Supervisory director liability and the boundary of external oversight
Fairstar supervisory directors liable following secret shipbuilding contract
On 30 January 2026 the Supreme Court ruled on the liability of the supervisory directors of shipping company Fairstar Heavy Transport. The judgment quashes the decision in part: the internal liability to Fairstar stands, but the external liability to acquirer Dockwise must be reassessed.
The case concerns the FATHOM, a vessel that Fairstar wished to have built for USD 111 million. In July 2011 the supervisory board approved the construction, but expressly on the condition that financing would first be secured. The CEO [betrokkene 1] nonetheless signed the Shipbuilding Contract without that financing — and presented it to the supervisory directors as merely a USD 2 million option.
When it emerged in May 2012 that Fairstar was in default and faced a termination fee of USD 37.5 million, the supervisory directors should have intervened. A reasonably minded supervisory director would at that point have doubted the board's statement that no unconditional contract existed, according to the Amsterdam Court of Appeal. The supervisory directors' failure to make further enquiries — for instance by contacting the Chinese shipyard — amounted to serious personal blame within the meaning of Section 2:140 DCC in conjunction with Section 2:9 DCC.
Supreme Court: external liability requires its own reasoning
The Court of Appeal held in a single step that the supervisory directors were liable to 'Fairstar et al.' — both to Fairstar itself and to acquirer Dockwise. The Supreme Court considers that too much of a shortcut. Liability to the company is governed by the test of Section 2:9 DCC: improper performance of duties amounting to serious personal blame. But liability to a third party such as Dockwise is governed by a separate standard under Section 6:162 DCC, with the high threshold that generally applies to the personal liability of supervisory directors.
Advocate General Assink reached a different conclusion in his detailed opinion: he read the Court of Appeal's judgment as containing a sufficiently reasoned basis for the external liability, related to the failure to supervise the disclosure of price-sensitive information. The Supreme Court does not follow that reading. The case has been referred to the Hague Court of Appeal for a fresh assessment of Dockwise's claim.
The judgment aligns with the line set out in Supreme Court 3 February 2023 (SSC), in which the Supreme Court held that acting contrary to provisions of the articles of association is admittedly a weighty circumstance that in principle establishes liability, but that the court must expressly assess all exculpatory circumstances relied on by the director. Both judgments emphasise that the threshold for personal liability is high and requires careful reasoning — even where the facts appear clear.
What does this mean for supervisory directors and their advisers?
The Fairstar judgment draws a sharp distinction between two bases of liability for supervisory directors. Internal liability (Section 2:9 in conjunction with Section 2:149 DCC) requires improper performance of duties amounting to serious personal blame. External liability to third parties requires personal serious blame in tort — and that threshold is higher still. The Court of Appeal may not merge the two into a single consideration.
Supervisory directors who receive signals that the board is operating outside the scope of an approval resolution must actively probe further. A failure to make further enquiries — where the facts do not tally with the board's statements — can give rise to serious personal blame. Oversight is not a passive task. A supervisory director who does not intervene at the moment intervention is called for runs the risk that the blame becomes personal.
More on the liability of directors and supervisory directors in Prime Law's corporate litigation overview and inquiry proceedings analysis.
Frequently asked questions
When is a supervisory director personally liable to a third party?
A supervisory director is liable to third parties under Section 6:162 DCC where personal serious blame can be attributed to them. That threshold is high: it must concern an act or omission that a reasonably acting supervisory director would not have engaged in in the same circumstances. The Fairstar judgment confirms that this basis must be reasoned separately.
How does this differ from internal supervisory director liability?
Internal liability under Section 2:9 in conjunction with Section 2:149 DCC concerns the relationship between the supervisory director and the company. External liability to third parties — such as shareholders or acquiring parties — requires an independent assessment in tort. The mere fact that a supervisory director is internally liable does not automatically make them externally liable as well.
What should supervisory directors do when in doubt about the board's statements?
Actively probe further and, where necessary, carry out an independent investigation, for instance by contacting contracting parties or the auditor. The Fairstar judgment makes clear that passively relying on the board's statements — where objective facts do not tally with them — can be classified as improper oversight.
ECLI:NL:HR:2026:128, Supreme Court, 30 January 2026. See also: ECLI:NL:GHAMS:2024:1309 (Amsterdam Court of Appeal), ECLI:NL:HR:2023:146 (Supreme Court SSC), ECLI:NL:PHR:2025:755 (opinion of Advocate General Assink).
Cited case law
Supreme Court: ECLI:NL:HR:2026:128 · ECLI:NL:HR:2023:146
Advocate General: ECLI:NL:PHR:2025:755
Courts of Appeal: ECLI:NL:GHAMS:2024:1309
See also
- Directors' liability: the bases and the defence
- Supervisory board liability: oversight and supervisory directors
- Directors' liability in cassation: 20 Supreme Court judgments
- Construction costs doubled at a beach club: Beklamel standard not breached
- Section 2:248 DCC: when does a director bear the estate deficit?