“KOHL I” (2)
DISTRICT COURT OF ROTTERDAM
Attachment of vessel 'Kohl I', sailing under Panamanian flag and time-chartered to Navigazione, belonging to Regano at the request of CMF in order to recover bunker supplies to the vessel which Navigazione had left unpaid. The vessel is encumbered by a mortgage. By order of 20 January 2020, the judge in preliminary relief proceedings lifted the (first) attachment that had been levied on 5 January 2020. On 20 January 2020 leave to arrest the vessel is granted on an almost identical petition. On the same day, the ship was again arrested. Regano claims the lifting of that (second) attachment.
There is no provision of civil law that prohibits a party from again approaching the court after the court has already ruled on the matter, but it may constitute an abuse of right or power to again approach the court, after the court has already lifted the attachment, with a request for the same to be done again.
In this case, after a hearing in the oral procedure, the attachment that had been imposed was lifted. It is inherent in the legal system that the release of a precautionary attachment releases the attached property for the benefit of the entitled party. An appeal may be lodged against the judgment of 20 January 2020, if necessary together with an application to set aside the judgment declared provisionally enforceable. Setting aside the judgment of 20 January 2020 on appeal would then revive the attachment, although in the meantime any rights acquired by third parties to the property attached would have to be respected.
The resubmission of a virtually identical application for attachment when the situation is de jure and de facto unchanged undermines this system and is intended to place CMF in a more advantageous position. This impermissibly undermines the legal system and the useful effect of a judgment lifting a prejudgment attachment. The fact that a ship is mobile makes no difference in this respect; the legislator has seen no reason - not only with regard to ships, but also with regard to movable property, for example - to adopt a separate regulation, except for the possibility of objecting to the declaration of enforceability.
New facts and/or circumstances arising after the judgment of 20 January 2020 may shed new light on the matter and justify a new application for attachment. The same applies if there is new legislation or case law, particularly from the Supreme Court. This is not the case here. The basis of the new application, dated the day of the judgment of 20 January 2020, is only that that judgment contains manifest errors of fact and law and that CMF is entitled to effective legal protection (in the form of being able to await the decision on appeal).
There is no justification for this course of action on the ground that CMF's important interests are seriously prejudiced by an obvious factual or legal error. The judgment of 20 January 2020 was rendered after an orderly party debate in an adversarial proceeding. What CMF is actually doing is reopening a debate that has already taken place before another judge, in the hope that the new judge will weigh CMF's arguments differently from the previous judge. Such statements do not constitute sufficient justification for a renewed attachment application.
In addition, the manner of the new attachment does not deserve any beauty prize. After the attachment was lifted on 20 January 2020, the vessel had already left the quay to sail to another port. CMF's lawyer requested the agent of Regano, referring and sending the leave, not to let the ship sail away. At that time, however, no attachment had been levied but only leave to attach had been granted. The return of the vessel allowed that attachment to be effected. This is therefore a case of abuse of power (Article 705(2) of the Code of Civil Procedure (CCP)).
Under both Panamanian and United States law, a right of recourse against the ship may exist because a claim in respect of an order for bunkers ('necessaries') by Navigazione as time charterer for the benefit of the ship has remained unpaid, so that it is sufficiently plausible that there is a 'maritime lien'. However, the existence of a foreign security right is not sufficient. In the event of possible liquidation of the vessel in the Netherlands, in determining the priority of claims, priority shall only be given above claims secured by mortgages to those claims which also enjoy such priority under Dutch law (Article 10:160 paragraph 2 of the Civil Code).
The maritime lien does not have priority over the mortgage right on the vessel because Dutch law does not give priority to a maritime lien like the one at issue here and, upon incorporation into Dutch law of that lien, there is no reason to believe, in view of the closed legal system of privileges and their nature, that it has priority over the mortgage right. The loan for which the mortgage right on the vessel was established amounts to approximately EUR 2 to 3 million, so that it is doubtful whether CMF's claim will be satisfied by the foreclosure of the vessel.
If the 'maritime lien' is incorporated into Dutch law, it is not as an action, but as a security right, because Dutch law does not recognize the 'actio in rem'. The effectuation of that right of security then takes place by means of a seizure for recovery and, as 'lex fori', only Dutch law applies to the establishment and lifting of that seizure.
The attachment must also be lifted on the basis of a weighing of mutual interests (article 705 paragraph 2 CCP). CMF wishes to keep the ship as an object of redress, but the interest of Regano, which loses income and orders and incurs costs if the ship remains tied up here, weighs considerably heavier. CMF, in view of its position in relation to Navigazione, is furthermore not solely dependent for recovery on the ship, while lifting the attachment does not affect the 'maritime lien' and CMF does not lose its possibility of recovery either.