Two recent decisions from the Court of Appeal of The Hague have highlighted the issue of which claims fall under Articles 2(d) and (e) of the Convention on Limitation of Liability for Maritime Claims (LLMC). In both cases, barge and cargo owners claimed salvage costs against the owners of seagoing vessels, which sought to limit their liability under the LLMC.
The Arnhem-Leeuwarden Court of Appeal recently ruled that carriers can be liable under national law for damage to goods during discharge. The decision adds to the body of case law on the liability of Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers, in addition to their liability under the CMR convention.
In the wake of new regulations promoting closer integration of the EU jurisdiction, some recent decisions suggest that suppliers of goods and services to the international shipping industry – including the likes of bunker suppliers – will modify their standard terms explicitly to include Rotterdam as an alternative forum for pursuing trans-border arrest orders against debtors' assets.
In a recently published judgment by the Amsterdam Court of Appeal the question of which law determines the extent of the rights that an insurer may exercise against the debtor of the insured arose – the law applicable to the insurance contract or the law applicable to the claim of the insured against the debtor.
The Supreme Court recently held that a carrier operating under a contract that incorporates the Convention on the Contract for the International Carriage of Goods by Road (CMR) can be liable to its contractual counterparty, even if the carrier has delivered the goods in sound condition and on time. This is the first time that the Supreme Court has held a CMR carrier liable for breach of an additional contractual obligation.
In a recently published judgment the Rotterdam Court has confirmed that, following a charterparty hire dispute, claimants can obtain speedy injunctive relief in respect of damages, including when parties have agreed on arbitration abroad and arbitration proceedings already commenced.
A recent decision of the Dutch disciplinary committee for the shipping industry demonstrates how illegally beaching a vessel can have consequences for the master of the ship. It clearly demonstrates that the beaching for subsequent demolition of ships moved from the European Union to Southeast India places the master of such ships at risk of suspension.
To date, the well-publicised bankruptcy of marine fuel supplier OW Bunker has spawned an estimated $1.5 billion worth of claims worldwide. These claims are treated differently in different jurisdictions. It remains to be seen whether recent judgments in other jurisdictions – in particular, in the United Kingdom and Canada – will influence the outcome of the disputes before the Dutch courts.
Demonstrations by disaffected farmers blocked several major highways in Europe recently, resulting in increased costs and reduced profits for the road haulage industry and financial loss for cargo interests due to delay and damage. This raises the question of whether and to what extent the road carrier is liable for such loss and damage.
An appeal court recently partially restored the traditional tenet of Dutch maritime law and practice whereby the country's shipyards can exercise a right of retention on vessels on which they have performed work. In so doing, it set aside a controversial 2014 ruling holding that a shipyard could not exercise its right of retention on vessels on which it was owed money because it had no prospect of being paid by the debtors.
The Supreme Court recently issued a surprising judgment regarding successive carriage within the meaning of Article 34 of the Convention on the Contract for the International Carriage of Goods by Road. The decision means that cargo interests and carriers seeking recovery are in a stronger position than they were previously under Dutch law, which was regarded as having a narrow approach.
The Rotterdam District Court recently ruled that it lacked authority to hear a dispute between the buyer and seller of an item of machinery transported from Germany to the Netherlands, holding that the actual place of delivery was outside its jurisdiction. It follows that the mere mention in Incoterms of a specific city is by no means a guarantee that a dispute will be heard by a court in that city.
Legislators in the Netherlands have introduced a bill which seeks to concentrate the majority of Dutch maritime law cases in the Rotterdam District Court. It is expected that this will enhance the quality of justice and the efficiency of the judicial process in such cases, and further the development of knowledge and expertise of the Rotterdam District Court.
A recent revision of the EU Brussels I Regulation includes some changes with important implications for owners, charterers and other parties looking to arrest vessels or attach other assets in EU jurisdictions. The whole European Union is now a potential ship arrest haven for parties that initiate action through the Rotterdam court. The only proviso is that the court have jurisdiction on the merits of the claim.
In many jurisdictions worldwide there appears to be no clear definition of what constitutes a 'ship'. However, this is not the case in the Netherlands, where 'ships' are clearly defined as "all objects which, according to their construction, are destined to float and which float or have done so". This could be of strategic advantage to lenders looking to obtain security over high-value assets.
Changes to the International Convention for the Safety of Life at Sea relating to the verified weight of containers and their cargo could have serious implications for terminal operators. If the gross mass of containers is not verified by the shipper, the terminal operator must not load containers on board a ship. This could result in terminal operators incurring substantial costs.
The Netherlands recently tabled a bill to facilitate its accession to the Nairobi International Convention on the Removal of Wrecks. While the legislature maintains that the bill is in conformity with the law of the sea, the Council of State has advised that the bill should be revised to clarify that the state may intervene only against wrecks of ships that fly the flag of a contracting state to the convention.
The Rotterdam Court recently declined jurisdiction in proceedings between a carrier and its principal, because it considered an exclusive jurisdiction clause in the relevant contract to be null and void under the Convention on the Contract for the International Carriage of Goods by Road. Carriers should be aware of the options available to them to avoid falling foul of this ruling, bearing in mind the new EU Brussels I Regulation.
In a dispute which turned on the interpretation of a Himalaya clause and a knock-for-knock clause in a time charter agreement between an oil platform operator and a shipowner, the Court of Appeal has modified a district court ruling and held that the platform operator was not liable for damage to a vessel caused during repair and maintenance work.
Traditionally, shipyards in the Netherlands have been able to exercise a right of retention, until they have been paid, on vessels on which they have performed work. However, a recent Gelderland Court decision has thrown this precept into doubt; and Dutch yards may need to rethink their contractual strategy as a result.