A collision occurred on 31 January 2022 between the Julietta D, the Pechora Star, the foundation of a Vattenfall wind turbine, and the jacket of a TenneT transformer station, as a result of the Julietta D's breaking loose during storm Corrie. Between the moment when the Julietta D hit the foundation of the wind turbine and the moment when the Julietta D came into contact with the jacket of the transformer station, the entire crew of the Julietta D was evacuated. The Julietta D was being towed to the port of Rotterdam for repair. Vattenfall and TenneT claimed that the Julietta D's owner was liable for the damage as a result of the incident and sought to effect an attachment of the Julietta D. The owner of the Julietta D sought to limit its liability by constituting a fund, and applied to the Court for a determination of the amount for which the fund must be constituted. Vattenfall and TenneT raised the issue of the Court's jurisdiction and appled for a deferment of the proceedings.

Held: There is no reason to defer the decision on the application and to require the applicant to provide further information. The applicant's liability in respect of property damage in connection with the event is limited for the time being at 14,916,384 SDRs. The applicant must provide funding by 15 June 2022 at the latest by depositing a guarantee at the registry of this Court, to be issued by UK P&I Club NV in accordance with the Rotterdams Garantie Form Limitation 2020 (RGFL 2020).

In the preliminary stage of a limitation proceedings, it is decided on a prima facie basis whether the applicant is free to limit its liability and to constitute a fund for that purpose, and there is no room for conducting further (factual) investigations into the incident or into other substantive objections interested parties may bring forward in this stage of the limitation proceedings. The starting point in this preliminary stage is to make a summary assessment of whether there is a basis for limitation of liability. The object of the summary assessment is that the amount to which the applicant can limit its liability is known and available as soon as possible. Substantive discussions must be raised and must crystallise further in the verification phase of the limitation proceedings and, if necessary, must be referred to claim validation proceedings by the examining magistrate pursuant to art 642q of the Dutch Code of Civil Procedure (DCCP).

Article 642c(1)1 of the DCCP states explicitly that interested parties cannot raise the defence in the preliminary stage that there was intent or recklessness with knowledge that loss would probably result. Article 642c DCCP does not stipulate that other defences cannot be raised in the preliminary stage. Therefore, it must be assumed that other defences, such as the question whether there have been one or more incidents subject to limitation, can indeed be submitted for consideration in this stage. The consideration of this question is, however, limited to a summary assessment.

In the context of the question whether one or more incidents occurred, the term 'distinct occasion' is used in the LLMC 1996. The travaux préparatoires of the LLMC 1996 do not explain the meaning of the term 'distinct occasion'. There is no Dutch jurisprudence on the answer to the question when there is 'één en hetzelfde voorval' (the words used in Article 642d DCCP). Foreign jurisprudence about the subject is very limited and the issue is raised minimally in Dutch academic literature.

Here there was one incident, and not several (consecutive) incidents. The contact of the Julietta D with the Pechora Star and subsequently with the foundation of a wind turbine and jacket of a platform was the necessary consequence of the Julietta D breaking loose from its anchorage after the breaking of the anchor chain, and subsequently the crew being unable to control the Julietta D. Without the latter, the contact between the Julietta D and the three objects would not have taken place. It makes no difference that, before it came into contact with the Pechora Star, Julietta D's engine was still working, and was therefore in principle manoeuvrable, and became unmanoeuvrable later (due to engine failure). There is such a causal connection between the successive facts that they must be considered as the same occasion or incident.

The applicant requested the Court to lift the attachment of the vessel and to order the return of securities already provided by or on behalf of it, as soon as the limitation fund has been established and the statement pursuant to art 642c(6) DCCP has been issued, such on pursuant to arts 13.2.a and 13.2.d of the LLMC 1996. At the hearing, the applicant requested the Court to defer its decision on this request. The Court will comply with this request and will reserve its decision on whether the attachment should be lifted.

(See also The Julietta D and The Pechora Star ECLI:NL:RBROT:2022:4477 (CMI2020).]