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2009 April 9
by Hein Kernkamp

Court: Netherlands Supreme Court

Date: February 4th, 2000

LJN number: AA4731

Case: May 4th, 1993 at 4 AM, the M/V "Solon" collides with the 'oude Vlakebruggen' while passing the canal through Zuid-Beveland, on its way to the Western Scheldt. Initially, the pilot had ancitipated that the height of the M/V "Solon" preempted it from using the canal. Once aboard, the master explained that he could lower the masts of the vessel and take the shorter route through the canal. The pilot, who had not prepared this alternative route before commencement of the voyage, agreed. He knew the canal and crossed it as recent as in December 1992. After crossing the new Vlakebruggen, the pilot was suddenly confronted with the old Vlakebruggen. These old bridges need to be opened in order for a ship with a height above 7.50m to pass through. The pilot had somehow not realised that he would need to pass these bridges shortly after the passage of the new bridges, as a result of which he failed to timely contact traffic control to open these bridges. The old bridges were a bit difficult to see, but the pilot obviouly knew that the bridges exsisted and needed to be opened in order to pass safely. Once these brigdes were spotted from the bridge, it was too late and a collision followed. Owners claimed damages from the pilot. Article 3 of the Dutch Pilot Act exempts pilots from liability, unless caused with intent or with gross negligence. Owners found it to be an inexcusable shortcoming for a Pilot and upheld that this was a clear case of gross negligence. The Middleburg Court ruled that this was indeed a case of gross negligence, which decision was later overruled by the Court of Appeal.

Held: The Supreme Court ruled that there is gross negligence under article 3 of the Dutch Pilot Act where the Pilot acts recklessly with knowledge that damage would probably result. The decision of the Court of Appeal remained in place. The Pilot, who did not act on purpose, could not be held accountable under this strict and subjective interpretation of gross negligence by the Supreme Court.

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