Limitation proceedings were initiated, and a limitation fund constituted, in the Netherlands following an allision in November 2012, when the anchor of the Delfborg damaged Baltic Cable's cable in the Baltic Sea, within the territorial waters of Sweden. Baltic Cable had already initiated an action for damages in the Court of Malmö (Sweden). (See Rb Rotterdam 21 December 2016 (CMI107)). Claims were submitted against the limitation fund, but the claim verification process was stayed at some point in anticipation of the outcome of the action for damages in Sweden. On 14 November 2023, the Swedish Supreme Court (CMI2405) confirmed that the Delfborg was liable for the incident, and ordered the owners to pay Baltic Cable SEK 400,000 in legal costs.

The parties in the limitation proceedings informed the delegated Judge of the Rechtbank Rotterdam overseeing the verification process, and indicated that a plan of distribution could now be drawn up to wind up the fund. The liquidator, with the approval of the delegated Judge, sent a draft plan of distribution to the applicants and interested parties. A discussion then ensued as to whether a claim for the reimbursement of legal costs submitted without reservation to the liquidator as a 'pm' [pro memorie or token entry] item should be paid from the fund, or whether it was a claim which by definition could not be subject to limitation and could not be paid from the fund.

Held:

In a limitation proceeding such as the one at hand, the task of the delegated judge is to structure the debate and ensure due process. Making decisions of principle on the right to limitation or on the existence and scope of a claim filed by a creditor is up to the (full) Court in renvooi (remittance).

There is no reason to wait to prepare a final plan of distribution. The claim was submitted without reservation or doubt cognisable to the delegated Judge within the meaning of art 642k Dutch Code of Civil Procedure DCCP). The claim has in the meantime been determined in Sweden and has been acknowledged. Nothing stands in the way of verification of the submitted claim. The limitation proceedings began in 2013. It is now 2024. The case should be able to come to an end.

In Dutch practice, it happens more often than not that a claim for legal costs such as the one in question is submitted for verification and there is no objection to its settlement via the fund if only one creditor has to be paid from the fund. In that case, it cannot lead to a disadvantage for other creditors. Whether the creditor submits its claim for legal costs for verification is up to it. If the fund is not sufficient for all its claims, it may be better for it to submit this claim with doubt as referred to in art 642k DCCP in order to have a debate in principle in renvooi as to whether this claim is subject to limitation.

However, Baltic Cable did not make this choice at the appropriate stage in the limitation proceedings and it is contrary to the requirements of due process to still give it the opportunity to do so. A litigant may, especially after so many years have passed, be held to its procedural strategic choices, also to avoid unreasonable delay of the proceedings. The other parties involved should not be confronted 'at the end of the road' with a possible continuation of the proceedings for years with a debate that could have been initiated and conducted many years earlier.