Supply of fuel oil on 15 October 2014 by V Marine in Rotterdam on board 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. In these proceedings, Dexhon and Zodiac wanted to obtain clarity whether V Marine still had a claim against (one of) them and, if so, what. They found it improper that V Marine had failed to start an action on the merits against them after the attachment and obtaining security.

Held: Although Dexhon and Zodiac could have asked the Court of Casablanca (Morocco) on the basis of art 7.2, final sentence, or art 7.3 of the Arrest Convention 1952 to fix a time within which V Marine should bring an action, which Dexhon and Zodiac apparently did not do, it may be expected from a party effecting an attachment on a ship and thereby obtaining security for its claim that it brings an action within a reasonable time.

The Rechtbank Rotterdam, however, refuses to give judgment for Dexhon and Zodiac as the declaration sought by them is considered to be so wide that it would include claims based on (indirect) unjust enrichment or tort, and it cannot be ruled out that some rights of action still exist and enforcement of them may still be possible, eg under Moroccan law. For the appeal on this decision see CMI318.