The Rotterdam District Court recently determined that the preliminary survey of cargo on board a vessel may, under certain circumstances, qualify as a provisional measure within the meaning of Article 35 of the EU Brussels I Regulation (1215/2012).
When cargo on board a vessel sustains damage, or when parties interested in the cargo have reason to believe that this may be the case, cargo interests and the vessel owner have traditionally each appointed a surveyor to investigate the cause and extent of such damage. This would usually take place at the vessel's first port of call after the incident giving rise to the damage. Ideally, the surveyors appointed would issue a single joint survey report, which would serve as the basis for further negotiations to settle any possible claim.
However, in recent years, shipowners have seemingly been less willing to cooperate with surveyors appointed on behalf of charterers and cargo interests. This calls into question the potential options available to parties to:
- make the necessary evidence available; and
- obtain access to this evidence, as well as the vessel and crew, in order to investigate the cause and extent of cargo damage.
Under Dutch law, there are several possible ways to achieve these objectives, including a so-called 'conservatory attachment' of documents on board the vessel to ensure that no evidence is lost. However, a bailiff may attach only the documents indicated in the leave granted by the court. Separate disclosure proceedings (Article 843a of the Code of Civil Procedure) are necessary for the documents to be provided to the party requesting the attachment.
There is also the possibility to file a petition requesting:
- a preliminary hearing of witnesses;
- a preliminary survey by a court-appointed surveyor; or
- a preliminary inspection of the place where the damage might have occurred (Article 202 of the Code of Civil Procedure).
Such a hearing, survey or inspection takes place before proceedings on the merits have begun, in order to establish the facts of the matter and assess whether there actually is a claim. However, the court may allow for such a preliminary hearing of witnesses, preliminary survey or inspection only if it is established that it has jurisdiction to hear the claim on the merits (Article 203 of the Code of Civil Procedure).
In an EU context, Article 35 of the EU Brussels I Regulation determines that an application for a provisional measure which may be available under the law of a member state may also be made to a court of that member state even if the courts of another member state have jurisdiction as to the substance of the matter. This means that, if it is determined that a certain measure qualifies as a provisional measure, the court may decide on the matter without jurisdiction as to the merits of the claim.
In a recently published judgment,(1) the Rotterdam District Court determined that a preliminary survey may, under certain circumstances, qualify as a provisional measure within the meaning of Article 35 of the EU Brussels I Regulation if it is established that the measure aims to prevent evidence from being lost. In the case at hand, the court held that the survey did not qualify as such a measure, as the party making the request had indicated that the survey was aimed at obtaining access to witness statements and documents previously attached. According to the court, this cannot be achieved by a court-appointed surveyor who has neither access to these documents nor the right to hear witnesses.
The parties had agreed that the case on its merits was to be decided at arbitration in London. The court decided that, as the survey as requested did not qualify as a measure within the meaning of Article 35, there was no jurisdiction to order the survey.
Recent case law shows that the outcome would most likely have been different if the request had been based on Article 8:494 or 8:495 of the Civil Code. These articles give the carrier – as well as the party entitled to delivery of the cargo – the opportunity to request the court to order a preliminary investigation into the cause and extent of any suspected damage to cargo before, on or immediately after its delivery.
These provisions offer wider possibilities for the way in which a survey is conducted and for the court-appointed surveyor. Further, they do not require the court to establish jurisdiction on the merits before deciding on a request for such an inspection to take place. Article 633 of the Code of Civil Procedure determines that the court at the place where the cargo is located when the request is made has jurisdiction to order the investigation, as provided for in Articles 8:494 and 8:495 of the Civil Code.
Dutch law offers a variety of possibilities to investigate damage to cargo on board a vessel. However, before a petition is filed, careful consideration is necessary to determine the best available option in each specific case.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.