Travaux Preparatoires of the Convention on Salvage 1989.pdf

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226 COMITE MARITIME INTERNATIONALArticle 8 - Duties <strong>of</strong> <strong>the</strong> salvor and <strong>of</strong> <strong>the</strong> owner and mastersalved vessels. He agreed that it was necessary to clarify in what condition <strong>the</strong> shipshould be for a request for delivery to be considered as reasonable and referred to <strong>the</strong>additional wording which <strong>the</strong> ISU had proposed in document LEG 53/3/1. Theadditional words read:“Such request shall not be made by <strong>the</strong> salvor until <strong>the</strong> vessel or property hasbeen preserved from <strong>the</strong> danger from which it was required to be salved and hasbeen brought to a place where a prudent owner would reasonably be expected tobe able to preserve such vessel or property on a non-salvage basis.”16. The attention <strong>of</strong> <strong>the</strong> Committee was also drawn to ano<strong>the</strong>r problem faced bysalvors when <strong>the</strong>y sought to enter ports with vessels after salvage. It was stated thatport authorities frequently requested financial guarantees before permitting <strong>the</strong> entry<strong>of</strong> such vessels. As <strong>the</strong> guarantee requested sometimes extended to various expensesto be incurred by <strong>the</strong> vessel during its stay in port which were beyond <strong>the</strong> control <strong>of</strong>salvors, such as <strong>the</strong> wages <strong>of</strong> dock workers, ISU considered that such guaranteesshould be requested <strong>of</strong> shipowners. It was pointed out that this was particularlynecessary in relation to “non-pr<strong>of</strong>essional” salvors.17. With regard to <strong>the</strong> redelivery <strong>of</strong> a vessel after salvage, a number <strong>of</strong> delegationsconsidered that whe<strong>the</strong>r or not a salvage operation has been terminated was a matter<strong>of</strong> fact to be determined by courts or arbitral tribunals in cases <strong>of</strong> controversy. Some<strong>of</strong> <strong>the</strong>se delegations considered <strong>the</strong> problem raised could be resolved by draftingparagraph 3 more precisely to indicate that <strong>the</strong> redelivery should be accepted when “aprudent master might reasonably be expected to deal with <strong>the</strong> vessel” after a salvageoperation. In this connection, one delegation felt that too detailed drafting <strong>of</strong> <strong>the</strong>provision was not desirable. Many delegates considered that <strong>the</strong> matter could only bedealt with on a case-to-case basis.18. One delegation observed that <strong>the</strong> interests <strong>of</strong> insurers and cargo owners wereimportant in regard to <strong>the</strong>se problems and would have to be taken into account.19. On <strong>the</strong> matter <strong>of</strong> guarantees, many delegations recognized <strong>the</strong> concerns <strong>of</strong> <strong>the</strong>ISU as valid. They noted that what was at issue might be expenses incurred after <strong>the</strong>ship was safely in port and pointed out that some <strong>of</strong> <strong>the</strong>se would be completely outside<strong>the</strong> scope <strong>of</strong> salvage operations. Some delegations were, however, doubtful whe<strong>the</strong>r itwould be justifiable to impose <strong>the</strong> obligation to give such guarantees entirely upon <strong>the</strong>shipowner. The observer <strong>of</strong> <strong>the</strong> International Chamber <strong>of</strong> Shipping pointed out in thisconnection that, if <strong>the</strong> shipowners were made responsible for all guarantees, <strong>the</strong> salvormight not hesitate to accept obligations on behalf <strong>of</strong> <strong>the</strong> shipowner which <strong>the</strong> salvorwould not accept for himself; and port authorities might be tempted in such situationsto require higher guarantees than would be justifiable or acceptable to salvors.20. In this connection, it was pointed out by one delegation that <strong>the</strong> interest <strong>of</strong><strong>the</strong> coastal State could be <strong>of</strong> considerable importance in some circumstances since <strong>the</strong>conditions <strong>of</strong> a vessel after salvage might not always be as sound as <strong>the</strong> salvor mightclaim when he wished to bring it into a port.21. The observer <strong>of</strong> <strong>the</strong> CMI explained that <strong>the</strong> problem <strong>of</strong> guarantees had beenextensively discussed in <strong>the</strong> CMI. The conclusion <strong>of</strong> <strong>the</strong> CMI had been that, as <strong>the</strong>salvor was <strong>the</strong> person in control when a request for guarantees arose, it wasappropriate that <strong>the</strong> salvor should be <strong>the</strong> one to provide that guarantee.22. In <strong>the</strong> light <strong>of</strong> <strong>the</strong> difficulties, it was suggested by <strong>the</strong> Chairman that <strong>the</strong>matter should be fur<strong>the</strong>r studied by <strong>the</strong> parties most concerned with <strong>the</strong> salvage
THE TRAVAUX PREPARATOIRES OF THE 1989 SALVAGE CONVENTION 227Article 8 - Duties <strong>of</strong> <strong>the</strong> salvor and <strong>of</strong> <strong>the</strong> owner and masteroperation so that a solution acceptable to both <strong>the</strong> salvors and <strong>the</strong> shipowners mightbe proposed to <strong>the</strong> Committee by <strong>the</strong> organizations representing those interests.23. There was general support for <strong>the</strong> suggestion that <strong>the</strong> interests concernedshould propose fur<strong>the</strong>r drafting solutions. Fur<strong>the</strong>rmore, it was agreed that nationallaw might deal adequately with <strong>the</strong> problem in many cases.Article 2-2. Duties <strong>of</strong> <strong>the</strong> salvor24. Discussion <strong>of</strong> paragraph 1 centred on <strong>the</strong> usefulness or o<strong>the</strong>rwise <strong>of</strong> <strong>the</strong>expressions “best endeavours” and “due care” in this provision. Some delegations feltthat <strong>the</strong> provisions requiring <strong>the</strong> salvor to use his “best endeavours” were undulyonerous and could constitute a disincentive to undertake salvage operations, especiallyby <strong>the</strong> non-pr<strong>of</strong>essional or casual salvors. Reference was made in this connection to <strong>the</strong>comment on this point made by <strong>the</strong> delegation <strong>of</strong> Japan in a document submitted to<strong>the</strong> Committee at its fifty-third session (LEG 53/3/4). In addition, several delegationsnoted that <strong>the</strong> use <strong>of</strong> “best endeavours” and “due care” in <strong>the</strong> same sentence createdambiguity requiring clarification.25. O<strong>the</strong>r delegations felt that required standards <strong>of</strong> care would be determinedby judges and arbitrators in accordance with <strong>the</strong> facts <strong>of</strong> each situation and that <strong>the</strong>status and efficiency <strong>of</strong> <strong>the</strong> salvor would be taken into account. It was emphasized bysome delegations that even non-pr<strong>of</strong>essional salvors should have a measure <strong>of</strong>responsibility to operate carefully and to make reasonable efforts to avoid damage to<strong>the</strong> marine environment, whe<strong>the</strong>r <strong>the</strong> salvage operations <strong>the</strong>y undertook werecontracted for or not.26. The relation between this provision and <strong>the</strong> remuneration <strong>of</strong> <strong>the</strong> salvor(article 3-2) was also pointed out. It was, however, noted that <strong>the</strong> discharge <strong>of</strong> <strong>the</strong>salvor’s duties under article 2-2,1 did not appear to be a pre-condition for <strong>the</strong> payment<strong>of</strong> reward under article 3-2,1. In particular, reference was made to subparagraph (b)<strong>of</strong> article 3-2,1 in which <strong>the</strong> consideration for fixing <strong>the</strong> reward was limited to “<strong>the</strong> skilland efforts <strong>of</strong> <strong>the</strong> salvors in preventing or minimizing damage to <strong>the</strong> environment”.27. Some delegations emphasized that possible disincentives might arise from<strong>the</strong>se high standards <strong>of</strong> care even if <strong>the</strong>ir implications were left to be determined bycourts or tribunals. If <strong>the</strong> determinations <strong>of</strong> <strong>the</strong> courts and tribunals involved highstandards <strong>of</strong> performance, salvors - particularly non-pr<strong>of</strong>essional salvors - migh<strong>the</strong>sitate before <strong>the</strong>y undertook salvage operations in some cases; and it was evenpossible that some insurers might discourage non-pr<strong>of</strong>essional salvage in somesituations altoge<strong>the</strong>r. In this connection, it was pointed out that shipmasters had inmany cases to make quick decisions on whe<strong>the</strong>r to undertake salvage operations ornot, and a provision imposing a standard <strong>of</strong> performance higher than “due care” from<strong>the</strong>m might o<strong>the</strong>rwise induce shipmasters to avoid getting involved in situations inwhich <strong>the</strong>y might be able to provide useful assistance. These delegations, <strong>the</strong>refore,suggested that <strong>the</strong> provision should be worded simply to establish a standard <strong>of</strong>performance no higher than that <strong>of</strong> “due care”.28. It was noted that <strong>the</strong> concept <strong>of</strong> “best endeavours” featured in <strong>the</strong> LloydsOpen Form (LOF 80), but it was pointed out that, in <strong>the</strong> draft <strong>of</strong> article 2-2, <strong>the</strong>requirement for <strong>the</strong> use <strong>of</strong> best endeavours would apply also to non-contractualsalvage to which LOF 80 was not intended to apply.29. The Committee did not reach a consensus on whe<strong>the</strong>r article 2-2, paragraph
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THE TRAVAUXPRÉPARATOIRESOF THECONV
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Copyright © 2003 Comité Maritime
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VICOMITE MARITIME INTERNATIONALThe
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ForewordThe International C
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Preface and AcknowledgmentMy sugges
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PART ITHE TRAVAUX PRÉPARATOIRESOFT
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THE TRAVAUX PREPARATOIRES OF THE 19
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PART IITEXTS
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