Protection of the Environment and the International Salvage Convention, 1989: An Assessment

Author:Eghosa Osa Ekhator
Position:Eghosa Osa Ekhator, PhD (Hull), LL.M (Hull), LL.B (Benin); barrister and solicitor of the Supreme Court of Nigeria.
Pages:73-99
SUMMARY

This article focuses on the International Salvage Convention and the protection of the environment in salvage operations. The article traces the evolution and history of the law of Salvage to its present status by using the UK as a case study. In essence, the article seeks to ascertain the extent of current international regime on salvage in protecting the environment. The question that this... (see full summary)

 
FREE EXCERPT
73
Protection of the Environment and the
International Salvage Convention, 1989:
An Assessment
Eghosa O. Ekhator
Abstract
This article focuses on the International Salvage Convention and the protection of
the environment in salvage operations. The article traces the evolution and history
of the law of Salvage to its present status by using the UK as a case study. In
essence, the article seeks to ascertain the extent of current international regime on
salvage in protecting the environment. The question that this article poses is: Does
the International Salvage Convention 1989 accord enough protection to the
environment against the backdrop of global efforts to promote environmental
protection and sustainable development? The article begins with a brief synopsis
of the underlying principles of salvage including the rule of ‘no cure-no pay’
followed by an appraisal of the events that culminated arguably in the development
of the International Salvage Convention 1989 to safeguard the environment in the
course of salvage operations. A systematic analysis of the defects inherent in the
International Salvage Convention 1989 vis-à-vis protection of the environment are
analysed and a number of reforms are highlighted.
Key terms
International Salvage Convention, England, Environmental Protection, Pollution
and Environmental Salvage Award
DOI http://dx.doi.org/10.4314/mlr.v10i1.3
______________
Introduction
This article focuses on the International Salvage Convention and the protection
of the environment in salvage operations. The article traces the evolution and
history of the law of Salvage to its present status, and it uses the UK as a case
study. The article seeks to ascertain the extent of current international regime on
salvage in protecting the environment. The first section focuses on the history
and evolution of salvage. The modern concept of salvage which can traced to
the United Kingdom (hereinafter ‘UK’),1 (especially England) hence the city of
Eghosa Osa Ekhator, PhD (Hull), LL.M (Hull), LL.B (Benin); barrister and solicitor of the
Supreme Court of Nigeria.
1 The origins of salvage are ancient and existed in old legal systems such as the Roman
epoch amongst others. The Law of Salvage’s core principles were established in the
nineteenth century and the Admiralty Courts in England played major roles in the modern
74 MIZAN LAW REVIEW, Vol. 10, No.1 September 2016
London occupy special place in the international salvage paradigm. The second
section briefly discusses the subject matter of salvage. Definitions of terms such
as ‘vessel’, ‘ship’ or ‘maritime property’ will be elucidated upon. A major
reason for focusing on these definitions is to highlight the evolution of the
different meanings ascribed to these terms.
The third section highlights the three core elements of the law of salvage:
danger, voluntariness and success. Section 4 focuses on environmental
protection in salvage operations. Many salvage operations have had negative
impacts on the environment, thus, this section highlights the role of the
International Salvage Convention 19892 in protecting the environment. The fifth
section suggests some reforms to improve protection of the environment in the
international salvage paradigm. The article also considers if the development of
a separate environmental salvage award can be the panacea to some of the
weaknesses in environmental protection in salvage operations.
1. The History and Evolution of Salvage
Salvage is traditionally concerned with the salving or preservation of property in
peril at sea3 and it is unique to maritime law.4 If a person willingly rescues the
property of another person on land, he gets no reward. However, if the same
service is performed at sea, the person salving the maritime property, the
‘salvor’, will be entitled to a reward, not exceeding the value of the property
salved.5 Salvors are provided special in centives in addition to the compensati on
development of the law of Salvage. Generally, see Olivia Lennox-King (2007) ‘Laying
the Mark to Port and Starboard: Salvage under duress and Economic duress at Contract
Law’ 21 Australian & New Zealand Maritime Law Journal 31, 32; Catherine Swan (2009)
‘The Restitutionary and Economic Analyses of Salvage Law’ 23 Australian & New
Zealand Maritime Law Journal 99. See also George F. Steckley (2014) ‘The Seventeenth-
Century Origins of Modern Salvage Law’ 35(3) The Journal of Legal History 209. Thus,
some scholars aver that the ‘first recorded salvage dispute dates fro m 1601’. See Yin-
Cheng Hsu (2016) ‘Developments in International Cultural Heritage Law: What Hampers
the Convention on the Protection of the Underwater Cultural Heritage.’ 3 Edin burgh
Student Law Review 116, p. 125.
2 International Convention on Salvage, 1989. Drafted by the Comite Maritime International
(CMI) under the auspices of the International Maritime Organisation (IMO). Also referred
to as the Salvage Convention 1989 or the London Salvage Convention.
<http://www.jus.uio.no/lm/imo.salvage.convention.1989/doc.html> accessed 1 January
2015.
3 Geoffrey Brice (2003) Brice on Maritime Law of Salvage (4thedn, Sweet and Maxwell)
397.
4 Ibid.
5 Simon Baughen (2012) Shipping Law (5th edn, Routledge) p. 274. However, under Article
8(1) (c) and (d) of the 1989 Convention a salvor, in appropriate circumstances, is required
to seek assistance and accept the intervention of other salvors’.

To continue reading

REQUEST YOUR TRIAL