In December 1991 there was a fire on board a number of inland navigation vessels lying in a marina, including the yachts De Toekomst and Casuele which were moored next to each other. De Toekomst, alleging the fire began on board Casuele and then spread to De Toekomst, claimed damages from Casuele on the grounds of arts 8:1005 ('If the damage is caused by the fault of one of the vessels, the owner of that particular vessel is obliged to make good the damage') and 8:1002 ('To the extent that Section 1 of Title 6 does not apply, the provisions of this Section concerning collision also apply if damage has been caused by an inland waterway vessel without there having been a collision') Dutch Civil Code (DCC).

Held: In art 8:1005 DCC in respect of inland navigation vessels and art 8:544 DCC in respect of sea-going vessels it is provided that if the damage is caused by the fault of one of the vessels, the owner of that ship is obliged to make good the damage. The Code does not provide a more precise description of the notion of fault in these provisions. This notion also appears in the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (Collision Convention 1910) and the Convention relating to the Unification of Certain Rules concerning Collisions in Inland Navigation (Geneva Collision Convention 1960). It was deemed incorrect by the legislator to explain this notion which was taken from the aforementioned Conventions. As it is stated in the Explanatory Memorandum to art 8:1004 DCC, it is left up to the courts to decide when there is fault of a vessel.

In its judgment of 5 January 1940, NJ 1940/340 Synthese v Rubens, the Hoge Raad expressed its opinion about the notion of 'fault of the vessel’, more particularly deriving its reasoning form the legislative history of the former art 536 of the Dutch Commercial Code. Now, after the adoption of the current Book 8 of the DCC, this reasoning no longer carries much weight. Furthermore, in Dutch literature and case law and literature in other states that are party to the aforementioned Conventions, different opinions are held and defended than the view accepted by this court it its earlier judgment. Therefore there is a reason to reconsider which meaning should be given to the notion of fault of a vessel.

When construing this notion in it should be stated at the outset that, according to art 8:1004, para 1 and art 8:546 DCC, there is no presumption of fault. From this it may be inferred that generally there is no strict liability of the ship owner for damage caused by or with the ship to persons or property (similarly the Chamber of Appeal of the Central Commission for the Navigation of the Rhine, 13 October 1976, Schip en Schade 1977/49 Anna Bel v Boreas). On the other hand, art 6:173, para 1 of the DCC states that the possessor of a movable object is liable if a special danger for people or property materializes and the danger existed because the object did not meet the standards required under the circumstances. Although, according to art 6:173, para 3 of the DCC, the provision is expressly not applicable to ships, nonetheless a corresponding rule should also be applied in respect of the liability of a shipowner pursuant to arts 8:544, 8:545, 8:1004 and 8:1005 of the DCC.

All this leads to the conclusion that there is fault of a vessel when the damage is caused by (a) a fault committed by a party or parties for whom the ship owner is vicariously liable under arts 6:169-6:171 of the DCC; (b) a fault by a person or persons working for the benefit of the vessel or the cargo, committed within the course of the performance of their work; (c) the materialization of a special danger for people or property, and the danger existed because the ship did not meet the standards required under the circumstances. 

The Court of Appeal erred in its judgment with regard to the interpretation of the notions of fault in art 8:1004, para 1 of the DCC and fault of the vessel in art 8:1005 of the DCC where it decided that, when the fire started on board Casuele, the owner of that vessel was liable for the damage to De Toekomst, even when the cause of the fire cannot be determined.

According to art 8:1004, para 2 of the DCC the damage shall be borne by the persons suffering it, if its cause cannot be determined. It should be noted in this respect that the fire itself cannot be regarded as the cause of the damage that made the ship owner liable. For fire is always the effect of one or more other circumstances or events. But the Court of Appeal has not determined whether the fire actually started on board Casuele, let alone something about the cause of the fire.

In case the Court of Appeal did not misinterpret the rule of art 8:1004, para 2 of the DCC, but decided that, when it was established that the fire began on board Casuele, it would thereby be proven that the vessel did not meet the standards which in the circumstances may be set for such equipment, this judgment is incomprehensible in the absence of further reasoning, since the Court of Appeal did not make any finding about the cause of the fire.