General overview of the exclusion of liability by Terminal Operators in the Netherlands
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.
