This was the final judgment of the Hoge Raad (following its earlier judgment on 24 December 2021 (CMI2262) in the 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). In the appeal in cassation, the Hoge Raad allowed the Fund (under the Fund Convention 1992) to be admitted as an interested party.

Held: The appeal in cassation is dismissed.

Opinion of Advocate-General P Vlas (ECLI:NL:PHR:2022:1159): In this case NCC has applied for limitation of its liability under the LLMC in connection with the Bunker Convention 2001, and not (in the alternative) for limitation of liability under the CLC Convention 1992. The Bunker Convention does not apply to pollution damage as defined in the CLC Convention 1992, whether or not compensation is payable in respect of that damage under that Convention. For the purpose of the CLC Convention 1992, pollution damage means loss or damage outside the ship caused by contamination resulting from the escape or discharge from the ship of persistent hydrocarbon mineral oil carried on board a ship as cargo or in the bunkers of a ship. A ship is defined in art 1.1 of that Convention. According to that definition, the Bow Jubail qualifies as a ship as referred to in art 1.1 of the CLC Convention 1992, unless it is shown that at the time of the incident the ship had no residues from previous carriage of oil in bulk on board.

There is no generally accepted international standard procedure by which such proof can be provided. The general rule cannot be derived from the CLC Convention 1992 that the exception has been complied with, or at least presumed to have been complied with, if it is established that the MARPOL Convention rules have been followed. Therefore, it cannot be said that if it were established that the ship's tanks were free of oil according to MARPOL, the Court could not require further proof that the exception has been complied with.

The Court did not apply a particularly heavy or aggravated burden of proof. As a starting point, it can be assumed that for evidential purposes it is in principle not sufficient that the shipowner or crew themselves declare that the ship is clean. This should preferably be determined by an independent expert or on the basis of contradictory expertise. It does not appear that the Court of Appeal has disregarded the system of free proof. Other means of proof were not excluded by the Court of Appeal in advance. The opinion of the Court of Appeal that NCC had not fulfilled its obligation to propose, with respect to the occurrence of the exception of art 1.1 of the CLC Convention 1992, that the vessel had no residues of transport of oil in bulk on board, is independently supportive of the Court's declining the offer of providing further evidence.

Hoge Raad (ECLI:NL:HR:2023:489):  The complaints cannot lead to the quashing of the Court of Appeal's judgment. In considering the complaints, it is not necessary to answer questions relevant to the unity or development of the law (cp art.81.1 of the Judiciary Act 1827).