This case arose from an allision on 29 December 1978 between the Liberian-flagged Blue Hawk and a bridge belonging to the Dutch State, which formed part of the lock system of Terneuzen. The owner of the Blue Hawk submitted an application to the Rechtbank Rotterdam for limitation of its liability on the basis of Article 740d Dutch Commercial Code (enacting art 3 of the LLMC 1957). The Rechtbank Rotterdam granted the application and ordered the shipowner, pursuant to art 320c Dutch Code of Civil Procedure, to provide security up to the amount of the limited liability. The security was not provided by the shipowner. In summary proceedings the Dutch State sought an order compelling the shipowner to comply with the earlier court order to provide security. The order was denied by the President of the Rechtbank Rotterdam (ECLI:NL:RBROT:1980:AJ1467) and, on appeal, by the Gerechtshof 's-Gravenhage (ECLI:NL:GHSGR:1980:AL4261). The Dutch State filed an appeal in cassation before the Hoge Raad.

Held: Appeal dismissed.

The order of the Rechtbank Rotterdam referred to in Article 320c DCCP has no further purpose than to allow the applicant, with a view to the continuation of the proceedings, to limit its liability, if it so desires, and to provide a decisive answer to the amount to which its liability is limited for the time being, and to the question whether, instead of depositing that amount with the Office of Judicial Consignments (of the Dutch Ministry of Finance), the provision of a guarantee may suffice, and, in the latter case, in what manner this security is to be provided.

The Dutch State therefore vainly disputes the finding of the Gerechtshof 's-Gravenhage that at the stage of the limitation proceedings, when only an order as referred to in art 320c DCCP has been given, an order to deposit money or to provide security cannot be enforced by those against whom limited liability has been invoked. The argument put forward in appeal derived from the words 'beveelt' (orders) and 'gelast' (directs) in art 320c.1 DCCP does not convince. The word 'bevelen' (order) is used more often in statute law without indicating an enforceable obligation, eg in arts 52, 53 and 54 DCCP, where there is mention of 'ordering' provisional enforcement. The words 'beveelt' and 'gelast' in art 320c.1 DCCP merely states that the Court provides the conditions that the applicant must meet if it wants to initiate the actual distribution procedure.

It follows from the system of the statutory law that as long as no deposit or guarantee has been provided, creditors can exercise their rights against the applicant in the normal way.