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