Dutch
Civil Code
Book 8 Transport law and means of transport
Section 8.19.1 Liability for railway vehicles and railway infrastructure
Article 8:1661 Liability
- 1. The liability
on the basis of Article 6:173 with regard to a railway vehicle which is
in use by a railway company rests upon that railway company. If the railway
vehicle is in use by an enterprise of another kind, then this liability
rests upon that enterprise. Where the railway vehicle is used because
it is placed at the disposal of another person in order to be used in
the pursuance of his business, this liability rests upon that other person.
- 2. The liability on the basis of Article
6:174 with regard to railway infrastructure rests upon the (commercial)
operator of that infrastructure.
Articles 8:1662 - 8:1669 [reserved for future legislation]
Section 19.1.2 Hazardous substances on board of a railway vehicle
Article 8:1670 Definitions
In the present Section (Section 19.1.2), 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. ‘railway vehicle’ means: any
vehicle equipped to ride on rails;
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 railway vehicle on board of which the
hazardous substance finds itself, caused by the hazardous substance, except
for loss of or damage in relation to other railway vehicles and property
on board thereof, if such railway vehicles are part of a pulled or towed
train of which also that railway 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 8.19.2);
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;
Article 8:1671 Sphere of application
- 1. The present Section (Section 8.19.2) does
not apply if the railway company is liable 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 8.19.2) is
applicable during the period in which a hazardous substance finds itself
on board of a railway vehicle, including the period from the start of
the loading of the hazardous substance into the railway vehicle until
the end of the unloading of that substance from the railway vehicle.
- 3. The present Section (Section 8.19.2) does
not apply to damage caused when the railway 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.
Article 8:1672 Stack transportation / towing service
If a hazardous substance finds itself in a means of transport that is
on board of a railway 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 railway vehicle.
In derogation from what is provided in the preceding sentence, the hazardous
substance shall be deemed to be exclusively on board of that stacked means
of transport during the acts referred to in Article 8:1673, paragraph
5, under (c), (d) and (e).
Article 8:1673 Liability of the railway company
- 1. The railway company which, at the time
of an incident with a railway vehicle on board of which a hazardous substance
finds itself, has the right of say in regard of the use of that railway
vehicle, is liable for the damage caused by that substance as a result
of that incident. If the hazardous substance finds itself in a railway
vehicle which is moved forward by tractive power, the right of say in
regard of the use of the railway vehicle rests with the railway company
that has the right of say in regard of the tractive power. Where the incident
consists of a series of occurrences having the same origin, the liability
rests on the railway company that has the right of say in regard of the
use of the railway vehicle at the time of the first of these occurrences.
- 2. The railway company 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 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 the railway company of the hazardous
nature of the substance, and neither the railway company nor the persons
mentioned in paragraph 5, under (a), knew or ought have known that it
was hazardous.
- 3. If the railway company proves that the
damage resulted wholly or partially either from an act or omission committed
with the intent to cause damage by the person who suffered the damage
or from the negligence of that person, the railway company may be exonerated
wholly or partially from its liability towards such person.
- 4. The railway company can only be held liable
otherwise than pursuant to the present Section (Section 8.19.2) in the
situation referred to in paragraph 2, under (c), as well as in the situation
that it is held liable on account of an employment contract. In the situation
meant in paragraph 2, under (c), the railway company may limit its liability
as if it was liable under the present Section (Section 8.19.1).
- 5. Subject to Articles 8:1674 and 8:1675,
not liable for damage shall be:
a. the subordinates, representatives (agents)
or mandataries of the railway company;
b. any person who performs work on behalf of
the railway vehicle;
c. any person who, other than in conflict with
an express and reasonable prohibition on account of the railway company,
renders salvage assistance to the railway vehicle or to the persons and
property on board thereof;
d. any person rendering salvage assistance
to the railway vehicle or to the persons and property on board thereof
on instruction of a competent public authority;
e. any person, other than the railway company,
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, 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 railway company
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.
- 7. For the purpose of the present and the
next Article, the persons meant in paragraph 5, under (a), shall include
the (commercial) operator of the railway infrastructure which is used
by the railway company.
Article 8:1674 Damage caused during loading or unloading
- 1. If the railway company proves that the
hazardous substance has been loaded into or unloaded from the railway
vehicle during the period meant in Article 8:1671, paragraph 2, under
the sole responsibility of a person other than the railway company or
its subordinates, representatives (agents) or mandatries, such as the
consignor or the recipient, and it discloses the identity of such person,
then it 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 8.19.2).
- 2. Where, however, the hazardous substance
has been loaded or unloaded during the period meant in Article 8:1671,
paragraph 2, under the joint responsibility of the railway company and
the other person whose identity has been disclosed by the railway company,
the railway company and that other person shall be joint and several liable
in accordance with the present Section (Section 8.19.2) 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 railway
company is liable on the basis of paragraph 1 or 2, this other person
cannot invoke Article 8:1673, paragraph 5 and 6, under (b).
- 5. If another person than the railway company
is liable on the basis of paragraph 1 or 2, then Articles 8:1678 up to
and including 8:1680 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
pursuant to Article 8:1678, 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 shall, pursuant
to Article 8:1679, 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 railway company and the other person mentioned in paragraph 2 of the
present Article, the railway company is not obliged to bear any compensation
paid other than in the event of a fault of itself or of its subordinates,
representatives (agents) or mandataries.
- 7. The present Article does not apply if
during the period referred to in Article 8:1671, 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 8:1673, paragraph 6, under (c), (d)
or (e).
Article 8:1675 Liability of the consignor or another person
Where the railway company is not liable because of what is provided in
Article 8:1637, paragraph 3, under (c), the consignor or other person
shall be liable under the present Section (Section 8.19.2), and Articles
8:1678 up to and including 8:1680 shall apply to him. The consignor or
other person may not invoke Article 8:1637, paragraph 5.
Article 8:1676 Damages 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 8.19.2).
Article 8:1677 Damage caused by hazardous substances on board of more
than one (railway) vehicle
- 1. When one single incident causes damage
as a result of hazardous substances on board of more than one railway
vehicle and on board of one or more road vehicles or hovercraft, then
the railway companies that had the right of say in regard of the use of
the railway vehicles, and the (commercial) operators of those road vehicles
or hovercraft, shall be joint and several liable for all damage of which
cannot reasonably be assumed that it was caused by hazardous substances
on board of one or more specific railway vehicles or an board of a specific
road vehicle or hovercraft, all without prejudice to what is provided
in Article 8:1673, paragraph 2 and 3, and Article 8:1674 and Section 8.14.1.
- 2. The provisions in paragraph 1 shall not
affect the limitation of the liability which the railway company or the
(commercial) operator of that road vehicle or hovercraft may invoke pursuant
to the present Section (Section 8.19.2) or Articles 8:1218 up to and including
8:1220, for each of them up to the amount applicable to him.
Article 8:1678 Limitation of liability to maximum amounts; intent or conscious
recklessness
- 1. The railway company may limit its liability
per incident to an amount or amounts to be determined by Order in Council,
which amounts may be different for claims in respect of death or physical
injury and other claims.
- 2. The railway company is not entitled to
limit its liability if the damage is caused by its own act or omission
(neglect), committed either with the intent to cause such damage, or committed
recklessly and with knowledge that such damage probably would result from
it
Article 8:1679 Liability fund
In order to be able to invoke the limitation of liability referred to
in Article 8:1678, the railway company must constitute a fund or funds
in conformity with Article 8:1680.
Article 8:1680 Request for a limitation of liability and a distribution
of the amount for compensation
- 1. He (including the railway company) who
wants to make use of the possibility to limit his liability as granted
to him under Article 8:1678, 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 8:1678, 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 1678, 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 railway company
with respect to expenses and sacrifices which it 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 8:1678, paragraph
1.
Articles 8:1681 - 8:1699 [reserved for future legislation]
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