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PORT LEGAL<br />
ISSUES<br />
TEXT: ERNST BULTHUIS<br />
Kilograms or<br />
packages?<br />
Limitation of liability is commonplace<br />
in international cargo transport.<br />
But what does the term mean<br />
exactly? When goods are damaged<br />
during transport, the carrier is<br />
liable to pay compensation.<br />
This liability is relatively easily adopted.<br />
Carriers have the primary obligation to deliver<br />
goods in the same condition in which they<br />
received them. If they do not, they basically<br />
have to accept liability, except in cases of<br />
force majeure. This liability is legally limited,<br />
as carriers often do not know the value of the<br />
goods, and this value is often disproportionate<br />
to the worth of the carriers’ service (i.e. the<br />
freight fee). Moreover, to ensure that the transportation<br />
of goods remains insurable, there<br />
are global liability limits. This also encourages<br />
those with a stake in the cargo to insure their<br />
own goods at full value.<br />
The above limits do not apply if carriers lose<br />
or damage a product intentionally or with<br />
recklessness bordering on intentional. In<br />
these cases, they must pay the full damages.<br />
However, it is difficult to prove such gross negligence:<br />
it must be almost entirely clear that<br />
the carrier understood that its conduct would<br />
cause damage.<br />
Difficulties<br />
If carriers wish to avoid liability, they must<br />
demonstrate force majeure: another difficult<br />
hurdle in the Dutch system. They must prove<br />
that they have done everything possible to<br />
prevent damage. This is complicated given<br />
that almost any contract of carriage could<br />
have been executed slightly better, and that<br />
damage could thereby potentially have been<br />
prevented. In other words, the Dutch polder<br />
model has also penetrated into this area.<br />
Intent on the one hand and force majeure<br />
on the other are difficult to prove, so, in<br />
short, if something goes wrong, the carrier<br />
will almost always be found to have limited<br />
liability.<br />
This limitation is calculated in different<br />
ways. In maritime law, specifically referring<br />
to transport under a bill of lading, the weight<br />
or number of goods is decisive. The limits are<br />
around €2.20 per kilogram and €750 per packaging<br />
unit, whichever is higher. For instance, if<br />
the carriage concerns one unit (bag) weighing<br />
a thousand kilograms, the limit is €2,200 (since<br />
going by one unit (package) would result in<br />
only €750). The item or package limitation is<br />
particularly interesting in case of breakbulk<br />
transport. How do we define a package? If a<br />
container (one package) contains eight hundred<br />
boxes of goods (eight hundred packages),<br />
what rule applies?<br />
As so often, the answer is given by the transport<br />
documentation. If the waybill indicates<br />
that there are six pallets (six packages) in<br />
the container (one package) with a total of<br />
eight hundred boxes of packaged goods (800<br />
packages), the latter is considered the criterion<br />
for calculating the limited liability. In short, the<br />
key variable is the packaging unit of the product<br />
which is defined as such in the transport<br />
document.<br />
MR. ERNST<br />
BULTHUIS<br />
is maritiem advocaat<br />
en partner bij<br />
ROHE Advocaten in<br />
Amsterdam.<br />
If things are not<br />
clear, the involved<br />
parties may<br />
be on thin ice<br />
If things are not clear, the involved parties may<br />
be on thin ice. This may be negated by using<br />
the kilogram limit (given that the highest<br />
amount applies), but if this is not possible (for<br />
example, when the goods are quite light) the<br />
carrier could get away relatively unscathed<br />
with the smaller packages, namely the container<br />
or pallets. The risk can be easily prevented<br />
by being clear about the actual packaging unit<br />
and the number thereof, preventing uncertainty.<br />
After all, it will soon be spring, and there<br />
is no need for any ice, however thin.<br />
The contents of this article are to derive any rights.<br />
To submit a comment, please e-mail with:<br />
ernst@roheadvocaten.nl.<br />
<strong>AMSTERDAM</strong> SEAPORTS 2016 49