The criminalization of Belgian shipping law
With the introduction of the new Belgian Shipping Code, the international trend towards the criminalization of shipping law continues unabated.
The recodification confirms this repressive trend and makes the legislative framework in this area much more manageable.
In other words, the punitive nature of many shipping regulations is also becoming visible to the authorities charged with enforcing them.
The criminal and administrative sanctions have been incorporated in Book 4 of which most provisions, unlike the other volumes, already came into force on 6 April 2020 (the Shipping Code applies since 1 September 2020).
The Shipping Code provides for 7 levels of punishment, which sanctions shipping offences in ascending order.
Levels 1, 2 and 7 concern only fines, ranging, for level 1, from 10.00 to 200.00 euro (to be multiplied by 8). In other words, level 1 fines range from € 800.00 to € 1,600.00.
In level 7, there are criminal or administrative fines ranging from € 250,000 to € 1,000,000, or from € 2 million to € 8 million. These are significant sanctions that can hit the shipowner or person liable hard.
In levels 3, 4, 5 and 6, shipping offences are also punishable by prison sentences ranging from 6 months to (even) life imprisonment (in level 6).
Some seemingly trivial rules have been criminalized. For example, the captain or owner of a Belgian ocean-going vessel that does not carry a valid tonnage certificate is punishable with a level 3 sanction (€ 50.00 to € 5,000.00 X8), however that no prison sentence is imposed.
Non-compliance with regulations on safety and the environment are punishable by level 4 – 5 and 7 sanctions, which can result in very high fines.
Even the non-compliance with the so-called COLREG Convention is punished with sanctions of level 5 (imprisonment from 5 to 15 years and/or a criminal or administrative fine from € 5,000.00 to € 100,000.00). The COLREG Convention is the Convention on the International Regulations for Preventing Collisions at Sea (London, 20 October 1972).
According to Article 18.104.22.168. of the BSC, “any person” who violates the COLREG Convention is punished with a level 5 penalty.
This actually means that in the case of collisions, where in almost all cases each vessel involved bears liability, the crew is at risk of being punishable for the breaches of the collision rules.
Assuming that collisions at sea are relatively rare, and it can be said that an intentional collision will not occur, one can clearly ask what the legislator’s motives could have been for introducing such a heavy penal sanctions regime.
It is striking that the administrative fine have been broadened to be imposed for all shipping offences.
It is therefore to be expected that this instrument will be the mainly be used for curbing maritime “crimes”. It remains to be seen how this will be implemented, which in turn will depend on the means that will be given to the competent authorities.
More on this in the next short contribution.
12 May 2021