ECLI:NL:RBROT:2018:683

Rechtbank Rotterdam · 31-01-2018 · zaaknummer C/10/413449 / HA ZA 12-1036

Inhoudsindicatie

Eindvonnis na tussenvonnis van 2 april 2014 (ECLI:NL:RBROT:2014:6083). Bijdrage avarij-grosse. Bewijswaardering na hulpverlening door sleepboten op de Bosporus. Gevaar aangenomen in de zin van de York Antwerp Rules (YAR). Redelijkheid van het betaalde hulploon. Was schip, de “Rochester Castle”, onzeewaardig? Summary in English 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 (Turkey) 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. Navalmar issues proceedings against the cargo interests for a declaration that they are obliged to pay their contribution in general average in accordance with the average adjustment. Navalmar succeeds in proving that the ship was in danger at the moment the master accepted the assistance. It follows from BMT's report and a video reconstruction that the Rochester Castle's anchors no longer held, and that the ship was drifting towards shallow waters. The fact that there is no mention of a dragging anchor or a situation of danger in the ship's journal does not carry enough counterweight to the report that is based on several sources. It is not relevant that the danger was (partly) caused by bad seamanship to accept that there is a situation of danger as referred to in r 6.a, York-Antwerp Rules 1994. Navalmar also succeeds in proving that the salvage reward of USD 1,550,000 it paid was reasonable to have the attachment lifted instead of issuing a guarantee and await the outcome of legal proceedings in Turkey. It follows from an opinion of a Turkish professor that in Turkey when determining the settlement amount one normally looks at the salved value of the ship, the cargo, the bunkers on board and the outstanding freight. It also follows from that opinion that a settlement below 6% of total salved value amounts to an excellent closing of the matter, and that a settlement between 6% and 7% of the salved value would be a reasonable result. The settlement reached in this case corresponds with around 6% of the salved value, which therefore is reasonable to prevent protracted and costly proceedings in Turkey, despite the fact that the Turkish courts have awarded a lower salvage reward (2.5%) in the matter of the Energizer. The cargo interests, who argue they are not obliged to contribute in general average because the incident is the direct result of unseaworthiness before or at the beginning of the voyage, remain stuck in assumptions and do not deliver any concrete evidence of the alleged unseaworthiness of the ship before or at the beginning of the voyage. This is not changed by the fact that during the voyage the crew possibly spoke over the telephone with the shipowner about technical problems which could possibly have caused the need to accept tug assistance. The requested declaratory judgment is rendered.

Rechters

• P.C. Santema

Advocaten

• H. Posthumus Meyjes
• R.P. van Campen

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