KENNEDY’S LAW OF SALVAGE FIFTH EDITIONPDF|Epub|txt|kindle电子书版本网盘下载

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1. NATURE OF THE SUBJECT1

Introduction1

Elements of the law of salvage1

Sources of the modern law3

Terminology9

Definition11

Civil salvage and military （prize） salvage12

Underlying principles13

Equitable basis13

Twin bases of law of salvage18

Receipt of a benefit20

Rights of salvors are essentially independent of contract23

Restitution for unjust enrichment25

Public policy28

Professional salvors34

Intention and voluntariness42

Acceptance and officiousness44

Remoteness of benefit54

2. HISTORY71

General71

Admiralty jurisdiction85

Introduction85

Early jurisdiction over wreck87

Extension of jurisdiction to preservation from shipwreck91

The Act of 171392

The Act of 175394

The Act of 180995

Frauds by Boatmen Act 181396

Frauds by Boatmen Act 182197

Admiralty Court Act 184098

Wreck and Salvage Act 184699

Merchant Shipping Act 1854100

Admiralty Court Act 1861101

Naval Agency and Distribution Act 1864102

County Courts Admiralty Jurisdiction Act 1868103

Merchant Shipping Act 1894104

Twentieth century developments105

Salvage at common law110

3. SUBJECTS OF SALVAGE141

1. MARITIME PROPERTY141

Introduction141

Vessels, ships and boats149

Apparel157

Property on board the ship not owned by the shipowner161

Ship's provisions166

Cargo168

Personal effects and luggage175

Wreck182

Former definition182

Flotsam, jetsam and lagan185

Admiralty Court's current jurisdiction186

Derelict190

Freight and hire194

Freight generally194

Charterparty remuneration197

“Freight at risk”207

Conclusions209

Passage money215

2. LIFE SALVAGE223

The common law rule and practice223

The legal rule223

The practice224

Several salvors225

Liability at common law226

Effect of statutory changes227

Explanation of the common law position228

Life salvage by agreement231

Life salvage under statute236

Early statutes236

Merchant Shipping Act 1894, ss. 544-545237

Principles of interpretation238

Intention to save lives only239

General rule239

Foreign vessels240

Extension to aircraft241

Property must be saved242

Interest in property saved243

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

Extent of reward limited to value of property preserved254

Discretionary payments of life salvage255

The lives in question256

“British waters”257

Priority260

3. AIRCRAFT261

History261

Application of law of wreck and salvage to aircraft267

Jurisdiction in respect of aircraft269

Definition of “aircraft”270

Salvage services by or to aircraft272

Locality273

4. HOVERCRAFT274

5. ROYAL FISH278

4. DANGER AND SALVAGE SERVICES301

Danger301

Danger as the foundation of salvage302

Degree of danger304

Vessels already damaged305

Condition of vessel306

Type of danger307

Danger to salvors308

Knowledge of danger309

Location of danger310

Proof of danger311

Evidence of danger312

Signals315

Non-physical danger317

Classification of salvage services323

Passive salvage329

Duration331

Importance331

Salvage in stages335

Duties on termination342

5. SALVORS361

General pre-requisites of claims361

Classification of salvors362

The rule of personal service364

Owners of salving vessels370

Ownership and possession of salving vessels—claims of owners and charterers374

Demise charterparties380

Salvor's relationship to salved property399

The salved ship400

The salved cargo408

Salving crew412

6. VOLUNTARINESS431

1. EXCLUSION OF NON-VOLUNTEERS431

General rule as to voluntariness431

Moral obligation437

Pre-existing duty to owner of salved property438

Beneficiary of pre-existing contractual or of sacial duty439

Pre-existing custom, usage or agreement441

Pre-existing contract for work and labour446

Interest of self preservation447

Statutory duties not precluding claims for salvage448

Gratuitous salvage454

2. WHEN VOLUNTEERS MAY CLAIM459

The master, officers and crew460

General principle460

Discharge by master464

Abandonment of the vessel465

Hostile capture474

Salvage service480

Parties governed by these rules481

Pilots483

Tugs496

Towage496

From towage to salvage499

The effect of danger supervening500

Effect on the contract503

The tests for salvage by tugs510

Towage as salvage ab initio514

Towage contract providing “no salvage charges”515

Burden of proving conversion of towage into salvage516

Foyboat men520

Lloyd's agents and ship's agents521

Passengers527

Crown ships, officers and men532

General principle532

Extent of duty535

Type of danger and degree of performance538

Admiralty's consent to claim539

Assessment of award541

Beneficiaries of the duty543

Place of performance of duty545

Claims by the Crown546

Officers and crew of other Crown ships554

The Royal Air Force, its officers and men564

Royal Army569

Coastguard officers and men570

Statutory authorities and their servants575

Receivers of wreck579

Magistrates and other officials581

Lifeboatmen583

Sub-contractors591

7. SUCCESS611

General principles611

Preservation of property613

Requested services615

Special contracts616

The master's authority617

Salvage agreements619

Loss of damage after preservation620

Meritorious contributions to success621

Doubt as to value of service: court favours salvors622

Services not contributing to success623

Incompleted service leaving vessel in greater danger624

Engaged services629

Compensation for supercession of engaged services640

The common law641

Lloyd's Form649

Oil pollution661

8. SALVAGE AGREEMENTS681

1. TYPES OF SALVAGE AGREEMENT681

Introduction681

Agreements excluding salvage685

Contractual salvage691

The Lloyd's Form of salvage agreement692

2. PERSONS BOUND BY SALVAGE AGREEMENT693

General principles693

Authority694

Agents' actual authority, express and implied694

Breach of warranty of authority695

Apparent, or ostensible, authority695

Usual authority696

Authority of necessity697

Authority by ramification701

Agency and salvage702

Salved vessel's master's power to bind shipowner706

Reasonable necessity709

Benefit711

Settlement of claim712

Arbitration714

Authority of person other than master to bind salved vessel715

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

Shipowner acting in personal capacity717

Authority to bind persons other than the shipowner720

Salving vessel723

Master's power to bind owners by salvage agreement723

Master's power to bind officers and crew by salvage agreement726

Power of owners to bind master and crew731

Agreement with one of several salvors or salvees735

3. EFFECT TO SALVAGE AGREEMENT736

Prima facie effective736

General principles736

Independent assessment different737

True salved values different738

LOF 1980740

Proof741

Existence of agreement741

Fairness of agreement742

Invalidity745

Admiralty jurisdiction still applies746

Denial of salvage estopped750

4. VITIATION753

Introduction753

Maritime law—fairness and justice754

Fraud or collusion755

Non-disclosure759

Misrepresentation769

Mistake777

Compulsion and inequity of terms789

Inequitable terms alone801

Inequitable settlements804

5. TERMS OF THE CONTRACT805

6. DISCHARGE806

Grounds806

Agreement or consent807

Supervening circumstances808

9. DUTIES OF PARTIES831

1. INTRODUCTION831

2. CONTRACTUAL LIABILITY832

Introduction832

Origins of liability833

Reduction of liability834

Application to salvage835

Definition of salvage836

3. IMPLIED TERMS838

Contracts for the sale of goods838

Contract of sale838

Implied terms840

Reduction of liability841

Contracts for the supply of goods842

Contracts for the transfer of property in goods842

Contracts for the hire of goods843

Implied terms844

Reduction of liability845

Contracts for the supply of a service846

The contracts concerned846

Implied terms847

Reduction of liability850

Care and skill852

Time for performance853

Consideration855

Personal performance858

Successful performance861

Common law implied terms863

4. REDUCTION OF LIABILITY866

The common law866

Statute868

Unfair Contract Terms Act 1977869

General provisions869

Sections 2 to 4 and 7870

Status of parties872

Contractual and tortious liability874

Relevant contractual clauses875

The requirement of reasonableness876

Effect of breach879

Death or personal injury880

Negligence liability generally881

Liability arising in contract882

5. FAILURE OF PERFORMANCE887

Breach of contract887

Time890

The effects of breach of a contract of salvage891

6. LLOYD'S FORM DUTIES894

Best endeavours and oil pollution894

Duties during salvage operations896

Safe conveyance of salved property to destination897

Reimbursement under the salvage contract901

Duties and rights of the carrier902

Frustration or abandonment906

Duties and rights of salvors907

Redelivery to whom?910

Conclusion912

Security and remedies913

Arbitration917

Payments918

10. MISCONDUCT951

Introduction951

1. CASUALTY'S DUTY TO SALVOR953

2. MISCONDUCT CAUSING DANGER958

Disentitlement?958

Former view958

Current view960

Proof961

Effects of claimant's fault962

Salvor's sister ship at fault964

3. SALVOR's NEGLIGENCE DURING SALVAGE OPERATIONS965

The Tojo Maru965

The early authorities966

The duty of care at common law966

The development of the law of negligence967

The jurisdiction of the Admiralty Court968

Counterclaims before 1873968

Dr. Lushington's views on the effect of negligence969

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

The contractual duty of care972

Standard of care for contractual negligence974

Establishing negligence975

The modern law977

Duty of care977

Liability for breach of duty977

Effect of salvor's negligence977

Measure of damages for breach of salvage contract and assessment of salvage award978

Damages for negligence at common law980

Multiple claims983

4. EFFECT OF MISCONDUCT ON REWARD985

General principle985

Misconduct causing forfeiture986

Misconduct by some salvors: effect on claims of others987

Burden of proof lies on those who assert misconduct990

Misconduct causing diminution of award991

Misconduct causing diminution of award and partial or total deprivation of costs992

Misconduct causing only deprivation of costs993

Misconduct need not, to affect award, occasion actual damage994

Limitation of liability995

11. SALVED VALUES1031

1. INTRODUCTION1031

Issues1031

Burden of proof1032

2. AGREED VALUATION1033

3. DISPUTED VALUATION1034

Place and time of valuation1034

Several salvage services1037

Events after termination1040

Qualifications on the general principle1043

Evidence of salved values1045

Sales1047

Objective or subjective valuation1049

Sound value1050

Valuation for damages assessment1053

Charterparty commitments1054

No sale1060

Deductions1062

Scrap value1065

Freight1066

At risk of ship1067

Where salvage services terminate at port of destination1068

Where salvage services terminate short of the port of destination1069

If cargo salved is not carried on1070

If cargo salved is carried on1071

Cargo salved value1078

Where salvage services terminate short of the port of destination1080

Deductions from cargo salved value1083

Other financial interests1086

Derelicts1088

Freight in salvage of derelict1091

Abandonment1091

No valid abandonment1094

Life salvage1095

4. APPRAISEMENT1096

12. ASSESSMENT OF SALVAGE REWARD1111

The discretion of the court in awarding salvage1111

The general principles by which the court is guided1112

Public interests considered: public policy1113

Ingredients and incidents of a salvage service which affect the award1114

Classification1115

Difference of judicial opinion as to relative importance of these considerations1116

The limit1117

The ingredients and incidents of salvage, affecting the award, considered in detail1120

A（1）: Degree of danger, if any, to human life on salved vessel1120

A（2）: Danger to property salved1121

A（3）: Value of salved property； how far considered1125

B（1）: Degree of danger, if any, to human life on salving vessel1128

B（2）: （a） Salvors' classification1129

B（2）: （b） Salvors' skill1131

B（2）: （c） The salvors' conduct； general principles1132

B（3）: Degree of danger, if any, to property employed in the salvage service and its value1133

B（4）: （a） Time occupied by the salvage service1134

B（4）: （b） Work done in the performance of the salvage service1135

B（5）: Responsibilities incurred in the salvage service1136

B（6）: Losses and expenses of salvor1139

Agreement for reward independently of success operates to reduce reward1146

Interest1147

Foreign currencies1149

Taxation1150

Inflation1151

13. CONTRIBUTION1171

Introduction1171

1. LIABILITY TO SALVOR1172

General rule1172

All interests in property benefited contribute1172

Life salvage1173

Exceptions to the general rule1175

Life salvage1175

Personal effects of passengers, master and crew1175

Bottomry or respondentia1175

Crown proceedings1176

Sovereign immunity1176

Defendants outside the jurisdiction1177

Misconduct by salvor1177

Salvor's remedies1178

Payment of salvage by shipowner1180

Liability to pay salvage1181

Agreements for fixed sum； agreements by shipowner to pay all salvage in rst instance1185

Estoppel1185

Shipowner's remedies for reimbursement1186

2. CONTRIBUTION RATEABLY ACCORDING TO SALVED VALUES1188

General rule1188

Different degrees of risk or difficulty1189

Silver or bullion1189

Justifications of the general rule1190

Different risks1191

Interests in salved property1196

Contribution to life salvage1204

3. DIVISION OF LIABILITY1205

Introduction1205

Interest not in fact benefited1206

14. APPORTIONMENT OF SALVAGE REWARD1221

How apportionment may come before the court1221

Apportionment amongst owners, master and crew of a salving vessel1223

Issues1223

Share of owner of a salving vessel1223

Crew's share； officer and seamen1224

Passengers1225

Extra shares1225

Special rewards1225

Crown ships1226

Pilot1226

Lifeboatmen1226

Coastguard1226

Apportionment amongst individual salvors not associated, e.g. as a crew1227

Apportionment amongst various salving vessels or sets of salvors1228

Where services contemporaneous1228

Priority in time； general principle1229

Wrongful dispossession； effect1230

Share due to deceased salvor is awarded to his personal representative1231

Agreements for apportionment1232

General rules1232

Court watches carefully the interests of seamen1233

Statutory protection of seamen1233

“No salvage charges”1233

Owners' deductions before apportionment disallowed1234

Statutory provisions as to agreements by seamen do not apply to masters1235

Agreements for apportionment implied from usage1236

Court would uphold usage only if equitable1237

15. REMEDIES1251

1. ADMIRALTY REMEDIES1251

Enforcement of salvor's rights1251

The Supreme Court Act 19811252

The County Courts Act 19841253

Maritime lien and procedure in rem1254

Right of action in personam1256

Detention of property for salvage by a receiver1257

2. POSSESSORY RIGHTS OF SALVORS1258

Introduction1258

Possessory rights of first salvors1259

Derelict1260

Limitations on the right1262

Property not derelict1264

General rule1264

Effect of owner's/master's right to possession1266

Exceptions1267

First salvors' rights of possession against second salvors1270

Effect of salvor's conduct1272

Possession and receivers1275

3. SOVEREIGN IMMUNITY1277

Introduction1277

The Crown1278

Description1278

Crown liability1279

Limitation1280

Crown property1280

Crown proceedings1281

State immunity1282

Exceptions1283

Admiralty proceedings1286

16. JURISDICTION AND PROCEDURE1301

1. ENFORCEMENT OF SALVOR'S RIGHTS1301

High Court jurisdiction1301

The county court1302

Admiralty jurisdiction1302

Mode of exercise of admiralty jurisdiction1303

Transfer of proceedings to High Court1305

Costs of proceedings which have been commenced in county court1306

2. THE LLOYD'S FORM1307

Lloyd's Standard Form of Salvage Agreement1307

3. ARBITRATION1329

Preliminary application1330

Pleadings1331

Discovery1332

Evidence1333

Publication of award and reasons1334

Open offers1335

4. APPEALS AS To AMOUNT OF SALVAGE AWARD1336

Appeals to the High Court from an arbitration award1336

Appeals from court of first instance1337

Appeals to the House of Lords1340

17. PUBLIC INTEREST1381

Introduction1381

1. DEALING WITH WRECK1382

Receivers of wreck1382

Examination in respect of ships in distress1386

Dealing with wreck1387

Penalty for taking wreck at time of casualty1389

Notice of wreck to be given by receiver1390

Claims of owners of wrecks1391

Immediate sale of wreck by receiver in certain cases1392

Unclaimed wreck1393

Removal of wrecks1395

The Harbours, Docks and Piers Clauses Act 18471395

The Dockyard Ports Regulation Act 18651397

The Merchant Shipping Act 1894, ss. 530-5341398

Relationship between statutory powers1403

Abandonment1407

Statutory powers and salvage1408

2. PROTECTION OF WRECKS1410

Restricted areas1410

Prohibited areas1412

3. OIL POLLUTION1413

Introduction1413

The Merchant Shipping （Oil Pollution） Act 19711414

Section 1 liability1414

Section 15 liability1416

The statutory liability and salvage1417

Salvorial negligence1418

Compulsory insurance against pollution liability1419

The Prevention of Oil Pollution Act 19711420

Shipping casualties1421

Preventing oil pollution1426

Tanker owners' voluntary payments1427

TOVALOP1427

CRISTAL1431

4. DANGEROUS VESSELS1436

APPENDICES1451

APPENDIX 1—SALVAGE DOCUMENTS1451

APPENDIX 2—INTERNATIONAL CONVENTIONS1506

APPENDIX 3—STATUTES1579

APPENDIX 4—RULES AND REGULATIONS1874

APPENDIX 5—AGREEMENTS1936

Index779