Trade Green Shipping Inc (the plaintiff) was the owner of the Trade Green, which carried a cargo of rice from Bangkok, Thailand, to Aqaba, Jordan, under a bill of lading which provided for general average to be adjusted in London in accordance with the York-Antwerp Rules 1974. The vessel caught fire while it was discharging at Aqaba. It was removed from the berth on the instructions of the port authority by two tugs with a third tug on stand-by, and taken under tow to an anchorage outside the port while the fire was brought under control by the crew using the vessel's own fire-fighting systems. The vessel was then towed back into the berth in order to complete discharging. Securitas Bremer Allgermeine Versicherungs AG (the defendant) was the cargo owner.

The master of the vessel declared general average and an adjustment was prepared in which, among other things, the charges levied by the port authority for the services of the tugs were allowed in general average.

This action was brought by the plaintiff to recover from the defendant the sum due in respect of cargo's contribution in general average. The Court was asked to decide the following four preliminary issues:

1. Whether there was a detention within the port within the meaning of r 11.b of the York-Antwerp Rules 1974, and if so, what was the period of detention;

2. Whether the tug towage expenses claimed in this action were ‘port charges’ within the meaning of r 11.b;

3. Whether, in order to claim the tug towage expenses as port charges under r 11.b, it was necessary to establish that the tug towage expenses were intentionally and reasonably incurred for the common safety for the purposes of preserving from peril the ship and the cargo within the meaning of r A of the York-Antwerp Rules 1974;

4. Whether the fire and/or the general average and salvage charges claimed in this action were incurred during the period of the maritime adventure and if not, whether this precluded the claim for general average and salvage charges.

Held:

Issue 1: No

The plaintiff submitted that the Trade Green was 'detained' at Aqaba within the meaning of r 11.b for the period between the outbreak of fire and the time at which it returned to berth because during that period discharging operations were interrupted, and it was not until the vessel had returned to the berth that it was, in the words of the Rules, 'ready to proceed upon her voyage'. On the contrary, the defendant submitted that the 'voyage' within the meaning of the Rules had ended when the vessel berthed on its arrival at Aqaba and that there was no detention of the kind contemplated by r 11.b.

The Court explained that r 11 was the counterpart of r 10, which dealt with expenses of entering and leaving a port of refuge and handling and storing cargo, fuel and stores. Rule 11 dealt with other kinds of expenses incurred as a result of making for and entering a port of refuge, which were not themselves covered by r 10. It was apparent from the language of these two rules as a whole that they were concerned with the consequences of an unexpected interruption of the vessel's progress towards its destination rather than any interference with routine cargo operations once it had reached it. In particular, the phrases 'when she shall have sailed thence with her original cargo' in r 10.a, 'when the ship does not proceed on her original voyage' in r 10.c, and 'until the ship shall or should have been made ready to proceed upon her voyage' in r 11.b all point strongly to that conclusion.

Issue 2: No

The plaintiff submitted that the tug charges were port charges incurred within the extra period of detention. The Court held that under r 10 the expenses of entering and leaving a port of refuge were to be allowed in general average when an accident, sacrifice or other extraordinary circumstances rendered that necessary for the common safety. Rule 11 appeared to be designed to extend the same treatment to other expenses which would inevitably be incurred as a result of the need to make use of a port of refuge, primarily the additional cost of wages and maintenance of the crew and the consumption of stores and fuel. In this context, the Court thought that the natural meaning of the expression 'port charges' in r 11.b was apt to include any charges which the vessel would ordinarily incur as a necessary consequence of entering or staying at the port in question. Towage charges, in this case, were not ordinary charges that any vessel using the port could expect to incur. Apart from the fact that they were levied by the port authority, they bore little similarity to port charges in the accepted sense. Thus, the Court did not agree that r 11.b could be construed so as to cover the towage charges in this case. In addition, the towage charges were not in any event incurred during the extra period of detention so as to come within r 11.b. The 'extra period of detention' in r 11.b was the period during which the vessel was detained after it would otherwise have been ready to leave the port. Since the vessel would, in any event, have remained at Aqaba for some time in order to discharge its cargo, the towage charges were not incurred during any extra period of detention in that sense.

Issue 3: No

Since the towage charges were not allowable in general average under r 11.b, they could only be allowed if they were intentionally and reasonably incurred for the common safety for the purposes of preserving the ship and the cargo from peril within the meaning of r A. However, since the vessel was already at its discharging berth and was capable of extinguishing the fire without leaving it, it was difficult to see that the towage charges were in any sense incurred for the common benefit. It seemed that these expenses were incurred only because the port authority was worried about the risk to the shore installations, or perhaps about the possibility that the berth might be obstructed if the vessel were to sink.

Issue 4: Yes

The Court found that it was common ground that the charges in question had been incurred during the period of the maritime adventure.