The Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997

Made: 30th October 1997

Coming into force: 30th November 1997

At the Court at Buckingham Palace, the 30th day of October 1997 Present, The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 315(2) of the Merchant Shipping Act 1995¹ and all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

Citation and commencement

1

This Order may be cited as the Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997 and shall come into force on 30th November 1997.

Implementation of the Salvage Convention

2

Sections 224 and 255(1) of and Schedule 11 to the Merchant Shipping Act 1995 shall extend to each of the territories listed in Schedule 1 to this Order subject to the exceptions, adaptations and modifications specified in Schedule 2 to this Order, and any instrument made, or to be made under paragraph 7 of part II of Schedule 2 to this Order shall also extend to each Territory.

Interpretation

3

In this Order “the Territory” means any of the territories listed in Schedule 1.

SCHEDULE 1 TO THE ORDER

• Anguilla

• British Antarctic Territory

• British Indian Ocean Territory

• Cayman Islands

• Falkland Islands

• Pitcairn, Henderson, Ducie and Oeno Islands and its Dependencies

• Saint Helena

• South Georgia and the South Sandwich Islands

• Turks and Caicos Islands

• Virgin Islands

SCHEDULE 2 TO THE ORDER — SECTIONS 224 AND 255(1) OF THE MERCHANT SHIPPING ACT 1995

Salvage

Salvage Convention 1989 to have force of law

224

• (1) The provisions of the International Convention on Salvage, 1989 as set out in Part I of Schedule 11 (in this Chapter referred to as “the Salvage Convention”) shall have the force of law in the Territory.

• (2) The provisions of Part II of that Schedule shall have effect in connection with the Salvage Convention, and subsection (1) above shall have effect subject to the provisions of that Part.

• …

• (4) Nothing in subsection (1) or (2) above shall affect any rights or liabilities arising out of any salvage operations started or other acts done before the entry into force of this Order.

• …

255

• (1) In this Part—

• …

• “salvage” includes, subject to the Salvage Convention, all expenses properly incurred by the salvor in the performance of the salvage services;

• …

• “salvor” means, in the case of salvage services rendered by the officers or crew or part of the crew of any ship belonging to Her Majesty, the person in command of the ship;

• …

• “vessel” includes any ship or boat, or any other description of vessel used in navigation.

SCHEDULE 11 TO THE MERCHANT SHIPPING ACT 1995 — INTERNATIONAL CONVENTION ON SALVAGE 1989

PART I — TEXT OF CONVENTION

CHAPTER I— — GENERAL PROVISIONS

ARTICLE 1 — Definitions

For the purpose of this Convention—

• (a) Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.

• (b) Vessel means any ship or craft, or any structure capable of navigation.

• (c) Property means any property not permanently and intentionally attached to the shoreline and includes freight at risk.

• (d) Damage to the environment means substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents.

• (e) Payment means any reward, remuneration or compensation due under this Convention.

• (f) Organisation means the International Maritime Organisation.

• (g) Secretary-General means the Secretary-General of the Organisation.

ARTICLE 2 — Application of the Convention

This Convention shall apply whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party.

ARTICLE 3 — Platforms and drilling units

This Convention shall not apply to fixed or floating platforms or to mobile off-shore drilling units when such platforms or units are on location engaged in the exploration, exploitation or production of sea-bed mineral resources.

ARTICLE 4 — State-owned vessels

1

Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognised principles of international law unless that State decides otherwise.

2

Where a State Party decides to apply the Convention to its warships or other vessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application.

ARTICLE 5 — Salvage operations controlled by public authorities

3

The extent to which a public authority under a duty to perform salvage operations may avail itself of the rights and remedies provided for in this Convention shall be determined by the law of the State where such authority is situated.

ARTICLE 6 — Salvage contracts

ARTICLE 7 — Annulment and modification of contracts

A contract or any terms thereof may be annulled or modified if—

• (a) the contract has been entered into under undue influence or the influence of danger and its terms are inequitable; or

• (b) the payment under the contract is in an excessive degree too large or too small for the services actually rendered.

CHAPTER II— — PERFORMANCE OF SALVAGE OPERATIONS

ARTICLE 8 — Duties of the salvor and of the owner and master

ARTICLE 9 — Rights of coastal States

Nothing in this Convention shall affect the right of the coastal State concerned to take measures in accordance with generally recognised principles of international law to protect its coastline or related interests from pollution or the threat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences, including the right of a coastal State to give directions in relation to salvage operations.

ARTICLE 10 — Duty to render assistance

ARTICLE 11 — Cooperation

A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.

CHAPTER III— — RIGHTS OF SALVORS

ARTICLE 12 — Conditions for reward

ARTICLE 13 — Criteria for fixing the reward

ARTICLE 14 — Special compensation

4

The total special compensation under this article shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salvor under article 13.

5

If the salvor has been negligent and has thereby failed to prevent or minimise damage to the environment, he may be deprived of the whole or part of any special compensation due under this article.

6

Nothing in this article shall affect any right of recourse on the part of the owner of the vessel.

ARTICLE 15 — Apportionment between salvors

ARTICLE 16 — Salvage of persons

ARTICLE 17 — Services rendered under existing contracts

No payment is due under the provisions of this Convention unless the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose.

ARTICLE 18 — The effect of salvor’s misconduct

A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that the salvage operations have become necessary or more difficult because of fault or neglect on his part or if the salvor has been guilty of fraud or other dishonest conduct.

ARTICLE 19 — Prohibition of salvage operations

Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention.

CHAPTER IV— — CLAIMS AND ACTIONS

ARTICLE 20 — Maritime lien

ARTICLE 21 — Duty to provide security

ARTICLE 22 — Interim payment

ARTICLE 23 — Limitation of actions

ARTICLE 24 — Interest

The right of the salvor to interest on any payment due under this Convention shall be determined according to the law of the State in which the tribunal seized of the case is situated.

ARTICLE 25 — State-owned cargoes

Unless the State owner consents, no provision of this Convention shall be used as a basis for the seizure, arrest or detention by any legal process of, nor for any proceedings in rem against, non-commercial cargoes owned by a State and entitled, at the time of the salvage operations, to sovereign immunity under generally recognised principles of international law.

ARTICLE 26 — Humanitarian cargoes

No provision of this Convention shall be used as a basis for the seizure, arrest or detention of humanitarian cargoes donated by a State, if such State has agreed to pay for salvage services rendered in respect of such humanitarian cargoes.

ARTICLE 27 — Publication of arbitral awards

States Parties shall encourage, as far as possible and with the consent of the parties, the publication of arbitral awards made in salvage cases.

PART II — PROVISIONS HAVING EFFECT IN CONNECTION WITH CONVENTION

Interpretation

Claims excluded from Convention

Assistance to persons in danger at sea

The reward and special compensation: the common understanding

Recourse for life salvage payment

Meaning of “judicial proceedings”

Meaning of “State Party”

7

• (1) An Order in Council made for the purposes of this paragraph and declaring that any State specified in the Order is a party to the Convention in respect of a specified country shall, subject to the provisions of any subsequent Order made for those purposes, be conclusive evidence that the State is a party to the Convention in respect of that country.

• (2) In this paragraph “country” includes “territory”.

Signed

N. H. Nicholls — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

This Order extends to the dependent territories listed in Schedule 1 provisions of the Merchant Shipping Act 1995 which give effect in the United Kingdom to the International Convention on Salvage, 1989.

Footnotes