Carriage of steel hooks on board the Quo Vadis, sailing under time charter, from Pasajes (Spain) to Antwerp (Belgium) in the period of 24 December 1985 to 3 January 1986, under bills of lading that state the York-Antwerp Rules 1974 to be applicable and that inter alia contain the clause: ‘3. Cargo's contribution to General Average shall be paid to the Carrier even when such average is the result of a fault, neglect or error of the Master, Pilot or Crew. The Charterers, Shippers and Consignees expressly renounce the Netherlands Commercial Code, Art. 700, and the Belgian Commercial Code, Part II, Art. 148’. The bills of lading signed by master-owner Kroezen mention Ferotex GmbH in Frankfurt (Germany) as 'consignee'. On 26 December 1985, during stormy weather in the Bay of Biscay, water entered the ship via the open air vent in the engine room, and the Quo Vadis incurred engine damage; the tug Abeille Flandre rendered assistance and towed the ship to Brest (France). Cargo insurers demanded payment from Kroezen for Ferotex’s share in the salvage reward which the insurers have paid.

The Court of Appeal held that Dutch law applying before 1 April 1991 should apply to this case, which is not disputed in this appeal in cassation; between the parties the mandatory provisions of the Hague-Visby Rules are also applicable because bills of lading signed by Kroezen were issued for this voyage, and parties have not disputed this in the appeal before the Court of Appeal.

Held: Where a payable salvage reward has been declared general average by a ship owner who has not exercised due diligence to make the ship seaworthy, and whose fault it is that the salvage assistance was needed, that salvage award should remain for the account of the owner. In case a party with an interest in the cargo has already under the applicable general average arrangement paid its share in the salvage reward to the owners of the ship rendering assistance, the cargo interested party can take recourse against the owner of the unseaworthy and salvaged ship; this is in line with Rule D of the York-Antwerp Rules 1974. Therefore, the cargo insurers' action, seeking the reimbursement of the payments they made for the benefit of Ferotex as cargo interested party with regard to its share in the general average, is receivable.

The argument that general average and salvage rewards do not fall under the mandatory scope of the Hague-Visby Rules is incorrect: the Hague-Visby Rules do indeed not prevent any lawful provision regarding general average (as also stipulated in art 469b para 2 DComC and art 8:382 DCC), but stipulations with the objective that the costs incurred by the want of due diligence for the seaworthiness of the ship are to be borne by the cargo interested parties in carriage under the bill of lading, cannot be considered to be lawful provisions. In as far as these clauses have that objective, cl 3 of the bill of lading and the time charter party clauses invoked by Kroezen are not lawful provisions regarding general average.

The Court of Appeal did not err where it apparently decided that Kroezen cannot rely on the perils of the sea because it cannot be said that Kroezen on 24 December (the beginning of the voyage) and on the leg Northern Spain-Antwerp should not have to be prepared for a sudden lateral ground sea, so that he must be considered to have been capable of avoiding the circumstance of the water entering the engine room through the open air vent.

Where the damage is caused on the one hand by an error in the management of the ship for which the owner is not liable (art 469-2a DComC), and on the other hand by want of due diligence for the seaworthiness for which the owner is liable (art 469-1 DComCK), the unseaworthiness which is not sufficiently guarded against, must be considered to be the only cause, without the possibility, mitigating the liability, to appeal to the exceptions of art 469-2K.