HDI-Gerling v APM Terminals: Difference between revisions
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“HDI et al say that the Pretoria had been loaded many times before without damage being caused. The shipowner presented his vessel at APM’s quay to be loaded with containers by a crane. The manner of loading was usual. HDI et al ackowledge that loading operations at a terminal are risk inherent and should be carried out in a proper and careful manner. By presenting its vessel to APM for loading and discharging operations, the shipowner must be deemed to have taken note of these risks. | “HDI et al say that the Pretoria had been loaded many times before without damage being caused. The shipowner presented his vessel at APM’s quay to be loaded with containers by a crane. The manner of loading was usual. HDI et al ackowledge that loading operations at a terminal are risk inherent and should be carried out in a proper and careful manner. By presenting its vessel to APM for loading and discharging operations, the shipowner must be deemed to have taken note of these risks. | ||
In these circumstances and considering the legal framework, there is no reason to find that APM is liable for damage caused to the vessel during the loading unless it can be said that APM or its subordinates | In these circumstances and considering the legal framework, there is no reason to find that APM is liable for damage caused to the vessel during the loading unless it can be said that APM or its subordinates failed to carry out the operations in the careful manner that could reasonably be required of it. See Dutch Supreme Court 1953, NJ 1953, 791 “Nicolaos Patras” and Court of Rotterdam 19 August 2009, LJN: BJ5767 “Allegonda”. | ||
In this case, no facts have been proven that can lead to the conclusion that APM or its subordinates failed to exercise the reasonably required care. HDI’s claim is therefore dismissed.” | In this case, no facts have been proven that can lead to the conclusion that APM or its subordinates failed to exercise the reasonably required care. HDI’s claim is therefore dismissed.” | ||
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In the “Nicolas Pateras” case, a claim was raised in respect of damages which were inherent to the method of discharging bulk carriers. When discharging bulk carriers, certain damages are inevitable and this risk is accepted by the Owners of such vessels. It does not follow that the same risks are accepted by Owners of purpose built container vessels whose vessels are loaded or discharged with purpose built container cranes and spreaders. The application of the “Niclolas Pateras” test in the “Pretoria” seems, therefore, inappropriate. | In the “Nicolas Pateras” case, a claim was raised in respect of damages which were inherent to the method of discharging bulk carriers. When discharging bulk carriers, certain damages are inevitable and this risk is accepted by the Owners of such vessels. It does not follow that the same risks are accepted by Owners of purpose built container vessels whose vessels are loaded or discharged with purpose built container cranes and spreaders. The application of the “Niclolas Pateras” test in the “Pretoria” seems, therefore, inappropriate. | ||
Further, in the case of the “Pretoria”, the Court of Rotterdam did not apply the rule that was formulated by the Court of Appeal of The Hague in | Further, in the case of the “Pretoria”, the Court of Rotterdam did not apply the rule that was formulated by the Court of Appeal of The Hague in its judgment of 17 December 1991 (SES 1992/64) regarding the “Puffy”. That case concerned damage caused to the hold of a bulk carrier during discharging with a large grab. In that case, the burden was placed on the stevedores to prove that, when using the chosen method of discharging and exercising normal care during the discharging activities, it would be practically impossible to avoid causing damage to the Vessel. | ||
The “Allegonda” case (referred to above) was also a case in which the stevedores were held not liable for damage that the vessel (albeit not a purpose-built container vessel) sustained when containers were being loaded into | The “Allegonda” case (referred to above) was also a case in which the stevedores were held not liable for damage that the vessel (albeit not a purpose-built container vessel) sustained when containers were being loaded into it with the use of a container spreader. | ||
From the “Pretoria” and the “Allegonda” cases, it would appear that the Court of Rotterdam has recently started to apply a policy that makes it more difficult for Owners to recover damages caused to their vessels by stevedores during cargo operations. | From the “Pretoria” and the “Allegonda” cases, it would appear that the Court of Rotterdam has recently started to apply a policy that makes it more difficult for Owners to recover damages caused to their vessels by stevedores during cargo operations. | ||
Latest revision as of 08:30, 27 May 2011
DMC/SandT/11/16
The Netherlands
HDI-Gerling Industrie Versicherung AG et al v APM Terminals Rotterdam B.V. The ‘Pretoria’
Court of Rotterdam: Ms P.A.M van Schouwenburg –Laan, LJN:BO0063, September 29, 2010
Mr N.H. Margetson for HDI-Gerling Industrie Versicherung AG et al
Mr O.E. Meijer for APM Terminals Rotterdam B.V.
STEVEDORE DAMAGE TO VESSEL DURING LOADING: WHETHER STEVEDORES LIABLE FOR THE DAMAGE CAUSED UNDER DUTCH LAW: BURDEN OF PROOF
Summary
When a stevedore damages a vessel during loading activities, this does not necessarily constitute an illegal act (delict) that obliges the stevedore to compensate the shipowners for the damage. Damage caused to a vessel by a stevedore will only be deemed to have been unlawfully caused if actual, concrete facts are proven which show that the stevedore or its employees have not exercised the care that can reasonably be required of them when they load a vessel.
Case note contributed by Elisabeth Naaykens, Advocaat in the Rotterdam law office of Hampe Meyjes Advocaten.
Facts
The inland waterway barge “Pretoria” was being loaded by the stevedores APM Terminals Rotterdam B.V. (“APM”) in Rotterdam in December 2007 with the use of a mobile crane and a container spreader. This particular means of loading was considered to be a usual way of loading containers in Rotterdam. During the loading operations, the spreader caught behind a container door, causing the spreader to swing and hook under the barge’s bridge house. When the spreader was raised, the roof was partly lifted off the bridge house and damage was caused. The shipowner and the subrogated underwriter HDI-Gerling Industrustie Versicherung AG (“HDI”) sued APM for damages. Dutch law applied. The basis of their claim was art. 6:162 Dutch Civil Code (“DCC”). That article provides:
162.1 The person that commits an unlawful act that can be attributed to him against a third person is obliged to compensate that person for the damages that he suffers due to that illegal act.
162.2 An illegal act is an encroachment upon a right and an act or omission contrary to a legal obligation or to that which is, according to unwritten law, acceptable in social interaction, all subject to the existence of a ground for justification.
162.3. An unlawful act can be attributed to the person that commits it if it is caused by his fault or by an occurrence which, by law or generally accepted opinion, is for his account.
Judgment
The Court of Rotterdam held that the mere fact that damage was caused to the vessel during loading operations does not justify the conclusion that an unlawful act has been commited. It said: “HDI et al say that the Pretoria had been loaded many times before without damage being caused. The shipowner presented his vessel at APM’s quay to be loaded with containers by a crane. The manner of loading was usual. HDI et al ackowledge that loading operations at a terminal are risk inherent and should be carried out in a proper and careful manner. By presenting its vessel to APM for loading and discharging operations, the shipowner must be deemed to have taken note of these risks.
In these circumstances and considering the legal framework, there is no reason to find that APM is liable for damage caused to the vessel during the loading unless it can be said that APM or its subordinates failed to carry out the operations in the careful manner that could reasonably be required of it. See Dutch Supreme Court 1953, NJ 1953, 791 “Nicolaos Patras” and Court of Rotterdam 19 August 2009, LJN: BJ5767 “Allegonda”.
In this case, no facts have been proven that can lead to the conclusion that APM or its subordinates failed to exercise the reasonably required care. HDI’s claim is therefore dismissed.”
Comment
In the “Nicolas Pateras” case, a claim was raised in respect of damages which were inherent to the method of discharging bulk carriers. When discharging bulk carriers, certain damages are inevitable and this risk is accepted by the Owners of such vessels. It does not follow that the same risks are accepted by Owners of purpose built container vessels whose vessels are loaded or discharged with purpose built container cranes and spreaders. The application of the “Niclolas Pateras” test in the “Pretoria” seems, therefore, inappropriate.
Further, in the case of the “Pretoria”, the Court of Rotterdam did not apply the rule that was formulated by the Court of Appeal of The Hague in its judgment of 17 December 1991 (SES 1992/64) regarding the “Puffy”. That case concerned damage caused to the hold of a bulk carrier during discharging with a large grab. In that case, the burden was placed on the stevedores to prove that, when using the chosen method of discharging and exercising normal care during the discharging activities, it would be practically impossible to avoid causing damage to the Vessel.
The “Allegonda” case (referred to above) was also a case in which the stevedores were held not liable for damage that the vessel (albeit not a purpose-built container vessel) sustained when containers were being loaded into it with the use of a container spreader.
From the “Pretoria” and the “Allegonda” cases, it would appear that the Court of Rotterdam has recently started to apply a policy that makes it more difficult for Owners to recover damages caused to their vessels by stevedores during cargo operations.
From the Editor
From the point of view of an English common lawyer, these decisions are difficult to understand. In an English court, in circumstances where a stevedore lifts off the deck housing of the vessel in the course of cargo operations, there would be presumption of actionable negligence, which the stevedore would have the burden of disproving. A careful stevedore does not cause damage of that type in the normal course of events.
