There was a collision off Singapore on 16 December 2015 between the Stolt Commitment, owned by Stolt Commitment BV and bareboat chartered to Stolt Tankers BV, and the Thorco Cloud, owned by A Line Corp and bareboat chartered to Marship MPP GmbH & Co KG. As a result, the Thorco Cloud sank. Parties interested in the Thorco Cloud commenced proceedings against, amongst others, Stolt Commitment BV and Stolt Tankers BV in a Norwegian court for the loss of the Thorco Cloud and the costs of removal of its wreck. Stolt Commitment BV commenced arbitration proceedings in Rotterdam against Stolt Tankers, claiming that under the bareboat charter Stolt Tankers BV was to indemnify Stolt Commitment BV for the damages and costs as a result of the collision. Stolt Tankers BV wished to limit its liability for all claims regarding the collision and applied to the Rotterdam Court to be allowed to constitute a property fund and a wreck fund.

Held: This was an international dispute because most parties named in the application were established in foreign countries, the accident happened off Singapore or on the high seas, and the Stolt Commitment is registered in the Cayman Islands. Hence, the Court must first examine whether the Dutch courts had jurisdiction and consider which law should be applied. Since there were parties domiciled in the European Union and in Norway, questions regarding jurisdiction were to be answered on the basis of EU Regulation 1215/2012 (Brussels I Regulation) or the Lugano Convention 2007. Article 71 of the Brussels I Regulation does not affect a provision on jurisdiction in a convention on a particular matter, provided that this provision is applied in a way that guarantees respect for the goals and principles on which the Brussels I Regulation is based on at least as favourable conditions as the Brussels I Regulation itself. Article 67 of the Lugano Convention 2007 contains a similar rule. The Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) does not explicitly regulate jurisdiction. However, art 11 of the LLMC 1976 guides the person who wants to limit liability, in particular to the ‘Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation’. Since art 11 of the LLMC did not create jurisdiction, the rules in the Brussels I Regulation and the Lugano Convention 2007 were not set aside. Neither the Brussel I Regulation nor the Lugano Convention 2007 regulates jurisdiction with regard to an application for the limitation of liability, or the constitution of a limitation fund, except for art 9 of the Brussels I Regulation and art 7 of the Lugano Convention 2007 respectively, both of which did not apply in this case as no procedure relating to the liability of Stolt Tankers BV was brought before a Dutch Court. As there was neither any applicable international instrument granting jurisdiction to the Dutch Courts, nor any international instrument excluding it, the question of jurisdiction was to be answered following national rules, especially with arts 3 and 642a of the Dutch Code of Civil Procedure (DCCP). According to art 3 chapeau and paras a and c of the DCCP, the Dutch Court had jurisdiction regarding the application in question. Stolt Tankers BV and Stolt Commitment BV were established in the Netherlands, so each of them could be summoned to appear before a Dutch Court. According to art 642a of the DCCP, which applied at the time of the filing of the petition, the Rotterdam Court was competent to hear an application for limitation of liability with regard to ships not registered in the Netherlands, such as the Stolt Commitment. Therefore, in principle the Dutch court had jurisdiction to hear the requests contained in the current application.

There was no issue of lis pendens. Although the proceedings in Norway involved the same parties and the claims have the same cause of action ie the collision, the object of the proceedings was different. The proceedings in question concerned the limitation of liability, whereas the alleged liability is the object of the Norwegian proceedings. Article 11.1 of the LLMC 1976 requires that the person who expects to be held liable for a maritime claim subject to limitation cannot immediately establish a limitation fund in a contracting State of its own choosing, but has to wait for a possible claimant to take the initiative, in the sense that it has to be held liable for such a claim and that legal proceedings (in the broad sense of the word) must have been instituted against it in a particular contracting State. Stolt Tankers BV was held liable by Stolt Commitment BV in no other way than through the letter dated 5 December 2016 which contained the notice of arbitration. This letter met both requirements of art 11 LLMC 1976 at a minimum. Insofar as it would be possible to fight the use of a power granted by the LLMC 1976 on the basis of a national rule on the abuse of power, there was no evidence of abuse of power by Stolt Tankers. The submission of an application for limitation of liability was a power under the LLMC 1976, a Convention with direct effect in the Netherlands. According to art 3.13 of the DCCP, the holder of a right may not exercise a right to the extent that it would constitute an abuse, and such an abuse of right would exist where the right is exercised for the sole purpose of harming another or where the person exercising the right should not have done so in the knowledge of the disproportion between its interest in exercising the right and the harm caused thereby. It was reasonable for Stolt Tankers BV to exercise the right. Exercising the right to limit liability in the Netherlands would only be aimed at profiting from lower limits of liability than in Norway, and hence the exercise of that right did not have the sole purpose of harming the defendants. The fact that Stolt Tankers BV and Stolt Commitment BV had the same liability insurer did not mean that Stolt Tankers BV abused its rights. The fact that Stolt Tankers BV was the parent company of Stolt Commitment BV, that it drew up consolidated annual accounts, that both companies have offices at the same address, and that they share a director, suggested that it was not obvious that those parties solved a dispute by means of arbitration. Since Stolt Commitment BV commenced arbitration with the letter dated 5 February 2016, it could not have been inferred that Tankers abused power by exercising its right to limit.

[See A Line Corp v Stolt Tankers BV CMI592 for the subsequent unsuccesful appeal to the Gerechtshof Den Haag​.]