Frits Hommersom met groene bril

Clarification regarding circle of liable parties in collision situations

In collision law (Article 8: 1004 of the Civil Code) liability for damage only exists if the damage is caused by the fault of a ship. The Dutch regulation designates the owner of the at fault inland vessel as a centrally liable figure.

When a ship is at fault, the owner is therefore liable, not in the form of strict liability, but in the form of qualitative liability. The court then had to flesh out the concept of fault of a ship.

This was done (in part) in the judgment HR 30 November 2001, ECLI:NL:HR:2001:AD3922 (Casuele/De Toekomst). Click HERE for the link to this judgment.

There it was determined with respect to the categories for which the owner would be liable (a) a fault of a person for which the owner of the ship is liable according to articles 6: 169-6: 171 of the Dutch Civil Code) or (b) a fault of a person or persons who perform or have performed work for the benefit of the ship or the cargo, committed in the performance of their duties, (c) the realization of a special danger to persons or property created by the fact that the ship did not comply with the requirements which one could set for it in the given circumstances.

The proceedings discussed in this article concerned the defense on the part of the lessor’s liability insurer (NN) that, as a lessor of pleasure boats, it did not belong to the group of liable parties as determined by the Supreme Court in the aforementioned judgment when interpreting the concept of fault of a ship.

In the judgment rendered on 18 August 2020 the Court of Appeal of Arnhem – Leeuwarden ruled in paragraphs 5.3.6 and 5.3.7 that in the event of a collision caused by an error attributable to the mate it is not important whether the shipowner himself made the error that led to the collision, or whether he has control over the mate, or whether the mate falls within the circle of persons for whose conduct the shipowner is liable pursuant to Articles 6:169 through 6:171 of the DCC.

Also if the owner has chartered out the ship without a skipper or crew….., the qualitative liability of the owner for collision damage remains intact vis-à-vis third parties.

Next, the Court of Appeal considered that the limited interpretation which Bootsma gives to the Casuele/De Toekomst judgment with regard to the categories for which the owner would be liable (a) a fault of a person for which the owner of the ship is liable under Articles 6: 169-6:171 of the Dutch Civil Code) or (b) a fault of a person or persons who perform or have performed work for the benefit of the ship or the cargo, committed in the performance of their duties, is based on an incorrect reading of that judgment.

An important clarification by this judgment, especially for the insurance practice, where all too often damage is caused with rental ships and the actual mate does not leave any details or, as in the present case, simply denies that he has steered the ship.

For the practice in dealing with damage cases the second part of paragraph 5.3.6 is interesting in which the Court of Appeal indicates that there is no impediment for the person who suffers damage to actually sue the person to whose fault the collision damage is attributable or the person who is liable for that person’s conduct pursuant to Sections 6: 169 up to and including 6: 171 of the BW.

It is therefore very important, in the event of collision damage, to also request the name and address of the actual mate at the time of the collision under all circumstances!

ECLI:NL:GHARL:2020:6480 Gerechtshof Arnhem-Leeuwarden, 18-08-2020, 200.253.052/01

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Frits Hommersom met groene bril

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