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May 09 2018
The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. The decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands.
The dispute's origin can be traced back to a yacht owner's decision to berth the vessel at a marina operated by the yard which had built it, with a view to selling. The yacht was subsequently sold, but the buyer was denied possession of the yacht and had it arrested.
The yard alleged that it had had no alternative but to keep the yacht at the marina, where it remained for approximately four years from 2013 to 2017. Roughly one year into that period, the marina had started to invoice the party which had arrested the yacht for storage charges, claiming that the arrest had made it impossible for the yacht to be moved elsewhere. The arrestor, meanwhile, argued that the claim was unfounded.
The marina also maintained that it had effectively become the yacht's custodian and was therefore entitled to recompense for keeping it on its premises. It held that the court's failure to uphold its claim would result in unjust enrichment for the arrestor, as it would effectively be getting access to a free berth at the yard, which in turn would lose access to the space occupied by the vessel.
The Groningen Court held that – contrary to the yard's argument – the parties had not established a custody agreement. Under the Civil Code, such an agreement can be effected through the tendering of an offer and its subsequent acceptance, which was not the case here. Finding that there was no question of the arrestor being unjustly enriched, the court rejected the marina's claim in its entirety.
It is surprising that the marina chose to keep the yacht for four years without invoicing the yacht owner and seeking judgment, thereby allowing the marina to auction the yacht and have it removed. This is doubly surprising given that the Netherlands is widely recognised as a quick and efficient jurisdiction for parties seeking to auction vessels. The average time between the attachment of a vessel and an auction is just over one month if all necessary preparations are made in advance. Further, the costs of an auction in the Netherlands are moderate because no commissions are due to the court or brokers.
The court's decision, while unlikely to come as a surprise to Dutch lawyers, will likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.
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