Does anybody care about the Salvage Convention any more? Is SalCon89 dead? Moot? Has the music died?
Martin Davies, Law Professor and Director of the Tulane Maritime Law Center at the Tulane Law School, has wondered the same thing and wrote a paper for the Journal of Maritime Law & Commerce last fall. His paper is titled “What Ever Happened to the Salvage Convention?” and it is interesting reading for sure. Here is the abstract from the Journal:
Self-executing treaties like the Salvage Convention 1989 automatically become “the supreme law of the land” in the United States under the Supremacy Clause of the U.S. Constitution.They require no legislation to make them operative but they have the same force and effect as an Article I legislative enactment.The fact that no implementing legislation is needed often leads to the paradoxical result that a self-executing treaty is more easily forgotten, perhaps for the simple reason that such treaties do not always appear in the U.S. Code and so are not always easy to find. That may explain the curious fate of the Salvage Convention 1989, which does not appear anywhere in the U.S. Code. There can be no doubt, however, that when the provisions of a treaty prescribe a rule by which private rights may be determined, as the Salvage Convention 1989 does, a court must resort to the treaty for rules of decision, just as it would to a statute. A court may only refer to the law that would govern in the absence of the treaty – in the present context, general maritime law – when the treaty leaves an issue unresolved. In short, it is not acceptable for courts to continue to apply the general maritime law of salvage simply because it is broadly equivalent to the Salvage Convention 1989. Even when the general maritime law and the Salvage Convention 1989 would produce identical results, courts should apply the Salvage Convention 1989 and not the general maritime law. When the general maritime law and the Salvage Convention 1989 would (or even might) produce different results, which may occur quite often, there is no justification for applying the general maritime law.
Professor Davies constructs a methodical and extensively researched argument in favor of SalCon and thinks that our courts should apply SalCon, not only because the Convention is rooted in sound legal reasoning, but most specifically because it is the law, and the courts shouldn’t have any choice in applying it – implying that courts that ignore the Convention are just plain wrong.
This article touches on many issues that affects our industry, like MARSAL, and the MSAP that changed USCG policy. The professor also discusses the intricacies of arbitration clauses in salvage contracts. Just a few bullet points on why you should read this article:
- The concept of Open Form or Contract salvage, and what happens when the actual contract is signed after the fact.
- Discusses the Prima Paint doctrine and challenges to arbitration clauses.
- Why a towing membership doesn’t apply to a salvage case.
- An extensive discussion about Article 14 and pollution salvage.
- Many citations that include BOAT/US and Sea Tow cases.
- A strong argument that SalCon89 should apply in state courts and on inland waters.
This last point should be most interesting, especially to those companies who service land locked water.
If state courts do have concurrent jurisdiction to hear in personam salvage claims, they must still apply the Salvage Convention 1989. Even if there would be any ground for applying state law to such a claim, which is doubtful, the Salvage Convention 1989 is state law as well as federal law, by operation of the Supremacy Clause. The Convention does not apply only to salvage claims, meaning claims phrased as being for salvage reward. It applies to judicial proceedings relating to salvage operations, which are defined as being “any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.”
Leave it to a lawyer to illuminate what might have been such a minor point: that SalCon applies to “salvage operations”, not only “salvage claims”. Furthermore, there is no reason that a state court cannot apply the Convention – indeed, they are required to under the Supremacy Clause, which forces the federal law to supersede a state law.
I can’t offer you a copy of this article (never mess with a lawyer’s copy write!), but you can instantly purchase a downloadable PDF version for only $10. by going here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1343256
