COLUMN | We may have to start checking the pockets of the dead [Tug Times]

Contemporary painting of the sailing vessel La Amistad off Culloden Point, Long Island, New York, on August 26 1839; artist unknown (Photo: New Haven Colony Historical Society)

All my life I have been taught that we have an obligation to go to the assistance of people in distress at sea, provided we do not risk the lives of our own crew in doing so. Like most mariners I never questioned this duty, because it was always obvious that the other side of the equation was if ever we were in distress at sea, others would come to our rescue. Like generations of seafarers, I simply accepted that if somebody was in peril, it was our duty to try to save them.

So I am grateful to my friend Jim Shirley for introducing me to the concept of life salvage. Traditionally, there was no salvage award for saving lives because there would be no proceeds from the act and thus no way to establish a fund to reward the salvors. It seems this changed in the UK in 1854, when the Merchant Shipping Act made the preservation of life a distinct ground for a salvage award and gave a life salvor priority over other claimants.

It changed again with the International Salvage Convention of 1989, which does not allow for any separate remuneration for life salvage. It does, however, allow individual jurisdictions to set their own rules, so there may be some administrations where a claim for life salvage might be permitted. I have not found any yet, so perhaps the best salvors can hope for is the traditional practice of increasing a salvage award if both life and property were saved during a salvage operation.

The Gard P&I Club may be expecting some claims, because one of their clauses states in part that, “The Association shall cover sums legally due to third parties by reason of the fact that they have saved or attempted to save the life of any person on or from the Ship…..”

“Ironically, ‘amistad’ is Spanish for friendship!”

There is a fascinating piece about salvage in former times in a recent edition of the New York Law Journal. Written by James E. Mercante and Kristin E. Poling, it focuses on slave ships and in particular La Amistad  – a tale which might be familiar to readers because it was the subject of a major film a few years ago.

Briefly, in 1839 slaves from West Africa revolted and killed the captain and the cook of a slave-carrying ship after the cook told them they would be murdered. The ship was intercepted off Montauk, New York by the United States Navy, which placed the slaves back in chains and claimed salvage for the ship and its cargo i.e. the slaves.

At the same time, the Spanish plantation owners claimed for the return of their ship and its cargo. Ironically, perhaps, “amistad” is Spanish for friendship!

Quite what the US Navy was doing claiming property salvage is unclear. Slavery was still permitted in America, but the government had made the transatlantic slave trade illegal in 1808, so it would seem the slaves, who were intercepted on the high seas in the Atlantic Ocean, should probably have been freed on the spot, while the navy could perhaps have claimed life salvage.

Nonetheless, the cases went to court and were appealed all the way to the US Supreme Court, where John Quincy  Adams represented the slaves and finally won the day. The navy and the plantation owners were left empty-handed and the surviving slaves were returned to West Africa.

One American author believes there are three possible scenarios where life salvage might be awarded. First is the aforementioned example where both lives and property are saved and the salvage award is enhanced as a result. Next is a scenario where a salvor has a realistic chance of engaging in property salvage but foregoes this in order to save lives instead. In such a case, the life salvor might be given a portion of the salvage award granted to the property salvor.

Finally, in the case of Peninsular and Oriental v. Overseas Oil Carriers a ship was granted costs when it diverted so its doctor could assist a sick crew member on another ship. Although this could be regarded as life salvage, it is noteworthy that the assisting ship only recovered the  costs of the deviation and delay, and was not given any additional reward.

Whilst the topic of life salvage is interesting, I will not be losing any sleep over it. I am satisfied that any lives I might have helped save in my career left me with warm and fuzzy feelings and the knowledge that, if the boot was ever on the other foot, somebody would do the same for me.

“I expect crews will continue to treat the dead with respect.”

Tug people who are not involved in salvage might be interested in another case reported by Mercante and Poling, and for other readers I offer it because it probably has the best name of any legal precedent I ever came across.

I refer to the wonderful case of Broere v. Two Thousand One Hundred Thirty-Three Dollars (1947) which involved the crew of a ship recovering a dead body from the water. This is something which not infrequently happens on board tugs, so readers may be interested to know that the crew searched the corpse and found the princely sum of US$2,133 in the pockets. The owner immediately claimed salvage.

The judge ruled that the money was property, and hence subject to salvage, and granted an award.

In these troubled times when business is suffering and every penny counts, I expect this column to result in a raft of circulars from tug companies to their vessels, instructing them that whenever a body is recovered they are to search it carefully and liberate any monies they discover. I also expect the tug crews will ignore such instructions and continue to treat the dead with respect. We are better than that, and in any case we know that, if the boot was ever on the other foot, we would want somebody to do the same for us.

Alan Loynd

Alan Loynd is a master mariner with extensive seagoing and shore experience, especially in the areas of salvage and towage. He is the former General Manager of the renowned Hong Kong Salvage and Towage company. He now runs his own marine consultancy and was chairman of the International Tugmasters Association.