Shipping & Transport, Netherlands updates

Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
AKD NV
  • Netherlands
  • May 16 2018

The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.

Dutch court underlines arrestors' rights
AKD NV
  • Netherlands
  • May 09 2018

​The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.

Supreme Court rules on determination of LLMC claims
AKD NV
  • Netherlands
  • April 11 2018

The Supreme Court recently ruled on how to determine which claims under the Convention on Limitation of Liability for Maritime Claims 1976 are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds. The judgment is particularly relevant because the Netherlands recently issued a legislative proposal which aims to abolish the wreck fund and introduced unlimited liability for wreck and cargo removal claims.

Road carriers face difficulty in establishing CMR force majeure exemptions
AKD NV
  • Netherlands
  • March 14 2018

On January 18 2018, despite severe weather warnings, numerous haulage companies allowed their trucks to take to the roads. As a result, many trucks were blown over, leading to extensive amounts of damage. However, any reliance by road carriers on force majeure for events arising from the storms will be hard to enforce in the Dutch courts. While it is not unthinkable that such a situation might exist, the numerous weather forecasts and code red warnings will have created a heavier burden for carriers.

Yacht damage dispute clarifies product liability implications under EU directive
AKD NV
  • Netherlands
  • January 24 2018

The Utrecht Subdistrict Court recently held that fire damage to a yacht caused by an air conditioning panel did not result from product liability. The court clarified the definition of 'another object' under the Dutch Civil Code and the EU Product Liability Directive, holding that because the control panel was specifically designed for use in the vessel, it was considered part of the yacht. The decision provides guidance for yacht insurers and increases the possibility of successful recovery.

Logistics service providers must be clear on general terms and conditions
AKD NV
  • Netherlands
  • November 08 2017

Many logistics service providers – such as terminals, warehouse keepers, freight forwarders and shipyards – use general terms and conditions in order to limit their risks. They often make use of several sets of standard terms and conditions, depending on the activities being carried out. However, a recent district court case should serve as a warning to these service providers of the severe risk that no standard terms will be regarded as validly incorporated.

Courts provide welcome clarity on ship arrest jurisdictional issues
AKD NV
  • Netherlands
  • September 13 2017

The scope of Article 7 of the International Convention Relating to the Arrest of Seagoing Ships grants jurisdiction to a court granting leave for arrest to also hear the substantive claims. There has been ongoing debate over whether Article 7 also applies to vessels flying the flags of countries which are not signatories to the convention. Several recent decisions – the most recent of which came from Curacao – have reaffirmed that the article's application is not limited to vessels flying the flags of contracting states.

Rotterdam Guarantee Form Limitation 2017 introduced
AKD NV
  • Netherlands
  • September 06 2017

The Dutch Transport Law Association recently introduced a new standard form to be used for the constitution of a limitation fund in proceedings before the Dutch courts for the limitation of liability in seagoing or inland shipping. In the past, guarantees in limitation proceedings were offered on the basis of widely diverging texts, which often led to disagreement between the interested parties and the need for court rulings on the adequacy of the guarantee.

Rotterdam District Court rules on status of on-board cargo damage survey
AKD NV
  • Netherlands
  • June 14 2017

The Rotterdam District Court recently determined that a preliminary survey may qualify as a provisional measure within the meaning of the EU Brussels I Regulation if it is established that the measure aims to prevent evidence from being lost. In the case at hand, the court held that the survey did not qualify as such a measure, as the party making the request had indicated that the survey was aimed at obtaining access to witness statements and documents previously attached.

Hague Appeal Court upholds ruling on Article 11 of Convention on Limitation of Liability for Maritime Claims
AKD NV
  • Netherlands
  • May 03 2017

Over the years, the Dutch courts have demonstrated a willingness to adopt a clear and singular approach to the global limitation of liability issues arising from maritime casualties. In the process, the courts have become a forum of choice for several interests involved in worldwide shipping. The Hague Appeal Court recently added to the body of rulings in this respect.

Landmark CMR rulings also apply to rail carriage liability
AKD NV
  • Netherlands
  • January 11 2017

Dutch case law regarding the interpretation of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM) is limited. By contrast, the Supreme Court has produced a rich body of case law on the interpretation of the Convention on the Contract for the International Carriage of Goods by Road (CMR). The Rotterdam court recently held that two landmark Supreme Court rulings on liability under the CMR also apply to rail carriage liability under the CIM.

Amsterdam court authorises EU ship arrest order
AKD NV
  • Netherlands
  • October 12 2016

In a recent decision which authorised the arrest of a vessel in four EU jurisdictions, the Amsterdam court reconfirmed that the Netherlands will not hesitate to attach assets throughout the European Union under the recently revised Brussels I Regulation. The decision strengthens the perception of the Netherlands as a ship arrest haven by demonstrating that a Dutch arrest order could provide a solution for creditors seeking to attach assets throughout the European Union.

Global limitation of liability and claims for salvage costs
AKD NV
  • Netherlands
  • August 24 2016

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.

Liability of CMR carriers in addition to liability under CMR Convention
AKD NV
  • Netherlands
  • August 10 2016

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.

Ship suppliers expected to benefit from further EU integration
AKD NV
  • Netherlands
  • July 20 2016

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.

Choice of law implications when insuring maritime risks
AKD NV
  • Netherlands
  • June 08 2016

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.

CMR carrier held liable for breach of additional contractual obligation
AKD NV
  • Netherlands
  • March 16 2016

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.

Rotterdam Court takes wider view of injunctive relief
AKD NV
  • Netherlands
  • January 13 2016

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.

Master receives deferred suspension for illegal beaching of vessel
AKD NV
  • Netherlands
  • December 23 2015

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.

Foreign judgments unlikely to influence Dutch OW Bunker rulings
AKD NV
  • Netherlands
  • November 25 2015

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.

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