Ahmed Ashraf Mshrf
Maritime transport is the most essential element of maritime trade and travel. Despite the scientific progress and the existence of innovative means such as air crafts, cars and trains, maritime transport is important for the development of the global economy. Therefore countries care about stipulating legal rules to ensure the safety of maritime navigation against marine incidents.
The general rules in the law provide that the duty of salvage is merely a moral obligation not a legal duty which led to an increase in marine incidents. That’s why countries had to Intervene to limit marine losses and they concluded “ASSISTANCE and SALVAGE AT SEA Convention” which was signed at Brussels 23rd of September 1910. The Convention made the marine salvage a legal duty on the ship master; it was followed by the Egyptian legislator with the provisions replica to the Treaty of Brussels stipulated in articles from 302 to 316.
Marine salvage became mandatory for the shipmasters under Article 11 of the Brussels Convention and Article 304 of the Egyptian Maritime Law in paragraph 1. However, and from my point of view, the second paragraph poses some problems. The legislator holds the ship owner not liable for consequences that might arise due to his failure to perform maritime salvage while such exemption does not extend to those who exploit the vessel. In fact, the latter will be punished in a manner that opposes the main objective of maritime law. Unfortunately, the London Convention 1989 provides for this as well.
Every ship captain must exert maximum effort to rescue the ship in distress and that is in a manner that does not endanger the salvaging ship or the people on board. That’s why the Egyptian legislator issued a painful punishment for violating such obligation in Article 222 of Law No. 176 of 1960 where it is ” punished by imprisonment for a period not exceeding six months, a fine of no more than one hundred pounds, or one of these penalties.”
As for marine remuneration that the vessel is entitled to have when it rescues another ship several conditions must be met:
1- A fruitful result should be achieved
According to Article 2 of the Brussels Convention, in order for the vessel to receive the marine remuneration, the marine assistance process shall result a benefit to the salvaged vessel. If the result is not achieved the salvaging vessel shall not be entitled to any reward. It is not a condition that the benefit is a full benefit but is sufficient to be useful in part.
In order to encourage ship masters towards salvage the law gives the right to recover expenses incurred by the salvage ship and claiming damages.
2- Marine assistance is not limited to rescuing people
This provision is stated in Article 9 of the Brussels Treaty and Article 311 of the Egyptian Maritime Law.
I will clarify that matter in three cases:
- If the salvage ship saves money, the ship itself, or its accessories the salvaging ship deserves the remuneration.
- If the ship salvages people in addition to money or the ship here the rescuers of the people are entitled to receive a percentage of the remuneration given to the salvage ship.
- If the ship master salvages the people and was not able to save the ship or the goods he is not entitled to any reward that is without prejudice to the right to recover the payment of salvage expenses and the right to claim damages. This provision is highly criticized in my view because it may encourage ship masters to try salvaging money over humans. Some have justified the motive behind this strange provision by saying that saving a human saving another is presumed to be done without reward. However it is still illogical and it will lead to dire consequences to human rights.
3- The vessel at danger should not refuse salvage
Article 3 of the Convention makes it clear that the vessel in danger should accept the salvage from the salvaging vessel, whether the acceptance is explicit or implied. If the ship in danger rejects the maritime assistance, the salvaging vessel is not entitled to remuneration. However, if the vessel is in real danger and its refusal is unjustified the salvaging ship will be entitled remuneration, despite the refusal, if the rescue is done.
4- The peril shall not be due to the fault of the salvaging ship
In Article 8 of the convention it is stated that “The court may reduce or deny remuneration if it appears that the salvage ship have by their fault rendered the salvage or assistance necessary, or have been guilty of theft, receiving stolen goods, or other acts of fraud.” The same goes for Article 314 of the Egyptian Maritime Law.
5- The salvage service shall not be a contractual obligation
In accordance with Article IV of the same convention, the vessel shall not be entitled to remuneration for salvage of the trailer which is bound by the contract to towing it unless it provides exceptional services.
6- Warships or government ships
Article 14 of the convention stated that:
“This convention does not apply to ships of war or to government ships appropriated exclusively to a public service.”
The current situation of the Marine salvage remuneration needs a modification specially in the matter of depriving the rescuers of humans of the marine remuneration.