In Westar Marine Services v. Heerema Marine Contractors S.A.1, a flotilla of craft moored in San Francisco Bay consisted of three barges and a large oil drilling rig. The flotilla began drifting towards a bridge under which the rig could only have passed at low tide and if partially submerged. In response to distress calls, a tug intervened and rendered services in respect of which salvage was subsequently claimed. The Californian court hearing the case naturally recognized that a salvage reward was due. The significance of the case lies, however, in Lynch, D.J.’s rejection of “prevention of liability to third parties [such as the bridge owners and users of the bridge and shipping lane], the public interest, or ‘benefits to the shipowner’” from the list of factors relevant to the award. The question also arises: to what extent should an English court adopt this approach2?

The governing law in the case was the Brussels Salvage Convention 19103, which, having been ratified by the United States, was, under the Constitution, part of the supreme law of the land. And none of the factors under examination were mentioned in the Convention. In admitting in principle a claim to salvage on an inland waterway recently in The Goring 4, the English Admiralty judge, Sheen, J., felt himself obliged to decide consistently with the Brussels Convention. However, as it was considered to reflect the then current English law, the Convention was mainly not enacted into English municipal law, so its provisions and a fortiori the decision of Lynch, D.J., cannot be considered authoritatively to state modern English law in a similar case.

The law of salvage applies to recognized “subjects of salvage”; and the salvage reward is assessed on the basis of “salved values”—the value of the property salved at the termination of salvage services. The total salved value is the maximum sum that can be awarded to the salvor, who is in practice unlikely to recover more than half that amount. Subjects of salvage include not only tangible property. Thus, Lynch, D.J., conceded that freight and passage money were recognized subjects of salvage and therefore includable within salved values. He also considered U.S. v. Cornell Steamboat Co.5, where salvage was recovered from the U.S. Government because, by saving a cargo of sugar from fire, the salvors had spared the government from liability to refund duty paid on the sugar. Lynch, D.J., classified liability for repaying the duty in Cornell and liability to repay prepaid freight6 as both being for finite and predetermined amounts closely related to the value of the tangible cargo on board the ship. He thus distinguished them from something as speculative or contingent as possible liability to third parties, which, not being mentioned in the Brussels Convention, he rejected as a factor delimiting salved values.