Dutch
Civil Code
Book 8 Transport law and means of transport
Section 8.14.1 Hazardous substances on board of a vehicle
Article 8:1210 Definitions
In the present Section (Section 8.14.1), 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 vehicle aboard of which the hazardous
substance finds itself, caused by that hazardous substance, except for
loss of or damage in relation to other vehicles and property on board
thereof, if those vehicles are part of a pulled or towed train of which
also that vehicle forms a part;
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 8.14.1);
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. ‘operator’ means: any person
having the right of say over the use of the vehicle aboard of which the
hazardous substance finds itself. The person to whom a number plate as
meant in Article 36 of the Road Traffic Act 1994 has been given or, in
the absence thereof, the owner of the vehicle is regarded as operator,
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 vehicle 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 vehicle.
Article 8:1211 Sphere of application
- 1. The present
Section (Section 8.14.1) does not apply if the operator is liable, and
this towards the person who institutes the debt-claim, on the basis of
a (commercial) operating contract or if he may invoke against that person
a (commercial) operating contract.
- 2. The present Section (Section 8.14.1) is
applicable during the period that a hazardous substance finds itself on
board a vehicle, including the period from the start of the loading of
the hazardous substance into the vehicle until the end of the unloading
of that substance from the vehicle.
- 3. The present Section (Section 8.14.1) does
not apply to damage caused when the vehicle 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.
- 5. Without prejudice to the provisions of
paragraph 3, the present Section (Section 8.14.1) applies accordingly
to hovercraft, wherever used.
Article 8:1212 Stack transportation / towing service
- 1. If a hazardous
substance finds itself in a means of transport that is aboard a vehicle
without this hazardous substance being unloaded from that stacked means
of transport, then for that period this hazardous substance shall be deemed
to be solely on board of that vehicle.
- 2. If a hazardous substance finds itself
in a vehicle which is moved forward by another vehicle, then the hazardous
substance shall be deemed to be solely on board of the last mentioned
vehicle.
- 3. During the actions meant in Article 8:1213,
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 means of transport;
b. in derogation from paragraph 1, to be exclusively
on board of the first mentioned vehicle.
Article 8:1213 Liability of the operator
- 1. The person who, at the time of an incident,
is the operator of a vehicle 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
operator at the time of the first of these occurrences.
- 2. The operator 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
failed to meet his obligation to inform him (the operator) of the hazardous
nature of the substance, and neither he (the operator) nor the persons
mentioned in paragraph 5, under (a), knew or ought have known that it
was hazardous.
- 3. If the operator 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 operator may be exonerated wholly
or partially from his liability towards such person.
- 4. The operator can only be held liable otherwise
than pursuant to the present Section (Section 8.14.1) 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. In the situation
referred to in paragraph 2, under (c), the operator can limit his liability
as if he was liable on the basis of the present Section (Section 8.14.1).
- 5. Subject to Articles 8:1214 and 8:1215,
not liable for damage shall be:
a. the subordinates, representatives (agents)
or mandataries of the operator;
b. any person who performs work on behalf of
the vehicle;
c. any person who, other than in conflict with
an express and reasonable prohibition on account of the vehicle, renders
salvage assistance to the vehicle or to the persons and property on board
thereof;
d. any person rendering salvage assistance
to the vehicle or to the persons and property on board thereof on instruction
of a competent public authority;
e. any person, other than the operator, 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 operator
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 8:1214 Damage caused during loading or unloading
- 1. If the operator proves that the hazardous
substance has been loaded on or unloaded from the vehicle during the period
meant in Article 8:1211, paragraph 2, under the sole responsibility of
a person other than the operator 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 8.14.1).
- 2. Where, however, the hazardous substance
has been loaded or unloaded during the period meant in Article 8:1211,
paragraph 2, under the joint responsibility of the operator and another
person whose identity has been disclosed by the operator, the operator
and that other person shall be joint and several liable in accordance
with the present Section (Section 8.14.1) 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 operator
is liable on the basis of paragraph 1 or 2, this other person cannot invoke
Article 8:1213, paragraph 4 and paragraph 5, under (b).
- 5. If another person than the operator is
liable on the basis of paragraph 1 or 2, then Articles 8:1218 up to and
including 8:1220 shall apply accordingly to that other person, on the
understanding that in case of a joint and several liability:
a. the limitation of liability as provided
for in Article 8:1218, paragraph 1, 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 pursuant to
Article 8:1219 shall 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 operator and the other person mentioned in paragraph 2 of the present
Article, the operator 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 8:1211, 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 8:1213, paragraph 5, under (c), (d)
or (e).
Article 8:1215 Liability of the consignor or another person
Where the operator of a vessel is not liable because of what is provided
in Article 8:1213, paragraph 2, under (c), the consignor or other
person shall be liable in accordance with the present Section (Section
8.14.1), and Articles 8:1218 up to and including 8:1220 shall apply accordingly
to him. The consignor or other person may not invoke Article
8:1213, paragraph 4.
Article 8:1216 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 8.14.1).
Article 8:1217 Damage caused by hazardous substances on board of more
than one vehicle
- 1. When one single incident causes damage
due to hazardous substances on board of more than one vehicle, or on board
of a vehicle or a hovercraft and a seagoing ship, an inland navigation
vessel or a railroad car, then the operators of the vehicles involved,
the shipowner or the owner of the seagoing ship or inland navigation vessel
involved and the operator of the railway on which the incident with the
involved railroad car happened, 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 vehicles, hovercraft,
seagoing ship or inland navigation vessel, or a railroad car which was
used on a specific railway, all without prejudice to what is provided
in Article 8:1213, paragraph 2 and 3, and Article 8:1214, and in Section
8.6.4, Section 8.11.4 and Section 8.19.4.
- 2. The provisions in paragraph 1 shall not
affect the limitation of liability which the operator, the shipowner or
owner may invoke pursuant to the present Section (Section 8.14.1), Title
8.7 or Title 8.12 or pursuant tot Articles 8:1678 up to and including
8:1680, for each of them up to the amount applicable to him.
Article 8:1218 Limitation of liability to maximum amounts; intent or conscious
recklessness
- 1. The operator can limit his liability per
incident to an amount or amounts to be determined by or pursuant to Order
in Council, which amounts may be different with regard to death or physical
injury and other claims.
- 2. The operator is not entitled to limit
his liability if the damage has arisen from his own act or omission (neglect),
either committed with the intent to cause such damage or committed recklessly
and with the knowledge that such damage would probably result from it.
Article 8:1219 Liability fund
In order to be able to invoke the limitation of liability referred to
in Article 8:1218, the operator must constitute a fund or funds in conformity
with Article 8:1220.
Article 8:1220 Request for a limitation of liability and a distribution
of the amount for compensation
- 1. The person who wants to make use of the
possibility to limit his liability as granted to him under Article 8:1218,
shall request a district court with jurisdiction over legal claims for
compensation of damage, to fix the amount to which his liability is limited,
and to order to start the procedure to distribute this amount.
- 2. Articles 642a, paragraph 2 up to and including
paragraph 4, 642b, 642c, 642e, paragraph 1, 642f up to and including 642t,
paragraph 1, and 642u up to and including 642z of the Code of Civil Procedure
apply accordingly to the request and the procedure of distribution.
- 3. If the amount with regard to death or
physical injury, as fixed pursuant to Article 8:1218, paragraph 1, is
insufficient for a total compensation of these debt-claims, they shall
be reduced proportionally, and the amount for other debt-claims, as fixed
pursuant to Article 1218, paragraph 1, shall be distributed proportionally
amongst those debt-claims and the debt-claims with regard to death or
physical injury, to the extent that these would remain unpaid.
- 4. The debt-claims of the operator with respect
to expenses and sacrifices which he has made freely and within the boundaries
of reason in order to prevent or limit damage, take equal rank with other
debt-claims to the amount for debt-claims other than those for death or
physical injury as fixed pursuant to Article 8:1218, paragraph 1.
Section 8.14.2 [reserved for future legislation]
| [prior Title] |