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A Reassessment of the Marine Salvage Posture of the United States APPENDIX H U.S. LAWS AFFECTING SALVAGE AUTHORITY PURPOSE COMMENT Salvage Facilities Furnished by Navy P.L 513, 4 May 1948 10 USC 7361-7367 The act authorizes the Secretary of the Navy to provide salvage facilities by contract or otherwise, to transfer or charter salvage vessels and equipment for operation by private salvage companies, to advance funds to private salvage companies, to finance salvage operations, and to collect fees for salvage services. Having given the Secretary of the Navy authority to act in the salvage field, it may be inferred that Congress expected him to use that authority. It has been so used over the years in support of commercial salvage activities. However, it may not be inferred that the Salvage Act requires the Secretary of the Navy to act. Nor does it require the maintenance of a certain level of salvage capability or type of posture. The statutory authority does not obligate the Navy to maintain salvage facilities in excess of its own needs or to render assistance on all occasions. Such a position may be necessary to avoid open-ended liability and exposure to claims from shipowners who were not salved. (See 32 CFR 754.2 (g).) The Act was passed shortly after World War II. The Navy Department was designated as the logical salvage agency for the following reasons: • The Navy already had a (military) salvage organization and therefore understood all phases of the problem. • It was deemed necessary to continue Navy interest in salvage in times of peace so that sufficient personnel and equipment would be available in the event of war. • The Navy had sufficient public salvage vessels to cover waters where private salvage enterprises were not prone to operate. • The Navy was the primary source of mariners and engineers trained in salvage operations.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT Saving Life and Property Act of 4 August 1949 14 USC 88 Complete revision of Coast Guard authorities. Authorizes the Coast Guard, in the broadest possible terms without limitation as to method or place, to save lives and property. The language, ''to perform any and all acts necessary to rescue and aid persons and protect and save property'' is broad enough to encompass salvage questions. However, the Coast Guard has consistently maintained that it is not in the salvage business. The Coast Guard does not have any substantial salvage capability in the sense of conducting a major offshore salvage operation. The Coast Guard's emergency response capability is largely in the area of search and rescue (saving of life) and marine environmental protection (oil spill response). Related to these are their major activities in safety of navigation, and responsibilities under the National Contingency Plan for overseeing marine emergency response. Clean Water Act (33 USC 1251 et seq.), including Sec 1321 "Oil and Hazardous Substance Liability" Establishes U.S. policy that there shall be no discharges of oil or hazardous substances in waters under U.S. jurisdiction (including the Fisheries Conservation Zone (200 miles)), and authorizes executive actions to that end. Authority extends throughout 200-mile zone. Provides basic operating authority for Coast Guard's marine environmental protection activities and for the National Contingency Plan President authorized to direct all public and private efforts to prevent marine pollution whenever a marine disaster has created a substantial threat of a pollution hazard. Efforts may include removal or destruction of the vessel posing the threat. President authorized to clean up spills, unless, pursuant to the National Contingency Plan, the owner or operator is taking proper action. The difference between the two authorities noted above is that the President does not have to take account of the owner or operator's actions if there has been a maritime disaster. Intervention on the High Seas Act 5 February 1974 33 USC 1471-1487 Incorporates into U.S. law the international convention relating to intervention on the high seas in case of oil pollution casualties. Authorizes the Coast Guard to take whatever measures are necessary to prevent or eliminate danger to the coastline of the United States from pollution from a marine casualty on the high seas. Range of possible actions includes removal or destruction of the ship or cargo that is the source of the danger.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT 33 USC 409, 414, 415, Wreck Statute These three statutes provide the U.S. Army Corps of Engineers with authority to remove wrecks from the navigable waters of the United States. • 33 USC 409 makes it unlawful to obstruct navigable channels. It sets forth the duty of the owner of a sunken craft to mark and remove it. Failure to do so is considered an abandonment of such craft, subjecting it to removal by the United States. • 33 USC 414 provides for removal by the Secretary of the Army of sunken wreck obstructing navigation. It contains provisions for notice to the owner and authorizes the Secretary of the Army to contract for removal. • 33 USC 415 provides for summary removal in emergency cases. When an obstructing vessel or craft seriously interferes with or especially endangers navigation, the Secretary of the Army may take immediate possession of such craft and remove or destroy it and clear the waters of the obstruction. The Corps of Engineers, U.S. Army, has been successfully operating under the Wreck Statute for more than 80 years in clearing the navigable waters of the United States of obstructions caused by sunken vessels. Removal of wrecks by the Corps of Engineers is generally confined to those considered obstructive to general navigation The Corps of Engineers has its own contracting authority and some in-house capability for wreck removal. In time-critical situations, the Corps may request Navy assistance and/or obtain assistance under an existing Navy salvage contract. P.L. 96-387 (94 Stat. 1545) National Defense Features Authorizes the Secretary of Commerce to equip certain U.S. vessels with national defense features.1 A possible federal assistance mechanism for improving the salvageability of U.S. ships. Merchant Marine Act of 1936 46 USC 1192 (Construction, Reconstruction, Remodeling) Authorizes the Maritime Administration to construct, recondition, or remodel vessels in private or public shipyards. A possible mechanism for strengthening the U.S. salvage fleet 46 USC 1273 (Obligations, Guaranteed Payment) Authorizes the Secretary of Commerce to guarantee private financing of vessels.1 A possible mechanism for strengthening the U.S. salvage fleet "Cabotage Law" (Act of 11 June 1940) 46 USC 316 Restricts the activities of foreign tugs and salvage vessels in U.S. navigable waters. Approval of a high customs official is required in order for foreign salvage vessels to work in coastal waters of the United States. The effect of the law is to make it very difficult to utilize foreign salvage vessels on a timely basis, even though such assistance may be the only kind available in an emergency. Coverage may not apply to Alaska or Hawaii. 46 USC 725 Canadian Vessels Aiding Vessels Wrecked or Disabled in U.S. Waters Authorizes Canadian vessels to render aid or assistance to Canadian or other vessels wrecked or disabled in the waters of the United States contiguous to Canada, and vice versa. This statute, together With a 1908 treaty, allows Canadian salvors to operate in waters of the United States contiguous to Canada, in return for reciprocal privileges for United States salvors. The Cabotage Law exempts salvage operations authorized by treaty or by 46 USC 725. Salvage Act of 1912 46 USC 727-731 To harmonize U.S. law with the Salvage Convention of 1910 (Brussels Convention). The convention establishes arrangements governing the conduct of salvage operations and the obtaining of compensation for them. See the Salvage Convention of 1989.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT Suits in Admiralty Act 46 USC 741-752 The intent of the act is to subject the United States to the same liabilities, apart from seizure, as are imposed by law on the private shipowner. Sec. 10 of the act authorizes the United States and the crew of any merchant vessel owned or operated by the United States to sue for compensation for salvage services rendered by such vessel and crew. This act, together with Public Vessels Act, constitutes a broad, consistent, and complete waiver of the government's sovereign immunity, with the exception that public vessels cannot be seized or attacked through court action. This exemption from seizure is relevant to salvage because salvage awards are determined after the fact. However, it can be argued that it is unnecessary to seize a U.S. vessel in order to achieve payment on a salvage award. Public Vessels Act 46 USC 781-790 Grants a right of action for damages caused by government vessels of the United States. Affords claimants a legal remedy for damages by public vessels including salvage claims against public vessels. The Public Vessels Act deals only with suits against the United States, including actions for compensation for towing and salvage services rendered to public vessels. This act has nothing to do with affirmative Navy claims for salvage services rendered by the Navy, which are the usual situations where Navy salvage forces are involved. In a recent court case (Julius A. Furer litigation), it was held that suits against the United States must conform strictly to this statute. It follows that a commanding officer lacks the authority to sign a Lloyd's open form salvage agreement, which would commit the United States to arbitration in London and give the salvor a maritime lien. Act of 3 July 1944, amended by Act of 10 August 1956 10 USC 7721-7730 10 USC 7622 Provides the Navy with authority to stay judicial proceedings under the Public Vessels Act in time of war. Also provides the Navy with authority to settle claims for damages caused by Naval vessels without litigation. These include claims for compensation for towage and salvage service, including contract salvage, rendered to a vessel in the naval service or to other property under the jurisdiction of the Navy. Enables claimants against the Navy to settle admiralty claims without having to resort to litigation. However, should satisfactory settlement prove to be impossible, the necessary authority to sue is provided by the Public Vessels Act. 33 USC 1221-1227 Ports and Waterways Safety Act of 1972 Authorizes the U.S. Coast Guard to establish Vessel Traffic Services and Systems for ports, harbors, and other congested waters. The Coast Guard may require that vessels use or otherwise comply with established port and waterway safety procedures. Special procedures, such as restricting vessel operations, may be applied in particular circumstances, such as in the movement of hazardous cargoes or in adverse environmental conditions.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT P.L. 96-510 Comprehensive Environmental Response, Compensation, and Liability Act of 1980 Provides for response to hazardous substances emergencies. Establishes a tax on hazardous substances and a Hazardous Response Trust Fund. Provides that the National Contingency Plan authorized under Sec. 311(c)(2) of the Federal Water Pollution Control Act of 1972 shall include a National Hazardous Substances Response Plan Requires that the National Response Center be notified of all unauthorized releases of hazardous substances. Authorizes the President to act, consistent with the National Contingency Plan, to respond to hazardous substances emergencies unless the President determines that a responsible party is responding satisfactorily. Authorizes the President to initiate abatement actions in response to the threat of a hazardous substance emergency; assigns liabilities and establishes rules of financial responsibility. Recaptures: Award of Salvage Costs, and Expenses 10 USC 7672 Applies in the event that the Navy recaptures, before condemnation as a prize, a vessel that has been seized by the enemy. States the duty of the Court, the disposition to be made of the recaptured property, and provides that the amounts awarded as salvage shall be paid to the United States. When a vessel is captured by the enemy in time of war, the question of her seizure and subsequent condemnation or release is for the courts of the captor. The purpose of bringing in a captured ship or cargo for adjudication is to have a sentence of condemnation pronounced by a proper tribunal, a Prize Court, declaring the capture to have been made properly. Such a decree is necessary to vest the property in the captor. The proceedings are in rein and they transfer a title to the property that should be universally recognized, if the Prize Court has jurisdiction. However, if the ship is recaptured before condemnation as prize, she has no such status. The situation then is of a captured ship that has been recaptured, with no change in her original status. Recapture of a vessel or property from an enemy, pirate, or privateer has long been recognized as a salvage service and the subject of a salvage award. Since possession of the owner was displaced by the capture, restoration of the property to him or her is a beneficial service, resulting in a salvage award. Seamen's Suits 28 USC 1916 Relieves seamen from prepayment of court fees, costs, or security in suits that they bring concerning wages or salvage or the enforcement of health and safety laws enacted for their benefit. This statute looks back to former times when seamen were believed to be impecunious, improvident, and imposed upon by their employers. As such, they were considered wards of the admiralty.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT Tariff Act of 1930 Provisions Regarding Cargo of Wrecked Vessels 19 USC 1483 19 USC 1310 19 USC 1310 allows free importation of merchandise recovered from sunken and abandoned vessels. 19 USC 1483 allows the wrecked merchandise to be entered and cleared through customs, leaving the rights of ownership and other claims to be determined by court order or other proceedings. The procedures for entering and clearing cargo from a wrecked vessel are as follows: • The vessel must have been sunk in U.S. waters for two years or more. • The vessel must have been abandoned by the owner. • The salvor must raise such vessel (or, presumably, retrieve the cargo). • The salvor must enter the merchandise in the applicable customs district The salvor of the cargo is regarded as the consignee for customs purposes Wrecked Vessels Act of 24 February 1915 46 USC 14 Authorizes the U.S. registration of foreignbuilt vessels that have been wrecked in U.S. waters; purchased by U.S. citizens (such as U.S salvors); and repaired in U.S. shipyards (at the expense of U.S. owners), so long as the value of repairs equals three times the appraised salved value of the vessel. It is not believed that vessels qualifying for documentation under these provisions represent a significant addition to the U.S. Merchant Marine. Agreement as to Loss of Lien or Right to Wages 46 USC 600 Protects the seamen's lien for wages. Provides that any stipulation by which a master or seaman consents to abandon his or her right to wages, or to abandon any right to salvage, is wholly inoperative. Crew members of ships regularly engaged in salvage are not entitled to salvage awards. This is because the crew members perform work that they may have been hired to do. As such, they are not volunteers, and voluntarism has traditionally been an essential element for a salvor to qualify for a salvage award. Since this element of voluntarism is absent in the case of professional salvage crews, they do not have any rights in the nature of salvage, and thus are not within the purview of the statute. Attachment or Arrestment of Wages 46 USC 601 Protect seamen's wages and salvage awards from seizure. This statute protects the sailor against signing away his or her potential future salvage rights. Plunder of Distressed Vessel 18 USC 1658 Prohibits and punishes plundering a distressed or wrecked vessel within the jurisdiction of the United States; obstructing the escape of any person trying to save his or her life from such a vessel; or rigging false lights or extinguishing true lights with intent to bring a vessel into danger. This is the only section of the U.S. Criminal Code directly related to salvage. It is in the chapter dealing with piracy and privateering. 46 USC 721 Vessels Stranded on Foreign Coasts Provides that the U.S. government, through its consuls, will assist U.S. vessels that are in extremis on foreign shores for the purpose of saving the vessel, its cargo, and other effects and delivering them to the owners. When the master, owner, or consignee is present or otherwise capable of taking possession, the consul shall not exercise such authority. The settlement of salvage liens takes precedence over such consular actions.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT 46 USC 722-724 Wrecks on the Coast of Florida Regulates the disposition of salved property on the coast of Florida by licensing vessels and masters regularly employed in wrecking. These statutes hark back to the days when there was considerable salvage and wrecking activity on the Florida Keys and coasts. These sections were lucrative business for American salvors. The U.S. cabotage laws, especially 46 USC 316(d), treat similar matters in a more broadly applicable way. Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 484 (1990)) To amend the Clean Water Act to provide increased and additional liability for oil pollution of the marine environment. (Only provisions of most interest in the context of salvage will be commented on here.) Unlike the Clean Water Act, the President is charged with ensuring effective and immediate response to a threatened or actual spill. The effect of this amendment is to make all spills "federal" without regard to the actions being taken by the owner or operator of the vessel. Thus a federal on-scene coordinator will coordinate spill (or threatened spill) response from the outset. Contains an exemption from liability for actions taken or omitted in the course of rendering care, assistance, or advice consistent with the National Contingency Plan. Provides for a substantial increase in civil penalties and criminal sanctions. Expressly does not preempt states from imposing additional liability or requirements. Provides that limitation of liability under the Limitation of Liability Act, 46 USC App. sec. 183-196 does not affect liability, fines or penalties imposed by OPA 90. This has been interpreted to mean that Limitation Act protections and procedures are not available in spills to which OPA 90 applies. The salvor may be strictly liable as a responsible party in the first instance (e.g., if he is held to be the legal "operator" of the casualty or if he spills oil from a lighter that he owns or operates in the course of a response) or as a "third party" responsible party under the OPA 90 defenses to liability. Act to Prevent Pollution from Ships, 33 USC secs 1901-1911 (implementing the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL 73/78) To implement an international convention prohibiting marine pollution from oceangoing vessels. Permits jettison of oil or oily mixture necessary to save a ship or life at sea. This provision was limited under the pre-OPA 90 Clean Water Act (Federal Water Pollution Control Act) to the Exclusive Economic Zone (EEZ). OPA 90 amendments to the Clean Water Act further limit its utility by making discharges in the EEZ subject to cleanup costs and damages (but not fines and penalties). Thus jettison remains a limited option under MARPOL 73/78. International Convention on Salvage (1989) Done at London, April 28, 1989 To modernize the international law of salvage, particularly to provide specifically for compensation for salvors' efforts to prevent or mitigate damage to the environment The treaty has been ratified by the United States, but as of 16 December 1993 had not come into force, lacking the requisite 15 accessions or ratifications. The treaty will be self-executing when it enters into force.
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A Reassessment of the Marine Salvage Posture of the United States AUTHORITY PURPOSE COMMENT International Convention on Salvage (continued) To date the only enabling legislation is 105 Stat. 2225, sec. 40 (codified at 46 USC sec. 729, and 46 USC sec. 731.) 46 USC App. sec 729 enacts the provisions of Article 16 (2) of the Convention pertaining to compensation for life salvage. 46 USC sec. 731 makes prior provisions regarding the right to compensation for salvage when vessels are owned in common (46 USC sec. 727); life salvage (46 USC App. sec. 729); limitation of actions (46 USC App. sec. 730); and duty to render assistance (46 USC sec. 2304) inapplicable to warships and "government ships appropriated exclusively to a public service." The special compensation provided in Article 14 of the convention and the criterion of "the skill and efforts of the salvors in preventing or minimizing damage to the environment" in fixing a salvage reward set forth in Article 13 (1) (b) of the convention had not been incorporated into U.S. statutory law as of 16 December 1993. 1. Authority transferred to Secretary of Transportation in 1982.
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