This case involved problems at the north side of the Bosporus during a voyage from Tuapse (Russia) to Djibouti by the MS Rochester Castle, registered in Malta, property of Navalmar, which had entered into a contract of affreightment with Glencore Grain. These problems lead to the pilot asking for tugboat assistance. After the arrival of three tugboats of the Turkish Directorate General of Coastal Safety (DGCS) and after the passing of a rope, the Rochester Castle continued on her route and was ordered to drop anchor at the Istanbul (Türkiye) Roads awaiting an investigation concerning the assistance rendered by the tugboats. The master declared general average as a consequence. Navalmar and the DGCS reached a settlement of USD 1,550,000 for the rendering of assistance. Cargo insurers issued an average guarantee. The average adjustment prepared by an average adjuster in Genoa (Italy) set the part of the general average to be paid by cargo interests at USD 955,800.

Held: Navalmar has complied with its obligation to show a prima facie case that there was a peril as referred to in r 6.a of the York-Antwerp Rules 1994 (YAR 1994) at the moment of the request for assistance on the morning of 6 December 2011: (i) when the Rochester Castle’s main engine speed was reduced from 105 rpm to 35 rpm by the intervention of an automatic safety system, the vessel began to drift towards the shallow waters of the Bosporus as a result of the loss of speed in combination with the effects of the current and wind; (ii) therefore the order ‘slow astern, half astern and full astern’ was given and both anchors were dropped; (iii) at a certain moment the anchors could not hold the vessel any longer and there was a real danger that the vessel might run aground. Navalmar, being the party on whom the burden of proof rests, is allowed to prove that the anchors of the Rochester Castle could not hold the vessel and that the vessel was drifting towards shallow waters. If Navalmar succeeds in providing the said evidence, it will be established that the aforementioned danger did exist, so that the request for assistance by the tugboats was necessary and that in principle the cargo interests have an obligation to contribute to the remuneration for the salvage reward paid.

After the incident in Türkiye, DGCS arrested the Rochester Castle for USD 5,000,000. This arrest was lifted after Navalmar’s payment of the claimed amount of USD 1,550,000.

Navalmar has to prove that this amount of money is ‘properly allowable’ according to Turkish standards within the meaning of r E of the YAR 1994. This entails that Navalmar must prove that it had good reasons to buy off the arrest instead of providing security pending legal proceedings in Türkiye.

In the event that Navalmar is able to (partially) prove this, the issue of the alleged unseaworthiness of the Rochester Castle remains to be determined. The incident occurred as a result of a reduction of the revolutions of the main engine, resulting from a defect in the ‘No. 2 piston cooling temperature monitoring sensor’, which is part of the automatic safety system. The dispute concerning the Rochester Castle’s unseaworthiness particularly relates to the question whether this defect in the sensor already existed prior to the voyage and resulted from the shipping company’s negligence in the maintenance of the vessel. Already at this stage of the proceedings the cargo interests are instructed to provide evidence that the event was the direct consequence of the unseaworthiness of the vessel, before or at the beginning of the voyage. In the event that the cargo interests are able to provide this proof, Navalmar is instructed to provide evidence that it exercised due diligence with respect to the vessel’s seaworthiness before or at the beginning of the voyage, all the foregoing in accordance with the Hague(-Visby) Rules and the applicable English law.