Alexander Korthals Altes 68 for wrong or defective stowage and placing of the cargo in the ship (also when this operation actually was executed by one of his crew), as a superfluous provision In view of the general rule, laid down in sect. 345. With as much reason Kist held that though the provisions spoke about the master (‘shipper’) as the party responsible, the liability ultimately incumbed upon the owner as the master’s employer. The nature of the carriagecontract of general cargo he considered to be a mere hire of services, not contracting a particular work (conductio operis): this made carriage a divisible contract, while the latter is indivisible. I mention this because it explains a difficulty which haunted the Dutch authors and statutemakers of a century ago. The nature of the contract as Kist and a majority of other writers of that period considered carriage of goods, did not as such (eo ipso) vest on the carrier an obligation to preserve the goods: it is the wording of the statutory provision that did that. Therefore the Dutch Railway Statute of 1875 and likewise later statutes on carriage, expressly provide for the duty to carry safely, as was thought necessary in those days. Only in later years of the past century some authors arrived at the opinion that the carriagecontract was not only an obligation ‘to do’ something, but that its performance was also based upon the obligation ‘to give’ something: to wit, delivery of the cargo upon arrival. And the obligation ‘to give’, according to general civil law of obligations, does not only imply the duty to deliver the goods but to take care in preserving them as a bonus pater familias. 4. This view—the contract of carriage in itself burdens the carrier with the duty to preserve—was shared by Molengraaff, and was applied in his Reform Draft of the maritime law-part of our Commercial Code, which passed our Parliament in 1924 and came in force in 1927. But we have to mark our steps here once more, and say something about developments in world trade In those years. The growth of the ocean-carriage in quantity and in complexity, the speed and risks involved with the development of the steamship together with increasing value of both ship and cargo, it all caused the carrier to contract out of his legal liabilities or to limit his liability. Dutch courts generally upheld these exonerations, our Court of Cassation in 1887 even one for negligent stowage. With a one vote majority the Netherlands Lawyers Association in 1886 voted against legal sanctions in regard of these exoneration clauses. Only seven years later the United States adopted the Harter Act which indeed did forbid such clauses in an attempt to harmonise the conflicting interests of carriers and cargo-parties.
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