On June 26, 2007, the vessel Athena, owned by Bourbon Offshore Surf (Bourbon), capsized, sank and landed on the seabed 12 metres deep off Pointe Noire (Congo). In order to save its vessel and avoid an ecological accident, Bourbon entered into a contract, a salvage standard form contract called the 'Lloyd's Open Form' (LOF) with Smit Salvage BV (SMIT). This contract included a specific clause called 'Special Compensation P&I Clause' (SCOPIC).

SMIT invoked the SCOPIC clause and succeeded in getting a letter of indemnity from the Shipowners Mutual Protection & Indemnity Association (The Shipowners Association), to which Bourbon is affiliated, for the coverage of risks related to vessel operations, pollution damage and retirement costs of the vessel. On the one hand, the salvage operations were a success regarding salvage of the goods. On the other hand, due to the potential lack of a useful result, Bourbon terminated the application of the SCOPIC clause and the next day SMIT stopped its salvage operations.

The Shipowners Association, subrogated to the rights of Bourbon, claimed from the hull insurers payment of the expenses spent to preserve the vessel and the remuneration of the 'Special Casualty Representative' (SCR) elected to supervise the salvage operations. The Shipowners Association alleged that the share of costs engaged to preserve the vessel was not excluded from the insurance policy and therefore had to be borne by the hull insurers.

The Shipowners Assocation's application was dismissed by the Commercial Court on 8 March 2012 and the Court of Appeal of Paris on 11 September 2014.

The Court of Appeal of Paris ruled that the insurance contract entered into by Bourbon excluded from the indemnity the special compensation payable under art 14 of the Salvage Convention 1989 or any other similar provisions. The Court of Appeal stated that the SCOPIC clause is an addition to the salvage contract concluded on the ground of the 'no cure no pay' rule. Therefore, the SCOPIC substituted a calculation method of a special compensation to the one specified in the abovementioned art 14.

The Shipowners Association then appealed the ruling before the Court of Cassation.

Held: Article 14 of the Salvage Convention 1989, which provides for special compensation owed to the person who has given assistance, covers all expenses, without distinguishing those incurred to preserve the vessel from those incurred to protect the environment, even if no useful result is reached in the attempt to save endangered vessels threatening the environment.

The Court of Cassation therefore upheld the Court of Appeal's decision, considering that the SCOPIC clause is similar in scope to art 14 of the Salvage Convention 1989, and that it allowed the salvor to receive an indemnity which covers all the expenses incurred, without distinguishing their use. The Shipowners Association's appeal was therefore dismissed.

Thus, according to the Court of Appeal of Paris and to the Court of Cassation, the means implemented by the assistant are meant to protect the environment by trying to rescue the vessel and avoid pollution. So, the assistance operations simultaneously pursued a twofold objective. As a result, it was not necessary to distinguish the expenses related to environmental cleanup and safeguard operations from those related to vessel preservation. There are not two obligations but only a single complex one.

Therefore, the amount paid under this clause to SMIT in compensation for the assistance to the Athena is excluded from the hull insurers’ guarantee. Indeed, the hull insurers are liable for the insurance compensation on goods according to art 14 of the Convention. However, under art 14 of the Convention (or the SCOPIC clause) the responsibility insurers must pay to rescue the vessel and protect the environment.