Legal commentary regarding ‘fault of the vessel’ under Dutch law
It is worth mentioning the recent judgment of the Court of Appeal Arnhem-Leeuwarden of 16 October 2018. On 16 July 2015, an explosion took place aboard the motor yacht ‘A’. The yacht burned down completely. A few hours prior to the explosion, the owner of the yacht had switched on the gas-powered refrigerator. One of the experts involved suspected that the explosion was caused by a gas leak, given the lack of other highly flammable substances on board. However, investigation was no longer possible because the yacht had been fully lost in the fire. As a result of the explosion, motor yacht ‘B’, which was moored at the same jetty, was also fully destroyed by the fire.
Legal basis for a claim by owner yacht B
The owner of yacht B appeals to the owner of yacht A on the basis of (i) wrongful act (article 6:162 of the Dutch Civil Code) and (ii) of a defective good (article 6:173 of the Dutch Civil Code).
After the subdistrict court judge had awarded the claim(s) of the owner of yacht B, the owner of yacht A lodged an appeal.
Judgment of the Court
Regarding basis (i), the Court of Appeal ruled that the mere fact of the presence of the gas installation was not wrongful towards the owner of yacht B. This would only be the case if the mere presence of such an installation made the probability of a gas explosion so great that the owner of yacht A should have abstained from having it present based on the principles of due care. Furthermore, it did not appear to be that there were any defects in the gas installation in yacht A and/or that the owner of yacht A had taken insufficient precautionary and safety measures because – according to the Court of Appeal – due to the complete loss of motor yacht A, the cause could not be determined.
Regarding basis (ii), the Court of Appeal ruled that the liability of the owner of yacht A cannot be based on article 6:173 of the Dutch Civil Code, which article creates a strict liability for the owner of a movable property, because pursuant to article 6:173 paragraph 3 of the Dutch Civil Code, this article does not apply to vessels.
The Court of Appeal consequently dismissed any claim(s) of the owner of yacht B. An unpleasant outcome for yacht owner B.
Book 8 of the Dutch Civil Code
Should the owner of yacht B have taken a different approach and based its claim(s) on the collision provisions in book 8 of the Dutch Civil Code?
Articles 8:1005 and 8:544 of the Dutch Civil Code, regarding an inland vessel and a seagoing vessel, respectively, establish that if the damage is caused by the fault of the vessel, the owner of this vessel is obliged to compensate the damages.
On 30 November 2001, the Dutch Supreme Court issued a standard judgment in which the term ‘fault of the vessel’ is explained. According to that judgment, the probable cause was a short circuit in an electrical heater in the motor compartment of the ‘Casuele’. Should that fact be established, then that is a defect of the vessel, for which the owner is liable. The Supreme Court applies blame theory here. This means that a claimant must prove the cause of the fire. Then, based on one of the criteria below, it must be determined whether that cause is borne by the owner of the vessel. According to the Supreme Court, there is ‘fault of a vessel’ if the damage is the result of:
(a) an error of a person for whom the owner of the vessel is responsible according to articles 6:169-6:171 of the Dutch Civil Code;
(b) an error of a person or persons who perform(ed) work for the benefit of the vessel of the load, which occurred during the performance of the work;
(c) the realisation of a special danger to persons or goods that was created because the vessel did not meet the requirements that could be imposed in the given circumstances.
Although article 6:173 of the Dutch Civil Code (the provision establishing a strict liability for the owner of a movable property) does not apply to vessels, the Supreme Court was able to channel it in via the above criterion (c), provided that the cause of the damage can be determined. If the cause is unknown, the owner of the ‘causing’ vessel is not liable. Therefore, it is generally of great importance to the owner of an adjacent vessel and its insurer(s) to immediately appoint an expert to investigate the cause of the fire.
Before the ‘Casuele’/’De Toekomst’ judgment, risk theory was applied. In that case, the claimant of motor yacht B could suffice with the evidence that the explosion originated aboard yacht A. What exactly that cause was is then no longer of importance. The Advocate-General who wrote an advice to the Supreme Court in the ‘Casuele’/’De Toekomst’ applies an ‘intermediate theory’, which is based on the primacy of the fault supplemented by the defect of the ship.
Whatever the case, in the present case, based on the prevalent (blame) theory, the owner of yacht B must prove the cause of the explosion aboard motor yacht A.
Although the Supreme Court does not allow a judge to decide whether based on the factual situation, a suspicion of guilt may be assumed, the provision of evidence does not require the cause brought forward by the owner of yacht B to be established with scientific certainty. A reasonable degree of certainty that the stated cause of damage (explosion due to a leak in the gas connection) is indeed the cause of damage is sufficient. A probability percentage of at least 75% should be applied as a guideline here. Considering that (i) the owner of yacht A had switched on the gas-powered refrigerator themselves a few hours before the explosion and (ii) no other highly flammable substances were present on board, there seems to be no other (plausible) cause conceivable. The question is whether this meets the probability percentage of at least 75%. Had that cause been determined by the Court of Appeal, then that is a defect in yacht A, for which the owner of yacht A would be liable. That outcome would have been just.
 Court of Appeal Arnhem-Leeuwarden 16 October 2018, ECLI:NL:GHARL:2018:9083.
 Supreme Court 30 November 2001, ‘Casuele’/’De Toekomst’, ECLI:NL:PHR:2001:AD3922, NJ 2002, 143.
 Court of Appeal Arnhem-Leeuwarden, among others, 13 November 2018, ECLI:NL:GHARL:2018:9848.
 I. Giessen, Bewijs en aansprakelijkheid. A comparative law study into the burden of proof, the risk of evidence and the risk of reversal in liability law, 2008, section 4.5.
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