On August 20, 2016, a sailing yacht chartered out by Enjoy Sailing runs aground on the Vrouwezand, a notorious shallow in the IJsselmeer in the Netherlands. The wind is south southwest with a force of 5 Beaufort and the charterer does not feel comfortable. But the rescue is near, because the Odin from the professional Marine Towing and Salvage company Lima Delta offers help, which is accepted by the chartere. The yacht is floating within half an hour and the journey can be continued. Enjoy Sailing receives a salvage invoice of € 4,400.00 and refuses to pay, after which proceedings are instituted in two instances. The subdistrict court finds € 88.00 appropriate, but in the decision given on October 8, 2019 the Court of Appeal Arnhem-Leeuwarden determines the salvage reward on the basis of the legal criteria at € 1,500.
The rules applicable to the salvage contract are laid down in Section 2 of Title 6, Book 8 of the Dutch Civil Code. The provisions in the Dutch Civil Code and are based on the Brussels International Convention On Salvage of 1910, as revised in 1989. The law gives the criteria on the basis of which a reasonable salvage reward must be determined. The main rule is that salvage operations which have had a useful result give right to a reward.
The amount of the salvage reward can be contractually agreed. But especially in risky situations, there is often little time to conclude an agreement. The agreement can also be concluded under abuse of circumstances. Therefore, Article 8: 556 of the Dutch Civil Code stipulates that a contract or any terms thereof may be annulled or modified if the contract has been entered into under undue influence or the influence of danger and its terms are inequitable; or the payment under the contract is in an excessive degree too large or too small for the services actually rendered.
Article 8: 563, like Article 13 of the Brussels International Convention on Salvage, contain the criteria on the basis of which a fair salvage award can be determined:
The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below:
(a) the salved value of the vessel and other property;
(b) the skill and efforts of the salvors in preventing or minimizing damage to the environment;
(c) the measure of success obtained by the salvor;
(d) the nature and degree of the danger;
(e) the skill and efforts of the salvors in salving the vessel, other property and life;
(f) the time used and expenses and losses incurred by the salvors;
(g) the risk of liability and other risks run by the salvors or their equipment;
(h) the promptness of the services rendered;
(i) the availability and use of vessels or other equipment intended for salvage operations;
(j) the state of readiness and efficiency of the salvor's equipment and the value thereof.
The subdistrict court had apparently forgotten to check the law, because the court only takes into account the time of half an hour involved in the salvage operation, and thus comes to a reward of € 88.00. The decision was therefore solely on the criterion under f., so the court erred where it forgot to take the other cirteria into account.. It may be that the subdistrict court was somewhat annoyed by the one sided survey report as presented by the salver, which seemed to be based solely on the salvor' s own statements and was little nuanced. Lima Delta appealed.
Unlike the subdistrict court, the Court of Appeal takes all criteria into consideration. From the submitted meteorological data it follows that there was wind force 5 (and not wind force 6/7 as stated on the salvage form). The film images showed the short waves characteristic of the IJsselmeer, which lead to the ship heaving while it touched the ground. So there was a risk of damage. The fact that the charterer's wife was panicking was also taken into account.
Furthermore, the Court of Appeal found that the salvage crew of Lima Delta had acted adequately and accurately. They have pulled the yacht off ground quickly and carefully and thus acted professionally. The assistance was furthermore not expensive or risky for Lima Delta.
The Court of Appeal also takes into account that the Odin is available 24 hours a day for the assistance of pleasure craft and that this is important for the safety of shipping traffic. The Vrouwezand is a dangerous place, where sailing yachts regularly get stuck. The 24-hour availability serves the general interest of shipping, the amount of the wages is partly determined with a view to encouraging aid. So there is considerably more to be paid for half an hour of work and the decision of the subdistrict court cannot be upheld.
All in all, the Court of Appeal determines the salvage reward at € 1,500.00. The claimed surveyors costs are dismissed: "His report has contributed to escalating the dispute between the parties rather than contributing to a resolution. Under these circumstances, the costs involved in this report are not reasonable costs for determining the damages in the meaning of article 6:96 paragraph 2 under b of the Dutch Civil Code."
If you would like further information about the law on Marine Salvage Contracts in the Netherlands jurisdiction or if you would like to submit your case to us without any obligation, you can of course contact us. We like to help you. After all, our motto is: "Your problem is our concern."
Hein Kernkamp will gladly help you further.