On 15 October 2014 V Marine in Rotterdam supplied fuel oil to the Forest Park, which was owned by Dexhon and managed by Zodiac. For this delivery, V Marine sent an invoice to OW Bunker (Netherlands) BV (OWB NL) which bought the fuel oil that Zodiac ordered from OWB NL. The invoice named as recipient ‘Master and/or Owner and/or Managing Owners and/or Operators and/or Charterers and/or Buyers of MV ‘FOREST PARK’ and [OWB NL]’ with OWB NL’s address. In turn, OWB NL charged a slightly higher amount to ‘M/V Forest Park ... and/or Owners/Charterers, Zodiac ... London.’ This invoice sent by OWB NL to Zodiac stated 14 Nov 2014 as the 'due date' for the purchase price.

On 6 November 2014 V Marine informed Zodiac that the OW Bunker Group was in financial trouble and that it had failed to pay the purchase price for the fuel oil delivered on 15 October 2014. V Marine therefore demanded payment of the purchase price from Zodiac, relying on a retention of title of the supply of fuel oil. On 7 November 2014 ING, on the basis of an assignment by the OW Bunker Group, demanded payment of all amounts due by Zodiac to OWB NL and other subsidiaries of the OW Bunker Group. On 21 November 2014 OWB NL was declared bankrupt.

On 13 January 2015 V Marine effected an attachment on the Forest Park in Safi, Morocco, to obtain security for the enforcement of its claim with regard to the supply of fuel oil. The attachment was lifted on 16 January 2015 against security from Dexhon and Zodiac. On 28 April 2015 ING effected an attachment on the Forest Park in Rotterdam. This attachment was also lifted against security.

ING and OWB NL instituted arbitration proceedings against Zodiac in London (United Kingdom) in order to obtain payment from Zodiac. On 17 October 2016 ING and the bankruptcy trustees of OWB NL, on the one hand, and Zodiac, on the other hand, reached a settlement as a result of which Zodiac made a payment of USD 397,000. V Marine was not involved. As V Marine did not start an action on the merits following the attachment and the posting of security, Dexhon and Zodiac initiated proceedings in the Netherlands to obtain a negative declaration regarding the validity of V Marine's claim.

The court of first instance denied the action (see CMI93). In the appeal proceedings Dexhon and Zodiac asked for a provisional judgment which would order V Marine to co-operate in obtaining a release of the amount paid into court in Morocco as security for the lifting of the attachment, in exchange for the posting of alternative security by Dexhon and Zodiac on the Rotterdam Guarantee Form.

Held: Pursuant to art 4 EU Regulation 1215/2012 the Dutch courts had jurisdiction to rule on the declaratory action (action on the merits) issued by Dexhon and Zodiac against V Marine. These courts also have jurisdiction for the provisional action for co-operation in exchanging the amount paid into court in Morocco for lifting the attachment by a guarantee. It does not follow from the Arrest Convention 1952 that only the Moroccan court that ordered the attachment would have jurisdiction on this issue. An argument for accepting jurisdiction is also that V Marine, whose co-operation is sought, is established here in the Netherlands, and that V Marine, although it effected an attachment in Morocco in January 2015, did not pursue the matter there and did not seem to make any preparations to do so. The court ordered the exchanging of security.

[For the appeal in cassation to the Hoge Raad, see CMI1015.]