Arnold Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam                                          

Baltic Cable AB in Malmö, Sweden, owns and operates a 600 submarine high voltage, direct current link between Trelleborg, Sweden and Lübeck, Germany. This link (“Baltic Cable”) makes it possible to pool  electrical energy resources between Sweden and Germany. In November 2012 one of the anchors of the Dutch flag MV Delfborg, owned by S.M. Smith and C.V. MS Delfborg (“Owners”) and operated by Wagenborg Shipping B.V. (“Wagenborg”) allegedly damaged the high voltage cable which caused Baltic Cable to start litigation against the Owners and Wagenborg before the District Court  in Malmö on 15 March 2013. Thereupon Wagenborg started litigation against the Owners in a court in the  Netherlands on 1 May 2013. On 6 May 2013 the Owners have started limitation proceedings before the Rotterdam District Court in connection with the incident, requesting the Rotterdam Court to set the amount of their limited liability and to appoint a delegated judge and liquidator to draft the distribution list of claims of creditors. Wagenborg also started limitation proceedings before the same Court on 9 August 2013. The Owners have complied with the Court’s decision to deposit the limitation fund and Baltic Cable has filed its claim with the delegated judge and liquidator. Subsequently the Rotterdam Court had to decide upon the international procedural aspects of proceedings for limitation of liability of a seagoing ship[1].


The claimant Baltic Cable has challenged the jurisdiction of the Rotterdam Court arguing that the courts of the Netherlands lack jurisdiction and in the alternative that the Rotterdam Court should await the outcome of the proceedings before the Malmö District Court for reason of lis pendens. After Baltic Cable has initiated proceedings in Malmö on 15 March 2013 Wagenborg on its turn had started litigation against the Owners in the Netherlands on 1 May 2013. Thereupon the Owners made an application to the Rotterdam court for limitation of their liability on 6 May 2013. It had already been decided by the Dutch Supreme Court in 1994[2] 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 a referral of disputed issues by the delegated judge to the full Court in claim validation proceedings. In view of the action brought by Wagenborg against the Owners in a Dutch Court, the requirement of Article 11, section 1, of the 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 and is directly applicable, was complied with when the Owners made their application for liability with the Rotterdam Court. As the Owners had established a limitation fund on account of the incident, 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. From the wording of article 7 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 make a claim in respect of the incident giving rise to limitation. Neither the Brussels I Reg, nor the Netherlands regulations on limitation of liability make a distinction between limitation proceedings and fund proceedings. The Dutch limitation rules on of liability provide that limitation 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 Dutch Code of Civil Procedure 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 Cables’ assertion that Wagenborg had abused Dutch procedural law and brought the proceedings against the Owners to the Northern-Netherlands Court without having an actual interest. The Rotterdam Court further held that the proceedings before the Malmö Court do not restrict the jurisdiction of the Netherlands courts, however that the decisions of the Malmö Court on liability and on quantum should be awaited. The Court reasoned that from the ECJ’s judgment in the matter of the “Cornelis Simon”[3] 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 in this case) and an action for damages brought before a court of another Member State by that interested party (Baltic Cable) against the shipowner do not create a situation of lis pendens within the terms of Article 27 of the Brussels I Reg. After considering the wording of the claim document, by which the proceedings before the Malmö Court were initiated, the Rotterdam Court held that the issue of limitation of liability had not been submitted to the Court in Malmö prior to the application made by the Owners to the Rotterdam Court. Therefore a situation of lis pendens does not exist. The issues of liability and quantum in respect of the cable damage incident were 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 and therefore the Court in Rotterdam adjourned the matter on these issues awaiting the outcome of the proceedings in Sweden.


The legal effect of constituting a limitation fund is that the possibility of enforcement actions against the liable party (or parties) is excluded or limited as the claimants must file their claims against the fund. It also follows from Article 13, section 2 of the LLMC that the establishment of the liability fund bars arrest and attachment of any ship or other property belonging to the person on behalf of whom the fund has been established. A liable party will be able to constitute a limitation fund effective in respect of all potential creditors at any place where only one creditor has taken legal action against the liable party. As ships are frequently operated by one or more charterers who will also have an interest in the operations of the ship next to the owner all these parties involved have the right to limit their liability. This being the fact it can hardly come as a surprise for a claimant if legal action is being taken between a charterer and the owner and institution of such a legal action triggers the right for the party held liable to start proceedings for limitation of liability. This means that parties protected by the limitation of liability rules are in a position to largely influence the place where legal proceedings are to be instituted and, therefore, also which limitation rules will apply[4].

[1] District Court Rotterdam, 21 December 2016

[2] HR 4 november 1994, ECLI:NL:HR:1994: ZC 1522 “Vertrouwen”/TX 68

[3] ECLI:EU:C:2004:615

[4] See also Jesper Windahl – Global Limitation of Liability for Maritime Claims and the Brussels I Regulation in European Transport Law Vol. XLIV No. 6-2009