NETHERLANDS Law and Practice Contributed by: Rik van Waasbergen, Sander Metzelaar, Wiebe Wajer, Iris Stielstra and Daan Komen, HerikLegal
5.2 Maritime Liens The concept of a general maritime lien does not exist under Dutch law. However, Dutch law does contain statutory privileged claim rights against the owners for certain claims in relation to the vessel. Such statu - tory privileges are set out in Book 8, Chapter II, Title 3, Section 3 of the DCC. Examples of such privileged claims are: • claims for the costs of wreck removal; • claims under a maritime employment contract; • general average claims; and • salvage claims. The privilege aspect provides that (i) the claimant can enforce his or her claim by an arrest on the vessel even when the owner of the vessel is not the (con - tractual) debtor of the claim, and (ii) the claim has a higher rank than mortgages on the vessel and ordinary claims against the owner. Foreign maritime liens can be accepted in the Dutch jurisdiction provided that they are valid under both the law that governs the legal relationship on which the lien is established and the law of the flag state. There - fore, such foreign maritime liens can, in principle, be enforced in the Dutch jurisdiction. 5.3 Liability in Personam for Owners or Demise Charterers To enforce a claim on a vessel and thus to arrest the vessel, the owner of the vessel or the demise charterer must be liable in persona. This is only different in case of the situation described in 5.2 Maritime Liens . 5.4 Unpaid Bunkers As per 5.3 Liability in Personam for Owners or Demise Charterers , a vessel can only be arrested if the owner or demise charterer thereof is the debtor of the claim. Therefore, a bunker supplier can only arrest a vessel for bunkers supplied to the vessel if he or she has sold the bunkers to the owner or to the demise charterer. 5.5 Arresting a Vessel The Netherlands is regarded as an arrest-friendly juris - diction. Under Dutch law, conservatory ship arrest is governed by general principles of property law and
civil procedure, supplemented by specific maritime provisions. For seagoing vessels, the 1952 Arrest Convention – where applicable – limits arrest to mari - time claims as defined therein. This limitation does not apply to inland navigation vessels, which may in principle be arrested in respect of any type of claim. There is in principle no material distinction between the arrest of an inland vessel and that of a seagoing vessel, save for the potential applicability of the 1952 Arrest Convention. Dutch law also recognises circum - stances in which recourse may be taken against a vessel owned by a third party. A conservatory ship arrest commences with an ex parte application to the interim relief judge, supported by documentary evidence substantiating the claim. Power of attorney and/or notarised and apostilled copies of documents are not required. Documents drafted in English, French, German or Dutch are not, as a matter of course, required to be translated. The court may, however, order a translation where this is necessary for the proper assessment of the matter. The applicant must present all relevant facts fully and truthfully; failure to comply with this duty of full dis - closure may result in the arrest being lifted. The court generally grants permission swiftly, including outside office hours and during weekends in urgent cases. The court retains the discretion to require counter- security in exceptional circumstances. The arresting party bears strict liability for any loss arising from a wrongful arrest. 5.6 Arresting Bunkers and Freight A claimant may in principle arrest any and all assets of his or her debtor. Therefore, if freight is due to the debtor or bunkers are owned by the debtor, such assets can in principle be arrested. Obviously, the Arrest Convention does not then play a role. It should be emphasised that, in principle, only assets of the debtor can be arrested. Therefore, cargo can only be arrested if the cargo is owned by the debtor. Cargo of a third-party merchant cannot be subject to arrest as security for the debts of a carrier. On the other hand, it is possible to arrest assets owned by the debtor that are (temporarily) held by a third party.
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