Burden imposed on claimant in disputes with terminal operators

26 Июл

В соответствии с голландским правом суды Нидерландов возлагают бремя доказывания отсутствия должной заботливости на истца, желающего привлечь к ответственности оператора терминала. Таким образом, потерпевший от деликта судовладелец должен собрать соответствующие доказательства виновности оператора терминала.

Introduction

The Rotterdam Court’s 2011 decision in The Allegonda is the latest in a series of judgments handed down in disputes involving claims filed by shipowners and their insurers in tort against terminal operators for damage to hull and cargo. These decisions confirm the heavy burden of proof on claimants seeking to establish wrongful acts carried out by terminal operators in disputes over liability.

Legal landscape

The Civil Code provisions on claims in tort require a wrongful act by the terminal or its employee or agent. In 1953 the Supreme Court held that the burden of proof of the existence of a wrongful act rests with the shipowner, noting in Nicolaos Pateras that: “The terminal is not liable for damage to the vessel, unless the shipowner proves that the terminal did not exercise reasonable care.”

The Allegonda

In The Allegonda (April 27 2011) a spreader hit the rooftop of the steering house of a barge at a terminal in Rotterdam in 2009. The court held that the fact that damage was caused by a terminal crane was insufficient to prove a wrongful act by the terminal. The court decided that the shipowner could produce evidence to prove the lack of reasonable care. The shipowner called the crane driver as a witness. The court subsequently held that the crane driver had not acted in an uncontrolled manner, but given the circumstances, he could have prevented hitting the steering house. Hence, the lack of reasonable care was sufficiently proven and the terminal operator was liable in tort.

Case law

Established case law shows that ‘reasonable care’ should be determined on the basis of the facts and circumstances of a particular incident. Decisions of the Dutch courts in recent years demonstrate precisely which circumstances can lead to liability on the part of the terminal operator and what evidence is required to meet the burden of proof. Often, witness statements by the persons involved (ie, the crane operator or the ship’s crew) are decisive. Other evidence (eg, survey reports and pictures) is also important for the court to establish whether there was a lack of reasonable care on the part of the terminal.

In 2009, in a case with parallels to The Allegonda, the Court of Appeal of The Hague held that a Dutch terminal operator was liable in tort to the owner of the Noordkaap and its insurer. While being lifted from a barge by the crane operator, a container hit the steering house, resulting in substantial damage. During the proceedings, the crane driver declared that he continued lifting a container, although he saw that it hung askew, as he hoped that the container would still clear the steering house. On the basis of this witness statement, the court held that a lack of reasonable care on the part of the crane driver was sufficiently proven, and thus the crane driver’s employer – the terminal – was liable in tort.

The Paradox (Breda Court, November 17 2010) involved damage to a barge caused by a spreader at a terminal in Moerdijk. The spreader touched the rooftop of the steering house. The court held that the crane driver could have stopped rotating the crane earlier in order to prevent the damage. He had committed a wrongful act and thus the terminal was liable in tort.

Also in 2010, the Rotterdam Court rendered judgment in another terminal liability case, The Pretoria. In December 2007 the barge Pretoria moored at a terminal in Rotterdam to unload several containers and to load new ones. There was little manoeuvring space between the steering house and the place of loading and unloading. During lifting, the spreader hooked on to a container door. Subsequently, the spreader swept and hit the steering house. The hull damage and time delay claimed by the shipowner and the hull insurer amounted to almost €100,000.

The Rotterdam Court again held that establishing the cause of the damage (the crane sweep) was insufficient to prove a wrongful act on the part of the terminal. In this case, the court added that shipowners must recognise that their vessels are exposed to risks during loading and unloading operations at terminals. The plaintiffs had insufficiently substantiated their claim, and the court held that the alleged lack of reasonable care was not proven. The conclusion was that there was no wrongful act, and thus the terminal was not liable in tort.

Comment

In a Dutch court case involving terminal operators’ liability in tort, it is all about the facts and circumstances of the case, and the evidence thereof. Terminal operators are liable in tort if they fail to exercise reasonable care during terminal operations, which leads to a wrongful act. The burden of proof in respect of the lack of reasonable care rests with the claimant. Therefore, shipowners must collect evidence immediately after an incident. The same applies to terminal operators to enable them to produce counter-evidence in due course.

Автор: Annemieke Spijker

Источник: http://www.internationallawoffice.com/Directory/biography.aspx?g=5fa33470-efa8-4283-bf9d-9697c2bc41a0

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