NETHERLANDS Law and Practice Contributed by: Rik van Waasbergen, Sander Metzelaar, Wiebe Wajer, Iris Stielstra and Daan Komen, HerikLegal
5.12 Damages in the Event of Wrongful Arrest of a Vessel As stated in 5.1 Ship Arrests , the arrestor will bear strict liability for damages caused by a wrongful arrest. The arrest is deemed wrongful if the owner of the arrested asset is not the debtor of the claim for which the arrest was made and/or none of the claims for which the arrest was made will be awarded in the proceedings on the merits between the claimant and the debtor against whom the arrest was made. 6. Passenger Claims 6.1 Laws and Conventions Applicable to the Resolution of Passenger Claims In the Netherlands, liability for the carriage of pas - sengers by sea in the event of accidents is primar - ily governed by Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (“EU Regulation 392/2009”), which incorporates the 1974 Athens Convention as amended by the 2002 Protocol (the “Athens Conven - tion”). The Regulation applies beyond purely interna - tional carriage and harmonises the passenger liability regime within the EU. In addition, Dutch domestic law applies, specifically Book 8 of the DCC, Title 5, Sec - tion 3. Actions for passenger death, personal injury, or lug - gage loss or damage are determined by the passen - ger liability regime of the Athens Convention and are subject to a two-year limitation period. This period generally runs from disembarkation, with specific rules for death cases and luggage claims. While national law governs suspension and interruption, claims are subject to absolute long-stop periods of five years from disembarkation or three years from the claim - ant’s knowledge, whichever expires first. The limita - tion period may be extended only by a written agree - ment or declaration after the claim has arisen. The Athens convention passenger liability regime determines the limitation of liabilities available to own- ers. The carrier’s liability for death or personal injury of a passenger is capped at 400,000 SDR per pas - senger per incident, including where compensation is
awarded as an annuity. States may set a national limit, provided it is not lower than this amount. For luggage and vehicles, liability is limited to 2,250 SDR for cabin luggage per passenger, 12,700 SDR per vehicle including its contents and 3,375 SDR for other luggage per passenger. The parties may agree on lim - ited deductibles within specified maximum amounts. The carrier and passenger may expressly agree in writing on higher liability limits than those set out for personal injury, luggage and vehicles. Statutory inter - est and legal costs are excluded from the applicable liability caps. The carrier loses the right to limit liability if the damage resulted from an act or omission com - mitted intentionally or recklessly with knowledge that such damage would probably result. The same loss of right to limitation applies to the carrier’s servants or agents if the damage was caused by their intentional or reckless conduct. Notwithstanding the foregoing, Article 5 of EU Regu - lation 392/2009 clarifies that the application of the Athens Passenger Liability Regime does not preju - dice the carrier’s right to limit liability under the LLMC 1976, as amended by the 1996 Protocol. Accordingly, passenger-specific liability limits apply alongside and do not exclude the possibility of global limitation of liability under the LLMC. Liability for the carriage of passengers by inland waterways in the event of accidents is governed by Dutch domestic law, specifically Book 8 of the DCC, Title 10, Section 3 for inland navigation, supplemented by general rules of obligations and Dutch civil proce - dural law governing matters such as evidence, limita - tion, interim measures and security. Lastly, EU Regulation No 1177/2010 governs the rights of passengers travelling by sea and by inland waterways. It focuses on passenger protection in cas - es of delay, cancellation and denied boarding, includ - ing rights to information, assistance and, in certain cases, compensation. The Regulation also contains specific provisions aimed at safeguarding the rights of persons with disabilities or reduced mobility and operates separately from the carrier’s liability regime for personal injury or death.
404 CHAMBERS.COM
Powered by FlippingBook