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ECLI:NL:RBROT:2016:10263 Rechtbank Rotterdam 21 december 2016

ECLI:NL:RBROT:2016:10263

Datum: 21-12-2016

Onderwerp: Art. 11 LLMC

Rechtsgebiedenregister: Transport- en handelsrecht

Vindplaats: Extern

Summary in EnglishThis decision concerns international procedural aspects of proceedings for limitation of liability of a seagoing ship. Smith, Delfborg, as the owners of the m/v ‘Delfborg’, and Wagenborg, as the charterer of the vessel, (in this judgment referred to as the respondents) have made applications to the Rotterdam Court for limitation of their liability in connection with claims made by Baltic Cable (the claimant) for damage suffered due to an alleged contact between an anchor of the ‘Delfborg’ with a cable owned by Baltic Cable lying in the Baltic Sea off the coast of Trelleborg, Sweden. On 15 March 2013 Baltic Cable brought an action against the respondents before the Court of Malmö, Sweden. On 1 May 2013 Wagenborg brought an action against Smith and Delfborg before the Court of Northern-Netherlands (Rechtbank Noord-Nederland). Thereupon Smith and Delfborg made an application to the Rotterdam Court for limitation of their liability. After the establishment of a limitation fund by these applicants, Wagenborg joined the limitation proceedings. In the scope of the verification of the claims made by Baltic Cable in the limitation proceedings, the supervisory judge has referred the matter to the full Court. The claimant Baltic Cable challenges the jurisdiction of the Court arguing that the courts of the Netherlands lack jurisdiction, alternatively that the Rotterdam Court should await the outcome of the proceedings before the Malmö Court for reason of lis pendens. The Rotterdam Court held that the Netherlands courts have jurisdiction in this matter indeed. The Court reasoned as follows.1. It follows from the decision of the Netherlands Supreme Court in the case of the ‘Vertrouwen’ (ECLI:NL:HR:1994:ZC1522) and the preparatory works to article 642r lid 2 DCCP that a claimant in limitation proceedings may challenge the jurisdiction of the Court not only in the first phase of the proceedings, when the limitation fund is established, but also in the phase of referral to the full Court.Given the action brought by Wagenborg against Smith and Delfborg, the requirement of article 11, section 1 of the directly applicable Convention on Limitation of Liability for Maritime Claims of London 1976 as amended by the Protocol of 1996 (LLMC), which Convention has been incorporated into Dutch law, was complied with when Smith and Delfborg made the application for limitation of liability.As a limitation fund had been established by Smith and Delfborg, the requirement of article 11 section 3 LLMC was complied with at the time Wagenborg made its application.Although limitation proceedings fall within the scope of the Council Regulation (EU) No. 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (Brussels I Reg), this Regulation does not provide rules on jurisdiction with respect to such proceedings, except article 7. From the wording of article 7 Brussels I Reg and the travaux préparatoires to this article, it follows that article 7 does not purport to limit the jurisdiction of the courts of the Member State in which the shipowner has its domicile. In this connection the Court considered that limitation proceedings in the Netherlands are not directed to one (or more) specific claimants, but to any and all parties which may make a claim in respect of the incident. Neither the Brussels I Reg nor the Netherlands regulations on limitation of liability make a distinction between limitation proceedings and fund proceedings. The Netherlands regulations provide that limitation of liability can only be invoked if a limitation fund is established. Therefore one cannot distinguish between limitation proceedings and fund proceedings.As each of the respondents is domiciled in the Netherlands, in principle the courts of the Netherlands have jurisdiction. In addition, in accordance with the DCCP the Netherlands courts have jurisdiction with respect to the applications for limitation of liability based on the domiciles of each of the respondents and on the ‘Delfborg’ being a ship registered in the Netherlands.The Court did not follow Baltic Cable’s allegation that Wagenborg abused Dutch procedural law and brought the proceedings against Smith and Delfborg to the Northern-Netherlands Court without an actual interest.2. The Rotterdam Court held that the proceedings before the Malmö Court do not restrict the jurisdiction of the Netherlands courts, however that the decisions of the former Court on liability and on quantum should be awaited. The Court reasoned as follows.It is common ground between the parties that the same parties are involved in the proceedings before the Malmö Court and the Rotterdam Court. From the decision of the ECJ in the matter of the ‘Cornelis Simon’ (ECLI:EU:C:2004:615) it follows that an application to a court of a Member State by a shipowner (like the respondents to the Court) for the establishment of a liability limitation fund, in which the party alleging a claim is indicated as interested party (like Baltic Cable is in the application) and an action for damages brought before a court of another Member State by that interested party (Baltic Cable) against the shipowner (the respondents) do not create a situation of lis pendens within the terms of Article 27 of the Brussels I Reg. The Court considered the wording of the claim document, by which the proceedings before the Malmö Court were initiated, and found that the issue of limitation of liability was not submitted to the latter Court prior to the application made by Smith and Delfborg to the Rotterdam Court. Therefore a situation of lis pendens on the issue of limitation of liability does not exist.However, as the issues of liability and quantum in respect of the incident where submitted before the Malmö Court prior to the application for limitation of liability before the Rotterdam Court and as these issues are the same in both sets of proceedings, these proceedings involve the same cause of action within the terms of article 27 Brussels I Reg. Therefore the Court adjourns the matter on these issues awaiting the outcome of the proceedings in Sweden. Nederlandse samenvattingBeperking van aansprakelijkheid van zeeschip ‘Delfborg’. Internationale bevoegdheid. Forumshopping? Litispendentie met een procedure tussen partijen voor het gerecht in Malmö, Zweden?

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