important elements that determine ownership in salvage cases, which mostly involve
dereliction and constructive possession by the owner, and actual or constructive
possession by salvors.
Reflecting the basic tenet of the concept of “salvage”, an all-embracing definition
118 can be gleaned from the dictum of Hannen J. in Five Steel barges (1890),
The jurisdiction . . . is of a peculiarly equitable character. The right to salvage . . . is a
presumption of law arising out of the property who has had the benefit of it should make
remuneration to those who have conferred the benefit upon him, notwithstanding that he has
not entered into any contract on the subject.
119
The definition refers to “remuneration” following a successful salvage operation,
paid by the owner to the salvor. On the contrary, the absence of the owner changes
the position of the salvor to “owner”, as has been the case under English law and
affirmed by the Court in the case of The Lusitania (1986).
120 In this case, a German
submarine had torpedoed the vessel in question on the 7th of May 1915. In 1982 i.e.,
67 years later, salvage operations were initiated. 94 items of property were rescued in
the operation and ownership of the alleged abandoned wreck surfaced as the center
of dispute. In a subsequent dispute between the British Government and the salvors,
the Court ruled in favor of the salvors’ as they had acquired title via occupation,
because it was deemed that the original owners had abandoned the property. The
three
121 significant elements of salvage were evident in that part of the case and the
court subsequently observed the subtle dichotomy of the concept of “possession”
between the law of finds and the law of salvage.
Determination of the existence of the legal element of “possession” was important
to the Court in rendering its judgment on claims on cargo and personal effects that
were still submerged. This is where the court cited the classic salvage case in
118 The classic definition of salvage extracted from Kennedy and Rose (2002) (citing the definition
embodied in Five Steel Barges (1890) 15 P.D. 142.
119 Five Steel Barges (1890) 15 P.D. 142, p. 146.
120 Pierce v Bemis (The Lusitania) (1986) Q.B. 348, 388 (Justice Sheen, “[a] ship is derelict in the
legal sense of the term if the master and crew have abandoned her at sea without any intention of
returning to her and without hope on their part of recovering her”).
121 The first element is danger. See Kennedy and Rose (2002). The authors describe danger as “so
much just a cause of present apprehension, that, in order to escape out of it or to avoid it (as the case
may be) no reasonably prudent and skillful seaman in charge of the venture would refuse the
salvor’s help if it were offered to him upon the condition of his paying for it the salvor’s reward”.
The second element is voluntariness, which is a service rendered solely without any pre-existing
contractual duty. The distinction between “salvage agreement” and “contract salvage” is that the
latter gives rise to no maritime lien; and remuneration is paid according to quantum meruit or on
agreed amount. The former, on the other hand, provides for the award to be fixed by arbitration. The
final element is success based on the “no cure, no pay” principle. Success would demand that there
is an ultimate preservation of the res in question. The only exception as laid out in the case
Manchester Liners v M.V. Scotia Traders (1971) F.C. Rep. (F.C.C.T.D.), which stipulated that if
a distressed ship requests assistance, and an assisting ship renders salvage services, but it turns out
that the ship is eventually saved through some other cause, the assisting ship is still entitled to a
salvage award.
An Exposé of Canadian “Abandoned Vessels &. . .
367
dereliction and constructive possession by the owner, and actual or constructive
possession by salvors.
Reflecting the basic tenet of the concept of “salvage”, an all-embracing definition
118 can be gleaned from the dictum of Hannen J. in Five Steel barges (1890),
The jurisdiction . . . is of a peculiarly equitable character. The right to salvage . . . is a
presumption of law arising out of the property who has had the benefit of it should make
remuneration to those who have conferred the benefit upon him, notwithstanding that he has
not entered into any contract on the subject.
119
The definition refers to “remuneration” following a successful salvage operation,
paid by the owner to the salvor. On the contrary, the absence of the owner changes
the position of the salvor to “owner”, as has been the case under English law and
affirmed by the Court in the case of The Lusitania (1986).
120 In this case, a German
submarine had torpedoed the vessel in question on the 7th of May 1915. In 1982 i.e.,
67 years later, salvage operations were initiated. 94 items of property were rescued in
the operation and ownership of the alleged abandoned wreck surfaced as the center
of dispute. In a subsequent dispute between the British Government and the salvors,
the Court ruled in favor of the salvors’ as they had acquired title via occupation,
because it was deemed that the original owners had abandoned the property. The
three
121 significant elements of salvage were evident in that part of the case and the
court subsequently observed the subtle dichotomy of the concept of “possession”
between the law of finds and the law of salvage.
Determination of the existence of the legal element of “possession” was important
to the Court in rendering its judgment on claims on cargo and personal effects that
were still submerged. This is where the court cited the classic salvage case in
118 The classic definition of salvage extracted from Kennedy and Rose (2002) (citing the definition
embodied in Five Steel Barges (1890) 15 P.D. 142.
119 Five Steel Barges (1890) 15 P.D. 142, p. 146.
120 Pierce v Bemis (The Lusitania) (1986) Q.B. 348, 388 (Justice Sheen, “[a] ship is derelict in the
legal sense of the term if the master and crew have abandoned her at sea without any intention of
returning to her and without hope on their part of recovering her”).
121 The first element is danger. See Kennedy and Rose (2002). The authors describe danger as “so
much just a cause of present apprehension, that, in order to escape out of it or to avoid it (as the case
may be) no reasonably prudent and skillful seaman in charge of the venture would refuse the
salvor’s help if it were offered to him upon the condition of his paying for it the salvor’s reward”.
The second element is voluntariness, which is a service rendered solely without any pre-existing
contractual duty. The distinction between “salvage agreement” and “contract salvage” is that the
latter gives rise to no maritime lien; and remuneration is paid according to quantum meruit or on
agreed amount. The former, on the other hand, provides for the award to be fixed by arbitration. The
final element is success based on the “no cure, no pay” principle. Success would demand that there
is an ultimate preservation of the res in question. The only exception as laid out in the case
Manchester Liners v M.V. Scotia Traders (1971) F.C. Rep. (F.C.C.T.D.), which stipulated that if
a distressed ship requests assistance, and an assisting ship renders salvage services, but it turns out
that the ship is eventually saved through some other cause, the assisting ship is still entitled to a
salvage award.
An Exposé of Canadian “Abandoned Vessels &. . .
367