Leiden Law Blog

Sun, sea, waves and warnings

Posted on by Wouter den Hollander in Private Law , 1
Sun, sea, waves and warnings Photo: MrFenwick

Summer has finally begun. On the occasion I cycled to Hoek van Holland. Unsurprisingly, this seaside village, which literally translates as ‘Corner of Holland’, owes its name to its location at the estuary of the Nieuwe Waterweg, the seaway of the Rotterdam port. A concrete pier makes it possible to walk between the seaway and North Sea. Within a stone’s throw large container ships, bulk carriers and the ferry to Hull pass by, towering high above the pier.

The pier is popular with fishing enthusiasts in particular. Some have set up their fishing rods on the pier. Others have climbed onto the concrete blocks keeping the pier in place, to cast their fishing lines. Fishing is not without danger, though. Even on a nice summer’s day, with a calm sea, one should be on guard. Waves, caused by passing vessels, can suddenly wash over the pier. Last year, a local television channel reported that three people fishing were surprised by such a surging wave and were washed away dozens of meters.

According to the report, authorities have pointed out that signs are supposed to sufficiently warn visitors to the pier and that anyone entering the pier is responsible for his own safety first. Indeed signs on gates at the entrance to the pier do indicate that entering the pier is at one’s own risk. A picture shows a large vessel causing a large wave next to the pier and the text ‘dangerous waves due to shipping traffic’. Halfway along the pier, the warning is repeated, with the addition ‘even during good weather’.

When is a warning ‘sufficient’? On the other side of the ocean, a woman standing on Maho Beach, Sint Maarten, was blown against the rocks by the ‘jetblast’ of a departing aircraft. She claimed damages, asserting that the sign on the gate separating the runway from the beach, indicating ‘Warning! Low flying and departing aircraft blast can cause physical injury’, did not suffice as a warning. The Court of Justice of the Netherlands Antilles decided that, given the sign, the woman could be informed of the danger. The Dutch Supreme Court, however, quashed this decision and decided that for a warning to suffice as a measure to protect against a certain danger it should be such that it can be expected to result in behaviour avoiding this danger. In view of this decision, the Court of Justice eventually decided that the Maho Beach warning sign was insufficient. It considered that given the fact that experience showed that the warning was likely not to be noted, the warning was not very probing and clear, while the consequences of a potential accident could be severe.

Whether the Hoek van Holland warning signs are sufficient thus remains to be seen. They warn of dangerous waves due to shipping traffic, pictured next to the pier, but not of the danger that these waves may actually wash away someone standing on the pier, possibly resulting in serious or even fatal injury. Having said that, one should keep in mind that the answer to this question eventually depends upon the exact circumstances of each case including, of course, the behaviour of and the degree of caution taken into account by the victim.

1 Comment

Carel Stolker
Posted by Carel Stolker on August 2, 2012 at 09:27

This is a very well chosen topic in this sunny time of year. Wouter den Hollander’s blog is important and touches upon the nature of legal research: whether it should remain doctrinal, or whether it should develop towards a more empirical approach. Fine examples of these two lines of research are two recently defended Dutch PhD dissertations in the area of private law: one in Leiden, the other in Rotterdam.

An excellent example of the doctrinal approach, which is more typical of the Leiden Law School, is Kasper Jansen’s thorough cum laude study: Informatieplichten (‘Information Duties’, Kluwer 2012, in Dutch). A superb example of the second line of research, being a product of the Erasmus Law School research programme ‘Civilology’, is Sanne Pape’s study from 2011: Warnings and product liability: Lessons learned from cognitive psychology and ergonomics (Eleven International Publishing 2012).

Pape claims that insights from cognitive psychology and ergonomics are essential for a thorough legal analysis of warnings in liability law. These insights shed light on people’s abilities and limitations with regard to understanding warning information and acting on it, as well as on how warnings can help preventing accidents. In a recent book review (TvC 2012/3), Professor Brack from Twente University praised the book as ground breaking, as well as daring and, as he perceives it, more complex than, ‘with all due respect’, traditional mono-disciplinary research. Apart from being less or more ‘difficult’, and apart from the question whether the research programme should sail under the colours of ‘
‘Civilology’ (Emeritus Professor Hondius from Utrecht University, e.g., is not persuaded, NTBR 2012/33), legal scholars are increasingly convinced that the doctrinal and the empirical approaches can no longer avoid or neglect one another. Instead, they need each other: the Leiden and Rotterdam studies, therefore, are complementary.

This implies that every legal academic should be vigilant of what happens on both sides of the legal scholarship spectrum. Wouter den Hollander is right: even on a nice summer’s day, with a calm sea, one should be on guard.

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