On 15 October 2014, V Marine Fuels BV (VMF) in Rotterdam supplied fuel oil to the Forest Park, which was owned by Dexhon Shipping Inc (Dexhon) and managed by Zodiac Maritime Ltd (Zodiac). In connection with this fuel supply, VMF sent an invoice to OW Bunker (Netherlands) BV (OWB NL), who had purchased the fuel oil which Zodiac had ordered from OWB NL. This invoice - dated 15 October 2014, for the amount of USD 272,862.74, with a final payment date of 5 November 2014 - named as addressee: 'Master and/or Owner and/or Managing Owners and/or Operators and/or Charterers and/or Buyers of MV "FOREST PARK" and [OWB NL]' with the address of OWB NL. In turn, OWB NL sent a second invoice to Zodiac dated 15 October 2014 and addressed to 'M/V Forest Park [..] and/or Owners/Charterers, Zodiac [..] London' with a slightly higher purchase price. This second invoice gave 14 November 2014 as the 'due date' of the payment.

On 6 November 2014, VMF informed Zodiac that the OW Bunker Group was in financial difficulties and had failed to pay the purchase price of the fuel oil delivered on 15 October 2014. VMF therefore asked Zodiac to pay the purchase price directly to VMF. Moreover, VMF relied on a retention of title to the fuel oil and mentioned that it was impermissible for 'the shipowner of the m/v Forest Park or any manager or charterer engaged in the use of the vessel' to use the fuel oil. On 7 November 2014, on the basis of an assignment by OW Bunker Group, ING Bank BV (ING) requested Zodiac to pay it the money outstanding to OWB NL and other affiliates of the OW Bunker Group. On 21 November 2014, OWB NL went bankrupt.

On 13 January 2015, VMF effected an attachment on the Forest Park at Safi (Morocco) to assure the recovery of the amount owed for the delivered fuel oil. The arrest was lifted on 16 January 2015 against security from Dexhon and Zodiac. On 28 April 2015, ING effected an attachment on the Forest Park in Rotterdam (the Netherlands). This arrest was also lifted against security. ING and OWB NL initiated arbitration in London (UK) against Zodiac. On 17 October 2016, ING and the creditors of OWB NL, and Zodiac, came to a settlement, which involved. among other things, a payment of USD 397,000 by Zodiac. However, VMF was not involved in this settlement. VMF claimed payment of the invoice, stating that Zodiac and Dexhon had been unjustifiably enriched or, as the case may be, had acted wrongfully against VMF. Zodiac and Dexhon claimed that VMF was liable for the losses suffered by Zodiac and/or Dexhon, as well as future losses, resulting from VMF's attachment of the Forest Park in Morocco.

Held: Appeal allowed.

Zodiac (and related parties) did not act wrongfully towards VMF by using (or continuing to use) the bunker fuel for the propulsion of the Forest Park. In its contractual relationship with OWB NL, Zodiac was entitled to use (or continue to use) the bunker fuel for the Forest Park, in conformity with the retention of title provision included in the general terms and conditions of the agreement between Zodiac and OWB NL. This provision is customary in the sector, and was also included in the terms and conditions of sale used by VMF itself. Zodiac has exercised its contractual rights vis-à-vis OWB NL by using (or continuing to use) the bunker fuel, and VMF should have been aware of those rights and the exercise of rights when it delivered the bunker fuel to Zodiac, even though Zodiac had not yet paid the purchase price to OWB NL. VMF had not made itself known to Zodiac before the delivery, let alone inform Zodiac of the possibility that it would want to invoke its proprietary right on the delivered bunker fuel despite the right of Zodiac to use (or continue to use) the fuel for the propulsion of the Forest Park. Moreover, Zodiac could acquire property in the bunker fuel at any time by payment to OWB NL or ING. In those circumstances, VMF must be deemed to have given its consent to the exercise of rights by Zodiac, or at least to have been estopped from invoking its own proprietary rights (see Gerechtshof Amsterdam 18 December 2018, Schip en Schade 2019/104 (YM Uniform), Rechtbank Rotterdam 30 January 2019, Schip en Schade 2019/62 (Hermod and Bylgia)).

This is all the more so because this case concerns bunker fuel to be used for the purpose of the propulsion of a seagoing ship. It may be said to be unworkable if a 'physical' consumer of bunker fuel, who is entitled vis-à-vis its contractual supplier to use the bunker fuel for the propulsion of its seagoing ship, could be confronted with an alleged proprietary right of an earlier supplier who could prevent further usage of the bunker fuel at an unpredictable time and place during the sea voyage – at which time and place replacement bunker fuel would usually not be readily available. This should have been understood by VMF, which is why Zodiac was entitled to trust that any previous supplier, as far as applicable, would not invoke such a proprietary right.

Nor has Zodiac been enriched, let alone unjustifiably enriched, by the (continued) use of bunker fuel at the expense of VMF. Zodiac has had to pay the full purchase price it owed OWB NL to ING, and it has done so. It is of no relevance that Zodiac did not inform VMF of the arbitration proceedings surrounding ING's claim for payment of the purchase price, as VMF's involvement in the arbitration proceedings or the claim would not have led to a different outcome.

The Dutch courts have international jurisdiction to decide on Zodiac's counterclaim. The international jurisdiction which art 5 of the Arrest Convention 1952 confers on the court of the attachment (the Moroccan court) in respect of claims or applications covered by that provision is exclusive. Its material scope is not limited only to the explicitly mentioned subjects - such as releasing ship from arrest or the sufficiency of the bail or security - but also entails claims or applications that are closely related, such as claims or applications for release, reduction, increase, or other changes of the substitute security (Hoge Raad 17 July 2020, CMI1015). However, this cannot include claims (on the merits) for damages for the alleged wrongfulness of the arrest. Without doubt the Dutch courts have international jurisdiction by virtue of art 4(1) of the Brussels I bis Regulation, as VMF is domiciled in the Netherlands.

[See also Gerechtshof Den Haag 13 November 2018, CMI318, and Hoge Raad 17 July 2020, CMI1015.]