Research On Legal Issues Of The Employed Salvage At Sea

Salvage at sea is an ancient maritime legal system.The initial form of salvage at sea is pure salvage,that is,salvage entirely out of humanitarian relief.In the process of salvage,because of the disputes over salvage remuneration,pure salvage can't meet the needs of parties.A new form of salvage came out,which we called Contract salvage.The 1989 International Salvage Convention expands the application of the party autonomy.There are two main characteristics in the 1989 International Salvage Convention.First,it clearly stipulates that the parties are allowed to determine the remuneration for salvage by agreement,which excludes the application of the 1989 International Salvage Convention.Second,in order to encourage salvor to protect the environment,the provision of special remuneration appears for the first time.In recent years,employed salvage has become a common form of salvage at sea.After the case of" Archangelos Gabriel ",the legal ownership of employed salvage and the application of it have been intensely discussed.Employed salvage is a native legal concept,which we call it "salvage",but unlike the traditional salvage contract of "no cure no payn" employed salvage clearly stipulates that even if the salvage is ineffective,the salvor still has the right to claim salvage remuneration.Therefore,there are two views on the legal ownership of employed salvage.The first one is that employed salvage is salvage at sea,and the other is that employed salvage is a kind of maritime service.China's Maritime Code allows the parties to determine the context of the contract,but the provision in CMC is vaguer than that of the 1989 International Salvage Convention.In 1989 International Salvage Convention,it allows the freedom of contract,but the remuneration stipulated in employed salvage is not the remuneration stipulated in this Convention.In China's Maritime Code,the salvor has the right to claim remuneration for salvage under two circumstances.The first is that salvage is effective;the second is that even if salvage is ineffective,it meets the conditions of the special compensation or is otherwise stipulated by law or contract.Because of the vague legal provisions and the insufficient connection between other chapters and employed salvage,the application of employed salvage in China is confused.Therefore,this article will discuss the legal issues related to employed salvage from the following five parts.Chapter one mainly focuses on the definition of employed salvage.This part starts with the derivation of employed salvage,and compares the similar definitions of employed salvage in Anglo-American law with that in Chinese law.Then,this chapter focuses on the semantics of employment assistance to study the formation of the employed salvage so that we could figure out the concept of employed salvage on this basis.Chapter two studies the nature of employed salvage.This chapter explores the relationship among employed salvage,salvage at sea and the maritime service,so as to clarify the nature of employed salvage.Chapter three studies the application of the remuneration in employed salvage contract.This chapter first distinguishes the employed salvage from the employed salvage contract so as to clarify that the employed salvage we discussed in this chapter is a legal act of both parties.The difference between employed salvage contract and contract salvage are further discussed.It is concluded that the salvage remuneration agreed in the employed salvage contract is not the salvage remuneration adjusted in chapter nine of the China's Maritime Code.On this basis,the legal application of salvage remuneration in the employed salvage contract is clarified.Chapter four studies the connection between employed salvage and other maritime law systems.On the basis of chapter three,this part further explores the connection between the employed salvage and other maritime law systems,that is,the relationship between employed salvage and maritime lien and so on.Chapter five focuses on the legal construction of employed salvage in China.This chapter discusses the currently judicial practice of employed salvage,and analyses its merits and shortcomings,on the basis of which relevant laws are constructed.