Application for limitation of liability by the owners of the Harns in respect of damage caused to the ship and its cargo by running aground on the Silver Bank near the Dominican Republic on or about 12 August 2009.

Held: As the LLMC 1976, which is applicable in this case, is self-executing, the Convention must be applied and not the articles of the Civil Code by means of which the Convention is incorporated into national law.

Since 1 January 2017 and on the basis of art 642a of the Dutch Code of Civil Procedure, the Court of Rotterdam has exclusive jurisdiction within the Netherlands regarding limitation proceedings based on art 8:750 para 1 of the Dutch Civil Code which corresponds with art 1.1 of the LLMC 1976.

As the owner of the ship, Harns CV belongs to the class of people entitled to limit liability. The joint managing partners of the limited partnership must (together with Harns CV) be regarded as the legal owner of the Harns. With that they also fall within the concept of 'shipowner' of art 1.1 and art 1.2 of the LLMC 1976 and within the class of parties entitled to limit liability.

In the preliminary phase of the limitation proceedings, the right to limit is not, in principle, restricted on grounds that arise solely from the individual legal relationship between the applicants and one or more, but not all conceivable interested parties. Except in very obvious cases, individual legal relationships cannot be sufficiently determined in this first stage. Interested parties are free to resubmit these defences at a later stage.

The LLMC 1976 does not contain a provision from which it follows that the application for limitation must be made within a certain period of time. Nor do the travaux préparatoires of the Convention provide support for the argument that the right to limit must be invoked as soon as possible after the incident. Dutch procedural law – which applies, as art 14 of the LLMC 1976 refers to the law of the country in which the fund is constituted for all rules of procedure relating to the constitution of the fund – does not contain a time bar period within which a limitation application must be made.

The wording of art 11.1 of the LLMC 1976 does not lead to the conclusion that limitation of liability is only possible at the stage in which liability has not yet been established. Applying art 31 and art 32 of the Vienna Convention on the Law of Treaties, the words 'alleged to be liable' – having regard to their ordinary meaning in the context of the convention in the light of its object and purpose, and the travaux préparatoires of this provision – contain a clarification that the right to limit may already be invoked before the liability is definitively established.

The incident falls outside the temporal scope of application of the 1996 Protocol. There is no room for the court to hold the self-executing Convention inapplicable with regard to its liability limits on the basis of principles or reasonableness and fairness (good faith) derived from national domestic law, and instead apply the limits of the 1996 Protocol. Such a decision would impair the protection of the interests of shipowners envisaged by the Convention and it would impair legal certainty. Such a decision would also injure legal equality, since it would mean that different yardsticks would be applied to this incident occurring in 2009 than to other incidents from 2009. Finally, national domestic law does not provide for the non-application of rules applying between the creditor and the debtor by reason of a Convention on the grounds of reasonableness and fairness (good faith).