Dutch Civil Code

Book 8 Transport law and means of transport

VI TRANSPORT BY RAILWAY

Title 8.18 Contract of carriage of goods by rail

Section 8.18.1 General provisions

Article 8:1550 Definition of ‘contract of carriage of goods by rail’
- 1. The contract of carriage of goods within the meaning of the present Title (Title 8.18) is the contract of carriage of goods under which one of the parties (the carrier) has engaged himself towards the other party to transport goods exclusively by rail. Parties may agree that the present Title (Title 8.18) shall apply as well to transport by road or by inland waterways which takes place supplementary to the transport by rail.
- 2. The present Title (Title 8.18) does not apply to contracts of carriage of postal items where the transport is performed by or on instruction of a license holder as meant in the Postal Act or under the terms of any International Postal Convention.
- 3. The present Title (Title 8.18) does not apply to the transport of luggage.

Article 8:1551 Definitions
For the purpose of the present Title (Title 8.18):
a. ‘carrier’ means the contractual carrier with whom the consignor has concluded the contract of carriage, or a subsequent (succeeding) carrier who is liable on the basis of the contract of carriage;
b. ‘substitute carrier’ means a carrier who has not entered into the contract of carriage with the consignor, but to whom the carrier meant under (a) has assigned, in full or in part, the actual performance of the transport by rail;
c. ‘intermodal transport unit’ means containers, swap trailers, changeable loading platforms, loading banks or other similar loading units used in intermodal transport;
d. ‘VSG’ means: public regulation for the carriage of hazardous substances by rail.

Article 8:1552 Non-applicability of legal rules for lease, safe custody or loan for use
The statutory provisions for lease contracts, safe custody contracts and loan for use contracts do not apply where a rail vehicle is placed at the disposal of someone else in order to transport goods in it in such a way that the person who places the rail vehicle at the disposal of someone else is required to make it move forward.

Article 8:1553 Mandatory law
Any stipulation (clause) derogating, either directly or indirectly, from what is provided under the present Title (Title 8.18) and Article 8:1727, is null and void, unless the contract of carriage has been entered into gratuitously. The nullity of such stipulations does not lead to the nullity of the other stipulations (clauses) in the contract of carriage. Nevertheless, the carrier may accept a more burdensome liability and more burdensome obligations than provided for under the present Title (Title 8.18)

Section 8.18.2 Conclusion and performance of the contract of carriage

Article 8:1554 Main obligations of the carrier; consignment note
- 1. Under the contract of carriage, the carrier has the obligation to transport the goods to the place of destination and to deliver them there to the consignee.
- 2. The contract of carriage must be inserted into a consignment note (rail waybill). The absence, irregularity or loss of the consignment note shall, however, not affect the existence or validity of the contract of carriage, which shall remain subject to the provisions of the present Title (Title 8.18).
- 3. The consignment note is signed by the consignor and the carrier. The signature may be replaced by a stamp or any other appropriate technique.
- 4. The carrier must confirm in the appropriatee way on the consignment note that he has taken over the goods for transport, and hand over a duplicate of the consignment note to the consignor.
- 5. The consignment note does not have the effect of a bill of lading.
- 6. The consignment note must be drawn up for each separate load. Unless otherwise agreed between the consignor and the carrier, the consignment note can relate only to the cargo of one railway wagon.
- 7. The consignment note, including the duplicate thereof, may be drawn up as well in the form of an electronic data registration which can be transformed into readable characters. The recording and processing of data must, from a functional point of view, be equivalent, in particular as regards the evidential value of the consignment note that is formed by those data.

Article 8:1555 Wording of the consignment note
- 1. The consignment note must contain:
a. the place where and date when it has been drawn up;
b. the name and address of the consignor;
c. the name and address of the carrier who has entered into the contract of carriage;
d. the name and address of the person to whom the goods actually haven been handed over for transport if that person is not the carrier mentioned under (c);
e. the place where and the date when the goods were taken over for transport;
f. the place (station) of delivery;
g. the name and address of the consignee;
h. a description of the nature of the goods and the manner of packaging and, where it concerns hazardous substances, their description as required under the VSG (public regulation) for international carriage of hazardous substances by rail;
i. the number of packages and the marks and numbers required to identify piece-goods despatches;
j. the wagon number in case of a transport of the entire wagon loading;
k. the number of a railway vehicle which is rolling on its own wheels if it has been presented as the thing to be transported;
l. furthermore, in case of intermodal load units, the category (type), the number or other features required for their identification;
m. the gross weight or the quantity of goods expressed in another way;
n. a detailed list of the documents, required according to public authorities, that have been added to the consignment note or that have been handed over to the carrier by submitting them to a specified authority or an institution as referred to in the contract;
o. the costs relating to the transport (carriage charges, supplementary charges and other costs incurred from the conclusion of the contract to the time of delivery) if they are to be paid by the consignee, or any other indication from which shows that the costs have to be paid by the consignee.
- 2. Where applicable, the consignment note must also contain the following particulars:
a. in the event of transport by subsequent (successive) carriers: the carrier who is obliged to deliver the goods, to the extent that he is inserted as such into the consignment note with his consent;
b. the costs which the consignor shall pay;
c. the cash on delivery payments to be collected upon the delivery of the goods;
d. the declared value of the goods and the declared amount representing a special interest in delivery;
e. the agreed period for delivery;
f. a list of documents handed to the carrier, not listed in paragraph 1, under (n);
g. the statements made by the consignor about the number and description of seals he has affixed to the railway wagon.
- 3. The parties to the contract of carriage may include in the consignment note other particulars which they consider useful.

Article 8:1556 Liability for wrong particulars on the consignment note
- 1. The consignor is liable for all costs and damages arisen to the detriment of the carrier that result from:
a. particulars mentioned by the consignor on the consignment note that are inaccurate, incorrect or incomplete or that have been mentioned on another spot on the consignment note than the prescribed (allotted) one, or;
b. the failure of the consignor to mention the particulars as prescribed by the VSG (public regulation).
- 2. If the carrier mentions particulars on the consignment note upon the request of the consignor, he shall be deemed to do so in the name of the consignor, subject to counterevidence.

Article 8:1557 Unloading, destruction or rendering harmless of hazardous goods
When the consignor has failed to mention the particulars prescribed by the VSG (public regulation), the carrier may at any time, depending on what is required in the circumstances, unload, destroy or render harmless the goods, without being liable for any damages, except when he had knowledge of the hazardous nature of the goods when he took them over for transport.

Article 8:1558 Carriage charges and other costs
- 1. Except when agreed otherwise between the consignor and the carrier, the costs (carriage charges, supplementary charges and other costs incurred from the conclusion of the contract until the delivery) must be paid by the consignor.
- 2. If, on the basis of an agreed stipulation between the consignor and the carrier, the costs have to be borne by the consignee, while the consignee neither has taken over the consignment note, nor has asserted in accordance with Article 8:1565, paragraph 3, the rights which he may have acquired by reason of the contract of carriage, nor has modified the contract of carriage in accordance with Article 8:1566, then the costs shall have to be borne still by the consignor.

Article 8:1559 Verification of goods
- 1. The carrier has always the right to verify whether the contractual transport conditions are met and whether the relevant load is in conformity with the particulars as mentioned by the consignor on the consignment note. When this verification relates to the content of the load, it shall be held as far as possible in the presence of its proprietor; where this is impossible, the carrier shall make use of two independent witnesses.
- 2. If the load does not correspond with the particulars on the consignment note or if the rules in respect to the provisional admittance of the goods for transport have not been respected, the result of the verification must be mentioned on the sheet of the consignment note that accompanies the goods, and also on the duplicate of the consignment note if the carrier still has hold of it. In such event, the costs of verification shall be charged against the goods, unless they are paid immediately.
- 3. If the consignor is responsible for loading, he may demand that the carrier verifies the condition of the goods and of their packaging, as well as the correctness of the particulars mentioned on the consignment note about the number of packages, their marks and numbers and the gross weight or quantity otherwise expressed. The carrier is obliged to do so only when the appropriate means for such verification are available to him. The carrier may recover the costs of verification. The result of the verification is mentioned on the consignment note.

Article 8:1560 Evidential value of consignment note
- 1. The consignment note produces prima facie proof*) of the entering into the contract of carriage and of the content of that contract, and also of the taking over of the goods for transport by the carrier.
- 2. When the carrier has taken care of the loading of the goods, then the consignment note produces prima facie proof*) of the condition of the goods and their packaging as mentioned on the consignment note, or, in the absence of such mentioning, proof of their visibly good condition at the moment that the goods were taken over for transport, and of the correctness of the particulars mentioned on the consignment note in regard of the number of packages, their marks and numbers and the gross weight or the quantity otherwise expressed.
- 3. When the consignor has taken care of the loading of the goods, then the consignment note only produces prima facie proof*) of the condition of the goods and their packaging as mentioned on the consignment note and, in the absence of such mentioning, proof of their visibly good condition and the correctness of the particulars meant in paragraph 2, in the event that the carrier has verified the goods and particulars and the results of his verification are mentioned on the consignment note.
- 4. The consignment note, however, does not produce full proof in the event that it contains a reasoned reservation. A reservation may be particularly reasoned by the fact that the carrier does not have appropriate means to verify whether the load is in conformity with the data on the consignment note.

*) prima facie proof is full proof except for counterevidence.

Article 8:1561 Obligation to load and unload the goods; liability for defective loading
- 1. The consignor and the carrier shall agree mutually who of them is responsible for the loading and unloading of the goods. In the absence of such a clause, the obligation to load and unload piece-goods shall rest on the carrier, while for wagon loads the obligation to load shall rest on the consignor and the obligation to unload the goods after delivery shall rest on the consignee.
- 2. The consignor is liable for all the consequences of a defective loading performed by him, and in particular he must compensate the damage suffered by the carrier as a result thereof. The burden of proof of defective loading shall rest upon the carrier.

Article 8:1562 Liability for not present or inadequate packaging
The consignor is liable towards the carrier for any damage and costs resulting from the absence or inadequacy of packaging, unless the defect was externally visible or the carrier had knowledge thereof when he took the goods over for transport and did not make any reservations in respect thereof.

Article 8:1563 Provision of required documents and information
- 1. In order to comply with the requirements of customs or with other regulations of any governmental body, the consignor must, prior to the delivery of the goods, add to the consignment note the required documents or hand them over to the carrier, and provide him with all necessary information.
- 2. The carrier is not be obliged to verify whether such documents and information are correct and complete. The consignor is towards the carrier liable for any damage resulting from the absence, insufficiency or irregularity of any documents and information, except in case of fault of the carrier.
- 3. The carrier is liable for the consequences of loss or irregular use of the documents mentioned on the consignment note and added to it or handed over to him, unless the damage caused by loss or irregular use of these documents is the result of a circumstance which the carrier could not have avoided or of which he could not have prevented its consequences. Any damages payable, however, shall not exceed the damages payable in the event of loss of the goods.
- 4. The consignor, by so indicating in the consignment note, or the consignee, by an instruction given in accordance with Article 8:1566, paragraph 3, may require:
a. that he is present or is represented by a representative (agent) when the formalities required for the observance of the requirements of customs or of other regulations of any governmental body are carried out, for the purpose of furnishing any information or explanations necessary.
b. that he himself shall carry out all formalities required for the observance of the requirements of customs or of other regulations of any governmental body, or that these formalities are carried out by his representative (agent);
c. that he, when he or his authorized representative (agent) is present when the formalities for the observance of the requirements of customs or of other regulations of any governmental body are carried out or when he or his representative (agent) carries out these formalities himself, shall pay the customs duties and other costs charged.
In such cases, neither the consignor nor the consignee who has the right of disposition of the goods, nor their representatives, are allowed to take possession of the goods.
- 5. If the consignor has designated a place where the formalities for the observance of the requirements of customs or of other regulations of any governmental body have to be carried out, and that place is not allowed for this purpose according to applicable public regulations or if the consignor has ordered another impossible procedure for carrying out these formalities, then the carrier shall act in the way as he regards most favourable for the proprietor of the goods, and he shall notify the consignor of the measures taken to this end.
- 6. The carrier, however, may also act in accordance with paragraph 5, if the consignee has not taken over the consignment note within the period as prescribed by the public regulations in force at the place of destination.
- 7. The consignor must comply with all public regulations regarding the packaging and covering (sheeting) of the goods. Where the consignor has not packed or covered (sheeted) the goods in conformity with these regulations, the carrier shall be entitled to do so; the resulting costs shall be charged against the goods.

Article 8:1564 Period for delivery
- 1. The consignor and the carrier shall mutually agree on the period for delivery. In the absence of a stipulation in this respect, the period for delivery shall not exceed the one that follows from paragraphs 2 up to and including 4.
- 2. Subject to paragraphs 3 and 4, the maximum period for delivery is:
- the period for despatch: 12 hours;
- the period of transport: 24 hours.
- 3. The carrier may fix additional periods of a specified duration in the event of exceptional circumstances that result in an unusual increase in traffic or in unusual difficulties for the business operations, or in regard of loads destined for stations that are in operation only once a day or not every day.
The duration of the additional periods for delivery must be included in the General Terms and Conditions of Carriage.
- 4. The period for delivery starts to run from the moment that the goods are taken over for transport; it shall be extended by the duration of any delay not caused by the fault of the carrier. The period for delivery shall be suspended on Saturdays, Sundays and legal holidays.

Article 8:1565 Formalities upon the delivery of the goods
- 1. The carrier must hand over the consignment note and deliver the goods to the consignee at the place designated for delivery against a receipt (discharge) and payment of the debt-claims arising from the contract of carriage.
- 2. Equated with a delivery to the consignee, if such delivery takes place in accordance with the public regulations in force at the place of destination, is:
a. a delivery of goods to the customs or tax (Octroi) authorities at their premises or warehouses, when these are not subject to the carrier’s supervision;
b. a storage of goods with the carrier or a deposit of the goods in safe custody with a forwarder or a public customs warehouse.
- 3. After the arrival of the goods at the place of delivery, the consignee may require the carrier to hand over the consignment note and deliver the goods to him. If the loss of the goods is established or if the goods have not arrived within the period meant in Article 8:1577, then the consignee may assert, in his own name, any rights against the carrier which he may have acquired by reason of the contract of carriage.
- 4. The proprietor may refuse to take delivery of the goods, even when he has received the consignment note and has paid the debt-claims arising from the contract of carriage, as long as an examination which he has asked for in order to establish alleged loss or damage has not been made.
- 5. In all other respects, the delivery of goods shall be carried out in accordance with the legal
provisions in force at the place of destination.
- 6. If the goods have been delivered to the consignee without a prior collection of cash on delivery payments that relate to the delivered goods, the carrier shall be obliged to pay the consignor the amount of any loss or damage sustained up to the total amount of the cash on delivery payments without prejudice to any right on behalf of the carrier of recovery from the consignee.

Article 8:1566 Modification of the contract by the consignor or consignee
- 1. The consignor has the right to dispose of the goods and to modify the contract of carriage by giving subsequent instructions. In particular, he may require the carrier:
a. to transport the goods not any further;
b. to delay the delivery;
c. to deliver the goods to another consignee than the one mentioned on the consignment note;
d. to deliver the goods at another place of destination (station) than the one mentioned on the consignment note.
- 2. The right of the consignor to modify the contract of carriage ceases to exist, even when he has the duplicate of the consignment note under his control, in situations where the consignee:
a. has taken over the consignment note;
b. has taken delivery of the goods;
c. has asserted his rights in accordance with Article 8:1565, paragraph 3;
d. is entitled, in accordance with paragraph 3, to give further instructions and directions: as of that moment the carrier must follow the instructions and directions of the consignee.
- 3. The right to modify the contract of carriage belongs as well*) to the consignee from the moment that the consignment note is drawn up, unless the consignor has indicated otherwise on the consignment note.
- 4. The right of the consignee to modify the contract of carriage ceases to exist when he:
a. has taken over the consignment note;
b. has taken delivery of the goods;
c. has asserted his rights in accordance with Article 8:1565, paragraph 3;
d. has designated in accordance with paragraph 5 a person to whom the goods have to be delivered and that person has taken over the consignment note or asserted his rights in accordance with Article 8:1565, paragraph 3.
- 5. If the consignee has given instructions for delivery of the goods to another person, then that person is not entitled to modify the contract of carriage.

*) In order to prevent that both, the consignor pursuant to paragraph 1 of Article 8:1566 and the consignee pursuant to paragraph 2 of that Article, are able to modify the contract of carriage on the basis of paragraph 3 of that Article by giving subsequent instructions, Article 8:1567, paragraph 1, specifies that an instruction to modify the contract of carriage must be accompanied with the duplicate of the consignment note that was issued to the consignor and that the instruction must be mentioned on that duplicate. This means that the consignor holds a stronger position as long as he has the consignment note under his control.

Article 8:1567 Compliance with subsequent instructions
- 1. When the consignor, or in the case of Article 8:1566, paragraph 3, the consignee, wants to modify the contract of carriage by subsequent instructions, he must provide the carrier with the duplicate of the consignment note on which the modifications are to be mentioned.
- 2. The consignor, or in the case of Article 8:1566, paragraph 3, the consignee, respectively, must indemnify the carrier for all costs and any damage arising from the compliance with the subsequent modifications.
- 3. The performance of subsequent instructions must be possible, allowed and reasonable on the moment on which the instructions reach the person who must carry them out, and, in particular, may not interfere with the normal railway operations of the transport company, nor be disadvantageous to the consignors and consignees of other loads.
- 4. Subsequent modifications may not result in a splitting (division) of the load.
- 5. When the carrier, taking into account the provisions mentioned in paragraph 3, is not able to carry out the received instructions, he must immediately notify the person who requested for these modifications thereof.
- 6. In case of fault of the carrier, the carrier is liable for the consequences of a failure to perform a subsequent instruction or of a failure to perform it properly. Nevertheless, any damages payable shall not exceed the damages payable in the event of loss of the goods.
- 7. A carrier who complies with a subsequent instruction of the consignor without demanding the submission of the duplicate of the consignment note, is liable towards the consignee for the resulting damage if the duplicate of the consignment note has been handed over to the latter. Any damages payable shall not exceed the damages payable in the event of loss of the goods.

Article 8:1568 Circumstances preventing further transport
- 1. In the event of circumstances preventing further transport of goods, the carrier shall decide whether it is preferable to continue the transport of the goods (by modifying the route) or whether it is advisable in the interest of the person with the right of disposition of the goods to ask him for instructions, and at the same time provide him with any relevant information available.
- 2. If it is impossible to continue the transport of the goods, the carrier shall ask the person with the right of disposition of the goods for instructions. Where the carrier cannot obtain such instructions in time, he must take the measures which he regards as being the most favourable in view of the interests of the person with the right of disposition of the goods.

Article 8:1569 Circumstances preventing delivery
- 1. In the event of circumstances preventing delivery, the carrier must, without delay, notify the consignor thereof, and request for his instructions, unless the consignor has requested, by means of a statement on the consignment note, to return the goods in the event of circumstances preventing delivery.
- 2. When the circumstances preventing delivery have ceased to obtain before the instructions from the consignor reach the carrier, the goods shall be delivered to the consignee. The consignor shall be notified thereof as soon as possible.
- 3. If the consignee refuses to take delivery of the goods, the consignor is entitled to give instructions, even if he cannot submit the duplicate of the consignment note.
- 4. When the circumstances preventing delivery arise after the consignee has modified the contract of carriage in accordance with Article 8:1566, paragraph 3 and 5, the carrier must notify the consignee of the circumstances preventing delivery.

Article 8:1570 Reimbursement of additional costs made by the carrier
- 1. The carrier is entitled to reimbursement of the costs caused by:
a. the gathering of instructions;
b. the performance of a received instruction;
c. a failure to receive or to receive in time the instructions requested properly by him;
d. a decision taken by him pursuant to Article 8:1568, paragraph 1, without having asked for instructions;
unless these costs are caused by his fault. In particular he may claim carriage charges (transport fee) for the actual route travelled and claim the corresponding period for delivery.
- 2. In the cases referred to in Article 8:1568, paragraph 2, and Article 8:1569, paragraph 1, the carrier may immediately unload the goods for account (at the expense) of their proprietor. After unloading, the transport is deemed to have ended. The carrier shall then store the goods for account (at the expense) of their proprietor. He may, however, entrust the goods also to a third party, in which case he shall be liable only for the thoughtful choice of such third party. The goods remain encumbered with the debt-claims and all other costs arising from the contract of carriage.
- 3. Where paragraph 2 is applicable, Article 8:1133 applies accordingly.
- 4. Where in a situation in which further transport or delivery is prevented, the consignor does not give instructions within a reasonable time, and the prevention to proceed with the transport or delivery cannot be resolved in accordance with the provisions of paragraphs 2 and 3, the carrier is entitled to return the goods to the consignor or, where this is justified, to destroy them, all for account (at the expense) of the consignor.

Section 18.8.3 Liability

Article 8: 1571 Extent of liability
- 1. The carrier is liable for loss or damage resulting from the total or partial loss of, or damage to, the goods between the time that the goods are taken over for transport until the time of delivery, and for the loss or damage resulting from a delay in delivery.
- 2. The carrier shall be relieved of such liability to the extent that the loss or damage or the delay in delivery was caused by fault on the part of the proprietor of the goods, by an order given by that proprietor other than as a result of a fault on the part of the carrier, by inherent vice of the goods (decay, wastage, etc.) or by circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.
- 3. The carrier shall be relieved of such liability when the loss or damage arises from special risks inherent in one or more of the following circumstances:
a. transport in open wagons under a stipulation (clause) in the general transport terms and conditions applicable to the contract of carriage, and explicitly agreed upon, and referred to on the consignment note; except for damage caused to the goods due to weather conditions, the goods loaded into intermodal transport units and in closed road vehicles which are transported on railway wagons are not regarded as being transported in open wagons; where the consignor uses cover-up sheets for the transport of goods in open wagons, the carrier shall have the same liability as in the event of transport of goods in open wagons without any cover-up sheets, even when it concerns goods which according to the general transport terms and conditions are not transported in open wagons;
b. absence or inadequacy of packing in the case of goods which by their nature are susceptible to loss or damage when not packed or when not properly packed;
c. loading of goods by the consignor or unloading of goods by the consignee;
d. the nature of certain goods which makes them inherently susceptible to total or partial loss or damage, especially through breakage, rust, interior and spontaneous decay, dehydration or a decrease in mass (wastage);
e. irregular, incorrect or incomplete description or numbering of packaging;
f. transport of live animals;
g. transport which, under the provisions applicable between the consignor and the carrier or under stipulations referred to on the consignment note applicable between the consignor and the carrier, must be performed under the accompaniment of an attendant, if the loss or damage results from any risk which the attendant was intended to avert.

Article 8:1572 Railway wagon presented as the thing to be transported
- 1. Where a railway vehicle which is rolling on its own wheels has been presented as the thing to be transported, the carrier is liable for damage resulting from loss of or damage to that railway vehicle or its parts as of the moment that it is taken over for transport until the time of delivery, and for damage resulting from exceeding the period for delivery, unless he furnishes proof that the damage was not caused by his fault.
- 2. The carrier is not liable for damage resulting from loss of or damage to loose parts which have not been mentioned on both sides of the railway vehicle or which are not listed in the inventory list accompanying that railway vehicle.

Article 8:1573 Burden of proof
- 1. The burden of proving that the loss, the damage or the exceeding of the period for delivery was due to one of the causes specified in Article 8:1571, paragraph 2, shall rest upon the carrier.
- 2. When the carrier proves that the loss or damage, having regard to the circumstances of the particular case, could have been caused by one or more of the special risks referred to in Article 8:1571, paragraph 1, it is presumed that it has been caused so. The proprietor of the goods, including of the railway wagon meant in Article 8:1572, however, has the right to prove that the loss or damage was not caused either wholly or partly by one of those risks.
- 3. The legal presumption referred to in paragraph 2 shall not apply in the case referred to in Article 8:1571, paragraph 3, under (a), if an abnormally large quantity has been lost or if packaging has been lost.

Article 8:1574 Subsequent (succeeding) carriers under the same contract of carriage
When a transport which forms the subject of one and the same contract of carriage is performed by more subsequent (succeeding) carriers, each carrier shall, by taking over the goods and the relevant consignment note, enter into that contract of carriage in accordance with the provisions of the consignment note and shall accept all obligations arising thereform. In such event, each carrier is liable for the performance of the transport on the entire transport route until the delivery.

Article 8:1575 Subcontracting carrier
- 1. When the carrier has entrusted the actual performance of the transport in full or in part to a subcontracting carrier, whether or not on the basis of a right to do so granted under the contract of carriage, the carrier nevertheless shall remain liable for the entire transport.
- 2. All provisions of the present Title (Title 8.18) that relate to the liability of the carrier apply as well to the liability of the subcontracting carrier in respect of the transport performed by him. When a claim is filed against one of the subordinates and other persons of whose assistance the subcontracting carrier makes use, Articles 8:1584 and 8:1587 shall apply.
- 3. A special contract through which the carrier has accepted obligations which are not imposed on him pursuant to the present Title (Title 8.18) or through which he has abandoned rights which are granted to him under the present Title, is not binding for a subcontracting carrier who has not agreed with this explicitly and in writing. Regardless whether the subcontracting carrier has accepted this special contract, the carrier remains bound by the obligations resulting from that special contract and by the abandonment of rights.
- 4. Where and to the extent that the carrier and subcontracting carrier are both liable, they shall be joint and several liable.
- 5. The total amount of damages indebted by the carrier, the subcontracting carrier or by their subordinates or other persons of whose assistance they have made use in the performance of the transport, shall not be higher than the maximum amounts specified for this purpose in the present Title (Title 8.18).
- 6. The present Article does not affect the rights of recourse between the carrier and the subcontracting carrier.


Article 8:1576 Re-despatchment (reconsignment) of goods
When a load, which has been despatched in accordance with the present Title (Title 8.18), has been re-despatched (reconsigned) in accordance with the present Title (Title 8.18), and when after that re-despatchment (reconsignment) a partial loss or damage has been discovered, it is presumed that that partial loss or the damage has occurred during the last contract of carriage, if the load has remained under control of the carrier and was re-despatched (reconsigned) in the same condition as on which it arrived at the place from which it was re-despatched (reconsigned).

Article 8:1577 Legal presumption of loss of goods
- 1. The proprietor of the goods may, without being required to furnish further proof, consider the goods lost when they have not been delivered to the consignee or are not being held at his disposal within thirty days after the expiry of the period for delivery.
- 2. The proprietor of the goods may, when he receives payment of a compensation for the lost goods, make a written request to be notified without delay should the goods be rediscovered within one year after the payment of that compensation. The carrier shall give a written acknowledgement of such request.
- 3. Within thirty days after receipt of such notification, the proprietor may require the goods to be delivered to him against payment of the debt-claims resulting from the consignment note and against repayment of the compensation, which is reduced, where relevant, with the costs which have been included therein. Nevertheless he shall maintain his rights to claim compensation for exceeding the period for delivery mentioned in Article 8:1581 and 8:1583.
- 4. In the absence of the request mentioned in paragraph 2 or of any instructions given within the period specified in paragraph 3, or if the goods are rediscovered more than one year after the payment of compensation, the carrier shall dispose of them in accordance with the laws and regulations at the place where the goods find themselves.

Article 8:1578 Compensation for loss
- 1. In the event of total or partial loss of the goods, the carrier must pay, to the exclusion of all other damages, compensation calculated according to the commodity exchange quotation or, if there is no such quotation, according to the current market price, or if there is neither such quotation nor such price, according to the normal value of goods of the same kind and quality at the time and place at which the goods were taken over for transport.
- 2. The compensation shall not exceed 17 units of account per kilogramme of gross mass short. The unit of account is the Special Drawing Right as described by the International Monetary Fund. The amounts mentioned in paragraph 1 are converted into Dutch currency to the exchange rate on the day on which the payment is made. The value of Dutch currency, expressed in Special Drawing Rights, is calculated in accordance with the valuation methods applied by the International Monetary Fund to its own transactions and operations on the day of conversion.
- 3. Where a railway vehicle which rolls on its own wheels and which has been presented as the thing to be transported is lost, or where an intermodal transport unit or parts thereof are lost, the compensation shall be limited, to the exclusion of all other damages, to the usual value of the railway vehicle, the intermodal transport unit or its parts on the day when and the place where it was lost. If it is not possible to assess the day when or the place where it was lost, the compensation shall be limited to the usual value on the day when and the place where it was or should have been received.
- 4. The carrier shall in addition repay carriage charges, customs duties and other amounts incurred in connection with the transport of the lost goods, with the exception of excise duties related to goods which are transported under postponement of the payment of those excise duties.

Article 8:1579 Liability for wastage during transport
- 1. In respect of goods which, by reason of their nature, are generally subject to wastage during transport by the sole fact of transport, the carrier shall only be liable to the extent that the wastage exceeds the following allowances, whatever the length of the route:
a. two per cent of the mass for liquid goods or goods presented in a moist condition, and;
b. one per cent of the mass for dry goods.
- 2. The limitation of liability provided for in paragraph 1 may not be invoked if, having regard to the circumstances of the particular case, it is proved that the loss was not due to a cause which would justify an allowance.
- 3. Where several packages are transported under a single consignment note, the wastage during transport shall be calculated separately for each package if its mass upon despatch is shown separately in the consignment note or can otherwise be ascertained.
- 4. In the event of total loss of the goods or in the event of loss of packaging, no deduction for wastage during transport shall be made in calculating the compensation payable.
- 5. The present Article does not affect Articles 8:1571 and 8:1573.

Article 8:1580 Compensation for damage
- 1. In case of damage to goods, the carrier must, to the exclusion of all other damages, pay compensation equivalent to the decrease in value of the goods. The amount of the compensation shall be calculated by applying the percentage of decrease in value as assessed at the place of destination to the value of the goods as assessed in accordance with Article 8:1578.
- 2. The compensation may not exceed:
a. if the whole load has decreased in value through damage: the amount which would have been payable in case of total loss;
b. if only part of the load has decreased in value through damage: the amount which would have been payable had that part been lost.
- 3. Where a railway vehicle which rolls on its own wheels and which has been presented as the thing to be transported is damaged, or where an intermodal transport unit or parts thereof are damaged, the compensation shall be limited, to the exclusion of all other damages, to the costs of repair. The compensation shall not be more than the compensation payable in the event of loss of the aforementioned objects.
- 4. The carrier shall in addition refund the costs mentioned in Article 8:1578, paragraph 4, in the proportion set out in paragraph 1.

Article 8:1581 Compensation for exceeding the period for delivery
- 1. If damage, including damage to goods transported, has resulted from the fact that the period for delivery has been exceeded, the carrier shall pay a compensation of not more than four
times the carriage charges (transport fee).
- 2. In case of total loss of the goods, the compensation provided for in paragraph 1 shall not be payable in addition to that provided for in Article 8:1578.
- 3. In case of partial loss of the goods, the compensation provided for in paragraph 1 shall not be more than four times the carriage charges in respect of that part of the load which has not been lost.
- 4. In case of damage to the goods, not resulting from the fact that the period for delivery has been exceeded, the compensation provided for in paragraph 1 shall, where appropriate, be payable in addition to that provided for in Article 8:1580.
- 5. In no case shall the total of compensation payable under paragraph 1 together with that payable under Articles 8:1578 and 8:1580 be more than the compensation which would be payable in the event of total loss of the goods.
- 6. When the period for delivery has been agreed upon by contract in accordance with Article 8:1564, paragraph 1, it is possible to provide in that contract for an arrangement for compensation that derogates from paragraph 1. Where, in such event, the periods for delivery mentioned in Articles 8:1564, paragraph 2 up to and including 4, are exceeded, the proprietor of the goods may demand either the compensation provided for in the aforementioned contractual arrangement or the compensation provided for in paragraph 1 up to and including 5 of the present Article.

Article 8:1582 Declared higher value of the goods
The consignor and carrier may agree that the consignor specifies on the consignment note a value of the goods that is higher than the maximum amount as provided for in Article 8:1578, paragraph 2. In such event, the declared value takes the place of that maximum amount.

Article 8:1583 Compensation in case of special interest in delivery
De consignor and carrier may agree that the consignor declares to have a special interest in delivery by mentioning on the consignment note an amount in figures applicable in the event of loss or damage or of exceeding the period for delivery. In case of a declaration of interest in delivery, further compensation for loss or damage proved may be claimed, in addition to the compensation provided for in Articles 8:1578, 8:1580 and 8:1581, up to the amount declared.

Article 8:1584 Intent or conscious recklessness*)
The limitations of liability meant in Articles 8:1563 paragraph 3, 8:1567 paragraph 6 and 7, 8:1578, 8:1580 up to and including 8:1583 do not apply if it is proved that the damage is caused by an act or omission (neglect) of the carrier, committed either with the intent to cause such damage or committed recklessly with knowledge that such damage probably would result from it.

*) Where the carrier is a legal person, it shall have acted itself intenionally or conscious recklessly within the meaning of the present Article, when its Directors or its leading persons, authorized by the legal person to give instructions during the performance of work, have caused damage intenionally or consciously reckless.

Article 8:1585 Interest on compensation
If the proprietor of the goods has not, within a reasonable period set for this purpose, submitted the required pieces of evidence for a definite settlement of the claim, then no interest shall accrue on the payable compensation between the expiration of the aforementioned reasonable period and the moment on which the pieces of evidence are actually furnished.

Article 8:1586 Liability of the carrier for subordinates and other assisting persons
The carrier is liable for his subordinates and for other persons of whose assistance he makes use in the performance of the transport, when these subordinates or other persons have acted in the performance of their work. The operators of railway infrastructure on which the transport is carried out, are regarded as persons of whose assistance the carrier makes use in the performance of the transport

Article 8:1587 Other claims and actions
- 1. Where the present Title (Title 8.18) is applicable, it is only possible to file a claim against the carrier, irrespective of the legal basis thereof, under the conditions and restrictions of the present Title (Title 8.18)
- 2. The same applies to any claim filed against subordinates and other persons for whom the carrier is liable pursuant to Article 8:1586.

Section 8.18.4 Assertion of rights

Article 8:1588 Ascertainment of partial loss or damage
- 1. When partial loss of, or damage to, goods is discovered or presumed by the carrier or alleged by the proprietor of the goods, the carrier must without delay, and if possible in the presence of the proprietor, draw up an official report stating, according to the nature of the loss or damage, the condition of the goods, their mass and, as far as possible, the extent of the loss or damage, its cause and the time of its occurrence.
- 2. A copy of the official report must be supplied free of charge to the proprietors of the goods.
- 3. When the proprietor of the goods does not accept the findings in the official report, Article 8:1135 shall apply accordingly.

Article 8:1589 Assertion of debt-claims out of court
- 1. Debt-claims relating to the contract of carriage shall, where they are asserted out of court, be filed in writing with the carrier against whom the legal claim (right of action) may be filed*).
- 2. Debt-claims asserted out of court may be filed by the persons who are entitled to file a legal claim (right of action) against the carrier.
- 3. The consignor who asserts a debt-claim out of court, must submit the duplicate
of the consignment note. Failing this, he must submit an authorisation from the consignee or furnish proof that the consignee has refused to take delivery of the load.
- 4. The consignee who asserts a debt-claim out of court, must submit the consignment note if it has been handed over to him.
- 5. The consignment note, the duplicate thereof and any other documents which the proprietor of the goods wants to add to his debt-claim in order to assert it out of court, must be produced either in the original or, where the carrier requires so, as copies that have been duly authenticated.
- 6. On a settlement of the debt-claim out of court, the carrier may require the production, in the original form, of the consignment note, the duplicate thereof or the cash on delivery voucher so that they may be endorsed to the effect that settlement has been made.

*) When the creditor of a debt-claim demands performance out of court, which usually is the first step to collect his claim, he shall file his claim with the debtor who is obliged to carry out that performance. But not every debtor shall comply with or acknowledge the debt-claim. For this reason very property right, therefore also a debt-claim, is accompanied under law by a legal claim (right of action) on the basis of which the creditor (the proprietor of that debt-claim) is entitled to sue his debtor and which enables him to request the court for the issuance of an enforceable judgment in which the debtor is ordered to perform what he is due to the creditor or, otherwise, to pay an equal amount in money, sometimes added with additional damages. Where a proprietor makes use of his right to go to court in order to enforce his right, the Dutch Civil Code speaks of a legal claim (‘rechtsvordering’), thus of a right of action. In other cases, it mentions the property right as such, thus the debt-claim, the right of ownership, the mortgage and so on. This means that when a statutory provision of the Dutch Civil Code emphasizes that a legal claim may be filed, it always refers to the possibility to file a legal claim with the court by way of exercising a right of action. Surely, when a proprietor has such legal claim, he may also ask the person concerned out of court to do or to omit something.

Article 8:1590 Persons who may file a legal claim (right of action)*) against the carrier
- 1. Except for what is provided in paragraph 3 and 4, the following persons are entitled to file a legal claim (right of action) in court that is based on the contract of carriage:
a. the consignor up until the moment on which the consignee:
1° has taken over the consignment note;
2° has taken delivery of the goods;
3° has asserted the rights which are granted to him under Article 8:1565, paragraph 3, or Article 8:1566, paragraph 3;
b. the consignee as of the moment on which he:
1° - has taken over the consignment note;
2° has taken delivery of the goods;
3° has asserted the rights which are granted to him under Article 8:1565, paragraph 3, or Article 8:1566, paragraph 3.
- 2. The right of the consignee to file a legal claim (right of action) ceases to exist as soon as the person, assigned by him in conformity with Article 8:1566, paragraph 5, either has taken over the consignment note, or has taken delivery of the goods or has asserted the rights granted to him under Article 8:1565, paragraph 3, or Article 8:1566, paragraph 3.
- 3. The legal claim (right of action) for the repayment of an amount which has been paid on the basis of the contract of carriage, shall belong only to the person who has made that payment.
- 4. A legal claim (right of action) in respect of cash on delivery payments may be filed only by the consignor.
- 5. In order to file a legal claim (right of action), the consignor must submit a duplicate of the consignment note. In the absence thereof, he must submit an authorisation from the consignee or furnish proof that the consignee has refused to take delivery of the load. If necessary, the consignor must furnish proof that the consignment note is absent or lost.
- 6. In order to file a legal claim (right of action), the consignee must submit the consignment note if it has been handed over to him.

*) When the creditor of a debt-claim demands performance out of court, which usually is the first step to collect his claim, he shall file his claim with the debtor who is obliged to carry out that performance. But not every debtor shall comply with or acknowledge the debt-claim. For this reason very property right, therefore also a debt-claim, is accompanied under law by a legal claim (right of action) on the basis of which the creditor (the proprietor of that debt-claim) is entitled to sue his debtor and which enables him to request the court for the issuance of an enforceable judgment in which the debtor is ordered to perform what he is due to the creditor or, otherwise, to pay an equal amount in money, sometimes added with additional damages. Where a proprietor makes use of his right to go to court in order to enforce his right, the Dutch Civil Code speaks of a legal claim (‘rechtsvordering’), thus of a right of action. In other cases, it mentions the property right as such, thus the debt-claim, the right of ownership, the mortgage and so on. This means that when a statutory provision of the Dutch Civil Code emphasizes that a legal claim may be filed, it always refers to the possibility to file a legal claim with the court by way of exercising a right of action. Surely, when a proprietor has such legal claim, he may also ask the person concerned out of court to do or to omit something.

Article 8:1591 Carriers against whom a legal claim (right of action) can be filed
- 1. Except for what is provided in paragraph 3 and 4, legal claims (rights of action) based on the contract of carriage can be filed in court only against the first or last carrier or against the carrier who has performed that part of the transport during which the circumstance has occurred which has lead to the legal claim.
- 2. Where the transport is performed by subsequent (succeeding) carriers, the legal claim (right of action) can be filed in accordance with paragraph 1 against the carrier who had to deliver the goods and who, with his consent, is mentioned as such on the consignment note, even when he has not received the goods or the consignment note.
- 3. A legal claim (right of action) for the repayment of an amount that has been paid on the basis of the contract of carriage can be filed only against the carrier who has collected this amount or against the person on whose behalf this amount has been collected.
- 4. A legal claim (right of action) in respect of cash on delivery payments can be filed only against the carrier who has taken over the goods for delivery at the place of despatchment.
- 5. A legal claim (right of action) can be filed against other carriers than the ones meant in paragraph 1 and 4 if it concerns a legal counterclaim (counter right of action) or a defence in legal proceedings on a principal legal claim that is based on the same contract of carriage.
- 6. To the extent that the present Title (Title 8.18) applies to a subcontracting carrier, a legal claim (right of action) may be filed also against him.
- 7. If the plaintiff can choose between several carriers, his right to choose shall cease to exist as soon as he has filed a legal claim (right of action) against one of them; the same applies where the plaintiff can choose between one or more carriers and a subcontracting carrier.

Article 8:1592 Legal presumption when delivery is taken of the goods
- 1. By taking delivery of the goods the proprietor is presumed to have received the goods in good condition and in time.
- 2. This legal presumption can be contested only:
a. in case of partial loss or damage, if:
1° the loss or damage has been ascertained in accordance with Article 8:1588 prior to the moment that the proprietor has taken delivery of the goods, or;
2° the ascertainment which had to take place in accordance with Article 8:1588, has not taken place solely due to fault of the carrier.
b. in case of externally not visible damage which has been discovered after the proprietor has taken delivery of the goods, if he:
1° demands ascertainment in accordance with Article 8:1588 immediately after he has discovered the damage and at the latest within seven days after he has taken delivery of the goods, and;
2° furthermore furnishes proof that the damage has arisen between the moment that the goods were taken over for transport and the moment of delivery.
c. in case that the period for delivery has been exceeded, if the proprietor of the goods has asserted his rights within sixty days against a carrier as referred to in Article 8:1591, paragraph 1;
d. if the proprietor of the goods furnishes proof that the damage has arisen from an act or omission (neglect) of the carrier, committed either with the intent to cause such damage or committed recklessly with knowledge that such damage probably would result from it.
- 3. If the goods have been re-despatched (reconsigned) in accordance with Article 8:1576, legal claims (rights of action) in case of partial loss or of damage, arising from one of the previous contracts of carriage, shall cease to exist as if there had been only one contract of carriage.

Section 8.18.5 Mutual relations between carriers

Article 8:1593 Settlement of accounts between carriers
- 1. Each carrier must pay to the carriers concerned their respective shares in the carrier charges, costs or other debt-claims arisen from the contract of carriage, which he has collected or should have collected, either at the time of departure or on arrival. The methods of payment shall be settled by agreements between the carriers.
- 2. Article 8:1560 shall apply also to the relations between subsequent (succeeding) carriers.

Article 8:1594 Right of recourse
- 1. The carrier who pursuant to the present Title (Title 8.18) has paid a compensation (damages), has a right of recourse against the other carriers who have taken part in the transport in accordance with the following provision:
a. the carrier who has caused the loss or damage shall be solely liable for it;
b. when the loss or damage has been caused by more than one carrier, each of them shall be liable for the loss or damage he has caused; if such attribution cannot be made, the compensation shall be apportioned between them in accordance with that is provided under (c);
c. if it cannot be proved that the loss or damage has been caused by one or more carriers in particular, the compensation shall be apportioned between all the carriers who have taken part in the transport, except those who can prove that the loss or damage was not caused by them; such apportionment shall be in proportion to the share of each carrier in the total carriage charges (transport fee).
- 2. In the case of the insolvency of any one of the carriers, the unpaid share due from him shall be apportioned among all the other carriers who have taken part in the transport, in proportion to the share of each carrier in the total carriage charges (transport fee).

Article 8:1595 Procedure for recourse
- 1. The validity of the payment made by the carrier exercising one of the rights of recourse under Article 8:1594 cannot be disputed by the carrier against whom the right of recourse is exercised, when compensation has been determined by a court and when the latter carrier duly served with notice, has been afforded an opportunity to intervene in the legal proceedings. The court seized for a decision on the principal legal claim shall determine what time shall be allowed for such official service of a notice and for intervention in the legal proceedings.
- 2. A carrier exercising his right of recourse must file his legal claim (right of action) in one and the same legal proceedings against all the carriers concerned with whom he has not reached a settlement, on pain of losing his right of recourse against those carriers against whom no legal claim (right of action) has been filed.
- 3. The court shall give its decision in one and the same judgment on all recourse claims brought before it.
- 4. Legal claims (right of action) for recourse cannot be filed by means of a legal claim (right of action) filed in the legal proceedings which the proprietor of the goods has initiated in order to obtain compensation (damages) on the basis of the contract of carriage.

Article 8:1596 Agreements between carriers concerning recourse
The carriers may mutually enter into agreements which derogate from Articles 8:1593 and 8:1594.