XII. The Environmental Factor
of the most interesting developments in salvage law has been the
growing attention paid to the environment. Ironically, the 1990
revision to the Lloyd's Open Form has helped significantly in this
With increasing government
intervention into salvage situations which posed a threat to the
environment, salvors found themselves faced with problems ranging from
denial of access to ports to decisions to bomb the vessel into
splinters. Salvors became increasingly reluctant to expend time and
money on salving a vessel with little hope of receiving a reward.
In 1981, discussions were first held in Montreal to resolve the
problem. A draft convention on salvage was adopted to address this
issue. The 1980 revision to the LOF provided the unsuccessful salvor
who attempted to salve a "tanker laden or partly laden with a cargo of
oil" with his expenses plus fifteen per cent as a reward if he
attempted to prevent or mitigate damage to the environment.
Subsequently, the International Convention on Salvage was adopted and
ratified by the United States. The 1990 revision to the LOF
incorporates articles 1, 8, 13 and 14 of 1989 Salvage Convention, and
provides that the unsuccessful salvor can receive, as a reward for his
efforts to prevent or mitigate damage to the environment, his expenses
plus up to 200% of his expenses. Additionally, the successful salvor
can have his award enhanced as a result of efforts to protect the
environment. This concept shifts burden of costs of prevention and
mitigation efforts from public to vessel owners and insurers.
Availability of a reward for environmental efforts should encourage
salvors to outfit vessels for environmental efforts and spare taxpayers
costs of vessels, personnel, training and standby. Special compensation
encourages salvors to "roll the dice" and undertake both salvage and
environmental protection when the probability of success of salvage is
The overall concept encourages environmental protection as a whole.
Several courts have found this argument persuasive and enhanced a
salvor's award for efforts to protect the environment. To obtain such
an award, the salvor must prove by a preponderance of evidence that
damage to the environment would have occurred but for salvage efforts.
Potential problems exist with regard to the definition of "substantial
physical damage" to the environment, especially in cases where no
damage occurs, as well as with the definition of "major" incidents.
Other definitions within the treaty will also require judicial
interpretation. Valuation of marine resources is also a problem.
Another problem will be the fact that the hull underwriters usually pay
salvage awards while Protection and Indemnity ("P & I")
underwriters pay for clean-up costs and environmental damage. Under the
Cresci doctrine, this may result in P & I underwriters becoming
directly liable for the environmental portion of the salvage award.
While the concept will probably require much litigation and
interpretation, it should prove useful for both salvors and the
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