Salvage and the environment: Is the South African law of salvage fit for encouraging and remunerating salvors for environmental protection services in shipping incidents?

Abstract

While the need for environmental protection in certain salvage operations is apparent, arguments about the remuneration of salvors for environmental services tend to involve the assumption that the law of salvage should be the basis for such remuneration. This thesis explores the viability of this assumption and proposes the alternative view that the South African law of salvage should not be the basis upon which salvors are remunerated for environmental services incidental to salvage operations.

Changes to the law of salvage to provide remuneration for environmental services, understandably driven by the values attached to environmental protection, are at odds with the legal theoretical underpinnings of salvage. Salvage law developed on the basis of services rendered to property in danger at sea in furtherance of policies relating to the encouragement of shipping and trade at sea and the notion that the recipients of benefits (the rescue of maritime property) must pay for such benefits. This resulted in a system that would always be challenged by demands for services that involve interests and benefits conferred beyond those traditionally recognised in salvage.

The 1989 Salvage Convention is ostensibly directed at environmental protection outcomes but it has maintained the traditional view of salvage operations with remuneration for environmental services in the form of special compensation arguably premised upon the narrow property based private relationship between salvor and the owners of salved property. Provisions reflective of environmental protection values are both superimposed on and limited by the traditional property bias of salvage maintained in the Convention. In this regard the Convention appears to have gone as far as it possibly can without introducing fundamental changes that may render the law of salvage uncertain.

While the ‘South African Wreck and Salvage Act’ represents an attempt at improving the Salvage Convention, it has similarly maintained the status quo in relation to the legal theoretical essence of salvage. Once again, the Act has probably taken salvage law and the convention as far it can go without a fundamental change to the law. Despite the utility value of salvage operations in the prevention of marine pollution, developments in the law have not truly been aligned with value driven environmental protection concerns.

This thesis proposes a novel regime for the remuneration of salvor’s environmental services based on a view of salvage operations as a functional component in a network of measures, legal and non-legal, public and private, directed at environmental protection. This regime entails the eventual removal of remuneration for environmental services from the South African law of salvage, instead providing for a direct contractual link between salvors and the State as a beneficiary of environmental services outside of the traditional salvage matrix. To achieve this, the thesis proposes certain amendments to the Wreck and Salvage Act that will provide for such a direct contractual relationship where the State intervenes in salvage operations involving environmental risks.

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