Rendering of assistance on 23 and 24 October 2012 by the MS Cunado, property of Cunado, to an integrated tug and barge unit made up of the tug barge Veerhaven 10 and six cargo barges carrying ore. The unit sailed on the river Waal near the bridge of Zaltbommel. Around 23:45h the 24 Volt system of the Veerhaven 10 failed, causing the navigation equipment to malfunction. The radar malfunctioned as well and the rudder system sent out an emergency signal. This signal was received by the Vessel Traffic System station in Tiel. Around 23:55h the master of the Veerhaven 10 sent out a request for assistance to the Cunado, which was already sailing closely behind the unit as a precaution. After that, the Veerhaven 10’s VHS malfunctioned. Directly after receiving the request, the Cunado manoeuvred alongside the unit on the port side of the first cargo barge and was made fast to the Veerhaven 10 using the Cunado’s steel wires. In the following 30-45 minutes the Cunado brought the tug and barge unit parallel to the river’s axis and subsequently accompanied it astern for one kilometre where the unit dropped anchor close to the bunker station and the city of Zaltbommel on the southern riverbank at kilometre marker 935. A tugboat arrived around 02:00h, after which the Cunado was detached from the unit. The masters of the Cunado and the Veerhaven 10 signed a joint declaration that the Cunado had assisted the unit after the total malfunction of the Veerhaven 10. Cunado claims a salvage reward of EUR 100,000.

Held: There is a salvage operation within the meaning of art 8:551 of the Dutch Civil Code (DCC) (art 1 of the Salvage Convention 1989) when there is any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever. Danger exists if there is a real threat of increased damage and if the vessel cannot save itself from that dangerous situation without outside help. A relatively low degree of danger can be sufficient to assume the existence of danger (according to the Hoge Raad (Supreme Court) 9 February 1996, Schip en Schade 1996/59, ‘Frio Alaska’ CMI141).

Generally, it can be assumed that a vessel passing by chance does not offer its assistance for free, unless there is barely any time and cost involved in the assistance. The course of events, particularly the written and signed declaration that the Cunado rendered assistance to the Veerhaven 10, indicates that at that moment the Veerhaven 10 was not under the impression that it was done a favour.

There was a real threat of increased damage, and therefore of danger. When the Cunado began rendering assistance, the unit had come to a standstill on the starboard side of the waterway and had drifted 20 degrees towards portside. If this situation had persisted, the prevailing current would have caused the unit to end up on the groynes, with the possibility of damage. The nature and gravity of the danger are relevant when determining the salvage reward.

It is unlikely that the Veerhaven 10 could have saved itself from the dangerous situation. Since the approximately 265-metre long unit had drifted 20 degrees towards portside, due to the current, in a waterway of approximately 150 metres wide, within the 10 minutes between the malfunction and the request for assistance, speed was of the essence.

The salvage operation had a useful result, giving the Cunado the right to a salvage reward.

According to art 8:563(3) of the DCC, only the owner of the inland vessel is liable to pay the reward for the salvage of the ship and property onboard. Both the Veerhaven 10 and the individual cargo barges are to be regarded as separate ships. Although Veerhaven is in principle not liable for the salvage reward regarding the salvage operation of two of the six cargo barges that are not owned by it, an exception is justified, by analogy with the case law in collision cases combined with the ratio of the provisions of art 8:563(3) of the DCC. The Hoge Raad (Dutch Court of Cassation) ruled in its judgment of 23 November 1979 (Schip en Schade 1980/14, ‘Jelle/EWT’) that the fixed connection between a tug and the attached cargo barges has the legal consequence that if a collision occurs due to a fault of one of the ships (of the tug and barge unit), the fault of the one ship is to be regarded as the fault of all the ships. The unit is a rigid assembly of ships, in which the ships cannot sail or move separately from each other, and which takes part in maritime traffic as one. The Netherlands has made use of the possibility offered in art 13.2 of the Salvage Convention 1989 by providing in its national law, namely in art 8:563(3) of the DCC, that the liability for salvage rewards is channelled towards the owner of the vessel. The public operation of the integrated tug and barge unit as one unit, in accordance with the collision case law, and the underlying idea of art 8:563(3) of the DCC that the salvor can claim the reward from one debtor, justify the channelling of the liability for paying the salvage reward for assistance rendered to the cargo barges to the owner of the tug. The channelling of the liability of the attached units of the tug convoy and their cargo to the tug serves the purpose of encouraging salvage operations, and is not unreasonable, because the owner of the tug has a right of recourse to the owner of the cargo barge for its share of the paid salvage reward. Therefore, in determining the salvage reward due from Veerhaven, it is assumed that the unit must be seen as one.

Also, in view of the large mass and length of the unit, chances were that the tug convoy, which was already dragging anchor, would develop more speed and crash into the groynes on the left and/or right river bank, which would result in considerable damage to the groynes and the unit, in particular the part(s) that would have hit the groynes first. Furthermore, there was a reasonable chance that that/those part(s) would have broken off, due to the increased speed and large mass of the unit. Finally, there was a slight chance that a towed barge would have sunk.

Taking into account the saved value of one or two unit(s) of the convoy and its/their cargo, the prevention of damage to the groynes, the time and costs incurred by the Cunado, the 100% useful result of the salvage operation, and the speed and skill of the salvage operation, a salvage reward amounting to EUR 40,000 is reasonable and fair under the given circumstances.