Aircraft Salvage in International Admiralty Law


Image by Navigea Ltd, 2018. Pictured here is a TBD-1 Devastator from the wreck of USS Lexington found off the coast of Queensland.

By Jing-Zhi Wong

In a deal signed between a private seabed exploration firm and the Malaysian government, the latter was willing to pay up to $70-million in rewards conditional upon the firm finding the elusive aircraft MH370.[1] This ‘no find, no fee’ arrangement has led to increased interest in the admiralty law of salvage because of its uncanny resemblance to the ‘no cure, no pay’ clause commonly found in salvage contracts like Lloyd’s Open Form.

But does this payment arise because of the law of salvage, or is it one that is freely agreed to by both parties in absence of regulations?

Salvage law as we know of it today began with the reception of medieval Rhodian, Byzantine, and Roman codes into English Common Law during the reign of Richard I, through the Rolls of Oleron that adjudicated the flourishing wine trade between Aquitaine, England and the Flanders.[2] The law was then developed and refined through centuries of adjudication, in particular, through a series of decisions in the English Admiralty Court from 1633 to 1900,[3] and finally codified by the 1910 Brussels Convention on Maritime Salvage, broadly setting down the English law of salvage as the international norm.

Salvage is the orderly legal method of reward for saving ‘maritime property’ in peril or distress on navigable waters.[4] It is based on the idea that a special reward would promote the orderly organization of voluntary salvage efforts, minimize loss of life and commerce, and discourage plunder and piracy in situations where police surveillance is not ordinarily available.[5] Corollary, the service of salvage attracts on the salved ‘subjects’, in rem common law possessory lien[6] and maritime lien in admiralty,[7]and a right of action in personam against the owners of such property,[8] that allows the salvor an enforceable claim for reward.

So, what property counts as ‘maritime property’?

Contrary to popular belief that salvage provides rewards for anything saved from the sea, the law only rewards the salvage of certain ‘recognised subjects’.[9] Historically, these ‘recognised subjects’ were ‘maritime property’, defined by Lord Esher MR to mean ‘vessels and ships used for the purpose of being navigated, … her apparel and cargo, … and the wreck of these and freight’.[10] Money on a floating corpse [11] and floating logs[12] has also given rise to salvage as well. With advancements in transportation technology and maritime activities such as oil, gas and seabed exploration, this been extended to include hovercraft,[13] bunkers,[14] floating cranes,[15] backhoe dredgers, [16] offshore floating oil rigs and installations,[17] and sometimes seaplanes.[18]

Usually, there will be no difficulty in identifying what constitutes maritime property. But over the years, problematic cases have arisen.[19]

In R v Goodwin,[20] Lord Phillips of Worth Matravers CJ held that a jet-ski was not a vessel because it was not sea-going and does not go to sea on voyages.[21] Similarly, Henry J opined that a ‘vessel used in navigation’ must be principally used on navigable waters that are used by vessels going from point A to B, and not merely for pleasure purposes.[22] But in The Mac, Cotton LJ expressed that a ship need not be sea-going to qualify as a vessel – it need only float and be used for a particular purpose.[23]

The question of whether aircraft could be ‘subjects’ of salvage is even more complicated.  When aircraft are carried as cargo or freight on ships, they are held to be ‘subjects’ of salvage. But on their own, they are not ‘subjects’ of salvage. While, in some instances seaplanes have been held to be ‘subjects’ of salvage (see [18]), ordinarily they have not. In Watson v R.C.A Victor Co, Sheriff Morton remarked that in common law ‘it would be a stretch of imagination to describe a seaplane a ship [sic]’.[24] In the USA, it was held that ‘aircraft … not being of the sea or restricted in their activities to navigable waters, are not maritime.’[25] While some countries like the United Kingdom,[26] Singapore,[27] New Zealand,[28] and Hong Kong[29] have since legislated to extend principles of maritime salvage to aircraft, the laws only apply insofar as the salvage occurs within their own waters.[30] There were no laws that applied to salvage on the high-seas, nor specifically to aircraft.

When the 1910 Brussels Convention on Salvage was drafted, it applied only to ships, and the international law on aircraft salvage was virtually non-existent. The first commercially viable flight service began in 1914. It was around then that states began work to extend maritime principles of salvage to aircrafts.[31]

This led to the Paris Air Navigation Convention 1919, which adhered to the 1910 convention, and was ratified by 23 countries.[32] The USA, however, did not ratify this convention. The USA, together with 7 other pan-American countries, ratified the 1928 Havana Air Convention, which differed slightly from the 1919 convention. Nonetheless, both conventions obligated life salvage and provided that ‘in absence of agreement to the contrary, the salvage of aircraft at sea is to be governed by “principles of maritime law”’.[33]

Momentum to enact more global legislation led to the conclusion of an international aircraft salvage convention in 1938. But this was not ratified, due to the outbreak of World War II in 1939, and an error that granted baggage, personal effects, mail and parcel post immunity from salvage liability which rendered it to be of little effect.[34] During the war, the 1919 and 1928 conventions, despite still being in force, were largely ignored, and many war victims were left to drown.

After WWII, governments decided that volunteer motive was ‘unreliable, and that callous airmen and shipmasters would leave distressed aviators to their fate’.[35] States began to take the responsibility of saving life and salvaging property upon themselves. The legal thinking and procedure that used to be based on principles of private law had come to be regarded as a governmental responsibility.[36] The law rewarding aircraft salvage transformed into rules of search and rescue.

The search for MH370 reminds us that governments cannot provide a solution to everything. In this instance, governments lack funding and expertise to carry out their own search. Rewards for volunteer efforts can incentivize individuals and private firms to assist ships and aircrafts in distress, especially when there is no obligation to save property, and where resources like funding or emergency assistance are limited – over deserts and wilderness, and across oceans.

An international convention is apt for this purpose, not merely to regulate salvage on high-seas, but because an international standard is highly persuasive in encouraging countries to enact uniform legislation. This is especially true for Australia, where the legislature is highly committed to their international obligations, and where the current law on salvage does not extend to aircraft as a ‘subject’ of salvage that is, on its own, capable of giving rise to a salvage reward.[37]

Jing-Zhi (Benjamin) Wong is an Engineering Science and Law and Society major at The University of Western Australia.

[1]Reuters Staff, ‘Malaysia to pay U.S. firm up to $70 million if it finds missing MH370’,Reuters(online), 10 January 2010 <>.

[2]Thomas Schoenbaum, Admiralty and Maritime Law (West Publishing Co., 2nded, 1994) vol 1, 9; vol 2, 322.

[3]First clear example of a suit for salvage in admiralty is in 1633. Marsden RG, Select Pleas in the Court of Admiralty, 1897, vol 2, xxxvi; Richard Shaw, ‘The 1989 Salvage Convention and Lloyd’s Open Form 1990: Are they working?’ (1992) Marine Policy127.

[4]Arnold Knauth, ‘The Aviation at Sea Convention of 1938’ (1939) 10 Air L. Rev. 146, 148.

[5]Arnold Knauth, ‘Aviation and Salvage: The Application of Salvage Principles to Aircraft’ (1936) 36(2) Columbia Law Review224, 225.

[6]Hartford v Jones (1698) 1 Ld Raym 393; 91 ER 1161.

[7]HMS Thetis (1833) 3 Hag Adm 14, 48; 166 ER 312, 325; Admiralty Act 1988(Cth) s 15(2)(a).

[8]The Two Friends (1799) 1 Ch Rob 271, 277; 165 ER 174, 176; Cargo ex Schiller (1877) 2 PD 145, 157.

[9]Francis Rose and David Steel, Kennedy Law of Salvage (Stevens & Sons, 5thed, 1985) 8.

[10]The Gas Float Whitton (No 2) [1897] AC 337; The Westminster(1841) 166 ER 558, 559; Alera Manderaka-Sheppard, Modern Admiralty Law (Routledge-Cavendish, 2001) 658.

[11]Broere v Two Thousand One Hundred Thirty-Three Dollars, 72 F.Supp 115 (E.D.N.Y 1947).

[12]Tidewater Salvage Inc v Weyerhaeuser Co, 633 F.2d 1304 (9thCir. 1980).

[13]Admiralty Act 1988 (Cth) s 3(1).

[14]‘bunkers’ refer to vessels used to store petroleum products for the purpose of refuelling ships; The Span Terza [1984] 1 Lloyd’s Rep 119.

[15]R v St John Shipbuilding & Dry Dock Co Ltd(1981) 126 DLR (3d) 353.

[16]The Von Rocks [1992] 2 Lloyd’s Rep 198; Stewart v Dutra Construction Co, 543 US 481 (2005).

[17]Manderaka-Sheppard, above n 10, 659.

[18]Lambros Seaplane Base Inc v The Batory, 215 F.2d 228, 233 (2d Cir. 1954); Schoenbaum, above n 2,

[19]Damien Cremean, Admiralty Jurisdiction: Law and Practice in Australia, New Zealand, Singapore and Hong Kong (Federation Press, 3rded, 2008) 35-9.

[20]R v Goodwin [2006] 1 Lloyd’s Rep 432; 1 WLR 546.

[21]1 WLR 546, 538.

[22]Curtis v Wild [1991] 4 All ER 172, 175.

[23]The Mac (1882) 7 PD 126, 131; Cremean, above n 19, 37.

[24]Watson v R.C.A Victor Company Inc(1934) 50 Lloyd’s List Law Reports 77, 79.

[25]The Crawford Bros (No. 2), 215 Fed. 269 (W. D. Wash. 1914).

[26]Air Navigation Act, 10 & 11 Geo. V, c. 80, s 11 (1920); Civil Aviation Act 1982(UK) s 87.

[27]High Court (Admiralty Jurisdiction) Act (Cap 123) (Sing) ss 3(1)(i), (h), 4(1)(j), (k).

[28]Admiralty Act 1973 (NZ) ss 4(i), 6(1).

[29]High Court Ordinance (Cap 4) (HK) ss 12A(2)(i), (j), (k).

[30]NZ: within own territorial waters, Singapore: within inland waterways, HK: within the waters of Hong Kong, UK: within tidal waters, or within the limits of Her Majesty’s jurisdiction (Watson v R.C.A Victor Co); Crimean, above n 19, 41.

[31]Knauth, above n 5, 232-3.

[32]Ibid; countries that ratified the convention include Sweden, Denmark, Netherlands, Bulgaria, Spain, Belgium, Bolivia, the British Empire, France, Greece, Portugal, Yugoslavia, Siam, Japan, Italy, Czechoslovakia, Romania, Uruguay, Poland, Panama, Persia, Chile & Saar.

[33]Paris Air Navigation Convention of 1919, Art 23; Habana Air Convention 1928, Art 26.

[34]Knauth, above n 5, 242.

[35]Ibid, 240-1.

[36]I.H Diederiks-Verschoor, An Introduction to Air Law (Kluwer Law International, 8thed, 2006) 281.

[37]Cremean, above n 19, 41. Admiralty Act 1988 (Cth).


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