BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
that by application of Article 29 of the UN Convention on the Law of the Sea (UNCLOS) and Article II.4 of the MLC, an interdiction to sail served on the vessel was valid as MLC provisions had not been respected in so far as the civilian crew was concerned. Administrative sanctions can also be imposed when infringements are found by the PSC. Many fines were imposed on ship-owners for not respecting seafar - ers’ rights during the pandemic. These fines can be appealed against. The PSC does not have specific powers in relation to marine casualties such as grounding, pollution or wreck removal, nor in relation to seafarers’ casualties. However, a marine incident of any nature will result in a PSC inspection, which may then result in sanctions. Other Authorities Other authorities can investigate such incidents – for instance, the investigative authorities of the Federal Bureau for the Investigation of Maritime Accidents (FEBIMA) or the Flemish OSB (investigation body for shipping accidents and incidents on inland waterways in Flanders), per EU Directive 2009/18, O.J., of 28 May 2009 (as adapted) – for the purposes of collecting evi - dence in order to advise on how to avoid similar inci - dents in the future. It is prohibited by statute law to use the reports of the FEBIMA (or OSB) as evidence in court proceedings. The FEBIMA (or OSB) has authority for marine casual - ties and incidents whenever at least one of the follow - ing criteria is met: • a Belgian-flagged vessel was involved; • the casualty occurred within the Belgian territorial sea or Belgian internal waters; or • a substantial Belgian interest was involved. FEBIMA (or OSB) investigations include the hearing of witnesses. Those investigations may not be ham - pered. The FEBIMA (or OSB) can detain ships and can arrest any objects involved in an incident. It may also destroy objects for public health and safety reasons. Removing any object involved in an incident without the permission of the FEBIMA (or OSB) is prohibited.
The Public Prosecutor may also investigate these incidents, to determine if a criminal offence has been committed. A court-appointed surveyor (sometimes referred to as an “assessor”) may also investigate for the purpose of determining the facts, causes and circumstances of an incident for use in court proceedings. Court sur - veying proceedings are defended actions. All parties to the proceedings will be invited and may be present and represented at every investigative step the court surveyor undertakes. A Belgian court will instruct a Belgian court surveyor if the facts to be determined can usefully be determined in Belgium. This is the rule even if the case on the merits is to be held in another jurisdiction. 1.3 Domestic Legislation Applicable to Ship Registration The government authority handling the domestic reg - istration of vessels is the Belgian Ship Registry locat - ed in Antwerp. This is a department of the Federal Public Service of Mobility and Transport. The key legislation applicable to ship registration in Belgium is the NBMC, which has been applicable since 1 September 2020. It is of the utmost impor - tance to realise the fundamental changes in statute law since this date. 1.4 Requirements for Ownership of Vessels Registration is mandatory for sea-going ships under construction in Belgium, but optional for the following sea-going ships: • those operated from Belgium; or • those of which the owner or operator is either: (a) a natural person who is a national of a member state of the European Economic Area; (b) a natural person who has their domicile or principal residence in Belgium; or (c) a legal person that has its actual seat (ie, place of registered office, central administration, or principal place of business) in one of the mem - ber states of the European Economic Area.
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