On 17 June 2015, the defendant's French-flagged sailing boat, the P, was bareboat chartered to a Canadian citizen. The boat was anchored in good weather conditions in a naturally protected bay near Syvota in Thesprotia. After checking the anchorage, the charterer, together with the co-pilot and four other passengers, left the P with an auxiliary inflatable dingy to have dinner in Syvota.

A resident of the area phoned the Coast Guard of Syvota to let them know that the P was striking the rocky shore due to adverse weather conditions. The on-duty coast guard found the claimant and a professional fisher he knew in Syvota. They agreed to assist the boat, and all three immediately boarded the claimant's inflatable speedboat, the O, and headed towards the P. On arrival, they found that no-one was on board the P and that its anchor had detached a few meters from its anchorage and the boat had drifted towards the sandy shoals surrounding the shore. The fisher boarded the boat, retrieved the anchor, and deposited it together with its chain on the deck. Then the O towed the P to the anchorage in Syvota Bay.

The claimant asked the Court of First Instance of Piraeus to declare that the defendant was liable to pay him remuneration for salvage services of EUR 195,000 and special compensation for the prevention of marine pollution achieved by these services of EUR 39,000.

The Court of First Instance of Piraeus (Maritime Division), in its Decision 3052/2018, dismissed the action as vague as to the claim for payment of special compensation for the avoidance of marine pollution. Furthermore, it found the legal action definite and lawful as to the claim for payment of a salvage reward, as being based on arts 1, 2, 6.1, 8.1, 12.1, 13.1, 13.3, and 24 of the Salvage Convention 1989, in combination with national law provisions. However, the Court rejected the claim as unfounded in substance. Instead, the Court accepted that the legal action had an ancillary basis of an implied towage contract in accordance with the provisions of national law. It held that the defendant must pay the claimant EUR 1,500 as remuneration for towing services.

The claimant appealed the decision before the Court of Appeal of Piraeus.

Held: The appeal is dismissed.

The Court of Appeal reviewed the decision of the Court of First Instance in light of arts 1, 1.a, 1.b, 2, 6, 12, 13, 13,1, 13.1.a, 13.1.b, 13.1.c, 13.1.d, 13.1.e, 13.1.f, 13.1.g, 13.1.h, 13.1.i, 13.1.j, 13,3, 14, 15.1, 17, 29 of the Salvage Convention 1989 and concluded the following.

The Salvage Convention 1989 was ratified by Law 2391/1996 and entered into force in Greece on 3 June 1997, as provided for in art 29 of the Convention. It repealed the Salvage Convention 1910, and the provisions of the CPML regulating the same issues, and replaced it with the Salvage Convention 1989.

Article 2 of the Convention provides that it covers judicial or administrative proceedings concerning matters governed by it, whenever such proceedings are initiated in a Member State, ie it governs relevant cases brought before national courts, irrespective of the nationality of the salvor or the salvaged ship, and without requiring any other foreign element in the dispute. Moreover, since Greece has not expressed any reservation to the Convention, these provisions also govern inland maritime salvage, that is to say, assistance provided in inland waters and by (or to) inland waterway vessels.

As per art 1.a, a maritime salvage operation means any act or activity aimed at assisting a ship or any other property in danger in any waters, navigable or otherwise. Furthermore, it is divided into: a) salvage governed by law, b) salvage governed by a contract concluded under the influence of the peril, and c) salvage governed by a contract prior to the peril.

When governed by the Convention, salvage gives rise to a claim for remuneration in favour of the salvor. The statutory right to remuneration under arts 12 and 13.3 presupposes a useful result and limits the claim for remuneration to the value of the salved property.

Salvage contracts may be freely concluded. As referred to in arts 6, 14 and 17 of the Convention, salvage contracts exclude the creation between the parties of legal obligations or claims for remuneration and expenses, unless the contract provides otherwise.

The amount of remuneration is determined by the Court on the basis of the criteria set out in art 13.1, irrespective of the order in which they are stipulated. In particular, as is clear from the combined provisions of arts 1, 12, and 13 of the Convention, the conditions required for the right to remuneration to arise from acts of maritime salvage are: a) an act or activity of assistance to a ship or any property in waters fit for navigation or in any other waters, b) a risk of loss or damage, and c) a useful result.

As regards the risk of loss or damage to the assisted ship, this must be real, even if not immediate, but expected with probability, existing before the salvage services and not caused by them, without requiring the ship in distress to be incapable of traction or self-propulsion. It is also sufficient that, at the time the assistance was given, the object of the assistance was subject to any mishap or probability of mishap which might have exposed it to loss or damage if the salvage services had not been provided. Risk is an essential building block of salvage, because it defines and differentiates it from towage. The risk also has to be serious, not imaginary, not presumed, not vague, and present, and its existence and degree must be assessed by an overall examination of the circumstances of the particular case.

Circumstances which may indicate a risk are: a) abandonment of the voyage; b) the use of distress signals, where these are used to call for assistance, due to, eg, damage to the ship; c) total or substantial loss of means of propulsion, resulting in a reduction in the ship's ability to cope with difficulties; d) loss of anchors and chains; e) abandonment or preparation for abandonment of the ship; f) immediate requirement for assistance; g) ingress of water into the ship due to damage, etc.

According to art 15.1, if the assistance was provided by several salvors, the distribution of the remuneration between the salvors is based of the art 13 criteria, and distributed among them according to the contribution of each of them to the rescue of the ship in distress, but any salvage agreement prevails over these criteria.

Further, towage is a service paid to a ship, equipped with propulsion power, for the purpose of transporting, from one place to another, either a ship which is generally or partly without propulsion power of its own, or generally any floating structure, by means of a tow which connects the tug to the towed vessel. Towage has the character of a contract of hire for work when the towed vessel has a sufficient crew of its own and is controlling its own movements in the context of its limited activity, and does not follow the tug as an inert body. In other cases, where the towed vessel has no crew of its own and is not in control of its own movements, but is in the care of the tug, under the authority of the master of the towing ship, and follows the tug as an inert body, the towage is characterised as a charterparty. Moreover, the difference between salvage and simple towage lies precisely in the fact that the former presupposes the existence of a serious risk of loss or damage to the ship, whereas in the latter the ship is simply unable for some other reason (deprived of all or part of its own propulsion power) to continue its voyage and requests the assistance of another ship to continue.

The following facts were proved. The sudden deterioration of the weather conditions (increase in wind intensity), was not particularly intense and lasted for a short period of time. Furthermore, it is established that the whole operation was co-ordinated and carried out under the orders and instructions of a competent coast guard, which was on board the claimant's boat. Further, no danger to persons arose, since no-one was on board the P. Also, there was no ingress of water into the P, which, after being towed, was sailing under its own power.

In addition, the claimant's allegation that, during the time of the rescue of the P, it was constantly striking the rocky and steep surfaces of the coast and was in danger of sinking and causing marine pollution, is untrue. It was proven that: 1) at the point near the coast where the anchored vessel had been cast off, the seabed was sandy and could not cause extensive damage to the P's hull; 2) if the P was in danger, the friends of the charterer on a boat nearby would have taken action in order to save it, but they did nothing; 3) no damage to the stern was detected during its inspection; 4) the P did not run aground, because that would have made it impossible for it to be detached and towed away by the claimant's boat; 5) the P maintained its ability to move independently throughout the towage operation as there was no damage to its engine or rudder.

Therefore, no contract of maritime salvage and rescue was concluded, and the conditions necessary to establish the claimant's claim for assistance and rescue services of immediate actual or, at least, probably expected risk of total destruction of the defendant's vessel as a result of its sinking due to the ingress of seawater into its interior or the causing of marine pollution, did not exist. The services offered by the claimant fall within the framework of implicitly concluded contract for the provision of towage services (as regards the operation of moving the vessel to a safer anchorage), which in this case is in the nature of a charterparty, because the towed vessel did not itself have a sufficient crew, was not in charge of its own movements and followed the claimant's vessel as an inert body.

The judgment under appeal correctly interpreted and applied the law and assessed the evidence.