In Denmark, a new version of the General Conditions of Danish port activities (DHAB) has been agreed on and the new version of DHAB, DHAB 2016, can be used from 31 January 2017. According to the Danish Port Operators (Danske Havnevirksomheder), the new version of DHAB is a review and a modernization of the conditions in general.
DHAB are general conditions commonly used by Danish port operators, when port operations are agreed and carried out. DHAB are drafted by the Danish Port Operators, and are not an agreed document. In DHAB, a limitation of the port operator’s liability on respectively 25,000 SDR per occurrence and accumulated 500,000 SDR for all orders is included, and claims against the port operator become time-barred after 10 months. In addition, the port operator has a lien on goods under the port operator’s control for any claims, including old debt not related to the goods actually in the port operator’s custody.
The general conditions concern stevedoring primarily, but they are not limited to stevedoring. The general conditions can also be used for other operations, which relate to port operations and stevedoring, such as storage. The changes from DHAB 2007 to DHAB 2016 illustrate that the port operators undertake more assignments deviating from stevedoring in its classical sense.
There are several changes when comparing DHAB 2007 and DHAB 2016. Some of the changes are emphasized below:
• The scope of application; according to DHAB 2016, henceforward DHAB can only be used by members of Danish Port Operators. In DHAB 2016, it is directly stated that DHAB only apply if the party appearing as port operator or equivalent in the agreement was a registered member of Danish Port Operators when the agreement was made. This is similar to the change of the scope of application in the recent revision of NSAB (General Conditions of the Nordic Association of Freight Forwarders) from NSAB 2000 to NSAB 2015, where the exclusivity of NSAB to apply to members only is stipulated. We do not view the exclusivity clause in DHAB 2016 as changing the legal position, and therefore DHAB 2016 apply contractually between two parties, if the parties have agreed on the application of DHAB.
• The interface between DHAB, DSAF (General Terms of Business for members of the Danish Shipbrokers’ Association) and NSAB is now regulated in DHAB. Now it is stated that unless otherwise explicitly agreed DHAB shall apply to any task performed by the port operator. If the port operator undertakes to perform tasks, which fall outside the scope of DHAB, but within the scope of DSAF, then DSAF apply, if the party invoking DSAF was a registered member of the Danish Shipbrokers’ Association at the time the agreement was made. If the port operator undertakes to perform tasks that fall outside the scope of both DHAB and DSAF, but within the scope of NSAB, then NSAB apply to such tasks, if the party appearing as freight forwarder was a member of the Nordic Association of Freight Forwarders at the time the agreement was made.
• The paragraph listing DHAB’s definitions has been extended in order for having definitions of “Cargo” and “Dangerous Cargo” included. Prior to DHAB 2016, “Cargo” and “Dangerous Cargo” was not defined. The reference to Dangerous Cargo is used in section 12, where it now is stipulated that the orderer (i.e. the party who has an agreement with the port operator) is strictly liable to the port operator for any damage or loss incurred by the port operator in relation to persons, property or the environment resulting from the orderer’s noncompliance with the rules and principles regarding Dangerous Goods.
• Further the definition of “Task” in DHAB has been changed, in order for any assignment and undertaking, which normally relate to port operations and stevedoring to be covered by DHAB. As subparagraph c to section 1 in the definition of Tasks a “catch-all condition” has been included, enabling all other assignments and tasks, which the port operator has assumed to be part of the specific agreement to be covered by the port operator’s tasks.
• In section 28 it is now stipulated that the orderer is strictly liable and shall indemnify the port operator against any loss or damage that may be incurred by the port operator, amongst others as a result of incomplete or insufficient information concerning the goods, incorrect packaging or labelling, stowing of the goods, the goods have harmful characteristics and the port operator has not been expressly informed of this, the port operator becomes liable for paying a fine, tax, customs duty etc. Because a strict liability on the orderer is stipulated, the orderer’s acts or omissions are therefore not relevant.
• In section 10, the port operator’s right of lien on goods has been expanded in order for it to correspond with the freight forwarder’s right of lien according to NSAB, meaning that the port operator’s right in DHAB 2016 now encompasses a right of retention and a lien on goods, documents, cash etc. under the port operator’s control for any claims and costs related hereto, including remuneration and warehouse rent, as well as for any other claim of the port operator against the orderer. In the previous edition, the port operator’s right of retention and lien was for “costs”, whereas DHAB 2016 is for all claims and costs. In section 10 of DHAB 2016, it is now clearly stipulated that the port operator’s right apply regardless of whether the claims and demands are connected or non-connected, and it is therefore clear that the port operator’s right applies to old debt.
• The limitations on liability on respectively 25,000 SDR per occurrence and accumulated 500,000 SDR for all orders are still effective, but now includes as well interest and total costs in the limitation amounts. The limitations of liability also apply to environmental damage, personal damage and death.
• According to DHAB 2016, the port operator may still invoke the limitation of liability even in case of gross negligence on the part of the port operator, its owners, management, employees or any third party for which the port operator is liable. In DHAB 2007, it was not possible for the port operator to invoke the limitation of liability in case of gross negligence.
• As in the previous version of DHAB, the port operator’s liability cannot exceed the limitations of liability as stated in section 26 of DHAB. A new insertion has been added to section 24 of DHAB 2016, according to which if the port operator becomes liable non-contractually, and the liability exceeds the limitations in DHAB, the orderer shall indemnify the port operator for the difference between the limitation of liability and the claim.
• As regards the extent of limitation of liability, it is emphasized in section 25, sub-section 3 of DHAB that the port operator has no liability for indirect or consequential loss of any kind. In DHAB 2016 examples of indirect and consequential losses like loss caused by delay, loss of profit, loss of production and loss of use have been added to section 25, subsection 3 in order to avoid the discussion of whether all kinds of indirect losses are excluded from the port operator’s liability.
• As regards any non-contractual claims, such as for product liability, direct claims and claims in tort raised by third parties against the port operator, the port operator may still invoke the limitation of liability, and the orderer is therefore obliged to indemnify the port operator for any amount in access of the limitation. Section 24 of DHAB 2016 has been expanded compared to DHAB 2007, where product liability claim, direct claims and claims in tort were not included in section 24.
• In the revision of DHAB, it has been taken into account that the port operator conducts tasks, which are not typical for the port operator. Consequently, the limitations of liability in section 26 (of 25,000 SDR and 500,000 SDR) now also apply in case the port operator offers other services, such as customs warehousing. Therefore, if a fine for infringement of custom rules or procedures is imposed on the port operator, the port operator shall only be liable for paying SDR 25,000 (including interest and total costs) as per section 26. Consequently, the orderer shall pay the remaining part of the fine (the amount of the fine exceeding the limitation of liability) including interest and total costs. In addition, the orderer is required to pay the port operator’s costs to treat the case or establish an adequate security for this (section 27).