This article provides an overview of the law and practice concerning ship arrests in Belgium. It examines the procedure for arresting sea-going vessels under various laws and treaties and the consequences thereof, as well as the definition of a 'sea-going vessel' for arrest purposes.
The new Belgian Maritime Code (NBMC) recently came into force and includes changes to the law on the arrest of sea-going vessels with regard to material law (arrests can now be made for non-maritime claims) and formal law (the legislation on the arrest of sea-going vessels has moved move from the Judicial Code to the NBMC). This article provides an overview of the essential law concerning ship arrests in Belgium.
The Chamber of Representatives recently enacted the new Maritime Code. Whereas the substantive rules on the arrest on sea-going ships will be directly governed by the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952, the procedures governing how to obtain an arrest authorisation will not fundamentally change. Belgium will remain a favourable place to arrest sea-going ships in order to obtain security for unpaid maritime claims.
The Chamber of Representatives recently enacted the new Maritime Code, which will replace – to a large extent, but not completely – numerous provisions in several existing codes. The new code is over 470 pages long and consequently cannot be explained in a few lines; however, this article highlights some of the major changes that will be introduced in relation to existing legislation.
The Supreme Court has rendered its second decision in the long-running road haulage dispute known as the 'sugar case'. The Supreme Court considered the scope of application of the Convention on the Contract for the International Carriage of Goods by Road (CMR), and whether all damages resulting from a loss that arises from a CMR contract can be recovered from the road carrier.
Over the past few years, the Antwerp Commercial Court has considered on multiple occasions the question of whether a carrier's terms and conditions published on its website can be validly incorporated into an agreement. Although the court has provided insightful guidance on the matter, further questions remain unanswered.
A new law has been passed that establishes measures to combat maritime piracy. Under certain conditions, a Belgian-flagged ship will now be allowed to rely on maritime security companies to protect the vessel against piracy. This new legislation is a step in the right direction, but there is still work to be done.
In cases where extensive mandatory implementation of an EU directive in one EU member state conflicts with the (lesser) implementation in another member state, does the Rome Treaty prevail over the law chosen by the parties? This was the question posed to the European Court of Justice in an ongoing case relating to an arbitration clause in a ship agency contract.
A new law has been passed that establishes an investigative body for maritime casualties. The legislation includes certain obligations and criminal penalties for those involved in maritime incidents. Ships flying the Belgian flag and all ships calling at Belgian ports will finance the new institution, which was introduced to implement EU measures on reducing the number of maritime casualties.
All too often, carriers consider agreements as to steaming time to be no more than non-binding information. A recent decision is a stark reminder that even when steaming time is without guarantee, a vessel is at risk of being arrested for costs and damages suffered if it does not proceed with reasonable dispatch.
In a case involving damage to goods during sea carriage, the Antwerp Court of Appeal recently rendered a significant decision which sets out the principles relating to Belgian freight forwarding and considers the commission contract as a sui generis contract, specific to the commercial trade.
Belgium adopted two anti-piracy laws in December 2009. A recent first prosecution demonstrates that they are a step in the right direction. However, some experts have questioned whether they provide sufficient protection for Belgian-flagged ships and their crews, and a number of Belgian shipowners recently called for the right to hire private security forces for their vessels.
In a keenly awaited decision the Supreme Court recently determined whether the Ghent Court of Appeal had applied statute correctly in refusing the benefits of a lien (ie, a right of retention) exercised by a sea carrier in respect of trailers that belonged to a party other than the debtor.
The Antwerp Court of Appeal recently considered the arrest of a vessel for claims against a company which did not own the vessel. No lien was involved and the claim did not concern the vessel. However, the court held that the creditor could look beyond the "veil of a separate legal identity" between the shipowner and the debtor, and arrest the vessel in respect of maritime claims against the debtor.
The Supreme Court recently considered the relationship between a carrier and a holder of a bill of lading. Two issues were addressed: whether the holder of a bill of lading is bound by a jurisdiction clause contained in the bill of lading, and whether the holder is bound by a choice-of-law clause.
The Supreme Court has considered the position of an insured cargo claimant and its insurer towards a road carrier under the Convention on Contracts for the International Carriage of Goods by Road. The question was whether an indemnified cargo claimant can sue the carrier if the insured is subrogated to the rights of the assured and brings suit against the carrier for recovery of its outlay.
A recent Antwerp Commercial Court judgment states that if a carrier wishes to claim demurrage and detention charges for containers placed at the cargo interests' disposal for the purposes of carriage, in practice it must not only inform the consignee of applicable time limits, but must also notify the debtor/consignee on expiry of the allotted period.
Two new laws implement a general regime on combating piracy in international waters and provide for measures to be taken against pirates on the high seas and against parties involved in acts of piracy. The laws also deal with the prosecution of pirates and those involved in piracy.
The Supreme Court has held that the Convention on Contracts for the International Carriage of Goods by Road (CMR) cannot apply to non-transported goods; the carrier is therefore liable in accordance with the applicable rules of national law. Its liability is likely to be unlimited and to include foreseeable consequential damages. The decision gives rise to a form of liability that the CMR seemingly intended to avoid.
The Supreme Court ruled that a jurisdiction clause which excludes the courts that would be competent under Articles 31(1)(a) and (b) of the Convention on Contracts for the International Carriage of Goods by Road (CMR) is null and void under Article 41(1). Thus, parties to carriage under the CMR can agree to non-exclusive jurisdiction clauses.