Dutch priority change

“UNTIL 1991, port dues were always given priority when an arrested ship was put through a judicial sale. A change to the civil code in 1991 removed that priority,” explains Haco van der Houven van Oordt, a shipping lawyer in the Rotterdam office of AKD Prinsen Van Wijmen.

“The ports have been fighting a long battle to get it back. The change left them no incentive to push for a quick forced sale, as that cost them money which they might not necessarily recover. A lot of arrests have been dragging on as there has been no party with a clear incentive to move the process to a conclusion. But since March 1, 2003, that has all changed.”

Will we see fewer arrests in the Netherlands now? Not likely, thinks Van Oordt. “When the ports tried to re-establish this priority through changes to local bylaws, the Dutch maritime law community opposed that because the ports wanted to use the local laws also to force responsibility for looking after the arrested ship on to the arresting party. That would have cut the number of arrests. This is different.

“Now the ports have taken the national route and we have a more measured amendment. It means the ports can now successfully recover port dues, but it leaves the responsibility for the arrested ship with them, assuming that the owner does not take any action. That gives the port a good incentive to look after the ship properly while the arrest is on, and also to push for an early resolution of the dispute or sale of the ship, knowing they can get their money back. I think that will make the Netherlands an even more interesting place to seek an arrest.”

Wet work in the Netherlands is as healthy as the arrest business, unlike in other maritime law centres. “We hear from our colleagues in London, and from surveyors and brokers here, that there is less wet work, but we are actually seeing an increase in accidents and personal injury claims. We believe that this is partly caused by the shortage of trained seafarers, while the overload of paperwork and data from navigational equipment on those left leaves them no time to look out of the window,” says van Oordt.

“It is also a question of relative cost. Shipowners and yards in the region are realising that they don’t need to litigate in London. They can get the same support here in Rotterdam and get it in a more cost-effective way. We also see smaller cases coming here, as it is very difficult to litigate a claim worth $100,000 or less in London. We take the attitude that we will support our clients with all cases, large and small.”

Van Oordt points to the growth of the TAMARA arbitration system in the Netherlands as a factor in creating a buoyant workload for Dutch lawyers. “It is not just we Dutch who like it. Demand is much more widespread, for example from Eastern Europe, where they like the pragmatic and straightforward dispute resolution they can get here,” he says.