This was an appeal in cassation from The 'Bow Jubail', Gerechtshof Den Haag, 27 October 2020 (CMI1361).

This case arose from an allision between the Bow Jubail, owned by National Chemical Carriers Ltd (NCC), with a jetty of LBC Tank Terminals in the Derde Petroleumhaven in Rotterdam on 23 June 2018, as a result of which fuel oil flowed into the port and caused damage. NCC claimed that there had been an 'incident' as referred to in art 1.8 of the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (the Bunker Convention) and submitted an application to limit its liability on the basis of a property fund in accordance with the LLMC 1996. The Gerechtshof Den Haag dismissed the appeal from The 'Bow Jubail', Rechtbank Rotterdam, 9 November 2018 (CMI547).

Held: The primary application for third-party intervention by the Fund is refused; the subsidiary application by the Fund to be admitted as an interested party is allowed.

Article 7.4 of the Fund Convention 1992 states that each Contracting State must ensure that the Fund acquires the right to intervene as a party - in the authentic English text 'to intervene as a party', and in the authentic French text 'se porter partie intervenante' - in any proceedings that are brought in accordance with art 9 of the CLC Convention 1992 against the owner of a ship or its guarantor is brought before a competent court of this State. Article 9.1 of the CLC Convention 1992 stipulates that if an incident has caused pollution damage on the territory of one or more Contracting States, the territorial sea or an area as referred to in art 2, or preventive measures have been taken to prevent or limit pollution damage in this territory, including the territorial sea or area, claims for damages may be brought only in the courts of that Contracting State or States. The filing of such a claim must be notified to the defendant within a reasonable period of time.

It follows from art 7.4 of the Fund Convention 1992, read in conjunction with arts 9.1 and 9.2 of the CLC Convention 1992, that the right of the Fund to intervene as a party in a claim relates to a claim for compensation against the owner of a ship or its guarantor. Also from art 3.2 of the Oil Tanker Compensation Fund Act - which implements the Fund Convention 1992 in the Netherlands - the restriction follows that it must be a lawsuit against the owner of a ship or its guarantor. A lawsuit in which the liability for the damage is limited and a fund is created, is not a lawsuit as meant in art 7.4 of the Fund Convention 1992 and art 3.2 of the Oil Tanker Compensation Act. Therefore, the right of the Fund to intervene under treaty law as referred to in art 7.4 of the Fund Convention 1992 does not provide a basis for granting the primary application by the Fund.

The subsidiary application must therefore be assessed in accordance with common civil procedural law. This assessment is as follows. The central issue in the main proceedings is whether the pollution damage was caused by the escape of oil from a ship within the meaning of art 1.1 of the CLC Convention 1992. Given the objective of the Fund, the answer to that question depends on whether the Fund is liable to pay compensation if it appears that the CLC Convention 1992 does not provide adequate protection for the damage caused by pollution. Therefore, the Fund's own interests are so closely related to the subject matter dealt with in the main proceedings that there is an interest in appearing in those proceedings. The Fund may be considered an interested party in those main proceedings. It follows from the requirements of due process that an interested party who did not appear in the previous instance should also be able to appeal in cassation if it did not appear in that instance through no fault of its own. Admission to the cassation proceedings may also take place by subsidiary application.