14.02.20121 the development of environmental salvage and review of the salvage convention 1989...

14.02.2012 1

The Development of The Development of Environmental SalvageEnvironmental Salvage

and and Review of the Salvage Convention Review of the Salvage Convention

19891989

Archie BishopArchie Bishop

Holman Fenwick WillanHolman Fenwick Willan

MSC Napoli

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Amoco Cadiz

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Salvage Convention Salvage Convention 19891989

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Article 13.1 (b)Article 13.1 (b)

“ “the skill and efforts of the salvors the skill and efforts of the salvors in preventing or minimising damage in preventing or minimising damage to the environment”to the environment”

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Article 14.1Article 14.1

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

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Definition of "Damage to the Definition of "Damage to the Environment" Art. 1(d)Environment" Art. 1(d)

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Article 14.2Article 14.2‘‘If, in the circumstances set out in paragraph 1, the If, in the circumstances set out in paragraph 1, the salvor by his salvage operations has prevented or salvor by his salvage operations has prevented or minimised damage to the environment, the special minimised damage to the environment, the special compensation payable by the owner to the salvor compensation payable by the owner to the salvor under paragraph 1, may be increased up to a under paragraph 1, may be increased up to a maximum of 30% of the expenses incurred by the maximum of 30% of the expenses incurred by the salvor. However, the tribunal, if it deems it fair and salvor. However, the tribunal, if it deems it fair and just to do so and bearing in mind the criteria set out just to do so and bearing in mind the criteria set out in Article 13.1, may increase such special in Article 13.1, may increase such special compensation further, but in no event shall the total compensation further, but in no event shall the total increase be more than 100% of the expenses increase be more than 100% of the expenses incurred by the salvor’incurred by the salvor’

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Article 14.3Article 14.3

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

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Article 14.4Article 14.4

The total compensation under this The total compensation under this article shall be paid only if and to the article shall be paid only if and to the

extent that such compensation is extent that such compensation is greater than any reward recoverable greater than any reward recoverable

by the salvor under article 13by the salvor under article 13

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Problems with Special Problems with Special CompensationCompensation

• Security for SC not always givenSecurity for SC not always given

• Interpretation of ‘Threat to the Interpretation of ‘Threat to the Environment’ (Art 14.1)Environment’ (Art 14.1)

• Assessment of uplift (Art 14.2)Assessment of uplift (Art 14.2)

• Assessment of ’Fair rate’ (Art 14.3)Assessment of ’Fair rate’ (Art 14.3)

• Lack of P and I involvementLack of P and I involvement

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SCOPICSCOPIC

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SALVAGE AFTERMATH SALVAGE AFTERMATH Wreck RemovalWreck Removal

Tasman Spirit - 2003

Firstly

Much has changed since Much has changed since the Salvage Convention the Salvage Convention

was first draftedwas first drafted

Reasons for change

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SALVAGE EMERGENCY SALVAGE EMERGENCY RESPONSERESPONSE

FireFire

Castillo de Bellver – 1983 (Spill 252,000t)

Reasons for change

Secondly

Salvors are not fully Salvors are not fully rewarded for the benefit rewarded for the benefit

they conferthey confer

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Salvors and Property Salvors and Property Underwriters believe current Underwriters believe current

distribution between those distribution between those liable to pay is unfairliable to pay is unfair

Reasons for ChangeReasons for Change

ThirdlyThirdly

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Definition of "Damage to the Definition of "Damage to the Environment" Art. 1(d)Environment" Art. 1(d)

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Amend Article 13Amend Article 13

Strike out 13.1 (b) Strike out 13.1 (b)

“ “the skill and efforts of the salvors the skill and efforts of the salvors in preventing or minimising damage in preventing or minimising damage to the environment”to the environment”

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Replace Article 14 withReplace Article 14 with

14.1 If the salvor has carried out salvage 14.1 If the salvor has carried out salvage operations in respect of a vessel which by operations in respect of a vessel which by itself or its cargo threatened damage to the itself or its cargo threatened damage to the environment he shall in addition to the reward environment he shall in addition to the reward to which he may be entitled under Article 13, to which he may be entitled under Article 13, be entitled to an environmental award taking be entitled to an environmental award taking into account the following criteria without into account the following criteria without regard to the order in which they are regard to the order in which they are presented below.presented below.

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Criteria for assessing an Criteria for assessing an environmental awardenvironmental award

a)a) any reward made under Article 13any reward made under Article 13b)b) the criteria set out in Article 13.1(b) the criteria set out in Article 13.1(b)

(c) (d) (f) (g) (h) (i) and (j)(c) (d) (f) (g) (h) (i) and (j)c)c) the extent to which the salvor has the extent to which the salvor has

prevented or minimised damage to prevented or minimised damage to the environment and the resultant the environment and the resultant benefit conferred.benefit conferred.

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Cap on Environmental AwardCap on Environmental Award

An environmental award shall not An environmental award shall not exceed the amount by which a exceed the amount by which a shipowner could limit his liability under shipowner could limit his liability under the CLC 1992, the HNS Convention the CLC 1992, the HNS Convention 1996, the Bunker Convention 2001 or 1996, the Bunker Convention 2001 or the LLMC Protocol or their respective the LLMC Protocol or their respective successorssuccessors

Alternative CapAlternative Cap

An Environmental award shall not exceedAn Environmental award shall not exceed

• Up to 5000 tons – 'x' SDR'sUp to 5000 tons – 'x' SDR's

• For every additional ton 'y' SDR'sFor every additional ton 'y' SDR's

• Subject to a maximum of 'z' SDR'sSubject to a maximum of 'z' SDR's

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Article 14.3Article 14.3

For the avoidance of doubt, an For the avoidance of doubt, an environmental award shall be paid environmental award shall be paid

in addition to any liability the in addition to any liability the shipowner may have for damage shipowner may have for damage

caused to other partiescaused to other parties

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Article 14.4Article 14.4

Any environmental award shall be Any environmental award shall be paid by the shipownerpaid by the shipowner

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Comite Maritime InternationalComite Maritime International

CMICMI1.9.1021.8.06 24

MSC Napoli

Chitra 2010

Rena 2011

MSC Rena

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Costa Concordia

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