A time charterparty was concluded on 13 January 2012 in respect of the jack-up barge JB-114, owned by Self Elevating Platform (SEP), and chartered by ‘disponent owner’ Jack-up Barge Operations (JUBO) to Van Oord as charterer for, in principle, the period from 5 June 2012 until 19 October 2012 on the basis of the Supplytime 2005 time charter and under declaration of applicability of Dutch law. The JB-114 is a platform without self-propulsion that is designed to execute (lifting) activities at sea, for which purpose it is equipped with four hydraulically powered legs that can be moved up and down and can be equipped with spudcans (inverted cone bases) by means of which a larger supporting surface on the seafloor can be created for the JB-114. Van Oord used the JB-114 for installing wind turbines off the English coast. The lifting of the legs for the purpose of moving the JB-114 did not cause any problems in almost all locations. On 27 July 2012 the JB-114 could not be shifted because one of the legs of the JB-114 could not be pulled free from the seafloor. The leg was eventually pulled out of the seabed on 22 August 2012, so that the JB-114 had been stuck in the same position for more than 26 days. In April 2013 Van Oord effected attachments on the JB-114 against SEP and under a bank guarantee against JUBO for claims relating to hire instalments paid under protest, costs for other ships and their crew, costs of assistance (claimed from both SEP and JUBO), salvage reward (claimed from SEP) and liquidated damages (claimed from JUBO). SEP and JUBO jointly put up a bank guarantee for Van Oord for the amount of EUR 6,403,665 and claimed in provisional measures proceedings a reduction of this guarantee to the amount of EUR 2,968,612. In a counterclaim Van Oord claimed an increase of the guaranteed amount, subject to a penalty.

Held: The argument that this was not a salvage case because the assistance was not rendered voluntarily, but under the scope of the time charter, is rejected. What was done exceeded the normal performance of the time charter which the parties had envisioned at the conclusion of the agreement. Provisional measures proceedings are not the place for fixing the amount of the salvage reward to be paid by SEP and/or JUBO to Van Oord. As the amount is dependent on the different facts and circumstances that are still under investigation it is reasonable – by way of a provisional measure – to somewhat take the middle ground between the amounts estimated by the parties on the basis of advice of their lawyers and to decrease the amount of salvage reward in the bank guarantee put up by SEP and JUBO.

Van Oord's alleged loss as a result of the fact that other ships and their crew were not able to work during the 26 days of the disruption, does not fall under the scope of salvage costs within the meaning of art 2 of the Salvage Convention 1989 that defines salvage as ‘any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever’. Van Oord's alleged loss does therefore not fall under the scope of salvage costs within the meaning of the aforementioned Convention.