There was a collision off Singapore on 16 December 2015 between the Stolt Commitment, owned by Stolt Commitment BV and bareboat chartered to Stolt Tankers BV, and the Thorco Cloud, owned by A Line Corporation and bareboat chartered to Marship MPP GmbH & Co KG. As a result, the Thorco Cloud sank. Parties interested in the Thorco Cloud commenced proceedings against, amongst others, Stolt Commitment BV and Stolt Tankers BV in a Norwegian court for the loss of the Thorco Cloud and the costs of removal of her wreck. Stolt Commitment BV commenced arbitration proceedings in Rotterdam against Stolt Tankers BV, claiming that under the bareboat charter Stolt Tankers BV was to indemnify Stolt Commitment BV for the damages and costs resulting from the collision. Stolt Tankers BV wanted to limit its liability for all claims regarding the collision and applied to the Rotterdam Court to be allowed to constitute a property fund and a wreck fund. Stolt Commitment BV applied to the same Court to be allowed to join the limitation procedure initiated by Stolt Tankers BV and requested a judgment that the limitation funds to be set up by Stolt Tankers BV would equally serve to limit the liability of Stolt Commitment BV.

Held: This was an international dispute because most parties named in the application were established in foreign countries, the accident happened off Singapore or on the high seas, and the Stolt Commitment is registered in the Cayman Islands. Hence, the Court must first examine whether the Dutch courts had jurisdiction and consider which law should be applied. Since there were parties domiciled in the European Union and in Norway, questions regarding jurisdiction were to be answered on the basis of EU Regulation 1215/2012 (Brussels I Regulation) or the Lugano Convention 2007. Article 71 of the Brussels I Regulation does not affect a provision on jurisdiction in a convention on a particular matter, provided that this provision is applied in a way that guarantees respect for the goals and principles on which the Brussels I Regulation is based on at least as favourable conditions as the Brussels I Regulation itself. Article 67 of the Lugano Convention 2007 contains a similar rule. The Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) does not explicitly regulate jurisdiction. However, art 11 of the LLMC 1976 guides the person who wants to limit liability, in particular to the ‘Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation’. Since art 11 of the LLMC did not create jurisdiction, the rules in the Brussels I Regulation and the Lugano Convention 2007 were not set aside. Neither the Brussels I Regulation nor the Lugano Convention 2007 regulates jurisdiction with regard to an application for the limitation of liability, or the constitution of a limitation fund, except for art 9 of the Brussels I Regulation and art 7 of the Lugano Convention 2007 respectively, both of which did not apply in this case as no procedure relating to the liability of Stolt Tankers BV was brought before a Dutch court. As there was neither any applicable international instrument granting jurisdiction to the Dutch Courts nor any international instrument excluding it, the question of jurisdiction was to be answered following national rules, especially with arts 3 and 642a of the Dutch Code of Civil Procedure (DCCP). According to art 3 chapeau and paras a and c of the DCCP, the Dutch Court had jurisdiction regarding the application in question. Stolt Tankers BV and Stolt Commitment BV were established in the Netherlands, so each of them could be summoned to appear before a Dutch Court. According to art 642a of the DCCP, which applied at the time of the filing of the petition, the Rotterdam Court was competent to hear an application for limitation of liability with regard to ships not registered in the Netherlands, such as the Stolt Commitment. Therefore, in principle the Dutch Court had jurisdiction to hear the requests contained in the current application.

There was no issue of lis pendens. Although the proceedings in Norway involved the same parties and the claims have the same cause of action ie the collision, the object of the proceedings was different. The proceedings in question concerned the limitation of liability, whereas the alleged liability is the object of the Norwegian proceedings. This case is about the limitation of liability for maritime claims on the basis of the LLMC. The Netherlands has made use of the option under art 10.1 of the LLMC and it has arranged in its national laws that limitation of liability is only possible by constituting a limitation fund. Accordingly, in the course of limitation of liability, a declaratory judgment that a limitation fund has been constituted may be regarded also to have been constituted for the limitation of the liability of another person, as described in art 11.3 of the LLMC and arts 8:758 and 642d of the Dutch Civil Code respectively, can only be granted when such a fund has actually been constituted. These provisions entail that only when a person within the group of those entitled to limit liability has actually constituted a limitation fund, the application of any other person entitled to limit liability requesting a declaration that the limitation fund may be regarded as also constituted for the limitation of another person may be allowed. At the time of the submission of the application no limitation fund (by or on behalf of Stolt Tankers BV) had yet been constituted. Nor is this the case at the time of the judgment. Therefore, Stolt Commitment BV's application will be dismissed. This does mean that it will not be allowed to submit such an application at a later time when one or more funds have actually been constituted. Stolt Commitment BV's (alternative) request to determine the limits of limitation and be allowed to constitute limitation funds will also be dismissed, since no proceedings regarding the collision have been instituted against it in the Netherlands, so that the requirements of art 11 of the LLMC have not been met.

[See Stolt Commitment BV v A Line Corp​ (CMI593) for the subsequent successful appeal to the Gerechtshof Den Haag.]