On 13 October 2008, there was a collision on the river Oude Maas between the Dutch seagoing vessel Wisdom, the property of Amasus, and the inland waterway vessel Riad, the property of Riad, causing the Riad and its cargo of ferrochrome to sink. The Dutch State invoked the provisions of the Wrakkenwet (Wreck Act) in respect of the Riad, and the vessel and its cargo were salvaged by GPS Marine Service on the instructions of the State. The Riad was considered a total loss and sold to a demolition company. The cargo was discharged to a site belonging to the State. ELG issued an on-demand guarantee to the State as security for payment of salvage costs in order to obtain release of its cargo. The State obtained payment under the guarantee. ELG held Amasus and Riad liable for the salvage costs and all other damage/loss suffered as a consequence of the collision. Amasus limited its liability with regard to the wreck removal costs by constituting a wreck fund, as referred to in art 7:755 para 1 of the Dutch Civil Code (DCC), with the Court of Rotterdam. In a separate procedure, a property fund was constituted. ELG submittted its claim to the Court-appointed liquidator of the wreck fund. At the claims verification meeting the supervisory Judge refered ELG and Amasus to the claim validation proceedings, among other things, with regard to questions whether ELG’s claims were claims referred in art 7:752 para 1 chapeau and sub (d) and (e) DCC, which should be submitted in the wreck fund, or as Amasus argued, were claims arising from salvage or general average as referred to in art 8:752 para 1 sub (a) DCC. The Court at first instance (Rechtbank Rotterdam) and the appeal Court (Gerechtshof Den Haag) (see CMI84) decided that the claim for an indemnity for the removal costs paid to the State belong in the wreck fund. Amasus filed an appeal in cassation.

Held: Articles 8:752 and 8:755 DCC are part of s 8.7 DCC. In this section the Convention on Limitation of Liability for Maritime Claims 1976 (the LLMC 1976) is implemented. The LLMC 1976 was revised and replaced by the 1996 Protocol. This revision and replacement came into force in the Netherlands on 23 March 2011 and led to the amendment of art 8:755 DCC, effective from 1 January 2011. The revision, replacement and amendment do not apply in the present case. But what follows equally stands after the revision, substitution and amendment.

The Netherlands has made use of the reservation in art 18.1 of the LLMC 1976 to exclude the ability to limit liability provided in art 2 (art 8:752 DCC) for claims referred to in arts 2.1.d and 2.1.e (art 8:752 para 1 sub (d) and (e) DCC), in brief, claims for costs in connection with the removal of the wreck and the cargo. Instead, the former art 8:755 para 1, chapeau and sub (c) DCC – now art 8:755 para 1, chapeau and sub (d) DCC – provides for the possibility to limit the liability for these claims by constituting a wreck fund. The rationale behind the legislative arrangement to constitute a separate fund is related to the safety of maritime traffic, more specifically the interest of keeping waterways free from obstacles. This interest is served by a legislative arrangement in which the party who incurs costs in connection with wreck and cargo removal does not have to share in the proceeds of the property fund, but in a separate fund with a potentially higher limit.

The question that arises is whether an indemnity claim for salvage services rendered to the Riad is a claim as referred to in art 2.1.a (art 8:752 para 1 sub (a) DCC) – and not a claim as referred to in art 2 .1.d and art 2.1.e – and that would therefore not be affected by the reservation of art 18.1. This is a matter of interpretation of the LLMC 1976. That interpretation is to be done on the basis of the standards given in arts 31-33 of the Vienna Convention of the Law of Treaties.

In art 2.1 of the LLMC 1976, several different claims are distinguished in respect of which limitation of liability is possible pursuant to that article. As appears from the framework and the contents of art 2.1, those claims are determined by the subject of the claim as described in art 2.1.a-f. It follows from the wording of art 2 that the basis of the claim is not relevant. A claim therefore falls under the scope of art 2.1 if the subject of the claim can be brought within one of the descriptions of that article, regardless of its foundation. This also applies if there is a claim on account of salvage. Although arts 3.1 and 3.1.a (art 8:753 para 1, chapeau and sub (a) DCC) provides that the rules of the Convention do not apply to claims for salvage, that exclusion only covers claims that are directly based on salvage (ie, are brought by the one who rendered salvage services) and not on possible indemnity actions relating to salvage.

Articles 2.1.d and 2.1.e of the LLMC 1976 relate to the removal of wreck and the cargo of the ship, which also appears from the travaux préparatoires (p 74 ff) (which can be found on the website www.comitemaritime.org). The description of these claims, however, clearly comprises more than the mere removal of 'wrecks' in the general, linguistic sense (of objects that have lost their economic value). That description also covers cases of salvage, and therefore also indemnity claims relating thereto. This is supported also by art 1.3, which explicitly declares the operations referred to in art 2.1.d and art 2.1.e as salvage within the framework of the question who can be considered to be a salvor within the meaning of art 1.1, and who can therefore limit their liability on the basis of art 2 for the claims named therein.

The subjects enumerated in art 2.1 can overlap, and a claim can therefore be subject to limitation on several grounds mentioned in that article. Among other situations, this may be the case with an indemnity claim of a shipowner relating to salvage that falls under arts 2.1.d and 2.1.e. That claim can in certain circumstances also qualify as a claim as meant in art 2.1.a. This concurrence does not lead to questions on interpretation since the same limits (as provided in art 6) apply to both situations. It is different, however, when - as is the case in respect of the Netherlands - a State Party made the reservation of art 18.1 and on that ground a different regime applies for that state with regards to the claims that fall under the scope of that reservation. In that case this other, special regime ranks as a lex specialis over the entitlement (to limit) of art 2.1.a.

There is no ground for the interpretation that the reservation of art 18 exclusively relates to indemnity claims of waterway authorities and therefore does not apply to indemnity claims of shipowners. Accepting such a limited interpretation is not natural, since the interest of safety for maritime traffic which is the purpose of art 18, can be served by other parties than waterway authorities by carrying out activities as described in arts 2.1.d and 2.1.e.

If the claim would also be a claim relating to general average, this would not alter the fact that the indemnity claim of ELG would fall within the scope of art 2.1.d, so that the liability for that claim can only be limited by constituting a wreck fund on the basis of art 8:755 para 1 chapeau and sub (c) DCC.

The fact that the cargo of the Riad still had economic value is not an obstacle to conclude that that the claim for salving the cargo would fall under art 2.1 and art 2.1.d so that the liability for that claim can only be limited by constituting a wreck fund on the basis of art 8:755 para 1 chapeau and sub (c) DCC.

The wording of arts 2.1, 2.1.d, and 2.1.e has to be interpreted in line with their ordinary meaning. Therefore, all claims that fulfil the descriptions in that sense, in other words that are related to the operations mentioned there, fall under those provisions.