Naslov
Standard salvage contract forms: The scope of best endeavours – reasonableness and foreseeability

Autori
Mudrić, Mišo

Vrsta, podvrsta i kategorija rada
Radovi u zbornicima skupova, cjeloviti rad (in extenso), znanstveni

Izvornik
MarIus, no. 424, 2013 / Førsteamanuensis Trond Solvang - Oslo : Sjørettsfondet Universitetet i Oslo Nordisk institutt for sjørett, 2013, 475-505

Skup
The VII ECMLR – Contracts in shipping: Flexibility, foreseeability, reasonableness

Mjesto i datum
Palermo, Italija, 27.09.2012. - 28.09.2012

Vrsta sudjelovanja
Pozvano predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
salvage ; salvage contracts ; duty of care ; best endeavours

Sažetak
The Paper examines the contractual duty of a salvor to perform with best endeavours while engaged in salvage operations, as required by a number of standard salvage contract forms in use, such as the LOF, Scandinavian Salvage Contract, MARSALV Form, 1994 China Form, 1991 JSE Form and the TOF. The standard of ‘best endeavours’ is compared to the standard of ‘due care’ as promulgated by the 1989 Salvage Convention, and to the standard required by those standard salvage contract forms according to which a different criteria of salvor’s performance is expected, such as is the case with the Boat Owners’ Associations of the United States Standard Form Yacht Salvage Contract and the MAK form. The purpose of the examination and comparison is to determine what the salvor’s ‘reasonable’ conduct consists of, as compared with the principle of reasonableness as found in the common law and civil law jurisdictions. As neither the 1989 International Salvage Convention nor the commonly used salvage forms define the contents of the standard of care, the salvor’s performance is governed by the general non-contractual and contractual liability rules, subject to the particularities of salvage services, depending on whether the main salvor’s obligation is an obligation of result or an obligation of means. Whereas the 19th and early 20th century salvor’s duty of care corresponded to that of an ordinary seaman, the development of the tort of negligence and professional liability rules in the second part of the 20th century created a division of performance expectation between professional and non-professional salvors, with different consequences in terms of the scope of the overall liability exposure. The 1989 Convention introduced two separate duties of care, one concerning the general salvage operation and the other concerning the environmental services performed during a salvage operation. The duty to perform with due care while protecting the environment was made mandatory, causing a possible overlap with a general duty to protect the object of salvage. Coincidently, a number of commonly used salvage forms incorporate a clause on the exclusion of liability, this being in direct contradiction with the 1989 Convention and general domestic contractual and non-contractual liability rules.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

Napomena
Ovaj rad, uz poneke minimalne iznimke, odlukom uredništva časopisa The Journal of International Maritime Law i MarIus, objaviti će se u oba časopisa.

POVEZANOST RADA