Dutch Civil Code

Book 8 Transport law and means of transport

V AIR LAW

Title 8.16 Operations

Section 8.16.1 General Provisions

Article 8:1340 Reference to other statutory provisions*)
Articles 8:361 up to and including 8:366 apply accordingly to the operation (exploitation) of an aircraft, on the understanding that also the person of whose assistance the transport operator has made use in the performance of his obligation may invoke Article 8:365, provided that this person acted in the performance of the work for which he was hired; the previous sentence is without prejudice to Articles 8:1360, paragraph 1, and 8:1402, paragraph 1.

*) Article 8:1340 specifies that the general provisions of Article 8:361-8:366 apply as well to transport of goods (cargo) and passengers by air. In referring to those general Articles, the Dutch Civil Code ensures that the air carrier, who is held liable by his counterparty or a third person on a legal ground not based on a contract, may invoke the contract of carriage which is governed by the Montreal Convention of 28 May 1999. The result is almost the same as under Article 29 of the Montreal Convention of 28 May 1999. Also persons of whose assistance the air carrier has made use in the performance of his obligations under the contract, may invoke the before mentioned general Articles of Book 8 of the Dutch Civil Code, provided that this is done in relation to an event which occurred in de the performance of the work for which they were hired by the air carrier. See Article 30 of the Montreal Convention of 28 May 1999.

Article 8:1341 Aircraft includes hovercraft*)
In the present Section (Section 8.16.1) the word ‘aircraft’ includes as well an air cushion vehicle (hovercraft), yet only as far as it concerns transport of passengers and baggage.

*) This provision had to be incorporated because Articles 8:1 and 8:3a DCC do not specify a hover craft as an aircraft, but as a ship, while the Dutch legislator wanted the transport by hover craft to be governed by the liability rules for the transport of passengers by road and by air. The Montreal Convention of 28 May 1999 does not provide a similar rule.

Article 8:1342 Checked baggage*)
In the present Title (Title 8.16) checked baggage is understood as luggage which is handed over to the transport operator by or on behalf of the passenger before he undertakes an air voyage.

*) In conformity with the Montreal Convention of 28 May 1999, the Dutch Civil Code makes a distinction between checked baggage and unchecked baggage. The liability for checked baggage is more strict (no-fault liability) than for unchecked baggage (fault liability). See Article 8:1394 DCC and, respectively, Article 17(2) of the Montreal Convention. Article 8:1342 defines baggage differently from the more general meaning of luggage in Article 8:8 DCC.

Article 8:1343 References in the transport document*)
- 1. References in the transport document to stipulations (clauses) elsewhere shall be deemed to insert only those stipulations (clauses) into that transport document that are clearly recognizable for the person against whom an appeal to these stipulations (clauses) is made.
- 2. Such an appeal can be made only by him who, upon the written request of the person against whom that appeal is or can be made, has immediately forwarded (sent) the involved stipulations (clauses) to that person.
- 3. Any stipulation (clause) in derogation from paragraph 2 of the present Article is null and void.

*) This provision is derived from Article 8:415 (transport by sea) and Article 8:922 DCC (transport by inland waterway, and is not present in the Montreal Convention of 28 May 1999.

Article 8:1344 Air transport carried out in succession by different transport operators*)
An air transport which is to be performed by several successive air carriers is deemed, for the purpose of the present Title (Title 8.16), to be one undivided air transport if it has been regarded by the parties as a single operation, irrespective whether it had been agreed upon under the form of a single contract or of a series of contracts.

*) See Article 1(3) Montreal Convention of 28 May 1999

Article 8:1345 Legal position of the actual air carrier
- 1. In the present Title (Title 8.16), except in paragraph 4 and 5 of the present Article, an air carrier includes also the actual air carrier, on the understanding that the actual air carrier is subjected only to the provisions of the present Title (Title 8.16) for the part of the transport that he has performed*).
- 2. Actual air carrier is he who, without being an air carrier or successive air carrier as meant in Articles 8:1350, 8:1352, 8:1390, 8:1392 or 8:1420 (so called ‘contracting air carrier’), performs, with the authorization of that contracting air carrier, the whole or a part of the transport referred to in the present Title (Title 8.16)*).
- 3. The authorisation referred to in paragraph 2 is presumed to have been granted*).
- 4. An own act or omission (negligence) of the contracting air carrier or an own act or omission (negligence) of the persons of whose assistance the contracting air carrier has made use in the performance of his obligation, provided such act or omission (negligence) took place in the performance of the work for which they were hired, cannot lead to a liability of the actual air carrier greater than the liability established in or pursuant to Articles 8:1359, 8:1399 and 8:1400. Where the contracting air carrier has entered into a stipulation (clause) which extends his liability beyond the present Title (Title 8.16), or through which he waives any right or defence granted to him under or pursuant to the present Title (Title 8.16), or as a result of which any special declaration of interest in delivery at destination is established as referred to in Article 8:1359, paragraph 1, and 8:1400, paragraph 2, such stipulation (clause) shall only bind the actual transporter if he has agreed to it**).
- 5. Instructions as specified in Article 8:1373 have effect only if they are addressed to the contracting air carrier***).

*) See Articles 39 and 40 Montreal Convention of 28 May 1999
**) See Article 41(2) Montreal Convention of 28 May 1999
***) See Article 42 Montreal Convention of 28 May 1999

Article 8:1346 Priority of European Regulations*)
Section 8.16.3 shall apply only as far as Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ L 285 of 17-10-1997) does not apply.

*) Where the transport of passengers is covered by the European Regulation referred to in Article 8:1346, Section 8.16.3 DCC has no relevance. Because of the far-reaching scope of that European Regulation (all transport of passengers by air within or outside the European Community by air carriers domiciled in the European Community), Section 8.16.3 DCC only maintains a narrow meaning. Obviously, the Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1347 Unit of account*)
The unit of account mentioned in the present Title (Title 8.16) is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in the present Title (Title 8.16) shall be converted into euros at the rate on the date of payment or, in case of judicial proceedings, on the date of the judicial decision. The value in euro, expressed in Special Drawing Rights, shall be calculated according to the valuation method which the International Monetary Fund itself applies on the day of conversion in respect of its own operations and transactions.

*) See Article 23 Montreal Convention of 28 May 1999.

[Articles 8:1348 – 8:1349 reserved for future legislation]

Section 8.16.2 Contract of carriage of goods by air

Article 8:1350 Definition ‘contract of carriage of goods by air’
- 1. A contract of carriage of goods within the meaning of the present Title (Title 8.16) is the contract of carriage of goods, whether or not being a time charter or voyage charter, under which one of the parties (air carrier) has engaged himself towards the other party (consignor) to transport goods (cargo) exclusively by air on board of an aircraft*).
- 2. The present Section (Section 8.16.2) shall not apply to contracts for the transportation of mail by or on behalf of the provider of universal postal services referred to in the Postal Act 2009 or in an international postal agreement. Under reservation of Article 8:1395, the present Section (Section 8.16.2) does not apply to contracts for the carriage of baggage**.

*) Like the Montreal Convention of 28 May 1999, Section 8.16.2 DCC applies equally to a transport by air performed for a reward as to a gratuitously performed transport by air (see Article 1(1) of the Montreal Convention of 28 May 1999.
**) See Article 2(2)(3) Montreal Convention of 28 May 1999.

Article 8:1351 Period of air transport
- 1. The period of air transport comprises the time during which the goods are in the charge (care) of the air carrier*).
- 2. The period of air transport does not extend to any transportation by land, sea or inland waterway, performed outside an airport. However, when such transportation takes place in the performance of an air transport contract for the purpose of loading, delivery or transhipment, any possible damage is presumed to be the result of an incident which took place during the air transport. When the air carrier, without the consent of the consignor, has replaced the transport which was agreed by parties as air transport, in full or in part with any other mode of transport, then this other mode of transport is deemed to be part of the period of air transport**).

*) See Article 18(3) Montreal Convention of 28 May 1999
**) See Article 18(4) Montreal Convention of 28 May 1999

Article 8:1352 Time charter and voyage charter*)
For the purpose of the present Section (Section 8.16.2) a ‘time charter’ or ‘voyage charter’ means a contract of carriage of goods, under which the air carrier has engaged himself to transport goods (cargo) on board of an aircraft, which aircraft he has placed to this end, entirely or partially and whether or not on a time base (time charter or voyage charter), at the disposal of the consignor, yet on another ground than a contract whereby one of the parties engages himself to place an aircraft at the disposal of his counterparty without keeping any power of control over that aircraft.

*) Both, a time charter and a voyage charter, are governed by Section 8.16.2 DCC, this in contrast to, for instance, ‘bare hull’ and ‘dry lease’ contracts. The Montreal Convention of 28 May 1999 does not provide a definition of time and voyage charter.

Article 8:1353 Main obligations of the air carrier
- 1. The air carrier must deliver the goods which he has received for transport at the place of destination in the condition in which he has received them*).
- 2. The air carrier is not liable as far as he proves that the damage solely results from one or more of the following circumstances:
a. the nature of the goods or a defect in them;
b. defective packing of the goods by a person other than the air carrier or persons of whose assistance he has made use in the performance of his obligation;
c. an act of war or an armed conflict;
d. an act of a public authority in relation to the import, export or transit of the goods**).

*) Contrary to the carriage of goods by other modes of transport, the liability rules on air law assume a strict (no-fault) liability of the air carrier in case of damage to cargo. See Article 18(1) Montreal Convention of 28 May 1999. The Dutch Civil Code connects to this kind of liability where it concerns transport by air, knowing that the liability of the air carrier is limited in the situations mentioned in paragraph 2 of Article 8:1353 and, in addition, always to a limited amount.
**) See Article 18(2) Montreal Convention of 28 May 1999.

Article 8:1354 Delay*)
- 1. The air carrier must transport the goods he has received for transport without delay.
- 2. The air carrier is not liable for damage resulting from delay if he and the persons of whose assistance he has made use in the performance of his obligation, have taken all measures that could reasonably be required to avoid the damage, or when it was impossible for him or them to take such measures.

*) See Article 19 of the Montreal Convention of 28 May 1999.

Article 8:1355 Consignor’s (sender’s) own fault or negligence*)
- 1. If the air carrier proves that a fault or omission (negligence) of the person claiming damages or of the person from whom that person has derived his rights, has caused the damage or has contributed to it, then the air carrier shall be released in full or in part from his liability towards the person claiming damages as far as that fault or omission (negligence) has caused the damage or has contributed to it.
- 2. The present Article applies to all liability provisions in the present Section (Section 8.16.2).

*) See Article 20 of the Montreal Convention of 28 May 1999. See also Article 8:1357 DCC.

Article 8:1356 Mandatory law
Any stipulation (clause), tending to release the air carrier from liability imposed on him pursuant to the present Section (Section 8.16.2) or to a fixed lower limit of liability than provided pursuant to the present Section (Section 8.16.2), is null and void, but nullity of such stipulation (clause) does not lead to nullity of the contract which continues to be governed by the present Section (Section 8.16.2)*).

*) See Article 26 of the Montreal Convention of 28 May 1999. Article 25 of the Montreal Convention 1999, which allows the air carrier to extend his liability beyond what is provided in that Convention or to waive any limitation of liability, and Article 27 of the Montreal Convention, allowing the air carrier to refuse to enter into a contract of carriage or to waive any defences or to agree to conditions which do not conflict with the provisions of that Convention, are not as such incorporated in the Dutch Civil Code. Nevertheless, from the legal system of Dutch private law follows that the same applies under Dutch air law, provided that the air carrier does not enter into a stipulation (clause) that is contrary to mandatory Dutch air law.

Article 8:1357 Calculation of damages*)
- 1. To the extent that the air carrier is liable on account of a non-performance of one of the obligations incumbent on him pursuant to Article 8:1353 or Article 8:1354, the consignor has no other right than to claim payment of a sum which is to be calculated with due observance of the value which the goods, similar as those received for transport, would have had at the moment when and the place where they were delivered or ought to have been delivered.
- 2. The value mentioned in paragraph 1 shall be calculated in accordance with the value price on the commodity exchange market or, if no such price exists, in accordance with the current market value or, if such value does not exist either, in accordance with the normal value of goods of the same type (nature) and quality.

*) The Montreal Convention of 28 May 1999 does not specify how the inflicted damage or the obligation to compensate such damage has to be calculated. It is assumed, therefore, that these questions are to be governed by national law. The provision of Article 8:1357 is in line with similar provisions for other modes of transport (see Articles 8:387, 8:903 and 8:1103). Damages are restricted to the decrease in value of the harmed goods. Where a delay has not lead to any decrease in value of the cargo itself, no compensation can be claimed. This means that, under Dutch air law, a compensation for consequential damage is out of the question.

Article 8:1358 Costs made by the air carrier en route are regarded as a decrease in value*)
Where damages are due on the basis of Article 8:1377 in respect of goods, these damages shall be regarded as a decrease in value of those goods.

*) Where the air carrier has a right to be compensated for the costs made during the voyage on behalf and in the interest of the transported goods, the consignor and/or consignee must reimburse those costs (Article 8:1377 DCC), but that reimbursement may be regarded as a decrease of value for the calculation of damages pursuant to Article 8:1357 DCC). No similar provision is incorporated in the Montreal Convention of 28 May 1999.

Article 8:1359 Limitation of liability by law*)
- 1. Where it concerns air transport of goods, the liability of the air carrier is limited in case of destruction, loss, damage or delay to a sum or sums to be set by Order in Council, unless the consignor has made, at the time when the goods were handed over to the air carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum at a higher rate if the case so requires. In that case the air carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that this sum is greater than the consignor’s (sender's) actual interest in delivery at destination.
- 2. In the case of destruction, loss, damage or delay of part of the goods (cargo), or of any object contained therein, the weight to be taken into consideration in determining the amount to which the air carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the goods (cargo), or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same data preserved by any other means as referred to in Article 8:1365, paragraph 2, the total weight of such package or packages shall also be taken into account in determining the limit of liability.
- 3. The foregoing provisions of paragraph 1 and 2 shall not apply to a possible liability of the air carrier for the costs of the legal proceedings, in which he was involved with the party against whom he may invoke these provisions, including interest, unless the air carrier, either within a period of six months from the date of the occurrence causing the damage, or prior to the start of the legal proceedings if these have been initiated after that period, has offered in writing to the plaintiff an amount equal to or larger than the amount of the damages awarded, exclusive of the before meant court costs and expenses of litigation.

*) See Article 25 of the Montreal Convention of 28 May 1999. Article 22(5) of the Montreal Convention of 28 May 1999 specifies explicitly that the limitation of liability, as provided under that Convention, does not apply if it is proved that the damage results from an act or omission of the air carrier, its servants or agents, done with the intent to cause damage or caused recklessly and with the knowledge that damage would probably result therefrom; in case of such act or omission of a servant or agent it also has to be proved that such servant or agent was acting within the scope of his employment. This text has not been integrated in the text of Article 8:1359 of the Dutch Civil Code nor in any other provision of Part V regarding Air law of Book 8, even though a similar provision as Article 22(5) of the Montreal Convention 1999 can be found in other Sections of Book 8 (see Article 8:111, 8:388, 8:519, 8:754, 8:906, 8:984, 8:1064, 8:1108, 8:1158, 8:1218, 8:1185, 8:1401, 8:1402, 8:1584 and 8:1678). Nevertheless the same exception applies also in general under Dutch civil law. Where the person who is held liable, himself has caused the damage with intent or with conscious recklessness, he cannot invoke any contractual stipulation (clause) exonerating or restricting his liability, for the reason that such an appeal is in conflict with the standards of reasonableness and equity (Article 6:248 DCC). This applies the same to an employee or independent assisting person who has caused the damage himself with intent or conscious recklessness, and who wants to invoke a stipulation (exoneration clause) that his employer or principal has agreed with the person who suffered damage (Article 6:170, 6:257 DCC). So, although no similar exception as in Article 22(5) of the Montreal Convention 1999 can be found in Title 8.15 and Title 8.16 DCC, it should be observed that an air carrier, employee or assisting person, who himself is held liable for his own conduct, cannot invoke any limit of liability as far as he has caused the damage himself with intent or with conscious recklessness. However, it is not sure whether an air carrier may invoke such exoneration clause when one of his subordinates has caused the damage acting with intent or with conscious recklessness. In general, when the employer or principal has not caused the damage himself, but he is merely liable because he is the counterparty of the person who suffered the damage caused by one of his subordinates, he may invoke under Dutch civil law any stipulated exoneration clause releasing him from liability, even when the damage was caused by an act of one of his subordinates intended to cause damage or recklessly with the knowledge that such damage would possibly arise. Under Article 22(5) of the Montreal Convention of 28 May 1999 the air carrier is not allowed to invoke any limit of liability when the damage was caused intentionally or consciously reckless by an act or omission of his servant or agent. Although it was the intention of the Dutch legislator to follow the Montreal Convention exactly in Book 8, merely adding some non-conflicting provisions to it, this seems to be a difference between that Convention and Dutch national air law.

Article 8:1360 Limitation of liability of assisting persons
- 1. When a legal claim has been filed on the basis of damage (loss) as referred to in the present Section (Section 8.16.2) against a person of whose assistance the air carrier has made use in the performance of his obligation, then that person may invoke the same limit of liability which the air carrier could have invoked pursuant to Article 8:1359, provided that the person who is held liable as such proves that he has acted in the performance of the work for which he was hired*).
- 2. The total amount of damages which in that case may be obtained from the air carrier and the persons referred to in the paragraph 1, may not exceed the limit mentioned in Article 8:1359*).

*) See Articles 30 and 43 of the Montreal Convention of 28 May 1999

Article 8:1361 Obligation of the consignor
The consignor must compensate the damage which the air carrier suffers because the agreed goods (cargo) were not placed, for any reason whatsoever, at the disposal of the air carrier at the agreed time and place*).

*) The Montreal Convention of 28 May 1999 does not provide a similar rule. See, however, Article 18(1) of the Montreal Convention of 28 May 1999.

Article 8:1362 Termination right of the consignor and air carrier*)
- 1. As long as the goods (cargo) have not been placed at the disposal of the air carrier, the consignor is entitled to terminate the contract.
- 2. When after the end of the period, within which the goods should have been placed at the disposal of the air carrier, no goods at all have been placed at the disposal of the air carrier, for whatever reason, then the air carrier is entitled to terminate the contract without any formal notice being required.
- 3. When after the end of the period meant in paragraph 2, only a part of the agreed goods have been placed at the disposal of the air carrier, for whatever reason, then the air carrier is entitled either to terminate the contract without any formal notice being required, or to accept the voyage.
- 4. Such termination is effected by means of a notice, the receipt of which can be clearly demonstrated, and the contract shall end at the moment of receipt of that notice, however, where it concerns the part of the goods that were placed at the disposal of the air carrier, not before the transport period in regard thereof has ended.
- 5. The consignor must compensate the air carrier for the damage which the air carrier suffers due to the termination of the contract or to the (partial) acceptance of the voyage.
- 6. The present Article shall not apply in case of time charter.

*) The Montreal Convention of 28 May 1999 does not provide a similar rule.

Article 8:1363 Other grounds for termination of the contract*)
- 1. When, prior to or at the moment on which the goods (cargo) are handed over to the air carrier, circumstances arise or emerge on the part of one of the parties, of which the counterparty not ought to have been aware at the conclusion of the contract, but which, if he would have been aware of them, reasonably would have been a reason for him not to enter into the contract of carriage or to enter into it on different terms and conditions, then this counterparty has the right to terminate that contract.
- 2. Such termination is effected by means of a notice, the receipt of which can be clearly demonstrated, and the contract shall end at the moment of receipt of that notice,
- 3. After termination of the contract, parties must, to standards of reasonableness and fairness, compensate the damage that the other suffers as a result of the termination.

*) The Montreal Convention of 28 May 1999 does not provide a similar rule.

Article 8:1364 Damage caused by material or cargo of the consignor*)
The consignor must compensate the air carrier for the extraordinary loss suffered by the air carrier as a result of damage caused by the material that the consignor has placed at the disposal of the air carrier or caused by the goods that the air carrier received for transport or caused by the handling thereof, except as far as this damage is caused on account of a circumstance for which the air carrier is responsible; the air carrier is responsible for circumstances which in case of damage to goods fall under his liability.

*) The Montreal Convention of 28 May 1999 does not provide a similar rule.

Article 8:1365 Air waybill
- 1. In the event of the transport of goods (cargo) by air, an air waybill shall be issued, which in any case contains an indication of the weight of the consignment*).
- 2. The issuance of an air waybill may be replaced by the use of any other means through which the data concerning the consignments are recorded. If such other means are used, the air carrier shall, if so requested by the consignor, issue to the consignor a cargo receipt enabling identification of the consignment and access to the data recorded in those other means**).
- 3. If necessary to meet the formalities of customs, police and other public authorities, the consignor may be requested to issue a document indicating the nature of the goods (cargo). This provision creates for the air carrier no duty, obligation or liability arising therefrom***).
- 4. Paragraph 1 does not apply between the parties to a chartering.

*) See Article 4(1) of the Montreal Convention of 28 May 1999
**) See Article 4(2) of the Montreal Convention of 28 May 1999
***) See Article 6 of the Montreal Convention of 28 May 1999

Article 8:1366 Description of the air waybill*)
- 1. The air waybill shall be made out by the consignor in three original prints.
- 2. The first print shall be marked "for the carrier"; it shall be signed by the consignor. The second print shall be marked "for the consignee"**); it shall be signed by the consignor and the air carrier. The third print shall be signed by the air carrier who shall hand it to the consignor after the goods (cargo) have been accepted.
- 3. The signature of the air carrier and that of the consignor may be printed or stamped, or may be placed by electronic means.
- 4. If, at the request of the consignor, the air carrier makes out the air waybill, the air carrier shall be presumed to have done so on behalf of the consignor.
- 5. Articles 56, paragraph 2, 75, paragraph 1, and 186, paragraph 1, of Book 2 of the Civil Code are not applicable.

*) See Article 7 of the Montreal Convention of 28 May 1999.
**) The Dutch Civil Code specifies that the second print should be marked as “for the consignor”. Yet, in practice as well as in Article 7 of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999), the second print (or part) must be marked as “for the consignee”, so that the Dutch Civil Code contains an error in this respect.

Article 8:1367 Documentation for multiple packages*)
When there is more than one package:
a. the air carrier (of cargo) has the right to require the consignor to make out separate air waybills;
b. the consignor has the right to require the air carrier to issue separate cargo receipts when the other means referred to Article 8:1365, paragraph 2, have been used.

*) See Article 8 of the Montreal Convention of 28 May 1999.

Article 8:1368 Non-compliance with documentary requirements*)
Non-compliance with Articles 8:1365 up to and including 8:1367 shall not affect the existence or validity of the contract of carriage, which shall nonetheless remain subject to the provisions of the present Title (Title 8.16), including those relating to limitation of liability.

*) See Article 9 of the Montreal Convention of 28 May 1999.

Article 8:1369 Responsibility for particulars of documentation*)
- 1. The consignor is responsible for the correctness of the particulars and statements relating to the goods (cargo) inserted by him or on his behalf in the air waybill or that are provided (furnished) by him or on his behalf to the air carrier for insertion in the cargo receipt or in the data recorded by the other means referred to in Article 8:1365, paragraph 2. The preceding sentence shall also apply in cases where the person acting on behalf of the consignor is also acting on behalf of the air carrier.
- 2. The consignor is liable for all damage suffered by the air carrier or by any other person to whom the air carrier is liable by reason of the irregularity, incorrectness or incompleteness of the particulars and statements provided (furnished) by or on behalf of the consignor.
- 3. Subject to the provisions of paragraph 1 and 2 of the present Article, the air carrier is liable for all damage suffered by the consignor or by any other person to whom the consignor is liable by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by or on behalf of the air carrier in the cargo receipt or in the data recorded by the other means referred to in Article 8:1365, paragraph 2.

*) See Article 10 of the Montreal Convention of 28 May 1999.

Article 8:1370 Information duty of the consignor
- 1. The consignor must provide the carrier in time with all indications about the goods and the handling thereof that he is able or ought to be able to provide and of which he knows or ought to know that these indications are of importance for the air carrier, unless he may assume that the air carrier already has this information*).
- 2. The consignor must provide information and documents that are needed, prior to the delivery of the goods (cargo) to the consignee, in order to meet the formalities of customs, police or other public authorities. The consignor is liable towards the air carrier for all damage resulting from the absence, incompleteness or incorrectness of such information or documents, except where the damage was caused by a fault of the air carrier or of persons of whose assistance he has made use in the performance of his obligation**).
- 3. The air carrier must exercise reasonable care so that the documents which have been handed to him shall not get lost or attended incorrectly. Damages due by him in this respect shall not exceed those which are due pursuant to Articles 8:1357, 8:1358 and 8:1359 in case of loss of goods***).
- 4. The air carrier is not required to check whether the indications given to him and the information and documents provided to him are correct or sufficient*).
- 5. Article 8:1362, paragraph 2, 3, 4 and 5, shall apply accordingly, except in case of a time charter, when after the end of the period within which the goods should have been placed at the disposal of the air carrier, the obligations of the consignor as referred to in paragraph 1, have not been complied with in full or in part, for whatever reason, or when after the end of the period within which the information and documents meant in paragraph 2 should have been made available, that information or these documents are not properly present, for whatever reason.

*) This provision is in agreement with other provisions in the Dutch Civil Code (DCC) for other modes of transport (See Articles 8:26, 8:394, 8:910, 8:1114 and 8:1191.
**See Article 16 of the Montreal Convention of 28 May 1999.
***) This provision is derived from Article 8:395 paragraph and is not present in the Montreal Convention of 28 May 1999.

Article 8:1371 Evidentiary value of the documents*)
- 1. The air waybill or the cargo receipt constitutes evidence, subject to counter-evidence, of the conclusion of the contract, of the receipt (acceptance) of the goods (cargo) and of the terms and conditions of carriage mentioned therein.
- 2. Statements in the air waybill or the cargo receipt relating to the weight, dimensions and packing of the goods (cargo), as well as those relating to the number of packages, have evidential (probative) value, subject to counter-evidence; those relating to the quantity, volume and condition of the goods (cargo) only constitute evidence against the air carrier insofar as he has checked and acknowledged the correctness of these statements in the presence of the consignor and has specified that correctness in the air waybill or the cargo receipt, or insofar as these statements relate to the apparent (visible) condition of the goods (cargo).

*) See Article 11 of the Montreal Convention of 28 May 1999

Article 8:1372 Extraordinary air transport*)
Articles 8:1365, paragraph 1, 2 and 4, and 8:1366 and 8:1367, do not apply in the case of transport (carriage) performed in extraordinary circumstances outside the normal scope of the air carrier’s business.

*) See Article 51 of the Montreal Convention of 28 May 1999.

Article 8:1373 Right of disposition of cargo*)
- 1. On the condition that the consignor complies with all his obligations under the contract of carriage of goods, he has the right to dispose of the goods (cargo), either by withdrawing them at the airport of departure or destination, or by stopping them in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of a journey to a person other than the consignee originally designated, or by requiring the goods to be returned to the airport of departure, all as far as the exercise of such right does not prejudice the air carrier or other consignors (senders), and under the obligation to reimburse any expenses occasioned by the exercise of this right.
- 2. If it is impossible to carry out the instructions of the consignor, the air carrier must immediately notify the consignor thereof.
- 3. If the air carrier carries out the instructions of the consignor for the disposition of the goods (cargo) without requiring the production of the print of the air waybill or the cargo receipt delivered earlier to the consignor, the air carrier will be liable, without prejudice to his right of recovery from the consignor, for any damage which may be caused thereby to the legitimate holder of that print of the air waybill or the cargo receipt.
- 4. The right of disposition conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 8:1374. However, if the consignee declines to accept the goods (cargo), or cannot be communicated with, the consignor resumes his right of disposition.

*) See Article 12 of the Montreal Convention of 28 May 1999.

Article 8:1374 Delivery of the cargo*)
- 1. Except when the consignor has exercised the right granted to him under Article 8:1373, the consignee is entitled, immediately upon arrival of the goods (cargo) at the place of destination, to claim from the air carrier delivery of the goods (cargo) against payment of the amounts (charges) due and on complying with the conditions of carriage.
- 2. Unless stipulated otherwise, the air carrier must immediately notify the consignee of the arrival of the goods (cargo).
- 3. If the air carrier admits the loss of the goods (cargo), or the goods (cargo) have not arrived at the expiration of seven calendar days after the date on which they ought to have arrived, then the consignee is entitled to enforce against the air carrier the rights which result from the contract of carriage.

*) See Article 13 of the Montreal Convention of 28 May 1999.

Article 8:1375 Enforcement of the rights of the consignor and consignee*)
The consignor and the consignee may enforce all the rights given to them by, respectively, Articles 8:1373 and 8:1374, each in his own name, irrespective whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed on him by the contract of carriage.

*) See Article 14 of the Montreal Convention of 28 May 1999.

Article 8:1376 Relations of the consignor and consignee or mutual relations of third parties*)
- 1. Articles 8:1373, 8:1374 and 8:1375 do not affect the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.
- 2. It is only possible to derogate from the Articles mentioned in paragraph 1 by means of an express provision in the air waybill or cargo receipt.

*) See Article 15 of the Montreal Convention of 28 May 1999.

Article 8:1377 Expenses en route
Without prejudice to Section 1 of Title 4 of Book 6 of the Civil Code, the consignor and consignee are jointly and severally liable for the damage suffered by the air carrier because he has voluntarily taken on himself to look after the interests of the person entitled to the goods (cargo) received for transport.

*) This provision is derived from the Articles 8:488 and 8:1129 DCC, and not present in the Montreal Convention of 28 May 1999.

Article 8:1378 Air carrier’s right of retention*)
- 1. The air carrier is entitled to withhold delivery of the goods which, in connection with the contract of carriage, are under his control; he may exercise this right against everyone who, other than on account of the contract of carriage, has a right to take delivery of the goods, unless the goods have been seized (arrested) and from the pursuance of that seizure (arrest) results an obligation to hand over the goods to the seizor.
- 2. The rights granted to the air carrier under paragraph 1 cannot be invoked against a third person if the air carrier, at the moment on which he received the goods for transport, had reason to doubt whether the consignor was authorised (competent), in his relation to that third person, to place the goods at the disposal of the air carrier.

*) The Montreal Convention of 28 May 1999 does not provide a similar rule. Article 8:1378 is derived from comparable provisions in Book 8 of the Dutch Civil Code (see Articles 8:30, 8:489, 8P:945 and 8:1131). Since the air carrier’s right of retention is not regulated in Article 8:1378, nor in any other Section of Part V for Air law of the Dutch Civil Code, the air carrier has to turn to Article 8:30 paragraph 2 and 3, which contains general provisions for transport.

Article 8:1379 Right to storage the goods with a safekeeper*)
- 1. The air carrier is entitled to store the transported goods (cargo) with a third person in a suitable repository for account and risk of the person who is entitled to them, when the person who towards the air carrier has the right to take delivery of the transported goods does not show up, declines to accept the goods or does not take delivery of the goods with the required speed, or when the goods have been seized (arrested) or when the air carrier has well-founded reasons to believe that the person who presents himself as the one who is entitled to the goods nevertheless has no right to take delivery of them. Upon the request of the air carrier, the court may grant the air carrier authorization to keep the goods under his own control, or proclaim other measures in this respect.
- 2. The third person who keeps the goods in custody (safekeeper) and the consignee (recipient) are legally bound to each other as if the safe custody agreement concerning the storage has been concluded between them as well. The safekeeper, however, is not authorized to hand over the goods unless he has the written approval to do so of the person who has given the goods to him in safe custody.
- 3. The air carrier must notify the consignor and consignee (recipient) as soon as possible of the storage and of the reasons which have lead to it; such notice is given for account of the person entitled to the goods; the air carrier must be able to show that the notice has been received by the consignor and consignee (recipient).

*) The Montreal Convention of 28 May 1999 does not provide a similar rule. Article 8:1378 is derived from comparable provisions in Book 8 of the Dutch Civil Code.

Article 8:1380 Sale of the stored goods; information duty*)
- 1. Where Article 8:1379 applies, the air carrier, the safekeeper or the person who towards the air carrier has the right to take delivery of the goods, may be authorized by court, upon request, to sell all goods or a part thereof in a way to be determined by the court.
- 2. The safekeeper must inform the air carrier as soon as possible of the intended sale; the air carrier has the same obligation towards the consignor and towards the person who towards the air carrier has the right to take delivery of the goods.
- 3. The proceeds of the sold goods are deposited with the clerk of the court as far as they are not intended for the payment of the costs of storage and sale and, within the limits of reason, of the costs made. Unless the goods have been seized for a monetary debt-claim, the air carrier must receive from the amounts to be deposited what is due to him on account of the transport (carriage); insofar as these debt-claims are not yet established, the proceeds or a part thereof shall serve as security (collateral) for those debt-claims, which security (collateral) is to be provided in a way to be determined by the court.
- 4. The proceeds that have been deposited with the clerk of the court shall take the place of the goods (cargo).

*) The Montreal Convention of 28 May 1999 does not provide a similar rule. Article 8:1378 is derived from comparable provisions in Book 8 of the Dutch Civil Code.

Article 8:1381 Selecting and sorting costs*)
The cost of selecting and sorting the goods (cargo), to the extent necessary for a proper delivery, shall be borne by the air carrier.

*) The Montreal Convention of 28 May 1999 does not provide a similar rule. Article 8:1378 is derived from comparable provisions in Book 8 of the Dutch Civil Code and results from the contract of carriage itself.

Article 8:1382 Receipt of goods without complaint*)
When the consignee has taken delivery of the goods (cargo) without protest (receipt without complaint), it is presumed that the goods have been delivered in good condition and in accordance with the document of carriage or with the data recorded by the other means referred to in Article 8:1365, paragraph 2.

*) See Article 31(1) of the Montreal Convention of 28 May 1999. Article 8:1382 DCC must be considered in connection with Article 8:1834 of Title 8.20 DCC (‘Prescription’), that contains the provisions of Article 31(2) of the Montreal Convention of 28 May 1999.

[Articles 8:1383-8:1389 reserved for future legislation]

Section 8.16.3 Contract for the transport of passengers by air*)

*) Where the transport of passengers is covered by Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ L 285 of 17-10-1997), Section 8.16.3 DCC does not apply (see Article 8:1346 DCC). Because of the far-reaching scope of that European Regulation (all transport of passengers by air within or outside the European Community by air carriers domiciled in the European Community), Section 8.16.3 DCC only has restricted influence. This, however, cannot be said in regard of the Montreal Convention of 28 May 1999, since the European Regulation explicitly implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air, and lays down certain supplementary provisions. It also extends the application of these provisions to carriage by air of passengers and their baggage within a single Member State.

Article 8:1390 Definition of an ‘air passengers contract’*)
For the purpose of the present Section (Section 8.16.3), an air passengers contract is a contract of carriage of persons, whether or not being a time charter or voyage charter, under which one of the parties (the air carrier) has engaged himself towards the other party to transport one or more persons (passengers), whether or not including their baggage, exclusively by air on board of an aircraft.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1391 Period of air transport of passengers*
The period of air transport of passengers and their unchecked baggage comprises the time during which the passenger finds himself on board of the aircraft, and the time of any act relating to the boarding and deboarding from the aircraft.

*) See Article 17(1) of the Montreal Convention of 28 May 1999.

Article 8:1392 Time charter and voyage charter*)
For the purpose of the present Section (Section 8.1.3), ‘time charter’ and ‘voyage charter’ means the contract of carriage of persons, under which the air carrier has engaged himself to transport passengers on board of an aircraft, which aircraft he has placed to this end, in its entirety, and whether or not on a time base (time charter or voyage charter), at the disposal of his counterparty (charterer), yet on another ground than a contract whereby one of the parties engages himself to place an aircraft at the disposal of his counterparty without keeping any power of control over that aircraft.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1393 Liability for death or physical injury of passengers*)
The air carrier is liable for damage caused by death or physical injury of a passenger if the accident causing the damage took place during the period specified in Article 8:1391.

*) This provision only applies when neither European Regulation 2027/97 nor the Montreal Convention of 28 May 1999 nor the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air of 12 October 1929, applicable, although the matter is governed by Dutch law. This will be the case only where it concerns a purely national air transport of passengers and their luggage by an air carrier not established as such in the European Union or established in a State that is not a Contracting Party to the Warsaw or Montreal Convention.

Article 8:1394 Liability for checked and unchecked baggage*)
- 1. The air carrier is liable for damage caused by destruction or loss of, or damage to checked baggage if the event causing the damage took place during the period specified in Article 8:1351. The carrier is not liable if the damage resulted from the nature or inherent vice of the baggage.
- 2. The carrier is liable for damage caused by destruction or loss of, or damage to unchecked baggage, including personal items, if the damage resulted from his fault or that of the persons of whose assistance he has made use in the performance of his obligation.

*) See Article 17(2) of the Montreal Convention of 28 May 1999.

Article 8:1395 Provisions for carriage of goods apply accordingly*)
- 1. Without prejudice to the provisions of the present Section (Section 8.16.3), Articles 8:1351, 8:1357, 8:1358, 8:1370, 8:1377, 8:1378, 8:1379 and 8:1380 shall apply accordingly to the transport of baggage.
- 2. Parties are free to derogate from the Articles which have been declared applicable to their mutual relationship pursuant to paragraph 1.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision, but overall has the same effect.

Article 8:1396 Delay*)
- 1. The air carrier is liable for damage resulting from delays in air travel.
- 2. The air carrier is not liable for damage resulting from delay if he and the persons of whose assistance he has made use in the performance of his obligation, have taken all measures that could reasonably be required to avoid damage, or when it was impossible for him and them to take such measures.

*) See Article 19 of the Montreal Convention of 28 May 1999.

Article 8:1397 Passenger’s own fault or negligence*)
- 1. If the air carrier proves that a fault or omission (negligence) of the person claiming damages or of the person from whom that person has derived his rights, has caused the damage or has contributed to it, then the air carrier shall be released in full or in part from his liability towards the person claiming damages as far as that fault or omission (negligence) has caused the damage or has contributed to it.
- 2. If compensation is claimed for death or physical injury of a passenger by another person than that passenger, then the air carrier shall likewise be released in full or in part from his liability to the extent that he proves that the damage was caused or contributed to by a fault or omission (negligence) of the passenger.
- 3. The present Article applies to all liability provisions in the present Section (Section 8.16.2), including Article 8:1399, paragraph 1.

*) See Article 20 of the Montreal Convention of 28 May 1999.

Article 8:1398 Mandatory law*)
- 1. Any stipulation (clause), tending to release the air carrier from liability imposed on him pursuant to the present Section (Section 8.16.3) or to a fixed lower limit of liability than provided pursuant to the present Section (Section 8.16.3), is null and void, but nullity of such stipulation (clause) does not lead to nullity of the contract which continues to be governed by the present Section (Section 8.16.3).
- 2. The provision meant in paragraph 1 is without prejudice to Article 8:1395, paragraph 2.

*) See Article 26 of the Montreal Convention of 28 May 1999.

Article 8:1399 Exoneration of liability for damage exceeding the liability limit
- 1. The air carrier is not able to limit or exclude his liability for damage as meant in Article 8:1393 that does not exceed an amount or amounts to be set by Order in Council*).
- 2. The air carrier is not liable for damage as meant in Article 8:1393 as far as it exceeds an amount or amounts to be set by Order in Council, if he proves that:
a. the damage was not due to the fault or negligence on his part or of the persons of whose assistance he has made use in the performance of his obligation, or;
b. the damage was solely due to the fault or negligence of a third person*).
- 3. Article 8:1359, paragraph 3, applies accordingly**).

*) See Article 12(1) of the Montreal Convention of 28 May 1999.
**) See Article 22(6) of the Montreal Convention of 28 May 1999.

Article 8:1400 Limitation of liability by law
- 1. In case of damage caused by delay as specified in Article 8:1396 in the transport of passengers, the liability of the air carrier is limited to an amount or amounts to be set by Order in Council*).
- 2. In the carriage of baggage, the liability of the air carrier in case of destruction, loss, damage or delay is limited to an amount or amounts to be set by Order in Council, except when the passenger has made, at the time when the checked baggage was handed over to the air carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum at a higher rate if the case so requires. In that case the air carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that this sum is greater than the passenger’s actual interest in delivery at destination**).
- 3. Article 8:1359, paragraph 3, applies accordingly***).

*) See Article 22(1) of the Montreal Convention of 28 May 1999.
**) See Article 22(2) of the Montreal Convention of 28 May 1999.
***) See Article 22(6) of the Montreal Convention of 28 May 1999.

Article 8:1401 Own fault or omission of the air carrier or his subordinates*)
The liability limits mentioned in Article 8:1400 do not apply if it is proved that the damage is the result of an own act or own omission (negligence) of the air carrier or of any person of whose assistance he has made use in the performance of his obligation, that took place, either with intent to cause damage or recklessly and with knowledge that damage would probably result; in the case of an own act or own omission (negligence) of a person as referred to above, it must be proved also that he acted in the performance of the work for which he was hired.

*) See Article 22(5) of the Montreal Convention of 28 May 1999.

Article 8:1402 Legal actions against a subordinate (assisting person) of the air carrier*)
- 1. When a legal claim has been filed in court on the basis of damage (loss) as referred to in the present Section (Section 8.16.3) against a person of whose assistance the air carrier has made use in the performance of his obligation, then that person may invoke the same limit of liability which the air carrier could have invoked pursuant to Articles 8:1399 and 8:1400, provided that the person who is held liable as such proves that he has acted in the performance of the work for which he was hired.
- 2. The total amount of damages which in that case may be obtained from the air carrier and the persons referred to in the paragraph 1, may not exceed the limit mentioned in Articles 8:1399 and 8:1400.
- 3. Paragraph 1 and 2 shall not apply if it is proved that the damage resulted from an own act or own omission (negligence) of the person meant in paragraph 1, that took place either with intent to cause damage or recklessly and with knowledge that damage would probably result.

*) See Article 30 of the Montreal Convention of 28 May 1999.

Article 8:1403 Nature and extent of the damage*)
In the event of physical injury or death of the passenger, Articles 107 and 108 of Book 6 of the Civil Code do not apply to claims which the air carrier files against another air carrier in the capacity as his counterparty to a contract.

*) The Montreal Convention of 28 May 1999 does not contain a separate provision regarding the nature and size of the damage. Furthermore, Article 29 of that Convention explicitly does not affect the question which persons may file any legal claim in court against the air carrier.

Article 8:1404 Obligation of the counterparty when the passenger does not show up*)
The counterparty of the air carrier must compensate the damage which the air carrier suffers because the passenger, for whatever reason, where not present in time for transport.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1405 Liability for not providing the necessary document*)
The counterparty of the air carrier must compensate the damage which the air carrier suffers because the documents, required on the part of the counterparty to perform the transport, are not, for whatever reason, adequately available.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision. See, however, Article 9 of that Convention.

Article 8:1406 Liability of passengers*)
- 1. Without prejudice to Article 179 of Book 6 of the Civil Code, the passenger is obliged towards the air carrier to compensate the damage that he or his baggage has caused, and this by the mere fact that the incident causing that damage took place during the period meant in Article 8:1391 or, where it concerns checked baggage, during the period specified in Article 8:1351.
- 2. As damage is deemed to be the amount that the air carrier has assessed in his reasonable opinion, but if the air carrier thinks that the damage exceeds an amount of € 227 he must prove so.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1407 Termination right of the air carrier in case of unknown circumstances*)
- 1. If, before or during the transport, circumstances arise or come forward on the part of the counterparty or of the passenger**), of which the air carrier not ought to have been aware at the conclusion of the air passenger contract, but which, if he had known them, reasonably would have been a reason for him not to enter into that contract or to enter into it on different terms and conditions, then the air carrier has the right to terminate the air passenger contract and to remove the passenger from the vehicle.
- 2. Such termination is effected by means of a verbal or written notice to the counterparty of the air carrier or to the passenger, and the air passenger contract shall end at the moment of receipt of the first received notice.
- 3. After termination of the air passenger contract, parties must, to standards of reasonableness and fairness, compensate the damage that the other suffers as a result of the termination.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.
**) Not on the part of the air carrier, this in contrast to the general provision for passenger transport contracts laid down in Article 8:88.

Article 8:1408 Termination right of the counterparty in case of unknown circumstances*)
- 1. If, before or during the transport, circumstances arise or come forward on the part of the transport operator, of which his counterparty not ought to have been aware at the conclusion of the air passenger contract, but which, if the counterparty would have known them, reasonably would have formed a reason for him not to enter into that contract or to enter into it on different terms and conditions, then that counterparty has the right to terminate the air passenger contract.
- 2. Such termination is effected by means of a verbal or written notice, and the air passenger contract shall end at the moment of receipt of that notice.
- 3. After termination of the air passenger contract, parties must, to standards of reasonableness and fairness, compensate the damage that the other suffers as a result of the termination.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1409 No timely return of the passenger*)
Where the passenger, after he has left the aircraft, does not return in time, the air carrier may at that moment consider the agreement as being ended.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1410 Termination right of the counterparty under the obligation to pay damages*)
- 1. The counterparty**) of the air carrier is always entitled to terminate the air passenger contract. He then is obliged to compensate the air carrier for the damage which the air carrier suffers as a result of such termination.
- 2. The counterparty is not able to exercise this right of termination if, as a consequence thereof, the journey of the aircraft would be delayed.
- 3. The termination is effected by means of a verbal or written notice, and the air passenger contract shall end at the moment of receipt of that notice.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.
**) A passenger who is not the counterparty of the air carrier misses this termination right; he is only able to withdraw himself physically from the transport.

Article 8:1411 Documents in regard of passengers and baggage*)
- 1. In the event of transport of passengers by air, an individual or collective document of transport (carriage) shall be issued.
- 2. The issuance of the transport document referred to in paragraph 1 may be replaced by the use of any other means through which the data concerning the journey are recorded. If such other means are used, the air carrier shall offer to issue to the passenger a written statement of the data so recorded.
- 3. The air carrier shall issue to the passenger a baggage identification tag for each piece of checked baggage.
- 4. The passenger shall be given written notice to the effect that where the present Title (Title 8.16) is applicable, it governs the liability of air carriers and may limit that liability in respect of death or physical injury and for destruction, loss of, or damage to, baggage, and for delay.
- 5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or validity of the air passengers contract, which shall, nonetheless, be subject to the provisions of the present Title (Title 8.16), including those relating to limitation of liability.
- 6. Paragraph 1 does not apply between the parties to a chartering.
- 7. Articles 56, paragraph 2, 75, paragraph 1, and 186, paragraph 1, of Book 2 of the Civil Code are not applicable.
- 8. The present Article does not apply in the case of transport (carriage) performed in extraordinary circumstances outside the normal scope of the air carrier’s business**).

*) See Article 3 of the Montreal Convention of 28 May 1999.
**) See Article 51 of the Montreal Convention of 28 May 1999.

Article 8:1412 Moment on which the baggage is to be handed over to the passenger*)
Immediately after arrival at the place of destination, the passenger has the right to claim from the air carrier the handing over of the baggage.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision.

Article 8:1413 Expenses made en route*)
Without prejudice to Section 1 of Title 4 of Book 6 of the Civil Code, the counterparty of the air carrier is obliged to compensate to the air carried the damage which the air carrier has suffered because he has voluntarily taken on himself to look after the interests of the passenger in relation to his baggage.

*) The Montreal Convention of 28 May 1999 does not contain a similar provision

Article 8:1414 Receipt of checked baggage without complaint*)
When the passenger has taken delivery of the baggage without protest (receipt without complaint), it is presumed that this baggage have been handed over in good condition and in accordance with the transport document or with the data recorded by the other means referred to in Article 8:1411, paragraph 2.

*) See Article 31(1) of the Montreal Convention of 28 May 1999. Article 8:1414 DCC must be considered in connection with Article 8:1834 of Title 8.20 DCC (‘Prescription’), that contains the provisions of Article 31(2) of the Montreal Convention of 28 May 1999.

[Articles 1415 - 1419 reserved for future legislation]

Section 18.6.4 Successive air transport

Article 8:1420 Successive air transport*)
- 1. Where the transport is governed by Article 8:1344 and has to be performed by various successive air carriers, each air carrier who accepts passengers, baggage or other goods is subject to the provisions of the present Title (Title 8.16); such air carrier is deemed to be one of the parties to the air transport contract insofar as that contract deals with that part of the transport which is performed under his supervision.
- 2. In case of such transport, the passenger or any person who has derived from him a right to damages, can only take recourse (legal action) against the air carrier which performed the transport during which the accident or delay occurred, except in the case where the first air carrier has assumed (accepted), by express agreement, liability for the whole journey.
- 3. Where it concerns baggage and other goods, the passenger, respectively, the consignor will have a right of recourse against the first air carrier; the passenger or consignee who has the right to take delivery or the passenger will have a right of recourse against the last air carrier; furthermore, each of them may take recourse against the air carrier who performed the transport during which the destruction, loss, damage or delay took place. These air carriers will be jointly and severally liable to the passenger, the consignor and the consignee.

*) See Article 36 of the Montreal Convention of 28 May 1999.

[Articles 8:1421 – 8:1549 reserved for future legislation]

Applicability of Titles 8.15 and 8.16 DCC

The provisions of Book 8 of the Civil Code apply only to the extent that the Montreal Convention of 28 May 1999 or, respectively, the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air of 12 October 1929*) and European Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents do not cover a matter regarding the transport of passengers or cargo by air, provided, of course, that the matter is governed by Dutch law. The Montreal Convention merely deals with international air transport. In doing so, it does not provide a regulation for all matters of international air transport. Therefore, Book 8 of the Civil Code even may have meaning for matters of international air transport, namely in respect of subject-matters for which the Montreal Convention does not provide any rule. Such matters then have to be dealt with by national provisions of Dutch air law. Book 8 of the Civil Code shall have implications as well in matters of purely national air transport. Although national air transport is of minor importance in comparison to international air transport, this does not mean that national air law can be missed entirely. Because there is no good reason to make a legal distinction between national and international air transport, the national provisions of Book 8 follow those of the Montreal Convention and add some other provisions to it that are characteristic for Dutch civil law and Dutch transport law. These additional provisions do not conflict with the Montreal Convention.

The European Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents only has meaning in respect of transport by air of passengers and their baggage, and therefore not for the carriage of goods, irrespective of whether it concerns national or international air carriage. So in respect of the carriage of goods by air only the Montreal Convention (international matters covered by that Convention) and Book 8 of the Civil Code (international matters not covered by the Montreal Convention and national matters) have relevance. With regard to air transport of passengers and their baggage, the European Regulation covers the liability of the air carrier for death and physical injury of passengers, and issues some supplementary provisions. It explicitly refers to the application of the provisions of the Montreal Convention, yet without accepting any limitation of liability in case of death of physical injury of a passenger. The European Regulation has meaning for all so called community air carriers, i.e. air carriers with an operation license granted by one of the EU Member States, or, to name it simply, established as an airline business in a EU Member State. Air carriers established outside the European Union do not fall within the scope of this European Regulation, not even if they fly to airports situated within the European Union on account of (bilateral) rights to land (landing slots) there. For such air carriers only the Montreal Convention remains effective in full.

Community air carriers are subject to the European Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents irrespective of whether it concerns solely domestic air transport within one EU Member State, air transport between two or more EU Member States or air transport with a place of departure and/or destination outside the European Union. Every court of each EU Member State to which a legal action is brought against an air carrier established within the European Union has to apply the European Regulation when that debt-claim is based on damage caused by death or physical injury of passengers or when it is based on damage caused to their baggage. Like the Montreal Convention, to which the European Regulation refers, also that European Regulation itself does not cover all possible matters which may arise in case of air transport. So in matters of international air transport of passengers and their baggage, with regard to which neither the European Regulation nor the Montreal Convention provides a solution, Dutch national air law may still be relevant, on the condition that according to private international law Dutch law has to be applied. For national air transport of passengers and their baggage, the Montreal Convention stays out of the picture; as far as the air carrier is established in the European Union, the European Regulation is applicable. Yet, provided that the matter is governed by Dutch air law, Book 8 of the Civil Code still may be of importance where it concerns matters not falling within the scope of the European Regulation. In relation to air carriers who or not established within the European Union, the European Regulation itself has no importance. Merely the Montreal Convention is of influence or, as far as that Convention does not provide a regulation for a specific subject-matter, the answer has to found in the applicable national law.

*) The Netherlands are a Contracting Party to the Warsaw Convention 1929. Insofar as a matter is not dealt with by the Montreal Convention, but it would fall within the scope of the Warsaw Convention, this last Convention therefore still applies. This means that the Warsaw Convention remains important between States who have ratified this Convention, while one of them (or even both) have not entered into the Montreal Convention (for instance India). The implication of the Warsaw Convention on Dutch law is then the same as of the Montreal Convention.