Environmental salvage : amending the international salvage law regime to create a system of environmental salvage awards

Abstract

This thesis examines the role played by the professional salvage industry in protecting the environment from pollution following a shipping casualty and the necessity or otherwise of the proposed review of the international salvage law regime to include the new concept of "Environmental Salvage". The position of salvors has undergone a drastic change in recent years on account of the increasing concern of environmental protection. The international salvage law regime and the grounds upon which a salvor would be entitled to a salvage award have evolved from a system which was based entirely upon the "no cure-no pay" principle, to a mechanism which is now in place to ensure that salvors, would be able to recover the expenses incurred in the salvage operation even when the salved property is of no or little salved value. The introductory chapter of this thesis gives a general overview of the problem of accidental marine pollution from ships. Experience has shown that despite increased efforts to improve the safety and environmental credentials of the shipping industry it is impossible to eradicate the ever-present risk of human error, natural disasters or engine failure and in these circumstances the role of salvors is crucial in preventing or minimising pollution. An overview of the international salvage law regime follows, with particular emphasis on the evolution of the law of salvage to incorporate protection of the environment. Reference is made in particular to the 1980 Lloyd's Open Form and the 1989 international Convention on Salvage, as well as the more recent introduction of SCOPIC in 1999. The criteria upon which a salvage award might be based, is also examined. Chapter 2 sets out several issues which have contributed to the increasing need to review the current salvage law regime and which have encouraged the international salvage industry to propose the concept of Environmental Salvage at an international level. These issues range from a reduced workload and the resultant financial difficulties which the international salvage industry is facing, to other disincentives which have a considerable bearing upon the salvors' decision to offer their services. These include the increased risk of liability, as well as the possible detention of vessels and crew. The concept of "Environmental Salvage" as set out by the International Salvage Union, including the proposed reform which is necessary for its implementation, is also examined in this chapter. The risk of liability may have a significant impact upon the salvors' decision to offer their services and any liability actually imposed upon the salvors following a salvage operation might greatly reduce the economic viability of the entire maritime adventure. A detailed analysis of the potential liability of salvors is dealt with in Chapter 3. The chapter focuses upon the liability of salvors towards the shipowner which might arise as a result of the negligence or misconduct on their part and the right of salvors to limit their liability in these circumstances. The salvor' s potential civil liability towards third parties is also examined, together with any criminal liability which might be imposed upon salvors for any marine pollution caused as a result of their efforts. The ISU argues that any governments which take on the initiative to pay for the proposed "Environmental Salvage Awards" would be able to recover these expenses through the international liability and compensation regimes already in force. The international regime on liability and compensation for ship-source pollution is thus examined in detail in Chapter 4. The state of affairs currently in place throughout the European Union in relation to prevention of marine pollution is examined in chapter 5 in an effort to clarify the position of salvors operating in the region. The role of the European Maritime Safety Agency is examined with particular attention being given to the Agency's pollution response mechanism. The ISU's response to the "Green Paper on a Future Maritime Policy for Europe", which includes proposal for the introduction of the concepts of "Environmental Salvage" and "Environmental Awards" at an EU level, is also examined in this chapter. Chapter 6 of this thesis deals with the issue of State involvement in salvage operations. The functions and tasks of the person appointed as SOSREP are examined in this chapter, followed by an overview of the current state of play in relation to salvage in Malta.