This final judgment follows the earlier judgment of the Gerechtshof 's-Gravenhage (Hague Court of Appeal) on 21 December 1999 (CMI1956).

The Ikan Tongkol, laden with coal dust and anchored in the Everingen (Western Scheldt), went adrift and ran aground at approximately 11h50 on 13 October 1993. Eight tugs from URS and Muller tried in vain to refloat the vessel at the first high tide. In the period until the next high tide (around midnight) Smit Tak/URS offered salvage services on the basis of the Lloyd's Open Form (LOF). Despite a positive recommendation from Rijkswaterstaat (Directorate-General for Public Works and Water Management of the Ministry for Transport, Public Works and Water Management), this offer was declined by the shipowner.

The shipowner subsequently concluded a salvage agreement with Multraship. Multraship's attempt to refloat the Ikan Tongkol around midnight with 11 tugs failed, following which the shipowner concluded a contract on the basis of LOF with Smit Tak/URS on 14 October 1993 around 04h30.

That same night, Rijkswaterstaat placed the Ikan Tongkol under the Wrakkenwet (the Wreck Act). This decision reached the master of the Ikan Tongkol on 14 October 1993 at 07h30. Rijkswaterstaat allowed no further involvement of the shipowner company regarding the salvage unless it provided a guarantee of NLG 30 million. Rijkswaterstaat subsequently contracted with Smit Tak/URS itself on a 'no cure, no pay' basis for a lump sum of 10% of the estimated value of the ship and cargo, being NLG 4,25 million excluding VAT. Smit Tak/URS pulled the Ikan Tongkol free on 14 October 1993 around 13h00. The State received security from the ship and cargo offered in the amount of NLG 5 million. The interested parties in the ship and cargo (Tongkol Shipping (1990) Pte Ltd etc/the plaintiffs) filed a unlawful act (tort) claim against the State for repayment of NLG 2,75 million, stating that this amount was the difference between the amount agreed upon between Rijkswaterstaat and Smit Tak/URS and a reasonable salvage reward.

Held: As Lloyd's Open Form (LOF) was taken as a starting point, the criteria derived from art 13 of the Salvage Convention 1989 must be taken into consideration when fixing the salvage reward.

Although these criteria differ from the criteria listed in s 8:560(2)(a) of the (old) Dutch Civil Code, which were based on the Salvage Convention 1910, both lists of criteria are not exhaustive, and are intended to offer the Court a general guideline.

According to art 13 of the Salvage Convention 1989, the salvage reward shall be fixed with a view to encourage salvage operations taking into account the following criteria: (a) the salved value of the vessel and other property which is estimated at NLG 42.5 million and according to Ince & Co of London, the ship's legal counsel, as much as USD 30 million; in relation to these values the agreed salvage reward amounts to 10% and 7.3% respectively; (b) the skill and efforts of the salvors in preventing or minimising damage to the environment; it is sufficiently plausible that a threat of environmental damage had to be expected in the event of discharge of the cargo, which would not have occurred if the salvor's attempt to refloat the vessel was successful; (c) the measure of success obtained by the salvor; (d) the nature and degree of the danger; the Ikan Tongkol was aground and hogging substantially, so that if the attempt to refloat the ship should fail again, there was a considerable chance of the ship breaking up and the cargo escaping; it is also important to note that a (powerful) easterly wind was predicted; a quick and maximum effort by the largest team of salvors was therefore highly desirable; (e) the skill and efforts of the salvors in salving the vessel; 15-16 tugs were deployed with 670 tonnes of pulling power, and this full capacity was actually used; (f) the time used and expenses and losses incurred by the salvors; the actual salvage operation took place within a short period of time and without any particular problems; (g) the risk of liability and other risks run by the salvors or their equipment; there was a real risk of damage to the tugs during the operation; (h) the promptness of the services provided; (i) the availability and use of vessels or other equipment intended for salvage operations; 15-16 tugs with 670 tonnes of towing capacity could be mobilised in a very short time; (j) the state of readiness and efficiency of the salvor's equipment and the value thereof; this aspect in particular is of great importance in determining the level of the salvage reward; the immediate availability of sufficient equipment is of great importance to shipping on the Western Scheldt as well as to prevent or limit environmental damage there; furthermore, it must be concluded that the form of contract chosen by the State had been effective; the salvors were encouraged by this to make a maximum effort to succeed in one attempt.

Taking all facts and circumstances into consideration, a reasonable salvage reward for the services provided should not exceed NLG 3,25 million, so there are no good grounds for recovery of the excess (NLG 1 million). The claim of the plaintiffs (Tongkol Shipping (1990) Pte Ltd etc) for repayment of the - in their view - excessive payment is therefore admissible up to that amount.