Collision on 11 January 2009 on the river Hollandsch Diep between the seagoing chemical tanker Sichem Anne, sailing under the directions of a pilot, and the container-carrying inland vessel Margreta owned by Idzenga. As a result, a large hole was created on the port side of the Margreta, causing water to flow into the cargo hold. The Margreta started to sink. The vessel was put aground on the southern riverbank between the port of Moerdijk and the Moerdijk bridges, which stopped it from sinking any further. Both vessels limited their liability by constituting a property fund, and claim validation proceedings were instituted to obtain a decision, amongst other things, on the question whether the property fund of the Sichem Anne also limited its liability with regard to the salvage costs of the Margreta, or whether a separate wreck fund must be constituted.

Held: It is in dispute whether the claims relating to the refloating of the Margreta and the salvage of its cargo appertain to the property fund, or whether the Sichem Anne can only limit its liability by constituting a wreck fund.

The owner of the Sichem Anne disputes that the indemnity/recourse action of the Margreta must be regarded as costs for which its liability can only be limited by constituting a wreck fund. The view that the Margreta was not a wreck and that refloating the vessel was therefore not wreck removal but rather a salvage operation, and that wreck removal and salvage are mutually exclusive, raises the issue of construction/interpretation and application of the LLMC 1976. In that respect it is important that, according to art 31 of the Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the treaty’s object and purpose. Any subsequent agreement between the parties or any subsequent practice regarding the interpretation or application of the treaty may be taken into account. The preparatory work of the treaty can be used as supplementary means of interpretation. 

It follows from art 2 of the LLMC 1976 that the claims mentioned in art 2.1.d and e are eligible for limitation, irrespective of the basis for liability (art 2.1, opening lines), even if the claims are instituted by way of recourse or indemnity (art 2.2). However, the Netherlands has made an – unqualified – reservation under art 18 of the LLMC 1976. It must be assumed that this reservation also includes the recourse of such claims, as a result of which the recourse claim of the owner of the sunken/stranded vessel, who bore the costs of the refloating/salvaging etc, is withdrawn from the scope to limit liability under the convention, including art 2.1.a of the LLMC 1976. However, the Netherlands has provided for a possibility to limit liability under its own legislation, by way of constituting a so-called wreck fund. This fund, described in art 8:755(1)(b) of the Dutch Civil Code (DCC), provides for limitation for all claims, irrespective of the basis thereof, for activities as referred to in art 2.1.d and e of the LLMC 1976. The limitation for the recourse action also runs via this wreck fund, and it does not make a difference whether the recourse action concerns costs recovered by the government from the vessel owner, or costs incurred by the shipowner himself.

The LLMC 1976 does not apply to direct claims of the salvor (‘claims for salvage’); also not in so far as the salvor undertook activities as described in art 2.1.d of the LLMC 1976. But this exclusion does not apply to a recourse action with regard to those activities (‘claims in respect of’) which are subject to limitation under art 2.1.d of the LLMC 1976, again unless the reservation under art 18 of the LLMC 1976 was made in respect of that particular right to limitation. That is why, in this country, liability can only be limited by constituting a wreck fund.

The remaining question is then whether Idzenga’s recourse action relates to activities as mentioned in art 2.1.d and/or e of the LLMC 1976. It does not follow from the travaux préparatoires that the terms/wording of the convention, in their context and in the light of the convention’s object and purpose, should be understood in any other way than in accordance with their ordinary meaning. The convention does not mention ‘wreck removal’, but describes the situation in which a ship finds itself - ‘sunk, wrecked, stranded or abandoned’ (as accordingly translated into Dutch in art 8:752(1)(d) of the DCC) – and describes some actions that can be performed in respect of a vessel in that situation: ‘raising, removal, destruction or the rendering harmless’ (as accordingly translated into Dutch in art 8:752(1)(d) of the DCC). There is no valid ground to set the additional requirement that the vessel – apart from being sunk, shipwrecked, stranded or abandoned – must be in such a state/position that ‘the owner does not find it worthwhile to do anything about it’. The claim of the Margreta fits within the framework of art 2.1.d of the LLMC 1976, as well as art 8:752(1)(d) of the DCC.