Changes

Dana could not be blamed for providing insufficient information. It had given a clear instruction in the “2006 Diving and ROV Program” by stating that one of the jobs of the Vessel would be to secure the messenger line in order to prevent it from getting entangled in the Vessel’s screws. GB Diving had given this program to the Vessel’s management. Dana could not be required to set out how the messenger line should be secured. The Court of Appeal agreed with Dana that the manner in which that job should be carried out could be left to the Master and his crew, who were more skilled than Dana in that area (co.10).

This is one of the few judgments regarding the construction of the Supplytime form under Dutch law. The judgment has many interesting points, the main ones of which are discussed in the summary above. The following conclusions can be drawn from this judgment:

It simply creates uncertainty if this comprehensive system can be broken open for reasons of “reasonableness and fairness”. For the same reason, I (the writer) am opposed to carve outs for gross negligence and wilful misconduct in knock for knock clauses. Courts should be very careful when breaking open contracts which govern huge liabilities and are supported by comprehensive insurance systems. Fortunately in this case, the Court of Appeal reversed the Court of First Instance’s judgment in which the knock for knock system was held not binding for reasons of ‘reasonableness and fairness’.

3) For some years in the Netherlands, if a contract contained an Entire Agreement clause (as the Supplytime 2005 does in Clause 38), the Entire Agreement clause was held to limit severely the operation of reasonableness and fairness (art. 6:248 DCC) and great importance was attached to the actual words of the contract. Unfortunately, in its judgment of 8 April 2013 (LJN BJ8101) (Lundiform /Mexx), the Supreme Court of the Netherlands has now curtailed the operation of Entire Agreement clauses.

4) Another interesting point of this judgment is that the Court of Appeal held that Charterers were not obliged to spell out to Owners the manner in which the Owners had to secure the messenger line as, in the Court of Appeal’s words “the manner in which that job should be carried out can be left to the Master and his crew, who are more skilled in that area than Dana is”. This decision is clearly in accordance with clause 7.d. Supplytime 2005, which says: “The entire operation, navigation, and management of the Vessel shall be in the exclusive control and command of the Owners, their Master, Officers and Crew. The Vessel will be operated and the services hereunder will be rendered as requested by the Charterers, subject always to the exclusive right of the Owners or the Master of the Vessel to determine whether operation of the Vessel may be safelyundertaken. In the performance of the Charter Party, the Owners are deemed to be an independent contractor, the Charterers being concerned only with the results of the services performed.”