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Experience in the Netherlands Regarding the Case-Law of the Chamber of Appeal of the Central Commission for Navigation on the Rhine

Published online by Cambridge University Press:  07 July 2009

W.E. Haak
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Extract

The Rhine is governed by an international regime. This dates back to 1804 when the Patent Treaty was signed between France and the German Empire. It contained the first rules relating to the abolition of the many local tolls and regulations and assigned responsibility for shipping and tasks related to this activity to a central organ. This process of internationalization was not abandoned during the Congress of Vienna. The Central Commission for Navigation on the Rhine, consisting of delegates from the riparian States, was set up in 1815 and was commissioned to draw up a new set of international rules on the basis of guidelines established by the Congress. The principle that navigation on the Rhine ‘sous le rapport du commerce’ [commercial shipping] should not be prohibited to anyone was a fundamental assumption in Vienna. Apart from this freedom of shipping — both in an economic and in a nautical sense — the aim was to abolish, or at least restrict, national tolls, duties and taxes, and to introduce a uniform approach in the traffic regulations applicable to the Rhine.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 19 , December 1988 , pp. 3 - 51
Copyright
Copyright © T.M.C. Asser Press 1988

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References

1. A controversy developed between the Netherlands and the other riparian States quite soon after the Congress of Vienna as to the correct interpretation of the phrase ‘jusqu'à la mer’ in the provision that shipping on the Rhine should be free ‘jusqu'à la mer’. Whereas the other States maintained that this meant that shipping on the Rhine was free down to the open sea (‘jusqu'à la pleine mer’ in the words of the later revised Convention on Rhine Navigation), the Netherlands employed the very one-sided interpretation, which was favourable to the imposition of levies in the estuary of the Rhine, that ‘jusqu'à la mer’ did not mean ‘jusqu'à dans la mer’, but ‘jusqu'à l'endroit éloigné de la haute mer, où se fait encore sentir l'action de la marée’; cf., Mischlich, R., ‘Le régime international de la navigation du Rhin’, X Revue trim. de droit commercial (1957) p. 244 et seq., at p. 249.Google Scholar

2. According to Bour, A., ‘Die Zentralkommission für die Rheinschiffahrt und ihre Beziehungen zu Einzelpersonen und hichtstaatlichen Organisationen’ [‘The Central Commission for Navigation on the Rhine and its Relationship with Non-governmental Organizations’], 16 Zeitschrift für Binnenschiffahrt und Wasserstrassen (1979) p. 318 et seq.Google Scholar

3. von Traut, J.B.E., Die Zentral-Kommission fur die Rheinschiffahrt und ihre Rechtsprechung von 1832–1911 [The Central Commission for Navigation on the Rhine and its Case-law 1832–1911], 2nd. edn. (1912).Google Scholar

4. Walther, H., La Jurisprudence de la Commission Centrale pour la Navigation du Rhin, 1832–1939 (1948).Google Scholar

5. Note that the Central Commission has, even after 1963, retained jurisdiction to render judgment. It permits that jurisdiction to be exercised by a special judicial body created for that purpose, the Chamber of Appeal.

6. This was the comment of the Dutch Government in the Explanatory Memorandum to the Bill of Approval of the Agreement to Amend the Revised Convention on Rhine Navigation signed at Strasbourg on 20 November 1963, Bijl. Hand. II 1965/1966—8364 No. 3 p. 3.

7. Trb. 1964 No. 83.

8. See Trb. 1967 No. 72.

9. See the article I wrote in the memorial anthology on the occasion of the twenty-fifth anniversary of the study circle, ‘Prof. Mr. J. Offerhaus’: ‘De vrijheid van de scheepvaart op de Rijn’ [The freedom of shipping on the Rhine’] (1987) p. 79 et seq.

10. Stb. 1869 No. 139.

11. Stb. 1913 No. 103.

12. Cf., Chamber of Appeal, 2 March 1977 NJ 1978 No. 62; S&S 1977 No. 80 (Président Henry F. Damour v. Walsum and A.T.S. 5) which refers to Art. 57 of the EEC Jurisdiction and Execution Convention. The case-law of the Chamber of Appeal is unfortunately not published in an orderly fashion. A number of important decisions have been published in the Dutch periodical, Schip en Schade (S&S). The reference in Schip en Schade is also accompanied by the names of the ships concerned. In addition, some decisions have been published in Nederlandse Jurisprudentie (NJ). The bulk of the decisions of the Chamber of Appeal are published in the Federal Republic of Germany in Zeitschrift für Binnenschiffahrt und Wasserstrassen (ZfB), viz., in the Sammlung der Rechtsprechung (Sammlung). In this article non-published decisions are cited with the roll number of the Chamber of Appeal.

13. Cf., Art. 35ter.

14. S&S 1977 No. 82 (Alchimist Bendorf v. Elizabeth).

15. Cf., Art. 18 of the EEC Jurisdiction and Execution Convention.

16. S&S 1976 No. 86 (Elja v. Alchimist Bendorf).

17. S&S 1971 No. 67 (Maas v. Uranus Andelia).

18. Cf., ECJ, 30 November 1976, case 21/76, NJ 1977 No. 494 JCS (the Reinwater case).

19. NJ 1981 No. 471.

20. Similarly, HR, 9 June 1981, NJ 1981 No. 472, Th. W.vV.

21. 174S-7/85, ZfB, No. 6/86, Sammlung S. 1168.

22. See the judgments of 28 October 1980 and 18 April 1985, 121S-8/80 and 174S-7/85, ZfB, No. 6/86, Sammlung S.1168, respectively. The earlier judgment also reveals procedural questions which were raised in the FRG by a summons which combines the features of a misdemeanour and a crime arising from the same act.

23. See n.6 supra.

24. For another example, see Chamber of Appeal, 3 November 1983, S&S 1983 No. 15 (Le Rhin 81 v. Harpen 3).

25. S&S 1969 No. 67 (St. Gérard).

26. For this type of case, see the Court of Arnhem, 8 June 1972, S&S 1973 No. 10 (Celia).

27. S&S 1975 No. 55 (Bylerward).

28. 182C-10/86.

29. Cf., also the Arnhem Court as a Rhine Navigation Tribunal after a case was remitted by the Chamber of Appeal, 4 August 1977, S&S 1978 No. 40 (Président Henry F. Damour v. Walsum and A.T.S. 5).

30. Stb. 1869 No. 139.

31. Chamber of Appeal, 24 January 1979, 106 P-9/79 and 107 P-10/79, both decisions reported in ZfB, No. 12/79, Sammlung S.763. See also 103 P-11/79.

32. Cf., Jonathan, G.C. et al. , Droits de l'Homme en France (1985) p. 120.Google Scholar

33. Cf., Art. 25, ECHR.

34. Cf., Chamber of Appeal, 21 January 1979, 99 P-2/79, ZfB, No. 11/79, Sammlung S. 759; 100 P-3/79, ZfB, No. 1/81, Sammlung S. 835; 101 P-8/79, ZfB, No. 12/79, Sammlung S. 763; and 102 P-1/79.

35. 187 P-6/86 and 188 P-7/86.

36. For the sake of completeness it may be pointed out that the Netherlands has made no use of the possibility created by Art. 1 of the Supplementary Protocol of 25 October 1972 to impose sanctions for offences within the meaning of Art. 32 of the Act of Mannheim by means of ‘special judicial proceedings’; see Art. 1(1)(c). The Supplementary Protocol was drawn up in the context of the development of the system of sanctions in the various States Parties so that some adaptation appeared desirable ‘in particular thereby to allow for sanctions for offences against the police shipping regulations issued after mutual consultation to be imposed through the agency of administrative authorities’, cf., the Preamble to the Supplementary Protocol.

37. According to Sauveplanne, J.G., L'Autorité Centrale en Droit Rhenan, 1 NTIR (1954) p. 140 et seq., at pp. 154, 155.Google Scholar

38. Cf., legal proceedings under the ECHR.

39. HR, 2 January 1899, W 7227

40. HR, 9 June 1981, NJ 1981 No. 472, Th. W.v.V. On the judgment of the Hoge Raad, mentioned supra n. 39, see in detail Von Traut, op.cit. n. 3, p. 29 et seq. In this judgment — a criminal case — the Hoge Raad assumed that no appeal could be made to the Central Commission in criminal cases, and that therefore the only available course to follow was the legal procedure of the Netherlands, including cassation. Also see the conclusion of Advocate-General Patijn prior to this judgment. In connection with this incorrect decision, the legislator stated explicitly in a second act of execution of 19 March 1913 (Stb. 1913 No. 103) that in criminal cases an appeal could also be lodged with the Commission. In 1981 the Hoge Raad assumed its jurisdiction in cassation in a criminal case which fell under the Act of Mannheim without giving any further reasons; also see the detailed conclusion by Advocate-General Remmelink prior to the judgment.

41. NJ 1981 No. 471.

42. See in this connection also the decision of the District Court of Arnhem, 21 December 1979, NJ 1980 No. 131. The District Court examined the registered letter of the defendant and in its decision reasoned that the defendant had appealed to the Central Commission against the decision of the Local Court at Nijmegen.

43. Trb. 1980 No. 8.

44. 14 June 1973, S&S 1974 No. 56 (Gottlieb Jäger and four Fendelduwbakken v. St. Michael); 2 March 1977, S&S 1977 No. 80 (Président Henry F. Damour v. Walsum and A.T.S. 5), also published in NJ 1978 No. 62.

45. Cf., Chamber of Appeal, 3 June 1976, S&S 1977 No. 20 (Damco 226 v. Maria Sophia III).

46. See Art. 4, para. 2 of the 1869 Act, as amended by the 1913 Act.

47. See Art. 4, para. 3 of the 1869 Act.

48. See Chamber of Appeal, 25 February 1981, 126 C-2/81, Bemm, W. and Kortendick, W., Rheinschiffahrts-polizeiverordnung [Rhine Navigation Police Regulations] (1983) p. 577Google Scholar; ZfB, no. 2/82, Sammlung 913.

49. Cf., Trb. 1967 No. 2.

50. In the Netherlands the Dutch and French texts of the Rules of Procedure were published in Trb. 1970 No. 69.

51. See Art. 2, Rules of Procedure.

52. It would be desirable if here also there could be unity amongst the States Parties and that they establish adequate compensation which would take account of the not unnegligible preparatory and finalisation activities involved in attending a hearing before the Chamber of Appeal.

53. Cf., Arts. 6 and 7 of the Rules of Procedure.

54. Ibid. Art. 18.

55. Ibid.

56. Cf., Ibid. Art. 9.

57. Cf., Chamber of Appeal, 31 October 1985, 178 B-8/85, ZfB, No. 4/86, Sammlung S.1162, a German criminal appeal judged by the Dutch judge as President, and the Belgian and Swiss substitute judges.

58. 194 B-2/87.

59. Cf., Frowein, J.A. and Peukert, W., Europäische Menschenrechtskonvention: EMRK-Kommentar (1985) ad Art. 1, nos. 14, 15.Google Scholar

60. The question arises what is the relationship to the International Covenant on Civil and Political Rights. Leaving aside the fact that not all the States Parties to the Act of Mannheim have acceded to the Human Rights Convention, in particular Switzerland is not a party, it remains a fact that the Central Commission does not fall within the scope of the Convention; cf., the Preamble and Art. 1 of the Convention. But that does not mitigate against the fact that where that Convention ought to be taken into account at first instance it cannot be ignored on appeal to the Chamber of Appeal in the exercise of its function of reviewing whether the court at first instance has properly fulfilled its task.

61. 22 November 1984, 169 B-8/84.

62. See Art. 10, Rules of Procedure.

63. Ibid. Arts. 15, 21.

64. Ibid. Art. 20.

65. From the Chamber of Appeal, 25 February 1981, NJ 1981, 471, a case originating from the Netherlands; cf., also, District Court of Arnhem, 21 December 1979, NJ 1980 No. 131 where it appeared that not only did the Public Prosecutor not appear at the hearing but that no oral proceedings took place at all. The parties in that case had not requested an oral hearing.

66. Art. 22, Rules of Procedure.

67. Ibid. Art. 22.

68. Ibid. Art. 9.

69. Ibid. Art. 16.

70. The Local Court procedure was originally set up as a simple oral procedure where the parties themselves could present the case. One can say that broadly speaking at the present time also the Cantonal court is there for smaller matters, that is, for monetary claims not exceeding Df1. 5,000 and in general hears all criminal infringements (thus, also infringements of the Rhine Police Regulations). But the exceptions have become numerous. Thus, the Cantonal court hears all employment and rent cases, which themselves have in the course of time become very complicated. It is anticipated that the Cantonal court shall be abolished or at least incorporated into the District Court.

71. Cf., Art. 134, Code of Civil Procedure.

72. Chamber of Appeal, 24 January 1979, 106 P-9/79; 107 P-10/79 (both published in ZfB, No. 11/79, Sammlung S. 763). See also 103 P-11/79.

73. Chamber of Appeal, 22 November 1984, 169 B-8/84.

74. See Chamber of Appeal, 6 May 1987, 194 B-2/87. See also 18 November 1986, 193 B-15/86.

75. See also regarding the International Covenant on Civil and Political Rights, supra n. 60.

76. Cf., Frowein and Peukert, loc.cit. n.59, pp. 18–19.

77. Cf., Arts. 20, 22 and 26 of the Rules of Procedure. I also refer to Art. 30 of the Rules of Procedure, in which the Chamber is awarded jurisdiction to use the procedural provisions laid down by the law of the court which delivered judgment at first instance, ‘in particular to ensure the right of the parties to plead their case’.

78. In the Netherlands the text can only be found in Trb. 1970 No. 69. Why is it not included in the standard editions of laws and statutes, such as Kluwer's Nederlandse Wetboeken or the Schuurman & Jordens editions?

79. In particular in the Zeitschrift für Binnenschiffahrt und Wasserstrassen. The FRG has also published an excellent commentary on the Police Regulations as regards navigation on the Rhine: Bemm and Kortendick, op.cit. n. 40.

80. Op.cit. n. 4.