Chapter 8: Salvage and Wreck

224 – (1) The provisions of the International Convention on Salvage, 1989 as set out in Part I of Schedule 11 (in this Chapter referred to as “the Salvage Convention”) shall have the force of law in the United Kingdom.

(2) The provisions of Part II of that Schedule shall have effect in connection with the Salvage Convention, and subsection (1) above shall have effect to the provisions of that Part.

(3) If it appears to Her Majesty in Council that the Government of the United Kingdom has agreed to any revision of the Salvage Convention She may by Order in Council make such modifications of Parts I and II of Schedule 11 as She considers appropriate in consequence of the revision.

(4) Nothing in subsection (1) or (2) above shall affect any rights or liabilities arising out of any salvage operations started or other acts done before 1st January 1995.

(5) Nothing in any modification made by virtue of subsection (3) above shall affect any rights or liabilities arising out of any salvage operations started or other acts done before the day on which the modification comes into force.

(6) As respects any period before the entry into force of the Salvage Convention any reference in the Salvage Convention to a State Party to the Convention shall be read as a reference to the United Kingdom.

(7) A draft of an Order in Council proposed to be made by virtue of subsection (3) above shall not be submitted to Her Majesty in Council unless the draft has been approved by a resolution of each House of Parliament.

8.3 Cross-references

Sections 224 and 255 of, and Schedule 11 to, the Merchant Shipping Act 1995 were extended (with modifications) to Jersey (22 August 1997) by the Merchant Shipping (Salvage Convention) (Jersey) Order 1997, 1997/1773, article 2, Schedule.

Sections 224 and 255 of, and Schedule 11 to, the Merchant Shipping Act 1995 were extended (with modifications) to specified colonies (30 November 1997) by the Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997, SI 1997/2586, article 2, Schedules 1, 2. The colonies specified in Schedule 1 to the Order are Anguilla, the British Antarctic Territory, the British Indian Ocean Territory, the Cayman Islands, the Falkland Islands, Pitcairn, Henderson, Ducie and Oeno Islands and its Dependencies and Saint Helena.

8.4 MSA 1995, Schedule 11, Part I, Article 1

For the purpose of this Convention –

1. 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.

2. Vessel means any ship or craft, or any structure capable of navigation.

3. Property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.

4. 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.

5. Payments means any reward, remuneration or compensation due under this Convention.

6. Organisation means the International Maritime Organisation.

7. Secretary-General means the Secretary-General of the Organisation.

8.5 Commentary

Geographical scope of application of Convention. The 1989 Salvage Convention applies to all services rendered in navigable waters or in any other waters whatsoever. This constitutes a substantial increase in the area covered under existing English law under which salvage services were held not to include services rendered in non-tidal waters: see The Goring [1988] AC 831. See also The Postaniec Wielkopolski [1989] QB 279. Article 30 of the Convention permits any state to reserve the right not to apply the provisions of the Convention, inter alia, when the salvage operation takes place in inland waters and all vessels involved are of inland navigation. The United Kingdom made such reservation, which is implemented by paragraph 2 of Part II of Schedule 2 to the 1995 Act.

8.6 Meaning of vessel under Convention. “Vessel” is defined for the purposes of the Convention in article 1(b). Article 1(b) defines “vessel” as meaning “any ship or craft, or any structure capable of navigation”. The grammatical separation of the words “ship or craft” from the words “capable of navigation” indicate that the definition includes ship or craft that are not capable of navigation (eg sunken or derelict vessels). The term “craft” will probably include non-displacement craft such as hovercraft or hydrofoils.

The term “vessel” implies, in its ordinary sense, something that is hollow and is capable of receiving or carrying objects from one place to another upon the water: see Polpen Shipping Co Ltd v Commercial Union Assurance Co Ltd [1943] 1 KB 161; Steedman v Schofield [1992] 2 Lloyd’s Rep 163.

The term does not extend to objects that merely float upon the water, such as rafts: The Raft of Timber (1844) 2 Wm Rob 251, 3 LT 58; landing stages: see The Craighall [1910] P 207; or to gas floats: see Wells v Owners of Gas Float Whitton No 2 [1897] AC 337 (HL); The Upcerne [1912] P 160; nor does it cover watercraft such as jet skis: see Steedman v Schofield or seaplanes: Watson v RCA Victor Company, Inc (1934) 50 Ll L Rep 77; Polpen Shipping Company Limited v Commercial Union Assurance Company Limited, supra. Note that the gas floats and landing stages may well be included as “other property” for the purposes of article 1(c), discussed. It is submitted that the wider definition of “craft” in article 1(b) will include jet skis and even rafts. However, in Brice, Maritime Law of Salvage (Sweet and Maxwell, 2nd ed, 1993) at paragraph 3–06, n 13 it is doubted that the term “craft” would apply to jet skis.

In The Lusitania [1986] 1 Lloyd’s Rep 132 Sheen J held that items salvaged from the Lusitania were “wreck” for the purposes of Part IX of the Merchant Shipping Act 1894 as once a vessel became derelict there was no good reason why she should cease to be derelict merely because she was not afloat but lying on the bed of the sea. He held that section 523 of the 1894 Act applied only to wreck found or taken possession of in the United Kingdom and as “extra-territorial wreck” the contents of the Lusitania did not vest in the Crown.

In The Goring [1988] 1 Lloyd’s Rep 397, the House of Lords held that the salvors of a vessel rescued in non-tidal waters are not entitled to salvage. In The Powstaniec Wielkopolski [1989] 1 Lloyd’s Rep 58 a vessel in Gravesend reach on the river Thames was held to be in tidal waters and not within the confines of a harbour for purposes of sections 546 and 742 of the Merchant Shipping Act 1894, which exclude salvage claims for services performed within harbours.

The term “vessel” covers types of marine craft not usually considered to be “vessels” such as a floating pontoon to which a floating crane was formerly attached: see Marine Craft Constructors, Ltd v Erland Blomqvist (Engineers), Ltd [1953] 1 Lloyd’s Rep 514 although it was held not to apply to a floating platform to which a crane was presently attached: see Merchant’s Marine Insurance Company Limited v North of England Protection and Indemnity Association (1926) 43 TLR 107. The latter case would no longer apply because of the inclusion as a “vessel” in the Convention of “any structure capable of navigation”.

8.7 Other property. Article 1(c) defines “other property” as meaning “any property not permanently and intentionally attached to the shoreline and includes freight at risk”. This definition will catch almost any property found on or in the water which was formerly not considered to be a recognised subject of salvage and includes the traditional common law inclusion of freight as a subject of salvage: see The Gas Float Whitton (No 2) [1896] P 42. “Passage money” would also be covered: see The Medina (1876) 1 PD 272, aff’d (1876) 2 PD 5 (CA).

8.8 Cargo owners may be salvors. In The Sava Star [1995] 2 Lloyd’s Rep 134, it was held that there was no reason why cargo owners could not bring a salvage claim based on assistance rendered to a ship in distress.

8.9 Wrecks and maritime cultural property. Section 3(7) of the Treasure Act 1996 (c 24) provides that an object is not treasure if it is wreck within the meaning of Part IX of the Merchant Shipping Act 1995.

The question of whether wrecks constitute property covered by the Convention depends on whether it is treated as being in danger. English law treats wrecks as being property “in danger” for the purposes of salvage: see The Tubantia [1924] P 78; The Egypt (1932) 44 Ll L Rep 21. Special protection is afforded to wrecks under Part IX of the Merchant Shipping Act 1995 and the Protection of Wrecks Act 1973 and Protection of Military Remains Act 1986. Article 30(1)(d) of the Convention permits any state to reserve the right not to apply the provisions of the Convention when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed. The United Kingdom made this reservation but did not implement it in the Merchant Shipping (Salvage and Pollution) Act 1994 or in the 1995 Act. See also the Irish case King and Champman v The Owners and all Persons claiming an interest in the Sailing Vessels La Lavia, Juliana and Santa Maria de la Vision (High Court (Ireland), unreported, 26 July 1994) where it was held that the ancient wrecks from the Spanish Armada off the...