HFW recently acted for one of the interested parties in Lloyds Open Form (LOF) arbitration proceedings following a casualty in the Mediterranean. This decision is of particular interest when considering the meaning of the words “immobilised until professionally assisted.”
The facts of the case were straightforward. The ship in question, a modest general cargo vessel, sustained a main engine breakdown. It was accepted that there was no prospect of repairing the vessel at sea.
The vessel owners entered into a LOF 2011 contract with salvors, following which the vessel was towed into a port of safety by an anchor handling tug. After a tow of approximately 300 miles, the vessel was handed over to a harbour tug for the final 30 mile tow into port. The weather and sea conditions were very good throughout the salvage services. The case went before a LOF arbitrator to determine the remuneration due to the salvors.
The arbitrator considered that the salvage services amounted to a simple pick and tow in benign wind and sea conditions. He said that these services were “well within the capabilities of any relatively modest tug with a towing capability”, such as the harbour tug which brought her into port. Having made his finding of fact regarding the nature of the salvage services, the arbitrator rejected the salvor’s argument that professional assistance was reasonably required.
Under Article 13 of the Salvage Convention 1989, one of the criteria for determining the quantum of a salvage award is “the nature and degree of the danger”. Salvors will often advance a case that the salved vessel was “immobilised until professionally assisted.” Arbitral tribunals have, for some years, differentiated between the risk of immobilisation until assisted and the risk of immobilisation until professionally assisted. Indeed, the LOF Digest Issue 17 stated that for some years it had been the practice in salvage arbitrations “to differentiate between the risk of immobilisation until assisted and the risk of immobilisation until professionally assisted.”
The salvors appealed the decision to the LOF Appeal Arbitrator, Sir David Steel, arguing that the arbitrator had wrongly dismissed their case on the nature and degree of the danger in finding that the service was within the capability of a harbour tug. The central feature of the appeal was the alleged distinction between an immobilised vessel in need of assistance and an immobilised vessel in need of professional assistance. They said that given the nature, length and route of the tow and applying the correct legal test the casualty was immobilised until assisted by a professional salvor.
Sir David Steel, after hearing the parties’ arguments, granted the salvor’s appeal. He found that, when considering dangers, it was not possible to differentiate between a vessel needing assistance and a vessel needing professional assistance. He said that it was not possible to make this demarcation in any reliable or coherent manner and that the distinction was “unreal or at least as lacking any useful specificity”.
In passing, Sir David Steel recognised that it may once have been possible to draw distinctions between the various degrees of towage skill. For example, a distinction could previously be drawn between companies on the one hand who tendered for towage both in ports and at sea and companies who maintained station tugs which seldom engaged in anything other than salvage. Nowadays, however, even the smallest harbour tug would have a skilled and experienced crew able to exhibit “professional” towage skills significantly higher than the crew of a typical cargo vessel.
Sir David Steel’s decision should, for now at least, remove the need for future debates on this distinction which history has shown was so difficult to define.