Research On The Issue Of The Employed Salvage Contract

When a ship or any other property on board is shipwrecked at sea and rescued by others,the salvor shall have the right to claim a reward from the salvor for the property salvaged,which is salvage at sea.The system of salvage at sea applies only to the preservation of property,not to the saving of life,because all sailors have an obligation to save the lives of those in danger without expecting to be paid.The legal system of salvage at sea has a long history,dating back to ancient Rome.The earliest form of salvage at sea was pure salvage.With the development of international trade and Marine transportation,the form of salvage at sea has been developing continuously.This article is divided into six parts.The first part is an overview of Employed Salvage Service,mainly discusses the concept of Employed Salvage Service,as well as the concept and characteristics of employment assistance contract.Employed Salvage Service is a new form of Salvage at Sea,also known as fixed rate salvage.It refers to the behavior that the salvor carries out the salvage according to the request of the salved party,whether the salvage is successful or not,and collects the remuneration according to the agreed fee.It can make up for the shortage of contract rescue and meet the needs of the development of maritime rescue practice.When a ship is in peril at sea,such as a shipwreck,the contract signed by the parties for the purpose of carrying out the act of employment assistance is the contract of employment assistance.The contract of employment and rescue refers to the agreement that the salved party employs the salvor to rescue the ship or any other property in danger in the navigable waters of the sea,whether the rescue is successful or not,to pay the agreed labor remuneration.The contract of Employed Salvage Service is the agreement of rights and obligations between the two parties.The relationship of rights and obligations between the parties is Private Law.There are obvious differences between the contract of employment assistance and the contract of “no effect,no reward” in salvage at sea.The second part of this article is the legal provisions of Employed Salvage Service Contract in the international community.The concept of Employed Salvage Service Contract is still disputes.In order to clarify the legal system of employment assistance and the nature of employment assistance contract in China,we need to understand and sort out the relevant international treaties and the legislative provisions of other major countries.The 1989 salvage convention is an international convention specially formulated for Salvage at Sea.The coreprinciple of the Convention is the principle of “no effect,no reward”.The employment salvage violates this principle.Therefore,it does not belong to the salvage at sea stipulated in the 1989 salvage Convention and excludes the 1989 salvage Convention as a whole in application.In the Common Law system,there are similarities between the “Engaged Service” in the British Law and the Employed Salvage Service Contract in China,but there are fundamental differences between them in the actual meaning.In contrast,the Employed Salvage Service Contract is closer to “whether the rescue is successful or not,we can get the agreed fixed remuneration” in American Maritime Law.In the Civil Law system,the contract of employment assistance in German law is not the contract of salvage at sea that the German Commercial Code intends to adjust,but is adjusted by the relevant provisions in the contract law or civil law.Japan’s Maritime Law adopts the consequentialism,and the only adjustment is "no effect,no reward" pure rescue,that is,the narrow sense of maritime rescue;the contract rescue in the broad sense of maritime rescue is adjusted by the civil law according to its contract nature,and the employment rescue is only a form of contract rescue.The third part of this article is the practice of Employed Salvage Service Contract in China,mainly including the legal provisions of Employed Salvage Service Contract in the judical practice There is a special chapter on “Salvage at Sea” in China’s Maritime Law,which was the ninth chapter,and is to be adjusted to the tenth chapter.The main content is to transplant the 1989 rescue convention.In the chapter of Maritime Law of China,"Salvage at Sea",the contract of Salvage at Sea also follows the principle of "no effect,no reward",while the Employed Salvage Service deviates from this principle.Therefore,the employment of rescue assistants should not be applicable to the chapter of “Salvage at Sea” in China’s Maritime Law.The fourth part of this paper is about the nature dispute of employment assistance contract in China.At present,there are three different views on the nature and application of the contract of employment and rescue in the academic circles of our country.The first view is that the contract of employment and rescue is the salvage under the Chinese law,the contract of employment and rescue is the salvage contract,and the cost is the reward of salvage,so the relevant provisions of the maritime law of our country or the 1989 salvage convention should be applied.The second view is that the provisions of the maritime law are applicable to the determination of the nature of the contract,but the provisions of the contract law are applicable to the determination and payment of remuneration.The Supreme Court’sjudgment on the “Archangelos Gabriel” salvage case round reflects this idea.The third view is that the employment assistance does not belong to the maritime rescue,the Employed Salvage Service Contract does not belong to the Contract Salvage,its nature is more like Maritime Service Contract,so it is not applicable to the chapter “Maritime Rescue” of the Maritime Law and the 1989 rescue Convention,but to the relevant provisions of the contract law.The fifth part of this article is about the relationship between Employed Salvage Service Contract and relevant legal system.Applications of other Maritime legal systems,for example,Ship Insurance,Ship Priority,General Average and Limitation of Liability for Maritime Claims has been under the impact of the identification of the nature of the Employed Salvage Service Contract.The last part of this article is the dilemma and improvement of the employment assistance contract in China.There are disputes on the nature and application of law of employment assistance contract in China...