Click on the link below to read the full article:

Appointment of maritime court surveyors in the Netherlands

 

On 14 January 2021 more than 260 participants watched the Webinar ‘Arresting developments, Debt recovery’ organised by ITIC. Our partner Richard van ‘t Zelfde was one of the three speakers and discussed the possibility of ship arrests in the Netherlands. Watch here for the full video of the Webinar to learn more on ship arrests in the Netherlands, the Middle East and the USA.

 

 

The terms of the Bill of Lading usually contain a broadly formulated Merchant Clause, such as:

 

Merchant: includes the Shipper, Consignee, holder of this Bill of Lading, the receiver of the Goods and any Person owning, entitled to or claiming the possession of the Goods or of this Bill of Lading or anyone acting on behalf of this Person.

 

Carriers often appeal to the Merchant Clause to (attempt to) recover costs from a party that qualifies as a Merchant. These costs are usually included in the bill of lading. The freight and container storage costs (and the actual costs involved in their recovery) are practically always included.

Carriers tend to charge high rates, e.g. for their container parking fees, which are a welcome addition to the pressure on freight tariffs.

A distinction can be made between costs for container demurrage and container detention. Demurrage occurs when the container – after being unloaded from board – has not been taken receipt of by the cargo recipient within the permitted free period (‘free time’). Detention occurs when the cargo recipient who has taken receipt of the container and removes it from the terminal does not return the container to the terminal within the agreed time. Detention and demurrage can be formulated as follows in the bill of lading:

 

The carrier allows a period of free time for the use of the Containers and other equipment in accordance with the Tariff [..] at the Ports of Loading and Discharge. Free time commences from the day the Container and other equipment is collected by the Merchant or is discharged from the Vessel or is delivered to the Place of Delivery as the case may be. [..] Demurrage, per diem and detention charges will be levied and payable by the Merchant thereafter in accordance with the Tariff.

 

In practice, for example, demurrage costs tend to run up considerably. The question is whom the carrier can recover these demurrage costs from. The carrier’s contractual party is usually the sender (‘Shipper‘) and is consequently the party who the carrier will (have to) address in the first instance. In the event, for instance, that the sender has gone bankrupt or is (no longer) traceable, the carrier will try to recover the costs from another party that qualifies as Merchant pursuant to the Merchant Clause and can be held liable. The next party that the carrier will subsequently want to address is the consignee. Under Dutch law, the mere mention of the consignee on the Bill of Lading does not make him a party to the contract of carriage under a Bill of Lading. This is, however, effectively the case after presentation by the consignee of the Bill of Lading to the carrier. By joining, the consignee becomes a party to the contract of carriage and is also subject to the conditions applicable to the transport. There may even be a third party holding a Bill of Lading, who is not the sender or the consignee. By presenting the Bill of Lading, such holder also accedes to the contract of carriage under a Bill of Lading. In that case, the same scheme applies as it does for the consignee (who has presented the Bill of Lading) and the carrier can in principle recover the demurrage costs from this third-party holder of the Bill of Lading. The other parties mentioned under the Merchant Clause are basically not parties to the contract of carriage under a Bill of Lading. The fact that the carrier and the shipper have agreed on a certain definition of the Merchant in which a party can be classified does not suffice in order to bind a non-contracting party to a contract of carriage, which has not been entered into by itself or to which it does not become a party by accession. Indeed, the general principle of contract law is that contractual obligations are obligations which a party has voluntarily adopted, and that agreements basically only apply between the parties. The legal instrument of ‘benevolent intervention’ [Dutch: ‘zaakwaarneming’] may still be able to provide a solution for the carrier with respect to a possible claim against the owner of the goods: ‘any Person owning […] the Goods‘. However, other parties appear to remain outside the scope of the carrier.

 

In conclusion, a note on a ruling on demurrage costs. On 19 February 2020, the Interim Relief Court of the District Court of North Holland, location of Haarlem, rendered an interesting judgment on this matter. In this judgment, the party responsible for delivering the containers and having the containers transported, but which was not the carrier under the ‘non-negotiable waybills‘, claimed demurrage costs from the consignee who joined the contract of carriage. The question was as to whether those costs could be recovered from the consignee. According to the Court in preliminary relief proceedings, the correspondence between the parties mentioned above, as well as the Arrival Notices on which the consignee was mentioned as ‘demurrage payer’ and the invoices to which the consignee had not objected (and which had been paid in part by the consignee), could, in connection with the contract of carriage, serve as a basis for the consignee’s liability for the costs arising from demurrage. It should be noted that, in the present case, the legal basis is not derived from the mere fact that this party (in its capacity as consignee) had entered into the contract of carriage, but that, in the opinion of the interim relief court, a contractual relationship between the abovementioned parties would manifestly have arisen – independently of the contract of carriage.

 

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 and no rights can be derived from it.

Click on the link below to read the full article:

The BOW JUBAIL – a case of providing too limited proof for the desired limited liability

Fact-finding should preferably be done as soon as possible after the occurrence of the damage causing incident.

Where evidence is in the possession of only one of the involved parties, such as VDR-data, radar tracks, AIS data, witness evidence, the crew list and copies of logbooks such as the deck- and engine logbooks, Dutch law has several legal instruments to (try to) obtain such evidence.

This article provides an overview of the available legal instruments under Dutch law regarding the discovery prior to proceedings on the merits.

One important instrument is that of art. 843a Dutch Code of Civil Procedure (further: “DCCP”).  This forms a legal basis for a party to claim insight into, a copy of and/or an extract of certain data. This can be done by way of a prejudgment attachment on such data for the purpose of preserving evidence. To subsequently actually obtain the evidence this can be claimed in (summary) proceedings or proceedings commenced by an application. The procedure ex art. 843a DCCP can also be initiated without a prior prejudgment attachment.

A party can also file a petition for the appointment of an expert surveyor or hearing of an expert witness ex. article 202 et seq. DCCP. This article mainly focusses on this option. For cargo related matters the articles 8:494 – 8:495 Dutch Civil Code (further: “DCC”) contain specific provisions for carriage of goods by sea and the articles 8:958 – 8:960 DCC for carriage of goods by inland waterways. Those options are not discussed in this article. A preliminary report by or hearing of an expert witness ex. article 202 et seq. DCCP can be applied for instance to other maritime incidents such as collisions.

 

General remarks request ex art. 202 et seq. DCCP

A preliminary report or hearing of an expert witness may serve to enable a party to obtain certainty on the basis of the expert report to be issued as to the facts and circumstances relevant to the decision of the dispute and thus to better assess whether it is advisable to initiate (or to continue) legal proceedings. In principle, the court must award such a request, provided that the request is relevant and sufficiently specific and concerns facts that can be proven by means of the expert investigation. However, this is different if, on the basis of the facts and circumstances to be stated in the decision of the court, the court is of the opinion that the application is contrary to the principles of due process (of law), if there is (any) abuse of rights or if there is any other overriding interest.

 

Jurisdiction

A petition for a preliminary report or hearing of an expert witness ex. article 202 et seq. DCCP must be submitted to the Judge in Interlocutory Proceedings. Where a Dutch Court (likely) has jurisdiction in the proceedings on the merits, the judge in interlocutory proceedings also has jurisdiction to deal with the request.

 

Maritime Court Surveyor

Someone who is appointed by the court as an expert in a maritime matter is called a maritime court surveyor.

The Maritime Chamber of the District Court of Rotterdam instigated in 2017 a working group that has made joint investigations to ensure that the maritime court surveyor will become a more effective tool for fact finding.

Their final report was published in 2019 (https://www.rechtspraak.nl/SiteCollectionDocuments/rapport-project-afkoersen-vaste-maritieme-gerechtsdeskundigen.pdf).

There are various types of maritime court surveyors. A party may either request the Judge in Interlocutory Proceedings to appoint a maritime court surveyor (a) who conducts a full research including gathering evidence (e.g. on board a vessel) and presents a final survey report to the court or (b) one who is merely appointed to gather evidence (e.g. on board the vessel). During substantive proceedings the court may appoint (c) a maritime court surveyor to inform the judge(s) in writing or (d) to appear at a hearing to answer questions from the judges and the lawyers of the parties.

 

In practice

When a party does not cooperate during a survey of the maritime court surveyor the surveyor does not have power to force a party to hand over evidence. However, he may call in the judge in interlocutory proceedings of the District Court for support, if that has been requested and granted in the petition. The judge may be able to force a party on the basis of the articles 198 jo. 205 DCCP.

Speed is of the essence. After a maritime incident a maritime court surveyor should preferably be appointed as soon as possible. The judge in interlocutory proceedings of the District Court Rotterdam is 24/7 available for such requests. The request may be awarded the same day. It is advisable in urgent matters to request an ‘ex parte’ (without hearing the counterparty) decision. If an ex parte request is made, it must also be stated that it is a matter of urgency, for example because the vessel in the matter at hand is leaving the Dutch jurisdiction any time soon.

 

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 and no rights can be derived from it.

Sub a of the BIMCO Standard Dispute Resolution Clause 2017 starts with: ‘This Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London [..]. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) [..]’.

Parties to a standard BIMCO time, voyage, slot or bareboat charter often opt for sub a, even where the Owners and Charterers are not based in England. Once a claim is awarded, and the Respondent does not voluntarily comply with the Arbitral Award or the Claimant is, depending on the conditions, entitled to demand payment under a guarantee (e.g. the Rotterdam Guarantee Form 2008) or security deposit, the Claimant may wish to proceed with the enforcement of the Arbitral Award against assets of the Respondent outside the country of its Seat Of Arbitration. In the Kingdom of the Netherlands leave to enforce the Arbitral Award must be granted by the ‘exequatur’ court. The following is an outline of various aspect relating to the exequatur procedure of foreign Arbitral Awards in the Netherlands.

 

General comments on the exequatur procedure on foreign Arbitral Awards

A distinction must be made between (I) an Arbitral Award rendered in a foreign State to which a treaty concerning recognition and enforcement is applicable (e.g. the New York Arbitration Convention 1958) as mentioned in article 1075 Dutch Code of Civil Procedure (DCCP) and (II) when no treaty concerning recognition and enforcement is applicable (article 1076 DCCP).

The New York Arbitration Convention 1958 (Convention) contains regulations regarding the recognition and enforcement of Arbitral Awards. It follows from Art. III of the Convention that: ‘There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.’. The ‘onerous conditions’ mentioned in art. III do not relate to the substantive provisions for recognition and enforcement (these are determined solely by the Convention itself), but concern procedural provisions on recognition and enforcement, according to the Dutch Supreme Court.

For an application to which no treaty is applicable these provisions can be found in article 1076 DCCP.

Furthermore, for both grounds most of the formalities required for the enforcement procedure of foreign judgements (Article 985 et seq. DCCP) and the conditions for the contents of a petition in general (Article 261 et seq. DCCP) apply.

It is recommended to invoke both grounds in the application for an exequatur. The application for an exequatur must be submitted by a lawyer with rights of audience before the Dutch courts. The Dutch Court of Appeal is subject-matter competent to hear the application for an exequatur of a foreign Arbitral Award. The application can be challenged by the respondent (Articles 1065 sub 1, 1068 sub 1 and 1056 DCCP). If the Respondent fails to appear in the exequatur procedure, the summons shall be served by a bailiff. The applicant shall furnish the court before or at the hearing with written evidence that the summons has been served.

Ex articles IV sub 1 of the Convention and 1076 sub 1 DCCP the application must be accompanied by a duly authenticated original award or a duly certified copy thereof and the original Arbitration Agreement or a duly certified copy thereof.

 

Koksokhimtrans LTD versus Cool Consultancy B.V.

A dispute arose between a Dutch company and a Russian company concerning damage suffered under a Charterparty. The Charterparty provided for English law and arbitration. Arbitration proceedings were commenced in accordance with the terms of the Charterparty. The Dutch Charterers did not make an appearance in the arbitration proceedings. After the claim was awarded against the Dutch Charterers, the Russian company (the Applicant) had requested, pursuant to Article 1076 DCCP, leave to enforce the English Arbitration Award in the Netherlands. The Dutch Charterers did not make an appearance in the exequatur procedure.

After the petition was filed, the Court of Appeal ’s-Hertogenbosch gave the Applicant the opportunity to provide (I) a duly authenticated original or a certified copy of the Arbitration Award as well as (II) a statement that the printed email exchange, which contained the alleged Arbitration Agreement, was authentic and complete. The Applicant failed to fulfil the latter condition. In its final decision, the Court of Appeal found that the Arbitral Award was the original Arbitral Award. However, the Court of Appeal rejected the application, because it was not able to determine whether the printed email exchange was authentic and complete. The Court of Appeal considered as follows. The Applicant submitted an affidavit from an employee who worked in the IT department of the law firm that handled the case on behalf of the Applicant. According to the Court of Appeal, this was not an independent IT expert. Furthermore, the employee’s statement was conditional in nature and did not exclude manipulation of the email which contained the alleged Arbitration Agreement. In addition, no explanation was given for the time difference between the time of sending and receiving of the email in the matter at hand and which contained the alleged Arbitration Agreement. According to the Court of Appeal, the methodology proposed in the ‘International Council for Commercial Arbitration’s 2011 ICCA’s Guide to the Interpretation of the 1958 New York Convention: a Handbook for Judges’ had not been complied with. The Court of Appeal was not able to determine that the signatures were electronically reliable and that there had been an effective exchange of electronic communication between the parties. Therefore the Applicant failed to provide evidence to the Court of Appeal that there was a valid Arbitration Agreement between the parties and the Court of Appeal rejected the application. Despite an appeal, the decision of the Court of Appeal was upheld by the Dutch Supreme Court.

 

Conclusions

The conditions for enforcement need to be strictly adhered to when seeking enforcement in the Netherlands of foreign Arbitral Awards. An Arbitration Agreement concluded by email does not mean that there is an invalid Arbitration Agreement between the parties. However, the court may request the Applicant to prove that the email communication in which the arbitration was agreed between the parties is authentic and complete. It is recommended to safeguard the original Arbitration Award and the original Arbitration Agreement (contained in the standard BIMCO time, voyage, slot or bareboat charter agreement). The Arbitration Award must be duly authenticated in order to prove its authenticity. In case the Arbitration Agreement is contained in an email exchange, it must be shown that the email exchange is authentic and complete (e.g. by means of a statement of an independent IT expert).

 

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 and no rights can be derived from it.

In these times of COVID-19 we see it more and more: parties who sell their goods twice to different buyers, sometimes even before the sellers became actual owners of the goods. This is more common in the commodity trade and especially in the metal trade: at the height of price fluctuations it happens frequently. Unfortunately, in the Netherlands it is not necessarily the case that the owner or the first buyer has the strongest right.   

Although a retention of title until payment is effected can offer a solution, this is not always the case under Dutch law. It is, for example, not of aid where the second buyer is a so-called bona fide acquirer who has purchased the goods in good faith.  

The question of who is entitled to the goods is not regulated internationally. Each country has its own laws under which that question is to be answered. As a matter of Dutch private international law, this question is answered under the law of the State where the goods are located at the relevant time. Therefore, where the goods are located in the Netherlands, a Dutch court will in principle apply Dutch law to this question.   

Dutch law provides that a sale to a bona fide acquirer cannot be challenged on the ground that the seller lacked the power of disposition. In other words, despite the fact that seller did not have the power to dispose of the goods, the bona fide buyer who was unaware of the lack of power will be protected. However, this only applies where the buyer obtained possession of the goods i.e. where the goods were delivered to that buyer in accordance with the law.  In such case a second buyer will still obtain ownership.  

Under Dutch law, delivery can also take place via a third party, for instance the party where the goods are located. This is based on an agreement, i.e. the agreement that the goods located at the third party will henceforth be held by that third party for the buyer. That agreement is sealed, and delivery is a fact, if the agreement is either communicated to the relevant third party or if that third party acknowledges the agreement. In Dutch law this form of delivery (which stems from Latin law) is called a delivery longa manu (Latin for: the long hand). Traders and warehouse operators who read this might immediately think of the traditional warehouse release: the warehouse holds the goods for party A and will usually only release them to party B by means of a declaration of release, on instruction of party A. One would think that as long as this release is not there, the buyer acting in good faith will not obtain the goods as delivery would not have taken place. In 2017, the Court in preliminary relief proceedings in the District Court of Rotterdam took a different view.

The case was as follows: Party A had sold a consignment of chocolate subject to retention of title to party B. B had left part of the cargo unpaid, but had already sold the entire cargo ex-warehouse Rotterdam to party C.  In Rotterdam, notwithstanding A’s retention of title, the cargo was stored for B. B had informed the warehouse that the cargo could only be released to C after C had paid for the cargo. C actually paid, but B did not acknowledge that payment. It would go too far to explain why here, suffice to say here that there was an e-mail exchange between B, C and the warehouse in which B stated that as far as B was concerned, the cargo had not yet been paid for and that for this reason B could not instruct the warehouse to release the goods to C. C in its turn informed the warehouse with a copy to B that C did pay for the cargo and considered itself to be the owner of the cargo. C placed an arrest on the cargo and claimed its release to C in summary proceedings before the Rotterdam Court. The warehouse was also involved in the proceedings and claimed in these proceedings that it kept the cargo for B and would not release the cargo until B would instruct it do so, or at the court’s order.    

As indicated above, a delivery longa manu is sealed by a communication from the parties to that effect to the third party holding the goods, who then has to hold it for the new acquirer or by the acknowledgment of the relevant third party of the agreement between parties for the third party to now hold the goods for the new acquirer. The Judge read in B’s instruction to the warehouse to not deliver the cargo to C until the latter had paid together with C’s email to the warehouse that the latter had paid, the notification referred to above. Thus, the Judge found that the goods had been delivered to C longa manu and that C had indeed become a bona fide acquirer who was to be protected against B’s lack of power of disposition. The cargo had to be handed over to C and A was left empty handed, despite of its retention of title.  

In the absence of an appeal and substantive proceedings, we will not know whether the judgment of the Court in preliminary relief proceedings would have been upheld on all points. It is clear, however, that the first seller would do well to instruct the warehouse to keep the goods for the duration of the retention of title for the first seller and that one has to be careful with notifying the warehouse of the conditions agreed with a purchaser for the release, if those conditions have not yet been met. Such to prevent that you are left unpaid and without your goods.     

We handle (inter alia) items such as the above and can assist if needed.  

Caland Advocaten   

Cherry Almeida |+31(0)10-217727 | +31(0)624820047 | almeida@caland.nl   

(published 15 May 2020)

Practice shows that the United Nations Convention on Contracts for the International Sale of Goods (CISG) regularly remains unknown to contracting parties. A recent judgment of 06 November 2019 by the District Court Noord-Nederland (https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBNNE:2019:4743) is an example of such.

A Belgian company (‘the Buyer’) purchased a state of the art ‘LED screen’ from a Dutch company (‘the Seller’) for its new office building. The contract between the parties provided that the Seller was to install the LED screen at the premises of the Buyer. To this contract the Seller’s general terms & conditions applied. The LED screen was delivered in parts at the premises of the Buyer. According to the Buyer the LED screen was not in conformity with the contract. When the Seller also failed to install the LED screen timely, the Buyer gave the Seller written notice in which the Buyer declared the contract null and void. Subsequently the Seller promised to install the LED screen ultimately before a specific date and considered the notice in which the Buyer declared the contract null and void as withdrawn. However, the Seller again did not keep its promise. The Buyer therefore gave the Seller further notice in which the Buyer declared the contract null and void and served a writ to the Seller to appear at the District Court Noord-Nederland to pay back the purchase price of the LED screen.

The Buyer justified its claim to declare the contract null and void on four legal grounds: (1) the LED screen was not in conformity with the contract, (2) no physical installation had taken place, (3) the software of the LED screen was not installed and (4) the mere lapse of time in which the software and physical installation of the LED screen had not taken place.

The CISG applies in general to contracts of sale of goods between parties whose places of business are in different states that are a party to the CISG, such as the Netherlands and Belgium. However, the Seller argued that the CISG was not applicable on two grounds: (1) the CISG was excluded due to the choice for Dutch law in the general terms and conditions and (2) the contract between the parties had to be considered as a contract for services and not as a contract for the sale of goods. The District Court ruled that (1) the mere choice for Dutch law in the general terms and conditions does not mean that the CISG is excluded and (2) that the CISG only does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. In the matter at hand it was clear from the invoice of the Seller that only a small part of the contract consisted of labour or other services. Hence, the CISG applied to the contractual relationship between the parties and the case was further assessed by the District Court on the basis of the CISG.

The District Court further considered that the promise of the Seller to install the LED screen before a specific date is a strict deadline. The District Court based its decision on judgments of courts from Switzerland, Germany and the Netherlands. Therefore the second notice in which the Buyer declared the contract null and void was valid. Both parties were discharged from their obligations under the contract. This means that the Seller has to pay back the purchase price to the Buyer and the Buyer needs to return the LED screen back to the Seller. This return should take place at the premises of the buyer.

The second notice in which the Buyer declared the contract null and void was key in this matter. It is important before concluding an agreement or in case of a dispute to determine what rights a Buyer and/or the Seller have under the CISG. The assessment whether a contract can be declared null and void and the notice to declare a contract null and void must be considered and drafted carefully.

 

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.

On 16 October 2019 the Rotterdam Court rendered an interesting judgment on the Dutch General Yardconditions “VNSI” (ECLI:NL:RBROT:2019:8389).

The Owners of a 70 meter long wooden replica of the Ark of Noah contracted with a Dutch shiprepair yard for some repairwork. To the repaircontract the Dutch General Yardconditions “VNSI” applied.

During the execution of the work fire broke out causing severe damage to the vessel, for which the ship owners held the repairyard liable.

Art. 13.2 of the Dutch General Yardconditions “VNSI”read as follows:

The yard shall not be liable for damages, except if and insofar as the yard shall inflict damages intentionally or through gross negligence. However, except in the case of intent on the part of the yard, liability of the yard for loss of profit, consequential or indirect damages is, at all times excluded. In this clause gross negligence or intent of the yard means gross negligence or intent of the yard’s officers and of managing officials identifiable with the yard.

This art 13.2 is clear: in principle the repairyard is not liable unless the damage has been caused intentionally or through gross negligence.

The Owners did not argue that the damage had been caused intentionally, but did argue that the damage had been caused through gross negligence. The court held that the Owners did not succeed in proving the gross negligence (which is indeed often difficult under Dutch law).

Therewith there remained for the Owners to argue that, shortly put, under the principles of reasonableness and fairness the repairyard should not be allowed to rely on the exoneration contained in art. 13.2 of the Dutch General Yardconditions “VNSI”.

There is Dutch case law in which it has been held, shortly put, that a party which is in principle entitled to invoke a (contractual) right, can nonetheless be denied such invocation where, in the given circumstances of the case, such would conflict with the Dutch principles of fairness and reasonableness.

In the subject judgment of NOAH’s ARK, the Rotterdam Court referred to its earlier judgment of 13 December 2006 (ECLI:NL:RBROT:2006:BD6181) in which it had held in a similar case, that invocation by the yard of art. 13.2 (in that case) did not conflict with the principles of fairness and reasonableness.

In that earlier judgment the Rotterdam Court held that invoking art. 13.2 Dutch General Yardconditions “VNSI” was not unreasonably onerous for the Shipowner:

  • since both the repairyard and the Owners were professional parties working in the shipping industry in which using general terms and conditions is common practice;
  • since the Dutch General Yardconditions “VNSI” are used by many Dutch ship repairyards;
  • since the repair contract clearly refers to the Dutch General Yardconditions “VNSI” which had been printed on the reverse side of the contract;
  • the Owners could have read the conditions and could have commenced negotiations with the repairyard in an effort to exclude art. 13.2 from applicability;
  • since an exclusion / limitation of liability is not unreasonable taking into account the possible liability and the price payable to the yard for the repair work;
  • the Owners were insured themselves against the suffered damage.

Since this remaining argument failed also, the Rotterdam Court rejected the Owners claims. This case confirms that in principle Dutch shipyards are able to rely on the Dutch General Yardconditions “VNSI” if applicable.

(Mr Richard van ‘t Zelfde, publication 06.11.2019)

The Dutch courts regularly deal with cases in which shipowners / charterers hold stevedores liable for damage to a vessel.

In some cases, the liability of the stevedore can be based (quite easily) on provisions of the Terminal Service Agreement in place with the stevedore.

In other cases, in particular when having to base the claim on tort (f.i. where the claiming party does not have the contract with the stevedore) the claim can prove more difficult to pursue, one reason being that it is a principal of Dutch law that “careless or otherwise unlawful acts cannot be deduced automatically from the mere fact of damage to property.”

Put more simply: where it is established that the stevedore caused damage to a vessel, the damage itself does not automatically prove that the stevedore has (also) commited a tortious act and therefore does not automatically lead to his liability for the damage.

A claimant will need to state and prove that the stevedore committed a tortious act for the tort claim to be able to succeed.

This was (first) held by the Dutch Supreme Court in its longstanding judgment HR 06.03.1953, NJ 1953/791 NICOLAS PATERAS and has been upheld in much lower case law ever since, also earlier this week by the Rotterdam (Maritime) Court in its judgment of 30.10.2019 (ECLI:NL:RBROT:2019:8469): “Now that Peak Shipping has not disputed that discharge was performed in the usual machinal manner, the crane operator will only be deemed to have acted unlawfully if he has not proceeded with the care that can be reasonably expected of him during machinal unloading.”

Being able to prove that a toritous act has been committed, is a factual question and it might be necessery, for instance, to (preliminary) hear witnesses such as the cranedriver and crewmembers to obtain evidence. Also the instruction of surveyors is often necessary.

In the above recent case, the Rotterdam Court rejected the claims by the vessels’ charterers, shortly put, on the grounds that the charterers had not sufficiently proven their standpoint that the stevedore committed a tortious act.

Mr Richard van ‘t Zelfde (posted on 03.11.2019)