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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
In respect of carriage under a bill of lading, the Netherlands is a party to the Hague-Visby Rules, including the Special Drawing Rights Protocol. The Hague-Visby Rules have direct effect, if the requirements set out in Articles I and X have been complied with (Article 8:371(3) of the Civil Code). The Netherlands has also incorporated the Hague-Visby Rules into Book 8 of the Civil Code (Articles 8:382 to 386 and Article 8:1712).
In respect of inland waterway carriage, the Netherlands is party to the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI).
What is the official extent of the carrier’s responsibility for goods?
The Civil Code provides a regulation for time and voyage charters, including provisions on liability, laytime and demurrage. However, these rules are not mandatorily applicable. In principle, contractually agreed provisions take precedence.
Pursuant to Article 8:381 of the Civil Code, the carrier in a contract of carriage under a bill of lading must exercise due diligence, before and at the commencement of a voyage to:
- make the vessel seaworthy;
- man, equip and stock the vessel adequately; and
- render fit and bring into good condition the holds, cold-storage and freezing chambers and all other parts of the vessel into which items are loaded in order to be stored, carried and preserved.
Aside from several exceptions (set out in Articles 8:383, 8:388, 8:414(4) and 8:423 of the Civil Code), in a contract of carriage under a bill of lading the carrier must load, handle, stow, carry, look after and discharge cargo adequately and prudently.
For inland waterway carriage, the CMNI provides that the carrier is liable for damages resulting from loss or damage to the goods caused between the time when they are taken over for carriage and the time of their delivery or resulting from delay in delivery, unless it can be shown that the loss was due to circumstances which a prudent carrier could not have prevented and the consequences of which could not have been averted (Article 16).
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Pursuant to Article III-8 of the Hague-Visby Rules and Article 8:382 of the Civil Code, a carrier is not entitled to limit its liability for carriage under a bill of lading as provided in the Hague-Visby Rules and the Civil Code. Provisions which intend to further or otherwise limit liability are null and void. This implies that parties, in principle, are entitled to contract out any legal provisions governing carriage of cargo liability for carriage under sea waybills and charter parties.
Article 25 of the CMNI provides that any contractual stipulation intended to exclude, limit or increase a carrier’s liability other than as allowed by the CMNI is null and void.
Title to sue
Who has title to sue on a bill of lading?
Only the lawful holder of a bill of lading has title to sue for a bill of lading and is entitled to claim damages. This applies even if the bill of lading holder has not suffered any damage (Article 8:441(1) of the Civil Code).
What is the time bar for cargo claims?
The time bar under any contract of carriage of goods by sea and inland waterways, including charter parties, is one year (Articles 8:1711 and 8:1712 of the Civil Code).
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
Under Dutch law, the ‘carrier’ is the shipper’s contractual counterparty.
The Civil Code contains a separate rule to determine the carrier under a bill of lading. Pursuant to Article 8:461 of the Civil Code, more than one person can be identified as a carrier under a bill of lading and be sued for cargo claims. The ‘carrier’ under a bill of lading can be the person:
- who signed the bill of lading;
- on whose behalf the bill was signed; or
- whose form was used for the bill.
If a master bill of lading has been issued:
- the owner, or if the master is in the service of a bareboat charterer, the bareboat charterer; or
- the last time charterer or voyage charterer in the chain of contracts of carriage who concluded a contract of carriage with the consignor.
Only the owner or bareboat charterer – with the exclusion of other carriers under a bill of lading, if any – is regarded as bill of lading carrier if such owner or bareboat charterer is clearly identified (name and address) in the bill of lading.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
A ‘peril of the sea’ is regarded as a sea event that causes unavoidable damage. This means that a competent carrier would not reasonably have been able to prevent the damage caused by the event. The Supreme Court has set a high threshold for bad weather to give rise to a valid perils of the sea defence.
Pursuant to Article 8:383(1) of the Civil Code, in the case of carriage under a bill of lading, neither the carrier nor the ship is liable for loss or damage arising or resulting from the vessel’s unseaworthiness, unless caused by a want of due diligence on the part of the carrier to ensure that:
- the ship is seaworthy and properly manned, equipped and supplied; and
- the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried are fit and safe for their reception, carriage and preservation in accordance with Article 8:381(1) of the Civil Code.
Other defences that a carrier can invoke, regardless of whether a bill of lading has been issued, can be found in Article 8:383(2) of the Civil Code, which is a Dutch translation of Article IV(2) of the Hague-Visby Rules and covers navigation errors, fires, perils of the sea, acts of God, inherent vice and force majeure..
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
Articles 8:362 and 8:366 of the Civil Code include protection for agents and other third parties against cargo claims. Generally speaking, agents or third parties can invoke the same defences and liability limitations as carriers.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Carriers are not liable for damage or loss that results from deviating from the agreed route if such deviation took place in an attempt to save life or property at sea or is otherwise reasonable (Article IV(4) of the Hague-Visby Rules and Article 8:383(4) of the Civil Code).
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
Shippers and their agents or servants are liable for damages caused only by their action, fault or negligence (Articles IV(3) of the Hague-Visby Rules and Article 8:383(3) of the Civil Code). Further, shippers are not liable for damages caused by circumstances that a prudent shipper would have been unable to avoid and consequences which they were unable to prevent. Apart from the aforementioned circumstances, carriers can claim for damages that result from a shipper’s failure to meet its obligations.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
Article 8:41 of the Civil Code provides that in a multimodal carriage contract, each stage of the carriage is governed by the legal rules applicable to that stage. If the combined transport operator is liable for total or partial loss resulting from damage, a delay or any other damaging fact and it has not been ascertained where the damaging fact arose, its liability will be determined according to the juridical rules which apply to the part or parts of the transport where this fact may have arisen and from which the highest amount of damage results.
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