At the end of 2019, the Rotterdam District Court presented the project "Sailing towards permanent maritime court surveyors". Since then, the Rotterdam Court has appointed maritime court surveyors on several occasions.

One of these cases concerned the ROYAL KLIPPER case. This ship experienced engine problems at sea during a voyage from South America to the Netherlands. A few days before the ship arrived in the Netherlands, cargo interests filed a petition to the Rotterdam District Court in which they requested the Court to appoint two maritime court surveyors (one surveyor regarding the investigation into the cause of the engine problems and one surveyor regarding the cargo damage). In the petitions cargo interests requested (inter alia) that the costs of the surveyors should be borne jointly by the parties. The Court granted this request ex parte (without hearing the parties). On behalf of the shipowners we, inter alia, commenced appeal proceedings against this part of the judgment.

On appeal, the Court of Appeal considered that pursuant to Article 203 Dutch Civil Code of Proceedings, in principle, no decision is taken on a request for a provisional court survey until after an oral hearing has taken place for which the parties are summoned. According to the Court of Appeal, an oral hearing may be omitted in cases of immediate urgency or when the other party is unknown. The Court of Appeal observed that there was no urgency to decide on the division of the costs of the court survey, nor did cargo interests have a legally respectable interest in depriving the defending parties of the opportunity to be heard again. This was all the more true since, under Article  204(2) Dutch Civil Code of Proceedings, the decision to order the court survey cannot be appealed if the request is granted. According to the Court of Appeal, the shipowner therefore rightly argued that the principle of the right to be heard was breached.

The Court of Appeal further held that in this case there was no reason to derogate from the basic principle of Article 8:496 (1) of the Dutch Civil Code, namely that the party requesting a provisional court survey must pay the costs thereof. According to the Court of Appeal, it is also important in this respect that the liability of the shipowner has not yet been established and any proceedings regarding liability will not be conducted in the Netherlands. There are also no indications that the (insurers of the) cargo interests would not (be able to) pay the costs of the court survey. Therefore, cargo interests should not have triggered an ex parte decision, according to the Court of Appeal.

The fact that the shipowner did not initially cooperate voluntarily in the investigation and - once the court surveyors were appointed - submitted questions and comments was deemed insufficient by the Court of Appeal to charge the shipowner with half of the court survey costs.

The Court of Appeal ultimately overturned the judgments on appeal insofar as they relate to bearing the costs of the maritime court surveyor and held that these costs should be borne entirely by cargo interests. It therefore follows from the decisions of the Court of Appeal that the person who requests the Court to appoint a maritime court surveyor is the one who, in principle, will have to pay the invoice of the maritime court surveyor.

If you have any questions regarding this newsletter, please feel free to contact Julian van de Velde (This email address is being protected from spambots. You need JavaScript enabled to view it.).