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 TSO BV (TenneT) claimed that the Julietta D's owner was liable for the damage as a result of the incident and effected an attachment of the Julietta D. The owner of the Julietta D constituted a limitation fund pursuant to the judgment of the Rechtbank Rotterdam in The Julietta D and The Pechora Star ECLI:NL:RBROT:2022:3955 (CMI2019). The owner of the Julietta D now applies to the Court to have the attachment of the ship lifted.

Held: Application granted.

The owner of the Julietta D is entitled to limit its liability. The question whether there were one or more incidents subject to limitation was discussed in the earlier limitation proceedings. There is no reason to decide differently on that issue than was done in the limitation proceedings.

Therefore it is plausible that a Court deciding the case on the merits will rule that the relevant events must be considered as one 'distinct occasion' within the meaning of the LLMC 1996. The claims resulting from this incident should therefore be settled exclusively through the limitation fund constituted by the owner of the Julietta D, and conservatory measures against other assets of the owner of the Julietta D, such as the ship, are ruled out.

But that does not necessarily mean that the attachment of the ship should be lifted. After all, a decision to lift an attachment in summary proceedings requires in principle a weighing of the interests of each of the parties, whereby it must be assessed whether the interest of the plaintiff that the attachment remains in place on the basis of the arguments raised by it outweighs the interest of the defendant in having the attachment of its asset lifted.

The interest stated by TenneT in favour of maintaining the possibility of enforcing its claim against the ship is that, in case it is decided in the future proceedings on the merits that there were several incidents instead of one, the consequence could be that the limitation fund constituted will only be available to Vattenfall, which means that without the owner of the Julietta D constituting a new limitation fund, TenneT has no other enforcement option other than against the attached ship. This is difficult to reconcile with the rationale of the LLMC 1996, ie limiting the liability of the ship owner to the amount for which a limitation fund has been constituted. This rationale entails that as a result of the constitution of the fund an immunity from attachment comes into being: the injured parties will have to make do with the asset separated into the limitation fund, without being able to enforce the claim against the other assets of the person responsible. This is not compatible with TenneT's suggestion that the attachment can be lifted if Julietta D's owner provides additional security equal to the value of the ship.

It follows logically from the LLMC's rationale that after constituting a fund the shipowner must, in principle, be allowed to operate its ship again. It follows from the Convention that great weight must be assigned to the interest of the owner of the Julietta D to able to have the ship at its disposal again after constituting a limitation fund. This may perhaps be different if account should be taken for the possibility that the person having caused the loss is barred from limiting its liability (compare Rechtbank Rotterdam 26 October 2011, ECLI:NL:RBROT:2011:BU4843, S&S 2012/28 (The Kevin S)), because in that case the disadvantaged party is allowed to enforce its claim against the assets of the person responsible. However, that situation does not arise here. Furthermore, it is relevant that the amount for which the fund is constituted is (at least) USD 2 million higher than the value of the ship in its repaired condition, whereas lifting the attachment would already have been logical if security had been put up for the that lower value.

The interest of the owner of the Julietta D in the lifting of the attachment thus outweighs the interest of TenneT in retaining the attachment.