The Cape May - owned by the US and flying the US flag - was moored in the Eemshaven in Delfzijl on terms set out in a document prepared by the Port Authority and agreed to in writing by the US. During its stay some boiler tubes fell overboard. It also slipped from its moorings a few times, resulting in allisions with the embankment owned by the Port Authority. The Port Authority claimed remuneration for the costs of salving the boiler tubes, and for the damage to the embankment. The US invoked immunity from jurisdiction, because (a) the Cape May belonged to the Ready Reserve Force Vessels of the US Navy and was being used for military operations 'Desert Shield' and 'Desert Storm', (b) the ship was in the Eemshaven to take in military supplies which were to be carried to the Gulf Region, and (c) the Cape May was a war ship, and therefore not a commercial vessel, and was not performing commercial activities.

Held: The question whether the US has immunity from jurisdiction on the basis of unwritten rules of public international law in respect of a claim arising in this country from the use by the US of a ship belonging to and operated by the US, which, at the time the claim arose, had the status of war ship or military supply ship and was solely used for performing a military (and therefore non-commercial) public task, must be answered affirmatively. Under public international law as it stands today foreign states are not subject to the jurisdiction of the Dutch courts for claims arising in this country from the operation of ships belonging to them or operated by them to perform a typically public task (such as a military action). The nature or the act or incident from which the claim arose is not relevant.

The opinion accepted here is supported by state practice, court decisions in several countries and by authoritative literature on public international law. This opinion is also the foundation for what is provided for in art 3 of the Immunity of State-Owned Ships Convention 1926, which Convention is the reason why in the European Convention on State Immunity (Basel, 16 May 1972) proceedings in respect of claims relating to the operation of seagoing vessels owned or operated by a Contracting State are excluded from the scope of application of the European Convention.

The claim exercised by the Port Authority can only be regarded as a claim 'arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo' as meant in art 8.5.h of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces (London, 19 June 1951) so that the scheme for dealing with third party claims contained in that para does not apply.