B&N Nordsjöfrakt et alia v. Westereems
Court: Netherlands Supreme Court
Date: September 29th, 2006
LJN number: AX3080
Case: At January 25th, 2003 a collision took place between the vessels "Seawheel Rhine" and "Assi Euro Link" north of Terschelling in international waters above the Dutch part of the Continental Shelf. The Assi Euro Link sank as a result of the collision, resulting in substantial claims, one of which was a claim for wreck removal costs filed by the Dutch State. The owners of the Seawheel Rhine were sued both by the owners of the Assi Euro Link and by the Dutch State in the Dutch court of Groningen. Owners commenced arbitration proceedings in Stockholm under a bareboat charter in order to be held harmless by the bareboat charterer.
In February 2003 the bareboat charterer asked and obtained permission from the Stockholm District Court to constitute a limitation fund as meant in Convention on Limitation of Liability for Maritime Claims 1976, a convention to which both The Netherlands and Sweden are a party. There is however a difference, as the Netherlands made a reservation when it ratified the Convention. Under the Dutch system it is required to establish an additional wreck removal fund, so the total of the fund in Sweden was less than under the Dutch regime. An appeal lodged by the owners of the Assi Eurolink against the decision was rejected. Despite the establisment of the Swedish fund, Westereems asked and obtained permission to arrest the Seawhweel Rhine in Rotterdam at March 13th, 2003, forcing the owners of the Seawheel Rhine to put up additional security. The security was put in place under protest and owners commenced legal proceedings in The Netherlands in order to have it returned. Both the Rotterdam District Court and the Court of Appeal in The Hague dismissed the request for the return of the additional security, ruling that the arbitration proceedings initiated by the owners against the bareboat charterer should not be considered to be legal proceedings as meant in Article 11 of the London Convention. The case was subsequently brought before the Netherlands Supreme Court.
Held: The Netherlands Supreme Court referred to the judgment of the European Court of Justice in Case C-39/02 Maersk/De Haan  ECR I-09657 and ruled that a decision to constitute a liability limitation fund under the Convention on the Limitation of Liability for Maritime Claims 1976 should be recognition in another Member State without review of the underlying facts and the jurisdiction of the Member State of origin under Regulation (EC) No 44/2001 ("Brussels I"). It was argued that Westereems had not been duly served on or notified of the limitation proceedings in Sweden, but this lacked relevance, given the timely appearance in appeal in Sweden. Follows an order to return the security.