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Newsletter

Regelmäßige Teile Spezialisten Smallegange Rechtsanwälte ihr Wissen durch einen Newsletter mit. Im Folgenden sind die Beiträge in chronologischer Reihenfolge.

The OW Bunker group was one of the biggest distributors of bunkers (marine fuel, fuel oil and marine diesel) in the world until November 2014. OW Bunker’s head office was located in Denmark, there was however an office in the Netherlands as well (OW-Bunker Nederland). In November 2014 several OW-Bunker entities have been declared bankrupt. After OW Bunker’s bankruptcy several vessels that had received bunker fuel through OW Bunker became subjects of detachments (ship arrests).

Parties can do business together for years without having to think about exactly what they have agreed to with each other. Concerning the delivery of a product, an agreement on the price and delivery time can often be enough as long as both parties fulfil their obligations to deliver and pay the invoice.

In international road haulage it is quite common that there is an extensive contractual chain of carriers who accept a transport order and subsequently instruct a subcontractor to carry it out. Often these carriers are referred to as ‘indirect’, ‘paper’ carriers or NVOCC’s. When during the carrier the goods (such as cigarettes or electronics.) are stolen or damaged, the following legal actions will take place. As a Pavlov reflex all parties (in the chain) who are instructed as carriers will start declaratory proceedings before a Dutch court in which they request that the court declares that they can invoke the CMR limitation of liability of 8.33 SDR per Kg (in German these proceedings are referred to as ‘negative Feststellungsklage’). At the same time, the shipper/cargo interested parties will try to start proceedings before a German court in which they will claim damages from the carrier (in German these proceedings are referred to as ‘positive Leistungsklage’). The obvious problem that occurs is that between the same parties in two different countries court proceedings are pending regarding the same subject. The ‘Lis pendens’ in the EU-Regulation 1215/2012 determines in these matters that the court first seised has jurisdiction. This, in order to prevent conflicting court decisions.

The background behind this ‘contest’, who is the first to start court proceedings, is a follows. Art. 17 paragraph 1 of the CMR Convention stipulates that the carrier shall be liable for damage or loss which occurred during the carriage. The grounds for force majeure are fairly limited. Liability of the carrier is quickly assumed. Art. 23 paragraph 3 of the CMR Convention provides for a limitation of liability of 8.33 SDR per Kg, the CMR limitation. Breach of this limitation is regulated in art. 29 of the CMR Convention. This article stipulates that the carrier cannot invoke the CMR limitation if the damage was caused by willful misconduct or by such default considered as equivalent to willful misconduct in accordance with the law of the court seised (the ‘lex fori’). The consequence is that depending on the country were proceedings are initiated the law applicable on breach of the CMR limitation will change. If proceedings are pending in the Netherlands, Dutch law will apply, and if proceedings are pending in Germany, German law. Under Dutch law, the concept ‘recklessness with the knowledge that such damage would probably result from it’ of art. 8:1108 paragraph 1 Dutch Civil Code is used as the interpretation of art. 29 CMR. The Dutch Supreme Court has in the so called ‘Januari 5th rulings’  introduced a very strict measure for this concept. It is very rarely met, and as a consequence breach of the CMR limitation is considered almost impossible in the Netherlands. The measure of art. 29 CMR under German law is considerably less strict. As a consequence a German court will more often than a Dutch court decide to breach the CMR limitation. The conclusion is that whoever is the first to start court proceedings decides whether or not the carrier will be able to rely upon the CMR limitation, or not.

In certain situations it is imaginable that chapter VI of the CMR convention, provisions relating to carriage performed by successive carriers, allows to avoid the practice described above. This is the result of art. 39 paragraph 1 CMR. This article stipulates that a carrier against whom a claim is made as a ‘successive carrier’ is not allowed to dispute the validity of the payment made by the carrier making the claim, if the amount of the compensation was determined by judicial authority after the ‘successive carrier’ had been given due notice of the proceedings and afforded an opportunity of entering an appearance. This article can have the effect that, under circumstance, the ‘successive carrier’ cannot invoke the CMR limitation.

For long time it has been uncertain when there is ‘successive carriage’. If the CMR Convention is interpreted very strict, it seems that the ‘successive carriage’ is carriage by which the goods and CMR Waybill are passed on from one (actual/physical) carrier to another. In the fairly recent ruling of the Supreme Court Veldhuize/Beurskens  clarity on the concept ‘successive carriage’ was provided. In that matter the contractual chain was as follows. Shipper (A) instructed carrier (B) for carriage from the Netherlands to Germany. (B) subcontracted this assignment to (C) and (C) in its term subcontracted with (D). (D) was the only carrier in this chain who actually took receipt of the goods and CMR waybill. During the carriage the goods were stolen. (B) started court proceedings in Germany against (C). The end result was that (C) was fully liable against (B), and could not invoke the CMR limitation. (C) started court proceedings against its subcontractor (D) before a Dutch court. The Dutch Supreme court ruled that (D) took over the goods and CMR waybill and was there also a successive carrier. Often the case will be that, as in the Veldhuizen/Beurskens case, the actual carrier is also a ‘successive carrier’. ‘Indirect’ or ‘paper’ carriers are not considered ‘successive carriers’ as they did not actually took over the goods and CMR waybill.

In the ruling Veldhuizen/Beurskens the Supreme Court has also decided on a second point of discussion. This is the question whether the ‘successive carrier’ who in accordance with the stipulations of art. 39 CMR had been given due notice of the proceedings and afforded an opportunity of entering an appearance, when he is confronted with a claim can still invoke the CMR limitation. The result of the German proceedings was that in the relation (B) against (C), (C) could not invoke the CMR limitation. The Dutch Supreme court decided that because the criteria of art. 39 CMR were met, and (D) had the opportunity to join the proceedings, (D) also could not invoke the CMR limitation in the Dutch proceedings.

The regulation regarding the ‘successive carriage’ therefore allows that, despite court proceedings are pending in the Netherlands, the German interpretation of art. 29 CMR will still have effect on the outcome of the Dutch court proceedings. The consequence may be that even when an actual, but successive, carrier is the first to start court proceedings in the Netherlands, the end result may be that he cannot rely upon the CMR limitation. For cargo interested parties, but also for ‘indirect’ or ‘paper’ carriers the regulation regarding the ‘successive carrier’ could give the opportunity to fully recover their damage or loss. For actual carriers the regulation regarding the ‘successive carrier’ is something to bear in mind when starting declaratory court proceedings.

1 Dutch Surpeme Court 5 januari 2001, S&S 2001/61 en 2001/62 (Cigna/Overbeek en Van der Graaf/Philip Morris I)
2 Dutch Supreme Court 11 september 2015, ECLI:NL:HR:2015:2528, NJ 2016/219 (Veldhuizen/Beurskens)

Until recently it all seemed like ‘science-fiction’, however, the self-driving truck and the self-sailing ship are now turning into reality. In October of last year the tech company Otto, a subsidiary of ‘taxi-company’ Uber, carried out the first test drive with a self-driving truck. It was a 200 km drive in the state of Colorado, United States. The cargo: 50.000 cans of beer. The driver simply drove to the freeway where after he engaged the system and the software took over for him.

In October 2016 our firm was involved in summary proceedings in which the return and reduction of a bank guarantee was claimed. The facts of these proceedings were as follows. In 2007 Belgian buyers ordered an inland barge with a Belgian shipyard. When the building of the hull was ready it was noted by the buyers that the hull showed several deficiencies. The buyers therefore refused to take delivery of the hull. This eventually resulted in proceedings between the buyers and the shipyard in Belgium.

On 18 January 2017, a new European Regulation enters into force which makes it possible for creditors to freeze bank accounts of non-paying debtors in the whole European Union, with the exception of the United Kingdom and Denmark. It remains to be seen how this “European Account Preservation Order” will work out in practice, but in any event, it is a welcome addition to the procedural toolbox for cross-border debt recovery.

Generally, litigating parties are not obligated to disclose all the information and documents at their disposal to the other party. It is therefore important to be aware of article 843a Dutch Civil Code of Procedure (DCCP). Art. 843a DCCP provides parties with the possibility to lodge a claim in court for the ‘exhibition’ of certain documents. In other words, it provides a means for parties to view, receive a copy of, or receive an extract of, certain documents.

Smallegange Lawyers are pleased to announce that as per 1 January 2017, we welcome Willem Boonk as partner in our firm. Willem started his career as a lawyer in Rotterdam in October 2005. He joined Smallegange as a senior associate in May 2015.

The FENEX conditions (the general conditions of the Dutch Association for Forwarding and Logistics) are a household name in the Dutch logistics sector. The majority of freight forwarders and logistics providers operate under the applicability of these terms and conditions.

The FENEX conditions deal with a number of topics relevant to the daily operations of a freight forwarder. For example the method of payment and payment deadlines, the obligation of the client to compensate costs such as container demurrage, pledge and lien, and the liability regime including the limit of liability.

Carriers and freight forwarders have a keen interest in understanding when they can invoke a possessory lien (also known as a ‘right of retention’). In case of unpaid freight invoices or other costs, for example, a carrier or freight forwarder will want to refrain from releasing the cargo at the port of discharge in order to force payment. Cargo interests, conversely, have an interest in ending this situation as soon as possible. They have nothing to gain from delays and it is often the case that they had nothing to do with the unpaid invoices.

In the (inter)national carriage by road the main obligation of the carrier is to deliver the goods in the same condition as in which he took receipt of these goods. Based on the articles 17 and 23 of the CMR convention , the carrier is liable for compensation when the goods are damaged or lost during the transport, or when they are delivered with delay. Any contractual stipulations which derogate from the CMR convention are null and void and impossible to enforce. It is possible that, besides this main obligation, it is agreed between the carrier and the shipper that the carrier will provide all sorts of other services. For example, arranging customs formalities, or providing information such as in which container a certain shipment has been stuffed/loaded. Some of these subsidiary obligations are governed by the CMR convention. The loss of customs documentation, as a consequence of which the shipper is unable to clear customs resulting in payable custom duties,  is for instance regulated in article 11 CMR convention. For a long time it has been uncertain under Dutch law, what the consequences are when other damage then damage to the goods arises under a contract of carriage which is subject to the CMR convention, with respect to a subsidiary obligation which is not regulated by the CMR convention. Is in that case the carrier liable for that damage (subject to national law), or is the carrier, based on the CMR-convention liable for damage/loss of the goods only?

The Rotterdam District Court informed us as follows. As of January 1st 2016 the Rotterdam District Court will allow certain types of civil cases to be conducted in the English language. The cases that will qualify for this pilot project are those involving maritime law, transport law and international sale of goods.

In its decision of 29 January 2016 de Dutch Supreme Court answered much discussed question in the literature whether the Supreme Court ruling in the so called “Hammock judgement” regarding liability of a co-possessor of a (defective) structure or building, also applies for the liability of a co-possessor of an animal.

Smallegange Lawyers are pleased to announce that Julian van de Velde has joined our firm as partner. Julian started his career in January 2007 as P&I Correspondent at Aus Ship P&I in Sydney, Australia. Subsequently, Julian moved to our firm in May 2008 when he started as lawyer. In 2011 Julian became associate.

On 1 January 2016, the new Dutch Maritime Accident Control Act (Wet bestrijding maritieme ongevallen, WBMO), entered into force. The new act replaces the North Sea Accident Control Act (Wet bestrijding ongevallen Noordzee, Wet BON) and provides for the implementation of the Nairobi International Convention on the Removal of Wrecks (2007) in the legislation of the Netherlands.

One of the services offered by Smallegange is arresting ships. If a client wishes to arrest a ship then Smallegange drafts an arrest petition through which the Court is requested to grant leave to arrest the ship. Prior to drafting the arrest petition Smallegange will then first determine pursuant to the applicable law and international conventions whether it is possible to arrest the ship. After the leave has been granted by the Court Smallegange will instruct the bailiff to arrest the ship.

In recent years it occurred several times that a ship collided into a bridge of which it was known that it would be replaced in the nearby future. For example the Dorkwerderbrug near Groningen has been hit several times in the past years. Also the Botlekbrug has recently been hit by a vessel. The building of the new Dorkwerderburg will be finalised at the end of 2015. The new Botlekbrug is already in use. In case such a bridge that is about to be replaced is hit by a ship, the question arises whether the owner of the bridge can claim payment of the costs that will be made in case the bridge would be permanently repaired or whether instead in view of the building of the new bridge only payment can be claimed of the costs made to temporarily repair the bridge.

Freight forwarding
The freight forwarder is at the heart of the (inter)national transport chain, a vital link between the shipper and the carrier. The freight forwarder enters into an forwarding agreement with its client (the shipper), where after it will enter into a contract of carriage with (inter alia) the carrier. If damage to the cargo would occur during the subsequent carriage the freight forwarder could remove itself from the equation regarding its client by issuing a ‘statement of forwarding agent’. The shipper can use that ‘statement of forwarding agent’ to go directly to the carrier to recover its damage/loss.

Recently, the Dutch Ministry of Security and Justice published a draft bill, which provides for further concentration of the handling of shipping cases. Once this bill is adopted by parliament, court cases on shipping and shipping-related matters will all be handled by the Court of Rotterdam.

The Netherlands is one of the State Parties to the Convention on Limitation of Liability for Maritime Claims and its Protocol of 1996 (after this: LLMC). The provisions of the LLMC grant the ship owners (and other parties mentioned) the right to limit their liability for certain specified claims by constituting one or more limitation funds. The Netherlands has implemented the LLMC in articles 8:750 u/i 8:759 of the Dutch Civil Code.

Anyone who visits the port every now and then will know them. Signs next to a gateway or along a quay pointing out 'entering this site is at your own risk' or, ‘the terminal is not liable for damage and / or injury ". It is obvious that such signs at least encourage vigilance. However, when for example during loading or unloading at a terminal a vessel or truck sustains damage the question rises whether the terminal by posting such signs can exclude its liability for such damage.

Abovementioned question could be asked after reading to the recent decision of the Supreme Court of 16 January 2015 (ECLI:NL:HR:2015:83) between (a predecessor of) TVM in its capacity of motor liability insurer and its policy holder, a driver of a car involved in a collision with another car. The other car became damaged and the driver of that car injured.

The rules on the limitation period for collisions has already lead to many discussions. A recent decision of the Supreme Court will undoubtedly lead to many new discussions (HR November 21, 2014, ECLI:NL:HR:2014:3350). The Supreme Court has held that the limitation period of two years for collisions does not apply if the accusations made by claimant are of a different nature than those associated with the use of ships and when the cause of the damage is not on board of a ship.

The Court of Rotterdam has recently rendered a, not (yet) published, judgment about the applicability of forwarding conditions. Normally, the forwarder invokes the forwarding conditions. In this case the principal relied on the forwarding conditions.

In relation to the majority of the cargo that in the past was carried by ship, a Bill of Lading would be issued by the carrier. Therefore, Book 8 of the Dutch Civil Code contains several articles that relate to carriage of goods under a Bill of Lading. However, nowadays in case of the majority of the shipments that concern carriage of goods by ship no Bill of Lading is issued, but instead a Sea Waybill. The question is therefore what the consequences are if goods are carried under a Sea Waybill for the title to sue of the consignee and the relation between the carrier and the consignee. The Court of Rotterdam had to consider this in the recent Court case FRIO HELLENIC, 30 April 2014, S&S 2014, 131. Below we will touch on this question by discussing the judgment of the Court. In that respect we will first briefly touch on the characteristics of a Bill of Lading and Sea Waybill.

Introduction
It follows from the jurisprudence that the relationship between a stevedore and a vessel is not always rosy. Dutch judges often had to consider a in which a vessel was damaged during loading or discharging.
The Owner (or his underwriter(s)) will subsequently hold the stevedore responsible in order to receive payment for the damage sustained by the vessel. Recently, a similar court case of the District Court of Rotterdam was published (District Court of Rotterdam 27 November 2013, S&S 2013, 86). In this matter the District Court had to examine the question whether a stevedore was liable for the damage sustained by an inland vessel.