) useful result [25]. II. THE REASSESSMENT OF THE ‘NO CURE-NO PAY’ PRINCIPLE FOR THE PROTECTION OF THE MARINE ENVIRONMENT A. The ‘No Cure-No pay’ Principle The need to obtain a useful result in marine salvage operations constitutes a conditio iuris for the characterization of the act and its resulting duty of remuneration. This is the traditional principle of ‘no cure-no pay’ that appears in all the international treaties on the matter and is acknowledged by the doctrine as a dogmatic entityunderlying the institute of marine salvage [26].Article 12 of the International Convention on Salvage clearly states that only the “operations which have had a useful result give right to a reward” [27]. It also states that “except as otherwise provided, no payment is due under this Convention if the salvage operations have had no useful result” [28]. As Susan Hodges and Christopher Hillsummarize: “the theory of salvage is one simply based upon the concept that he who successfully rescues and preserves the property of another from danger at sea deserves a reward” [29]. Justified by safety of navigation, incentive to the salvor and protection of the assets of the saved, the ‘no cure-no pay’ principle can be divided in two aspects: on one hand, that a valuable asset was salved (success); on the other hand, that this useful result was obtained precisely because of the services rendered (beneficial service) [30]. However, regarding the success of the salvage operation, it does notneed to be total or complete [31]. Therefore, in summary, the ‘no cure-no pay’ principle can be understood as ‘no salvage, no pay’, or also ‘no useful result, no pay’. Closely related to the reward for services rendered is the requirement of a useful result, that is, the effective rescue of assets. As a rule, the rescued party will only pay for the marine salvage if the operation actually manages to safeguard the assets – the vessel, the cargo or other items used in the marine navigation. B. The Need to Protect the Marine Environment in Marine Salvage Operations With the development of the subject and the international marine navigation itself, there is a paradigm shift with respect to marine salvage only for useful result purposes. The aforementioned principle is currently undergoing a transition to adjust to the socio-environmental reality of our days. It is now rejected as an absolute rulein the marine salvage institute [32]. The maritime reality of 1910, the year the Brussels Convention was signed, is completely different from the reality of 1989 (Salvage Convention).Along the 20th century, salvage became more and more complex, with new mattersunderconsideration at
  3. 3. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 43 the moment of operations [33].In this sense, huge international importance has been given to environmental concerns, which evolved significantly since the 1970s [34]. As a result, one can say that the major accidents and incidents of global proportions largelyinfluenced the execution of international treaties for the protection of the environment. Especially for marine spaces, the environmental accidents were significant for the negotiation, signature and ratification of environmental multilateral treaties. Industrial and technological progress enabled the evolution of the naval industry, which was able to build larger ships. However, this progress also brought severe consequences for the marine environment, as environmental disasters also became more serious [35]. For this reason, the institute of marine salvage did not becomedetached from the new reality, and the international agreements started to reassess the ‘no cure-no pay’ principle in case of marine environmental protection. Otherwise, the salvors would only be interested in saving the assets at all costs, even if it caused irreversible catastrophic damages to the marine environment [36]. Liang Chencorrectly points out that “however, as time goes by, the ‘no cure-no pay’ principle is not completely capable of dealing with the current problems, especially those related to environmental protection and conservation” [37]. The overuse of the principle can create a greater risk of degradation to the marine environment. For example, there is the case of the tanker Atlantic Empress. In 1979, following a collision, a fire broke out in said vessel, in addition to the oil leakage. The vessel was towed 300 miles along the coast before blowing up and disappearing in the depth of the ocean. As no assets were saved, the salvors were not entitled to remuneration for services rendered. However, the benefits obtained by the shipowner and the other parties of the marine adventure for the salvage services are clear (even without the useful result of salvaging the assets in question), as it preventedenvironmental pollution in coastal areas. In addition to providing benefits to the coastal state, the shipowner himself and the other agents were also favored, since they could have been seriously indicted for damages to the environment of the coastline [38]. C. The Protection of the Marine Environment in the International Convention on Salvage of 1989 The Salvage Convention of 1989 completely reviewed the gap of the Brussels Convention of 1910 and, as Pierre Bonassies describes it [39], the protection of the environment is the “heart of the system” of the new convention on marine salvage. We can clearly find the international concern with the marine environment in the preamble of the Salvage Convention of 1989: “Conscious of the major contribution which efficient and timely salvage operations can make to the safety of vessels and other property in danger and to the protection of the environment, […]” [40].Article 1, subsection d, is where we find the definition of environmental damage: “substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents” [41]. Based on the above, the value of the protection to the marine environment is presented in several provisions of the Salvage Convention of 1989: a) The salvors shall act with due care to prevent or minimize damage to the environment [42]; b) The owner and the captain of the ship or the owner of another property in danger shall cooperate with salvors to prevent or minimize any damage to the environment [43]; c) Regardless of the Salvage Convention of 1989, the coastal State may take measures to protect its coastline against pollution or the threat of pollution as a consequence of a salvage operation [44]; d) All parties must cooperate (the States involved, the salvors, the public authorities, the captain, shipowners, and other individuals participating in the marine adventure) to ensure the efficient and successful performance of salvage operations in order to save lives or property in danger, as well as to prevent damage to the environment in general [45]. e) The fair reward for the marine salvage shall take into account the expertise and the efforts of the salvors to prevent or minimize damages to the environment [46] [47]. D. Special Compensation In compliance with the need to protect the marine environment in salvage operations, the international texts gradually began to cover the possibility of a special compensation in cases where useful results were not obtained, but in which the environment was preserved as a result of the salvage activities [48]. This practice initially began with the salvage operations of oil tankers (safety net) [49].After the Amoco Cadiz [50] disaster, professionals started to record in the most widely usedstandard form of marine salvage agreement, the Lloyd’s Open Form (LOF), a clause awarding the salvors, even without any useful result, a financial compensation for the services that provided a reduction in the environmental impact or that totally protected the marine environment [51]. This way, since the LOF 1980, even without recovering property at risk, the salvors who managed to prevent or minimize environmental damages would be paid for all expenses of the operation and, eventually, they would receive an additional sum of up to 15% of the expenses. The services shall be rendered and accepted as salvage services upon the principle of “no cure - no pay” except that where the property being salved is a tanker laden or partly laden with a cargo of oil and without negligence on the part of the
  4. 4. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 44 Contractor and/or his Servants and/or Agents (1) the services are not successful or (2) are only partially successful (3) the Contractor is prevented from completing the services the Contractor shall nevertheless be awarded solely against the Owners of such tanker his reasonably incurred expenses and an increment not exceeding 15 per cent of such expenses but only if and to the extent that such expenses together with the increment are greater than any amount otherwise recoverable under this Agreement. Within the meaning of the said exception to the principle of “no cure – no pay” expenses shall in addition to actual out of pocket expenses include a fair rate for all tugs craft personnel and other equipment used by the Contractor in the services and oil shall mean crude oil fuel oil heavy diesel oil and lubricating oil [52]. This new mode intends to encourage the job of professional salvors and avoid environmental disasters even when the possibilities of achieving a useful result and the resulting full award for the service, are remote. This is the institutionalization of a ‘no cure, little pay’ [53]. Meanwhile, the International Convention on Salvage of 1989 recognizes the practice already established and the need for special compensation. In addition, the Convention extends the benefit to any type of ship or its cargo that threatens to cause environmental damage [54]. Therefore, despite the slightly confusing text of the Convention at this point [55], there are two main points established in the new salvage regime regarding special compensation, regulated by Article 14 of the Salvage Conventionof 1989. The first point is the establishment of two conditions for special compensation: the first is that the salvor conducted operations in an attempt to save a ship or its cargo that were threatening to damage the environment [56]. This means that article 14can only be applied if the events mightpose a risk to the marine environment; otherwise, the special compensation is not applicable. The second condition has to do with not having achieved a useful result so thatArticle 13 of the Salvage Convention of 1989 regarding the “Criteria for Fixing the Reward” does not apply. This is because if a reward has already been given to the salvors for the salvage, according toArticle 13, the conventional text sees that there is no need for special compensation [57]. The exception to this second condition consists in the case in which a useful result was obtained, but the reward is less than that determined by Article 14. In this case, a special compensation applies, as it favors the salvors [58]. The second point determines the actual compensation to be given for the operations that managed to avoid or minimize environmental damages. First of all, the salvorsmust be compensated for all reasonable expenses incurred into during the operation, as well as the cost of equipment and staff [59].In addition, as a special compensation, the reward paid may be increased to a maximum of 30% of the expenses made during the salvage operation [60]. This is an important additional factor that encourages the salvors to work not only for these expenses, but also for an award that might be significant. The purpose of this is to encourage the salvage operations withfew chancesof a useful result, but which may cause damage to the environment [61]. The special compensation may exceed30% of the expenses. Article 14, No. 2, of the Salvage Convention determines that “if it deems it fair and just [...] the tribunal may increase such special compensation further, but in no event shall the total increase be more than 100% of the expenses incurred by the salvor” [62]. Here, the reward is increased to further encourage professional salvors to operate in environmental catastrophe cases. There were cases in which 30% did not meet the financial aspirations of the international salvors; therefore, the 1989 Convention decided to include the possibility of increasing this percentage, but never higher than100% of the expenses [63]. Furthermore, “if the salvor has been negligent and has thereby failed to prevent or minimize damage to the environment, he may be deprived of the whole or part of any special compensation due under this article” [64]. Therefore, if the salvor does not avoid or minimize the environmental damages in the situation surrounding the facts, due to fault or negligence, he will be deprived of the special compensation. This article of the Salvage Convention seems redundant and obvious, but once again it is intended to encourage the salvors to protect the marine environment [65]. Revolutionizing the traditional marine salvage dogmatic frames of reference, especially in view of the famous “no cure–no pay” principle, special compensation did not fail to raise certain questions in international jurisprudence, especially the first time the issue came up in a practical situation. That was the case of a collision between the tanker Nagasaki Spirit and the container ship Ocean Blessing that took place in the early morning of September 20th 1992 in the Strait of Malacca [66]. In this collision, almost the entire crew of both vessels died, as there were only two survivors, the crew members of the tanker, which was carrying 40 thousand tons of crude oil. In view of the circumstances, the owners of both vessels immediately signed a salvage contract with the company Salco Salvage, which was able to save a large quantity of oil. Only 12 tons of crude oil was spilled. The salvage, then, managed to significantly minimize the damage to the environment of the region. There was later a disagreement with respect to the amount of the award to be paid as special compensation; however, the dispute was submitted to international arbitration. The arbitrator, following Article 14, No. 2, of the Salvage Convention of 1989, determined that the contracting parties had to reward the salvor for expenses incurred into with an increase of65%. This decision was subject to appeal to a second arbitrator who understood that there was no place for profit, in accordance with Article 14, No. 3, of the same convention. The matter was then taken to judicial courts, which also claimed that profit could not be obtained, even with the minimization of environmental damage. Finally, completing the judicial circle, the case was heard in the House of Lords in London, which on February 6th 1997 understood that the expression “fare rate” inArticle 14, No. 2, of
  5. 5. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 45 the Convention, did not include the profit element, that is to say,the contracting parties had only to reward the salvorfor expenses incurred: In the first place I do not accept that salvors need a profit element as a further incentive. Under the former regime the undertaking of salvage services was a stark gamble. No cure -no pay. This is no longer so, since even if traditional salvage yields little or nothing under Article 13 the salvor will, in the event of success in protecting the environment be awarded a multiple not only forhis direct costs but also the indirect standby costs, yielding a profit. Moreover, even if there is no environmental benefit he is assured of an indemnity against his outlays and receives at least some contribution to his standing costs. Lack of success no longer means "no pay," and the provision of this safety net does suffice, in my opinion, to fulfill the purposes of the new scheme [67]. The English case law decision was the target of a storm of criticism by the doctrine, as it was considered restrictive and insensitive to the ratio legiswho chairs the system [68].In the words of Susan Hodges and Christopher Hill: “salvors have shown themselves to be unhappy with the final decision in the Nagasaki Spirit” [69]. Regardless of the position adopted by the English courts, it seems right that the salvors will not work for insufficient reward only to be paid for the costs of the operation or because of a higher duty to protect the environment. Therefore, there has to be fair remuneration, including profits, for marine salvage services that avoid or reduce the environmental impacts of marine accidents. E. The SCOPIC Clause In order to overcome these uncertainties and gaps in the application of article 14 of the Salvage Convention of 1989, the international maritime navigation agents themselves decided to alter the standard form of marine salvage agreement in the year 2000 – the Lloyd’s Open Form (LOF 2000). The main change in this standard form is the inclusion of the so-called SCOPIC Clause, an abbreviation used for Special Compensation P & Y Club’s Clause [70]. The purpose of the SCOPIC clause is to overcome the uncertainty of the financial compensation for providing any marine salvage, breakingthe dogma of a useful result (“no cure-no pay”) by establishing a forfeit [71] compensation [72]. Therefore, the SCOPIC clause emerges to overcome the apparently contradictory nature between the concepts of environmental damage and fair rate that are present, respectively, in article 1, subsection d, and in article 14, No. 3, of the Salvage Convention. For this reason, even if the danger of environmental damage is not the cause, according to the SCOPIC clause, salvors are entitled to obtain the compensation for services rendered [73]. Nowadays, the SCOPIC clause of 2011 is being used, as it was its last alteration. It determines that,if they wish to do so, the contracting partiesmay include the SCOPIC clause that will guarantee a fair amount to the salvor for the operations performed, regardless of a useful result. This clause is then useful to ensure that the marine salvage professionals receive a fair amount for their services [74]. Regarding its practical application, this is a supplementary solution without an automatic application before anything else. This means that the parties must expressly adopt it in the marine salvage agreement [75]. Then, the salvor can invoke the previously agreed SCOPIC clause at any time, if he considers that the future reward will not compensate for his expenses. If he does so, the service contractor must provide a special guarantee to the salvor in two days in the amount ofUS$3 million [76] [77]. Finally, when the salvage operations are concluded, the salvor is entitled to a fair reward for the property saved in the operation. Nevertheless, he has the option of invoking the SCOPIC clause. If he does so, the salvor shall be entitled to remuneration for all operating expenditures and an increase of 25% on these expenses. This way, it is up to the salvors to opt for the most financially favorable solution: the reward for assets saved or the cost with expenses plus25%: In addition to the rates set out above and any out-of-pocket expenses, the Contractor shall be entitled to a standard bonus of 25% of those rates except that if the out-of-pocket expenses described in sub-paragraph 5(iii) (b) exceed the applicable tariff rates in Appendix “A” the Contractor shall be entitled to a bonus such that he shall receive in total: (a) The actual cost of such men, tugs, other craft and equipment plus 10% of the cost, or (b) The tariff rate for such men, tugs, other craft and equipment plus 25% of the tariff rate whichever is the greater [78]. This way, the mechanism enforced by the new SCOPIC clause works in relation to the dissatisfaction of the salvor about the reward for a useful result, or in the case of not having a result. Though the rules do not require a connection with the protection of the environment, in practice, the new rules lead to this point. That is, in cases where there is a threat of environmental damage and even without prospects of obtaining a useful result, the salvor shall be duly rewarded, including the expenses and the profit for services rendered [79]. In a nutshell, we can then list the features of this new institute on marine salvage: 1) it emerged to remedy the effects of the decision in the case of the ship Nagasaki Spirit and to overcome the uncertainties of the Salvage Convention of 1989 regarding the special compensation; 2) it does not question the useful result; it only complements Article 14 of the Convention. That is, it
  6. 6. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 46 does not represent the end of the “no cure-no pay” principle, but only its reassessment; 3) it only applies if the salvor wants it to; 4) it is applicable even in the absence of any threat of environmental damage, even though in practice this is the most widely used Institute [80]. III. CONCLUSION Marine salvage is an institute that, while it does not characterize the autonomy of maritime law as a branch of special law per se, it contributes significantly to it. Thus, marine salvage is inseparable from maritime law, and itis an important part of the study of this branch of law. Since the beginning of maritime navigation, there was solidarity at sea, which greatly influenced the marine salvage institute (even nowadays, not considering it a matter of solidarity, but rather as a financial issue). In this sense, starting from this customary origin, salvage has become one of the dogmas that guidethe maritime law, and it is currently internationally regulated by means of conventions and other international texts. In this sense, the marine salvage institute is currently concerned not merely with operational issues, but also with other cognitive aspects, and it is changing to meet new international realities. The inclusion of the marine environment protection as a fundamental duty, its consideration in the marine salvage payment, and the creation of a special compensation demonstrate a readjustment of the traditional view of the institute. With this new reality, marine salvage and especially the “no cure-no pay” principle were extensively altered. Until recently, the need for a useful result was mandatory, and it could not be waived. As concern for the marine environmentincreased (and several environmental disasters), the “no cure-no pay” principle was reassessed in order to encourage the environmental preservation of the seas. Earlier, the salvor did not receive any financial reward if he could notsave property in danger. With this, professional salvors were not encouraged to work if there was a strong risk of losing all the assets, even if it caused an environmental disaster (which happened in some cases). Now, the new salvage regime provides for a reasonable and fair reward for services rendered to avoid or minimize environmental damage, even without the well-known useful result. The marine salvage institute is not (as it once was) a space for amateurs and international altruism. Salvors are professional companies who devote themselves to this important task and, therefore, need to be properly awarded. They will certainly not work for low remuneration or to protect the marine environment out of solidarity. As a result, there has to be fair remuneration, including profits, for the marine salvage services that avoid or reduce the environmental impacts of maritime accidents. As previously mentioned, the marine salvage institute was widely restructured in recent times, especially since 1980, with the LOF. From then on, there was aclearreassessment of the “no cure-no pay” principle toward the cases of protection of the marine environment. Even though the jurisprudence initially did not applythis provision as it should have, the international navigation agents found a quick solution and nowadays, even without the useful result, salvors are encouraged to work to prevent or minimize environmental damage. 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. 3rd ed, 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
  7. 7. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 47 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;
  8. 8. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 48 (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.
  9. 9. Advanced Shipping and Ocean Engineering Dec. 2014, Vol. 3 Iss. 4, PP. 41-49 49 [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.