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Law 14/2014 deals with salvage in Title VI on Maritime Accidents. Chapter III of the said Title contains twelve relating articles, from art. 357 to art. 368.

Similarly to other Chapters in Law 14/2014 on matters dealt with in international conventions to which Spain is a party,²⁴ the opening art. 357 states that salvage is governed by the 1989 Salvage Convention²⁵ and also by the Protocols which may amend the Convention and to which Spain is a party, and by the provisions of the Chapter on salvage. This addresses on the possibility that Law 14/2014 may contain provisions which are in addition or in amendment to those of the 1989 Salvage Convention.

As it is for Italy, the 1989 Salvage Convention applies in Spain like a lexi fori whenever judicial or arbitration proceedings are instituted in Spain, even if a party involved in the salvage operations does not belong to a State party to the 1989 Salvage Convention or if all the parties are Spanish nationals.

In fact, Spain did not reserve the right not to apply the 1989 Salvage Convention in these cases, which is a possibility contemplated in art. 30. 1.c of the Convention.

The entry into force of the 1989 Salvage Convention²⁶ in Spain had the effect of rendering automatically not applicable any conflicting provisions contained in Law 60/1962.

As outlined by Spanish commentators,²⁷ there are provisions on salvage in Law 14/2014 which are already contained in the 1989 Salvage Convention, whilst other provisions are not contemplated in the Convention, or are dealt with because the Convention refers to the law of the State party, or even modify the provisions in the Convention.

The twelve articles are reviewed herebelow and, whenever appropriate, their contents are compared with that in the 1989 Salvage Convention and in the Italian Code of Navigation.Art. 358. Its paragraph 1 offers a definition of vessel more complete (buque, embarcación o artefacto naval) that in art. 1.a of the 1989 Salvage Convention, which simply refers to “vessel”²⁸.

It may be questioned why the definition seems so detailed, given that the definition in art. 1.b of the 1989 Salvage Convention is: “Vessel means any ship or craft, or any structure capable of navigation”.

The answer is in Title II, Chapter I of Law 14/2014 containing the definitions of “buque” (art. 56), of “embarcación” (art. 57) and of “artefacto naval” (art. 58).

In short, “buque” is a vessel of, or over, 24 meters of length whilst “embarcación” is a vessel below 24 meters of length and “artefacto naval” a floating craft not to be used for navigation but to lay in a fixed place. It is then added that “artefacto naval” is to be considered also a “buque”, i.e. a vessel over 24 meters of length, which has lost her capability to navigate and which is to permanently perform activities not involving navigation, being moored, anchored or beached in a fixed place²⁹.

It therefore seems to exist a conflict with the 1989 Salvage Convention.

In fact, in Law 14/2014 the provisions on salvage also apply to a floating construction which has lost its capability to navigate, whilst the 1989 Salvage Convention applies only to structures capable of navigation.

The conflict seems to exist also within Law 14/2014 itself and precisely between paragraphs 1 and 2 of art. 358. In fact, art. 358.2, which is a repetition of art. i.c of the 1989 Salvage Convention³⁰ provides:

“No se considerarà salvamento la asistencia prestada a bienes fijados de manera permanente e intencional a la costa”. And art.1.c of the 1989 Salvage Convention: “Property means any property not permanently and intentionally attached to the shoreline”.

Back to art. 358.1, the amplitude of salvage operations seems to be confirmed (todo acto) although the wording in the 1989 Salvage Convention (any act or activity) looks more complete.

As to the concept of salvage, it seems enlarged:

“… emprendido para auxiliar o asistir a un buque, embarcación o artefacto naval, o para salvaguardar o recuperar cualesquiera otros bienes que se encuentren en peligro”, instead of “… undertaken to assist a vessel or any other property in danger”.

Perhaps the concept is more precise in Law 14/2014. In fact and with regard to property, it seems better to say that the services consist of safeguarding or recovering it rather than assisting it.

However, the concept is restricted to any navigable waters, with the exclusion of the continental waters which have no communication with the sea and which are not used by seagoing vessels.

This restriction reflects the reservation made by Spain, as per art. 30.1.a, not to apply the 1989 Salvage Convention when salvage takes place in inland waters and all vessels involved are of inland navigation and, b when salvage operations take place in inland waters and no vessel is involved³¹.

In the 1989 Salvage Convention the definition of property in art. 1.c includes the freight at risk, which seems to be excluded in Law 14/2014.

In confirmation of the exception made by Spain in respect of art. 30.1.d of the 1989 Salvage Convention, art. 358.3 states that it is not considered salvage the operation which involves:

“el patrimonio cultural subacuático, que se regirá por su legislación específica y los tratados internacionales vigentes en que España sea parte”.

Both Spain and Italy are party to the UNESCO Convention on the Protection of the Underwater Cultural Heritage, done at Paris the 2 November 2001.

Spain ratified it the 6 June 2005, and the 2001 UNESCO Convention entered into force the 2 January 2009, i.e. and as per art. 27 of the Convention, three months after the date of the deposit of the instrument of ratification.

Italy ratified the 2001 UNESCO Convention the 8 January 2010.

The reservation exercised by Spain as per art. 30.1.d of the 1989 Salvage Convention is very sensible. In fact, art. 4 of the 2001 UNESCO Convention states:

“ Relationship to law of salvage and law of finds.

Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of find, unless it:

(a) is authorized by the competent authorities, and

(b) is in full conformity with this Convention, and

(c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection”.

Quite strangely the reservation was not exercised by Italy. However, and as a justification it has been considered³² that, per art. 5.1, the 1989 Salvage Convention does not affect any provisions of national law or any international convention relating to salvage operations by or under the control of Public Authorities. In fact it has been noted that the operations relating to property of prehistoric, archeological or historic interest situated on the seabed are performed under the control of Public Authorities.

This may not always be the case and it happens that such operations are performed also by private organizations, which may therefore avail themselves of the provision under art. 5.2 of the 1989 Salvage Convention:

“Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations”.

However, it was further noted that art. 19 of the 1989 Salvage Convention provides:

“Prohibition of Salvage Operations. Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention”.

As a consequence it may well be maintained that the cultural underwater heritage in the territorial sea, the economic exclusive zone or the continental platform is within the ownership of the coastal State which is therefore entitled to forbid any relating activity or operation, such prohibition being considered reasonable as per art. 19 of the 1989 Salvage Convention although not having been stated expressly.

The last paragraph of art. 358 provides that finding (hallazgo) and removal, or recovery, (recuperación) of abandoned (abandonado) property in waters or on the coast (or sus costas) is considered as salvage unless such property is a product of the sea (salvo que sean producto del mismo mar) or of navigable waters.

Perplexities have been advanced regarding the dealing of “hallazgo” under the provisions on salvage³³. Perhaps the “encuentro casual o fortuito de objetos e nel mar o que hubieran sido arrojados a la costa por la accíon del mar”, (this is the definition of “hallazgo by the Author quoted in the note) should be considered an issue to be dealt with in art. 368 titled “Bienes salvados de proprietad desconcida”.

The more appropriate word to translate abandonado seems to be “forgotten” or “left” rather than “abandoned” or “derelict”. In fact it is believed that the owners of the property which is found or rescued did no voluntarily abandon it. Therefore such property cannot be considered a “res derelicta”, otherwise there would be no entitlement to ask for a salvage reward from the owners who have “abandoned” the property which is subsequently found or rescued.

The owners of such property should therefore continue to be vested with the animus possidendi of what they simply lost and as a consequence they would agree to pay a reward to recover its possession.

In fact if the property is (voluntarily) abandoned, it would not be of interest to the owners to pay for its restitution.

Perhaps it would have been preferable to use another word (encontrados?) instead of “abandonados”.

“Aguas” may possibly be considered any water and not only navigable waters. To be entitled to a salvage reward as provided in the 1989 Salvage Convention, the property may therefore be found or recovered also in “aguas continentales” or in any water whatsoever like a pond or a fountain.

This enlarges the definition of salvage operation in art. 358.1 and aligns it with that in art. 1 of the 1989 Salvage Convention.

However, art. 358.4 goes beyond when it says that salvage is considered also the finding or recovery of property “sus costas”.

It is a novelty indeed that the provisions on salvage apply not only to operations performed in “any water whatsoever” but also ashore.

This is not contemplated by the 1989 Salvage Convention, although it allows that the salvage operations are conducted not only from a vessel but from land as provided in art. 15.2. However, the property salved must always be in the water.

It may be recalled the casualty of the “MSC Napoli” in the English channel the 18 January 2007. As a consequence of her stranding off Devon, some 100 containers on board the vessel were washed ashore with many valuable goods inside, including BMW motorbikes, which were taken by persons crowding the beaches.

That was actually not a salvage but a removal, with the relating rules to apply by the Receiver of Wrecks under the 1995 Merchant Shipping Act.

Art. 359. It extends the provisions on salvage to State owned vessels, as defined in art. 3 of Law 14/2014, either in relation to services to State owned vessels and to services made by such vessels, in which event the granting of the reward to crew members will not be made as per art. 363 on apportionment of the reward between the owner and crew members, but by an Administrative Authority which will assess the reward in an equitable way.

As to the 1989 Salvage Convention, art. 4.1 provides that it does not apply to warships or to other non-commercial vessels owned or operated by a State.

It then states, in paragraph 2, that “where a State party decides to apply the convention to its warships of other vessels described in paragraph 1, it shall notify the Secretary General (of IMO) thereof specifying the terms and conditions of such application”.

It is not known whether Spain proceeded accordingly.

As to Italy, salvage services rendered to its warships or to vessels which enjoy the immunity under the 1926 Brussels Convention are governed by the provisions in the Code of Navigation.

Art. 360. The article, with the same title of art. 5 of the 1989 Salvage Convention, deals with salvage operations commanded or supervised by Public Authorities.

The 1989 Salvage Convention refers to national law and Law 14/2014 provides that the Public Authority performing salvage services is not entitled (as it is the case in Italy) to a reward whilst salvors performing salvage services as ordered or supervised by Public Authorities are entitled to a reward in compliance with its provisions.

This is exactly the same of what provided in art. 5.2 of the 1989 Salvage Convention and in art. 70 c.n.

Art. 361. Its provisions are similar to art. 6 of the 1989 Salvage Convention and outline that the salvage agreement needs no formalities and is to be freely agreed. As in the 1989 Salvage Convention, it is contemplated that there is a duty to protect the environment and that the master of the vessel is authorized to stipulate a salvage contract on behalf of the owners of the property on board.

Art. 362. It consists with a summary of the provisions in articles 12 and 13 of the 1989 Salvage Convention: the reward is made subject to a useful result, it is due also in case of salvage operations involving sister ships, it cannot exceed the salved value, it “shall be made by all of the vessel and other property interests in proportion to their respective salved values”.

Art. 13.2 of the 1989 Salvage Convention then states that “a State party may in its national law provide that the payment of a reward is made by one of these interests, subject to a right of recourse……”.

Accordingly, art. 362.2 provides that the reward may be paid by the owner of the salved vessel, which will have a recourse action against the other interests.

It is however added in the article, and possibly there was no need of such a clarification, that it is on the owners of the salved property which is not on board a vessel to pay the reward.

There are no provisions to have the reward fixed and it is therefore to be taken that reference is to be made to the criteria listed in art. 13.1 of the 1989 Salvage Convention.

Art.363. As provided in art. 15 of the 1989 Salvage Convention, which refers to the law of the flag, the article addresses on the apportionment of the reward between the owner and the crew members of the salving vessel.

Unless agreed to the contrary, the apportionment is established 1/3 to the owner and 2/3 to crew members.

Such a division is exactly that referred to in art. 496 c.n. and art. 363 also similarly provides that among crew members the reward is distributed having regard to the amount of their wages. In art. 496 c.n. it is added that account is to be taken also of the services rendered by the individual crew members.

In the second paragraph of art. 363 it is then said that the rules on the apportionment of the reward do not apply to tugs or to vessels fit and equipped for salvage operations, with reference to be made to respective employment contracts or to collective agreements.

This is a very sensible provision, which is better than that contemplated in art. 496 c.n., which does not provide for a different treatment between non professional tugs, to which the 1/3 – 2/3 apportionment applies similarly to any other salving vessel.

In the last paragraph of art. 363 it is clarified that the apportioning rules dictated in paragraphs 1 and 2 apply also to foreign vessels unless differently provided by the law of the flag.

Art. 364. It contains a well stablished principle in salvage, which repeats that in art. 19 of the 1989 Salvage Convention, namely that there is no entitlement to a reward if the salvage operations are performed notwithstanding the express and reasonable prohibition of the owner or the master of the vessel or the owner of the property in danger.

Articles 491 and 492 c.n. provide the same but mention only the master of the vessel with regard to salvage of vessels, and the master of the vessel and the owner of the property with regard to the salvage of property, as persons capable of prohibiting the salvage operations. No mention is made of the owner of the vessel.

Art. 365. This article, titled Derecho de Retencion is modeled on art. 21 of the 1989 Salvage Convention, however it deals with the issue of providing security to salvors in a more precise and stringent way.

Its paragraph 2 in fact provides that salvors have a right of retention over the salved vessel and the salved property, whilst in art. 21.3 of the Salvage Convention it is only said that “The salved vessel and other property shall not, without the consent of the salvor, be removed from the port or place at which they first arrive after the completion of the salvage operations”.

In Law 14/2014 salvors are therefore conferred with an express right of retention, or possessory lien, which seems similar to that provided by art. 2756 of the Italian Civil Code relating to claims for preservation and maintenance.

This provision applies to those, as the car repairers, who have a right of retention on what they have repaired until paid.

In Italian law the same is for shipyards, which may retain the vessel repaired provided the repairs were made within the shipyard premises. In fact, the retention may be exercised if the property to be retained is under the control of those conferred with such right.

Paragraph 2 of art. 365 is similar to art. 21.2 of the 1989 Salvage Convention with regard to the obligation of the owner of the salved vessel to procure that security is posted by cargo owners. Here again Law 4/2014 is more strict in that the 1989 Salvage Convention says that the owner of the vessel “shall use his best endeavours”, whilst art. 365.2 states that he “estará obligado” and that “En caso de incumplimiento de esta obligación será responsable de los perjuicios que por ello sufra el salvador”.

Art.366. As contemplated by art. 4 (State-owned vessels) and art. 25 (State-owned cargoes) of the 1989 Salvage Convention, the provisions on salvage do not apply to vessels and cargo enjoying sovereign immunity.

Law 4/2014 is more precise than the 1989 Salvage Convention as art.366 adds: extranjeros to buques y cargamentos.

Another difference from the 1989 Salvage Convention is that art. 366 says that its provisions cannot be used “a menos que el Estado del pabellón lo consienta” and “salvo consentimiento del Estado propietario (de) los bienes no comerciales…” whilst in the 1989 Salvage Convention this requirement “Unless the State owner consents” is contemplated only in art. 25 for State-owned cargoes.

Art.367. Reference has been already made³⁴ to art. 5 of the 1989 Salvage Convention (Salvage operations controlled by Public Authorities), which in paragraph 1 says that “this Convention does not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities”.

Paragraph 3 then says that it is the law of the Public Authority under a duty to perform salvage operations to determine whether such Public Authority may avail itself of the rights and remedies provided for in the 1989 Salvage Convention.

In addition to what said in art. 360 regarding the intervention of La Autoridad Pública, art. 367 dictates rules on the intervention of the Administración Marítima which, as per paragraph 1 of the said article, has the faculty of intervening in salvage operations taking place in Spanish territorial waters to safeguard the safety of navigation, human life at sea and the environment against marine pollution.

The intervention of the coastal State and its right to direct the operations or to take relating measurers is acknowledged by art. 9 of the 1989 Salvage Convention³⁵.

Paragraph 2 of art. 367 deals with the remuneration pertaining to the (Tesoro) State if the operations are directed by the Maritime Authority or which is to be paid in compliance with what provided in the relating contracts for works and materials if the activities are performed by private or public companies.

The salvor performing salvage operations under the directions of the State is instead entitled to claim compensation from the salved interests as per art. 5.2 of the 1989 Salvage Convention.

In Italian law the rules regarding the protection of the marine environment are contained in Law 31 December 1982 n. 979 titled Provisions for the Defence of the Sea.

It is upon the Ministry of Infrastructures and Transport, together with the Ministry of Environment to coordinate and direct the said operations.

A local or national emergency may be declared, with command to tug companies to intervene, or the services of Castalia may be asked, a Consortium of many shipowning companies which operates in protecting the marine environment either on behalf of the Ministry of Environment and upon request of public and private companies, a company possibly similar to the Spanish Sociedad de Salvamento y Seguridad Maritima.

Art. 368. The last article on salvage relates to salved property of unknown ownership, which is a possibility not contemplated in the 1989 Salvage Convention.

Whenever property of unknown ownership is found at sea or ashore, salvors are to inform the Navy (Armada), which is to make efforts to trace the relating owners, such efforts including the reporting to the Consul of the flag if registered vessels are involved. In the meantime, salvors may retain the salved property, taking care of its preservation.

If the owners are found, salvors are informed about their identity and are to ask them to accept redelivery of the salved property as is provided in art. 8.2.c of the 1989 Salvage Convention, without prejudice to their rights of retention under art. 365 for the purpose of obtaining payment of the reward.

In case the owners are not found within 6 months from the beginning of the relating administrative activity, the Navy is to assess the value of the salved property, which will be kept by salvors, after the payment of the evaluation costs, if the value is less than Euro 3.000.

If the value is higher, the property is to be sold at public auction, with salvors being entitled to 1/3 of the price exceeding Euro 3.000 and the other 2/3 pertaining to the State.

However, with regard to property whose commerce is prohibited or restricted, special rules apply, as provided in art. 381.

In Italian law there are provisions on the finding of wrecks (articles from 510 to 513 of the Code of Navigation) which follow (articles from 501 to 509) provisions on recovery of wrecks at sea.

As to finding of wrecks, whoever fortuitously finds wrecks at sea or on the maritime domain is to give notice to the Maritime Authority within three days. If at all possible the wrecks are to be returned to the owners in case they have a nuisance value.

Otherwise the wrecks are to be delivered to the Maritime Authority and there is entitlement to get payment of the costs and of 1/3 of the value of the wrecks, if found at sea, or of 1/10 up to a value of Euro 5.16, and of 1/20 for the exceeding value, if the finding took place on the maritime domain.

Rules are then provided for the custody and sale of the wrecks and if they have an artistic, historical, archeological or ethnographic interest or consist of arms, ammunitions or military equipment.

There is also a provision (art. 512) relating to cetaceans stranded ashore, which belong to the State, with those finding them being entitled to 1/20 of their value.