Summary in English

Summary in English

In this thesis, the jurisprudential method is applied to examine selected aspects of salvage law in connection with pollution damage – gain and risk.

Salvage law is unique to maritime law. A similar set of rules is not found to matters on land. Salvage law is incorporated into the Danish Maritime Code, Chapter 16, on the basis of the latest International Convention on Salvage, 1989. The main focus of salvage law is the regulation of the salvor’s remuneration: Salvage award and special compensation. These rules create an economic incentive for the salvor to assist a vessel or any other property in danger, but also impose certain duties on the salvor, including environmental considerations. In Chapter II, the conditions for obtaining a salvage award and special compensation and how damage to the environment or the risk hereof affects the remuneration, are examined.

It is well known that the salvage law creates an economic advantageous basis for the salvor. However, the salvage law is only suitable, if the responsible parties can fulfil their payment obligations, and salvage claims can be enforced. If a shipowner of a salvaged vessel for example cannot is insolvent, the salvor can be tempted to file an alternative claim on another legal basis than Chapter 16 of the Danish Maritime Code. In Chapter III, the salvor’s ability to file such alternative claims and the extent of the compensation under these rules, are examined. The analysis is based on the Danish incorporation of the CLC Convention, the Bunkers Convention, and the Waste Directive (WD). Furthermore, the legal principles of negotiorum gestio and restitution are reviewed. The analysis shows that salvage operations only to a limited extent can give rise to alternative claims. However, in relation to the CLC Convention and the Bunker Convention, it is concluded that the salvor can Side 337 file a claim, if he can prove that the aim of the operation has a dual purpose, equally divided between the salvage of the vessel and considerations to the environment. Furthermore, it is established that the salvor can file a claim for costs of preventive measures, including an element of profit, against the registered owner and IOPC. The examination of the WD and the legal principles of negotiorum gestio and restitution leads to the conclusion that the salvor as a general rule cannot file alternative claims on the basis of these rules. However, in theory it cannot be ruled out that a claim for unjust enrichment can be acknowledged by the Danish courts.

Chapter II and Chapter III both revolve around the salvor’s gain from salvage operations, including environmental measures. The counterpoint to gain is risk, which is the theme of Chapter IV.

»Risk« in this thesis refers to the analysis of the salvor’s liabilities, when he has caused pollution damage stemming from the vessel in danger. In Part I of Chapter IV, the salvor’s liability towards the owner of the vessel in danger is examined. Initially, specific rules on salvage which can be applied to sanction the salvor are examined. Hereafter, the salvor’s liability for negligence is analysed. Finally, the interplay between salvage law and the law of torts is analysed to identify a method, which ensures that the salvor is not sanctioned with more than 100 % of the damage caused. It is concluded that the most suitable method to ensure that the salvor is not sanctioned with more than 100 % of the damage caused is the »afstemingsmetode« or the »real facts«-method. The choice of method relies upon the concrete circumstances. Part II of the chapter examines the salvor’s liability for pollution damage, and how this affects the liability towards the shipowner of the salvaged vessel. This is based on chosen private law liability regimes in the Danish Maritime Code, Chapters 9 a and 10, the public law liability rules in the Danish Maritime Pollution Act (»havmiljøloven«), the WD, and finally the law of torts. Due to the principle of »responder immunity« set in Chapters 9 a and 10 in the Danish Maritime Code, liability within these regimes will usually be channelled to the shipowner of the salvaged vessel, and thus the salvor will not be held liable. Furthermore, the opportunity for recourse is limited. In relation to the WD, it is concluded that the salvor is liable for all uncovered costs of waste management encompassed by the directive. This liability is unlimited. With regards to the liability for negligence it is concluded that the salvor can be liable in concordance with the traditional theory of liability.

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In addition to the matters mentioned above, it has been a general theme of this thesis to determine, if salvor’s legal position is influence by the fact that the salvor’s actions generally are considered to be in the interest of the public. However, a policy of leniency towards salvors is generally not present under Danish law.

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