Nature-conscious Crisis Response: On Rewarding the Guardianship of Marine Salvage

By Melina Mamigonian and James Hone

Earth law comprises many approaches to a reorientation of traditional environmental law, including standing issues, a variety of human environmental rights, and the Rights of Nature—of which Ocean Rights is a more recent and rapidly growing example. Earth law also incorporates various kinds of private law, including corporate governance. International shipping and related commercial marine industries, like marine salvage​​—the field responsible not only for salvaging shipwrecks but also for mitigating marine pollution and similar environmental disasters—may be seen to have dim reputations for not incorporating the  ecocentric principles or practices espoused by Earth law advocates. But this need not paint such enterprises with a hopeless complexion. In fact, Nature has a potentially powerful advocate in the marine salvage industry.

It is possible to normalize considerations of harm to Nature by accounting not only for the property and monetary losses related to a marine incident but also the intrinsic value and interests of marine ecosystems damaged in such incidents. In fact, governance within an industry such as marine salvage can help lead the way to a more ecocentric relationship with the ocean. We see such caretaking examples of industry behavior elsewhere as well—in forestry and fire management, for example—demonstrating clear potential alignment in this context with Earth law principles. Evidence of financial institutions similarly considering and evaluating such relationships with Nature includes products enabling risk management and eco-restoration.

This blog piece explores salvors (those who practice marine salvage) as ocean protectors on the front line of Nature conscious governance in the marine context.

By Nature conscious governance, we refer to “the inclusion of the representation, the voice, the vote and the interests of Nature as stakeholder, in the decision-making processes, governance structures and systems of corporate and business entities.”[1] (See the Onboarding Nature Toolkit for much more on this topic.) Though salvage does not as yet exemplify all of these facets, in this piece we explore the extent to which the marine salvage industry has embraced complex issues of Nature inclusive decision-making and has sought, in its campaign for greater recognition and profitability, forms of Nature inclusivity in its governance structures. In particular, this piece explores the role of Nature conscious and Nature inclusive governance from the perspective of salvage remuneration.

What is marine salvage?

Marine salvage of a fishing boat off the coast of Estonia in 1973. Photo by Jaan Künnap. CC BY-SA 4.0

Marine salvage is a centuries-old industry concerned with rescuing vessels, property, and lives at sea in the wake of marine incidents like collision, fire, or wreck. From the merchant traders of the ancient Mediterranean to the impacts of twenty-first-century global supply chains, this has been a human-focused enterprise, and salvor remuneration for such risky and highly sensitive work has been predicated on the value of property. That is, payment is based on the financial value of property salvaged rather than the environmental or social goods conferred. This has begun to change within the industry itself; here we explore why that change is necessary, yet so far inadequate, and how the interests of Nature and salvors converge in ways that justify revisiting current law and practice.

To warrant a salvage action, affected property must be in peril, the salvor’s service must be voluntary, and it must be in some way successful: if there is no “cure,” there is no pay.[2] Private salvors, historically independent or even family-owned businesses, have deployed their skills in expectation of fair remuneration in financial accord with the property restored, but in recent decades contractual regimes have become complex and the role of pollution even more so. According to the International Salvage Union (ISU),[3] recent revisions to the law have reprioritized the significance of the environment in relation to property, and such changes can help to shift marine vessel-based businesses toward sustainable practice. Indeed, salvage has been said by some to demonstrate that a cultural shift in commerce can yield profound mutual benefit and facilitate more peaceful and sustainable coexistence between Nature and business.[4] Others have even called it “an inflexion point in maritime law due to its response to marine protection,”[5] the turning point in an ongoing arc towards progress.

It is noteworthy that, despite a history in some jurisdictions of state-sponsored naval salvage, and pressures on States from the United Nations Environmental Programme (UNEP), the International Maritime Organization (IMO), and others to develop coordinated responses in marine management, successful salvage remains predominantly a private enterprise due to the “inability of the majority of coastal states to train, equip, and maintain a domestic salvage capacity.”[6] This means that salvage operators feel, perhaps even more acutely than other contractors, the commercial changes driven by international conventions on climate change and the environment,[7] biodiversity,[8] and ecocide.[9] The law of salvage has accordingly responded to these interests and pressures with the reformation of salvage effectively beginning in the late twentieth century.[10]

Why salvage is needed: significant incidents

On March 24, 1989, the tanker Exxon Valdez ran aground on Bligh Reef in Prince William Sound, Alaska. Within six hours of the grounding, the Exxon Valdez spilled approximately 10.9 million gallons (259,500 barrels) of its 53 million gallon cargo of Prudhoe Bay crude oil. The oil would eventually impact more than 1,100 miles of non-continuous coastline in Alaska, making the Exxon Valdez the largest oil spill in U.S. waters at the time. Photo credit: https://en.wikipedia.org/wiki/Exxon_Valdez#/media/File:Exxon_Valdez_Oil_Spill_(13266806523).jpg

The modern era has seen significant marine damage due to oil pollution; the most familiar incidents include the Torrey Canyon (The English Channel, 1967), Amoco Cadiz (Brittany, 1978), Exxon Valdez (Alaska, 1989), and Deepwater Horizon (Gulf of Mexico, 2010). Long term studies of these spills show how they have been more or less damaging, depending on where they occurred and how the ocean absorbed or dissipated the oil. Meanwhile, regulators and unions have negotiated an industry response through legislation and regulation in this area. There is also a developed oil spill management industry.[11] However, the harms of fossil fuel spills are only one type of pollution wrought by ocean-going vessels,[12] and marine salvage is placed to manage many kinds of accidents.

The most recent Annual Pollution Prevention Survey (2024) of the ISU includes figures for prevention of pollution by bunker fuel, crude oil, refined oil products, chemicals, bulk polluting or hazardous materials, and other pollutants, as well as wreck removal.[13] According to this survey, the marine environment was protected from 2.4 million tonnes of potentially polluting cargo by voluntary salvage services.[14] This reflects a relatively consistent level of protection since 2019, despite declining numbers of services rendered and variable levels of pollutants in different categories each year. These numbers reflect the necessity of the salvage industry,[15] not only for Nature’s purposes but also mitigation of commercial risk.

While a major financial settlement (e.g., Deep Water Horizon) may assuage commercial interests, such an approach is not an efficient mode of managing accidents in shipping or other marine vessel-based industries where various forms of pollution may occur. While air pollution and decarbonization are at the forefront of responses to climate change, including recent maritime regulation to tackle these,[16] the ocean is an underappreciated and extraordinary force in carbon management, and protecting the whole system is essential to overall decarbonization and reduction of GHGs.[17] Indeed, 16 Particularly Sensitive Sea Areas[18] have been identified for avoidance of shipping activities in general, not just GHG emissions.

The law of salvage

The International Convention on Salvage 1989 (ICS) (in force 1996) recognizes the issue of marine environmental management in the shipping context through a split concept of remuneration:

●      standard compensation to reflect property value salved

●      special compensation to reflect exposure to environmental risk.

However, neither this law nor the contractual regimes, insurance mechanisms, or case law developments have honored the central fact that salvors themselves have long known, and have more recently begun to campaign on: salvage is not merely a service situated in the environment, or which is exposed to the risks of the environment; it is a service to the environment, and in support of a biocentric view of law.

Though salvage remuneration is payable without contract under freestanding maritime law and under the ICS also applicable through national laws, its principle means of taking effect is through salvage contracts between property interests and salvors. The balancing act therefore between property and environment takes effect through commercial arrangement, and thereby the salvage award. The common approach here—represented most by the near-ubiquitous Lloyds’ Open Form (LOF),[19] an English law agreement which reproduces the ICS’ aforementioned remuneration model—disadvantages the environmentally conscious salvor by making more than merely proprietary efforts a risk to payment. For example, in the case of The Renos, the UK Supreme Court upheld the distinction between environmental contributions and rescue and repair (to property) to the detriment of the salvors’ ultimate award.

The Lloyds’ market and IMO both claim that this disadvantage is contrary to the aims of the law, a fact which led the industry to introduce an addendum clause which has itself now become near-ubiquitous—the Special Compensation Protection & Indemnity Clause (SCOPIC).[20] SCOPIC’s popularity has not altogether prevented the decline of the LOF, however, arguably due to its lack of enabling salvage to realize its Nature conscious potential.[21]

There are, under this regime, two forms of compensation for one comprehensive service. Under Clause 5 of SCOPIC, shipowners owe salvors “special compensation” through liability insurers and standard compensation through property insurers as a matter of payment for salvage services. In other words, there are two bases of the salvors’ reward and so two bases of liability to expenditure for the shipowner: one based in Article 13 of the Convention concerning property, and the other based in Article 14 concerning the environmental contributions made by salvors. Yet under SCOPIC, both are assessed and owed together.

This co-extensive aspect to the compensation provides an argument made by most leading commentators on the law of marine salvage that the environmental and proprietary aspects are joint purposes of the venture. This position supports a strong relationship to concepts of sustainability, and some relationship to Nature conscious governance. Regrettably, this position has been rejected in the UK by the Supreme Court, which asserts a kind of primacy for property as a sole purpose, with environmental contributions subordinated, or at least sidelined, for the purposes of assessment.[22]

The Renos: Legal tensions between commerce and Nature

On The Renos’ maiden voyage, a destructive engine fire caused “significant” damage and forced the vessel to dock in Arabiya and then Suez on the Egyptian coast. Its owners some time later decided to issue a notice of abandonment (NOA) in order to recover through insurance the substantial value of their investment. An intense flurry of activity and heavy involvement of insurers ensued, and might fairly have led a passing observer to assume that whether the vessel was a partial or total loss would have been one of the earliest determinations made. In fact, this question was only resolved through litigation.

The Renos case was primarily concerned with the legal question of constructive total loss (CTL) and whether insurance payment, based on the time of notification, was appropriate. Secondarily, but more significantly for present purposes, it addressed the SCOPIC question of environmental compensation for salvage. When, some five and a half years after the initial fire, the case reached the UK Supreme Court on June 12, 2019, it was decided that the vessel had been a CTL. In determining this, however, the UKSC broached a question of much wider significance for the second point to be answered—what was included in the “cost of repairing the [vessel’s] damage”?

For the UKSC, the answer was that environmental contributions were not part of that cost. Despite his holistic description of SCOPIC Clause 5 remuneration (“the totality of the services provided, including those required for the protection of the environment,”[23]) Lord Sumption’s view was that the environmental contributions of salvors were practically distinct, as responsibilities and as costs for the shipowner, from their efforts to rescue and “repair” the vessel’s damage. A vessel must be rescued to be repaired, he argued, but it need not necessarily be rescued in a manner that respects Nature for that to occur.

That position has a practicality and commerciality to it which is understandable, but it is plainly inadequate, and from more than just the ecological point of view. It is arguable that the total damage done in such an accident includes both the harm to property and the consequent harm inflicted by the property upon other interests, including Nature’s. For example, in a car accident, the fire caused by the accident damages or destroys the car and injures passengers and other road-users, but may also ignite brush on the side of the road, causing ecological catastrophe. How these discrete yet related harms are valued is thus at issue in Nature conscious assessment and contracting, as the Renos case illustrates. Though some of that harm may be more or less remote, it is ascertainable in reasonable degrees, as we can see in any insurable accident that may involve different agents and potential caretakers whose interests will anticipate various types of harm.

The circumstance of a car moving along a road is analogous to that of a ship moving through the ocean, where negligence may be involved. Who is liable for harm to the commons, whether because they owe a duty of care or by virtue of strict liability (that is, legal culpability without a “mental component” such as negligence), may become a relevant question where there exists a claim or right on the part of Nature (or in this case, more specifically, the ocean). Such obligations, increasingly recognized under convention, statute, and custom, are easily borne and mitigated by the salvage process because marine incidents or conditions require intervention in Nature’s interests, not just the interests of property. Wreck removal, for example, is a problem not only for shipping safety and inshore state waters, but for the health and safety of the ocean ecosystem.[24]

The degree of risk incurred in such cases where lawful activity is undertaken must therefore be pre-emptively measured to determine the scope of duty, and thus ways to mitigate said risk. This is a central difficulty for salvors, who face at once a minimization of the environmental goods they confer by inadequate remuneration, and a costly punishment of the impacts they must contend with through civil and criminal liability. To be paid for the environmental services they conduct, and to minimize risks (not just of lost reward, but of liability), salvors must embrace and center Nature. By letting Nature inform their decisions and obligations, salvors, shipowners, and cargo owners can bring Nature onto their side in their endeavors, enabling more appropriate financialization of their work. Modern, profitable salvage, which rewards rather than punishes environmental contributions, is salvage that brings into decision-making both risk evaluation and (crucially) compensation for protection of that very environment. It is, in other words, Nature conscious salvage.

Nature governance in salvage

The environmental protection advocated for in salvage at present is not absolutely defined: the salvor’s obligation to protect Nature is confined to the time and, in a vaguer sense, activities that make up pursuit of property salvage (see Clause 10 SCOPIC; Clause A LOF 2024). These factors contribute to the salvor’s decision-making when assessing risk, setting priorities, and anticipating reward. ICS and SCOPIC have attempted to improve the way this equation prejudices property over Nature. Yet, at worst, this was never successful; at best, it has been outpaced by new environmental liability risks of the kind salvors and property interests both wish to avoid, including those which arise as a result of bad actors and environmental harms that are less foreseeable.

The conferral of environmental protections, including through the intended use of the SCOPIC clause in salvage, is the conferral of a form of rights that need not require personification. Rather, the correlative of protection, if we look at human law from the opposite end, if you will, is wellbeing. That wellbeing is potentially an arguable right.[25] That Nature’s wellbeing is affected negatively in the case of a marine casualty, the prerequisite of a salvage operation, raises the question of the interrelationship between the property owned by humans and the arguable rights and welfare of the environment through which that property moves. Ocean shipping uses and damages Nature, causing disruption to systems and life both known and unknown. The protection of Nature’s autonomy in decision-making processes is essential to reconceptualizing what the law has presumed to be “of use” or “useless” in salvage.

The Nature conscious governance approach, alongside other Earth law approaches which seek to introduce representation or rights for the ocean, can help align commercial ventures more harmoniously and sustainably with choices made by natural beings and systems. In doing so, these approaches advantage Nature’s interests and salvors’, but also those of shipowners, cargo owners, and their insurers. This is so because, as a matter of reducing future expenditure, insurers’ interests weigh in favour of salvors acting so as to minimize the need for latter environmental services (whether their own, or those of wreck removal specialists and state authorities). Because Nature conscious governance encourages pre-emptive risk management when it comes to Nature impact[26] so as to prevent harm to Nature’s wellbeing or rights, it mitigates both this possibility and insurers’ liability for other damage to property as well.[27]

Commercial interests are deeply invested in Nature, and marine salvage, in its ability to protect Nature from human harms arising from said interests, can serve a noble purpose by alleviating the potential for an antagonistic relationship between the ocean and the ships that use and exist within it. In doing so, salvage provides an acute illustration of the interrelationships between the human commercial and material enterprises which can collaboratively evaluate and mitigate risk, and Nature. The field of marine salvage has an opportunity to re-envision and realize such interdependency to mutual benefit.

If you are an individual or organization looking to learn more about the Nature conscious governance concepts mentioned in this article, you can get in touch with the Nature Governance Agency at https://www.naturegovernance.org/contact.

Pursuant to developing this work regarding insurance and decision making in a future piece, we thank Jason Bennett of ABL for providing illuminating insights on the role of Special Casualty Representatives (SCRs) and for helping to put the industry in context from a practitioner’s perspective.

Citations

[1] B Lab Benelux, Earth Law Center Nature Governance Agency, Nyenrode Business Universiteit, ‘Onboarding Nature Toolkit’ (2024) Nature Governance Agency. <https://www.naturegovernance.org/onboarding-nature-toolkit> last accessed 07 June 2025.

[2] Brussels Convention for the Unification of Certain Rules with Respect to the Assistance of Salvage at Sea, 1910; Kennedy and Rose, The Law of Salvage (2002) Sweet and Maxwell, 21, 26, 28, 827.

[3] Capt. Mark Hoddinott, ‘Reformation of the Marine Salvage Industry’ (2016) International Salvage Union: www.marine-salvage.com/media-information/conference-papers/reformation-of-the-marine-salvage-industry/ last accessed 24 May 2025; see also United Nations Convention on the Law of the Sea (UNCLOS) (Articles 192 and 194 in particular) and ‘International Tribunal on the Law of the Sea (ITLOS) Advisory Opinion on Climate Harm and the Marine Environment: A Summary’ (24 May 2024): <www.justiceinitiative.org/newsroom/itlos-advisory-opinion-on-climate-harm-and-the-marine-environment-a-summary> accessed 5 June 2025.

[4] Durand M. Cupido, “The Environment in Shipping Incidents” in Onyeka Osuji, Franklin N. Ngwu and Dima Jamali, ‘Corporate Social Responsibility and Sustainable Development Country Cross-Studies’ (2019) Institutions, Actors and Sustainable Development, Cambridge University Press. <https://www.cambridge.org/core/books/abs/corporate-social-responsibility-in-developing-and-emerging-markets/environment-in-shipping-incidents-salvage-contracts-and-the-public-interest/93FD78F87E776BC2EFF7C30B842F476B> last accessed 29 May 2025.

[5] Paula Saez Alvarez, ‘From maritime salvage to IMO 2020 strategy: two actions to protect the environment’ (2021) Marine Pollution Bulletin Vol. 170, September 2021, 112590. Science Direct, Elsevier <https://doi.org/10.1016/j.marpolbul.2021.112590> last accessed 29 May 2025.

[6] Jasenko Marin, Miso Mudric and Robert Mikac, “Private Maritime Security Contractors and Use of Lethal Force in Maritime Domain” in Gemma Andreone (Ed.), The Future of the Law of the Sea: Bridging Gaps Between National, Individual and Common Interests (2017) Springer Nature, 194.

[7] See, e.g., International Convention for the Prevention of Pollution from Ships (MARPOL), 1973; International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION), 1969. More generally, see, e.g.: United Nations Framework Convention on Climate Change, 1992; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973.

[8] See, e.g., Convention on Biological Diversity, 1992.

[9] See, e.g., Directive of the European Parliament and Council on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (Environmental Crimes Directive), 2024.

[10]Capt. Mark Hoddinott, ‘Reformation of the Marine Salvage Industry’ (2016) International Salvage Union: www.marine-salvage.com/media-information/conference-papers/reformation-of-the-marine-salvage-industry/ accessed 21 May 2025.

[11] A general introduction can be found at the International Tanker Owner Pollution Federation (ITOPF) website < https://www.itopf.org/about-us/> last accessed 29 May 2025.

[12] For an introductory overview of harms done by oil spills, see National Oceanic and Atmospheric Administration (NOAA), Oil spills <https://www.noaa.gov/education/resource-collections/ocean-coasts/oil-spills> last accessed 29 May 2025. For a more thorough exploration, see Mace G Barron et al, ‘Long-term ecological impacts from oil spills: comparison of Exxon Valdez, Hebei Spirit and Deepwater Horizon’ (2020) PMC: <https://pmc.ncbi.nlm.nih.gov/articles/PMC7397809/> accessed 29 May 2025.

[13] ‘Pollution Prevention Survey Shows Importance of Sustainable Salvage Industry’ (15 April 2025) Maritime Fairtrade: <https://maritimefairtrade.org/pollution-prevention-survey-shows-importance-of-sustainable-salvage-industry/> accessed 21 May 2025.

[14] Ibid.

[15] Jim Elliott, ‘The Marine Salvage Industry: Proven in Preventing Oil Spills’ (3 December 2021) 1 International Oil Spill Conference Proceedings 684710: <https://www.mendeley.com/catalogue/cad48555-8474-3fba-836e-4edc5c769f6d/> accessed 10 July 2025.

[16] Hamilton Locke, ‘What the IMO’s 2025 reforms mean for global shipping’ (13 May 2025): <www.lexology.com/library/detail.aspx?g=229544f9-571f-44d0-8b8a-04f3a0d011b9> accessed 25 May 2025.

[17] NOAA, National Centers for Environmental Information, ‘Quantifying the Ocean Carbon Sink’ (26 August 2022, updated 19 July 2024):<https://www.ncei.noaa.gov/news/quantifying-ocean-carbon-sink> accessed 4 June 2025; Wang, Quang; Ren, Feng; Li, Rongrong, ‘Uncovering the world’s largest carbon sink – a profile of ocean carbon sinks research’ (20 February 2024) 31 Environmental Science and Pollution Research 20362–20382.

[18] IMO, ‘Particularly Sensitive Sea Areas’ <www.imo.org/en/OurWork/Environment/Pages/PSSAs.aspx> accessed 1 June 2025.

[19] Lloyds of London, Lloyds Standard Form of Salvage Agreement 2024 – No Cure, No Pay “LOF 2024”. https://assets.lloyds.com/media/fea54e1f-eb76-497b-95dd-d2bee685ff85/LOF%202024%20-%20For%20website%20-%2022.05.2024.pdf [PDF].

[20] Lloyds of London, SCOPIC Clause “SCOPIC 2020”. https://assets.lloyds.com/media/d948a2b7-ad5c-4794-93bc-e508085b5fd5/SCOPIC-2020.pdf [PDF].

[21] Alvares (2021).

[22] Sveriges Angfartygs Assurans Forening (The Swedish Club) and others v Connect Shipping Inc and another, The Renos [2019] UKSC 29 (12 June 2019). <https://supremecourt.uk/uploads/uksc_2018_0054_judgment_a034d4b867.pdf> accessed 24 May 2025.

[23] Ibid., [22].

[24] IMO, Nairobi International Convention on the Removal of Wrecks (adopted 18 May 2007, entered into force 14 April 2015): (text; not in force in UK) <www.gov.uk/government/publications/ts-no302016-the-nairobi-international-convention-on-the-removal-of-wrecks> accessed 1 June 2025.

[25] Charles Reich begins to describe this logic in the context of government largess and individual rights as forms of wealth: ‘The New Property’ (1964) 73(5) Yale LJ 733-87, 739.

[26] In the United Nations Environment Programme ‘Insuring a Nature Positive Future’ (December 2024) report, the UNEP Finance Initiative highlights the role that proactivity and preemptive action in risk management can play in enhancing effective partnership between insurers and businesses when it comes to impact of commercial activity on Nature, with a particular view to the Global Biodiversity Framework. You can download and read the full report here: <https://www.unepfi.org/industries/insurance/insuring-a-resilient-nature-positive-future-global-guide-for-insurers-on-setting-priority-actions-for-nature/> (last accessed 7 June 2025).

[27] The ITC Hulls 1/10/83 clauses stipulate that an H&M insurance policy covers a range of losses which are mitigated by salvage. These include: ‘loss of or damage to the subject-matter insured caused by accident in loading, discharging or shifting cargo or fuel [...] negligence of repairers …. [who are] not an Assured hereunder … provided that such loss or damage has not resulted from want of due diligence by the Assured, Owners or Managers or Superintendents or any of their onshore management’ (Clause 6.2) and ‘loss of or damage to the vessel caused by any government authority acting under the powers vested in it to prevent or mitigate a pollution hazard, or threat thereof, resulting directly from damage to the Vessel for which the underwriters are liable…’ (Clause 7).