KENNEDY’S LAW OF SALVAGE FIFTH EDITIONPDF电子书下载

1. NATURE OF THE SUBJECT 1

Introduction 1

Elements of the law of salvage 1

Sources of the modern law 3

Terminology 9

Definition 11

Civil salvage and military （prize） salvage 12

Underlying principles 13

Equitable basis 13

Twin bases of law of salvage 18

Receipt of a benefit 20

Rights of salvors are essentially independent of contract 23

Restitution for unjust enrichment 25

Public policy 28

Professional salvors 34

Intention and voluntariness 42

Acceptance and officiousness 44

Remoteness of benefit 54

2. HISTORY 71

General 71

Admiralty jurisdiction 85

Introduction 85

Early jurisdiction over wreck 87

Extension of jurisdiction to preservation from shipwreck 91

The Act of 1713 92

The Act of 1753 94

The Act of 1809 95

Frauds by Boatmen Act 1813 96

Frauds by Boatmen Act 1821 97

Admiralty Court Act 1840 98

Wreck and Salvage Act 1846 99

Merchant Shipping Act 1854 100

Admiralty Court Act 1861 101

Naval Agency and Distribution Act 1864 102

County Courts Admiralty Jurisdiction Act 1868 103

Merchant Shipping Act 1894 104

Twentieth century developments 105

Salvage at common law 110

3. SUBJECTS OF SALVAGE 141

1. MARITIME PROPERTY 141

Introduction 141

Vessels, ships and boats 149

Apparel 157

Property on board the ship not owned by the shipowner 161

Ship's provisions 166

Cargo 168

Personal effects and luggage 175

Wreck 182

Former definition 182

Flotsam, jetsam and lagan 185

Admiralty Court's current jurisdiction 186

Derelict 190

Freight and hire 194

Freight generally 194

Charterparty remuneration 197

“Freight at risk” 207

Conclusions 209

Passage money 215

2. LIFE SALVAGE 223

The common law rule and practice 223

The legal rule 223

The practice 224

Several salvors 225

Liability at common law 226

Effect of statutory changes 227

Explanation of the common law position 228

Life salvage by agreement 231

Life salvage under statute 236

Early statutes 236

Merchant Shipping Act 1894, ss. 544-545 237

Principles of interpretation 238

Intention to save lives only 239

General rule 239

Foreign vessels 240

Extension to aircraft 241

Property must be saved 242

Interest in property saved 243

Interest in property saved irrelevant to liability. The property need not have been “salved” 246

Extent of reward limited to value of property preserved 254

Discretionary payments of life salvage 255

The lives in question 256

“British waters” 257

Priority 260

3. AIRCRAFT 261

History 261

Application of law of wreck and salvage to aircraft 267

Jurisdiction in respect of aircraft 269

Definition of “aircraft” 270

Salvage services by or to aircraft 272

Locality 273

4. HOVERCRAFT 274

5. ROYAL FISH 278

4. DANGER AND SALVAGE SERVICES 301

Danger 301

Danger as the foundation of salvage 302

Degree of danger 304

Vessels already damaged 305

Condition of vessel 306

Type of danger 307

Danger to salvors 308

Knowledge of danger 309

Location of danger 310

Proof of danger 311

Evidence of danger 312

Signals 315

Non-physical danger 317

Classification of salvage services 323

Passive salvage 329

Duration 331

Importance 331

Salvage in stages 335

Duties on termination 342

5. SALVORS 361

General pre-requisites of claims 361

Classification of salvors 362

The rule of personal service 364

Owners of salving vessels 370

Ownership and possession of salving vessels—claims of owners and charterers 374

Demise charterparties 380

Salvor's relationship to salved property 399

The salved ship 400

The salved cargo 408

Salving crew 412

6. VOLUNTARINESS 431

1. EXCLUSION OF NON-VOLUNTEERS 431

General rule as to voluntariness 431

Moral obligation 437

Pre-existing duty to owner of salved property 438

Beneficiary of pre-existing contractual or of sacial duty 439

Pre-existing custom, usage or agreement 441

Pre-existing contract for work and labour 446

Interest of self preservation 447

Statutory duties not precluding claims for salvage 448

Gratuitous salvage 454

2. WHEN VOLUNTEERS MAY CLAIM 459

The master, officers and crew 460

General principle 460

Discharge by master 464

Abandonment of the vessel 465

Hostile capture 474

Salvage service 480

Parties governed by these rules 481

Pilots 483

Tugs 496

Towage 496

From towage to salvage 499

The effect of danger supervening 500

Effect on the contract 503

The tests for salvage by tugs 510

Towage as salvage ab initio 514

Towage contract providing “no salvage charges” 515

Burden of proving conversion of towage into salvage 516

Foyboat men 520

Lloyd's agents and ship's agents 521

Passengers 527

Crown ships, officers and men 532

General principle 532

Extent of duty 535

Type of danger and degree of performance 538

Admiralty's consent to claim 539

Assessment of award 541

Beneficiaries of the duty 543

Place of performance of duty 545

Claims by the Crown 546

Officers and crew of other Crown ships 554

The Royal Air Force, its officers and men 564

Royal Army 569

Coastguard officers and men 570

Statutory authorities and their servants 575

Receivers of wreck 579

Magistrates and other officials 581

Lifeboatmen 583

Sub-contractors 591

7. SUCCESS 611

General principles 611

Preservation of property 613

Requested services 615

Special contracts 616

The master's authority 617

Salvage agreements 619

Loss of damage after preservation 620

Meritorious contributions to success 621

Doubt as to value of service: court favours salvors 622

Services not contributing to success 623

Incompleted service leaving vessel in greater danger 624

Engaged services 629

Compensation for supercession of engaged services 640

The common law 641

Lloyd's Form 649

Oil pollution 661

8. SALVAGE AGREEMENTS 681

1. TYPES OF SALVAGE AGREEMENT 681

Introduction 681

Agreements excluding salvage 685

Contractual salvage 691

The Lloyd's Form of salvage agreement 692

2. PERSONS BOUND BY SALVAGE AGREEMENT 693

General principles 693

Authority 694

Agents' actual authority, express and implied 694

Breach of warranty of authority 695

Apparent, or ostensible, authority 695

Usual authority 696

Authority of necessity 697

Authority by ramification 701

Agency and salvage 702

Salved vessel's master's power to bind shipowner 706

Reasonable necessity 709

Benefit 711

Settlement of claim 712

Arbitration 714

Authority of person other than master to bind salved vessel 715

Owners of salved cargo, freight, bunkers, etc. 716

Shipowner acting in personal capacity 717

Authority to bind persons other than the shipowner 720

Salving vessel 723

Master's power to bind owners by salvage agreement 723

Master's power to bind officers and crew by salvage agreement 726

Power of owners to bind master and crew 731

Agreement with one of several salvors or salvees 735

3. EFFECT TO SALVAGE AGREEMENT 736

Prima facie effective 736

General principles 736

Independent assessment different 737

True salved values different 738

LOF 1980 740

Proof 741

Existence of agreement 741

Fairness of agreement 742

Invalidity 745

Admiralty jurisdiction still applies 746

Denial of salvage estopped 750

4. VITIATION 753

Introduction 753

Maritime law—fairness and justice 754

Fraud or collusion 755

Non-disclosure 759

Misrepresentation 769

Mistake 777

Compulsion and inequity of terms 789

Inequitable terms alone 801

Inequitable settlements 804

5. TERMS OF THE CONTRACT 805

6. DISCHARGE 806

Grounds 806

Agreement or consent 807

Supervening circumstances 808

9. DUTIES OF PARTIES 831

1. INTRODUCTION 831

2. CONTRACTUAL LIABILITY 832

Introduction 832

Origins of liability 833

Reduction of liability 834

Application to salvage 835

Definition of salvage 836

3. IMPLIED TERMS 838

Contracts for the sale of goods 838

Contract of sale 838

Implied terms 840

Reduction of liability 841

Contracts for the supply of goods 842

Contracts for the transfer of property in goods 842

Contracts for the hire of goods 843

Implied terms 844

Reduction of liability 845

Contracts for the supply of a service 846

The contracts concerned 846

Implied terms 847

Reduction of liability 850

Care and skill 852

Time for performance 853

Consideration 855

Personal performance 858

Successful performance 861

Common law implied terms 863

4. REDUCTION OF LIABILITY 866

The common law 866

Statute 868

Unfair Contract Terms Act 1977 869

General provisions 869

Sections 2 to 4 and 7 870

Status of parties 872

Contractual and tortious liability 874

Relevant contractual clauses 875

The requirement of reasonableness 876

Effect of breach 879

Death or personal injury 880

Negligence liability generally 881

Liability arising in contract 882

5. FAILURE OF PERFORMANCE 887

Breach of contract 887

Time 890

The effects of breach of a contract of salvage 891

6. LLOYD'S FORM DUTIES 894

Best endeavours and oil pollution 894

Duties during salvage operations 896

Safe conveyance of salved property to destination 897

Reimbursement under the salvage contract 901

Duties and rights of the carrier 902

Frustration or abandonment 906

Duties and rights of salvors 907

Redelivery to whom? 910

Conclusion 912

Security and remedies 913

Arbitration 917

Payments 918

10. MISCONDUCT 951

Introduction 951

1. CASUALTY'S DUTY TO SALVOR 953

2. MISCONDUCT CAUSING DANGER 958

Disentitlement? 958

Former view 958

Current view 960

Proof 961

Effects of claimant's fault 962

Salvor's sister ship at fault 964

3. SALVOR's NEGLIGENCE DURING SALVAGE OPERATIONS 965

The Tojo Maru 965

The early authorities 966

The duty of care at common law 966

The development of the law of negligence 967

The jurisdiction of the Admiralty Court 968

Counterclaims before 1873 968

Dr. Lushington's views on the effect of negligence 969

Success and the theory of “more harm than good” 970

The contractual duty of care 972

Standard of care for contractual negligence 974

Establishing negligence 975

The modern law 977

Duty of care 977

Liability for breach of duty 977

Effect of salvor's negligence 977

Measure of damages for breach of salvage contract and assessment of salvage award 978

Damages for negligence at common law 980

Multiple claims 983

4. EFFECT OF MISCONDUCT ON REWARD 985

General principle 985

Misconduct causing forfeiture 986

Misconduct by some salvors: effect on claims of others 987

Burden of proof lies on those who assert misconduct 990

Misconduct causing diminution of award 991

Misconduct causing diminution of award and partial or total deprivation of costs 992

Misconduct causing only deprivation of costs 993

Misconduct need not, to affect award, occasion actual damage 994

Limitation of liability 995

11. SALVED VALUES 1031

1. INTRODUCTION 1031

Issues 1031

Burden of proof 1032

2. AGREED VALUATION 1033

3. DISPUTED VALUATION 1034

Place and time of valuation 1034

Several salvage services 1037

Events after termination 1040

Qualifications on the general principle 1043

Evidence of salved values 1045

Sales 1047

Objective or subjective valuation 1049

Sound value 1050

Valuation for damages assessment 1053

Charterparty commitments 1054

No sale 1060

Deductions 1062

Scrap value 1065

Freight 1066

At risk of ship 1067

Where salvage services terminate at port of destination 1068

Where salvage services terminate short of the port of destination 1069

If cargo salved is not carried on 1070

If cargo salved is carried on 1071

Cargo salved value 1078

Where salvage services terminate short of the port of destination 1080

Deductions from cargo salved value 1083

Other financial interests 1086

Derelicts 1088

Freight in salvage of derelict 1091

Abandonment 1091

No valid abandonment 1094

Life salvage 1095

4. APPRAISEMENT 1096

12. ASSESSMENT OF SALVAGE REWARD 1111

The discretion of the court in awarding salvage 1111

The general principles by which the court is guided 1112

Public interests considered: public policy 1113

Ingredients and incidents of a salvage service which affect the award 1114

Classification 1115

Difference of judicial opinion as to relative importance of these considerations 1116

The limit 1117

The ingredients and incidents of salvage, affecting the award, considered in detail 1120

A（1）: Degree of danger, if any, to human life on salved vessel 1120

A（2）: Danger to property salved 1121

A（3）: Value of salved property； how far considered 1125

B（1）: Degree of danger, if any, to human life on salving vessel 1128

B（2）: （a） Salvors' classification 1129

B（2）: （b） Salvors' skill 1131

B（2）: （c） The salvors' conduct； general principles 1132

B（3）: Degree of danger, if any, to property employed in the salvage service and its value 1133

B（4）: （a） Time occupied by the salvage service 1134

B（4）: （b） Work done in the performance of the salvage service 1135

B（5）: Responsibilities incurred in the salvage service 1136

B（6）: Losses and expenses of salvor 1139

Agreement for reward independently of success operates to reduce reward 1146

Interest 1147

Foreign currencies 1149

Taxation 1150

Inflation 1151

13. CONTRIBUTION 1171

Introduction 1171

1. LIABILITY TO SALVOR 1172

General rule 1172

All interests in property benefited contribute 1172

Life salvage 1173

Exceptions to the general rule 1175

Life salvage 1175

Personal effects of passengers, master and crew 1175

Bottomry or respondentia 1175

Crown proceedings 1176

Sovereign immunity 1176

Defendants outside the jurisdiction 1177

Misconduct by salvor 1177

Salvor's remedies 1178

Payment of salvage by shipowner 1180

Liability to pay salvage 1181

Agreements for fixed sum； agreements by shipowner to pay all salvage in rst instance 1185

Estoppel 1185

Shipowner's remedies for reimbursement 1186

2. CONTRIBUTION RATEABLY ACCORDING TO SALVED VALUES 1188

General rule 1188

Different degrees of risk or difficulty 1189

Silver or bullion 1189

Justifications of the general rule 1190

Different risks 1191

Interests in salved property 1196

Contribution to life salvage 1204

3. DIVISION OF LIABILITY 1205

Introduction 1205

Interest not in fact benefited 1206

14. APPORTIONMENT OF SALVAGE REWARD 1221

How apportionment may come before the court 1221

Apportionment amongst owners, master and crew of a salving vessel 1223

Issues 1223

Share of owner of a salving vessel 1223

Crew's share； officer and seamen 1224

Passengers 1225

Extra shares 1225

Special rewards 1225

Crown ships 1226

Pilot 1226

Lifeboatmen 1226

Coastguard 1226

Apportionment amongst individual salvors not associated, e.g. as a crew 1227

Apportionment amongst various salving vessels or sets of salvors 1228

Where services contemporaneous 1228

Priority in time； general principle 1229

Wrongful dispossession； effect 1230

Share due to deceased salvor is awarded to his personal representative 1231

Agreements for apportionment 1232

General rules 1232

Court watches carefully the interests of seamen 1233

Statutory protection of seamen 1233

“No salvage charges” 1233

Owners' deductions before apportionment disallowed 1234

Statutory provisions as to agreements by seamen do not apply to masters 1235

Agreements for apportionment implied from usage 1236

Court would uphold usage only if equitable 1237

15. REMEDIES 1251

1. ADMIRALTY REMEDIES 1251

Enforcement of salvor's rights 1251

The Supreme Court Act 1981 1252

The County Courts Act 1984 1253

Maritime lien and procedure in rem 1254

Right of action in personam 1256

Detention of property for salvage by a receiver 1257

2. POSSESSORY RIGHTS OF SALVORS 1258

Introduction 1258

Possessory rights of first salvors 1259

Derelict 1260

Limitations on the right 1262

Property not derelict 1264

General rule 1264

Effect of owner's/master's right to possession 1266

Exceptions 1267

First salvors' rights of possession against second salvors 1270

Effect of salvor's conduct 1272

Possession and receivers 1275

3. SOVEREIGN IMMUNITY 1277

Introduction 1277

The Crown 1278

Description 1278

Crown liability 1279

Limitation 1280

Crown property 1280

Crown proceedings 1281

State immunity 1282

Exceptions 1283

Admiralty proceedings 1286

16. JURISDICTION AND PROCEDURE 1301

1. ENFORCEMENT OF SALVOR'S RIGHTS 1301

High Court jurisdiction 1301

The county court 1302

Admiralty jurisdiction 1302

Mode of exercise of admiralty jurisdiction 1303

Transfer of proceedings to High Court 1305

Costs of proceedings which have been commenced in county court 1306

2. THE LLOYD'S FORM 1307

Lloyd's Standard Form of Salvage Agreement 1307

3. ARBITRATION 1329

Preliminary application 1330

Pleadings 1331

Discovery 1332

Evidence 1333

Publication of award and reasons 1334

Open offers 1335

4. APPEALS AS To AMOUNT OF SALVAGE AWARD 1336

Appeals to the High Court from an arbitration award 1336

Appeals from court of first instance 1337

Appeals to the House of Lords 1340

17. PUBLIC INTEREST 1381

Introduction 1381

1. DEALING WITH WRECK 1382

Receivers of wreck 1382

Examination in respect of ships in distress 1386

Dealing with wreck 1387

Penalty for taking wreck at time of casualty 1389

Notice of wreck to be given by receiver 1390

Claims of owners of wrecks 1391

Immediate sale of wreck by receiver in certain cases 1392

Unclaimed wreck 1393

Removal of wrecks 1395

The Harbours, Docks and Piers Clauses Act 1847 1395

The Dockyard Ports Regulation Act 1865 1397

The Merchant Shipping Act 1894, ss. 530-534 1398

Relationship between statutory powers 1403

Abandonment 1407

Statutory powers and salvage 1408

2. PROTECTION OF WRECKS 1410

Restricted areas 1410

Prohibited areas 1412

3. OIL POLLUTION 1413

Introduction 1413

The Merchant Shipping （Oil Pollution） Act 1971 1414

Section 1 liability 1414

Section 15 liability 1416

The statutory liability and salvage 1417

Salvorial negligence 1418

Compulsory insurance against pollution liability 1419

The Prevention of Oil Pollution Act 1971 1420

Shipping casualties 1421

Preventing oil pollution 1426

Tanker owners' voluntary payments 1427

TOVALOP 1427

CRISTAL 1431

4. DANGEROUS VESSELS 1436

APPENDICES 1451

APPENDIX 1—SALVAGE DOCUMENTS 1451

APPENDIX 2—INTERNATIONAL CONVENTIONS 1506

APPENDIX 3—STATUTES 1579

APPENDIX 4—RULES AND REGULATIONS 1874

APPENDIX 5—AGREEMENTS 1936

Index 779