This case arose from a collision off Singapore on 16 December 2015, between the Stolt Commitment, owned by Stolt Commitment BV and bareboat chartered by Stolt Tankers BV, and the Thorco Cloud, property of A Line Corp and bareboat chartered by Marship MPP GmbH & Co KG​, as a consequence of which the Thorco Cloud sank. Stakeholders of the Thorco Cloud instituted proceedings before the Norwegian Court against, amongst others, Stolt Commitment BV and Stolt Tankers BV for the loss of the Thorco Cloud and the costs of wreck removal. Stolt Commitment BV instituted arbitration proceedings in Rotterdam against Stolt Tankers BV, arguing that pursuant to the bareboat charter agreement Stolt Tankers BV was obliged to indemnify Stolt Commitment BV for the damage and costs it suffered and would suffer as a result of the collision. Stolt Tankers BV applied to be admitted to constitute a property fund and a wreck fund in Rotterdam in order to limit its liability in respect of all claims related to the collision. This request was allowed (Rechtbank Rotterdam 15 February 2017, CMI41; S&S 2017/94). Stolt Commitment BV filed an application primarily to be allowed to join the limitation proceedings already instituted by Stolt Tankers BV and to ask for a decision that the limitation funds to be constituted by Stolt Tankers BV shall be deemed to also serve to limit the liability of Stolt Commitment BV (joinder application), or in the alternative for a deferment of the handling of its joinder application until such time as those limitation funds were effectively constituted. The Rechtbank Rotterdam denied the joinder application (judgment of 15 February 2017, CMI106; S&S 2017/95).

Held: Appeal allowed.

Neither the LLMC nor the Dutch statutory provisions stand in the way of allowing a joinder application on a conditional basis, in the sense that the limitation funds to be constituted by Stolt Tankers BV, once constituted, should be deemed to also have been constituted by Stolt Commitment BV as the shipowner and therefore the party entitled to limitation. If necessary, the decision on this joinder application could have been deferred until, pursuant to art 642c(6) of the DCCP, it was established that the order to constitute the limitation funds had been complied with. Given the fact that Stolt Tanker BV's application for limitation was allowed, there was in any event no reason for denying Stolt Commitment BV's joinder application.