This was an allision in November 2012 whereby the anchor of the Delfborg, legally owned by Smith, economically owned by Delfborg and sailing under time charter for Wagenborg, inflicted damage to a cable of Baltic Cable in the Baltic Sea, within the territorial waters of Sweden. On 15 March 2013 Baltic Cable commenced proceedings on this issue against Smith, Delfborg, and Wagenborg in the Court of Malmö (Sweden). In turn, on 1 May 2013, Wagenborg summoned Smith and Delfborg (together referred to as the respondents) before the Court of Noord-Nederland (the Netherlands). On 6 May 2013, the respondent Smith submitted an application for limitation to the Court of Rotterdam (the Netherlands) in which both Baltic Cable and Wagenborg are mentioned as interested parties. In a decision of 5 July the Court allowed the respondents to constitute a property fund and appointed a supervisory judge and a liquidator. In a decision of 5 August 2013 the Court confirmed that the respondents had constituted the limitation fund. On 9 August 2013 Wagenborg submitted an application to the Court of Rotterdam to be protected by the fund constituted by the respondents. The Court joined the application of Wagenborg with the application of the respondents on 11 September 2013. In a decision of 18 September 2013, corrected by the decision of 21 October 2013, the Court rendered a declaratory decision at the request of Wagenborg, among other things, that the limitation fund constituted by the respondents was deemed to have also been constituted by Wagenborg. Baltic Cable filed claims with the fund's liquidator. During the verification of the claims, on 12 February 2014, the supervisory judge referred the parties to the claim validation proceedings for a decision on the following issues: (a) the alleged liability of Smith and Wagenborg towards Baltic Cable; (b) the amount of the claims of Baltic Cable; and (c) the allegation by Baltic Cable that the respondents and Wagenborg were not entitled to limit liability. Baltic Cable challenged the jurisdiction of the Court.

Held: With regard to the question of jurisdiction of the Dutch Courts in both applications for limitation, the following applies. The LLMC 1976, amended by the 1996 Protocol (together referred to as LLMC), was in force in both Sweden and the Netherlands at the time of the events in this case and it is self-executing in the Netherlands. Pursuant to art 11.1 of the LLMC, the procedure of constituting a limitation fund has to be conducted in the State Party where legal proceedings have been instituted as referred to in that subparagraph against the person alleged to be liable. This requirement was met at the time of the submission of the application by the respondents given the fact that the respondents summoned Wagenborg on 1 May 2013. At the time of the submission of the application of Wagenborg, the respondents had constituted a limitation fund. Wagenborg applied to the Court on the basis of art 11.3 of the LLMC to render a declaratory judgment that the limitation fund is deemed to have also been constituted for claims against Wagenborg. The requirement of art 11.1 of the LLMC of legal proceedings in the State Party where the limitation fund has been constituted, does not apply with respect to an application for a declaration that an already constituted limitation fund is also constituted for claims against another debtor, as meant in art 11.3 of the LLMC.

The Brussels I Regulation does not contain a rule on jurisdiction with respect to an application for the constitution of a limitation fund, respectively for a declaration that the constituted limitation fund is to be regarded as being constituted for the debtor in question as well, or for limitation of liability, save the provisions of art 7. Article 7 of the Brussels I Regulation does not have the effect of restricting the jurisdiction of courts of the Member State where the shipowner has its place of residence with regard to applications or actions for limitation of liability.

In principle the Dutch courts have jurisdiction on the basis of art 2 of the Brussels I Regulation in respect of the claims against the respondents and Wagenborg, since they are residing or domiciled in the Netherlands. Accordingly, Wagenborg summoned the respondents before the Dutch court having jurisdiction. Baltic Cable makes a distinction between, on the one hand, respectively jurisdiction regarding the respondents’ application to be allowed to constitute a limitation fund, and Wagenborg's application for a declaration that the constituted limitation fund is to regarded as also constituted for him; and, on the other hand, the respondents’ and Wagenborg's applications to be allowed to limit their liability. Such a distinction does not exist in the Brussels I Regulation or in the Dutch procedure for limitation of liability. If they wanted to invoke the limitation of liability before the Dutch Court following the summons by Wagenborg, the respondents were bound pursuant to art 11 of the LLMC to submit an application to the Dutch court and in accordance with the Dutch rules in order to limit liability and constitute a limitation fund.

Pursuant to art 3 chapeau and para a of the Dutch Code of Civil Procedure (DCCP) the Dutch court has jurisdiction with regard to the respondents’ application, because the respondents are resident/domiciled in the Netherlands. Moreover, as the ship is registered in the Netherlands, this limitation procedure is sufficiently connected to the jurisdiction of the Netherlands, even though the incident did not take place in the Netherlands and the interested party Baltic Cable is not domiciled in the Netherlands (art 3 chapeau and para c of the DCCP). Pursuant to art 642a para 1 of the DCCP the Court of the district within which the ship registry office where the ship is registered is situated has jurisdiction to hear an application for limitation of liability. At the time of the submission of the respondents’ application, the ship was registered in the Ship Register of Rotterdam. This Court therefore has jurisdiction to hear the respondents’ application.

The procedure with regard to the right (under art 11.3 of the LLMC and art 8:750 of the Dutch Civil Code (DCC) in connection with article 8:758 para 1 chapeau and para a of the DCC) for a determination of whether a limitation fund constituted for one and the same incident is to be regarded as having been constituted by all persons that fall within the group mentioned in art 2 of the LLMC, is governed by the law of the state where the fund is constituted on the basis of art 14 of the LLMC. Therefore, in the case of such an application by Wagenborg, by Dutch law.

Pursuant to art 3 chapeau and para a of the DCCP the Dutch Court has jurisdiction with regard to such an application by Wagenborg, as Wagenborg is domiciled in the Netherlands. Moreover, as the ship is entered in the Dutch ship register, this limitation procedure is sufficiently connected to the jurisdiction of the Netherlands, even though the incident in question did not take place in the Netherlands and the interested party Baltic Cable is not domiciled in the Netherlands (art 3 chapeau and para c of the DCCP). Dutch legislation contains no further procedural rules on the matter of obtaining such a declaration. As decided before, the person concerned must submit an application as referred to in article 642a of the DCCP for this purpose (Rechtbank Rotterdam 30th of October 2002, Schip en Schade 2003/26, 'Mighty Servant II'). Therefore, this Court also has jurisdiction with regard to Wagenborg's application.

It can be admitted to Baltic Cable that the fact that the summons of 1 May 2013 against the respondents was not submitted to the Court by Wagenborg seems to imply that Wagenborg does not want to pursue its claim against the respondents and that the summons was therefore only issued to create an action in the Netherlands within the meaning of art 11 of the LLMC. However, Wagenborg has submitted its claim to the liquidator of the limitation fund that was constituted following the summons of Smith. From this, it appears that Wagenborg is indeed pursuing this claim. The fact that Wagenborg has not submitted the case against the respondents to the Court of Noord-Nederland does not imply that the jurisdiction of the Dutch Court with regard to the respondents’ application for limitation of liability and constitution of a fund has lapsed. That application initiates a wholly separate procedure. It is, therefore, incorrect to argue that the respondents and Wagenborg abuse process against Baltic Cable. The Dutch courts have jurisdiction with regard to the respondents’ and Wagenborg's applications.

The action for damages pending before the Court of Malmö initiated by Baltic Cable cannot be considered as a claim involving the same subject matter and as related to the same cause of action within the meaning of art 27 of the Brussels I Regulation as the applications pending before this Court are pending applications for limitation (ECJ, 14 October 2004, Schip en Schade 2006/97, ‘Cornelis Simon’; Maersk Olie & Gas ECLI:EU:C:2004:615 (CMI2211)).

From the point of view of the provisions of the LLMC and their incorporation in the national law, with proceedings which are not directed at one particular creditor, but which are general proceedings directed at all possible creditors in respect of a certain incident, it stands to reason that the judgment on the question whether the ship owner has the right to limit its liability, should in principle also be given by the Dutch court where the limitation fund was constituted and not by another court that only has to decide on a claim of one creditor against that ship owner. It does not appear from the wording of the Swedish summons of 15 March 2013 (Malmö) that the limitation of liability by the respondents and Wagenborg was clearly put before that Court to be decided there. At this stage, therefore, it has not been established that the limitation of liability by the respondents and Wagenborg was put before the Court of Malmö prior to having been put before this Court. For this reason, the motion for dismissal for lack of jurisdiction on the issue of limitation of liability due to lis pendens is denied.

On the question of lis pendens with regards to the issues of liability for the alleged allision and the amount of the claims of Baltic Cable it is decided that those issues were pending before the Court of Malmö prior to having been put before this Court. Pursuant to art 27 of the Brussels I Regulation, this Court should stay its decision on this issue until the jurisdiction of the Court of Malmö has been decided upon and, when that jurisdiction has been decided upon, decline jurisdiction on these issues.

With regard to the application by Baltic Cable for a stay of proceedings because of related actions (art 28 of the Brussels I Regulation) it is decided that, as currently only a limitation fund has been constituted with the Dutch courts in connection with this incident, it does not stand to reason that the Dutch court will stay the limitation proceedings so that the Malmö Court can decide on the limitation of liability first. It is more logical to keep the issue of limitation of liability concentrated in the Dutch courts.