This blog deals in a nutshell with the most important aspects of collision and allision caused by seagoing vessels and inland waterway vessels under Dutch maritime law. In particular, we take a look at the scope of the provisions on collision and some peculiarities associated with collision and allision. For the record, please note that collision and allision under Dutch law have for the most part been implemented from international conventions, being the “Brussels Collision Convention 1910” and the “Geneva Collision Convention 1960” respectively.
In Book 8, article 540 of the Dutch Civil Code (seagoing vessels) and Book 8, article 1001 of the DCC (inland waterway vessels), a “collision” is defined as follows: “there is a collision when ships touch each other.”. It is therefore fairly obvious that there is a collision if two or more ships physically come into contact with each other. It becomes more difficult when a ship causes damage without there having been any actual contact between ships. In that case, we speak of “allision” pursuant to art. 8:541 DCC and art. 8:1002 DCC. The provisions on collision apply accordingly in the case of allision. There are many examples of allision in Dutch case law. Think of damage to the hull of the passed ship caused by wash or water suction from the passing ship, or a fire that spreads from one ship to an adjacent ship.
In a ruling by the Hague Court of Appeal in the “Arna/Banglar Doot” case, where cockroaches from one ship soiled the other ship, it was held that i) first it should be assessed whether the damage was caused by the ship and ii) only then it should be assessed whether the collision/allision was caused by any‘fault by a ship’,which means that the question should be asked whether the owner of the ship is actually liable for the damage on the basis of art. 8:544 DCC or art. 8:1005 DCC.
The answer to the first question as to whether any damage was caused by the ship is not always obvious. Think of a pontoon (which is a “ship”, since it appears from its construction that it is intended to float in accordance with Book 8, article 1 of the Dutch Civil Code, and also see the definitions in Book 8, article 1000 of the Dutch Civil Code) that lies completely idle in an inland waterway and on which a loose dredging crane rides back and forth to perform dredging activities in the water, during which activities that crane unintentionally causes damage to an underwater gas pipeline. In the famous “Zwartemeer” ruling of the Dutch Supreme Court from 2007, this is what actually happened. In this ruling the Supreme Court held, among other things, that “Collision [allision, editor] within the meaning of Book 8, article 1002 of the Dutch Civil Code should be taken to mean causing the damage by a cause on board of an inland waterway vessel. That does not require that this cause can be reduced to a nautical fault.” In order to speak of allision, the ship itself therefore does not have to make the physical contact with the damaged property (also see the Supreme Court in the ‘E 2022’ ruling). What matters is that the damage-causing event originates from the ship. The damage caused to a gas pipeline by a dredging crane on a pontoon will therefore – as a rule – be damage caused by a vessel, and thus allision.
The answer to the second question as to whether and when there is a ‘fault by a ship’ has neither been provided for in the above-mentioned collision conventions, nor can it be found in Book 8 of the Dutch Civil Code. The legislator wanted to leave this to case law. In its famous ruling “Casuele/De Toekomst” from 2001, the Dutch Supreme Court held that there was a ‘fault by a ship’ if the damage is the result of: (a) a fault by a person for whom the owner of the ship is liable pursuant to Book 6, articles 169-171 of the Dutch Civil Code (i.e. liability for the behaviour of children, subordinates and non-subordinates) or (b) a fault by a person or by persons who have carried out work for the ship or the load (such as a stevedore) or (c) the manifestation of an extraordinary danger for persons or goods that arose because the ship did not meet the requirements that could be demanded under the given circumstances (therefore a faulty ship). By the way, the aforementioned points (a) through (c) are not a limited set of points for determining whether there is a ‘fault by a ship’ For the latter aspect see the ruling of the Arnhem-Leeuwarden Court of Appeal of 18 August 2020, ECLI:NL:GHARL:2020:6480.
If the laws of collision/allision applies, a number of peculiarities – compared to ordinary ‘dry’ civil law – will take effect that will have to be applied to the claim for compensation. We mention some of them: i) in the event of collision/allision, a shortened time bar of two years applies (see art. 8:1790 and art. 8:1793 DCC), instead of a five-year time bar arising from an “ordinary” tortious act (Book 3, article 310 of the Dutch Civil Code) and ii) in the event of collision/allision, there is in principle no legal presumption of fault. The burden of proof that there is a ‘fault by the ship’ therefore rests in principle with the injured party. In the case of an action arising from a tortious act (Book 6, article 162 of the Dutch Civil Code) there may be evidentiary presumptions in favour of the injured party, though. Furthermore, there will be iii) legal channeling of the liability of the owners of the ship pursuant to Book 8, articles 544 and 1005 of the Dutch Civil Code. In addition, iv) the owners may set up – under the umbrella of collision or allision – a limitation fund to limit its liability pursuant to Book 8, article 750 et seq. (seagoing vessels) and Book 8, article 1060 et seq. (inland waterway vessels); all this as implemented from the London Convention on Limitation of Liability for Maritime Claims (‘LLMC’) or the Strasbourg Convention on the Limitation of Liability in Inland Navigation 2012 (‘CLNI 2012’).
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