NETHERLANDS Law and Practice Contributed by: Rik van Waasbergen, Sander Metzelaar, Wiebe Wajer, Iris Stielstra and Daan Komen, HerikLegal
4.2 Title to Sue on a Bill of Lading Pursuant to Article 8:441 of the DCC, only the lawful holder of the bill of lading has title to sue the carrier under the bill of lading for cargo damages. 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages If it concerns transport under a bill of lading or similar document of title, or if the HVR have been declared applicable to the contract of carriage, the liability of the ocean carrier is governed by the HVR. Therefore, in such cases the liability is, in principle, limited to 2 Special Drawing Rights (SDR)/kg or 667 SDR/pack - age. If it does not concern transport under a bill of lading, the liability of the ocean carrier is governed by the contractual liability regime. In such cases, freedom of contract applies. 4.4 Misdeclaration of Cargo Under Dutch law, a carrier may in principle establish a claim against the shipper for misdeclaration of cargo. Such claims are expressly recognised in Article 8:394 (1) of the DCC and Article 3 (5) of the HVR. Under these provisions, the shipper is obliged to provide the carrier, in due time, with all information concerning the goods and their handling, which the shipper knows or ought to know to be of importance to the carrier. The shipper must in principle indemnify the carrier for all loss, damage and expenses resulting from inaccura - cies in those particulars. These rules are of particular relevance to the carriage of dangerous goods. Dutch law applies this duty to inform using objective standards. A freight forwarder acting as shipper is expected to possess the knowledge of a reasonably diligent cargo-interested party. The information does not necessarily have to be included in a transport document. in certain cases, oral notification may suf - fice. The shipper must ensure the correctness of the cargo particulars at the time the goods are taken into the carrier’s charge. Recent case law has reaffirmed these principles. In an appeal between cargo insurers, acting as subrogated claimants, and a carrier, before the Hague Court of Appeal, the court confirmed that, save in special cir -
cumstances, a carrier is entitled to rely on the accuracy of the cargo description provided by the shipper ( Hof Den Haag , 21-09-2021, ECLI:NL:GHDHA:2021:2872, S&S 2022/33). This judgment confirms that, save in special circumstances, a carrier is entitled to rely on the cargo description provided by the shipper, thereby reflecting the principle laid down in Article 8:394 (2) of the DCC. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo The time bar for cargo claims is one year. In case of carriage under a bill of lading, the one-year time bar of the HVR cannot be interrupted but can only be extended by or on behalf of the carrier. In the case of carriage other than under a bill of lading, the time bar can, in principle, be interrupted unilaterally through a notice of liability in which the claimant explicitly pre - serves his or her right of recourse. 5. Maritime Liens and Ship Arrests 5.1 Ship Arrests The International Convention relating to the arrest of seagoing ships 1952 (the “Arrest Convention”) applies in the Dutch jurisdiction to the arrest of seagoing ves - sels flying the flag of a signatory of that convention. Pursuant to Article 10 of the Arrest Convention, the Netherlands has reserved the right not to apply the provisions of Article 1, subparagraphs (o) and (p) (dis - putes as to the title to or ownership of any vessel, and disputes between co-owners of any vessel as to the ownership or operation of the vessel, respectively). Instead, the Netherlands opted to apply Dutch law to such claims, and not to apply the sister-ship arrest provision of Article 3, subparagraph 1 of the Arrest Convention for claims set out in Article 1, subpara - graph (q) of the Arrest Convention (the mortgage or hypothecation of any ship). For arrests of seagoing vessels in respect of claims as per Article 1, subparagraphs (o)–(q) of the Arrest Convention on seagoing vessels flying the flag of a state that is not a party to the Arrest Convention, the Dutch national arrest regime of Book 3, Title 4 of the DCCP applies.
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