Dutch Civil Code

Book 8 Transport law and means of transport

II  MARITIME LAW

Title 8.12 Limitation of liability of the owners of inland navigation vessels

Article 8:1060 Right to limit liability / definitions
- 1. The owner of an inland navigation vessel and the salvor may limit their liability for debt-claims as meant in Article 8:1062 by constituting one or more funds as referred to in Article 642c of the Code of Civil Procedure.
- 2. ‘Owner’ within the meaning of the present Title (Title 8.12) includes the charterer, the lessee or other user of an inland navigation vessel, including the one in whose hands the operation and utilization of an inland navigation vessel has been laid.
- 3. ‘Salvor’ within the meaning of the present Title (Title 8.12) shall mean any person who performs activities in direct connection with the rendering of salvage assistance, including, for the purpose of the present Title (Title 8.12), activities and measures mentioned in Article 8:1062, paragraph 1, under (d), (e) and (f).
- 4. ‘Inland navigation vessel’ within the meaning of the present Title (Title 8.12) shall include hovercrafts, ferries and small boats, dredgers, floating cranes, vacuum elevators and all other floating and movable equipment, pontoons or devices of similar nature that meet the requirements as set in Article 8:1 and 8:3 for inland navigation vessels.
- 5. For the purpose of the present Title (Title 8.12), an inland navigation vessel under construction is regarded also as an inland navigation vessel from the moment that it is launched into the water. A hovercraft is not regarded as an inland navigation vessel for the purpose of the present Title.

Article 8:1061 Other parties than the owner or salvor that may invoke the right to limit liability
- 1. If a debt-claim as referred to in Article 8:1062 is filed against any person for whose act, carelessness or neglect the owner or salvor in principle is liable, then that person shall have the right to limit his liability as provided under the present Title (Title 8.12).
- 2. The insurer of liability for claims, with regard to which liability may be limited under the present Title (Title 8.12), may invoke that limitation to the same extent as the assured person himself.

Article 8:1062 Debt-claims for which liability may be limited
- 1. Without prejudice to Articles 8:1063 and 8:1064, the right to limit liability shall exist in regard of the following debt-claims, irrespective of whether these claims are brought on the basis of a contractual or non-contractual legal ground, and even if the liability solely results from ownership or possession of the vessel, from a privilege on the vessel or from the fact that the vessel remains in the care or under control of him who invokes the right to limit his liability:
a. debt-claims relating to death or physical injury, or in respect of loss of or damage to property (including damage to harbour works, docks, waterways, floodgates, bridges or aids to navigation), occurred on board the vessel or in direct connection with the utilizer of the vessel or the rendering of salvage assistance, as well as debt-claims in regard of damage resulting therefrom;
b. debt-claims with respect to damage caused by delay in the transport of cargo, passengers or their luggage;
c. other debt-claims relating to damage caused by the infringement of any valuable right (property right) not based on or resulting from a contract and arisen in direct connection with the operation or utilization of the ship or the rendering of salvage assistance;
d. debt-claims relating to the refloating, removal, destruction or rendering harmless of a seagoing ship or an inland navigation vessel that is sunk, shipwrecked, stranded or abandoned, including of anything that is or has been on board such ship;
e. debt-claims relating to the removal, destruction or rendering harmless of the cargo of the inland navigation vessel;
f. debt-claims of a person in respect of measures taken to prevent or reduce damage for which the person liable for that damage could have limited his liability on the basis of the present Title (Title 8.12), and debt-claims in respect of further damage suffered due to such measures, all, however, with the exception of such claims of this liable person himself.
- 2. The liability for debt-claims mentioned in paragraph 1 may be limited also if those claims are brought, whether or not on the basis of a contract, by way of recourse or for indemnity. However, the liability for debt-claims mentioned in paragraph 1, under (d), (e) or (f) cannot be limited to the extent that those debt-claims relate to a compensation due under a contract with the liable person.

Article 8:1063 Debt-claims excluded from a limitation of liability
- 1. The present Title (Title 8.12) does not apply to:
a. debt-claims for salvage or for a contribution in general average;
b. debt-claims subjected to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage;
c. debt-claims against the operator of a nuclear inland navigation vessel with respect to nuclear damage;
d. debt-claims based on an employment contract and brought against the owner or salvor by his subordinates or their legal successors (heirs), to the extent that these claims relate to activities performed in connection with the vessel or the rendering of salvage assistance, as far as the liability of the owner or salvor cannot limit his liability for these claims under the law that is governing the employment contract or can only limit his liability under that law to a higher amount than would have been possible under the present Title (Title 8.12).
- 2. When a person who has the right to limit his liability on account of the present Title (Title 8.12), is entitled to realise a debt-claim arisen out of one and the same incident against the creditor, then their respective debt-claims shall be set off against each other and the limitation of liability shall be applied only to the balance which may remain thereafter.

Article 8:1064 Intent or reckless behaviour of the liable person himself
No one has the right to limit his liability if it is proved that the damage results from his own act or omission (neglect), committed with the intent to cause such damage, or committed recklessly with the knowledge that such damage would probably result therefrom.

Article 1065 Maximum amounts for debt-claims arisen from one and the same incident
The amount of liability on the basis of the present Title (Title 8.12) for debt-claims arisen on account of one and the same incident, shall be calculated on the basis of criteria to be set by Order in Council, which may be different for various types of vessels and for a salvor. In such regulation issued pursuant to an Order in Council various funds may be provided for with regard to the debt-claims meant in Article 8:1062, paragraph 1. [See the Royal Decree of 29 November 1996]

Article 8:1066 Institution of funds in the event of joint and several liability
- 1. The limitation of liability as set pursuant to Order in Council as referred to in Article 8:1065, applies to the whole of debt-claims arisen on account of one and the same incident, not being debt-claims as meant in paragraph 2, to be exercised against:
a. the person or persons mentioned in Article 8:1060, paragraph 1, and any person for whose acts, carelessness or neglect (omission) the first meant person or persons in principle are liable, or;
b. the owner of the inland navigation vessel who provides salvage assistance from that vessel and the salvor or salvors who has or have performed their slavage operations from that vessel, and any person for whose acts, carelessness or neglect (omission) the owner or the salvor or salvors in principle are liable, or;
c. the salvor or salvors providing salvage assistance to the inland navigation vessel, who has or have not performed his or their salvage operations from a seagoing ship or inland navigation vessel or who has or have performed his or their salvage operations solely from the inland navigation vessel to which salvage assistance is provided, and any person for whose acts, carelessness or neglect (omission) such salvor or salvors in principle are liable.
- 2. The limitation of liability as set pursuant to Order in Council as referred to in Article 8:1065 for debt-claims in regard of the death of or physical injury to passengers of the inland navigation vessel, applies to the whole of debt-claims arisen on account of one and the same incident, to be exercised against the person or persons who stand in a relation to that vessel as referred to in Article 8:1060, paragraph 2, and any person for whose acts, carelessness or neglect (omission) the first meant person or persons in principle are liable.

Articles 8:1067 - 8:1079 [reserved for future legislation]

 

Royal Decree of 29 November 1996 for the implementation of Article 8:1065

Article 1 Amount of the fund
- 1. The amount of the fund mentioned in Article 8:1065 amounts, except in the events meant in Article 3 of the present Royal Decree, to:
a. where it concerns debt-claims in regard of death or physical injury not being debt-claims as meant in Article 2 of the present Royal Decree (fund for persons):
1° for a vessel, not intended for the carriage of goods, in particular for a passenger vessel: 200 units of account per cubic meter of water displacement until the flat of the hull (bottom) of the maximum allowed draft, increased for vessels with mechanic propelling equipment with 700 units of account for each kilowatt of the power of the mechanic propelling equipment;
2° for a vessel that is intended for the carriage of goods: 200 units of account per ton carrying capacity of the vessel, increased for vessels with mechanic propelling equipment with 700 units of account for each kilowatt of the power of the mechanic propelling equipment;
3° for a towboat or tugboat: 700 units of account for each kilowatt of the power of the mechanical propelling equipment;
4° for a towboat that, at the moment on which the damage was caused, was tightly connected with a lighter (barge) in a tow unit: the amount calculated in accordance with what is provided under 3°, increased with 100 units of account per ton carrying capacity of the towed lighters (barges); this increase does not occur if it is proven that the towboat has rendered salvage assistance to one or more of those lighters (barges).
5° for a vessel with mechanical propelling equipment that, at the moment on which the damage was caused, moves (propels) other vessels tight connected to it: the amount calculated in accordance with 1°, 2° or 3°, increased with 100 units of account per ton carrying capacity or per cubic meter of water displacement of the other vessels; this increase does not occur if it is proven hat the vessel has rendered salvage assistance to one or more of the connected vessels;
6° for the things which according to Article 8:1060, paragraph 1, of the Civil Code are regarded as inland navigation vessels too: an amount equal to the value of these things at the moment on which the incident happened that lead to the debt-claim;
b. where it concerns a debt-claim in regard of costs or damages (compensation) due on account of water pollution, not being debt-claims in regard of death or physical injury (water pollution fund): the amount of the fund for persons;
c. where it concerns any other debt-claim (property fund): half of the amount of the fund for persons.
- 2. Where in situations as meant in paragraph 1, under (a), 4° and 5°, the fund for persons of the towboat or of the propelling vessel is increased with 100 units of account per ton carrying capacity of the towed lighters (barges) or with 100 units of account per ton carrying capacity or per cubic meter of water displacement of the other connected vessels, then in regard to debt-claims which originate from one and the same incident, the fund for persons shall be decreased for each lighter (barge) or each other connected vessel with 100 units of account per ton carrying capacity of the lighter (barge) or 100 units of account per ton carrying capacity or per cubic meter of water displacement of the other connected vessel.
- 3. The amount of the fund for persons and the water pollution fund can in no event be less than 200 units of account; the amount of the property fund can in no event be less than 100 units of account.
- 4. A salvor who has rendered salvage assistance to an inland navigation vessel and who, when doing so, did not perform his salvage operations from a seagoing ship or an inland navigation vessel or, when doing so, has performed his salvage operations exclusively on the inland navigation vessel with regard to which he has rendered salvage assistance, may limit his liability to the amounts mentioned in paragraph 3.

Article Passengers fund
- 1. With respect to debt-claims arisen on account of one and the same incident in regard of the death or physical injury of passengers of an inland navigation vessel, the amount to which the owner may limit his liability (passengers fund), amounts to 60,000 units of account per passenger multiplied by the number of passengers that the vessel is entitled to transport according to its legally allowed capacity or, when the number of passengers that the vessel is allowed to transport has not been prescribed, 60,000 units of accounts for each passenger multiplied by the number of passengers actually transported by the vessel at the moment that the incident occurred, on the understanding that the amount of the passengers fund can be no less than 720,000 units of account and no more than the following amounts:
a. 3 million units of account for a vessel with an allowed transport capacity of not more than 100 passengers;
b. 6 million units of account for a vessel with an allowed transport capacity of not more than 180 passengers;
c. 12 million units of account for a vessel with an allowed transport capacity of more than 180 passengers.
- 2. For the purpose of the present Article, debt-claims with regard to death or physical injury are regarded as such debt-claims filed on account of an incident that happened to a person who was transported on board the vessel:
a. on the basis of a passenger transport contract;
b. or who, with the consent of the carrier, accompanied a vehicle or live animals that in itself were transported on the basis of a contract of carriage of goods.

Article 3 Fund for persons
- 1. In the situations where the liability of the owner of an inland navigation vessel for debt-claims arisen on account of one single incident is based solely or also on Title 8.11.4 of the Civil Code, the amount of the fund mentioned in Article 8:1065 of the Civil Code amounts to, where it concerns debt-claims in regard of death or physical injury (fund for persons):
a. for a vessel, not intended for the carriage of goods, in particular for a passenger vessel: 400 units of account per cubic meter of water displacement until the flat of the hull (bottom) of the maximum allowed draft, increased for vessels with mechanic propelling equipment with 1,400 units of account for each kilowatt of the power of the mechanic propelling equipment;
b. for a vessel that is intended for the carriage of goods: 400 units of account per ton carrying capacity of the vessel, increased for vessels with mechanic propelling equipment with 1,400 units of account for each kilowatt of the power of the mechanic propelling equipment;
c. for a towboat or tugboat: 1,400 units of account for each kilowatt of the power of the mechanic propelling equipment;
d. for a towboat that, at the moment on which the damage was caused, was tightly connected with a lighter (barge) in a tow unit: the amount calculated in accordance with what is provided under (c), increased with 200 units of account per ton carrying capacity of the towed lighters (barges);
e. for a vessel with mechanic propelling equipment which, at the moment on which the damage was caused, moves (propels) other vessels tight connected to it: the amount calculated in accordance with (a), (b) or (c), increased with 200 units of account per ton carrying capacity or per cubic meter of water displacement of the other vessels;
f. for the things which according to Article 8:1060, paragraph 1, of the Civil Code are regarded also as inland navigation vessels: an amount equal to two times the value of these things at the moment on which the incident happened that lead to the debt-claim.
- 2. Where it concerns any other debt-claim (property fund), the amount of the fund is calculated in the same way as on the basis of paragraph 1, on the understanding that:
a. the amount per ton carrying capacity of the vessel and per cubic meter of water displacement until the flat of the hull (bottom) of the maximum allowed draft as referred to in paragraph 1, under (a) and (b), is set at 300 units of account;
b. the amount for each kilowatt as referred to in paragraph 1, under (a), (b) and (c), is set at 1,000 units for account;
c. the amount per ton carrying capacity of the vessel and per cubic meter of water displacement until the flat of the hull (bottom) of the maximum allowed draft as referred to in paragraph 1, under (d) and (e), is set at 150 units for account;
d. the amount of paragraph 1, under (f), is set at 1,5 times the value at the moment on which the incident occurred that lead to the debt-claim.
- 3. The amount of the fund for persons can in no event be less than 1 million and never more than 4 million unit of accounts; the amount of the property fund can in no event be less than 750,000 units of account and never more than 3 million units of account.

Article 4 Staturory interest
The amounts mentioned in Articles 1, 2 and 3 of the present Royal Decree are added with the statutory interest, calculated from the start of the day following the one of the incident that lead to the debt-claim, until the start of the day following the one on which the person who lodged a request (application) for the limitation of his liability, has complied with a judicial order imposed on him under Article 642c of the Code of Civil Procedure.

Article 5 Special drawing rights IMF
The unit of account mentioned in Articles 1, 2 and 3 of the present Royal Decree is the Special Drawing Right as described by the International Monetary Fund. The amounts mentioned in Articles 1, 2 and 3 of the present Royal Decree are converted into Dutch currency to the rate on the day on which the debtor complies with a judicial order imposed on him pursuant to Article 642c of the Code of Civil Procedure for the deposit or another form of the provision of security (collateral). The value of Dutch currency expressed in Special Drawing Rights is calculated in accordance with the valuation method applied by the International Monetary Fund to its own operations and transactions on the day of conversion.

Article 6 Entry into force
This Royal Decree enters into force at the same time as the Act of 31 October 1996.