Recent maritime casualties have once again highlighted the relevance of global limitation of liability in shipping. An example is the oil spill caused by the BOW JUBAIL in the Port of Rotterdam in 2018. Other key examples include the ONE APUS that lost an estimated 1,800 containers in heavy weather conditions and the MAERSK ESSEN and MAERSK EINDHOVEN, that both also lost several hundred containers. The most recent example that received international media attention would however, be the EVER GIVEN, which ran aground in the Suez Canal and blocked north- and southbound traffic for several days resulting in severe delays.
In such large-scale maritime casualties, global limitation of liability can be used to the benefit of Owners and their P&I Clubs, also in the Netherlands. The Netherlands is one of the State Parties to the Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol (“LLMC/Protocol 1996”). The Netherlands has implemented the LLMC/Protocol 1996 in Articles 8:750 - 8:759 of the Dutch Civil Code. The provisions of the LLMC/Protocol 1996 may grant the Owners (and other parties) the right to limit their liability for certain specified claims by constituting one or more limitation funds if the relevant criteria are met. The quantum of the potential limitation fund(s) is calculated by taking into account the gross tonnage (GT) of the vessel involved in combination with the limits as provided for in the LLMC/Protocol 1996.
For further queries please contact Jan van der Stelt or Julian van de Velde.
The carrier of persons can limit its liability for claims in various ways. This can be per traveller, per piece of luggage or per event. The liability limit for death and injury of a passenger in passenger transport on inland waterways amounted to EUR 137,000 until 1 January 2021.
As of January 1, 2021, the liability limits for passenger transport on inland waterways have been significantly increased. Below we explain the reason for this change and new liability limits.
Changes to liability limits 2008 and 2014
From an international perspective, it is noticeable that the liability limits in transport law are under pressure. As a result, many liability limits have been raised in recent years.
Since 2008, a limit of EUR 1 million applied to national public road transport and tram transport and a limit of 175,000 SDR applied to national public rail transport (Article 8: 110 Dutch Civil Code). Since 2014, depending on the cause, a limit of 250,000 or 400,000 SDR has been applied in respect of passenger transport by sea (Articles 3 and 7 of the Athens Convention).
On the other hand, the liability limit for passenger transport on inland waterways applied as from 1 April 1991. This observation gave rise to the necessary discussion, both in case law and in the literature.
Judgment of the Supreme Court on the level of the liability limit
In the spring of 2018, the Supreme Court issued a judgment that calmed down the discussion about the level of liability limits in case law (Supreme Court 18 May 2018, S&S 2018, 85). The subject of the dispute was the possible breach of the applicable liability limit for passenger transport by inland waterways on the basis of the requirements of reasonableness and fairness.
The Supreme Court saw no scope for disregarding the liability limit on these grounds. The Supreme Court did recognise the issue and saw grounds to apply an inflation correction to the liability limit. Calculated from 1991 to the year of the accident, the Supreme Court considered an increase in the liability limit from EUR 137,000 to EUR 198,787.
Increased liability limit for passenger transport inland waterways
After the judgment of the Supreme Court, it finally came to the legislator to increase the liability limits in law. The law was amended and new liability limits apply from 1 January 2021. The legislator has found inspiration for the regulated levels in the CLNI 2012.
For passenger transport on inland waterways, the following changes apply:
- The liability limit for passenger transport on inland waterways (Article 8: 893 paragraph 1 Dutch Civil Code changes from EUR 137,000 to 400,000 SDR for death or injury of a passenger.
- The liability limit for passenger transport on inland waterways (Article 8: 893 paragraph 1 Dutch Civil Code) changes from EUR 1,000 to EUR 1,500 for delay of a traveller and in respect of loss, damage or delay of the traveller’s luggage.
- The liability limit for domestic public passenger transport (Article 8: 100 Dutch Civil Code) changes from EUR 137,000 to SDR 400,000 for the death and injury of a passenger.
- Further, the liability limit for passenger transport contracts that are not regulated elsewhere in Book 8 of the Dutch Civil Code changes from EUR 137,000 to 400,000 SDR for death and injury of a traveller.