This judgment followed an earlier judgment of the Gerechtshof Den Haag of 17 January 2023 (CMI2359) in which this Appeal Court ruled that it had jurisdiction to decide on the counterclaim of Zodiac Maritime Ltd (Zodiac) and Dexhon Shipping Inc (Dexhon) (respectively the shipmanager and shipowner of the Forest Park) against V Marine Fuels BV (V Marine) relating to the alleged wrongful attachment of the Forest Park by the latter in Safi (Morocco) for a bunker claim.

Held:

V Marine's liability for the attachment shall be assessed under Moroccan law. It follows from the opinions submitted by the parties that under Moroccan law there is no rule - as is the case under Dutch law - that the attached party can enforce a claim for unlawful attachment on the sole ground that the claim for which the attachment has been effected is later found to be unsound. However, under Moroccan law litigants are obliged to exercise their rights in good faith. This also applies to requesting (ex parte) leave for attachment.

The description of the claim for which V Marine sought leave to attach in its application cannot be interpreted in any other way than that it concerned a contractual claim against Zodiac. This follows in particular from the statement that the claim against the 'shipowner' (Zodiac) was 'established' with the documents submitted with the application, ie the invoice and the delivery note also addressed to 'Master and/or Owner and/or Managing Owners and/or Charterers and/or Buyers of MV "FOREST PARK"'. According to the attachment order, the attachment Judge also construed the alleged claim to be a contractual claim against Zodiac. V Marine does, and did not have, a contractual claim against Zodiac. V Marine was also not entitled to assume so in good faith. This establishes that V Marine informed the attachment Judge incorrectly and not in good faith. This misinformation of the attachment Judge was also impermissible under the good faith principle under Moroccan law.

V Marine was not entitled to attach the Forest Park to secure its claim against OW Bunker (Netherlands) BV (OWB NL) [which had purchased the bunkers], under art 3.4, second sentence, of the Arrest Convention 1952. It is insufficient for attachment that a maritime claim is alleged. It follows from article 3.4 of the Convention that under certain circumstances an attachment may be effected for a maritime claim for which a person other than the owner of the vessel is liable. However, this does not apply in the event that under the law applicable to that claim, the claim cannot be enforced against the vessel (see Hoge Raad 9 December 2011, CMI112, Stromboli M; Costanza M). V Marine does not take the position that it had a right to enforce the claim against OWB on the Forest Park under the law applicable thereto.

Moroccan courts also interpret the Arrest Convention in the manner indicated above, and tend to examine whether the conditions for granting leave are met. If V Marine had informed the attachment Judge in good faith that the law applicable to its OWB claim did not provide it with a right to enforce the claim against the Forest Park, leave would not have been granted to secure that claim.

V Marine's provision of incorrect information to the attachment Judge is the cause of the attachment of the vessel, and thus of the loss that Zodiac and the other affected parties have suffered, and will suffer, as a result.