Netherlands Antilles welcomes new civil code

ON 1 January, 2001, a new civil code was introduced in the Netherlands Antilles, resulting in modernisation and unification of the old civil code and part of the commercial code. Below are some of the most significant changes that have occurred in Netherlands Antilles maritime law.

Incorporation of international conventions in local laws

The introduction of the new civil code has been warmly welcomed, particularly by those involved in international trade. The Caribbean islands are partly dependent on the profits and benefits of international trade and will therefore benefit from the new legislation.

Modelled on the Dutch Civil Code, the new code incorporates the texts of certain international conventions to which the Netherlands Antilles is, or will be, a party. As such, the Netherlands Antilles has been brought indirectly within the scope of application of the various conventions. Until the Netherlands Antilles actually accedes to these international conventions, the new civil code is clearly a step forward in the efforts of the Netherlands Antilles to adapt its administration of justice to the generally accepted norms in the international shipping community.

The new Civil Code provides the maritime community in the Netherlands Antilles and abroad with a clear overview of laws developed during many years of international trade.

London Convention of 1976 on Limitation of Liability for Maritime Claims

The former laws whereby shipowners could not limit their liability for damages caused by collision with state-owned bridges, docks and other harbour facilities have been deleted. Although the old legislation was drafted in conformity with the London Convention of 1976, the above-mentioned exemption was made to protect the interest of the state and to safeguard the presence of cultural heritage sites such as the Queen Emma bridge and other harbour facilities surrounding the entrance to Curaçao harbour. This peculiarity prevented the Netherlands Antilles from being able to accede to the London Convention of 1976. As years have passed, it has become apparent that collisions of vessels with harbour facilities in Curaçao seldom occur, due to the competent assistance of tugboats and pilots, which is obligatory for most vessels which wish to enter the harbour.

Hague Visby Rules

The Hague Visby Rules do not yet apply in the Netherlands Antilles. However, Chapter 2 of Book 8 of the new civil code, which deals with contracts of the carriage of goods by sea, incorporates a translation of large parts of the Hague Visby Rules.

York-Antwerp Rules

The York-Antwerp Rules have been incorporated in the new civil code to regulate calculation of compensation in case of general average. Section 613 of Book 8 refers to the standard conditions as drafted by the Comite Maritime International and applies the English text where applicable.

Salvage Convention of 1989

Most of the rules contained in the new civil code with respect to salvage have been copied from the Salvage Convention of 1989.

Combined transport

The former law regulated the transportation of goods as if all goods were moved either by vessel, air or truck only. The shipper or forwarding agent should in fact enter into various agreements to cover the different types of transportation in a combined carriage. As this was not workable, combined transportation was mainly regulated by contract. With the introduction of the new civil code, the position and liabilities of the carriers of combined transportation are clearly laid down, leaving untouched the standard CT-documents which have already been developed into daily practice.

Maritime liens

In the new civil code, the following claims have been given similar effect as the maritime liens in English law: executions cost, crew wages, salvage and general average, tug and harbour dues, collision and shiprepair. These claims follow a vessel, despite a private sale. For example, a crew member who has served on a vessel and is owed wages can arrest a vessel even if the vessel has already been sold and is now owned by a third party. Of course, this privilege can only be enforced in the Netherlands Antilles if the law governing the claim recognises a similar preference. Under Netherlands Antilles law, the preference of a claim and its attachment to the vessel have a short life of only one year. In any event, they cease to exist together with the claim itself.

With respect to the sort of claims that have been awarded special preference, the Netherlands Antilles deviated somewhat from Dutch legislation, mainly to protect local port authorities and shiprepairers. In the new civil code, a claim for harbour dues has been given the same priority as it had under the former Netherlands Antilles law. Furthermore, whether by design or not, the legislator extended the duration of the preference of harbour dues by one year. This preference and the lien would under the old laws cease to exist after the vessel commenced a new voyage. In light of the fact that harbour dues are being settled before the mortgage in case of a judicial sale of a vessel, the Netherlands Antilles port authorities are more co-operative in the event of the execution of a vessel than their Dutch colleagues. The lien for ship repairs is new.

Private international law

The Netherlands Antilles rules with respect to private international law have not yet been regulated centrally in the new civil code. On August 1, 1993, the Rome Convention on the Law Applicable to Contractual Obligations of 1980 came into force in the Netherlands Antilles. With respect to conflict of law, the law governing an international legal relationship is determined according to the principle of closest connection. The parties to a contract are, some exemptions excluded, free to select a law of their own choice. If they have not selected a law, a contract of carriage of goods is presumed to have the closest connection with the country where the carrier has its principle place of business at the time the contract is concluded, if that country is also the country of loading or the port of discharge. This concept remains unchanged in the new code.

The new civil code provides the maritime community in the Netherlands Antilles and elsewhere with a clear overview of laws developed during many years of international trade. The most significant changes concern the possibility to limit liability, and collisions with state-owned harbour facilities. Furthermore, shiprepairers are now better protected against shipowners having their vessel repaired shortly before a sale in order to obtain a higher purchase price and leaving the invoices of the shiprepairer unpaid. However, as large parts of the new civil code are in fact international laws which have already been developed into daily practice, the Netherlands Antilles new maritime law is not expected to cause waves within the international shipping community.