In February 2022, storm 'Eunice' passed over the Netherlands with wind gusts of over 100 kilometres per hour. Among other things, the storm lifted the hatches of a barge. These hatches then hit another barge, causing damage to this vessel.

Proceedings were instituted before the Rotterdam District Court by the owner of the vessel on which the hatches had come down (hereinafter: "Claimant"). In this case, our firm acted on behalf the owner of the vessel from which the hatches had blown (hereinafter: "Defendant").

The Claimant argued that there was a claim for damages because, according to the Claimant, the coming loose of the hatches constituted fault on the part of the ship within the meaning of the Supreme Court's judgment in CASUELE v. THE TOWN, 30 November 2001, NJ 2002/143, in that there was either a defect in the hatch securing devices or the crew had not secured the hatches properly. On behalf of the defendant, we disputed that there was fault on the part of the vessel. In that respect, we argued that the blowing away of the hatch covers was a consequence of the storm Eunice, thus constituting force majeure.

The Court first considered whether there was a defect in the hatches. It followed from the Court's judgment that the Claimant had not sufficiently argued and proven this, which meant that it had not been proven by the Claimant that there was a defect in the hatches. Further, according to the Court, it had also not been proved by the Claimant that the hatches had not been properly secured by the crew prior to the storm. In that respect, the Court considered that the mere fact that the hatches had been lifted by the wind does not in itself create the factual presumption that the hatches were improperly secured. According to the Court, the factual presumption can only be based on proven facts that, taken together, can lead to proof of fault on the part of the vessel. Because no other facts or circumstances had been proven besides the coming loose of the hatches that produced fault on the part of the ship, the Court concluded that there was no fault on the part of the ship.

The judgment of the Rotterdam District Court confirms that, no factual presumption for fault of the vessel can be derived from the mere coming loose of the hatches during a storm. No instead, more facts and circumstances must be proven by the Claimant from which it follows that the hatches were not properly secured or were defective.

If you have any questions after reading this newsletter, then please do not hesitate to contact us.