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24 February 2021
This article is part two in a series on ship arrests in Belgium. For part one, please see "Ship arrests in Belgium – essential statute law".
The authorisation to arrest a vessel must come from an arrest judge. This is done by way of an ex parte application filed by a lawyer on behalf of a client. In that application, all relevant information must be disclosed to the judge. The judge usually (especially in Antwerp, Ghent and Bruges) gives a decision on the bench. The decision is thereafter served by a court bailiff to the master of the vessel. The vessel is then arrested.
Belgium's formal arrest law (which deals with questions as to how arrests are made, where they can be made and jurisdiction) is general arrest law; since 1 September 2020 the New Belgian Maritime Code (NBMC) has also applied.
The material arrest law (dealing with questions as to who, what and when) is the Arrest Convention 1952 (provisions of which have now been incorporated into the NBMC).
Statutory provisions can be found in:
Belgium is by virtue of its location and ports an active ship arrest venue. This has led to an abundance of case law. A considerable portion of that case law went all the way to Belgium's highest civil court, the Court of Cassation. Throughout case law, that court has followed the principle that now that the Arrest Convention 1952 is an international treaty:
the interpretation of international treaties may not be made on basis of ones own law but, if the text needs interpretation, on basis of elements proper to the Treaty i.e. the subject, the purpose, the context, the preparation and the genesis history because an interpretation on basis of ones own principles can never lead to the uniformity which is the purpose itself of the Treaty.(1)
It is worth considering the main case law of the Court of Cassation where ship arrest matters were in consideration.
Definition of 'sea-going vessel' for arrest purposes
The Arrest Convention 1952 applies to sea-going vessels.(2) However, no definition of a 'sea-going vessel' is given. Many different definitions can be found in other acts and laws, such as the NBMC and pollution treaties.
Therefore, how can it be determined which vessels fall under the Arrest Convention 1952 definition?
In a matter where the courts were faced with a scenario in which a seagoing vessel had been arrested while being scrapped in a scrapyard, the Court of Cassation had to determine which objects were considered sea-going vessels to which the Arrest Convention 1952 applied.
A 'sea-going vessel', to which the specific system of conservatory attachment applies, means any vessel that is suitable to navigate the sea and intended for this purpose, regardless of whether it is used or is intended for any profitable operation at sea.(3)
The assessment should not be made in abstracto. The definition given to a ship to be arrested is irrelevant. Instead, an assessment should be made in concreto. If a ship to be arrested is suitable and destined to sail the sea, the vessel is a sea-going vessel according to the Arrest Convention 1952.
In the same case, the Court of Cassation determined that a ship which is permanently unable to fulfil its purpose of navigation at sea (eg, through damages) can no longer be considered a sea-going vessel. The fact that a ship may, when a maritime claim arises, be a sea-going vessel does not prevent the permanent loss of such capacity and bar an arrest of said ship at a later stage.(4)
Anglo-Saxon system versus continental system
The travaux preparatoires to the Arrest Convention 1952 can be found in the Comite Maritime International's (CMI's) publications. They clarify that the Arrest Convention 1952 was a compromise between the Anglo-Saxon and continental legal systems.
Under the Anglo-Saxon system, an arrest could be made only:
Under this system, maritime claims were exhaustively defined, and it was sufficient to have a maritime claim to arrest the vessel which had given rise to said claim, regardless of whether the owner was the debtor of the maritime claim (in rem liability).
The continental position held that all vessels of the debtor of any type of claim could be arrested. Further, the arrested vessels had to be the property of that debtor (personal liability). The vessel to which the claim related could be arrested only if the claim was against the owner.(5)
With respect to these different positions, the French delegation to the CMI, represented by Jean Degrandmaison, stated as follows:
If we want to achieve uniformity on this question, it seems to me that a compromise must be found between the drastic legislation of the Continent and that of England…
The French delegation is prepared to admit limiting the possibility of arrest to the only case where the debt is a maritime debt (Anglo-Saxon system). It seems reasonable to do so in order to protect, as far as possible, the other joint interests engaged in the ship. On the other hand, we suggest that, our English friends make a similar sacrifice in admitting that, in case of a maritime debt every ship belonging to the debtor may be arrested, even if the debt does not find its cause in the operation of the ship arrested. (Continental system).(6)
The Arrest Convention 1952 clearly encapsulates such a compromise by:
Consequently, under the Arrest Convention 1952:
Limited list of maritime claims and immunity of arrest for other claims
The international legislature's express will was to give a right to arrest which arose out of only maritime claims. Consequently, ships are immune to arrest for all other claims.
This immunity exists not only for the benefit of shipowners, but also to protect the holders of maritime claims and other interests in a maritime adventure. Therefore, a vessel can be collateral only for maritime claim holders.
An economic balance was pursued by providing security for the payment of certain claims against a ship, but limiting this security to maritime claims.
Inasfar as vessels from non-contracting states are concerned, the Arrest Convention 1952 leaves it to the contracting states to determine whether immunity also extends to the sea-going vessels of non-contracting states.(8) In Belgium, under the NBMC, there is no immunity for vessels of non-contracting states as of 1 September 2020.
Which vessels can be arrested?
The Court of Cassation has confirmed many times that a vessel can be arrested even if its owner is not the debtor of the claim.(9)
Therefore, the vessels that can be arrested are:
Scholars hold that "holders of a maritime claim may consider the vessel to which they delivered services as their guarantee".(10)
Recent case law has applied this principle. In ms Wilson Avonmouth, the Ghent Court of Appeal ruled, according to the trust theory introduced by the Court of Cassation, that the person who has trusted the apparent situation may apply the consequences which would have occurred if the apparent situation had been reality.(13)
The mere allegation of a maritime claim is sufficient for the court to allow an arrest. This allegation must be prima facie well founded. Only purely unreasonable, and not serious and improbable, allegations will be excluded.(14)
The consequences of a ship arrest include:
Parties which are tempted to just sail away and avoid the arrest should note that this is a criminal offence.
As per Article 7.1.2 of the Arrest Convention 1952, an arrest gives the court jurisdiction to conduct a full trial if:
Options available to shipowners, charterers and masters
Following a ship arrest, the options available to the shipowner or master are:
Often security is given, but the right to oppose the arrest in court is retained.
Opposition proceedings revert the decision, sending the arrest back to court where it is scrutinised in the presence of all parties involved.
In essence, the arrest judge will check whether:
Article 7(2) of the Arrest Convention 1952 determines the conditions of security as follows:
If the Court within whose jurisdiction the ship was arrested has not jurisdiction to decide upon the merits, the bail or other security given in accordance with article 5 to procure the release of the ship shall specifically provide that it is given as security for the satisfaction of any judgment which may eventually be pronounced by a Court having jurisdiction so to decide.
Article 5 of the Arrest Convention 1952 determines that "sufficient bail or other security" must be provided. Sufficient bail or security is required not just for claims against a shipowner; if the arrest is against the charterer, security will be needed to guarantee claims against the charterer.
For further information on this topic please contact André Kegels at Kegels & Co by telephone (+32 3 257 1771) or email (firstname.lastname@example.org). The Kegels & Co website can be accessed at www.kegels-co.com.
(9) Cass, 27 January 1977, AC 1977, 595; Article 3 of the Arrest Convention 1952; Articles 1468 and 1469 of the Judicial Code; Cass, 10 May 1976, ms OMALA; Cass, 30 July 2015; Cass, 26 September 2015.
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