BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
4. Cargo Claims 4.1 Bills of Lading
3.5 Procedure and Requirements for Establishing a Limitation Fund
A limitation fund requires two court decisions. Both can be obtained within a few days. First, a potentially liable person requests authorisation from the court to set up a fund. The request indicates the amount of security to be issued. The security proposed is to be either a cash payment or a guarantee to the court. The court then orders the amounts to be paid or secured within a deadline. A fund administrator is also appointed. Once the amount of the fund has been paid or secured, the fund administrator drafts a report, which is presented to the court. The court issues a second decision, confirming that a limitation fund was constituted. A potentially liable person can set up the fund. The amount of limitation is calculated in accordance with the provisions of the 1996 LLMC regime, the CLNI and/or the regional law, as noted in 3.3 Convention on Limitation of Liability for Maritime Claims . The security proposed is to be either a cash payment or a guarantee to the court. The guarantee must be found acceptable by the court. 3.6 Seafarers’ Safety and Owners’ Liability Belgium ratified the MLC through legislation passed on 17 September 2013. As a result, since 2014, stat - ute law has incorporated the MLC, ensuring its imple - mentation and enforcement within the country’s legal framework. Subsequent amendments to the conven - tion have also received approval. The law provides for penalties for non-compliance with the MLC. Moreover, detention of a vessel by PSC due to non- compliance with the MLC is a frequent occurrence. Such detentions also lead to administrative sanctions. It is possible to oppose the findings of PSC or appeal against administrative sanctions; however, as the time bar for appealing administrative sanctions or oppos - ing such findings is short, speed is of the essence. Additionally, the law allows for the possibility of crimi - nal prosecution in cases of non-compliance with the MLC. See 1.2 Port State Control for a discussion of the R/V Belgica case as an example of such sanc - tions/prosecutions.
The Hague–Visby Rules have been incorporated into the NBMC. In addition to their regular application, the Hague–Visby Rules as incorporated into Belgian law also apply, on a mandatory basis, to all carriage to and from Belgian ports. Conflicting provisions in the terms of carriage are to be disregarded. This principle has effect on foreign law or jurisdiction clauses; they are not opposable to cargo interests. 4.2 Title to Sue on a Bill of Lading Under the NBMC, both the receiver and the shipper have title to sue. However, it should be noted that the burden of proof of the damages suffered is differ - ent. A third-party receiver only needs to establish the damages and their extent, not that it suffered them personally. A shipper must also establish that it suf - fered the damages. Such a title to sue can be assigned. 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Carriers’ liability and limitation of liability for cargo damages is per the principles of the Hague–Visby Rules (as amended by the 1979 Special Drawing Rights Protocol). Depending on how the bills of lading or other transport documents are issued, the liability rests with the contractual carrier or the ship-owner, or both. 4.4 Misdeclaration of Cargo The carrier can claim against the shipper for misde - clared cargo. A misdeclaration is an error or omission and leads to liability. This is the normal application of the Hague–Visby Rules and their principles. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo The time bar for filing a claim for damaged or lost cargo (either for breach of contract or for liability in tort) in Belgium is one year from delivery, unless the protection given by the rules on carriage would not apply, in which case the contractual provisions in the terms of carriage could be applicable.
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