With the increasing threat of human activities to the marine environment, marine environmental problems have attracted global attention, and all countries in the world have taken active measures to protect the marine environment and reduce or avoid pollution to the marine environment. As a kind of marine environmental pollution, marine oil pollution caused by ship accidents and frequent sewage treatment operations is one of the main pollution sources. Therefore, when such accidents happen, it is particularly important to take reasonable measures to reduce or avoid marine pollution damage in time, which actually puts forward higher requirements for maritime rescue: how to rescue ships that may cause marine environmental pollution damage in time, how to encourage rescuers to actively rescue, and how to clarify the rights and obligations between rescuers and rescued people. These are problems that cannot be completely solved by the traditional rescue system. Therefore, as an ancient legal system, some principles and rules in the rescue system must be constantly developed to better adjust these legal relations.
Judging from the development track of the rescue system, with the enhancement of environmental awareness, the development and improvement of the modern rescue system presents the following characteristics and trends:
First, the principle of voluntariness is relative.
Voluntary means that the salvor's rescue action is not based on legal provisions or contractual stipulations. According to the traditional salvage system, the salvage operation is not voluntary based on legal or contractual obligations, and the salvage relationship in the salvage system cannot be formed, such as the various services provided by the crew to the ship in distress, the guidance of the pilot to the ship, the fire fighting carried out by the national fire department and other administrative acts, because these acts are based on either the contract or the legal obligations. However, with the constant changes of maritime navigation risks, especially after marine environmental pollution has attracted worldwide attention, the voluntary principle in the traditional salvage system has changed obviously. In order to protect their coastal marine environment, when the marine environment may be threatened, coastal countries often take active measures to avoid or reduce the damage to the marine environment. In this case, if the traditional voluntary principle is still strictly applied, the salvor has no right to claim the salvage reward, which is not conducive to encouraging the salvor to take active salvage measures and does not conform to the purpose of maritime legislation.
Second, asking for help breaks through the limitation of "no effect, no return"
According to the traditional custom, the rescue behavior must be effective, which is the premise of the establishment of the right to rescue. If the salvage operation is ineffective, there is no legal relationship between the salvor and the salved person, that is, there is no claim for salvage remuneration and ancillary rights to ensure the realization of this right, such as lien and maritime lien. This is the well-known principle of "no effect, no reward" established by 19 10 Salvage Convention. This principle has been used in the standard form of Lloyd's salvage contract before 1980, and it has also been introduced into article 179 of China's Maritime Code. However, it is obvious that with the constant changes of maritime risks, the principle of "no effect, no reward" can no longer meet the needs of the development of new forms of maritime rescue, especially when rescuing ships or cargo on board that are in danger of polluting the environment, which is not conducive to the implementation of rescue operations.
In order to encourage salvors to actively rescue ships or cargo on board that are in danger of causing environmental pollution damage, reduce or avoid damage to the marine environment and protect the marine environment. Paragraph 14 of Article 1989 of the Salvage Convention stipulates that if the salvor carries out salvage operations on a ship or its cargo which poses a threat to the environment, but the reward obtained according to Article 13 is less than the special compensation obtained according to this Article, he has the right to obtain special compensation equivalent to the expenses from the shipowner according to this Article. This is also the famous "special compensation" clause. This is also stipulated in article 182 of China's Maritime Code: "If the salvor's salvage reward according to the provisions of Article 180 of this Law is less than the special compensation according to the provisions of this article, the salvor has the right to obtain special compensation equivalent to the salvage fee from the shipowner according to the provisions of this article." The famous "safety net clause" was introduced into the standard format of Lloyd's rescue contract in version 1980 based on the principle of "no effect, no reward". According to this clause, even if the salvor fails to rescue the oil-carrying ship in distress or fails to complete the rescue work due to obstruction, as long as the salvor and its employees or agents are not at fault, the salvor can also obtain the salvage fee and the compensation not exceeding 15%, thus limiting the application scope of the traditional principle of "no effect, no reward". However, the safety net clause only applies to the rescue of oil tankers or ships partially loaded with cargo oil, and does not apply to the rescue of other dangerous goods that may damage the marine environment.
Absorbing the legislative spirit of Salvage Convention 1989, the second paragraph of Article 182 of China's Maritime Code also stipulates that if the salvor carries out the salvage operations specified in the preceding paragraph and achieves the effect of preventing or reducing environmental pollution damage, the special compensation that the shipowner should pay to the salvor in accordance with the provisions of the preceding paragraph may be separately increased, and the increased amount may reach 30% of the salvage expenses. The court or arbitration institution accepting the dispute may make a judgment or award to further increase the amount of special compensation if it considers it appropriate in consideration of the provisions of the first paragraph of Article 180 of this Law; However, in any case, the increase shall not exceed 100% of the salvage expenses. "It can be seen that when rescuing ships or goods on board that pose a threat to marine environmental pollution, they are no longer bound by the traditional principle of' no effect, no reward', but implement the special principle of' no effect, no reward'. However, in applying this principle, the salvor must not be at fault. Item 5 of Article 1989 14 of the Salvage Convention stipulates: "If the salvor fails to prevent or reduce environmental pollution damage due to its fault, it may be deprived of the right to special compensation in whole or in part. "Paragraph 5 of Article 182 of China's Maritime Law also has the same provision. It can be predicted that if there is a dispute between the rescuer and the rescued person on whether special compensation must be paid, whether the rescuer is at fault will be one of the focuses of the dispute between the two sides, and the rescuer should prove that he is not at fault, otherwise he will lose the right to special compensation.
Third, the scope of assistance targets has gradually expanded.
With the development of maritime law, the scope of salvage at sea is constantly expanding. Salvage at sea in traditional maritime law mainly refers to the salvage of ships and cargo, while the salvage object stipulated in Salvage Convention 19 10 is limited to ships, cargo carried on board and freight. However, with the development of maritime activities such as shipping, the forms of property in urgent need of assistance are increasing day by day, and the objects of assistance stipulated in maritime law are obviously insufficient. In order to ensure maritime safety and protect maritime property, it is necessary to bring some new maritime property into the category of salvage at sea, such as offshore oil exploration equipment, floating docks and pontoons. In order to adapt to the trend of diversification of maritime property, Salvage Convention 1989 expands the scope of salvage objects to ships and any other property permanently or unintentionally attached to the coastline. At the same time, it also points out that "ships" referred to in this Convention include not only seagoing ships, but also inland river ships, even sunken ships and abandoned ships. China's Maritime Code basically adopts the position of Salvage Convention 1989, in which Article 173 stipulates: "The provisions in this chapter are not applicable to fixed and floating platforms and mobile offshore drilling devices engaged in the exploration, development or production of seabed mineral resources." It is particularly worth mentioning that preventing or reducing environmental pollution damage has become the unique content of 1989 rescue convention. Paragraph 4 of Article 1 of the Convention clearly stipulates "environmental damage", which is defined as a serious accident that has a significant impact on human health, marine life and marine resources in coastal areas, inland waters or its adjacent areas due to pollution, fire, explosion or similar circumstances. It should be pointed out that the Convention does not directly take the prevention or mitigation of environmental pollution damage as the object of salvage, but it is the basis for determining the reward and special compensation for salvage, so in a sense, the prevention or mitigation of environmental pollution damage can be regarded as the indirect object of salvage. Therefore, according to the Convention on Salvage at Sea 1989, the salvor can obtain the right to claim environmental assistance, which some people call the fourth salvage object and the "fourth maritime property". It can be predicted that environmental assistance in the new century will attract more and more attention from legislators and relevant people.
Fourth, encourage rescuers to help the environment.
With the enhancement of people's awareness of environmental protection, especially under the influence of the Amoco Cadiz incident and its judgment, the research on the legal problems of marine environmental hazards caused by ships has been strengthened. On March 1978 and 16, the Cadiz supertanker of Amoco hit the rocks in the English Channel about 25 kilometers off the coast of Brittany in northwest France, and it broke quickly, resulting in all 223,000 tons of oil being discharged into the sea, causing serious environmental pollution. In order to avoid the recurrence of the tragedy, with the joint efforts of people from all walks of life, the International Salvage Convention 1989 put forward the concept of special compensation to compensate rescuers for their efforts and losses in protecting the marine environment, so as to encourage the rescue of ships or cargo on board that are in danger of environmental pollution damage. It is especially difficult for rescuers to rescue ships or goods on board that are in danger of polluting the marine environment. Compared with general assistance, this kind of assistance has higher technical requirements for rescuers. In order to urge the salvor to rescue the ship or cargo on board which is in danger of polluting the marine environment, the salvor's expenses for rescuing the ship or cargo on board should not be considered only when determining the reward for salvage. It is also necessary to make the salvor obtain a certain profit, so that the salvor can constantly update the rescue equipment and train the rescuers, so as to better rescue the ships or cargo on board that are in danger of polluting the marine environment.
It is the obligation of all parties concerned, including the salvors, to reduce or avoid pollution to the marine environment and protect it. Article 8 of the Salvage Convention 1989 stipulates: "The salvor has the following obligations to the owner of the ship or other property in danger:" (1) to conduct salvage operations with due care; (b) When performing the obligations specified in subparagraph (a), prevent or mitigate environmental damage with due care; ……"
Article 8, paragraph 2 (b), stipulates that the owner and master of a ship or other property in danger have an obligation to the salvor to use due care to prevent or mitigate environmental damage in such cooperation. In order to give prominence to the encouragement to the salvors to engage in the salvage operations of ships or goods on board that are dangerous to pollute the marine environment, it is necessary to compensate the salvors for engaging in the salvage operations of ships or goods on board that are dangerous to pollute the marine environment, so the aforementioned "special compensation" system appeared. This is also stipulated in article 182 of China's Maritime Law. At the same time, article 185 of China's Maritime Law also stipulates that the salvor who rescues human life in the rescue operation may not demand remuneration from the rescued person, but has the right to obtain a reasonable share of the salvage money obtained by the salvor who rescues the ship or other property and prevents or reduces environmental pollution damage. In addition, both Salvage Convention 1989 and China's Maritime Code take the skills and efforts of the salvor in preventing or reducing environmental pollution damage as the consideration factors in determining the salvage reward, which makes it necessary to consider not only traditional factors but also environmental factors when determining the amount of salvage. All these emphasize the encouragement for rescuers to help the marine environment from different aspects. Of course, "special compensation" is not a reward for profit-making business, but a kind of compensation fee, which aims to encourage the rescue of ships or goods on board that are in danger of environmental pollution damage.
From the above analysis, we can easily see that various systems in maritime law are constantly developing. It is the trend of maritime law development in the new century to integrate some concepts of environmental protection into the development of maritime law and coordinate the relationship between human beings and the marine environment. The law of the sea, together with other relevant laws, will make its own contribution to environmental protection and the harmony between human beings and the marine environment.