Collision on the river Oude Maas on 13 October 2008 between the Dutch seagoing vessel Wisdom, property of Amasus, and the inland waterway vessel Riad, property of Riad, causing the Riad to sink. The Dutch State invoked the provisions of the Wrakkenwet (Wreck Act) in respect of the Riad, and the vessel and her cargo of ferrochrome were salvaged by GPS Marine Service on the instructions of the State. The Riad was considered a total loss and sold to a demolition company. The cargo was discharged to a site belonging to the State. ELG issued an on demand guarantee to the State as security for payment of salvage costs in order to obtain release of its cargo. The State obtained payment under the guarantee. ELG held Amasus and Riad liable for the salvage costs and all other damage/loss suffered as a consequence of the collision. Amasus limited its liability with regard to the wreck removal costs by constituting a wreck fund with the court of Rotterdam. In a separate procedure, a property fund was constituted. ELG submitted its claim to the court-appointed liquidator of the wreck fund. At the claims verification meeting the supervisory judge referred ELG and Amasus to the claim validation proceedings, inter alia with regard to questions whether ELG’s claims are to be submitted against the wreck fund and the extent of the liability.

Held: Based on art 8:752(1)(d) of the Dutch Civil Code (DCC), the following claims can be submitted against the wreck fund:

vorderingen terzake van het vlotbrengen, verwijderen, vernietigen of onschadelijk maken van een zee- of binnenschip dat is gezonken, schipbreuk heeft geleden, gestrand of verlaten, met inbegrip van alles wat aan boord zulk een schip is of is geweest

This article is a national provision, pursuant to the Dutch reservation on the basis of art 18.1 of the LLMC, and contains a literal translation of the text of art 2.1.d of the LLMC.

It is correct that the provision regarding the wreck fund must be interpreted according to principles of Dutch law as it is a national provision. On the other hand, the boundaries of the reservation to the LLMC must be established by interpreting the Convention, as the reservation cannot be interpreted to extend beyond the limits set by the LLMC. This entails that the meaning of art 2.1.d of the LLMC, and therefore also art 8:752(1)(d) of the DCC, must be established by interpreting the convention.

According to the Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith, and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the treaty’s object and purpose. Any subsequent agreement between the parties or any subsequent practice regarding the interpretation or application of the treaty shall be taken into account. The preparatory work of the treaty can be used as a supplementary means of interpretation.

The first question to answer is whether only claims of the person that performed the activities as described in art 2.1.d of the LLMC and art 8:752(1)(d) of the DCC (the ‘wreck remover’; in this case, the State) are subject to limitation, or whether recourse or indemnity claims of third parties that paid the wreck remover’s claim (in this case the cargo interests) are also included. To assess whether a claim qualifies as a claim under art 2 of the LLMC (and therefore also under art 8:752 of the DCC) one must only consider the nature of the claim and not its basis. This follows from the wording of art 2.1 (opening lines) of the LLMC: ‘whatever the basis of the liability may be’ and art 2.2 of the LLMC: ‘even if brought by way of recourse or for indemnity under a contract or otherwise’. All recourse or indemnity actions related to activities as described in art 2.1.d of the LLMC and art 8:752(1)(d) of the DCC come within the scope of those articles and are subject to limitation in the Netherlands by way of a wreck fund.

The view that recourse or indemnity actions with regard to activities as described in art 2.1.d of the LLMC and Article 8:752(1)(d) of the DCC, and performed within the context of salvage operations or general average, only come within the scope of art 2.1.a of the LLMC, is incorrect.

The recourse or indemnity actions concerning this salvage operation may be submitted against the wreck fund in full. In order to allow claims for the removal of cargo it is sufficient to establish that the cargo was on board of the vessel within the meaning of art 2.1.d and e of the LLMC. Nothing in the text suggests that these costs should be split into a part relating to the ship and a part relating to the cargo.