Historic wreck salvage - claim for cannons and tin ingots time barred - R (on the application of David Knight) v The Secretary of State for Transport

14/07/2017

Interesting salvage law issues arose in the above judgement from the Administrative Court of the Queen’s Bench Division (yes Administrative – not Admiralty!).

The context for the case was a judicial review challenge to the decision of the Receiver of Wrecks to decline an award of salvage to a salvor of historic wrecks. The salvor had previously been convicted of offences relating to artefacts recovered from wrecks as a result of his failure to declare the same to the Receiver of Wrecks. Some time later he sought an award of salvage in respect of the items recovered. The Receiver of Wrecks denied there was any right to salvage on various grounds including that it was contrary to public policy to award salvage to a person in respect of items which had formed part of a prosecution against that person.

Unfortunately for all the intrigue (bordering on excitement) which could have arisen from the case, it foundered on every shipping lawyer’s favourite unseen hazard, a time bar. However, notwithstanding the somewhat premature and anticlimactic sinking of the case we can at least salvage from the wreckage of the claim useful clarification on the time limits set out under the 1998 Salvage Convention (implemented in the UK by s.225 of the Merchant Shipping Act 1995).

s. 23 of the 1989 Salvage Convention provides that “any action relating to payment under this Convention shall be time-barred if judicial or arbitral proceedings have not been instituted within a period of two years. the limitation period commences on the date on which the salvage operations are terminated”.

The key question was, in the context of salvage of a historical wreck, on what date did the salvage operation terminate? The question arises uniquely in the context of salvage concerning historic wrecks because, unlike commercial salvage where operations usually take place over a reasonably defined period usually lasting a matter of months (clearly with a few notable recent exceptions), historic salvors might visit the same site over a period of years but only for a few months in each year, often leaving the site untouched outside of the summer diving seasons.

In this case a number of items had been recovered from vessels including, most significantly, a number of cannons. The cannons were recovered in a significant operation (involving the hire of a specialist lift vessel) in 2008 and since then a number of further dives had taken place, mainly with a view to locating a bell. The salvor argued that the subsequent exploration dives constituted a continuation of the salvage operation, such that the salvage operation had not terminated in 2008.

The Court determined that “the day on which salvage operations terminate is a question of fact to be determined in every case”. Applying that approach the court considered each of the relevant claims separately and found that while salvage operations on an historic wreck can continue for several years there was no evidence in the present case of the “coherence, co-ordination and planning which one would expect to find in such a case”. Similar arguments were raised an rejected in relation to other items recovered, including tin ingots.

In reaching its conclusion the court considered it was important that for the recovery of the cannons in particular specialised equipment had been hired to assist in the recovery of items and once those items had been recovered the further efforts were much less significant. The court also rejected the submission that attempts to preserve recovered artefacts once ashore could amount to a continuation of the salvage operation.

Unfortunately for the salvor the consequence of the above was that the operations had terminated more than 2 years before any claim was pursued and accordingly any salvage claim was time barred. There were many other issues which could have been determined in this case had it overcome the time bar hurdle but unfortunately such matters will have to lay dormant until they surface again.

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