BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
port up until its public sale, such as port fees, crew costs, and maintenance expenses. “Privileged claims” are similar but not identical to those of the 1924 convention on liens and mortgages. In 2021, the NBMC was amended to remove cargo claims from the list of “privileged claims”. It includes indemnities for injuries or fatalities of crew members and passengers. 5.3 Liability in Personam for Owners or Demise Charterers The vessel in respect of which the maritime claim arose can always be arrested, even if the owner (or demise charterer) is not personally liable. 5.4 Unpaid Bunkers A bunker supplier can arrest a vessel in connection with unpaid bunkers supplied to a vessel. In 2016, the Belgian Supreme Court ruled that, if an arrest is for deliveries (such as bunkers) made to the vessel, the claim must arise out of: • a commitment entered by the charterer or ship- owner; or • an obligation that can be attributed to them under the doctrine of trust. Case law since then seems generally to accept that, with deliveries (such as bunkers) to a vessel, there is an apparent authority from the owner or the charterer, so that unless the supplier explicitly indicates that they do not consider the owner or the charterer to be the debtor, the order is attributable to that owner or char - terer and the vessel can consequently be arrested. The charterer can only contract for themselves. How - ever, the vessel is the guarantee for the obligations of that charterer and can consequently be arrested. It is akin to a “mortgage” for debts of another. 5.5 Arresting a Vessel An authorisation to arrest is requested of the arrest judge by way of an ex parte application filed by an attorney on behalf of a client. The judge usually (espe - cially in Antwerp, Ghent and Bruges) gives a deci - sion on the bench. A court bailiff thereafter serves the
decision to the Master of the vessel, and the vessel is then arrested. No written power of attorney needs to be presented. In that application, all relevant information must be disclosed to the judge. The court need not be provided with original docu - ments; notarised and apostilled copies of the docu - ments will suffice. Translation is needed only if the documents are in a language the judge does not understand. Documents in English do not need trans - lation. The statute law provides the possibility for the judge to impose a counter-security. It is no longer customar - ily ordered unless the judge is of the opinion that the claim is doubtful, and the arrestor is from a country where enforcement of a judgment on appeal for costs would be difficult. 5.6 Arresting Bunkers and Freight It is possible to arrest bunkers (arrest of movables) and freight (third-party garnishment). The conditions and principles that apply to the arrest of these types of assets are different from those of a ship’s arrest. For the arrest of a sea-going vessel, it is sufficient to allege a claim, which is usually not too difficult a test. For the arrest of any other assets, such as movables (bunkers), freight, bank accounts, etc, the arrestor must establish that certain conditions are present. First, conditions in respect of the quality of the claim must be assessed; an arrest is possible if the claim is sufficiently: • certain – ie, it must be a prima facie good claim; • due – ie, it is payable immediately; and • quantifiable – ie, the amount must be quantifiable. Second, conditions in respect of the situation of the debtor (charterer) must be assessed. There must be urgency to secure the claim – eg, a debtor must be in financial difficulties.
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