2,051
edits
Changes
From DMC
no edit summary
Nile Dutch Africa Line B.V, Rotterdam, the Netherlands (“NDAL”) v. (1) Delta Lloyd Schadeverzekering N.V., Rotterdam, the Netherlands (“Delta Lloyd”), (2) Premium Tobacco Investments N.V., Amsterdam, the Netherlands (“Tobacco”), (3) M. Meerapfel Söhne A.G., Basel, Switzerland (“Meerapfel”) and (4) CETAC, Douala, Cameroon (“Cetac”) - [[The “NDS Provider”]]Dutch Supreme Court: J.B. Fleers, E.J. Numann, A. Hammerstein, F.B. Bakers, W.D.H. Asser; Advocate General; NJ 2008, 505; SES 2008, 46; 1 February 2008
CARRIAGE OF GOODS BY SEA UNDER BILL OF LADING: HAGUE VISBY RULES: LIABILITY FOR DEFECTIVE CONTAINERS SUPPLIED BY CARRIER: PACKAGING OR PART OF THE VESSEL? INTERPRETATION OF TREATIES UNDER DUTCH LAW
Summary
The Dutch Supreme Court (“DSC”) held that the purpose of the duty of care that is placed on the carrier in Art. III r.1 (a), (b) and (c) of the Hague-Visby Rules (HVR) is to ensure that the vessel protects the cargo from perils of the sea, so that the vessel is fit to carry the cargo. This means that the carrier must ensure that containers that it provides to the shipper for carriage on board of the vessel should also be fit to carry cargo in. It follows from this duty of care that, in the same manner that applies to the hold of a vessel, no water should be able to enter into those containers. By providing rusty containers with holes in them which allowed seawater to enter the containers, the carrier had breached its duty of care. By Art.III r.8 and Art.IV r.1 HVR the carrier could not benefit from the exclusion clause contained in its bill of lading and the exceptions contained in Art.IV r.2 HVR. Furthermore, the DSC held that Dutch national law may not be applied when interpreting a treaty that contains uniform international law.
Case Note contributed by Nigel Margetson, Advocaat in the Rotterdam law firm of Hampe Meyjes Advocaten and an International Contributor to this website.
Container stowage
a) The Carrier shall be under no liability in the event of loss of or damage to any of the goods, directly or indirectly caused by (…) unsuitability or defective condition of the containers.
Container clauses (FCL only: Line’s owned containers (…)
Judgment
a. Are containers packaging or a part of the vessel?
The DSC held that the court of appeal’s decision that NDAL could not escape liability by invoking the exclusion of liability clauses contained in its bill of lading or by relying on Art.IV r.2 (i) and (n) HVR was correct for the following reasons.
b. Should Dutch national law be applied when interpreting Art.III and IV HVR?
In discussing a different part of the Court of Appeal’s judgement the DSC held that Art. 8:371 Dutch Civil Code (DCC) declared the HVR directly applicable. Articles III and IV HVR govern the liability of a carrier of goods by sea under a bill of lading. The liability regime contained in Articles III and IV HVR are uniform rules in the area of the international carriage of goods. This means that there is no room for the application of other rules of national law, such as exceptions to liability derived from the requirements of fairness and reasonableness as provided in Article 6:248 of the Dutch Civil Code – see further in Comment below
Reasonableness and fairness are leading principles of Dutch law. The principles are so important that they have been written into the Dutch statute which contains rules of law for contracts (book 6 of the Dutch civil code) Art. 248 of book 6 DCC can be translated as follows:
1) A contract does not only have the legal consequences agreed between the parties, but also those that follow from the nature of the contract, the law, custom or the requirements of what is fair and reasonable.2) A rule that has been agreed between parties in a contract does not apply if, in the given circumstances, standards of reasonableness and fairness would make it unacceptable for that rule to apply.
Article 6:248 DCC means that a Court will not enforce agreements made between parties if, in the circumstances of the case, by the standards of reasonableness and fairness, that would be deemed to be unacceptable. It is used not only in interpreting contracts, but also when applying rules of law. It means that in certain circumstances, parties cannot rely on the words of a contract or on the words of a treaty or other document.
In this case (“NDS Provider”) the DSC has now clearly stated that the Dutch law and its principles of reasonableness and fairness may not be applied when interpreting international treaties. The DSC had given a decision on this point before, but some doubt still existed in some quarters. Now, there is no longer any room for doubt (for a further discussion of this point see the case note of K.F. Haak under the judgment as published in the Nederlandse Jurisprudentie as NJ 2008/505).
