As you boarded your boat this morning, you had a surreal feeling that today is a day where Poseidon will offer up his fortunes for your taking.
Maybe not quite as successful as Drake’s Golden Hind capturing the Nuestra, but, nevertheless, a eucatastrophe’s event. You’re heading out through the waterways after a week of severe storms, enjoying the warm sun on a windless morning with the water a reflective glass.
As you approach Wavebreak Island, you notice a Riviera 6000 Motor Yacht drifting mauka aimlessly with the tide. Curiosity gets the better of you and you ‘ahoy’ on approach.
On closer inspection, nobody is on board, and the vessel seems to have broken her mooring upstream during the night’s storm and fresh gale. The situation is not a graph, and you decide to tow the Riviera and take her to the GCCM for safety.
At the marina you are told that the trident of Poseidon has struck gold for you by your effort – you have a salvage claim and riches, or indeed, the Riviera itself as a treasury possession.
You principate the idea through an email to our practice at Pacific Maritime Lawyers and have the following questions;
Do I now ‘own’ the Riviera?
Now wouldn’t that be great! If a boat, or any item for that matter, is found, the circumstances in which it is discovered may suggest the prospect of an intention to abandon the article.
Items that are merely lost are not abandoned. For example, a GoPro camera spotted drifting along the surface is clearly lost and not abandoned. On the other hand; if you notice a Danforth anchor on the side of the slipway with a note that says ‘free’, there is a fair chance that the owner has left the anchor with the intention for anyone who wants it to have it.
The law says that personal property could be transferred through abandonment and you may appropriate such items as the new owner. This involves the owner having the intention to relinquish any claim to the property, and not only an intent to relinquish possession.
From what you have told us, it seems unlikely that the owner has decided to renounce their ownership of the vessel by her having broken the mooring and being adrift; so, no captain – you cannot appropriate the Riviera, and you are not the new owner by default.
Did I ‘salvage’ the Riviera?
A ‘salvage service’ is a service that saves or helps to save the subject of the service from danger. Whether a particular service is a salvage service, or not, is an objective one.
However, it is only maritime property that can be the subject of a salvage service. ‘Maritime property’ consists of a ship, freight, or cargo, and this includes the wreck of a boat.
Cargo again consists of all merchandise onboard the vessel. Interesting, no reward is payable in maritime law for the salvage of an aircraft. Therefore, from the facts you have provided, it seems that your kind act could indeed be a successful salvage of the Riviera.
Am I entitled to a claim of marine salvage?
You most certainly are, and also those who actively participated in the salvage operation. A person rendering the salvaging service, known as the salvor, becomes entitled to remuneration known as ‘salvage reward’.
Unlike common law, Maritime law allows for a reward to be payable for a service rendered voluntarily. It is as clear as the waters of the FNQ that the Riviera would have run aground had you not come along to intervene in the eventual fate.
Replacement value could be in the region of $2,200,000, and you have therefore just ‘saved’ the owner, or insurance company, a staggering seven-digit figure from partial loss.
The International Convention on Salvage, which governs salvage awards, was brought into force in Australia on 9 June 1997. Salvage law is therefore now governed by these provisions.
Salvage of human life is obligatory and regulated by section 181(1) of the Navigation Act 2012 (CTH), which dictates that where there is no serious danger to the ship, crew, or passengers, the master of a vessel is under a duty to assist any person found at sea in danger of being lost. Not rendering assistance makes you guilty of an offense.
How big is the salvage award – can I claim ownership of the Riviera as the booty, or is there a monetary value I can lay my hands on?
In ancient times, the Phoenicians recognized that the more challenging a salvage was, the more the award ought to be. A claim for salvage requires that the salvage service was rendered where life or property was in danger.
Also, a salvage claim will not usually succeed unless the service was rendered voluntarily (as opposed to professionally), and personally by those claiming to be the salvors. Finally, as a general guide, the salvage operation must have been successful in its purpose.
Although title (ownership) to the Riviera is not up for grabs, some form of monetary value can be claimed. In our next issue, we will explore actual salvage claims and see how the courts decided on what the economic value for salvage should be. We will see what to do with salvaged goods, where to report them, how to enforce your claim and when you can appropriate such goods.
The factors taken into consideration when determining a cost to the salvage award is:
- The value of the vessel and also other property on board
This is an essential factor in determining the value of the saved ‘goods’. If the item is derelict and of a small amount, the claim would also be minimal.
- The skill and efforts of the salvors in preventing damage to the environment
Where a total loss would result in damage to the environment through pollution (e.g. fuel), a salvor is encouraged to rescue the stricken vessel and be rewarded for the effort.
- The measure of success by the salvor
Where the salvage operation was unsuccessful, it follows that a claim for a salvage award would be far less than where the vessel was saved intact.
- The nature and degree of danger the salvor placed themselves in
The more the danger that the salvor had to place themselves and their vessel in to rescue the stricken vessel, the more risk was involved, and a higher reward could be sought.
- The skill and efforts of the salvors in rescuing the vessel, and other property
If the efforts to salvage the vessel required days and long hours of labour under superb seamanship to rescue the boat, the reward would be a more significant proportion of the vessel’s value.
- The time, expenses, and losses incurred by the salvor crew
Until then – may your excursions be safe, enjoyable and always on lown waters.
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