RS 8

70 Alexander Korthals Altes majeure, as seen from the carrier, neither that it needs to be unforeseeable as our Court of Cassation held in 1954. c. In regard of the guarantee laid down in its third sub-section, Molengraaff pointed for Erfullungsgehilfeto Sect. 1649 which makes the contractor for a particular work (locatio opens) responsible for his Erfullungsgehilfe. Behind the warranty of material used was MolengraafPs thought that this was the rule in the general Dutch law of obligations, especially in ‘obligations de resultat’. But the very existence of this rule was doubted by other authorlties and in 1968 our Court of Cassation denied it: whether the debtor of an ‘obligation de resultat’ guarantees his material, depends upon the nature of the contract, general concepts in social intercourse (‘Verkehrsauffassung’) and reasonableness. I cannot agree with Van Oven’s recent view ^ that nevertheless in carriage, there is a general rule that the carrier bears the risk of all defects in his means of transport: the author himself even admits to too many exceptions to the rule he is looking for. But Molengraaff’s reform was a compromise. After it was urged that regard should be taken to the new Bill of Lading Convention, the Code was amended in 1926. Its amendments were meant not to impair the validity of Hague Rules-based Bills of Lading and not to deem void Bill of Lading clauses valid under the Hague Rules. In this respect Molengraaff succeeded to a large extent (see for exceptions, Kist-Loeff, nr. 398, and the reversal of the burden of proof in favour of the ocean-carrier, invalid under the Hague Rules). One notable exception which gave rise to complaints of Dutch ocean-carriers that it thwarted themin their competition with Hague Rules-carriers, was abolished in 1939. Then the lawwas changed so that the carrier could henceforward validly insert a clause exonerating him for all loss or damage, occurring before loading of after discharge of the cargo (‘before and after’-clause). Like Harter Act and Hague Rules the 1924Reform Bill introduced a packagelimit, but unlike those, not as of law but merely by forbidding to insert a lower Bill of Lading clause package limitation than /. 600,—: then about half the equivalent of the Hague Rules limit of £100 (but in gold coin as art. 9 Bill of Lading Convention said). 5. In a way the Molengraaff-reform did delay the adaption by our country of the Hague Rules. It must be said that it was only slowly that the Bill of Lading Convention proved to be a success, to wit in the years just before the Second World War, and this formed a delaying fact of its own. Our ® Paper in Recht door Zee, Liber Amicorum for H. Schadee (1980).

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