This case arose from an allision between the Bow Jubail, owned by National Chemical Carriers Ltd (NCC), with a jetty owned by 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 a second application to limit its liability under the CLC 1992, after its earlier application was rejected for failing to add statutory interest to the amount to which its liability would be provisionally limited under the CLC 1992 (see Rb Rotterdam 25 October 2023 (CMI2355).

Held: An applicant may choose in what manner it wishes to constitute a limitation fund.

To this end, the law offers the possibility of a deposit with the Consignment Office (of the Dutch Ministry of Finance) (art 642c.2 under the Dutch Code of Civil Procedure (DCCP)) or the provision of security in some other way (art 642c.2 under the DCCP, which includes, eg, the provision of a guarantee). Under this art and art 8:757 Dutch Civil Code, in the case of a deposit with the Consignment Office, the fund includes interest from the day after the occurrence up to and including the day after the constitution of the fund. For other means of providing security (such as the provision of a bank guarantee), the law explicitly provides in art 642c.2.b DCCP that the security also includes interest after constitution of the fund up to the day on which the calls for distribution, as referred to in art 642v DCCP, are published. The latter regime does not apply to deposits with the Consignment Office. The Consignment of Funds Act provides that interest on the consigned funds will be paid upon final distribution (art 9.2 Consignment of Funds Act). Interest begins to accrue on the first day of the month following the month in which the deposit was made and is calculated up to and including the last day of the month preceding the month in which distribution is made (arts 9.4 and 9.5 Consignment of Funds Act). If the court orders an applicant to constitute a fund and the applicant complies with it by making a deposit with the Consignment Office, then in accordance with the law the fund will include statutory interest up to the day after constitution of the fund.

The provisions of art 642a ff DCCP and treaty law do not provide any basis or room for the view that the court should, on the basis of a weighing of interests, determine which manner of constituting a fund would generate the highest possible amount of interest for the creditors at that moment, and impose that manner of constituting a fund on an applicant. To do otherwise would impermissibly undermine the principle that the debtor is free to choose whether to constitute a fund by making a deposit or by providing a guarantee. It is precisely because of that freedom of choice that creditors cannot enforce a deposit or security order in the limitation proceedings (Hoge Raad 1 May 1981, Blue Hawk (CMI2643)). The fact that NCC's choice to constitute a fund by making a deposit with the Consignment Office ultimately has the effect of depriving creditors of a claim to a higher interest rate (as would be the case with the provision of a guarantee) does not alter this. After all, both methods of constituting a fund are put on the same footing in the provisions of arts 642a ff DCCP and in art 5.3 of the CLC 1992 (cp also Rb Rotterdam 18 December 1995, Wladyslaw Jagiello (CMI2642)), as a result of which it cannot be said that one method of constituting a limitation fund should have preference over the other.