Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter S.2: Salvage

Laura Carpaneto

I. The concept and notion of salvage

Salvage may be defined as the activity undertaken by a person, the ‘salvor’, to assist properties and/or persons in danger. When the above-mentioned activity is successful, the salvor is entitled to remuneration, the amount of which may also have been determined in advance by the parties through a binding agreement.

The principle underlying this rule is that protection of property and lives is of paramount importance and salvage must therefore be encouraged (see, with specific reference to maritime salvage, Christopher Hill, Maritime Law (6th edn, Informa Law from Routledge 2003) 335).

Civil salvage is distinguished from military salvage, which involves the rescue of property from an enemy in times of war (nowadays of virtually no practical importance, see Francis Rose, Kennedy and Rose Law of Salvage (8th edn, Sweet & Maxwell 2013) 10).

The ancient law on salvage particularly concerned civil maritime salvage, ie the salvage of persons and maritime property at sea. Accordingly, the notion of salvage is traditionally linked to shipping and navigation of the seas.

Various notions of salvage have been adopted in national legal systems. Under common law, salvage comprises all activities necessary to save maritime property or lives of persons belonging to any vessel when in danger. Some civil law legal systems have drawn a distinction between ‘assistance’ (assistance in French or assistenza in Italian) and ‘salvage’ (sauvetage in French or ricupero and ritrovamento in Italian; see Francesco Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione (Guiffrè 2011) 459, 464–7). This distinction was formally acknowledged by the first international uniform convention on salvage (1910 Salvage Convention (International Convention of 23 September 1910 for the Unification of certain Rules of Law related to Assistance and Salvage at Sea, in K Zweigert and J Kropholler, Sources of International Uniform Law, vol 2 (AW Sijthoff 1972) 7; 206 LNTS 220)). This Convention expressly covers both salvage and assistance, providing for the same regime for both. However, this Convention has progressively become obsolete and at international level the common law interpretation of the notion of p. 1596salvage has prevailed. In effect, the last international convention adopted on salvage (1989 Salvage Convention (International Convention of 28 April 1989 on Salvage, 1953 UNTS 165)) makes no express reference to assistance and defines a salvage operation as ‘any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other water whatsoever’ (art 1 1989 Salvage Convention).

II. The international law of salvage: the 1989 Salvage Convention and its wide sphere of application

Although salvage has ancient origins (see Tjard-Niklas Trümper, ‘Salvage’ in Jürgen Basedow and others (eds), The Max Planck Encyclopedia of European Private Law, vol 2 (OUP 2012) 1517, 1518), it became a particular concern of international law at the beginning of the 20th century.

As mentioned, the first international uniform law instrument adopted is the 1910 Salvage Convention, which originated with the Comité Maritime International. This Convention was extended to salvage of aircraft, by way of a second international instrument, the 1938 Brussels Convention on salvage of aircraft (Convention for Unification of Rules Relating to Assistance and Salvage of Aircraft or by Aircraft at Sea of 19 September 1938, available at <www.mlaus.org/download/1340.pdf>; see Arnold Knauth, ‘The Aviation Salvage at Sea Convention of 1938’ (1939) 10 Air Law Review 146) and to salvage by or to warships and state-owned ships by the Protocol of 27 May 1967 to amend the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea of 23 September 1910 (available at <www.admiraltylawguide.com>).

When the Amoco Cadiz disaster occurred in 1978, the international community was required to revise the 1910 Salvage Convention, so as to minimize the negative impact of maritime traffic on the environment. The principal defect of the 1910 Salvage Convention was that a salvor acting independently to prevent pollution as opposed to saving property had no entitlement to remuneration. Thus there was little incentive for the salvor to undertake such operations.

This problem was partially solved at contractual level through the insertion within the contractual standard form (LOF; acronym for Lloyd’s Open Form) of a specific clause providing a remuneration to the salvor even in the absence of cure (ie the so-called ‘safety net’). It was then addressed expressly in the course of revising the 1910 Salvage Convention.

The 1938 Brussels Convention on salvage of aircraft is the third attempt to codify the law of salvage at international level. This Convention expressly envisages the possibility of a ‘safety net’ for the salvor and it also introduces specific rules regarding state-owned ships as well as warships and state-owned cargos. However, this Convention makes no express reference to aircraft.

The 1989 Salvage Convention takes precedence over the previous 1910 Salvage Convention in regulating the relationship among states having ratified both Conventions (by virtue of the principle lex posterior derogat legi anteriori). Pursuant to its art 2, the 1989 Salvage Convention is to be applied erga omnes, in all (judicial and arbitral) proceedings on salvage taking place in a Member State of the Convention, regardless of the →nationality of the ships involved.

As for judicial proceedings, this means that the 1989 Salvage Convention applies as →lex fori, regardless of the existence of international subjective or objective elements, and that it takes precedence over national law and, more precisely, over national substantive as well as choice-of-law rules.

As for arbitral proceedings, art 2 states that the arbitrators of an arbitral proceeding seated in a Member State of the Convention are bound to apply the 1989 Salvage Convention. However, the 1989 Salvage Convention will certainly be applied in arbitral proceedings when the applicable law (chosen by the parties, or in the rare cases where party choice is absent, that determined by the relevant choice-of-law rules) is the law of a state which is party to the Convention itself. This is because the law of the state necessarily includes not only the lex mercatoria, but also the mandatory uniform rules of the 1989 Salvage Convention (Andrea La Mattina, L’arbitrato marittimo e i principi del commercio internazionale (Giuffrè 2012) 46, 213–14 and 214 fn 123).

Central to the definition of the sphere of application of the 1989 Salvage Convention is the definition of salvage, which, as mentioned, is based on a common law definition (art 1). No distinction is drawn between vessels, their apparel, cargo or wreck. Pursuant to art 1 ‘vessel’ means any ship or craft, or any structure capable of navigation, while ‘property’ means p. 1597any property not permanently and intentionally attached to the shoreline, including freight at risk (art 1). As pointed out by the German delegate during the drafting of the Convention, the 1989 Salvage Convention’s purpose is to go beyond the sphere of application of the 1910 Salvage Convention and not to confine itself to vessels and their cargo. Thus, ‘any property outside the vessel which is not intentionally and permanently attached to the shoreline’ can be a separate object of salvage, so it can be a diamond, a car or a helicopter plunging into the water’ (see Travaux préparatoires of the 1989 London Salvage Convention, p 56, available at <www.comitemaritime.org>; see also Francesco Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione (Guiffrè 2011) 459, 471).

In light of the foregoing, the 1989 Salvage Convention may be applied also to the salvage of an aircraft, despite the absence of express reference to aircraft (which, as mentioned, were by contrast expressly considered by the 1938 Brussels Convention on salvage of aircraft, extending to them the regime of the 1910 Salvage Convention).

At the same time under art 3 1989 Salvage Convention, properties permanently and voluntarily linked to the shoreline, fixed or floating platforms or mobile offshore drilling units, when engaged in exploration, exploitation or production of sea-bed mineral resources clearly fall outside the scope of application of the 1989 Salvage Convention.

By way of reservation, however, any state may decide not to apply the Convention to certain specific cases, such as (i) when the salvage operation takes place in inland waters and the vessels involved are of inland navigation or no vessels are involved, (ii) when the interested parties are nationals of that state, (iii) when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is located on the sea-bed (art 30).

Given its broad sphere of application and the small number of reservations made under art 30(d), the 1989 Salvage Convention needs to be coordinated with other existing international conventions on the law of the sea. More precisely, the 1989 Salvage Convention takes priority over the UNCLOS (United Nations Convention of 10 December 1982 on the Law of the Sea, 1833 UNTS 396). Thus art 303 of the UNCLOS expressly states that ‘[n]‌othing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges’. The 1989 Convention also takes priority over the 1992 CLC (International Convention of 27 November 1992 on civil liability for oil pollution damage, 1956 UNTS 255) and over the 1971 Fund Convention (International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971, ceased to be in force 24 May 2002, 1110 UNTS 57). While under the 1910 Salvage Convention the criterion used in order to understand which regime of compensation should be applied was that adopted by the Italian judges in the Patmos case (ie to identify the primary purpose of the measures taken, see Trib Messina, 30 July 1986, Esso Italiana S.p.A. e altri c. Patmos Shipping Corp. e altri [1986] Dir Marit 996 and Corte di Appello Messina, 24 December 1993 [1994] Dir Marit 1076), under the 1989 Salvage Convention it is now clear that, at least when contractual salvage arises, the Convention takes priority by virtue of the application of its art 8 and 14 (see Francesco Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione (Guiffrè 2011) 459, 496). Otherwise, when salvage is spontaneous, the regime to be applied should be identified having regard to the specific features of the salvage operations at stake. This reasoning may be applied for example when considering whether the 1989 Salvage Convention prevails over other relevant international conventions such as the Bunker Convention 2001 (International Convention of 23 March 2001 on civil liability for bunker oil pollution damage, IMO Doc LEG/CONF 12/19, 40 ILM 1406), the HNS Convention (International Convention of 3 May 1996 on liability and compensation for damage in connection with the carriage of hazardous and noxious substances by sea, 35 ILM 1406; as amended by the Protocol of 20 April 2010 to the International Convention on liability and compensation for damage in connection with the carriage of hazardous and noxious substances by sea, IMO Doc LEG/CONF.17/DC/1 (29 April 2010)) and the Removal of Wrecks Convention (Nairobi International Convention of 18 May 2007 on the Removal of Wrecks, IMO Doc LEG/CONF 16/17, 46 ILM 697). In other cases, specific rules should be provided – for example, when it is necessary to establish how the 1989 Salvage Convention is to be coordinated with (i) the 1969 Intervention p. 1598Convention (International Convention of 29 November 1969 Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 970 UNTS 211) and its 1973 Intervention Protocol (Protocol relating to intervention on the high seas in cases of pollution by substances other than oil of 2 November 1973, 1313 UNTS 3), as well as with (ii) the UNESCO Convention of 2 November 2001 on the Protection of the Underwater Cultural Heritage (2562 UNTS 3; on this latter, see G Brice, ‘Draft Protocol to the Salvage Convention 1989’ [1999] CMI Yearbook 360 and RE Japikse, ‘First Report on Unesco Draft Convention on the Protection of Underwater Cultural Heritage’ [2001] CMI Yearbook 254).

III. The 1989 Salvage Convention: an overview of its substantive rules

Three categories of salvage operation were foreseen by the 1989 Salvage Convention: (i) mandatory salvage, arising when the master of the ship – so far as possible without serious danger to the vessel and persons thereon – is bound to render assistance when persons are in danger of being lost at sea (art 10); (ii) spontaneous or volunteer salvage, which happens when the salvor, facing a situation of danger for a ship and its cargo, offers salvage services without a contractual obligation to do so and even when unreasonably the master of the endangered ship expressly refuses any help; (iii) contractual salvage, when a contract for salvage operation has been concluded by the master (on behalf of the owner of the vessel) and the salvor. The transformation from volunteer to contract salvage is very frequent in practice, in that the salvor often starts the salvage operations on a volunteer basis and then concludes a contract with the master.

However, in all three categories of salvage operations considered by the 1989 Salvage Convention, the relationships between the person rendering the salvage services and the person receiving them are private in nature, save when regulated by the contract, rights and duties of the parties involved in salvage operation are governed by art 8 of the 1989 Salvage Convention.

Regarding contractual salvage, the use of standard contract forms is frequent (but not mandatory), formalizing parties’ rights and duties as well as compensation rules. The latest version of the standard contract is the Lloyd’s Open Form of Salvage Agreement (LOF 2011, see John Reeder, Brice on Maritime Law of Salvage (5th edn, Sweet & Maxwell 2011) 532 and Appendix 5), a document in two parts, the first of which has to be completed with the essential information related to the contract (such as the salvage contractors, the property to be salved, whether the SCOPIC clause – an acronym for special compensation protection and indemnity clause – is incorporated or not into the agreement), while the second part lays down the salvage contractual terms, many of them referring expressly to the rules of the 1989 Salvage Convention (see Emilio Piombino, ‘Il Lloyd’s open form 2000 e la Scopic clause’ [2001] Dir Marit 1233–43 and ‘Notiziario’ [2012] Dir Marit 330).

As regards compensation, the 1989 Salvage Convention expressly confirms the ‘no cure – no pay’ principle, originally stated by the 1910 Salvage Convention, whereby a certain degree of success in the salvage operation is sufficient and at the same time necessary to claim compensation. The actual amount of compensation will be calculated taking into account several criteria, expressly listed in art 13 (such as the salved value of the vessel and other properties, the skill and efforts of the salvors in preventing or minimizing damage to the environment, the measure of success obtained by the salvor, the nature and degree of danger, the skill and effort of the salvors in salving the vessel, other properties). However, the list is not intended to be exhaustive and other elements may be considered. The only restriction expressly provided for is that compensation (aside from interest and legal expenses) may not exceed the value of the ship or properties saved.

As an exception to the general ‘no cure – no pay’ principle, art 14 envisages the special compensation rule, whereby the salvor preventing or avoiding →damages to the environment will be granted a special compensation (ie an increase up to 30 per cent of the expenses incurred by the salvor or even more, provided that the total increase is not over 100 per cent of the expenses incurred by the salvor).

The impact of this rule has been mitigated by the well-known decision of the then House of Lords in the ship salvage case Nagasaki Spirit (Semco Salvage & Marine Pte Ltd v Lancer Navigation Co Ltd (The Nagasaki Spirit) [1997] 1 Lloyd’s Rep 323), where it was stated that the notion of ‘fair rate for equipment, personnel actually and reasonably used in the salvage p. 1599operation’ under art 14.3 meant a fair rate of expenditure and did not include any element of profit. More precisely, as Lord Mustill stated (Semco Salvage & Marine Pte Ltd v Lancer Navigation Co Ltd (The Nagasaki Spirit) [1997] 1 Lloyd’s Rep 323, 332),

the promoters of the Convention did not choose, as they might have done, to create an entirely new and distinct category of environmental salvage, which would finance the owners of vessels and gear to keep them in readiness simply for preventing damage to the environment. Paragraphs 1, 2 and 3 of article 14 all make it clear that the right to special compensation depends on the performance of salvage operations which . . . are defined by article 1(a) as operations to assist a vessel in distress. Thus although article 14 is undoubtedly concerned to encourage professional salvors to keep vessels readily available, this is still for the purposes of a salvage, for which the primary incentive remains a traditional salvage award.

The Nagasaki Spirit decision therefore required a high standard of proof, ie that the environmental damage would have resulted but for the salvor’s intervention and also regarding the extent of damage had the operation been unsuccessful. However, in order to overcome the difficulties encountered in the application of the special compensation regime provided by the 1989 Salvage Convention, a specific clause (called the SCOPIC clause), has been introduced in the latest version of LOF. The SCOPIC clause makes possible the application of pre-established criteria for the calculation of the special compensation which the owner of the saved properties has to pay in favour of the salvor. The SCOPIC clause will be applied only when it gives rise to a compensation higher than that deriving from the application of art 13 of the 1989 Salvage Convention.

It should finally be considered that the 1989 Salvage Convention does not introduce the concept of liability salvage. In other words, the Convention does not consider the ship’s interest in avoiding third-party liabilities as in itself relevant, and accordingly does not extend the salvage concept to take account of salvage potentially preventing or minimizing damage to third-party interests.

IV. Jurisdiction

As mentioned, under its art 2, the 1989 Salvage Convention should apply whenever a judge of a State Party to the Convention (as well as – within the limits stated under section II. above – an arbitrator of an arbitral proceeding with seat in a State Party to the Convention) is called upon to decide a salvage dispute. However, with modern salvage operations largely governed by LOF 2011, which incorporates an arbitration clause, the number of cases coming before the courts has considerably decreased (Francis Rose, Kennedy and Rose Law of Salvage (8th edn, Sweet & Maxwell 2013) 4).

However, despite the reduced number of salvage cases being litigated, when an EU Member State court is seized with a salvage dispute and the defendant’s domicile is within the EU judicial area, then the rules of the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)) will apply, as salvage falls within the notion of civil and commercial matters, and art 7(7) provides an express title of jurisdiction for the payment of salvage remuneration.

An EU Member State court may have jurisdiction in the first place by virtue of choice-of-court agreement. However, apart from standard contracts incorporating arbitration clauses, the parties may reach agreement on the salvage operations even when the operations have already started, and grant jurisdiction to a specific court within the EU (art 25 Brussels I Regulation (recast)).

Where no express or implied choice has been made by the parties, the general jurisdiction rule of the defendant’s domicile applies (art 4 Brussels I Regulation (recast)).

As alternatives to the general forum of the defendant’s domicile and depending on the object of the dispute (ie concerning contractual or non-contractual obligations arising from salvage operations), art 7(1) or art 7(3) of the Brussels I Regulation (recast) may apply. For example, the dispute on contractual salvage between salvor and shipowner may fall within art 7(1), while cargo interests may sue a would-be salvor under art 7(3) for negligence (see Peter Mankowski, ‘Art 5’ in Ulrich Magnus and Peter Mankowski (eds), Brussels Ibis Regulation (Ottoschmidt 2016), 367).

However, as mentioned, a specific forum for disputes concerning the payment of salvage remuneration is envisaged by art 7(7) of Brussels I Regulation (recast). The provision was p. 1600originally included in the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1) on the occasion of the accession of the →United Kingdom, →Ireland and →Denmark (1978), on specific request of the maritime community in the City of London in order to acknowledge the established practice with maritime dispute, especially in salvage, centred in London (see Schlosser Report (Peter Schlosser, ‘Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978’ [1979] OJ C 59/71) 108).

Art 7(7) Brussels I Regulation (recast) states that, with specific regard to disputes concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, the person with domicile in an EU Member State may be sued

in the court under the authority of which the cargo or freight in question (a) has been arrested to secure such payment or (b) could have been so arrested, but bail or other security has been given; provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or has such an interest at the time of salvage.

The same rule is provided in the 1988 →Lugano Convention (Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1988] OJ L 319/9) and 2007 Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3) (see art 5(7) of both Conventions).

This rule envisages the so-called forum arresti, whereby the judge ordering the arrest of the cargo or freight, or alternatively the judge who would have arrested the cargo or freight but for the grant of a bail or other security, will have jurisdiction on the merits of the case in relation to which the →provisional measures of the arrest has been issued.

In this way, the forum arresti of the cargo or freight under art 7(7) may be considered as a further alternative forum to the forum arresti of the ship envisaged by the 1952 Arrest Convention (International Convention of 10 May 1952 relating to the Arrest of Seagoing Ships, 439 UNTS 193), for those EU Member States which ratified the latter (ie →Belgium, →Croatia, →Finland, →France, →Germany, →Greece, →Italy, →Netherlands, →Portugal and →United Kingdom).

Furthermore, the provision of art 7(7) of the Brussels I Regulation (recast) on the one hand clearly confirms the special character of maritime law, which derogating from general rules traditionally justifies the exercise of jurisdiction on the merits on the basis of the mere existence (or even potential existence) of jurisdiction on provisional measures. On the other hand it states that only those defendants with an interest in the cargo or freight saved may benefit from the forum arresti (see Sergio M Carbone, and Chiara Enrica Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale. Il Regolamento UE n. 1215/2012 (Giappichelli 2016) 151). Thus the forum arresti generally benefits the arresting salvor who on the one hand is not bound to follow the general rule under art 4, and on the other has the opportunity to heavily influence the location of the forum arresti itself (see Peter Mankowski, ‘Article 5’ in Ulrich Magnus and Peter Mankowski (eds), Brussels Ibis Regulation (Ottoschmidt 2016), 367).

In this respect, art 7(7) strictly depends on the determination of the jurisdiction on arresting proceedings, which ought to be determined according to national law (art 35 Brussels I Regulation (recast)). Relevant to this purpose is art 7(e) of the 1952 Arrest Convention (→Arrest of vessels), which has been ratified by certain EU Member States (see above). However, for those states which have signed but not yet ratified the Convention (Ireland, Latvia, Luxembourg, Poland, Romania, Slovenia, Sweden) or have rejected it (Spain on 28 March 2011; see [2013] CMI Yearbook 620–22) or have not even signed it (Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Hungary, Lithuania, Malta, Slovakia), their national law will apply.

More precisely, art 7(7) may come into operation not only if an arrest takes place, but also if there is a possibility of arresting the cargo or freight, but the applicant decides not to start the arresting proceeding since some security has p. 1601been provided. In doing so, art 7(7) goes beyond the ideas of the 1952 Arrest Convention (see Fausto Pocar, ‘La giurisdizione sulle controversie marittime nello sviluppo della convenzione di Bruxelles del 1968’ [1999] Dir Marit 188).

The forum arresti exists against the persons interested in freight or cargo (actio in personam), not against the ship (action in rem). The interest in freight or cargo may be ascertained when the suit commences or at the time of the salvage (ie the entire duration of the salvage operation). Therefore, a proper defendant under art 7(7) is any person with an interest in cargo or freight at any point of time between the beginning and the end of the salvage operation. The notion of defendant under art 7(7), focusing on the interests in the freight, includes every creditor of the freight claim, who may be the shipowner, as well as a charterer or a bank. It is disputed whether art 7(7) applies to proceedings where the shipowner is not the defendant but the plaintiff. Here for example reference is made to the case of a shipowner claiming the restitution of the compensation exceeding the costs of salvage operations from the salvor.

Finally, it is worth pointing out that the forum arresti is particularly relevant in those legal orders not envisaging any common liability on the shipowner’s behalf for the salvage remuneration (Francesco Berlingieri, ‘Entrata in vigore della Convenzione relativa all’adesione della Danimarca, dell’Irlanda, del Regno Unito alla convenzione del 1968 sulla competenza giurisdizionale e l’esecuzione delle decisioni in materia civile e commerciale’ [1987] Dir Marit 166).

V. Choice-of-law rules

By virtue of art 2, the 1989 Salvage Convention applies to judicial or arbitral proceedings relating to salvage brought in a State Party, regardless of the existence of any international element or nature of the dispute at stake. Article 2 must be considered a mandatory provision (see Pierangelo Celle, ‘Note sull’applicazione delle Convenzione di Londra del 1989 sul soccorso in mare’ in Franceco Berlingieri (ed), Scritti in onore di Francesco Berlingieri (Il diritto marittimo 2010) 890), aimed at granting the necessary application of the 1989 Salvage Convention to salvage operations. In consequence, the 1989 Salvage Convention applies as →lex fori, taking precedence over national law (both substantive law and private international law) in the majority of EU countries, with the exception of nine Member States which have not ratified it (Austria, Cyprus, Czech Republic, Hungary, Luxembourg, Malta, Portugal, Slovakia as it results from the status of conventions as to 13 July 2016, see the official website of the International Maritime Organization). More precisely, this means that in the majority of EU countries, the 1980 Salvage Convention takes precedence over the EU private international law rules contained in the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation) and the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40). It must be also considered that, even if the list includes land-locked states, ships may nevertheless sail under their flag thereby triggering the choice-of-law issue on salvage.

Despite its uniform and erga omnes character, the 1989 Salvage Convention provides for a measure of flexibility.

First, under art 30 Member States are free to limit the sphere of application of the 1989 Salvage Convention, by way of reserving the right not to apply its provisions to specific cases. More precisely, Member States may decide not to apply the 1989 Salvage Convention to specific salvage operations, such as (i) those taking place in inland waters and vessels involved in inland navigation, (ii) those taking place in inland waters with no vessel involved, (iii) those interesting parties who are national of the same state and (iv) those involving maritime cultural property of prehistoric, archaeological or historic interest located on the sea bed.

Second, in certain cases instead of directly regulating some aspects of salvage, the 1989 Salvage Convention introduces choice-of-law rules identifying the applicable law. More precisely: under art 5(3), in salvage operations controlled by public authorities, the state where the authority is located determines the extent to which the authority itself is under a duty to perform salvage operations. Also, under art 15(2), the law of the flag determines the apportionment of reward between owner, master and other persons. Finally, under art 24, the law of the state in which the tribunal is seized determines the p. 1602salvor’s right to interest on any payment due under the 1989 Salvage Convention.

Third, Member States as well as parties involved in salvage operations have discretion to derogate certain rules of the 1989 Salvage Convention. For example art 13(2) states that, even if payment of a reward is to be made by all of the vessels and other property interests in proportion to their respective salved value, then a State Party may under its national law provide that the payment has to be made by one of these interests, subject to a right of recourse of this interest against other interests. An analogous principle has been stated by art 16(1), which with reference to salvage of persons states that no remuneration is due from persons whose lives are saved, but provisions on national laws are not affected on this subject. Finally under art 6(1), the parties involved in salvage operations may derogate the application of certain rules of the Convention by contract, expressly or impliedly. Reference may be made not only to certain substantive rules of the 1989 Salvage Convention, but also to its private international law rules (such as arts 5(2), 15(2) and 24 mentioned above). In consequence, the parties to a salvage contract may choose a different law from that provided by the uniform private international law of the 1989 Salvage Convention (see Pierangelo Celle, ‘Note sull’applicazione delle Convenzione di Londra del 1989 sul soccorso in mare’ in Franceco Berlingieri (ed), Scritti in onore di Francesco Berlingieri (Il diritto marittimo 2010) 894). On the one hand art 6(1) safeguards the use of standard form contracts such as Lloyd’s Form where parties so agree, but on the other the general reference to ‘a contract’ makes it possible for the parties to regulate salvage operations also in a charter party or in a contract for the →carriage of goods by sea (Francis Rose, Kennedy and Rose Law of Salvage (8th edn, Sweet & Maxwell 2013)).

Apart from the flexibility mechanisms mentioned, the uniform regime of the 1989 Salvage Convention – as well as any other instrument of international uniform law – does not itself exclude the application of choice-of-law rules. On the one hand, despite its wide scope of application, there may be aspects not covered by the Convention. On the other hand, even though the majority of EU Member States has ratified the Convention, a significant number of countries have not and accordingly have to apply choice-of-law rules.

In disputes regarding contractual salvage operations, under art 3 of Rome I Regulation, EU Member State courts are to give priority to the lex voluntatis, ie to the law chosen by the parties. As for the contractual salvages regulated by the LOF 2011, the lex voluntatis is English law: under the clause headed ‘Governing law’, LOF 2011 expressly provides: ‘[t]‌his agreement and any arbitration hereunder shall be governed by English law’ (see Francis Rose, Kennedy and Rose Law of Salvage (8th edn, Sweet & Maxwell 2013) 43). As for contracts for salvage operations not using the standard form and for other contracts also regulating salvage operations among others (such as charter parties or contracts for the carriage of goods), the choice of law must be expressed or clearly demonstrated by the terms of the contract or the circumstances of the case. Absent a choice or a valid choice, the applicable law is that of the salvor’s habitual residence (art 4(1)(b) Rome I Regulation). Where the contract includes salvage operations among others, it will be governed by the law of the country of habitual residence of the party required to effect the characteristic performance (Recital (19) and art 4(2) Rome I Regulation).

Regarding non-contractual salvage, during the debate on the first Commission’s proposal of the Rome II Regulation, the issue of a specific conflict of law provision was expressly considered and the Hamburg Group for Private International Law (see Hamburg Group for Private International Law, ‘Comments on the European Commission’s Draft Proposal for a Council Regulation on the Law Applicable to Non Contractual Obligations’ (2003) 67 RabelsZ 1, 32) pointed out the following in this regard:

The most commonly discussed case of negotiorum gestio in the choice of law was the case of a ship rendering help to another ship. Nevertheless it is not advisable to design a rule especially for this case. In modern times such cases mostly fall into the realm of contract and are not left to negotiorum gestio. The small remainder not ruled by contract will most likely be governed by the Convention on Salvage. It appears even more unnecessary to provide for a specific conflicts rule since there would be a kind of deadlock to choose between the flag of the helping ship and the flag of the ship to which help is rendered, as the appropriate connecting factor.

Ultimately, no specific provision is envisaged in the Rome II Regulation for disputes p. 1603regarding non-contractual salvage operations, and in consequence art 11 Rome II Regulation on →negotiorum gestio will apply. More precisely, the obligations arising from the salvage will be governed by (i) the law of the common habitual residence of the parties involved in salvage operations (art 11(2)), (ii) absent a common habitual residence of the parties, the law of the country where the salvage operation takes place (place of performance) (art 11(3)), (iii) the law of the manifestly most closely connected country (art 11(4)).

The →place of performance criterion under art 11(3) raises questions with regard to successive acts of a cross-border intervention, such as the transportation of the ship salved. One solution may be to search for the place where the benevolent intervention of the salvor was substantially performed or had its centre of gravity; the other may be to apply the law of the country in which the performance started. The latter seems to be best suited to promote legal certainty. However, given the lack in the Rome II Regulation of a specific rule stating that a ship on the high seas which is registered in a state should be treated as being the territory of that state (see art 18 of European Commission, ‘Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”)’ COM(2003) 427 final), art 11(3) seems to be inoperable with regard to salvage measures in international waters, even if one assumes the saved ship as the place of salvage performance. In this case, the law of the most closely connected country under art 11(4) with regard to salvage operations is likely to be (i) the law of the place of registration of the ship, or (ii) the law of the flag state of the saved ship, or (iii) the law of its home port.

Despite the wide scope of application of the Rome II Regulation, obligations arising from the duty of the master to render assistance to any person in danger of being lost at sea under art 10 of the 1989 Salvage Convention (the above-mentioned mandatory salvage) may be considered to fall outside the relevant notion of non-contractual obligation. In such a case, national private international law rules apply. With specific reference to the Italian legal system (→Italy), as far as salvage in the territorial sea is concerned, the law of the state where the damage occurred will apply (under art 61 of the Italian Law No 218/1995 in Gazzetta Ufficiale della Repubblica Italiana, 3 June 1995; Supplemento ordinario n 128; see Franco Mosconi and Cristina Campiglio, Diritto internazionale privato e processuale, Volume I, Parte generale e obbligazioni (Utet Giuridica 2015) 504; Antonio Lefebvre D’Ovidio, Leopoldo Tullio and Gabriele Pescatore, Manuale di diritto della navigazione (Giuffrè 2011) 678), while, in the case of salvage on the high sea, the law of the flag will apply (art 13 of the Italian Codice della Navigazione (Regio decreto-legge 30 marzo 1942, n 327)).

Literature

  • Reuben Balzan, Keith A Borg and Carlos Bugeja, ‘Collisions and Maritime Salvage’ in Evangelos Vassilakakis, Nikolay Natov and Reuben Balzan (eds), Regulations Rome I and Rome II and Maritime Law (Giappichelli 2013) 123;

  • Francesco Berlingieri, ‘Entrata in vigore della Convenzione relativa all’adesione della Danimarca, dell’Irlanda, del Regno Unito alla convenzione del 1968 sulla competenza giurisdizionale e l’esecuzione delle decisioni in materia civile e commerciale’ [1987] Dir Marit 166;

  • Francesco Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione (Guiffrè 2011) 459;

  • Gralf Peter Callies, Rome Regulations, Commentary on the European Rules of the Conflict of Laws (Kluwer Law International 2011) 513, 520, 521;

  • Sergio Maria Carbone and Chiara Enrica Tuo, Il nuovo spazio giudiziario europeo in materia civile e commerciale. Il Regolamento n. 1215/2012, (Giappichelli 2016);

  • Sergio Maria Carbone and Lorenzo Schiano di Pepe, Conflitti di sovranità e di leggi nei traffici marittimi tra diritto internazionale e diritto dell’Unione europea (Giappichelli 2010);

  • Pierangelo Celle, ‘Note sull’applicazione delle Convenzione di Londra del 1989 sul soccorso in mare’ in Francesco Berlingieri (ed), Scritti in onore di Francesco Berlingieri (Il diritto marittimo 2010) 887;

  • Andrew Dickinson, The Rome II Regulation: The Law Applicable to Non-contractual Obligations (OUP 2008);

  • Andrew Dickinson, The Rome II Regulation: The Law Applicable to Non-contractual Obligations, Updating Supplement (OUP 2010) 89;

  • Antonio Lefebvre D’Ovidio, Leopoldo Tullio and Gabriele Pescatore, Manuale di diritto della navigazione (Giuffrè 2011) 678;

  • Peter Mankowski, ‘Art 5’ in Ulrich Magnus and Peter Mankowski (eds), Brussels Ibis Regulation (Ottoschmidt 2016) 367;

  • Franco Mosconi and Cristina Campiglio, Diritto internazionale privato e processuale, Volume I, Parte generale e obbligazioni (Utet Giuridica 2015) 504;

  • Fausto Pocar, ‘La giurisdizione sulle controversie marittime nello sviluppo della convenzione di Bruxelles del 1968’ [1999] Dir Maritp. 1604 183;

  • John Reeder, Brice on Maritime Law of Salvage (5th edn, Sweet & Maxwell 2011);

  • Francis Rose, Kennedy and Rose Law of Salvage (8th edn, Sweet & Maxwell 2013);

  • Christopher Julius Starforth Hill, Maritime Law (6th edition, Informa Law from Routledge 2003);

  • Mathijs ten Wolde, Jan Ger Knot and Francesca Ragno, ‘Art 5.7’ in Thomas Simons and Rainer Hausmann (eds), Regolamento Bruxelles I. Commento al Regolamento (CE) 44/2001 e alla Convenzione di Lugano (IPR Verlag 2012) 280;

  • Tjard-Niklas Trümper, ‘Salvage’ in Jürgen Basedow and others (eds), The Max Planck Encyclopedia of European Private Law, vol 2 (OUP 2012) 1517.