On 4 April 2019 the Chamber of Representatives enacted the new Maritime Code (for further details please see "Changes ahoy! New Maritime Code enacted"). It must now be published in the Official State Gazette and will come into effect on the first day of the month one year after its publication. This article provides a brief overview of the new code's implications for the seizure of sea-going ships.
Belgium adheres to the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952. Most of the provisions of the convention were directly inserted into the Belgian Judicial Code, consequently making these provisions applicable to any kind of arrest on sea-going ships in the Belgian territory, irrespective the claimant's or ship's nationality.
Under the current legislation, sea-going ships can be arrested for maritime claims only. Maritime claims are listed in Article 1.1 of the convention.
In such a maritime claim, the arrest may concern:
- any ship owned by the debtor of the claim; and
- the ship in respect of which the maritime claim arose, even if the debtor of the claim is not the owner of the arrested ship (eg, a ship can be arrested due to claims against the charterer of the ship).
The authorisation to arrest a sea-going ship is obtained through an ex parte request to the arrest judge, a specialised judge in the Court of First Instance. In this ex parte request, the arrestor should present the facts and its allegation of a maritime claim to the judge on a substantiated basis.
Once the arrest authorisation is obtained, the order will be served by a court bailiff to the master of the ship and the debtor of the claim.
Afterwards, the ship can either be released by an agreement between the parties (usually when adequate security is provided which guarantees the claim and is issued by a first-class bank within the jurisdiction) or by a court order.
Arrest proceedings do not initiate the case on the merits itself. Separate proceedings in Belgium or elsewhere must be initiated to that effect.
As outlined in the preparatory parliamentary proceedings to the new Maritime Code, the legislature deemed it "opportune that Belgium remains bound by the 1952 Convention on the Seizure of Ships".
As per the new code, the directly applicable provisions of the convention will apply in the cases described in Articles 8(1) and 8(2) of the convention.
- the directly applicable provisions of the convention will apply to any ship flying the flag of a contracting state in the jurisdiction of any contracting state (Article 8(1)); and
- a ship flying the flag of a non-contracting state may be arrested in the jurisdiction of any contracting state in respect of any of the maritime claims enumerated in Article 1 or of any other claim for which the law of the contracting state permits arrest (Article 8(2)).
A separate regime will be installed for creditors with a registered address in Belgium seeking to arrest a Belgian sea-going ship.(1) This regime is similar to the current legislation.
Whereas the substantive rules on the arrest on sea-going ships will – as per the new Maritime Code – be directly governed by the convention, the procedures governing how to obtain an arrest authorisation will not fundamentally change. Therefore, once an ex parte arrest request has been drafted, obtaining the court order itself will also usually take only a few hours under the new Maritime Code.
Belgium will remain and probably even strengthen its position as a favourable place to arrest sea-going ships in order to obtain security for unpaid maritime claims. The new Maritime Code confirms that Belgium remains bound by the convention.
(1) The question arises as to whether such a specific regime is necessary, since Belgium is a member of the convention, and since as per the Vienna Convention on the Law of Treaties the provisions of the convention will prevail over divergent national legislation.
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