Loss of 88 containers with pesticide in the night of 8-9 December 1993 by the French motor vessel Sherbro in the English Channel. Tens of thousands of little bags with pesticide washed up on the Dutch North Sea shore. The Dutch State effected an attachment on the ship in Amsterdam on 20 January 1994 for a claim for the costs of removal; the attachment was lifted that day in exchange for a bank guarantee. Earlier, on 11 January 1994, cargo interests submitted an application to the President of the Tribunal de Commerce de Paris (France) for the appointment of a court expert, which application was granted by Ordonnance of 27 January 1994. On 17 February 1994 the ship-owner submitted an application for limitation of liability to the Tribunal de Commerce de Terre et de Mer in Dunkirk (France). After the application was granted by Ordonnance of 18 February 1994, a fund (for property damage) was constituted on 22 February 1994. Based on art 13.2 of the LLMC 1976, the ship owner demanded the return of the bank guarantee in provisional measures proceedings. The President of the Arrondissementsrechtbank 's-Gravenhage dismissed the action, which judgment was upheld in appeal. The ship owner filed for appeal in cassation.

Held: Also taking into account the Minister's statements regarding art 11 of the LLMC 1976 in the Memorandum of Reply in the legislative history of the bill for approval of the ratification of the LLMC 1976, the notion 'legal proceedings' in art 11.1 of the LLMC 1976 must be given a wide interpretation. It is therefore appropriate to include under instituting legal proceedings as referred to in art 11.1 of the LLMC 1976 also an application for leave to take legal measures by the person purporting to have a claim subject to limitation, such as applications for leave to effect a conservatory attachment for the purpose of recovering the claim, or the application for the preliminary hearing a witnesses for the purpose of obtaining evidence about facts that may form the basis of the claim. Also an application on the basis of art 145 of the Nouveau Code de Procédure Civile, which is similar to the aforementioned applications, by the person purporting to have a claim subject to limitation - such as in this case the application for the appointment of a court expert (Paris, 11 January 1994) - is to be regarded as an application for leave to take legal measures within the meaning set out above.

The Ordonnance of 18 February 1994 (Dunkirk, granting the application for limitation of liability) also implies the opinion that the submission on 11 January 1994 of the application by cargo interests for the appointment of a court expert (Paris), is to be regarded as instituting legal proceedings within the meaning of art 11.1 of the LLMC 1976. Since this opinion is correct, this court does not need to decide the question whether art 26 of the Brussels Convention on Jurisdiction and Enforcement would entail that the correctness of that opinion implied in the Ordonnance should be recognized without any special procedure being required. Demand for the return of the guarantee allowed.