USA v Eemshaven Port Authority

• Jurisdiction: Holanda
• Judgment Date: 12 November 1999
• Court: Supreme Court (Netherlands)
• Date: 12 November 1999

The Netherlands, Supreme Court.

United States of America

and

Eemshaven Port Authority

State immunity Jurisdictional immunity Claim in tort against foreign State Claim arising out of operation of ship for military purposes Whether constituting sovereign activity Whether foreign State entitled to jurisdictional immunity The law of the Netherlands

Summary: The facts:In November and December 1990 the seagoing motor vessel Cape May, which sailed under the flag of the United States, berthed in the Dutch port of Eemshaven. The ship was owned by the United States. The berthing had taken place on conditions contained in a document drawn up by the Port Authority, which had been signed in confirmation of the agreement of the United States by Mijne and Barends BV for or on behalf of OMI Corporation in New York. While the ship was berthed a number of boiler tubes fell overboard during loading. The Port Authority was involved in the salvage of these tubes and incurred costs in this connection. Subsequently, in the period from 10 to 12 November 1990 the Cape May broke away from its moorings on a number of occasions and drifted, colliding with quayside walls belonging to the Port Authority and causing damage. The Port Authority sued the United States before the District Court of Groningen, claiming compensation for the items of damage estimated at a total of NLG 104,250.50. In an interim action the United States claimed that the District Court lacked jurisdiction. The District Court rejected this defence by a judgment of 29 July 1994. The United States appealed against this interim judgment to the Court of Appeal of Leeuwarden. In its ruling of 10 December 1997 the Court of Appeal upheld the judgment. The United States then appealed in cassation against this ruling to the Supreme Court.

Held:The United States was entitled to jurisdictional immunity.

(1) As international law stood at present, foreign States were not subject to the jurisdiction of the Dutch courts in respect of claims arising in the Netherlands as the result of the operation of ships which belonged to or were operated by them and which were used in the performance of a typical government function (such as military activity). The nature of the act or event that gave rise to the claim was not of importance in this connection.

(2) This view was not only supported in the practice of States, judicial rulings in various other countries and authoritative literature on international law but also underlay the provisions regarding ships used for government service in Article 3 of the Brussels Convention for the Unification of Certain Rules relating to the Immunity of State-Owned Vessels of 1926,1 Article 30 of the European Convention on State Immunity of 19722 and Article 16 of the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission in 1991.3

The following is the text of the judgment of the Court:

PROCEDURE

1. The defendant in cassation (the Port Authority) summoned the plaintiff in cassation (United States) by notice of 22 November 1991 to appear before the District Court of Groningen and demanded that the United States be ordered to pay to the Port Authority an amount of NLG 104,250.50 plus statutory interest from 1 July 1991, or at the latest from the date of the notice. The United States submitted an exceptional statement arguing that the District Court lacked jurisdiction to hear this claim. The Port Authority submitted a reply disputing the arguments submitted by the United States.

By a judgment of 29 July 1994, the District Court decided that it had jurisdiction to...