Особое внимание авторы уделяют:
- правилам регистрации судов,
- морским залогам и ипотекам,
- правилам ареста морских судов,
- принудительной продаже судна,
- правилам ограничения ответственности судовладельцев (андеррайтеров, спасателей), а также лиц, за поведение которых они несут ответственность, причем особенное внимание уделяется созданию и распределению фонда ограничения ответственности,
- перевозке грузов,
- чрезвычайным морским происшествиям,
- морской безопасности,
- морскому страхованию,
- рассмотрение и разрешение морских споров, в том числе, морскому арбитражу.
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Trends and developments
Trends and developments
Are there any notable trends or recent legal developments in your jurisdiction’s shipping industry?
In the Netherlands it is easy to arrest vessels and other assets and hold evidence. Dutch courts have also recently allowed the arrest of assets located in other EU countries. Further, it is relatively easy to auction vessels in the Netherlands.
As of 1 January 2017 the District Court of Rotterdam is the exclusive court of competent jurisdiction for cases involving maritime law in the Netherlands. However, the court has refused to accept jurisdiction in a case of an international choice of forum clause for the District Court of Amsterdam and referred the matter to Amsterdam.
The Netherlands is party to the Convention on the Limitation of Liability in Inland Navigation (CLNI) 2012. The CLNI 2012 will supersede the CLNI 1988 on 1 July 2019.
Registration
Eligibility
Which ships are eligible for registration in the national shipping register(s) and which parties may register ships?
Seagoing vessels and inland barges (inland waterway vessels) are eligible for registration under the Dutch flag. A vessel under construction can also be registered in the shipping register if it is being constructed in the Netherlands.
A seagoing vessel must comply with Article 8:194 of the Civil Code and be registered in the shipping register. The owner of a seagoing vessel is entitled to apply for registration of the vessel in the Dutch Shipping Register.
Inland barges must comply with Article 8:784 of the Civil Code in order to be registered in the shipping register. Inland barges are also eligible for registration in the Netherlands if they comply with the legal obligations stated in the Convention on the Registration of Inland Navigation Vessels (Geneva, 25 January 1965). A barge is eligible if:
it is operated from the Netherlands;
it is owned by a Dutch individual or an individual whose residence is in the Netherlands; or
it is owned by a legal entity or a company that has its corporate seat or principal place of business in the Netherlands.
If the barge has multiple owners, the majority of these owners must comply with the second or third bullet points above.
Procedure
What are the procedural and documentary requirements for registration?
In order to register a ship, a signed and completed application form must be submitted with the required documents. Application forms can be found on the Dutch Shipping Register website. The following documents are required:
if the owner does not apply for the registration but is represented by another person, a power of attorney;
if the owner is a company of legal entity, a copy of the extract from the trade register and a copy of the articles of association;
a copy of the owner’s passport, if they are a natural person;
if the vessel is already registered abroad, a copy of the foreign registration;
a copy of the tonnage certificate;
proof of ownership;
a copy of class certificates;
a copy of the certificate which includes details of the vessel’s motor; and
if the vessel was previously registered abroad, the certificate of deletion (to be submitted within 30 days after the provisional registration in the Dutch Shipping Register).
Grounds for refusal
On what grounds may a registration application be refused?
A vessel may be denied registration in the public register if it does not comply with the legal requirements for registering a vessel.
Advantages
Are there any particular advantages of flying your jurisdiction’s flag?
The Netherlands has an excellent infrastructure for shipping activities. The country has specialised shipping banks and the legal system and the attractive tax regime make the country a good environment for shipowners to register their ships.
The Netherlands was third place on the Paris Memorandum of Understanding on Port Control 2017 performance list for national flag states (the White List).
Liens and mortgages
Registration
How are encumbrances such as maritime liens and mortgages registered in your jurisdiction and what are the effects of registration?
The Netherlands is not a party to any of the conventions on maritime liens and mortgages. Further, Dutch law does not recognise the concept of maritime liens and therefore provides no mechanism by which such a lien can be enforced. Pursuant to Article 10:136 of the 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 the goods). Such right cannot be registered.
It is possible to register a mortgage on a vessel. The mortgage must be registered in the Dutch Shipping Register with a notarial deed. Such a registration is accessible by the public.
With the registration of the mortgage, the mortgagee obtains priority and will be protected from all later secured creditors who may seek additional finance from other sources using the same ship as security.
Various claims set out in the Civil Code have priority on a vessel which supersedes claims secured by a mortgage.
Securable claims and priority
What claims can be secured by maritime liens and what is the order of priority?
Since maritime liens are not recognised as such under Dutch law, no specific claims can be secured by maritime liens. In general, Dutch law provides that all claims are equal, unless specific provisions stipulate otherwise.
Extinguishment
Under what circumstances are maritime liens extinguished?
As maritime liens are not recognised as such under Dutch law, this question does not apply.
Foreign liens
Are foreign liens recognised in your jurisdiction?
Foreign liens are recognised in the Netherlands, if they are created in accordance with the Dutch conflict rules of private international law. Pursuant to Article 10:136 of the Civil Code, it must be determined to what extent the rights of a foreign lien will be recognised under the Dutch legal system. A recognised foreign lien will have the same rights as its Dutch alternative and can never exceed the rights it would have under Dutch law.
Transfer and assignment
Which rules govern the transfer and assignment of liens, mortgages and other encumbrances?
The law that governs the transfer and assignment of liens, mortgages and other encumbrances is determined on the basis of Article 14 of the Rome I Regulation (593/2008). Under Article 3:83 of the Civil Code, mortgages and pledges are transferrable if the legal requirements set out in the Civil Code are met.
Arrest
Grounds for arrest
Under what circumstances can a ship be arrested in order to secure a claim against it?
Under Dutch law, an arrest can be made for claims against a shipowner and for claims that can be enforced against the vessel.
The Netherlands is a party to the Arrest Convention 1952. If a ship sails under the flag of one of the contracting states of the Arrest Convention, the ship can be arrested only in respect of a maritime claim as defined in Article 1 of the convention.
Can a ship be arrested to secure a non-maritime claim?
A ship can be arrested for a non-maritime claim only if it does not sail under the flag of a contracting state to the Arrest Convention.
Can a ship be arrested to secure a claim against a sister ship?
If the Arrest Convention does not apply, a claim can be secured by means of an arrest of any of the debtor’s assets. This also applies to sister ships (ie, a ship owned by the same owner).
If the Arrest Convention applies, Article 3(1) of the convention allows for the arrest of a sister ship.
The Dutch Supreme Court has held that the second sentence of Article 3(4) of the Arrest Convention should be interpreted in a broad sense, meaning that when a time or voyage charterer is liable for a maritime claim, a vessel owned by such charterer that is related to the chartered vessel, but unrelated to the arrested vessel, may be arrested for this claim (Supreme Court, 9 December 2011, NJ 2012, 243; S&S 2012, 24, European Transport Law 2012-1, p 24 (Costanza M)).
Procedure
What are the procedural and documentary requirements for seeking arrest of a ship?
Arresting a vessel in the Netherlands is relatively easy and can be done within a couple of hours. The claimant must submit an application to the court briefly describing the claim (amount and legal basis) and debtor. The claim must be supported by documentation. In general, the court decides quickly after a marginal review of the application without hearing the debtor. If the court is satisfied, it will give leave to arrest the vessel. This leave is forwarded to a bailiff who will then make the arrest onboard the vessel.
Security
What security must the arresting party put up in order to secure arrest of a ship and how is this security calculated?
Countersecurity is rarely required from the applicant for arrest, although the courts have discretionary power to order the arresting party to provide countersecurity. The courts are free to determine the amount of the countersecurity.
What security can the arrested party provide for release of an arrested ship?
If the debtor provides sufficient security for the claim in the form of a cash deposit or guarantee of a suitable guarantor (eg, a guarantee issued by a member of the International Group of Protection and Indemnity Clubs), the arrest must be lifted. A guarantee based on the wording of the Rotterdam Guarantee Form is widely used and accepted in the Netherlands.
Judicial sale of ships
Procedure
What is the legal procedure for the judicial sale of ships in your jurisdiction?
In order for a creditor to apply for the judicial sale of a vessel under arrest, the creditor must hold an enforceable legal title against the vessel’s owner, such as a Dutch judgment containing an order of payment or a notarial deed from a Dutch civil law notary. The vessel should be arrested and a petition must be filed with a Dutch court to schedule the date and time of the judicial sale. Moreover, auction conditions and a list of known creditors must be filed in court. The auction must be announced beforehand in a local daily newspaper. The court will provide a timeframe for the procedure between the publication of when the auction will take place and the actual auction. The highest bid obtains ownership of the vessel.
Foreign sales
Under what circumstances are foreign sales recognised?
The validity of public sales conducted abroad is generally recognised by the Dutch courts, subject to basic principles of due process being observed.
Limitation of liability
Eligibility
What parties may limit liability for maritime claims?
In respect of seagoing vessels, the Netherlands is a party to the London Convention on the Limitation of Liability for Maritime Claims 1976 (LLMC) and the Protocol of 1996 – and is thus subject to the amended limitation amounts which have been applicable since 8 June 2015.
For inland waterway vessels, the Netherlands applies the Strasbourg Convention on the Limitation of Liability in Inland Navigation (CLNI). The Netherlands has accepted the CLNI 2012, which will enter into force on 1 July 2019 and supersede the CLNI 1988.
The text of the CLNI is similar to the LLMC, but the quantum of limits are different.
Shipowners, underwriters and salvors as defined in the conventions, as well as the persons for whose behaviour they are responsible, may limit their liability.
For what claims can liability be limited? Are any claims explicitly exempt from the limitation of liability?
Claims for which the limitation of liability is possible are set out in Article 3 of the LLMC 1996 and CLNI 1988/2012 and include:
claims in respect of loss of life, personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation) occurring onboard or in direct connection with the operation of a ship or salvage operation and consequential loss resulting therefrom;
claims in respect of loss resulting from a delay in the carriage by sea of cargo, passengers or their luggage;
claims in respect of other losses resulting from the infringement of rights other than contractual rights occurring in direct connection with the operation of the ship or salvage operations;
claims in respect of the raising, removal, destruction or rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been onboard;
claims in respect of the removal, destruction or rendering harmless of cargo; and
claims of a party other than that liable in respect of measures taken in order to avert or minimise losses for which the liable party may limit its liability in accordance with this convention and further loss caused by such measures.
Liability cannot be limited for:
claims for salvage, including, if applicable, any claim for special compensation under Article 14 of the International Convention on Salvage 1989, as amended, or general average contributions;
claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969, or of any amendment or protocol thereto which is in force;
claims subject to an international convention or national legislation governing or prohibiting the limitation of liability for nuclear damage;
claims against the shipowner of a nuclear ship for nuclear damage; and
claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs or dependants or other persons entitled to make such claims if, under the law governing the contract of service between the shipowner or salvor and such servants, the shipowner or salvor is not entitled to limit its liability in respect of such claims or is permitted to limit its liability only to an amount greater than that provided for in Article 6 of the International Convention on Salvage.
Limits
What limits are set for eligible claims?
Under Article 6(1) of the LLMC, claims for loss of life or personal injury are limited to 3.02 million units of account for a ship with a tonnage not exceeding 2,000 tonnes. For ships with a tonnage in excess of 2,000 tonnes, the following limits apply:
1,208 units of account for each tonne between 2,001 to 30,000 tonnes;
906 units of account for each tonne between 30,001 to 70,000 tonnes; and
604 units of account for each tonne in excess of 70,000 tonnes.
Other claims are limited to 1.51 million units of account for a ship with a tonnage not exceeding 2,000 tonnes. For ships with a tonnage in excess of 2,000 tonnes, the following limits apply:
604 units of account for each tonne between 2,001 to 30,000 tonnes;
453 units of account for each tonne between 30,001 to 70,000 tonnes; and
302 units of account for each tonne between 2,001 and 30,000 tonnes.
For inland waterway vessels, much lower limits apply (as set by royal decree).
Limitation funds
What rules and procedures govern the establishment of limitation funds?
In order to invoke limitation, a fund must be put up as per Articles 642 of the Code of Civil Procedure. A fund can be put up either by remittance of a cash deposit or by providing a guarantee from a reputable underwriter or bank.
How are liability funds distributed?
Article 12 of the LLMC 1996 sets out the distribution of funds. In general, the funds are distributed among the claimants in proportion to their established claims against the fund.
Carriage of goods
International conventions
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
In respect of carriage under a bill of lading, the Netherlands is a party to the Hague-Visby Rules, including the Special Drawing Rights Protocol. The Hague-Visby Rules have direct effect, if the requirements set out in Articles I and X have been complied with (Article 8:371(3) of the Civil Code). The Netherlands has also incorporated the Hague-Visby Rules into Book 8 of the Civil Code (Articles 8:382 to 386 and Article 8:1712).
In respect of inland waterway carriage, the Netherlands is party to the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway (CMNI).
Carrier’s responsibility
What is the official extent of the carrier’s responsibility for goods?
The Civil Code provides a regulation for time and voyage charters, including provisions on liability, laytime and demurrage. However, these rules are not mandatorily applicable. In principle, contractually agreed provisions take precedence.
Pursuant to Article 8:381 of the Civil Code, the carrier in a contract of carriage under a bill of lading must exercise due diligence, before and at the commencement of a voyage to:
make the vessel seaworthy;
man, equip and stock the vessel adequately; and
render fit and bring into good condition the holds, cold-storage and freezing chambers and all other parts of the vessel into which items are loaded in order to be stored, carried and preserved.
Aside from several exceptions (set out in Articles 8:383, 8:388, 8:414(4) and 8:423 of the Civil Code), in a contract of carriage under a bill of lading the carrier must load, handle, stow, carry, look after and discharge cargo adequately and prudently.
For inland waterway carriage, the CMNI provides that the carrier is liable for damages resulting from loss or damage to the goods caused between the time when they are taken over for carriage and the time of their delivery or resulting from delay in delivery, unless it can be shown that the loss was due to circumstances which a prudent carrier could not have prevented and the consequences of which could not have been averted (Article 16).
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Pursuant to Article III-8 of the Hague-Visby Rules and Article 8:382 of the Civil Code, a carrier is not entitled to limit its liability for carriage under a bill of lading as provided in the Hague-Visby Rules and the Civil Code. Provisions which intend to further or otherwise limit liability are null and void. This implies that parties, in principle, are entitled to contract out any legal provisions governing carriage of cargo liability for carriage under sea waybills and charter parties.
Article 25 of the CMNI provides that any contractual stipulation intended to exclude, limit or increase a carrier’s liability other than as allowed by the CMNI is null and void.
Title to sue
Who has title to sue on a bill of lading?
Only the lawful holder of a bill of lading has title to sue for a bill of lading and is entitled to claim damages. This applies even if the bill of lading holder has not suffered any damage (Article 8:441(1) of the Civil Code).
Time bar
What is the time bar for cargo claims?
The time bar under any contract of carriage of goods by sea and inland waterways, including charter parties, is one year (Articles 8:1711 and 8:1712 of the Civil Code).
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
Under Dutch law, the ‘carrier’ is the shipper’s contractual counterparty.
The Civil Code contains a separate rule to determine the carrier under a bill of lading. Pursuant to Article 8:461 of the Civil Code, more than one person can be identified as a carrier under a bill of lading and be sued for cargo claims. The ‘carrier’ under a bill of lading can be the person:
who signed the bill of lading;
on whose behalf the bill was signed; or
whose form was used for the bill.
If a master bill of lading has been issued:
the owner, or if the master is in the service of a bareboat charterer, the bareboat charterer; or
the last time charterer or voyage charterer in the chain of contracts of carriage who concluded a contract of carriage with the consignor.
Only the owner or bareboat charterer – with the exclusion of other carriers under a bill of lading, if any – is regarded as bill of lading carrier if such owner or bareboat charterer is clearly identified (name and address) in the bill of lading.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
A ‘peril of the sea’ is regarded as a sea event that causes unavoidable damage. This means that a competent carrier would not reasonably have been able to prevent the damage caused by the event. The Supreme Court has set a high threshold for bad weather to give rise to a valid perils of the sea defence.
Pursuant to Article 8:383(1) of the Civil Code, in the case of carriage under a bill of lading, neither the carrier nor the ship is liable for loss or damage arising or resulting from the vessel’s unseaworthiness, unless caused by a want of due diligence on the part of the carrier to ensure that:
the ship is seaworthy and properly manned, equipped and supplied; and
the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried are fit and safe for their reception, carriage and preservation in accordance with Article 8:381(1) of the Civil Code.
Other defences that a carrier can invoke, regardless of whether a bill of lading has been issued, can be found in Article 8:383(2) of the Civil Code, which is a Dutch translation of Article IV(2) of the Hague-Visby Rules and covers navigation errors, fires, perils of the sea, acts of God, inherent vice and force majeure..
Third parties
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
Articles 8:362 and 8:366 of the Civil Code include protection for agents and other third parties against cargo claims. Generally speaking, agents or third parties can invoke the same defences and liability limitations as carriers.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Carriers are not liable for damage or loss that results from deviating from the agreed route if such deviation took place in an attempt to save life or property at sea or is otherwise reasonable (Article IV(4) of the Hague-Visby Rules and Article 8:383(4) of the Civil Code).
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
Shippers and their agents or servants are liable for damages caused only by their action, fault or negligence (Articles IV(3) of the Hague-Visby Rules and Article 8:383(3) of the Civil Code). Further, shippers are not liable for damages caused by circumstances that a prudent shipper would have been unable to avoid and consequences which they were unable to prevent. Apart from the aforementioned circumstances, carriers can claim for damages that result from a shipper’s failure to meet its obligations.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
Article 8:41 of the Civil Code provides that in a multimodal carriage contract, each stage of the carriage is governed by the legal rules applicable to that stage. If the combined transport operator is liable for total or partial loss resulting from damage, a delay or any other damaging fact and it has not been ascertained where the damaging fact arose, its liability will be determined according to the juridical rules which apply to the part or parts of the transport where this fact may have arisen and from which the highest amount of damage results.
Marine accidents
Collision and pollution
What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:
(a) Collision?
The Netherlands is a party to the Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels 1910 (for seagoing vessels) and the Geneva Convention for Inland Waterway Navigation 1960. The conventions are directly applicable and, in addition, have been incorporated into the Civil Code. The Netherlands is also a party to the International Regulations for Preventing Collisions at Sea 1972. The owner of a ship that was at fault for a collision must compensate any damage caused (Article 8:544 of the Civil Code). Pursuant to the Supreme Court, a ‘fault of a vessel’ (under Articles 3 and 4 of the Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels and Article 8:542 of the Civil Code) exists if damage results from:
a fault of the owner of the ship or a person for whom the owner is liable, such as its employees or independent contractors acting within the scope of their employment;
a fault of a person performing work in the interest of the ship or the cargo (eg, a fault by stevedores appointed by charterers); or
an (inherent) defect of the ship (Casuele v De Toekomst, Supreme Court, 30 November 2001, NJ 135/143).
As legal presumptions of fault have been abolished, the burden of proof lies with the claimant.
Under Article 8:541 of the Civil Code, collision rules also apply to allision cases (ie, when damage has been caused by a ship without a collision between vessels). As a special rule of evidence, Article 8:546 of the Civil Code states that a ship which collides with anything that is not a ship is liable for damage if the object hit is adequately lit, fixed or fastened at an appropriate place, unless the shipowner proves that the allision was not its fault (see KF Haak and R Zwitser, Van haven en handel, Deventer: Kluwer 2009, pp 219 to 226). The broad definition of a ‘ship’ under Dutch law provides for a large scope of applicability of collision rules. A ‘ship’ is defined as an object, not being an aircraft, which is constructed to float.
(b) Oil pollution?
The Netherlands is a party to the Civil Liability Convention 1992 and the International Fire Code 2003, which have been incorporated into the Oil Tanker Liability Act and the Compensation Fund Act. The Netherlands is also a party to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, which has been incorporated into the Civil Code.
(c) Other environmental damage caused by a ship?
The Netherlands is a party to:
the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways;
the Revised Convention for Rhine Navigation; and
the EU Ship Source Pollution Directive (2005/35/EC), implemented through the Act on the Prevention of Pollution by Vessels.
If the protection of the environment is involved, the Water Act may also apply.
Salvage
What is the legal regime governing salvage and general average?
The Netherlands is a party to the International Convention on Salvage 1989, which has been incorporated into the Civil Code. Under Article 8:563(3) of the Civil Code, salvage remuneration is due exclusively from the shipowner. However, parties can agree otherwise. General average is partly regulated, including as regards definitions of:
the relevant parties for general average purposes;
time bars; and
provisions on the confirmation of the adjustment.
Regarding the adjustment, the York-Antwerp Rules 1994 and the Rhine Rules 1979 are incorporated in Articles 8:613 and 8:1022 of the Civil Code. However, parties may agree to apply other adjustment rules in a contract of carriage.
Places of refuge
What framework governs access to places of refuge for ships in distress?
The Netherlands is party to the United Nations Convention on the Law of the Sea (UNCLOS). All UNCLOS members are bound to follow the International Maritime Organisation regulations for places of refuge and the EU Operational Guidelines on Places of Refuge.
Wreck removal
What rules and procedures apply to the removal of wrecks in your jurisdiction?
The Netherlands is a party to the Nairobi International Convention on the Removal of Wrecks 2007, which was transposed into Dutch law by the Maritime Accident Response Act. The act applies to wrecked seagoing vessels (and lost cargo) located in the Dutch exclusive economic zone and inland waters. The Wrecks Act applies in Dutch territorial waters to the removal of wrecks and lost cargo and also covers wrecked inland waterway vessels.
Under what circumstances can the authorities order removal of wreckage?
The Maritime Accident Response Act gives the state authority to order the registered owner of a seagoing vessel that is wrecked or stranded in the Dutch exclusive economic zone or inland waters and that causes danger to shipping to remove the vessel or have the vessel removed. When determining whether a wreck poses a hazard, the act refers to Article 6 of the Nairobi Convention (EHP Brans and HJSM Langbroek, “Het Wrakkenverdrag en de Wet bestrijding maritieme ongevallen van opruimplicht tot kostenverhaal. Een analyse”, TVR, 2016/3, p 70). Under the Wrecks Act, Dutch authorities have the authority to:
declare that a wreck falls under the act;
remove such a wreck; and
recover the costs from the parties concerned or from the salvaged wreck or cargo revenues..
Marine security
Legal regime
What regime governs the imposition of security measures on ships and in port facilities?
The Netherlands is a party to the International Convention for the Safety of Life at Sea, which contains a regulation regarding both a ship’s crew and passengers. The Netherlands is also a party to the EU International Ship and Port Facility Code. The code includes provisions covering the governance of port security.
Security officers
What rules apply to the qualification and conduct of security officers on ships and in port facilities? Are armed guards allowed on ships?
The Dutch government is in the process of implementing legislation regarding the protection of Dutch ships, which will provide rules on when and under what conditions shipowners can allow armed guards onboard a ship.
Security information
What rules govern the provision of security information to port authorities?
The International Ship and Port Facility Code sets out a minimum standard which governments, port authorities and shipowners must comply with to maintain security, which also covers the exchange of information.
Insurance
Mandatory coverage
What maritime risks must be covered under the law and what is the mandatory level of coverage?
Pursuant to the Nairobi International Convention on the Removal of Wrecks 2007, wreck removal coverage must be obtained for ships in excess of 300 gross tonnes. The Bunker Oil Pollution Convention 2001 and Article 8:645 of the Civil Code require ships in excess of 1,000 gross tonnes to have insurance or other financial security to cover the risk of bunker oil pollution. For ships carrying more than 2,000 tonnes of oil in bulk as cargo, the coverage requirement is based on the implemented Convention on Civil Liability for Oil Pollution and Damage 1992.
Insurance or other financial security for wreck removal and bunker oil pollution should cover the liability of the registered owner for damage in an amount equal to the limits of liability under the London Convention on the Limitation of Liability for Maritime Claims (LLMC). The Convention on Civil Liability for Oil Pollution and Damage provides limits for the transport of oil. These requirements also apply to foreign-flagged ships calling at Dutch ports.
Further, based on EU Directive 2009/20/EC, the owner of a Dutch-flagged seagoing vessel or a visiting foreign-flagged vessel with a gross registered tonnage of 300 or above must have indemnity insurance covering maritime claims subject to limitation under the London Convention on the Limitation of Liability for Maritime Claims. Claims for general average, salvage and oil pollution within the meaning of the Convention on Civil Liability for Oil Pollution and Damage are excluded.
Pursuant to the EU Passenger Liability Regulation (392/2009), a ship that is licensed to carry more than 12 passengers should have coverage for its liability in respect of the death of or personal injury to passengers. The limit of compulsory insurance or other financial security is at least 250,000 special drawing rights per passenger.
Insurable risks and ships
What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?
The general provisions for insurance agreements also apply to marine insurance agreements. Dutch law does not provide for a separate marine insurance regime. As not all provisions are mandatory, parties may agree to apply other rules in insurance contracts.
Other risks covered by marine insurance contracts include:
hull and machinery damage;
protection and indemnity;
general average;
salvage;
cargo interest;
collision; and
war.
Subrogation rights
What is the legal regime governing marine insurers’ subrogation rights?
If an insurance contract is subject to Dutch law, the insured’s claims for compensation against third parties on account of a loss suffered, other than a loss derived from an insurance agreement, will pass by means of subrogation to the insurer to the extent that the insurer has compensated that loss, regardless of whether a legal obligation exists (Article 7:962 of the Civil Code).
Jurisdiction and dispute resolution
Competent courts
What courts are empowered to hear maritime cases in your jurisdiction?
As of 1 January 2017 the District Court of Rotterdam is the exclusive court of competent jurisdiction for cases involving maritime law in the Netherlands. However, the court has refused to accept jurisdiction in a case of an international choice of forum clause for the District Court of Amsterdam and referred the matter to Amsterdam.
Exclusive jurisdiction and arbitration clauses
Under what conditions will exclusive jurisdiction and arbitration clauses in shipping contracts be held as valid?
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 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 which 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.
Arbitration clauses are recognised according to the requirements of the New York Arbitration Convention 1958 and the extensive rules on arbitration in Book 4 of the Code of Civil Procedure.
Maritime arbitration
What is the general state and prevalence of maritime arbitration in your jurisdiction?
The Transport and Maritime Arbitration Rotterdam-Amsterdam institute is the leading arbitration platform in the Netherlands for all transport and maritime disputes.
The Dutch legal framework for arbitration is straightforward and user friendly. Dutch law provides a useful complementary legal mechanism to ensure that arbitration in the Netherlands results in fast and enforceable awards. The Netherlands hosts many international courts and tribunals, including:
the International Court of Justice;
the Permanent Court of Arbitration;
the International Criminal Court; and
many specialised arbitration institutes.
The Netherlands has highly qualified personnel to administer and conduct arbitral proceedings and a great infrastructure to host them.
Recognition and enforcement
What regimes govern the recognition and enforcement of foreign judgments and arbitral awards?
Foreign judgments
Judgments from EU member states and Lugano Convention signatory countries are recognised and enforced in accordance with:
the recast EU Brussels I Regulation (1215/2012); and
the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
Pursuant to the recast EU Brussels I Regulation, all judgments from EU member states must, in principle, be recognised without any special procedure in other EU member states. Thus, the courts cannot review the substance of foreign judgments.
If there is no treaty between the Netherlands and the state in which the judgment was made, the dispute between the parties can be dealt with again by the Dutch courts (Article 431 of the Code of Civil Procedure). However, in practice, foreign judgments will generally be recognised and enforced without going into the merits of the case if such judgment meets the following minimum requirements:
the foreign court had jurisdiction on an internationally respected basis;
the foreign judgment is a final and binding judgment in the state where the judgment was delivered; and
the foreign judgment does not conflict with Dutch public order and the principles of a fair trial.
Arbitral awards
Arbitral awards can be recognised and enforced under the New York Convention 1958, to which the Netherlands is a party. An award will generally be recognised by the court in the exequatur procedure. An award will not be recognised only in exceptional cases (eg, the absence of a valid arbitration agreement between parties or when recognition is against the public order).
Авторы: Jolien Kruit, Leendert van Hee, Vincent Pool, Olivier Böhmer
Источник: https://www.lexology.com/library/detail.aspx?g=029d20b9-3642-4bf7-bdf1-327083fea6a2&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-07-16&utm_term