An armed robbery at a warehouse provided the basis for an unfortunate – but legally interesting – recent case in the Amsterdam Court of Appeal. The case raised the question of whether the carrier could be held liable for the loss of the goods and, if so, whether it could invoke the limitations of liability applicable to carriers. In this regard, the court also examined whether storage formed an independent part of the contract or whether it was absorbed into carriage.
The effort to make lashing a cargo-handling activity rather than a crew activity is set out in the so-called 'dockers' clause', contained in collective agreements covering some 15,000 seagoing vessels worldwide. A recent decision by the Rotterdam Court rejected the claimants' request to immediately prohibit lashing by seafarers in advance of the results of main proceedings. The court also raised the possibility that the clause could prove to be against the principles of reasonableness and fairness, as well as anti-competitive.
Charterparties commonly contain an arbitration clause. One of the perceived advantages of arbitration over litigation is worldwide recognition and enforceability of arbitral awards on the basis of the New York Convention. However, a recent ruling by the Supreme Court should serve as a warning to those considering inserting an arbitration clause in their contracts with a view to seeking subsequent enforcement in the Netherlands.
The Netherlands has historically been a friendly jurisdiction for Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers. However, there are some exceptions. In certain circumstances, a claimant may be able to rely on a carrier's 'strengthened obligation to furnish facts'. The Den Bosch Appeal Court recently held that a CMR carrier had such a strengthened obligation in order to enable the claimant to meet its burden of proof regarding (the fault equivalent of) wilful misconduct.
Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), carriers are liable for the total or partial loss of goods or damage to goods that occurs between the carrier taking charge of the goods and delivery. The Court of Amsterdam recently held that the word 'damage' in the relevant sections of the CMR presumes substantial physical change to the state of the goods and ruled out, in this case, that a broken seal on a container represented damage.