| Salvage at sea is an ancient maritime legal system.With the development of the times,its forms gradually tend to be diversified.Employed salvage is a new way of salvage at sea.Its rise conforms to the requirements of practice and is also the inevitable trend of salvage at sea.On July 7,2016,the Supreme People’s Court publicly heard the case of the "Gabriel" cruise ship salvage contract dispute that occurred in 2011.Under the background of long-standing uncertainty about some key issues in the application of the International Convention On Salvage in 1989,the Supreme People’s Court made clear the specific application of the Convention and relevant domestic laws for the first time through the trial of the case.It can be said that one stone has stirred up thousands of waves,and the judgment result of the Supreme People’s Court has caused extensive controversy in the academic circles.The academic circles have launched a fierce discussion on the legal nature of employed salvage,the application of the law,the relationship between employed salvage and salvage at sea,etc,but has not reached a unified opinion.Taking advantage of the opportunity of the revision of China’s Maritime Code,this paper will take the works of scholars at home and abroad as the cornerstone,take the retrial judgment of the Supreme People’s Court on the Gabriel Ship case as the guide,take other cases in judicial practice as reference,try to clarify the legal issues related to employed salvage,and put forward some suggestions on the specific issues of bringing employed salvage into the adjustment of Maritime Code.First of all,employed salvage is not a legal concept,but a customary title formed in practice,and there is no identical concept with employed salvage in foreign countries.However,employed salvage belongs to the category of salvage at sea,and it is a form of salvage at sea from the angle of respecting the legal provisions,as well as from the constitutive requirements and historical evolution of salvage at sea.In addition,China’s judicial practice also agrees with the view that "employed salvage is salvage at sea".Secondly,the legal attribute of employed salvage belongs to salvage at sea,which determines that it can apply the laws related to maritime law.At present,there is a basic contradiction in the legal application of employed salvage: employment assistance is a kind of salvage at sea,which should be applied to the provisions of the International Convention On Salvage in 1989 and China’s Maritime Law,but there is no "law" available,and only the provisions of the General Provisions of Contract Compilation in the Civil Code can be applied.Thirdly,the employed salvage is closely related to other maritime legal systems,so attention should be paid to keeping the connection with the legal agency right of the captain,maritime lien,general average,limitation of liability for maritime claims and other systems.Finally,in view of the above,it is proposed that the framework of maritime salvage system should be improved under the revision of Maritime Law,the basic principles of the revision of Maritime Law should be grasped,and employed salvage should be included in the adjustment of maritime law.Specifically,it includes clarifying the legal attributes of employed salvage,arbitrarily specifying the payment conditions and evaluation standards of assistance remuneration,changing the situation of applying general law to employed salvage,and strengthening the connection between employed salvage and other maritime legal systems. |
