Dutch
Civil Code
Book 8 Transport law and means of transport
Title 8.5 (Commercial) Operation
Section 8.5.1 General provisions
Article 8:360 Liability of the shipowner
- 1. The shipowner is, next and in addition
to the bareboat charterer, jointly and severally liable for a juridical
act binding the latter that seeks to bring the ship into operation or
to keep it in operation. For this purpose a juridical act includes the
receipt of a declaration.
- 2. Paragraph 1 does not apply if it has been
made known to the person with whom the juridical act meant in that paragraph
has been performed, that the bareboat charterer is not allowed to bind
(to commit) the shipowner or if the third person knew or, without any
research of his own, ought to have known that the objective meant in paragraph
1 was exceeded.
- 3. Paragraph 1 does not apply in respect
of contracts of carriage, contracts for the performance of labour entered
into with the crew and contracts as mentioned in Section 8.5.4 or Section
8.10.4.
- 4. Paragraph 1 does not apply if the shipowner
has been deprived of the actual power over the ship by an unlawful act
and, in addition, the creditor did not act in good faith.
- 5. He who pays pilotage, channel or harbor
duties or other shipping rights on behalf of the ship owner, a bareboat
charterer, a time charterer or the captain (master) or on behalf of any
other debtor of such pilotage, duties or rights, shall be subrogated by
operation of law in the rights of the creditor of these debt-claims.
Article 8:361 'Contract of exploitation' and 'chain of contracts of exploitation'
- 1. The term 'contract of exploitation'*)
means: the chartering of the ship and the contracts for the carriage of
goods or the transport of persons with the ship.
- 2. The term 'chain of contracts of exploitation'
means: the contracts of exploitation sequenced:
a. in regard to chartering: starting with a
possibly concluded bareboat charter and subsequently in the order in which
the charterers have derived from each other the power to have the ship
at their disposal.
b. in regard to contracts of carriage not being
chartering contracts: starting with the contract of carriage entered into
by a carrier who has the ship or any part thereof at his disposal, and
ending with the contract of carriage entered into between a carrier by
ship and its counterparty who, in his turn, is not again the carrier by
ship.
- 3. For the purpose of Articles 8:361 up to
and including 8:366 a passenger is regarded as a party to the contract
of carriage that was entered into in regard to him.
- 4. In the Articles 8:361 up to and including
8:366 the term ‘damage’ shall include non-delivery, partial
or complete loss, decrease in value and delayed delivery and the term
‘physical injury’ shall include delayed disembarkation.
*) 'Exploitation' means the commercial or effective utilization and operation.
Article 8:362 Liability towards counterparty on a non-contractual legal
ground
If a party to a contract of exploitation (commercial utilization) is held liable on a non-contractual
legal ground by his counterparty to that contract for damage arising out
of the exploitation (commercial utilization) of the ship, then he shall not be liable towards that
counterparty for more than for which he would have been liable on the
basis of the contract they have entered into.
Article 8:363 Liability towards another party on a non-contractual legal
ground
If a party to a contract of exploitation is held liable on a non-contractual
ground by another party to such a contract for damage arising out of the
exploitation (commercial utilization) of the ship, then he shall not be liable towards that other
party for more than for which he would have been liable if he would have
been the counterparty to the contract of exploitation concluded between the
one who is holding him liable and which, within the chain of contracts of exploitation, lays between him and the latter.
Article 8:364 Liability towards third persons on a non-contractual legal
ground
- 1. If a shipowner or charterer of a ship
or a carrier by ship is held liable on a non-contractual legal ground
in respect of the death or physical injury of a person or in respect of
damage to property by somebody who is not a party to a contract of exploitation (commercial utilization),
then he shall not be liable towards that someone for more than for which
he would be liable on a contractual legal ground.
- 2. Where a contract of transport or carriage
had been concluded in relation to the person or property meant in paragraph
1 and the death or physical injury or damage was caused in the period
during which a carrier by ship as such was liable therefore, then the
last contract in the chain of contracts of exploitation (commercial utilization) that has been entered
into in regard of that person or property is deemed to be the contract
meant in paragraph 1.
- 3. Where a person or property was on board
of the ship under a contract with a party to a contract of exploitation, yet
the previous paragraph is not applicable, then the first meant contract
in the present paragraph is deemed to be the contract meant in paragraph
1.
- 4. Where a person or property was on board
of the ship other than pursuant to a contract in respect thereof, then
a contract of carriage is deemed to be the contract meant in paragraph
1.
- 5. The liability referred to in paragraph
1 is for the purpose of paragraph 2 and 4 that of a carrier, and for the
purpose of paragraph 3 that of the party mentioned therein.
Article 8:365 Liability of subordinates
Where a debt-claim as referred to in Articles 8:362 up to and including
8:364 is based on a non-contractual legal ground and filed against a subordinate
of a party to a contract of exploitation (commercial utilization) and
that party may, in order to defend himself against his liability for the
conduct of that subordinate, derive a means of defence from the contract
that he may invoke against the plaintiff, as a result of which his liability
is governed by the before mentioned Articles 8:362 up to and including
8:364, then also the subordinate may invoke that means of defence as if
he were a party to the contract himself.
Article 8:366 Limitation of the total of the amounts of liability
The total of the amounts recoverable from a third person who is a party
to a contract of exploitation (commercial utilization) and from his subordinates,
whether or not together with the amounts recoverable from the counterparty
of the one who filed the claim meant in Article 8:363 or 8:364, and this
counterparty’s subordinates, may not exceed the total amount due
on account of the contract invoked by them, except when the damage was
caused by an own action or omission (neglect) of the person who is held
liable, either done with the intent to cause damage, or done recklessly
and with the knowledge that such damage would probably result therefrom.
Section 8.5.2 Contract of carriage of goods by sea
Article 8:370 Definition of a ‘contract of carriage of goods’
- 1. A contract
of carriage of goods in the sense of the present Title (Title 8.5) is
a contract of carriage of goods, whether or not being a time or voyage
charter, under which one party (the carrier) has engaged himself towards
the other party (the consignor*) to transport goods on board of a ship
exclusively by sea.
- 2. Transport of goods by sea and by inland
waterway on board of one and the same ship which navigates both types
of waters, is regarded as carriage by sea, unless the navigation of that
ship over sea apparently is secondary to its navigation over inland waterways,
in which case its navigation is regarded as navigation by inland waterway.
- 3. Transport of goods by sea and by inland
waterway on board of one and the same ship which is not mechanically propelled
of its own and which navigates both types of waters, is regarded as carriage
by sea insofar as the navigation of the ship that is mechanically propelled
and that renders its power to move is regarded, with due observance of
paragraph 2 of the present Article, as navigation by sea. As far is this
is not the case, such transport is regarded as carriage by inland waterway.
- 4. For the purpose of implementing the universal
postal service under the Postal Act 2009 or under an international postal
agreement, the present Section (Section 8.5.2) shall not apply to contracts
of carriage of mail. Except for Article 8:510, the present Section (Section
8.5.2) does not apply to contracts for transporting luggage.
*) In International Conventions and other legislation the consignor is also called ‘the shipper’ or ‘the sender’.
Article 8:371 Direct applicability of the Hague-Visby Rules*)
- 1. For the purpose of the present Article
‘amended Convention’ means: the Convention of 25 August 1924
for the Unification of Certain Rules of Law relating to Bills of Lading
(Treaty Series 1953, 109), including the provision appearing in Section
1 of the accompanying Protocol of signature, as that Convention was amended
by the Protocol signed at Brussels on 23 February 1968 (Treaty Series
1979, 26) and as furthermore amended by the Protocol signed at Brussels
on 21 December 1979 (Treaty Series 1985, 122).
- 2. For the purpose of the present Article
‘Contracting State’ means: a State that is a party to the
amended Convention.
- 3. Articles 1 up to and including 9 of the
amended Convention shall apply to every bill of lading that relates to
the carriage of goods between ports in two different States, if:
a. the bill of lading is issued in a Contracting
State, or;
b. the transport (carriage) is from a port
in a Contracting State, or;
c. the contract, as contained in or evidenced
by the bill of lading, provides that this contract is governed by the
provisions of the amended Convention or by any legislation giving effect
to these provisions of the Convention or that has taken over those provisions
in another way or wording, whatever may be the nationality of the ship,
the carrier, the consignor (shipper), the consignee, or any other interested
person.
Article 8:372 Titles 8.7 and 8.10 remain applicable in full*)
The present Section (Section 8.5.2) does not affect Titles 8.7 and 8.10.
Article 8:373 Definition of a ‘time or voyage charter’
- 1. A time or voyage charter in the sense
of the present Section (Section 8.5.2) is a contract of carriage of goods
under which the carrier has engaged himself to transport goods on board
of a ship, which he, other than by way of bareboat chartering, places
in its entirety or in part, and whether or not on a time base (time charter
or voyage charter), at the disposal of the consignor (shipper).
- 2. In the present Section (Section 8.5.2)
the term ‘lessor’ shall mean ‘carrier’ as mentioned
in paragraph 1, and the term ‘charterer’ shall mean ‘consignor’
(‘shipper’) as mentioned in paragraph 1.
Article 8:374 (Non) application of legal provisions for lease, safe custody
and loan for use
The legal provisions on lease contracts, safe custody contracts and loan
for use contracts do not apply where a ship has been placed at the disposal
of someone else other than by way of bareboat chartering.
Article 8:375 Transfer of ownership of a chartered ship
- 1. In the event of the transfer of ownership
of a chartered registered or not registered ship to a third person, that
third person succeeds to all rights and obligations of the lessor who
nevertheless remains bound to the contract next and in addition to the
new owner of the ship.
- 2. Rights and obligations which have become
due and demandable prior to the transfer of ownership do not shift over
Article 8:376 [repealed on 01-01-1992]
Article 8:377 Definition of a ‘contract of carriage under a bill
of lading’*)
In the present Title (Title 8.5) a ‘contract of carriage under a
bill of lading’ means: a contract of carriage embodied in (covered
by) a bill of lading or any similar document forming a title for the carriage
of goods by sea; it also means the contract of carriage embodied in (covered
by) a bill of lading or similar document as aforesaid issued under or
pursuant to a charterparty) (i.e. a contract of chartering embodied in
a standard document) from the moment at which such bill of lading or similar
document of title regulates the relations between a carrier and a holder
of the same.
Article 8:378 Main obligations of the carrier*)
The carrier is obliged to deliver the goods received for carriage at the
place of destination in the state (condition) in which he received them.
*) It is assumed in the Netherlands that the Hague-Visby Rules impose the same obligations upon the carrier.
Article 8:379 Delay*)
Without prejudice to Article 8:378, the carrier is obliged to transport
the goods received for carriage without delay.
*) It is commonly assumed in the Netherlands that the Hague-Visby Rules only provide rules for the liability and compensation for loss and damage, and not for delay.
Article 8:380 Instructions to the captain (master) in case of a time charter
- 1. In case of a time charter, the lessor
is obliged to instruct the captain (master) to follow the orders of the
charterer within the boundaries set by the contract. The lessor guarantees
that the captain (master) shall comply with the orders given to him.
- 2. The charterer guarantees that the ship
can safely reach, occupy and leave the locations or places to which he
orders it, on the basis of paragraph 1, to go for loading, unloading or
otherwise. If these locations or places do not appear to meet these requirements,
then the charterer shall be liable only insofar as the captain (master),
by following the orders given to him, has acted unreasonably.
- 3. Without prejudice to Article 8:461, the
charterer is bound as well by and may derive rights from a juridical act
which the captain (master) performed pursuant to paragraph 1 of the present
Article. For this purpose a juridical act includes the receipt of a declaration.
Article 8:381 Duty of the carrier to exercise due diligence*)
- 1. Under a contract of carriage under a bill
of lading, the carrier shall be bound, before and at the beginning of
the voyage, to exercise due diligence:
a. to make the ship seaworthy;
b. to properly man, equip and supply the ship;
c. to make the holds, refrigerating and cool
chambers and all other parts of the ship in which goods are carried, fit
and safe for the reception, carriage and preservation of the goods.
- 2. In the event of a contract of carriage
under a bill of lading, the carrier is obliged, subject to Articles 8:383,
8:388, 8:414 paragraph 4 and 8:423, to properly and carefully load, handle,
stow, carry, keep, care for and discharge (unload) the goods carried.
*) See also Article 3, paragraph 1 and 2, of the Hague-Visby Rules.
Article 8:382 Mandatory law in case of carriage under a bill of lading*)
- 1. Any clause in a contract of carriage under
a bill of lading relieving the carrier or the ship from liability for
loss of or damage to or in connection with goods arising from negligence,
fault or failure in the duties and obligations provided for in Articles
8:381, 8:399, 8:411, 8:414 paragraph 1, 8:492, 8:493 or 8:1712 or lessening
such liability otherwise than in the way as provided for in the present
Section (Section 8.5.2) or in Articles 8:361 up to and including 8:366,
shall be null and void and of no effect. A clause as a result of which
the benefit under an insurance policy belongs to the carrier or any clause
with a similar necessary implication shall be deemed to be made in order
to relieve the carrier from his liability.
- 2. Notwithstanding paragraph 1, a clause
as mentioned there shall be valid if it concerns:
a. a permitted clause concerning general average;
b. live animals;
c. goods which actually are transported on
the deck provided that they are specified in the bill of lading as deck
cargo.
*) See also Article 1, under c, and Article 3, paragraph 8, of the Hague-Visby Rules.
Article 8:383 Statutory exemption of liability*)
- 1. Under a contract of carriage under a bill
of lading, neither the carrier nor the ship shall be liable for loss or
damage arising or resulting from unseaworthiness, unless caused by lack
of due diligence on the part of the carrier to make the ship seaworthy,
to secure that the ship is properly manned, equipped and supplied, or
to make the holds, refrigerating and cool chambers and all other parts
of the ship in which goods are carried fit and safe for their reception,
carriage and preservation in accordance with the provisions of Article
8:381 paragraph 1. Whenever loss or damage has resulted from unseaworthiness,
the burden of proving the exercise of due diligence shall be on the carrier
or other person claiming under the present Article exemption of liability.
- 2. Under a contract of carriage, whether
or not under a bill of lading, neither the carrier nor the ship shall
be liable for any loss or damage caused by or arising from:
a. act, neglect (omission) or default of the
captain (master), another member of the crew, the pilot or subordinates
of the carrier, committed in the navigation or the operation (management)
of the ship;
b. fire, unless caused by an own fault of the
carrier himself;
c. perils, dangers and accidents of the sea
or other navigable waters;
d. natural event (act of God);
e. act of war;
f. act of enemies of the State;
g. arrest or restraint imposed by higher authorities
or seizures under legal process;
h. quarantine restrictions;
i. act or omission of the consignor (shipper)
or owner of the goods, his agent or representative;
j. strikes or lock-outs or stoppage or restraint
of labour from whatever cause, whether partial or general;
k. riots and civil commotions;
l. saving or attempting to save life or property
at sea;
m. wastage in bulk or weight or any other loss
or damage arising from concealed defect or from the particular nature
of or a defect in the goods;
n. insufficiency of packing;
o. insufficiency or inadequacy of marks;
p. concealed defects not discoverable by due
diligence;
q. any other cause not resulting from the own
fault of the carrier himself or from the fault or neglect (omission) of
the agents or subordinates of the carrier, but the burden of proof shall
be on the person claiming the benefit of this exemption to show that neither
the personal fault of the carrier nor the fault or neglect (omission)
of the agents or subordinates of the carrier contributed to the loss or
damage.
- 3. Under a contract of carriage under a bill
of lading, the consignor (shipper) is not liable for loss or damage sustained
by the carrier or the ship arising or resulting from any cause without
the act, fault or neglect (omission) of the consignor (shipper), his agents
or his subordinates.
- 4. No deviation from the course in order
to save or to attempt to save human life or property at sea and no reasonable
deviation from the course shall be deemed a breach of any contract of
carriage, and the carrier shall not be liable for any loss or damage resulting
therefrom.
- 5. The consignor (shipper) shall be at liberty
to prove liability for loss or damage arising or resulting from the own
fault of the carrier himself or from the fault of his subordinates, not
consisting of any act, neglect (omission) or default as referred to in
paragraph 2, under a.
Article 8:384 Surrender of exemptions and increase of liabilities*)
The carrier shall be at liberty to surrender in whole or in part all or
any of his rights and exemptions of liability (immunities) resulting from
the Articles mentioned in Article 8:382, paragraph 1, or from Articles
8:383, 8:388, 8:414, paragraph 4, or 8:423, or to increase any of his
liabilities and obligations resulting from any of those Articles, provided
that in the event of a contract of carriage under a bill of lading such
surrender or increase shall be embodied (shown) in the bill of lading
issued to the consignor (shipper).
Article 8:385 Contractual disclaimer in case of extraordinary goods and
circumstances*)
Notwithstanding Article 8:382 paragraph 1, a clause as referred to therein
is valid where it concerns the carriage of goods which by their nature
or condition (quality) justify a special contract and the transport of
these goods has to be done under circumstances or terms or conditions
that justify a special contract. The previous sentence, however, shall
apply only when no bill of lading has been issued for the transport of
these goods, but instead a document has been issued that according to
its wording is non-negotiable, and provided that it does not concern an
ordinary commercial cargo loaded on the occasion of an ordinary commercial
transaction.
Article 8:386 Contractual freedom prior to the loading
and after the unloading*)
Notwithstanding Article 8:382 paragraph 1, the carrier and the consignor
(shipper) shall be at liberty to include in the contract of carriage any
clause (stipulation), any condition, any reservation or any exemption
(immunity) in regard of the obligations and liabilities of the carrier
or the ship for loss of or damage to the goods or concerning their custody,
care or handling that occurred prior to their loading on and/or after
their unloading from the ship on which the goods are carried by sea.
Article 8:387 Rights of the consignor (shipper) in case of a non-performance
of the carrier
Insofar as the carrier is liable for failing to comply with the obligations
imposed upon him on account of Articles 8:378 and 8:379, the consignor
(shipper) has no other right than to demand payment of the amounts mentioned
in Article 8:388 or as agreed under the application of Article 8:384.
Article 8:388 Limitation of liability*)
- 1. Unless the nature and value of the goods
have been declared (specified) by the consignor (shipper) before loading
and this declaration is inserted in the bill of lading, if issued, neither
the carrier nor the ship shall in any event be liable for any loss of
or damage to or in connection with the goods to an amount higher than
the equivalent of 666.67 units of account per package or unit, or 2 units
of account per kilogram of gross weight of the goods lost or damaged,
whereby the highest of these amounts has to be taken into consideration.
- 2. The total amount due shall be calculated
by reference to the value which goods as accepted for carriage would have
had at the time when and the place where they are delivered or should
have been delivered. The value specified in this paragraph shall be calculated
according to the commodity exchange rate or, if no such rate is available,
to its current market value or, if such value is available neither, to
the normal value of goods of the same kind and quality.
- 3. Where a container, pallet or similar article
of transport is used to bring goods together, each package or unit which
according to the enumeration in the bill of lading is packed in that article
of transport, is deemed to be a package or unit as meant in paragraph
1. In a situation other than as described in the previous sentence, the
article of transport shall be regarded as a package or unit.
- 4. The unit of account mentioned in the present
Article is the Special Drawing Right as defined by the International Monetary
Fund. The amounts mentioned in paragraph 1 shall be converted into Dutch
currency at the rate on the day on which the payment is made. The value
of the Dutch currency in terms of the Special Drawing Right shall be calculated
in accordance with the method of valuation that the International Monetary
Fund applies to its own operations and transactions on the day of conversion.
- 5. Neither the carrier nor the ship may limit
its liability by invoking the present Article or Article 8:414 paragraph
4, if it is proved that the damage arose from an act or omission of the
carrier done with the intent to cause damage or done recklessly and with
knowledge that damage would probably result.
- 6. By agreement between the carrier, the
captain (master) or the agent of the carrier on the one hand and the consignor
(shipper) on the other hand, other maximum amounts than those mentioned
in paragraph 1 may be fixed, provided that such amounts in case of a contract
of carriage under a bill of lading shall not be less than the ones mentioned
in paragraph 1.
- 7. Neither the carrier nor the ship shall
in any event be liable for loss of or damage to or in connection with
goods, if the nature or value thereof has been intentionally misstated
by the consignor (shipper) in the bill of lading.
Article 8:389 Decrease in value of the goods transported
If a reward for rendering assistance (salvage), a contribution in general
average or a compensation for damages under Article 8:488 is due in regard
of goods, it shall be regarded as a decrease in value of those goods.
Article 8:390 Right of termination when the ship is not available
- 1. A time or voyage charterer is entitled
to terminate the contract when the lessor has notified him that the ship
is not or will not be able to be placed at his disposal at the agreed
place or time.
- 2. He can only exercise this right by sending
a message as referred to in paragraph 5 within a reasonable time after
he received the lessor’s notice meant in paragraph 1, which reasonable
time may not exceed 48 hours after the receipt of the lessor’s notice.
- 3. If in the absence of the receipt of a
notice as referred to in paragraph 1, the charterer has become aware for
any other reason that the ship is not or cannot be placed at his disposal
at the agreed place or time, then he has the right, without any formal
notice being necessary, to terminate the contract, but only if he does
so within a reasonable time after he has become aware of the aforesaid,
which time may not exceed 48 hours after he has become aware of the aforesaid.
He has the same right if he, after he received a notice of the lessor
as referred to in paragraph 1, has become aware, for any other reason
than those which brought the lessor to give his notice, that the ship
is not or cannot be placed at his disposal at the agreed place or time.
- 4. The period referred to in the present
Article shall be suspended on those Saturdays, Sundays and local holidays
when no work at all is performed at the office of the charterer.
- 5. The termination is notified by telegram
or telex or by any other urgent message of which the receipt [at the address
of the lessor] can be evidenced clearly, and the contract shall end at
the moment of the receipt of that message.
Article 8:391 Obligation of the consignor (shipper) to present the goods
in time
The consignor (shipper) is required to compensate the carrier for the
damage that the latter suffers because the agreed goods are not placed,
for whatever reason, at his disposal at the agreed place and time.
Article 8:392 Right of termination of the consignor (shipper) and carrier
- 1. As long as the goods (cargo) are not placed
at the disposal of the carrier, the consignor (shipper) is entitled to
terminate the contract.
- 2. Where after the end of the period within
which the goods should have been placed at the disposal of the carrier,
extended with demurrage time, no goods at all have been placed, for whatever
reason, at the disposal of the carrier, the carrier is entitled to terminate
the contract without any formal notice being required.
- 3. Where after the end of the period meant
in paragraph 2, only a part of the agreed goods have, for whatever reason,
been placed at the disposal of the carrier, the carrier is entitled either
to terminate the contract without any formal notice being required, or
to accept the voyage.
- 4. The termination shall be notified by telegram
or telex or by any other urgent message of which the receipt [at the address
of the carrier respectively the consignor (shipper)] can be evidenced
clearly, and the contract shall end at the moment of receipt of that message,
yet not before the goods are unloaded.
- 5. Subject to Article 8:383 paragraph 3,
the consignor (shipper) must compensate the carrier for the damage that
the latter suffers as a result of the termination of the contract or of
the (partial) acceptance of the voyage.
- 6. The present Article does not apply in
case of a time charter.
Article 8:393 Partial loading in case of voyage chartering
- 1. In case of a voyage charter, the lessor
is obliged, upon the charterer’s request, to accept the voyage for
a part of the agreed goods against the provision of security (collateral)
by the charterer for what the lessor has to claim from him. De charterer
must compensate the damage which the lessor suffers as a result thereof.
- 2. The lessor is authorized to accept other
goods instead of the ones not present in time. In his relation with the
charterer, the lessor is in such event not obliged to share or pay off
the freightage (transport fee) which he receives for the carriage of these
other goods, except insofar as he has obtained collected or has claimed
a compensation from the charterer for damage suffered.
Article 8:394 Information duty of the consignor (shipper)
- 1. The consignor (shipper) must provide the
carrier in time with all indications about the goods and the handling
thereof that he is able or ought to be able to provide and of which he
knows or ought to know that these indications are of importance for the
carrier, unless he may assume that the carrier already has this information.
- 2. The carrier is not required, but nevertheless
entitled to check whether the indications given to him are correct and
complete.
- 3. If at the end of the period within which
the goods should have been placed at the disposal of the carrier, the
obligation of the consignor (shipper) meant in paragraph 1 has not or
just partially been complied with, for whatever reason, then Article 8:392,
paragraph 2, 3 and 4 shall apply accordingly, except in case of a time
charter.
Article 8:395 Provision of required documents and information
- 1. The consignor (shipper) must compensate
the carrier for the damage suffered by the latter because documents or
information necessary for the transport or for the fulfilment of customs
or other formalities which have to be performed prior to the delivery
of the goods, are, for whatever reason, not sufficiently present.
- 2. The carrier must exercise due diligence
(reasonable care) so that the documents which have been handed to him,
shall not get lost or attended incorrectly. Damages due by him in this
respect shall not exceed those which, in case of the loss of goods, are
due pursuant to Articles 8:387, 8:388 and 8:389.
- 3. The carrier is not required, but nevertheless
entitled to check whether the information given to him is correct and
complete.
- 4. If at the end of the period within which
the documents and information meant in paragraph 1 should have been present,
these documents and information are not sufficiently present, for whatever
reason, then Article 8:392, paragraph 2, 3 and 4 shall apply accordingly,
except in case of a time charter.
Article 8:396 Right of termination in case of unforeseen circumstances
- 1. When, prior to or at the moment on which
the goods (cargo) are presented to be delivered to the carrier, circumstances
arise or emerge on the part of one of the parties of which the counterparty
not ought to have been aware at the conclusion of the contract, but which,
if he would have been aware of them, reasonably would have been a reason
for him not to enter into the contract of carriage or to enter into it
on different terms and conditions, then that counterparty has the right
to terminate that contract.
- 2. The termination shall be notified by telegram
or telex or by any other urgent message of which the receipt [at the address
of the counterparty] can be evidenced clearly, and the contract shall
end at the moment of receipt of that message.
- 3. After termination of the contract, parties
must, to standards of reasonableness and fairness, compensate the damage
that the other suffers as a result of the termination.
Article 8:397 Liability consignor (shipper) for defect in material or
cargo
- 1. The consignor (shipper) must compensate
the carrier for the loss suffered by the latter as a result of damage
caused by the material that the consignor (shipper) has placed at the
disposal of the carrier or caused by the goods that the carrier received
for carriage or caused by the handling thereof, except as far as this
damage is caused on account of a circumstance which a prudent (careful)
consignor (shipper) of the goods received for carriage could not have
avoided and the consequences of which such a consignor (shipper) could
not have prevented to arise.
- 2. The present Article does not affect Articles
8:383, paragraph 3, 8:398 and 8:423 nor the provisions concerning general
average.
Article 8:398 Transport of dangerous cargo*)
- 1. Goods received for carriage which a diligent
carrier, if he would have known that these goods could constitute a danger
after their receipt, would not have wanted to receive for carriage, may
at any time and any place be unloaded, destroyed or rendered harmless
otherwise by the carrier. The same applies to goods received for carriage
of which the carrier knew that they were dangerous, yet now only when
these goods actually threaten to become dangerous. In such events the
carrier does not have to pay any damages and the consignor (shipper) is
liable for all costs and damage which result for the carrier from the
presentation of the goods to be transported, from the carriage of the
goods itself and from the measures taken in this respect.
- 2. By taking the measures referred to in
paragraph 1, the contract shall end with regard to the (no longer hazardous)
goods meant in paragraph 1, yet if these goods are unloaded still, only
after their unloading. If possible, the carrier shall notify the consignor
(shipper), the person to whom the goods are to be delivered and the person
to whom he has to send a message in regard of the arrival of the ship
under the provisions of a possibly issued bill of lading. The present
paragraph does not apply in respect of (no longer hazardous) goods which
the carrier, after the measures meant in paragraph 1 were taken, still
transports to their place of destination.
- 3. If the (no longer hazardous) goods after
the ending of the contract are delivered actually anyway [to the person
entitled to take delivery, yet now at another place than their original
destination], it is presumed that at the time of the ending of the contract
these goods were in a condition in which they are actually delivered;
if they are not delivered actually anyway [e.g. because they were destroyed
at sea], it is presumed that they were lost at the time of the ending
of the contract.
- 4. If the consignor (shipper), after the
(no longer hazardous) goods are delivered actually anyway to him [yet
at another place than their original destination], does not transport
them to their place of destination, then the difference between the value
at the place of destination and the value at the place of the actual delivery,
as referred to in the second sentence of Article 8:388 paragraph 2, shall
be regarded as a decrease in value of these goods. Where the carrier,
after he has actually delivered the (no longer hazardous) goods [to the
shipper, yet at another place than their original destination], still
transports these goods to their place of destination, then the costs made
by him to this end shall be regarded as a decrease in value of these goods.
- 5. An actual delivery as meant in the previous
paragraphs is governed by what parties have agreed upon and by what is
specified in the present Section (Section 8.5.2) on the delivery of goods,
on the understanding that an actual delivery does not lead to any indebtedness
of freightage (transport fee) on the basis of paragraph 1, first sentence,
of the present Article or of Article 8:848, paragraph 2. Articles 8:490
and 8:491 shall apply accordingly.
- 6. The present Article does not affect Article
8:423 nor the provisions concerning general average.
- 7. Any clause or stipulation in derogation
from paragraph 1 of the present Article, is null and void.
*) See for the first paragraph of Article 8:398 also Article 4, paragraph 6, of the Hague-Visby Rules.
Article 8:399 Issuance of a bill of lading / “shipped” bill
of lading*)
- 1. After the goods have been received and
accepted, the carrier, the captain (master) or the agent of the carrier
must, upon the request of the consignor (shipper), issue to the latter
a bill of lading which, among other things, states:
a. the most important marks for identifying
the goods as furnished by the consignor (shipper) in writing prior to
their loading, provided that such marks are stamped or otherwise clearly
shown on the unpacked goods or on the boxes or packaging containing these
goods, in such a way that, in normal circumstances, those marks will remain
readable until the end of the voyage;
b. either the number of packages or the number
of pieces, or the quantity or weight, depending on the circumstances,
as furnished in writing by the consignor (shipper);
c. the externally visible state and condition
of the goods;
on the understanding that no carrier, captain (master) or agent of the
carrier will be required to list or mention in the bill of lading marks,
number, quantity or weight with regard to which he has reasonable ground
to suspect that they do not correctly describe the goods he actually has
received or with regard to which he did not have a reasonable opportunity
to check them. Where it concerns poured or pumped goods, the carrier is
presumed not to have had a reasonable opportunity to check their quantity
and weight.
- 2. When the goods have been loaded, the bill
of lading issued by the carrier, captain (master) or carrier’s agent
to the consignor (shipper) shall contain, if the latter so requires, the
word "shipped" (or “loaded”), provided that the
consignor (shipper), where he earlier received any document constituting
a right in or to the goods, returns that document against the issuance
to him of the “shipped” bill of lading. The carrier, captain
(master) or agent of the carrier also has the right to note in the port
of loading on the original issued document: the name of the ship or ships
aboard of which the goods were loaded and the date or dates of loading,
in which case the supplementary document, provided it includes the particulars
mentioned in the present Article, shall be regarded for the purpose of
this Article as a “shipped” bill of lading.
*) See Article 3, paragraph 3 and 7, of the Hague-Visby Rules.
Articles 8:400 – 8:409 [reserved for future legislation]
Article 8:410 Contract of carriage overrides a bill of lading
Where a contract of carriage has been entered into and, in addition, a
bill of lading has been issued, the legal relationship between the carrier
and the consignor (shipper) shall be governed by the stipulations of the
contract and not by those of that bill of lading, except for what is provided
in Article 8:441, paragraph 2, second sentence. Except for the requirement
set out in Article 8:441, paragraph 1, with regard to the holdership of
the bill of lading, that bill of lading then shall only serve as proof
that the goods have been received (taken over) by the carrier.
Article 8:411 Consignor (shipper) vouches for correctness of the provided
information*)
The consignor (shipper) is deemed to have guaranteed on behalf of the
carrier that the marks, number, weight and quantity as furnished by him
in relation to the goods are correct at the moment of the receipt of these
goods, and the consignor (shipper) must indemnify the carrier against
all loss, damage or expenses arising or resulting from the incorrectness
in such particulars. The right of the carrier to such indemnity in no
way limits his liability or obligations under the contract of carriage
towards any person other than the consignor (shipper).
Article 8:412 Formalities regarding a bill of lading / bill of lading
to order or bearer
- 1. The bill of lading shall be dated and
signed by the carrier and shall mention the terms en conditions under
which the transport takes place, as well as the place were and the person
to whom the goods are to be delivered. The bill of lading is specified,
at the discretion of the consignor (shipper), either by the name of a
specific person or other particular indication, or as an order of the
consignor (shipper) or another person, or as a bearer.
- 2. The mere words "to order" shall
be deemed to constitute the order of the consignor (shipper).
Article 8:413 Number of original prints of the bill of lading
Unless the bill of lading is in a person’s name, it shall be issued
in one or more original prints. The negotiable original prints, stating
how many of such original prints have been issued on the whole, apply
all for one and one for all. Non-negotiable original prints must be marked
as such.
Article 8:414 Evidential value of a bill of lading*)
- 1. Evidence contradicting the bill of lading
is not admissible when the bill of lading is transferred to a third party
acting in good faith.
- 2. If the bill of lading includes the clause:
"content, quality, quantity, weight or measure unknown", or
any other clause of such purport, then other similar statements about
these particulars of the goods, laid down in the bill of lading, do not
bind the carrier, unless it is proved that he knew or ought to have known
the content or condition (state) of the goods or it is proved that the
goods have been counted, weighed or measured in his presence.
- 3. A bill of lading that does not mention
the externally visible state or condition of the goods constitutes the
legal presumption that the carrier has received those goods, as far as
this is externally visible, in a good state or condition, save for counter-evidence
which may be produced also against third persons.
- 4. A statement included in the bill of lading
as referred to in Article 8:388, paragraph 1, constitutes, subject to
counter-evidence, a legal presumption, but does not bind the carrier who
is able to refute it successfully.
*) See also Article 3, paragraph 4 Hague Visby Rules.
Article 8:415 Reference in a bill of lading to contractual terms and conditions
elsewhere
- 1. References in the bill of lading to stipulations
(clauses) elsewhere shall be deemed to insert only those stipulations
(clauses) into that bill of lading that are clearly recognizable for the
person against whom they are invoked.
- 2. Such stipulations (clauses) may be invoked
only by him who, upon a written request of the person against whom these
stipulations (clauses) are or may be invoked, has sent those stipulations
(clauses) without delay to him.
- 3. Any stipulation or clause in derogation
from paragraph 2 is null and void.
Article 8:416 Way to deliver a bill of laden
A bill of lading to order is delivered in the way as indicated in Section
3.4.2
Article 8:417 Delivery of a bill of lading before the goods are delivered
The delivery of the bill of lading prior to the moment on which the carrier
has delivered the goods mentioned therein, is deemed to be the legal delivery
of those goods.
Article 8:418 Pointing out the place of loading and unloading by the carrier
The carrier must in time point out the location of loading and unloading;
however, in case of a time charter, Article 8:380 shall apply, whereas
in case of a voyage charter, Article 8:419 shall apply.
Article 8:419 Duty of the voyage charterer to point out the place of loading
and unloading
- 1. In case of a voyage charter the charterer
must in time point out the location of loading and unloading.
- 2. For that purpose he must point out a usual
spot which is available immediately or within a reasonable time, and which
can be reached safely by the ship, and where the ship can stay safely
and be loaded and unloaded safely and from which it can leave safely.
- 3. If the charterer does not comply with
this obligation or if the charterers, when there are more of them, are
not unanimous when pointing out such location or spot, then the lessor
is obliged, without any formal reminder being necessary, to point out
himself a location of loading or unloading.
- 4. If the charterer points out more than
one location, then the time required for relocation is regarded as time
used for loading or unloading. The costs of relocation are for his account.
- 5. The charterer guarantees that the ship
can safely reach the location pointed out by him pursuant to paragraph
1 for loading and unloading, and also that the ship can safely stay at
that location, that it can be loaded and unloaded safely there and that
it can safely depart from it. If this location appears not to meet these
requirements, then the charterer shall only then be not liable insofar
as the captain (master), by following the instructions given to him, has
acted unreasonably.
Article 8:420 Right of the voyage charterer to point out the place of
loading and unloading
Article 8:419 shall apply accordingly in case of a voyage charter where
the charterer has the right to point out the port of loading or unloading.
Article 8:421 Obligation to load and stow the goods on board
Except in case of chartering, the carrier is obliged to load and stow
the goods on board of the ship.
Article 8:422 Loading time, demurrage time and demurrage charges
- 1. Insofar as the carrier is required to
load the goods, he is obliged to do so within the agreed loading time.
- 2. Insofar as the consignor (shipper) is
required to load or stow the goods, he guarantees that this takes places
within the agreed loading time.
- 3. If no loading time has been agreed upon,
then the goods have to be loaded in conformity with what is customary
or reasonable at the location for a ship as the ship involved.
- 4. Where the contract of carriage provides
rules for demurrage charges, yet not for demurrage time, that time is
set at eight consecutive days and nights or, when another number is reasonable
or customary at the berth at the quay (mooring space), that other number.
- 5. The statutory provisions regarding penalty
clauses are not applicable to stipulations concerning demurrage charges.
- 6. Debtors of demurrage charges and of a
possibly under paragraph 2 indebted compensation for damage are jointly
and severally liable for the payment thereof.
Article 8:423 Transport of dangerous cargo under a bill of lading
- 1. Under a contract of carriage under a bill
of lading, goods of an inflammable, explosive or dangerous nature, with
regard to the loading of which the carrier, captain (master) or agent
of the carrier would not have consented if he had known their character
or condition, may at any time prior to their unloading be landed at any
place or destroyed or rendered harmless by the carrier without any compensation
being due, and the consignor (shipper) of such goods shall be liable for
all damages and expenses directly or indirectly arising out of or resulting
from the loading of such goods.
- 2. If under a contract of carriage under
a bill of lading any goods as referred to in paragraph 1, that have been
loaded with knowledge and consent of the carrier, actually shall become
a danger to the ship or cargo, they may in like manner be landed at any
place or destroyed or rendered harmless by the carrier without liability
on the part of the carrier, except to general average if grounds therefore
exist.
Article 8:424 End of the contract of carriage when the ship is wrecked
or damaged too seriously
- 1. When the ship, after the loading of the
goods has started, perishes or appears to be damaged in such a way that
its repair, necessary to perform the contract, is not worth the value
of the ship or cannot take place within a reasonable period, then the
carrier may, after he has unloaded the goods again, end the contract,
provided that he does so as soon as possible; the previous sentence does
not apply in case of time or voyage chartering.
- 2. It is presumed that the perishing of or
the damage to the ship results from a fact for which the carrier is liable;
the carrier is liable for those facts for which he, if these facts would
have caused damage to the goods transported by him, would be liable.
- 3. The carrier shall notify, if possible,
the consignor (shipper), the person to whom the goods are to be delivered
and the person to whom he has to send a message in regard of the arrival
of the ship under the provisions of a possibly issued bill of lading.
- 4. Article 8:398 paragraph 3, 4 and 5 shall
be applicable.
Article 8:425 Termination of the chartering contract when the ship is
damaged too seriously
- 1. In case of a time or voyage charter, either
party, provided that they do so as soon as possible, is entitled to terminate
the contract in whole or with respect to some of the goods, when the ship,
without being perished (wrecked), appears to be damaged in such a way
that its repair, necessary to perform the contract, is not worth the value
of the ship or cannot take place within a reasonable period.
- 2. The right of termination allocated under
paragraph 1 to the voyage charterer, may not be exercised by him in regard
of goods already received on board if the lessor, the instant that this
was reasonably possible for him, has stated that, despite the ending of
the contract, he will transport these goods to their place of destination,
albeit not in the loaded ship. Such transport is then presumed to take
place on the basis of the original contract.
- 3. The termination shall be notified by telegram
or telex or by any other urgent message of which the receipt [at the address
of the counterparty] can be evidenced clearly, and the contract shall
end at the moment of receipt of that message, yet in regard of goods already
received on board, not before these goods are unloaded. A statement in
such a telegram, telex or other message that the lessor nonetheless will
transport the goods to their place of destination, albeit not in the loaded
ship, shall mean with respect to those goods a termination of the contract.
- 4. In respect of goods already received for
carriage it is presumed that the damage to the ship results from a fact
for which the lessor is liable; the lessor is liable for those facts for
which he, if these facts would have caused damage to the goods transported
by him, would be liable.
- 5. Article 8:398 paragraph 3, 4 and 5 shall
apply on the understanding that in case of a time charter the freightage
(transport fee) remains due up until the time of unloading of the goods.
Article 8:426 End of the chartering contract when the ship is wrecked
- 1. In case of a time or voyage charter the
contract shall end when the ship perishes. When nothing has been heard
from the ship for a long period of time, it is presumed that the ship
has perished at 2400 hours Universal Time of the day on which the last
message was received.
- 2. In respect of goods received already for
carriage it is presumed that the perishing of the ship results from a
fact for which the lessor is liable; the lessor is liable for those facts
for which he, if these facts would have caused damage to the goods transported
by him, would be liable.
- 3. Where the lessor, despite of the perishing
of the ship, still transports the goods which already were received on
board, to their place of destination, then in case of a time charter this
transport is presumed to take place on the basis of the original contract.
- 4. The lessor informs the charterer as soon
as possible.
- 5. Article 8:398 paragraph 3, 4 and 5 shall
apply.
Articles 8:427 – 8:439 [reserved for future legislation]
Article 8:440 Claim to deliver the goods before these have reached the
place of destination
- 1. The consignor (shipper) or, if a bill
of lading is issued, only the holder thereof referred to in Article 8:441
and then only upon the turning in of all negotiable original prints of
that bill of lading, is entitled, as far as the carrier reasonably is
able to comply with that, to demand prior to the arrival at the place
of destination the delivery of the goods received for carriage or, if
a bill of lading was issued to this end, of all in that bill of lading
mentioned goods as one (together), provided that he indemnifies the carrier
and the parties with an interest in the other cargo. He is obliged to
contribute in general average when a general average action occurred in
view of an event that had arisen already prior to the delivery of the
goods.
- 2. He cannot exercise this right when due
to such a premature delivery the voyage would be delayed.
- 3. Goods delivered pursuant to paragraph
1 are regarded as goods delivered at the place of destination, and the
provisions of the present Section (Section 8.5.2) on the delivery of goods
as well as those of Articles 8:490 and 8:491 are applicable.
Article 8:441 Legal relationship between the carrier and the holder of
the bill of lading
- 1. If a bill of lading has been issued, only
the regular holder*) thereof is towards the carrier under the bill of
lading entitled to demand the delivery of the goods in accordance with
the obligations imposed on the carrier, unless that holder has not lawfully
become the holder of the bill of lading. Article 8:387 shall be applicable.
- 2. Towards the holder of the bill of lading
who is not the consignor (shipper), the carrier under the bill of lading
is bound by the stipulations of that bill of lading and he may invoke
these stipulations against such holder. He may exercise against any holder
of the bill of lading the rights to payment that are clearly recognizable
from that bill of lading. Against the holder of the bill of lading who
is also the consignor (shipper), the carrier may furthermore invoke the
stipulations and terms from the contract of carriage. In his relation
to the holder of the bill of lading who is also the consignor (shipper),
he may in addition invoke the stipulations and terms of the contract of
carriage and his personal relationship to the consignor (shipper).
*) Regular holder is the person who presents a document including a sequence of consecutive endorsements.
Article 8:442 More carriers under one and the same bill of lading
- 1. If under the application of Article 8:461
several persons have to be considered as carrier under the bill of lading,
then those persons are jointly and severally liable (bound) towards the
holder of the bill of lading meant in Article 8:441, paragraph 1.
- 2. In the situation referred to in paragraph
1, each of the carriers is entitled to exercise against the holder of
the bill of lading the rights appearing from that bill of lading, and
the holder of the bill of lading is towards each carrier discharged up
to the due and demandable amount that he has paid on the basis of that
bill of lading to one of them. Title 3.7 of the Dutch Civil Code does
not apply.
Articles 8:443 – 8:459 [reserved for future legislation]
Article 8:460 Rank order of holders
Amongst the holders of different original prints of the same bill of lading,
the best right belongs to the holder of the first original print of which,
after the common endorser (author) who was holder of all those copies,
another person has become holder in good faith under payment of a consideration
for obtaining it (non-gratuitous acquirement).
Article 8:461 Definition of a ‘carrier under a bill of lading’
- 1. Without prejudice to the other paragraphs
of the present Article, the following persons are regarded as carrier
under the bill of lading: he who has signed the bill of lading or in whose
name another person has signed it, and also he whose form has been used
for the bill of lading.
- 2. If the captain (master) or another person
in his name, has signed the bill of lading, then as carrier under that
bill of lading is regarded, besides the person mentioned in paragraph
1, also the time or voyage charterer who is the carrier under the last
contract in the chain of contracts of exploitation (commercial utilization) as referred to in Title 8.5.1.
If the ship has been leased under a bareboat charter, then, besides this
possible time or voyage charterer, also the last bareboat charterer is
regarded as carrier under the bill of lading. If the ship has not been
leased under a bareboat charter, then, besides the possible time or voyage
charterer as meant here, also the shipowner is regarded as carrier under
the bill of lading.
- 3. In derogation from the previous paragraphs,
only the last bareboat charterer, respectively, the shipowner is regarded
as carrier under the bill of lading if that bill of lading explicitly
designates that bareboat charterer, respectively, that shipowner as such,
and, in case of the designation of the bareboat charterer, moreover, if
also his identity is clearly recognizable from the bill of lading.
- 4. This Article does not affect Article 8:262,
paragraph 2.
- 5. Any stipulation or clause in derogation
from the present Article is null and void.
Article 8:462 Unauthorised signing of a bill of lading
- 1. Paragraph 1 of Article 8:461 shall not
apply if a person who in that paragraph is regarded as carrier under a
bill of lading, proves that the one who has signed the bill of lading
in his name, crossed the boundaries of his power in doing so, or proves
that his form was used without his permission. Nevertheless, a person
meant in Article 8:461 paragraph 1 shall still be regarded as carrier
under a bill of lading if the holder of the bill of lading proves that,
due to a statement or the conduct of him in whose name the bill of lading
was signed or whose form was used, he reasonably could assume, at the
moment of issuance of the bill of lading, that the person who signed the
bill of lading was authorized to do so or that the form was used with
the required permission.
- 2. In derogation from paragraph 1, the shipowner
shall be regarded as carrier under the bill of lading if his accountant
(bookkeeper) has crossed the boundaries of his power by signing the bill
of lading, but such shipowner shall not be bound to the first holder of
the bill of lading who, at the moment that it was issued, knew that the
accountant (bookkeeper) crossed the boundaries of his power.
- 3. Article 8:461 paragraph 2 may be invoked
too if the captain (master), by signing the bill of lading or by granting
another person the power to sign it in his name, has crossed the boundaries
of his own power, but such an appeal is not open to the first holder of
the bill of lading who, at the moment of issuance of that bill of lading,
knew that the captain (master) crossed the boundaries of his power.
- 4. Paragraph 3 applies also if he who has
signed the bill of lading in the name of the captain (master), in doing
so has crossed the boundaries of his power.
Articles 8:463 – 8:479 [reserved for future legislation]
Article 8:480 Lessor’s right of recourse
- 1. Where a lessor on account of Article 8:461
is bound to more than to what he is committed on account of his chartering
or where he received less than to what he is entitled on account of his
chartering, he may recover the difference from the charterer, provided
that the signing of the bill of lading or the supply of the form took
place by virtue of what is provided in the charterparty (i.e. the contract
of chartering embodied in a standard form) or upon the request of the
charterer.
- 2. The same applies to a charterer from whom
the difference meant in paragraph 1 has been claimed pursuant to that
paragraph, and who, in his turn, is a lessor.
Article 8:481 Discharging the carrier and the handing in of the bill of
lading to him
- 1. The holder of the bill of lading who has
presented himself to take delivery of the goods, is obliged, before he
receives those goods, to put a discharge on the bill of lading and to
hand it in to the carrier.
- 2. He is however entitled to postpone the
handing in of the bill of lading until the goods are all delivered to
him, provided that he entrust the bill of lading in the meantime to a
third party who will keep it in safe custody until the goods are delivered;
in case of a dispute about the third person who is to keep the bill of
lading in safe custody, any interested party may request the court to
appoint such a third person for this purpose.
Article 8:482 Documents to be equated with a bill of lading
- 1. A document issued by the carrier after
he has taken in the bill of lading, giving the holder of that document
the right to take delivery of the goods mentioned in that bill of lading*),
is in regard of these goods equated with the bill of lading. The bill
of lading is presumed to form a part of the before meant document. Neither
the person who signs such document or in whose name it is signed, nor
the person whose forms are used for such document, is regarded as carrier
under the bill of lading by the mere fact of that signature or use.
- 2. Unless the documents meant in paragraph
1 provide otherwise, the holders thereof are jointly and severally liable
(responsible) for the obligations which result for the holder of that
bill of lading from the transport of the goods that are transported under
the bill of lading.
*) For instance a so-called ‘delivery order’ issued by the carrier (and not by the holder of the bill of lading, which is possible as well, but that is not a document as meant in paragraph 1 of the present Article.
Article 8:483 Unloading by the carrier
- 1. Except in case of chartering, the carrier
shall be obliged to unload the goods from the ship.
- 2. Article 8:422 applies accordingly to such
unloading of goods.
Article 8:484 Freightage
- 1. The freightage (transport fee) is due
after the goods are delivered at the place of destination or at the spot
where the carrier has delivered them in accordance with Article 8:440.
Where the freightage is determined by weight or volume of the goods, it
shall be calculated according to these data at the moment that the goods
are delivered.
- 2. Freightage which is determined in one
single sum for all goods at the place of destination, is due in full,
even when only a part of the goods is delivered.
- 3. Subject to paragraph 5 of the present
Article, a freightage shall be due as well for goods that were sold en
route because they were damaged in such a way that further transportation
thereof was reasonably not possible, but such freightage shall not go
beyond the amount of the sale revenues of these goods.
- 4. Freightage to be paid in advance or that
has been paid already, is en remains due in full even if the goods are
not delivered at the place of destination, except in case of time chartering.
- 5. Goods delivered in a worthless state or
condition are deemed to be not to have been delivered. Goods that not
have been delivered or that have been delivered in a worthless state or
condition, shall nevertheless be deemed to be goods delivered insofar
as the fact that they were not delivered or delivered in a worthless state
or condition is the result of the character (nature) of or a defect in
the goods or of an action or omission of a person entitled to the goods
or of an action or omission of the consignor (shipper) or recipient of
the goods.
Article 8:485 Goods transported in violation with a legal prohibition
If goods are transported by a person for his own account*) on board of
the ship in violation with a legal prohibition, then the highest freightage
(transportation fee) which could have been negotiated at the time of loading
for those goods shall be due by him. Such freightage shall be due even
when the goods are not delivered or are delivered in a worthless state
or condition at the place of destination; the recipient is joint and several
liable for this freightage together with the consignor (shipper).
*) That is to say without the consent of the shipowner or charterer.
Article 8:486 Freightage under a time charter when the ship is not available
In case of a time charter, no freightage shall be due for the period that
the charterer did not have the ship at his disposal in the way as agreed
under the terms and conditions of the charterparty (i.e. chartering contract
as embodied in a standard form):
a. as result of damage to the ship, or;
b. because of a failure in de performance of
the carrier’s obligations,
provided that the ship was not at the disposal of the charterer for more
than 24 consecutive hours, all without prejudice to the last sentence
of paragraph 5 of Article 8:425.
Article 8:487 Costs of exploitation (operation) under a time charter
- 1. In case of a time charter, the fuel for
machinery, boiler water, port fees and similar charges and expenses, that
become due as a result of performed voyages and transported goods, shall
be borne by the charterer. Other expenses of exploitation and operation (management)
of the ship shall be borne by the lessor.
- 2. The lessor is entitled and obliged to
take over from the charterer the fuel which at the end of the chartering
is still on board of the ship, and this at the market price as it is at
the time and place of the handing in of the ship.
Article 8:488 Costs made en route (benevolently)
Without prejudice to what is provided regarding general average and without
prejudice to the provisions of Section 6.4.1, the consignor (shipper),
de recipient and, if a bill of lading has been issued, the holder thereof
as referred to in Article 8:441, shall be jointly and severally responsible
for compensating the carrier for the damage the latter suffers because
he has benevolently and by himself (of his own accord) looked after the
interests of the proprietor of the goods received for transportation or
which he suffers because the captain (master) or boatmaster did not comply
with his obligations mentioned in Article 8:261 or 8:860.
Article 8:489 Right to refuse the delivery of the goods / right of retention
- 1. The carrier is entitled to refuse the
delivery of the goods which, in connection with the contract of carriage,
are under his control; he may exercise this right against any person who,
other than on account of the contract of carriage, has a right to claim
their delivery, unless these goods have been seized (arrested) and from
the pursuance of that seizure (arrest) results an obligation to hand over
the goods to the seizor.
- 2. The carrier may exercise his right of
retention with regard to goods which, in connection with the contract
of carriage, are under his control, and this to the extent for what the
recipient is or will be due to him on account of the transport of these
goods as well as for what is or will be due to him as contribution in
general average in regard of these goods. This right of retention ceases
to exist as soon as the carrier has received payment of the amount not
in dispute and, in addition, sufficient security (collateral) has been
provided to him for the payment of the disputed amounts or of amounts
of which the total cannot yet be determined.
- 3. The rights granted under the present Article
to the carrier cannot be invoked against a third person if the carrier,
at the moment on which he received the goods for transport, had reason
to doubt whether the consignor (shipper) was authorized (competent) in
his relation to that third person to place the goods at the disposal of
the carrier.
Article 8:490 Right of the carrier to deposit the goods in safe custody
of a third party
- 1. To the extent that the person who towards
the carrier is entitled to take delivery of the transported goods, does
not show up at all or refuses to take the goods over or does not take
over the goods with the required speediness, the carrier is entitled to
deposit the goods, at the expense and risk of their proprietor, in safe
custody at a storehouse or barge of a third person; the same applies if
the carrier has well-founded grounds to doubt that a holder of a bill
of lading who presents himself as recipient of the goods, is not entitled
to take delivery of the goods involved. Upon the request of the carrier,
the court may order that the carrier is allowed to keep the goods under
his own control, if desired in the ship itself, or to take other measures
to this end.
- 2. The third person who keeps the goods in
custody (safekeeper) and the recipient are legally bound to each other
as if the contract concluded in regard of the deposit of the goods in
safe custody has been entered into between them as well. The safekeeper,
however, is not authorized to hand over the goods unless he has the written
approval to do so of the person who has given the goods to him in safe
custody.
Article 8:491 Sale of goods that are deposited in safe custody
- 1. Where Article 8:490 is applicable, the
carrier, the safekeeper or the person who towards the carrier is entitled
to take delivery of the goods, may, upon his request, be authorized by
court to sell all goods or a part thereof in a way to be determined by
the court.
- 2. The safekeeper must inform the carrier
as soon as possible of the intended sale; the carrier has the same obligation
towards the person who towards him has the right to take delivery of the
goods and towards the person to whom he has to send, according to the
terms and conditions of a possibly issued bill of lading, a message in
regard of the arrival of the ship.
- 3. The proceeds of the sold goods are deposited
with the clerk of the court as far as they are not intended for the payment
of the costs of storage and sale and of other costs made within the limits
of reason. Unless the goods have been seized for a monetary debt-claim,
the carrier must receive from the amounts to be deposited what is due
to him on account of the transport (carriage), and also a contribution
in general average; insofar as these debt-claims are not yet established,
the proceeds or a part thereof shall serve as security (collateral) for
those debt-claims, which security (collateral) is to be provided in a
way to be determined by the court.
- 4. The proceeds that have been deposited
with the clerk of the court shall take the place of the goods (cargo).
Article 8:492 Written notification of loss of or damage / legal presumption
regarding the condition of the goods*)
- 1. Unless notice of loss or damage and of
the general nature of this loss or damage has been given in writing to
the carrier or his agent at the port of unloading before or at the time
of the removal of the goods and their delivery to the person who under
the contract of carriage is entitled to take delivery of them, such removal
shall constitute the legal presumption that the goods have been delivered
by the carrier in the condition as described in the contract of carriage,
until the contrary has been proven.
- 2. Where the loss or damage is not externally
visible, such notice must be given within three days after the delivery
of the goods.
- 3. The notice in writing need not be given
if the condition of the goods has been established (inspected) by both
parties jointly at the time of receipt of the goods.
*) See also Article 3, paragraph 6, of the Hague-Visby Rules.
Article 8:493 Cooperation in inspection of goods and tallying of packages*)
If there is certainty or suspicion that the goods are (partially) lost
or damaged, the carrier and the recipient mutually shall give all reasonable
facilities to each other to make it possible to inspect the goods and
to tally the packages.
*) See Article 3, paragraph 6, last sentence, of the Hague-Visby Rules.
Article 8:494 Judicial inquiry into the condition of the goods at the
delivery
- 1. Both, the carrier and the person who towards
the carrier is entitled to take delivery of the goods, may request the
court to order a judicial inquiry into the state and condition of the
goods at the time of their delivery; they may also request the court to
estimate the loss and damage found during that judicial inquiry.
- 2. If this inquiry has taken place in the
presence of the counterparty or after he has been called properly to appear,
then the issued report is presumed to be accurate.
Article 8:495 Judicial inquiry into the cause of the loss or damage
- 1. Both, the carrier and the person who towards
the carrier is entitled to take delivery of the goods, may, when he suspects
that the goods are (partially) lost or damaged, request the court before,
at or after the delivery of the goods to order a judicial inquiry into
the cause of these losses or damages, which inquiry, if desired, may even
be held on board of the ship.
- 2. If the inquiry has taken place in the
presence of the counterparty or after he has been called properly to appear,
then the issued report is presumed to be accurate.
Article 8:496 Costs of a judicial inquiry
- 1. The costs of a judicial inquiry as referred
to in Articles 8:494 and 8:495, must be paid by the applicant.
- 2. The court may order that these costs and
the damages suffered as a result of the judicial inquiry have to be borne
in full or in part by the counterparty of the applicant, even if the amount
mentioned in paragraph 1 of Article 8:388 would be exceeded due to that.
Articles 8:497 - 8:499 [reserved for future legislation]
Section 8.5.3 Contract for the transport of passengers
Article 8:500 Definitions for the present Section
In the present Section (Section 8.5.3):
a. “Convention” means the Athens
Convention relating to the Carriage of Passengers and their Luggage by
Sea of 1974, as amended by the Protocol of 2002 (Treaty Series 2011,
110);
b. “Regulation” means Regulation
(EC) No 392/2009 of the European Parliament and of the Council of 23 April
2009 on the liability of carriers of passengers by sea in the event of
accidents;
c. “Protocol of 2002” means the
Protocol
of 2002 to the Athens Convention relating to the Carriage of Passengers
and their Luggage by Sea, 1974;
d. “IMO Guidelines” mean the Guidelines
of the International Maritime Organisation for the implementation of the
Athens Convention relating to the Carriage of Passengers and their Luggage
by Sea (IMO Circular letter No. 2 758 of 20 November 2006);
e. “passenger transport contract”
means a contract for the transport of persons, whether or not being a
time or voyage charter, under which contract one of the parties (the carrier)
has engaged himself towards the other party to transport one or more persons
(the passengers), whether or not including their luggage, exclusively
by sea on board of a seagoing ship. No passenger transport contract in
the sense of the present Section (Section 8.5.3) is a contract for the
transport of passengers as referred to in Article 8:100;
f. “carrier” means a person by
or on behalf of whom a passenger transport contract has been concluded,
whether the carriage is actually performed by that person or by a performing
carrier;
g. “performing carrier” means a
person other than the carrier, being the owner, charterer or commercial
utilizer of a ship, who actually performs the whole or a part of the carriage;
h. “carrier who actually performs the
whole or a part of the carriage” means the performing carrier, or,
in so far as the carrier actually performs the carriage, the carrier.
i. “passenger” means any person
carried in or on board of a ship under a passenger transport contract
and any person who, with the consent of the carrier, is accompanying a
vehicle or live animals which are covered by a contract for the carriage
of goods;
j. “ship” means a seagoing ship,
excluding an air-cushion vehicle (hovercraft);
k. “luggage” means any object or
vehicle carried by the carrier under a passenger transport contract, excluding:
1° objects and vehicles carried under a contract (like a charter party
or, bill of lading) primarily concerned with the carriage of goods, and;
2° live animals;
l. “cabin luggage” means luggage
which the passenger has in his cabin or is otherwise in his possession,
custody or control or under his supervision. Except for the application
of Article 8:501 and of Article 8:504, paragraph 7, cabin luggage includes
luggage which the passenger has in or on his vehicle;
m. “loss of or damage to luggage”
includes pecuniary loss resulting from the luggage not having been re-delivered
to the passenger within a reasonable time after the arrival of the ship
on which the luggage has been or should have been carried, but does not
include delays resulting from labour disputes;
n. “the Minister” means the Minister
of Infrastructure and Environment.
Article 8:500a Relation between the present Section and the Convention and Resolution
- 1. The present Section (Section 8.5.3) applies to a passenger transport contract to the extent that the Resolution does not apply to such contract.
- 2. In derogation from paragraph 1, the Articles 8:509 up to and including 8:510, 8:512, 8:514 up to and including 8:515 and 8:521 up to and including 8:529k of the present Section do apply to a passenger transport contract to which the Resolution applies.
- 3. In derogation from paragraph 1, the Articles 8:529 up to and includ ing 8:529k apply to an international passenger transport contract to which neither the Convention nor the Resolution applies.
Article 8:500b Debt-claims regarding nuclear incidents
The present Section (Section 8.5.3) does not apply to debt-claims for
damages resulting from a nuclear incident if the commercial operator of
the nuclear installation is liable for such damage:
a. by virtue of the Paris Convention of 29
July 1960 on Third Party Liability in the Field of Nuclear Energy (Treaty
Series 1961, 27) as amended by its Additional Protocol of 28 January 1964
(Treaty Series 1964, 178), or
b. by virtue of another (national) law or regulation
in regard of the liability for such damage, on the condition that such
law or regulation is at least as favourable to persons who may suffer
damage as the Convention referred to under (a).
Article 8:501 Period of transport
Transport by sea comprises:
a. with regard to persons or their cabin luggage:
the time that the passenger or his cabin luggage remains on board of the
ship, and the time of boarding (embarkation) or deboarding (disembarkation),
and also the time that the passenger or his cabin luggage is transported
by water between the embankment (shore) and the ship or between the ship
and the embankment (shore), if the price thereof is included in the freightage
(transport fee) or if the carrier has placed the ship which is used for
such auxiliary transport at the disposal of the passenger. Transport of
persons by sea, however, does not include the time during which the passenger
remains in a terminal (station building), on a quay or any other port
facility;
b. with regard to cabin luggage: also the time
that the passenger finds himself in a terminal (station building), on
a quay or any other port facility, if that luggage has been taken over
by the carrier and has not been returned to the passenger;
c. with regard to luggage that is no cabin
luggage: the time between the moment that the luggage has been taken over
by the carrier, either on land or on board, and the return thereof by
the carrier.
Article 8:502 Time or voyage charter
- 1. A time or voyage charter in the sense
of the present Section (Section 8.5.3.) is a passenger transport contract
under which the carrier (the lessor) has engaged himself to transport
on board of a ship, which he has placed to this end, otherwise than by
way of a bareboat charter, in its entirety at the disposal of his counterparty
(the charterer), whether or not on a time base (time charter or voyage
charter).
- 2. The provisions of Section 8.5.2. in particular
those for chartering, and Article 8:375 shall apply accordingly to a charter
as meant in paragraph 1.
Article 8:503 Non-application of the provisions for lease, safe custody
and loan for use
The legal provisions on lease contracts, safe custody contracts and loan
for use contracts do not apply where a ship has been placed at the disposal
of someone else otherwise than by way of bareboat chartering.
Article 8:504 Liability of the carrier in case of death or physical injury
- 1. For the purpose of the present Article:
(a) "shipping incident" means shipwreck,
capsizing, collision or stranding of the ship, explosion or fire in the
ship, or defect in the ship;
(b) "fault or neglect of the carrier"
includes the fault or neglect of the employees of the carrier, acting
within the scope of their employment;
(c) "defect in the ship" means any
malfunction, failure or non-compliance with applicable safety regulations
in respect of any part of the ship or its equipment when used for:
1° the escape, evacuation, embarkation and disembarkation of passengers
2° the propulsion, steering, safe navigation, mooring, anchoring;
3° arriving at or leaving berth or anchorage;
4° damage control after flooding, or;
5° for the launching of life saving appliances.
- 2. The liability of the carrier under the
present Article only relates to loss arising from incidents that occurred
in the course of the carriage.
- 3. For the loss suffered as a result of the
death of or personal injury to a passenger caused by a shipping incident,
the carrier shall be liable to the amount mentioned in Article 3, paragraph
1, of the Convention, except when an amendment is made under the particular
amendment procedure as provided for in Article 23 of the Protocol. The
carrier is, however, not liable if:
(a) the incident resulted from an act of war,
hostilities, civil war, insurrection or a natural phenomenon of an exceptional,
inevitable and irresistible character, or;
(b) was wholly caused by an act or omission
done by a third party with the intent to cause the incident.
- 4. If and to the extent that the loss meant
in paragraph 3 exceeds the amount mentioned in Article 3 of the Convention,
the carrier shall be further liable to the amount mentioned in Article
7, paragraph 1, of the Convention, except when an amendment is made under
the particular amendment procedure as provided for in Article 23 of the
Protocol. The carrier, however, is not further liable if he proves that
the incident which caused the loss occurred without his fault or neglect.
- 5. For the loss suffered as a result of the
death of or personal injury to a passenger not caused by a shipping incident,
the carrier shall be liable if the incident which caused the loss was
due to the fault or neglect of the carrier. The liability of the carrier
shall be limited to the amount mentioned in Article 7 of the Convention,
except when an amendment is made under the particular amendment procedure
as provided for in Article 23 of the Protocol.
- 6. For the loss suffered as a result of the
death of or personal injury to a passenger caused by a risk as mentioned
in point 2.2 of the IMO Guidelines, the carrier shall, in derogation from
paragraph 3 up to and including 5, not be liable for more than the lowest
amount of the following amounts:
a. 250,000 units of account per passenger, per incident, or;
b. 340 million units of account per ship, per incident.
- 7. For the loss suffered as a result of the
loss of or damage to cabin luggage, the carrier shall be liable if the
incident which caused the loss was due to the fault or neglect of the
carrier. The fault or neglect of the carrier shall be presumed for loss
caused by a shipping incident. The liability of the carrier shall be limited
to the amount mentioned in Article 8, paragraph 1, of the of the Convention,
except when an amendment is made under the particular amendment procedure
as provided for in Article 23 of the Protocol.
- 8. For the loss suffered as a result of the
loss of or damage to luggage other than cabin luggage, the carrier shall
be liable unless the carrier proves that the incident which caused the
loss occurred without the fault or neglect of the carrier. The liability
of the carrier shall be limited to the amount mentioned in Article 8,
paragraph 2 and 3, of the of the Convention, except when an amendment
is made under the particular amendment procedure as provided for in Article
23 of the Protocol.
- 9. The carrier and passenger may agree that
the liability of the carrier to at the most the amount mentioned in Article
8, paragraph 4, of the of the Convention, except when an amendment is
made under the particular amendment procedure as provided for in Article
23 of the Protocol, may be lessened in the case of damage to a vehicle
or of loss of or damage to other luggage.
- 10. The carrier and passenger may explicitly
agree in writing higher limits of liability than those meant in the present
Article.
- 11. Statutory interest and costs of legal
proceedings are not included in the limits of liability meant in the present
Article.
- 12. The present Article is without prejudice
to any right of recourse of the carrier against a third person and to
any defence based on (contributory) negligence of a passenger on the basis
of Article 8:513.
Article 504a Performing carrier
- 1. If the performance of the carriage or
part thereof has been carried out by a performing carrier, the carrier
shall nevertheless remain liable for the entire carriage according to
the provisions of the present Sections (Section 8.5.3). In addition, the
performing carrier shall be subject to and entitled to appeal to the provisions
of the present Section for the part of the carriage performed by him.
- 2. The carrier shall, in relation to the
carriage performed by the performing carrier, be liable for the acts and
omissions of the performing carrier and of his employees, representatives
and mandatories acting within the scope of their duty.
- 3. Any special contract under which the carrier
accepts obligations not imposed by the present Section (Section 8.5.3)
or waives any rights conferred by this Section shall affect the performing
carrier only if agreed by him expressly and in writing.
- 4. Where and to the extent that both, the
carrier and the performing carrier, are liable, their liability shall
be joint and several.
- 5. Nothing in the present Article shall prejudice
any right of recourse of the carrier and the performing carrier.
Article 504b Limits of liability applied to the total sum of damages
- 1. The limits of liability meant in Article
8:504 are applied to the total sum of damages which can be obtained within
the scope of all liability debt-claims in the event of the death or personal
injury of a passenger or in the vent of loss of or damage to his luggage.
- 2. In the event of a carriage by a performing
carrier the total sum of damages to be obtained from the carrier, the
performing carrier, and from their employees, representatives and mandatories
who acted in the scope of their duty, cannot be higher than the highest
damages (compensation) that can be imposed by virtue of the present Section
(Section 8.5.3) on the carrier or performing carrier. None of the persons
mentioned in the present paragraph can be held liable for an amount which
exceeds the limits of liability applicable to him pursuant to the present
Section.
- 3. If an employee, representative or mandatory
of the carrier or of the performing carrier may invoke, pursuant to Article
8:504e, the limits of liability as referred to in Article 8:504, then
the total sum of damages which can be obtained from the carrier or the
performing carrier and from the employee, representative or mandatory
shall not exceed those limits.
Article 8:504c Damage caused intentionally or recklessly
- 1. The carrier cannot invoke the limits of
liability as meant in Article 8:504 if it is proved that the damage or
loss results from an act or omission of the carrier, either committed
with the intend to cause such damage or loss, or committed recklessly
and with the knowledge that such damage or loss probably shall result
form it.
- 2. The employee, representative or mandatory
of the carrier or of the performing carrier cannot invoke the limits of
liability meant in paragraph 1, if the damage or loss results from an
act or omission of that employee, representative or mandatory, either
committed with the intend to cause such damage or loss, or committed recklessly
and with the knowledge that such damage or loss probably shall result
from it.
Article 8:505d Liability (performing) carrier: mandatory law
No legal claim for damages as meant in the present Section (Section 8.5.3)
can be filed against the carrier or the performing carrier otherwise than
in accordance with the present Section.
Article 8:504e Defences of an employee, representative or mandatory
When a legal claim (right of action) is filed against an employee, representative
or mandatory of the carrier or performing carrier for damages to which
the present Section (Section 8.5.3) applies, that employee, representative
or mandatory, if he proves that he has acted in the scope of his duty,
may invoke the defences and limits of liability that the carrier and performing
carrier may invoke by virtue of the present Section (Section 8.5.3).
Article 8:507f No prejudice to Titles 8.7 and 8.20
The present Section (Section 8.5.3) is without prejudice to Titles 8.7
and 8.12.
Article 8:505 [repealed on 31-12-1012]
Article 8:506 [repealed on 31-12-1012]
Article 8:507 No liability of the carrier for gold, silver and other valuable
objects
The carrier shall not be liable for the loss of or damage to monies, negotiable
securities, gold, silverware, jewellery, ornaments, works of art, or other
valuables, except where such valuables have been deposited with the carrier
for the agreed purpose of safe-keeping in which case the carrier shall
be liable up to the amount meant in Article 8:504, paragraph 8, unless
the carrier and passenger have in consultation agreed with each other
a higher limit of liability in accordance with Article 8:604, paragraph
10.
Article 8:508 [repealed on 31-12-2012]
Article 8:509 Liability of the passenger
Without prejudice to Article 8:508 and Article 6:179, the passenger is
obliged to compensate the carrier for the damage caused to him by the
passenger or the passenger’s luggage, except to the extent that
such damage is caused by a circumstance that a diligent (prudent) passenger
could not avoid and of which the consequences could not have been prevented
by such a passenger. In order to exempt himself from his liability, the
passenger cannot refer to the condition (state) of or a defect in his
luggage.
Article 8:510 Provisions applicable to the transport of luggage
- 1. Without prejudice to the provisions of
the present Section (Section 8.5.3), the Articles 8:378, 8:387, 8:388,
paragraph 2, 8:389, 8:394, paragraph 1 and 2, 8:395, 8:396, 8:398, 8:488
up to and including 8:491 and 8:493 up to and including 8:496 shall apply
to the transport of luggage. The termination meant in Article 8:396 may
be done verbally too. The rights granted under Article 8:489 and the right
granted under Article 8:491 through which the performance of a claim can
be realised by receiving payment from the to be deposited amount for costs
relating to the carriage, may be exercised for all that the carrier’s
counterparty or the passenger is indebted to the carrier.
- 2. Parties are at liberty to derogate from
the provisions that in paragraph 1have been declared applicable to their
mutual relationship.
Article 8:511 Period in which the passenger must complain about loss of
or damage to luggage
- 1. The passenger is obliged to notify the
carrier in writing:
a. in case of externally visible damage to
luggage:
(i) in regard of cabin luggage: before or at the time of disembarkation
of the passenger;
(ii) in regard of all other luggage: before or at the time of
the handing over of the luggage;
b. in case of not externally visible damage
to or loss of luggage: within fifteen days after the start of the day
following the one of disembarkation or the handing over, or following
the one on which the luggage should have been handed over.
- 2. If the passenger does not comply with
his obligation defined in paragraph 1 of the present Article, it is presumed,
save for counter evidence, that he has received the luggage undamaged.
- 3. A written notice is superfluous if the
condition (state) of the luggage is jointly identified or inspected at
the time that it is handed over.
Article 8:512 Right of the carrier to examine the passenger’s luggage
The carrier is not required, but is entitled to assure himself of the
nature or condition of the luggage if he suspects that he, knowing the
nature or condition of the luggage that the passenger has brought on board,
would not have allowed that luggage on board. The carrier is obliged to
conduct such examination in the presence of the passenger or, if this
is not possible, in the presence of two people of whose assistance he
otherwise does not make use in the performance of his obligation.
Article 8:513 Passenger’s own fault
If the carrier proves that a fault or omission (negligence) of the passenger
has caused damage or has contributed to it, the carrier’s liability
therefore can be eliminated in full or in part.
Article 8:514 Services rendered upon the request of the passenger by others
than the carrier or his subordinates
If persons of whose assistance the carrier makes use in the performance
of his obligations, render a service upon the request of a passenger that
the carrier is not obliged to render, then those persons are regarded
to act upon the instructions of the passenger to whom they render that
service.
Article 8:515 Delay damages
Except for what is provided in Article 8:516, the carrier who has bound
himself to perform transportations according to an operating schedule
(public timetable) otherwise than by way of chartering, shall not be liable
for damage caused by delay which has occurred, for whatever reason, before,
during or after the transport.
Article 8:516 [repealed on 31-12-2012]
Article 8:517 [repealed on 31-12-2012]
Article 8:518 [repealed on 31-12-2012]
Article 8:519 [repealed on 31-12-2012]
Article 8:520 Mandatory law
- 1. Null and void is any stipulation (clause)
made prior to the incident that happened to the passenger or prior to
the loss of or damage to the luggage, through which the liability or burden
of proof of the carrier or performing carrier, imposed on him pursuant
to the present Section (Section 8.5.3), is reduced in another way than
provided for in the present Section.
- 2. The nullity of a stipulation (clause)
as referred to in paragraph 1 does not lead to the nullity of the passenger
transport contract.
Article 8:521 Valuation of the claim for damages
- 1. In case of loss of or damage to luggage,
the claim for damages is valued according to the circumstances*).
- 2. In case of a passenger who has met with
physical injury and in case of the death of a passenger, Articles 6:107
and 6:108 do not apply to the claims that the carrier, as counterparty
of another carrier, files in court against the latter.
*) The content and amount of damages are to be determined with due observance of Articles 6:95 -6:110.
Article 8:522 Counterparty of the carrier guarantees the timely presence
of the passenger
The counterparty of the carrier is obliged to compensate the latter for
the damage he suffers because the passenger, for whatever reason, is not
present in time for transport.
Article 8:523 Counterparty of the carrier guarantees the timely presence
of required documents
The counterparty of the carrier is obliged to compensate the latter for
the damage he suffers because the documents with regard to the passenger,
required on the part of the counterparty to perform the transport, are
not, for whatever reason, adequately available.
Article 8:524 Termination right of the carrier in case of unknown circumstances
- 1. If, before or during transport, circumstances
arise or come forward on the part of the counterparty of the carrier or
of the passenger, of which the carrier not ought to have been aware at
the conclusion of the passenger transport contract, but which, if he had
known them, reasonably would have been a reason for him not to enter into
that contract or to enter into it on different terms and conditions, then
the carrier has the right to terminate the passenger transport contract
and to remove the passenger from the ship.
- 2. Such termination is effected by means
of a verbal or written notice to the counterparty of the carrier or to
the passenger, and the passenger transport contract shall end at the moment
of receipt of the first received notice.
- 3. After termination of the passenger transport
contract, parties must, to standards of reasonableness and fairness, compensate
the damage that the other suffers as a result of the termination.
Article 8:525 Termination right of the carrier’s counterparty in
case of unknown circumstances
- 1. If, before or during the transport, circumstances
arise or come forward on the part of the carrier, of which his counterparty
not ought to have been aware at the conclusion of the passenger transport
contract, but which, if the counterparty would have known them, reasonably
would have formed a reason for him not to enter into that contract or
to enter into it on different terms and conditions, then that counterparty
has the right to terminate the passenger transport contract.
- 2. Such termination is effected by means
of a verbal or written notice, and the passenger transport contract shall
end at the moment of receipt of that notice.
- 3. After termination of the passenger transport
contract, parties must, to standards of reasonableness and fairness, compensate
the damage that the other suffers as a result of the termination
Article 8:526 End of the passenger transport contract when the passenger
does not return in time
Where the passenger, after he has left the ship, does not return in time,
the carrier may consider the agreement to be ended as of that moment.
Article 8:527 General termination right of the carrier’s counterparty
and damages
- 1. The counterparty*) of the carrier is always
entitled to terminate the passenger transport contract. He then is obliged
to compensate the carrier for the damage the latter suffers as a result
of this termination.
- 2. The counterparty is not able to exercise
this right of termination if, as a consequence thereof, the voyage of
the ship would be delayed.
- 3. The termination is effected by means of
a verbal or written notice, and the passenger transport contract shall
end at the moment of receipt of that notice.
*) A passenger who is not the counterparty of the air carrier misses this termination right; he is only able to withdraw himself physically from the transport.
Article 8:528 Formalities for a passage ticket and baggage receipt
- 1. Where a passage ticket, a receipt for
luggage or any similar document has been issued in relation to the transport,
the carrier must clearly mention therein his name and place of residence.
- 2. Any stipulation (clause) in derogation
from paragraph 1 of the present Article is null and void.
- 3. Articles 2:56, paragraph 2, 2:75, paragraph
1 and 2:186, paragraph 1, are not applicable.
Article 8:529 Compulsory insurance or other financial security
- 1. The carrier who actually performs the
whole or a part of the transport of passengers on board of a ship registered
in the Netherlands that is licensed to carry more than twelve passengers,
is obliged to maintain an insurance or other financial security, such
as a bank guarantee, to cover liability under the present Section (Section
8.5.3) in respect of the death of and personal injury to passengers. The
limit of the compulsory insurance or other financial security shall not
be less than the amount mentioned in Article 4bis of the Convention, except
when an amendment is made under the particular amendment procedure as
provided for in Article 23 of the Protocol, per passenger, per incident.
- 2. The carrier who actually performs the
whole or a part of the transport of passengers on board of a ship registered
in the Netherlands that is licensed to carry more than twelve passengers,
is obliged to maintain an insurance or other financial security, such
as a bank guarantee, to cover liability under the present Section (Section
8.5.3) in respect of the death of and personal injury to passengers caused
by the risks mentioned in point 2.2 of the IMO Guidelines. The limit of
the compulsory insurance or other financial security shall not be less
than the lowest of the following amount:
- 250,000 units of account per passenger, per incident;
- 340 million units of account in total per ship, per separate incident.
- 3. The carrier who actually performs the
whole or a part of the transport of passengers on board of a ship licensed
to carry more than twelve passengers and that is registered outside the
Netherlands or sales under another than the Dutch flag, is obliged, when
the ship enters or leaves a harbour or a loading or unloading location
in the Netherlands or when it sails a Dutch inland waterway, to maintain
an insurance or other financial security, such as a bank guarantee, to
cover liability under the present Section (Section 8.5.3) in respect of
the death of and personal injury to passengers. The limit of the compulsory
insurance or other financial security shall not be less than the amount
mentioned in Article 4bis of the Convention, except when an amendment
is made under the particular amendment procedure as provided for in Article
23 of the Protocol, per passenger, per incident.
- 4. The carrier who actually performs the
whole or a part of the transport of passengers on board of a ship licensed
to carry more than twelve passengers and that is registered outside the
Netherlands or sales under another than the Dutch flag, is obliged, when
the ship enters or leaves a harbour or a loading or unloading location
in the Netherlands or when it sails a Dutch inland waterway, to maintain
an insurance or other financial security, such as a bank guarantee, to
cover liability under the present Section (Section 8.5.3) in respect of
the death of and personal injury to passengers caused by the risks mentioned
in point 2.2 of the IMO Guidelines. The limit of the compulsory insurance
or other financial security shall not be less than the lowest of the following
amount:
- 250,000 units of account per passenger, per incident;
- 340 million units of account in total per ship, per separate incident.
Article 5:529a Requirements for a contract for the provision of financial
security
The contract for the provision of financial security as meant in Article
8:529, must meet the following requirements:
a. the contract must be entered into with an
insurer, bank or other financial institution, or with another person of
whom the Minister, after consultation with the Minister of Finance, has
decided that his financial capacity is sufficient to cover the liability
resulting from the present Section (Section 8.5.3);
b. the financial means drawn from the contract
must, where the provider of financial security (i.e. insurer, bank etc.)
is domiciled outside the Netherlands, really become available in the Netherlands;
c. from the contract must show that the financially
harmed person may file his legal claim (right of action), in conformity
with Article 8:529b and with Article 7 (4bis), paragraph 10, of the Convention,
directly against the provider of financial security. If the contract encloses
a stipulation (clause) that the carrier himself shall bear a part of the
damages (compensatory compensation), then from the contract must show
that the provider of financial security nonetheless towards the financially
harmed person remains liable for the payment of also that part of the
damages;
d. from the contract must show that the provider
of financial security cannot, within the validity period for which a certificate
as referred to in Article 8:529c has been issued, suspend or end nor change
the contract as such that he no longer meets the requirements of the present
Article, than after the expiration of three months since the date of receipt
of a notification as referred to in Article 8:529f, unless the certificate
has been surrendered or a new certificate has been issued prior to the
expiration of this period.
Article 8:529b Legal claim directly against the insurer or other provider
of financial security
-1. Any claim for damages (compensation) covered
by insurance or another financial security pursuant to the present Section
(Section 8.5.3) may be brought (filed) directly against the insurer or
other person providing financial security. In such case, the defendant
may, even when the carrier is not allowed to limit his liability, limit
his liability to the amount equal to the insured sum or the sum of the
other provided financial security as referred to in Article 8:529.
- 2. The defendant may invoke all means of
defence which the carrier could have invoked against the claims, but he
cannot appeal to the circumstance that a moratorium on payment is granted
to the carrier, that the debt repayment scheme for natural persons applies
to the carrier or that the carrier is bankrupt or already wounded up.
Furthermore, the defendant may invoke the defence that the damage resulted
from the wilful misconduct of the assured carrier himself, but the defendant
cannot invoke any other defence which the defendant might have been entitled
to invoke in proceedings brought by the assured carrier against the defendant.
– 3. The defendant shall in any event
have the right to call the carrier and the performing carrier to the legal
proceedings to be joined as a party.
Article 8:529c Issuance of a certificate or certification by the Minister
- 1. Upon the request of the carrier, the Minister
shall issue to the carrier a certificate as specified in Article 4bis,
paragraph 2, of the Convention, or shall certify a document handed over
by the provider of financial security on behalf of the carrier as a certificate,
if it has appeared to the Minister that the carrier meets the requirements
meant in Article 8:529.
- 2. When making the request, the carrier must
submit the following data and documents:
a. the name and the address of the head office
of the enterprise of the carrier who actually performs the whole or a
part of the transport of passengers;
b. an extract from the ship’s registry
as referred to in Article 101, paragraph 1, of the Land Registry Act (‘Kadasterwet’),
mentioning at least the data meant in Article 85, paragraph 2, under (a),
(c), (d), (e), (f), (g) and (j), of that Act, on the understanding that
when the extract has been issued more than two days prior to the day of
submission, it must contain a declaration of the keeper of the Land Registry
en the public registers, made within the before meant period of two days,
indicating that, since the issuance of the extract, the data mentioned
therein have not changed;
c. a copy of the contract for the provision
of financial security;
d. the name of the one who provides that financial
security and the place of his head office, and, where appropriate, the
office from where the financial security is provided;
e. the moment that the provided financial security
enters into force and the moment that it ends.
- 3. The certificate shall be kept on board
the ship, and a copy shall be deposited with the authorities who keep
the records of the ship’s registry or, if the ship is not registered
in a State that is a party to the Convention, with the authority of the
State issuing or certifying the certificate.
Article 8:529d Use of the paid out insurance or other sums
Sums of money made available by the insurer or the provider of other financial
security as referred to in Article 8:529a, are to be used exclusively
for the satisfaction of debt-claims arisen pursuant to the present Section
(Section 8.5.3), and any payments made of such sums shall discharge any
liability arising under the present Section to the extent of the amounts
paid.
Article 8:529e Denial of a request by the Minister
The Minister shall deny a request as meant in Article 8:529a if the submitted
data or documents are insufficient or incorrect or if the contract for
the provision of financial security does not comply with the requirements
set out by or pursuant to the present Section (Section 8.5.3).
Article 8:529f Obligation to inform the Minister of changes regarding
the provision of financial security
- 1. The carrier to whom a certificate is issued,
is compelled to notify without delay in writing to the Minister, where
appropriate, that the contract for the provision of financial security
has become invalid, has been suspended or has ended within the validity
period for which the certificate was issued, and also of any change during
that period in the data submitted when the request meant in Article 8:529c
was made.
- 2. The Minister shall ensure that a notification
as referred to in paragraph 1 with regard to a contract for the provision
of financial security for a ship registered in the Netherlands, is announced
in writing to the office of the Land Registry and the public registers
where the public registers are kept in which the request for registration
was made, and where the announcement shall be stored.
- 3. The existence and the date of receipt
of announcements as meant in paragraph 2 shall be registered, without
delay, in the ship’s registry meant in Article 85 of the Land Registry
Act (‘Kadasterwet’). Announcements as meant in paragraph
2 are made public.
- 4. The notification meant in paragraph 1
may be made, besides by the carrier, also by the one who provides the
financial security.
Article 8:529g Withdrawal of an issued certificate
- 1. The Minister may, after consultation with
the Minster of Finance, withdraw a certificate if, as a result of a change
in the data submitted when the request meant in Article 8:529c was made
or because these data appear to be insufficient or incorrect, that certificate
no longer meets the requirements set out by or pursuant to the present
Section (Section 8.5.3) of if there are good reasons to assume that the
financial capacity of the provider of financial security was or has become
insufficient or, if that provider is domiciled outside the Netherlands,
there appears to be an obstacle in regard of the requirement that the
paid out sums must become really available within the Netherlands.
- 2. The decision for a withdrawal shall mention
the period within which the certificate must be surrendered.
- 3. The effect of the decision shall be postponed
until the period of appeal has expired or, if an appeal is filed, until
a judgment is rendered on appeal.
Article 8:529h Surrender of an withdrawn certificate
- 1. The carrier must as soon as possible surrender
the certificate to the Minster after a notification is made in accordance
with Article 8:529f, paragraph 1, of the fact that the contract for the
provision of financial security has become invalid, has been suspended
or has ended of after the validity period for which the certificate was
issued has expired.
- 2. In case of an irrevocable (final and binding)
withdrawal, the carrier must surrender the certificate to the Minister
within the period meant in Article 8:529, paragraph 2.
Article 8:529i Registration of a decision of the Minister
The Minister shall send a copy of each certificate issued by him and of
each irrevocable (final and binding) decision for the withdrawal of an
issued certificate to the office of the Land Registry and public registers,
where this announcement shall be stored.
Article 8:529j Delegation
Regulations may be set by Order in Council regarding the fees to be paid
for the issuance of certificates or the certification of documents as
certificates as referred to in Article 8:529c.
Article 8:529k Exclusive jurisdiction of the Rotterdam District Court
In derogation from Article 8:7 of the General Administrative Law Act,
the District Court of Rotterdam has exclusive jurisdiction over appeals
against decisions of the Minister taken on the basis of the present Section
(Section 8.5.3).
Section 8.5.4 Some specific contracts
Article 8:530 Bareboat chartering
- 1. In the event of a contract (bareboat chartering)
under which one of the parties (the bareboat lessor) has engaged himself
to place a ship exclusively for use at sea at the disposal of his counterparty
(the bareboat charterer), without retaining any power of control over
it, the operation (management) of the ship lies in the hands of the bareboat
charterer and shall happen for his account.
- 2. Article 8:375 shall apply accordingly.
Article 8:531 Applicability of statutory provisions when ship is placed
at someone’s disposal for use at sea for other purposes than transporting
goods or persons
- 1. The provisions on general average as well
as the provisions of the present Title (Title 8.2) and, if the involved
ship concerns an inland navigation vessel, the provisions of Article 8:880,
apply accordingly to a contract under which one party has engaged himself,
otherwise than by way of bareboat chartering, to place a ship exclusively
for use at sea at the disposal of the other party for any purpose other
than transporting goods or persons.
- 2. Parties are at liberty to derogate from
the provisions that in paragraph 1 have been declared applicable to their
mutual relationship.
Article 8:532 Placing a ship at someone’s disposal for use at sea
or on inland waterways
For the purpose of the provisions of the present Section (Section 8.5.4),
placing one and the same ship at the disposal of someone else for use
at sea and on inland waterways is regarded as placing it at the disposal
of someone else for use at sea, unless the placement at the disposal of
someone else for use at sea is apparently secondary to that on inland
waterways, in which case it is regarded as the placement at the disposal
of someone else for use on inland waterways.
Articles 8:533 - 8:539 [reserved for future legislation]
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