Collision on 13-14 December 2002 involving the Clary and the Tricolor, causing the Tricolor to sink. Clary Shipping, the owner of the Clary, constituted a property fund and a wreck fund with the Court of Rotterdam. MST applied to the court to have the amount of its limited liability for claims in respect of loss and damage arising out of the collision under art 8:750 of the Dutch Civil Code (DCC) fixed at the (same) amount as fixed in the limitation proceedings commenced by the owner of the Clary, and to rule that the funds constituted by the owner of the Clary in those proceedings are deemed to have (also) been constituted by MST. Several parties, including the cargo interests of the Tricolor, asked the court to disallow the application.

Held: The applications of MST must be understood to be a request for application of art 11.3 of the LLMC 1976. This provision is incorporated in Dutch law in art 642d of the Dutch Code of Civil Procedure (DCCP) and states:

A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively.

Clary Shipping, the party who constituted the funds, is a legal entity as referred to in art 9.1 of the LLMC 1976, which states:

1. The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion: (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose acts, neglect or default he or they are responsible;

The ‘person or persons mentioned in paragraph 2 of Article 1’ is a reference to the ‘shipowner’, defined in art 1.2 as meaning the ‘owner, charterer, manager and operator of a seagoing ship’. MST alleges that it is the ‘manager’ or ‘operator’ of the Clary and therefore entitled to limit its liability.

At first instance the Rechtbank (2 December 2013, Schip en Schade 2014/39) considered that the Dutch legislator did not contemplate the question of how the right to limit should be invoked if the debtor wished to join an already constituted fund. The Rechtbank has filled this gap – in the wake of its earlier judgment in the ‘Mighty Servant II’ (Schip en Schade 2003/26) – by assuming that in these cases the submission of an application as referred to in art 642a of the DCCP is also required. It subsequently found that MST did not comply with the requirements of the said article in time, resulting in a dismissal.

Militating against this extra-statutory construction is the fact that art 642a of the DCCP is a preliminary procedure for the purpose of determining the limit of the liability and the way in which the funds are to constituted, whereas those issues are irrelevant in the matter at hand. The amounts of the limited liability have already been determined and the funds have already been constituted. The issues that are in dispute are MST’s statements that the claims for which it wishes to invoke its right of limitation are claims for which funds have already been constituted, and that it belongs to the category of persons for whom and by whom these funds are deemed to have been constituted. For the time being, MST has made the correctness of these statements sufficiently plausible. In addition, the opposition against these statements may be dealt with, again or for the first time, during the verification proceedings, together with other objections to the application for limitation. During the verification proceedings, the liquidator will inform the creditors (as designated by MST) of the latest date on which their claims against MST, as well as any opposition to the limitation application, must be submitted. In case of opposition against the invocation of the limitation of liability, claim validation proceedings will follow.

Thus, there are no grounds to dismiss MST's applications, also not for the reason that it failed to mention all names and places of domicile of persons known to MST ‘against whom it believes to be entitled to invoke limitation of liability with an estimate of the maximum amount of each person’s claim’, even less since lists of legal persons are attached to the applications, including their preliminary disputed claims, as submitted to both funds constituted by Clary Shipping. MST’s limitation applications concern the same claims of the same creditors, for which it claims to be held liable on the same basis as Clary Shipping. That not all those creditors have been summoned and/or appeared in respect of the requests submitted by MST does not constitute an obstacle for allowing the applications. Taking into account the fact that the applications are connected to already existing funds, in which the creditors against whom MST wishes to invoke its right to limitation are already known, it is preferable for practical reasons that the liquidator informs the creditors of MST’s requests.

The view that the party who seeks to join an already constituted fund must wait for legal proceedings to be instituted against him in the country in which the fund is constituted, or any other State Party, does not find support in the LLMC 1976. This is not a case where the party who expects to be held liable should not be able to choose in which State Party its liability fund may be constituted. The constitution of a fund, as done here by Clary Shipping, is done for all claims of a certain category arising out of one and the same incident.

The defence that the applications violate the principles of due process of law and/or art 6 of the European Convention of Human Rights is also unfounded. The view that a request to join an already constituted fund has to be made known within a certain period of time does not find support in the convention or in the national legislation. It has neither been argued, nor has it become evident, that MST has created the impression that it did not want to use its right of limitation or its right to join an existing fund.

Nor has it become evident that the liquidation of the funds is already so advanced, or is threatened to be disturbed by MST joining the fund, that the applications to do so have to be dismissed.

With regard to its jurisdiction, the court considers that the interested parties that have entered an appearance have not disputed the jurisdiction of the court, which stems from the fact that the applications concern the joining of a procedure to constitute a fund in this country (compare art 6.2 of the Brussels I Regulation 44/2001).