Foreign State Immunity and Marine Wrecks

Abstract

An important issue in maritime law is the right of a salvor to retrieve cargo from a sunken foreign state-owned vessel. Specifically, can a foreign state ship or cargo owner rely on the defence of foreign state immunity to resist a claim for a salvage reward? A plea of immunity can arise at various stages of litigation: at the time of establishing initial jurisdiction to adjudicate the claim, at the time of enforcement of any judgment and when a court seeks to apply its laws of salvage to the foreign state (prescriptive jurisdiction). In the case of adjudicatory and enforcement jurisdiction it is well accepted that a foreign state only enjoys immunity when the vessel or cargo was found not to have been used for commercial purposes. In the case of prescriptive jurisdiction there is a strong body of state practice and commentary supporting immunity from national salvage laws on a similar basis but the position is less clear in the case of marine conservation laws.