The plaintiff is the master of the multi-purpose ship MPV A (master). The defendant is the shipowner (owner). The A is operated by the Waterways and Shipping Office Z, which reports to the General Directorate for Waterways and Shipping. On 31 July 2015, under the direction of the master, the A provided assistance in securing and recovering the large container ship F, which was damaged on the Elbe after an engine failure. F's owner is X from W. There were also other tugs in use. The A received the order to help with the rescue by the traffic control center H. The owner is asserting claims against X for salvage payment before the Bonn Regional Court (LG Bonn, Az 16 O 4/19). The complaint is dated 21 July 2017. The owner is claiming EUR 1 m from X. The master here is intervening in respect of the owner's proceedings there.

With this lawsuit, the master is asserting claims against the owner under § 581(1) HGB [Commercial Code] for a share of the salvage payment as master. Section 581(1) HGB provides that if a ship or its cargo is salvaged in whole or in part from another ship, the salvage payment or special compensation shall be distributed between the shipowner, the skipper or master and the rest of the crew of the other ship in such a way that initially the shipowner is reimbursed for damage to its ship and expenses, and then the shipowner receives 2/3 of the remainder, with the skipper or master and the remaining crew receiving 1/6 each.

The master claims that the A is not a rescue or tug ship within the meaning of § 581(4) HGB. [Section 581(4) HGB provides that the apportionment in § 581(1) HGB does not apply if the recovery measures are carried out from a rescue or tug ship.] It is true that one of its tasks within the framework of the 'German Coast Safety Concept' is undisputedly emergency towing. However, this only serves to restore the mobility of a damaged vessel and is not an actual rescue process. For a pure tugboat, its work performance is also clearly too low. The A can also carry out towing work in emergencies, but is not designed as a rescue or tug ship.

The master only learned from X that the owner was pursuing claims against X. By initially not doing this or by notifying the master of this, the owner violated an official duty in which third party protection existed in his favour. In comparable salvage cases, the defendant paid out salvage payments to masters twice in 1995, so that this decision is binding.

It is not possible for the master to quantify his claims because he does not know what the value of the F and its cargo was.

The master requests an order that he has a compensation claim against the defendant in accordance with § 581 HGB in the amount of 1/6 of the salvage payment obtained by the defendant, alternatively a claim in accordance with § 576 HGB because of the assistance of the plaintiff as the master of the MVP A with the towing of the large container ship F on 31 July 2015 from the edge of the Elbe fairway.

The owner requests that the complaint be rejected. The owner claims that the A is a rescue and tug ship. It has a crew that is ready for action around the clock and is appropriately equipped for rescue operations. The use of the A is therefore explicitly provided for in the 'German Coast Safety Concept'. The introduction of this concept in 2001 also modified the legal assessment of salvage payment claims. There is also no official duty to protect third parties, since the assertion of salvage payment is only in the fiscal interest, but does not amount to third-party protection. The defendant also raises the objection of the two-year limitation period. For this purpose, it refers to §§ 606(3), 607(7) HGB.

Held: The master's admissible action is unfounded.

The master is entitled to a determination according to § 256 ZPO [Civil Procedure Code], because he cannot currently quantify his possible claims against the owner. In this case, a claim under § 581(1) HGB comes into consideration. According to this provision, if a ship or its cargo is salvaged in whole or in part from another ship, the reward or special compensation is distributed in a certain way between the shipowner, the skipper or master and the rest of the crew of the other ship. According to § 576 HGB, a salvage reward is due to the salvor of a ship (see § 574(1) HGB for the definition of the term, see also BT-Drucks - 14/4672 p 19), it is calculated according to the standards of § 577 HGB, and it is an equitable decision (see BGHZ 69, 197). The crew, however, does not have its own claim to salvage payment, but only a claim that depends on the payment claim of the owner. So far, however, it is not clear what salvage payment the owner can receive from X. This is the subject of proceedings in the Bonn Regional Court Az 16 O 4/19, which were not yet concluded at the end of this hearing.

However, the master has no claim against the owner under § 581(1) HGB for the payment of a salvage reward. It is true that the prerequisites for the claim are met in so far as the plaintiff, as the master of the A, participated in the rescue of the F. However, § 581(4) HGB applies to his detriment, according to which a claim under para 1 is excluded if the rescue measures were carried out from a rescue or tug ship.

The A is to be regarded as such a recovery or tugboat in the ordinary meaning of those words. On the one hand, the wording of the exception includes ships that can carry out recovery or towing work. Basically, the A is technically able to perform tasks such as recovery and towing. This can be seen from the fact that it was able to carry out the rescue at issue here and was even used specifically by the H traffic control center for this purpose. The A is also referred to twice as a multi-purpose ship on pp 17 and 18 of the 'German Coast Safety Concept', and also carries this official name. In a data sheet for the ship, which can be found on the website of the Waterways and Shipping Office Z, the tasks of the ship are named: 'Combatting pollution incidents, laying buoys, ice breaking, emergency towing, fire fighting, shipping police tasks'. The A has a friction tow winch for this purpose. This gives the impression that the A can tow at least in emergencies and certain dangerous situations.

Such a classification also corresponds to the meaning and purpose of the exclusion of rescue and tug ships in § 581(4) HGB. The background to the regulation of § 581 HGB is obviously to reward assistance provided in emergency situations and in particular to appreciate the individual effort, as this is decisive according to para 2, particularly in terms of distribution of payments to the crew. According to this, it is also crucial to consider which crew member played which part in the recovery. However, this should not apply to professional rescuers who do not act voluntarily and solely for the benefit of others (see BT-Drucks - 14/4672 p 20). By contrast, professional rescuers are trained for such situations. They also have special technical equipment on board that other ships do not have. As a result, a rescue for a ship's crew of another ship - such as a cargo or passenger ship - is associated with significantly higher risks due to the lack of technical equipment and training of the crew. In addition, they risk their own losses by carrying out the rescue, as this can result in not only delay for the ships, but also damage. This is to be compensated for by the fact that a salvage reward is paid. This also serves as a motivation to even begin a rescue. In the case of the A, however, this is included in the coastal rescue plan and is the subject of an operational order, so that a motivational incentive does not appear to be necessary here.

It is also not possible to differentiate whether tug activities or more particularly towing is one of the core tasks of the A. What is certain is that it is technically capable of doing this and has successfully carried out this specific task in the context of the rescue. In addition, it does not go far enough to distinguish between individual areas of responsibility. Rather, the meaning and purpose of the exclusion regulation just presented is essential for the interpretation. It should also be borne in mind that the term 'rescue ship' goes further than that of 'tug ship' and thus forms a kind of generic term and includes all activities associated with sea rescue. The wording of the exclusion is applicable to both groups of ships.

The master cannot invoke custom or a self-commitment of the owner through previous decisions within the meaning of § 242 BGB [Civil Code]. He only cites two cases from the 1990s. This is not enough as evidence. Because, as just mentioned, it depends on the specific application and the use of the ship. Since the rescue concept changed in 2001, the responsible authorities have also reassessed the classification of the ships involved and the work to be performed by them. In addition, the two cases cited by the plaintiff are not sufficient to prove a constant practice by which the owner would have bound itself and no longer had any discretion. For this purpose, a longer and more intensive practice of paying salvage rewards would be necessary so that the parties involved, and thus also the master, could build trust that this will always be done in the future.