This case arose from a collision by the Bow Jubail, owned by National Chemical Carriers Ltd (NCC), with a jetty of LBC Tank Terminals in the Derde Petroleumhaven in Rotterdam on 23 June 2018, as a result of which fuel oil flowed into the port and caused damage. NCC submitted an application to limit its liability on the basis of a property fund in accordance with the LLMC 1996.

Held: Application dismissed.

It must be determined whether the incident is covered by the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (​the Bunker Convention) or by the International Convention on Civil Liability for Oil Pollution Damage​ 1992 (the CLC 1992). In short, the CLC 1992 has been drawn up for oil spills from ships that carry or may carry mineral oil as cargo, and the Bunker Convention has been drawn up for spills of marine fuels from all seagoing vessels of whatever type. Applying the Bunker Convention leads to a lower maximum liability of NCC than applying the CLC 1992.

NCC's application is solely aimed at limiting liability in accordance with the Bunker Convention, and not alternatively at limiting liability in accordance with the CLC 1992. As a result, if the Court can determine that the Bunker Convention applies, it can in principle grant NCC's application for limitation. However, if the Court cannot determine that the Bunker Convention applies, or finds that the Bunker Convention does not apply, then NCC's application must be dismissed.

In principle, the incident falls within the scope of application of the Bunker Convention, because there is loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship as referred to in art 1.9 of the Bunker Convention in the territory of a contracting party (art 2.a.i of the Bunker Convention). In cases that are covered by the CLC 1992, liability cannot be limited in conformity with the Bunker Convention / LLMC 1996. In accordance with art 4.1 of the Bunker Convention, that Convention does not apply to pollution damage as defined in the CLC 1992, whether or not compensation is payable in respect of that damage under that Convention.

For the CLC 1992 to apply it is necessary that loss or damage is caused outside the ship by contamination resulting from the escape or discharge of oil from the ship in the territory of a Contracting State (arts 1.6 and 2.a.i). Unlike the Bunker Convention, the CLC 1992 does not only refer to pollution by bunker oil, but to a wider notion of 'oil'. Article 1.5 defines oil as 'any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship'.

The Bow Jubail is a seagoing vessel that can carry both 'oil' within the meaning of the CLC 1992 and other types of cargo. The Convention applies to such a ship at times when the ship is actually carrying oil in bulk as cargo and during any voyage following such carriage, unless it is proved that it has no residues of such carriage of oil in bulk aboard.

The decision to be taken will apply in respect of all interested parties, including those who have not been involved in the limitation of liability procedure, and the Court must also consider, in view of their interests, which Convention applies, even if the application or the defence put up against this application does not give occasion for this.

During the last voyage of the Bow Jubail, persistent oils were on board as cargo. The question is whether there were residues of persistent oils on board at the time of the collision. In support of the claim that there were no residues of persistent oils on board the Bow Jubail, the applicant relied on various documents, including a summary and incomplete report by Van Ameyde Marine. Van Ameyde Marine concludes that there were no residues of persistent oils on board before and at the time of the incident, but it remains unclear on what that conclusion is based. The documents submitted by NCC do not provide a sufficiently complete and clear picture to be able to establish that the Bow Jubail did not carry any residues of such carriage of oil in bulk at the time of the incident as provided for in art 1.1 of the CLC 1992.

In application proceedings for limitation of liability, where an application must lead to a decision with effect against every possible interested party, the applicant must provide sufficient factual information to enable the Court to determine the question put before it and the legal framework to be applied. An applicant must substantiate its request in such a timely, clear and well-substantiated manner that defendants, interested parties and the court can hold a proper and well-prepared debate at the hearing and that the court can subsequently decide on it. Once an application for limitation of liability has been granted, it can still be decided at a later stage and in particular in claim validation proceedings, that there is no right to limitation of liability, just as a further substantive debate can be held on other specific disputed points. Limitation proceedings are, in view of their nature and the possibility of further debate in claim validation proceedings or on appeal, not suitable for the presentation of evidence in the first phase of the procedure.

It is not appropriate to grant NCC's application (if necessary provisionally or conditionally) on the basis of the LLMC 1996 / Bunker Convention as long as there is no clarity about whether the application of the Bunker Convention is excluded by CLC 1992. Which Convention applies has other consequences than merely the level of the liability limit, which argues against creating a situation of provisional or conditional application of the LLMC 1996 / Bunker Convention. There is no time limit for submitting a application for limitation of liability. The time of submission has no consequences for the handling or granting of the application. NCC could therefore take all the time it needed to prepare its application and to substantiate it with documents. For all these reasons, the existing incompleteness of the documents and lack of clarity about the presence or absence of residues of oil within the meaning of the CLC 1992 will be at the expense of NCC and it will not be given an opportunity to complete its position. Given this state of affairs, the Court must assume that the Bow Jubail qualifies as a ship referred to in the CLC 1992, so that NCC cannot invoke the Bunker Convention / LLMC 1996.

[For the unsuccessful appeal to the Gerechtshof Den Haag, see National Chemical Carriers Ltd v Damen Rotterdam Verolme BV (The Bow Jubail) (CMI1361).]