No CrossRef data available.
Article contents
Supreme Court, 12 November 1999, The United States of America v. Havenschap Delfzijl/Eemshaven
Published online by Cambridge University Press: 21 May 2009
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Netherlands Judicial Decisions Involving Questions of Private International Law
- Information
- Copyright
- Copyright © T.M.C. Asser Press 2000
References
1. Trb. 1951, 114.Google Scholar
2. District Court of Groningen 29 July 1994, NIPR 1999, 278.Google Scholar
3. Court of Appeal of Leeuwarden 10 December 1997, NIPR 1999, 278.
4. In full: Convention for the Unification of Certain rules Concerning the Immunity of State-Owned Vessels, concluded at Brussels, 10 April 1926 (UN Legislative Series, Materials on Jurisdictional Immunities of States and their Property (ST/LEG/SER.B/20, pp. 173 et seq.)).
5. ETS no. 74 (also: http://http://www.coe.fr/eng/legaltxt/74e.htm).
6. Report of the International Law Commission on the work of its 43rd session, 29 April-19 July 1991, UN General Assembly, Official Records: 46th Session Suppl. No. 10 [A/46/10].
7. Art. VIII(5)(h) excludes the applicability of the provision of Art. VIII(5) for claims arising out of or in connection with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than for claims for death or personal injury to which Art. VIII(4) NATO Status Treaty does not apply. As the claim at issue falls under this provision, the provision for third parties as laid down in Art. VIII(5) does not apply in this case and therefore is of no interest. As to the applicability of the Brussels Convention 1926, the Supreme Court deemed this question – should the Brussels Convention apply to the United States – adequately answered in its considerations on immunity on state-owned ships in general.
8. Cf., Art. 2 UNCLOS 82.
9. Cf., Brown, E.D., The International Law of the Sea (Dartmouth, Aldershot 1994) p. 38;Google ScholarChurchill, R.R. and Lowe, A.V., The Law of the Sea (Manchester, Manchester University Press 1988) p. 54.Google Scholar
10. Cf., Churchill and Lowe, op. cit. n. 9, at p. 83, on the jurisdiction of the coastal state concerning the passage of warships and governmental non-commercial ships in its territorial waters. Nelissen argues that the same can definitely be said for the jurisdiction of the local state in its internal waters; Nelissen, F.A., Scheepswrakken en wrakke schepen [Shipwrecks and Wrecked Ships] (The Hague, T.M.C. Asser Institute 1997) (summary in English) p. 113, fn. 40.Google Scholar
11. Advocate General Strikwerda in his advisory opinion to the case, under 15.
12. Nowadays this approach is accepted by a great majority of states, including the Netherlands (Cf., Supreme Court 26 October 1973, NJ 1974, 361; Supreme Court 22 December 1989, NJ 1991, 70; Supreme Court 28 May 1993, NJ 1994, 329; Supreme Court 25 November 1994, NJ 1995, 650).
13. Cf., Steinberger, H., EPIL (1987) p. 438; Advocate General Strikwerda in the case of the bankruptcy of Zaire, Supreme Court 28 September 1990, NJ 1991, 247 under 3.3. and 3.4.Google Scholar
14. Cf., Art. 24 of the European Convention on State Immunity.
15. Cf., Steinberger, H., EPIL (1987) pp. 438–439;Google ScholarSchreuer, C.H., State Immunity: Some Recent Developments (Cambridge, Grotius Publications 1988) pp. 15–22.Google Scholar
16. Cf., District Court of Amsterdam 25 October 1990, NIPR 1990, 150; District Court of Amsterdam 9 February 1989, KG 1989, 101; Court of Appeal of Amsterdam 4 January 1990, NIPR 1990, 324; District Court of Rotterdam 18 April 1996, S&S 1996, 83.
17. Supreme Court 28 May 1993, NJ 1994, 329; Supreme Court 25 November 1994, NJ 1995, 650.
18. This question of the qualification of the act will not be adressed.
19. District Court of Rotterdam 18 April 1996, NIPR 1996, 446; Court of Appeal of The Hague 1 September 1998, NIPR 1998, 318. This case concerned the delivery of fuel oil by a private company to the Altair, a ship that belonged to the United States Military Sealift Command and was deployed to military purposes. During the delivery of the fuel oil damages were suffered by the private contractor because of negligence of the crew of the Altair. The US claimed immunity from jurisdiction.
20. District Court of Amsterdam 29 December 1981, NIPR 1987, 469; Court of Appeal of Amsterdam 18 June 1987, NIPR 1987, 469.
21. Supreme Court 22 September 2000, RvdW 2000, 191. This decision concerns the Altair case (see n. 19). It does not differ substantively from the decision in the Cape May case. The Supreme Court merely refers to the latter decision without giving new substantive arguments concerning the immunity question and, again, the case is referred to another Court of Appeal in order to establish the status of the warship involved. The only difference with the Cape May case is that the facts that led to the claim at stake in the Altair case did not arise in the Netherlands but in Belgium. The Supreme Court argues that this fact, however, does not change the conclusion on the question of the (non) jurisdiction of the Dutch courts. In the same, and more elaborate, sense see also Advocate General Strikwerda in his advisory opinion to the Altair case, under 9.
22. Cf., in a slightly different context, for example Art. 236 UNCLOS 82: ‘The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention.’
23. Lazareff, S., Status of Military Forces under Current International Law (Leyden, Sijthoff 1971) p. 277.Google Scholar
24. Cf., para. 781 in conjunction with paras. 782 and 785 of the Public Vessels Act 1925. Attention should be paid to para. 785 which requires reciprocity when a suit is brought by a national of any foreign government. In that case it must appear ‘to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue in its courts.’
25. Lazareff, op. cit. n. 23, at p. 277.
26. The same can be said about the Altair case. As mentioned, the outcome is exactly the same as in the underlying Cape May case (see n. 21).