This case arose from an allision between 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 for limitation of its liability under the CLC 1992, after its earlier application to constitute a limitation fund under the LLMC 1996 was denied. NCC's application sought to have the amount of the fund established at SDR 15,991,676 without adding any statutory interest for the period between the incident and when the fund was constituted. NCC argued that under the CLC 1992 such statutory interest is not included, and that also the Wet aansprakelijkheid olietankschepen (Waot) (the Act which implements the CLC 1992 in Dutch national legislation) does not provide a basis for doing so.

Held: Application denied.

The States Parties to the CLC 1992 have not agreed anything about liability for statutory interest on the limitation amount. On that point, there is a lacuna in the CLC.

Article 9(2) Waot refers to national provisions in the Dutch Code of Civil Procedure (DCCP) relating to limitation proceedings. The Waot also applies to the implementation of the provisions of the CLC 1992. The constitution of a limitation fund is governed by Dutch law, and the provisions of arts 642a ff DCCP apply mutatis mutandis if a CLC fund is to be constituted, unless the Waot contains explicit exceptions. For example, art 9(2) Waot contains a deviation from art 642e DCCP for the lifting of prejudgment attachments. If it had been the intention to exclude the applicability of art 642c DCCP, which provides that interest is to be added to the limitation amount, and of art 8:757 Dutch Civil Code, to which Article 642c DCCP refers, when forming a CLC fund, an explicit exception to art 642c(2) DCCP in the Waot would have been logical. This means that, through art 9(2) Waot, there is a basis for adding statutory interest to the limitation amount of a CLC fund from the day after the incident until the day of the constitution of the fund.

The involved parties have a sufficient interest in adding statutory interest to the limitation amount. There is an interest in maximising the amount of the CLC fund. While the IOPC Fund provides a supplementary fund under the 1992 Fund Convention to the extent that the claims of the interested parties cannot already be met from the CLC Fund, the IOPC Fund has its own claims manual under which it assesses claims submitted, and thus applies its own strict criteria. A difference of opinion may arise between the liquidator assessing claims in the CLC fund and the IOPC Fund which, as an international organisation, also looks at the impact and interpretation of the CLC in other countries.

The application request must be denied, because NCC has explicitly stated that it does not wish to constitute a CLC fund with interest. Given the nature of the application (the shipowner has a right, but not a duty to invoke global limitation of liability) and also the express wish not to deposit interest into the CLC fund, such deposit cannot be ordered by the Court. The Court cannot award more than a party has applied for.

[See also Rechtbank Rotterdam 9 November 2018, CMI547; Gerechtshof Den Haag 27 October 2020, CMI1361; Hoge Raad 24 December 2021, CMI2262; Hoge Raad 31 March 2023 CMI2263.]