In its decision of 30 June 2016, the Court of Cassation stated that a claim of a bunker supplier who had no direct sale contract with the owner or charterer of a sea-going vessel does not possess a maritime lien for which arrest of the sea-going vessel is possible.
Traditionally, Belgian courts are known for their lenient approach to the arrest of sea-going vessels. The Belgian Judicial Procedural Code permits the arrest of sea-going vessels for so-called "maritime claims". The types of maritime claim are expressly stipulated in Article 1468 of the Belgian Judicial Procedural Code, e.g. a claim of a supplier of goods or materials relating to the ship’s maintenance or management, which is in accordance with the International Convention Relating to the Arrest of Sea-Going Ships of 10 May 1952. Traditionally, Belgian courts did not require the claim to be due by the ship’s owner or charterer as long as the claim (i) was a maritime claim and (ii) was linked to the arrested vessel.
A recent judgment of the highest court in Belgium (Court of Cassation) might, however, stir the waters (excuse the pun) of this long-standing case law. The court was requested to review a decision of the Court of Appeal of Antwerp which dismissed a claim for arrest made by a supplier of bunkers. The owner of the arrested vessel had ordered bunkers from its local agent in Germany. Both parties had concluded a sale agreement. The German agent, however, put the order through to its local Dutch partner, which in turn ordered the bunkers from the claimant. In the claimant’s order confirmation, it expressly states that the claimant considered the Dutch shipping agent to be its "buyer". The bunkers were delivered by the claimant directly to the arrested vessel. The owner of the vessel paid the German shipping agent’s invoice for the delivered bunkers; however, the Dutch shipping agent did not pay the claimant and was later declared bankrupt, leaving the claimant unpaid. The claimant, therefore, arrested the respective vessel, stating it had a maritime claim as a supplier of goods to the vessel, necessary for the management of the vessel. However, the Court of Appeal of Antwerp stated that the mere fact that the bunkers were delivered to the vessel is not sufficient proof of the existence of a maritime claim. In its judgment of 30 June 2016, the Court of Cassation confirmed the judgment of the Court of Antwerp.
Belgium has often been considered by sea-going vessel owners as a country where the arrest of vessels is an ever-present risk, because even claims the owner is not aware of, because it is not the debtor, can lead to the arrest of a vessel. However, this new case law might lead to Belgian courts putting the propeller into reverse. It will be interesting to see how the lower courts react to the decision of the Court of Cassation.