Changes

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

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.

The shipper Cetac entered into a contract with NDAL for carriage by sea of 398 bales of raw tobacco from Douala in Cameroon to Amsterdam. Cetac loaded the bales into four containers that had been put at its disposal by NDAL for use during the carriage. The containers were carried by NDAL on board of the m.v. “NDS Provider” which vessel was owned by Staklex.

The question that the DSC had to decide was whether the Court of Appeal had correctly held that NDAL could not escape liability by relying on Art.IV r.2 (i) and (n) HVR and the exclusion of liability clause contained in the bill of lading. In answering this question the DSC also discussed how the HVR should be construed.

a. Are containers packaging or a part of the vessel?

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

Re a:) Are containers packaging or part of the vessel?

This decision is important because the DSC has held that containers are not packaging but should be treated in the same manner as a part of the vessel in which goods are carried. There was no clarity on this point before.