The Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997

Statutory Instruments

1997 No. 2586

MERCHANT SHIPPING

The Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997

Made

30th October 1997

Coming into force

30th November 1997

At the Court at Buckingham Palace, the 30th day of October 1997

Present,

The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 315(2) of the Merchant Shipping Act 1995(1) and all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

Citation and commencement

1.  This Order may be cited as the Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997 and shall come into force on 30th November 1997.

Implementation of the Salvage Convention

2.  Sections 224 and 255(1) of and Schedule 11 to the Merchant Shipping Act 1995 shall extend to each of the territories listed in Schedule 1 to this Order subject to the exceptions, adaptations and modifications specified in Schedule 2 to this Order, and any instrument made, or to be made under paragraph 7 of part II of Schedule 2 to this Order shall also extend to each Territory.

Interpretation

3.  In this Order “the Territory” means any of the territories listed in Schedule 1.

N. H. Nicholls

Clerk of the Privy Council

Article 2

SCHEDULE 1 TO THE ORDER

• Anguilla

• British Antarctic Territory

• British Indian Ocean Territory

• Cayman Islands

• Falkland Islands

• Pitcairn, Henderson, Ducie and Oeno Islands and its Dependencies

• Saint Helena

• South Georgia and the South Sandwich Islands

• Turks and Caicos Islands

• Virgin Islands

Article 2

SCHEDULE 2 TO THE ORDER SECTIONS 224 AND 255(1) OF THE MERCHANT SHIPPING ACT 1995

Salvage

Salvage Convention 1989 to have force of law

224.—(1) The provisions of the International Convention on Salvage, 1989 as set out in Part I of Schedule 11 (in this Chapter referred to as “the Salvage Convention”) shall have the force of law in the Territory.

(2) The provisions of Part II of that Schedule shall have effect in connection with the Salvage Convention, and subsection (1) above shall have effect subject to the provisions of that Part.

• …

(4) Nothing in subsection (1) or (2) above shall affect any rights or liabilities arising out of any salvage operations started or other acts done before the entry into force of this Order.

• …

255.—(1) In this Part—

• …

• “salvage” includes, subject to the Salvage Convention, all expenses properly incurred by the salvor in the performance of the salvage services;

• …

• “salvor” means, in the case of salvage services rendered by the officers or crew or part of the crew of any ship belonging to Her Majesty, the person in command of the ship;

• …

• “vessel” includes any ship or boat, or any other description of vessel used in navigation.

SCHEDULE 11 TO THE MERCHANT SHIPPING ACT 1995 INTERNATIONAL CONVENTION ON SALVAGE 1989

PART I TEXT OF CONVENTION

CHAPTER I— GENERAL PROVISIONS

ARTICLE 1 Definitions

For the purpose of this Convention—

(a) Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.

(b) Vessel means any ship or craft, or any structure capable of navigation.

(c) Property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.

(d) Damage to the environment means substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents.

(e) Payment means any reward, remuneration or compensation due under this Convention.

(f) Organisation means the International Maritime Organisation.

(g) Secretary-General means the Secretary-General of the Organisation.

ARTICLE 2 Application of the Convention

This Convention shall apply whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party.

ARTICLE 3 Platforms and drilling units

This Convention shall not apply to fixed or floating platforms or to mobile off-shore drilling units when such platforms or units are on location engaged in the exploration, exploitation or production of sea-bed mineral resources.

ARTICLE 4 State-owned vessels

1.  Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognised principles of international law unless that State decides otherwise.

2.  Where a State Party decides to apply the Convention to its warships or other vessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

ARTICLE 5 Salvage operations controlled by public authorities

1.  This Convention shall not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities.

2.  Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations.

3.  The extent to which a public authority under a duty to perform salvage operations may avail itself of the rights and remedies provided for in this Convention shall be determined by the law of the State where such authority is situated.

ARTICLE 6 Salvage contracts

1.  This Convention shall apply to any salvage operations save to the extent that a contract otherwise provides expressly or by implication.

2.  The master shall have the authority to conclude contracts for salvage operations on behalf of the owner of the vessel. The master or the owner of the vessel shall have the authority to conclude such contracts on behalf of the owner of the property on board the vessel.

3.  Nothing in this article shall affect the application of article 7 nor duties to prevent or minimise damage to the environment.

ARTICLE 7 Annulment and modification of contracts

A contract or any terms thereof may be annulled or modified if—

(a) the contract has been entered into under undue influence or the influence of danger and its terms are inequitable; or

(b) the payment under the contract is in an excessive degree too large or too small for the services actually rendered.

CHAPTER II— PERFORMANCE OF SALVAGE OPERATIONS

ARTICLE 8 Duties of the salvor and of the owner and master

1.  The salvor shall owe a duty to the owner of the vessel or other property in danger—

(a) to carry out the salvage operations with due care;

(b) in performing the duty specified in subparagraph (a), to exercise due care to prevent or minimise damage to the environment;

(c) whenever circumstances reasonably require, to seek assistance from other salvors; and

(d) to accept the intervention of other salvors when reasonably requested to do so by the owner or master of the vessel or other property in danger; provided however that the amount of his reward shall not be prejudiced should it be found that such a request was unreasonable.

2.  The owner and master of the vessel or the owner of other property in danger shall owe a duty to the salvor—

(a) to cooperate fully with him during the course of the salvage operations;

(b) in so doing, to exercise due care to prevent or minimise damage to the environment; and

(c) when the vessel or other property has been brought to a place of safety, to accept redelivery when reasonably requested by the salvor to do so.

ARTICLE 9 Rights of coastal States

Nothing in this Convention shall affect the right of the coastal State concerned to take measures in accordance with generally recognised principles of international law to protect its coastline or related interests from pollution or the threat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences, including the right of a coastal State to give directions in relation to salvage operations.

ARTICLE 10 Duty to render assistance

1.  Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.

2.  The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1.

3.  The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1.

ARTICLE 11 Cooperation

A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.

CHAPTER III— RIGHTS OF SALVORS

ARTICLE 12 Conditions for reward

1.  Salvage operations which have had a useful result give right to a reward.

2.  Except as otherwise provided, no payment is due under this Convention if the salvage operations have had no useful result.

3.  This chapter shall apply, notwithstanding that the salved vessel and the vessel undertaking the salvage operations belong to the same owner.

ARTICLE 13 Criteria for fixing the reward

1.  The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below—

(a) the salved value of the vessel and other property;

(b) the skill and efforts of the salvors in preventing or minimising damage to the environment;

(c) the measure of success obtained by the salvor;

(d) the nature and degree of the danger;

(e) the skill and efforts of the salvors in salving the vessel, other property and life;

(f) the time used and expenses and losses incurred by the salvors;

(g) the risk of liability and other risks run by the salvors or their equipment;

(h) the promptness of the services rendered;

(i) the availability and use of vessels or other equipment intended for salvage operations;

(j) the state of readiness and efficiency of the salvor’s equipment and the value thereof.

2.  Payment of a reward fixed according to paragraph 1 shall be made by all of the vessel and other property interests in proportion to their respective salved values. However, a State Party may in its national law provide that the payment of a reward has to be made by one of these interests, subject to a right of recourse of this interest against the other interests for their respective shares. Nothing in this article shall prevent any right of defence.

3.  The rewards, exclusive of any interest and recoverable legal costs that may be payable thereon, shall not exceed the salved value of the vessel and other property.

ARTICLE 14 Special compensation

1.  If the salvor has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under article 13 at least equivalent to the special compensation assessable in accordance with this article, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses as herein defined.

2.  If, in the circumstances set out in paragraph 1, the salvor by his salvage operations has prevented or minimised damage to the environment, the special compensation payable by the owner to the salvor under paragraph 1 may be increased up to a maximum of 30 per cent. of the expenses incurred by the salvor. However, the tribunal, if it deems it fair and just to do so and bearing in mind the relevant criteria set out in article 13, paragraph 1, may increase such special compensation further, but in no event shall the total increase be more than 100 per cent. of the expenses incurred by the salvor.

3.  Salvor’s expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses reasonably incurred by the salvor in the salvage operation and a fair rate for equipment and personnel actually and reasonably used in the salvage operation, taking into consideration the criteria set out in article 13, paragraph 1(h), (i) and (|1ru||1ru||1ru||1ru|j).

4.  The total special compensation under this article shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salvor under article 13.

5.  If the salvor has been negligent and has thereby failed to prevent or minimise damage to the environment, he may be deprived of the whole or part of any special compensation due under this article.

6.  Nothing in this article shall affect any right of recourse on the part of the owner of the vessel.

ARTICLE 15 Apportionment between salvors

1.  The apportionment of a reward under article 13 between salvors shall be made on the basis of the criteria contained in that article.

2.  The apportionment between the owner, master and other persons in the service of each salving vessel shall be determined by the law of the flag of that vessel. If the salvage has not been carried out from a vessel, the apportionment shall be determined by the law governing the contract between the salvor and his servants.

ARTICLE 16 Salvage of persons

1.  No remuneration is due from persons whose lives are saved, but nothing in this article shall affect the provisions of national law on this subject.

2.  A salvor of human life, who has taken part in the services rendered on the occasion of the accident giving rise to salvage, is entitled to a fair share of the payment awarded to the salvor for salving the vessel or other property or preventing or minimising damage to the environment.

ARTICLE 17 Services rendered under existing contracts

No payment is due under the provisions of this Convention unless the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose.

ARTICLE 18 The effect of salvor’s misconduct

A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that the salvage operations have become necessary or more difficult because of fault or neglect on his part or if the salvor has been guilty of fraud or other dishonest conduct.

ARTICLE 19 Prohibition of salvage operations

Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention.

CHAPTER IV— CLAIMS AND ACTIONS

ARTICLE 20 Maritime lien

1.  Nothing in this Convention shall affect the salvor’s maritime lien under any international convention or national law.

2.  The salvor may not enforce his maritime lien when satisfactory security for his claim, including interest and costs, has been duly tendered or provided.

ARTICLE 21 Duty to provide security

1.  Upon the request of the salvor a person liable for a payment due under this Convention shall provide satisfactory security for the claim, including interest and costs of the salvor.

2.  Without prejudice to paragraph 1, the owner of the salved vessel shall use his best endeavours to ensure that the owners of the cargo provide satisfactory security for the claims against them including interest and costs before the cargo is released.

3.  The salved vessel and other property shall not, without the consent of the salvor, be removed from the port or place at which they first arrive after the completion of the salvage operations until satisfactory security has been put up for the salvor’s claim against the relevant vessel or property.

ARTICLE 22 Interim payment

1.  The tribunal having jurisdiction over the claim of the salvor may, by interim decision, order that the salvor shall be paid on account such amount as seems fair and just, and on such terms including terms as to security where appropriate, as may be fair and just according to the circumstances of the case.

2.  In the event of an interim payment under this article the security provided under article 21 shall be reduced accordingly.

ARTICLE 23 Limitation of actions

1.  Any action relating to payment under this Convention shall be time-barred if judicial or arbitral proceedings have not been instituted within a period of two years. The limitation period commences on the day on which the salvage operations are terminated.

2.  The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration to the claimant. This period may in the like manner be further extended.

3.  An action for indemnity by a person liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs, if brought within the time allowed by the law of the State where proceedings are instituted.

ARTICLE 24 Interest

The right of the salvor to interest on any payment due under this Convention shall be determined according to the law of the State in which the tribunal seized of the case is situated.

ARTICLE 25 State-owned cargoes

Unless the State owner consents, no provision of this Convention shall be used as a basis for the seizure, arrest or detention by any legal process of, nor for any proceedings in rem against, non-commercial cargoes owned by a State and entitled, at the time of the salvage operations, to sovereign immunity under generally recognised principles of international law.

ARTICLE 26 Humanitarian cargoes

No provision of this Convention shall be used as a basis for the seizure, arrest or detention of humanitarian cargoes donated by a State, if such State has agreed to pay for salvage services rendered in respect of such humanitarian cargoes.

ARTICLE 27 Publication of arbitral awards

States Parties shall encourage, as far as possible and with the consent of the parties, the publication of arbitral awards made in salvage cases.

PART II PROVISIONS HAVING EFFECT IN CONNECTION WITH CONVENTION

Interpretation

1.  In this Part of this Schedule:

(a) “the Convention” means the Convention as set out in Part I of this Schedule and any reference to a numbered article is a reference to the article of the Convention which is so numbered;

(b) “the waters of the Territory” means the sea or other waters within the seaward limits of the territorial sea of the Territory.

Claims excluded from Convention

2.—(1) The provisions of the Convention do not apply—

(a) to a salvage operation which takes place in inland waters of the Territory and in which all the vessels involved are of inland navigation; and

(b) to a salvage operation which takes place in inland waters of the Territory and in which no vessel is involved.

(2) In this paragraph “inland waters” does not include any waters within the ebb and flow of the tide at ordinary spring tides or the waters of any dock which is directly or (by means of one or more other docks) indirectly, connected with such waters.

Assistance to persons in danger at sea

3.—(1) The master of a vessel who fails to comply with the duty imposed on him by article 10, paragraph 1 commits an offence and shall be liable—

(a) in Anguilla,

(i) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding 5000 East Caribbean dollars or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

(b) in the British Antarctic Territory, to be tried by the Supreme Court and, if convicted, to imprisonment for a term not exceeding two years or a fine or both;

(c) in the British Indian Ocean Territory, to be tried by the Supreme Court, and, if convicted, to imprisonment for a term not exceeding two years or a fine, or both;

(d) in the Falkland Islands,

(i) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

(e) Pitcairn, Henderson, Ducie and Oeno Islands,

(i) on conviction by the Subordinate Court, to imprisonment for a term not exceeding six months, or a fine not exceeding two thousand five hundred pounds or its equivalent, or both;

(ii) on conviction by the Supreme Court, to imprisonment for a term not exceeding two years or a fine not exceeding ten thousand pounds or its equivalent, or both.

(f) in Saint Helena and its Dependencies,

(i) on summary conviction, to imprisonment for a term not exceeding two years or a fine not exceeding £1000 or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

(g) in South Georgia and the South Sandwich Islands,

(i) on summary conviction, to imprisonment for a term not exceeding two years or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

(h) in the Turks and Caicos Islands,

(i) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding 3000 United States dollars or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

(i) in the Virgin Islands,

(i) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding 3000 United States dollars or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both;

and in subparagraphs (d) and (g), “statutory maximum” means such sum as is for the time being the prescribed sum for the purposes of section 32 of the Magistrates' Courts Act 1980.

(2) Compliance by the master of a vessel with that duty shall not affect his right or the right of any other person to a payment under the Convention or under any contract.

The reward and special compensation: the common understanding

4.  In fixing a reward under article 13 and assessing special compensation under article 14 the court or arbitrator is under no duty to fix a reward under article 13 up to the maximum salved value of the vessel and other property before assessing the special compensation to be paid under article 14.

Recourse for life salvage payment

5.—(1) This paragraph applies where—

(a) services are rendered wholly or in part in the waters of the Territory in saving life from a vessel of any nationality or elsewhere in saving life from any ship registered in the Territory; and

(b) either—

(i) the vessel and other property are destroyed, or

(ii) the sum to which the salvor is entitled under article 16, paragraph 2 is less than a reasonable amount for the services rendered in saving life.

(2) Where this paragraph applies, the Authority may, if he thinks fit, pay to the salvor such sum or, as the case may be, such additional sum as he thinks fit in respect of the services rendered in saving life; and for the purposes of this paragraph, “the Authority” means—

(a) in Anguilla, the Governor;

(b) in the British Antarctic Territory, the Commissioner;

(c) in the British Indian Ocean Territory, the Commissioner;

(d) in the Cayman Islands, the Governor in Council;

(e) in Pitcairn, Henderson, Ducie and Oeno Islands, the Governor;

(f) in the Falkland Islands, the Governor;

(g) in Saint Helena, the Governor;

(h) in South Georgia and the South Sandwich Islands, the Commissioner;

(i) in the Turks and Caicos Islands, the Governor;

(j) in the Virgin Islands, the Governor in Council.

Meaning of “judicial proceedings”

6.  References in the Convention to judicial proceedings are references to proceedings—

(a) in Anguilla, in the High Court;

(b) in the British Antarctic Territory, in the Supreme Court;

(c) in the British Indian Ocean Territory, in the Supreme Court;

(d) in the Cayman Islands, in the Summary Court or the Grand Court;

(e) in Pitcairn, Henderson, Ducie and Oeno Islands, the Supreme Court;

(f) in the Falkland Islands, in the Supreme Court or the Magistrate’s Court;

(g) in Saint Helena in the Saint Helena Supreme Court;

(h) in South Georgia and the South Sandwich Islands, in the Supreme Court;

(i) in the Turks and Caicos Islands, in the Magistrate’s Court or the Supreme Court;

(j) in the Virgin Islands, in the High Court;

and any reference to the tribunal having jurisdiction (so far as it refers to judicial proceedings) shall be construed accordingly.

Meaning of “State Party”

7.—(1) An Order in Council made for the purposes of this paragraph and declaring that any State specified in the Order is a party to the Convention in respect of a specified country shall, subject to the provisions of any subsequent Order made for those purposes, be conclusive evidence that the State is a party to the Convention in respect of that country.

(2) In this paragraph “country” includes “territory”.

Explanatory Note

(This note is not part of the Order)

This Order extends to the dependent territories listed in Schedule 1 provisions of the Merchant Shipping Act 1995 which give effect in the United Kingdom to the International Convention on Salvage, 1989.

(1)

1995 c. 21.