General Conditions Dutch Association of Shipbrokers (NBMS)
These general conditions have been filed with the District Court in Rotterdam under number
63/99 on 29 March 1999.
Article 1 - Definitions
1.1 A broker is understood to be a person who is sworn as such by the District Court and
who acts as a mediator in bringing about and concluding agreements. The broker is not
permanently employed by the principal.
1.2 Agreement is understood to be an agreement between a principal and a third party
concerning the purchase, sale, charter, hiring out, (new) construction, renovation or
repair of ships and/or accessories, or other properties.
1.3 Principal is understood to mean he/she who gives one or more brokerage commissions
as meant in paragraph 4 of this article to a broker.
1.4 A brokerage commission is understood to mean the “agreement of commission”,
meaning the request of the principal of the broker to mediate in bringing about an
agreement as meant in paragraph 2 of this article.
Article 2 – Applicability of the general conditions
2.1 The general conditions apply to the relationship between broker and principal as well
as to all brokerage commissions between broker and principal.
2.2 In case of total or partial nullity or otherwise invalidity of one or more stipulations of
these conditions, the other stipulations remain in force.
2.3 Herewith, the applicability of conditions of the principal or a third party are explicitly
excluded. Deviating conditions are only binding if they have explicitly been accepted
in writing by the broker.
Article 3 – The bringing about and the nature of the brokerage commission
3.1 The brokerage commission is brought about when the commission has been given to
the broker by the principal, orally or in writing, and when the broker has accepted this
commission, orally or in writing.
3.2 A brokerage commission is exclusive, unless otherwise explicitly agreed upon. The
brokerage commission is deemed to have been entered into with the broker involved,
with the exclusion of other brokers and/or other intermediaries.
3.3 The principal may determine the price of the ship and/or accessories to a certain sum
or set a limit.
3.4 The brokerage commission as such is not considered to be a mandate to the broker to
enter into the agreement on behalf of the principal, unless explicitly otherwise agreed
upon. In that case, the principal must grant the broker a mandate to that extent in
writing.
3.5 Concerning a brokerage commission, the broker is not authorised to act as broker for
both parties, unless the principal has given permission for that.
Article 4 - Change of the brokerage commission
The principal is authorised to change the contents of the brokerage commission during the
term of the brokerage commission. The change will only come into force as of the moment
that the change has been made known to the broker and has been accepted in writing by him.
Article 5 - Term of the brokerage commission and termination
The brokerage commission is entered into for an indefinite term on the understanding that the
agreement can only be terminated by one of the parties after six months in compliance with a
term of notice of three months. In case of termination, this must take place by registered post
and at the end of a calendar month.
Article 6 - Conclusion of the brokerage commission
6.1 A brokerage commission concludes when the agreement that was the objective of the
brokerage commission has been brought about.
6.2 The agreement that was the objective of the brokerage commission, is also considered
to have been brought about if it has been entered into with a party, who must in
reasonableness be considered to belong to the same economical unity or concern as the
principal and/or party whom the broker has contacted for his principal.
6.3 A brokerage commission also concludes if the broker returns his brokerage
commission as a result of the fact that the principal has changed the contents of the
brokerage commission to such an extent that the agreement that was the objective
cannot in fairness be executed in the short term and which change has not been
accepted by the broker in writing (article 4).
Article 7 - Brokerage charges
7.1 The principal owes brokerage charges to the broker if an agreement is brought about
within the framework of the brokerage commission. If the agreement has been entered
into with the party whom in reasonableness can be considered to belong to the same
economical unity or concern as the principal and/or party whom the broker has
contacted for his principal, the brokerage charges are owed by the original principal.
7.2 The height of the brokerage charges is agreed upon in writing between the broker and
the principal. If this has not taken place, the percentage that is usual within the branch
of trade is charged.
7.3 The brokerage charges are calculated on total sum of the agreement brought about
within the framework of the brokerage commission, including additional work and
additional deliveries, that must be paid by one party to the other for the object in
accordance with the agreement that has been brought about.
7.4 If a broker has been granted an exclusive brokerage commission, the consequence is
that every agreement concerning a ship, and/or accessories or wharf or other object that
is brought about within the term of this brokerage commission is considered to have
been brought about by mediation of the broker. In that case, the broker is entitled to
the brokerage charges agreed upon.
7.5 If it has been determined that the agreement that has been brought about within the
framework of the brokerage commission will be paid in more than one instalment, the
sum of all instalments is used as basis for the calculation of the brokerage charges. If it
concerns an agreement on hiring out/new construction, brokerage charges are only
owed per payment made.
7.6 If the agreement that has been brought about within the framework of the brokerage
commission is not expressed as a sum of money, value of the subject of the agreement
is used as basis for the calculation of the brokerage charges. If the values and
performances of the parties are not deemed to be equal the highest value prevails.
Article 8 – Payments after the conclusion of the brokerage commission
8.1 During a period of six months after the conclusion of the brokerage commission as
meant in articles 5 and 6, the broker retains the right to brokerage charges agreed upon
in article 7, pertaining to agreements with persons, companies and bodies that have
been contacted or mentioned by the broker during the term of the brokerage commission.
8.2 After the conclusion of the brokerage commission as meant in articles 5 and 6, the
broker also retains the right to brokerage charges agreed upon in article 7, pertaining to
agreements that have been prepared/mediated by the broker during the term of the
brokerage commission, and that have been brought about after a period of six months
after the conclusion of the agreement. In that case, the broker must show that the
bringing about of the agreement is the result of his mediation during the term of the
brokerage commission.
8.3 If the brokerage commission is terminated by the principal within the meaning of
article 5, or the brokerage commission is returned by the broker within the meaning of
article 6.3, the principal is obliged to pay the (overhead) expenses and the office
expenses that have already been incurred by the broker for the execution of the
brokerage commission. The broker must make a reasonable case for the afore-
mentioned expenses.
Article 9 – Later/subsequent agreements in case of new construction
9.1 If a (subsequent) agreement concerning an other or the same object is brought about
between the same parties (or other parties as meant in article 6.2) within three years
after the conclusion of the brokerage commission as meant in articles 5 and 6, the
principal owes brokerage charges to the broker for this later agreement, in accordance
with the standard for brokerage charges that applies on the moment of the bringing
about of the later agreement.
9.2 If what has been laid down in paragraph 1 above will lead to unfair consequences in
the opinion of the principal, the principal must have the brokerage charges declared
partially or wholly non-payable by means of a binding opinion.
9.3 The pricipal can have the brokerage charges declared partially or wholly non-payable
by means of a binding opinion if that what has been laid down in paragraph 2 of this
article occurs. The principal must notify the broker of this by means of a letter with
acknowledgement of receipt within a month after the receipt of the invoice concerned
of the broker, in the absence of which the brokerage charges are payable. Parties
jointly appoint a binding advisor. In the absence of agreement about the advisor to be
appointed within fourteen days after the notification of the intention to the broker, the
party that is the first to take action is authorised to request appointment of an advisor
of the chairman of the Chamber of Commerce and Factories in Rotterdam.
Article 10 – Liability
10.1 Unless explicitly otherwise agreed upon in writing, the work executed by the broker is
at the risk of the principal.
10.2 Principal indemnifies the broker for all claims by third parties on account of damages
in connection with the execution of the work by the broker.
10.3 The broker is not liable in any respect for communications, acts, behaviour or solvency
of parties concerning the quality and/or description of the ship or object and/or
accessories, unless it is a question of intent and or gross negligence on account of the
broker.
10.4 Concerning the contents of the appraisements and/or valuation reports drawn up by the broker in the commission of the principal, the broker only accepts responsibility and/or
liability towards the principal, therefore, not towards third parties.
Article 11 - Payment
If the principal does not comply with one or more of his liabilities to pay, including the liability to pay brokerage charges within the term of payment of the broker, or does not comply on time/not completely, the principal also owes the applicable statutory interest rate that applies at that moment on, as well as the extrajudicial collection charges with a minimum of 15% of the sum of the payment in arrear.
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Article 12 - Secrecy
12.1 The broker will treat all statements made by the principal within the framework of the
brokerage commission confidentially, insofar as he is in fairness obliged to do this.
12.2 Principal is forbidden to repeat statements received from the broker concerning the
brokerage commission to third parties, such on penalty of payment of all damages that
will ensue for the broker owing to this.
Article 13 - Appicable law/settlement of disputes
13.1 Dutch law applies to all agreements between the broker and the principal, unless
explicitly otherwise agreed upon.
13.2 The Dutch text of the General Conditions is binding and prevails over translations
thereof.
13.3 Without prejudice to that what has been laid down in article 9 paragraph 3, disputes between the broker and the principal can be referred to the competent judge in the district within which the broker concerned has his offices.
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