BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
leged claims”. It includes indemnities for injuries or fatalities of crew members and passengers. 4.3 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. 4.4 Unpaid Bunkers A bunker supplier can arrest a vessel in connec - tion 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 ves - sel, there is an apparent authority from the own - er 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 charterer and the vessel can consequently be arrested. The charterer can only contract for themselves. However, the vessel is the guarantee for the obli - gations of that charterer and can consequently be arrested. It is akin to a “mortgage” for debts of another. 4.5 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 (especially in Antwerp, Ghent and Bruges) gives a decision on the bench. A court
bailiff thereafter serves the decision to the Mas - ter of the vessel, and the vessel is then arrested. No written power of attorney needs to be pre - sented. In that application, all relevant informa - tion must be disclosed to the judge. The court need not be provided with original documents; notarised and apostilled copies of the documents will suffice. Translation is needed only if the documents are in a language the judge does not understand. Documents in English do not need translation. The statute law provides the possibility for the judge to impose a counter-security. It is no long - er customarily ordered unless the judge is of the opinion that the claim is doubtful, and the arres - tor is from a country where enforcement of a judgment on appeal for costs would be difficult. 4.6 Arresting Bunkers and Freight It is possible to arrest bunkers (arrest of mova - bles) and freight (third-party garnishment). The conditions and principles that apply to the arrest of those types of assets are different from those of a ship’s arrest. For the arrest of a sea-going vessel, it is suf - ficient to allege a claim, which is usually not too difficult a test. For the arrest of any other assets, such as mova - bles (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:
65
CHAMBERS.COM
Powered by FlippingBook