## Facts

- Tropical Shipping Company (Tropical) owned the vessel *Dabema*.
- At the time of the dispute, the *Dabema* was docked in the Netherlands.
- Dammers & Van der Heide’s Scheepvaart en Handelsbedrijf B.V. (Dammers) claimed Tropical owed it money.
- To secure its monetary claim, Dammers obtained an order from a Dutch court allowing conservatory sequestration (pre-judgment attachment) of the *Dabema* while it was in a Dutch port.
- Tropical objected to the Dutch court’s involvement, arguing that the Dutch court lacked jurisdiction.
- Although Tropical was legally incorporated in Liberia, Tropical asserted that its “true seat” was in France and that French courts therefore had jurisdiction over Dammers’s claim.
- Tropical contended that the Dutch court should recognize the alleged French true seat by reference to Articles 2 and 53 of the 1968 Brussels Convention on jurisdiction and enforcement (Brussels Convention).
- Tropical also pointed to related proceedings initiated by Dammers in Bordeaux, France, including a French sequestration order over a Tropical-owned vessel there.
- The Dutch court at first instance rejected Tropical’s challenge, holding that the Brussels Convention did not apply because Liberia was not a contracting state and that, under Dutch private international law, Tropical’s Liberian incorporation controlled for jurisdictional purposes.
- Tropical appealed to the Hague Court of Appeal.

## Issues

1. Whether the Brussels Convention governed jurisdiction where the defendant shipping company was incorporated in Liberia (a non-contracting state) but claimed a “true seat” in France.
2. Whether, under Dutch private international law, Tropical could resist Dutch jurisdiction by arguing that its real seat was in France rather than Liberia.
3. Whether the prior (or possibly pending) French proceedings and French sequestration required the Dutch court to refuse or set aside the Dutch conservatory sequestration of the *Dabema*.

## Decision

- The Hague Court of Appeal upheld the Dutch order permitting conservatory sequestration of the *Dabema*.
- The court agreed with the lower court that the Brussels Convention did not apply on these facts, given Tropical’s incorporation in Liberia, which was not a contracting state.
- With the Convention inapplicable, the court treated jurisdiction as governed by Dutch private international law.
- The court rejected Tropical’s attempt to displace the incorporation-based connecting factor by asserting a French true seat.
- The existence of French proceedings and a French sequestration order over another Tropical vessel did not, by itself, bar Dutch conservatory sequestration of the *Dabema* located in the Netherlands.

## Legal Principles

- The Brussels Convention does not determine jurisdiction in a Dutch action against a company incorporated in a non-contracting state merely because the company claims operational ties to a contracting state.
- When the Brussels Convention does not apply, Dutch courts look to Dutch private international law to determine whether they may take jurisdiction and grant provisional measures.
- For a foreign corporation outside the Convention framework, Dutch private international law may treat the place of incorporation as the primary connecting factor for identifying the company’s seat for jurisdictional purposes.
- A defendant’s assertion that its “true seat” is in another country will not automatically control the Dutch jurisdiction analysis where Dutch private international law points to incorporation.
- Dutch courts may grant conservatory sequestration over a vessel present in the Netherlands to secure a monetary claim, even if related proceedings have been brought elsewhere.
- A prior foreign sequestration of a different vessel, and related foreign litigation, do not automatically make a Dutch conservatory sequestration improper; the Dutch court retains power to order security over assets within its territory.

## Conclusion

The Hague Court of Appeal maintained the Dutch conservatory sequestration of Tropical’s vessel *Dabema* while it was in a Dutch port, rejecting Tropical’s argument that France was the proper forum based on an alleged French true seat and declining to treat earlier French proceedings and sequestration as a bar to Dutch interim security.


Tropical Shipping Co. v. Dammers & Van der Heide's Scheepvaart en Handelsbedrijf BV, [1982] ECC 353—29 February 1980