Salvage
SALVAGE (from Lat. salvus, safe). There is no general rule or principle of law which entitles one who saves the life or property of another to be rewarded by him. But in certain special classes of cases the law does require the appointed courts to reward those who by their exertions have rescued lives or property from probable damage or destruction. The reward so given is called salvage and the same word is often used to denote the service rewarded. Apart from the application of the term by analogy to the saving of property from fire on land, the recovery of property from destruction by the aid of voluntary payments (as in the case of payments to prevent the forfeiture of an insurance policy), or a solicitor's charges for property recovered by his means, the subject of salvage divides into (i) civil salvage, (2) military salvage.
i. Civil Salvage in English law is defined as such a service as may become the ground of a reward in the (admiralty) court on the civil side of its jurisdiction, and consists in the preservation of life or property from some of the dangers of the sea. The jurisdiction to give it is an admiralty jurisdiction. But the right to reward was recognized in the courts of common law before the admiralty court became, as it now is, a part of the High Court of Justice, e.g. by enforcing a possessory lien of the salvor over the salved property. The origin of the rule has been traced to the doctrine of Roman law that " spontaneous services " in the protection of lives and property should be rewarded. But that doctrine has not found a place in English law except, as part of the maritime law administered hi the court of admiralty. Thus services on land, say in rescuing lives or houses or goods from fire, do not entitle the person rendering those services to reward, unless he has acted under some contract or employment. But at sea the right to reward springs from the service itself if it has been rendered to a ship, or her passengers, crew or cargo, or to property which has been thrown or washed out of her. And such a service entitles to salvage though the ship may be in harbour, or within a river, or even in a dock. This connexion of the lives or property with a ship seems essential. The right does not arise upon saving goods which have got adrift in river or harbour, even if they have been washed out to sea, nor upon saving property of other kinds which may be in peril on the sea or on the seashore. Thus a claim to reward for saving a gasbuoy or beacon, which had broken from its moorings in the Upper Humber, and was aground on the Lincolnshire coast, was disallowed by the House of Lords, affirming the court of appeal, in the case of the gas-float " Whitton No. 2," 1897, A.C.
337- The definite right to salvage for saving lives from ships is the creation of modern statutes. Formerly the Admiralty judges treated the fact that lives had been saved as enhancing the merit of a salvage of property by the same salvors, where the two could be connected; and so indirectly gave life salvage. And this is still the position in cases where the Merchant Shipping Act of 1894 does not apply. This act (544) applies to all cases in which the " services are rendered wholly or in part within British waters in saving life from any British or foreign vessel, or elsewhere in saving life from any British vessel." Also ( 545) it can be applied, by Order in Council, to life salvage from ships of any foreign country whose government " is willing that salvage should be awarded by British courts for services rendered in saving life from ships belonging to that country where the ship is beyond the limits of British jurisdiction." By section 544 the life salvage is made payable " by the owner of the vessel, cargo or apparel saved"; and is to be paid in priority to all other claims for salvage. Where the value of the vessel, cargo and apparel saved is insufficient to pay the life salvage, the Board of Trade may in their discretion make up the deficiency, in whole or in part, out of the Mercantile Marine Fund. The effect of the act is to impose a common responsibility upon the owners of ship and cargo to the extent of their property saved. Whatever is saved becomes a fund out of which life salvors may be rewarded, and to which they are entitled in priority to other salvors. In the case of the cargo ex "Schiller" (1877, 3 P.D. 145) salvage was allowed out of specie raised by divers from the sunken wreck, to persons who had saved some of the passengers and crew.
This limitation of liability to the amount of the property salved is also true with regard to salvage of property. The ordinary remedy of the salvor is against the property itself; by proceedings in rent, to enforce the maritime lien given him by the law upon that property. This enables him to arrest the property, if within the jurisdiction, into whose hands soever it may have come; and, if necessary, to obtain a sale, and payment of his claim out of the proceeds. The salvor has also a remedy in personam, used only in exceptional cases, against the owners or others interested in the property saved (Five steel barges, 15 P.D. 142); but it seems certain that that depends upon property having been saved, and having come to the owner's hands; and that the amount which can be awarded is limited by the value of that property.
An essential condition is that the lives or property saved must have been in danger either in immediate peril, or in a position of "difficulty and reasonable apprehension." Danger to the salvor is not essential, though it enhances his claim to reward; but to constitute a salvage service there must have been danger to the thing salved. Again, the service must have helped usefully towards saving the lives or property. Ineffectual efforts, however strenuous and meritorious, give rise to no claim. But the service need not be completely successful. If it has contributed to an ultimate rescue it will be rewarded, though that may have been accomplished by others. And as we have seen, there must have been ultimate success. Some of the property involved in the adventure must have been saved. And the value of that, or the fund realized by its sales, limits the total of the awards to all the salvors. Cases, of course, occur in which services at sea are employed by ships in danger: as where a steamer with a broken propeller shaft employs another steamer to tow her; or where a vessel which has lost her anchors employs another to procure anchors for her from shore. In such cases the conditions of reward above set out may not apply. Reward may be payable, notwithstanding entire failure of success, by the express or implied terms of the employment. But such a reward is not truly " salvage."
Services rendered in the performance of a duty owed do not entitle to salvage. The policy of the law is to stimulate voluntary effort, not to weaken obligation. Thus the crew cannot (while still the crew) be salvors of the ship or cargo; nor can the passengers, unless they have voluntarily stayed on the ship for the purpose of saving her. Nor can a pilot employed as such be salvor, unless he has boarded her in such exceptional circumstances that his doing so for pilotage fees could not reasonably be required; or unless the circumstances of the service, entered upon as pilotage, have so changed as to alter its character; and it may be doubted whether such a change of circumstances is a valid ground for a claim of salvage remuneration by the pilot where he has had no opportunity of leaving the ship. So again of the owners and crew of a tug employed to tow a ship. They cannot claim salvage for rescuing her from a danger which may arise during the towage, unless circumstances have supervened which were not contemplated, and are such as to require extraordinary aid from the tug, or to expose her to extraordinary risk. Officers and crew of a ship of the royal navy may have salvage where they have rendered services outside the protection which their ship ought to afford. But by the Merchant Shipping Act 1894, 557, such a claim must be with consent of the Admiralty; and no claim can be made in respect of the ship herself.
The kinds and degrees of service are very various. The rewards given vary correspondingly. Regard is paid, first, to the degree of the danger to the property salved, to its value, and to the effect of the services rendered; next, to the risks run by the salvors, the length and severity of their efforts, the enterprise and skill displayed, and to the value and efficiency of the vessel or apparatus they have used, and the risks to which they have exposed her. In a modern case (the "Glengyle," 1898, A.C. 519) a specially large award was given to vessels kept constantly ready for salving operations in Gibraltar Bay. It was owing to that readiness that the rescue had been possible. On the other hand, any negligent or improper conduct of the salvors will be considered in diminution of the award: as where they have negligently exposed the ship to damage, or have plundered the cargo, or dealt with it contrary to the owner's interests. And where the rescue has been from a danger which was brought about by the negligent or improper conduct of those who effected the rescue, no salvage is allowed. So that where two colliding ships were both to blame for the collision, the master and crew of one of them were not allowed salvage for services in saving cargo of the other (cargo ex " Capella," L.R. i A. and E. 356).
In apportioning the total award given for a salvage service among the owners, master and crew of the vessel by means of which it has been rendered, the special circumstances of each case have to be considered. In nearly all cases a large portion goes to the owners, and as in recent times the value and efficiency of ships (especially of steamships) have increased, so the proportion of the whole usually awarded to the owners has also increased. In an ordinary case of salvage by a steamship towing a distressed ship into safety, the share of the owners is usually about threefourths; of the remainder the master usually gets about one-third, and the officers and crew divide the rest in proportion to their ratings. But where the salving ship has sustained special damage in the service, or her owners have been put to loss by it, that is taken into account. On the other hand, where special personal services have been rendered by members of the crew they are specially rewarded.
As an illustration take the case of the " Rasche " (L.R. 4 A. and E. 127). The brigantine " Rasche," derelict, was fallen in with by the ship " Scythia " (carrying a very valuable cargo) 220 m. N. of the Lizard. The mate and three hands of the " Scythia " were put on board, and in circumstances of much hardship and danger they brought her after eighteen days safely to Liverpool. After deducting expenses incurred by the owners of the " Scythia," the value of the property saved was 6294. Sir R. Phillimore awarded 3290; and of this he gave 600 to the mate, 510 to each of the three men who had accompanied him; 500 to the owners of the " Scythia " ; and 350 to her other officers and crew.
An agreement as to the salvage to be paid is sometimes made at the time the assistance is given. When made fairly the court will act upon it, though it may turn out to be a bad bargain for one or other of the parties. But if the facts were not correctly apprehended by one or both, or if the position was one of such difficulty that those salved had no real option as to accepting the salvor's terms, the courts will set the agreement aside.
This happened, for instance, where the salving ship refused to rescue 550 wrecked pilgrims from the Parkin Rock in the Red Sea for a less sum than 4000. An agreement had in consequence been signed for their conveyance for that sum to Jedda, two or three days' sail. The Parkin Rock stands 6 ft. above the water, and had bad weather come on the lives would have been in great danger. It was held that the sum asked for was exorbitant; and that the agreement, made under practical compulsion, could not stand (the " Medina," 2 P.D. 5). On the other hand, an agreement to tow, for a fixed sum, a vessel which had suffered considerable damage, was set asjde, and salvage awarded, on the ground that the damaged condition had not been disclosed to the tug when the contract was made (the " Kingaloch," I Spink, 265).
The award of salvage is generally made in one sum against ship, freight and cargo; and those interests contribute to the amount in proportion to the value saved. No distinction is made between the degree of service rendered to one interest and another. But, with a possible exception in the case of life salvage, there is not a joint liability of the several interests. Each is liable to the salvors for his own share, and for no more. The ship cannot be made to pay the cargo's share, nor the cargo the ship's. If, however, the shipowner pays the cargo's share, he has a lien upon it for the amount. In practice the liabilities for salvage are ordinarily adjusted as part of general average. Strictly, however, there is a difference. The liability to pay salvage is a direct liability to the salvors, arising at once, e.g. at the port of refuge, and proportional to the values there; whereas the liability to contribute to a general average loss or expenditure is postponed until the completion or break up of the adventure, and depends upon the values of the interests which have arrived there; which may be very different. (See AVERAGE, INSURANCE, Marine, and also ADMIRALTY JURISDICTION.)
AUTHORITIES. Kennedy, On the Law of Civil Salvage (London, 1907); Abbott, Law of Merchant Ships and Seamen (14th ed,, London, 1901); Carver, Carriage by Sea (sth ed., London, 1909).
(T. G. C.)
2. Military Salvage is analogous to civil salvage. It is defined as such a service as may become the ground for the demand of a reward in the court as a prize court, and consists in the rescue of property from the enemy in time of war. Such cases almost invariably relate to ships and their cargoes; and they have always been dealt with by courts having Admiralty jurisdiction, sitting as prize courts. They involve the determination of two questions : first, whether the property is to be restored to its original owner or condemned as prize to the recaptor ; and second, what amount of salvage, if any, is to accompany restitution. Generally speaking, the first question depends upon the law of nations, which may be taken to be that where a ship has been carried by an enemy infra praesidia, and especially after a sentence of condemnation, the title of the original owner is divested, and does not revest upon recapture by third parties. In such a case, therefore, jure gentium restitution cannot be claimed. The municipal law of civilized countries, however, does not encourage subjects to " make reprisals upon one another " (the " Renard," Marr. Adm. Dec. 222), and laws are generally found, as in England, which as between subjects of that particular state provide for restitution irrespective of any change in the title to the subject matter which may have occurred. But (speaking henceforth of England) in cases which do not fall strictly within these acts, the old maritime law, which was in unison with the general kw of nations, is applied by the courts. Moreover, the English Prize Acts do not apply to foreign owners of recaptured prizes, and therefore no award can be made against them unless in accordance with the law of nations. In practice the courts have acted upon the " rule of reciprocity " where recaptures have been made of the property of formal allies, dealing with them as the allied state would have dealt with English property. In the case of neutral recaptures restitution is always ordered. An exception to the rule of restitution as between British subjects is made in the case of a British ship which has been " set forth as a ship of war " by the captor, and subsequently retaken by a British ship. Such a ship is not liable to restoration, but is the prize of the recaptor. This exception, the object of which is to encourage the capture of armed ships, dates from 1793, previous acts having provided for restitution upon payment of a moiety as salvage. The condition of setting forth as a ship of war is satisfied, where under a fair semblance of authority, which is not disproved, the ship " has been used in the operations of war, and constituted a part of the naval force of the enemy " (the " Ceylon," i Dod. 105). Such a user permanently obliterates the ship's original character, and extinguishes all future ckims to restitution (" L'Actif," Edw. 185).
As to the right to salvage and the amount which will be allowed, this is also a question of the jus gentium, though usually governed by municipal law. The right was recognized so long ago as the 11th century, when the " Consolato del Mare " (see CONSULATE OF THE SEA) laid down elaborate provisions on the subject. In England the first statutory recognition of the right occurs in 1648, when an act of the Commonwealth, which in its outline has been the model for all subsequent Prize Acts, provides that British vessels captured by an enemy and retaken by British ships shall be restored upon payment of one-eighth of the value of the property in lieu of salvage, or one-half in the case of a prize " set forth as a ship of war." From that date until 1864, the date of the act now in force, there have been thirteen Prize Acts dealing with recapture, each of which, except that of 1864, has been passed to meet a particular occasion, and has expired with the cessation of the then existing hostilities. Since the first act, and down to the act of 1805 inclusive, a distinction has always been drawn between a recapture effected by one of the royal ships of war and a recapture by a privateer or other vessel. In the former case the allowance has always been one-eighth, in the latter it varied, but was usually one-sixth. In the act of 1692 a clause taken from a Dutch law gave salvage to a privateer, rising in amount from one-eighth to one-half according to the number of hours the prize had been in the enemy's possession, but this clause has disappeared since 1756. There is no provision in the present act for the payment of salvage, except in case of recapture by one of His Majesty's ships, but it seems beyond question that recaptors are entitled at law to salvage, although they may hold no commission from the crown. " It is the duty of every subject of the king to assist his fellow-subjects in war, and to retake their property in the possession of the enemy: no commission is necessary to give a person so employed a title to the reward which the policy of the law allots to that meritorious act of duty " (the " Helen," 3 C. Rob. 226, per Sir W. Scott). Though it is improbable that privateers will figure in any future war, it may reasonably be anticipated that recaptures may be made by private vessels, and in such cases salvage would probably be awarded, the proportion lying in the discretion of the court. Similarly, salvage is awarded in the case of recapture from pirates or from a mutinous crew. In the case of royal ships the present act allows one-eighth salvage, which in cases of " special difficulty or danger " the court may increase to a quarter. The latter provision is an innovation.
It may appear that the grant of salvage to ships of war, the duty of whose commanders it is, according to the naval instructions, " if possible, to rescue any British vessel which he may find attacked or captured by the enemy, " needs some justification. Objections on this ground have never been seriously treated, it being urged that it is politic to encourage the undertaking of such enterprises, even where they coincide with the path of duty. Where, however, a transport was rescued from under the guns of an enemy by a ship of war, under whose charge she sailed, salvage was refused on the ground that the salvor was only doing what he was bound to do (the " Belle, " Edw. 66). So no salvage is due to a crew who rescue a ship from mutineers, this being only their duty under a subsisting contract (the " Governor Raffles," 2 Dod. 14). On the other hand, a crew who rescue their ship from the prize crew of a belligerent are entitled to salvage, since the capture discharges them from their contract with the owner, and they act as volunteers (the " Two Friends," i C. Rob. 271). In the case of a neutral captured by one belligerent and recaptured by the other, which has been already alluded to, no salvage is as a rule allowed, upon the supposition that if the vessel had been carried into the port of the enemy justice would have been done and the vessel restored. In the case of the French war at the opening of the igth century no such supposition existed, and salvage was usually awarded on the recapture of neutral property from the French. (M. Bx.)
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
