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"Hanjin Oakland" and "Micoperi 7000"

2009 May 6
by Philippine Beerman

Court: Netherlands Supreme Court

Date: September 12th, 1997

[Schip & Schade 1997, 122 & 123] The two cases are not published on the internet.

Hanjin Oakland Case: Carriage aboard the M/V "Hanjin Oakland" of four boxes with machine tools from Taiwan to Rotterdam. The bills of lading are issued by CTI. The "Hanjin Oakland" is registered in South Korea and owend by Hanjin. Cargo underwriters initiate proceedings under the bills of lading against CTI and obtain a judgement by default. Cargo underwriters intend to take recource against the vessel, which gives rise to the question which law is applicable to the alleged right of recourse and whether this right should be recognized in The Netherlands.

Micoperi 7000 Case: Under a bareboat charter Micoperi Offshore lets and Micoperi S.p.a. ("Micoperi") hires the "Micoperi 7000", a self propelling crane barge. United Towing, the owner the Salvageman and the Seaman, two tugs, enters into an agreement with Micoperi for the use of the tugs at the North Sea for the projects Veslefrikk, Togi en Gyda from May 1989 till February 1990. Separate Charter Parties are entered into with regard to the Veslefrikk and Gyda projects. The duties are described in Exhibit A to the Charter Party: "Anchor Handling Support Duties for the Micoperi 7000. Towage of M, 44. Support Duties als per addendum." At a certain stage Micopery fails to pay Charter hire, reason for United Towing to arrests the Micoperi in the Rotterdam Port. The debtor of the claim files for suspension of payment proceedings in Italy and subsequently goes bankrupt. In the subsequent court proceedings regarding the arrest at Rotterdam Micoperi Offshore argues that United Towing is not in a position to take recourse against the Micoperi as the debtor Micoperi is not the Owner of the Micoperi.

Held: The Netherlands Supreme Court ruled that the cases should be resolved along the lines of the Act of March 18th 1993 containing certain rules of Private International Law with regard to Maritime and Inland Navigation Law. Article 3 of this Act formulates the rules for the distribution of proceeds of a ship in case of a bakruptcy or a judicial sale. In the two rulings the Netherlands Supreme Court decides that the provisions of Article 3 are to be applied in all cases where recourse is taken against a ship, amongst which cases where a ship has been conservatory arrested.

Under the provisions of Article 3 the Lex Causae should be applied to the question of existence and extent of the claim. The question whether rights of recourse are granted and enforceable against assets (the ship) of third partis is subesquently answered as follows. The claim must be privileged under the Lex Causae (the law governing the claim) as well as under the Lex Registrationis (the law of the flag state of the vessel). In the ranking of privileges the Lex Fori plays a role, as no privilege higher than hypothec will be granted, unless a similar higher privilege exists under the laws of the Netherlands. In the Hanjin Oakland case this lead to dismissal of the claim of cargo underwriters. In the Micoperi 7000 proceedings were referred back to a Court of Appeal to decide in accordance with the rules as formulated by the Netherlands Supreme Court.

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