The port of Rotterdam and the Rotterdam court are well-known amongst creditors who have a recoverable claim on seagoing vessels. Experience shows that ships usually can be seized easily and quickly. This is true compared to other jurisdictions. The court, lawyers and bailiffs are accustomed to acting quickly and enabling an arrest; it can happen that, at night, a ‘water’ lawyer asks a judge at his home for an arrest, after which the bailiff goes to the ship that same night. The vessel is then under arrest.
Abroad
This is completely different than in other European jurisdictions. In a number of jurisdictions, an arrest is only possible in exceptional cases or is impossible. Moreover, the arrest has to be prepared in advance for days, weeks even. The parties have to be heard and guarantees have to be made in advance. Then there are the preservation costs, often quite extensive.
Rotterdam; quick and effective
In the Netherlands, a lawyer can suffice with drawing up an application of one or two pages, in which he describes the claim and amount of that claim. Generally, the judge will hold the statements in the application to be true. The judge can give his permission with a simple signature after which the application is referred to the bailiff, who will board the vessel in order to seize it. The port authorities are briefed and, as of that moment, the vessel cannot go anywhere; at most, it may be moved within the port after approval.
Which claims may lead to an arrest?
Not all claims are automatically recoverable on a vessel. If the creditor, for instance, has a claim on the time charterer, arresting the vessel is often not beneficial to him. Usually, a claim is recoverable on the vessel only under special circumstances, or if the debtor is the actual owner of the vessel. Furthermore, in case of prejudgement seizure on seagoing vessels of states bound to the Brussels arrest convention, the claims should be maritime claims as described in said convention. The time charterer who does not pay, should, however, fear a bunker arrest. Most time charters ensure that the time charterer is the owner of the bunker oil on board. The bunker is an object subject to arrest. This means that the vessel command is punishable when the motor is kept turned on after the bunker arrest; with this act, the vessel command destroys a property for which recourse is available! Thus, the bunker arrest has a similar effect as a ship arrest: pending the arrest the vessel cannot go anywhere. Transferring the contents of the bunker to the shore is an expensive alternative and, therefore, it is hardly ever used.
Lifting the arrest
The debtor has a number of possibilities to have the arrest lifted. Simply by paying the claim for which the vessel has been seized. He can also opt for having a guarantee provided. Often, a standard form is used in order to obtain agreement on the text quickly, as developed by the Rotterdam lawyers, Rotterdams Garantieformulier 2008.
If the debtor has valid reasons, he may also bring the creditor to interlocutory proceedings in order to have the arrest lifted. If there is prima facie evidence for the implausibility of the claim, the judge will lift the arrest.
Wrongful seizure
During such a lifting procedure will come to light, that the current system is not entirely to the detriment of the maritime operator. Moreover, the creditor is liable for the damage suffered, when afterwards it is found that the vessel was seized without proper cause. Whoever is familiar with the costs involved with the exploitation of a seagoing vessel will understand that the damage may be enormous and that this should be carefully considered.
Conclusion
Vessels calling on the port of Rotterdam have been warned. The system developed here is quick and effective, and because of the bunker arrest developed in practice, a time charterer is not safe either from decisive creditors
Information
If you would like more information on this subject, please contact our office 0031 10 209 2777 or by e-mail info@lvh-advocaten.nl.
