This was an appeal from Rechtbank Rotterdam, 3 July 2020, CMI 2182. This case involved assistance on the Western Scheldt River on 12 July 2017 rendered by the Mi-Amigo to the Cowa. The Cowa, laden with 1,000 mt of fertiliser, was sailing across the Western Scheldt towards Evergem (Belgium). There was a tidal current. There was a force-5 wind from the north-east. When the Cowa reached buoy 32, the engine started smoking and running irregularly. The master of the Cowa put in a VHF call to the master of the Mi-Amigo, a dry cargo vessel loaded with wheat sailing ahead, and asked for assistance. The Mi-Amigo came alongside, and the master fastened his ship to the Cowa. Both vessels then sailed towards Terneuzen. The Mi-Amigo claimed EUR 17,500 for salvage assistance. The Cowa paid only EUR 1,200. At first instance, the Rechtbank Rotterdam ruled the assistance was salvage, fixed the salvage reward at EUR 8,500, and ordered payment of the remaining EUR 7,300.

Held: Appeal granted.

Danger within the meaning of art 8:557(1) Dutch Civil Code (DCC) exists when there is a situation of imminent loss, or at least very serious harm, from which the ship cannot save itself by its own strength, not without outside help. Also, a relatively low degree of danger can be sufficient for the existence of danger. The acceptance of a broad interpretation of the concept of peril does justice to the general interest of safety of navigation, in that assistance is not thereby discouraged; accordingly it is appropriate that when fixing the salvage reward pursuant to art 8:563 DCC (incorporating art 13 Salvage Convention 1989) takes into account the nature and the seriousness of the danger. A real threat of incurring loss or damage may also constitute danger (Hoge Raad, 9 February 1996, CMI141 (Frio Alaska)).

Coming alongside, as the Mi-Amigo did at the request of the Cowa, can fall under any (possible) act of assistance as referred to in art 8:551(a) DCC (taken from arts 1 and 1.a Salvage Convention 1989). In the present case, however, there was no danger. After all, the Cowa had the possibility to anchor a few hundred meters further on. For although her engine started smoking and running irregularly, it was still functioning. In addition, the Cowa had a powerful 360-degree bow thruster, which allowed movement at limited speed over a short distance. Weather conditions would not have prevented that in this case. Thus, the Cowa could have saved itself. The fact that the Cowa asked the Mi-Amigo to come alongside does not alter this fact. Such a request does not mean that the requesting ship is in danger. However, it is perfectly reasonable for the requesting skipper to offer the other skipper to pay the actual costs of coming alongside. That is what the Cowa did.