Introduction
To talk about this issue within Maritime Law, we must begin by saying that maritime risks are the result of navigation itself; Therefore, we have to recognize that each trip undertaken by a ship constitutes; according to the British Common Law "A common maritime adventure".
When speaking of risk, we are referring to a future and uncertain event; so it is a potential danger, that is, for the "Maritime Insurance", it is an event or eventuality, which means something that can happen, because if it is avoidable, it is not insurable.
According to the “Codifying Law of the regulatory norms of the“ English Maritime Insurance ”(The Marine Insurance Act / 1906), it qualifies the risk as something that arises from maritime navigation such as: stranded, shipwreck, fire, forced arrival, etc..
As a result of these maritime events, other actions also arise, such as the one that does not correspond to speak today: Salvage.
The importance of this theme lies in the increasingly intense maritime traffic throughout the world and in particular; Because our country is an “Archipelago”, due to its geographical position (known as “La Llave del Golfo”) it maintains constant traffic of ships of all kinds, increasing the possibilities of risks of maritime accidents of the most dissimilar characteristics, both in their frequency, as by its magnitude.
This work will be focused on descriptive analysis of bibliographic topics and comments from experts in the field.
Background
The history of Maritime Salvage is closely linked to maritime navigation itself. Its origins are ancient and obscure; the proof of reward for Salvage is found in the Law of Rhodos from about 800 BC BC.
References to the compensation of the rescuers can be found in the Roles d Olerón, El Consulato del Mare and other medieval codes. Also "L'Ordomance de la Marine" of King Louis XIV of France in 1681 codified "Rules of salvage of cargo in case of shipwreck" but, as a concept, it was adopted from the time when the Phoenicians and the Romans dominated all traffic maritime in the Mediterranean and even the concept of Salvage and General Average were inter-related.
As Maritime Law developed, the majority of countries were incorporating into their national legislation, rules to regulate their practice, specifically in Rescue matters. It was not until 1905 that the International Maritime Committee convened the international maritime community to discuss and approve the draft of a World Convention on Maritime Rescue, which was held in Brussels, Belgium in 1910. This Convention was signed by Cuba, but not ratified, so it is not valid for our country.
Following the Doctrine
In the “Common Law” (English), the term “Salvage or Salvage” is used for totally abandoned ships, as for ships still with crew but in danger. This term is used for cargo and property involved in salvaging a shipwreck, historically classified as flotsam / Jetsam (prices), ligan or lagan (shipwreck).
In Civil Law systems, such as France, contrary to Common Law countries, they establish a difference (traditionally) between “Sauvatage or Salvage”, which was the salvage of an abandoned ship, giving the savior a share of the saved property; and Asistencia or Assistanse, which was to save a ship from danger, but still with Crew, giving the rescuer the right to monetary compensation.
Today, this distinction is rejected in favor of the term "Assistance" only, because Article - 1 of the Salvage Convention of 1910, in its final phase states, that it is not necessary to distinguish between these (2) types of service.. On the other hand, we have the opinion of Lic. Yindra Ruíz Ortiz who maintains that:
“Assistance is the aid or relief that is given to a ship to avoid damage to the ship, the cargo, the passenger, or the crew; On the other hand, “Salvage is that institution of Maritime Law whose purpose is the provision of services by one ship to another, to mitigate the accident that has already occurred, based on the principle of collaboration and cooperation in the marine world, before the dangers that threaten during boating activity; in return, the salvage ship will have the right to obtain remuneration from the salvaged ship, provided that it has been successful in the services rendered ", that is, the salvage involves an intervention that is carried out after the maritime accident has occurred, in order to to lessen its effects, bring the ship ashore and save the cargo and people on board.
Although some codes (continues Lic. Yindra) such as: Belgian, Spanish and English identify and consider them as a single institution, whose objective is to intervene to avoid or remedy maritime accidents.
The difference between the two (according to Yindra), can be summarized as follows:
to. Assistance implies an imminent accident that is to be prevented, while Rescue implies an accident that has already occurred, the consequences of which are to be reduced.
b. The Assistance consists of a collaboration with the personnel fighting on board the ship, while the Salvage assumes that said personnel have given up the fight.
As an essential requirement of Salvage (Yindra concludes), there must be damage, unlike Assistance, where it is a matter of avoiding the loss. Likewise, Salvage also has its own rules, such as:
- It must be a voluntary service provision. The service must be provided, only to known objects such as the ship, cargo and others. The object that must be saved must be in danger. The service provided must have successful results.
However, since Cuba is a Civil Law system, there is no clear distinction between Rescue and Assistance in our legal system and it is only briefly mentioned in Art-952 subsection 3 of our Commercial Code. (one).
Everything seems to indicate that the matter is reduced to the semantic aspect, but as a reference in particular, I highlight a case that, during the discussions to amicably solve a rescue carried out in the Havana bay, with the clear intention of paying a lower amount, Due to the successful operations carried out on his ship, a foreign Shipowner with foreign legal advice raised the theory that, "any rescue operation carried out within the Bay was an Assistance and not a Salvage."
As a friendly arrangement in the end (continues Lic. Lucas), the discussion did not focus on the conceptual aspect of the service, but on the amount itself, finally accepting the savior, a sum to their satisfaction, otherwise, the action legal against the vessel would have been taken immediately. Take into account that this Salvage was certified, given the circumstances of danger that the port security ran by virtue of the type of accident and not under any contract with the Shipowner.
(1) Lic. Luis L. Rodríguez Pérez. The Salvage
As a practical aspect, it is very important to note that by virtue of the legislation of the country of that Shipowner, it could really be the way proposed, but in any case, the applicable law would be that of the country where the rescue or International Legislation was executed, If the first one is not clear.
There are also authors who propose a second conceptual distinction of Salvage, related to “Salvage Operations”.
This is given, both by the International Conventions on salvage of 1910 and 1989, which when defining salvage refer to salvage operations, but the truth is that they are the same thing; How could a rescue be carried out without operations or work being carried out for that purpose? In essence, it is the same. In this regard, I adhere to the criterion mentioned in the 1989 International Convention when conceptualizing salvage as follows:
"Salvage operations mean any act or activity undertaken to assist a ship or any other property in danger in navigable waters or in any other type of water."
In this regard, I will mention how the laws of (2) of the most significant Latin American countries reflect it due to their size and area.
- Mexico: The Navigation Law says in its Art-120: “A rescue operation is understood to be any act or activity undertaken to assist or assist a vessel or naval device or to safeguard other assets that are in danger in navigable or in other waters ”. Argentina: Unlike the Mexican law, this Navigation Law does not define salvage in a single article, but rather breaks it down into several of them. This is how Art-371 refers: “Any act of Assistance or Rescue that has not been provided against the express and reasonable will of the Captain of the ship in distress and that has obtained a useful result, gives the right to receive an equitable remuneration, called salary of assistance or rescue and that cannot exceed the value of the assisted goods ”.
In this way, this legislation deals with rescue, without there being a single Article, in which it establishes the difference with Assistance.
It should be taken into account that, although the Trailer is not the aspect to be dealt with in this work, I consider it pertinent to outline some criteria on it.
The Trailer, which can be carried out by tugboats, has (2) aspects that cannot be confused and that sometimes brings disputes in courts and arbitration courts. One is as a towing service "per se" and the other as part of a salvage service.
In the 1st. In this case, the ship is not necessarily exposed to a real and imminent danger; In general, it is a service that is provided in port, without excluding other areas, but with the main purpose of moving a ship or other vessel from one place to another or helping to reach a certain position without being exposed to danger.
In the 2nd. In any case, there is no further explanation other than that the trailer remains within the salvage service and is not part of a contractual ship-tug relationship.
Trailer is really well defined in most laws and if not, by custom, as one of the auxiliary services.
Most used contractual forms.
The conclusion of a rescue contract is no less important than the choice of competent rescuers.
There are (2) modalities under which the salvages are essentially agreed upon, as well as, each modality may have several formats that are applicable according to the legislation and custom of each country or geographic area, such as Japan, which has its own standard contracts and arbitration rules to settle disputes in these matters. However, the Japanese, out of context, also use the other types of contracts.
In addition to what has been said so far, the salvage can be done without a signed contract, as it can happen in common legal practice.
This type of rescue can occur in several ways:
- Powered by National Law or Authority, when safety for navigation or other circumstance that advises it is endangered. Powered by International Maritime Law Standards By sole will of the savior, when circumstances justify it.
In these cases, rescuers will be entitled to receive reasonable remuneration derived from the services rendered.
In addition, there is another type of rescue; the one that is carried out by a vessel of the same "Owner or Operator", the named "sister ship".
This may occur, if when the accident occurs, a sister ship is in the vicinity, also considering; a salvage without a contract, since not all Standard Policies cover this type of salvage vessel (risk). In this case, if there are no regulations in the maritime laws of the countries involved; It is generally accepted that at least the delay and diversion costs incurred by the rescue ship be adjusted or, if it failed to save it; for the attempt made.
Regarding the property and values saved as well as the remuneration for the salvage, it must always be borne in mind that in the Maritime Adventure, (as almost always happens) several interests are involved; cargo, freight, fuel in the case of the Time Charter, etc.
All these interests are obliged to contribute in the remuneration for salvage, in proportion to the value of their properties saved respectively.
Unless otherwise agreed, the aforementioned remuneration can be decided by agreement between the parties involved or through a neutral body.
Salvage claim
When a rescue is made, as has been said, the rescuer has the right to receive an award for the services performed or at least to have the expenses incurred reimbursed. Then, all the interests receiving the service must pay their share corresponding to the salvage in the amount that corresponds to them. If an agreement is not reached between the parties for this purpose, they should deposit a guarantee (according to the contracts they usually collect), such as finances, subject to the decision of the neutral body that resolves the matter. This guarantee will be provided separately and independently from the respective owners of the goods.
Otherwise, the rescuers have the right to execute, in 1st. Place, the lien on the salvaged assets and will have the right to seize them (defined and provided for in the salvage contracts).
As far as the ship is concerned, the rescuer may request its arrest by virtue of the Maritime Credit in accordance with the 1952 Brussels “Arrest Convention”; This being a credit guarantee, the merits of which may be settled in Cuban or foreign jurisdiction, depending on the circumstances.
This is the Credit that the rescuer has on the ship itself and therefore, the action that is exercised will be an “in rem” action. Nor is it ruled out in this case that an action be exercised "in personam" against the Shipowner or Charterer, under the modality of Charter or Naked Hull, when it is exercised on a sister ship of the one, on which the credit rests and for the same credit.
Regarding cargo, freight, fuel and other salvage goods; Any claim is dealt with under common law, given the lack of international law that regulates it; and according to the nature of the assets, over which an action would be brought, it should be an action "in personam", for obvious reasons.
Regarding the right of retention, as in almost all contracts related to maritime activity; The party that owns the credit (in this case the savior), is authorized, by the letter of the contract and in correspondence with almost all the civil and commercial laws, (including ours), to exercise that right over the saved goods, until legal action is taken.
Hence, the guarantees issued in these cases are usually under generally known and accepted texts, in order to avoid collateral lawsuits derived from them and these are granted by:
- Insurance Companies Protection and Indemnity Clubs or First Class Banks
Therefore, the salvage is a Maritime Credit, as stated in the Brussels Arrest Convention of 1952 in its Art-1 "Maritime Credit" means allegation of a right or a credit that has one of the following causes:
(Section C) Assistance and Rescue
Hence, the scope of this credit carries the category of Maritime Privilege, since according to the "Brussels Convention" of 1926 on "Maritime Privileges and Mortgages", the credit, born from the salvage of a ship, appears, according to Art - 2, in the 3rd order of priority in relation to other credits as important as those arising from the “Boarding” or other navigation accidents.
An important aspect of the letter of the Convention, to bear in mind and on which our attention must fall, is that, in its Art-8 it establishes: "The privileged credits follow the ship, whatever the hand to which it belongs".
This is one of the reasons, on the action "in rem" that falls on the ship, since the credit does not die with the mere change of owner, name, flag or port of registry. The credit follows it, until the ship is compensated or dies. In this case, the action "in personam" would also fit, against that person or charterer or bareboat, at the time the credit was born.
Salvage-insurance relationship
Without the intention of going into a subject that is not the subject to be explained, it would be the subject of another dissertation; I will only refer to highlighting some aspects of interest.
The generality of the "Helmet and Machinery" Policies cover salvage expenses, therefore, this type of risk is considered by some as Fault-Expense.
That is why when the insured ship suffers sinking, stranding, fire, collision or any other kind of damage; the expenses necessary to prevent damages greater than those suffered up to that moment or the increase in losses to the cargo, as well as the expenses to save the ship, its crew, cargo or other goods on board, to take it to a safe place and the remuneration to the saviors; they are covered by the "Insurance Policies".
The rescue is generally requested by the Captain of the ship in danger or accident and therefore in the requirements of the "General Average", namely; that the Expenditure or Sacrifice was intentional, extraordinary, reasonable; with the sole purpose of preserving the properties involved in the "common maritime adventure" from danger.
When the rescue has been carried out compulsory or without a contractual relationship, the remuneration for the rescue is covered by the Clause of "Demand and Labor", of the policy, provided that it has been carried out, within of the limits established by the policy.
It is noteworthy that as a General Avería ”, all the goods saved must contribute to the same in the proportion that corresponds to them, to the payment for rescue services.
It is necessary to remember that with respect to the remuneration for the prevention of pollution; this risk is covered by the Rules of the Protection and Compensation Clubs (P and I Club).
Salvage in Cuban Legislation
This Institution is very briefly included in our substantive legislation, specifically in articles 842, 843, 844 and 845 of the Commercial Code, which are not adapted to the current prevailing reality.
From the reading of these articles, it is evident, as an admitted risk, the Shipwreck without the presence of the innumerable risks that the ship faces during the voyage.
However, in international substantive legislation, salvage is included in the 1989 London Salvage Convention, of which Cuba is not a signatory, nor has it assumed it in its Legal Order.
This Convention is the heir to the Brussels Convention of 1910, of which Cuba is a signatory, but it has not retified it.
The 1989 Convention entered into force in 1996 and made profound changes regarding the nature of salvage, since the previous one (1910) had been based only on the traditional principle "If you don't save, don't pay" (No-cure, No-pay). Although, under the terms of the 1989 Convention, remuneration for salvage is still based on this principle, it is no less true that it has encouraged rescuers to face the risks that threaten the marine environment caused by oil and gas pollution. other substances.
Salvage is also regulated in other International Conventions but under a more procedural nature, although it also deals, on a lesser scale, with the substantive aspect.
Such Conventions are: Brussels 1926 and 1952 on "Maritime Privileges and Mortgages" and on the "Preventive Seizure of Ships, destined for maritime navigation, respectively.
In the particular case of Cuba, given its legal vacuum in salvage matters and consequently, with international practice, it has been applying, since its very emergence, the Pro-forma:
LOF No-Cure, No-Pay, corresponding to the year of update; for example: LOF-2000; that is, the latest version of this type of contract.
This version has incorporated into its terms and conditions, some articles of the 1989 Convention that are usually relevant, in order to avoid disputes in the courts due to an anarchic interpretation of them, by the parties to the contract.
This means that in that rescue, in which a Cuban entity intervenes, either as a rescue or rescue, under this type of contract, which, moreover, is the most used internationally, is submitting, as regards the signed contract, to the mentioned Convention.
In this way, my consideration is, that with this, the existing legal gap in our "Ordinance" on the matter in question is being filled.
Finally, you could consider that, if we refer, for example, to the Mexican, English or many other countries' Navigation Law, it can be appreciated that in addition to establishing its own rules; subject to it, in the other aspects, to which the Convention establishes.
Conclusions
So; Without the intention of exhausting the maritime salvage issue, we can arrive at the following:
The latent risk in the Maritime Adventure (by others uncertain), causes the urgent need to continue advancing as far as international legislation is concerned; to the categorical determination of these in the contemporary legislative field, so it is necessary to continue evolving in pursuit of accident prevention.
We can assure that, among the causes that give rise to the occurrence of maritime accidents (provoking rescue actions), is the permissive regime granted by the Flags of Convenience that contribute to increase the dangers of navigation.
This aspect, despite being addressed in the International Conventions, under definition criteria, has been questioned regarding the effectiveness that it may have in the international framework of Maritime Law.
Among the maritime accidents that cause the greatest number of salvages we can observe:
The shipwreck, the stranding, the collision, fires, but the most significant at international level, we can cite the shipwreck, due to the damages caused to both the ship and the cargo and people on board it.
In our country, maritime activity is frequently practiced given our characteristic of "Island" and over the years, its development increases. Therefore, starting from the maritime traffic generated by international exchange, it would be appropriate to put into force legal regulations that are in correspondence with current conditions, such as the promulgation of a Maritime Code that regulates the principles of this activity, based on the which, the law that regulates it is considered as an independent branch.
Taking into account the variability of risks and the importance derived from the claims, as well as the serious consequences that their occurrence causes, we consider it necessary to study and analyze the creation of a regulation adapted to our needs and maritime-geographical characteristics in the one that regulates the aspects related to rescue in our marine environment, in order to give it a more specific treatment that allows to regulate everything concerning the rescue activity.
recommendations
Within this study in the maritime field, the need to replace the old Commercial Code of 1885 is observed, not only in terms of the replacement of the articles on the institution that concerns us in this work, but also, that work is done on the preparation and promulgation of a Maritime Code in accordance with the prevailing realities in maritime activity.
Annexes
1. Policy. Standard Form of Salvage Agreement No-cure, No-pay Short Form.
2. Policy Standard Form of Salvage Agreement No-cure, No-pay LOF-2000 (Complete Form of LOF).
3. Lloyd's Standard Form of Salvage Agreement. Lloyd's Standard Salvage and Arbitration Clause (Lloyd's Clause on Arbitration and Salvage) LSSA
4. Lloyd's Standard Form or Salvage Agreement. Procedural Rules.
5. Special Compensation P and I Club (SCOPIC). Special compensation from the Protection and Compensation Club of London, England.
6. Code of Practice Between International Salvage Union (ISU) and International Group of P and I Club (P and I Club). Code of methods between the International Salvage Union and the London Group of Protection and Indemnity Clubs.
7. Code of Practice Betwen Internacional Group of P and I Clubs and London Property Underwriters regarding the payment of fees and Expenses of the SCR Ander SCOPIC. Code of methods between the London International P and I Group and the London Insurers' Assets regarding the payment of SCR (Shipowner's Representative for Claims) Fees and Costs, under the SCOPIC clause.
8. Salvage Guarantee Form ISU (Letter of Guarantee Form ISU).
Bibliography
1. Abreu Fernández, Dr. Alberto: The Law in Maritime Transport. Editorial Félix Varela 2006.
2. Álvarez Boudet, Dr. Bernardino: Maritime Law. Editorial del MES, 1986.
3. International Chamber of Navigation. London, England and International Maritime Forum of Oil Companies. Bermuda: Dangers of the Sea and Rescue. 5th. Edition 1998.
4. De Man Marc. Lawyer Montreal, Canada. Titular Vice President of the Maritime Branch: The Salvage.
5. Rodríguez Pérez, Luis L., Bachelor of Maritime Law: General Overview on Maritime Rescue.
6. Richard HJP Harvey-David Harris. Seminar on Maritime Rescue for Antillana de Salvamento. Havana, Cuba, 2002 (Richards Butler International Law Firm Magazine).
7. Ruiz Ortiz Yindra. Lic. In Maritime Law: Regulation of Maritime Accidents in Cuba, Database. CIBEDATA 2008.
Legislations Consulted
1. Commercial Code adopted in Spain in 1885 and extended to Cuba in 1886.
2. Salvage Convention / 1910. Brussels, Belgium.
3. Convention on Salvage / 1989. London England.
4. Convention on Maritime Privileges and Mortgages / 1926. Brussels, Belgium.
5. Convention on Freezing of Ships / 1952. Brussels, Belgium.
6. London Salvage Asociation. London England.
7. Marine Insurance Act / 1906 London, England.
