Key takeaways
Consent must reflect individual patient needs
Generic forms and brief consultations risk legal challenge.
Material risks must be clearly explained
Patients should understand serious and relevant outcomes.
Alternatives must be discussed where reasonable
Omitting options may breach legal and ethical duties.
Part 2 of 10
Having seen the general principles of the law of salvage in Part 1, I will now look at the specifics under Article 13.1 of the Salvage Convention 1989. It is important to stress that the stated overriding objective under Article 13.1 is to encourage “salvage operations”:
Article 13.1 (a): “The salved value of the vessel and other property”
Although the Salvage Convention actually states that the criteria under Article 13.1 are not to be taken in any particular order (in terms of priority), undoubtedly the amount of the salved fund is a major dictating factor in the size of the award. Article 13.3 states that the award shall not exceed the salved value of the property. Obviously, this will apply to LOF cases in any event given that LOF is a “no cure no pay” contract.
There are now clearly exceptions when looking at SCOPIC, or Article 14 of the Salvage Convention in relation to prevention of pollution, but this is outside of the common salvage reward under Article 13.
It goes without saying that the greater the salved fund the greater the likely award, not least because the benefit conferred is commensurably greater. However, awards are not made on a sliding scale compared to the salved fund. The extent by which the award will be greater or smaller depends on all the circumstances of the case.
It is a well-established principle that a high value must be given real effect – see The “QUEEN ELIZABETH” (1949). On the other hand, awards must not be out of proportion to the services rendered and the benefits conferred – see The “AMERIQUE” (1874). In other words, if there is an enormous salved fund the Tribunal or Court will ignore the size of the fund and simply take the view that the fund is more than big enough to provide a generous and encouraging award to the salvors.
Where the salved fund is modest but the service highly meritorious and beneficial, a proportion of the fund should nevertheless be left to the owners of the salved property. Otherwise, little benefit would, in fact, have been conferred on the salved property – see The “LYRMA No. 2” (1978).
In other words, if the salved fund is very low but the services are highly meritorious with high dangers and/or high out of pocket expenses, there is nothing to prevent the Arbitrator from awarding the vast majority of the salved fund. However, something must be given back to the salved property. In theory, there is nothing to prevent a Court or Arbitrator awarding in excess of 90% of the salved fund and, once interest and costs have been taken into account, for the global award to exceed the salved fund. However, this would be very rare.
I will look at these authorities and others more closely in the next article which you can find here.
