On 28 December 1991 the Frio Alaska, loaded with 1,835 tons of meat, returned to Vlissingen due to problems with its turbocharger, which prevented the ship from sailing at full speed for a long period of time. The ship, sailing with limited engine power, ran aground at the eastern bank of the outer harbor on an outgoing tide (about 1.25 m low tide) and with calm good weather and visibility, west of the port light. With permission of the master, the Boxer attached itself to the Frio Alaska, towed the ship and subsequently moored in the port. Claiming that it had successfully salved the Frio Alaska at a time during which the ship was in danger, the Boxer demanded a reward of initially NLG 500,000, later reduced to NLG 150,000.

Held: When interpreting the notion of ‘gevaar’ (art 8:557 of the Dutch Civil Code), one should proceed from what is considered ‘danger’ under art 1 of the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea 1910 (Salvage Convention 1910). Given that the Convention does not further define the notion and the travaux préparatoires do not contain clarifying information, it is important to consider the existing opinions in countries that are a party to the Convention.

In the Netherlands there is a particular difference of opinion about which role the normal availability of external means of assistance, such as tugs, should play when answering the question whether the ship is in danger. According to the wide view taken by Molengraaff there is danger when there is a situation of imminent loss or serious harm, from which the ship cannot save itself without outside help. According to the restrictive view taken by Cleveringa one can accept there is danger when the imminent destruction or disablement or very serious damage cannot be averted within a relatively short period of time by means of assistance normally available, including external means of assistance.

In the other State Parties, a restrictive view as described above does not appear to be prevailing. Rather, from literature and the judicial decisions mentioned therein it appears that the normal availability of assistance in the vicinity of the ship in danger does not exclude the existence of danger and is just one of the circumstances that is important for answering the question to what extent the ship is in danger. In part against this background, the restrictive view described above cannot be shared by the Hoge Raad (Supreme Court). The meaning of the concept ‘danger’ allows for a broad interpretation and, which is decisive, acceptance thereof does more justice to the general interest of safety of shipping, which interest would be harmed if acquiring and keeping stand-by means of assistance, destined for effectively rendering assistance to ships in danger, would be discouraged by regarding the mere presence of such means of assistance as a circumstance that would prevent a decision that there was a situation of ‘danger’. In this respect, reference should also be made to the Preamble of the International Convention on Salvage 1989, concluded in London and signed by the Netherlands, in which the importance of assistance to ships in danger and the protection of the environment and in that context the need for ‘adequate incentives’ to salvors are discussed.

The Court of Appeal has rightly considered whether the Frio Alaska could have averted the imminent casualty by its own means, but answered this question negatively based on the fact that the ship, if it refloated itself after flood tide, still would have risked another grounding – this time with the stern.

The starting point that, in principle, there can only be ‘danger’ if a real threat that the ship will be lost or will suffer severe damages exists, is correct in so far as it can thus be interpreted that the real threat can also involve the loss or severe damaging of the cargo.

With its considerations regarding the given position of the master, the Court of Appeal has wanted to express that the situation, objectively considered, posed such a risk that for a master deciding reasonably there were good reasons to call for assistance in view of an imminent casualty or to accept assistance offered (leaving undecided whether the master aimed at concluding a binding salvage agreement for the ship owner with the words ‘OK one tug’). The Court of Appeal did not lose sight of the fact that there must be a real threat.

A relatively lesser degree of danger can also be sufficient to accept the existence of danger within the meaning of the Salvage Convention 1910 and under Dutch statutory law. But the degree of danger is of importance when determining the reward, as follows from art 8 of the Convention and art 8:560 of the Dutch Civil Code based thereon.