Travaux Preparatoires of the Convention on Salvage 1989.pdf

36 COMITE MARITIME INTERNATIONALIntroductionin <strong>the</strong> 1910 <strong>Convention</strong>. Never<strong>the</strong>less, <strong>the</strong> draft convention is not intended to set out<strong>the</strong> law <strong>of</strong> salvage in any exhaustive manner. The CMI considers that as regards certainquestions <strong>the</strong> solution adopted in <strong>the</strong> various national laws on salvage differ to such anextent that <strong>the</strong> acceptability <strong>of</strong> <strong>the</strong> draft convention might be reduced if an attemptwere made now to bring about international uniformity by provisions which also dealwith such matters. One such matter is <strong>the</strong> question: who is liable for salvage rewards?The question whe<strong>the</strong>r any <strong>of</strong> <strong>the</strong> rules <strong>of</strong> <strong>the</strong> <strong>Convention</strong> should be mandatory hasbeen thoroughly debated and considered. Rules on <strong>the</strong> limits <strong>of</strong> contractual, freedomhave been proposed in Art. 1-5, but in Art. 1-4 it has been provided in general that <strong>the</strong>application <strong>of</strong> <strong>the</strong> rules <strong>of</strong> <strong>the</strong> <strong>Convention</strong> may be excluded by agreement between <strong>the</strong>parties.It has been pointed out from some quarters that at least <strong>the</strong> rules relating to <strong>the</strong>prevention or minimization <strong>of</strong> damage to <strong>the</strong> environment should be compulsorilyapplicable, particularly to avoid haggling and <strong>the</strong> resulting delay when urgent action isrequired <strong>of</strong> <strong>the</strong> kind illustrated by <strong>the</strong> “Amoco Cadiz” incident.However, it was strongly felt within <strong>the</strong> CMI that such limits should not be put oncontractual freedom. In support <strong>of</strong> this it was in particular pointed out that o<strong>the</strong>r rightsor methods <strong>of</strong> compensation provided for by contracts in given cases might be betterincentives or instruments to avoid damage to <strong>the</strong> environment. For example, a salvormay in some cases for instance prefer an agreement under which he is secured <strong>the</strong>immediate payment <strong>of</strong> an agreed daily rate to <strong>the</strong> much later payment <strong>of</strong> <strong>the</strong> moreuncertain sum fixed under <strong>the</strong> rules in Art. 3-3. Fur<strong>the</strong>r, it was feared that <strong>the</strong>introduction <strong>of</strong> mandatory rules would severely jeopardize <strong>the</strong> prospects for <strong>the</strong> fastand wide international implementation <strong>of</strong> <strong>the</strong> <strong>Convention</strong>.It is estimated that more than 80% <strong>of</strong> all salvage operations at sea arc carried outunder a salvage contract. Lloyd’s standard form <strong>of</strong> Salvage Agreement (LOF) is by far<strong>the</strong> most frequently used standard contract.In 1979-80 <strong>the</strong> LOF was thoroughly revised with special regard to <strong>the</strong> problemscaused by oil pollution. The CMI has taken due note <strong>of</strong> <strong>the</strong> innovations <strong>of</strong> <strong>the</strong> new LOF1980 and important parts <strong>of</strong> <strong>the</strong> draft convention are harmonized with LOF 1980. 12One <strong>of</strong> <strong>the</strong> most important problems, viz. how to compensate salvors foravoidance <strong>of</strong> environmental damage if no property is salved, was solved in <strong>the</strong> LOF1980 by <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> so-called “safety net” provision, on <strong>the</strong> basis <strong>of</strong> which<strong>the</strong> draft convention, Art. 3-3. is modelled.O<strong>the</strong>r solutions were considered during <strong>the</strong> work <strong>of</strong> <strong>the</strong> CMI, but it becameobvious that <strong>the</strong> “safety net” model should be preferred mainly on <strong>the</strong> grounds that itexpresses a compromise among all <strong>the</strong> interested parties. Thus <strong>the</strong> compromise is abalanced solution which is not dominated by any <strong>of</strong> <strong>the</strong> interests involved, and worksin <strong>the</strong> general interest <strong>of</strong> <strong>the</strong> public.SPECIAL COMMENTS 13(12) For a detailed account <strong>of</strong> this reference is made to an article in Journal <strong>of</strong> Maritime Law andCommerce, Vol. 14, No. 1, January, 1983: “A New Cure for Salvors? – A Comparative Analysis<strong>of</strong> <strong>the</strong> LOF 1980 and <strong>the</strong> C.M.I. Draft Salvage <strong>Convention</strong>” by Peter Coulthard.(13) The “Special Comments” relate to <strong>the</strong> individual provisions <strong>of</strong> <strong>the</strong> Montreal Draft and,<strong>the</strong>refore, have been moved <strong>the</strong>reunder.