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Mission Statement
BoatingWA is a non profit
association, established for the promotion and development of safe, economic and
enjoyable recreational boating through Western Australia.
BoatingWA
PO Box 692
South Fremantle 6162
Western Australia
FAX and Voice
08 93353296
e-mail;
secretary@boatingwa.com.au
Office
1 Capo D'Orlando Drive
Fremantle, Western Australia, 6160
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Small
Vessel Salvage Arbitration
USA
U.S.A. OPEN FORM SALVAGE AGREEMENT
INTERNATIONAL CONVENTION ON SALVAGE, 1989
USA
Convention
for the Unification of Certain Rules of Law respecting Assistance and
Salvagee at Sea
The
International Convention On Salvage, IMO 1989
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Small Vessel Salvage Arbitration
RULES FOR RECREATIONAL AND
SMALL VESSEL SALVAGE ARBITRATION FOREWORD Until recently, U.S. yacht
owners faced with a salvage situation under a Lloyd's Open Form (No
Cure-No Pay) Salvage Agreement found they were bound to arbitrate any
disputes in London under English law. The 1992 Federal District Court
decision in Brier v. Northstar Marine. and other cases following it,
have changed this. They signal a distinct trend by our courts away from
enforcing the London arbitration provision of the LOF in cases involving
recreational and other small vessels,where the casualty occurs in U.S.
waters and involves American interests only. This has created a need for
an effective arbitral forum to resolve such disputes domestically. These
Rules, and the suggested Model Arbitration Clause accompanying them have
been designed to provide a speedy, efficient and economical U.S. forum
for resolving such disputes.
RECREATIONAL AND SMALL VESSEL
SALVAGE ARBITRATION MODEL CLAUSE "Any dispute arising out of this
Agreement shall be referred to arbitration in the U.S. under the Rules
for Recreational and Small Vessel Salvage Arbitration of the Society of
Maritime Arbitrators, Inc. Arbitrators shall be commercial persons
familiar with maritime salvage. Any award made hereunder shall be final
and binding,and for the purpose of enforcement may be entered for
judgment in any Court of competent jurisdiction. "
RECREATIONAL AND SMALL
VESSEL SALVAGE ARBITRATION RULES
I. Qualifications of Arbitrators The Society of Maritime Arbitrators,
Inc. (SMA) shall maintain a list of arbitrators among its membership who
are familiar with maritime salvage. Copies of the resumes of those
arbitrators shall be made available upon request to parties seeking to
appoint arbitrators in salvage cases.
II. Appointment of Arbitrator(s)
(a) Upon a demand for arbitration by either side, the parties shall
choose a sole arbitrator by agreement. However, if the parties are
unable to agree upon a sole arbitrator within 15 days after the demand
for arbitration, each is then to submit the names of three acceptable
arbitrators from the SMA list to the President of the SMA, who shall
select by random process one of the six names so submitted.
Notwithstanding the foregoing, the parties may agree upon a tripartite
panel of arbitrators. In such case each shall choose an arbitrator, and
the two so chosen shall choose a third who shall also chair the panel
for administrative and procedural purposes. In the event they cannot
agree on a third within 15 days, the two party-appointed arbitrators
shall request the President of the SMA to appoint one at random from the
SMA list of salvage arbitrators.
(b) `In the event there is more than one salver involved in the dispute
( excluding subcontractors ), and all of the salvage agreements
incorporate these Rules, the disputes shall be consolidated before a
sole arbitrator unless all parties have agreed upon a tripartite panel.
In either case, all of the salvers shall be considered one party for the
purposes of this section and the appointment of arbitrators shall be
governed by the provisions of subparagraph (a) above.
III. Failure to Respond Should the respondent fail to respond within 15
days hum the demand for arbitration, the arbitrator named by the
claimant shall serve as the sole arbitrator, with the same authority as
if agreed between the parties.
IV. Submission of Evidence, Hearing
(a) Within 15 days from the date of appointment, or completion of the
panel, the arbitrator(s) shall establish a schedule for the submission
of documentary evidence.
(b) In order to minimize the costs of the arbitration the parties shall
submit their positions in writing for decision by the arbitrator(s). The
submissions should include documentary evidence to support their
positions ( such as, but not limited to salvage reports, valuations,
insurance certificates, photographs, survey reports, repair estimates
and receipts, etc.), and such sworn testimony by affidavit as is
relevant to the issues.
(c) Upon request by either party within 15 days after written
submissions have been made, a single hearing will be convened for the
purpose of oral argument by the parties and/or their counsel to
supplement the written presentations. No witnesses other than the
parties themselves will be heard, and unless mutually agreed and
arranged by the parties, no transcript of the hearing shall be taken.
The hearing shall be held at any location agreed upon by the parties and
the arbitrator(s).
(d) At the sole discretion of the arbitrator(s), each side may be
permitted one postponement for good cause shown, the duration of which
shall be determined by the arbitrator(s) depending on the
circumstances.
(e) Within 15 days after the hearing, or 15 days after the submission of
documents if no hearing has been held, both parties may submit final
written argument to summarize their positions, following which the
proceeding shall be closed.
(f) The arbitrator(s) shall at all times have the sole discretion to
modify the procedure set forth in this section if warranted by special
circumstances.
V. Award
(a) The arbitrator(s) shall issue a written award within 30 days after
the proceeding has been closed, which shall set forth the arbitrator(s)
findings of bet and decision clearly and concisely. Failure to issue the
award within 30 days, however, shall not constitute grounds for appeal
or vacatur of the award. The award may be published by the SMA.
(b) In a tripartite proceeding. the decision of any two arbitrators
shall be final and binding. In such case, the award will include the
dissenting arbitrator's opinion.
(c) The arbitrator(s) shall have the discretion to assess costs,
including attorneys' fees and the fees and expenses of the
arbitrator(s), in whole or in part against either party.
VI. Limited Appeal of Award
(a) If, and only if, the dispute is before a sole arbitrator, the
decision of the arbitrator may be appealed. In the event the parties
cannot agree upon an arbitrator to hear the appeal, the appellants) may,
within 15 days after issuance of the original award, make a written
request to the President of the SMA to appoint one. Upon receipt of such
request, the President of the SMA shall choose an arbitrator at random
from the SMA list of salvage arbitrators.
(b) The appeal arbitrator shall review the original decision. His review
shall be limited to clear error, and he shall either affirm or modify
the award on this basis alone. His decision shall be issued within 15
days after his receipt of the award and evidence relevant to the appeal,
and shall be absolutely final and binding upon the parties.
VII. Arbitrator(s) Feels) and Expenses
(a) A sole arbitrator's fee shall not exceed $1,000. In a tripartite
proceeding, the fee of each arbitrator shall not exceed $750, except
that the chairman shall be entitled to an additional compensation of
$250. These fees are based upon submissions made pursuant to IV(b) and
(e). In addition, the arbitrator(s) shall be entitled to reimbursement
for the expenses of the arbitration, including telephone and facsimile
charges, photocopying, postage, etc. at cost. Alternatively, the
arbitrator(s) may charge $100 in lieu of an account of such
expenses.
(b) Pursuant to IV(c) the fee for a hearing shall be $300 per
arbitrator.
(c) An appeal arbitrator shall be entitled to a fee not to exceed
$500.
VIII. Security for Arbitrator(s) Feels) and Expenses At any time prior
to issuance of the award the arbitrator(s) may require each party to
post security for 100% of the estimated arbitrator(s) feels) and
expenses. Upon such demand each side shall promptly post the required
amount in the Escrow Account of the SMA, or in any other manner
acceptable to the arbitrator(s).
IX. Application of Rules Except as hereinbefore provided, the Maritime
Arbitration Rules of the Society of Maritime Arbitrators, Inc. in effect
at the time the arbitration is commenced shall otherwise apply to any
proceeding hereunder.
The Society of Maritime
Arbitrators, Inc.
U.S. OPEN FORM SALVAGE AGREEMENT
Codename -- MARSALV®
This SALVAGE AGREEMENT ("The Agreement"),
between _____________________________, Master/Operator/ Owner/Underwriter of the
vessel ______________________________ ("The Vessel") and
__________________________("The Salvor"), is for salvage services to
be rendered to the Vessel and her cargo and/or other property currently lying at
or near _______________________, under the following terms and conditions:
FIRST: The Salvor shall use his best endeavours to
salve the Vessel and her cargo and/or other property and deliver same safely
afloat, hauled or on dry-dock at or near ___________________, at which place and
time the Salvor's services will terminate unless otherwise mutually agreed.
SECOND: The Master/Operator and crew of the Vessel
agree to lend their aid and assistance to the Salvor, who shall be entitled,
free of expense, to the reasonable use of the Vessel's equipment.
THIRD: The Salvor's services are to be performed on the
following basis (check and initial one):
[_] No Cure-No Pay (Compensation
to be conditioned upon successful salvage of the Vessel and/or her cargo
and/or other property. In such case, the Salvor's compensation shall be
pursuant to the criteria and other provisions of Article 13 of the 1989
International Convention on Salvage shown on the reverse of this Agreement).
[_] No Cure-No Pay, Fixed Fee $__________________
[_] Per Diem/Hourly at $_____________ per day/hour pro rata
[_] Other ______________________________________________________________
______________________________________________________________________
FOURTH: Notwithstanding the election(s) made in
Paragraph THIRD, the Salvor shall in any event be entitled to compensation for
actions taken by the Salvor to prevent or minimize damage to the environment, in
accordance with Articles 13 and 14 of the 1989 International Convention on
Salvage shown on the reverse of this Agreement.
FIFTH: The Salvor shall have a lien upon the Vessel,
her cargo and/or other property for services rendered pursuant to Paragraphs
THIRD and FOURTH, and may demand reasonable security for such services from her
Master, Owner, Operator or Underwriters as a condition for releasing same.
SIXTH: This Agreement shall be governed by and
construed in accordance with the Federal Maritime Law of the United States. Any
dispute arising out of this Agreement shall be referred to arbitration as
follows:
(1) Disputes involving the salvage of vessels in commerce
shall be resolved by arbitration in New York under the Maritime Arbitration
Rules of the Society of Maritime Arbitrators, Inc.
(2) Disputes involving the salvage of yachts and other
recreational vessels shall be resolved in the United States under the Rules for
Recreational and Small Vessel Salvage Arbitration of the Society of Maritime
Arbitrators, Inc. The Arbitrator(s) shall be familiar with maritime salvage, and
shall be empowered to resolve any differences as to the application of
sub-paragraphs (1) or (2) above. Any award made hereunder may include attorney's
fees and costs, and shall be final and binding. For the purpose of enforcement
the Award may be entered for
judgment in any court of competent jurisdiction.
| Dated this ____ day of
_______________, 19___ |
| For: SALVOR |
|
For: VESSEL, CARGO and/or PROPERTY |
_______________________________
(authorized signature) |
|
________________________________
(authorized signature) |
_______________________________
(print name and title) |
|
________________________________
(print name and title) |
INSTRUCTIONS: Print out the above form in three colours:
White: Salvor; Blue; Master/Owner; Pink; Underwriter
INTERNATIONAL CONVENTION ON SALVAGE, 1989
Article 13
Criteria for Fixing the Reward
1. 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 incurred 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.
2. Payment of a reward fixed according to paragraph 1 shall be
made by all of the vessel and other property interests in proportion to their
respective salved values. However, a State Party may in its national law provide
that the payment of a reward has to be made by one of these interests, subject
to a right of recourse of this interest against the other interests for their
respective shares. Nothing in this article shall prevent any right of defence.
3. The rewards, exclusive of any interest and recoverable
legal costs that may be payable thereon, shall not exceed the salved value of
the vessel and other property.
Article 14
Special Compensation
1. If the salvor has carried out salvage operations in respect
of a vessel which by itself or its cargo threatened damage to the environment
and has failed to earn a reward under article 13 at least equivalent to the
special compensation assessable in accordance with this article, he shall be
entitled to special compensation from the owner of that vessel equivalent to his
expenses as herein defined.
2. If, in the circumstances set out in paragraph 1, the salvor
by his salvage operations has prevented or minimized damage to the environment,
the special compensation payable by the owner to the salvor under paragraph 1
may be increased up to a maximum of 30% of the expenses incurred by the salvor.
However, the tribunal, if it deems it fair and just to do so and bearing in mind
the relevant criteria set out in article 13, paragraph 1, 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.
3. Salvor's expenses for the purpose of paragraphs 1 and 2
means the out-of-pocket expenses reasonably incurred by the salvor in the
salvage operation and a fair rate for equipment and personnel actually and
reasonably used in the salvage operation, taking into consideration the criteria
set out in article 13, paragraph 1(h), (i) and (j).
4. The total special compensation under this article shall be
paid only if and to the extent that such compensation is greater than any reward
recoverable by the salvor under article 13.
5. 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.
6. Nothing in this article shall affect any right of recourse
on the part of the owner of the vessel.
© 1996 Society of Maritime Arbitrators, Inc.
Convention
for the Unification of Certain Rules of Law respecting Assistance and Salvage at
Sea
(Brussels, 23 September 1910)
His Majesty the King of the United
Kingdom of Great Britain and Ireland and of the British Dominions beyond the
Seas, Emperor of India; His Majesty the German Emperor, King of Prussia, in the
name of the German Empire; the President of the Argentine Republic; His Majesty
the Emperor of Austria, King of Bohemia, etc, and Apostolic King of Hungary, for
Austria and Hungary; His Majesty the King of the Belgians; the President of the
United States of Brazil; the President of the Republic of Chile; the President
of the Republic of Cuba; His Majesty the King of Denmark; His Majesty the King
of Spain; the President of the United States of America; the President of the
French Republic; His Majesty the King of the Hellenes; His Majesty the King of
Italy; His Majesty the Emperor of Japan; the President of the United States of
Mexico; the President of the Republic of Nicaragua; His Majesty the King of
Norway, Her Majesty the Queen of the Netherlands; His Majesty the King of
Portugal and the Algarves; His Majesty the King of Roumania; His Majesty the
Emperor of All the Russias; His Majesty the King of Sweden; the President of the
Republic of Uruguay;
HAVING RECOGNISED
the desirability of determining by agreement certain uniform rules of law
respecting assistance and salvage at sea, have decided to conclude a Convention
to that end, and have appointed as their plenipotentiaries, that is to say:
Who, having been duly authorised to
that effect, have agreed as follows:
Article 1
Assistance and salvage of seagoing
vessels in danger, of any things on board, of freight and passage money, and
also services of the same nature rendered by sea-going vessels to vessels of
inland navigation or vice versa, are subject to the following provisions,
without any distinction being drawn between these two kinds of service [viz,
assistance and salvage], and in whatever waters the services have been rendered.
Article 2
Every act of assistance or salvage of
which has had a useful result gives a right to equitable remuneration.
No remuneration is due if the services
rendered have no beneficial result.
In no case shall the sum to be paid
exceed the value of the property salved.
Article 3
Persons who have taken part in salvage
operations notwithstanding the express and reasonable prohibition on the part of
the vessel to which the services were rendered, have no right to any
remuneration.
Article 4
A tug has no right to remuneration for
assistance to or salvage of the vessel she is towing or of the vessel's cargo,
except where she has rendered exceptional services which cannot be considered as
rendered in fulfilment of the contract of towage.
Article 5
Remuneration is due notwithstanding
that the salvage services have been rendered by or to vessels belonging to the
same owner.
Article 6
The amount of remuneration is fixed by
agreement between the parties, and, failing agreement, by the court.
The proportion in which the
remuneration is to be distributed amongst the salvors is fixed in the same
manner.
The apportionment of the remuneration
amongst the owner, master and other persons in the service of each salving
vessel shall be determined by the law of the vessel's flag.
Article 7
Every agreement as to assistance or
salvage entered into at the moment and under the influence of danger may, at the
request of either party, be annulled or modified by the court, if it considers
that the conditions agreed upon are not equitable.
In all cases, when it is proved that
the consent of one of the parties is vitiated by fraud or concealment, or when
the remuneration is, in proportion to the services rendered, in an excessive
degree too large or too small, the agreement may be annulled or modified by the
court at the request of the party affected.
Article 8
The remuneration is fixed by the court
according to the circumstances of each case, on the basis of the following
considerations: (a) firstly, the measure of success obtained, the efforts and
deserts of the salvors, the danger run by the salved vessel, by her passengers,
crew and cargo, by the salvors, and by the salving vessel; the time expended,
the expenses incurred and losses suffered, and the risks of liability and other
risks run by the salvors, and also the value of the property exposed to such
risks, due regard being had to the special appropriation (if any) of the
salvors' vessel for salvage purposes; (b) secondly, the value of the property
salved.
The same considerations apply for the
purpose of fixing the apportionment provided for by the second paragraph of
Article 6.
The court may deprive the salvors of
all remuneration, or may award a reduced remuneration, if it appears that the
salvors have by their fault rendered the salvage or assistance necessary or have
been guilty of theft, fraudulent concealment, or other acts of fraud.
Article 9
No remuneration is due from persons
whose lives are saved, but nothing in this Article shall affect the provisions
of the national laws on this subject.
Salvors of human life, who have taken
part in the services rendered on the occasion of the accident giving rise to
salvage or assistance, are entitled to a fair share of the remuneration awarded
to the salvors of the vessel, her cargo, and accessories.
Article 10
A salvage action is barred after an
interval of two years from the day on which the operations of assistance or
salvage terminate.
The grounds upon which the said period
of limitation may be suspended or interrupted are determined by the law of the
court where the case is tried.
The High Contracting Parties reserve to
themselves the right to provide, by legislation in their respective countries,
that the said period shall be extended in cases where it has not been possible
to arrest the vessel assisted or salved in the territorial waters of the State
in which the plaintiff has his domicile or principal place of business.
Article 11
Every master is bound, so far as he can
do so without serious danger to his vessel, her crew and her passengers, to
render assistance to everybody, even though an enemy, found at sea in danger of
being lost.
The owner of a vessel incurs no
liability by reason of contravention of the above provision.
Article 12
The High Contracting Parties, whose
legislation does not forbid infringements of the preceding Article, bind
themselves to take or to propose to their respective legislatures the measures
necessary for the prevention of such infringements.
The High Contracting Parties will
communicate to one another as soon as possible the laws or regulations which
have already been or may be hereafter promulgated in their States for giving
effect to the above provision.
Article 13
This Convention does not affect the
provisions of national laws or international treaties as regards the
organisation of services of assistance and salvage by or under the control of
public authorities, nor, in particular, does it affect such laws or treaties on
the subject of the salvage of fishing gear.
Article 14
This Convention does not apply to ships
of war or to Government ships appropriated exclusively to a public service.
Article 15
The provisions of this Convention shall
be applied as regards all persons interested when either the assisting or
salving vessel or the vessel assisted or salved belongs to a State of the High
Contracting Parties, as well as in any other cases for which the national laws
provide.
Provided always that:
1. As regards persons interested who
belong to a non-contracting State the application of the above provisions may be
made by each of the contracting States conditional upon reciprocity.
2. Where all the persons interested
belong to the same State as the court trying the case, the provisions of the
national law and not of the Convention are applicable.
3. Without prejudice to any wider
provisions of any national laws, Article 11 only applies as between vessels
belonging to the States of the High Contracting Parties.
Article 16
Any one of the High Contracting Parties
shall have the right, three years after this Convention comes into force, to
call for a fresh conference with a view to possible amendments, and particularly
with a view to extend, if possible, the sphere of its application.
Any Power exercising this right must
notify its intention to the other Powers, through the Belgian Government, which
will make arrangements for convening the conference within six months.
Article 17
States which have not signed the
present Convention are allowed to accede to it at their request. Such accession
shall be notified through the diplomatic channel to the Belgian Government, and
by the latter to each of the Governments of the other Contracting Parties; it
shall become effective one month after the despatch of such notification by the
Belgian Government.
Article 18
The present Convention shall be
ratified.
After an interval of at most one year
from the date on which the Convention is signed, the Belgian Government shall
place itself in communication with the Governments of the High Contracting
Parties which have declared themselves prepared to ratify the Convention, with a
view to decide whether it should be put into force.
The ratifications shall, if so decided,
be deposited forthwith at Brussels, and the Convention shall come into force a
month after such deposit.
The Protocol shall remain open another
year in favour of the States represented at the Brussels Conference. After this
interval they can only accede to it in conformity with the provisions of Article
17.
Article 19
In the case of one or other of the High
Contracting Parties denouncing this Convention, such denunciation shall not take
effect until a year after the day on which it has been notified to the Belgian
Government, and the Convention shall remain in force as between the other
contracting Parties.
IN WITNESS WHEREOF,
the plenipotentiaries of the respective High Contracting Parties have signed
this Convention and have affixed thereto their seals.
DONE
at Brussels, in a single copy, September 23rd, 1910
| International Maritime
Organisation |
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The
International Convention On Salvage, IMO 1989
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{ 1 } |
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THE
STATES PARTIES TO THE PRESENT CONVENTION
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{ 2 } |
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RECOGNIZING
the desirability of determining by agreement uniform international
rules regarding salvage operations,
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{ 3 } |
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NOTING
that substantial developments, in particular the increased concern for
the protection of the environment, have demonstrated the need to
review the international rules presently contained in the Convention
for the Unification of Certain Rules of Law relating to Assistance and
Salvage at Sea, done at Brussels, 23 September 1910,
|
{ 4 } |
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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,
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{ 5 } |
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CONVINCED
of the need to ensure that adequate incentives are available to
persons who undertake salvage operations in respect of vessels and
other property in danger,
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{ 6 } |
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HAVE
AGREED as follows:
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{ 7 } |
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Chapter I - General provisions
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{ 8 } |
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Article 1 - Definitions
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{ 9 } |
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For
the purpose of this Convention:
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{ 10 } |
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(a)
Salvage operation means any act or activity undertaken to assist a
vessel or any other property in danger in navigable waters or in any
other waters whatsoever.
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{ 11 } |
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(b)
Vessel means any ship or craft, or any structure capable of
navigation.
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{ 12 } |
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(c)
Property means any property not permanently and intentionally attached
to the shoreline and includes freight at risk.
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{ 13 } |
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(d)
Damage to the environment means 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.
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{ 14 } |
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(e)
Payment means any reward, remuneration or compensation due under this
Convention.
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{ 15 } |
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(f)
Organization means the International Maritime Organization.
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{ 16 } |
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(g)
Secretary-General means the Secretary-General of the Organization.
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{ 17 } |
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Article 2 - Application of the
Convention
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{ 18 } |
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This
Convention shall apply whenever judicial or arbitral proceedings
relating to matters dealt with in this Convention are brought in a
State Party.
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{ 19 } |
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Article 3 - Platforms and
drilling units
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{ 20 } |
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This
Convention shall not apply to fixed or floating platforms or to mobile
offshore drilling units when such platforms or units are on location
engaged in the exploration, exploitation or production of sea-bed
mineral resources.
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{ 21 } |
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Article 4 - State-owned vessels
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{ 22 } |
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1.
Without prejudice to article 5, this Convention shall not apply to
warships or other non-commercial vessels owned or operated by a State
and entitled, at the time of salvage operations, to sovereign immunity
under generally recognized principles of international law unless that
State decides otherwise.
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{ 23 } |
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2.
Where a State Party decides to apply the Convention to its warships or
other vessels described in paragraph 1, it shall notify the
Secretary-General thereof specifying the terms and conditions of such
application.
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{ 24 } |
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Article 5 - Salvage operations
controlled by public authorities
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{ 25 } |
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1.
This Convention shall not affect any provisions of national law or any
international convention relating to salvage operations by or under
the control of public authorities.
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{ 26 } |
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2.
Nevertheless, salvors carrying out such salvage operations shall be
entitled to avail themselves of the rights and remedies provided for
in this Convention in respect of salvage operations.
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{ 27 } |
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3.
The extent to which a public authority under a duty to perform salvage
operations may avail itself of the rights and remedies provided for in
this Convention shall be determined by the law of the State where such
authority is situated.
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{ 28 } |
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Article 6 - Salvage contracts
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{ 29 } |
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1.
This Convention shall apply to any salvage operations save to the
extent that a contract otherwise provides expressly or by implication.
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{ 30 } |
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2.
The master shall have the authority to conclude contracts for salvage
operations on behalf of the owner of the vessel. The master or the
owner of the vessel shall have the authority to conclude such
contracts on behalf of the owner of the property on board the vessel.
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{ 31 } |
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3.
Nothing in this article shall affect the application of article 7 nor
duties to prevent or minimize damage to the environment.
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{ 32 } |
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Article 7 - Annulment and
modification of contracts
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{ 33 } |
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A
contract or any terms thereof may be annulled or modified if:
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{ 34 } |
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(a)
the contract has been entered into under undue influence or the
influence of danger and its terms are inequitable; or
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{ 35 } |
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(b)
the payment under the contract is in an excessive degree too large or
too small for the services actually rendered.
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{ 36 } |
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Chapter II - Performance of salvage operations
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{ 37 } |
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Article 8 - Duties of the salvor
and of the owner and master
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{ 38 } |
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1.
The salvor shall owe a duty to the owner of the vessel or other
property in danger:
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{ 39 } |
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(a)
to carry out the salvage operations with due care;
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{ 40 } |
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(b)
in performing the duty specified in subparagraph (a), to exercise due
care to prevent or minimize damage to the environment;
|
{ 41 } |
| |
(c)
whenever circumstances reasonably require, to seek assistance from
other salvors; and
|
{ 42 } |
| |
(d)
to accept the intervention of other salvors when reasonably requested
to do so by the owner or master of the vessel or other property in
danger; provided however that the amount of his reward shall not be
prejudiced should it be found that such a request was unreasonable.
|
{ 43 } |
| |
2.
The owner and master of the vessel or the owner of other property in
danger shall owe a duty to the salvor:
|
{ 44 } |
| |
(a)
to co-operate fully with him during the course of the salvage
operations;
|
{ 45 } |
| |
(b)
in so doing, to exercise due care to prevent or minimize damage to the
environment; and
|
{ 46 } |
| |
(c)
when the vessel or other property has been brought to a place of
safety, to accept redelivery when reasonably requested by the salvor
to do so.
|
{ 47 } |
| |
Article 9 - Rights of coastal
States
|
{ 48 } |
| |
Nothing
in this Convention shall affect the right of the coastal State
concerned to take measures in accordance with generally recognized
principles of international law to protect its coastline or related
interests from pollution or the threat of pollution following upon a
maritime casualty or acts relating to such a casualty which may
reasonably be expected to result in major harmful consequences,
including the right of a coastal State to give directions in relation
to salvage operations.
|
{ 49 } |
| |
Article 10 - Duty to render
assistance
|
{ 50 } |
| |
1.
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.
|
{ 51 } |
| |
2.
The States Parties shall adopt the measures necessary to enforce the
duty set out in paragraph 1.
|
{ 52 } |
| |
3.
The owner of the vessel shall incur no liability for a breach of the
duty of the master under paragraph 1.
|
{ 53 } |
| |
Article 11 - Co-operation
|
{ 54 } |
| |
A
State Party shall, whenever regulating or deciding upon matters
relating to salvage operations such as admittance to ports of vessels
in distress or the provision of facilities to salvors, take into
account the need for co-operation between salvors, other interested
parties and public authorities in order to ensure the efficient and
successful performance of salvage operations for the purpose of saving
life or property in danger as well as preventing damage to the
environment in general.
|
{ 55 } |
| |
Chapter III - Rights of salvors
|
{ 56 } |
| |
Article 12 - Conditions for
reward
|
{ 57 } |
| |
1.
Salvage operations which have had a useful result give right to a
reward.
|
{ 58 } |
| |
2.
Except as otherwise provided, no payment is due under this Convention
if the salvage operations have had no useful result.
|
{ 59 } |
| |
3.
This chapter shall apply, notwithstanding that the salved vessel and
the vessel undertaking the salvage operations belong to the same
owner.
|
{ 60 } |
| |
Article 13 - Criteria for fixing
the reward
|
{ 61 } |
| |
1.
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:
|
{ 62 } |
| |
(a)
the salved value of the vessel and other property;
|
{ 63 } |
| |
(b)
the skill and efforts of the salvors in preventing or minimizing
damage to the environment;
|
{ 64 } |
| |
(c)
the measure of success obtained by the salvor;
|
{ 65 } |
| |
(d)
the nature and degree of the danger;
|
{ 66 } |
| |
(e)
the skill and efforts of the salvors in salving the vessel, other
property and life;
|
{ 67 } |
| |
(f)
the time used and expenses and losses incurred by the salvors;
|
{ 68 } |
| |
(g)
the risk of liability and other risks run by the salvors or their
equipment;
|
{ 69 } |
| |
(h)
the promptness of the services rendered;
|
{ 70 } |
| |
(i)
the availability and use of vessels or other equipment intended for
salvage operations;
|
{ 71 } |
| |
(j)
the state of readiness and efficiency of the salvor's equipment and
the value thereof.
|
{ 72 } |
| |
2.
Payment of a reward fixed according to paragraph 1 shall be made by
all of the vessel and other property interests in proportion to their
respective salved values. However, a State Party may in its national
law provide that the payment of a reward has to be made by one of
these interests, subject to a right of recourse of this interest
against the other interests for their respective shares. Nothing in
this article shall prevent any right of defence.
|
{ 73 } |
| |
3.
The rewards, exclusive of any interest and recoverable legal costs
that may be payable thereon, shall not exceed the salved value of the
vessel and other property.
|
{ 74 } |
| |
Article 14 - Special
compensation
|
{ 75 } |
| |
1.
If the salvor has carried out salvage operations in respect of a
vessel which by itself or its cargo threatened damage to the
environment and has failed to earn a reward under article 13 at least
equivalent to the special compensation assessable in accordance with
this article, he shall be entitled to special compensation from the
owner of that vessel equivalent to his expenses as herein defined.
|
{ 76 } |
| |
2.
If, in the circumstances set out in paragraph 1, the salvor by his
salvage operations has prevented or minimized damage to the
environment, the special compensation payable by the owner to the
salvor under paragraph 1 may be increased up to a maximum of 30% of
the expenses incurred by the salvor. However, the tribunal, if it
deems it fair and just to do so and bearing in mind the relevant
criteria set out in article 13, paragraph 1, 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.
|
{ 77 } |
| |
3.
Salvor's expenses for the purpose of paragraphs 1 and 2 means the
out-of-pocket expenses reasonably incurred by the salvor in the
salvage operation and a fair rate for equipment and personnel actually
and reasonably used in the salvage operation, taking into
consideration the criteria set out in article 13, paragraph 1 (h), (i)
and (j).
|
{ 78 } |
| |
4.
The total special compensation under this article shall be paid only
if and to the extent that such compensation is greater than any reward
recoverable by the salvor under article 13.
|
{ 79 } |
| |
5.
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.
|
{ 80 } |
| |
6.
Nothing in this article shall affect any right of recourse on the part
of the owner of the vessel.
|
{ 81 } |
| |
Article 15 - Apportionment
between salvors
|
{ 82 } |
| |
1.
The apportionment of a reward under article 13 between salvors shall
be made on the basis of the criteria contained in that article.
|
{ 83 } |
| |
2.
The apportionment between the owner, master and other persons in the
service of each salving vessel shall be determined by the law of the
flag of that vessel. If the salvage has not been carried out from a
vessel, the apportionment shall be determined by the law governing the
contract between the salvor and his servants.
|
{ 84 } |
| |
Article 16 - Salvage of persons
|
{ 85 } |
| |
1.
No remuneration is due from persons whose lives are saved, but nothing
in this article shall affect the provisions of national law on this
subject.
|
{ 86 } |
| |
2.
A salvor of human life, who has taken part in the services rendered on
the occasion of the accident giving rise to salvage, is entitled to a
fair share of the payment awarded to the salvor for salving the vessel
or other property or preventing or minimizing damage to the
environment.
|
{ 87 } |
| |
Article 17 - Services rendered
under existing contracts
|
{ 88 } |
| |
No
payment is due under the provisions of this Convention unless the
services rendered exceed what can be reasonably considered as due
performance of a contract entered into before the danger arose.
|
{ 89 } |
| |
Article 18 - The effect of
salvor's misconduct
|
{ 90 } |
| |
A
salvor may be deprived of the whole or part of the payment due under
this Convention to the extent that the salvage operations have become
necessary or more difficult because of fault or neglect on his part or
if the salvor has been guilty of fraud or other dishonest conduct.
|
{ 91 } |
| |
Article 19 - Prohibition of
salvage operations
|
{ 92 } |
| |
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
|
{ 93 } |
| |
Chapter IV - Claims and actions
|
{ 94 } |
| |
Article 20 - Maritime lien
|
{ 95 } |
| |
1.
Nothing in this Convention shall affect the salvor's maritime lien
under any international convention or national law.
|
{ 96 } |
| |
2.
The salvor may not enforce his maritime lien when satisfactory
security for his claim, including interest and costs, has been duly
tendered or provided.
|
{ 97 } |
| |
Article 21 - Duty to provide
security
|
{ 98 } |
| |
1.
Upon the request of the salvor a person liable for a payment due under
this Convention shall provide satisfactory security for the claim,
including interest and costs of the salvor.
|
{ 99 } |
| |
2.
Without prejudice to paragraph 1, the owner of the salved vessel shall
use his best endeavours to ensure that the owners of the cargo provide
satisfactory security for the claims against them including interest
and costs before the cargo is released.
|
{ 100 } |
| |
3.
The salved vessel and other property shall not, without the consent of
the salvor, be removed from the port or place at which they first
arrive after the completion of the salvage operations until
satisfactory security has been put up for the salvor's claim against
the relevant vessel or property.
|
{ 101 } |
| |
Article 22 - Interim payment
|
{ 102 } |
| |
1.
The tribunal having jurisdiction over the claim of the salvor may, by
interim decision, order that the salvor shall be paid on account such
amount as seems fair and just, and on such terms including terms as to
security where appropriate, as may be fair and just according to the
circumstances of the case.
|
{ 103 } |
| |
2.
In the event of an interim payment under this article the security
provided under article 21 shall be reduced accordingly.
|
{ 104 } |
| |
Article 23 - Limitation of
actions
|
{ 105 } |
| |
1.
Any action relating to payment under this Convention shall be
time-barred if judicial or arbitral proceedings have not been
instituted within a period of two years. The limitation period
commences on the day on which the salvage operations are terminated.
|
{ 106 } |
| |
2.
The person against whom a claim is made may at any time during the
running of the limitation period extend that period by a declaration
to the claimant. This period may in the like manner be further
extended.
|
{ 107 } |
| |
3.
An action for indemnity by a person liable may be instituted even
after the expiration of the limitation period provided for in the
preceding paragraphs, if brought within the time allowed by the law of
the State where proceedings are instituted.
|
{ 108 } |
| |
Article 24 - Interest
|
{ 109 } |
| |
The
right of the salvor to interest on any payment due under this
Convention shall be determined according to the law of the State in
which the tribunal seized of the case is situated.
|
{ 110 } |
| |
Article 25 - State-owned
cargoes
|
{ 111 } |
| |
Unless
the State owner consents, no provision of this Convention shall be
used as a basis for the seizure, arrest or detention by any legal
process of, nor for any proceedings in rem against, non-commercial
cargoes owned by a State and entitled, at the time of the salvage
operations, to sovereign immunity under generally recognized
principles of international law.
|
{ 112 } |
| |
Article 26 - Humanitarian
cargoes
|
{ 113 } |
| |
No
provision of this Convention shall be used as a basis for the seizure,
arrest or detention of humanitarian cargoes donated by a State, if
such State has agreed to pay for salvage services rendered in respect
of such humanitarian cargoes.
|
{ 114 } |
| |
Article 27 - Publication of
arbitral awards
|
{ 115 } |
| |
States
Parties shall encourage, as far as possible and with the consent of
the parties, the publication of arbitral awards made in salvage cases.
|
{ 116 } |
| |
Chapter V - Final clauses
|
{ 117 } |
| |
Article 28 - Signature,
ratification, acceptance approval and accession
|
{ 118 } |
| |
1.
This Convention shall be open for signature at the Headquarters of the
Organization from 1 July 1989 to 30 June 1990 and shall thereafter
remain open for accession.
|
{ 119 } |
| |
2.
States may express their consent to be bound by this Convention by:
|
{ 120 } |
| |
(a)
signature without reservation as to ratification, acceptance or
approval; or
|
{ 121 } |
| |
(b)
signature subject to ratification, acceptance or approval, followed by
ratification, acceptance or approval; or
|
{ 122 } |
| |
3.
Ratification, acceptance, approval or accession shall be effected by
the deposit of an instrument to that effect with the
Secretary-General.
|
{ 124 } |
| |
Article 29 - Entry into force
|
{ 125 } |
| |
1.
This Convention shall enter into force one year after the date on
which 15 States have expressed their consent to be bound by it.
|
{ 126 } |
| |
2.
For a State which expresses its consent to be bound by this Convention
after the conditions for entry into force thereof have been met, such
consent shall take effect one year after the date of expression of
such consent.
|
{ 127 } |
| |
Article 30 - Reservations
|
{ 128 } |
| |
1.
Any State may, at the time of signature, ratification, acceptance,
approval or accession, reserve the right not to apply the provisions
of this Convention:
|
{ 129 } |
| |
(a)
when the salvage operation takes place in inland waters and all
vessels involved are of inland navigation;
|
{ 130 } |
| |
(b)
when the salvage operations take place in inland waters and no vessel
is involved;
|
{ 131 } |
| |
(c)
when all interested parties are nationals of that State;
|
{ 132 } |
| |
(d)
when the property involved is maritime cultural property of
prehistoric, archaeological or historic interest and is situated on
the sea-bed.
|
{ 133 } |
| |
2.
Reservations made at the time of signature are subject to confirmation
upon ratification, acceptance or approval.
|
{ 134 } |
| |
3.
Any State which has made a reservation to this Convention may withdraw
it at any time by means of a notification addressed to the
Secretary-General. Such withdrawal shall take effect on the date the
notification is received. If the notification states that the
withdrawal of a reservation is to take effect on a date specified
therein, and such date is later than the date the notification is
received by the Secretary-General, the withdrawal shall take effect on
such later date.
|
{ 135 } |
| |
Article 31 - Denunciation
|
{ 136 } |
| |
1.
This Convention may be denounced by any State Party at any time after
the expiry of one year from the date on which this Convention enters
into force for that State.
|
{ 137 } |
| |
2.
Denunciation shall be effected by the deposit of an instrument of
denunciation with the Secretary-General.
|
{ 138 } |
| |
3.
A denunciation shall take effect one year, or such longer period as
may be specified in the instrument of denunciation, after the receipt
of the instrument of denunciation by the Secretary-General.
|
{ 139 } |
| |
Article 32 - Revision and
amendment
|
{ 140 } |
| |
1.
A conference for the purpose of revising or amending this Convention
may be convened by the Organization.
|
{ 141 } |
| |
2.
The Secretary-General shall convene a conference of the States Parties
to this Convention for revising or amending the Convention, at the
request of eight States Parties, or one fourth of the States Parties,
whichever is the higher figure.
|
{ 142 } |
| |
3.
Any consent to be bound by this Convention expressed after the date of
entry into force of an amendment to this Convention shall be deemed to
apply to the Convention as amended.
|
{ 143 } |
| |
Article 33 - Depositary
|
{ 144 } |
| |
1.
This convention shall be deposited with the Secretary-General.
|
{ 145 } |
| |
2.
The Secretary-General shall:
|
{ 146 } |
| |
(a)
inform all States which have signed this Convention or acceded
thereto, and all Members of the Organization, of:
|
{ 147 } |
| |
(i)
each new signature or deposit of an instrument of ratification,
acceptance, approval or accession together with the date thereof;
|
{ 148 } |
| |
(ii)
the date of the entry into force of this Convention;
|
{ 149 } |
| |
(iii)
the deposit of any instrument of denunciation of this Convention
together with the date on which it is received and the date on which
the denunciation takes effect;
|
{ 150 } |
| |
(iv)
any amendment adopted in conformity with article 32;
|
{ 151 } |
| |
(v)
the receipt of any reservation, declaration or notification made under
this Convention;
|
{ 152 } |
| |
(b)
transmit certified true copies of this Convention to all States which
have signed this Convention or acceded thereto.
|
{ 153 } |
| |
3.
As soon as this Convention enters into force, a certified true copy
thereof shall be transmitted by the Depositary to the
Secretary-General of the United Nations for registration and
publication in accordance with Article 102 of the Charter of the
United Nations.
|
{ 154 } |
| |
Article 34 - Languages
|
{ 155 } |
| |
This
Convention is established in a single original in the Arabic, Chinese,
English, French, Russian and Spanish languages, each text being
equally authentic.
|
{ 156 } |
| |
IN
WITNESS WHEREOF the undersigned being duly authorized by their
respective Governments for that purpose have signed this Convention.
|
{ 157 } |
| |
DONE
AT LONDON this twenty-eighth day of April one thousand nine hundred
and eighty-nine.
|
{ 158 } |
| |
IMO,
International Convention On Salvage, 1989
|
|
|
