This case arose from a collision on 16 December 2015 off Singapore between the Stolt Commitment, owned by Stolt Commitment BV and bareboat chartered by Stolt Tankers BV, and the Thorco Cloud, property of A Line Corp and bareboat chartered by Marship MPP GmbH & Co KG​, as a consquence of which the Thorco Cloud sank. Stakeholders of the Thorco Cloud instituted proceedings against Stolt Commitment BV and Stolt Tankers BV before the Norwegian Court for, among other things, the loss of the Thorco Cloud and the costs of wreck removal. Stolt Commitment BV instituted arbitration proceedings in Rotterdam against Stolt Tankers BV, arguing that pursuant to the bareboat charter agreement Stolt Tankers BV was obliged to indemnify Stolt Commitment BV for the damage and costs it suffered and would suffer as a result of the collision. Stolt Tankers BV wished to limit its liability in respect of all claims related to the collision, and applied to be allowed to constitute a property fund and a wreck fund in Rotterdam. The Rechtbank Rotterdam allowed the application (judgment of 15 February 2017, CMI41; S&S 2017/94). Three claimants entered an appeal.

Held: Appeal dismissed.

The Dutch courts have jurisdiction to decide on the applications for limitation. As Stolt Commitment BV has instituted arbitration proceedings against Stolt Tankers BV, art 11.1 of the LLMC is complied with in respect of the fund's constitution. The purpose of art 11.1 of the LLMC is that the person who is expecting to be held liable and who wants to make use of its right to limit its liability, cannot itself choose in which State Party its limitation fund shall be constituted, but will have to await the initiative of the potential opposing party. The LLMC does not say what, in this context, is meant by 'legal proceedings' as used in art 11.1 LLMC. It is not in dispute, however, that this concept should be interpreted broadly and also extends to the institution of arbitration proceedings. It is not a condition for the limitation of liability that the liability and/or the title to sue are being disputed, nor that there is no corporate relationship between the person who institutes 'legal proceedings' and the party held liable. Even in that case, there can be a real claim that may be subject to limitation. This is not different here. It cannot be assumed that the (intercompany) claim does not actually exist. There is also no good reason to conclude that ship owner Stolt Commitment BV and charterer Stolt Tankers BV are to be regarded as each other’s alter ego. Also the existence of insurance cover does not imply that there is no claim and that art 11.1 of the LLMC is not complied with for that or for some other reason.

The LLMC does not contain any explicit jurisdiction provision as such, nor does it include a rule on the recognition and enforcement of decisions regarding the limitation of liability or fund constitution. Art 11 LLMC, which does not have the character of a jurisdiction provision, does however contain an indication as to where the limitation fund can be constituted, namely in every State Party 'in which legal proceedings are instituted in respect of claims subject to limitation'. However, the provision does not lay down any further requirements with regard to those 'legal proceedings' and does not, for example, rule on the question in which State Party they can be instituted, while it is not obvious to assume jurisdiction with regard to an application for limitation or fund constitution in a State Party where there is no authority with jurisdiction with respect to those 'legal proceedings'.

Article 9 of Regulation 2012/125 (Brussels I Recast) fills the gap regarding the jurisdiction in the LLMC. To begin with, as Stolt Tankers BV is established in the Netherlands, the Dutch courts have international jurisdiction to hear the claims on the merits against Stolt Tankers BV according to art 4 of Brussels I Recast. The Dutch courts then also have jurisdiction with respect to an application for limitation of liability. It is not required that an action to determine liability is already pending before that Court to assume that jurisdiction. Dutch internal law has no independent proceedings for limitation of liability; limitation of liability by the ship owner (including the charterer - art 1.2 LLMC) is, under Dutch law, linked to fund constitution (art 8:750 ff DCC). Article 9 of Brussels I Recast, however, allows room to use the jurisdictional rule of the internal law for an application of limitation as such. The Court of Rotterdam can therefore be regarded as an 'other court' within the meaning of art 9 of Brussels I Recast; art 642a(1) of the DCCP designates that Court as the forum for the Dutch proceedings for limitation of liability in combination with fund constitution. It also fits within the system of Brussels I Recast - partially shaped by art 9 of Brussels I Recast - that a shipowner established in the Netherlands brings an application for limitation modelled according to Dutch law before a Dutch Court. The same applies for the 2007 Lugano Convention.

Due to the reservation made by the Netherlands under art 18 of the LLMC, art 11.1 of the LLMC only applies to the application for the constitution of a property fund. The limitation of liability of art 15 of the LLMC applies to the claims specified in art 2.1 of the LLMC. By applying art 18 of the LLMC, the Netherlands has ruled out the application of the LLMC with regard to claims under arts 2.1.d and 2.1.e. Stolt Tankers is therefore not a (legal) person attempting to limit its liability for those specific claims on the basis of the LLMC.

The Court did not have to stay its decision in anticipation of the decision by the Norwegian court on its jurisdiction in respect of the proceedings against Stolt Tankers BV instituted in Norway. Having made inquiries, it did not appear to the Rechtbank that both proceedings have the same cause of action (lis pendens); the request for limitation was only an issue in the Dutch proceedings. On appeal the situation is no different (cf HvJ EG 14 October 2014, ECLI:EU:C:2004:615; S&S 2006/97 (Maersk Olie & Gas v Firma M de Haan en W de Boer (The ‘Cornelis Simon’) (CMI2211)). Because the request for limitation of liability (by constituting a fund) is not an issue in Norway, and this application and the ruling thereon only have a limited purpose, there is also no reason for a stay on the argument that both actions might be related. Nor is it the case that Stolt Tankers BV, after being sued for damages in Norway, can only invoke limitation of liability together with the constitution of a fund in Norway.

[For the appeal in cassation to the Hoge Raad, see A Line Corp v Stolt Tankers BV (CMI1014).]