SD REBEL BV (2) The Master, Officers & Crew of the Tug “VB Rebel” v Elise Tankschiffahrt KG
Antisuit injunction
Whether a jurisdiction clause has been agreed or incorporated – Article 10 Rome I Regulation (Regulation (EC) No 593/2008)
Plea of non est factum – whether valid
Plea of uncertainty
Master Richard Davison held : –
– Salvage claim will be awarded when there is clear salvage of a vessel.
– As a matter of principle, whether a jurisdiction clause has been agreed or incorporated is governed by the putative law applicable to the contract… That is also the effect of the article 10(1) of the Rome I Regulation (Regulation EC) No 593/2008), which forms part of the UK’s body of “retained” EU law.
– Under English law, neither the plea of non est factum nor that of uncertainty are worthy of serious consideration when the standard form utilised in the circumstances does not contain any unusual or special terms.
– Before the execution of a document, proper enquiry is required when a document is not understood. A failure of proper enquiry binds the signatory and his principal.
– The document is clear as it provides for English law and jurisdiction in London. On any reasonable interpretation that means that the courts in London, including this court.
– An antisuit injunction will be allowed and a declaration will be made that a claimant is entitled to damages in respect of any losses flowing from a defendant’s breach, including any liability for damages or costs under the judgment of a foreign court.
– The court will also direct that any such damages are to be assessed by the Admiralty Court and permission to apply for such purpose will be given.
Factual Background
The claimants are SD Rebel BV as owners of the tug “VB REBEL” and (2) the Master. Officers and Crew of the VB REBEL. The tug was operated by Boluda Towage Rotterdam BV (Boluda). The Defendant is Elise Tankschiffahrt KG, which was the owner of the inland waterway tanker “MV STELA”. The STELA was chartered to Beresina UG at the relevant time.
The cargo on the STELA was carried in tanks 1,3 and 5. The tanks are double-bottomed and there are cofferdams before the first and after the last tanks.
It was agreed between the parties that her salved value was 1.8million Euros. The cargo owners, Exxon Mobil Asia Pacific Pte Ltd stated in correspondence that he cargo was valued at USD 593,943 / €546,427 Euros. No one questioned that figure. That produces a total salved fund of approximately €2,346,427 Euros.
The VB REBEL is an azimuth stern drive tug. She forms part of Boluda’s large fleet of tugs.
On 14.11.2023, The STELA was on a voyage from Rotterdam to Antwerp. As she approached the port of Scheurhaven via the Calandkanaal she was contacted repeatedly by Rotterdam port control between 0635 and 0640 to inform her that she was heading directly for the mole which separates the port from the canal. These calls were picked up by the VB REBEL. Although a crewmember of the vessel did respond to the calls from port control, it appears that there was some misunderstanding or breakdown in communications. That, combined with what was evidently poor navigation and a poor lookout, led to the vessel remaining on her course. Making approximately 5-6 knots she duly collided with he tip of the mole coming to rest with the forward part of her bow section grounded on the berm of boulders which form a submerged barrier / protection to the mole itself.
The tug had just completed a routine contract in the main Europoort and was proceeding to berth. She was only a mile away and immediately diverted in order to assist the vessel. The Master instructed the deckhand to prepare the towing connection in case it was needed. She arrived on the scene some 5 minutes later. The vessel was stationary on a heading of about 308 degrees. Her bow was about 10 cm out of her marks indicating that she was aground forward.
At this time, it was dark, the wind was West-South West (WSW) (on the port bow of the vessel) Bft 7 (Beaufort wind force scale) diminishing to Bft 6. The tide was ebbing. The Master of the tug estimated that the tidal current was running at approximately ½ knots. Low water was at 0815 and tide had a further 0.5m to drop.
The Master’s intention was to offer the services of the tug on the basis of Lloyd’s Open Form. He received no response to attempted communication via VHF and so agreement on that basis was not possible. However, the vessel’s crew communicated by visual signals with the tug’s deckhand and Master to make fast. The Master of he tug initially did not want to make fast as he had concerns regarding possible hull damage to the vessel and spillage of her cargo. He then noted that the stern of the vessel was had come around to starboard so that her heading was now 290 degrees. He was concerned that she was working on the rocks where she had grounded and that this might cause damage / further damage. He therefore made fast to the vessel’s stern without delay so as stabilise her position and prevent further movement until he was told that it was safe to pull her free. He informed port control of his intention and a line was passed to the vessel’s crew through the after fairlead and made fast to a stern bollard. He then maintained station with minimal weight on the connection.
By now a port authority launch “RPA 12” was on the way to the incident. The skipper and personnel of RPA 12 manoeuvred their launch alongside both port and starboard of the vessel. They were able to confirm that the crew of the vessel had already stated to the tug, that there appeared to be no escape of cargo or pollutants and that it was safe to tow her free. At about 0715, the tug (using a short tow line due to the restricted area) slowly increased power astern until the vessel began to come free. This occurred within 2-3 minutes. After she was clear of the mole, the vessel started to use her main engine and bow thruster and with some further assistance from the tug was able to come alongside at berth HBR 1 close to Scheurhaven. The line was disconnected and returned at 0720. The duration of the services was therefore some 40 or 45 minutes.
A later drydock inspection of the vessel confirmed that she had sustained no damage.
The Master of the tug went aboard the vessel. Port authority personnel were also aboard. He presented the Master of the STELA with a “Certificate of Safe Delivery” for them both to sign. Both duly did sign. It said:
“I, the undersigned Master of the m.t. Stela hereby certify that my vessel together with her cargo (if any) was safely delivered to me by the Master of the tugboat VB Rebel at Rotterdam – Caland 1 this day of 14-11-2023 at 07.21 hours local time, where she is presently lying safely moored on termination of salvage services. Any dispute arising out of the services performed by the tug will be settled in London, in accordance with English law.”
Mr. Buckingham for the Claimant inform the Court that the Certificate was a standard form document in general use by Boluda who drafted it.
Issues
The sole issue to be determined by the Court were as follows: –
Was the services amount to salvage?
Discussion and Analysis
Master Richard Devison held that the service provided was indeed salvage. He decided this way due to the fact that the STELA was hard aground forward, her bow section was resting on boulders and she was some 10cm out of her mark. The tide had further to fall. The tide had further to fall. Before a line was attached, she had pivoted approximately 18 degrees, thus presenting a risk of causing damage or further damage to her shell plating by “ working” on the boulders and a risk of obstructing het port of Scheurhaven to her starboard side.
Master Richard Devison also held there was also risk of more structural damage, particularly as the tide was falling. She could not have extricated herself from this situation without assistance unless she embarked upon a de-ballasting exercise which would have taken time, which would not have guaranteed success and which would still have required a tug to stand by to assist if necessary.
Master Richard Devison further held that there is the fact that the Master of the STELA signed a certificate containing an express acknowledgement that salvage services had been provided. His signature must be considered in the context that he had not “waved off” the VB REBEL, which was a professional tug boat providing towage and salvage services. On the contrary, he had accepted a line. There was no proof of the “vessel manoeuvred herself off the mole and the tug, although connected, did not pull her off”. Further, the written statement of the Master of the STELA does not say that the vessel manoeuvred herself off the mole under her own power and the experts do not offer any support for this suggestion.
The Master of the STELA also said that he was not offered LOF and due to communication problem, it was also not recognisable that it was a service and that it gave him the impression that it was a favour. This was not accepted by Master Richard Devison as he held that no professional tug in this situation would be offering his services as a favour.
Master Richard Devison also held that the vessel’s stern did indeed shift significantly to starboard despite presence of opinion that the heading of the STELA was unchanged.
Master Richard Devison additionally held that there is likely to be structural damage to the vessel if it was left in its state considering the water level was dropping.
The Award
Master Richard Devison was mindful of the professional approach with which Boluda carried out their operations and he held that their services are plainly deserving of considerable encouragement.
Master Richard Devison was also in agreement, on the point of encouragement, with the remarks of Mr Jeremy Russell KC in the Azurite (2022) LOFA 10.8.2022 at paragraph 57(c)(ii) and (iii) of the said arbitration award.
Master Richard Devison also made the following remarks on the specific criteria of salvage:-
a) The salved value of the vessel and other property – the salved fund was €2,346,427.
b) The skill and efforts of the salvors in preventing or minimising damage to the environment – There was no risk of cargo tanks being breached unless the vessel had been left in her stranded position over multiple tidal cycles. This risk was too remote to be taken into account in fixing an award.
c) The measure of success obtained by the salvor – the service was successful. The vessel was refloated without damage and returned to berth.
d) The nature and degree of the danger – as discussed earlier, there was danger of the vessel sustaining damage to her shell plating if she had “worked” against the boulders she had grounded upon. There was risk of more serious, structural damage. On the issue of availability of other tugs to be appointed by the Defendant, there was no evidence to prove whether there was assistance available from another source either within a short timescale or on terms other than salvage terms.
e) The skill and efforts of the salvors in salving the vessel, other property and life – the services were professional and well-performed. But it was a very simple operation.
f) The time used and expenses and losses incurred by the salvors – the timeframe was around 45 minutes. Looked at in the context of salvage claims generally, that is a very short timeframe. The claimants put forward no particular expenses or losses.
g) The risk of liability and other risks run by the salvors or their equipment – none in particular was put forward
h) The promptness of the services rendered – the services were practically immediate. The tug identified the unfolding situation from radio exchanges and arrived only minutes after the vessel had gone aground
i) The availability and use of vessels or other equipment intended for salvage operations – the tug and the equipment used were immediately available. This was a single tug using no specialist salvage equipment.
j) The state of readiness and efficiency of the salvor’s equipment and the value therefore – the equipment were immediately ready, available and efficient. No particular value was in evidence, but it is obvious that a sea going, azimuth stern drive tug is a valuable asset.
Decision
The court allowed the claim of £90,000 of which the proportion attributable to this defendant is 76.71% i.e. £69,039. As such the sum payable by the defendant is £69,039.
In addition to this, an antisuit injunction is allowed and a declaration was made that the claimants are entitled to damages in respect of any losses flowing from the defendant’s breach, including any liability for damages or costs under the judgment of the Rotterdam court. The court also directs that any such damages are to be assessed by the Admiralty Court and permission to apply for such purpose will be given.
This case summary was prepared by Chakaravarthi Thillainathan, Principal Associate at Low & Partners, Malaysia. We thank Dr. Arun Kasi, Barrister at 4-5 Gray’s Inn Square, London, for his insightful input on the case.