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MARINE Salvage laws Australia W.A

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Australian Marine Salvage Law

Laws assosiated with salvage 

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"Important Disclaimer: 


The following article contains general legal information which is designed to give a broad understanding of some matters which may be of interest to them. It does not constitute legal advice intended to be acted upon by anyone. Any person requiring legal advice concerning the topics discussed should engage an appropriately qualified legal practitioner to advise as to the specific matters relevant to their own individual circumstances. Neither the author of the article nor  Falcon services Australia  by its officers, employees or agents, accept any legal responsibility for the correctness, currency or completeness of the information which follows.

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4.1 Under the Navigation Act 1912, Articles 6 to 8, 12 to 19, 21 to 22, 26 and 30 of the 1989 Salvage Convention are given the force of law in Australia.

International Convention on Salvage, 1989

  1. 4.2  The International Convention on Salvage, 1989 replaced a convention on the law of salvage adopted in Brussels in 1910. The 'no cure, no pay’ principle under which a salvor is only rewarded for services if the operation is successful, derives from the earlier convention.

  2. 4.3  Although ‘no cure no pay’ worked well in most cases, it did not take pollution into account. If a salvor prevented a major pollution incident (for example, by towing a damaged tanker away from an environmentally sensitive area) but did not manage to save the ship or the cargo, the company got nothing. There was, therefore, little incentive to a salvor to undertake an operation which had only a slim chance of success.

  3. 4.4  The 1989 Convention sought to remedy this deficiency by making provision for an enhanced salvage award, taking into account the skill and efforts of the salvors in preventing or minimising damage to the environment.

Special compensation

4.5 The 1989 Convention introduced a "special compensation" to be paid to salvors who have failed to earn a reward in the normal way (i.e. by salving the ship and cargo).

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32 SHIP SALVAGE

  1. 4.6  Damage to the environment is defined as "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."1

  2. 4.7  The compensation consists of the salvor's expenses, plus up to 30% of these expenses if, thanks to the efforts of the salvor, environmental damage has been minimised or prevented. The salvor's expenses are defined as "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".2

  3. 4.8  The tribunal or arbitrator assessing the reward may increase the amount of compensation to a maximum of 100% of the salvor's expenses, "if it deems it fair and just to do so".3

  4. 4.9  If the salvor is negligent and has consequently failed to prevent or minimise environmental damage, special compensation may be denied or reduced. Payment of the reward is to be made by the vessel and other property interests, in proportion to their respective salved values.

  5. 4.10  Articles 9 and 11 of the International Convention on Salvage 1989, have not been adopted into Australian law.

    9. 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.4

    11. 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.5

  1. 1  International Convention on Salvage, 1989 p. 8.

  2. 2  International Convention on Salvage, 1989 p. 13, Article 14, Clause 3.

  3. 3  International Convention on Salvage, 1989 p. 13, Article 14, Clause 3.

  4. 4  International Convention on Salvage, 1989 p. 11.

  5. 5  International Convention on Salvage, 1989 p. 11.

 

LEGISLATION AND JURISDICTION 33

4.11 With regard to Article 11 , Mr Ian Hoskison, Salvage Manager for United Salvage commented:

It is where the state is obligated to assist the salvor in protecting property and minimising the environmental issues, and with access to ports. That very important article is not in Australian law, and that is a great shame.6

Recommendation 5

4.12 The Committee recommends that Articles 9 and 11 of the International Convention on Salvage 1989, be enshrined in Australian law.

Australian Legislation

  1. 4.13  Salvage, as a commercial enterprise, is not something that any level of Government has any direct responsibility over. Emergency response, with particular reference to environmental protection is, however, the responsibility of both State and Australian governments.

  2. 4.14  With regard to waters under Australian government jurisdiction, three maritime Conventions impose quite specific obligations on the Government in relation to the protection of the marine environment:

    Article 56 (1) of the United Nations Convention on the Law of the Sea (UNCLOS), gives the Australian government jurisdiction to protect and preserve the marine environment in Australia’s Exclusive Economic Zone which extends, generally, from the low water mark of the coast or coastal island, seawards to a maximum of 200 miles.7

    Article 1.1 of the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPPRC) 1990, requires the Australian government to take all appropriate measures to prepare for, and respond to, an oil pollution incident. (An ‘oil pollution incident’ includes an occurrence which results, or may result, in a discharge of oil or which poses, or may pose, a threat to the marine environment). 8

  1. 6  Ian Hoskison, transcript of evidence, Melbourne, 28 April 2004, p. 22.

  2. 7  United Nations Convention on the Law of the Sea, Article 56.

  3. 8  International Convention on Oil Pollution Preparedness, Response and Co-operation, Article

 

1, Clause 1 and Article 2, Clause 2.

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34 SHIP SALVAGE

the International Convention on Salvage 1989 (discussed above and in Chapter 2).

  1. 4.15  The Committee notes that an appropriate salvage capability is essential to allow the Australian government to comply with these international obligations. It is for this reason, consistent with recommendation 2, that the Committee believes that the Australian government has a financial responsibility for the provision of salvage capability in Australian waters.

  2. 4.16  Beyond the three mile limit “...there is almost exclusive Commonwealth jurisdiction to control marine matters, subject to the limits placed by international law and the ‘nexus’ between the State and the activity offshore.”9

  3. 4.17  The Centre for Maritime Law points out that State governments have concurrent jurisdiction with the Australian government out to the three mile limit (and in particular cases further) as a result of the “Offshore Constitutional Settlement 1979”:

    The Commonwealth and the States and the NT agreed in 1979, in the “Offshore Constitutional Settlement”, that the States and the NT should have jurisdiction out to the three mile limit, but the Commonwealth also has jurisdiction. As a result much of the Commonwealth maritime legislation has a “roll back” provision, under which the Commonwealth power rolls back if the State or the NT passes identical legislation that applies in that area.

    The States and the NT also have some jurisdiction beyond the three mile limit where it is shown sufficient connection (nexus) with the State and NT requirement to legislate for the “peace good order and government” of that State.10

  4. 4.18  There is no direct part for local government to play in emergency response.11 However, the Committee notes that co-operation between host local authorities and port authorities, is an important dimension in port security. It is suggested that onerous and obstructive by-laws and impositions affecting marine salvage operations as described in paragraph 4.22, should be removed.

  1. 9  Centre for Maritime Law, submission no 15, pp. 10.

  2. 10  Centre for Maritime Law, submission no 15, pp. 9-10.

  3. 11  NSW Ministry of Transport, submission no 12, p. 7.

 

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LEGISLATION AND JURISDICTION 35

Australian Maritime Safety Authority (AMSA)

  1. 4.19  AMSA is the Australian government agency that has responsibility for the supervision of safety and other services to the Australian maritime industry. AMSA also has statutory authority for marine pollution matters within the jurisdiction of the Commonwealth of Australia. 12

  2. 4.20  AMSA is largely self-funded, through levies on the commercial shipping industry. It is responsible for:

    the operation and maintenance of the Australian Government’s coastal marine aids to navigation network, serviced via the Marine Navigation Levy under the Marine Navigation Levy Act 1989;

    the protection of the marine environment through the management of the National Plan to Combat Pollution of the Sea by Oil and other Noxious and Hazardous Substances (the National Plan), funded by the Protection of the Sea Levy under the Protection of the Sea (Shipping Levy) Act 1981;

    the safety and seaworthiness of Australian vessels through periodic assessment and survey;

    the safety and seaworthiness of foreign vessels calling at Australian ports by random inspection to ensure compliance with international regulation or “Port State Control”, funded by the Marine Navigation (Regulatory Functions) Levy under the Marine Navigation (Regulatory Functions) Levy Act 1991;

    administration of the certification of seafarers training,

    the operation of Australia’s Rescue Co-ordination Centre and co- ordination of search and rescue operations for civilian aircraft and vessels in distress; and

    representation of Australian interests at international forums for the development of maritime standards such as the International Maritime Organisation (IMO).13

  3. 4.21  The National Plan Management Committee is responsible for strategic management of the National Plan and reports to the Australian Transport Council through the Australian Maritime Group (AMG) and the Standing Committee on Transport (SCOT).14 The “potential polluter pays principle” is reflected in the funding arrangements for the National Plan via the Commonwealth’s Protection of the Sea (Shipping Levy) Act.

12 http://www.amsa.gov.au/About_AMSA/Service_charter.asp
13 http://www.amsa.gov.au/About_AMSA/Organisational_structure/ 14 http://www.amsa.gov.au/About_AMSA/Organisational_structure/

 

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36 SHIP SALVAGE

  1. 4.22  The Committee has received anecdotal evidence that at times there are difficulties for salvors in getting the necessary permission from local authorities, to carry out salvage operations. A particular case described to the Committee, was one where the salvors had to approach environmental and Aboriginal groups before being allowed to commence salvage. Its team members were also required to do building site safety training as the vessel to be salvaged was considered to be a “building site” by the local council.

  2. 4.23  The Centre for Maritime Law, in its submission to the Committee points to the lack of clarity in legislation for the maritime industry:

    Due to the low priority of the marine transport segment, there is continuing lack of clarity for industry in legislation. Industry is frequently confronted with the complex task of deciphering the intertwined federal and state marine jurisdiction and legislation. 15

  3. 4.24  The Committee has been made aware of the fact that a port authority which is requested to release a tug for an emergency response operation, may be placed in an awkward position which may leave it facing legal difficulties if it agrees. The issue was nicely encapsulated by Mr Ian Hoskison when he remarked during a roundtable discussion:

    My point is complementary to that because, under port requirements, the port is required to run the port. It is not required to do anything else. So it is very difficult for a port manager to release a tug for something outside the port if it will delay vessels, because he and the port could be open to legal action by so doing. So they have to have some outside impetus to take that burden off their shoulders. If there is legislation under which some outside body can say to the port, ‘We require you to do it,’ there would be no problem, and if there were delays of a minor nature nobody would take too much notice of them.

    It is a real problem that we have, particularly in Gladstone, where there are two salvage capable tugs that we can never use apart from in-port jobs. There is the case of the Stolt Otome, a gas carrier that was adrift in the Capricorn Channel, and we could not get a tug released from Gladstone. We had to send out the Nelia from Mackay in very bad weather, at the limit of its capability, and it had a heck of a job. We should not have to do that.16

  1. 15  Centre for Maritime Law, submission no 15, p. 11.

  2. 16  Mr Ian Hoskison, transcript of evidence, Melbourne, 28 April 2004, p. 22.

 

LEGISLATION AND JURISDICTION 37

  1. 4.25  In the Committee’s view two issues clearly need to be addressed. If Australia’s salvage capabilities are to operate effectively, arrangements are needed to enable:

    a salvor to speak to one authorised person to obtain permission to carry out necessary salvage operations; and,

    the introduction of arrangements enabling a port authority to release tugs for emergency response, without fear of legal action.

    Similar protection would also be needed for the tug operators, to protect them from legal repercussions if the tug’s absence caused delays in the port.

  2. 4.26  The Committee recognises that some salvage aspects are covered by the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances, but industry representatives indicated that there is also a need for a national plan for salvage capability:

    As far as legislation related to salvage capability is concerned, my belief is that we need national plan for salvage capability, as I said before.17

Recommendation 6

4.27 The committee recommends that AMSA, in consultation with state governments, industry and other interested parties, develop a national plan for emergency response/salvage operations. The plan should have regard to the following needs/issues:

the ability for a salvor to negotiate with one authorised person/authority so as avoid the necessity of separate negotiations with a number of interest groups in an emergency situation; and

legislative protection for port authorities and tug operators to allow the release of tugs to carry out emergency response operations.

 

17 Mr Paul Bendy, transcript of evidence, Melbourne, 28 April 2004, p. 21.

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INTERNATIONAL CONVENTION ON SALVAGE, 1989

The States parties to the present Convention,

Recognizing the desirability of determining by agreement uniform international rules regarding salvage operations,

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',

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,

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,

Have agreed as follows:

CHAPTER I-GENERAL PROVISIONS

ARTICLE 1 Definitions

For the purpose of this Convention:

(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.

(b) Vessel means any ship or craft, or any structure capable of navigation.

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

  1. (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.

  2. (e)  Payment means any reward, remuneration or compensation due under this Convention.

  3. (f)  Organization means the International Maritime Organization.

(g) Secretary-General means the Secretary-General of the Organization.

ARTICLE 2 Application of the Convention

This Convention shall apply whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party.

ARTICLE 3 Platforms and drilling units

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.

'Treaty SeriesNo .4 (1913), Cd. 6677.

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ARTICLE 4

State-owned vessels

1. Withoutprejudicetoarticle5,thisConventionshallnotapplytowarshipsorother 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.

2. WhereaStatePartydecidestoapplytheConventiontoitswarshipsorothervessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

ARTICLE 5

Salvage operations controlled by public authorities

1. ThisConventionshallnotaffectanyprovisionsofnationallaworanyinternational convention relating to salvage operations by or under the control of public authorities.

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.

3. Theextenttowhichapublicauthorityunderadutytoperformsalvageoperations 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.

ARTICLE 6

Salvage contracts

1. This Convention shall apply to any salvage operations save to the extent that a contract otherwise provides expressly or by implication.

2. Themastershallhavetheauthoritytoconcludecontractsforsalvageoperationson 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.

3. Nothinginthisarticleshallaffecttheapplicationofarticle7nordutiestoprevent or minimize damage to the environment.

ARTICLE 7
Annulment and modification of contracts

A contract or any terms thereof may be annulled or modified if:

(a) the contract has been entered into under undue influence or the influence of danger and its terms are inequitable; or

(b) the payment under the contract is in an excessive degree too large or too small for the services actually rendered.

CHAPTER 11-PERFORMANCE OF SALVAGE OPERATIONS ARTICLE 8
Duties of the salvor and of the owner and master

1. Thesalvorshalloweadutytotheownerofthevesselorotherpropertyindanger:

  1. (a)  to carry out the salvage operations with due care;

  2. (b)  in performing the duty specified in subparagraph (a), to exercise due care to prevent or minimize damage to the environment;

  3. (c)  whenever circumstances reasonably require, to seek assistance from other salvors; and

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(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.

2. Theownerandmasterofthevesselortheownerofotherpropertyindangershall owe a duty to the salvor:

  1. (a)  to co-operate fully with him during the course of the salvage operations;

  2. (b)  in so doing, to exercise due care to prevent or minimize damage to the environment; and

  3. (c)  when the vessel or other property has been brought to a place of safety, to accept delivery when reasonably requested by the salvor to do so.

    ARTICLE 9 Rights of coastal States

    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.

ARTICLE 10

Duty to render assistance

1. Everymasterisbound,sofarashecandosowithoutseriousdangertohisvessel and persons thereon, to render assistance to any person in danger of being lost at sea.

2. TheStatesPartiesshalladoptthemeasuresnecessarytoenforcethedutysetoutin paragraph 1.

3. Theownerofthevesselshallincurnoliabilityforabreachofthedutyofthemaster under paragraph 1.

ARTICLE 11 Co-operation

A StatePartyshall,wheneverregulatingordecidinguponmattersrelatingtosalvage 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.

CHAPTER III-RIGHTS OF SALVORS ARTICLE 12
Conditions for reward

1. Salvageoperationswhichhavehadausefulresultgiverighttoareward.

2. Exceptasotherwiseprovided,nopaymentisdueunderthisConventionifthesalvage operations have had no useful result.

3. This chapter shall apply, notwithstanding that the salved vessel and the vessel undertaking the salvage operations belong to the same owner.

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ARTICLE 13

Criteria for fixing the reward

1. Therewardshallbefixedwithaviewtoencouragingsalvageoperations,takinginto account the following criteria without regard to the order in which they are presented below:

  1. (a)  the salved value of the vessel and other property;

  2. (b)  the skill and efforts of the salvors in preventing or minimizing damage to the environment;

  3. (c)  the measure of success obtained by the salvor;

  4. (d)  the nature and degree of the danger;

  5. (e)  the skill and efforts of the salvors in salving the vessel, other property and life;

  6. (f)  the time used and expenses and losses incurred by the salvors;

  7. (g)  the risk of liability and other risks run by the salvors or their equipment;

  8. (h)  the promptness of the services rendered;

  9. (i)  the availability and use of vessels or other equipment intended for salvage operations;

  10. (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. Therewards,exclusiveofanyinterestandrecoverablelegalcoststhatmaybepayable thereon, shall not exceed the salved value of the vessel and other property.

ARTICLE 14

Special compensation

1. Ifthesalvorhascarriedoutsalvageoperationsinrespectofavesselwhichbyitself 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,inthecircumstancessetoutinparagraph1,thesalvorbyhissalvageoperations 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 per cent 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 per cent 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. Ifthesalvorhasbeennegligentandhastherebyfailedtopreventorminimizedamage to the environment, he may be deprived of the whole of part of any special compensation due under this article.

6. Nothinginthisarticleshallaffectanyrightofrecourseonthepartoftheownerof the vessel.

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ARTICLE 15

Apportionment between salvors

1. The apportionment of a reward under article 13 between salvors shall be made on the basis of the criteria contained in that article.

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.

ARTICLE 16

Salvage of persons

1. No remunerationisduefrompersonswhoselivesaresaved,butnothinginthisarticle shall affect the provisions of national law on this subject.

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.

ARTICLE 17
Services rendered under existing contracts

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.

ARTICLE 18
The effect of salvor's misconduct

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 of if the salvor has been guilty of fraud or other dishonest conduct.

ARTICLE 19 Prohibition of salvage operations

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.

CHAPTER IV-CLAIMS AND ACTIONS ARTICLE 20
Maritime lien

1. NothinginthisConventionshallaffectthesalvor'smaritimelienunderanyinternational convention or national law.

2. Thesalvormaynotenforcehismaritimelienwhensatisfactorysecurityforhisclaim, including interest and costs, has been duly tendered or provided.

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ARTICLE 21

Duty to provide security

1. UpontherequestofthesalvorapersonliableforapaymentdueunderthisConvention shall provide satisfactory security for the claim, including interest and costs of the salvor.

2. Withoutprejudicetoparagraph1,theownerofthesalvedvesselshallusehisbest 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.

3. Thesalvedvesselandotherpropertyshallnot,withouttheconsentofthesalvor,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.

ARTICLE 22

Interim payment

1. Thetribunalhavingjurisdictionovertheclaimofthesalvormay,byinterimdecision, 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.

2. In the event of an interim payment under this article the security provided under article 21 shall be reduced accordingly.

ARTICLE 23

Limitation of actions

1. AnyactionrelatingtopaymentunderthisConventionshallbetime-barredifjudicial 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.

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.

3. Anactionforindemnitybyapersonliablemaybeinstitutedevenaftertheexpiration 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.

ARTICLE 24 Interest

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.

ARTICLE 25 State-owned cargoes

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 return 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.

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ARTICLE 26 Humanitarian cargoes

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.

ARTICLE 27 Publication of arbitral awards

States Parties shall encourage, as far as possible and with the consent of the parties, the publication of arbitral awards made in salvage cases.

CHAPTER V-FINAL CLAUSES

ARTICLE 28

Signature,ratification,acceptance,approval and accession

1. ThisConventionshallbeopenforsignatureattheHeadquartersoftheOrganization from 1 July 1989 to 30 June 1990 and shall thereafter remain open for accession.

2. StatesmayexpresstheirconsenttobeboundbythisConventionby:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

(c) accession.

3. Ratification,acceptance,approvaloraccessionshallbeeffectedbythedepositofan instrument to that effect with the Secretary-General.

ARTICLE 29

Entry into force

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.

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.

ARTICLE 30

Reservations

1. AnyStatemay,atthetimeofsignature,ratification,acceptance,approvaloraccession, reserve the right not to apply the provisions of this Convention:

(a) when the salvage operation takes place in inland waters and all vessels involved are of inland navigation;

(b) when the salvage operations take place in inland waters and no vessel is involved;

(c) when all interested parties are nationals of that State;

(d) when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed.

2. Reservationsmadeatthetimeofsignaturearesubjecttoconfirmationuponratification, acceptance or approval.

3. AnyStatewhichhasmadeareservationtothisConventionmaywithdrawitatany 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

'Entered into force 14 July 1996.

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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.

ARTICLE 31 Denunciation

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.

2. Denunciationshallbeeffectedbythedepositofaninstrumentofdenunciationwith the Secretary-General.

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.

ARTICLE 32 Revision and amendment

1. A conference for the purpose of revising or amending this Convention may be convened by the Organization.

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.

3. AnyconsenttobeboundbythisConventionexpressedafterthedateofentryinto force of an amendment to this Convention shall be deemed to apply to the Convention as amended.

ARTICLE 33 Depositary

1. This Convention shall be deposited with the Secretary-General.

2. The Secretary-General shall:

(a) inform all States which have signed this Convention or acceded thereto,and all Members of the Organization, of-

(i)

(i) (i)

(iv) (v)

each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof;

the date of the entry into force of this Convention;

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;

any amendment adopted in conformity with article 32;

the receipt of any reservation, declaration or notification made under this Convention;

(b) transmit certified true copies of this Convention to all States which have signed this Convention or acceded thereto.

3. AssoonasthisConventionentersintoforce,acertifiedtruecopythereofshallbe 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.

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ARTICLE 34 Languages

This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

In Witness Whereof the undersigned being duly authorized by their respective Governments for that purpose have signed this Convention.

Done at London this twenty-eighth day of April one thousand nine hundred and eighty-nine.

11

State

CONTRACTING STATES
Date of Signature

Date of Deposit

14 November 1994 30 March 1994 30 May 1995 14 March 1991

1 August 1994

6 January 1995 14 July 1995 10 October 1991

11 October 1990 14October 1991 16 December 1991

12 March 1993

4October 1993 29 September 1994 27 March 1992

Canada*'
China **'
Denmark
Egypt **
Finland *
Germany, Federal Republic of *** Iran,Islamic Republic of **' Ireland, Republic of *1

Italy * Mexico Netherlands $ Nigeria Norway *** Oman

Poland ***
Saudi Arabia **I
Spain'
Sweden ***
Switzerland
Union of Soviet Socialist Republics *** United Arab Emirates **
United Kingdom *1,2
United States of America

* Ratifled Acceded

*** Signatures
$ Subjecttoacceptance

11 June 1990

2 April 1990

21 March 1990 23 May 1990

26 June 1990 29 June 1990 20 September1990 28 June 1990 15 March 1990 29 March 1990

12 June 1990

27 June 1990 26 March 1990 29 June 1990 29 June 1990

28 June 1990 19 March 1990

'For the text of a reservation or statement,see Declarations,Reservations and Statements.

2The United Kingdom declared its ratification to be effective in respect of: The Bailiwick of Jersey

TheIsleofMan
Falkland Islands*
Montserrat
South Georgia and the South Sandwich Islands

*The depositary received the following communication,dated 6 February 1995, from the Charge d'affaires a.i., Embassy of the Argentine Republic, London:

(translation)

.. the Argentine Government rejects the statement made by the United Kingdom of Great Britain and Northern Ireland on ratifying the International Convention on Salvage,1989. In that statement,ratification was declared to be effective in respect of the Malvinas Islands, South Georgia and South Sandwich Islands. The Argentine Republic reaffirms its sovereignty over these islands and their surrounding maritime spaces, which constitute an integral part of its national territory.

The Argentine Republic recalls the adoption,by the General Assembly of the United Nations, of resolutions 2065(XX), 3160(XXVIII ), 31/49, 37/9, 38/12, 39/6, 40/21, 41/41, 42/19 and 43/25, acknowledging the existence of a dispute concerning sovereignty and urging the Governments of the Artgentine Republic and of the United Kingdom of Great Britain and Northern Ireland to enter into negotiations with a view to identifying means of.pacific and final settlement of the outstanding problems between the two countries,including all matters concerning the future of the Malvinas Islands,in accordance with the Charter of the United Nations."

Thedepositaryreceivedthefollowingcommunication,dated9May 1995,fromtheForeignandCommonwealth Office, London:

.. The Government of the United Kingdom of Great Britain and Northern Ireland have noted the declaration of the Government of Argentina regarding the extension by the United Kingdom of the application of the Convention to the Falkland Islands and to South Georgia and the South Sandwich Islands.

The British Government have no doubt about the sovereignty of the United Kingdom over the Falkland Islands and over South Georgia and the South Sandwich Islands and their consequential right to extend the said Convention to these Territories.The British Government reject as unfounded the claims by the Government of Argentina."

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DECLARATIONS, RESERVATIONS AND STATEMENTS Canada

The instrument of ratification of Canada was accompanied by the following reservation:

"Pursuant to Article 30 of the International Convention on Salvage, 1989, the Government of Canada reserves the right not to apply the provisions of this Convention when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed."

China

The instrument of accession of the People's Republic of China contained the following statement:

[Translation]

"that in accordance with the provisions of article 30, paragraph 1 of the International Convention on Salvage, 1989, the Government of the People's Republic of China reserves the right not to apply the provisions of article 30, paragraphs 1(a), (b) and (d) of the said Convention."

Islamic Republic of Iran

The instrument of accession of the Islamic Republic of Iran contained the following reservation:

"The Government of the Islamic Republic of Iran reserves the right not to apply the provisions of this Convention in the cases mentioned in article 30, paragraphs 1(a), (b), (c) and (d)."

Ireland

The instrument of ratification of Ireland contained the following reservation:

"... reserve the right of Ireland not to apply the provisions of the Convention specified in article 30(1)(a) and (b) thereof."

Mexico

The instrument of ratification of Mexico contained the following reservation and declaration:

[Translation]

"The Government of Mexico reserves the right not to apply the provisions of this Convention in the cases mentioned in article 30, paragraphs 1(a), (b), (c) and (d), pointing out at the same time that it considers salvage as a voluntary act."

Saudi Arabia
The instrument of accession of Saudi Arabia contained the following reservations:

[Translation]

"1. Thisinstrumentofaccessiondoesnotinanywaywhatsoevermeantherecognition of Israel; and

2. theKingdomofSaudiArabiareservesitsrightnottoimplementtherulesofthis instrument of accession to the situations indicated in paragraphs (a), (b), (c) and (d) of article 30 of this instrument."

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Spain
The following reservations were made at the time of signature of the Convention:

[Translation]

"In accordance with the provisions of article 30.1(a), 30.1(b) and 30.1(d) of the International Convention on Salvage, 1989, the Kingdom of Spain reserves the right not to apply the provisions of the said Convention:

- whenthesalvageoperationtakesplaceininlandwatersandallvesselsinvolved are of inland navigation;

- whenthesalvageoperationstakeplaceininlandwatersandnovesselisinvolved.

For the sole purposes of these reservations, the Kingdom of Spain understands by `inland waters' not the waters envisaged and regulated under the name of `internal waters' in the United Nations Convention of the Law of the Sea but continental waters that are not in communication with the waters of the sea and are not used by seagoing vessels. In particular, the waters of ports, rivers, estuaries, etc., which are frequented by seagoing vessels are not considered as `inland waters':

- when the property involved in maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed".

United Kingdom

The instrument of ratification of the United Kingdom of Great Britain and Northern Ireland contained the following reservation:

"In accordance with the provisions of article 30, paragraph 1(a), (b) and (d) of the Convention, the United Kingdom reserves the right not to apply the provisions of the Convention when:

- thesalvageoperationtakesplaceininlandwatersandallvesselsinvolvedareof inland navigation; or

- the salvage operations take place in inland waters and no vessel is involved; or

- thepropertyinvolvedismaritimeculturalpropertyofprehistoric,archaeological or historic interest and is situated on the sea-bed."

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FINAL ACT OF THE INTERNATIONAL CONFERENCE ON SALVAGE, 1989

1. In accordance with Article 2(b) of the Convention on the International Maritime Organization, the Council of the Organization decided, at its fourteenth extraordinary sessioninNovember 1987,toconveneaninternationalconferencetoconsidertheadoption of a new convention on the law of salvage. This decision was endorsed by the Assembly oftheOrganizationatitsfifteenthregularsessionbyresolutionA.633(15) of20November 1987 on the work programme and budget for the fifteenth financial period 1988-1989.

2. The Conference was held in London, at the Headquarters of the International Maritime Organization, from 17 to 28 April 1989.

3. Representativesof66StatesparticipatedintheConference,namelytherepresentatives of:

Algeria
Argentina
Australia
Bahamas
Barbados
Belgium
Brazil
Bulgaria
Canada
Chile
China
Colombia
Congo
Cote d'Ivoire
Cuba
Cyprus
Czechoslovakia
Democratic People's Republic

of Korea
Democratic Yemen
Denmark
Ecuador
Egypt
Finland
France
Gabon
German Democratic Republic Germany, Federal Republic of Ghana
Greece
Hungary
India
Indonesia
Iran (Islamic Republic of)

Ireland
Israel
Italy
Japan
Kiribati
Kuwait
Liberia Malaysia Marshall Islands Mexico Morocco Netherlands Nigeria

Norway
Panama
Peru
Poland
Portugal
Republic of Korea Saudi Arabia

Seychelles
Spain
Sweden
Switzerland
Tunisia
Turkey
Union of Soviet Socialist Republics United Kingdom of Great Britain

and Northern Ireland United States of America Uruguay
Venezuela

Yugoslavia Zaire

4. ThefollowingStatesentanobservertotheConference: Romania

5. HongKong,anAssociateMemberoftheInternationalMaritimeOrganization,sent observers to the Conference.

6. A representativeofthefollowingbodyoftheUnitedNationsattendedtheConference: Office of the United Nations High Commissioner for Refugees (UNHCR)

7. ThefollowingtwointergovernmentalorganizationssentobserverstotheConference:

International Oil Pollution Compensation Fund (IOPC FUND) Arab Federation of Shipping (AFS)

15

8. Thefollowing19non-governmentalinternationalorganizationssentobserverstothe Conference:

International Chamber of Shipping (ICS)
International Union of Marine Insurance (IUMI)
International Maritime Committee (CMI)
International Association of Ports and Harbors (IAPH)
Baltic and International Maritime Council (BIMCO)
Latin American Shipowners Association (LASA)
Oil Companies International Marine Forum (OCIMF)
European Tugowners Association (ETA)
International Shipowners' Association (INSA)
Friends of the Earth International (FOEI)
International Association of Drilling Contractors (IADC)
International Salvage Union (ISU)
Oil Industry International Exploration & Production Forum (E & P Forum) International Association of Independent Tanker Owners (INTERTANTKO)

International Group of P and I Associations (P and I)
International Union for Conservation of Nature and Natural Resources (IUCN) Advisory Committee on Pollution of the Sea (ACOPS)
International Life-Boat Federation (ILF)
International Association of European General Average Adjusters (AIDE)

9. His Excellency, Dr. Francisco Kerdel-Vegas, Head of the delegation of Venezuela, was elected President of the Conference.

10. TheVice-PresidentselectedbytheConferencewere:

16

Rear Admiral F. Lazcano Mr. Meng Guangju
Mr. S. Rosadhi
Dr. H. Tanikawa

Mr. M. M. R. Al-Kandari
The Rt. Hon. Lord Justice Kerr

Mr. G. G. Ivanov
Rear Admiral J. E. Vorbach Citoyen Tito Yisuku Gafudzi

(Chile)
(China)
(Indonesia)
(Japan)
(Kuwait)
(United Kingdom of Great Britain and

Northern Ireland)
(Union of Soviet Socialist Republics) (United States of America)
(Zaire)

11. TheSecretariatoftheConferenceconsistedofthefollowingofficers:

Secretary-General Executive Secretary Deputy Executive Secretary

Mr. C. P. Srivastava
Secretary-General of the Organization Mr. T. A. Mensah
Assistant Secretary-General Mr.C.H.Zimmerli,SeniorDeputyDirector, Legal Affairs and External Relations Division

12. TheConferenceestablishedaCommitteeoftheWholewiththemandatetoconsider the draft articles for a Convention on Salvage. The Conference also established a Committee on Final Clauses with the mandate to consider the draft final clauses of the Convention.

13. The Drafting Committee established by the Conference was composed of representatives from the following nine States:

China

Egypt France

Mexico United Kingdom of Great Britain and Northern Ireland

Netherlands Union of Soviet Socialist Republics Spain United States of America

14. A CredentialsCommitteewasappointedtoexaminethecredentialsofrepresentatives attending the Conference. The Committee was composed of representatives from the following States:

Congo Ecuador Malaysia Poland Switzerland

15. TheofficerselectedfortheCommitteewereasfollows:

16.

TheConferenceusedasthebasisofitswork:

draft articles for a Convention on Salvage, prepared by the Legal Committee of the Organization;

draft final clauses for the Convention on Salvage, prepared by the Secretariat of the Organization.

Committee of the Whole: Chairman Vice-Chairman

Drafting Committee: Chairman Vice-Chairman

Prof. Dr. N. Trotz (German Democratic Republic) Mr. A. Popp (Canada)
Mr. K. Kone (Cote d'Ivoire)

Mr.W W.Sturms(Netherlands)
Mr. J-P. Beraudo (France)
Dr. J. Eusebio Salgado y Salgado (Mexico)

Committee on Final Clauses:

Chairman Vice-Chairman

Credentials Committee: Chairman Vice-Chairman

Captain S. A. H. Yafai (Democratic Yemen) Mr. R. Foti (Italy)
Mr. I.Maku (Nigeria)

Mr. V. Ngayala (Congo)
Ms. Halimah Ismail (Malaysia)

AlsobeforetheConferencewereanumberofdocuments,commentsandobservations, including proposed amendments, submitted by Governments and interested organizations in relation to the draft Convention.

18. AsaresultofitsdeliberationsbasedonthereportsoftheCommitteeoftheWhole, the Committee on Final Clauses and other committees, the Conference adopted the:

International Convention on Salvage, 1989

As far as the French text of this Final Act and of the above-mentioned Convention is concerned,the Conference decided that the term "assistance" means "l'assistance aux navires et le sauvetage des personnes et des biens".

19. TheConferencealsoadoptedaCommonUnderstandingconcerningarticles13and 14 of the International Convention on Salvage, 1989 which is contained in attachment 1 to this Final Act.

20. TheConferencefurtheradoptedthefollowingresolutions:

- Resolution requesting the amendment of the York-Antwerp Rules, 1974

- Resolutiononinternationalco-operationfortheimplementationoftheInternational Convention on Salvage, 1989

These resolutions are contained in attachments 2 and 3 to this Final Act, respectively.

21. ThisFinalActisestablishedinasingleoriginaltextintheArabic,Chinese,English, French, Russian and Spanish languages which is to be deposited with the Secretary-General of the International Maritime Organization.

17.

17

22. TheSecretary-GeneralshallsendcertifiedcopiesofthisFinalActwithitsAttachments and certified copies of the authentic texts of the Convention to the Governments of the States invited to be represented at the Conference, in accordance with the wishes of those Governments.

In witness whereof the undersigned have affixed their signature to this Final Act.

Done in London this twenty-eighth day of April, one thousand nine hundred and eighty-nine.

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ATTACHMENT 1

Common understanding concerning Articles 13 and 14 of the International Convention on Salvage, 1989

It is the common understanding of the Conference that, in fixing a reward under article 13 and assessing special compensation under article 14 of the International Convention on Salvage, 1989 the tribunal is under no duty to fix a reward under article 13 up to the maximum salved value of the vessel and other property before assessing the special compensation to be paid under article 14.

ATTACHMENT 2
Resolution requesting the amendment of the York-Antwerp Rules 1974

The International Conference on Salvage, 1989,

Having adopted the International Convention on Salvage, 1989,

Considering that payments made pursuant to article 14 are not intended to be allowed in general average,

Requests the Secretary-General of the International Maritime Organization to take the appropriate steps in order to ensure speedy amendment of the York-Antwerp Rules, 1974, to ensure that special compensation paid under article 14 is not subject to general

average.

ATTACHMENT 3

Resolution on international co-operation for the implementation of the Convention on Salvage, 1989

The International Conference on Salvage 1989,

In adopting the International Convention on Salvage, 1989 (hereinafter referred to as "The Convention"),

Considering it desirable that as many States as possible should become Parties to the Convention,

Recognizing that the entry into force of the Convention will represent an important additional factor for the protection of the marine environment,

Considering that the international publicizing and wide implementation of the Convention is of the utmost importance for the attainment of its objectives,

1. Recommends:

  1. (a)  that the Organization promote public awareness of the Convention through the holding of seminars, courses of symposia;

  2. (b)  that training institutions created under the auspices of the Organization include the study of the Convention in their corresponding courses of study.

    II. Requests:

(a) Member States to transmit to the Organization the text of the laws, orders, decrees, regulations and other instruments that they promulgate concerning the various matters falling within the scope of application of the Convention;

  1. (b)  member States in consultation with the Organization, to promote the giving of help to those States requesting technical assistance for the drafting of laws, orders, decrees, regulations and other instruments necessary for the implementation of the Convention; and

  2. (c)  the Organization to notify Member States of any communication it may receive under paragraph II(a). 

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