Date of Award

2019

Document Type

Thesis

Degree Name

Doctor of Philosophy in Maritime Affairs

Specialization

Ph.D (Maritime Affairs)

Campus

Malmö, Sweden

Abstract

This dissertation primarily concerns the law and practice of salvage focusing on its environmental dimension which started to evolve since the Torrey Canyon disaster in 1967, which until that time, was the biggest oil spill in maritime history. In the contemporary era of shipping, a major part of salvorial operations has shifted from property preservation to environmental protection. This dissertation centers on the services provided by salvors to prevent or mitigate damage to the environment. This phenomenon is generally referred to as "environmental salvage" which, it is submitted, is an anomaly and a misnomer. It is therefore proposed that the term "environmental protection services" provided by salvors is a better and more appropriate description. The central purpose of this inquiry is to examine this phenomenon, identify the contentious issues involved, and seek a rational solution recognizing the legal and commercial implications. The discussion essentially embraces two maritime law subject matters, namely, the law of salvage including the customary salvage law and the International Convention on Salvage, 1989 and the private law of ship-source pollution. The roots of customary salvage law lie in a zone of confluence comprising the Roman law on the one hand and the principle of equity emanating from Chancery in English law, on the other. While traditional salvage law is steeped in antiquity, the marine environment was not much of a concern until the advent of oil tankers, and therefore until relatively recent times, there was no legal regime governing ship-source pollution. Law reform took place in the 1980s to encourage salvors to provide environmental protection services. This included the introduction of the so-called "safety net" in the Lloyd's Open Form (LOF) 1980 and subsequently, the special compensation regime provided in Article 14 of the Salvage Convention, 1989. The international salvage community was greatly dismayed and disenchanted with the decision of the House of Lords in the Nagasaki Spirit case in 1997. The apex court held that the term "fair rate" in respect of payments made for equipment and personal in Article 14.3 of the Convention did not include an element of profit. The upshot of that decision was the creation of the SCOPIC Clause as an optional addendum to the LOF to remunerate salvors on a tariff base for their environmental efforts. In recent times, salvors have expressed their dissatisfaction with the extant scheme of remuneration including Article 14 and SCOPIC and have proposed that a separate "environmental award" be established in the Convention. Shipowners, together with their liability insurers the P&I Clubs, are staunchly opposed to this proposal and are of the view that the status quo should be maintained. This has led to an undesirable impasse. The debate rages on and there is little sign of any compromise being reached between the two camps. In practical terms, the issue of indemnifiability of charges incurred for environmental protection services is not to be ignored. In that context, it would seem that liability insurers have the upper hand since they are the ones who indemnify the shipowners for such charges and therefore have the final say on the feasibility of the proposal made by salvors. The main object of this research endeavour is to seek an alternative solution to ameliorate the conflict between the extreme positions adopted by the two opposing camps for the benefit of the shipping industry as a whole. In ship-source pollution incidents, salvors are invariably the first and most important responders. In the course of providing environmental protection services, they are vulnerable to being subjected to pollution liability. Inspired by the United States Oil Pollution Act 1990, and the proceedings and outcomes relating to the Deepwater Horizon incident, it is proposed that the concept of responder immunity be put forward as a possible compromise solution to break the current deadlock. It may serve as an incentive to salvors and persuade them to withdraw their demand for a separate environmental award. In articulating that proposal, the author examines the channeling provisions in the Civil Liability and HNS Conventions which purport to protect salvors, among other responders, from liability suits initiated by third-parties. It is submitted that salvors do not actually enjoy any responder immunity under those provisions because under the conventions, shipowners can bring recourse actions against them. In conclusion, it is proposed that the international community consider following the national legislative models in jurisdictions such as the United States and the United Kingdom which exemplify how these conventions should be implemented to provide responder immunity to salvors and thus resolve the contentious issues between the two camps. In this endeavour, the International Maritime Organization (IMO) can adopt a more robust approach to responder immunity which will inure to the benefit of all parties concerned. No doubt, international shipping as a whole will be placed on a better footing with regard to provision of environmental protection services by salvors.

Comments

ISBN: 978-91-985700-2-1

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