Carriage of steel hooks on board the Quo Vadis, owned by Kroezen, from Pasajes (Spain) to Antwerp (Belgium) from 24 December 1985 to 3 January 1986 under bills of lading that stated the York-Antwerp Rules 1974 to be applicable. On 26 December 1985, during stormy weather in the Bay of Biscay, water entered the engine room through the open air inlet of the main engine as a result of which the Quo Vadis incurred engine damage. A tug rendered assistance and towed the vessel to Brest (France). Cargo insurers held Kroezen liable for the share of the salvage reward they paid, arguing that the ship was unseaworthy at the beginning of the voyage and that (after the earlier appeal at the Hoge Raad June 1993, S&S 1993, 123; CMI164) the reliance of shipowner Kroezen on the exoneration from liability for error ‘in the management of the ship’ should fail, as Kroezen, as master of the vessel, committed a fault bordering on wilful misconduct by leaving the air inlets open, and alternatively that Kroezen was liable in tort for this act.

Opinion Advocate-General Strikwerda: The starting point is that Dutch law (as applicable prior to the enactment of Book 8 of the Dutch Civil Code (DCC) on 1 April 1991) is applicable, and that the mandatory provisions of the Hague-Visby Rules also apply between the parties.

Pursuant to the former art 468 Dutch Commercial Code (DComC) (now art 8:381 para 1 DCC) the carrier is bound to exercise due diligence before and at the beginning of the voyage to make the ship seaworthy, which obligation includes the obligation to properly man the ship. Alike the other duties of care, the obligation of seaworthiness of the ship is a so-called ‘overriding’ or ‘absolute obligation’: breach of this obligation results in liability of the carrier, even if the damage or loss is partly caused by a circumstance for which the carrier is not liable pursuant to the former art 469 DComC, now art 8:383 DCC.

The fact that Kroezen made an error of judgement regarding the weather conditions and the necessity of shutting the air inlets, does not justify the conclusion that he was incompetent as a master and that the carrier breached its duty of care contained in the former art 468 para 1 DComC) by appointing such a master. There can only be incompetence when there is a ‘disabling want of skill or disabling want of knowledge’. An error of judgment is not sufficient for that. A master cannot be deemed to be incompetent based on a single error of judgement. Whether an error of the master is an indication of a structural lack of skill as a master depends on the nature and the severity of the error. Where the Court of Appeal considered Kroezen’s mistake to be a mere error of judgement, that is to say a mistake, the nature and severity of which cannot lead to the conclusion that Kroezen lacked the necessary skills of a master, it acted correctly by attaching importance to the circumstances that Kroezen had not made the same mistake before and that Kroezen had given no other indication that he lacked the skill or knowledge of a master, and that the Marine Council did not carry out an investigation.

Held: The appeal in cassation is rejected applying art 81 of the Code of Judicial Organisation. Accordingly, no further explanation is needed under these circumstances.