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Trends and developments

Trends and developments

Are there any notable trends or recent legal developments in your jurisdiction’s shipping industry?

As regards notable legal developments, the Nairobi Convention on Wreck Removal 2007 took effect in Belgium on April 17 2017. Further, on September 8 2017 the International Convention for the Control and Management of Ships' Ballast Water and Sediments will enter into force.

Recent case law developments include the following:

  • Limitation of liability for wreck removal – in MV Flinterstar, the Supreme Court decided that the authorities are no longer entitled to demand that the owner, charterer or operator of a seagoing vessel remove the wreck at the owner’s expense once a wreck removal fund has been established by or for it.
  • Title to sue in cargo claims – in GDM v Safmarine, the Supreme Court confirmed that only the lawful holder of a bill of lading has the right of delivery of the goods and title to sue, even if another party suffered the losses.
  • Arrest of vessels –  to the despair of shipowners and notwithstanding initial indications to the contrary, the Supreme Court confirmed once again in the OW Bunker saga that a vessel can be arrested for obligations that:
    • are entered into by the owner or charterer; or
    • can be attributed to them (which is new).

Bunkers that are delivered at the request of the shipowner or charterer – or that are attributable to them (which is new) – are cause for arrest. Consequently, and as of the 1976 Supreme Court case law, a vessel remains the guarantee for deliveries made thereto.

Registration

Eligibility

Which ships are eligible for registration in the national shipping register(s) and which parties may register ships?

Registration of seagoing vessels in Belgium The following vessels must be registered in Belgium:

  • vessels under construction in Belgium; and
  • vessels owned by a company incorporated under Belgian law, except commercial companies.

Vessels can be voluntarily registered in Belgium when the owner or operator is:

  • a physical person who is a citizen of an EU member state;
  • a physical person whose domicile or principal residence is in Belgium; or
  • a company whose registered office is in an EU member state.

In the above cases, the ship must be exploited from Belgium.

Procedure

What are the procedural and documentary requirements for registration?

The registration of a seagoing vessel can be requested by the vessel owner or operator. In the latter case, the shipowner must provide its authorisation.

The following details must be submitted to register a seagoing vessel in Belgium:

  • vessel particulars, such as:
    • its name and call sign;
    • its port of registry;
    • its International Maritime Organisation number;
    • the year and place in which it was built and the shipyard number;
    • its ship type and designation;
    • its gross register tonnage and net register tonnage;
    • its overall breadth and length; and
    • details of its propulsion (eg, the number, builder, nature, year of build and power in kilowatts); and
  • company particulars, such as:
    • the company name;
    • its registered office and real place of business;
    • its date and place of incorporation;
    • the law under which it was incorporated;
    • the name, nationality and domicile or principal place of residence of each jointly liable director, registered shareholder and company for which the shareholders are jointly liable; and
    • its value added tax number.

The following documents must also be submitted:

  • a copy of each ship-owning company’s bylaws;
  • a declaration of a Belgian notary stating the names, domicile and nationality of the directors and proof of identity for each physical person;  
  • deeds vesting, transferring or acknowledging property or mortgage rights in the vessel, if these are private deeds;
  • a certificate from a Belgian notary confirming that the applicant meets the legal conditions for registering a vessel under the Belgian flag;
  • certificates concerning authorisations (where there are several shipowners or the operator of the vessel has requested it, the shipowner(s) must authorise the registration);
  • a copy of the company’s registration in the Company Register;
  • an original and two copies of the tonnage certificate (one copy must be saved at the registrar’s office and the other must be used to obtain the certificate of registry (or sea letter));
  • if the vessel was previously registered in another country, a declaration from that country’s government regarding the mortgage rights vested in the ship and indicating the previous owner; and
  • a sworn translation for every certificate or document written in a language other than a national language (ie, Dutch, French or German).

For vessels under construction, special documents must be filed.

Grounds for refusal

On what grounds may a registration application be refused?

Refusal to enter vessel in registers All vessels whose keel was laid down more than 15 years before the request for registration must fulfil the technical conditions of the Royal Decree of July 20 1973 to be registered in the Vessel Register or the Bareboat Register.

Refusal to allow Belgian vessel to be bareboat chartered elsewhere A vessel registered in the Belgian Vessel Register can be registered in a foreign bareboat register only if it receives government authorisation and certain conditions are met.

Advantages

Are there any particular advantages of flying your jurisdiction’s flag?

A maritime policy applies, which aims to reduce tax and social security burdens and provides for:

  • a tonnage tax;
  • the non-payment by seafarers of withholding tax on their earned income; and
  • reduced social security contributions for seafarers.

Liens and mortgages

Registration

How are encumbrances such as maritime liens and mortgages registered in your jurisdiction and what are the effects of registration?

Documents, judicial decisions and arbitral awards in respect of in rem rights in a vessel must be registered with the Vessel Register. Bareboat charters must also be registered.

Such registration makes the document opposable to the parties. In some circumstances, registration is required before being able to initiate a claim in court.

Securable claims and priority

What claims can be secured by maritime liens and what is the order of priority?

Belgium is a party to the International Convention for the Identification of Certain Rules relating to Maritime Liens and Mortgages 1926.

The convention determines liens, mortgages, hypothecations and their priorities. Mortgages, hypothecations and similar charges rank behind liens and privileges.

The following give rise to liens and privileges:

  • claims due to the state (eg, legal costs, expenses in the common interest of creditors and money due);
  • crew claims;
  • salvage and general average claims;
  • claims for collisions, navigation accidents, damages to harbour, docks, cargo or baggage and personal injury to passengers; and
  • claims arising from contracts with the master away from the vessel’s own port.

As per the convention, the ranking of liens and privileges depends on the type and date of the lien and the date of the incident resulting in the lien, among other things.

Extinguishment

Under what circumstances are maritime liens extinguished?

Liens extinguish after one year (or six months in the case of liens arising out of claims resulting from contracts entered into by the master), unless an arrest is effectuated before the time bar.  

Foreign liens

Are foreign liens recognised in your jurisdiction?

Case law shows that liens and mortgages tend to be determined by the law of the flag. However, whether this is correct is questionable.

Transfer and assignment

Which rules govern the transfer and assignment of liens, mortgages and other encumbrances?

Liens, mortgages and encumbrances are considered accessories to the main claim and consequently follow the regime of such claim insofar as the transfer and assignment is concerned.

Mortgages and liens follow the assignment of the claim that they secure. For the assignment to be opposable by third parties in matters of mortgages and hypothecations, they must be registered in the Vessel Register.

Arrest

Grounds for arrest

Under what circumstances can a ship be arrested in order to secure a claim against it?

Belgium is a party to the Arrest Convention 1952. As such, an arrestor must allege a maritime claim against a vessel or its owner. Consequently, even if it does not belong to the debtor of the claim, the vessel must be considered the guarantee for all maritime claims made in respect thereof.

Consequently, and as per the OMALA Supreme Court case law, the following vessels can be arrested for maritime claims:

  • the vessel in respect of which the maritime claim arose, even if it does not belong to the debtor of the claim, if it is a claim against the owner, the charterer or attributable to them; and
  • all vessels of the maritime claim’s debtor, even if the claim arose in respect of another vessel of that debtor.

Can a ship be arrested to secure a non-maritime claim?

A vessel is immune from conservatory arrest or attachment unless such arrest or attachment is based on an allegation of a maritime claim listed in the Arrest Convention.

A vessel can be arrested and sold for a non-maritime claim by judicial sale on the basis of a title (eg, a judgment) against the owner.

Can a ship be arrested to secure a claim against a sister ship?

Sister ships exist where all of the shares in the vessel (which does not mean all of the shares in the legal identity which owns separate vessels) belong to the same physical or legal person. Sister ships can be arrested if they belong to the debtor of the claim.

No right to arrest merely on the basis of beneficial ownership exists under Belgian law.

Unless the OMALA case law applies, in order to arrest the vessels of one shipowner for claims against another, one must:

  • pierce the corporate veil;
  • prove collusion; or
  • establish fraud.

Procedure

What are the procedural and documentary requirements for seeking arrest of a ship?

A request for arrest must be filed in court. In such cases, the essence of the case must be brought forward and evidence must also be presented in court.

Security

What security must the arresting party put up in order to secure arrest of a ship and how is this security calculated?

The courts sometimes impose countersecurity, which is calculated at the court’s discretion.

What security can the arrested party provide for release of an arrested ship?

The arrested party should either give a guarantee from a first-class Belgian bank or deposit the amount claimed in cash in court.   

For the vessel to be released, a security guaranteeing the claim must be provided. If the claim is against the charterer, a security guaranteeing claims against the owner will not result in the vessel’s release.

Judicial sale of ships

Procedure

What is the legal procedure for the judicial sale of ships in your jurisdiction?

The public sale of a vessel is usually done by public adjudication in a bidding process, whereby the vessel is adjudicated to the highest bidder. This process is under the control of the courts. If a higher bid is placed with the court representative within two weeks of the vessel’s adjudication, a second auction will take place where the vessel will once again be adjudicated to the highest bidder.

Foreign sales

Under what circumstances are foreign sales recognised?

The courts will recognise both private and public foreign sales unless they are fraudulent. If the sale is private, liens and mortgages remain attached to the vessel.

Limitation of liability

Eligibility

What parties may limit liability for maritime claims?

Belgium follows the Convention on Limitation of Liability for Maritime Claims 1976, which includes the 1996 protocol and the latest International Maritime Organisation adaptations. 

Persons entitled to limited liability are defined in Article 1 of the convention and include ‘shipowners’ – which covers the owner, charterer, manager and operator of a seagoing ship – as well as salvors and any person for whose action, neglect or default the shipowner or salvor is responsible. The insurer may also avail of the convention’s benefits. 

For what claims can liability be limited? Are any claims explicitly exempt from the limitation of liability?

Seagoing vessels Belgium allows for the limitation of liability as per Articles 2(1)(a), (b) and (c) of the Convention on Limitation of Liability for Maritime Claims.

As such, liability can be limited in respect of:

  • claims regarding personal injury;
  • claims regarding damage to property;
  • delay claims; and
  • claims occurring in direct connection with the ship’s operation or a salvage operation.

Wreck removal and pollution claims (Articles 2.1(d) and (e)) are excluded from the application of the convention.

Such wreck removal and pollution claims may fall under a separate wreck removal fund which can be established by the owners, charterers or operators of a seagoing vessel.

Inland barges For all claims arising out of an incident (inclusive of claims for wreck removal and pollution), a limitation fund can be established. The legal regime is slightly different to the one for seagoing vessels and the limitation amounts are substantially lower. 

Limits

What limits are set for eligible claims?

Limitation of liability for seagoing vessels

For claims other than wreck removal claims (see below), the following limits apply as of June 8 2015.

 

Tonnage

Death or personal injury

Other claims

Zero to 2,000 tons

3,020 special drawing rights (SDR)

1,510,000 SDR

2,001 to 30,000 tons

1,208 SDR per additional ton

604 SDR per additional ton

30,001 to 70,000 tons

906 SDR per additional ton

453 SDR per additional ton

More than 70,000 tons

604 SDR per additional ton

302 SDR per additional ton

 

In the case of pollution and wrecks, a separate limitation regime applies which allows a shipowner to limit its liability.

Inland navigation Inland barges fall under a different limitation regime, which allows liability to be limited with one limitation fund for personal injury or death and for all other claims, including wreck removal and pollution claims. The limitation amount is calculated on the basis of the barge’s tonnage or the pusher or tug’s power.

Limitation funds

What rules and procedures govern the establishment of limitation funds?

A shipowner wishing to limit its liability must file a request to that effect in court. An initial court order will appoint a fund administrator and indicate the amount that must be secured. Once that amount has been paid, a second order will be issued confirming that a limitation fund has been established.

Limitation funds are divided pro rata with regard to the claims arising out of one incident.

Any party that has a claim can file such claim in court.

As long as the claims have not been agreed or confirmed by a court deciding on liability and quantum, the matter will remain dormant.

How are liability funds distributed?

As soon as a liability case is determined, the fund administrator will prepare a report of distribution.  Such report is filed in court, after which each party with an interest can ask the court to decide differently. After that court case, the funds are distributed (unless there is an appeal, in which case the parties must await the outcome of the appeal proceedings).

Carriage of goods

International conventions

Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?

Belgium has adopted the Hague Rules and the Hague-Visby Rules, together with the Special Drawing Rights Protocol. Those rules have been incorporated in Article 91 of the Belgian Maritime Code. There is one important particularity under Belgian law: when the Hague-Visby Rules were transposed into national law, they were made mandatory for all carriages to and from a Belgian port. Thus, if a bill of lading is issued in a non-Hague-Visby state, but the goods are to be delivered in a Belgian port, the Hague-Visby Rules are mandatory.

Article 91 of the Maritime Code is applicable only to negotiated bills of lading.

Carrier’s responsibility 

What is the official extent of the carrier’s responsibility for goods?

If Article 91 of the Maritime Code applies, it determines the carrier’s responsibility. As such, the carrier can apply the exonerations provided for in the Hague-Visby Rules.

If the document of carriage is not a bill of lading or similar document, the carrier’s responsibility is determined by the terms and conditions of the bill of lading.

Contractual limitation of liability

May parties contract out of any legal provisions governing cargo liability?

Insofar as Article 91 of the Maritime Code applies, a carrier cannot contract out of liability.

However, insofar as Article 91 of the Maritime Code does not apply, the carrier can contract out of liability.

Title to sue

Who has title to sue on a bill of lading?

If a bill of lading has been issued, only the holder of the bill of lading is entitled to sue, irrespective of whether it effectively suffered the losses. In Belgium, the holder is generally a freight forwarder acting in its own name, but for an undisclosed principal. Since the January 2017 Supreme Court decision in this regard, it is clear that in such circumstances, the freight forwarder is the only party that has title to sue.

Time bar

What is the time bar for cargo claims?

If a bill of lading has been issued and negotiated, the one-year time bar under the Hague-Visby Rules applies.

In other circumstances, the contractual provisions – which sometimes provide shorter time bars – may apply.

It is important to seek guidance in order to determine whether the holder of a document of carriage can benefit from the protection of Article 91 of the Maritime Code (ie, the Hague-Visby Rules). If the cargo interests cannot benefit from such protection, the terms of the bill of lading – which may provide different time bars – may apply.

Definition of ‘carrier’ and ‘goods’

How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?

A ‘carrier’ is defined as the registered owner of a vessel or a charterer that has entered into a contract of carriage with the shipper. The liability for cargo claims is joint and several.

Insofar as owners are concerned, they are objectively liable for the acts of a master. There is an irrefutable presumption that bills of lading are signed by the master.

Insofar as charterers are concerned, the holder of the bill of lading can prove with all means available who the charterer or the issuer of the bill of lading was if this is unclear from the bill of lading itself. If the identity of the charterer or carrier is clear from the bill of lading, research as to the identity of the issuer of the bill of lading is unnecessary (Supreme Court, January 7 2011, C.09.0208).

Article 91 of the Maritime Code (which incorporates the Hague-Visby Rules) applies to the carriage of all possible goods, except:

  • living animals; and
  • deck cargo, on the condition that:
    • the deck carriage is mentioned in the bill of lading; and
    • the goods have effectively been carried on deck.

Consequently, if the goods are carried on deck and this is not mentioned in the bill of lading – or the goods are effectively carried in the hold, but the bill of lading provides for deck carriage – they are also subject to the protective provisions of Article 91 of the Maritime Code. Undeclared deck cargo results in the carrier’s loss of the right to limit its liability or exonerate itself from liability, even if the bill of lading provides for an option clause.

Defences available to carrier

Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?

In general, the carrier can appeal against the holder of a negotiated bill of lading on the basis of all defences available under the Hague-Visby Rules.

Insofar as exoneration for perils of the sea is concerned, the carrier must establish:

  • the facts of the peril of the sea. Case law in this respect is purely casuistic, but a peril of the sea is generally not easily accepted. Whereas nautical events which are predictable and to be expected cannot constitute a peril of the sea, an unexpected extraordinary storm could be considered such a peril;
  • that the damage was caused only by the peril of the sea. A heavy storm does not mean that the damage was not caused by something else (eg, bad stowage); and
  • that the consequences of the peril of the sea could not be avoided.

Third parties

What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?

The carrier’s agents execute an obligation of the carrier. Consequently, such agents cannot be sued directly by any party that has a contractual relationship with the carrier. Supreme Court case law has clearly repeated that parties must follow the contractual chain and cannot jump over it – for example, by way of a direct tort action.

In short, a Himalaya clause is the law.

Deviation from route

Under what circumstances is deviation from the agreed route allowed?

Parties may freely agree the route to follow. In the absence of such agreement, the normal route must be followed. Deviation from the route results in liability for losses suffered unless such deviation is reasonable or for the purpose of saving a life.

An unreasonable deviation does not result in a stepping out of the contract. Under the Belgian interpretation of the Hague-Visby Rules, the carrier remains bound by the contract of carriage, including in case of an unreasonable deviation. The carrier can also still limit liability. This is quite different to the position in other countries which apply the Hague-Visby Rules.

Claims against shipper

What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?

There are no limits on the claims which can be brought against a shipper for the non-respect of its obligations. Specific dead freight rules apply in chartering matters.

Multimodal carriage of goods

How is multimodal carriage regulated in your jurisdiction?

There are no specific rules in respect of multimodal carriage. The consequence is that every single leg of the carriage follows the rules applicable to that leg. For example, where part of a multimodal carriage is done by road, that part will be ruled by the Convention on the Contract for the International Carriage of Goods by Road (or the Belgian equivalent thereof).

Most of the rules on carriage are mandatory. This limits the possibility for carriers to contract out of those obligations where it would have a negative effect with respect to the cargo interests. 

Marine accidents

Collision and pollution

What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:

(a) Collision?

There is a difference between incidents at sea and incidents in internal waters.

Insofar as incidents at sea are concerned, the following regulations apply:

  • the Collision Convention 1910;
  • the International Regulations for Preventing Collisions at Sea 1972;
  • the International Convention for the Safety of Life at Sea; and
  • the International Maritime Organisation provisions.

Local regulations may also apply (eg, traffic separation rules).

Insofar as internal waters are concerned, the Collision Convention applies with regard to liability, but the applicable navigational rules are sometimes dramatically different from those provided by the International Regulations for Preventing Collisions at Sea. The internal navigation rules may result in liability which is different to that which would apply if the International Regulations for Preventing Collisions at Sea applied.

(b) Oil pollution?

The most relevant statutory rules and procedures that apply to the prevention of, liability for and remedy of oil pollution are:

  • the International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties 1969 and its protocol of 1973;
  • the International Convention for the Prevention of Pollution of the Sea by Oil 1954, as amended;
  • the International Convention for the Prevention of Pollution from Ships 1973 and its protocol of 1978;
  • the United Nations Convention on the Law of the Sea 1982 (also known as the Montego Bay Convention);
  • the International Convention on Civil Liability for Oil Pollution Damage and its protocol;
  • the Fund Convention 1992, as amended in 2000;
  • the Bunker Oil Convention 2001;
  • the Protocol Establishing a Supplementary Fund;
  • the EU Ship-Source Pollution Directive (2005/35/EC), as amended and as implemented into Belgian law by various acts;
  • the Belgian Marine Protection Act;
  • the Belgian Discharging of Polluting Substances Act; and
  • various legal instruments of the federal state and the Belgian regions which each, in accordance with their authority, implement the EU Waste Directive (2009/98/EC).

The above list is not exhaustive.

(c) Other environmental damage caused by a ship?

Some of the abovementioned rules also apply with regard to other environmental damage caused by ships.

Salvage

What is the legal regime governing salvage and general average?

Salvage Belgium is a party to the London Convention on Salvage 1989.

General average Unless different contractual arrangements have been provided for in the bill of lading or elsewhere, Belgian law provides a general average regime, which is based on an older version of the York-Antwerp Rules.

Places of refuge

What framework governs access to places of refuge for ships in distress?

Ships in distress will be assisted by the authorities, which may indicate a place of refuge. The cooperative between the various levels of authority in Belgium manages incidents for all Belgian authorities concerned.

Wreck removal

What rules and procedures apply to the removal of wrecks in your jurisdiction?

Belgium is a party to the Nairobi Convention on Wreck Removal 2007, which took effect on April 17 2017.

Belgian law already obliged owners to remove a wreck if the authorities requested that they do so.

Under what circumstances can the authorities order removal of wreckage?

The law leaves it up to the sole discretion of the authorities to decide if a wreck must be removed by its owner. However, the owner can avoid removing the wreck if it limits its liability.

Marine security

Legal regime

What regime governs the imposition of security measures on ships and in port facilities?

Within the European Union, the International Ship and Port Facility Security (ISPS) Code has been transposed into EU Regulation 725/2004, which has been binding on all EU member states – including Belgium – since July 1 2004. This regulation was further concretised by the EU Port Security Directive (2005/65/EC), which aimed to implement appropriate security measures for the entire port area.

Belgium incorporated this EU legislation in the Maritime Security Act 2007 and the Royal Decree on Maritime Security 2007. These laws designate, among other things, the authorities that play a role in maritime security (ie, the National Authority for Maritime Security and, at the local level per port, the Local Committee for Maritime Security).

The ISPS code features three security levels:

  • business as usual;
  • heightened risk of a security incident; and
  • a security incident is probable or imminent.

Suitable and additional security measures have been incorporated into security plans. In Belgium, terminals are categorised as sensitive or non-sensitive, depending on the type of product handled by the terminal. ‘Non-sensitive’ facilities include dry and wet bulk, general cargo and shipyards, whereas ‘sensitive’ facilities are container terminals, roll-on/roll-off vessels and passengers.

All vessels calling at a Belgian port and all Belgian ports receiving such vessels must establish a system which allows access control and registration and enables the identification of every employee, visitor and supplier.

Security officers

What rules apply to the qualification and conduct of security officers on ships and in port facilities? Are armed guards allowed on ships?

Armed guards are allowed on ships under certain conditions. A maritime security company needs a licence in order to deploy private armed guards. The conditions that must be met in order to obtain such a licence and the procedures to be followed during a passage are set out in the Act of January 16 2013, which provides a number of measures to protect against maritime piracy. The conditions are further outlined in several royal decrees. Guards are allowed to be armed (with an important exception for automatic weapons). The deployment of armed guards is possible only for certain areas of the sea, as will be defined by a royal decree. Further, the agreement between the shipowner or operator and the maritime security company must meet several legal requirements.

Security information

What rules govern the provision of security information to port authorities?

Each Belgian shipowner or operator must report to the government every voyage during which a maritime security company is used. There is also an obligation to report every attack of piracy and every time that the guards fire from a ship in the context of piracy. Amendments to the ISPS Ship Security Plan – as well as Port State Control detentions or other incidents or casualties concerning Belgian-flagged vessels – should be reported to the Belgian Maritime Inspectorate.

Each Belgian ISPS port facility must have a person responsible for security. The port facility security officer (PFSO) must establish procedures to ensure compliance with the mandatory requirements within the facility. The PFSO will be in contact with the ship security and company security officers.

Insurance

Mandatory coverage

What maritime risks must be covered under the law and what is the mandatory level of coverage?

The following risks must be covered:

·         oil pollution – as per Article VII of the International Convention on Civil Liability for Oil Pollution Damage;

·         bunker oil pollution – as per Article 7 of the Bunker Oil Convention 2001;

  • maritime claims – as per the Convention on Limitation of Liability for Maritime Claims 1976. Insurance cover must be in accordance with EU Directive 2009/20/EC, as incorporated by the Act regarding the Insurance of Shipowners against Maritime Claims 2012;
  • owners of passenger vessels – as per the EU Regulation on the Liability of Carriers of Passengers by Sea in the Event of Accidents (392/2009), also incorporated by the Act regarding the Insurance of Shipowners against Maritime Claims and the Royal Decree regarding the Obligatory Liability Insurance for Owners of Passenger Vessels 2012;
  • wreck removal – as per Article 12 of the Nairobi Convention on Wreck Removal 2007; and
  • maritime labour – as per the Maritime Labour Convention 2013 and the Belgian Act of June 13 2014 and Royal Decree of June 8 2017.

Insurable risks and ships

What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?

Hull and machinery and liability insurance are typically covered by marine insurance contracts. If needed, war insurance or other specific insurance cover can be taken.

Subrogation rights

What is the legal regime governing marine insurers’ subrogation rights?

Insurers’ subrogation rights are determined by the applicable law.

Presuming that Belgian law applies, subrogation is, by law, effective on payment by the insurers of the risk covered.

Although no subrogation documents must be signed by law, this is common. Regardless, proper guidance should be sought before drafting and signing a subrogation document. In practice, the majority of signed subrogation documents are improperly drafted and therefore not effective for the purpose of defending the insurer’s rights.

Jurisdiction and dispute resolution

Competent courts

What courts are empowered to hear maritime cases in your jurisdiction?

The commercial courts hear maritime matters. Larger jurisdictions, such as Antwerp, have dedicated maritime courts within the commercial court. This is not only at a first-instance level (commercial court), but also at the appeal level.

Exclusive jurisdiction and arbitration clauses

Under what conditions will exclusive jurisdiction and arbitration clauses in shipping contracts be held as valid?

Arbitration clauses and jurisdiction agreements, if validly concluded, will be upheld by the courts unless there are rules of mandatory or protective application which are called on by the other party.

In cargo claims, the third bearer of the bill of lading will successfully oppose arbitration or jurisdiction clauses in the bill of lading or contract of carriage. As a third-party bearer of the bill of lading, it does not accede to the shipper’s rights and such clauses not being concluded with the third bearer are not opposable as they conflict with the protective nature of Article 91 of the Maritime Code (which incorporates the Hague-Visby Rules).

Similar refusal to adhere to arbitration clauses or foreign jurisdiction clauses can be found in the ship’s agency contracts.  

Maritime arbitration

What is the general state and prevalence of maritime arbitration in your jurisdiction?

Given the reasonable cost of court litigation and the speed thereof, maritime arbitration is the exception. If arbitration occurs, it is on an ad hoc basis.

Arbitration is more common in maritime insurance matters; maritime insurers and their insured wishing to arbitrate matters again mostly do so on an ad hoc basis.

Recognition and enforcement

What regimes govern the recognition and enforcement of foreign judgments and arbitral awards?

Foreign arbitration awards and court decisions are enforceable in Belgium. Sometimes they are directly enforceable; if not, a court application to the effect of making an award or a foreign court decision enforceable in Belgium can be initiated. The proceedings are usually straightforward.