Boot on the other foot

ANYONE who has ever dealt with CHB Boot will immediately confirm that this forthright man with outspoken ideas is best characterised as a no-nonsense figure. But who is this judge who plays such a leading role in ship arrest in Rotterdam? And does he hand down verdicts as quickly as he talks?

Boot himself explains his quick turn of phrase in characteristically concise fashion. He has a twin brother and, according to statistical evidence, twins only need half a word to understand each other. He admits that this has made him impatient with others.

When making decisions, Boot is led by practical considerations rather than dogma.

This quirk of nature has affected his entire life. To ensure that both twins developed their own identity, their parents decided to separate them from time to time. Boot ended up in Paris to study Roman law as a result. He already had a strong affinity with the French language, but in Paris his love for France's language and culture blossomed. It is no surprise that he is the current chairman of the Alliance Fran‡aise Rotterdam and a fan of Balzac. He satisfies his other cultural aspirations through the Stichting Verzameling van Wijngaarden-Boot, an organisation devoted to supporting cultural projects in Rotterdam.

Boot didn't become a judge in Rotterdam overnight. His career first took him to Friesland and Curaeao. Although at opposite ends of the Dutch kingdom, they are united by a common perception that they are the centre of the universe. Boot's time in these water-rich locations didn't instil in him any love of water sports, though. He admits to being bored by sailing, preferring a good game of bridge instead. Ironic, really, when you consider that "boot" translates into English as "boat".

Gradually, Boot developed an interest in commercial law. This sits comfortably with ship arrest, an aspect of the legal profession he has been involved with since 1984. According to Boot, the peculiarities of ship arrest require a special approach. As a result of containerisation, port visits to Rotterdam are increasingly short. It's a cause of concern for Boot. Not only does he have to be available day and night to decide whether or not there are grounds to arrest a vessel, his decisions are crucial. To deny an arrest means that the vessel will be gone with the morning tide. "In that case, no really is no," Boot says.

One of Boot's predecessors viewed house calls by lawyers requesting the arrest of a ship as a pleasant form of home invasion. Boot is less enthusiastic. "It's part of the job," he shrugs. He expects lawyers to show some anticipation. He considers a request for the arrest of a vessel seriously and sometimes has questions. He gets annoyed with lawyers who send along interns who have little or no idea about the case in question. "I don't know. It's not my case," is an answer he doesn't appreciate. "Petitioning the arrest of a ship isn't the same as buying a stamp," he comments. Although his door is always open, Boot does wonder whether some lawyers don't purposely wait until the very last moment to request the arrest of a vessel, gambling that it's harder for him to say no on his doorstep. They're mistaken, though. Boot refuses to be pressured into decisions, although he does prefer to deal with arrest petitions in court rather than in his hall, particularly when a ship's eta should be known well in advance.

Boot feels that by signing an arrest he in some way accepts responsibility for its content. This doesn't include typing errors, though. If a petition is full of mistakes, the lawyer may find it is awarded with the connotation, "We are not responsible for the typing errors". Which raises an important point - Boot's characteristic use of language.

Although presiding judges in Holland increasingly refer to themselves as "I" in their verdicts and court orders, Boot still prefers to use "we" - not because he is so enamoured with the pluralis majestatis, rather to deflect attention away from himself. After all, he passes judgment as a judge, not as a private individual.

Considered use of language is one of the things that characterises Boot. In his opinion, words must evoke an image among those to whom they are directed. In his verdicts, he doesn't address the lawyers, rather the parties involved. Mysterious legal phrases that can only be understood by insiders are not his style. It's no surprise, then, that his verdicts contain such considerations as:

"Nothing in the statements made by the tug masters shows any sense of relief - Phew, that was close', or even Ôthat was a bit dicey' - ... " (Schip & Schade, Issue 38, 1995 regarding the MS Iapetos, in a case in which a salvage award was denied), or "If you drive a car for long enough ... you are guaranteed to have an accident. If you walk around Rotterdam's Ôplatform 0', sooner or later you'll be mugged." (Schip & Schade, issue 103, 1995 in a case in which a driver was found blameless following a theft).

Some figures. On average, Boot presides over ten to fifteen summary proceedings each week, five of which are maritime related. In addition, he handles two regular cases. Annually, he signs at least 100 arrest notices. Some of these concern the same vessel. On other occasions a single notice may cover several vessels.

When making decisions, Boot is led by practical considerations rather than dogma. For example, one of his verdicts in 1996 read: "We find this defence to be dogmatically sound, yet inadequate in practical terms."

He expresses himself directly and unequivocally. He expects the same from those involved in a dispute. He mercilessly penalises ambiguity. "Anyone found lying about even the slightest detail will generally lose the case," he says.

When judging a dispute, he adopts a passive position. To help him make his decision, he lets himself be briefed by both parties' lawyers about the facts and their implications according to national and international law. In his opinion, the verdict hinges on a single question. Can the case be substantiated or not? He doesn't feel inclined to include lengthy repetitions of both parties' arguments in his verdicts. This is reflected in the length and wording of his judgments.

"Anyone found lying about even the slightest detail will generally lose the case."

Similarly, his verdicts contain no word games and he doesn't split hairs.

As far as he is concerned, "the law doesn't tolerate forked tongues." As a genuine pragmatist, Boot tries to ensure that his verdicts are in line with everyday practice and with the actual circumstances of the case in hand. In answer to whether he has ever regretted a verdict in hindsight, he steadfastly replies, "No". He adds, though, that he can be convinced that a verdict is wrong - if it is overturned in appeal, for example.

Boot enjoys ship arrest. In the Netherlands, a judge presiding over summary proceedings is unus iudex, a role that suits him down to the ground. He finds this way of working - without the involvement of other judges - swift and efficient. Moreover, he thinks that this system has a bright future given the justice system's heavy workload.

Most people in the maritime industry know that in Holland an arrest can be effected even before the owners have had a chance to state their defence. On the other hand, should the arrest prove to be unjust, the arresting party is responsible for all of the resulting costs. Boot feels that this is a fair system. If he sees fit, he won't hesitate to agree to the arrest of a vessel on condition that a satisfactory security is posted first. He tries to prevent one party from ending up in a "can win-can't lose" situation. Those seeking to arrest a vessel should realise the gravity of what they are doing.

Words must evoke an image among those to whom they are directed.

Although uncommon abroad, Boot has no problem with judges in Holland being presented with French, German or English documents without accompanying Dutch translations. He even thinks that this is safer. After all, a lot can go missing in a translation.

Following repeated arrests of former Soviet vessels, new legislation came into effect in Rotterdam in May 1996 which aimed to place many of the costs and responsibilities that normally belong to the owner on the shoulders of the arresting party. Moreover, the risks involved in arresting a vessel were increased. Logically, Boot should have been one of the first to experience the law's tempering effect on aspiring arrestors. However, he hasn't noticed any reduction in the number of petitions to arrest vessels.

Generally speaking, Boot is very satisfied with lawyers today. Even younger lawyers get a good word. According to Boot, the petitions for an arrest are better formulated than they were when he was just starting out himself. He recognises that clients are becoming more demanding and that the pressure on lawyers is increasing. He says that lawyers would be well advised to maintain a certain distance between themselves and their clients. He does the same towards lawyers. "I don't see them, but I do hear them. After the case has been heard, I've forgotten them," he says.

This isn't the case the other way round, though.

Emily Derogee-van Roosmalen and Taco van der Valk are lawyers with Rotterdam-based Nauta Dutilh