This case involved a collision on 11 January 2009 on the river Hollandsch Diep between the seagoing vessel Sichem Anne, owned by Team Tankers Management Pte Ltd (TTM), and the inland vessel Margreta, owned by Idzenga. The Margreta sprang a leak and started to sink, after which the master managed to navigate the vessel to the river bank and grounded it between the groynes to prevent further sinking. The owners of each ship constituted a property fund to limit their liability. In the subsequent claim validation proceedings, it was determined that both ships were 50% to blame for the collision, and that Idzenga's claims for costs incurred to refloat the Margreta after the collision and to recover its cargo were claims as referred to in art 8:752.1.d Dutch Civil Code (DCC) (corresponding with art 2.1.d of the LLMC 1996), for which TTM could only limit its liability by setting up a wreck fund as referred to in art 8:755.1.c DCC (then in force). Idzenga also declared general average. EOC Onderlinge Schepenverzekering UA (EOC), the third party liability/casualty insurer of the Margreta, demanded that TTM pay half of the costs of cleaning up the Margreta, which would include the costs of refloating the Margreta and salvaging its cargo.

Held: Judgment for EOC.

EOC compensated all losses on the part of the Margreta by paying the claims of the salvors and the other costs. As a result, it is subrogated to the rights of its insured, Idzenga. Its recourse claim falls within the scope of the LLMC. However, the Netherlands has excluded the operation of the LLMC for claims relating to wreck and cargo removal. For those claims, a Dutch national limitation regime was in force at the time of the collision.

The purpose of the claim validation proceedings conducted earlier was to determine in which fund the claims relating to the clean-up costs belong. No substantive judgment has yet been given on the merits of the amount of the claim(s) made. What does follow from the Hoge Raad's ruling in those earlier claim validation proceedings (Margreta/Sichem Anne, HR, 2 February 2018 (CMI157)) is that the claims described in arts 8:752.1.d and e DCC (corresponding to arts 2.1.d and 2.1.e of the LLMC 1996) according to their content are subject to a broad interpretation. They concern all claims that have arisen in respect of/relating to ('in respect of') the raising, removal, destruction or the rendering harmless of a sunk, wrecked, stranded or abandoned seagoing or inland vessel, or anything on board thereof, as well as all claims in respect of the removal, destruction or the rendering harmless of the cargo of the seagoing vessel.

As for the internal costs of the deployment of its own experts by EOC - which have not been charged to Idzenga - they concern costs incurred within the framework of attending to the salvage of the vessel. These costs are so close to costs incurred within the framework of the limitation of damage that they can be regarded as reasonable costs to prevent or limit damage eligible for compensation. It cannot be objected that the costs were not charged by EOC to Idzenga and were not paid by Idzenga, so that no subrogation in a claim of Idzenga would have taken place. This is compensation for damages recoverable from Idzenga, for which insurance coverage exists. The insurer is subrogated if, and in so far as, it bears costs which the insured would have had to incur itself in the absence of the insurance in question and for which it would then have had a claim against the liable third party. EOC could not be expected, in order to get reimbursement for the costs it incurred in this regard, to first formally submit its claim to its insured Idzenga and demand payment from Idzenga, then to reimburse Idzenga for those same costs under the insurance, and then still recover the claim from TTM.

In the circumstances, costs incurred after the actual salvage may also qualify for compensation (cp Riad/Wisdom, HR, 2 February 2018 (CMI160)). To make the salvage of the Margreta possible, the containers had to be unloaded from this ship first. To this end, the containers were transferred into barges. Due to a lack of quayside capacity, these barges could not be unloaded immediately afterwards. Therefore, a temporary solution was chosen for the salvage of the containers (temporary transfer/storage in barges) pending the actual transfer and salvage of the containers at Moerdijk. The salvage was not actually completed until the cargo had been transferred at Moerdijk. Therefore, the costs charged for the temporary transhipment and logistical assistance in doing so are eligible for reimbursement.

The salvage report contains a detailed overview of the actual course of events and substantiates the costs claimed by the EOC from the salvage consortium, from which it becomes clear what those costs are made up of. Even though this is a party statement, it is then up to TTM to come up with a reasoned challenge if it doubts the numerical correctness of the items mentioned in the report and disagrees with certain factual findings.

The recourse claim with respect to the salvage reward paid should not be pursued in the property fund. Articles 2.1.d and e of the LLMC 1996 allow claims on the wreck fund - not constituted in this case - that are related to intervention, raising, wreck removal and salvage of cargo and other goods, as well as personal and property damage incurred in connection with the removal or salvage. Therefore, for the adjudication of claims as clean-up costs, it is sufficient that the costs were incurred in connection therewith. The work for which in this case a salvage reward has become due relates to work related to raising the Margreta and salvaging its cargo as referred to in arts 2.1.d and e of the LLMC. EOC's recourse claim relating to this is allowable.

Although the claimed advocate's legal fees are not clean-up costs, it has not been disputed that the costs were incurred in order to reduce the claimed salvage reward, and actually resulted in a lower salvage reward. These costs are therefore subject to the same regime as the clean-up costs. Thus, they do not fall within the property fund.

EOC has received a sum of EUR 210,710 in net share of general average of cargo. The question is whether this amount should be deducted from the clean-up costs claimed by EOC from TTM. That question is answered in the negative. With the principle of general average that damages are borne jointly and pro rata by all interested parties, it is not compatible that the net cargo share received should be deducted from the clean-up costs claimed from TTM as a benefit within the meaning of art 6:100 DCC. The amounts collected by EOC from TTM as compensation for removal costs must be added by EOC as income to the general average community, whereupon a recalculation of the general average contribution to cargo will take place. This recalculation may lead to a reimbursement by EOC of cargo contributions already received. Any other view, moreover, would lead to a thwarting of the established 50-50 apportionment of blame and the resulting liability under which TTM is obliged to pay its contribution in collision damage. Ultimately, the apportionment of fault and the resulting liability are paramount and the general average contributions must be adjusted accordingly.