There was a collision on 11 January 2009 on the river Hollandsch Diep between the seagoing chemical tanker Sichem Anne, sailing under the directions of a pilot, and the container-carrying inland vessel Margreta. The Sichem Anne sailed under a rather right angle with its bulbous bow into the port side of the Margreta. As a result, a large hole was created on the port side of the Margreta, causing water to flow into the cargo hold. The Margreta started to sink. The vessel was put aground on the southern riverbank between the port of Moerdijk and the Moerdijk bridges, which stopped it from sinking any further. Using equipment from several ships, the flooded cargo hold was  pumped, but the hole appeared to be too big to get rid of the inflowing water. It was decided to discharge the Margreta, which was done using crane pontoons, push tows, pusher barges and pontoons. As a result, the Margreta refloated in the evening of 12 January 2009. Both vessels limited their liability by constituting a property fund under art 8:755 para 1, chapeau and sub b Dutch Civil Code (DCC). Claim validation proceedings were instituted to obtain a decision on (i) the question of fault, and (ii) the question whether the property fund of the Sichem Anne also limited her liability with regard to the claims for the cost of refloating the Margreta and the salving of her cargo, or whether these claims are to be regarded as claims referred to in art 8:752 sub 1 sub d DCC, for which claims the Sichem Anne could only limit her liability by constituting a separate wreck fund in accordance with art 8:755 para 1, chapeau and sub c DCC. The appeal in cassation was only directed against the affirmative answer to question (ii) given by both the court at first instance (Rechtbank Rotterdam) and the court of appeal (Gerechtshof Den Haag) (see CMI80).

Held:

Articles 8:752 and 8:755 DCC are part of section 8.7 DCC. In this section the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) is implemented. The LLMC 1976 was revised and replaced by the 1996 Protocol. This revision and replacement came into force in the Netherlands on 23 March 2011 and led to the amendment of art 8:755 DCC, effective from 1 January 2011. The revision, replacement and amendment do not apply in the present case. But what follows equally stands after the revision, substitution and amendment.

The Netherlands has made use of the reservation in art 18.1 to exclude the ability to limit liability provided in art 2 (art 8:752 DCC) for claims referred to in art 2.1.d and art 2.1.e  (Article 8:752 para 1 sub (d) and (e) DCC), in brief, claims for costs in connection with the removal of the wreck and the cargo. Instead, the former art 8:755 para 1, chapeau and sub (c) DCC – now art 8:755 para 1, chapeau and sub (d) DCC – provides for the possibility to limit the liability for these claims by constituting a wreck fund. The rationale behind the legislative arrangement to constitute a separate fund is related to the safety of maritime traffic, more specifically the interest of keeping waterways free from obstacles. This interest is served by a legislative arrangement in which the party who incurs costs in connection with wreck and cargo removal does not have to share in the proceeds of the property fund, but in a separate fund with a potentially higher limit.

The question that arises is whether an indemnity claim for salvage services rendered to the Margreta is a claim as referred to in art 2.1.a  (art 8:752 para 1 sub (a) DCC) – and not a claim as referred to in art 2.1.d and art 2.1.e  – and that would therefore not be affected by the reservation of art 18.1. This is a matter of interpretation of the LLMC 1976. That interpretation is to be done on the basis of the standards given in arts 31-33 of the Vienna Convention of the Law of Treaties.

In art 2.1, several different claims are distinguished in respect of which limitation of liability is possible pursuant to that article. As appears from the framework and the contents of art 2.1, those claims are determined by the subject of the claim as described in art 2.1.a-f. It follows from the wording of art 2 that the basis of the claim is not relevant. A claim therefore falls under the scope of art 2.1 if the subject of the claim can be brought within one of the descriptions of that article, regardless of its foundation. This also applies if there is a claim on account of salvage. Although art 3.1 and art 3.1.a (art 8:753 para 1, chapeau and sub (a) DCC) provides that the rules of the LLMC 1976 do not apply to claims for salvage, that exclusion only covers claims that are directly based on salvage (ie, are brought by the one who rendered salvage services) and not on possible indemnity actions relating to salvage.

Articles 2.1.d and 2.1.e relate to the removal of wreck and the cargo of the ship, which also appears from the travaux préparatoires (p 74 and following) (which can be found on the website www.comitemaritime.org). The description of these claims, however, clearly comprise more than the mere removal of ‘wrecks’ in the general, linguistic sense (of objects that have lost their economic value). That description also covers cases of salvage and therefore also indemnity claims relating thereto. This is supported also by art 1.3,  which explicitly declares the operations referred to in arts 2.1.d and 2.1.e as salvage within the framework of the question who can be considered to be a salvor within the meaning of art 1.1, and who can therefore limit liability on the basis of art 2 for the claims named therein. Salvage and wreck clearing are therefore not mutually exclusive terms and salvage operations can fall under arts 2.1.d and 2.1.e.

The subjects enumerated in art 2.1 can overlap and a claim can therefore be subject to limitation on several grounds mentioned in that article. In other situations, this may be the case with an indemnity claim of a shipowner relating to salvage that falls under art 2.1.d and art 2.1.e. That claim can under circumstances also qualify as a claim as meant in art 2.1.a. This concurrence does not lead to questions on interpretation since the same limits (as provided in art 6) apply to both situations. It is different, however, when – as is the case in respect of the Netherlands - a state party made the reservation of art 18.1 and on that ground a different regime applies for that state with regards to the claims that fall under the scope of that reservation. In that case this other, special regime ranks as a lex specialis over the entitlement to limit of art 2.1.a.

There is no ground for the interpretation that the reservation of art 18 exclusively relates to indemnity claims of waterway authorities and therefore does not apply to indemnity claims of shipowners. Accepting such a limited interpretation is not natural, since the interest of safety for maritime traffic which is the purpose of art 18, can be served by other parties than waterway authorities by carrying out activities as described in art 2.1.d and art 2.1.e.

The indemnity claim – for the recovery of costs made for refloating the Margreta and salving its cargo – can be regarded as a claim as meant in art 2.1.d and art 2.1.e. Whether the State would have placed the Margreta under the 1934 Wrecks Act (‘Wrakkenwet’) or not is not a circumstance that is relevant for answering the question on how the indemnity claim should be qualified. Since it is an indemnity claim, there is in any event no claim in respect of salvage as meant in art 3.1 and art 3.1.a. How the indemnity claim is to be qualified has to be examined individually on the basis of the subject of the indemnity claim, without connection to the nature or basis of the original claim. In this situation, the Margreta was in a partly sunk and stranded position and was refloated. To apply art 2.1.d, it is not required that a ship has sunk completely or that it can be considered a wreck.