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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

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