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 consequence 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). The Gerechtshof Den Haag (judgment of 19 February 2019, CMI592; S&S 2019/51) affirmed the judgment of the lower court. Three claimants entered an appeal in cassation before the Hoge Raad (the Dutch Supreme Court).

Held: The text of art 11.1 LLMC expresses that an application for the constitution of a fund on the basis of the LLMC may be submitted to the court or other competent authority in the State Party in which legal proceedings are instituted in respect of claims subject to limitation. However, that text does not establish in so many words on what basis the court or other competent authority has jurisdiction to hear an application for the constitution of a fund on the basis of the LLMC. This reading of the text of art 11.1 LLMC lines up with the context of that provision. For example, art 10.3 LLMC provides that questions of procedure arising under the rules of this Article (which deals with limitation of liability without constitution of a limitation fund) shall be decided in accordance with the national law of the State Party in which action is brought, and art 14 LLMC provides that rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connection therewith, shall be governed by the law of the State Party in which the fund is constituted. Moreover, the LLMC does not contain provisions regarding jurisdiction and recognition and enforcement. That art 11.1 LLMC does not have the purpose of a rule on jurisdiction is confirmed in the travaux préparatoires of the LLMC. All this is reason to assume that neither art 11.1 LLMC nor any other provision of the LLMC establishes on what basis the court or other competent authority referred to in art 11.1 LLMC has jurisdiction to hear an application for the constitution of a fund on the basis of the LLMC. That jurisdiction must therefore be founded on a basis outside of the LLMC, such as a convention, a regulation or the domestic law of the court or authority seised.

The foregoing does not affect the fact that art 11.1 LLMC contains a restriction of the authority of the court or other competent authority to allow the application for the constitution of a fund on the basis of the LLMC, by requiring that legal proceedings are instituted in respect of claims subject to limitation in the State Party of that court or competent authority. In this connection it should be noted that the notions 'legal proceedings' and 'action' in art 11.1 LLMC must be given a wide interpretation (Hoge Raad 20 December 1996, CMI169; S&S 1997/38). Those notions include an application to (be allowed to) take legal action by someone who alleges to have a claim subject to limitation, for instance the application for leave for prejudgment attachment with a view of recovering that claim, or the application for a prejudgment hearing of witnesses with a view of obtaining evidence of facts which may be used as a basis for the claim. Furthermore, it should be noted that on the basis of the prevailing opinion in case law and literature of the State Parties it must be assumed that also the institution of arbitration proceedings is to be regarded as legal proceedings within the meaning of art 11.1 LLMC.

The Court of Cassation goes on to consider the question whether the jurisdiction of the Dutch courts can be based on EU Regulation 1215/2012 (Brussels I Recast) and/or on provisions of the Dutch Code of Civil Procedure. On the basis of the hypotheses that: (i) an application for the constitution of a fund and for limitation of liability would fall within the material scope of Brussels I Recast; and (ii) the jurisdiction provisions in arts 4-8 Brussels I Recast could be applied to such an application, the Court of Cassation concludes that the Rotterdam District Court would have jurisdiction. If one of these hypotheses would not be true, the Rotterdam District Court would have jurisdiction on the basis of purely domestic law. The Court of Cassation states that it is therefore unnecessary to decide whether the jurisdiction of the Rotterdam District Court could also be based on art 9 Brussels I Recast.

[For the parallel proceedings in Norway see Marship MPP GmbH CO KG v Assuranceforeningen Gard Gjensidig HR-2020-1328-A.]