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"Cape May"

2009 July 7

United States of America v. Havenschap Delfzijl/Eemhaven

Court: Netherlands Supreme Court

Date: November 12th, 1999

LJN number: AA3368

Case: The "Cape May", a Ready Reserve Force Vessel owned and operated by the United States of America, took berth in the Eemshaven in The Netherlands in November 1990. The port call was not very fortunate. A number of boiler tubes fell overboard and were salvaged by the port authority. Later the vessel broke loose from her berths in a gale and the vessel damaged the quay owned by the port authority. The port authority filed a claim for costs and damages at the Court of Groningen. The United States of America claimed jurisdictional immunity, alleging that the "Cape May" was involved in the Operations of Desert Storm and Desert Storm and thus employed in a governmental and non-commercial service. In order to establish whether immunity should be granted, the Court of Groningen and the Court of Appeal distinguished between a State's acting by virtue of its sovereignty (iure imperii), and a State's acting according to private law (iure gestionis). In this interpretation of the rules of Public and Private International Law by the lower Courts the principle of immunity from jurisdiction is applicable only in the first case. Based on this principle it was held that taking berth and damaging a quay did constitute an act according to private law and thus the United States of America were not in a position to claim immunity. The United States of America appealed to the Netherlands Supreme Court.

Held: The Netherlands Supreme Court did not follow the lower Courts. Under Article III of the Brussels Convention for the Unification of Certain Rules Concerning the Immunities of Government Vessels of April 10, 1926, it should be established whether the "Cape May" was employed in a governmental and non-commercial service at the time of the incidents. In that case jurisdictional immunity should be granted. This is in line with decisions of Courts abroad and with international legal literature. The Netherlands Supreme Court also referred to Article 30 of the European Convention on State Immunity (Basle, 1972) that specifically excludes the application of the Convention in respect of claims relating to the operation of seagoing vessels owned or operated by a Contracting State. Moreover the Netherlands Supreme Court followed the Advocate General, who referred to a similar Article 16 regarding "Ships owned or operated by a State" of the Draft Articles on Jurisdictional Immunities of States and Their Property (Report of the International Law Commission on the work of its forty-third session, 29 april – 19 july 1991, United Nations, General Assembly, Official Records: Forty-sixth Session Supplement No. 10 [A/46/10]), accepted by the International Law Commission in 1991. The decisions were quashed and the case was referred back to another Court of Appeal, which subsequently ruled in favour of the United States of America.

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