The Shifting Nature of Salvage Law: A View From a Distance

The maritime law of salvage may seem to present a fixed body of doctrines that only require to be applied to fresh circumstances. However, there have been major changes in the doctrines of salvage law, including the shift made in the eighteenth century by which the English courts moved from giving rewards for the rescuing of goods wrecked at sea to giving rewards for the prevention of loss at sea.
Two points are now likely to force further development of the law. One point is the combination of the fact that (apart from the limited safety-net provided by SCOPIC) under existing law the amount of a salvage reward is capped by the value of the property preserved, together with a decline in the number of salvages from which salvors can earn rewards under existing law. The result is a pressure from salvors for salvage rewards fully reflecting the liabilities from which vessels and their insurers have been saved. The second point is a possible pressure from property insurers (hull and cargo) not to pay by way of the rewards for these few salvages, for the costs of the existence of professional salvors and the maintenance of vessels and equipment dedicated to salvage, which may now seem primarily to benefit liability insurers.
One possible development is that salvage operations might be performed under fixed-price contracts between the liability insurers of vessels and salvage contractors. We discuss in this Article the extent to which, under English law, a contract such as Lloyd's Open Form may replace the general maritime law of salvage.
Another possible development is that liability salvage might be recognised under maritime law as a separate route to a salvage reward, parallel to the route of property salvage. We defend the conceptual possibility of this development and deal with some difficulties that have been raised. We conclude that this change would be in accordance with the underlying principles of salvage law, in terms of rewards based on benefits conferred and in terms of encouragement, and would involve no greater departure from existing doctrine than was made by the judges of the eighteenth century.
In this Article we also review (from across the Atlantic) some issues in U.S. salvage law, including the application of salvage law to ancient wrecks, life salvage under U.S. law, and the position of Lloyd's Open Form under U.S. law.