Rotterdam Court decision
Appeal court decision
A Netherlands Appeal Court decision has overturned a ruling of the Rotterdam Court in a dispute involving entitlement to limit liability under the Strasbourg Convention on the Limitation of Liability in Inland Navigation.
Eighty containers were being transported on board the push barge Confidence from the Europoort transhipment terminal at the port of Rotterdam to the Uniport multipurpose terminal at Waalhaven harbour in the urbanised area of the port. The Confidence, which had no propulsive power of its own, was being pushed by another barge, the Calypso. During discharge of the cargo, 40 containers fell off the Confidence.
Confiance, the owner of both barges, requested the Rotterdam Court to limit liability and subsequently established a separate property fund for the Confidence and the Calypso. In their alleged capacity as (sub)charterers of both barges, APM and Uniport Terminals also requested the Rotterdam Court to limit their liability and to order that the separate property funds for both barges be established on their behalf.
The transportation of the containers was performed on the basis of a skeleton agreement between APM and Uniport Terminals, pursuant to which Uniport agreed to provide a barge service between the Rotterdam-Europoort transhipment terminal to the Uniport terminal. Uniport, in turn, asked a container barging company, BLT, to provide a barge for this purpose; BLT duly chartered the Confidence and the Calypso from Confiance, placing this pushed convoy at APM and Uniport's disposal. The skeleton agreement between APM and Uniport did not nominate the barge which would perform the transport.
Under Dutch law, a push barge and a pushed barge are considered to be two separate vessels. Therefore, Confiance and BLT disputed APM and Uniport's right to limit liability, as APM and Uniport were allegedly not the (sub)charterers of the Calypso.
The Rotterdam Court found that the fact that the Calypso was used to move the Confidence loaded with containers did not mean that the (sub)charterer of the Confidence was also to be regarded as the (sub)charterer of the Calypso. As there was no indication that APM and Uniport were involved with the Calypso, the court decided that APM and Uniport could limit liability only in respect of the Confidence. The court held that the mere fact that a push barge is used to transport containers on board a pushed barge does not lead to the conclusion that the (sub)charterer of the pushed barge is automatically to be regarded as the (sub)charterer of the push barge. APM and Uniport duly appealed this decision.
The appeal court noted that under Article 1 of the Strasbourg Convention on the Limitation of Liability in Inland Navigation, the 'shipowner' (ie, the owner, charterer, manager or operator of the vessel) is allowed to limit liability. It added that it was also important to take into account the fact that this article originates from Article 1 of the 1976 Limitation of Liability for Maritime Claims Convention.
The appeal court deemed that the term 'charterer' under the Strasbourg Convention encompasses bareboat, time and voyage charterer. It further noted that there is no reason to distinguish between the charterer and the sub-charterer with respect to time and voyage charters. According to the appeal court, in order to be the charterer of a vessel, it is not necessary for the vessel to be specifically mentioned in the charter agreement.
It was undisputed that the pushed convoy Calypso/Confidence was chartered to BLT and that BLT thereafter placed the pushed convoy at Uniport's disposal for the transportation of APM containers. With the pushed convoy placed by BLT at Uniport and APM's disposal, the sub-charter of the pushed convoy was concluded in much the same way as it would have been had the charter involved a single vessel with its own propulsion.
The appeal court held that there was no good reason to make a distinction between the Calypso and the Confidence with respect to the sub-charter. It therefore found that APM and Uniport were considered to be the (sub)charterers of both the pushed barge Calypso and the push barge Confidence, and were thus entitled to limit liability under the Strasbourg Convention for both vessels.