Hidden jewels

FOR many people, Belgium is an odd place. It's not easy trying to explain that this little country of barely ten million inhabitants is a federation with three official languages (Flemish, French and German), three regions (Flanders, Brussels, Wallonia), six parliaments and related governments (Federal, Flemish, French Region, Brussels Region, French Community and German Community), and three communities (the Flemish Community, the French Community and the German Community) each of which has its own well-defined powers to legislate and govern. Fortunately, when it comes to maritime matters, life is much simpler.

Belgium has only three main ports - Antwerp, Ghent and Zeebrugge - all situated in the Flemish region within an area of less than 100 km. This is the playing field of Belgium's maritime lawyers. Belgian lawyers are allowed to practise before all the (maritime) courts and, given the specialisation needed and the vicinity of the various ports and courts, it is normal practice for the same maritime lawyers to cover all of the Flemish ports.

The question that preoccupies many of our foreign colleagues is why so much non-Belgian legal work ends up over here?

Ship arrest

Belgian lawyers are quite often asked to arrest a vessel in order to obtain security for a claim which is being decided on its merits in a jurisdiction elsewhere in the world. But why are so many people still choosing Belgium and its main port of Antwerp for a matter as simple as ship arrest?

In short, ship arrest in Belgium is speedy (rarely more than a few hours). It is also relatively cheap, and security is exchanged quickly. In a good year, Belgian arrest judges will arrest more than 400 vessels in their jurisdiction. Another attraction of the arrest system is that the arrest does not per se create jurisdiction on the merits of the case enabling foreign instructing colleagues to hold onto the case in their own jurisdiction.

The predominant reason to arrest in Belgium seems to be that the vessel in question can always be arrested in order to secure a claim, irrespective of the debtor of the claim. This arrest possibility is very popular with cargo claimants who have a claim against an NVOCC as they can arrest the vessel which physically carried the goods in order to obtain a security for claims against the one who legally carried the goods under a bill of lading. Once a decision is obtained abroad, it is enforced on the guarantee received in Belgium.

Other regular users of this arrest opportunity are parties who have a claim against a charterer. In order to secure the claim, they are able to arrest the vessel in respect of which the charterer's debt arose. This specific arrest possibility is obviously popular with the likes of unpaid bunker suppliers and unpaid agents. Instead of tracing charterers' assets all over the world, these arrestors simply arrest the vessel and obtain security for their claim against the charterer. In other words, even if it is not the owners of the vessel who are liable for the claim, they will be the ones who have to give security if the claim is related to their vessel, even if there is no lien.

Fact-finding

A second increasingly popular assistance given to foreign colleagues is fact- finding by way of the Antwerp Nautical Commission with the Commercial Court. Court surveyors are not always very popular. Many foreign colleagues have had bad experiences in other jurisdictions where a local president of a court has appointed someone locally as a court surveyor in a complex maritime matter only to find that the surveyor lacks the necessary nautical, maritime or judicial expertise to proceed with the matter appropriately and swiftly.

The court surveying system in maritime matters in Belgium is very different. In Antwerp, maritime matters are brought before the Antwerp Commercial Court. Facing a growing number of maritime cases, 200 years ago this court decided to create an institution consisting of maritime and nautical expert surveyors. Today, these nautical surveyors work exclusively for the courts and, therefore, may not work for one of the parties in a case.

Initially, these maritime court surveyors with the Antwerp Court of Commerce were used for Belgian matters only. There is, however, increasing interest in the commission from abroad, with many issues which will ultimately be heard before a court elsewhere in the world now being investigated by the Antwerp Nautical Commission. For example, matters which are litigated in the US or arbitrated in London or Singapore may have passed via the Antwerp Nautical Commission for fact-finding under the control of the Belgian court.

Whenever fact finding can be done in Belgium, for instance if the vessel in question is in Belgium, or the case might be heard in Belgium at a later stage, the court can be asked by way of summary proceedings to appoint a surveyor from its Nautical Commission to find out certain facts. It is worth noting that these summary proceedings do not create jurisdiction on the merits of the subject matter itself. Fact-finding proceedings can be started in Belgium, even if the proceedings or arbitration themselves must later be held in the US or UK.

Obviously, there are great advantages to having a very quick grip on the facts without having to wait for disclosure in the distant future. Some defendants have been frustrated in their efforts to keep evidence away from court surveyors, often refusing or stating that they will disclose it later in the foreign proceedings. The court surveyor, having been appointed by the court as an independent person of the court, will then ask for the evidence. If he does not receive it, the court can be asked to order the disclosure of the evidence, with failure to do so resulting in a daily penalty. In one case, a shipowner refused to present certain evidence which was available on board the vessel and was ordered to pay $10,000 per day per document that was not disclosed. The effect was immediate.

Cargo claims

In the examples above, foreign colleagues are able to hold onto the case itself. But, sometimes, they have to let them go.

It is well-known that Belgium adhered to the Hague Visby Rules but declared them of mandatory application not only for all carriage from a Belgian port but also to a Belgian port. In addition, Belgian courts disregard a jurisdiction clause and will allow the third party holder of the bill of lading to bring the case in Belgium on the basis of the simple fact that the bill of lading relates to carriage to or from Belgium. Shipowners can then be confronted with a cargo claim in Belgium relating to damages ascertained at discharge in a port elsewhere in the world. Belgium has also incorporated the SDR amendments which produce a substantially higher limitation figure than in other countries, particularly under COGSA in the US. Finally, and regarding overall limitation of liability, Belgium adhered to the 1976 LLMC.

There is another development in Belgian maritime law which has resulted in an increase in cargo claims. Recently, the Belgian Highest Civil Court (Cour de Cassation, comparable to the House of Lords in the UK or the Supreme Court in the US) completely disregarded the so-called option clauses allowing a carrier to place containers on deck if it so wished. The Cour de Cassation specified that, whenever there is deck cargo, there is full liability of the carrier without the possibility of limitation unless this deck cargo was agreed and the shipment on deck is explicitly referred to on the face of the bill of lading (an option to do so provided for in the conditions of carriage being insufficient). In practice, bills of lading covering deck cargo rarely fulfil those rules, and so a carrier losing its deck cargo cannot, in Belgium, be exonerated from liability or limit liability as per Hague Visby. Since this decision was made, deck cargo cases, which previously would have been held elsewhere in the world, are on the increase in the Belgian courts.