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Ship arrest for wages and disbursements

2009 March 23
by Hein Kernkamp

Zehnpfenning v. Framroad Ltd.

Court: Netherlands Supreme Court

Date: January 23rd, 2009

LJN number: BG3588

Case: Zehnpfenning was employed as a seafarer by the charterer of the S/Y Pamina, a sailing yacht owned by Framroad. However, the parties did not sign a written contract of employment, as prescribed by Dutch law. In a case before the Cantonnal Court between Zehnpfenning and the charterer, it was nevertheless held that the charterer had to pay to Zehnpfenning overdue accrued holiday payments and various disbursements relating to the repair of the vessel, increased with legal interest. The charterer did not appeal the decision, but subsequently failed to pay.

Zehnpfenning arrested the S/Y Pamina in the marina of Zaandam, The Netherlands. Framroad requested the Court to release the vessel from arrest. It argued that verbal employment agreements with seafarers are to be held null and void under article 398, paragraph 1 of the Commercial Code. The requirement for a written agreement is in line with the ILO Maritime Labour Convention of 2006, which is ratified by The Netherlands and is expected to come into effect in The Netherlands' jurisdiction in 2010. The court in first instance held that the arrests were to stay in place, as it was clear that Zehnpfenning had a contract of employment. The court of appeal however ordered the arrests to be lifted, as Zehnpfenning did not avail of a written contract of employment.

Held: The Netherlands Supreme Court ruled that it is unacceptable that a maritime employee cannot recover his claims against the charterer and the ship, even after receiving an irrevocable title based upon a verdict in which it was held that there was indeed a contract of employment (albeit oral). Moreover, article 398 of the Commercial Code only applies between the parties in a contract of employment; a third party such as the ship owner cannot invoke this article.

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