Dutch
Civil Code
Book 8 Transport law and means of transport
Article 8:1000 Definition of ‘inland waterway vessel’
In the present Section (Section 8.11.1) an ‘inland waterway vessel’
includes hovercrafts, rafts, ferries, movable parts of pantoon-bridges,
floating cranes, dredges, vacuum elevators and all floating devices, pontoons
or equipment of similar nature that meet the requirements set in Articles
8:1 and 8:3 for inland navigation vessels.
Article 8:1001 Definition of a ‘collision’
There is a collision when vessels touch each other.
Article 8:1002 Liability for damage under Section 8.6.1 without there
having been a collision
What is provided in the present Section (Section 8.11.1) on a collision
shall apply – as far as Section 8.6.1 is not applicable –
as well if the damage is caused by an inland waterway vessel without there
having been a collision.
Article 8:1003 Section 8.11.1 in relation to Section 8.6.1
If an inland navigation vessel has caused damage due to a collision, then
the liability for that damage shall be governed by the present Section
(Section 8.11.1), yet only to the extent that Section 8.6.1 does not apply.
Article 8:1004 Liability only for faults / force majeure
- 1. The obligation to pay damages on the basis
of the present Section (Section 8.11.1) exists only if the damage is caused
by fault. There is no legal presumption of fault in regard of a collision,
yet the vessel that has touched another thing than a ship/vessel, although
that thing was, if necessary, properly illuminated, fixed or fastened,
is liable for the damage, unless it is shown that the collision was not
caused by a fault of the vessel.
- 2. If the collision is caused by chance (coincidence), if it was due
to force majeure (Act of God) or if there is doubt with regard to the
reasons causing the collision, then the damage shall be borne by those
who have suffered it.
- 3. In the case of towing, each inland navigation vessel forming a part
of the tow shall be liable only if there is a fault on its part.
Article 8:1005 Fault of one single vessel
If the collision is caused by the fault of one single vessel, then the
owner of that vessel is obliged to compensate the damage.
Article 8:1006 Two or more vessels are at fault jointly
- 1. If two or more inland navigation vessels have jointly caused a collision
by their fault, then the owners thereof shall be, without being joint
and several liable for the damage caused to the vessels themselves that
were at fault jointly and to the property on board thereof, joint and
several liable for all other damage.
- 2. Where the liability is not joint and several, the owners of the vessels
which jointly have caused the collision by their fault, shall be liable
towards the loss suffering persons in proportion to the importance of
the fault of their vessels; however, if the circumstances bring along that
such proportionality cannot be determined or if it appears that the fault
of these vessels is equal, then the liability shall be shared for equal
parts.
- 3. Where the liability is joint and several, each of the liable owners
has to take for his own account his share in the payment to the creditor
as assessed pursuant to paragraph 2 of the present Article. Subject to
Article 8:364 and Article 8:880, he who has paid more than his internal
share, has recourse for the surplus against his co-debtors who have paid
less than their internal share. Loss caused by the incapacity to pay by
one of the owners of the vessels which are at fault jointly, shall be
apportioned amongst the other owners in the proportion as assessed in
accordance with paragraph 2 of the present Article.
Article 8:1007 Liability for faults of a pilot
The liability that exists pursuant to the present Section (Section 8.11.1)
shall not be eliminated if the collision is caused by the fault of a pilot,
even if the use of such pilot is obligatory.
Articles 8:1008 – 8:1009 [reserved for future legislation]
Section 8.11.2 Assistance (Salvage)
Article 8:1010 Application of Section 8.6.2
The rendering of assistance (salvage) by (from) an inland navigation vessels
and the assistance to inland navigation vessels, to property on board
thereof or to property ehich originates from an inland navigation vessel and that
is floating (drifting) around or that has washed ashore or has sunken,
is regulated by Section 8.6.2, on the understanding that what is provided
in that Section for a shipowner shall apply, when it concerns an inland
navigation vessel, to the owner of that vessel, and what is provided there
for the captain shall apply, when it concerns an inland navigation vessel,
to the master (captain) of that vessel.
Articles 8: 1011 - 8:1019 [ reserved for future legislation]
Section 8.11.3 General average
Article 8:1020 Definition of ‘general average’
- 1. ‘General average’ means the sacrifices and expenses reasonably
made on the occurrence of special circumstances with the intention to
safe an inland navigation vessel and the goods and things aboard thereof from a common
danger, irrespective how or through whose fault that danger has arisen.
- 2. The loss of passage money (fare) is no general average.
Article 8:1021 Contributions in general average
- 1. The person who has suffered general average
shall be reimbursed for it by the owner of the inland navigation vessel,
the person with an interest in the freightage (transport fee), the recipient
of the cargo and the owners of the other property on board, with the exception
of postal items or postal parcels, food and drink supplies, passenger’s
luggage, even when checked, and personal belongings.
- 2. In derogation from paragraph 1, a motor vehicle or vessel (ship)
which is carried on board of the inland navigation vessel by the carrier
in connection with a passenger transport contract, shall contribute in
the general average.
Article 8:1022 Applicability of the 'Rhine-Rules IVR’
Compensations for general average and the bearing values of the interests
contributing in the general average shall, in addition, be determined
also with due observance of the 'Rhine-Rules IVR’ as indicated further
by Order in Council.
Articles 8:1023 – 8:1029 [reserved for future legislation]
Section 8.11.4 Hazardous substances on board of an inland navigation vessel
Article 8:1030 Definitions
In the present Section (Section 8.11.4), the term:
a. ‘hazardous substance’ means:
a substance which is designated as such by Order in Council; such designation
may be restricted to certain concentrations of the substance, to certain
dangers to be specified in the Order in Council that may be attached to
the substance, and to specific situations in which the substance finds
itself.
b. ‘vessel' means: any inland navigation
vessel, other than a hovercraft;
c. ‘damage’ means:
1 ° damage caused by the death of or physical injury to any person,
caused by a hazardous substance;
2 ° other damage outside the vessel aboard of which the hazardous
substance finds itself, caused by that hazardous substance, except for
loss of or damage in relation to other vessels or seagoing ships and property
on board thereof, if such inland navigation vessels or seagoing ships
are part of a pulled or towed train of which also that inland navigation
vessel forms a part or if they are tightly connected with that vessel
as if they jointly form one unit;
3 ° the costs of preventive measures and further loss or damage caused
by such measures;
d. ‘preventive measure’ means:
any reasonable measures taken by any person to prevent or minimize damage
after an incident has occurred, with the exclusion of the person who is
liable pursuant to the present Section (Section 8.11.4);
e. ‘incident’ means: any occurrence
or series of occurrences having the same origin, which causes damage or
creates a grave and imminent threat of causing damage;
f. ‘owner’ means: any person having
the right of say over the use of the vessel aboard of which the hazardous
substance finds itself. The person who is registered as owner of the vessel
in a public register in which that vessel is registered or, in the absence
of any registration, the person who owns the vessel, is regarded as the
owner, unless he proves that, at the moment when the incident occurred,
another person, whose name he must mention, had the right of say over
the use of the vessel or that at that moment another person, without his
consent and without the possibility for him to prevent this, actually
had the say in the use of the vessel.
Article 8:1031 Sphere of application
- 1. The present Section (Section 8.11.4) does
not apply if the owner is liable, and this towards the person who institutes
the debt-claim, on the basis of an operation and utilization contract if he may invoke
against that person a contract of operation.
- 2. The present Section (Section 8.11.4) is
applicable during the period that a hazardous substance finds itself on
board a vessel, including the period from the start of the loading of
the hazardous substance into the vessel until the end of the unloading
of that substance from the vessel.
- 3. The present Section (Section 8.11.4) does not apply to damage caused
when the vessel is used exclusively in a non-public area (area to which
the public has no access) and such use is part of a conduct of business
taking place in that area.
- 4. Article 6:175 does not apply to substances meant in that Article
that are on board as referred to in paragraph 2, unless the situation
meant in paragraph 3 occurs.
Article 8:1032 Stack transportation / towing service
- 1. If a hazardous substance finds itself in a vehicle that is aboard
a vessel without this hazardous substance being unloaded from that stacked
vehicle, then for that period this hazardous substance shall be deemed
to be solely on board of that vessel.
- 2. If a hazardous substance finds itself
in a vessel which is being towed by another vessel or seagoing ship or
which is moved forward by another vessel or seagoing ship, which is tightly
connected with that vessel as if they jointly form one unit, then the
hazardous substance shall be deemed to be solely on board of the last
mentioned vessel or seagoing ship.
- 3. During the actions meant in Article 8:1033, paragraph 5, under (c),
(d) and (e), the hazardous substance shall be deemed:
a. in derogation from paragraph 1, to be exclusively
on board of that stacked vehicle;
b. in derogation from paragraph 1, to be exclusively
on board of the first mentioned vessel.
Article 8:1033 Liability of the owner
- 1. The person who, at the time of an incident, is the owner of a vessel
on board of which a hazardous substance is present, is liable for the
damage caused by that substance as a result of that incident. Where the
incident consists of a series of occurrences having the same origin, the
liability rests on the person who was the owner at the time of the first
of these occurrences.
- 2. The owner is not liable if:
a. the damage resulted from an act of war,
hostilities, civil war, insurrection or a natural phenomenon of an exceptional,
inevitable and irresistible character, or;
b. the damage was wholly caused by an act or
omission (neglect) of a third person, not being someone as mentioned in
paragraph 5, under (a), committed with the intent to cause damage, or;
c. the consignor or any other person has failed
to meet his obligation to inform him (the owner) of the hazardous nature
of the substance, and neither he (the owner) nor the persons mentioned
in paragraph 5, under (a), knew or ought have known that it was hazardous.
- 3. If the owner proves that the damage resulted wholly or partially
either from an act or omission (neglect) with the intent to cause damage
by the person who suffered the damage or from the fault of that person,
the owner may be exonerated wholly or partially from his liability towards
such person.
- 4. The owner can only be held liable otherwise than pursuant to the
present Section (Section 8.11.4) in the situation referred to in paragraph
2, under (c), as well as in the situation that he is held liable on account
of an employment contract.
- 5. Subject to Articles 8:1034 and 8:1035,
not liable for damage shall be:
a. the subordinates, representatives (agents)
or mandataries of the owner or the members of the crew;
b. the pilot of the vessel or any other person
who, without being a member of the crew, performs services on behalf of
the vessel;
c. any person who, other than in conflict with
an express and reasonable prohibition on account of the vessel, renders
salvage assistance (performing salvage operations) to the vessel or to
the persons and property on board thereof;
d. any person rendering salvage assistance
(performing salvage operations) to the vessel or to the persons and property
on board thereof on instruction of a competent public authority;
e. any person, other than the owner, taking
preventive measures;
f. any subordinate, representative (agent)
or mandatary of the persons exempted from liability as referred to in
the present paragraph, under (b), (c), (d) and (e), unless the damage
resulted from his personal act or omission (neglect), committed with the
intent to cause such damage or committed recklessly and with knowledge
that such damage would probably result from it.
- 6. Unless agreed otherwise, the owner has
a right of recourse against the persons meant in paragraph 5, but only
if these persons can be held liable on the basis of the last part of that
paragraph.
Article 8:1034 Damage caused during loading or unloading
- 1. If the owner proves that the hazardous
substance has been loaded on or unloaded from the vessel during the period
meant in Article 8:1031 under the sole responsibility of a person other
than the owner or his subordinates, representatives (agent) or mandataries,
such as the consignor or the recipient (consignee), and he discloses the
identity of such person, then he shall not be liable for damage caused
as a result of an incident which occurred during the loading or unloading
of the hazardous substance, and such other person shall be liable for
that damage in accordance with the present Section (Section 8.11.4).
- 2. Where, however, the hazardous substance
has been loaded or unloaded during the period meant in Article 8:1031,
paragraph 2, under the joint responsibility of the owner and the other
person whose identity has been disclosed by the owner, the owner and that
other person shall be joint and several liable in accordance with the
present Section (Section 8.11.4) for damage caused as a result of an incident
which occurred during the period of loading or unloading of the hazardous
substance.
- 3. If the hazardous substance has been loaded
or unloaded by a person acting on the instruction or on behalf of the
carrier or another person, such as the consignor or recipient (consignee),
then this person shall not be liable, but instead the carrier or such
other person shall be liable.
- 4. Where another person than the owner is liable on the basis of paragraph
1 or 2, this other person cannot invoke Article 8:1033, paragraph 4 and
paragraph 5, under (b).
- 5. If another person than the owner is liable
on the basis of paragraph 1 or 2, then Title 8.12 and Articles 642a up
to and including 642z of the Code of Civil Procedure shall apply accordingly
to that other person, on the understanding that in case of a joint and
several liability:
a. the limitation of liability pursuant to
Title 8.12 shall apply to the total of the debt-claims that due to one
and the same incident have arisen against both;
b. a fund created by one of them shall pursuant
to Article 642c of the Code of Civil Procedure be deemed to be created
by both, and this in regard of the debt-claims for which the fund was
created.
- 6. Within the mutual relationship between
the owner and the other person mentioned in paragraph 2 of the present
Article, the owner is not obliged to bear any compensation paid other
than in the event of a fault of himself or of his subordinates, representatives
(agents) or mandataries.
- 7. The present Article does not apply if
during the period referred to in Article 8:1032, paragraph 2, the process
of loading or unloading has been carried out under the sole or joint responsibility
of a person referred to in Article 8:1033, paragraph 5, under (c), (d)
or (e).
Article 8:1035 Liability of the consigner or another person
Where the owner of a vessel is not liable because of what is provided
in Article 8:1033, paragraph 2, under (c), the consignor or other
person shall be liable in accordance with the present Section (Section
8.11.4), and Title 8.12 and Articles 642a to 642z of the Code of Civil
Procedure shall apply accordingly to him. The consignor or other
person may not invoke Article 8:1033, paragraph 4.
Article 8:1036 Damage caused by inseparable events
If damage, caused by the hazardous substance, reasonably cannot be separated
from damage caused otherwise, the whole damage shall be deemed to be damage
within the meaning of the present Section (Section 8.11.4).
Article 8:1037 Damage caused by hazardous substances on board of more
than one vessel
- 1. When one single incident causes damage
as a result of hazardous substances on board of more than one vessel,
or on board of a vessel and a seagoing ship or a hovercraft, the owners
and the shipowner or utilizer of the involved vessels, seagoing ship or
hovercraft shall be joint and several liable for all damage of which cannot
reasonably be assumed that it was caused by hazardous substances aboard
one or more specific vessels, seagoing ship or hovercraft, all without
prejudice to what is provided in Article 8:1034, paragraph 2 and 3, and
Section 8.6.4 and Section 8.14.1.
- 2. The provisions in paragraph 1 shall not
affect the limitation of liability which the owner, the shipowner or utilizr
may invoke pursuant to Title 8.7 or Title 8.12 or pursuant tot Articles
8:1218 up to and including 8:1220, for each of them up to the amount applicable
to him.
Articles 8:1038 – 8:1059 [reserved for future legislation]
| [prior Title] |