containers

Newsletters

Recent maritime casualties have once again highlighted the relevance of global limitation of liability in shipping. An example is the oil spill caused by the BOW JUBAIL in the Port of Rotterdam in 2018. Other key examples include the ONE APUS that lost an estimated 1,800 containers in heavy weather conditions and the MAERSK ESSEN and MAERSK EINDHOVEN, that both also lost several hundred containers. The most recent example that received international media attention would however, be the EVER GIVEN, which ran aground in the Suez Canal and blocked north- and southbound traffic for several days resulting in severe delays.

In such large-scale maritime casualties, global limitation of liability can be used to the benefit of Owners and their P&I Clubs, also in the Netherlands. The Netherlands is one of the State Parties to the Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol (“LLMC/Protocol  1996”). The Netherlands has implemented the LLMC/Protocol 1996 in Articles 8:750 - 8:759 of the Dutch Civil Code. The provisions of the LLMC/Protocol 1996 may grant the Owners (and other parties) the right to limit their liability for certain specified claims by constituting one or more limitation funds if the relevant criteria are met. The quantum of the potential limitation fund(s) is calculated by taking into account the gross tonnage (GT) of the vessel involved in combination with the limits as provided for in the LLMC/Protocol 1996.

For further queries please contact Jan van der Stelt or Julian van de Velde.

Starting 1 January 2021, following the completion of the ‘Brexit transition period’, the United Kingdom has ceased to be a party to the various EU instruments in the field of judicial cooperation. In particular, the Brussels I (recast) Regulation (Regulation (EU) no. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)) no longer applies in relation to the UK. This makes the question relevant to how British judgments (in civil and commercial matters) rendered after 31 December 2020 can be enforced in the EU and, in particular, in the Netherlands.

Proceedings commenced before 1 January 2021

Not all judgments rendered this year will come with enforcement issues. In relation to proceedings initiated before 1 January 2021, nothing changes: such proceedings remain within the scope of the Brussels I (recast) Regulation and judgments rendered by British courts will be immediately enforceable in the EU, including in the Netherlands.

Proceedings commenced on or after 1 January 2021

For proceedings commenced before the UK courts on or after 1 January 2021, the Brussel I (recast) enforcement mechanism will no longer apply to the judgment.

In this case, one of three regimes applies.

I. The Hague Convention on Choice of Court Agreements

If the relevant UK court had jurisdiction pursuant to an exclusive jurisdiction agreement, the Hague Convention on Choice of Court Agreements could apply to the enforcement. This would be the case
if the jurisdiction agreement has been entered into by the parties after the entry into force of the Convention for the UK. If so, Dutch procedural law permits a simplified procedure for recognition and enforcement. The EU, then including the UK, adopted the Convention on 1 October 2015. On 1 January 2021, the UK became a State party in its own right. The UK considers itself bound by the Convention from 2015, but it remains to be seen whether courts in the EU will adopt the same approach. The European Commission suggested last year that only exclusive forum choices made after the Convention entered into force for the UK in its own right, being 1 January 2021, will be recognized in EU courts.

II. The 1967 UK-Netherlands bilateral treaty on recognition and enforcement

If the Hague Convention does not apply, but the judgment contains an order for monetary payment, the judgment can be enforced on the basis of the 1967 UK-Netherlands bilateral treaty on recognition and enforcement. If so, again, the judgment can be recognized and enforced through a simplified procedure.

III. Other

In cases where neither of the two conventions applies, there is no simplified procedure for recognition and enforcement. In principle, the relevant case should be brought to the Dutch courts and reheard in full. However, in practice, a full substantive assessment is unlikely to be required for a British judgment. Provided the judgment meets certain criteria – e.g. in respect of due process – the Dutch court will substantially give effect to the British judgment.

Possible future developments

Recognition and enforcement of UK judgments in the EU could be facilitated if the UK accedes to the Lugano Convention, which aims to achieve “free movement of decisions” between the EU on the one hand, and Switzerland, Norway, and Iceland on the other hand (i.e. within the territory of the European Free Trade Association). While the UK has applied to accede to the Lugano Convention, as matters stand, it is unclear if the other parties to the Convention will allow the UK to join.

Do not hesitate to contact us if you need advice regarding recognition and enforcement of foreign judgments in the Netherlands: This email address is being protected from spambots. You need JavaScript enabled to view it..

The carrier of persons can limit its liability for claims in various ways. This can be per traveller, per piece of luggage or per event. The liability limit for death and injury of a passenger in passenger transport on inland waterways amounted to EUR 137,000 until 1 January 2021.

As of January 1, 2021, the liability limits for passenger transport on inland waterways have been significantly increased. Below we explain the reason for this change and new liability limits.

Changes to liability limits 2008 and 2014

From an international perspective, it is noticeable that the liability limits in transport law are under pressure. As a result, many liability limits have been raised in recent years.

Since 2008, a limit of EUR 1 million applied to national public road transport and tram transport and a limit of 175,000 SDR applied to national public rail transport (Article 8: 110 Dutch Civil Code). Since 2014, depending on the cause, a limit of 250,000 or 400,000 SDR has been applied in respect of passenger transport by sea (Articles 3 and 7 of the Athens Convention).

On the other hand, the liability limit for passenger transport on inland waterways applied as from 1 April 1991. This observation gave rise to the necessary discussion, both in case law and in the literature.

Judgment of the Supreme Court on the level of the liability limit

In the spring of 2018, the Supreme Court issued a judgment that calmed down the discussion about the level of liability limits in case law (Supreme Court 18 May 2018, S&S 2018, 85). The subject of the dispute was the possible breach of the applicable liability limit for passenger transport by inland waterways on the basis of the requirements of reasonableness and fairness.

The Supreme Court saw no scope for disregarding the liability limit on these grounds. The Supreme Court did recognise the issue and saw grounds to apply an inflation correction to the liability limit. Calculated from 1991 to the year of the accident, the Supreme Court considered an increase in the liability limit from EUR 137,000 to EUR 198,787.

Increased liability limit for passenger transport inland waterways

After the judgment of the Supreme Court, it finally came to the legislator to increase the liability limits in law. The law was amended and new liability limits apply from 1 January 2021. The legislator has found inspiration for the regulated levels in the CLNI 2012.

For passenger transport on inland waterways, the following changes apply:

  • The liability limit for passenger transport on inland waterways (Article 8: 893 paragraph 1 Dutch Civil Code changes from EUR 137,000 to 400,000 SDR for death or injury of a passenger.
  • The liability limit for passenger transport on inland waterways (Article 8: 893 paragraph 1 Dutch Civil Code) changes from EUR 1,000 to EUR 1,500 for delay of a traveller and in respect of loss, damage or delay of the traveller’s luggage.
  • The liability limit for domestic public passenger transport (Article 8: 100 Dutch Civil Code) changes from EUR 137,000 to SDR 400,000 for the death and injury of a passenger.
  • Further, the liability limit for passenger transport contracts that are not regulated elsewhere in Book 8 of the Dutch Civil Code changes from EUR 137,000 to 400,000 SDR for death and injury of a traveller.

Stan PutterSmallegange is pleased to announce that Stan Putter and Lilian Meinen have joined our firm as partner, respectively associate to expand its international dispute resolution and construction practice.

Stan Putter’s practice will expand our firm’s offering with a practice focusing primarily on international dispute resolution. Many of Stan’s instructions relate to international arbitrations, arbitration related litigation and Dutch court proceedings with international aspects. In addition to taking instructions as counsel, he is also frequently appointed as international arbitrator.

Stan takes his instructions from clients that are active in the (maritime) construction, engineering, offshore energy, oil & gas, petrochemical and international trade and financial sectors. Lilian MeinenFurther, Stan is often instructed as local counsel by foreign lawyers seeking to enforce foreign judgements and awards in the Netherlands, obtain interim relief, levy attachments, deploy asset recovery strategies and resolve international group structure disputes.

Stan holds various leadership positions, including positions as executive board member of the Dutch Arbitration Association, CEO of the Court of Arbitration for Art, SVAMC EMEA committee member and chairman of the Dutch Delay & Disruption Directive.

Last month UK’s National Grid Plc and Dutch power transmission operator Tennet Holding BV announced they are developing a plan to link the two countries’ power markets via giant wind farms at sea. In addition, the network managers explained that they want to use underwater cables to connect as much as 4 gigawatts of offshore wind farms to the power grids of the UK and the Netherlands. This message puts the North Sea in the spotlights as a ‘battle ground of conflicting interests’. Questions relating to a fair distribution of exploration space and use of the North Sea become even more urgent and so are the various issues surrounding damage caused to offshore installations and constructions and the connected (subsea) infrastructure.

Especially damage to marine subsea cables, whether caused by trawling fishing vessels, dragging anchors, subsea mining or dredging activity has been a recurring issue in our law firm’s daily practice. In this newsletter, we will focus on the submarine cable situation in the North Sea and on the issues surrounding submarine cable damage from a Dutch (law) perspective, including a landmark decision from the Amsterdam Court of Appeal that will be welcomed by the owners of fishing vessels and their underwriters in particular.

The North Sea – a battle ground for competing interests

In the North Sea, the issue of submarine cable damage is particularly relevant. The myriad of stakeholders utilizing the (natural) resources in the North Sea mean that space is limited and congestion is increasing. Add to this that various areas are designated for specific use, such as offshore wind farms, oil and gas extraction, shipping routes, military exercise zones or protected marine areas, it will come as no surprise that the pressure on the North Sea, its resources and stakeholders is increasing.

The fishing industry in particular is feeling the pressure as fishing grounds are being infringed upon more and more. One of the contributing factors thereto are the networks of marine subsea cables that can be found in the North Sea. The North Sea has one of the greatest densities of subsea marine cables in the world. These cables serve a variety of purposes and form a tight-knit patchwork.
The increasing number of cases regarding cable damage we have become aware of recently suggests that marine subsea cables can be particularly susceptible to damage. Cable owners are quick to apportion blame and claim their loss from the party they deem is responsible. Most commonly, such claims are addressed to owners of fishing vessels as the cable owners suspect them of damaging cables with their trawling gear. Generally, liability is not acknowledged by the fishing vessels and their underwriters. If the cable owner nevertheless persists with their claim, litigation is unfortunately unavoidable. One of the main questions arising in such disputes is whether the cable owners are justified in claiming their loss from the owner of the fishing vessel. We will briefly focus on some of the issues confronting cable owners and the owners of fishing vessels in such cases below.

Issues confronting cable owners and vessel owners

Although subsea marine cable owners are generally quick to realize that their cable may be damaged due to a variety of high tech monitoring systems, the identity of the culprit is not always apparent. Although modern positioning systems such as AIS and GPS can be of assistance, there can be a considerable margin of error in the accuracy. This inaccuracy, and often also the lack of sufficient and complete data, sometimes lead to a ‘buck shot’ approach, where cable owners and legal representatives hold everyone who was even remotely in the area liable for the damage to the cables.

Vessel owners on the other hand are regularly faced with inaccuracies in the geographical location of the cables. When laid, the cables are marked on nautical charts such as the British Admiralty Charts. Such charts are used by mariners in determining where they can safely navigate and work on the North Sea. However, over the years, their location may alter, due to the ever shifting and changeable nature of the North Sea. Cable owners and operators more often than not seek to inform the industry through their own websites and newsletters and appear to overlook the possibility of issuing Notices to Mariners.

The above issues are regularly part of the debate in proceedings before the Dutch courts, which has led to the court providing some very helpful guidance. Such guidance was provided by the Court of Appeal of Amsterdam in a judgment that assists stakeholders in clarifying their legal position in a congesting North Sea.

The MORGENSTER case

The judgment in the MORGENSTER case, which justifies the denomination of a ‘landmark case’ related to the owner of a North Sea marine subsea telecommunications cable and the registered owners of the fishing trawler MORGENSTER regarding liability for alleged damage to the cable.
During a periodical (standard) automated status check of the marine subsea cable, a loss of signal was detected. Following this, the cable owner held the owners of the MORGENSTER liable, arguing that the trawler had been fishing in the vicinity of the cable at the time of the loss of signal. Further, no other vessels would have been nearby, which would allegedly point to the fact that only the MORGENSTER could have caused the damage. On the other hand, the owners of the MORGENSTER, contested that they were not liable. They argued, inter alia, that other vessels were also at the relevant coordinates at the relevant moment in time. They also stated that the vessel’s trawling gear, utilizing a device called a ‘pulse wing’, hovers over the seabed, and uses a weak electrical current to stimulate the fish that are under the seabed and therefore could not have caused the damage.

As a matter of Dutch law, the liability for damage to submarine cable is a tortuous liability. If a cable is damaged by the fishing gear of a trawler, articles 8:540-546 of the Civil Code (CC) are applicable. According to article 8:544 of the CC, if the damage is caused by the fault of one single vessel, the owner of the vessel at fault must repair the damage. Pursuant to article 8:546 CC, however, there are no legal assumptions of fault with respect to liability for collision. That said, a vessel that has come into contact with a duly and properly illuminated, fixed or fastened object, other than a ship, is liable for the damage unless it is evidenced that the collision was not caused by a fault of the ship. In November 2001, the Supreme Court determined that there is fault of the vessel if the damage is a consequence of a) a fault of a person for whom the owner of the vessel is liable; b) a fault of a person who performs work for the vessel or cargo and this fault is committed while working; c) the realization of a special danger for persons or objects caused by the vessel not meeting the requirements that were to be expected in the given circumstances.

The court of first instance ruled in the cable owner’s favour and held that it was sufficiently established that the cable damage was caused by the fishing gear of the trawler. In addition, the court found the trawler owners to be liable for the damage since it could not be established that the contact of the fishing gear with the cable was not caused by a fault of the ship - especially since the owners should have been aware of the location of the cable as shown on nautical charts.
The Court of Appeal however disagreed. It reversed the judgment of the court of first instance and determined that it could not be established that the trawler was the only vessel in the vicinity of the cable at the given time and location of the break. It could therefore not be excluded that another vessel may have caused the damage. Also, based on the design of the fishing gear and on various expert reports, it further held that it did not follow that the cable damage was caused by penetration on the part of the vessel’s trawling equipment. Although the court considered that the cable break could have been caused partly as a consequence of contact with the pulse wing – for example if the cable was already damaged – it also considered this to be unlikely. It therefore held that it could not be established that the cable damage was caused by the fishing gear touching the cable.

Moreover, the Court of Appeal also considered the question of whether the vessel would be at fault as provided for in art. 8:544 of the CC if the cable damage had been a consequence of the pulse wing merely touching the cable. The court held that the fault of the vessel could not be established given that the vessel was equipped with advanced fishing gear and had a modern safety system. In addition, no official Notices to Mariners had been issued regarding the cable and no mistakes had been made by the crew on board the vessel. Therefore, the owners were deemed to have taken every reasonable measure to prevent cable damage.

The Court of Appeal also held that there was no obligation on the owners to check a specific website containing information about the subsea cable. Therefore, even if the cable was damaged by the fishing gear, there was no fault on the part of the vessel. Hence, the owners could not be held liable for the damage, and in so ruling the court of appeal completely overturned the decision of the court of first instance, as well as a 1983 Court of Appeal ruling. In the 1983 ruling it was held that good seamanship implies an obligation for the fishermen to lift their nets every time they cross a subsea cable. In the MORGENSTER Appeal Court decision however it was held that it is not prohibited to trawl over subsea cables and that one cannot expect a fishing vessel to lift its nets every single time a subsea cable is crossed. The risk that a subsea cable sustained damage as a result thereof, should not be for the account of owner of the fishing vessel as it would unfairly expose fishermen to potential significant claims from cable owners and operators, according to the Appeal Court. The judgment by the Dutch Court of Appeal is therefore a welcome reprieve for the owners of fishing vessels and their underwriters.

So, who picks up the bill?

The increasing use of the North Sea has resulted in a myriad of stakeholders, including the fishing and submarine cable industry, that primarily have an interest in furthering their own agenda and cause. The Amsterdam Court of Appeal was therefore very correct in its observation the North Sea has, in recent years, become somewhat of a battleground for these competing interests. Although the case law from Dutch courts discussed above appears to suggest that cable owners should bear their own damage when a cable is damaged and fishing vessels escape unscathed, operating under that assumption would however be a mistake. This decision has not concluded the debate. Several cases are still pending before the Dutch courts wherein owners of subsea cables seek to convince the courts to ignore the judgment in the MORGENSTER case and impose a stricter duty of care on fishermen. With the construction of even more wind farms and connected infrastructure, the debate on this topic will become even more urgent. The ball therefore appears to be in the court of legislators of coastal states to develop a legal framework that takes into account the competing interests on the North Sea. A balance should be found, with both fishing vessels and cable owners demonstrating a certain duty of care and taking precautionary measures in order to prevent submarine cable damage.

Robert Hoepel and Iris Regtien

1 Hof Amsterdam 24 April 2018, S&S 2018/88 (MORGENSTER)

2 Dutch Supreme Court November 2001, S&S 2002/35 (CASUELE/DE TOEKOMST).

On 27 October 2020, The Hague Court of Appeal (The Netherlands) rendered its judgment in the BOW JUBAIL appeal proceedings (ECLI:NL:GHDHA:2020:2055). In the judgment, The Court of Appeal dismissed the appeal against the judgment of the Court of Rotterdam regarding the oil spill incident with the BOW JUBAIL. In this judgment in first instance, the Court of Rotterdam holds that the BOW JUBAIL’s owners cannot limit liability under the LLMC.

The Court of Appeal holds in its judgment that the BOW JUBAIL’s owners also in appeal have failed to prove that there were no residues of the previous oil cargo on board when the incident occurred and that therefore owners have also not proven that the BOW JUBAIL was not a vessel in the meaning of the CLC Convention. For this reason, the Court of Appeal also concludes that owners cannot limit their liability under the LLMC.

It will now be interesting to see what next step will be taken by the BOW JUBAIL’s owners and insurers: appeal before the Dutch Supreme Court or limiting liability under the CLC Convention.

Julian van de Velde and Jan van der Stelt

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.

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 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.

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.

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.

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.

Insurance