The issue in this case was whether the plaintiff, Remøy Sea Viking AS, was entitled to a salvage reward from the defendant, P/R Ocean Tiger, in connection with events on 26 March 2007 in icy waters off East Greenland, where the shrimp trawler Remøy Viking was fishing with two other trawlers, including the Ocean Tiger, owned by P/R Ocean Tiger, which took in water due to a crack in its hull. The plaintiff contended that P/R Ocean Tiger, and its managing director Kristian Barslund Jensen, were liable to pay Remøy Sea Viking AS DKK 3,500,000 for salvage services.

The Remøy Viking, the Ocean Tiger, and the Arctic Viking were shrimp fishing in icy waters at Dohrn Bank near East Greenland. The sea depth in the area was 300-400 m, and the distance to the nearest port, Isafjord in Iceland, was approximately 200 nm. On the morning of 26 March 2007, the Ocean Tiger's crew found that water was leaking into the light engine room on the vessel. The Remøy Viking lent the Ocean Tiger two mobile pumps to help pump out the water and accompanied it out of the ice.

The parties agreed that the value of the Ocean Tiger could be estimated at DKK 100 million, and that the value of its catch on 26 March 2007 could be estimated at DKK 3.4 million.

The plaintiff argued that the Ocean Tiger needed help to get free. The ship was stuck in the ice, and when the crew tried to get underway themselves, the ice cut a hole in the hull. It was possible that the Ocean Tiger had sufficient pumping capacity, but it needed help to get out of the ice. Reference was made to the judgments U 2003.2326H (The Margrete Læsø) (CMI1550) and U 1992.660 S (The Benskov Junior). There was no doubt that the Ocean Tiger was 'in danger' within the meaning of s 441(a) of the Merchant Shipping Act, which corresponds to art 1.a of the Salvage Convention 1989, and that the conditions were somewhat more critical than one would like. The plaintiff further argued that it was not only the objective circumstances that matter, but that the crew's subjective assessment must also be given weight. Reference was made on this issue to the Norwegian Supreme Court judgment, ND 1999.269 (The LOS 102).

Given that the Ocean Tiger was in danger, and the salvage was successful, the plaintiff was entitled to a salvage reward: see s 445 of the Merchant Shipping Act, which corresponds to art 12 of the Salvage Convention 1989. The rules on salvage rewards are there to encourage salvage. The plaintiff's claim is based on 3.5% of the value of the vessel and its catch. The level, according to case law, for salvage in waters of this nature is a salvage reward of 3-5%.

The defendant argued that at no time was the Ocean Tiger in danger. When fishing in icy waters off East Greenland, it was customary to help and support each other when going in and out of the ice. It was common to lend gear and equipment to each other. The plaintiff had the burden of proving that the Ocean Tiger was in danger and that it provided relevant assistance to save the vessel. According to the case law, in order for the condition of being 'in danger' to be fulfilled, one must be unable to manage on one's own. The Ocean Tiger was able to fully manage on its own, and was fully manoeuvrable. There was even an opportunity for the crew to photograph a polar bear. Again, according to case law, the ship must be close to sinking in order for bilge pumping to be considered a danger within the meaning of the Merchant Shipping Act. Here, the Ocean Tiger had an abundance of its own pumps. The ship was nowhere near sinking.

As stated in the Norwegian Supreme Court's judgment of 18 June 1996, NDS 1996.238 (The Loran), the Merchant Shipping Act's criterion of being 'in danger' is an objective requirement for a salvage reward to be considered. It is not enough to believe or assume that the ship is in danger. It must be established that it has actually been in danger. This is clarified in the Norwegian Supreme Court's judgment of 27 January 1999, NDS 1999.269 (The LOS 102) and is also applicable law in Denmark.

Held: Judgment for the defendant. The plaintiff is not entitled to a salvage reward.

The pumps used by the Ocean Tiger had sufficient capacity to keep the water at bay, without involving the borrowed pumps in the process. According to the available information, which is in line with the Court's expert assessment, it can further be assumed that the Ocean Tiger could in any case - as an ultimate solution - have sealed off the light engine room. The amount of water that would have remained in the light engine room after sealing would not have affected the ship's maneuverability.

In the circumstances, there is no basis for establishing that the Ocean Tiger was 'in danger' within the meaning of the Merchant Shipping Act. The plaintiff therefore has no basis for demanding a salvage reward: see s 441(a) of the Merchant Shipping Act.

[For the unsuccessful appeal to the Supreme Court, see CMI497.]