With a total TEU of 14,512,661 incoming and outgoing containers by sea in 2018, the container segment pushed the port of Rotterdam to a new high. This trend continued in 2019. An ever increasing number of these are temperature controlled containers to transport perishable cargo. Temperature controlled containers are commonly referred to as ‘reefer containers’. When perishable cargo appears to be damaged upon arrival, or such is feared, cargo interest may wish to obtain the data of the reefer container in order to determine whether the cargo damage arose during the carriage. This article will set out the legal tools for cargo interests to obtain such data without voluntary cooperation of the carrier pursuant to Dutch civil law.
There are various types of reefer containers, such as the Controlled Atmosphere (CA) containers. CA containers are commonly used to transport fruits and vegetables, delaying the ripening process and to increase the post-harvest life of the fruits and vegetables. The basic principle of the CA container is mainly to remove the oxygen from the air and to replace it with a different type of gas, in most cases CO2. During transport i.a. the temperature, oxygen- and carbon dioxide levels in the CA container are monitored and the data saved on a data carrier, which is normally located near the control unit of the CA container. With this control unit the settings of the CA container can be adjusted. CA containers are often provided by the carriers, so that the data remains in custody of the carrier. When cargo is delivered damaged or is feared to be damaged, the cargo interests and the carrier usually both instruct their own surveyor. It is common in the Netherlands that surveyors try to make mutual agreements about the time and place of a survey to be conducted. To ascertain the cause of the damage the container data can be of importance. A request for this data is often refused by the carrier. Without knowing the whereabouts of the container the data can practically never be retrieved anymore and furnishing of proof will be more difficult for cargo interests. If cargo interests directly booked the CA container with the carrier, they may be able to track and trace the container with the use of a booking number and the B/L. If the container can be located, cargo interests may be able to obtain the data with the legal tools as will be discussed below. On 2 October 2019 the Port of Rotterdam launched an online container track & trace app for shippers and forwarders to see where their containers are located at any given moment.
It is worth mentioning that Maersk made their data transparent as from last year. Shippers can monitor and download these data. To my best knowledge, till date other carriers have not done so. Therefore the question remains topical what cargo interests can do to legitimately obtain such data.
Electronic data loggers
A shipper may decide to place electronic data loggers in the container. Electronic data loggers are used when transporting perishable cargo, such as fruits and vegetables, in a temperature controlled environment (i.e. a reefer container). The cost of using a recorder is negligible. The recorded data is useful in providing cargo interests with data as evidence against the carrier. However, carriers may argue that the data logger was placed in an unsuitable location in the container. When choosing where to place these loggers, care should be taken to ensure that they are placed in temperature-critical locations in the container so that they measure the actual cargo temperature.
Pre-judgment order to preserve data
On 13 September 2013, the Dutch Supreme Court rendered 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. Data can be arrested pursuant to an arrest order. The actual arrest of the data in itself does not grant the arrestor the right to the seized data. The arrest is meant for preservation purposes only. A legal action to obtain the evidence must follow. The arrest application needs to be submitted to the Judge in Interlocutory Proceedings. Pursuant to Article 843a of the Dutch Civil Code of Procedure the Judge will have to assess:
- whether the petitioner has a legitimate interest;
- whether the application concerns specific documents and;
- and whether there is a legal relationship between the parties.
It is an ex-parte procedure. The applicant needs to demonstrate i.a. 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. 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 carrier is unwilling to hand over the data, the bailiff must include this in its report of seizure. The judge has the power to impose an incremental penalty payment in the event the carrier does not cooperate. In case the Dutch court is competent in the substantive proceedings, the court may at its own discretion proceed to a final judgment if the data is not provided by the carrier. In most cases that would result in a judgment against the party who has failed to provide the data. Each party always has the opportunity to apply for a summary order for withdrawal of a pre-judgment attachment.
Maritime court surveyor
Dutch law provides parties an adequate legal basis to request the court to appoint a court surveyor, which can be an effective fact finding tool and should balance the unequal position from an evidential point of view between parties in maritime matters. In practice this tool is not often made use of due to concerns of different nature. A working group has made joint investigations to address these concerns and to ensure that the court surveyor will become a more effective tool for fact finding.
The articles 8:494 – 8:495 Dutch Civil Code (DCC) provide the legal basis to appoint a maritime court surveyor. Article 8:494 DCC gives the right to carriers and cargo interests to request the Judge in Interlocutory Proceedings to have a judicial survey held into the condition or the state of the cargo. A petition can be filed at the time of the delivery of the cargo.
Article 8:495 DCC gives the right to carriers and cargo interests to request the Judge in Interlocutory Proceedings to have a judicial survey held into the cause of the condition the cargo is in. A petition can be filed at the time of the delivery of the cargo and even prior to delivery of the cargo, when loss of or damage to cargo is (merely) suspected.
Similar provisions can be found in the articles 8:958 – 8:960 DCC for carriage of goods by inland waterways and 8:1134 – 8:1135 DCC for road transport.
Production of documents in civil proceedings
Dutch law does not provide for general discovery of documents during trial. However, article 22 of the Dutch Code of Civil Procedure provides that in civil proceedings, the court may order a litigant party to submit certain documents (e.g. the data of the reefer container) it deems relevant to the case at hand. A party may only refuse to do so for compelling reasons. The court will decide whether the reasons cited are justified and if not, it may draw conclusions from this refusal as it deems fit.
Timing can be key when applying for a pre-judgment order to preserve data or requesting the court to appoint a court surveyor. Given the fact that containers are sometimes shipped again already on the day of arrival it is recommended to act quickly.
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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.