Antwerp court ruling provides food for thought

Over the years the courts have developed a set of criteria to be met by, for example, logistic services providers to enforce the provisions of such general conditions. And on September 29, 1989, these criteria were clearly formulated in a judgement by the Belgium Court of Cassation. According to this judgement, the logistic services provider must prove that the party for whom the service was provided has accepted the general conditions. However, these criteria almost always constituted too big a hurdle.

Another form of proof consists of convincing the courts that the general conditions are a local custom. This is precisely what has happened with the general conditions of the RUPLS (KVBG). In November 1995, the Court of Appeal in Antwerp decided that a contract not only creates obligations which are expressly stipulated, but also imposes upon the parties the obligations generated by a particular type of contract.

The Court of Appeal then confirmed that customary stipulations - rules which are generally considered applicable to a given type of contract, so that the parties cannot be unaware of them when they are not expressly excluded - are to be considered as implicitly included in the contract. The court then said that the general conditions of the RUPLS (KVBG) are in the port of Antwerp customary stipulations between companies which have established their business in Antwerp.

Strangely enough, the Court of Appeal formulated additional criteria and came to the conclusion that the time?bar provision in the general conditions did not apply. This judgement, rendered by the specialised maritime chamber of the Court of Appeal, came as a surprise as the first part of the judgement appears to contradict the second part.

On December 9, 1999, the Court of Cassation decided that, when a court of appeal attributes to a set of general conditions the status of a local custom, it must apply these customary stipulations in a conflict between locally established companies. Since most users of the port of Antwerp are either directly or indirectly (through agents) established in the port area, the general conditions of the RUPLS (KVBG) will govern most activities within the port.

The main provisions include:

• The logistic services provider is not liable for force majeure and other circumstances described in various sections of the conditions; its liability is limited to 8.33 Special Drawing Rights per kilo, with a maximum amount of 25,000 euro for each occurrence; the liability for late execution is limited to 750 euro for each occurrence.
• The principal is liable for all loss caused by persons and/or agents who the logistic services provider has to admit to its premises; the principal must insure its goods against fire and associated risks, including waiver of recourse against the logistic services provider and all other third parties.
• All claims are time-barred after one year.
• The logistic services provider may retain goods for all unpaid services it has provided, including amounts payable by way of cash-on-delivery instructions.

The latest version of the general conditions came into effect on January 1, 2000, that is after the Court of Cassation judgment. This gives food for thought.