Under the previous maritime code it was steady jurisprudence that the shipowner was also liable for the contract of carriage under the sea b/l.
The joint application of articles 46, 59 and 66 (old) BMC led to the rule that the shipowner could be held liable because the b/l was deemed to have been signed by the Master. The subsequent performance of the contract of carriage (through loading, carriage and delivery of the goods) was the confirmation that the shipowner was also committed.
The (old) Belgian Maritime Code had a universal scope of application, notwithstanding the many justified objections against this concept. The new Belgian Maritime Code does no longer allow to find such general liability.
First, it is noteworthy that the new Belgian Maritime Code, unlike the former statute, does no longer contain provisions in respect of the b/l.
This is rather surprising and unexpected since the b/l was the cornerstone to determine liabilities under the contract of carriage.
The liability of the shipowner for the performance of the contract of carriage is no longer a near automatism. That was intended by the makers of the new Maritime Code.
The new provisions with regard to the liability of the shipowner are found in articles 188.8.131.52 – 184.108.40.206.
Article 220.127.116.11 provides the contractual liability of the shipowner for the contracts entered into by the master, where the general rule remains that the shipowner is liable for the contractual commitments of the master.
This however is no longer the case when:
– agreements are not made in the performance of the service;
– the master expressly states acting for another party, which he also identifies (name and domicile);
– the master was not authorised for such dealings whilst the co-contractor was aware of that circumstance, or should have been aware;
The shipowner can also be liable for contractual dealings of the master, agreed indirectly.
For example, it is not uncommon that a ship agent issues the b/l for and on behalf of the master.
The shipowner will then also be liable under the contract, unless:
– the person purporting to act on behalf of the master was not authorized to do so and the co-contractor / third party knew this or should have known it;
– the contract entered into is incompatible with a similar contract (with the same object and in relation to the same matter) and the co-contractor or the third party involved was aware of this or should have been aware of it;
– the master and / or the third party where themselves not aware of the commitment, and reasonably could not have been aware of it.
If there is doubt in respect of the representation, the shipowner is deemed to be committed (article 18.104.22.168 § 2 BMC).
This restriction however is so poorly drafted that it seems to rescind itself.
The reversal of the in rem liability as a general principle will give rise to case law and it must be expected that it will take decades before steady jurisprudence will be established.
2 December 2020