The rules on the limitation period for collisions has already lead to many discussions. A recent decision of the Supreme Court will undoubtedly lead to many new discussions (HR November 21, 2014, ECLI:NL:HR:2014:3350). The Supreme Court has held that the limitation period of two years for collisions does not apply if the accusations made by claimant are of a different nature than those associated with the use of ships and when the cause of the damage is not on board of a ship.

Facts
In the judgment of the Supreme Court of  21 November2014, the following has happened. In August 2004 the Province North-Netherlands gave an instruction to a main contractor for shoring the banks of the river the Vecht. This work was subsequently subcontracted. The subcontractor used its own equipment and personnel. During the works a high voltage underground cable was hit because too long piles were used. The shoring work was carried out from a barge.

The cable operator held the main contractor liable and not the subcontractor who actually performed the works. The claim against the main contractor was based on tort (article 6:162 Dutch Civil Code (“DCC”). The cable operator claimed that the main contractor had breached its duty of care because it did not ascertain where the underground cables were situated and did not ensure sufficiently that the subcontractor took account of the exact position of the underground cables.

The main contractor, in turn, argued that limitation rules for collisions applied and that the claim was barred.  Under Dutch law, the collision provisions do not only apply when ships come into contact with each other but also if there is damage caused by a ship without two ships coming into contact with each other.

The main contractor based its position on the famous 'Zwartemeer' judgment of the Supreme Court. In this judgment, the Supreme Court ruled on the applicable limitation period in case a claim can be based both on collision regulation and tort. In such cases, the claimant may in principle choose to base its claim on tort or on collision regulation. This freedom of choice is subject to what the law regulates or what the law inevitably entails. The Supreme Court ruled in the 'Zwartemeer' judgment that the fact that a claim for damage in tort has a longer limitation period than a claim for damage resulting from collision, entails that the limitation period of two years for collisions exclusively applies. Another outcome would lead to unacceptable interference with the short limitation period for collisions.

Ruling of the district court and the court of appeal
The district court and the court of appeal both ruled that the limitation period for collisions applies and that the claim of the cable operator was barred. The courts ruled that the damage was caused from a barge and that therefore the collision provisions applied. It was not relevant that the preparatory work was not carried out on board of the barge but elsewhere. The court of appeal ruled that because the collision provisions applied, the short limitation period of two years for collision was applicable. The court of appeal relied on the ‘Zwartemeer’ judgment.

Judgment of the Supreme Court

However, the Supreme Court in her recent decision ruled otherwise. The Supreme Court did not take the question whether the collision provisions applied as starting point, but the accusations that were made by the cable operator. The cable operator argued that the main contractor had breached its duty of care because it did not ascertain where the underground cables were situated and did not sufficiently ensure that the subcontractor took account of the exact position of the underground cables. These accusations are not related to the use of a ship. If the subcontractor would not have chosen to use the barge, but had carried out the work from the shore, the accusations towards the main contractor would be the same. In other words: the use of the barge was not causal for the  damage that occurred.

The cause of the collision, therefore, was not on board of a ship. The Supreme Court held that the collision provisions do not apply if the accusations are not related to the use of ships. In that case the claimant has no choice between two different legal claims. The claim can only be based on tort (Article 6:162 DCC). A limitation period of 5 years will then be applicable.

What does the ruling of the Supreme Court tell us?
The ruling of the Supreme Court shows that for the question of which limitation period is applicable, the type of accusation made by the claimant is relevant. The Supreme Court has ruled that despite the fact that the collision provisions are applicable, the limitation period for collisions does not always exclusively apply. If the accusations made are not related to the use of ships, the limitation period for tort of five years applies.

The recent ruling of the Supreme Court also leaves part of the discussion undecided. It is not clear how this recent ruling is consistent with the aforementioned 'Zwartemeer' judgment. In this judgment the same allegations were made as in the recent judgment. In the ‘Zwartemeer’ judgment the claimant also argued that the defendant did not do enough to locate the underground cable. A big difference with the ruling of 21 November 2014 and the ‘Zwartemeer' judgment is that in the ‘Zwartemeer' judgment the owner of the barge was the defendant. In the recent judgment this was not the case. It could be argued that if the owner of a ship is the defendant, it is not relevant which accusations are made and the limitation period for collision is applicable anyway. Whether this is indeed the case, will have to be made clear in a further decision by the Supreme Court.