Pregledni rad
https://doi.org/10.21857/m16wjc6579
The Dutch Law Perspective on the Enforcement of Marina Operator Claims
Vivian van der Kuil
orcid.org/0000-0002-1523-1990
; AKD Benelux Lawyers, Rotterdam, The Netherlands
Sažetak
This article focuses on a very specific aspect of maritime law, i.e. the remedies that exist under Dutch law in order for a marina operator to pursue a claim against a vessel owner either based on a contract or based on torts. This is not a straightforward matter, as it involves various areas of law as well as specific maritime legal issues, for instance contract law, the right of attachment, including the 1952 Arrest Convention,1 and the right of retention. After a general introduction about pleasure craft and marinas in the Netherlands, and some general considerations about the legal framework that applies, an overview of the possibilities will be given. The various requirements that need to be met will be discussed, focusing on the specific situation of a claim by a marina operator against a vessel owner. A specific issue that may arise in respect of a marina operator’s claim against a vessel owner is that it is not always clear how the agreement that forms the basis for the claim should be qualified. This is of importance, as the way an agreement is qualified, and more specifically which rights and obligations each party has under the agreement, also determines the remedies that are available to the claimant. The right of retention is only available if a certain degree of control is exercised over the vessel, as the right of retention is the right to suspend the obligation to return the vessel, and this sometimes constitutes a problem in respect of a marina operator’s claims. This will be explained in more detail below. Certain specific provisions in the Civil Code concerning the right of retention of vessels will also be addressed. As it is not necessary to obtain permission from the courts to exercise a right of retention, this is often the most straightforward option for a marina operator. If it is not clear whether a right of retention exists and/or may be exercised, another option for enforcing a claim is an attachment, which in the Netherlands is also possible before a title for enforcement is obtained (a so-called conservatory attachment). Obtaining and effecting an attachment order is relatively easy in the Netherlands. The procedure is expedient and fast, making the Netherlands an ideal location for a claimant to pursue such claims. Certain additional considerations will also be discussed with regard to the identity of the debtor, as well as the applicable law, as these may give rise to problems in respect of enforcement. In the past, it was only possible to effect an order obtained in the Netherlands within Dutch jurisdiction, and therefore it was necessary that the vessel was located within the Netherlands (or expected to arrive there in due course) in order to obtain permission from the court to attach a vessel. However, the revised Brussels I Regulation allows for the possibility of exporting judgments throughout the EU even if the decision is a so-called ex parte decision, which is a decision where only the applicant is a party to the proceedings. The other party is unaware of the proceedings until the very moment that enforcement is sought. Since vessels are moveable objects, this may provide for a useful additional possibility for enforcement within the EU, and therefore this new development will also be discussed.
Ključne riječi
security and enforcement of maritime claims; marina operator; Dutch law; arrest; attachment; retention
Hrčak ID:
222283
URI
Datum izdavanja:
28.6.2019.
Posjeta: 1.558 *