Salvage Law Research Articles

Judge William Marvin and the Law of Salvage

Abstract This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839–45; 1847–63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America's leading authorities on maritime law. Lastly, it recounts how Marvin superintended the city's notorious wrecking industry.

Mr. Marvin Goes to Key West

Abstract This essay provides a sketch of William Marvin's first decade in Key West (1835–45). In this period, Marvin, originally from New York, served as the territory's U.S. district attorney (1835–39) and its second territorial judge (1839–45). It was during this time that Marvin became acquainted with the city's wrecking industry and began to develop his interest in salvage law.

The legal status of the “employment salvage contract” in the Chinese maritime salvage law: A challenge to the principle of ‘no cure, no pay’

The legal nature and law application of the employment salvage contract, which is not very clear in the relevant Chinese legislation, has drawn significant attention from the Chinese salvage and maritime law academia. The case of NRB vs. Archangelos fully demonstrates various issues that exist in the judicial practice, and its final judgment by the SPC shows an authoritative judicial position on such issues. Through a comprehensive analysis of the NRB vs. Archangelos and a comparative evaluation of the current academic views, this article argues that, although the employment salvage contract has indeed excluded the principle of ‘no cure, no pay’ and challenged the current Chinese salvage law system, it does not alter its legal nature as a salvage contract and the application of law to the legal policy of promoting the salvage at sea. However, this article also cautions that employment salvage reward should be paid and apportioned only when something has been actually saved.

Sunken Spanish Ships before American Courts

Abstract Decisions by American courts on sunken Spanish ships have followed different approaches. Some have applied the so-called admiralty law and granted ownership rights to the finder. Others have assimilated wrecks to natural resources of the continental shelf, thereby falling under the sovereign rights of the coastal State. Others have found that Spain retains title over Spanish galleons that are to be considered as State-owned ships. Others have declined jurisdiction because of the immunity of Spain before American courts. What all decisions have in common is that they show how inappropriate it would be to apply admiralty law (salvage law and law of finds) to sunken wrecks and their cargo. It would correspond to the triumph of the first-come-first-served principle (or the freedom-of-fishing principle) for the benefit of commercial gain, without any care for the preservation of the heritage and the position of States which have a special link with it.

The Status of the Operational Debris Mitigation Systems Regulatory Policy: Current Issues and Future Perspectives

A strong and dynamic technological progress in the space sector is shaping a new set of rules, apting primarily to the preservation of the space environment and the savage exploitation of its resources. When focusing on what can be considered the greatest challenge of this still young century, the space debris issue, one cannot refrain from questioning whether such fast-moving technical and technological progress has a solid match in the current legal, policy and political framework: do they go hand in hand, or is the second structurally incapable of keeping up with the rapidly evolving nature of the first? The paper will involve a deep analysis and legal and policy issues for future operational debris mitigation systems, essential step to draft a set of specific rules, agreed at national and international level, for a governance and regulation framework. What is lacked is a soft law instrument, internationally agreed, that can enforce such decisions on States’ behalf, for the sake of the sustainability and ongoing security of the space environment. These aspects are very sensitive and they involve constraints in relation to the national sovereignty and to the identification of “commercial” actors that could invest and operate in these domains. The maritime law can offer some frame of reference to solve this issue. Specifically, the international law of salvage in high seas, as outlined in the International Convention on Salvage, IMO 1989, may establish a similar regime, in space, for abandoned spacecraft with. In this regard, the pivotal role of the International Telecommunication Union (ITU) in setting a regulation for the Active Debris Removal missions (ADR), in the years to come, should not be underplayed. Since this agency is in charge of promoting and coordinating the definition of technical standards, as well as of assigning satellite orbits, it might be able to establish itself as the referral organization for the issuing of finally binding space debris mitigation rules. It is crucial to have an institution capable of maintaining the balance (both technical and political) between multiple stakeholders, and security and environmental constraints. So much of the future of space activities will depend on how those rules will succeed in limiting the growing amount of floating debris in space.

Rejoinder to Guenzl on Theft and the Return of Private Property

Rejoinder to Guenzl on Theft and the Return of Private PropertySuppose A is the rightful owner of some property, B steals if from him, and C, in turn, relieves B of his ill-gotten gains. What next? Under just law, must C return the item to A? If not, is C guilty of a crime? If C does return this resource to its initial rightful? owner, does A owe C a percentage of its value, as under salvage law? These are some of the questions to be wrestled with in the present paper.

Protection of the Environment and the International Salvage Convention, 1989: An Assessment

This article focuses on the International Salvage Convention and the protection of the environment in salvage operations. The article traces the evolution and history of the law of Salvage to its present status by using the UK as a case study. In essence, the article seeks to ascertain the extent of current international regime on salvage in protecting the environment. The question that this article poses is: Does the International Salvage Convention 1989 accord enough protection to the environment against the backdrop of global efforts to promote environmental protection and sustainable development? The article begins with a brief synopsis of the underlying principles of salvage including the rule of ‘no cure-no pay’ followed by an appraisal of the events that culminated arguably in the development of the International Salvage Convention 1989 to safeguard the environment in the course of salvage operations. A systematic analysis of the defects inherent in the International Salvage Convention 1989 vis-à-vis protection of the environment are analysed and a number of reforms are highlighted.Key termsInternational Salvage Convention, England, Environmental Protection, Pollution and Environmental Salvage Award

INDONESIAN SALVAGE LAW WITHIN THE FRAMEWORK OF CONTEMPORARY MARITIME LAW

Located in a strategic position, that is between two great oceans and two land masses have made Indonesia a centre of international trade and shipping. In fact, 90% of international trades are carried out through the ocean. It is therefore crucial to assure that the activities in carrying goods across the ocean are incident free. However, if accident happens, assistance from professionals to preserve items of property is desirable. In such, salvage law emerged. This paper discusses comprehensively Indonesian salvage law within the framework of contemporary maritime law. While Indonesian maritime law is mostly based on its national law on the carriage of goods by the sea, in fact, the development of maritime law is highly affected by international practices which are largely based on international conventions and regulations. This research finds that while Indonesian salvage law can be found in Book II Chapter VII article 545-568k Wetboek Van Koophandel or known as Kitab Undang-undang Hukum Dagang (KUHD), which focused narrowly on the value of salved property as the primary measures of success, yet Indonesian salvage law has not been developed in accordance with current international salvage law, which adopted a broader and more balanced approached in both commercial and environmental aspects. Although it is believed that such approached is “culturally unrecognized” in Indonesia, this research argued that since Indonesian waters are part of international waters, all process by waters including salvage should confirm the relevant international practices and regulations. While Indonesia has taken out salvage law from KUHD and regulates it within Act Number 17/2008 on navigation, however, such act only provides one article for salvage stating that salvage will be regulates further by Ministry Regulation. Untill this paper was written no such government regulation produced yet by Indonesia. Since Indonesian waters is the centre of international navigational routes, this paper argued that it is an urgent need for Indonesia to have appropriate salvage law in place, so it can develop dinamically from shipping practice and confirm with international regulations in salvage. Keywords : salvage law, maritime law, commercial and environmental.

The Scopic Clause as a Major Development in Salvage Law

The SCOPIC clause (Special Compensation P&I Club Clause) provides an alternative remuneration to salvors, which is computed differently to the awards provided in Article 13 and Article 14 of the International Convention on Salvage (1989). In essence, SCOPIC provides agreed tariff rates under the form of a remuneration as an indemnity for the salvage services performed and the salvor’s investments in the operation. The award afforded by SCOPIC, although being a modification of the Article 14 Special Compensation, is based on different principles than those underlying the respective provision of the Convention. The major aim of the current paper is to give a comprehensive explanation of the clause and its features. It will also clarify the development and the operation of the SCOPIC clause and will underline the advantages which it provides to the area of marine salvage. To understand the essence of the SCOPIC clause, one has to be familiar also with the awards available under Articles 13 and 14, and, therefore, a comparison between the three will be made. Thus, it will be illustrated that, depending on the award chosen, there could be a different outcome for all the parties involved in the salvage operation.

Hajóroncsmentés mint beruházás – egy ICSID-döntés alapvető hatása két jogterületen


 
 
 
 Az elsüllyedt hajók, és főként azok rakománya időtlen idők óta vonzza a kincsvadászokat. Tévedés azonban, hogy az elsüllyedt hajók szabad prédává váltak volna; noha az irányadó jog is meglehetősen sokrétű és kaotikus, számos szempontot szükséges egyszerre figyelembe venni. Ez legfőképpen két érdek szembenállásában mutatkozik meg.
 
 
 

The Titanic as Underwater Cultural Heritage: Challenges to its Legal International Protection

The RMS Titanic struck an iceberg and sank 14–15 April 1912. This article summarizes some of the legal implications of the 100th anniversary of its sinking, as the Titanic becomes subject to the provisions of the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection of Underwater Cultural Heritage. This article also discusses the implications of the application of the 1982 United Nations Convention on the Law of the Sea and the rather unique development under the law of salvage through orders of the U.S. court sitting in admiralty that prohibit the exclusive salvors in possession of the Titanic, RMS Titanic, Inc. and Premier Exhibitions, Inc. (RMST/PE) from selling individual artifacts and instead require that RMST/PE keep the collection of artifacts salvaged from the Titanic together as an intact collection for the public benefit. Finally, the article discusses the need for general legislation to protect the Titanic and other underwater cultural heritage from looting and unwanted salvage.

The entry into force of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage

On 2 January 2009 the Convention on the Protection of the Underwater Cultural Heritage (CPUCH; Paris, 2001) entered into force for the first 20 States that decided to become parties to it. The CPUCH can be seen as a reasonable defence against the disastrous regime on underwater cultural heritage set forth by the United Nations Convention on the Law of the Sea (UNCLOS; Montego Bay, 1982). In fact, the UNCLOS allows for a “freedom-of-fishing” regime where a State which has a cultural link with the objects cannot prevent the pillage of its historical heritage. The picture is worsened by the reference in the UNCLOS to “the law of salvage and other rules of admiralty” which have been intended by United States courts as meaning the application of a first-come-first-served approach in many cases relating to the underwater cultural heritage. The basic defensive tools included in the CPUCH are the elimination of the undesirable effects of the law of salvage and finds, the exclusion of a first-come-first-served approach for the heritage found on the continental shelf, and the strengthening of regional cooperation.

INTERNATIONAL LAW AND THE UNCERTAIN FATE OF MILITARY SUNKEN VESSELS

On 5 October 1804, the Spanish warship Nuestra Senora de las Mercedes had almost completed its voyage from Peru to Spain, when it was attacked by the British fleet. In the ensuing battle of Cape St. Mary almost 250 Spanish sailors died. Historians deem the sinking of the Mercedes to be a pivotal event in European history. Mentioning the “sad loss of the frigate Mercedes”, King Carlos IV of Spain declared war against Great Britain and entered the Napoleonic wars on the side of France.The fateful sinking of the Mercedes and its possible recovery by a commercial salvor, Odyssey Marine Exploration Inc., has been the focus of a pending legal dispute. After finding the wreck, the salvor claimed ownership of it, under the law of finds or a salvage award under salvage law, which would entitle it to sell the recovered artefacts and receive a part of the revenues as compensation for the efforts made in finding and recovering the shipwreck. However, Spain intervened in the proceedings claiming that the Black Swan – as the salvor had code-named the shipwreck – was the Mercedes, and that, the Mercedes being a warship of the Royal Navy of Spain, it was subject to immunity from Odyssey’s claims and not subject to salvage against the wishes of Spain. In parallel, Peru reclaimed the treasure, which it deemed part of its cultural patrimony, while the Bolivian Government expressed its interest in identifying the origin of the recovered treasure. Finally, twenty-five descendants of those aboard the Mercedes filed claims against the wreck. On 22 December 2009, the District Judge dismissed Odyssey and Peru’s complaint for lack of subject matter jurisdiction and ordered Odyssey to return the artefacts to Spain. While the principles of international law upheld by the judge are not new, one may wonder whether customary norms of international law concerning the protection of sunken warships in the high seas are gradually crystallizing.This study shall proceed as follows. First, it will scrutinize the Black Swan case, by focussing on the identification of the vessel and issues of jurisdiction. Second, it shall explore the international legal framework which governs the recovery of sunken warships at the international law level. Third, issues of sovereign immunity and ownership will be addressed. Finally, some conclusions are put forward.

Economic Analysis of the Legal Regimes Governing Salvage of Historic Shipwrecks

This article offers an economic analysis of the international and U.S. laws governing the recovery of archaeological data from historic shipwrecks. The framework combines values of treasure salvage and archaeological knowledge. It is suggested that U.S. salvage law, sometimes extended to international waters, gives insufficient protection to archaeological value, but that UNESCO's Convention on the Protection of the Underwater Cultural Heritage goes too far in the other direction. Two other legal regimes (government-salvager and interstate agreements) are shown to have the potential to maximize the social values of historic shipwrecks. It is also suggested that a move towards maximizing social values would be promoted if the U.S. admiralty courts tied the size of salvage awards more closely to the quality of the archaeological work performed.

Salvage; Recent Developments in the Law of Salvage of the Marine Environment

Salvage; Recent Developments in the Law of Salvage of the Marine Environment

Historic Salvage Law Revisited

Litigation involving the R.M.S. Titanic highlights the critical need for a more stable legal regime to protect shipwrecks, their cargo, and other aspects of underwater cultural heritage. The general maritime law, as articulated by admiralty courts in the United States, has begun to qualify salvage awards in terms of compliance with archaeological standards. Salvage law, however, does not provide language and rules readily applicable to historic wreck and related material. We are, therefore, in a period of transition between a heavy reliance on the common law of "treasure" salvage and the development of a truly general, universal regime to govern underwater heritage. At the center of this development is the Draft UNESCO Convention on the Protection of the Underwater Heritage, based upon the Buenos Aires Draft Convention of the International Law Association. The emerging regime of conventional law provides authority, bases of jurisdiction and other forms of international cooperation, to enforce a set of rules for protection and scientific management of heritage. Critical issues await further negotiations, including the definition of protected heritage, an accommodation of commercial salvage interests within the prescribed conservation and management standards, the status of warships, and the terms of coastal state jurisdiction within the permissible limits of the 1982 UNCLOS.

Draft UNESCO Convention on the Protection of the Underwater Cultural I Heritage 1998

AbstractThis article considers certain issues relating to the draft UNESCO Convention on the Protection of the Underwater Cultural Heritage 1998. It is not intended to provide a comprehensive analysis of the draft, which is still only a working document, but the aim is (1) to give a very general introduction to the draft Convention; (2) to consider the relationship between the draft Convention and the UN Law of the Sea Convention 1982; (3) to assess the impact that the draft Convention would have on ownership rights in wrecks; (4) to examine whether the draft Convention should exclude warships and other State vessels from its scope; and (5) to analyse the relationship between the draft Convention and the law of salvage.

Salvage and the underwater cultural heritage

The Buenos Aires draft Convention on the Protection of the Underwater Cultural Heritage proposes in article 4 the exclusion of salvage law from the underwater cultural heritage. This echoes certain statutory provisions in the USA. However it is inconsistent with UNCLOS and the International Salvage Convention 1989. Archaeological information once destroyed is destroyed for ever. With the expansion of the technical means available to recover sunken artifacts, the need to preserve the underwater cultural heritage is urgent. But how is this best achieved? Application of principles applied in the American courts demanding the highest scientific standards in the salvage of historic wrecks and remains may point the way forward and obviate undesirable legislative delay.

The greening of salvage law

The AMOCO CADIZ disaster was the catalyst for several changes in salvage law that ultimately gave rise to the 1989 IMO International Convention on the International Law of Salvage. The author discusses the pressures that developed for reform and the environmental provisions of the changes that resulted.

Marine salvage law, supertankers and oil pollution: New pressures on ancient law

Marine salvage law, supertankers and oil pollution: New pressures on ancient law