On 13 September 2013, the Dutch Supreme Court issued a judgment that has a wider application in respect of pre-judgment orders attaching documents for the purpose of preserving evidence (including digital evidence) in non-IP cases. After a hesitant start it appears that Dutch courts are prepared to grant these interim measures for the purpose of preserving evidence. This affects Shipowners directly, given that data (e.g. logbooks) on board the vessel may be subject to seizure pursuant to such an order.

 

General comments

An interim order for attachment of documents does not grant a party the right to the seized data. It is meant for preservation purposes only. A claim to obtain the evidence must follow. A pre-judgment attachment can by initiated by submitting a petition to the Judge in Interlocutory Proceedings.

 

Procedure

Pursuant to Article 843a of the Dutch Civil Code of Procedure the Judge will have to assess three things:

(1) whether the petitioner has a LEGITIMATE INTEREST;

(2) whether the application concerns SPECIFIC documents and;

(3) whether there is a LEGAL RELATIONSHIP between the parties.

It is an ex-parte procedure. The party applying for the order for seizure of evidence will be required to demonstrate a well-founded fear that such evidence will be destroyed or lost in the absence of such a remedy for preservation of evidence being granted. The Judge may order that security is provided by the applicant.

 

During seizure

During seizure, questions may arise, for example whether specific evidence may, or may not, fall under the attachment. In that case the bailiff enforcing the order may, in the event of uncertainty, approach the Judge who will start interim injunction proceedings by telephone immediately. The bailiff has the right to demand access to any place, insofar as this is reasonably necessary for the performance of his duties. If a person is unwilling to hand over data he carries, the bailiff must include this in its report of seizure. The judge has the power to impose an immediately payable fine upon the party in default. If the data is not provided by the party against whom the interim attachment order is made, the court may at its own discretion proceed to a final judgment. In most cases that would result in a judgment against the party who has failed to provide the data.

 

Lifting the attachment

Each party always has the opportunity to apply for a summary order for withdrawal of a pre-judgment attachment.

 

For more information, please contact:

DAAN KOMEN

Telephone       : + 31 10 217 77 20

Mobile             : +31 6 37 47 05 56

Email               : komen@caland.nl

 

Whilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not be considered as legal advice.

Legal commentary regarding ‘fault of the vessel’ under Dutch law

It is worth mentioning the recent judgment of the Court of Appeal Arnhem-Leeuwarden of 16 October 2018.[1] On 16 July 2015, an explosion took place aboard the motor yacht ‘A’. The yacht burned down completely. A few hours prior to the explosion, the owner of the yacht had switched on the gas-powered refrigerator. One of the experts involved suspected that the explosion was caused by a gas leak, given the lack of other highly flammable substances on board. However, investigation was no longer possible because the yacht had been fully lost in the fire. As a result of the explosion, motor yacht ‘B’, which was moored at the same jetty, was also fully destroyed by the fire.

 

Legal basis for a claim by owner yacht B

The owner of yacht B appeals to the owner of yacht A on the basis of (i) wrongful act (article 6:162 of the Dutch Civil Code) and (ii) of a defective good (article 6:173 of the Dutch Civil Code).

After the subdistrict court judge had awarded the claim(s) of the owner of yacht B, the owner of yacht A lodged an appeal.

 

Judgment of the Court

Regarding basis (i), the Court of Appeal ruled that the mere fact of the presence of the gas installation was not wrongful towards the owner of yacht B. This would only be the case if the mere presence of such an installation made the probability of a gas explosion so great that the owner of yacht A should have abstained from having it present based on the principles of due care. Furthermore, it did not appear to be that there were any defects in the gas installation in yacht A and/or that the owner of yacht A had taken insufficient precautionary and safety measures because – according to the Court of Appeal – due to the complete loss of motor yacht A, the cause could not be determined.

Regarding basis (ii), the Court of Appeal ruled that the liability of the owner of yacht A cannot be based on article 6:173 of the Dutch Civil Code, which article creates a strict liability for the owner of a movable property, because pursuant to article 6:173 paragraph 3 of the Dutch Civil Code, this article does not apply to vessels.

The Court of Appeal consequently dismissed any claim(s) of the owner of yacht B. An unpleasant outcome for yacht owner B.

 

Book 8 of the Dutch Civil Code

Should the owner of yacht B have taken a different approach and based its claim(s) on the collision provisions in book 8 of the Dutch Civil Code?

Articles 8:1005 and 8:544 of the Dutch Civil Code, regarding an inland vessel and a seagoing vessel, respectively, establish that if the damage is caused by the fault of the vessel, the owner of this vessel is obliged to compensate the damages.

 

‘Casuele’/’De Toekomst’

On 30 November 2001, the Dutch Supreme Court issued a standard judgment in which the term ‘fault of the vessel’ is explained.[2] According to that judgment, the probable cause was a short circuit in an electrical heater in the motor compartment of the ‘Casuele’. Should that fact be established, then that is a defect of the vessel, for which the owner is liable. The Supreme Court applies blame theory here. This means that a claimant must prove the cause of the fire. Then, based on one of the criteria below, it must be determined whether that cause is borne by the owner of the vessel. According to the Supreme Court, there is ‘fault of a vessel’ if the damage is the result of:

(a)   an error of a person for whom the owner of the vessel is responsible according to articles 6:169-6:171 of the Dutch Civil Code;

(b)   an error of a person or persons who perform(ed) work for the benefit of the vessel of the load, which occurred during the performance of the work;

(c)   the realisation of a special danger to persons or goods that was created because the vessel did not meet the requirements that could be imposed in the given circumstances.

Although article 6:173 of the Dutch Civil Code (the provision establishing a strict liability for the owner of a movable property) does not apply to vessels, the Supreme Court was able to channel it in via the above criterion (c), provided that the cause of the damage can be determined. If the cause is unknown, the owner of the ‘causing’ vessel is not liable. Therefore, it is generally of great importance to the owner of an adjacent vessel and its insurer(s) to immediately appoint an expert to investigate the cause of the fire.

Before the ‘Casuele’/’De Toekomst’ judgment, risk theory was applied. In that case, the claimant of motor yacht B could suffice with the evidence that the explosion originated aboard yacht A. What exactly that cause was is then no longer of importance. The Advocate-General who wrote an advice to the Supreme Court in the ‘Casuele’/’De Toekomst’ applies an ‘intermediate theory’, which is based on the primacy of the fault supplemented by the defect of the ship.

 

Evidence

Whatever the case, in the present case, based on the prevalent (blame) theory, the owner of yacht B must prove the cause of the explosion aboard motor yacht A.

Although the Supreme Court does not allow a judge to decide whether based on the factual situation, a suspicion of guilt may be assumed, the provision of evidence does not require the cause brought forward by the owner of yacht B to be established with scientific certainty. A reasonable degree of certainty that the stated cause of damage (explosion due to a leak in the gas connection) is indeed the cause of damage is sufficient.[3] A probability percentage of at least 75% should be applied as a guideline here.[4] Considering that (i) the owner of yacht A had switched on the gas-powered refrigerator themselves a few hours before the explosion and (ii) no other highly flammable substances were present on board, there seems to be no other (plausible) cause conceivable. The question is whether this meets the probability percentage of at least 75%. Had that cause been determined by the Court of Appeal, then that is a defect in yacht A, for which the owner of yacht A would be liable. That outcome would have been just.

 

[1] Court of Appeal Arnhem-Leeuwarden 16 October 2018, ECLI:NL:GHARL:2018:9083.

[2] Supreme Court 30 November 2001, ‘Casuele’/’De Toekomst’, ECLI:NL:PHR:2001:AD3922, NJ 2002, 143.

[3] Court of Appeal Arnhem-Leeuwarden, among others, 13 November 2018, ECLI:NL:GHARL:2018:9848.

[4] I. Giessen, Bewijs en aansprakelijkheid. A comparative law study into the burden of proof, the risk of evidence and the risk of reversal in liability law, 2008, section 4.5.

 

For more information, please contact:

DAAN KOMEN

Telephone       : + 31 10 217 77 20

Mobile             : +31 6 37 47 05 56

Email               : komen@caland.nl

 

Whilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not be considered as legal advice.

The purpose of this article is to provide the reader with a practical and brief overview of the current legal situation in the Netherlands regarding the exclusion of liability by means of a sign at the entrance before entering a terminal operator’s premises by land or water.

Terminal operators may exclude their liability in general by (i) incorporating specific provisions in the (stevedore) agreements they conclude with their contractual counterparties, (ii) using General Terms and Conditions and (iii) by placing a sign at the entrance before entering a terminal operator’s premises.

In the Netherlands the following General terms and Conditions are applied by terminal operators:

(1) General Terms and Conditions of the Rotterdam Terminal Operators’  Association (VRTO). The VRTO are deemed to be the most recent version of the General Terms and Conditions of the Association of Rotterdam Stevedoring Companies 1976;

(2) General Terms and Conditions for Tank Storage in the Netherlands (VOTOB-conditions);

(3) and the related Jetty Conditions of the Association of Dutch Tank Storage Companies (VOTOB-jetty conditions).

The exclusion of liability by placing a sign at the entrance before entering a terminal operator’s premises creates an “entry”agreement between the visitor (e.g. a lorry driver) and the terminal operator or a “mooring” agreement between the shipowner and the terminal operator. This dogma has often been the subject of dispute in legal proceedings.

 

Starting point

Starting point is a Casebook judgment of the Court of Appeal The Hague of 1 February 2006 (S&S 2009, 74). The Court of Appeal ruled that by passing the sign the (lorry) driver is deemed to have read the text on the sign and accepted the exoneration. The Court of Appeal based that judgment on the following considerations: (i) it is inherent in a port area that goods are being handled. The entry of a port site involves special risks due to the activities involved in the relocation of goods by cranes and vehicles, (ii) the sign identifies these dangers by means of text and icons and links regulations to the entry of the premises, (iii) the text of the sign is simple in nature and the exoneration is therefore presented in a clear manner and (iv) the driver has been on the terminal’s premises several times. The Court of Appeal allowed the exclusion of liability by means of a sign at the entrance before entering a port area (e.g. the premises of a terminal operator).

 

Further explanation

A judgment of the District Court Rotterdam on 24 August 2012 (ECLI:NL:RBROT:2012:BZ6370) contains a further explanation on this dogma. The Court considers regarding the applicability of the exclusion of liability by means of sign that (i) it will be necessary that the text for the visitor in question must be  sufficiently known and clear, (ii) this does not give the terminal a license to cause damage to visitors or to allow to continue an unnecessary dangerous situation that cannot reasonably be expected by the visitor, (iii) the exclusion of liability also applies when the injured party institute an action arising from an unlawful act (tort) and (iv) a terminal operator is not able to exclude liability if it acts contrary to the principles of reasonableness and fairness (e.g. when the terminal acted with intent or recklessness or it allowed a continued unnecessary dangerous situation).

 

MV “ALLEGONDA”

On 25 February 2014 the Court of Appeal The Hague rendered judgment in the MV “ALLEGONDA” case (S&S 2014/72).

According to the judgment, the text at the entrance of the terminal operator premises reads as follows:

ATTENTION

Anyone who is located or moored at our yard:

is there, with its means of transport and goods belonging to him, entirely AT HIS OWN RISK, so that our company or the persons employed by our company are not liable at all for any damage;

hereby acknowledges and accepts the contents of this notice, as well as accepting that, as far as necessary, we may also apply to the Rotterdam Terminal Operators’ Association Condtions, as deposited at the District Court of Rotterdam.

The captain had moored the MV “ALLEGONDA” alongside the pier to load containers. After the containers were placed in the ship, the crane engineer disconnected the spreader from the container and pulled it up. Consequently the spreader has hit the wheelhouse, which caused damage to the top of the wheelhouse.

The parties to the proceedings disagreed on the scope of the relevant notice on the sign. The text of the sign (the words: “for any damage”) must therefore be interpreted. The Haviltex standard is the main rule in the Netherlands to interpret a written contract in the Netherlands (HR 13 maart 1981, NJ 1981/635). According to the Court of Appeal (i) it is first of all important that the text of the sign is in general terms (no specific risks are mentioned). Therefore the text is suitable for general exclusion of liability, but not for exclusion of liability under the circumstances in the matter at hand, (ii) the damage in the matter at hand does not occur on a regular basis and (iii) the MV “ALLEGONDA” did not have freedom of choice to moor alongside the quay of the terminal. The vessel was there to carry out a contract of affreightment.

The Court of Appeal concludes therefore that the captain would not understand the notice on the sign as a complete exclusion of liability. The Court of Appeal consequently upheld the claim against the terminal operator.

It is worth mentioning that the Court of Appeal considered that the reference to the VRTO Conditions was valid, motivated by the fact that the respondent did not contest the applicability of the reference to the VRTO conditions.

 

MV “CHALLENGER”

The last judgment involves the MV “CHALLENGER” (District Court Zeeland-West-Brabant 25 June 2016 (ECLI:NL:RBZWB:2016:5128). On November 9, 2012, the MV “CHALLENGER” collides with a sinkable dock, which resulted in a hole in the hull of the vessel. The location of the dock was not marked and there were no signs or marks indicating where the dock was located.

On a crane on the quay in the harbor a sign was attached with the following text:

 

Attention !! Limited depth because of a sinkable doc

 

At the entrance gate of the shipyard, which gives access to the site from the land, a sign is placed with the following text:

 

Warning! Being on the site or in the water of this site of persons or business is entirely at the sole discretion of any liability of the site and any resulting from injury, death, accident, loss or damage to business and delay, or for any reason whatsoever is also excluded.

The sign was not visible when entering the yard from the water side.

According to the District Court the sign on the quayside is not a sign to exclude liability. This is only a sign with a warning purpose. This may only lead to a division of liability between the parties. As to the sign on the landside the court considers that this was not visible from the MV “CHALLENGER” and therefore not applicable.

The last argument of the claimant was that a “mooring” agreement was established between the parties because the owner of the MV “CHALLENGER” entered the landside several times during the construction of the MV “CHALLENGER” at the shipyard. However, the Court considered that the text of the sign cannot be read from a distance. The text is also general in nature and does not warn for specific risks that need to be considered more carefully. Consequently, no “mooring” agreement has been established between the owner of the MV “CHALLENGER” and the shipyard.

 

Conclusions

Excluding liability by means of a sign is possible and can be effective. A “mooring” agreement or “entry” agreement will be created between the shipowner respectively (lorry) driver and the terminal operator. In order to establish such an agreement, the text for the relevant visitor to the terminal operator must be sufficiently visible and clear. Generally speaking, a visitor may understand from the general terms of the text on the sign that this excludes liability for the general risks at the terminal. Excluding liability for damage caused by the terminal to the visitor through loading and unloading of goods may have effect, but then the text of the sign must clearly indicate for what risks the visitor is liable. Reference to General Terms and Conditions on a sign appears to be possible, although that has not yet been contested in court. The exclusion of liability also applies if the terminal operator is sued on the basis of tort. A terminal is not able to exclude its liability if it acts contrary to the principles of reasonableness and fairness (e.g. intent or recklessness or to allow to continue unnecessarily dangerous situations).

 

For more information, please contact:

DAAN KOMEN

Telephone       : + 31 10 217 77 20

Mobile             : +31 6 37 47 05 56

Email               : komen@caland.nl

 

Whilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not be considered as legal advice.