A question of identity

THE Hague Visby Rules are incorporated in Dutch law. The modernisation of Dutch civil law in the early 1990s had consequences for jurisprudence with regard to the carriage of goods carried under a bill of lading.

The identification of the carrier is ascertained by either the party who signed the bill of lading, or the party whose bill of lading form was used. It therefore frequently occurs that a charterer's bill of lading form is used, which is signed by, or on behalf of, the master. In such a case, both the charterer and the owner are considered to be the carrier and consequently, a claim may be pursued against both. The “identity of carrier” clause became more or less obsolete.

Forum shopping, by way of a jurisdiction clause, was also restricted.
A clause establishing jurisdiction in "the principal place of business" is not acceptable in Dutch courts if this principal place is not clearly indicated on the bill of lading. A jurisdiction clause naming a specific court and applicable law is acceptable, provided the named court is in the country where the carrier is established.

In the new transport law, an odd article in Book 8 of the Dutch civil code was introduced stating that the ultimate object for the recovery of a claim is the vessel. During the discussions between the minister of justice and the members of parliament, this article either passed by without being noticed, or the lawmakers did not understand the implications it could have.

In the container world, an owner charters its vessel to a line operator and carries containers between various ports, whereby a multitude of different bills of lading are issued. The owner is not aware which party issues the bill of lading. The inevitable happened quickly.

A cargo receiver claimed damages against the issuer of a bill of lading who was a NVOCC in the Far East. The NVOCC probably believed itself to be untouchable, although it was the carrier according to the clauses in the bill of lading, and did not take any action when a writ of summons was served, nor when it was notified about a judgement in default rendered by the Rotterdam court.

An action was initiated by cargo interests against the owner of the vessel to enforce the judgement. Money-wise, the case was not important, but a major P&I club understood the dangerous implications and supported the legal battle. The district court in Rotterdam ruled in favour of the owner, the court of appeal at The Hague reversed the judgement and finally, the supreme court decided in favour of the owner again, basically because the subject article was contrary to an international treaty, which overrules national law.