Carriage of goods by sea in Belgium
Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Belgium has adopted the Hague Rules and the Hague-Visby Rules, together with the Special Drawing Rights Protocol. Those rules have been incorporated in Article 91 of the Belgian Maritime Code. There is one important particularity under Belgian law: when the Hague-Visby Rules were transposed into national law, they were made mandatory for all carriages to and from a Belgian port. Thus, if a bill of lading is issued in a non-Hague-Visby state, but the goods are to be delivered in a Belgian port, the Hague-Visby Rules are mandatory.
Article 91 of the Maritime Code is applicable only to negotiated bills of lading.
What is the official extent of the carrier’s responsibility for goods?
If Article 91 of the Maritime Code applies, it determines the carrier’s responsibility. As such, the carrier can apply the exonerations provided for in the Hague-Visby Rules.
If the document of carriage is not a bill of lading or similar document, the carrier’s responsibility is determined by the terms and conditions of the bill of lading.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Insofar as Article 91 of the Maritime Code applies, a carrier cannot contract out of liability.
However, insofar as Article 91 of the Maritime Code does not apply, the carrier can contract out of liability.
Title to sue
Who has title to sue on a bill of lading?
If a bill of lading has been issued, only the holder of the bill of lading is entitled to sue, irrespective of whether it effectively suffered the losses. In Belgium, the holder is generally a freight forwarder acting in its own name, but for an undisclosed principal. Since the January 2017 Supreme Court decision in this regard, it is clear that in such circumstances, the freight forwarder is the only party that has title to sue.
What is the time bar for cargo claims?
If a bill of lading has been issued and negotiated, the one-year time bar under the Hague-Visby Rules applies.
In other circumstances, the contractual provisions – which sometimes provide shorter time bars – may apply.
It is important to seek guidance in order to determine whether the holder of a document of carriage can benefit from the protection of Article 91 of the Maritime Code (ie, the Hague-Visby Rules). If the cargo interests cannot benefit from such protection, the terms of the bill of lading – which may provide different time bars – may apply.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
A ‘carrier’ is defined as the registered owner of a vessel or a charterer that has entered into a contract of carriage with the shipper. The liability for cargo claims is joint and several.
Insofar as owners are concerned, they are objectively liable for the acts of a master. There is an irrefutable presumption that bills of lading are signed by the master.
Insofar as charterers are concerned, the holder of the bill of lading can prove with all means available who the charterer or the issuer of the bill of lading was if this is unclear from the bill of lading itself. If the identity of the charterer or carrier is clear from the bill of lading, research as to the identity of the issuer of the bill of lading is unnecessary (Supreme Court, January 7 2011, C.09.0208).
Article 91 of the Maritime Code (which incorporates the Hague-Visby Rules) applies to the carriage of all possible goods, except:
-living animals; and
-deck cargo, on the condition that:
-the deck carriage is mentioned in the bill of lading; and
-the goods have effectively been carried on deck.
Consequently, if the goods are carried on deck and this is not mentioned in the bill of lading – or the goods are effectively carried in the hold, but the bill of lading provides for deck carriage – they are also subject to the protective provisions of Article 91 of the Maritime Code. Undeclared deck cargo results in the carrier’s loss of the right to limit its liability or exonerate itself from liability, even if the bill of lading provides for an option clause.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
In general, the carrier can appeal against the holder of a negotiated bill of lading on the basis of all defences available under the Hague-Visby Rules.
Insofar as exoneration for perils of the sea is concerned, the carrier must establish:
the facts of the peril of the sea. Case law in this respect is purely casuistic, but a peril of the sea is generally not easily accepted. Whereas nautical events which are predictable and to be expected cannot constitute a peril of the sea, an unexpected extraordinary storm could be considered such a peril;
that the damage was caused only by the peril of the sea. A heavy storm does not mean that the damage was not caused by something else (eg, bad stowage); and
that the consequences of the peril of the sea could not be avoided.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
The carrier’s agents execute an obligation of the carrier. Consequently, such agents cannot be sued directly by any party that has a contractual relationship with the carrier. Supreme Court case law has clearly repeated that parties must follow the contractual chain and cannot jump over it – for example, by way of a direct tort action.
In short, a Himalaya clause is the law.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Parties may freely agree the route to follow. In the absence of such agreement, the normal route must be followed. Deviation from the route results in liability for losses suffered unless such deviation is reasonable or for the purpose of saving a life.
An unreasonable deviation does not result in a stepping out of the contract. Under the Belgian interpretation of the Hague-Visby Rules, the carrier remains bound by the contract of carriage, including in case of an unreasonable deviation. The carrier can also still limit liability. This is quite different to the position in other countries which apply the Hague-Visby Rules.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
There are no limits on the claims which can be brought against a shipper for the non-respect of its obligations. Specific dead freight rules apply in chartering matters.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
There are no specific rules in respect of multimodal carriage. The consequence is that every single leg of the carriage follows the rules applicable to that leg. For example, where part of a multimodal carriage is done by road, that part will be ruled by the Convention on the Contract for the International Carriage of Goods by Road (or the Belgian equivalent thereof).
Most of the rules on carriage are mandatory. This limits the possibility for carriers to contract out of those obligations where it would have a negative effect with respect to the cargo interests.
Source: Kegels & Co