Anyone who visits the port every now and then will know them. Signs next to a gateway or along a quay pointing out 'entering this site is at your own risk' or, ‘the terminal is not liable for damage and / or injury ". It is obvious that such signs at least encourage vigilance. However, when for example during loading or unloading at a terminal a vessel or truck sustains damage the question rises whether the terminal by posting such signs can exclude its liability for such damage.

This question is particularly relevant because the owner of the truck or vessel usually does not have a contract with the terminal. The owner of the truck or vessel will in fact often be on the terminal in the performance of a contract between him and the cargo owner or charterer, and not with the terminal. The result is that when a truck or a vessel is damaged during loading or discharging, the owner of the truck or ship terminal cannot sue the terminal for breach of contractual duties, but can only sue on a tort basis. The owner cannot suffice with the mere assertion that for example a crane of the terminal has caused the damage, but he will have to prove that the terminal, or its staff, has acted unlawfully. For example because the crane operator was acting negligent.

If the owner of the truck or the vessel succeeds in proving that, the terminal will try to invoke the signs which are excluding his liability. From case law it is apparent that it is possible to exonerate by means of signs. However, there are a number of pitfalls that can prevent the terminal despite posting a sign to escape from liability.

From the perspective of the terminal, it is important when placing a sign to make sure that third parties (drivers / skippers) entering the terminal will always take good knowledge of the signs. In court the terminal would have to prove that the driver or the skipper ought to have taken notice of the sign. This was a factor of importance in the matter dealt with by judgment of the Court in Breda on 17 November 2010 (S&S 2011/51). The court ruled that the terminal cannot invoke a sign placed at the entrance of the premises, because this sign is not placed on the quay where vessels can dock and the skipper did not see the sign. When there is only one sign located at the street entrance of a site, a skipper, approaching the site from the waterside, can of course not see the sign. Therefore he cannot be bound by it. The same is true for a sign on which the text is too small to be able to read from a truck cab. This argument was raised by (the insurer) of a truck in the matter dealt with by the judgment of the Court of Rotterdam on 28 March 2014 (S & S 2015/7). In this matter however it was subsequently established that the sign has a size of 1 meter by 50 centimeters, so it could not easily be overlooked. When it is not proven that notice has been taken or ought to have been taken, a terminal cannot invoke the sign.

When the sign is sufficiently visible, and the driver or skipper then enters the site, this entering of the site can be understood as accepting the sign and thereby the exoneration pointed out at the sign. The next question is what the meaning is of the text on the sign. On February 25, 2014, the Court of Appeal of The Hague (S & S 2014/72) issued a judgment on this issue. The Court of Appeal ruled that when interpreting the text on a sign, it comes down to the meaning that under the circumstances may reasonably be attributed to the relevant notice. In other words, how would the driver or the skipper reasonably understand the text on the sign? As an incentive to be alert and vigilant, or as an exclusion of liability for certain damages? The law seems to be strict: the single statement that entering an area at your own risk is not sufficient to be understood as an exclusion of liability for damages (Rotterdam District Court July 9, 2014 S&S 2014/141). When the wording indeed excludes for damage to vehicles caused by the operations on the terminal, the terminal can rely upon the exclusion of liability (Rotterdam District Court March 28, 2014 S & S 2015/7).

Both the placement and the wording of a sign are essential elements if one wants a sign to have the desired effect. Terminals therefore should seek advice on these matters. However, one thing has to be taken into account: the employed driver or skipper is in general not authorized to represent his employer in agreeing upon liability exclusions. This therefore limits the optimal operation of signs which are excluding liability.