Legal news
Prestige problem The long-running and extremely expensive dispute between ABS and the Spanish Government takes another turn, while the Dutch Supreme court overturns the CMR limitation ruling. Plus: Maritime Labour Convention; Australian arbitration
T
held that Maat was fully liable pursuant to
tion society ABS in the latest round of
Dutch Supreme Court overturns CMR limitation ruling
litigation relating to the Prestige oil spill.
The Dutch Supreme Court has overturned the
of a lack of safety measures, which the court
The court upheld the findings of the district
decision of a Netherlands appeal court in ruling
qualified as “default considered equivalent
court, saying that while the Spanish government
that claimants cannot rely on Article 29 of the
to wilful misconduct” (“gross negligence”). In
had argued that ABS had a duty in tort in relation
CMR Convention to prove gross negligence on
2011, the Den Bosch Court of Appeal upheld
to its inspection of the Prestige, even if the
the part of defendants writes Annemieke Spijker,
this judgment.
duty was owed the “Plaintiff did not introduce
a lawyer with the Transport and Trade team at
evidence sufficient to create a genuine dispute of
AKD, Rotterdam.
he US Court of Appeals for the Second Circuit has found in favour of classifica-
In Dutch court proceedings in 2008, it was Article 29 of the CMR Convention because
Now the Supreme Court has held that it did not follow from the circumstances that the
The dispute had its origins in instructions
driver had acted in a grossly negligent manner,
issued by metals and minerals group Traxys
and that, absent any proven consciousness
In summing up the case, the judges hearing
Europe SA to transport – and for logistics
on the part of the carrier/driver that the risk of
it said: “We appreciate the gravity of the injuries
specialist Euro-Rijn International BV to carry
theft was significantly greater than the possibility
that Spain alleges it has suffered here and do
– 20 large bags of roasted molybdenum
that no theft would occur, the claimants could
not, by our opinion, mean either to diminish
concentrates, valued at $974,385, from the
not rely on Article 29. Thus, Maat could rely on
those injuries or speak more broadly to the role
Netherlands to Belgium.
the limitation provisions of Article 23.3 of CMR.
material fact as to whether defendants recklessly breached that duty”.
of classification societies in maritime commerce
Euro-Rijn subcontracted the transport to
and the potential duties of classification societies
Transportbedrijf A Maat BV (Maat). Maat was
to third parties.
At
today’s
SDR
currency
rate,
that
is
approximately $250,000.
instructed not to leave the vehicle unguarded. It
The Supreme Court ruling confirms that it is
“We hold only that, on this evidentiary
subsequently subcontracted the transportation
still almost impossible to break CMR limitation
record, Spain has not satisfied its burden of
to Van Houwelingen Transport BV, whose driver
on the basis of gross negligence in Dutch
establishing a genuine dispute of material
picked up the trailer and parked it, together with
court proceedings
fact as to whether ABS and its subsidiaries
the truck, in a parking area at an industrial zone
recklessly breached any duty that they might
in Alblasserdam, near Rotterdam.
owe to Spain. “As such, and for the foregoing reasons, the
This area was lit by street lamps and was
Maritime Labour Convention
locked, although 31 keys to the gate were in
The Maritime Labour Convention (MLC) has
circulation. Unlike the nearby premises of Maat,
finally got the ratifications necessary to bring
The court case arose from the 2002 Prestige
the parking site was not watched over by the
the treaty into force in 12 months’ time. with
oil spill of the Spanish coast which resulted in
company that patrolled part of the industrial
all that entails in terms of setting out minimum
extensive pollution to the coastline.
zone. On the morning following the night on
requirements for seafarers’ working conditions.
judgment of the district court is affirmed.”
The fact that ABS has been the target of a
which the truck and trailer were parked, the
law suit has been of considerable concern to
driver discovered that both truck and trailer had
ratifications
classification societies and the question remains
been stolen. The entrance gate to the parking
Organization (ILO)’s Maritime Labour Convention.
as to whether Spain will seek to take the case to
area had been damaged, and all 20 bags of
the Supreme Court.
cargo stolen.
54
theBaltic Autumn 2012 www.thebaltic.com
The IMO has welcomed the landmark of
the
International
Labour
More than 1.2 million seafarers stand to benefit
from
the
convention’s
provisions