Extension of liability of the owner of a wreck
The Kingdom of The Netherlands v Owners of the yacht Qubio – “The Qubio”
Supreme Court of the Netherlands : Vice-President F.B. Bakels as chairman and judges G. Snijders, G. de Groot, M.V. Polak and T.H. Tanja-van den Broek
10 July 2015, Case no. ECLI:NL:HR:2015:1836
M.W. Scheltema for The Kingdom of The Netherlands
Owners of the Qubio did not defend the appeal to the Supreme Court
WRECK OF VESSEL – EXTENSION OF LIABILITY OF THE OWNER OF A SUNKEN VESSEL TO PAY FOR COSTS OF MARKING THE WRECK AS A TEMPORARY OR PRECAUTIONARY MEASURE
Earlier case law of the Supreme Court of the Netherlands had held that the owners of a sunken vessel were liable for the costs of removing its wreck if the wreck created such a danger that the Dutch State was reasonably obliged to remove it. In this case the Supreme Court has held that owners of the wreck of a vessel are not only liable for the costs of removing the wreck, but also for the costs of other action that the Dutch State can reasonably be obliged to take, such as marking the place where the vessel sunk, even if this is done merely as a temporary or precautionary measure.
This note has been contributed by Nigel Margetson, partner in the law firm of Margetson Van ‘t Zelfde & Co, Rotterdam
On Sunday morning, 3 August 2008, the yacht Qbio sank whilst sailing on the North Sea along the Dutch coast between Scheveningen and Stellendam. The crew were picked up by a passing vessel. At noon on the same day a vessel of the Dutch coast guard searched for the wreck of the Qbio but could not find it. The coast guard marked the spot where the Qbio’s crew had been picked up with two cardinal buoys.
On 22 August 2008 the coast guard removed the buoys. The Kingdom of the Netherlands (Dutch State) held the owners of the Qbio (“Owners”) liable for the costs (Euro 18,234.40) of placing and removing the two cardinal buoys. The Owners rejected the claim.
The legal basis for the Dutch State’s claim
The Dutch state said that the costs that it had incurred were costs within the meaning of article 10 of the Dutch Wreck Act and that, pursuant to Art. 6:162 Dutch Civil Code, the Owners was liable for those costs.
Art. 10 of the Wreck Act provides:
The costs incurred pursuant to this act, are, to the extent that they have not been repaid by interested parties or recovered from the proceeds of the sale of the goods referred to in article 6 [i.e. the salvaged goods] for the account of the Dutch State, without prejudice to its authority to recover the costs that, pursuant to this article are for its account, from the party that is responsible for those costs pursuant to statutory law.
Art. 6:162 of the Dutch Civil Code (“DCC”) says:
1. He who commits an unlawful act that can be attributed to him against another, is obliged to indemnify that other party for the damage caused by the unlawful act to that other party.
2. Unlawful acts are, unless there is a justification for them, a violation of a right and an action or failure to act that is contrary to a legal obligation or to what, pursuant to unwritten law, is deemed acceptable in society.
The Dutch State argued that it followed from the Supreme Court cases Dutch State v August de Meijer, 14 October 1994, NJ 1995, 720 and Dutch State v KMT, 8 March 2002, NJ 2003, 372 that the Owners had done an unlawful act within the meaning of art. 6:162 DCC. In those cases it had been held that the owner of a vessel that sinks in navigable waters, even if he cannot be blamed for the sinking of his vessel, becomes obliged towards the Dutch State to remove the wreck immediately upon his becoming aware of the situation, and if he does not do so, and the danger of not removing the wreck is so large that the Dutch State is reasonably obliged to remove it, he will be acting unlawfully towards the Dutch State.
The case in first instance and at the Court of Appeal
Both the court of first instance and the court of appeal rejected the Dutch State’s claim. The Court of Appeal said:
The authorities (Dutch State v August de Meijer and Dutch State v KMT) cited by the Dutch State make clear that the Owners would be obliged to remove the wreck of the Qbio if the danger created by not removing it would be so large that the Dutch State would reasonably be obliged to remove it. In this case however there was no reason to remove the wreck of the Qbio as it had completely disappeared.
In this case therefore Owners were not being held liable for failure to remove the wreck but for a failure to mark the wreck. It however did not follow from the authorities cited by the Dutch State that a failure to mark a wreck was unlawful. There were also no other reasons from which it could follow that not marking a wreck is unlawful. Only the Dutch State had the authority to place buoys. There was therefore no unlawful act of Owners.
The Supreme Court’s decision
The Supreme Court reversed the decisions of the court of first instance and the Court of Appeal. It said:
In the cases Dutch State v August de Meijer and Dutch State v KMT the unlawful act that made the owner of the sunken object liable was the failure of the owner to remove the sunken object. The requirement for liability contained in those cases, i.e. that the danger of not removing the sunken object is so large that the Dutch State is reasonably obliged to remove it, meant that, when an object sinks in navigable waters, there could only be liability if the dangers created by the sunken object were such that the Dutch State was reasonably obliged to take action.
Even if removal of the object by the Dutch State was not necessary, or was found not to be necessary, but the object (possibly) could have created such a danger for shipping that action was reasonably required to be taken, such as the marking of the place where the object had sunk, whether or not merely temporarily or as a precaution, there were grounds for that liability. The circumstance that the owner of the object had no authority to take these measures itself but that only the Dutch State had that authority did not prevent this liability from arising.
This case extends the liability of the owner of a wreck to the costs of any action that the Dutch State reasonably decides to undertake because of the potential danger caused by the wreck. The case makes clear that even if it is not apparent at all that the wreck creates any danger (in this case the wreck had in fact disappeared), the owner of the wreck will be liable for precautionary and temporary measures taken by the Dutch state.