Читать книгу Estudios de derecho marítimo. Libro en homenaje a la memoria de José Luis Goñi Etchevers - José Carlos Fernández Rozas - Страница 38

The provisions on salvage are listed in Title IV of Book III, Head I of the Code of Navigation, which deals with assistance and salvage (art. 489-500) whilst Head II is on wreck removal (art. 501-509) and Head III on the finding of wrecks at sea (art. 510-513).

A review is now made on what survives of salvage provisions in the Italian Code of Navigation after the entry into force of the 1989 Salvage Convention.

As previously mentioned, Italy did not make any reservation and Law n. 129/1995 authorizing ratification does not dictate anything with regard to implementation. The 1989 Salvage Convention has therefore become part of Italian law in its original text, as well as in all its official languages (per art. 34: Arabic, Chinese, English, French, Russian and Spanish), with automatic extinction of the provisions of the Code of Navigation which are in conflict with the 1989 Salvage Convention or are dealt with therein.¹¹

The provisions on salvage in the Code of Navigation (c.n.) continue however to apply to platforms and to drilling units as defined in art. 3 of the 1989 Salvage Convention and to which the Convention does not apply. The same is for state owned vessels as defined in art. 4 of the 1989 Salvage Convention and in relation to which the Italian State may invoke immunity under the Brussels Convention of 10 April 1926 on immunity of State-owned vessels, which is in force in Italy from 27 July 1937.

Articles 489 and 490 c.n. state that assistance and salvage is performed to vessels at sea or in inland waters.

The 1989 Salvage Convention, in its art.1, extends salvage operations to vessels or any other property in navigable waters or in any other waters whatsoever. The place in which salvage operations may be performed is therefore not restricted, being any waters whatsoever, no matter about their navigability or kind or dimension.

As to salvage operations controlled by Public Authorities, art. 5 of the 1989 Salvage Convention refers to national law or other international conventions, with salvors entitled to avail themselves of the provisions in the Convention.

The Italian provisions regarding the intervention of Public Authorities in salvage operations are contained in articles 69 and 70 c.n. The first article states that, upon notice of a vessel in danger or of a shipwreck or other maritime accident, the Maritime Authority is to immediately perform salvage operations.

The subsequent article provides that vessels which are in the port or nearby, may be ordered to be made available to the Maritime Authority and that the reward is determined in compliance with the rules on salvage.

This means that the order of the Maritime Authority requesting to perform salvage services does not imply that there is entitlement to a reward.

The conditions for a reward and the criteria for its calculation, as set out in articles 12 and 13 of the 1989 Salvage Convention, prevail over those set out in art. 491 c.n.

This article states that, unless there has been an express and reasonable prohibition of the master of the vessel to perform salvage services, (such words are repeated in art. 19 of the 1989 Salvage Convention) there is an entitlement, within the limits of the salved values, to damages suffered, to costs incurred and, if the salvage operations had a result even partially successful, to a reward.

In Italian domestic legislation damages and costs are therefore to be settled independently from the success of the services.

Art. 491 c.n. then states that the reward is to be fixed having regard to the measure of success, to the risks run by the salving vessel, the efforts and time used to the general costs of salvors if their vessel is equipped for the specific purpose of carrying out salvage operations, and to the danger run by the salved assets and their value.

Although this is not said, the order in which the criteria are listed is irrelevant for their importance.

That is not the case with the 1910 Convention, whose art. 8 firstly lists a number of criteria (considerations) for fixing the reward, and secondly the value of the property salved.

However, this latter element continues to be relevant, as either pursuant to the 1910 Convention, the Code of Navigation and the 1989 Convention the reward cannot exceed the salved value.

In the 1989 Convention it is expressly stated that the order in which the criteria are listed in art. 13 is irrelevant.

With regard to the apportionment of the reward between the owner and the crew members on each salving vessel which, according to art. 15.2 of the Convention, is to be determined by the law of the flag of the salving vessel, art. 496 c.n. states that if a vessel is not equipped for the specific purpose of carrying out salvage operations, the reward is apportioned 1/3 to her owners and 2/3 to her crew members, between whom the reward is allocated having regard to the amount of their wages and to the nature of the services rendered by each of them. Art. 496 c.n. then provides that the reward due to crew members cannot be set in an amount lower than half of the entire reward.

Notably, art. 494 c.n. provides that a reward fixed by agreement or arbitration is not binding on the crew members of the salving vessel who have not accepted it, unless it was approved by the competent unions.

This is the reason why in settlement agreements it should be stated that salvors keep the salved interests paying the settlement monies harmless and indemnified in respect of possible claims of crew members.

If salvage operations are performed by professional salvors, the crew members of their vessel, which is equipped for the specific purpose of performing salvage operations, are not entitled to salvage remuneration.

This is not the case with harbor tugs, although equipped with firefighting and anti-pollution equipment, which may be asked to perform salvage services by the Maritime Authority or when rendering services exceeding those under the towage contract, this latter being a situation contemplated by art. 17 of the 1989 Salvage Convention and also by art.106 c.n.¹²

In fact, the contract of employment of crew members on board harbor tugs is different from that of professional salvors, which is relevant to establish whether crew members of a salving tug are entitled to remuneration¹³.

Such a situation is clearly described in art. 4 of the 1910 Salvage Convention¹⁴.

With regard to salvage of persons, art. 16 (1) of the 1989 Salvage Convention refers to the provisions of national law.

Art. 493 c.n. states that salvage of persons which had a useful result gives right to a reward when its amount is covered by insurance or when it is performed whilst rendering salvage services to vessels or property.

The reward is fixed on the basis of the criteria set out in art. 491 c.n., listed in paragraph 4 above.

Reference to insurance coverage is likely to relate either to crew insurance and to passengers insurance.

It is uncertain whether a direct action may be taken against the insurer¹⁵, which is however contemplated by the 1974 Athens Convention relating to the carriage of passengers and their luggage, as amended (art. 4 bis) by the 2002 Protocol¹⁶.

As to the payment of the reward, art. 13.2 of the 1989 Salvage Convention clearly states that it is to be made by the interested parties in proportion to their salved values.

The fact that there is no joint liability is confirmed by art. 21 of the 1989 Salvage Convention on the duty to provide security, which is placed also on the owners of the cargo.

However, art. 13.2 of the 1989 Salvage Convention allows State parties to rule on this issue in their national law.

There is no express provision in the Code of Navigation on the duty to provide security and on the party who is to pay the reward. However Italian Courts have been of the view that vessel’s interests and cargo interests are jointly liable regarding the duty to provide security and the party who is to pay the reward¹⁷, with the consequence that salvors may ask for the full payment to vessel’s interests, who then have a recourse action against cargo interests.

Notwithstanding the Court precedents holding for a joint liability, there is no joint liability whenever the 1989 Salvage Convention is applicable¹⁸.

The 1989 Salvage Convention does not contain provisions regarding an action by the crew members of the salving vessel to claim directly salvage remuneration. A provision in this respect exists in Italian law. Such right is granted by art.499 c.n. when the owner of the salving vessel is not entitled to claim, e.g. when he is also the owner of the salved vessel.

Such a possibility is referred to in art. 12 of the 1989 Salvage Convention, which however provides that “3. This chapter (Chapter III – Rights of Salvors) shall apply, notwithstanding that the salved vessel and the vessel undertaking the salvage belong to the same owner”.

It may be added that in Italian law crew members are not entitled to a reward if performing salvage operations in favor of their vessel. In fact such services are included in the obligations under the employment contract¹⁹.

A note on limitation of actions. Art. 23 of the Convention provides that actions relating to payment of the reward become time barred if judicial or arbitral proceedings are not instituted within two years, and further provides that such limitation period may be extended by those against which the claim is made.

The nature of this time bar is the same as that provided in art. 3.6 of the 1924 Brussels Convention on bills of lading, as amended by the 1968 Protocol – Hague Visby Rules²⁰.

Italian Courts have qualified such time bar as forfeiture (decadenza)21, which is capable of being extended by agreement of the parties²².

Art. 500 c.n. also provides for a limitation period of two years, running from the time of completion of the salvage services. This article is titled “Prescrizione” (prescription) and in Italian law such kind of time bar cannot be extended by agreement of the parties. However the same result may be achieved with a notice of default²³, such as a claim’s letter sent by registered post, which interrupts the running of the time without the need of instituting an action as in the case of forfeiture.

Art. 500 c.n. is now replaced by art. 23 of the 1989 Salvage Convention whenever the Convention applies and a claim’s letter is not sufficient anymore, it being necessary to file suit unless an extension is granted, which should be obtained either from vessels’ interests and property interests.