The below reference guide regarding vessel arrest in Belgium was presented at the Ship Arrest Seminar that was organised by Thomas Cooper on 23 May 2017 at Trinity House, London at which our colleague Philip Vanlommel spoke for Belgium.
You can find the reference guide in PDF by clicking here.
1. Which laws and conventions confer the right of arrest?
Belgium is a signatory to the International Convention for the Arrest of Sea-going Ships 1952 and the right of arrest is enacted in the Judicial Code (art. 1468 and 1469 J.C.).
2. What conditions must be fulfilled in order to obtain a right of arrest?
In order to obtain permission for the arrest the claimant only has to present an allegation of a maritime claim in accordance with the 1952 Convention. The claimant thus must assert that he has a claim but must not prove it (prima facie evidence). The claimant will also need to provide some documentation regarding the amount of the claim. Original documents are not required.
3. For which claims can a ship be arrested?
A sea-going ship may be arrested in order to obtain security for all claims specified as maritime claims in the 1952 Convention:
• Damage caused by any ship either caused in collision or otherwise (including oil pollution)
• Loss of life or personal injury caused by any ship or occurring in connexion with the operation of any ship
• Agreement relating to the use or hire of any ship whether by charter party or otherwise
• Loss of or damage to goods including baggage carried in any ship
• General average
• Goods or materials wherever supplied to a ship for her operation or maintenance (including bunker claims)
• Construction, repair or equipment of any ship or dock charges and dues
• Wages of Masters, Officers or Crew
• Master’s disbursements, including disbursements made by shippers, charterers or agent on behalf of a ship or her owner
• Disputes as to the title or ownership of any ship
• Disputes between co-owners of any ship as to ownership, possession, employment or earnings of that ship
• The mortgage or hypothecation of any ship
• forfeiture or condemnation of a ship or goods
Belgium incorporated the Brussels 1926 Convention on Maritime Liens and Mortgages. Arrest is possible if the specific lien qualifies as a maritime claim.
Judgments and arbitration awards:
Arrest is possible even though the judgment/arbitration award is not final.
No right of arrest
A ship cannot be arrest in respect of:
• Claims for unpaid insurance premiums
• Broker’s commissions
• Agency fees (yet the agent is entitled to arrest the vessel for all disbursements made on behalf of the ship)
4. Who can arrest?
Any person alleging to have a maritime claim as set out in the 1952 Convention.
5. What property can be arrested?
• Any sea-going ship whatever the flag it is flying. A sea-going vessel is any ship that is commonly used or is destined to be used to sail the sea and that is exposed to the risks of the sea. That includes hovercrafts. The arrest stretches to the Ship’s Certificate but not to the bunkers, cargo and freight.
• Bunkers and freight can also be arrested but not on basis of the 1952 Convention.
• Cannot be arrested: State Owned vessels, platforms, installations that are not meant for navigation even though they can be moved.
6. Is sister-ship arrest possible?
Sister-ship arrest is possible if the owner is liable for the maritime claim. In that case not only the ship in respect of which the maritime claim arose may be arrested but also all other ships in the same ownership. There is no sister-ship arrest in relation to claims in respect of the ownership or the possession of a ship.
Ships are deemed to be in the same ownership when all the shares therein are owned by the same person or persons.
7. Is associated ship arrest possible?
It is possible although the claimant must prove that both ships are actually owned by the same persons or entity. In general the courts are reluctant to pierce the corporate veil but there is a tendency to be less strict.
8. Does arrest found jurisdiction or is it possible to arrest for security only?
It is possible to arrest for security only.
Art. 7 of the 1952 Convention provides that the Courts of the country in which the arrest was made in certain circumstances shall have jurisdiction to determine the case upon the merits. Although art. 7 has not been incorporated in the Belgian Judicial Code of Civil Procedure it is part of the Belgian Private International Law. In principle Belgian courts will thus accept jurisdiction on basis of art. 7 but in practice this article is rarely used.
9. What is the procedure for arrest?
A written application must be presented to the Judge of Seizures where the vessel lies or is expected to arrive. The written application must be accompanied by the supporting documents.
Original documents must not be presented nor do they need to be notarised or apostilled. Documents in Dutch, French, English or German language are at this stage normally accepted without translation.
No POA is needed. Belgian solicitors represent their clients without needing to present a POA.
If authorisation is granted the lawyer will instruct the court bailiff to proceed to the actual arrest of the vessel. The bailiff will serve the arrest order to the Captain, take the Ship’s Certificate and inform the Port Authorities.
Fees: the court fees for filing the application are EUR 100,00.
From receiving the claim file a vessel can be arrested within a few hours.
10. Does counter-security need to be provided?
In theory the court can order to post a counter-security but in practice the counter-security has fallen into disuse. A counter security is very rare.
There is however one exception. As a result of the OW Bunker saga it is possible that a counter-security needs to be provided in case of arrest for unpaid bunker invoices. The counter-security is in the amount of EUR 5/DWT.
11. Does the arresting party assume any liabilities?
12. What is the procedure for release from arrest?
Once the arresting party has obtained sufficient security it is obliged to immediately instruct its bailiff to release the ship. The bailiff will inform the Port Authorities and will return the Ship’s Certificate to the ship. As from the moment the security has been obtained the vessel can be released in one hour or two.
Alternatively if the arrest order is successfully challenged the court decision will automatically result in the withdrawal of the initial arrest order.
13. What type of security needs to be provided and how much?
• The arresting party is entitled to security up to the amount of the claim plus a provision of 30% for interest and cost.
• There is no prescribed form for security. The security must provide the same guarantee as the actual arrest on the ship. In general P&I Club letters of undertaking and guarantees from first class Belgian banks are accepted. Cash deposits are also an option.
14. Is multiple arrest possible or re-arrest for top-up security?
The arrest of a sister ship or a re-arrest of a ship is possible in case:
– the obtained security is no longer sufficient
– the value of the arrested vessel is not sufficient
to guarantee the claim
– of insolvency of the guarantor
The value of the security cannot exceed the value of the ship at the time of the (initial) arrest.
15. Can arrest be prevented?
16. Can an arrest be challenged?
The arrest can be challenged before the Judge of Seizures within 30 days of the arrest. The case will be handled as in summary proceedings.
In case security is provided awaiting the outcome of the arrest proceedings it is important to reserve the Owner’s right to challenge the arrest order.
17. When does a claim for wrongful arrest arise?
The courts are reluctant to grant claims for wrongful arrest. The Owner will practically have to proof reckless behaviour/gross negligence or bad faith on behalf of the arrestor (for example if the arrestor did not disclose important information to the Judge of Seizures at the time he filed the application). Maintaining the arrest can under certain circumstances also be considered as a kind of wrongful arrest. In practice this is rare or difficult to prove.
18. Are there any other particular features of arrest in your jurisdiction?
A conservatory attachment can be obtained over the ship to which a maritime claim relates, irrespective of whether it is the Owner or another person who is responsible for the maritime claim/debt. Only the ship to which the maritime claim relates may be the subject of such an arrest and not any other vessel owned by the same Owner. Arrest is thus possible for claims against for example voyage or time charterers.
In order to release the ship from arrest the Owner will have to provide security that guarantees payment of the claim even if a third party is the debtor of the claim.
There is a restriction to this principle: the ship may not be arrested if it changed ownership between the moment the claim arose and the moment of the arrest.
19. Can an arrest be effected outside the office hours and in the weekend Arrest out-of-hours: the Judges of Seizures are at the disposal of the parties 24/hrs a day, 7 days a week. In urgent matters such as ship arrest the Judges can be contacted by telephone and the application is usually presented at their residence. Needless to say that they do not like to be woken