By Elton Chizindu Mpi, Esq.

Salvage in Maritime Law is the rescue of a ship or its cargo on navigation from a peril, that except for the rescuers assistance, would have led to destruction of lives or property. The rescuer of the imperiled ship can then claim for compensation for the assistance rendered.

Section 390 of the Merchant and Shipping Act 2007 states that “every act of assistance or salvage which yields a useful result gives a right to equitable reward and as otherwise provided payment shall not be made to a salvor if salvage operations do not yield any beneficial results”.

What this section means is that a salvor is entitled to a reward and has a lien on the salvaged property. However there are times when the Salvor seeks compensation and the ship owner refuses to reward him or makes an inadequate compensation, which creates a dispute. This dispute can be resolved by arbitration or legal action in a competent court of law.

Salvage is a general maritime claim by virtue of s. 2 (3) (g) Admiralty Jurisdiction Act (AJA), 1987. Maritime claims are demands for contractual or statutory entitlements in transactions arising from marine commerce and navigation, the transportation at sea of persons and property, and marine affairs in general. It includes demands for compensation for torts arising out of commerce on or over water.

Types of Salvage

There are basically two kinds of Salvage. The Contract Salvage and the Pure Salvage.

Contract Salvage – In this kind of Salvage, the owner of the property or the vessel enters into an agreement with the salvor to rescue imperiled assets or vessel. There is a formal agreement which includes the agreed payment for the services and it has all the elements of a valid contract.

Pure Salvage– Under pure Salvage, there is no form of agreement or contract. Assistance is rendered voluntarily. Under Pure Salvage three(3) elements must exist;

a) The Salvage must be voluntarily.

b) The Salvage effort must be in whole or part and;

c)There must be a maritime peril.

PRELIMINARY STEPS FOR SALVAGE CLAIMS IN COURT

1.Consult a lawyer-There are basically two steps for claiming Salvage reward. The first step is by arbitration and the second is by court intervention. Whichever method is adopted, the services of a lawyer who is experienced in maritime law is undoubtedly necessary. It is pertinent to disclose all facts of the case to the lawyer and provide all necessary documents that would be of assistance to your case.

2. Ensure your action or claim is not statute barred. Section 399 of the Merchant and Shipping Act 2007 provides for Limitation of Salvage actions. It provides that an action relating to payment under this Part of this Act shall be time barred if judicial or arbitral proceedings have not been instituted within a period of two years and the limitation period shall commence on the day which the salvage operations are terminated; provided that the said period shall be extended in cases where it has not been possible to arrest the vessel assisted or salvaged in Nigeria.

3.Jurisdiction -The Federal High Court (FHC) is the only court in Nigerian exclusively vested with the jurisdiction to hear and determine maritime claims and other admiralty causes or matters, whether civil or criminal. Admiralty jurisdiction was originally conferred on the FHC by s. 7(1)(d) of the Federal High Court Act, which provides that the court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters. Section 251 (1) (h)of the Nigerian Constitution 1999 as amended also vests admiralty jurisdiction on the Federal High Court.

4. Consideration of the laws and Rules of court-There are laws and rules governing admiralty claims in Nigeria, and these laws and Rules must be taken into consideration before commencement of Salvage actions. The laws and Rules includes; Federal High Court Civil Procedure Rules 2009, Merchant and Shipping Act 2007, Admiralty Jurisdiction Act 1991 etc.

Procedure for Commencement of Action in the Federal High Court

Step one

Prepare a Writ of Summons-A writ of Summons shall be the form of all proceedings in the Federal High Court where Where a plaintiff claims:

(i) Any relief or remedy for any civil wrong, or

(ii) Damages for breach of duty, whether contractual, statutory or otherwise, or

(iii) Damages for personal injuries to or wrongful death of any person, or in respect of damage or

injury to any person, or property.

(b) Where the claim is based on or includes an allegation of fraud, or

(c) Where an interested person claims a declaration.

Step 2

Preparation of Accompanying Documents

All civil proceedings commenced by writ of summons shall be accompanied by:

(a) Statement of claim,

(b) Copies of every document to be relied on at the trial.

(c) List of non-documentary exhibits,

(d) List of witnesses to be called at the trial, and

(e) Written statements on oath of witnesses.

Action in Federal High Court is regulated by Federal High Court Civil Procedure Rules 2009

Step 3

Filing/Service and Commencement of Action

This step is very important and caution must be exercised. This involves filing of your prepared documents, assessment of the documents, payment of filing fees and service of your process on the defendant.

An action is commenced when all of the following has been done:

1.Filing fees are paid on the processes

2.Any Affidavit or Witness Statement on Oath have been taken before the Commissioner of oaths

3.The processes are duly served on the adverse parties

The Registrar of the Court gives it a suit number and it is entered in the Cause Book.

Criteria for Award of Salvage Claims

In awarding Salvage claims, there are criteria the Federal High Court would consider. The criteria was enshrined in Section 392 of the Merchant and Shipping Act. It provides that;

(1) The criteria for determining the reward for salvage operations shall be fixed by taking the following into consideration:

(a) the salvaged value of the vessel and other property;

(b) the skill and efforts of the salvors in preventing or minimising 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 effort of the salvors in salving the vessel, other property and life;

(f) the time spent and expenses and losses incurred by the salvors;

(g) the risk ofliability and other risks run by the salvors or their equipment;

(h) the promptness of the services rendered;

(i) the availability and use of the vessels or other equipment intended for salvage operations;

(j) the state of readiness and efficiency of the salvor’s equipment and the value thereof.

(2) Payment of reward fixed according to subsection (1) of this section shall be made by the-vessel and other property interests in proportion to their respective salvaged values.

It is important to point out at this juncture that s. 392 MSA 2007 is a codification of Article 13 SALCON 1989.

For legal consultation, contact Ace Juris Atrorneys at 08028175777, 09018572928 or send a mail at chizyelton@gmail.com