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HAS THE LEGAL POSITION OF THE SEA-CARRIER IMPROVED IN BELGIUM ?

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It can be said with little hesitation that Belgium has always been a jurisdiction with a (very) favourable legal framework for cargo claimants, by imposing a strict liability regime consisting of a compulsory applicability of the Hague Visby rules. These rules  were incorporated in article 91 of the Maritime Code, which was then considered to be an overriding mandatory provision (in the meaning of the Rome I Regulation on the law applicable to contractual obligations). The rules were applied to any situation within its scope, and setting aside any other choice of law. Belgian Courts assumed jurisdiction over any claim for particular average (any cargo claim) unless the carrier could prove that the agreed jurisdiction would apply article 91 MC as a Belgian Court would (a requirement which obviously ruled out acceptance of any jurisdiction clause).

The stance can be explained from an historical perspective : the Hague rules became a treaty at the Brussels Convention of 1924. Belgium’s prime minister, Mr. August Beernaert, was a former President of the Comité Maritime International (1896-1912), and between 1921 and 1937 its President was Louis Franck, in 1924 a minister in the Belgian government (both were founding fathers of the Belgian Maritime Law Association).

The rules then soon were elevated by the jurisprudence to be overriding mandatory, and in the late 20th Century some jurisprudence even labelled article 91 MC als a ‘politiewet’, a so called ‘police law’, i.e. a legal provision having a near sacred status.

It has never comprehensively been explained why the cargo interested parties required this level of protection : it is indeed difficult to construe how loss or damage to cargo after a sea carriage, giving rise to a contractual claim against the sea-carrier, could be an overriding mandatory provision safeguarding Belgium’s political, social and/or economic order.

On 1st September 2020 the new Belgian Shipping Code came into application : the new code incorporated and enhanced the jurisprudence that the Hague Visby rules were overriding mandatory rules and even broadened its reach by declaring the rules applicable to any contract of carriage, irrespective whether the claimant was a third party. Even the shipper was now protected (no negotiated bill of lading was required).

However, only 20 month’s after the promulgation of the Belgian Shipping Code the Belgian legislator made a drastic shift in policy : with its Statute of 16th June 2021 the provisions in relation to contracts of carriage in the Shipping Code were changed.

The provision, declaring the Hague Visby rules as incorporated in the Shipping Code to be overriding mandatory (article 2.6.2.13) was abolished.

The change in policy was a political decision of the Belgian government. In the memorandum to parliament the proposed change was explained to abolish the to far reaching consequences of the Shipping Code, which in effect were giving a global reach to the Code and imposing Belgian law on international contracts of carriage (Belgian Parliament, Project to amend the Belgian Shipping Code, 20th April 2021, DOC 55 1935/001, p. 17). The memorandum stated : “This provision would disproportionnaly harm shipping to Belgian ports and is therefore abolished.”

The proposition, imposing a shift to Belgian jurisprudence of nearly a century old, did not go unnoticed and was challenged in open session of parliament. A Member of parliament questioned the move and submitted that some of the proposed amendments would have major consequences for Belgian importers of goods who were said to be then left subject to the goodwill of sea carriers (Belgian Parliament, session of 10th June 2021, CRIV 55 PLEN 109, p. 63).

The minister of justice unambiguously declared that the government intended to align Belgian legislation with other European countries, where the notion of the overriding mandatory nature of the Hague Visby rules did not exist. It was a policy driven proposal : “It are not only the Belgian, but also the foreign carriers who support this proposal, also the container lines representing more the 65% of the container carriages in Antwerp port. If we deviate from a general rule our ports become less attractive.” The minister asked to approve the proposed amendments (“Acting otherwise damages our maritime sector and is a threat for the attractiveness of our ports”).

The changes to the Belgian Shipping Code came into effect on 16th September 2021.

As a result the conclusion must be that the amended Belgian Shipping Code has created a new set of rules allowing carriers to rely on the terms and conditions as included in the bill’s of lading and sea waybills, or any other contract of carriage, including choice of law provisions and jurisdiction clauses (provided these in itself are valid and agreed terms).

It will remain to be seen how the Belgian Courts will decide on the application of the amended Belgian Shipping Code given the expected staunch opposition it will face : it will require a substantive mind shift.

The conclusion however seems to be that the legal position of the sea-carrier as intended by the Belgian legislator has improved.

 

Mr. Stéphane Van Moorleghem