Maritime Arbitration
Salvage arbitration as a specialized type of maritime arbitration
By Lesther Antonio Ortega Lemus
Maritime Law and Arbitration
Arbitration is recognized as, in some cases, a better option than going to court. Some of the main reasons to affirm that are that arbitration provides a specifically tailored procedure that fits the necessities of certain industries, as well as with, if properly selected or appointed, specialized people that actually know the industry and how to handle its disputes, and will do so in a cost-effective and timely way.
All of the above becomes evident, as a challenge, when facing an industry like the maritime one, which is quite diverse, so intertwined with commerce involving 90% of it, as globalized as the latter, being variably profitable, but requiring speedily resolution of disputes due to the cash flow involved, the high rates involved in “stopping” operations, the high volumes involved, traditional but specialized at the same time.
Most of maritime law as such has come to exist from the crossover of various merchant marine traditions[1], especially Spanish and English. Nowadays, most of its institutions and core principles lay on English law perhaps because of the great influence the naval power of the British Empire during the XVIII, XIX and the first half of the XX centuries, being predominant in every sense and overtaking the whole of the industry and overthrowing other powers as the Dutch, Spanish and Portuguese in the process.
Creating such an outstanding tradition, the methods of dispute resolution under English law naturally evolved and advanced under the Admiralty Jurisdiction. The High Courts of England and Wales are known for their dexterity in maritime cases and the authority of its case law is without rivalry.
Nevertheless, as most of the other fields of commerce-related activities, the need of an actual separate, independent and industry-oriented service of dispute resolution, with greater control by the parties, tailor-suited for their interests and needs, neutral when the internationality of the contract so required (as it is in the majority of today’s cases), and sensitively faster than the three instances provided by the English Court System was felt. And so it is how maritime arbitration came into the picture.
But as stated above, maritime law relates to a vast source of contracts, activities and specialized sub-fields, and moreover, it crosses the line back and forth between the “private” law and “public” law, both domestically and internationally.
Maritime law related issues comprise (but not limited to) the below listed issues or areas:
Private
· Carriage of Goods by Sea (COGS)
o Charterparties
o Bills of Lading & other documents of carriage
· Carriage of Passengers and their Luggage (PAL)
· Services contracts: towage / supply / maintenance-repair / port related services
· Salvage operations (property salvage, when not performed or supervised by public authority)
· Sale & Purchase of ships
· Finance & Construction of ships
· Maritime Insurance (Cargo insurance, Hull & Machinery, P&I…)
· Maritime Labour Law (as contracting)
Public
· Marine environmental damage prevention and compensation
· Technical regulations of navigation (including collisions)
· Technical regulations of ship building & equipment
· Maritime Safety
· Maritime Security, Protection & Anti/Counterterrorism
· Wreck removal
· Maritime Labor Law (as regulatory conventional or statutory law)
In addition to the broadly-made division shown above, there are certain “hybrid” or mixed areas where there can be no distinction or preponderance of public or private as the nature of the law. There is where limitation of liability and some other subjects stand.
The field to cover is vast and implies in most cases the possibility of dispute resolution outside the court systems of any country, due firstly to the nature of the industries and secondly to the international range that it covers.
The latter is especially true if the reader can imagine the following example: a demise-chartered container carrier (or box carrier) with capacity of +10,000 TEU[2] with consolidated merchandise in every one of those containers, each one of them consigned to a different stake-holder, in a ship-lane that goes from Nhava Sheva, India, to Long Beach, California, with port calls all the way through the coastline of Southeast Asia, being the vessel insured in hull, machinery, liability, wreck removal and the cargo interests, all in different jurisdictions, classed by a European Classification Society but flagged in a Caribbean country with no connection to the real interest holders, with a crew and officers from 20 different nationalities and bearing the interests of as much as 50 different shareholders all from different nationalities. In such a trip, the vessel will cross over at least 15 different jurisdictions (including areas of high seas where jurisdiction of coastal states is inexistent and where it is the flag state jurisdiction that governs), with individual regulations and adherence to a wide but diverse range of international conventions and regional arrangements, and could face, in case of a casualty where both the ship and its cargo were to be lost at sea, potentially, thousands of claims and liability issues.
Where to sue? Who to sue? Which rules to apply? Mandatory or contractual? How many contracts are there involved? Which type of contractual relations are involved? Insurance, liability limitation, freight money, transport obligations, pure economic losses, environmental liability and pollution, human casualties and injuries, danger to further navigation, will all be in connection with a casualty like the described and pose a real challenge to legal minds in resolving them. All of the above are comprised in maritime law and its specific or relevant dispute settlement mechanisms.
One of the areas that accrue a special substantive tradition is maritime salvage. Its distinctive elements, especially danger, make of it a very peculiar activity which comprises, in a very large majority, a particular form of arbitration that rests upon a form agreement with an inserted arbitration agreement, a set of clauses and procedural rules incorporated to the contract, governed all of the above by English law and with a seat in London, controlled by a highly respected industry-market-institution.
Maritime Salvage
What is salvage
Salvage has been described as a service, as an act or activity:
· [W]hen a person, acting as a volunteer (that is without any pre-existing contractual or other legal duty so to act) preserves or contributes to preserving at sea any vessel, cargo, freight or other recognized subject of salvage from danger… the salvor, upon the property being salved and brought to a place of safety, is entitled to recover salvage remuneration not exceeding the value of the property salved assessed as at the date and place of the termination of the salvage services. In absence of success or a contribution to ultimate success, the person rendering the services, however great his exertions, is entitled to no reward; this is the principle of “no cure-no pay”[3]
· [A] service which confers a benefit by saving or helping to save a recognized subject of salvage when in danger from which it cannot be extricated unaided, if and so far as the rendering of such service is voluntarily in the sense of being attributable neither to a pre-existing obligation nor solely for the interests of the salvor.[4]
· Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.[5]
As seen above salvage encompasses the preservation or aid to preserve, in navigable waters (usually), property (in any form unless if excluded by law) in danger (included reasonably apprehended) when not acting out of a pre-contracted obligation or public duty. As a consequence of the success (partial or complete) and the benefit that the owners of the property obtain from the success of the efforts of the salvor, a right to a reward originates, and it is guaranteed by a lien that attaches to the salved property itself and that can be enforced in rem, in personam or in rem against a “sister ship”[6]. That reward (excluding costs and interests) should not surpass the value of the salved property so assessed at the time and place that the salvage is concluded.
A helpful example might be to think of, again, a commercial vessel which finds itself in distress due to mechanical failure of its engine and it is not only impeded to continue its journey but finds itself drifting helplessly towards known dangers to navigation as rocks or sandbanks. If another ship decides to render assistance to that ship, it will be performing a salvage operation that gives rise to a right to claim a reward.
Salvors
Salvage can be both rendered by normal commercial or private ships engaged or not in trade, or by professional salvors which, for the purposes of performance, have specialized tugboats and other ships, capable crews and equipment. It can also be performed by public authority[7] (navy vessels, coastguards, etc) but in such cases the right to a reward does not arise automatically and depends on statutory regulations[8].
Salvage Regulations
Before being regulated by international conventional law, salvage rested in the general principles of maritime law. But in the late XIX century a standardized contract appeared and after ten revisions and more of a century of existence it subsists under the name of Lloyd’s Standard Form of Salvage Agreement No Cure – No Pay[9] or its short name LOF 2000. This contractual form is used in the vast majority of salvage cases and leaves to an arbitral decision the fixing of the salvage reward.
Nevertheless, by 1910, following the works of the Comité Maritime International[10] and under the auspices of the Belgian Government, the first convention on salvage was concluded[11]: the Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea[12]. This convention worked for almost the rest of the century until 1989 when a diplomatic conference held in London under the auspices of the International Maritime Organization[13], concluded the current International Convention on Salvage, which entered into force on July 14th 1996. This convention’s application, regulated in its Article 2, takes place “whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party”.
Salvage Elements
Salvage operations, to be construed as such, should comply with the following four elements:
1. Voluntariness
2. Danger
3. Salvage services
4. Success and benefit[14]
All of the above should be present in a salvage claim. Certain confusions could arise from the element of voluntariness, which requires that salvage is engaged without any prior contractual obligation or public duty. The fact that professional salvors engage in salvage operation does not mean they are not volunteers for the mere fact that they are on standby and it is monetary gain that fuels their will. It is not impaired either in the case where a Lloyd’s Form is utilized as a contract, since the contract will not be predate the danger present when salvage is needed.
Success and benefit are contained in the maxim of salvage: no cure-no pay. This formula ensures that the salvor shall engage its best efforts in actually succeeding in salving the property at sea and that its efforts concurrently provide a benefit for the owner or owners of the property salved. The element of success might not be completely necessary in all types of remuneration due to salvors. That is the case of preventing or minimizing damage to the environment, whereby a special compensation is given as reward to the salvor[15].
Salvage Reward
Salvage gives the right for a reward. Such reward, as stated above, depends in its existence to the requirement of success and benefit. Once a partial or complete success and benefit has been verified, the reward will be based on the value of the property salved as valuated at the end of the salvage operations. Such value shall be the basis for the calculation of the respective reward. The amount as such shall be fixed with a view to encourage salvage operations in accordance to the criteria enumerated in Article 13 of the International Convention on Salvage 1989, being those:
a) the salved value of the vessel and other property;
b) the skill and efforts of the salvors in preventing or minimizing damage to the environment;
c) the measure of success obtained by the salvor;
d) the nature and degree of the danger;
e) the skill and efforts of the salvors in salving the vessel, other property and life;
f) the time used and expenses and losses incurred by the salvors;
g) the risk of liability and other risks run by the salvors or their equipment;
h) the promptness of the services rendered;
i) the availability and use of vessels or other equipment intended for salvage operations;
j) the state of readiness and efficiency of the salvor's equipment and the value thereof.
The Lloyd’s Standard Form of Salvage Agreement: No Cure – No Pay & Incorporated Clauses and Rules
The Lloyd’s Standard Form of Salvage Agreement, as stated before, is the main form utilized by the salvage industry around the globe when agreeing with a party to enter into salvage operations; hence that this paper focus on it and its subsequent arbitral procedure.
The form was standardized in the 1890’s and since then 10 revisions have been done on it to bring it to its current state.
The latest form, the LOF 2000 is a very much simplified version that follows closely the “boxed” format of many other commercial forms widely used in the maritime industry. The nine boxes are followed by 12 clauses and incorporate by way of Clause I the Lloyd’s Standard Salvage and Arbitration Clauses[16] (LSSA clauses) and the Lloyd’s Procedural Rules[17], which are deemed to form integral part of the agreement.
The form, by virtue of clause I, leaves remuneration owed to the salvor to be determined by arbitration in London, under the LOF 2000, the LSSA clauses and the Lloyd’s Procedural Rules. The same clause states that any other difference arising out of this agreement or the operations hereunder shall be referred to arbitration in the same way, clearing that it is not only the calculation of the reward that is subject to arbitration.
Clause J determines that both the whole agreement and the subsequent arbitration are governed by English Law. In practice, and by reference of Procedural Rule 1, the law related to arbitration is the English Arbitration Act 1996[18], whereas in case of the specific substantive law it refers to the Merchant Shipping Act 1995, Part IX, Chapter 1 [sections 224-230 of the aforesaid Act][19].
By means of clause K, the Master of the assisted ship has the authority to enter into the agreement of salvage (including the arbitration agreement) on behalf of all the interests subject to salvage (vessel and cargo).
Due to the commercial usage of the form by non-lawyers, the LSSA clauses insert by means of clause 2 five overriding purposes of the LOF 2000, being purpose (e) salient to the objective of this paper: “to ensure that it leads to a fair and efficient disposal of disputes between the parties whether amicably, by mediation or by arbitration within a reasonable time and at a reasonable cost”.
Arbitration: the 1989 Convention & LOF 2000
Arbitration is mentioned as one of the possible grounds that trigger the applicability of the Salvage Convention 1989. The LOF 2000, as above stated, refers not only the fixing of the salvage reward to arbitration, but [a]ny other difference arising out of this agreement or the operations hereunder…
Such arbitral procedure is an “institutional” one, due to the fact that Lloyd’s[20] Agency (which provides support to the maritime insurance branch of Lloyds) has a Salvage Arbitration Branch[21], responsible of the LOF administration, management of the cases and support to the appointed arbitrations (who are appointed by the Council of Lloyd’s). It provides for the possibility of appeal and cross-appeal when any of the parties are not satisfied with the award. Concentrating more than 80% of the salvage cases, LOF’s arbitration procedure virtually turns into the default dispute settlement mechanism in salvage.
Governing Law and Seat of the Arbitration
As indicated before, arbitration as per Clause J of the LSSA clauses, is governed by English law, which in terms of arbitration points to the English Arbitration Act of 1996, in all other matters not regulated by the LSSA clauses and Lloyd’s Procedural Rules, as well as in any of its mandatory provisions, indicated in Schedule I of the Act. With regards to substantive law, it has been mentioned above, it is the Merchant Shipping Act 1995 that applies, including the enactment of the 1989 Salvage Convention which is Schedule 11[22] of the former.
Although Clause I of the form points out that the arbitration procedure shall take place in London, Clause 6.2 gives the same indication but with the possibility to conduct it elsewhere when all the represented parties agree to some other place (either to conduct the whole procedure or just partially) and that the Council approves the aforesaid agreement in terms of imposing expenses for the travel costs and accommodation for the arbitrator.
However, the above made statement must be interpreted as merely the place where hearings or other stages might take place, but not as the juridical seat of the arbitration which in those circumstances still would be England. This affirmation is reinforced by the fact that the parties have no freedom of choice on the applicable law to the agreement and to the arbitration procedure, which mandatorily is English law.
Arbitration Agreement, Instituting Proceedings & Appointment of the Arbitrator
Once the LOF has been agreed as the contractual basis for salvage operations, by the Master’s authority both the vessel interests and the cargo interests are bound to arbitration. This is confirmed by Article 6 of the Salvage Convention 1989 whereby the Master is vested with the authority to conclude contracts for salvage operations (as the LOF) on behalf of the owner of the vessel and the owners of the property on board.
An interesting fact is that in many cases the LOF is agreed upon by both parties through radio communications and only after the services had started or even wholly performed the form was signed or sometimes not even then. Understandably, in circumstances of peril at sea, when services have to be prompted with regards to specific conditions of each case, this issue should not deter the enforceability of the agreement, especially with regards to the fixing of the reward by an arbitrator[23]. Nevertheless, Section 5(2) of the Arbitration Act indicates that agreement in writing includes:
b) if the agreement is made by exchange of communications in writing, or
c) if the agreement is evidenced in writing.
Supplementary modes of evidencing such agreement could be used in case of radio communications, such as the log book of both ships, etc. However, Lloyd’s Form is a document in writing and the arbitration agreement is contained in clause I of the LOF 2000. All that is required are signatures…[24] so one could assume that the reference to such document in the exchange of radio communications even if not signed thereafter will fall under Section 5(2) c) of the Arbitration Act 1996 and render a valid arbitration agreement in writing. Alternatively, Section 5(3) of the same Act provides that [w]henever the parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.
When the salvage operations have concluded (or even before) the salvors have the duty to communicate the conclusion of the LOF agreement and the amount of security they claim, to the Council of Lloyd’s and to the owners of the salved property when practicable. The reason to communicate the security claim to the Council of Lloyd’s derives from the fact that it is to the Council that security must be provided, in accordance to the text of clause 4.5 of the LSSA clauses. Another reason, although not stated anywhere, is that certainly, this notice will include the request to appoint an arbitrator, issue that is described next.
Upon the receipt of a written request, the Council of Lloyd’s will appoint a sole arbitrator regardless if security has been presented, provided that any of the parties to the arbitration undertake to pay the reasonable fees and expenses they are requested to. It can be stated that there’s no time limit for the appointment of the sole arbitrator because it is done automatically.
The fact that in the form there’s no reference to a sole arbitrator and that the rules provide for it is in consonance with Section 15 paragraphs (1) & (3) of the Arbitration Act 1996, which give the parties the freedom to decide on the number and mechanism to appoint arbitrators, as well as the subsidiary rule of a sole arbitrator when no choice has been made.
Powers of the Arbitrator
Regarding the powers of the arbitrator, the LSSA clauses by means of clause 6 include the following:
6.3 The arbitrator shall have power in his absolute discretion to include in the amount awarded to the contractors the whole or part of any expenses reasonably incurred by the contractors in:
I. ascertaining, demanding and obtaining the amount of security reasonably required in accordance with clause 4.5
II. enforcing and/or protecting by insurance or otherwise or taking reasonable steps to enforce and/or protect their lien.
6.4 The arbitrator shall have the power to make but shall not be bound to make a consent award between such parties as so consent with or without full arbitral reasons.
6.5 The Arbitrator shall have power to make a provisional or interim award or awards including payments on account on such terms as may be fair and just.
Additionally clause 8 of the LSSA clauses give substantive powers to the Arbitrator with respect to not award interests on the sum of the reward and to determine the rate if awarded (8.1), and to decide whether to use a simple or compound interest if those are awarded (8.2).
The Lloyd’s Procedural Rules, in rule 1 establish a list of powers of the Arbitrator, stating beforehand that those are additional to the powers that the English Arbitration Act 1996 confer (although some of the powers thereby given are a mere adaptation or rephrase of the Act’s):
a) to admit such oral or documentary evidence or information as he may think fit;
b) to conduct the arbitration in such manner in all respects as he may think fit subject to these Procedural Rules and any amendments thereto as may from time to time be approved by the Council of Lloyd’s (“the Council”);
c) to make such orders as to costs, fees and expenses including those of the Council charged under clauses 5.2 and 10.8 of the Lloyd’s Standard Salvage and Arbitration Clauses (“the LSSA clauses”) as may be fair and just;
d) to direct that the recoverable costs of the arbitration or of any part of the proceedings shall be limited to a specified amount;
e) to make any orders required to ensure that the arbitration is conducted in a fair and efficient manner consistent with the aim to minimise delay and expense and to arrange such meetings and determine all applications made by the parties as may be necessary for that purpose;
f) to conduct all such meetings by means of a conference telephone call if the parties agree;
g) on his own initiative or on the application of a party to correct any award (whether interim provisional or final) or to make an additional award in order to rectify any mistake error or omission provided that (i) any such correction is made within 28 days of the date of publication of the relevant award by the Council (ii) any additional award required is made within 56 days of the said date of publication or, in either case, such longer period as the Arbitrator may in his discretion allow.
Obviously all of the mandatory provisions of the Act with regards to the Arbitrator’s powers are incorporated. An example should be Section 30(1) of the Act, which relates to the Kompetenz-Kompetenz principle with regards to: a) whether there is a valid arbitration agreement, b) whether the [arbitrator] has been properly appointed and, c) what matters have been submitted to arbitration in accordance with the arbitration agreement. Section 30(2) makes it possible to appeal such decision, but due to the possibility of appeal under the Lloyd’s Procedural Rules, the appeal will be directed to its own appeal Arbitrator. Both the grounds for appeal as the procedural steps are regulated in the LSSA Clauses clause 10 and Procedural Rules’ rule 8.
The Arbitral Proceedings
As it was stated above, the beginning of the arbitral proceedings take place upon the request in writing by one of the parties to the Council of Lloyd’s to appoint a sole Arbitrator on the basis of a (presumably) valid LOF 2000 form.
The issue of security might come up before anything else in the subsequent procedural steps and for such reason they are regulated by the LSSA clauses’ clause 4, in particular the power of the Arbitrator to modify such security according to the needs of the case.
After its appointment, the Arbitrator should convene a preliminary meeting with the represented parties in order to determine the manner in which arbitration will be conducted, keeping in mind the LSSA clause 6.1 which states that [t]he arbitration shall be conducted in accordance with the Procedural Rules… The time limit for the Arbitrator is six weeks (Procedural Rule 2). Nevertheless, the parties, provided that they give the Arbitrator a “checklist” on the case and further comments on the matter, may ask for a consent order which would dispense the Arbitrator from the preliminary meeting (Procedural Rule 2 (c).
Regards has to be taken, when deciding on the manner to conduct arbitration, to: i) the interest of unrepresented parties, ii) whether a shortened or simplified procedure is appropriate, and iii) the overriding objectives of LSSA clause 2.
After the meeting (or if a consent order is issued) the Arbitrator should issue an order for directions which should include:
a) a date for disclosure of documents including witness statements;
b) a date for proof of values;
c) a date by which any party must identify any issue(s) in the case which are likely to necessitate the service of pleadings;
d) a date for a progress meeting or additional progress meetings unless all represented parties with reasonable notice agree that the same is unnecessary;
e) unless agreed by all represented parties to be premature, a date for the hearing and estimates for the time likely to be required by the Arbitrator to read evidence in advance and for the length of the hearing;
f) any other matters deemed by the Arbitrator or any party to be appropriate to be included in the initial order.
The Arbitrator has a duty to ensure in all cases that the parties are aware and well informed of the benefits of mediation.
Once the interlocutory phase is over, hearings will take place. According to an authority[25] on the matter there is no standard form but the majority of the cases follow this form:
a) the venue is usually the arbitrator’s private room at his chambers in the Temple or Gray’s Inn but in larger cases the parties may hire an arbitration room;
b) The parties are represented by solicitors and counsel;
c) Absent complex issues, written pleadings are dispensed with;
d) The evidence is in form of lettered and paginated bundles unless a particular case calls for oral evidence…
e) Usually the arbitrator will have read in advance of the hearing all the evidence in (d) above which the parties wish him to read in accordance with a reading list sent to him together with the documents referred to in (f) (i) to (iii) below;
f) At the start of the hearing counsel for the contractors will almost invariably produce in written form –
(i). His suggested answers to the standard nine questions in the arbitrator’s confidential report to Lloyd’s
(ii). A time table relating to the services;
(iii). A list of issues of fact (if any);
(iv). Details of rates of interest for the purposes of clause 9 of the LSSA Clauses, any currency correction for the purposes of clause 9, who is or is not liable to value added tax and any special order as to costs, etc;
(v). Details of notices of the date and place of the hearing to unrepresented parties against whom an award is sought
(vi). Any schedules of values, liability to VAT, etc which the arbitrator needs to append to his award
g) The submissions of counsel begin with the submissions for the contractors, then those of respondents followed by a reply on behalf of the contractors;
h) The respondents then inform the arbitrator whether sealed envelopes will be left with his clerk containing an open offer of settlement for him to open after he has come to a final decision as to the amount of salvage remuneration he is awarding: the contents of these envelopes should be agreed.[26]
Rules on how to fix the date for hearings are laid down in the Procedural Rules’ rule 7.
Award, Appeal & Enforcement
Once hearings have taken place it is to the Arbitrator to render a binding and final award, which is nevertheless subject to appeal according to the LSSA clause 10, which in any case are very much in line with the provisions of the Arbitration Act 1996 (Sections 67-71). There is no time frame to render the award but Lloyd’s has kept it within “reasonable limits” reason why so far no complains on delays have been heard. There’s no format for the award either, but a standard example is included at the end of this paper[27].
Enforcement is usually not a problem in salvage awards, due that in almost 100% of the cases: a) the owners of the salved property have provided for security (through their insurances mostly), b) if no security has been provided after 21 days of conclusion of the salvage services, property salved so may be arrested or detained by the salvors, and c) if no security has been provided the salvors still have a maritime lien on the salved property which can be enforced easily. In any event, enforcement will be possible through the ordinary means of enforcing international commercial arbitration awards.
Salvage arbitration places itself as a true example of the benefits of arbitration as an alternative to court proceedings. The particularities of the situation where salvage services arise, the peculiarity on how a salvage agreement (including the agreement to arbitrate and on what to arbitrate) is concluded and moreover, the public need to encourage the existence and prosperity of the salvage industry all make this area not only suitable but natural to settle its disputes by arbitration.
Although admittedly not the only way to contract salvage services, the Lloyd’s Standard Form of Salvage Agreement No Cure- No Pay or LOF 2000 attracts the vast majority of the salvage global cases. Its success can be attributed mainly to its capacity to adapt with time to the needs of both salvors and the maritime industry. Without doubt, arbitration conducted under the terms of the LOF is a key factor in that success as well.
The skills and knowledge of the Lloyd’s appointed sole Arbitrators are up to the test of the most complex cases in the industry (e.g. the Prestige), and backed up by the right to appeal the decision within the same system.
Both the LSSA Clauses and the Procedural Rules work over the English Arbitration Act 1996 and the International Salvage Convention of 1989 as enacted in the United Kingdom, rendering a comprehensive and all inclusive framework to the conduction of arbitral proceedings under English law.
Salvage will exist as long as the maritime industry needs it, as long as it continuously adapts itself to those needs. Therefore that both the commercial documents to agree on it (and to arbitrate) as well as the arbitral procedure itself can be expected to accommodate those needs when they arise, as both have done so far.
By Lesther Antonio Ortega Lemus
By Lesther Antonio Ortega Lemus
[1] It is recognized that a Lex Maritima exists since at least the XII century as part of Lex Mercatoria. See Carbonneau, Thomas Lex Mercatoria And Arbitration. Juris Publishing / Kluwer Law International 1998, p.43-51.
[2] Twenty foot equivalent unit, which is the standarized unit of measure of container sizes. Containers range from twenty foot in length up to forty five (a FEU or forty foot equivalent unit).
[3] Reeder, John. Brice on Maritime Law of Salvage. 4th Ed. p.1
[4] Rose, Francis. Kennedy & Rose on the Law of Salvage. 6th Ed. p.2
[5] International Convention on Salvage, International Maritime Organization. London 1989 at http://www.jus.uio.no/lm/imo.salvage.convention.1989/portrait.pdf
[6] Tan Twan Eng, Can Intellectual Property Rights Form A Part Of The Salvors’ Traditional Rights, And Can A Balance Be Achieved Between Them? The Position Of English, American And South African Salvors In Light Of The Recent Decisions Of The ‘R.M.S. Titanic’ Cases In The United States Of America. University of Cape Town. p. 14 at http://web.uct.ac.za/depts/shiplaw/theses/twan-eng.pdf
[7] Reeder. Op. Cit. p.65-66
[8] See Article 5 of the Salvage Convention 1989
[11] Kerr, Michael. The International Convention On Salvage 1989 – How It Came To Be. 39 I.C.L.Q. (1990) p.531
[14] Reeder. Op. Cit. p.2
[15] This issue may arise either under Article 14 of the Salvage Convention 1989 or by incorporation of the “SCOPIC” clause (special compensation protection and indemnity clause) to the LOF 2000.
[23] This issue is discussed further in Landau, Toby The Requirement of a Written Form for an Arbitration Agreement When "Written" Means "Oral", published in Van den Berg, Jan (ed) International Commercial Arbitration, Important Contemporary Questions ICCA Congress Series 2002 Kluwer Law International 2003, p.19-81
[24] Reeder. Op. Cit. p.599
[25] Reeder. Op. Cit. p.592-593
[26] Ibid.
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