One of the more popular concepts of new space advocates is the idea of commercial companies performing salvage of derelict satellites and space debris in orbit for profit. The idea of salvage in outer space is echoed by futurists and enthusiasts alike both latching onto and comparing the maritime concept of salvage to a future outer space activity. However, the popular idea of salvage in outer space springs from a misconstruction of what salvage is in the maritime context and unfamiliarity with international space law.
Understanding “Salvage” and the “Law of Finds” in the Maritime Context
The purpose of salvage in the context of maritime law is to encourage persons to render prompt, voluntary, and effective service to ships at peril or in distress by assuring them compensation and reward for their salvage efforts. Rather than obtaining title to the salvaged property, a salvor acts on behalf of the property’s owner, thereby obtaining a security interest or lien against the property saved. See R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel, 742 F.Supp.2d 784, 793 (E.D.Va. 2010).
In other words, salvage does not entitle the salvor possession; it does entitle the salvor to compensation for return of the property to its owner. The legal concept of salvage relied upon by futurists and enthusiasts alike is misapplied and is confused with the maritime concept of the law of finds, which allows a finder to acquire title to abandoned property by reducing the property to personal possession. See Odyssey Marine Exploration, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 727 F.Supp.2d 1341, 1344 (M.D.Fla. 2010). In other words, to gain possession, an individual would have to do so through the law of finds and not salvage.
Contract Salvage and Pure Salvage
There are two types of salvage recognized by maritime law: There is contract salvage where a salvage service is entered into between the salvor and the owners of the imperiled property, or by their respective representatives, pursuant to an agreement, written or oral, fixing the amount of compensation to be paid whether successful or unsuccessful in the enterprise. See New Bedford Marine Rescue, Inc. v. Cape Jeweler’s Inc., 240 F.Supp.2d 101 (D. Mass. 2003) at Footnote 1, citing 3A Martin J. Norris, Benedict on Admiralty § 159 (2002). This entails the law of contracts with bargained for legal detriment, i.e. consideration.
In contrast, there is pure salvage, which is a voluntary service rendered to imperiled property on navigable waters where compensation is dependent upon success, without prior agreement or arrangement having been made regarding the salvor’s compensation.” Id. Because pure salvage not involve bargained for legal detriment, the compensation due falls under the theory of quantum meruit, which is a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract.
Federal Warships and the Conundrum of Article VIII
Federal warships in distress or wrecked are not considered salvageable nor subject to the law of finds, unless they are expressly abandoned. See Sea Hunt v. Unidentified Shipwrecked Vessel, 221 F.3d 634, 643 (2000). This principle is not a product of treaty but rather is a precept of customary international law. However, Article VIII of the Outer Space Treaty takes a similar tack to this customary norm and creates an express tenet that grants a nation continuous possession over an space object registered under its jurisdiction:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.
In other words, once a space object is launched into outer space, it continues to be registered to the country that launched it even it returns to earth much in the same way a federal warship continues to belong to its nation of origin. This concept applies to space objects owned by non-governmental organizations and governmental organizations alike. The effect of this continued ownership and jurisdiction is the concept of law of finds and pure salvage found in the maritime concept are not applicable to outer space.
At first blush, this would appear to create a barrier to commercial entities to engage in future activities to perform activities resembling salvage in outer space, in particular for activities involving the removal of space debris. However, while an outer space analog of pure salvage and the law of finds would be precluded because of Article VIII, there does exist the potential for a form of salvage based on contract salvage to be employed.
Further Steps Needed
While this blog post will not go into the specifics of how contract salvage in outer space would work, a critical first step is for Congress to amend Title 51, Chapter 509. The present issue is the FAA does not possess the authority to license an activity with the characteristics of salvage. Indeed, until Congress amends Title 51, Chapter 509 to grant the FAA broader authority, the idea of contract salvage in outer space may not be realized aside from technology demonstration missions.
As an addendum to this blog post, I created a narrated video presentation that addresses this topic in more detail.