Snapshot: carriage of goods by sea in Netherlands
Transfer of title
When does title in the ship pass from the shipbuilder to the shipowner? Can the parties agree to change when title will pass?
A shipbuilder constructing a vessel out of raw materials, components and equipment will acquire title to the vessel under construction, provided the shipbuilder owned the raw materials, components and equipment. Moreover, if the shipbuilder does not already own all the chattels it uses to build the vessel, it nevertheless becomes the owner of the vessel it constructs, unless the costs of the value added by the shipbuilder are so modest that they do not justify this result. If the commissioning party owns the raw materials, components and equipment with which the shipbuilder is constructing a vessel, then the commissioning party will become the owner of the vessel built. In practice, the parties to a shipbuilding contract will contemplate what time suits them best to let title and ownership pass. The parties are free to contract that title will pass from the builder to the buyer during construction. The earliest moment during construction that this passing of title can be recorded in the Dutch Ships Register is the laying of the keel of the vessel or reaching a similar milestone in construction. Title will pass immediately to the buyer; it will not pass gradually. By registering the vessel as a vessel under construction it will be possible, but not compulsory, to record a vessel’s mortgage. Upon its completion, the vessel can be deleted from the Dutch Ships Register to register it abroad provided the mortgagee, if any, consents to this.
What formalities need to be complied with for the refund guarantee to be valid?
If the contract price is payable by the buyer in pre-delivery instalments according to certain milestones, a refund guarantee from the builder will usually be in the form of an undertaking from its bank to refund the relevant instalment upon the buyer’s first written demand. The parties are at liberty to draft the wording of a refund guarantee, which may vary from an irrevocable first-written-demand type of guarantee to a guarantee whereby the beneficiary will have to submit an enforceable judgment or arbitration award before being allowed to claim under the guarantee. A refund guarantee issued by financial institutions and banks will usually have to be signed by two persons authorised to do so. Proof of authority to bind the guarantor for the maximum amount of the refund guarantee can be requested by the Society for Worldwide Interbank Financial Telecommunication. This request should be made to the issuing bank by the beneficiary’s bank. If refund guarantees are issued by, for example, parent companies, the beneficiary should ensure that the company’s articles (or memorandum) of association allow the issuance of guarantees and that the parent company is creditworthy. Issuance of a guarantee may be considered to be ultra vires if the articles (or memorandum) of association do not allow it or the transaction is not ratified by all shareholders. In such a case, the issuance of the refund guarantee will be voidable.
Are there any remedies available in local courts to compel delivery of the vessel when the yard refuses to do so?
Under article 35 of Council Regulation (EC) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the (recast) Brussels I Regulation), an application may be made to the Dutch court of competent jurisdiction (where the vessel under construction is located) for provisional measures to be taken, including a court order for the release of a vessel over which a yard exercises a lien (also referred to as a right of retention). This also applies if, under this regulation, the court of another member state or arbitrators have jurisdiction as to the substance of the matter. Shipbuilders are granted a statutory right of retention (articles 3:290 and 6:52 of the Dutch Civil Code). The right of retention is the power a creditor has to suspend the performance of an obligation to surrender goods to the debtor until payment of the outstanding debt is made. If the shipowner requests delivery of the vessel, and the yard relies on its right of retention, the local court will have to test whether under the circumstances of the case the shipyard is justified to invoke its right of retention. The test applied here will be the reasonableness and fairness of the yard’s standpoint taking into account all circumstances.
Where the vessel is defective and damage results, would a claim lie in contract or under product liability against the shipbuilder at the suit of the shipowner; a purchaser from the original shipowner; or a third party that has sustained damage?
Where the vessel is defective and damage results, a claim by the shipowner will be delimited by the warranty provisions of the shipbuilding contract. The warranty provisions to which only the parties to the contract will be bound, customarily exclude liability of the shipbuilder for all indirect and consequential losses. Although section 3, Title 3 of the sixth book of the Dutch Civil Code implements the provisions of the Council Directive (EC) No. 85/374/EEC of 25 July 1985 (OJEC No. L210) on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products, this section 3 is supplemental to the first section of Title 3, containing general provisions in respect of tort.
If after delivery the vessel has been transferred to a third party by the original shipowner, the former can only make a claim if the original shipowner has transferred any residual rights for warranty it may have had under the shipbuilding contract to this third party (the purchaser). Without such a transfer of rights, a purchaser can only claim in tort, provided the defect in the vessel is of such a serious nature that a court would consider it to be a tort to the general public at the time the product was put into circulation.
Product liability is limited to ‘damage’; damage caused by death or personal injury and damage to an item of property intended for private use or consumption, with a lower threshold of €500. The Dutch Act to implement the European Directive on Product Liability entered into force on 1 November 1990 and the relevant provisions can be found in articles 6:185 to 193 of the Dutch Civil Code. In cases of pure economic loss and of damage to commercial goods caused by a product, the rule of law developed by the Dutch Supreme Court is that it is unlawful to put into circulation a product that causes damage during its normal operation in accordance with its purpose. The differences between the liability regime of the Directive as also contained in Dutch law and the liability regime of the Dutch general tort law is that the latter regime requires that the unlawful act can be attributed to the manufacturer of the goods (fault).
Ship registration and mortgages
Eligibility for registration
What vessels are eligible for registration under the flag of your country? Is it possible to register vessels under construction under the flag of your country?
The law on the registration of vessels is mainly contained in the Dutch Civil Code, whereas the nationality of seagoing vessels is dealt with in accordance with the provisions of the Dutch Commercial Code. The regulatory provisions are found in the Act on the Public Registers and the Royal Decree on Registered Vessels 1992. Vessels eligible for registration under the Dutch flag are seagoing vessels and inland barges (inland waterway vessels).
A ‘vessel’ is defined as any object, with the exclusion of an aircraft, constructed to float in or on water, either actually floating or having been afloat. As a consequence, the definition includes all floating equipment, such as dry docks, pontoons, cranes, tunnel caissons, drilling rigs and elevators. However, if a tunnel caisson or a drilling rig becomes permanently anchored to the seabed it loses the status of ‘vessel’.
‘Seagoing vessels’ are those vessels registered as such and, if not registered, the vessels that by their construction are intended to float or sail exclusively or mainly in or on the sea (article 8:2(i) of the Dutch Civil Code). Seagoing vessels must comply with article 8:194 of the Dutch Civil Code in order to be included in the Dutch Ships Register.
‘Inland barges’ are vessels registered as such, or, if not registered, vessels that by their construction are neither exclusively nor mainly intended to float in or on the sea (article 8:3(i) of the Dutch Civil Code). Owners of inland barges are obliged to register their vessel within three months after the vessel in question complies with the provisions of article 8:784 of the Dutch Civil Code. There is no statutory registration for inland barges with a carrying capacity of less than 20 tons and for other inland barges if they are under 10 cubic metres dead weight.
The Netherlands is a party to the Convention on Registration of Inland Navigation Vessels with protocols (Geneva, 25 January 1965). An inland barge is eligible for registration under the following conditions:
- the barge is operated from the Netherlands, irrespective of the nationality of its owner;
- the barge is owned by a Dutch individual or the individual has a domicile in the Netherlands; or
- the barge is owned by a legal entity or a company that has its corporate seat or principal place of business in the Netherlands.
If joint owners own a barge, the majority of these owners have to comply with either condition (2) or (3).
Further to the definition of a vessel, a vessel under construction is constructed to float on water, but neither floats nor has been afloat. In order to enable registration of a mortgage on a vessel under construction or reservation of title of machinery and vessel ancillaries, the Dutch legislator decided that a vessel under construction should be considered a ‘vessel’ as well. Hence, registration of a vessel under construction in the Dutch Ships Register is possible. However, such registration does require the vessel to be constructed in the Netherlands. The Dutch Supreme Court has decided that it is not possible to register a barge hull built abroad that has already floated abroad in the Dutch Ships Register as a vessel under construction, in the event this hull still needs completion by a yard either abroad or in the Netherlands and ruled that a registration to that effect is null and void (Dutch Supreme Court, 28 February 2014).
Who may apply to register a ship in your jurisdiction?
The owner of a seagoing vessel, or its representative, may apply for registration in the Dutch Ships Register. However, such request will only be granted if the vessel qualifies as a Dutch vessel. This is the case if:
- the vessel is owned by one or more nationals of a member state of the European Union, or of a member state of the European Economic Area (EEA), Switzerland or persons who are equated with EU citizens, or the vessel is owned by one or more partnerships or legal entities established in accordance with the law of a member state of the European Union, one of the countries, islands or areas referred to in article 299, paragraphs 2 to 5 and 6c of the Treaty establishing the European Community, a member state of the EEA or Switzerland, or the vessel is owned by other individuals, companies or legal entities, who can invoke the freedom of establishment rules by virtue of an agreement between the EU and a third state; and
- the owner or ship manager has a head or branch office established in the Netherlands under Dutch law.
If it concerns an inland barge, registration may be applied for by the owner if one of the following requirements are met:
- the barge is operated from the Netherlands, irrespective of the nationality of its owner;
- the barge is owned by a Dutch individual or the individual has domicile in the Netherlands; or
- the barge is owned by a legal entity or a company that has its corporate seat or principal place of business in the Netherlands.
If it concerns a seagoing vessel or inland barge under construction, the owner must show that the vessel or barge is indeed under construction in the Netherlands. This can be demonstrated by submitting a letter from the shipyard confirming the construction on behalf of the applicant.
In all cases, the owner of the vessel applying for registration must choose domicile in the Netherlands, for example, at the office of a Dutch lawyer.
What are the documentary requirements for registration?
Before applying for registration of the vessel in the Dutch Ships Register, the following documents are required in order to obtain the necessary certificate of nationality and the provisional certificate of registry from the Dutch Human Environment and Transport Inspectorate (an agency of the Ministry of Infrastructure and Water Management):
- power of attorney, if the owner does not apply for the registration itself;
- if the owner is a company or legal entity, a copy of the extract from the trade register and a copy of the articles of association;
- if the owner is a private person, a copy of his or her passport;
- if a ship manager is appointed and this is a company or legal entity, a copy of the extract from the trade register and a copy of the articles of association;
- if the vessel is already registered abroad, a copy of the foreign registration;
- copy of the certificate of tonnage;
- copy of the bill of sale or other proof of ownership;
- copy of the class certificate; and
- copy of a certificate that includes details on the motor of the vessel (ie, a machinery certificate or an air pollution prevention certificate).
After obtaining the certificate of nationality and the provisional certificate of registry, the Dutch Ships Register requires the following documents:
- original bill of sale or other original proof of ownership;
- certificate of nationality;
- provisional certificate of registry (to be replaced by a definite certificate of registry in due course); and
- if the vessel was previously registered abroad, the original certificate of deletion (to be submitted within 30 days after the provisional registration in the Dutch Ships Register).
Is dual registration and flagging out possible and what is the procedure?
Flagging in of seagoing vessels in the Bareboat Register kept by the Dutch Ministry of Infrastructure and Water Management is possible, provided the seagoing vessel in question remains registered in another country. The Act on the Nationality of Seagoing Vessels in Bareboat Charter (Act of 8 October 1992, as amended) sets out the requirements. According to article 3 of this Act, a seagoing vessel registered abroad can be bareboat registered in the Netherlands if:
- the vessel has been let under a bareboat charter to one or more:
- individuals who have the nationality of a member state of the EU, EEA or Switzerland or who are equated with EU citizens;
- companies that are incorporated in accordance with the law of an EU or EEA member state or Switzerland; or
- individuals, companies or legal entities, other than those mentioned under the top sub-bullet who can invoke the freedom of establishment rules by virtue of an agreement between the European Union and a third state;
- the bareboat charterer has its main office or branch office in the Netherlands;
- one or more individuals who have their management office in the Netherlands are responsible on behalf of the bareboat charterer for the vessel, the master, the other crew members, as well as for all related matters, and who, either alone or together, have the power of decision and the power to represent;
- one or more individuals as mentioned under (3) or, in the case of absence, if a deputy is permanently available and has the powers to act without delay if so required;
- the owner and the bareboat charterer, if another person or entity than the owner, approves in writing of the acquiring of the status of a Dutch vessel;
- the bareboat charterer accepts the responsibility for the vessel and those on board, which arises from the status of a Dutch flag vessel; and
- pursuant to the laws of the state in which the vessel has been registered, there are no impediments to acquiring the status of a Dutch vessel in connection with entering into the bareboat charter agreement with a bareboat charterer located in the Netherlands.
By registration in the Bareboat Register, the bareboat charterer qualifies for the tonnage tax system. Upon registration, a bareboat chartered vessel loses Dutch nationality and flagging out is therefore only possible if the vessel is removed from the Dutch Ships Register. In that event there is no residual right to fly the Dutch flag, the president of the district court of the place of registration of the vessel will have to authorise the deletion of such vessel from the Dutch Ships Register. After having received such authorisation from the court, the Dutch Ships Register will complete the deletion.
It is not possible to register a seagoing vessel that is already registered in public registers, either as a seagoing vessel or as an inland waterway vessel, or in any similar foreign register.
Who maintains the register of mortgages and what information does it contain?
The register of mortgage entries concerning the judicial status of a registered property are made in public registers kept for that purpose at the Dutch Ships Register. The law provides which public registers will be kept, the manner and place of making an entry, the kind and contents of the documents to be filed with the registrar, the manner of registration and the consultation procedure. Registers are maintained in Rotterdam, Amsterdam and Groningen, but the Dutch Ships Register in Rotterdam also operates as a central register in which all other registries are duplicated ex officio. The following particulars in respect of a mortgage will be recorded:
- the name and address of the mortgagee;
- the original principal sum or the maximum sum secured; and
- the date of the mortgage deed and the date and time the mortgage deed was recorded against the vessel.
The rank of entries pertaining to the same registered property is determined by the order in which they have been registered unless a different order results from the law. Where two entries are made at the same time, and where they would lead to mutually incompatible rights of different persons to the same property, the precedence shall be determined accordingly: in the event that the deeds presented for registration have been executed on different days, in order of the day the deeds were presented; and in the event that both deeds, being notarial deeds and including notarial declarations, have been executed on the same day, in order of the time of execution of those deeds or declarations (article 3:21 of the Dutch Civil Code).
Limitation of liability
What limitation regime applies? What claims can be limited? Which parties can limit their liability?
The Convention on Limitation of Liability for Maritime Claims 1976 (LLMC) allows shipowners and certain other parties to limit their liability for particular claims by constituting a limitation fund. The size of the fund depends on the type of claim and the tonnage of the ship. Articles 2(1)(a) to (f) of the LLMC list the types of claim that may be subject to limitation, while article 3 determines which claims are excluded.
Under article 18 of the LLMC, states can reserve the right to exclude the application of articles 2(1)(d) and (e) to wreck and cargo removal claims. This means that if a state has made a reservation on the basis of article 18, it is impossible to limit liability for these claims unless limitation of liability is provided for through other mechanisms.
The Netherlands has made a reservation under article 18 of the LLMC and established in Dutch national law that limitation of liability for wreck and cargo removal claims can be effected by constituting a separate wreck fund, to be distinguished from the property and personal claim funds. The amount of a wreck fund equals that of the property fund so that, in the event of an incident that involves wreck and/or cargo removal, these claims do not have to compete with other claims in the property fund.
The LLMC shall apply in cases described in article 15 of the LLMC. The Netherlands denunciated the LLMC 1976 but is a Contracting State to the LLMC Protocol 1996. Amendments to increase the limits of liability in the LLMC Protocol 1996 to amend the LLMC Convention entered into force on 8 June 2015. The new limits are also applicable in the Netherlands.
For inland navigation, the Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI) shall apply. The Netherlands has incorporated the provisions of CLNI in the Dutch Civil Code in articles 8:1060 to 1066. On 1 July 2019, the CLNI 2012 superseded the CLNI 1988. Liability may be limited for claims set out before, even if brought by way of recourse or for indemnity under a contract or otherwise. Persons entitled to limit liability by constituting one or more limitation funds are the shipowner (including the charterer, the hirer, or any other user of the vessel including the operator and the salvor). Under the CLNI, persons entitled to limit liability are also the vessel owner, including the hirer, charterer, manager and operator, and salvors.
What is the procedure for establishing limitation?
Provided legal proceedings are instituted in the Netherlands, the person entitled to limit liability can file a petition with the Dutch district court of competent jurisdiction requesting limitation of liability. Legal proceedings therefore must already have been instituted, although the concept of ‘legal proceedings’ is to be interpreted broadly. In its judgment dated 20 December 1996 (Sherbro), the Dutch Supreme Court declared that legal proceedings do not only include the normal proceedings on the merits initiated by a writ of summons, but also requests for conservatory measures, applications to appoint an expert and applications to conduct pretrial witness hearings.
Over the years, the Dutch courts have demonstrated a willingness to adopt a clear and singular approach to the global limitation of liability issues arising from maritime casualties. The Court of Appeal in The Hague rendered a judgment on 20 December 2016, adding to the body of rulings in this respect. The dispute had its origins in a 2010 collision in Turkish waters between two containerships, the Odessa Star and the CMA CGM Verlaine. Neither the parties to the dispute nor the ships involved in the collision had any direct connection to the Netherlands, but the owners of both vessels had signed a jurisdiction agreement to have the liability dispute heard in the Rotterdam court. At the time of the collision, the Netherlands, in direct contrast to many other countries, applied the lower limitation of liability levels applicable under LLMC 1976, as opposed to the increased levels adopted under LLMC Protocol 1996. The Rotterdam District Court held that the agreement to have the dispute over liability heard in the Netherlands was a lawful procedure allowing the Odessa Star’s owners to establish a limitation fund in Rotterdam. The Court of Appeal in The Hague upheld this ruling following a strict application of article 11’s wording.
In its judgment of 29 May 2020 (ECLI:NL:HR:2020:956, Stolt Commitment), the Dutch Supreme Court answered the question if the courts of a state where a lawsuit is filed are automatically competent with respect to the fund formation and ruled that article 11 LLMC is not a jurisdictional provision. Fund formation in the Netherlands is henceforth subject to a double, cumulative condition: legal proceedings with respect to limitable claims must have been instituted in the Netherlands, and the Dutch court must find a ground of jurisdiction in the (procedural) law applicable to it on the basis of which it can take cognisance of a fund formation request. However, the grounds on which the Supreme Court reached its judgment are not beyond criticism. The outcome in the Stolt Commitment case – ultimately the Dutch courts were found to have jurisdiction – will not always and obviously be the outcome in future limitation cases.
To invoke limitation, a fund must be established as per articles 642(a) to 642(z) of the Dutch Code of Civil Procedure. The petition requesting limitation of liability shall be heard in a session of the court and it will result in a court order ordering the petitioners to constitute one or more limitation funds by either making a cash deposit or submitting a letter of undertaking in favour of all creditors from a guarantor reasonably acceptable, such as a reputable bank or protection and indemnity (P&I) club. By the same court order, a delegated judge and a fund liquidator will be appointed to deal with the limitation proceedings. There is no separate right to plead limitation without setting up a fund.
Property damage that arises in connection with wreck removal or salvage of cargo and other chattel will not be compensated from the property fund but from the wreck removal fund. On 2 February 2018, the Dutch Supreme Court ruled on how to determine which claims under the LLMC 1976 (as amended by its protocol of 1996) are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds (ECLI:NL:HR:2018:140). The dispute had its origins in an October 2008 collision between Dutch inland waterways vessel the Riad and Dutch seagoing vessel the Wisdom on the Oude Maas, which resulted in the Riad’s sinking. The owner of Wisdom had limited liability by establishing both a property and a wreck fund. The Dutch state initially ordered the wreck’s removal. The cargo interests of the Riad provided security of €600,000 for the costs that might be incurred in the wreck and cargo removal operation. The Dutch state eventually took matters into its own hands and paid for the wreck and cargo removal operation, following which it obtained payment under the guarantee of €560,790.72, which the cargo interests of the Riad sought to recover from the wreck fund. The owner of Wisdom argued that the claim of the cargo interests should be paid out of the property fund. It maintained that the claim of the cargo interests was a recourse claim and therefore not a claim for the raising, removal, destruction or rendering harmless of a ship that had been wrecked or whose cargo had been lost. The Dutch Supreme Court ruled that the subject of each claim, and not its legal basis, is the decisive factor in determining which fund is made available for its payment. Thus limitation of liability for wreck and cargo removal claims can be achieved only by constituting a separate wreck fund, including by way of a recourse claim. The Dutch Supreme Court considered that the wording and context of article 2 of the LLMC should be interpreted in accordance with articles 31 to 33 of the Vienna Convention on the Law of Treaties, even though the wreck fund as such is a rule of Dutch law. Article 2 of the LLMC refers to the specific subjects of claims and includes the text ‘whatever the basis of liability may be’ and ‘even if brought by way of recourse or for indemnity under a contract or otherwise’.
Break of limitation
In what circumstances can the limit be broken? Has limitation been broken in your jurisdiction?
No one shall be entitled to limit his or her liability if it is proven that the loss resulted from the personal act or omission of said person, committed with the intent to cause such loss, or recklessly and with the knowledge that such loss would probably result. It is clear from the words ‘intent to cause such loss’ that in order to deprive the person liable of the right to limit, it must be proved that the person liable has the subjective intent (mens rea) to cause the loss. Therefore, it is not sufficient if the parties suffering the loss prove that a reasonably competent person could not have failed to conclude that his or her act or omission would cause the loss. The test to be applied to understand the consequences of the words ‘or recklessly and with the knowledge that such loss would probably result’ was the subject of two cases of the Dutch Supreme Court on 5 January 2001. In these cases, the Dutch Supreme Court ruled that conduct is to be regarded as reckless and with the knowledge that the loss would probably result therefrom if the person conducting him or herself in this way knew the risks connected to that conduct and was conscious of the fact that the probability that the risk would materialise was considerably greater than that it would not, but all this did not restrain said person from behaving the way he or she actually did. This very strict test has meanwhile been applied by lower courts in cases in respect of limitation of liability of shipowners (Court of Appeal of The Hague, 22 February 2002, the Pioner Onegi and Amsterdam District Court 12 May 2004, the Arcturis). In both cases, the Dutch courts have decided that the limitation could be broken since the conduct was reckless and with the knowledge that such loss would probably result. The test developed by the Supreme Court in 2001 has been confirmed by the Supreme Court in 2002 (CGM case and CTV/K-Line case). The fund will remain at the disposal of the creditors that have filed a claim. The shipowner will, of course, be liable to reimburse these creditors for any claims that transcend the amount of the fund.
Passenger and luggage claims
What limitation regime applies in your jurisdiction in respect of passenger and luggage claims?
Regulation (EC) 392/2009 implements the provisions of the Athens Convention and entered into force on 31 December 2012. The provisions of the regulation are nearly identical to the convention, but some provisions do offer more protection to passengers. Article 6 of the regulation provides for an advance payment to passengers, without constituting liability, within 15 days after the shipping incident causing death or personal injury. Additionally, article 7 stipulates that carriers shall ensure that passengers are provided with appropriate and comprehensible information regarding their rights under this regulation. Not surprisingly, some articles related to jurisdiction, recognition and enforcement are excluded, as other European instruments already exist in this field.
The 2002 Protocol amending the Athens Convention was ratified by the Dutch legislator on 26 September 2012 and entered into force on 23 April 2014. The Athens Convention 2002 is subsequently implemented in articles 8:500 to 8:529k of the Dutch Civil Code. The Netherlands reserved the right to limit the liability in respect of death and personal injury caused by any of the risks (eg, war, terrorism and expropriation) mentioned in section 2.2 of the International Maritime Organization (IMO) Guidelines for implementation to 250,000 SDR in respect of each passenger or 340 million units of account overall per ship on each distinct occasion, whichever amount is the lower. For other risks and categories of damage, the regular limits of the Athens Convention 2002 apply. The above-mentioned means that, even when the Athens Convention is not applicable (eg, for national carriage of passengers), similar or identical provisions to those of the Athens Convention will apply, provided that Dutch law or the regulation is applicable to the claim.
Thus the Athens Convention 2002 limits the liability with regard to individual claims, whereas the LLMC offers possibilities to limit the liability for a particular incident.
Port state control
Which body is the port state control agency? Under what authority does it operate?
Vessels flying a foreign flag and calling at a Dutch port are regulated on the basis of the Paris Memorandum of Understanding on Port State Control (the Paris MoU). One of the agencies of the Ministry of Infrastructure and Water Management, the Human Environment and Transport Inspectorate in Rotterdam, performs inspections on vessels focusing on safety, construction, environmental items and quality and number of crew. Moreover, the living and working conditions on board are inspected. These inspections take place unannounced. They aim to inspect a quarter of all foreign vessels visiting a Dutch port. Compliance with the International Ship and Port Facility Security Code is also verified by this body. As of 1 January 2011, vessels flying the flag of states participating in the Paris MoU are required to issue the following notifications:
- notification 72 hours before arrival at the port or anchorage if vessels are eligible for an expanded inspection;
- notification 24 hours before arrival at port; and
- notification of hazardous materials on board.
The vessels eligible for an expanded inspection are:
- vessels that have a high-risk profile and have not been inspected in the last five months;
- oil, gas and chemical tankers, bulk carriers or passenger vessels more than 12 years old with a standard-risk profile that have not been inspected in the past 10 months; and
- oil, gas and chemical tankers, bulk carriers or passenger vessels more than 12 years old with a low-risk profile that have not been inspected in the past 24 months.
The master or the vessel’s agent must report that the vessel is eligible for a mandatory expanded inspection. The information to be provided is listed in Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control. The vessel’s risk profile is calculated according to article 10 of Directive 2009/16/EC and an online calculator is available on the website of the Paris MoU.
What sanctions may the port state control inspector impose?
The sanctions that may be imposed for substandard vessels are:
- to order rectification of deficiencies without detention;
- to detain the vessel: the violation should be rectified before the vessel is allowed to leave; or
- to ban the vessel: after multiple detentions, the vessel will not be allowed to enter into ports of states that have adopted the Paris MoU.
Notorious examples of vessels, berthed in Dutch ports, that were posing an unreasonable risk to the environment (asbestos) and were, therefore, detained before being scrapped, are the Otapan and the Sandrien.
What is the appeal process against detention orders or fines?
In the case of detention on account of the Port State Control Act or the Pollution Prevention by Ships Act, an appeal can be made by any party interested to the Minister of Infrastructure and the Environment. The appeal shall be made within six weeks after the date of notification of the detention and shall be sent to the inspector-general of the Human Environment and Transport Inspectorate in Rotterdam. Appeals have to be duly signed and at least comprise the following information:
- name, address and interest of appellant;
- date of appeal;
- date of detention and details of the case against which the appeal is directed; and
- the reason for lodging the appeal against the decision.
It is possible to draft the appeal in English and if the appeal is sent by fax a signature may be omitted. An appeal shall not cause the detention to be suspended. The detention shall not be lifted until, according to the professional judgement of an officer of the Human Environment and Transport Inspectorate in Rotterdam, all deficiencies notified in the detention order have been rectified and until full payment has been made or an authorised payment guarantee has been given for the reimbursement of the costs (if applicable).
Approved classification societies
Which are the approved classification societies?
The Dutch Ministry of Infrastructure and Water Management has authorised a number of classification societies (recognised organisations) to act on behalf of the Human Environment and Transport Inspectorate, which has a delegated public task as laid down by law of performing statutory surveys, verifications and certification as required in the international conventions (such as the International Convention for the Safety of Life at Sea 1974 (SOLAS), the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL) and EU Directive No. 96/98/EC). Eight authorised recognised organisations carry out surveys of vessels applying to transfer to the Dutch Ships Register and issue the certificates required. The eight authorised organisations are:
- American Bureau of Shipping (represented by ABS Europe Ltd, Rotterdam);
- Bureau Veritas (represented by Bureau Veritas, Rotterdam);
- DNV AS (represented by DNV, Barendrecht);
- Indian Register of Shipping (represented by Indian Register of Shipping Netherlands B.V., Leiden);
- Lloyd’s Register Group (represented by Lloyd’s Register Group, Rotterdam);
- Nippon, Kaiji Kyokai (Class NK) (represented by Nippon Kaiji Kyokai BV, Barendrecht);
- RINA Services S.p.A. (Rotterdam office); and
- RHC B.V. (Register Holland Classebureau Zeevaart is a Classification Society with a National Recognition, only for surveys concerning non-Convention and/or non-European legislation (Directives/Regulations).
Register Holland, a foundation with its office in Meppel, the Netherlands, is a national classification society recognised by the Human Environment and Transport Inspectorate. Register Holland is allowed to classify all kinds of inland vessels, such as tugs, barges and passenger vessels for non-convention and non-European legislation as well as inland pleasure (sailing) yachts. Its knowledge of both traditional and modern rigging is quite unique and surveys for Dutch certificates are conducted by Register Holland in accordance with their own classification rules.
In respect of inland cargo vessels, the respective surveyors are:
- EOC Schepenverzekering (Meppel); and
- Stichting Nederlands Bureau Keuringen Binnenvaart (Rotterdam).
In respect of pleasure crafts, the surveyors are:
- EOC Schepenverzekering (Meppel);
- Dutch Certification Institute (Joure); and
- Stichting Register Holland (Meppel).
In what circumstances can a classification society be held liable, if at all?
Supervisors can only be held liable if they have caused damage by an imputable, unlawful act. In this regard, courts will take as a starting point that a supervisor is exercising a public task and thus enjoys a certain amount of policy freedom. The policy freedom is limited by the fact that supervisors have to comply with general principles of good governance and with obligations arising from European Court of Human Rights and EU law. Despite this certain amount of policy freedom, supervisors run the risk of being held liable both by supervisees and by third parties who have incurred damage as a result of inadequate enforcement supervision. If a supervisor fails in the performance of a general supervisory task, for example, the failure to recognise dangerous situations, it will largely be a matter of the policy freedom of the supervisor. However, if a supervisor fails to recognise and address a particularly dangerous situation, it will be easier for a court to establish a causal link between the failure of the supervisor and the damage that has occurred.
The responsibility and liability for statutory certification as a public task was addressed by the Dutch Supreme Court in the Duwbak Linda case (Dutch Supreme Court 7 May 2004, NJ 2006/281, RvdW 2004/67). Although none of the well-known classification societies were involved, the considerations and grounds for this judgment are illustrative of the reluctance of the Dutch legislature to hold supervising authorities’ inspection or certification institutes liable for the (non-)performance of a delegated public task. In this leading case, the Dutch Supreme Court expressed its opinion that, under Dutch law, an owner of a vessel is not entitled to rely on a statutory certificate as a guarantee to the owner that the vessel has been soundly constructed and, moreover, that it is not the purpose of the certificate to guarantee safety, but merely to provide a vessel’s certificate (in order to comply with port entry requirements, obtain insurance coverage or liability covers, or comply with carriage of goods by sea). Under charters, sales, shipbuilding contracts or towing contracts, it is a warranty or even a condition that the subject vessel is a classed and class maintained vessel or meets a standard classification standard.
Moreover, the Dutch Supreme Court decided that, although the Dutch government has chosen to take care of safety within its territorial waters and has introduced a certification system for that purpose supervised by classification societies, neither the government’s intention for introducing a liability for damages of these supervisors towards third parties can be derived from that choice, nor is such a liability caused by operation of law. Although in the Duwbak Linda case, the supervisor had acted in an imputable unlawful manner, it did not automatically mean that this supervisor was liable for the damage. In the first place, the legal norm infringed by the supervisor must be intended to protect against the damage suffered by the injured party. This is the relativity requirement, and in Duwbak Linda, the Dutch Supreme Court suggested that this requirement can serve as a barrier to extensive liability on the part of the supervisor. The Court of Appeal Den Bosch followed the Dutch Supreme Court in a more recent decision (20 March 2012) in respect of the sudden sinking of the brand new inland barge No Limit.
The above does not mean that classification societies cannot be held liable on the basis of a private contract, instead of a delegated public task (to which in most situations general conditions of the classification societies, excluding liability clauses, shall apply) or in tort by third parties when not performing a public task (the Blue Danube case, Rotterdam District Court, 11 July 2002, S&S 2003/18). It is worth mentioning that, in the Netherlands, other private entities with a delegated public task, have been held liable for failing supervision when using their own developed rules and standards exceeding a statutory minimum for supervision. These stronger requirements will then have to be fulfilled. Therefore, assuming for the sake of argument that classification societies make use of their own developed rules and standards, the liability of classification societies may be at stake when they do not meet their own standards. Third parties can rely on legitimate expectations that requirements and standards have been met. This may be suitable for analogous application, but for now, there is still no case law on the liability of classification societies to be reported. However, the most important and unanswered question still remains whether the Dutch courts will follow the recent French decision in the Erika case (judgment of January 2008 as upheld in appeal on 30 March 2010) in such a way that classification societies do not have blanket immunity from a public law perspective, nor can they be qualified as ‘any person’ as stipulated in article III, subsection 4 under (b), Civil Liability Convention, from a private law perspective. The Erika verdict is, from a public law perspective, diametrically opposed to the decision of the Dutch Supreme Court in Duwbak Linda.
The conclusion of the above seems to be that a supervisor who acts reasonably in performing a public delegated task does not run any real risk of becoming liable. The injured party will have to overcome a considerable number of hurdles to be able to establish an imputable unlawful act on the part of the supervisor with regard to supervision and enforcement. Even in cases where such an imputable unlawful act has been established, a lack of relativity and causality can ultimately result in denial of a claim for damages.
Collision, salvage, wreck removal and pollution
Wreck removal orders
Can the state or local authority order wreck removal?
The Netherlands are a party to the Nairobi International Convention on the Removal of Wrecks 2007. This Convention has been implemented in Dutch law in the Maritime Accidents Response Act. This Act gives the Dutch state and operator of the waterways the authority to order the registered owner of a seagoing vessel to remove the vessel or have the vessel removed if it is wrecked or stranded in the Dutch Exclusive Economic Zone and is causing danger to shipping (articles 10 and 13 Maritime Accidents Response Act).
For wrecked inland waterway vessels, the Dutch state has a similar authority based on article 10 of the Dutch Wrecks Act.
Which international conventions or protocols are in force in relation to collision, wreck removal, salvage and pollution?
In the Netherlands, the International Convention on Salvage 1989 is in force in relation to salvage. The convention has been incorporated into national statute, by means of provisions in Book 8 of the Dutch Civil Code.
The Nairobi International Convention on the Removal of Wrecks entered into force in the Netherlands on 19 April 2016 and has been transposed into Dutch law by the Maritime Accident Response Act. In accordance with paragraph 2 of article 3 of the Nairobi Convention, the Netherlands declares, for the European part of the Netherlands, that it will apply this convention to wrecks located within its territory, including the territorial sea. The Maritime Accident Response Act applies to wrecked seagoing vessels (and lost cargo) located in the Dutch exclusive economic zone and inland waters. On the basis of this domestic act, the state may dispose of wrecks and may seek recourse against the owners of the vessel liable for sinking the other vessel or cargo.
The Netherlands is a party to two conventions on vessel collisions. The first, the 1910 Brussels Convention (the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea, 23 September 1910), applies to collisions between seagoing vessels or between seagoing vessels and inland navigation vessels. The second, the 1960 Geneva Convention, applies to collisions between inland navigation vessels only. The 1910 and 1960 conventions have force of law in the Netherlands and may therefore apply in their own right. Nevertheless, the conventions have also been incorporated into national statutory law, by means of provisions in Book 8 of the Dutch Civil Code. However, the legislature has taken the liberty of extending the application of the conventions to all events where ‘damage is caused by a ship’.
In the area of pollution many international, multilateral and bilateral conventions apply, such as, among other things, the Agreement for Cooperation in dealing with pollution on the North Sea by oil and other harmful substances (Bonn, 13 September 1983); the Convention for the Protection of the Marine Environment of the North-East Atlantic, which was adopted by the Netherlands on 22 September 1992 and entered into force in the Netherlands on 25 March 1998; the International Convention for the Prevention of Pollution from Ships 1973, as modified by the protocol of 1978; and the International Convention on Oil Pollution Preparedness, Response and Cooperation (30 November 1990) ratified on 13 May 1995, but not yet in force. Also included are:
- The International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 November 1969) (Trb 1970, 196), as ratified by the Netherlands in the Act of 11 June 1975 and again adopted by a Protocol of 27 November 1992 (Trb 1994, 228-229) (which came into force in the Netherlands on 18 September 1996).
- The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels, 18 December 1971) (Trb 1973, 101) (CLC), as ratified by the Netherlands and again adopted by the Protocol of 29 November 1992 (Trb 1994, 228-229). This convention, also known as the International Fund Convention, came into force on 18 September 1996.
- The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (London, 3 May 1996). The Netherlands has signed the convention, but it is subject to ratification and has not entered into force yet. If this convention comes into force, Dutch law will have to be amended accordingly.
- The Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (Geneva 10 October 1989), which closely resembles the CLC.
- EU Directive No. 2005/35/EC on vessel source pollution and on the introduction of penalties for related infringements is implemented in the Dutch Act on the Prevention of Pollution by Vessels.
- MARPOL, supplement 1, IMO, 2 November 1973), as ratified by the Netherlands, adopted on 2 November 1973, and which came into force in the Netherlands on 2 October 1983.
Is there a mandatory local form of salvage agreement or is Lloyd’s standard form of salvage agreement acceptable? Who may carry out salvage operations?
There is no mandatory Dutch form of salvage agreement and Dutch law does not require that a salvage agreement is concluded in writing. In practice, Lloyd’s Standard Form of Salvage Agreement (LOF) is frequently agreed upon in the Netherlands. If parties do not agree upon salvage under the applicability of LOF, salvors often carry out salvage operations under the Salvage Conditions 1958. Operators of floating sheerlegs use the general terms and conditions of the Sheerlegs Conditions 1976.
Which international convention regarding the arrest of ships is in force in your jurisdiction?
The International Convention relating to the Arrest of Seagoing Ships (Brussels, 10 May 1952) (the Brussels Convention) is in force in the Netherlands.
In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?
The Brussels Convention only applies to vessels flying the flag of a state party to this convention. If an arrest is made in the Netherlands in respect of a vessel flying the flag of a non-member state, the convention does not apply and, consequently, Dutch law applies, which means that an arrest can be made for any claim against the shipowner, or non-maritime claims within the meaning of the Brussels Convention. This exception also applies if the vessel flying the Dutch flag is arrested in the Netherlands by a Dutch arresting party. Article 1 of the Brussels Convention provides for a definition of the concept of ‘maritime claim’ and in article 1 of the Brussels Convention, 17 different types of maritime claims are mentioned. Claims for which an arrest is not possible under the Brussels Convention include outstanding insurance premiums (including calls of P&I clubs), claims in respect of a sale and purchase agreement regarding a vessel, oil pollution claims, broker’s commission and probably also claims of stevedores. In the River Jimini case, the Rotterdam District Court decided (29 June 1984) that the claim for payment of container hire due by the shipowner falls within the scope of ‘goods or materials wherever supplied to a vessel for her operation or maintenance’. The Rotterdam District Court also decided (as upheld by the Court of Appeal in The Hague) in the IBN Badis case that advance payments to the Algerian company CNAN to cover disbursements also fall within the scope of article 1 of the Brussels Convention. The Brussels Convention does not apply to an attachment of bunkers (the Gabion case, Rotterdam District Court, 24 February 2010).
Article 3 of the Brussels Convention provides for the possibility to arrest a sister vessel and such vessels shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons. It has been held that this does not allow the possibility to pierce the corporate veil since article 3(ii) of the Brussels Convention refers to shares in the vessel, not shares in the company that owns the vessel.
In another judgment, the Dutch Supreme Court (9 December 2011) ruled that article 3 of the Brussels Convention does not prevent the arrest of a vessel of a debtor, not being the owner of the vessel to which the maritime claim is related. This would mean, for instance, that an arrest of vessels owned by a time-charterer based on a claim of charter hire is possible, provided the Brussels Convention is applicable and other legal requirements for an arrest can be met.
Under the applicable Brussels Convention an arrest may be made on a vessel in respect of which the maritime claim arose, when the owner is liable for the claim or when, under the applicable law, recovery against the vessel following that arrest is possible. Under Dutch (international) private law, a claim is recoverable against a vessel when that is the case:
- under the law which applies to the claim; and
- under the law of the flag of the vessel.
As for (1), under Dutch substantive law, recovery of a bunker claim for which the owner is not liable is not possible. When the claim is against the bareboat charterer, it should be instituted against the bareboat charterer and against the registered owner, claiming that the latter allows the claims to be enforced against the vessel. When a vessel is time-chartered and the time-charterer orders the bunkers, it is the time-charterer who is liable and not the owner. The Celine (Rotterdam District Court, 24 February 2012) dealt with a ship arrest for a claim for bunkers supplied under Turkish law to a Turkish-flag vessel. Under Turkish law, a claim for bunkers against a time-charterer was recoverable against the vessel when the invoices were sent to the owner (‘master and owners’) and where there was an involvement of the owner (such as the signing of the bunker receipt by the master or chief engineer), and when the claim concerned ‘necessities’. Under these circumstances, vessel arrest was allowed in the Netherlands.
Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?
The Netherlands is not a party to any of the international conventions on maritime liens. Furthermore, Dutch law does not recognise the concept of maritime liens and therefore provides no mechanism by which such a lien can be enforced. Foreign liens are recognised in the Netherlands if they are created in accordance with the Dutch conflict rules. Pursuant to article 10:129 of the Dutch Civil Code, it should be determined to what extent the rights of lien – which may exist under the foreign law applicable to the contract – fit into the Dutch legal system. A maritime lien can, for example, be transformed into a right of retention (ie, a right to withhold goods). Such right cannot be registered.
What is the test for wrongful arrest?
The test to be met by the alleged debtor to prove an arrest was wrongful is the test of proving an unlawful act under article 6:162 of the Dutch Civil Code (tort). If the claim for which the arrest was made ultimately fails in the court or arbitral proceedings on the merits, the arrest was wrongful and the arresting party can be held liable for any and all damages and losses. In its decision of 5 December 2003, NJ 2004,150 the Dutch Supreme Court has formulated the following rule about liability for wrongful arrest: a creditor is strictly liable for the consequences of an arrest if the claim for which the arrest was made is found to be completely unfounded (ie, the court deciding on the merits of the case has found no basis for the claim at all). However, if the claim for which the arrest was made is partially awarded, this does not mean that the arrest was wrongful.
In cases where it is established that the arrest made was with hindsight for a too high amount, or where the arrest was unnecessarily prolonged, courts will apply an abuse of right test to verify if the creditor acted vexatiously and therefore wrongfully.
Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?
In general, a claim can only be recovered from the assets of the debtor, unless that claim has droit de suite. Dutch law does not provide for droit de suite in respect of a bunker claim. Such claim is therefore not considered a bunker claim against the vessel that received the bunkers. When the bunker claim is against the bareboat charterer, it should be instituted against the bareboat charterer and against the registered owner, claiming that the latter allows the claims to be enforced against the vessel. When a vessel is time-chartered and the time-charterer orders the bunkers, it is the time-charterer who is liable and not the owner. The Celine (Rotterdam District Court, 24 February 2012) dealt with a ship arrest for a claim for bunkers supplied under Turkish law to a Turkish-flag vessel. Under Turkish law, a claim for bunkers against a time-charterer was recoverable against the vessel when the invoices were sent to the owner (‘master and owners’) and where there was an involvement of the owner (such as the signing of the bunker receipt by the master or chief engineer), and when the claim concerned ‘necessities’. Under these circumstances, vessel arrest was allowed in the Netherlands.
The bunker supplier may as an alternative wish to proceed to attach the bunkers on board the vessel, provided these bunkers are still (partially) owned by the charterer who was the original debtor for the price of the bunkers supplied. The effect of an attachment of bunkers is similar to a ship arrest: the vessel is not allowed to sail since the attached bunkers would have to be used, which would violate the attachment and is considered to be a crime. De-bunkering is not always allowed since bunkers may be considered as waste under the European Waste Regulation (1013/2006).
Will the arresting party have to provide security and in what form and amount?
The president of the district court granting permission for arrest has discretionary power to order the arresting party to provide counter-security to secure any claims for wrongful arrest. In practice, this discretionary power is hardly ever exercised. The amount of security is also discretionary and to be determined by the president in the arrest order. The form of the security shall be agreed upon between the seizer and the debtor, failing which, the president shall decide. The Rotterdam Guarantee Form is for a bank guarantee regularly used and accepted in the Netherlands (if both the arresting party and the debtor are of Dutch nationality, the NVB form is used for a bank guarantee to be issued).
How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently? In what form must the security be provided? Can the amount of security exceed the value of the ship?
If the arrested party makes an offer to the arresting party to put up sufficient security, the arresting party is obliged to lift the arrest, attachments, or both, provided that the security offered is sufficient and under acceptable terms. In general, the amount of security that needs to be provided by the arrested party will be equal to the amount for which the court has granted permission to make the arrest or attachments in the arrest order (the principal amount claimed by the arresting party).
In the arrest order courts use the following schedule for including interest and costs in the amount of security:
- for principal amounts up to €300,000: 30 per cent;
- if the principal amount is between €300,000 and €1 million: 30 per cent of the first €300,000 plus 20 per cent of the balance of the principal amount up to €1 million;
- for claims between €1 million to €5 million: 30 per cent of the first €300,000 plus 20 per cent of the balance of the principal amount until €1 million plus 15 per cent of the balance of the principal amount up to €5 million; and
- for principal amounts exceeding €5 million: 30 per cent of the first €300,000 plus 20 per cent of the balance of the principal amount until €1 million plus 15 per cent of the balance of the principal amount until €5 million plus 10 per cent of the balance of the principal amount over €5 million.
Depending on the amount for which the court has granted permission to make the arrest or attachments in the arrest order, the amount of security to be provided could exceed the value of the ship. The form of the security shall be agreed upon between the arresting party and the debtor, failing which, the president of the court shall decide.
The Rotterdam Guarantee Form is a wording for a bank guarantee regularly used and accepted in the Netherlands (where both the arresting party and the debtor are of Dutch nationality the NVB form is used).
What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?
Dutch law requires no formalities for the appointment of a lawyer to make the arrest application, other than that the application must be filed by a Dutch lawyer admitted to the Dutch Bar Association. A power of attorney is not required. None of the documents accompanying the arrest application needs to be notarised, legalised and authenticated.
Who is responsible for the maintenance of the vessel while under arrest?
The shipowner remains responsible for the maintenance of the arrested vessel. However, if an arrest is made in enforcement of a vessel’s mortgage, the mortgagees, although not under the obligation to do so, will normally ensure the vessel is safe and properly maintained during the time of the arrest. Any amounts spent in that regard will usually be recoverable under the mortgage, ranking above other claims.
Proceedings on the merits
Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere?
The arresting creditor does not have to pursue the claim on its merits in the Dutch Court. An arrest to obtain security for a claim will be allowed, provided the creditor initiates proceedings on the merits before the court of competent jurisdiction or the arbitration panel within the number of weeks or months set by the president of the district court granting permission for the arrest. Authoritative writers have also argued that even initiation of a third-party ruling (binding advice) meets the requirement to initiate the claim on the merits.
Injunctions and other forms of attachment
Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?
A creditor is allowed to seek recourse against all assets of its debtor. Consequently, other forms of attachment, for instance, a third-party attachment of bank accounts, claims of the debtor on third parties but also attachment of chattels (eg, bunkers or real estate owned by the debtor) are possible. Next to that, security for a claim can be asked for in summary injunction proceedings provided that the president of the district court applied to is competent and that there is an urgent interest. From a time and costs perspective, however, attachment or arrest of assets may be a more attractive option, provided that there are assets.
Delivery up and preservation orders
Are orders for delivery up or preservation of evidence or property available?
In general, the Dutch Code of Civil Procedure provides for the possibility of a pre-judgment attachment for the purpose of delivery or surrender of assets and evidence. The Dutch Supreme Court decided in September 2013 that under specific conditions it is possible to seize evidence in all civil cases.
Article 843a of the Dutch Code of Civil Procedure regulates the right of access to information. A party with a legitimate interest may demand in court inspection or copies of documents from another party with whom the applicant has a legal relationship. The applicant should indicate which documents the request concern and prove his or her legitimate interest. Fishing expeditions are not allowed.
Bunker arrest and attachment
Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?
It is possible to attach bunkers within the Dutch territory provided that the arresting party has a claim against the owner of the bunkers. In most cases, this will be the time-charterer. The effect of an attachment of bunkers is similar to a ship arrest: the vessel is not allowed to sail since the attached bunkers would have to be used, which violates the attachment and is considered to be a crime. De-bunkering is not always allowed since bunkers may be considered as waste under the European Waste Regulation (EC) No. 1013/2006 and a permit may be required. However, in more recent cases the European Court of Justice (ECJ) ruled that contaminated fuel does not have to be classified as waste (Shell/Netherlands, joint cases C-241/12 and C-242/12). The ECJ recalled the fact that, in accordance with settled case law, the concept of ‘waste’ must not be understood as excluding substances and objects that have commercial value and that are capable of economic re-utilisation (Palin Granit Oy/Vehmassalon, C-9/00). Having regard to the requirement to interpret the concept of ‘waste’ widely, the reasoning should be confined to situations in which the reuse of the goods or substance in question is not a mere possibility but a certainty (eg, when the holder of the consignment intends to place the consignment back on the market).
Judicial sale of vessels
Who can apply for judicial sale of an arrested vessel?
A creditor who has an enforceable legal title (enforcement order) against the owner of the vessel as debtor is entitled to apply for a judicial sale of an arrested vessel. Such legal titles are:
- a monetary judgment from a court in the Netherlands;
- a notarial deed from a notary public holding offices in the Netherlands (including the Dutch Antilles);
- a monetary judgment by a foreign court, if enforceable in the Netherlands;
- a notarial deed by a foreign notary, if enforceable in the Netherlands;
- an arbitral award from a Dutch domestic arbitral tribunal;
- a foreign arbitral award, if enforceable in the Netherlands (eg, the New York Convention 1958); and
- an EU European Enforcement Order (pursuant to EU Regulation (EC) No. 805/2004 of 21 April 2004).
One of the aforementioned legal titles enables the creditor to apply for a judicial sale of a vessel under arrest (even though this creditor is not the arresting party).
What is the procedure for initiating and conducting judicial sale of a vessel? How long on average does it take for the judicial sale to be concluded following an application for sale? What are the court costs associated with the judicial sale? How are these costs calculated?
To initiate and effect a judicial sale of a vessel, the debtor should be served an order to comply with a judicial order for payment within 24 hours. If the debtor fails to do so, a public civil notary (or alternatively a Dutch court in the case of a vessel flying a foreign flag) should be instructed to conduct the judicial sale. A judicial sale by auction can only take place 14 days after proper announcement and publication in a local daily newspaper is made of the same. If the creditor decides to organise a judicial sale before a Dutch court regarding a vessel flying a foreign flag, the court will determine in which newspaper of the state of the vessel’s flag the judicial sale should be announced and also which period has to be taken into account before the judicial sale actually takes place. The creditor enforcing its title has to give notice of the sale to the owners, to any creditors registered in the Dutch Ships Register and to creditors that have arrested the vessel. The auction will be conducted in the Dutch language. Prospective buyers are invited by the public civil notary or the court to verbally tender higher bids. The amount of the higher bid can be determined by the party tendering the bid. If no higher bids are made, the identity of the highest bidder and his or her bid will be recorded. After a short break, the second part will be commenced with the intention of offering the vessel for sale at diminishing prices. The intervals between prices are announced. The first person to shout ‘It is mine!’ will be awarded the vessel.
If a foreign legal title is already available and enforceable in the Netherlands, the estimated time frame for a judicial sale is six to eight weeks. The court registration fee amounts to approximately €676. The executing parties’ costs will be assessed by the court on the basis of a draft invoice. The costs are calculated on a time-spent basis and in addition, the disbursements for costs of the bailiff, publications, will be added.
What is the order of priority of claims against the proceeds of sale?
The order of priority of claims on vessels according to Dutch law is the following, from highest priority to lowest:
- costs of execution and wreck removal, costs of preservation made after the arrest of the vessel, claims in respect of labour agreements, claims in respect of salvage and contribution of the vessel in general average;
- claims secured by mortgage or pledge;
- claims relating to the operation of the vessel and claims against the carrier under a bill of lading;
- collision claims;
- claims in respect of which the shipowner may limit his or her liability (overall limitation) (these claims are equal in rank); and
- all other claims (no preference).
What are the legal effects or consequences of judicial sale of a vessel?
The statutory effects of a judicial sale can be summarised as follows. First, all arrests of the vessel, whether conservatory or in enforcement of a title will cease to exist. The purchase price paid by the buyer in the public auction replaces the vessel. Second, the restricted rights that cannot be invoked against the purchaser will cease to exist, although article 578 of the Dutch Code of Civil Procedure, paragraph 1, intends to provide the buyer with a ‘clean’ vessel, that is, without any (restricted) rights or limitation thereon. Some rights amount to an action in rem and have droit de suite: they can also be invoked against the vessel after the ownership has transferred in title to a third party. Consequently, a judicial sale of a vessel does not release the vessel from these specific claims. Moreover, a vessel might be encumbered with the right of retention, in which case a creditor that has possession of the vessel postpones delivery of the vessel until his or her claim is settled. A right of retention can be enforced, even if the vessel is to be judicially sold. The party entitled to exercise the right of retention against a vessel does not have a preferential claim that can be recovered from the sale proceeds or the vessel but should recover his or her claim from the purchaser. As a consequence, the potential buyer shall have to redeem the right of retention before he or she can take possession of the vessel. The judicial sale will extinguish the previous ownership.
Will judicial sale of a vessel in a foreign jurisdiction be recognised?
The purchaser of a vessel through a judicial sale in our jurisdiction acquires a clean title over the vessel, which should be recognised throughout the world. However, recognition of a judicial sale is based on international convention or reciprocity. The EU Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters (the (recast) Brussels I Regulation), is applicable in the Netherlands and all other member states of the EU. However, a foreign registration within the EU is not automatically cancelled or deleted on the basis of a court order issued by the court of another member state and may sometimes only be obtained by commencing separate acknowledgement and enforcement proceedings. It may be difficult to have a court order from foreign jurisdictions outside the EU and member states of other conventions recognised and to cause (deletion of) registration.
Is your country a signatory to the International Convention on Maritime Liens and Mortgages 1993?
The Netherlands is not a signatory to the International Convention on Maritime Liens and Mortgages 1993.
Carriage of goods by sea and bills of lading
Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?
The Hague-Visby Rules are in direct force in the Netherlands. Pursuant to article 8:371, paragraph 3 of the Dutch Civil Code, articles 1 to 9 inclusive of the modified Convention of 25 August 1924 for the Unification of Certain Rules relating to Bills of Lading (Trb 1953, 109) apply to each bill of lading pertaining to the carriage of goods between ports in two different states, if the bill of lading has been issued in a contracting state, or the carriage takes place from a port in a contracting state, or the contract embodied in the bill of lading or if the bill of lading evidencing the contract provides that the contract is governed by the provisions of the modified convention or of any legislation that declares those treaty provisions to be in force, irrespective of the nationality of the vessel, the carrier, the consignor, the consignee or any other person involved. The Hague-Visby Rules apply to the period from the time the goods are loaded to the time they discharged from the vessel. However, the exact moment may differ depending on the nature of the goods. In Dutch case law, it is generally decided that the rules apply from the time the goods are hooked to be loaded on board to the time they are actually discharged from the vessel (and released from the crane).
The Netherlands has made active contributions to the development of the Rotterdam Rules and Rotterdam was appointed by the United Nations Commission on International Trade Law to host the signing ceremony of the new convention. On 23 September 2009, 16 countries officially expressed their support for the new convention during the official signing ceremony. To date, the convention has been signed by 25 countries and ratified by four countries: Spain on 19 January 2011; Togo on 17 July 2012; the Republic of the Congo on 28 January 2014; and Cameroon on 11 October 2017. The Netherlands has signed the Rotterdam Rules.
Are there conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multimodal bill of lading?
If the (combined) carrier and the consignor have agreed upon a contract of combined carriage, the Dutch Civil Code applies the ‘chameleon system’ or the ‘network system’, pursuant to which each part of the carriage is governed by the juridical rules applicable to that part. The uniform system as laid down in the United Nations Convention on International Multimodal Transport of Goods (Geneva, 1980) has been explicitly rejected by the Dutch government. In respect of international carriage by road, the Convention on Carriage by Road (Geneva, 1956) is mandatorily applicable. The Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 1999) is mandatorily applicable to international carriage by air. Regarding international carriage by rail, the Convention concerning International Carriage by Rail 1980, Berne, and its 1999 Protocol, are applicable.
Title to sue
Who has title to sue on a bill of lading?
Pursuant to article 8:441 of the Dutch Civil Code excluding any other party, only the rightful and regular holder of a bill of lading has the right to demand delivery of the goods from the carrier under the bill of lading according to the obligations resting upon the carrier or to claim damages for loss of or damage to the goods unless he or she has not become a holder lawfully.
To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?
Generally, the terms of a charter party, including a jurisdiction or arbitration clause, are allowed to be incorporated into a bill of lading. Such terms must be referred to in a sufficiently clear manner in the document itself before they can be validly invoked towards a third-party bill of lading holder. If a contract of carriage has been entered into and furthermore if a bill of lading has been issued, the judicial relationship between the original consignor and the carrier is governed by the stipulations of a contract of carriage, which prevail over those of the bill of lading.
Demise and identity of carrier clauses
Is the ‘demise’ clause or identity of carrier clause recognised and binding?
Under Dutch law, the carrier under a bill of lading is generally considered to be the person who has signed the bill of lading or on whose behalf it was signed, as well as the person whose form has been used. If a bill of lading is signed by the master, or on behalf of the master, the shipowner or the charterer last in the chain of contracts shall be bound as the carrier, in addition to the persons mentioned in the first sentence. Much will depend on the actual wording of such a clause, but it can be said that the basis to assess the validity of a demise or identity of carrier clause is laid down in article 8:461, paragraph 3 of the Dutch Civil Code. This article provides that only the last bareboat charterer or the shipowner is deemed to be the carrier under the bill of lading, if the bill explicitly designates the bareboat charterer as such or, as the case may be, the shipowner, and in addition, in the case of designation of the bareboat charterer, if his or her identity is clearly apparent from the bill of lading. If a demise or identity of carrier clause is not sufficiently clear, this cannot be held against the holder of the bill of lading.
Shipowner liability and defences
Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?
If the shipowner is sued extra-contractually by his or her co-contracting party with respect to damage that has occurred in the operation of the vessel, the shipowner shall be liable towards the latter no further than he or she would be pursuant to the contract they have entered into (article 8:362 of the Dutch Civil Code). Article 8:363 of the Dutch Civil Code states that if the shipowner is sued extra-contractually in respect of damage that has occurred in the operation of the vessel by another party to such a contract, the shipowner shall be liable towards the latter no further than he or she would be, as if he or she were a co-contracting party to the contract of operation that has been entered into by the party that sues him and that, in the chain of contracts of operation, lies between him and the latter. According to article 8:364, paragraph 1 of the Dutch Civil Code, the shipowner, sued extra-contractually in respect of the death or bodily injury to a person, or in respect of damage to goods by a person who is not a party to a contract of operation, shall be liable no further than he or she would be pursuant to the contract.
Deviation from route
What is the effect of deviation from a vessel’s route on contractual defences?
Notwithstanding any specific provisions contained in the contract of carriage or bill of lading on the basis of which the carrier may be entitled indeed to limit or exclude its responsibility in this regard, pursuant to article 8:379 of the Dutch Civil Code, the carrier is under the obligation to conduct the transportation without delay. In the case of a non-permissible delay, the compensation owed must be calculated by taking into account what value the goods would have had at the time and place they should have been delivered, and the time and place they have actually been delivered.
What liens can be exercised?
Dutch law does not recognise a maritime lien as such. First one must determine any contractual rights of retention or liens and the extent thereof or limits or conditions thereto under the law applicable to such contract (of carriage), and then determine, under article 10:163 of the Dutch Civil Code, to what extent such rights fit into the Dutch legal system, and in particular the concept of the right of retention and the right to withhold the goods. Article 8:30, paragraph 1 of the Dutch Civil Code stipulates that the carrier is entitled to refuse to hand over the goods that he or she holds in connection with the contract of carriage, to any person who has a right to the delivery of those goods pursuant to a title other than the contract of carriage, unless the goods have been attached and the continuation of this attachment results in an obligation to hand over the goods to the attachor. In addition, article 8:30, paragraph 2 of the Dutch Civil Code stipulates that the carrier shall be entitled to exercise the right of retention on the goods that he or she holds in connection with the contract of carriage for what the recipient owes or will owe the carrier for the carriage of those goods. The carrier may also exercise this right for the charge due for those goods by way of cost on delivery.
Delivery without bill of lading
What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?
Normally a carrier will be liable no further than he or she would be under the provisions of the contract of carriage or bill of lading. However, a carrier generally loses the right to rely on the contractual exclusions and limitations of liability in case of his or her gross negligence or wilful misconduct. Not necessarily, but should cargo be (intentionally) delivered without requesting the submittal of the original bill of lading involved, such act pertaining to gross negligence or wilful misconduct could give rise to unlimited liability of the carrier.
It is well understood a bill of lading, amongst other functions, acts as a key to the warehouse which, when available at the discharge port, is presented to the Master in order to release the cargo to the holder of the bill of lading. Where such a key is not available at the discharge port or there is no release confirmation by the shipper, a letter of indemnity is frequently used. It must be realised that a letter of indemnity will not absolve the carrier from liability if the cargo is delivered to the wrong party (commonly referred to as a misdelivery claim). In a recent case decided by the Rotterdam District Court, the shipper had instructed the carrier to only release the shipment against the bill of lading or a telex release. Neither happened and part of the goods were delivered. In its judgment of 19 February 2020, the Court held the carrier liable for the resulting claims and losses now that it released the consignment without presentation of the original bill of lading or telex release.
Shipper responsibilities and liabilities
What are the responsibilities and liabilities of the shipper?
According to article 8:383, paragraph 3 of the Dutch Civil Code, in a contract of carriage under a bill of lading, the shipper shall not be liable for any loss or damage suffered by the carrier or the vessel and which result or arise from whatever cause, without there being an act, fault or omission on the part of the shipper, his or her agents or servants.
Pursuant to article 8:394 of the Dutch Civil Code, the shipper must promptly provide the carrier with all those indications regarding the goods, as well the handling thereof, that he or she is or ought to be able to provide, and of which he or she knows or ought to know are of importance to the carrier, unless he or she may assume that the carrier knows of these data. According to article 8:395, paragraph 1 of the Dutch Civil Code, the shipper must compensate the carrier for the loss the latter suffers because, for whatever reason, the documents and information that are required from the shipper for carriage, or for the fulfilment of customs and other formalities before the delivery of the goods, are not adequately available. Article 8:397, paragraph 1 of the Dutch Civil Code stipulates that the shipper must compensate the carrier for the loss the latter has suffered from equipment that the former has made available to the carrier or from goods that the carrier has received for carriage or from the handling thereof, except to the extent that this loss has been caused by a fact that a prudent shipper of the goods received for carriage has been unable to avoid and the consequences of which such a shipper has not been able to prevent.
Pursuant to article 8:398, paragraph 1 of the Dutch Civil Code, the carrier may at any time and at any place unload, destroy or otherwise render harmless goods received for carriage that a prudent carrier would not have wanted to receive for carriage, had he or she knew that, after taking receipt thereof, they could constitute a risk. The same applies to goods received for carriage that the carrier knew to be dangerous, but only when they present an imminent risk. The carrier does not owe any damages in respect hereof and the shipper is liable for all costs and any damage that result for the carrier from the presentation for carriage, from the carriage or from the measures themselves.
Based on article 8:411 of the Dutch Civil Code, the shipper is deemed to warrant the carrier as to the accuracy, at the time of receipt, of the marks, number, quantity and weight that he or she has declared, and he or she shall indemnify the carrier for all losses, damage and costs resulting from inaccuracies in the declaration of these particulars. Article 8:423, paragraph 1 of the Dutch Civil Code stipulates that in a contract of carriage under a bill of lading, goods of an inflammable, explosive or dangerous nature that the carrier, captain or agent of the carrier would not have consented to be loaded had he or she known the nature or condition thereof, may be unloaded at any place, destroyed or rendered harmless at any time before unloading by the carrier and this without compensation, and the shipper of these goods shall be liable for all damage and costs that have directly or indirectly resulted or arisen from the loading thereof.
In addition to the general obligations to pay freight and other charges, or make a contribution in general average, only these last obligations for costs, etc, can be imputed to the third-party consignee as receiver of the cargo together with any other obligation that shows for the bill of lading document itself, which includes the obligation to take delivery against presentation of the bill of lading to the carrier and under full compliance with all conditions set thereto.
Emission control areas
Is there an emission control area (ECA) in force in your domestic territorial waters?
Yes, two examples of ECAs in force in Dutch territorial waters are the North Sea Area and the adjacent Baltic Sea Area.
What is the cap on the sulphur content of fuel oil used in your domestic territorial waters? How do the authorities enforce the regulatory requirements relating to low-sulphur fuel? What sanctions are available for non-compliance?
Under the revised MARPOL 73/78 Annex VI, the global sulphur cap has been reduced to 0.5 per cent as of 1 January 2020. Since 1 January 2015, the limits applicable in the ECAs for sulphur dioxide and particulate matter are 0.1 per cent.
In line with the international conventions, the Dutch authorities prescribe that the sulphur concentration of fuel may not exceed 0.5 per cent and that the sulphur concentration of fuel for use in an ECA may not exceed 0.1 per cent. During inspections (port state and flag state control), samples of fuel may be taken to determine the sulphur content of the fuel in use. If the sample indicates a sulphur content exceeding 0.1 per cent, this is deemed a ‘deficiency’ and the vessel may be detained until fuel is on board with a sulphur percentage of less than 0.1 per cent.
According to Directive 2005/33/EC, ships at berth in all ports of the European Union shall not use marine fuels with a sulphur content exceeding 0.1 per cent m/m. Following the directive, ships at berth in Dutch ports are not allowed to use marine fuels with a sulphur content exceeding 0.1 per cent m/m. This fuel requirement only applies to ships at berth, meaning ships securely moored or anchored in port. The requirement does not apply to ships manoeuvring or on their way to enter or leave a port.
Following the EU directive, the Dutch Regulation on Prevention of Pollution from Ships has been amended to include the new provisions.
In short, the following rules apply for ships lying at berth in Dutch ports:
- when at berth, seagoing ships irrespective of flag (including non-EU ships) shall not use any marine fuel with a sulphur content exceeding 0.1 per cent m/m;
- in case fuel changeover is necessary this operation shall commence as soon as possible after the berthing of the ship. The time of change-over shall be recorded on board the ship;
- if the required fuel is not on board, appropriate fuel shall be taken on by the ship immediately after berthing. The arrival of the ship shall be so planned and coordinated to ensure the immediate supply of the fuel;
- ships staying at a berth for less than two hours are exempted from the above provisions; and
- the port state control authority is entitled to control on board the ship documents and the fuel delivery notes. Upon request of the port state control authority the ship’s crew assist in taking a sample of the fuel actually used at berth.
The above rules do not apply to inland waterway vessels as referred to in article 2 of Directive 1999/32/EC, with a certificate that shows that they comply with the requirements of SOLAS, when the ships are at sea and to ships that shut down all engines and use land-based power supply while they are in a port at their berths.
If during an inspection performed by port state control, flag state control or special sulphur inspectors it is proven that the vessel was not in compliance with the sulphur directive the vessel may be detained, prosecuted or both. Non-compliance with the new provisions could result in a fine. The maximum penalty in the Netherlands at this time is €900,000.
Regulation and facilities
What domestic or international ship recycling regulations apply in your jurisdiction? Are there any ship recycling facilities in your jurisdiction?
The Netherlands has several ship recycling facilities and is one of few EU countries with the capacity to recycle large ships. Nevertheless, only a small part of the available capacity is used. The Netherlands is often not a favourable location for ship recycling owing to high labour costs.
The general waste disposal provisions from the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989, Regulation (EC) No. 1013/2006 on shipments of waste (EWSR) and Regulation (EU) No. 1257/2013 on ship recycling (Recycling Regulation) are applicable. The Recycling Regulation is applicable to ships flying the flag of an EU country and to non-EU vessels calling at an EU port or anchorage. Ships of less than 500 gross tonnage do not fall under the new Regulation. All EU-flagged vessels recycled after 31 December 2018 are required to have a Ready for Recycling Certificate, which means, among others, these vessels shall only be sent to recycling facilities included in the European List of Ship Recycling Facilities (EU List). For vessels in operation and flying the flag of an EU member state, the certified Inventory Hazardous Material (IHM) has been required since 31 December 2020. The Recycling Regulation also affects non-EU-flagged vessels, since vessels flying a third-country flag (non-EU flag) calling at a port or anchorage of an EU member state need to have a certified IHM as of 31 December 2020.
The Netherlands has signed the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009 and has ratified the Hong Kong Convention. The Hong Kong Convention will enter into force 24 months after ratification by 15 contracting states, representing 40 per cent of world merchant shipping by gross tonnage, and a combined maximum annual ship recycling volume not less than 3 per cent of their combined tonnage.
In a judgment of the Rotterdam District Court of 15 March 2018, Seatrade, a Dutch reefer shipping group, and two of its directors have been found guilty of violating Regulation (EU) No. 1013/2006 of 14 June 2006 on shipments of waste (EWSR). Seatrade has been imposed with fines ranging between €50,000 and €75,000. Furthermore, two of its executives have been banned from exercising the profession as director, commissioner, adviser or employee of a shipping company for one year. A third director has been acquitted. The prison sentence, previously sought by the prosecution, has been waived amid the company’s lack of a previous criminal record that was accepted as a mitigating factor. Seatrade has appealed against the judgment.
In 2012, Seatrade sold four reefer vessels for scrapping. The vessels sailed from the ports of Rotterdam and Hamburg to India, Bangladesh and Turkey, where they were beached and then scrapped. The Dutch public prosecutor charged the directors of Seatrade with violations of EWSR.
The court examined the internal email exchanges, as well as exchanges between the accused and the shipbrokers prior to and during the last voyages of the ships, which established that it had been the intention from the very beginning to sell the vessels for scrap. The court rejected the argument that an operational ship could not be regarded as waste and found that ’waste’ is defined in the EU legislation as ’any substance or object which the holder discards or intends or is required to discard’. The court further found that all the circumstances of the case must be taken into account when assessing whether the holder of an object actually intended to discard it (which, in this case, it did) and that the term ’discard’ cannot be interpreted restrictively.
In the court’s view, at the time that the ships left the ports of Rotterdam and Hamburg, they were within the meaning of waste under the EWSR. The court emphasised that the fact that three of the ships were still in commercial service and carried a cargo during part of the voyage to their final destination did not affect this conclusion.
The judgment of the Rotterdam District Court potentially has wide-reaching implications for shipowners based in Europe and beyond who are considering scrapping their vessels. The judgment highlights the interaction between EWSR and the EU Regulation No. 1257/2013 on ship recycling (Recycling Regulation). The Recycling Regulation clarifies that transboundary movement for the purpose of recycling ships is regulated by the Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and their Disposal and the EWSR, except for ships falling under the scope of the Recycling Regulation as defined in article 2 of that Regulation.
In accordance with the Recycling Regulation, since 31 December 2018 seagoing vessels flying the flag of an EU member state must be recycled at a recycling facility that meets the requirements set out in the Regulation. In December 2016, the EU adopted the list of approved ship recycling facilities, which is updated from time to time. The European List was last updated on 11 November 2020. The updated list came into effect on 1 December 2020 and is divided into two parts. Part A contains 34 ship recycling facilities located in an EU member state. Part B contains nine ship recycling facilities located outside the EU: eight in Turkey and one in the United States. Three Dutch ship recycling facilities are included in the European List. The EWSR will continue to apply to non-EU flagged vessels.
In November 2020, the European Commission observed that the EU Ship Recycling Regulation is ineffective because many EU-flagged ships are reflagged to a non-EU flag just before they go for recycling.
Jurisdiction and dispute resolution
Which courts exercise jurisdiction over maritime disputes?
The Rotterdam District Court has, within the boundaries of EU rules, exclusive jurisdiction in nearly all shipping cases within the Netherlands. The Maritime Chamber of the Rotterdam District Court deals with these maritime cases. However, the Rotterdam District Court has refused to accept jurisdiction in a case where the parties had agreed to an international choice of forum clause, stipulating that the Amsterdam District Court had exclusive jurisdiction and referred the matter to Amsterdam when adjudicated.
Jurisdiction clauses are recognised by the Dutch courts if they comply with article 25 of the recast EU Brussels I Regulations 1215/2012. Bill of lading holders, in principle, are bound by jurisdiction clauses referring to jurisdictions under the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (ie, EU member states, Iceland, Norway and Switzerland).
In the case of a jurisdiction clause for a court outside this jurisdiction, the Netherlands has a particular rule on jurisdiction in maritime matters. Article 629 of the Dutch Code of Civil Procedure states that in the case of a contract of carriage of goods by sea to the Netherlands between a carrier and a consignee that was not the shipper, the court at the final place of destination will be the competent court. This rule cannot be set aside contractually unless the contract of carriage contains a jurisdiction clause that declares competent the court of a named place in the country where either the carrier or the receiver of the goods has its place of business or the contract contains a valid arbitration clause.
Service of proceedings
In brief, what rules govern service of court proceedings on a defendant located out of the jurisdiction?
If a defendant has no known domicile or residence in the Netherlands but does have a known address abroad, a distinction must be made between a defendant who resides in:
- a state to which Council Regulation (EC) No. 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (the EU Service Regulation) applies;
- a state that is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (the Hague Service Convention) or the Hague Convention on Civil Procedure of 1954 (the 1954 Hague Convention); or
- another state.
While the EU Service Regulation contains mandatory and exclusive rules for service to be completed in EU member states, the Hague Service Convention and the 1954 Hague Convention contain rules that are additional to the service requirements for foreign defendants in the Dutch Code of Civil Procedure. Under the Dutch Code of Civil Procedure, service on defendants residing abroad is completed if a bailiff serves the writ at the office of the public prosecutor of the court that is competent to hear the case and at the same time mails a copy of the writ to the defendant’s address outside the Netherlands.
Although neither the EU Service Regulation nor the Hague Service Convention prescribes a translation of the writ of summons, it is nevertheless advisable to provide one as, under the EU Service Regulation, a defendant may otherwise refuse to accept the writ and under the Hague Service Convention, the Central Authority has the power to require such a translation if it deems this necessary. For service under the 1954 Hague Convention, a translation is compulsory.
If the defendant has no known address in the Netherlands or abroad, the above-mentioned conventions and regulation do not apply and the writ must be served at the office of the public prosecutor. In addition, an abstract of the writ must be published in a Dutch national newspaper.
Is there a domestic arbitral institution with a panel of maritime arbitrators specialising in maritime arbitration?
Since its establishment in 1988 by the major maritime law firms in the Netherlands, the Transport and Maritime Arbitration Rotterdam-Amsterdam institute – now named Unum Transport Arbitration & Mediation – has offered a platform for conducting professional arbitration in the areas of shipping, shipbuilding, transport, storage, logistics and international trade. Unum Transport Arbitration & Mediation is organised in the form of a foundation with the major Dutch shipping firms as founding members. It has been offering arbitration services for years but has now also incorporated a mediation service, for the maritime and trade industry.
Foreign judgments and arbitral awards
What rules govern recognition and enforcement of foreign judgments and arbitral awards?
Although a distinction must be made between recognition and enforcement of a foreign judgment, recognition will generally lead to enforcement. In practice, foreign judgments will be recognised by a Dutch court if the following three conditions are met:
- the judgment is a result of proceedings compatible with the Dutch concept of due process;
- the judgment does not contravene public policy; and
- the non-domestic court must have found itself competent on grounds that are internationally accepted (for example, a forum chosen by the parties).
All types of EU judgments (including but not limited to decrees, orders (interim or permanent), decisions or writs of execution) issued by an EU member state court are enforceable pursuant to the relevant EU regulations. The (recast) Brussels I Regulation applies in civil and commercial matters, excluding revenue and customs administrative matters. A judgment given in an EU member state that orders a penalty is enforceable only if the amount of the payment has been finally determined by the court of origin. A provisional or protective measure by another EU member state’s court is enforceable only if that court also has jurisdiction as to the substance of the matter. Ex parte judgments are enforceable only if the measure is served upon the defendant before enforcement.
In respect of judgments rendered in a state that is a party to a treaty, the applicable treaty will describe in general which judgments can be enforced on the parties to the treaty. To be enforceable in the Netherlands, the judgment should also be enforceable in the state of origin. In the case of judgments rendered in any other state without a treaty, the following applies. Article 431 of the Dutch Code of Civil Procedure applies only to condemnatory judgments that are enforceable. Constitutive judgments, declaratory judgments and judgments dismissing a claim fall outside the scope of this chapter. However, according to case law, the judge may attach his or her own conclusion on the law applicable to these judgments and will, in principle, recognise such judgments if they comply with the conditions as set out in the Dutch Supreme Court case law (the Gazprombank case).
As regards enforcement, judgments delivered outside the Netherlands can only be directly enforced within the Netherlands on the basis of an enforcement treaty or EU instrument. The most important enforcement and recognition ‘treaties’ are the EU Service Regulation and the Lugano Convention. On the basis of these Community instruments, judgments delivered in the member states of the European Union and in Iceland, Norway and Switzerland are enforceable in the Netherlands once leave to do so has been obtained from the preliminary relief judge of the District Court. In addition to these treaties, the Netherlands has concluded bilateral treaties regarding enforcement with European countries as well as Suriname and the United States (the latter only as regards maintenance obligations).
Foreign judgments to which no treaty applies must, in principle, be enforced by commencing a new cause of action before the Dutch courts, but if the three above-mentioned criteria for recognition are met, no litigation on the merits will be required.
The Netherlands is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Arbitral awards made in countries that are a party to the New York Convention are enforceable in the Netherlands in accordance with the provisions of the New York Convention. Foreign arbitral awards made in countries that are not a party to the New York Convention can also be enforced in the Netherlands. Pursuant to article 1076 of the Dutch Code of Civil Procedure, the preliminary relief judge may only refuse to enforce an award on grounds that are exhaustively enumerated in the Arbitration Act.
Are asymmetric jurisdiction and arbitration agreements valid and enforceable in your jurisdiction?
Generally, asymmetric jurisdiction and arbitration agreements are valid and enforceable in the Netherlands. Although the Dutch Code of Civil Procedure and the EU Brussels I (recast) Regulation do not explicitly stipulate that such agreements are allowed, they are accepted on grounds of the principle of party autonomy. The Dutch Supreme Court has upheld an asymmetric jurisdiction and arbitration clause in a judgment of 21 March 1997, ECLI:NL:HR:1997:AG7212 (Meijer/OTM). On the other hand, lower courts have occasionally dismissed such clauses. This is considered possible in Dutch legal literature if the asymmetric jurisdiction and arbitration agreement is contrary to the principles of reasonableness and fairness.
Breach of jurisdiction clause
What remedies are available if the claimants, in breach of a jurisdiction clause, issue proceedings elsewhere?
In the Netherlands, no remedies are available should the claimants commence proceedings elsewhere, in breach of a contractual jurisdiction clause stipulating that the Dutch courts or arbitral tribunals have exclusive jurisdiction. The defendants should file a motion to dismiss the proceedings for lack of jurisdiction in these proceedings abroad.
What remedies are there for the defendant to stop domestic proceedings that breach a clause providing for a foreign court or arbitral tribunal to have jurisdiction?
If a court does not have international, absolute or relative jurisdiction over a dispute, a defendant may file a motion to dismiss for lack of jurisdiction, either prior to or in his or her statement of defence (articles 11, 110 and 1022 of the Dutch Code of Civil Procedure). Such a formal defence should first be dealt with by the Dutch court before the case can continue on the merits.
Limitation periods for liability
What time limits apply to claims? Is it possible to extend the time limit by agreement?
The time limits applying to claims as contained in Dutch law are:
- for breach of contract: five years;
- for liability for an unlawful act: five years;
- for collision damage: two years;
- for cargo claims: one year; and
- for claims based on a forwarding contract: nine months.
Claims for breach of contract and for liability for an unlawful act are also subject to a time limit of 20 years, which period starts running the day after the event giving rise to the damages. The shorter prescription period of five years starts running the day after the party suffering loss or damage became aware, not only of the loss or damage but also of the identity of the person liable. It is possible to extend the time limit by agreement. However, such an agreement should be concluded after the event giving rise to the claim.
May courts or arbitral tribunals extend the time limits?
Courts shall only apply a time limit if it is being relied upon by the defendant. In the event of a cargo claim where the defendant becomes in default, the court will verify whether the plaintiff has claimed that the 12-month time limit has been extended by mutual agreement or has been suspended by writing a notice to the defendant before the time ran out, reminding the defendant that he or she should still be prepared to answer a claim by the plaintiff.
Maritime Labour Convention
How does the Maritime Labour Convention apply in your jurisdiction and to vessels flying the flag of your jurisdiction?
The Netherlands ratified the Maritime Labour Convention (MLC) on 13 December 2011. The MLC entered into force on 20 August 2013 and has been designed to improve the labour conditions of seafarers worldwide. The most important effect on Dutch legislation was the modernisation and modification of legislation governing maritime shipping and employment in the Netherlands (including the Dutch Commercial Code, the Ships’ Manning Act, Book 7 of the Dutch Civil Code and the Occupational Safety and Health Act). The MLC is primarily a confirmation of existing maritime standards, with several new components. These include the certification of living and working conditions of seafarers on board, the Maritime Labour Certificate. This certificate is proof that a shipowner and his or her ship meet the requirements of the MLC. The Human Environment and Transport Inspectorate has mandated the issuing of these certificates in the Netherlands to accredited classification societies.
Relief from contractual obligations
Is it possible to seek relief from the strict enforcement of the legal rights and liabilities of the parties to a shipping contract where economic conditions have made contractual obligations more onerous to perform?
As the parties to a shipping contract have the freedom of contract, the rights and liabilities provided for in that contract are in principle upheld, meaning that if the contractual provisions do not offer relief from the strict enforcement thereof, in principle no relief is possible. That said, article 6:248 of the Dutch Civil Code provides that the consequences of a contract between parties can be set aside if these consequences, in light of the circumstances of the case and the principle of reasonableness and fairness, would be deemed unacceptable. This abridging effect of reasonableness and fairness must, however, be limitedly applied by the courts.
In addition, Dutch law contains a specific provision (article 6:258 of the Dutch Civil Code) for unforeseen circumstances that cause hardship in a given situation. The provision provides that the court may, at the request of one of the parties, amend the consequences of the contract, or even partly or wholly rescind the contract on the basis of unforeseen circumstances of such nature that the contractual counterparty may not reasonably expect the continuous and unaltered existence of the contract. The test is not whether the circumstances were foreseeable at the time the contract came into existence, but rather on which presumptions the parties based the contract. Again, this possibility must be limitedly applied.
Finally, article 6:94 of the Dutch Civil Code provides the possibility for the court to reduce contractual penalties, should the principle of fairness require such reduction.
Other noteworthy points
Are there any other noteworthy points relating to shipping in your jurisdiction not covered by any of the above?
A bunker spill does not always lead to a limitation of liability based on the Bunker Convention. Following the Rotterdam District Court (9 November 2018, ECLI:NL:RBROT:2018:9174), the Court of Appeal of The Hague (27 October 2020, ECLI:NL:GHDHA:2020:2055) ruled that it is not the Bunker Convention but the CLC that is applicable to bunker pollution in the port of Rotterdam caused by the seagoing vessel Bow Jubail. In the assessment the standard of proof and the manner of gathering evidence play a decisive role. In its judgment, the Court of Appeal gives a clear warning to ‘hide-and-seek players’.
The conclusion is that the Court of Appeal, following the District Court, rules that the Bow Jubail qualifies as a combination ship within the meaning of the CLC 1992. The shipowner is therefore not entitled to invoke the Bunker Convention and the limit of the LLMC 1996 (and must pay the costs of the proceedings). A subsidiary request for limitation of liability based on the CLC has not been made by the shipowner. His liability for the incident is therefore unlimited for the time being. The shipowner has in the meantime lodged an appeal in cassation against the judgment of the Court of Appeal. We now await the decision of the Dutch Supreme Court.
Update and trends
Key developments of the past year
Are there any emerging trends or hot topics that may affect shipping law and regulation in your jurisdiction in the foreseeable future?
In response to Russia’s invasion of and war in Ukraine, the EU – such as the UK, USA and other countries – have imposed various sanctions on Russia, Russian entities and Russian individuals. The EU has adopted five packages of sanctions, which include: (1) individual sanctions, (2 economic sanctions (3) restrictions on media, (4) diplomatic measures and (5) restrictions on economic relations with the non-government controlled areas of Donetsk and Luhansk oblasts. At the time of writing this publication, some 80 Russian entities and 1091 individuals have been listed on various sanctions lists, with travel bans and asset freezes in place.
Like almost all sectors, also the shipping and transport sector feels the implications of the sanctions. Currently, the following measures are in place in the Netherlands:
- ban on exports, sales, supply or transfer of all aircraft, aircraft parts and equipment to Russia;
- ban on the provision of all related repair, maintenance or financial services;
- closure of EU airspace to all Russian-owned, registered or controlled aircraft, including private jets of oligarchs;
- restrictions on the export of maritime navigation goods and radio communication technology;
- a full ban of Russian and Belorussian freight road operations working in the EU (certain exceptions will cover essentials, such as agriculture and food products, humanitarian aid as well as energy); and
- an entry ban on Russian-flagged vessels to EU ports (exceptions apply for medical, food, energy and humanitarian purposes).
The Dutch government is aiming to ban all Russian coals, gas and oil by the end of 2022 and to no longer be dependent on Russian products in that regard. At the moment, there is also a widespread call to stop Russian vessels carrying oil from entering Dutch ports. The Russian sanctions also continue to draw attention to the Dutch superyacht industry. Dutch customs have placed 14 yachts owned by Russian owners under enhanced surveillance at Dutch yacht builders. This concerns 12 yachts under construction, and two yachts under maintenance. The luxury yachts are currently not allowed to leave the country, nor be formally delivered and transferred to their owners.
Superyacht Times, an industry publication, estimates Russian owners today account for 9 per cent of the world’s 2,000 superyachts of at least 40 metres in length. In the 80-metre-plus category, Russians own a fifth of the 153 ships, second only to Gulf state buyers.
What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?
On 11 March 2020, the World Health Organization (WHO) declared the outbreak of covid-19 (coronavirus) to be a pandemic. The situation globally is constantly changing and countries, states and local governments are implementing shipping industry restrictions. Such restrictions, both official and unofficial, can include preventing crew from embarking or disembarking, delayed port clearance and imposing quarantines.
Since 1 December 2020, the Temporary Act on Measures Covid-19 has been in force in the Netherlands. The Act replaces the emergency ordinances, which have contained the measures since March 2020. The initial duration of the Act was three months, but, if necessary, the Act can be extended for three months at a time, which has already been done. At the date of writing this, the Act is still in effect. It is possible to repeal the Act in the interim, as soon as it is decided that the Act is no longer needed.
The impact of the covid-19 pandemic on shipping in the Netherlands remains to be seen. One side effect of the pandemic is that parties to a contract are questioning if they can terminate or postpone the same due to force majeure. Many agreements concluded in accordance with Dutch law contain force majeure clauses, however, whether the coronavirus constitutes a force majeure event will depend on the clause in question. If the clause lists ‘epidemic’ or ‘quarantine’, then it is likely that the coronavirus could trigger the clause.
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