Uitspraak
judgment
AMSTERDAM DISTRICT COURT
Netherlands Commercial Court
NCC District Court
Case reference number: C/13/754853/NC ZA 24/4
Judgment
12 March 2025
In the matter of
the private company under the laws of Austria
DANUBIA KREUZFAHRTEN GMBH,
having its registered office in Innsbruck, Austria,
claimant
lawyer: J. Smit
and
the private company with limited liability
SCHEEPSREPARATIEBEDRIJF [X] - [Y] B.V.,
having its registered office in Druten, the Netherlands,
defendant
lawyers: D. Bercx and G.J.G. Olijslager.
The parties are referred to below as "Danubia" and the “Shipyard" respectively.
1.Procedural history
1.1.
The course of the proceedings follows from:
- the writ of summons,
- the statement of defence,
- the court record of the hearing of 27 January 2025 and the pleading notes of the parties.
1.2.
Subsequently, the date for judgment of the case was set for today.
2.The facts
2.1.
Danubia is an Austrian company, managing and operating 14 river cruise vessels. The Shipyard is a Dutch shipyard.
2.2.
On 19 February 2018, the parties entered into an agreement entitled “Vertrag Kreuzfahrtgastschiff Baunummer YN 354” (the “Agreement”), concerning the construction of a cruise passenger vessel to be named “Amadeus Star” (the “Vessel”) for a price of
€ 17,250,000. A specification entitled “Specification of a 3-decks river cruise vessel NB 354” (the “Specification”) is part of the Agreement.
€ 17,250,000. A specification entitled “Specification of a 3-decks river cruise vessel NB 354” (the “Specification”) is part of the Agreement.
2.3.
Clause 1(a) of the Agreement stipulates that the maximum draft of the Vessel should be 2.00 metres and the minimum draft should be 1.45 metres. In this regard, the parties also agreed:
“(…)
Vor den vorgenannten Abmessungen und Merkmalen darf die Werft nur in geringem Maße abweichen und nur, wenn diese keinerlei Auswirkungen auf den Einsatz des Schiffes durch der Reeder hat, wenn dies technisch notwendig ist und keine andere Möglichkeit besteht, die v.g. Abmessungen/Merkmale einzuhalten. Eine Abweichung vor zugesicherten Eigenschaften ist nicht zulässig. Sofern und soweit nach der vorstehenden Regelung Abweichungen von der Werft beabsichtigt sind, müssen dieze zuvor dem Reeder mitgeteilt werden, seine schriftlichen Zustimmung ist zwingende Voraussetzung für die Abänderung. Die Zustimmung darf nich ohne sachlichen Gründ verweigert werden.
(…).”
2.4.
Furthermore, Clause 11(a) of the Agreement states the following:
“ GEWÄHRLEISTUNG
a. Umfang der Gewährleistung
Mit Ablieferung des Schiffes wird die Werft frei von allen Verpflichtungen und/oder jeglicher Haftung mit Ausnahme der in diesem Artikel enthaltenen Gewährleistung. Die Gewährleistung gilt für
I. Jeden Mangel, der vom Reeder bei Ablieferung des Schiffes schriftlich angezeigt worden ist und
II. Jeden Mangel, der auf schlechte Arbeitsausführung oder die Verwendung fehlerhaften Materials zurückzuführen ist, bei der Übergabe nicht entdeckt werden konnte und während eines Zeitraumes von 12 Monaten seit dem Tage der Ablieferung des Schiffes in Erscheinung tritt, vorausgesetzt, das der Mangel schriftlich innerhalb eines Monats nach seiner Entdeckung oder der Moment in dem der Defekt gesichert erkennbar war, angezeigt worden ist.
(…).”
2.5.
In addition, Chapters 00030 and 03000 of the Specification contain the following provisions:
“(…)
00030 DRAFT
(…)
00031 OPERATIONAL DRAFT
Operational draft is considered with:
100% passenger+crew (incl. personal effects)capacity on board
100% Hotel equipment, furniture, provisions
100% sewage storage tank and system
100% potable water
50% fuel
By utilizing the ballast capacity, the draft can be increased to 2,0 m.
Operational draft to be 145cm.
(…)
03000 MATERIALS
(…)
A deadweight test will be held with the vessel in a state as complete as practical to determine the vessel’s lightweight. The result of the test together with lightweight calculation and calculations of stability will be handed over in a “Trim and Stability Book’, which will be authenticated by the Authorities.
(…)
During trials the following will be tested and measured to the satisfaction of owners and shipLLYODS REGISTER: Shipping inspectorate to be agreed German or Dutch
- Speed trials, two runs at draft 1,60 m.
(…).”
2.6.
On 18 March 2019, [name 1] , Danubia’s Vessel Construction Inspector (“ [name 1] ”), sent an e-mail to [name 2] (“ [name 2] ”) and [name 3] of the Shipyard. The topics for a meeting on 18/19 March 2019 were attached to the e-mail. Topic number two refers to the location of the aft draft remote sensor, namely 1500 mm from the bottom of the ship, for which reason the draft below sensor position could not be read.
2.7.
By e-mail dated 6 April 2019, [name 1] wrote to Wolfgang Lüftner, Managing Director of Danubia (“Lüftner”), as follows:
“(…)
Tomorrow we leave for Willemstad to start Monday morning at 8 o’clock on official river trial. I would like to inform you that the ship is not prepared for this river trial. No system in operation has been delivery to us, because none is finalized and all systems have problems, there is no schedule for river trial. For example, in the photos you can see how the wheelhouse looks like. (…).”
2.8.
On 7 and 8 April 2019 trial runs were conducted to test the Vessel and to obtain the required certificates from Lloyds. During the trial runs, representatives of Danubia were on board. As described in the Specification, the trial runs were conducted at a draft of (at least) 1.60 metres.
2.9.
The trial runs were carried out successfully. En route, the provisional certificates were printed out in a copy shop in Willemstad and handed over to Danubia’s representatives. The provisional certificate states a displacement of the Vessel of 2.125 m3.
2.10.
According to the so-called Owners Remarks List, dated 15 April 2019, which is a list of items which had to be remedied according to Danubia, the issue regarding the location of the aft draft remote sensor (item number 170), was not solved yet, but “noted” by the Shipyard.
2.11.
The Vessel was delivered to Danubia on 18 April 2019.
2.12.
The Vessel was deployed immediately after delivery in Danubia’s river cruise fleet. The Vessel sailed from Amsterdam to Budapest and subsequently on the Danube River, back and forth between Budapest and Passau, and back and forth between Passau and the Black Sea from May through October 2019.
2.13.
On 14 August 2019, the final version of the “Intact and damage stability booklet” was sent to Danubia. On page 123 of this document it is mentioned that the draft was calculated at 1.710 metres.
2.14.
By e-mail dated 20 August 2019, Lüftner wrote to [name 2] as follows:
“(…)
We refer to the inspection on the “Amadeus Star” on 17.07./18.07.19. We still are waiting for your complete list of open guarantee claims. (…)
(…)
On this occasion: we have informed you that the captain of the “Amadeus Star” has reason to assume that the draught of “Amadeus Star” is approx. 1.70m which would exceed the contractually agreed value by far. We assume that you have made calculations in this respect and ask you for this info. You know that it has always been our aim to ensure an optimal operational safety with a low draught. We have therefore agreed a draft of 1.45m as the contractual basis. A draft of 1.70m would mean, for example, that at the water levels in 2018 could not be carried out which otherwise were still possible for the rest of the “Amadeus” fleet. In this sense, we would never have accepted a contract for a vessel with such a draft, such a vessel is more or less useless for us.
(…).”
2.15.
To investigate the issue with the draft, Danubia engaged a specialised surveyor to determine the exact minimum draft of the Vessel. In the Technical Report, dated 12 November 2019, the expert surveyor, Dipl. Ing. Richard Anzböck (“Anzböck”), concluded that an operational draft of 1.450 metres on even keel could not be achieved. Anzböck stated that the actual minimum draft (ballasted for even keel) is 1.706 metres, or (ballasted for even keel with consideration for maximum error) 1.687 metres. Furthermore, Anzböck concluded the following:
“The deviation of the actual status of the lightship characteristics from the status required for achieving the operational draft as per section 00030 of the building contract is therefore at least 230 t of displacement (equalling at least 0,23 m of draft) (…).”
2.16.
On 15 April 2021, the parties agreed to set aside the arbitration clause (Article 14.e) in the Agreement and agreed to the jurisdiction of the NCC.
3.The claim
3.1.
Danubia requests the Court, by means of a judgment that insofar as possible is provisionally enforceable, to:
a. issue a declaratory judgment (“
verklaring voor recht”) that the Shipyard, by building and delivering a vessel with a draft exceeding the maximum as stipulated in the Agreement, has failed to perform an obligation under that Agreement;
verklaring voor recht”) that the Shipyard, by building and delivering a vessel with a draft exceeding the maximum as stipulated in the Agreement, has failed to perform an obligation under that Agreement;
b. declare that the Shipyard in accordance with the provisions of Art. 6:74(1) of the Dutch Civil Code (“DCC”), is obliged to compensate the damages suffered by Danubia as a result thereof;
c. determine that the total damage eligible for compensation by the Shipyard will be calculated by extrapolating the damage already known and proven by Danubia over already passed and representative years over the total lifespan of the Vessel, being 20 years, or, alternatively,
d. issue a decision regarding the calculation of the damage and the period over which this damage should be compensated that the Court in the interest of justice believes to be reasonable;
e. refer these proceedings to follow-up damages proceedings (“
schadestaatprocedure”) to determine Danubia’s damages;
schadestaatprocedure”) to determine Danubia’s damages;
f. order the Shipyard to pay Danubia’s legal costs, with the provision that these costs must be paid within fourteen days after the day of the judgment, to be increased by statutory interest from the fifteenth day if these costs are not paid in time.
3.2.
The Shipyard opposes the claim and requests, by means of a provisionally enforceable judgement, that Danubia be ordered to pay the Shipyard the costs of these proceedings, to be increased by statutory interest pursuant to Article 6:119 of the DCC and subsequent costs.
3.3.
Insofar as relevant, the parties' arguments will be discussed in more detail below.
4.Discussion
Jurisdiction of the NCC and applicable law
4.1.
In Clause 14c of the Agreement, as amended on 15 April 2021, the parties designated the Amsterdam District Court and the NCC as the forum to hear their case (choice of forum clause). This means that the Amsterdam District Court has jurisdiction under Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). In Clause 14c, the parties also agreed to proceedings to be held in English before the NCC. All other requirements for the NCC to deal with the case, mentioned in Article 30r DCCP and in Article 1.3.1 of the NCC Rules of Procedure (NCCR), are also met.
4.2.
In Clause 14a of the Agreement, the parties agreed that Dutch law applies. Thus, the Court will apply Dutch law.
Is the Shipyard liable for the excessive draft of the Vessel?
4.3.
It is not in dispute that the minimum draft of the Vessel exceeds 1.45 metres as determined in the Agreement. According to Danubia, the Shipyard is liable for this defect. In this regard, Danubia claims compensation for the losses it has suffered and will suffer as a result of the Shipyard’s attributable failure to fulfil its contractual obligations over the lifespan of the Vessel, on the basis of the provisions of Article 6:74 of the DCC. The Shipyard disputes that it is liable for the excessive draft of the Vessel and invokes Article 7:758(3) of the DCC. In addition, the Shipyard also invokes Clause 11 of the Agreement.
Article 7:758(3) of the DCC
4.4.
According to the Shipyard, it has been discharged from liability for the
deviation from the minimum draft because Danubia should and could have reasonably discovered the excessive draft at the time of delivery of the Vessel. In this regard, the Shipyard argues that the Vessel’s draft was indicated at four different places on the outside hull of the Vessel, with large stripes and numbers, so that it was visible at first glance what the draft of the Vessel was at any given time. The Shipyard has substantiated its position with a photograph of the Vessel on page 5 (and enlarged on page 6) of its statement of defence. This photograph shows that the Vessel, despite being unloaded, was lying deeper in the water than the contractual minimum of 1.45 metres. It is clearly visible that the draft of the Vessel was around 1.60 metres. According to the Shipyard, the draft was also visible during the trial runs conducted on 7 and 8 April 2019. The draft was visible on the hull of the Vessel itself as well as on the on-board computer. The Shipyard states that the trial run was conducted by Danubia’s captain and his team being present. In this regard, the Shipyard is also of the opinion that it is inconceivable for a captain to leave port without being conscious of the draft of the Vessel. Furthermore, the provisional certificate states a “
Displacement of 2125 m3”. With reference to Anzböck’s expert report, the Shipyard argues that Danubia should have known that a weight of 2,125 tonnes was equivalent to a draft of approximately 1.67 metres.
Displacement of 2125 m3”. With reference to Anzböck’s expert report, the Shipyard argues that Danubia should have known that a weight of 2,125 tonnes was equivalent to a draft of approximately 1.67 metres.
4.5.
Danubia has refuted that, at the time of the delivery of the Vessel, it was aware or could reasonably have been aware of the fact that the minimum draft of the Vessel exceeded 1.45 metres. Danubia argues that the actual draft can only be reliably and objectively determined through the stability booklet. The final version of the stability booklet was first made available to Danubia on 14 August 2019, almost four months after the delivery of the Vessel. Furthermore, Danubia states that the photograph presented by the Shipyard in its statement of defence has no significance. It is unclear when and under which conditions this photograph was taken. Apart from the above, even if the draft markings have been visible from the outside, no clear and unambiguous conclusions could have been drawn from the photograph. This is a matter of interpretation and factual circumstances, such as the loading and/or ballasting conditions at that moment. In addition, the trial runs did not include verifying the draft and the cable connections for various equipment in the wheelhouse were far from ready at that time. Moreover, the aft draft remote sensor was located 1.500 mm from the bottom of the ship, which was higher than the minimum draft. With regard to the provisional certificate, Danubia states that it does not have the technical knowledge to calculate the draft from the given figures relating to water displacement. Therefore, Danubia argues that it was impossible to reasonably discover the defect at the time of delivery.
4.6.
The Court finds that the shipyard cannot successfully invoke Article 7:758(3) of the DCC for the following reasons. It is undisputed that the operational minimum draft had to be 1.45 metres and that the operational draft is determined under the conditions set out in the Agreement and the Specifications, namely (see para. 2.5 above) with 100% passengers and crew, 100% hotel equipment, 100% sewage storage tank and system, 100% potable water and 50% fuel. Therefore, one can only say that the operational draft is visible at first glance if one is looking at the Vessel’s draft marks if the Vessel is loaded under exactly these loading conditions. The Shipyard has not argued, nor has it made evident, that these loading conditions were met at the time of delivery. For that reason alone, it cannot be said that Danubia should or could have reasonably discovered the excessive draft at the time of the delivery of the Vessel, even given that the draft was visible on the outside hull of the Vessel and/or on the on-board computer. Therefore, the Court finds that the Shipyard has insufficiently substantiated that the operational minimum draft was clearly visible at the time of delivery under the parameters stated in the Specifications. Furthermore, it is not in dispute that the trial runs were not conducted at the operational draft. Chapter 03000 of the Specification states that the speed trials are to consist of two runs “at draft 1,60 m” (see para. 2.5 above). According to Mr Comanici, the trials were done with a draft of 1.70 metres, and according to the Shipyard, with a draft of 1.60 metres, as specified in Chapter 03000 of the Specification. Either way, the trials were not run at the agreed minimum draft. Therefore, the defect could not have been discovered by Danubia during those runs. In addition, the Court finds that the Shipyard has also insufficiently substantiated that Danubia should have known that a weight of 2,125 tonnes is equivalent to a draft of approximately 1.67 metres. The shipyard has not corroborated its statement that this should be considered common knowledge for a party like Danubia, while the expert report of Anzböck was not available at the time of the trial runs or at the time of delivery of the Vessel. Consequently, it cannot be said that Danubia should have reasonably discovered the excessive draft at the time of delivery of the Vessel or ten days earlier during the trial runs. Therefore, the Shipyard is not discharged from liability on the basis of Article 7:758(3) of the DCC.
Clause 11 of the Agreement
4.7.
Apart from the foregoing, the Shipyard has also invoked Clause 11 of the Agreement. The Shipyard argues that Clause 11 of the Agreement sets out what the Shipyard was still obliged to do after delivery, namely to repair defects found at the time of delivery and to repair defects that meet the conditions set out under Clause 11 under II. According to the Shipyard, these are defects relating to poor workmanship or the use of incorrect materials that were not apparent at the time of delivery and came to light within twelve months of delivery. Furthermore, the defects need to be expressly made known within one month of them being discovered. Any other liability is excluded. The Shipyard furthermore states that the defect relating to the minimum draft is not a defect as referred to under Clause 11 of the Agreement. Therefore, the Shipyard argues that it cannot be held liable for that defect.
4.8.
Danubia states that Clause 11 under II of the Agreement expressly provides for a warranty for hidden defects discovered in the course of twelve months after delivery. If such a hidden defect is timely reported, as is the case, the warranty obligations of the Shipyard are evident and the Shipyard clearly has the obligation to rectify the defect by ensuring the Vessel meets the agreed contractual stipulations and specifications. Danubia refutes that the draft problem is not a defect as referred to in Clause 11 of the Agreement, as the excessive draft is a clear violation of Clause 1 of the Agreement.
4.9.
The Court finds that the Shipyard can invoke the exoneration clause for the following reasons.
4.10.
A contract such as the Agreement needs to be interpreted under Dutch law according to what is known as the “Haviltex formula” as set out in the decision of the Dutch Supreme Court of 13 March 1981 (ECLI:NL:HR:1981:AG4158). In accordance with the Haviltex formula, the question of how a contractual provision, such as Clause 11 of the Agreement, must be interpreted cannot only be answered by looking at the wording of the clause and its linguistic meaning. What is decisive is the meaning which the parties, in the given circumstances, could have reasonably attributed to the provisions in the contract and what the parties could have reasonably expected from each other in that regard. This does not mean that the wording of a provision is irrelevant. Great significance may be attached to the wording, for example in the case of a detailed commercial contract having been concluded between professional parties each assisted by counsel, after intensive negotiations (see the ruling of the Dutch Supreme Court of 19 January 2007, ECLI:NL:HR:2007:AZ3178,
Meyer/PontMeyer). The application of the "Haviltex formula" entailing “all facts and circumstances” of the given case remains decisive, also in the case of a carefully drafted commercial contract (see the ruling of the Dutch Supreme Court of
Meyer/PontMeyer). The application of the "Haviltex formula" entailing “all facts and circumstances” of the given case remains decisive, also in the case of a carefully drafted commercial contract (see the ruling of the Dutch Supreme Court of
5 April 2013, ECLI:NL:HR:2013:BY8101,
Lundiform/Mexx). For the sake of clarity, the Court notes that this matrix of facts will only be relevant if and insofar as a party has relied on those other facts and circumstances and has sufficiently substantiated these allegations.
Lundiform/Mexx). For the sake of clarity, the Court notes that this matrix of facts will only be relevant if and insofar as a party has relied on those other facts and circumstances and has sufficiently substantiated these allegations.
4.11.
Textually, Clause 11 of the Agreement explicitly states that, after the delivery of the Vessel, the Shipyard’s liability is limited to the conditions under I and II. All other liability of the Shipyard is excluded, according to the wording of Clause 11. It is not in dispute that the Agreement is a commercial contract concluded between professional parties, which was discussed in great detail. Therefore, the Court finds that great significance may be attached to the wording of Clause 11. It is also not in dispute that only the conditions set out under II are relevant, inasfar as the excessive draft of the Vessel is concerned. The Court finds that it follows from the text of Clause 11 under II that the hidden defects, mentioned under II, are limited to defects that can be traced back to faulty workmanship or the application of defective materials (“…zurückzuführen…” “…auf schlechte Arbeitsausführung oder die Verwendung fehlerhaften Materials)… ”. Danubia has not stated any other facts and circumstances with regard to a different meaning or interpretation of Clause 11.
4.12.
The Court considers that from the way Clause 11 of the Agreement is drafted, namely as a general exemption of all liability with the sole exceptions to that exemption as set forth under I and II in Clause 11 of the Agreement, Danubia is the party that has to substantiate that either or both of the exceptions apply. After all, it is Danubia who is invoking the legal consequences of the exceptions. The Court finds that Danubia has failed to substantiate or at least has failed to provide sufficient information that justifies that it can rely on the exception set forth under II. Danubia has not argued, nor has it become evident, that the excessive draft is a result of faulty workmanship or defective materials (“schlechte Arbeitsausführung” or “die Verwendung fehlerhaften Materials”). Danubia has only stated that by exceeding the minimum draft, the Shipyard has failed to comply with its contractual obligations, without further specifying the underlying cause of the excessive draft. Under Clause 11 of the Agreement, it was up to Danubia to sufficiently corroborate that the underlying cause of the excessive draft was either faulty workmanship or defective materials, which it has failed to do. The exact cause of the excessive draft of the Vessel consequently remains unclear. In this regard, the Court finds that the mere fact that the minimum draft of the Vessel exceeds 1.45 metres does not necessarily imply that this is due to faulty workmanship or defective materials. Therefore, the Court finds that the Shipyard can rely on the exoneration clause in the given circumstances, which leads to the conclusion that the Shipyard cannot be held liable for the excessive draft.
Conclusion
4.13.
In view of the above, the Court will dismiss Danubia’s claims. Therefore, the Shipyard’s other defences need no discussion.
4.14.
Danubia, as the unsuccessful party, will be ordered to pay the costs on the part of the Shipyard. The cost order is based on the NCC rates to assess lawyers' fees (see Annex III to the NCC Rules). The costs on the part of the Shipyard are set at:
- court fee € 18,287.00
- lawyers' fee € 13,500.00 (3 x €4,500.00)
- post-judgment costs (
nakosten) € 178.00 (plus the increase,
nakosten) € 178.00 (plus the increase,
as stated in the decision)
total amount € 31,965.00
4.15.
Furthermore, the statutory interest (Article 6:119 of the DCC) on (all) the costs of these proceedings will be awarded, as stated in the decision.
5.Decision
The Court:
5.1.
dismisses Danubia’s claims,
5.2.
orders Danubia to pay to the shipyard the costs of these proceedings, set at
EUR 31,965.00, within fourteen days following a demand for payment, plus EUR 92.00 and the subsequent costs of service of the judgment, if Danubia has not complied with the judgment and service of the judgment was necessary,
5.3.
orders Danubia to pay to the Shipyard the statutory interest on the costs of the proceedings (pursuant to Article 6:119 of the DCC), if Danubia has not paid the costs of the proceedings within fourteen days following a demand for payment,
5.4.
declares this judgment enforceable notwithstanding appeal with regard to the costs of the proceedings.
Done by C.W.D. Bom, N.A.J. Purcell and D.E. Alink, Judges, assisted by A. Hut, Clerk of the Court.
Issued in public on 12 March 2025.
APPROVED FOR DISTRIBUTION IN eNCC
THE SIGNED ORIGINAL IS IN THE HARDCOPY FILE
SIGNATURE PAGE 1 OF 2
C.W.D. BOM
(PRESIDING JUDGE)
SIGNATURE PAGE 2 OF 2
CLERK OF THE COURT