Last Updated:2015-03-23 18:51:38
We are frequently asked questions about the law of salvage and wrecks. These questions are usually something like "If I find a vessel adrift or in trouble and put a line on it or otherwise save it, is it mine?" or "If something washes up on the beach, can I keep it?" or "If I find lost treasure (or a shipwreck or an airplane hull), is it mine?". The answer in all cases is no. Generally, one does not become the owner of maritime property merely because the person saves it or finds it. If a person renders assistance to a vessel in distress and saves it, they are entitled to a salvage award, not an ownership interest. If a person finds lost or abandoned maritime property, they are required to report it to the Receiver of Wrecks and they are entitled to a salvage award. Both the law of salvage and the law of wrecks are governed extensively by statute and regulations. The most relevant statutes are the Canada Shipping Act, 2001 ("CSA, 2001") and the Navigation Protection Act ("NPA"). The Marine Liability Act ("MLA") is also relevant, but less so.
Salvage is one of the ancient maritime laws. It is concerned with the saving of life or property at sea. Generally,when maritime property is in danger and a volunteer successfully saves the property, the volunteer is entitled to a salvage award that is determined by the courts. The three necessary elements to a salvage award are: danger; voluntary assistance; and success. If the property is not in danger, no salvage award is payable. If the person is not a volunteer (i.e. is under some legal obligation to render assistance), salvage is not payable. (But note that pursuant to s. 147 of the CSA, 2001, assisting a person at sea, responding to distress signals or following the directions of a rescue coordinator does not disentitle a person to a salvage award.) If the salvage attempt is not successful, no salvage award is payable ("no cure no pay").
The amount of the salvage award is dependent on a number of factors including: the value of the saved property; the extent of the danger; the time required and the expenses and losses of the salvor; the skill of the salvor; and the risks and liabilities avoided by reason of the salvage (i.e. pollution).
Although there is no necessity or requirement that there be a contract between the salvor and the owner of the property in danger, most large scale commercial salvage operations today are done under a salvage contract. The most well known, if not the most common, of these is the Lloyd's Open Form Salvage Agreement, which includes a "no cure no pay" provision as well as arbitration to determine the salvage award. Such contracts are valid but, pursuant to art. 7 of the Salvage Convention (see below) are subject to annulment if entered into under undue influence or the influence of danger or if the payment is excessive for the services rendered.
Salvage has traditionally been considered to be a "maritime lien", which means that a claim for salvage is not defeated by a change in the ownership of the salved property and that the claim has a fairly high priority in the event of a priorities dispute. Pursuant to s. 86(4) of the CSA 2001, a lien arising from a claim for salvage has priority over all claims except costs relating to the arrest and sale of the vessel.
The limitation period for a salvage claim is two years from the date the salvage services were rendered but this period may be extended to the extent and on such conditions as the court deems fit. (CSA 2001, s.145, and Art. 23 of the Salvage Convention)
Salvors are entitled to limit their liability pursuant to article 2 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996.(the "LLMC"; Schedule 1 to the MLA) Claims for salvage are, however, exempted from limitation pursuant to art. 3 of the convention.(Schedule 1 to the MLA) The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons. (Art. 6 r. 4 of the LLMC)
Salvage law is predominantly governed by the CSA 2001 which, pursuant to s. 142 implements the International Convention on Salvage, 1989 (Schedule 3 to the CSA 2001). The Salvage Convention applies to both salvage operations at sea and in inland waters. (Canada could have declared the convention did not apply to inland waters under article 30 but did not do so in its reservations, which are recorded in Part 2 of Schedule 3 to the CSA 2001.)
In summary, the main provisions of the Salvage Convention are:
Maritime property that is considered of historical or cultural significance may not be subject to salvage. In Part 2 of Schedule 3 to the CSA 2001, the Government of Canada specifically reserved the right not to apply the Salvage Convention "when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the seabed". To date, we are not aware of any case in which such a designation has been specifically made, however, we are aware that the Government of Canada is actively looking at this topic. Moreover, there are a number of provincial statutes that purport to apply to maritime ship wrecks that prohibit disturbing the wreck in any way. (See for example the Heritage Conservation Act of British Columbia which declares any ship (or airplane) wreck a heritage object after only two years.) Whether and/or to what extent these provincial acts are constitutionally applicable to ship wrecks is a matter of debate but, as most of them make it an offence to breach their provisions, it would be wise to seek professional advice before disturbing any property found on the sea bed.
The law of "wrecks" is related to but different from salvage. It concerns derelict (i.e. abandoned) vessels, wrecked vessels, stranded vessels, vessels in distress and any other property that is found floating (flotsam) or washed ashore (jetsam) or on the bed of the sea (lagan). "Wreck" is defined in s. 153 of the CSA 2011 as including:
(a)jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a vessel wrecked, stranded or in distress; and
(b)aircraft wrecked in waters and anything that was part of or was on an aircraft wrecked, stranded or in distress in waters.
The finder of a wreck is not entitled to take possession or ownership of the wreck or any part thereof or any lost cargo. To the contrary, the finder is required to report the find to the Receiver of Wrecks, an office created under the provisions of the CSA 2001.The Receiver then deals with the wreck in accordance with the provisions of the act. In summary the provisions of Part 7 of the CSA 2001 provide:
A vessel, or part of one, that is wrecked, sunk, partially sunk lying ashore or grounded is an obstruction within the meaning of the Navigation Protection Act (the "NPA") and is subject to the provisions of that act. In summary, such vessels must be removed by the owner or person in charge, and if they fail to do so, the Crown will do so at the owner's expense. More specifically, the provisions provide:
Under Canadian law there is no right to limit liability in respect of claims for wreck removal. Pursuant to Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 and Part 3 of Schedule 1 to the MLA, Canada has exempted from limitation of liability "Claims in respect of the raising, removal, destruction or rendering harmless of a ship that is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship".
The Nairobi International Convention on the Removal of Wrecks, 2007 is a brand new convention that comes into force on 14 April 2015. The convention applies to "wrecks" in the territorial waters of signatory states but can be extended to include internal waters. Canada is not a party to the convention but Transport Canada has recommended that Canada accede to the convention and apply it to Canada's internal waters and territorial sea. The Transport Canada discussion paper on this can be found here.
In summary, the convention requires that a "wreck" be reported and, if it is determined the "wreck" is a hazard to navigation or the environment, the wreck must be removed. The convention requires owners to have compulsory insurance to cover the costs of wreck removal and provides for direct action against the insurers. The owner of the "wreck" is responsible for the costs of removal unless the owner proves the wreck:
The convention permits the owner to limit liability under any applicable national law or convention but, as indicated above, Canada and many other countries have exempted wreck removal claims from limitation of liability.
The limitation period established by the convention is three years from the date the "wreck" is determined to be a hazard but subject to a maximum of six years from the date of the casualty.
The database contains 9 case summaries relating to Salvage and Wrecks. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
Please note that to facilitate easier browsing and indentification of a relevant case on small devices, we have truncated the summaries which requires you to click "more" to view a full summary. If you wish to view these summaries without truncation, click here
Cameco Corp. v. The MCP Altona, 2013 FC 23
Universal Sales Limited v. Edinburgh Assurance Co. Ltd., 2012 FC 418
Chameau Exploration Ltd. v. Nova Scotia (Attorney General), 2007 NSSC 386
Early Recovered Resources Inc. v. British Columbia, 2005 FC 995
Brooks Aviation Inc. v. Boeing SB-17G, 2004 FC 710
Early Recovered Resources Ltd. v. Gulf Log Salvage Co-operative Association et al., 2003 FCT 549
Cox v. The "Trade Up", 1998 CanLII 7481
General Accident Indemnity Company v. The "Panache IV",  2 FC 455
Ontario v. Mar-Dive Corp., 1996 CanLII 8103