Legal Stuff
REACH
The new European Regulation for Registration, Evaluation, Authorisation and Restriction of Chemicals 1907/2006 ("REACH" or "Regulation") has entered into force 1 June 2007. REACH gradually became effective and harmonised national legislation of EU member states on this specific issue. As of 1 June 2008 the new European Chemicals Agency is operational. Note that the European Free Trade Association has also adopted REACH, and thus entered into force in Iceland, Liechtenstein, Norway and Switzerland. REACH is largely implemented in the Dutch Environmental Management Act ("Wet Milieubeheer"), whereas the Dutch Chemical Substances Act ("Wet Milieugevaarlijke Stoffen") is withdrawn. In accordance with REACH, the Dutch Ministry of Housing, Spatial Planning and the Environment is mainly responsible for the supervision on compliance with the Regulation. The Regulation aims to shift the responsibility of adequate risk management of chemical substances to the particular businesses. REACH primarily focuses on manufacturers, importers, distributors and downstream users of chemical substances, and imposes a general obligation of registration of the substances manufactured in or imported into the European Union. To find out whether REACH affects your businesses or if you have any other questions regarding REACH, please do not hesitate to contact us, through jasper.groen@mainportlawyers.com for example. Article in the November 2008 issue of the magazine Corporate INT 51 where Van Steenderen MainportLawyers is listed as the Netherlands firm for International Shipping and Maritime Law (link).INTERNATIONAL SHIPPING AND MARITIME LAW
Publication of recent case law Article by Judith F. van der Vlies for the legal magazine Tijdschrift Vervoer & Recht, February 2007, p. 1-8 "Vertragswidriges en vertragsmässiges trucking" (discusses the carriage of airfreight by road between two airports). Self-employed commercial agents The Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (the "Directive") was implemented in Netherlands law by Articles 428 to 445 of the Dutch Civil Code ("DCC"). Community law Article 1 (2) of the Directive States that "commercial agent shall mean a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, hereinafter called the "principal", or to negotiate and conclude such transactions on behalf of and in the name of that principal." Article 7(1) of the Directive on the remuneration of the agent, provides: "A commercial agent shall be entitled to commission on commercial transactions concluded during the period covered by the agency contract: (a) where the transaction has been concluded as a result of his action; or (b) where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind." Article 17 of the Directive on the financial consequences for the agent of the termination of the contract provides: 1. Member States shall take the measures necessary to ensure that the commercial agent is, after termination of the agency contract, indemnified in accordance with paragraph 2 or compensated for damage in accordance with paragraph 3. 2. (a) The commercial agent shall be entitled to an indemnity if and to extent that: - he has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive substantial benefits from the business with such customers, and - the payment of this indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by the commercial agent on the business transacted with such customers. Member States may provide for such circumstances also to include the application or otherwise of a restraint of trade clause, with the meaning of Article 20; (b) The amount of the indemnity may not exceed a figure equivalent to an indemnity for one year calculated from the commercial agent's average annual remuneration over the preceding five years and if the contract goes back less than five years the indemnity shall be calculated on the average for the period in question; (c) The grand of such an indemnity shall not prevent the commercial agent from seeking damages. National (Dutch) law Articles 428 to 445 DCC are essentially the same as the provisions of the Directive, apart from Article 1 (2) of the Directive which states that the Directive applies to transactions for "the sale or the purchase of goods" whereas the Netherlands provisions also apply to transactions for the supply of services. Thus, Article 7:428 (1) of the Civil Code, which implements Article 1 (2) of the Directive, states: "An agency contract is a contract in which one party, the principal, confers authority on the other party, the commercial agent, to act as intermediary, for remuneration, whether or not for a fixed period, in the negotiation of contracts which the commercial agent may conclude in the name of and on behalf of the principal, without being subordinated to the principal." In implementing the Directive in national law, the Netherlands legislature has extended the scope of the term "commercial agents" to contracts for services. "In the negotiation of contracts": more than one contract? In a decision of 10 December 2003 the District Court of Utrecht (one of 19 District Courts in the Netherlands) made a reference for a preliminary ruling under Article 234 EC to the Court of Justice of the EU in the proceedings between Poseidon Chartering B.V. and Marianne Zeeschip V.o.f. Poseidon Chartering B.V. acted as intermediary in the charter of a ship concluded between its Owners Marianne Zeeschip V.o.f. and the charterers, a company called Maritramp. That charter was extended annually from 1994 to 2000 and during that period of time Poseidons's Zeeschip B.V. recorded inter alia the outcome of the annual negotiations between Owners and Charterers on the extension of the charter period in an addendum thereto. During the period of the charter party Poseidon received commission in the sum of 2,5% of the charter hire. After contractual relations between Marianne Zeeschip and Poseidon were terminated, Poseidon brought an action against Marianne Zeeschip claiming damages from breach of the contractual notice period, the payment of the sum of EUR 14,229.89 in respect of unpaid commission and the sum of EUR 14,471.29 as an indemnity for the loss of customers.Marianne Zeeschip refused to pay on the ground that Poseidon was not a commercial agent because it had negotiated only one contract and a commercial agency contract is characterized by the fact that the agent acts in more than one contract. It is in those circumstances that the Rechtbank Utrecht (Utrecht District Court), before which the main proceedings were brought, ordered that the proceedings be stayed and the following questions referred for a preliminary ruling to the Court: "1. Is a self-employed intermediary, who has arranged (not several but) one contract ( a charter for a ship) which is renewed every year and pursuant to which, in respect of the renewal of the charter, the annual freight negotiations (except, during the period from 1994 to 2000, in 1999) are conducted between the Owner of the ship and a third party and the outcome of those negotiations is recorded by the intermediary in an addendum, to be regarded as a commercial agent within the meaning of Directive 86/653 …? 2. If it has to be determined whether an agency contract exists, does it make any difference to the answer to Question 1 that remuneration (commission) of 2.5% of the charter has been paid over many years and/or that Article 7 (1) of the Directive refers to "transactions concluded" and to the existence of an entitlement to (the) commission "where the transaction is concluded with a third party whom [the intermediary] has previously acquired as a customer for transactions of the same kind"? 3. Does it make any difference to the answer to Question 1 that Article 17 of the Directive refers to "customers" instead of "customer"? Court of Justice Ruling By its questions, which should be considered together, the referring court of Utrecht asks essentially whether a self-employed intermediary with authority to conclude a single charter for a ship, subsequently extended over several years, is a commercial agent for the purposes of the Directive. The applicant in the main proceedings and the Commission submit that the peculiarity of there being a single contract is not decisive where the intermediary has continuing authority. In the present case, given the renewal of the contract over several years, there can be no doubt that the intermediary had continuing authority. The Commission also points out that, in the proposal for a Council directive to coordinate the laws of the Member States relating to (self-employed) commercial agents, which it submitted on 17 December 1976 (OJ 1977 C 13, p. 2), the definition of commercial agent set out in Article 2 of that proposal expressly included "an unlimited number" of commercial transactions, a condition which was not taken up in the final version of Article 1 (2) of the Directive. The Commission adds that Article 3 of that proposal provided that a directive would not apply "to intermediaries appointed to negotiate or to conclude in the name of the principal a specified transaction or a number of specified transaction only". That provision does not appear in the final version of the Directive, which means that the Community legislature deliberately chose not to adopt the proposed restriction. It should be noted in this connection that, as is clear from Article 1 (2) of the Directive, a commercial agency contract is characterized in particular by the fact that the agent, defined as a self-employed intermediary, is invested by the principal with continuing authority to negotiate. That is clear from several provisions of the Directive especially Articles 3 and 4 on the obligations upon the parties to act dutifully and in good faith towards each other, Article 6 et seq. on the remuneration of the agent during the period of contractual relations, and Article 17 et seq. on the rights of the agent after termination of the contract. The number of transactions concluded by the intermediary for and on behalf of the principal is normally an indicator of that continuing authority. As the referring court has pointed out, Article 17 (2) (a) of the Directive uses the term "customers" in the plural. However, as Advocate General Geelhoed stressed in point 24 of his Opinion, the number of transactions is not the sole determining factor in assessing whether the principal conferred continuing authority on the intermediary. Where an intermediary has authority to conclude, for and on behalf of the principal, a single contract which is subsequently extended over several years, the condition laid down by Article 1 (2) of the Directive that the authority be continuing requires that the principal confer continuing authority on the intermediary to negotiate successive extensions to that contract, unless there are other factors indicating that there is continuing authority to negotiate. It is for the national court to make the requisite findings in that regard. The mere fact that the intermediary maintained relations with the principal throughout the contractual period is, in itself, insufficient to demonstrate such authority. The answer to the questions referred to by the Court of Justice is therefore that Article 1 (2) of the Directive is to be interpreted as meaning that, where a self-employed intermediary has authority to conclude a single contract, subsequently extended over several years, the condition laid down by that provision that the authority be continuing requires that the principal should have conferred continuing authority on that intermediary to negotiate successive extensions to that contract. One of the specialist areas Van Steenderen MainportLawyers can advise you further on is commercial agency/distribution.Please contact: marieke.vandendool@mainportlawyers.com. Are customs duties ex art. 23.4 CMR recoverable under Dutch law (narrow or broad interpretation)? Phillip Morris Holland B.V. (and its underwriters) - v. - Van der Graaf Waalwijk B.V. This matter concerned the international transport by road of a consignment of cigarettes in two trucks with trailers from the Netherlands to Milan, Italy. In the evening of 6 October 1991 the trucks and trailers were parked at an unguarded parking lot in Santhia, Italy since it was already too late to reach the consignee in Milan that same evening. Each truck had two drivers and all four of them had left the trucks simultaneously to have dinner. Upon returning one and a half hour later the trucks were missing and presumed stolen. They were discovered on 18 October 1991, empty. Phillip Morris et al. claimed compensation for the loss from the carrier Van der Graaf. This loss consisted of, inter alia, a substantial claim for duties and other charges from the Customs & Excise Authorities since Phillip Morris could not clear the relevant T2 documents evidencing that the cigarettes had been delivered at their destination. The transit accompanying documents that had been traveling with the cigarettes to the office of destination / Customs sub-place where they had to be presented to Italian Customs could not be verified by the Italian customs giving an arrival message of the goods to the Customs office of departure. The decision by the Supreme Court of 14 July 2006 was in fact a continuation of the Phillip Morris case which had already been at the Supreme Court previously (5 January 2001, NJ 2001, 392, and 27 May 2005, RvDW 2005, 79) to decide other issues, including the question of whether the carrier Van der Graaf should be denied limitation of liability under art. 23 of the CMR because of its willful misconduct. According to art. 29, the carrier shall not be entitled to avail himself of the provisions of Chapter IV of the CMR which excludes or limit his liability or which shift the burden of proof if the damage was caused by his willful misconduct or by such default on his part as, in accordance with the law of the court or tribunal ceased of the case, is considered as equivalent to willful misconduct. The District Court and Court of Appeal had been of the opinion that the behaviour of the trucking company's drivers should be characterized as reckless and with the knowledge that damage would probably result therefrom, preventing the carrier from invoking any limitation to its liability. In its decision of 5 January 2001, however, the Supreme Court of the Netherlands overturned this decision by applying a specific test to establish intent, willful misconduct or reckless behaviour. To reach a finding of recklessness under this new test, the person acting must not only be aware of the specific danger connected to his behaviour, but also aware that the chance that the danger will materialize is considerably greater than chances that it will not happen, and proceed to act in spite of this awareness. The consequence of this Supreme Court decision is that it will be extremely difficult for plaintiffs to break through the carrier's limitation since the burden of proof rests on the plaintiff and the plaintiff will have to prove the subjective awareness of the carrier and/or its agents or servants.The issue in this case was whether Phillip Morris et all could successfully recover an amount of DM 3,056,305.- in respect of Customs duties it had to pay due to the theft of the cigarettes. Under art. 23 CMR a carrier is liable for compensation in respect of total or partial loss of goods and such compensation shall be calculated by reference to the value of the goods at the place and time at which they were accepted for carriage. In addition to the value of the goods, the carriage charges, Customs duties and other charges incurred in respect of the carriage of the goods shall be refunded in full in case of total loss, but no further damages shall be payable (art. 23, Section 4). "Other charges" have been interpreted in two ways, narrowly and broadly. Under English law the narrow interpretation has been adopted by the minority of the House of Lords in Buchanan & Co. v. Babco Forwarding & Shipping (UK) [1978] A.C. 141 as to mean charges, such as the cost of packing and insurance incurred for the purpose of carriage. The broad view, preferred by the majority of the House of Lords in Buchanan, is that they include expenses consequential on the way in which the carriage was actually carried out; and hence that they include the expenses consequential on breach of the contract of carriage, such as the cost of surveying damaged goods, the amount of extra duty or VAT payable because the goods did not reach their designated destination, and return carriage charges. In the Phillip Morris case the Dutch Supreme Court has opted to endorse the narrow interpretation of the words "incurred in respect of the carriage of the goods". The narrow interpretation is also prevailing in Germany (BGH 13 February 1980, NJW 1980, page 20/21 and BGH 26 June 2003, Transp. R. 2003, page 453). In Phillip Morris the Supreme Court has held that Customs duties that have to be paid by the principal due to the inability to clear the accompanying T2 documents are only payable because of the loss of the goods, and these duties do not have any connection with the carriage of the goods as such and consequently are not recoverable under art. 23, section 4 CMR. Brief comment If the parties interested in the cargo want compensation of Customs duties a solution may be to clearly state the amount of these Customs duties in the sender's invoice to the consignee. In doing so a Dutch Court will probably accept as the value of the goods the amount stated in the invoice including Customs duties. Another alternative safeguards payment of the Customs duties under art. 24 or 26 CMR. Together with art. 26, art. 24 is a provision of CMR that enables the claimant to recover loss not recoverable under the general rules of compensation in art. 23. This will usually lead to a surcharge payable on the freight. these duties do not have any connection with the carriage of the goods as such and consequently are not recoverable under art. 23, section 4 CMR. Brief comment If the parties interested in the cargo want compensation of Customs duties a solution may be to clearly state the amount of these Customs duties in the sender's invoice to the consignee. In doing so a Dutch Court will probably accept as the value of the goods the amount stated in the invoice including Customs duties. Another alternative safeguards payment of the Customs duties under art. 24 or 26 CMR. Together with art. 26, art. 24 is a provision of CMR that enables the claimant to recover loss not recoverable under the general rules of compensation in art. 23. This will usually lead to a surcharge payable on the freight. The rules for international transportation by rail have been laid down in the Convention on the Transportation by Rail (COTIF) as done on 9 May 1980. Amongst many others, the Netherlands are a party to such convention.On 1 July 2006 a new protocol has come into force for the Netherlands, containing significant changes to the 1980 COTIF Convention. This 1999 Protocol done on 3 June 1999 is merely the consequence of the EU Directive 1991, 440. This Directive intends to unite the control and supervision of the European railway infrastructure on the one hand and the exploitation thereof at the other. It was found necessary to come to a standard for technical regulation for, amongst others, the admittance of railway material, whilst a need to control was to be met concerning the safety for the transportation of dangerous goods for example.While the old COTIF 1980 was directed on basis of the presumption that the infrastructure was operated by one party, this principle does not fit in the circumstances where we are in today, where this industry is heavily privatized. The issues that have been adjusted by virtue of this new protocol concern amongst others the nature and form of the contract of carriage, certain aspects of liability, the obligation to perform transportation, claims regulation & time bars and dangerous goods.Interested to learn more about the revised convention, please contact Jasper.groen@mainportlawyers.com. High Court of Justice - Haarlem, 22 March 2006 - LJN:AV6317 Gerling - Konzern Allgemeine Versicherungs - AG et all v. China Southern Airlines Company Ltd. China Southern has carried consignment of a life plants under an Air Way Bill on 6 December 2002 from the airport of Amsterdam to Beijing. The Shipper mentioned in the AWB was Van der Kamp International B.V. and the Consignee was China National Tree Seed Corp. The AWB contained the remark: "temptale recorder in shipment" and "highly perishable keep away from heat and frost", however, without specifying a minimum and maximum temperature of carriage.The plants have arrived in a damaged condition and a claim for compensation was brought before the Haarlem High Court of Justice (Amsterdam Airport is within the jurisdiction of this Court) by the Shipper, Consignee and transport insurers (Gerling-Konzern et all). The carrier China Southern first defaulted in the proceedings and the claim was therefore awarded in favour of Gerling-Konzern et all, whereas the claims by the Shipper and Consignee were denied since it was clear from the Writ of Summons containing Points of Claim that Gerling-Konzern et all had been subrogated in the rights of the Shipper and Consignee. China Southern has timely filed an appeal against the judgment by default and consequently the Court had to give a new decision after considering China Southern's defense. The Haarlem Court has held: The content of these summaries of court decisions, including our comments thereon, does not constitute legal advise and should not be relied on as such. If you believe you have a similar issue at hand as summarized above our firm would be most delighted to provide you with specific advice taking into account the specific circumstances of your case.
www.rechtspraak.nl/ljn.asp?ljn=AZ6991
www.rechtspraak.nl/ljn.asp?ljn=BA0920
www.rechtspraak.nl/ljn.asp?ljn=BA0922
Supreme Court of the Netherlands 14 July 2006 Towards a new COTIF