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What maritime risks must be covered under the law and what is the mandatory level of coverage?
Pursuant to the Nairobi International Convention on the Removal of Wrecks 2007, wreck removal coverage must be obtained for ships in excess of 300 gross tonnes. The Bunker Oil Pollution Convention 2001 and Article 8:645 of the Civil Code require ships in excess of 1,000 gross tonnes to have insurance or other financial security to cover the risk of bunker oil pollution. For ships carrying more than 2,000 tonnes of oil in bulk as cargo, the coverage requirement is based on the implemented Convention on Civil Liability for Oil Pollution and Damage 1992.
Insurance or other financial security for wreck removal and bunker oil pollution should cover the liability of the registered owner for damage in an amount equal to the limits of liability under the London Convention on the Limitation of Liability for Maritime Claims (LLMC). The Convention on Civil Liability for Oil Pollution and Damage provides limits for the transport of oil. These requirements also apply to foreign-flagged ships calling at Dutch ports.
Further, based on EU Directive 2009/20/EC, the owner of a Dutch-flagged seagoing vessel or a visiting foreign-flagged vessel with a gross registered tonnage of 300 or above must have indemnity insurance covering maritime claims subject to limitation under the London Convention on the Limitation of Liability for Maritime Claims. Claims for general average, salvage and oil pollution within the meaning of the Convention on Civil Liability for Oil Pollution and Damage are excluded.
Pursuant to the EU Passenger Liability Regulation (392/2009), a ship that is licensed to carry more than 12 passengers should have coverage for its liability in respect of the death of or personal injury to passengers. The limit of compulsory insurance or other financial security is at least 250,000 special drawing rights per passenger.
Insurable risks and ships
What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?
The general provisions for insurance agreements also apply to marine insurance agreements. Dutch law does not provide for a separate marine insurance regime. As not all provisions are mandatory, parties may agree to apply other rules in insurance contracts.
Other risks covered by marine insurance contracts include:
- hull and machinery damage;
- protection and indemnity;
- general average;
- cargo interest;
- collision; and
What is the legal regime governing marine insurers’ subrogation rights?
If an insurance contract is subject to Dutch law, the insured’s claims for compensation against third parties on account of a loss suffered, other than a loss derived from an insurance agreement, will pass by means of subrogation to the insurer to the extent that the insurer has compensated that loss, regardless of whether a legal obligation exists (Article 7:962 of the Civil Code).
Collision and pollution
What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:
The Netherlands is a party to the Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels 1910 (for seagoing vessels) and the Geneva Convention for Inland Waterway Navigation 1960. The conventions are directly applicable and, in addition, have been incorporated into the Civil Code. The Netherlands is also a party to the International Regulations for Preventing Collisions at Sea 1972. The owner of a ship that was at fault for a collision must compensate any damage caused (Article 8:544 of the Civil Code). Pursuant to the Supreme Court, a ‘fault of a vessel’ (under Articles 3 and 4 of the Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels and Article 8:542 of the Civil Code) exists if damage results from:
- a fault of the owner of the ship or a person for whom the owner is liable, such as its employees or independent contractors acting within the scope of their employment;
- a fault of a person performing work in the interest of the ship or the cargo (eg, a fault by stevedores appointed by charterers); or
- an (inherent) defect of the ship (Casuele v De Toekomst, Supreme Court, 30 November 2001, NJ 135/143).
As legal presumptions of fault have been abolished, the burden of proof lies with the claimant.
Under Article 8:541 of the Civil Code, collision rules also apply to allision cases (ie, when damage has been caused by a ship without a collision between vessels). As a special rule of evidence, Article 8:546 of the Civil Code states that a ship which collides with anything that is not a ship is liable for damage if the object hit is adequately lit, fixed or fastened at an appropriate place, unless the shipowner proves that the allision was not its fault (see KF Haak and R Zwitser, Van haven en handel, Deventer: Kluwer 2009, pp 219 to 226). The broad definition of a ‘ship’ under Dutch law provides for a large scope of applicability of collision rules. A ‘ship’ is defined as an object, not being an aircraft, which is constructed to float.
(b) Oil pollution?
The Netherlands is a party to the Civil Liability Convention 1992 and the International Fire Code 2003, which have been incorporated into the Oil Tanker Liability Act and the Compensation Fund Act. The Netherlands is also a party to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, which has been incorporated into the Civil Code.
(c) Other environmental damage caused by a ship?
The Netherlands is a party to:
- the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways;
- the Revised Convention for Rhine Navigation; and
- the EU Ship Source Pollution Directive (2005/35/EC), implemented through the Act on the Prevention of Pollution by Vessels.
If the protection of the environment is involved, the Water Act may also apply.
What is the legal regime governing salvage and general average?
The Netherlands is a party to the International Convention on Salvage 1989, which has been incorporated into the Civil Code. Under Article 8:563(3) of the Civil Code, salvage remuneration is due exclusively from the shipowner. However, parties can agree otherwise. General average is partly regulated, including as regards definitions of:
- the relevant parties for general average purposes;
- time bars; and
- provisions on the confirmation of the adjustment.
Regarding the adjustment, the York-Antwerp Rules 1994 and the Rhine Rules 1979 are incorporated in Articles 8:613 and 8:1022 of the Civil Code. However, parties may agree to apply other adjustment rules in a contract of carriage.
Places of refuge
What framework governs access to places of refuge for ships in distress?
The Netherlands is party to the United Nations Convention on the Law of the Sea (UNCLOS). All UNCLOS members are bound to follow the International Maritime Organisation regulations for places of refuge and the EU Operational Guidelines on Places of Refuge.
What rules and procedures apply to the removal of wrecks in your jurisdiction?
The Netherlands is a party to the Nairobi International Convention on the Removal of Wrecks 2007, which was transposed into Dutch law by the Maritime Accident Response Act. The act applies to wrecked seagoing vessels (and lost cargo) located in the Dutch exclusive economic zone and inland waters. The Wrecks Act applies in Dutch territorial waters to the removal of wrecks and lost cargo and also covers wrecked inland waterway vessels.
Under what circumstances can the authorities order removal of wreckage?
The Maritime Accident Response Act gives the state authority to order the registered owner of a seagoing vessel that is wrecked or stranded in the Dutch exclusive economic zone or inland waters and that causes danger to shipping to remove the vessel or have the vessel removed. When determining whether a wreck poses a hazard, the act refers to Article 6 of the Nairobi Convention (EHP Brans and HJSM Langbroek, “Het Wrakkenverdrag en de Wet bestrijding maritieme ongevallen van opruimplicht tot kostenverhaal. Een analyse”, TVR, 2016/3, p 70). Under the Wrecks Act, Dutch authorities have the authority to:
- declare that a wreck falls under the act;
- remove such a wreck; and
- recover the costs from the parties concerned or from the salvaged wreck or cargo revenues..
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