The Legal Attributes And Application Of Employed Salvage

On July 7^th 2016,the Supreme people's Court heard the "Gabriel" cruise ship salvage contract dispute case at Greece in 2011 in public,which belonged to Achang Rutgers Investment Company.This case went through the first instance of the Guangzhou Maritime Court,the second instance of the Guangdong Provincial higher people's Court and the retrial of the Supreme people's Court,it last for four years.The final judgment has been affirmed by the international legal profession and has become a typical case and legal source in the field of international maritime justice.However,as a student majored in maritime law,there are some confusion in my mind after reading the retrial judgment of the Supreme people's Court.That is some maritime law issues involved in this case have not been properly explained or convincingly elaborated.This article will discuss four main aspects: the definition of employment salvage contract,the legal attribute of employment salvage,the nature of employment salvage reward and the application of employment salvage law.In order to have a profound and comprehensive understanding of the employment assistance that often occurs in the course of international shipping transport,put forward the "Chinese experience" and "China rules" which accord with the international shipping practice by comparing international conventions and the judicial practice of various countries,and provide useful reference to the modification of Maritime Law in future.The article takes the Supreme people's Court retrial "Gabriel" judgment as a carrier,combine with domestic and foreign scholars to discuss the legal nature of the employment relief contract and its law application.This paper mainly solves the following four problems:firstly,the definition of employment assistance;secondly,the legal attribute of the employment salvage contract;thirdly,the application of the law to the expenses incurred by the employment assistance;fourthly,the application of the law of the employment salvage contract.Although the employment rescue contract signed by the South China Sea Rescue Bureau and the investment company agrees that,regardless of the effect of the rescue,the South China Sea Rescue Bureau has the right to claim remuneration,but objectively speaking,the "Gabriel" tanker was successfully rescued by the South China Sea Rescue Bureau.The Supreme people's Court's retrial judgment also does not discuss whether the South China Sea Rescue Bureau can claim the compensation for rescue if the rescue of the tanker "Gabriel" does not have the effect of sinking.To be clear,some scholars believe that even if the "Gabriel" tanker sank,the South China Sea Rescue Bureau has the right to claim compensation.This view is interpreted by the scholars themselves and has never been mentioned by the Supreme people's Court.On the contrary,the Supreme people's Court has decided that the employment salvage contract is a salvage contract,and one of the constitutive elements of the salvage contract is the "effective salvage".So,the Supreme people's Court discusses this case on the basis of effective salvage.In addition,the employment salvage contract is generally signed under circumstance of "non-urgent danger" to the ship,and it is the professional employee to carry out the rescue,so there are few cases in which the salvage has no effect.It can even be said that the discussion of the employment salvage has no effect and whether the rescuer can claim that compensation is a "false proposition".Therefore,the author tends to think that the employment salvage contract under the maritime law of our country and the employment salvage under the British maritime law?"Engaged service"?is similar.Employment salvage means that,after the ship and property are in distress,the salvor comes to a rescue agreement with the rescued person that the rescued person employs the salvor to perform a particular rescue act,and promises that whether the rescue is successful or not,the rescued person is required to provide the salvor with a specific salvage fee.After fulfilling the obligations stipulated in the contract,the salvor shall have the right to claim the salvage reward to the rescued person in accordance with the provisions of the contract.Employment salvage has the following characteristics:First,there is a request for salvage.Second,ships and property in distress are ultimately rescued in fact.Third,whether the salvage action is effective or not,the salvor can claim a certain reward to the rescued person.Whether salvage has effect or not,which emphasizes the causality between the salvage action and the final salvage effect.Fourth,the determination of the salvage reward shall be separately agreed by the parties.Employment salvage has the double attributes of salvage at sea and labor employment.According to the 171 th provision of the Maritime Law and judicial practice,and combining with the salvage research of extraterritorial Anglo-American law system and continental law countries,we tend to think:Salvage at sea is a kind of legal relationship between the salvor and the rescued person,and is based on the fact that the property is rescued.There are three constituent elements:First,the subject matter is the property of distress at sea;Second,the salvor participates in the rescue voluntarily;Third,the property in distress was saved in whole or in part.The rescue carried out by the South China Sea Rescue Bureau conforms to the constitutive requirements of salvage at sea,and the employment salvage in this case has the nature of salvage at sea.The employment salvage contract in this case provides that the South China Sea Rescue Authority shall receive a certain payment regardless of whether the salvage is remunerated or not.The purpose of the South China Sea Rescue contract is to obtain the certain payment,not the reward for the salvage under the principle of "no effect and no reward".The object of the employment salvage contract in this case is providing labor services.The South China Sea Rescue Bureau does not shoulder any responsibility for the result of the rescue act,even if the rescue has no effect,and it can still claim for certain payment.Therefore,the employment salvage contract in this case has the nature of labor employment.With regard to the nature of the remuneration for employment assistance,all of the Chapter 9^th of Maritime Law and The Convention on Salvage are established by the principle of "no effect and no reward",and the compensation for salvage is calculated,determined and adjusted according to the principle of "no effect and no reward".In this case,the employment salvage contract clearly prescribe that whether the salvage is effective or not,the South China Sea Rescue Bureau can claim the certain remuneration as stipulated in the contract.By implicitly excluding the application of the principle of "no effect without remuneration",the nature of the remuneration for employment salvage in this case dose not accord with the Chapter 9^th of Maritime Law and The Convention on Salvage.The employment salvage contract is of the nature of labor employment.In this case,the employment rescue contract is signed between the equal subjects and is used to adjust the labor employment relationship between the South China Sea Rescue Bureau and the investment company.The compensation for salvage is essentially the general contract consideration for providing contractual services.The main subject of the contract of employment salvage contract in this case is the South China Sea Rescue Bureau and the investment company,excluding the owner of the goods.According to the relativity of the contract,the owner is not the party to the employment salvage contract and is not bound by the employment salvage contract.So,there is no legal basis for requiring the owner to bear part of the costs stipulated in the employment rescue contract.As to whether the cargo owner benefits from the employment relief,and whether the civil law can be applied to require the owner to compensate the related costs,it is necessary to combine the case with the specific problem to be dealt with concretely.A master or an agent of a ship under a contract of employment salvage does not necessarily enjoy the legal agent right.First,the contract of employment salvage is usually signed in the case of non-emergency danger to the ship.The master or agent of the ship has sufficient time to contact with the cargo owner,and it is up to the owner himself to take follow-up measures,including the owner's own hire of the barge to carry the goods and so on;Secondly,only the ship is in danger,and the cargo is not in danger.In this case,there is no common danger of the ship and cargo.Thirdly,under the premise of no effect of salvage,the shipowner still needs to pay the corresponding salvage payment according to the agreement of the employment salvage contract.Let the owner bear the corresponding cost without legal basis,and can not determine the share ratio.The employment salvage contract has the nature of labor employment,and the compensation for salvage advocated by itself is essentially the contract consideration of providing the contractual services,rather than the salvage payment that the Chapter 9^th of Maritime Law and The Convention on Salvage prescribed,and does not have the nature of maritime lien.The reasons are as follows:Maritime lien refers to the priority of the right to compensation,in essence,it is still a civil right.It is a civil right when different nature civil right?Maritime claim?are in conflict,a right?Maritime claim?Prior to other civil rights according to the law?Maritime Law?.The legislative purpose of Article190 th and 22 th of Maritime Law is to guarantee the priority of compensation for salvage at sea,and to turn the salvage creditor's right into real right.The reason for this provision is that salvage is of a lucky nature,and if the rescue is ineffective,the salvor cannot claim any remuneration.Compared with the general creditor's rights,the acquisition of compensation for salvage at sea needs to bear more moral and legal risks.The compensation for employment salvage in the form of certain payment avoids the risk of reward fall,its essence has no difference with the general creditor's rights,and there is no need for special protection.The application of the law of employment salvage has its inherent contradiction.On the one hand,the employment rescue completely accords with the constitutive requirements of salvage at sea.According to the 171 th of Maritime Law:The provisions of this Chapter shall apply to the rescue of ships and other property in distress in navigable waters at or in connection with the sea.Employment assistance is fully in line with "Maritime Law" Chapter 9The scope of application of;On the other hand,the system of the Chapter 9^th of Maritime Law and The Convention on Salvage is established by the principle of "no effect and no reward".The employment salvage contract has the nature of labor employment,the object of the employment rescue contract is to provide the labor service itself,not to pursue the effective salvage behavior,and the labor service reward acquirement also has nothing to do with the salvage effect.Therefore,it does not apply the relative rules of the Chapter 9^th of Maritime Law and The Convention on Salvage.The application of the employment salvage law is decided by the legal attribute of the employment salvage contract,because the employment salvage contract has the double attributes of salvage at sea and labor employment.Therefore,the application of the law of employment salvage should be divided into two parts,that is,the affirmation of the nature of employment salvage applies to the Maritime Law and The Convention on Salvage;According to the calculation,determination and adjustment of employment salvage remuneration,it applies to the Contract Law and other relevant civil law norms.Therefore,after more than 20 years of development,the existing Chapter 9^th of Maritime Law can not meet the new development of salvage at sea,especially after the form of salvage by employment appears,there is an awkward situation that it can not be used.The modification of Maritime Law should also be put on the agenda at an early date.