Dutch
Civil Code
Book 8 Transport law and means of transport
Article 8:540 Definition of a ‘collision’
There is a collision when ships touch each other.
Article 8:541 Liability for damage under Section 8.6.1 without there having
been a collision
Subject to the ‘Act liability oil tankers’ and to Section
8.6.5, all what is provided in the present Section (Section 8.6.1) on
collision shall apply as well when damage is caused by a seagoing ship
without there having been a collision.
Article 8:542 Application of Section 6.8.1
If a seagoing ship has caused damage due to a collision or if a seagoing
ship or the persons or property on board thereof have suffered damage
due to a ship, then the liability for that damage shall be governed by
the present Section (Section 8.6.1).
Article 8:543 Force majeure (Act of God)
If the collision is caused by chance (coincidence), if it was due to force
majeure (Act of God) or if there is doubt with regard to the reasons causing
the collision, then the damage shall be borne by those who have suffered
it.
Article 8:544 Fault of one single ship
If the collision is caused by the fault of one single ship, then the owner
of the ship that was at fault is obliged to compensate the damage.
Article 8:545 Two or more ships are at fault jointly
- 1. If two or more ships have jointly caused
a collision by their fault, then the owners thereof shall be liable; they
shall not be jointly and severally liable for the damage caused to ships
which were at fault too and to the property on board of these ships; they
shall be jointly and severally liable for all other damage.
- 2. Where the liability is not joint and several,
the owners of the ships which jointly have caused the collision by their
fault, shall be liable towards the loss suffering persons in proportion
to the importance of the fault of their ships; however, if the circumstances
bring along that such proportionality cannot be determined or if it appears
that the fault of these ships is equal, then the liability shall be shared
for equal parts.
- 3. Where the liability is joint and several,
each of the liable owners has to take for his own account his share in
the payment to the creditor as assessed pursuant to paragraph 2 of the
present Article. Subject to Article 8:364 and Article 8:880, he who has
paid more than his internal share, has recourse for the surplus against
his co-debtors who have paid less than their internal share.
Article 8:546 No legal presumption of fault
There are no legal presumptions of fault with respect to the liability
for collision; the ship that has touched another thing than a ship although
that thing was, if necessary, properly illuminated, fixed or fastened,
is liable for the damage, unless it is shown that the collision was not
caused by a fault of the ship.
Article 8:547 Liability for faults of a pilot
The liability that exists pursuant to the present Section (Section 8.6.1)
shall not be eliminated if the collision is caused by the fault of a pilot,
Articles 8:548 – 8:549 [reserved for future legislation]
Section 8.6.2 Assistance (Salvage)*)
*) The Dutch government has derived some parts of the text of this Section from the text of the International Convention on Salvage (London, 1989)
Article 8:550 International Agreement on the Rescue of Astronauts
The present Section (Section 8.6.2) only applies without prejudice to
the International Agreement on the Rescue of Astronauts (Treaty Series
1968, 134).
Article 8:551 Definitions
In the present Section (Section 8.6.2) the following words shall have
the following meaning:
a. ‘assistance’: any act or activity
undertaken to assist a ship or any other property in danger in navigable
waters or in any other waters whatsoever;
b. ‘ship’: any seagoing ship or
other vessel (craft) or any structure that can navigate on water;
c. ‘property’: any property not
permanently and intentionally attached to the shoreline, as well as the
goods (cargo) at risk;
d. ‘damage to the environment’:
substantial physical damage to human health or to marine fauna and flora
or resources in coastal or inland waters or areas adjacent thereto, caused
by pollution, contamination, fire, explosion or similar major incidents.:
e. ‘payment’: any reward, remuneration
or compensation due pursuant to the present Section (Section 8.6.2).
*) See Article 1 of the International Convention on Salvage (London, 1989).
Article 8:552 Inland waterways that are considered to belong to the sea
For the purpose of the present Section (Section 8.6.2), the waters mentioned
in Article 21 of the ‘Act regarding the supervision over what is
washed ashore’ are considered to form a part of the sea, and the
beaches and shores thereof are considered to form a part of the seashore.
Article 8:553 Section 8.6.2 does not apply to salvage to offshore drilling
units or maritime cultural heritage
The present Section (Section 8.6.2) is not applicable in case of the rendering
of salvage assistance to:
a. fixed or floating platforms or to mobile
offshore drilling units when such platforms or units are on location engaged
in the exploration, exploitation or production of sea-bed mineral resources;
b. maritime cultural heritage that is of prehistoric,
archaeological or historic interest and that remains for at least fifty
years on the seabed.
*) See Article 3 of the International Convention on Salvage (London, 1989).
Article 8:554 Warships and other non-commercial vessels
The present Section (Section 8.6.2) is applicable also in case of the
rendering of salvage assistance by or to a warship or another non-commercial
vessel, owned, used or chartered by the State of the Netherlands or any
other State which has declared the International Convention on Salvage,
1989 (Trb . 1990, 109), applicable to those ships.
Article 8:555 Applicability of Section 8.6.2 regarding salvage to other
things than ships and property on board thereof
The provisions for salvage (rendering of salvage assistance) shall apply
accordingly in case of the rendering of salvage assistance:
a. to property having sunk or washed ashore
on the seashore or at the shores of navigable inland waterways;
b. by a ship to an aircraft.
Article 8:556 Annulment or modification of already concluded contracts
for salvage
- 1. Upon the request of one of the parties,
a contract for salvage may be annulled or modified in full or in part
by the court, when it has come into existence under the influence of an
abuse of circumstances or under the influence of danger, and the agreed
terms and conditions are unfair (inequitable) or the agreed payment is
excessively high or low in comparison to the services actually rendered.
- 2. Any stipulation (clause) in derogation
from paragraph, is null and void.
*) See Article 7 of the International Convention on Salvage (London, 1989).
Article 8:557 No rendering of salvage assistance allowed when the proprietor
forbids so
- 1. Salvage assistance to ships in danger,
to property on board thereof or to property originating from a ship that
is floating (drifting) around or that has washed ashore or has sunken,
may not be rendered against an express and reasonable prohibition of the
owner or captain (master) of the ship. Salvage assistance to other property
in danger [that is not and has not been on board the ship] may not be
rendered against an express and reasonable prohibition of the proprietor
of that property.
- 2. A prohibition to render salvage assistance
may be issued at all times.
*) See Article 19 of the International Convention on Salvage (London, 1989).
Article 8:558 Right to lead the rendering of salvage assistance
- 1. The rendering of salvage assistance to
a ship, to property on board thereof or to property originating from the
ship that is floating (drifting) around or that has washed ashore or has
sunken, is conducted under the direction of the captain (master) and,
when no captain is present or he is not acting, under the direction of
the owner of the ship or property.
- 2. When running aground (stranding) or washing
ashore on or at the seashore, the direction is held, when neither the
captain (master) nor the proprietor is acting, by the wreck authority.
- 3. If it is necessary to take measures immediately,
then the provisions of the present Article do not apply until de captain
(master), proprietor or wreck authority is in charge.
Article 8:559 Captain (master) may always retake the lead during the salvage
operations
- 1. When a ship has been abandoned by the
crew and has been taken over by salvors or the wreck authority, the captain
(master) is at all times at liberty to return to his ship and to take
over the command again, in which case the salvors or wreck authority must
instantly grant the command to the captain (master).
- 2. If the captain (master) or the proprietor
is present at the salvage or at the spot where the salvaged property is
brought ashore and the salvor or wreck authority is aware thereof, then
the salvors or wreck authority must immediately place that property at
his disposal, all without prejudice to Article 8:571.
- 3. In situations where the salvaged property
does not have to be placed on the basis of the previous paragraph at the
disposal of the captain (master) or proprietor, it must, as far as it
finds itself during the salvage on the foreshore or seashore, be placed
immediately at the disposal of the wreck authority.
Article 8:560 Obligations of the salvor and of the shipowner/captain (master)*)
- 1. The salvor has a duty towards the shipowner
or the proprietor of other property in danger:
a. to carry out the salvage operations with
due care;
b. in performing the duty specified in paragraph
1, under (a), to exercise due care to prevent or minimize damage to the
environment;
c. whenever circumstances reasonably require,
to seek assistance from other salvors, and;
d. to accept the intervention of other salvors
when reasonably requested to do so by the shipowner or captain (master)
of the ship or by the proprietor of other property in danger, on the understanding
that the amount of his reward shall not be diminished should it be found
that such a request was unreasonable.
- 2. The shipowner and the captain (master)
of the ship or the proprietor of other property in danger have a duty
towards the salvor:
a. to co-operate fully with him during the
course of the salvage operations;
b. in so doing, to exercise due care to prevent
or minimize damage to the environment; and
c. when the ship or other property has been
brought to a place of safety, to accept the return thereof when reasonably
requested by the salvor.
-3. Any stipulation (clause) in derogation
from paragraph 1, under (b), or paragraph 2, under (b), is null and void.
*) See Article 8 of the International Convention on Salvage (London, 1989).
Article 8:561 Salvage reward*)
- 1. Salvage assistance rendered with a useful
result gives right to a reward.
- 2. Except for what is provided in Article
8:564, no payment is due by virtue of the present Section (Section 8.6.2)
when the rendering of salvage assistance has had no useful result.
- 3. Salvage assistance rendered as defined
in paragraph 1 gives right to a reward even if the person entitled to
the reward or the person who is entitled to claim the assessment of the
reward is the same person as the one who has to pay that reward.
*) See Article 12 of the International Convention of Salvage (London, 1989).
Article 8:562 Liability of a party to a contract for salvage on a non-contractual
ground
If a party to a contract for salvage is held liable by his counterparty
to that contract on a non-contractual ground for damage caused in the
salvage operation, 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. Articles 8:365 and 8:366 shall apply
accordingly.
Article 8:563 Criteria for fixing the salvage reward*)
- 1. The salvage reward shall be assessed (fixed)
by agreement between parties and, in the absence of such an agreement,
by the court.
- 2. The salvage reward shall be assessed (fixed)
with a view to encouraging salvage operations, taking into account the
following criteria without regard to the order in which they are presented
below:
a. the salved value of the ship and the other
property;
b. the skill and efforts of the salvors as
shown in preventing or minimizing damage to the environment;
c. the measure of success obtained by the salvor;
d. the nature and degree of the danger;
e. the skill and efforts of the salvors as
shown in salving the ship, the other property and human life;
f. the time used and expenses and losses incurred
by the salvors;
g. the risk of liability and other risks run
by the salvors or their equipment;
h. the promptness of the services rendered;
i. the availability and use of vessels or other
equipment intended for salvage operations;
j. the state of readiness and efficiency of
the salvor's equipment and the value thereof.
- 3. The reward for rendering salvage assistance
to a ship and to property on board thereof shall have to be paid only
by the shipowner, on the understanding that the shipowner shall have a
right of recourse against the other persons with an interest, each for
their respective shares. The reward for rendering salvage assistance to
other property shall have to be paid by the proprietor of that property.
- 4. The salvage rewards, excluded any interest
and recoverable legal costs, may not exceed the salved value of the ship
and other property.
- 5. Where the salvage reward also serves as
a compensation for costs incurred and damage suffered, the court shall
indicate to which costs incurred and to which damage suffered it relates.
*) See also Article 13 of the International Convention on Salvage (London, 1989).
Article 8:564 Special compensation for costs to prevent or minimize damage
to the environment*)
- 1. If the salvor has rendered salvage assistance
to a ship which by itself or its cargo threatened to cause damage to the
environment, and he has not acquired pursuant to Article 8:563 a salvage
reward at least equivalent to the special compensation assessable in accordance
with the present Article (Article 8:564), then he shall be entitled to
a special compensation to be paid by the shipowner equivalent to the salvor’s
expenses as defined in the present Article.
- 2. If, in the circumstances set out in paragraph
1, the salvor by rendering his salvage assistance has prevented or minimized
damage to the environment, the special compensation payable by the shipowner
to the salvor under paragraph 1 may be increased up to a maximum of 30%
of the expenses incurred by the salvor. If, however, the court, bearing
in mind the relevant criteria set out in Article 8:563, deems it fair
and just to do so, it may increase such special compensation further,
but in no event shall the total increase be more than 100% of the expenses
incurred by the salvor.
- 3. For the purpose of paragraph 1 and 2,
the salvor's expenses shall mean: the out-of-pocket expenses reasonably
incurred by the salvor in the salvage operation and a fair rate for equipment
and personnel actually and reasonably used in the salvage operation, taking
into consideration the criteria set out in Article 8:563, paragraph 1,
under (h), (i) and (j).
- 4. The total special compensation under the
present Article shall be paid only if and to the extent that such compensation
is higher than any salvage reward recoverable by the salvor pursuant to
Article 8:563.
- 5. If the salvor has been negligent and,
because of that, has failed to prevent or minimize damage to the environment,
then the court may deprive him in full or in part from the special compensation
due pursuant the present Article.
- 6. The court that assesses (fixes) the salvage
reward as meant in Article 8:563 and a special compensation as meant in
paragraph 1, is not compelled to assess the amount of the savage reward
to the maximum value of the ship and the other salved property before
it assesses the amount of the special compensation.
- 7. Nothing in the present Article shall affect
any right of recourse of the shipowner.
*) See Article 14 of the International Convention on Salvage (London, 1989). See in regard to paragraph 5 of Article 8:564 also Article 18 of the International Convention on Salvage (London, 1989).
Article 8:565 Salvage of persons*)
- 1. No salvage reward is due by persons whose
lives are saved.
- 2. Notwithstanding the provisions of paragraph
1, a salvage reward shall be due by the shipowner for each separate rescue
of passengers of his ship.
- 3. The person who has rescued human life
and who has taken part in the services rendered on the occasion of the
accident giving rise to salvage, is entitled to a fair share of the payment
awarded to the salvor for salving the ship or other property or for preventing
or minimizing damage to the environment.
*) See Article 16 of the International Convention on Salvage (London, 1989).
Article 8:566 Persons entitled to a salvage reward
- 1. Entitled to a reward for salvage are those
persons or groups of persons who have rendered salvage assistance.
- 2. If salvage assistance is rendered by persons
or groups who were operating interdependently, then only one single amount
is due as salvage reward to these groups or persons jointly.
- 3. Where the salvage assistance has been
rendered by a ship, also the members of the crew of the ship who did not
render salvage assistance may be entitled to the salvage reward.
Article 8:567 Waiver of a right to a salvage reward (mandatory law)
Any waiver (renunciation), irrespective towards whom this is done, by
a member of the crew of his right to a share in the salvage reward earned
or to be earned by the ship, is null and void, unless the ship, according
to its construction, is exclusively or mainly intended to be used for
the rendering of salvage assistance or for towing services, or the waiver
(renunciation) concerns one specific act of salvage.
Article 8:568 No salvage reward in case of a prohibition to render salvage
assistance / salvage reward for cooperating passengers / own fault or
neglect of salvor
- 1. Persons who rendered salvage assistance
notwithstanding an express and reasonable prohibition to do so as referred
to in Article 8:557, paragraph 1, are not entitled to a payment (salvage
reward) as granted under the present Section (Section 8.6.2).*)
- 2. Passengers who have rendered salvage assistance
to the ship, to property on board thereof or to floating, washed ashore
or sunken things originating from the ship, can only become entitled to
a payment (salvage reward) because of that assistance when they have rendered
services which they reasonably were not obliged to render.
- 3. No payment is due under the present Section
(Section 8.6.2) unless the services rendered go beyond of what reasonably
can be considered as an ordinary (due) performance of a contract entered
into before the danger arose.**)
- 4. If the rendering of salvage assistance
has become necessary or more difficult because of a fault or neglect on
the part of the salvors or if the salvors have been guilty of fraud or
other dishonest conduct, the court may deprive them of the whole or part
of the payment due under the present Section (Section 8.6.2).***)
*) See for paragraph 1, Article 19 of the International Convention on Salvage (London 1989).
**) See for paragraph 3, Article 17 of the International Convention on Salvage (London 1989).
***) See for paragraph 4, Article 18 of the International Convention in Salvage (London 1989).
Article 8:569 Right to claim the assessment of the salvage reward or special
compensation
- 1. If the salvage assistance is rendered
by independently acting persons or groups of persons, each of these persons
is authorized to claim the assessment of the salvage reward or special
compensation to which he, or the group to which he belongs, is entitled.
- 2. If the salvage assistance is rendered
by interdependently acting persons or groups of persons, each of these
persons is authorized to claim the assessment of the salvage reward or
special compensation to which these persons or groups are entitled jointly.
- 3. If the salvage assistance is rendered
by a ship, only the shipowner or captain (master) is authorised to enter
into an agreement in regard of the salvage reward or special compensation.
The contract concluded by him shall bind all persons entitled to the salvage
reward or special compensation. He is obliged, if desired so, to notify
each of them in writing, prior to payment, the amount of the salvage reward
or special compensation. In the absence of a contract only he is authorized,
and also obliged, to claim in court the judicial assessment of the salvage
reward or special compensation and to collect it.
- 4. In the situation referred to in Article
8:561, paragraph 3, each person entitled to the salvage reward or special
compensation is authorized to claim in court the assessment thereof, even
when a contract might have been concluded in regard of the salvage reward
or special compensation.
Article 8:570 Apportionment between salvors*)
- 1. The apportionment of a salvage reward
as meant in Article 8:563 between salvors shall be made on the basis of
the criteria contained in that Article.
- 2. The apportionment of a special compensation
as meant in Article 8:564 between salvors shall be made with due observance
of the criteria referred to in Article 8:563, paragraph 2, under (h),
(i) and (j).
- 3. When there is a dispute between the persons
entitled to the salvage reward or the special compensation over the apportionment
thereof, that apportionment shall be made by the court upon a claim of
any interested party.
*) See also Article 15 of the International Convention on Salvage (London, 1989).
Article 8:571 Salvor’s right of retention
- 1. He who is authorized to claim the assessment
of the salvage reward, has – subject to Article 8:559, paragraph
1 and 3 – towards anyone who is demanding the handing over of that
salvage reward, a right of retention upon the ship or property to which
salvage assistance is rendered as well as upon the ships that had property
on board to which salvage assistance is rendered, which right of retention
he may exercise for what is due to him with respect to the salvage reward.
- 2. In respect of the special compensation
referred to in Article 8:564, this right of retention may be exercised
on the ships to which assistance is rendered.
- 3. This right of retention ceases to exist
as soon as payment has been received of the amount not in dispute between
parties and, in addition, sufficient security (collateral) has been provided
for the payment of the disputed amounts or of amounts of which the total
cannot yet be determined.
Article 8:572 Duty to provide security (collateral) to the salvor *)
- 1. The person liable for a payment under
the present Section (Section 8.6.2) must, upon the request of the salvor,
provide sufficient security (collateral) for what he is due in regard
of that payment and for interest and costs in respect thereof.
- 2. The ship and other property to which salvage
assistance is rendered, shall not, without the consent of the salvor,
be removed from the port or place at which they first arrived after the
completion of the rendering of salvage assistance, until sufficient security
(collateral) has been put up for the payment meant in paragraph 1.
*) See also Article 21 of the International Convention on Salvage (London, 1989).
Article 8:573 Advance payment on the salvage reward or special compensation
- 1. Before the court assesses the salvage
reward or special compensation, it may order that an amount, to be determined
to fairness, shall be paid as an advance payment to the person who is
authorized to claim the assessment of the salvage reward or special compensation.
The court may attach conditions to this order which are fair in view of
the circumstances, including the condition that security (collateral)
shall be provided for the total or partial refund of the advance payment.
- 2. Where security (collateral) has been provided
pursuant to Article 8:572, the amount of the security provided shall be
reduced with the amount of the advance payment.
Article 8:574 Right of the salvor to store the ship and/or property (with
a safekeeper)
- 1. If the proprietors of the ships or other
property to which salvage assistance has been rendered, do not show up
at all, then the person who is authorized to claim the assessment of the
salvage reward or special compensation may, at the expense and risk of
the proprietors, keep their ships and/or property under his control or
deposit them in safe custody with a third person for storage in a suitable
repository (place of storage).
- 2. The third person who keeps the before
mentioned things in custody (safekeeper) and the proprietor are legally
bound to each other as if the contract concluded in regard of the deposit
of these things in safe custody has been entered into between them as
well. The safekeeper, however, is not authorized to hand over the things
he has in storage, unless he has the written approval to do so of the
person who has given them in safe custody.
Article 8:575 Sale of stored or deposited ship and/or property
- 1. Where Article 8:574 is applicable, the
person who is authorized to claim the assessment of the salvage reward
or special compensation, the safekeeper or the proprietor of the ships
and/or property may, upon his request, be authorized by the court to sell
all ships and/or property or a part thereof in a way to be determined
by the court.
- 2. The safekeeper must inform the person
who has deposited the ships and/or property in safe custody as soon as
possible of the intended sale; the person who has deposited these things
in safe custody or who keeps them under his control has the same obligation
towards the known proprietors of these things.
- 3. The proceeds of the sold things 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 things have been seized for a monetary debt-claim,
the person who has deposited them in safe custody must receive from the
amounts to be deposited what is due to him on account of the salvage reward
or special compensation; insofar as the salvage reward or special compensation
is not yet established, the proceeds or a part thereof shall serve as
security (collateral) for these 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 things (ships
and/or other property).
Article 8:576 Transfer of ownership of the salved ship and/or property
- 1. He who is entitled to a salvage reward
or special compensation, acquires two years after the end of the assistance
(salvage operation) the ownership of the thing to which salvage assistance
was rendered, if no proprietor thereof (owner) has shown up, provided
that the thing at that moment still remains under his control and that
he has done all what can reasonably be expected of him to discover the
proprietor (owner) and to inform the latter of the result of the rendered
salvage assistance.
- 2. Paragraph 1 does not apply if the proprietor
(owner) has presented (reported) himself within the period mentioned in
that paragraph to the person who is authorized to claim the assessment
of the salvage reward or special compensation, and has reimbursed him
for the costs of storage (custody) and maintenance and for the costs of
tracing the proprietor (owner). The person who is authorized to claim
the assessment of the salvage reward or special compensation, is authorized
to postpone the handing over of the thing until the before mentioned obligations
have been met. If the proprietor (owner) who is claiming the handing over
of the thing, has not paid the costs due within one month after these
have been mentioned to him, he is deemed to have waived (abandoned) his
right in (to) the thing.
Article 8:577 Legal provisions regarding a benevolent intervention in
someone else’s affairs do not apply
The legal provisions regarding a benevolent intervention into someone
else’s affairs (Section 6.4.1) do not apply.
Articles 8:578 - 8:609 [reserved for future
legislation]
Section 8.6.3 General Average*)
*) Some of the provisions of this Section are aligned to the York-Antwerp Rules 1994.
Article 8:610 Definition of a ‘general average act’ *)
There is a ‘general average act’, when - and only when - any
extraordinary sacrifice or expenditure is intentionally and reasonably
made or done for the common safety for the purpose of preserving from
danger (peril) the property involved in a joint venture (common maritime
enterprise) pursued with a seagoing ship, irrespective of how or due to
whom that danger has arisen.
*) See Rule A of the York Antwerp Rules (1994).
Article 8:611 Causality*)
Only such losses, damages or expenses which are the direct consequence
of a general average act shall be admitted as general average.
*) See Rule C of the York-Antwerp Rules (1994).
Article 8:612 Contributions in general average
- 1. The person who has suffered general average
shall be reimbursed for it by the shipowner, the person with an interest
in the freightage (transport fee) or fare (passage money) due, the recipient
of the cargo and the owners of the other property on board with the exception
of letters, other postal items or postal parcels, luggage and personal
belongings of passengers who have no luggage.
- 2. In derogation from paragraph 1, a motor
vehicle or vessel (ship) which is carried on board of the ship by the
carrier in connection with a passenger transport contract, shall contribute
in the general average.
Article 8:613 Applicability of the York-Antwerp Rules
Compensations for general average and the bearing values of the interests
contributing in the general average shall, in addition, be determined
with due observance of the York-Antwerp Rules as indicated by Order in
Council.
Articles 8:614 - 8:619 [reserved for future legislation]
Section 8.6.4 Hazardous substances on board of a seagoing ship*)
*) This Section is aligned to the Convention on Civil Liability for Damage caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD-Convention, concluded on 10 October 1989 at Geneva), which Convention in itself, however, does not apply to seagoing ships such as the present Section does.
Article 8:620 Definitions*)
In the present Section (Section 8.6.4), the term:
a. ‘hazardous substance’ means:
a substance which is designated as such by Order in Council; such designation
may be restricted to certain concentrations of the substance, to certain
dangers to be specified in the Order in Council that may be attached to
the substance, and to specific situations in which the substance finds
itself.
b. 'ship' means: any seagoing ship, other than
a hovercraft;
c. ‘damage’ means:
1 ° damage caused by the death of or physical injury to any person,
caused by a hazardous substance;
2 ° other damage outside the ship on which the hazardous substance
finds itself, caused by the hazardous substance, except for loss of or
damage in relation to other ships or inland navigation vessels and property
on board thereof, if such ships or inland navigation vessels are part
of a pulled or towed train of which also that ship forms a part or if
they are firmly coupled to that ship as if they jointly form one unit;
3 ° the costs of preventive measures and further loss or damage caused
by such measures;
d. ‘preventive measure means’:
any reasonable measures taken by any person to prevent or minimize damage
after an incident has occurred, with the exclusion of the person who is
liable pursuant to the present Section (Section 8.6.4);
e. ‘incident’ means: any occurrence
or series of occurrences having the same origin, which causes damage or
creates a grave and imminent threat of causing damage;
f. ‘shipowner’ means: the person
registered as owner of the ship in a public register in which that ship
is registered or, in the absence of any registration, the person who owns
the ship.
*) The text is aligned to the text of Article 1 of the CRTD Convention (Geneva, 1989).
Article 8:621 Sphere of application
- 1. The present Section (Section 8.6.4) does
not apply if the shipowner is liable towards the person who institutes
the debt-claim on the basis of a (commercial) operating contract or if
he may invoke against that person a (commercial) operating contract.
- 2. The present Section (Section 8.6.4) is
applicable during the period in which a hazardous substance finds itself
on board of a ship, including the period from the start of the loading
of the hazardous substance into the ship until the end of the unloading
of that substance from the ship.
- 3. The present Section (Section 8.6.4) does
not apply to damage caused when the ship is used exclusively in a non-public
area (area to which the public has no access) and such use is part of
a conduct of business taking place in that area.*)
- 4. Article 6:175 does not apply to substances
meant in that Article that are on board as referred to in paragraph 2,
unless the situation meant in paragraph 3 occurs.
- 5. The present Section (Section 8.6.4) does
not apply to damage arising from bunker oil pollution as defined in Section
8.6.5.
*) The text is aligned to the text of Article 4, under (a), of the CRTD Convention (Geneva, 1989).
Article 8:622 Stack transportation / towing service
- 1. If a hazardous substance finds itself
in a vehicle that is aboard a ship without this hazardous substance being
unloaded from that stacked vehicle, then for that period this hazardous
substance shall be deemed to be solely on board of that ship. In derogation
from what is provided in the preceding sentence, the hazardous substance
shall be deemed to be exclusively on board of that stacked vehicle during
the acts referred to in Article 8:623, paragraph 5, under (c), (d) and
(e).
- 2. If a hazardous substance finds itself
in a ship which is being towed by another ship or inland navigation vessel
or which is moved forward by another ship or inland navigation vessel,
which is firmly coupled to that ship as if they jointly form one unit,
then the hazardous substance shall be deemed to be solely on board of
the first mentioned ship.
Article 8:623 Liability of the shipowner
- 1. The person who, at the time of an incident,
is shipowner of a ship on board of which a hazardous substance is present,
is liable for the damage caused by that substance as a result of that
incident. Where the incident consists of a series of occurrences having
the same origin, the liability rests on the person who was the shipowner
at the time of the first of these occurrences.
- 2. The shipowner is not liable if:
a. the damage resulted from an act of war,
hostilities, civil war, insurrection or a natural phenomenon of an exceptional,
inevitable and irresistible character, or;
b. the damage was wholly caused by an act or
omission of a third person, not being someone as mentioned in paragraph
5, under (a), committed with the intent to cause damage, or;
c. the consignor or any other person failed
to meet his obligation to inform him (the shipowner) of the hazardous
nature of the substance, and neither he (the shipowner) nor the persons
mentioned in paragraph 5, under (a), knew or ought have known that it
was hazardous.**)
- 3. If the shipowner proves that the damage
resulted wholly or partially either from an act or omission committed
with the intent to cause damage by the person who suffered the damage
or from the negligence of that person, the shipowner may be exonerated
wholly or partially from his liability towards such person.***)
- 4. The shipowner can only be held liable
otherwise than pursuant to the present Section (Section 8.6.4) in the
situation referred to in paragraph 2, under (c), as well as in the situation
that he is held liable on account of an employment contract.
- 5. Subject to Articles 8:624 and 8:625, not
liable for damage shall be:
a. the subordinates, representatives (agents)
or mandataries of the shipowner or the members of the crew;
b. the pilot of the ship or any other person
who, without being a member of the crew, performs services on behalf of
the ship;
c. any person who, other than in conflict with
an express and reasonable prohibition on account of the ship, renders
salvage assistance to the ship or to the persons and property on board
thereof;
d. any person rendering salvage assistance
to the ship or to the persons and property on board thereof on instruction
of a competent public authority;
e. any person, other than the shipowner, taking
preventive measures;
f. any subordinate, representative (agent)
or mandatary of the persons exempted from liability as referred to in
the present paragraph, under (b), (c), (d) and (e), unless the damage
resulted from his personal act or omission, cimmited with the intent to
cause such damage or committed recklessly and with knowledge that such
damage would probably result.****)
- 6. Unless agreed otherwise, the shipowner
has a right of recourse against the persons meant in paragraph 5, but
only if these persons can be held liable on the basis of the last part
of that paragraph.*****)
*) The text is aligned to the text of Article 5, paragraph 2, of the CRTD Convention (Geneva, 1989).
.**) The text is aligned to the text of Article 5, paragraph 4, of the CRTD Convention (Geneva, 1989).
***) The text is aligned to the text of Article 5, paragraph 5, of the CRTD Convention (Geneva, 1989).
****) The text is aligned to the text of Article 5, paragraph 7, of the CRTD Convention (Geneva, 1989).
*****) The text is aligned to the text of Article 5, paragraph 9, of the CRTD Convention (Geneva, 1989).
Article 8:624 Damage caused during loading or unloading*)
- 1. If the shipowner proves that the hazardous
substance has been loaded into or unloaded from the ship during the period
meant in Article 8:621 under the sole responsibility of a person other
than the shipowner or his subordinates, representatives (agents) or mandatries,
such as the consignor or the recipient (consignee), and he discloses the
identity of such person, then he shall not be liable for damage caused
as a result of an incident which occurred during the loading or unloading
of the hazardous substance, and such other person shall be liable for
that damage in accordance with the present Section (Section 8.6.4).
- 2. Where, however, the hazardous substance
has been loaded or unloaded during the period meant in Article 8:621,
paragraph 2, under the joint responsibility of the shipowner and the other
person whose identity has been disclosed by the shipowner, the shipowner
and that other person shall be joint and several liable in accordance
with the present Section (Section 8.6.4) for damage caused as a result
of an incident which occurred during the period of loading or unloading
of the hazardous substance.
- 3. If the hazardous substance has been loaded
or unloaded by a person acting on the instruction or on behalf of the
carrier or another person, such as the consignor or recipient (consignee),
then this person shall not be liable, but instead the carrier or such
other person shall be liable.
- 4. Where another person than the shipowner
is liable on the basis of paragraph 1 or 2, this other person cannot invoke
Article 8:623, paragraph 4 and paragraph 5, under (b).
- 5. If another person than the shipowner is
liable on the basis of paragraph 1 or 2, then Title 8.7 of the Civil Code
and Articles 642a up to and including 642z of the Code of Civil Procedure
shall apply accordingly to that other person, on the understanding that
in case of a joint and several liability:
a. the limitation of liability pursuant Title
8.7 shall apply to the total of the debt-claims that due to one and the
same incident have arisen against both;
b. a fund created by one of them shall pursuant
to Article 642c of the Code of Civil Procedure be deemed to be created
by both, and this in regard of the debt-claims for which the fund was
created.
- 6. Within the mutual relationship between
the shipowner and the other person mentioned in paragraph 2 of the present
Article, the shipowner is not obliged to bear any compensation paid other
than in the event of a fault of himself or of his subordinates, representatives
(agents) or mandataries.
- 7. The present Article does not apply if
during the period referred to in Article 8:621, paragraph 2, the process
of loading or unloading has been carried out under the sole or joint responsibility
of a person referred to in Article 8:623, paragraph 5, under (c), (d)
or (e).
*) The text is aligned to the text of Article 6 of the CRTD Convention (Geneva, 1989).
Article 8:625 Liability of the sender (consigner) or another person*)
Where the shipowner is not liable because of what is provided in Article
8:623, paragraph 2, under (c), the consignor or other person shall liable
in accordance with the present Section (Section 8.6.4), and Title 8.7
of the Civil Code and Articles 642a to 642z of the Code of Civil Procedure
shall apply to him. The consignor or other person may not invoke Article
8:623, paragraph 4.
*) The text is aligned to the text of Article 7 of the CRTD Convention (Geneva, 1989).
Article 8:626 Damages caused by inseparable events*)
If damage, caused by the hazardous substance, reasonably cannot be separated
from damage caused otherwise, the whole damage shall be deemed to be damage
within the meaning of the present Section (Section 8.6.4).
*) The text is aligned to the text of Article 1, paragraph 1, last sentence, of the CRTD Convention (Geneva, 1989).
Article 8:627 Damage caused by hazardous substances on board of more than
one ship*)
- 1. When one single incident causes damage
as a result of hazardous substances on board of more than one ship, or
on board of a ship and an inland navigation vessel or a hovercraft, the
shipowners and the owner or operator of the involved ships, the inland
navigation vessel and the hovercraft, shall be joint and several liable
for all damage of which cannot reasonably be assumed that it was caused
by hazardous substances on board one or more specific ships, inland navigation
vessel or hovercraft, all without prejudice to what is provided in Article
8:623, paragraph 2 and 3, and Article 8:624, Section 8.11.4 and Section
8.14.1.
- 2. The provisions in paragraph 1 shall not
affect the limitation of the liability which the shipowner, the owner
or operator can invoke pursuant to Title 8.7 or Title 8.12, or Articles
8:1218 up to and including 8:1220, for each of them up to the amount applicable
to him.
*) The text is aligned to the text of Article 8 of the CRTD Convention (Geneva, 1989).
Articles 8:628 - 8:638 [reserved for future legislation]
Section 8.6.5 Liability for Bunker Oil Pollution Damage*)
*) This Section, applicable to national bunker oil pollution, is largely a translation in Dutch of the International Convention on Civil Liability for Bunker Oil Pollution Damage, concluded at London on 23 March 2001.
Subsection 8.6.5.1 General provisions and scope
Article 8:639 Definitions*)
In the present Section (Section 8.6.5), the term:
a. ‘Convention’ means: the International
Convention on Civil Liability for Bunker Oil Pollution Damage, concluded
at London on 23 March 2001 (Treaty Series 2005, 329).
b. ‘Civil Liability Convention’
means: the International Convention on Civil Liability for Oil Pollution
Damage, concluded at London, on 27 November 1992 (Treaty Series 1994,
229);
c. ‘Minister’ means: the Minister
of Transport;
d. ‘Ship’, ‘person’,
‘bunker oil’, ‘preventive measures’, ‘Incident’,
‘Pollution Damage’, ‘State of the ship’s registry’,
‘gross tonnage’, ‘organization’ and ‘Secretary
General’ mean: what is meant by it in Article 1 of the Convention;
e. ‘Shipowner’ means: the owner
of the ship, including the registered owner, bareboat charterer, manager
or person in whose hands the operation of the ship has been laid;
f. ‘Registered owner means’: the
person or persons registered as the owner of the ship or, in the absence
of registration, the person or persons owning the ship. However, in the
case of a ship owned by a State and operated by a company which in that
State is registered as the ship’s operator, “registered owner”
shall mean such company.
*) See Article 1 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:640 Scope and exclusions
- 1. The present Section (Section 8.6.5) shall
apply to:
a. bunker oil pollution damage caused in the
Netherlands, including the territorial sea;
b. bunker oil pollution damage caused in the
Exclusive Economic Zone (EEZ) of the Netherlands;
c. preventive measures, wherever taken, to
prevent or minimize such damage. *)
- 2. The present Section (Section 8.6.5) shall
not apply:
a. to pollution damage as defined in the Civil
Liability Convention, whether or not compensation is payable under that
Convention in regard of that damage, and;
b. on warships, support ships of the navy (naval
auxiliary) or other ships owned or operated by a State and used, for the
period in question, only for governmental non-commercial purposes, except
insofar as the relevant State has decided otherwise and has implemented
this decision satisfactory on the basis of Article 4, paragraph 3, of
the Convention.**)
*) See Article 2 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
**) See Article 4 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Subsection 8.6.5.2 Liability of the shipowner
Article 8:641 Liability of the shipowner*)
-1. Except as provided in paragraph 3 and 4,
the shipowner at the time of an incident shall be liable for pollution
damage caused by any bunker oil on board or originating from the ship,
on the understanding that, if an incident consists of a series of occurrences
having the same origin, the liability shall attach to the person who is
the shipowner at the time of the first of such occurrences.
- 2. Where more than one person is liable on
the basis of paragraph 1, they shall be jointly and severally liable.
- 3. The shipowner shall not be liable if he
proves that:
(a) the damage resulted from an act of war,
hostilities, civil war, insurrection or a natural phenomenon of an exceptional,
inevitable and irresistible character, or;
(b) the damage was wholly caused by an act
or omission done by a third party with the intent to cause damage, or;
(c) the damage was wholly caused by the negligence
or other wrongful act of any government or other authority responsible
for the maintenance of lights or other navigational aids in the exercise
of that function.
- 4. If the shipowner proves that the pollution
damage resulted wholly or partially either from an act or omission done
with intent to cause damage by the person who suffered the damage or from
the negligence of that person, the shipowner may be exonerated wholly
or partially from liability to such person.
- 5. No claim for compensation for pollution
damage can be instituted against the shipowner otherwise than in accordance
with the present Section (Section 8.6.5).
- 6. The shipowner has a right of recourse
against third persons who are liable for the damage towards the harmed
persons on account of a legal ground other than a contract.
*) See Article 3 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:642 Incidents involving two or more ships*)
When an incident occurs involving two or more ships and pollution damage
results therefrom, the shipowners of all the ships concerned, unless exonerated
from liability pursuant to Article 8:6413, shall be jointly and severally
liable for all such damage which is not reasonably separable. Article
8:545, paragraph 3, shall apply to the internal (mutual) relationship
of the owners of the ships concerned.
*) See Article 5 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:643 6 Limitation of liability*)
The shipowner and the person or persons providing insurance or other financial
security, may limit their liability for each incident on the basis of
Title 8.7.
*) See Article 6 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:644 Debt-claims to be brought directly against the insurer or
party providing financial security
- 1. Debt-claims for compensation of pollution
damage may be brought directly against the insurer or other person providing
financial security covering the liability for pollution damage of the
registered owner. In such case the defendant may limit his liability to
an amount equal to the amount of the insurance or other financial security
meant in Article 8:645, even if the shipowner is not entitled pursuant
to Article 8:643 to a limitation of his liability.
- 2. The defendant may invoke al means of defence
which the shipowner would have been entitled to invoke, but he may not
appeal to the fact that an official moratorium on payment has been granted
to the shipowner, nor that the debt repayment scheme for natural persons
has been declared applicable to the shipowner, nor that the shipowner
finds himself in a state of bankruptcy or liquidation (winding up). Furthermore,
the defendant may defend himself by invoking the fact that the pollution
damage resulted from the wilful misconduct of the shipowner himself, but
other means of defence which he could have bring forward against a claim
instituted by the shipowner against him, are not at his disposal.
- 3. The defendant at all times has the right
to call the shipowner as a party to the proceedings.
*) See Article 7, paragraph 10, of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Subsection 8.6.5.3 Compulsory insurance
Article 8:645 Compulsory insurance or other financial security*)
- 1. The registered owner of a ship having
a gross tonnage greater than 1000 and recorded (registered) in the Netherlands,
shall be required to maintain insurance or other financial security, such
as a bank guarantee, to an amount to which his liability is limited calculated
in accordance with Title 8.7, in order to cover his liability in conformity
with what is provided in the present Section (Section 8.6.5) and Article
7 of the Convention.
- 2. The registered owner of a ship having
a gross tonnage greater than 1000 and recorded (registered) outside the
Netherlands or sailing under another flag than that of the Netherlands,
shall be required, if that ship enters or leaves a port or a loading or
unloading quay in the Netherlands or if it navigates Dutch inland waterways,
to maintain insurance or other financial security, such as a bank guarantee,
to an amount to which his liability is limited calculated in accordance
with Title 8.7, in order to cover his liability in conformity with what
is provided in the present Section (Section 8.6.5) and Article 7 of the
Convention.
*) See Article 7, paragraph 1 and 11, of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:646 Requirements for a liability insurance
The contract for the provision of financial security in respect of a ship
that is recorded (registered) in the Netherlands or in a State which is
not a Contracting Party to the Convention, or in respect of a ship that
sails under the flag of such a State, must meet the following requirements:
a. the contract must be entered into with an
insurer, bank or other financial institution or with another person whose
financial capacity (credit standing) for the provision of financial coverage
for liability arising from the present Section (Section 8.6.5) and from
the Convention has been found sufficient by the Minister after consultation
of the Minister of Finance.
b. the funds under the contract must, if the
provider of financial security is established outside the Netherlands,
really can become available within the Netherlands;
c. from the contract must show that the harmed
party is able to bring his claim, in accordance with Article 8:644 and
Article 7, paragraph 10 of the Convention, directly against the provider
of financial security. If the contract contains a stipulation (clause)
indicating that the shipowner himself shall contribute for a part in the
compensation for damage, then from the contract must show that the provider
of financial security nevertheless, in regard of the damage, remains bound
towards the harmed person to pay also that part of the compensation for
damage.
d. from the contract must show that the provider
of financial security is not able, within the validity period for which
the certificate of Article 8:647 was issued, to postpone or to end the
financial security or to make such changes thereto that he no longer complies
with that Article, any sooner than after three months have expired since
the date of receipt of a notice as meant in Article 8:649, paragraph 1,
unless the certificate is handed in (surrendered) or a new one has been
issued before the expiry of the relevant period.*)
*) See Article 7, paragraph 6, of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:647 Certificates*)
- 1. The Minister shall issue to a registered
owner of a ship recorded (registered) in the Netherlands or of a ship
not recorded (registered) in a State which is a Contracting Party to the
Convention, upon the request of such owner, a certificate as defined in
Article 7, paragraph 2, of the Convention, or the Minister shall authenticate
a document, issued by the provider of financial security in the required
form on behalf of the registered owner, as a certificate if it has appeared
to him that the registered owner complies with his obligations as meant
in Article 8:645.
- 2. When making the request, the registered
owner must submit the following information and documents:
a. the name and address of the registered owner
and the place where his head office is located;
b. an extract from the ships registration as
referred to in Article 101, paragraph 1, of the Land Registry Act, indicating
at least the information referred to in Article 85, paragraph 2, under
a, c, d, e, f, g and j of that Act, as well as the information about not
deleted preliminary notes, on the understanding that when such an extract
has been issued more than two days before the date of submission, a declaration
of the keeper of the Land Registry and of the public registers must appear
on it, written within the aforementioned period of two days and indicating
that the data on the extract have not changed since that extract was issued
c. a copy of the contract for the provision
of financial security;
d. the name of the person providing financial
security and the place where his head office is located and, if necessary,
the office where such security is provided;
e. the moment as of which the financial security
takes effect and the moment on which it ends.
*) See also Article 7, paragraph 2, of the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 2001).
Article 8:648 Rejection of a request
The Minister shall deny a request as referred to in Article 8:647 if the
submitted information or documents are insufficient or incorrect, or if
the contract for the provision of financial security does not meet the
requirements set by or pursuant to the present Section (Section 8.6.5).
Article 8:649 Information duty
- 1. The registered owner to whom a certificate
has been issued, must immediately notify the Minister in writing when
the contract for the provision of financial security has become invalid
or has been postponed or has ended within the validity period for which
the certificate was issued, as well as of any change that has occurred
during that period in regard of the data submitted together with the request
meant in Article 8:647.
- 2. The Minister ensures that a written notification
shall be given to the keeper of the Land Registry and of the public registers
of the notice meant in paragraph 1 with respect to the contract for the
provision of financial security in regard of a ship recorded (registered)
in the Netherlands; this notification shall be given to the office of
the Land Registry and of the public registers where the public register,
in which the request for a recording (registration) of the ship has been
registered, is held.
- 3. The existence and the date of receipt
of the notification referred to in paragraph 2 shall be listed immediately
in the ships registration referred to in Article 85 of the Land Registry
Act. Notifications as meant in paragraph 2 shall be accessible for the
public.
- 4. The notice referred to in paragraph 1
can be given, besides by the registered owner, by the person providing
financial security.
Article 8:650 Withdrawal certificate
- 1. The Minister may, after consultation with
the Minister of Finance, withdraw a certificate if, due to a change in
the data submitted together with the request meant in Article 8:647 or
because these data appear to be insufficient or incorrect, the certificate
no longer meets the requirements set by or pursuant to the present Section
(Section 8.6.5) or if there are good grounds to assume that the financial
capacity (credit standing) of the provider of financial security was or
has become insufficient or, if that provider is established outside the
Netherlands, there appears to be an impediment for making the funds really
available within the Netherlands.
- 2. The Minister’s decision shall set
a deadline for the surrender (handing in) of the certificate.
- 3. The effect of the Minister’s decision
shall be suspended until the period allowed for appeal has expired or,
if an appeal is lodged, until a decision has been given on the appeal.
Article 8:651 Handing in of the certificate
- 1. The registered owner must as soon as possible
surrender the certificate to the Minister after a notice has been given
in accordance with Article 8:649, paragraph 1, that the contract for the
provision of financial security has become invalid or has been postponed
or has ended, or after the expiration of the validity period for which
the certificate was issued.
- 2. In case of an irrevocable withdrawal of
the certificate, the registered owner must surrender it to the Minister
within the period meant in Article 8:650, paragraph 2.
Article 8:652 Copy of the certificate or of a withdrawal decision
- 1. The Minister shall send a copy of any
certificate issued by him in regard of a ship recorded (registered) in
the Netherlands as well as a copy of each irrevocable Minister’s
decision for the withdrawal of a certificate issued with regard to a ship
recorded (registered) in the Netherlands, to the keeper of the Land Registry
and of the public registers, where it shall be kept.
- 2. Article 8:649, paragraph 3, shall apply
accordingly.
Article 8:653 Costs for the issuance or authentication of a certificate
Rules are set by or pursuant to Order in Council in regard of fees due
for the issuance or authentication of a certificate referred to in Article
8:647.
Subsection 8.6.5.4 Appeal [repealed
on 01-01-2013]
Article 8:654 Appeal [repealed on 01-01-2013]
Articles 8:655 – 8:749 [reserved for future legislation]
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