Fernhout v. Essent Netwerken
Court: Netherlands Supreme Court
Date: June 15th, 2007
LJN number: BA1414
Case: During dredge operations at the river IJssel in November 1999 a dredge crane aboard the "Zwartemeer" hit and damaged a gas pipe owned and operated by Essent, resulting in a damage assessed at EUR 81.680,44. The rules of the Netherlands Civil Code on collision of inland vessels are also applicable on one sided incidents, where inland vessels damage objects without collision. Hence the rules on collision are applicalbe on the incident, including the time bar in Article 1793 of book 8 of the Netherlands Civil Code. Actions for the recovery of damages are barred after an interval of two years from the date of the casualty.
The case was brought before the Court after the collision claim had become time barred. The claimant based the claim on tort and upheld that it was entitled to do this, as claims based on tort are barred after an interval of five years. The Court dismissed the claim, but the Court of Appeals accepted the argument of the claimant and allowed the claim. The owner of the "Zwartemeer" brought the case before the Netherlands Supreme Court.
Held: The time bar in Article 1793 of book 8 of the Netherlands Civil Code corresponds with Article 7 of the Geneva Convention relating to the Unification of Certain Rules concerning Collisions in Inland Navigation of 15 March 1960, under which actions for compensation for damage must be brought within two years from the date of the occurance. Article 1793 of book 8 of the Netherlands Civil Code intends to protect the interests of the person that is held liable. The Article would be senseless if claimants could still sue after completion of the prescription period. Hence, all non-contractual claims are barred after the short prescription periode of two years. The Netherlands Supreme Court quashed the decision of the Court of Appeal and confirmed the decision of the Court.