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  • Author or Editor: Proshanto K. Mukherjee x
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Abstract

It has been recognized since time immemorial that seafaring, the second oldest profession in history, is inherently risky which is why shipping is often referred to as a maritime adventure. Admittedly, maritime salvage, famously described as an “endeavour so heroic that it is unrivalled in fiction” (The Holder Borden 12 Fed Cas. 331 No. 6600, D. Mass 1847), is fraught with even more risk. This chapter concerns the law of salvage, specifically, the standard form salvage agreement typified by the Lloyd’s Open Form (LOF) in juxtaposition to the notion of contract salvage. The inquiry delves into the question of risk as it pertains to salvage services from the opposite perspectives of the shipowner and the salvor. The central theme of the chapter rests on the submission that the LOF-type salvage agreement is not a contract. In terms of English law, a contract requires the existence of not only the trilateral configuration in law of offer, acceptance and mutual flow of consideration, but also the ingredients of certainty and consensus ad idem. It is argued further that the so-called salvage agreement characterized by “no cure-no pay” is simply a reflection of the customary law of salvage, otherwise referred to by appellations such as “pure salvage”, “salvage proper” and “salvage under maritime law”, and is not a contract, whereas contract salvage or “employment salvage” as it has been described in a decision of the Supreme People’s Court of China (Archangelos Gabriel case, 7 July, 2016), most certainly is. The argument is reinforced by the virtually universal rule that only customary salvage attracts a maritime lien; contract salvage does not. The chapter concludes with the observation that the LOF-type agreement is rapidly declining and being increasingly replaced by expressly stated salvage remuneration typical of contracts proper, which is not dependent on the vagaries of arbitral awards and which reduces the salvor’s financial risk considerably.

Open Access
In: Regulation of Risk
In: The Regulation of International Shipping: International and Comparative Perspectives
In: Places of Refuge for Ships