Transport law in the Netherlands
Holland is a major transport- and distribution player on a global stage. The Rotterdam harbour is a gateway for the rest of Europe and for this reason it is a place where lots of transport modalities and operators come together.
Without transport and distribution, trade would not be possible. For this reason it is of big importance that rights and obligations of all parties involved should be regulated properly.
In the following I will discuss the most common transport modalities that we know in Holland, whereby I will discuss one of many common problems connected with the transport law practice.
Sea transport and inland navigation
On a worldwide scale, Rotterdam is a major storage and handling operator of containers. Container transport is the most practical and cheapest way to move large quantities of cargo from A to B.
For the sea-carriage Brussels Convention of 1924 apply together with a Protocol of 1968 and after that the Hague-Visby Rules.
The Rotterdam Rules that were signed on the 23 September 2009 are believed to be a new set of rules for the international carriage of goods by sea. Because the Rotterdam Rules have not yet been ratified by the required number of countries, these set of rules did not yet enter into force.
Compared to other countries, Holland lists a lot of registered inland navigation vessels. It lasted up to year 2000 before a new set of rules entered into force; the CMNI- treaty. Inland navigation is however regulated by our Dutch Civil Code, book 8, but parties can stipulate that CMNI-rules will apply to their contract.
International road carriage is regulated by the CMR-convention (1956)
The limited liability of the carrier that is regulated by many treaties and conventions is very important for transport operators. Some argue that without limited liability, carriage would not be possible and if so, only at very high rates. The most striking feature of the CMR convention is article 29 CMR. According to CMR, the carrier is fully liable when the cause of damage is contributed to act or omission of the carrier which is caused deliberately or due to fault which is equal to deliberate act by the court which is asked to deal with the case.
Since each country and therefore courts have different definition of fault which is equal to deliberate act, both the interested parties in the cargo and carriers often go forum-shopping.
The Dutch explanation of this fault equal to deliberate act was presented by the Dutch Supreme Court on 5 January 2001. The Supreme Court ruled that an act is reckless and with the knowledge that damage would probably occur out of it, if someone knows the risks connected to its act or omission, and also knows that the chance of damage with regard to this act or omission is considerably larger than the chance that damage would not occur, but nevertheless this knowledge does not prevent this person from cancelling this act or omission.
Here, it is important to understand what the carrier was thinking about the consequences of his acts or omission. Because this is a very subjective criteria, you have (so to speak) look inside the head of the carrier. This is practically impossible and for this reason Dutch courts accept carriers to have limited liability. This is different for example in Germany, where fault similar to deliberate act is often accepted with a result that the carrier has to pay full recovery.
Therefore carriers are often going to Dutch courts to seek declaratory judgements that they are not liable, and if so, only limited. On the other hand, interested parties in the cargo will rush to German courts in order to seek for the judgement there (off course if Germany is the competent court according to the CMR). This forum shopping is a classic cat and mouse game in the transport law practice.
For the national road carriage book 8 of the Dutch Civil Code applies together with the additional AVC-conditions, latest version. However, it is also possible to apply the CMR on national road carriage by stipulation made by parties. Therefore it is common practice to use a combined transport letter; a transport document on which parties can easily make their choice of rules. They can do so by encircle the right logo (CMR or AVC).