This was a special appeal filed by the appellant against a judgment of the State Court of Appeal of Rio de Janeiro (TJRJ). The special appeal arose out of an enforcement action to reimburse amounts spent by the respondents in the salvage of the Angra Star, owned by the appellant. The TJRJ confirmed that total compensation for salvage of BRL 404,736.50 should be awarded, apportioned between the various respondent salvors appearing before it. The appellant challenged the TJRJ's judgment on two grounds, characterised as 'supervening facts capable of modifying the obligation provided for in the judicial executive title, which gave rise to a manifest excess of execution', namely: (a) the second judicial auction of the Angra Star actually only produced BRL 79,177.63; and (b) the appellant faced a further claim filed by Petrobras Transporte SA (Transpetro) (which had not yet been finally determined) for salvage of the same vessel, a relevant fact that should influence, and should be factored into the distribution of the total amount due for salvage. The TJRJ dismissed the appellant's interlocutory appeal.

In its special appeal from the TJRJ to the Superior Court of Justice, the appellant argued that the judgment against it should be based on the value of the vessel at the second judicial auction; and that the total amount of the judgment against it should be reduced by the compensation action proposed by Transpetro, whose cause of action arose from the rescue of the same vessel.

Held: The special appeal is dismissed.

In general terms, maritime law is embodied in the 'complex of legal rules that regulate maritime commerce and navigation at sea'; and, as academic doctrine highlights, an important part of this legal branch comprises of national and international standards related to vessel rescue. Scholars teach that maritime salvage presupposes three requirements: (i) assistance to a ship or other asset with an economic value (differentiating itself, therefore, from rescuing people); (ii) the need for a specific act of rescue; and (iii) the indispensable requirement of danger.

At a national level, this topic is regulated by Law No 7,203/1984, which provides that salvage must be understood as an act or activity carried out to assist and save a vessel, property, or asset in danger at sea, in ports, or on inland waterways (arts 1.1 and 1.2). Regarding remuneration for providing salvage services, Law No 7,203/1984 establishes that 'those who provide search and rescue services and who participate in assistance and salvage operations will be entitled to remuneration' (art 8). As a rule, the remuneration due for salvage services will be subject to agreement between the parties or, where there is no agreement, determined by arbitration or a competent court. In any case, it is imperative that 'any act of assistance and rescue that has a useful result will give right to equitable remuneration, which cannot exceed the value of the vessel, things, or goods saved' (art 8.2).

To the same effect is art 1 of the LLMC 1924, promulgated in Brazil through Decree nº 350/1935 (emphasis added):

The liability of the owner of a seagoing vessel is limited to an amount equal to the value of the vessel, the freight, and the accessories of the vessel, in respect of:

1. Compensation due to third parties by reason of damage caused, whether on land or on water, by the acts or faults of the master, crew, pilot, or any other person in the service of the vessel;
2. Compensation due by reason of damage caused either to cargo delivered to the master to be transported, or to any goods and property on board
3. Obligations arising out of bills of lading;
4. Compensation due by reason of a fault of navigation committed in the execution of a contract;
5. Any obligation to remove the wreck of a sunken vessel, and any obligations connected therewith;
6. Any remuneration for assistance and salvage;
7. Any contribution of the shipowner in general average;
8. Obligations arising out of contracts entered into or transactions carried out by the master, acting within the scope of his authority, away from the vessel's home port, where such contracts or transactions are necessary for the preservation of the vessel or the continuation of the voyage, provided that the necessity is not caused by any insufficiency or deficiency of equipment or stores at the beginning of the voyage.

Provided that, as regards the cases mentioned in Nos. 1, 2, 3, 4, and 5 the liability referred to in the preceding provisions shall not exceed an aggregate sum equal to 8 pounds sterling per ton of the vessel's tonnage.

It should also be noted that Brazil has promulgated the Salvage Convention 1989 through Decree No 8,814/2016. This Convention establishes salvors' rights, as well as the conditions and criteria for adjusting their reward, in art 13.

In view of the aforementioned rules, it is concluded that salvors are entitled to remuneration for assistance to the vessel. When there is no agreement between the parties regarding the amount due, an assessment of the value of the asset must be carried out. Once that value has been estimated, the quantum determined as the salvage award cannot exceed it.

Proving excessive execution depends on an inconsistency between the respondents' applications and the judgment, in accordance with the criteria established in the executive title. However, this requirement has not been demonstrated in this case, since the Court of first instance complied with the legal parameters and determined compensation in accordance with the assessment carried out.

Furthermore, the sale at public auction of the vessel, at a time after the judgment and for a quantum lower than the valuation, also does not constitute a supervening cause to extinguish or modify the appellant's bligation, since the value of the asset had already been the subject of a judgment.

It is important to remember that the rendered judgment is res judicata to the parties between whom it is given, with no possibility of 'readjusting' it in a special appeal arising from an objection during the judgment enforcement phase, and the duly constituted executive title cannot be adjusted in order to 'include' another salvor – who had not even participated in the original claims - in the proportional distribution of the quantum.