October 17, 2016 / Guido De Latte
The author is the Belgian ship mortgage registrar, the secretary of the Royal Federation of Mortgage Registrars of Belgium (Koninklijke Federatie der Hypotheekbewaarders van België – Fédération Royale des Conservateurs des Hypothèques de Belgique), and a member of the Royal Belgian Marine Society (Koninklijke Belgische Marine Academie (KBMA) / Académie Royale de Marine de Belgique (ARMB)).
Some considerations about the importance of navigation, about the international relevance and peculiarities of maritime law and about the differences between land registration and ship registration.
Introduction
1. At the PCC[1] conference held in Athens on June 23-25, 2014, a representative of the Directorate-General for Maritime Affairs and Fisheries of the European Commission gave a presentation about the ‘directive on maritime spatial planning’[2] and about ‘blue growth and sustainability’.
The PCC agreed on the need for a common study on the importance of a marine cadastre to the European economy[3].
ELRA has committed itself to participate in the study related to maritime spatial planning and marine cadastre, be it as an interested though not directly involved partner.
Some information about the importance of navigation, maritime law and the distinction between land and ship registration might be useful in the context of this study and other developments regarding the European blue economy[4].
The economic importance of navigation
2. An estimated 90% of all world merchandise trade is carried by sea[5].
The transported volumes comprise tanker trade (crude oil, petroleum products and gas), traditional dry cargo trade (mainly bulk shipments of coal, iron ore, steel products, grain, bauxite and aluminium) and containerised cargo trade.
The cheap nature of seaborne trade has substantially contributed to the globalisation of the world economy. Without cheap shipping, a worldwide delocalisation of factories from the developed to the developing and emerging countries in Asia with their cheaper labour force would never have been conceivable.
The Western world’s welfare heavily depends on seaborne trade. Without shipping, the life and economies of western societies would come to a near standstill, as these societies would be deprived of vital consumer goods that are produced in Asia for the Western markets.
3. The European Union remains the frontrunner of the world’s shipping industry[6]. The EU controlled fleet – which includes ships whose ultimate ownership or control lies in a EU country but which may fly the flag of a non-EU country – currently represents around 40% of the world’s gross tonnage. In 2012, the European shipping industry was estimated to have contributed 145 billion EUR to the gross domestic product, employed 2.3 million workers and generated tax revenues of 41 billion EUR.
4. Europe is the global leader in the construction of complex vessels such as cruise ships, ferries, mega-yachts and dredgers[7].
The European shipbuilding industry covers both shipyards (new-building, maintenance & repair) and the marine equipment industry (suppliers to shipyards).
There are around 150 large shipyards[8] in Europe, of which around 40 are active in the global market for large sea-going commercial vessels. Around 120,000 people are directly employed by shipyards (civil and naval, new building and repair) in the European Union.
The value of the vessels contracted by European shipyards for the first 3 quarters of 2013 stood at 28.4 billion USD, coming third on par with Japan, after South Korean yards with the highest order book of 104 billion USD and China with the second highest order book[9].
The cultural and historic importance of navigation[10]
5. It might be rightly argued that civilisation only really began when men started undertaking the first sea voyages. Only navigation allowed for international trade, i.e. the wide-scale carriage and exchange of goods such as food, tools and raw materials, and for the spread of ideas and things cultural, such as knowledge, arts, skills, religions and intellectual progress. Though the statement sounds bold, many historic facts prove it right.
6. The sea played a defining role in the formation of Greek cultures that arose along the shores and on the islands of the Aegean, Black and Mediterranean seas.
One of the first great masterpieces of Greek literature – and of world literature for that matter – is the Odyssey.
This book is a tribute to the endeavour and enterprise of the Greeks to set out aboard their ships and set up trading posts and settlements along the banks of the Black Sea, the coast of Asia Minor and the Mediterranean Sea.
This Greek maritime expansion and colonisation took place from the 11th until the 6th century BC[11].
7. The historical consequences of this overseas Greek expansion were decisive for classical civilisation and for Western civilisation in general.
The numerous new markets that were opened to trade contributed to the development of exchanges as well as industries. Raw materials that were needed for daily life and for the arts, such [as] metals, and exotic herbs, such as silphium from Cyrene, a condiment and medicine at the same time, as well as cloths, ivory, and essential products such as [wheat] from the Pontus and Thrace, gave a new boost to the economy. The consequences for the culture were even more important. Knowledge of the natural and spiritual environment expanded particularly with the introduction to new and different regions and people with different mentalities, experiences and knowledge. The first lines of the Odyssey about a hero who “saw the cities and knew the minds of many men”, concentrates all the wealth of new experience gained by the Greeks. It is not by chance that philosophy first developed in the colonies of Asia Minor (Anaxagoras, Anaximandros, Herakleitos, Thales) and the West (Parmenides, Xenophanes, Pythagoras). Nor is it accidental that literature, history and sciences blossomed in the colonies (Homer, Hekataios, Herodotos, Demokritos) and that the first written law code belongs to Epizephyran Locri in the early 7th century BC, nearly immediately following its foundation […]. The Greek alphabet for writing, the tool for rendering and transferring speech, was spread by the first colonists in Italy and evolved to become the means of written expression of the Western World. The prototype of the city-state [with] its socially responsible citizens was also transmitted to all regions of the [Mediterranean]. The lottery, by which new land was equally apportioned to the colonists, not only cultivated equality but also created the shell of democratic life, namely the “Hippodameian” rational architecture of the cities.
The Mediterranean Sea, as it was formed by Greek colonisation, never ceased to provoke new political visions, commercial interests, hopes for a better life in other lands and the desire to explore, even later in history.[12]
8. The words of the famous modern Greek poet Kafavis can still be heard, reminding us of the drive and obsession of the ancient Greek mariners to leave their homeland in search of opportunities for a better life:
The thirst
For the sea rose up with him.
He hated the air of the dry land.
At night, spectres of Hesperia[13]
Came to trouble his sleep.
He was seized with nostalgia
For voyages, for the morning arrivals
At harbors you sail into,
With such happiness, for the first time.[14]
9. For the ancient Greeks, the sea was more than a standing invitation to a better life, to freedom or to lucrative expeditions to foreign lands, it was the key to their survival.
In 480-479 BC, the navy of Athens and her Greek allies – under the command of the famous Athenian politician and general Themistocles – proved crucial in defending Greek freedom and defeating the Persian invader, King Xerxes I.
One might wonder what the Western Civilization would have looked like, if the Greeks had lost the naval battle at Salamis and if Greece had been conquered by the Persians[15].
Would philosophy, science, personal freedom and democracy, the legacies of Ancient Greece, have been an essential part of modern Western Civilization
10. The economic backbone of the Roman Empire is without any doubt the ‘mare nostrum’ or Mediterranean Sea. The victory over Carthage in the 2nd century before Christ and the eradication of piracy following the successful campaign by Pompey[16] in the 1st century before Christ opened the Mediterranean to wide-scale commercial navigation and trading within the Roman republic/Empire, contributing to the rise of the Roman civilisation.
Without the constant import of grain by sea from Sicily, Northern Africa and Egypt to Rome, it would have been impossible to preserve the social peace in Rome and to guarantee the continuation of the Roman administrative system.
Likewise, it were not the Germanic invasions that put a definitive end to the Roman civilisation and its prominence in Western Europe, but the Islamic conquest of the Middle East, Africa and Spain. This conquest prevented maritime trade and cultural contacts between Western Europe and the Eastern Roman Empire from being continued. In the process, it broke the Mediterranean unity of the Roman civilisation and brought about the final separation of Western Europe from the Roman Orient and the emergence of the Carolingian Empire and the feudal economic system in Western Europe[17].
11. The real economic take-off of medieval Western Europe began in the 12th century.
The crusades brought new economic ideas and entrepreneurship to Europe, and important merchant cities emerged in Northern Italy[18] and Flanders[19]. These rich and powerful cities managed to break free – at least to a certain extent – from their traditional overlords, being the local nobility, their counts, kings and emperors.
The origin and creation of the wealth of these cities and of their cultural heritage had everything to do with international commerce, navigation and import of goods from overseas.
Bruges became the medieval New York. Its port was the main gateway to Northern France and Central Europe. Bruges was the international market and staple place par excellence of Western Europe.
Galleys from Italy imported all kinds of products and goods from the Mediterranean world (spices, silk, luxury products, wine, salt, oil, rice etc.).
Cogs of the German Hansa[20] imported other goods from Scandinavia and Eastern Europe (herring, furs, wood, wheat etc.). The words ‘Navigare necesse est, vivere non est necesse’ were one of the mottos ascribed to the Hansa[21].
12. The 16th century was the golden age of the town and port of Antwerp.
As a result of improved access to the North Sea and thanks to the support of the Habsburg monarchs Maximilian and Charles V[22] Antwerp gradually replaced Bruges[23] as the economic centre of Western Europe.
During the 15th and early 16th century, the Portuguese explored and discovered the coast of Africa, Asia and Brazil. The driving force of the Portuguese explorations was Prince Henry the Navigator[24] who organized and sponsored many maritime expeditions in the first half of the 15th century. In 1498 Vasco da Gama reached Calicut in India. In 1500 Pedro Álvares Cabraldiscovered Brazil.
Under the sponsorship of the crowns of Castile and Aragon an expedition commanded by Christopher Columbus crossed the Atlantic Ocean in search for new maritime trade routes to the Indies. In 1492 Columbus discovered San Salvador (now The Bahamas) and Hispaniola (now Cuba). In 1519-1521 Hernán Cortès conquered Mexico. In 1530-1533 Francisco Pizarro conquered Peru.
The Portuguese brought their colonial goods – especially spices – to Antwerp and bought metals – especially the silver they needed to finance their Asiatic trade – from the South German Augsburg merchants.
The Spanish authorities and traders later also imported their colonial goods to Antwerp in order to sell and ship them to the rest of Europe.
In the process, Antwerp and its businessmen became very wealthy and accumulated the capital[25] needed to embellish the town, expand the port and sponsor the great Renaissance and Baroque artists and painters of the Southern Netherlands, such as Jordaens, Rubens and Van Dyck.
13. However, the Eighty Years war (1568-1648) between the protestant rebels and the Spanish king Philip II, put an end to Antwerp’s golden age. In 1585, Antwerp surrendered to the Spanish army commander Alexander Farnese, and the protestant elite of Antwerp fled to Amsterdam, Haarlem, Leiden and other centres in the Northern Netherlands.
In so doing these ‘exiles’ or ‘refugees’ contributed very much to the economic growth of the new Dutch republic.
I quote the following lines by the Dutch historian Pieter Geyl[26]:
Without the capital of the Antwerpeners who had come north after the fall of the town, without their commercial [knowledge] and relations, Holland, a small and in some respects still backward area, could not possibly have risen to the opportunities that were offered her so suddenly. Under Leicester’s government […] the Flemings and Brabanders had not yet quite “settled down”, so they formed an element of political unrest. Soon, however, most of them were infected with the fever of money-making which was getting a grip on Holland and Zealand, and they prospered too well to spend all their time looking back longingly to their own provinces. In all bold enterprises, requiring initiative and [breadth] of vision, the exiles did their bit.
This exodus of 60,000 people out of a total Antwerp population of 100,000 as well the subsequent blockade of the Scheldt River that was to last for more than 200 years, condemned Antwerp and its port to become shadows of their former selves.
The fall of Antwerp also meant the split of the Netherlands. The people of the Southern part of the Netherlands were left defeated and impoverished, and their country occupied by Spanish forces.
I again quote some lines by Pieter Geyl[27]:
If Holland and Zealand flourished, it was partly because they fed on the best vital forces of Flanders and Brabant. The war, which “noticeably improved“ them, had truly “spoilt” the Southern provinces. Trade was at a standstill, the towns impoverished with countless houses empty, wide regions lay open to the States’ cavalry, which now (like the Spanish had been wont to do so some years previously in Gelderland and Friesland) from their bases at Breda, Ostend, and other places, laid Flanders and Brabant under contribution. Meanwhile, the Spanish soldiery had not changed. They still were formidable to the enemy when they had a mind to fight, but too often they broke out into mutiny and made themselves formidable only to the obedient populations.
14. The 17th century was the Dutch golden age.
The sea was an important factor in the astonishing economic development of the Dutch Republic. It was in their overseas trade that the Dutch could make the most of the possibilities of their hard won independence. It was the sea that showed them the way to wealth and power, to adventure and greatness. In the command of the sea and in the conduct of naval war resided the entire prosperity of the country[28].
15. Amsterdam became the new maritime and commercial centre of Western Europe.
It thrived on the trade of colonial goods brought to Amsterdam by the Dutch East and West India Companies.
After the decisive defeat suffered in 1588 by the Spanish Invincible Fleet, the merchants of the new Dutch Republic started organizing expeditions to Asia in search for spices.
In 1602 the Dutch East India Company (hereinafter called VOC)[29] was formed. The VOC had a monopoly to carry out commercial activities in Asia. It is often considered to have been the first multinational corporation in the world and it was the first company to issue stock. The VOC had quasi-governmental powers, including the ability to wage war, imprison and execute convicts, negotiate treaties, coin money, and establish colonies.
In 1619, Jan Pieterszoon Coen was appointed Governor-General of the VOC. In the course of the same year he founded Batavia (now Jakarta in Indonesia) as the VOC’s capital and headquarters on the island of Java. In 1652, Jan van Riebeeck established an outpost at the Cape of Good Hope (now Cape Town, South Africa).
In 1621, the Dutch West India Company (hereinafter called WIC)[30] was formed. The WIC operated in West Africa, the Americas, the Pacific Ocean and the eastern part of New Guinea. The company became instrumental in the Dutch colonization of the Americas. This company was less successful than its Eastern counterpart, as it lost his North American territories[31] to England and its Brazilian ones to Portugal.
This loss was probably the result of the Dutch republic not having enough people to settle in the American territories[32].
16. During the second half of the 17th century, Holland was at the peak of its power and prestige. It was by far the richest, most urbanized and most cosmopolitan state in Europe.
The source of Holland’s enormous wealth was commerce and shipping. Almost everything passing in and out of Europe – English tin, Spanish and Irish wool, Swedish iron, French wines, Russian furs, Indian spices and tea, and Norwegian timber – flowed into Holland to be graded, finished, woven, blended, sorted and shipped out again on the Dutch canals, on the rivers and on the oceans. To carry these goods, the Dutch had a near-monopoly on the world’s shipping[33].
In 1670, the Dutch fleet had a total tonnage of 568,000, which was far more than the total tonnage of the Spanish, Portuguese, French, English, Scotch and German fleets combined.
At the end of the 17th century, the Dutch fleet still had a tonnage that was double that of the English fleet and more than 8 or 9 times that of the French[34].
The Dutch sea power and maritime skills were held in very high esteem all over Europe, so much so that even the Russian Tsar Peter the Great spent several months in 1697 and 1698 in Zaandam and Amsterdam to learn to build ships and to get acquainted with all aspects of life in the Dutch republic[35].
17. Holland gradually lost its dominating role in maritime affairs in the course of the 18th The long continental wars waged by Louis XIV of France (lasting from 1665 till 1713 with intermittent but brief periods of peace) left both the Dutch and the French exhausted[36]. Holland slipped to the rank of a lesser state.
London became the unchallenged new maritime capital of the world and Britain embarked on two centuries of ‘empire building’ and unprecedented industrial and naval supremacy under the Hannoverian dynasty[37].
18. Following the 1713 peace treaty of Utrecht, concluded between France and the anti-French allies England, Holland and Austria, the Southern Netherlands (present Belgium) became part of the Austrian Empire. As the Scheldt remained closed, the new subjects of the Austrian Habsburg emperor Charles VI sought to launch overseas expeditions from the port of Ostend, in order to restore the economic prosperity to their war-ravaged country.
The trade from Ostend to Mocha, India, Bengal and China started in 1715. Private merchants from Antwerp, Ghent and Ostend were granted charters for the East India trade by the government in Vienna. Between 1715 and 1723, 32 ships sailed from Ostend to China, the Malabar or Coromandel Coasts, Surat, Bengal or Mocha. Those expeditions were financed by different international syndicates composed of Flemish, English, Dutch and French merchants and bankers.
In January of 1723, the “Compagnie Impériale et Royale établie dans les Pays-Bas Autrichiens sous la protection de saint Charles” – called “Compagnie d’Ostende” (Ostend Company)[38] – was formed, and was granted the monopoly of the East Asian trade. The articles of association of the Ostend Company were approved by imperial charter of December 1722.
The Ostend Company established trading posts and colonies at Banquibazar on the Ganges river in Bengal, at Cabelon on the Coromandel coast (South East India – in the region of nowadays Chennai) and at Canton in China.
Between 1724 and 1732, 21 company vessels were sent out, mainly to Canton in China and to Bengal. Thanks to the rise in tea prices, high profits were made in the China trade. Between 1719 and 1728, the Ostend Company transported 7 million pounds of tea from China, which represented 42% of the total import of tea to Western Europe.
The success of the Ostend Company was not at all to the liking of the British, Dutch and French East India Companies. These companies lobbied their governments to put an end to its activities. Eventually, in May 1727, the Austrian Emperor, under pressure from the Dutch and British governments, suspended its charter for seven years and the 1731 Anglo-Austrian Treaty of Vienna ordered its final abolition. The flourishing Ostend Company had been sacrificed by Charles VI in order to secure the rights of his daughter, Maria Theresa, to inherit all his Habsburg kingdoms and lands as an integral whole without partition.
Even though a small number of illegal expeditions were organized under borrowed flags between 1728 and 1731, the last ships ever sailing for the company did so in 1732, a last expedition allowed under the Treaty of Vienna. The factory at Banquibazar, brought under direct Imperial rule by then, lasted until well into the 1740s.
19. In 1830, the Southern Provinces seceded from the United Kingdom of the Netherlands[39] to become an independent country, the Kingdom of Belgium[40].
Although the initial economic prospects did not look very bright for the new kingdom, the economic developments during the second half of the 19th century proved otherwise. Belgium enjoyed an unprecedented economic expansion[41], thanks to the huge industrial successes of the Walloon steel mills and collieries and to the rebirth of the port of Antwerp. By 1900 Belgium was the fifth economic power in the world and the fourth most important export country.
Antwerp’s return to the maritime world scene[42] was made possible by the 1863 international treaty for the redemption of the Scheldt toll. The Belgian government managed to make the Dutch government accept a final payment, so as to put an end to the Scheldt duties.
20. Improved and extended port infrastructure, increasing export traffic of industrial products from Wallonia and Germany, export of raw materials from abroad (inter alia: crude oil from the US and from the Russian Black Sea port of Batoum) and from King Leopold’s Congo (ivory, rubber, palm oil, copper and iron ore, diamonds…), a perfect inland location ( at a distance of 80 km from the North Sea and nearby the Walloon and Ruhr steel mills), the availability of railroads and inland waterways and other factors explain why Antwerp became the first world port by 1870, a position which was to last until 1900, when it was overtaken by Rotterdam.
Antwerp was important not only as a port for overseas trade and transport, but also as one of the most successful emigration ports[43]. Between 1873 and 1934 some 2 million Europeans left for America via Antwerp on board the passenger steamers of the Red Star Line[44].
21. The sea trade via Antwerp created a lot of business and job opportunities, not only for Belgian people, but also for foreigners, who decided to settle and ‘make money’ in Antwerp[45].
A great deal of the money generated by this sea trade found its way into art collections, beautiful art deco buildings and scientific enterprises such as the famous Antarctic expedition that Adrien de Gerlache de Gomery undertook from 1897 till 1899.
And last but not least: it was in Antwerp that, on the initiative of the Belgian politician Auguste Beernaert, the Belgian maritime lawyer Louis Franck and the marine insurance broker Charles Le Jeune, the ‘Comité Maritime International’ (CMI) was founded in 1897. This committee was instrumental in promoting and advancing the cause of the unification of maritime law.
The international relevance and peculiarities of maritime law[46]
Merchant law
22. Unlike civil law, maritime law was not imposed by legislating authorities (top-down process) but was mainly created by merchants and seafarers (bottom-up process). It is part of the famous ‘lex mercatoria’, which is a customary law, meeting the needs of trade and shipping.
23. As time went by, the most important principles of this customary law were laid down and ratified in written codifications.
The most famous of these codifications are: the ‘lex rhodea de jactu’ incorporated in the Justinian ‘codex juris civilis’ (Byzantine Empire), the ‘tabulae amalfitanae’ for the Amalfi republic, the ‘Llibre del Consolat del Mar’ from medieval Barcelona, the ‘rôles d’Oléron’ attributed to Eléanore of Aquitaine[47], the ‘judgments of Damme’[48], the French 1681 ‘Ordonnance de la Marine’ and the maritime law provisions contained in the French ‘Code de Commerce’ promulgated in 1807 by Napoléon.
International law
24. Maritime law is international by its very nature, and as shipping and navigation span the globe, maritime law can truly be called global.
As the high seas were considered ‘res communis’ or ‘common property to all’ and are free to be used by all nations for seafaring purposes[49], it became necessary to try and create some kind of international framework of common rules governing all things maritime.
25. The first effective steps towards this international codification were taken by the Antwerp maritime community who created the ‘Comité maritime international’ (CMI) in 1897[50].
The CMI created and helped create many important international maritime conventions[51].
Other important international maritime conventions were concluded at the initiative of the UNO, or the UNO’s specialized organizations, namely the International Maritime Organization (IMO) and the United Nations Conference on Trade and Development (UNCTAD)[52].
One who is familiar with maritime law cannot help but feel bewildered by the little progress made in the field of European (let alone international!) harmonization of civil law, and for that matter of land (mortgage and registration) law.
26. It is worth noting that many international maritime rules and conventions came into existence in reaction to disasters. This is what the ancient Greeks called ‘learning through suffering’[53].
Two examples may suffice.
On April 14th, 1912, the TITANIC[54] sank after colliding with an iceberg. This disaster led to the adoption of the first International Convention for the Safety of Life at Sea (SOLAS) in 1914. More than 1,500 passengers and crew died and the disaster raised so many questions about the safety standards in force that the United Kingdom Government proposed a conference to develop international regulations. The Conference, which was attended by representatives of 13 countries, introduced new international requirements dealing with the safety of navigation for all merchant ships. Later on, the SOLAS convention was regularly updated and amended; the last version was adopted in 1974.
In 1967, the TORREY CANYON ran aground while entering the English Channel and spilt a cargo of 120,000 tons of crude oil into the sea. This accident raised questions about measures to be taken to prevent other cases of oil pollution from ships and to provide a more adequate system of compensation following accidents at sea. This eventually led to the adoption of the International convention for the prevention of pollution from ships (MARPOL) in 1973. In the wake of subsequent oil pollution accidents[55] further amendments and protocols to the MARPOL convention and additional measures were taken.
Perils of the sea
27. At the heart of maritime law lies the notion of ‘perils of the sea’[56].
The notion refers to the specific type of natural accidents peculiar to the sea. It can be maritime accidents and dangers such as storms, waves, wind, collision of the vessel, fire, smoke and noxious fumes, sinking, flooding and capsizing, loss of propulsion or steering, and any other hazards resulting from the unique environment of the sea.
It also includes accidents caused as a result of stranding, striking a submerged object, or encountering heavy weather or other unusual forces of nature[57].
28. In the past, the frightening vastness, inhospitality and life threatening dangers of the seas would have scared anyone away from even thinking of boarding a ship, let alone sailing the high seas. But the need for food, products and materials that could only be found overseas[58] made merchants and sailors meet the challenges and embark on maritime expeditions. As those merchants were willing to assume important risks with respect to the life and property (ship and cargo) they entrusted to the inimical sea and as society depended on those people for providing essential overseas goods, it was only natural that the essential rules of the ‘lex mercatoria’/’lex maritima’ were/are based on principles of solidarity, efficiency and pragmatism.
Solidarity
29. Solidarity among seafarers
If a ship is in danger and cargo is jettisoned to save the ship, then the owners of the ship and the remaining cargo are required to make a contribution to the owner of the lost cargo. This is called ‘general average’, meaning ‘general loss’. This form of spreading the risk of sea transport is said to be derived from a Rhodean law of approximately 800 B.C.[59] The conditions and definitions regarding ‘general average’ and the method of calculating the contribution are the object of the so-called York/Antwerp rules[60].
30. Solidarity with seafarers – Limitation of liability
Under Belgian law, a shipowner is liable for his own acts, omissions and commitments, for those of the captain and for those of the crew and other people he employs, in the performance of their duties[61]. This principle of liability exists, of course, under all other maritime laws.
Since society was in need of overseas trade and goods[62], the liability of shipowners has always been limited so as not to discourage or deter them by insurmountable – and uninsurable – financial risks and challenges from buying or building ships and from engaging in sea trade activities.
The limitation of liability[63] was achieved:
- at the time of ancient Rome and in the Middle Ages, by setting up joint maritime enterprises of some kind, whereby the risks of the maritime expedition were shared by the partners[64];
- by restricting the shipowner’s assets securing each maritime enterprise to the ship involved or to her value; the shipowner’s liability was limited to the ship or her value; the shipowner’s liability is held to be objective or ‘in rem’ (responsabilité objective ou réelle), since it was/is related to the ship and it was/is the ship that by way of personification caused/causes the problems and is ultimately deemed liable; later on, the connection with the ship was dropped and compensation amounts were introduced based on the tonnage of the ship;
- by the adoption of several international limitation conventions, such as the 1976 Convention on limitation of liability for maritime claims (LLMC)[65], the Hague/Visby Rules 1968/1979[66], the 1992 International convention on civil liability for oil pollution damage (CLC), etc.
- by only allowing arrest[67] of seagoing ships for maritime claims.
31. Solidarity with persons in danger at sea
Under maritime law[68], the master of a ship is bound, in so far as he can do so without seriously endangering the ship, the crew or the passengers, (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) to render assistance to the other ship after a collision, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.
This humanitarian duty to render assistance obviously goes back to ancient customary principles applying to the earliest ‘maritime adventures’.
Efficiency and pragmatism
32. No ship without a captain
Without a captain or shipmaster no successful maritime enterprise can be engaged in. The role of the captain is, indeed, of the utmost importance with regard to the efficiency of sea transport. It is to the credit of the inventiveness and sense of efficiency of maritime law that this unique job and position of responsibility were created.
Under Belgian law[69], all persons on board the ship – both crew members and passengers – are under the captain’s authority.
The captain is in charge of the maintenance of order and security and has to watch over the successful execution and conclusion of the voyage.
The captain is the legal representative of the authorities for the purpose of prosecution and criminal proceedings.
The captain who has the Belgian nationality has jurisdiction to establish a birth or death record in the event of anyone giving birth or dying at sea; he is also entitled to draw up a maritime will[70].
The captain represents, of course, the shipowner, inter alia in legal proceedings regarding the ship he is in command of; he may, in certain cases, also represent the cargo interests.
And last, but not least: the captain is ultimately responsible for the safe and efficient operation of the ship, including navigation, cargo operations, crew management and compliance with local and international laws as well as with company and flag state policies.
33. Majority rule
In the event of the ship belonging to different owners (co-ownership), the co-owner(s) who possess(es) the majority of the shares in the ship – exceeding 50% of her value – decide about everything with respect to the common interest of the owners[71]. This majority rule facilitates the efficient operation of the ship.
34. No cure no pay
When a ship in danger has to be assisted, salvaged or rescued, only salvage operations which have had a useful result give right to a reward[72].
Special statute of ship
35. Flag and nationality of ship
The high seas are deemed to be a ‘res communis’[73], a kind of common heritage of mankind. The high seas are open to all States and there are the so-called freedoms of the high seas, which include the freedom of navigation. No sovereignty can be claimed over the high seas and all states have the right to sail ships flying their flag on them[74].
Because of the ‘lawlessness’ of the high seas that is not subject to the sovereignty or the laws of any state, every ship has to have the nationality of a state so as to be linked to a national jurisdiction and every ship has to fly the flag of the state that has granted her its nationality[75].
36. Traditional ‘personification’ of ship
There exists quite some legal literature which assimilates a ship to a person with his own responsibilities and liabilities to be assumed in the event of accidents at sea.
This personification explains or may explain why:
- a shipowner’s liability was originally limited to the ship or her value[76];
- under English law an action in rem can be brought against the ship herself[77];
- a ship may be arrested for maritime claims not only against the shipowner but also against the ship’s charterer[78];
- a ship is always referred to as a “she” in the English language[79].
The distinction between land registration and ship registration
37. Unlike land registration, registration of ships and deeds relating to ships is not governed by strictly national law, but mainly by international conventions which were either transposed into national law or which thoroughly inspired or influenced national law.
The relevant maritime conventions are:
- International Convention for the unification of certain rules relating to maritime liens and mortgages (Brussels – April 10th, 1926)
- International Convention for the unification of certain rules relating to the arrest of seagoing ships (Brussels – May 10th, 1952)
- Multilateral Convention on the registration of inland navigation vessels (Geneva – January 25th, 1965) with attached protocol No.1 concerning rights in rem in inland navigation vessels and attached protocol No.2 regarding attachment and forced sale of inland navigation vessels[80];
- Convention relating to registration of rights in respect of vessels under construction (Brussels – May 27th, 1967)
- United Nations Convention on conditions for registration of ships (Geneva – February 7th, 1986).
38. As a rule, land registries are not involved in the identification and mapping of the immovables, but limit themselves to the registration of rights in rem, mortgages, attachments and other encumbrances. The identification of the immovable as such is taken care of by the cadastre.
A ship registry takes care of both a) the registration of the ship as such, meaning the identification of the ship and her description[81] (name, place and year of build, dimensions, tonnage, engine power etc.) and b) the registration of the rights in rem, mortgages, attachments and other encumbrances relating to the ship[82].
The registration of the ship as such amounts to a ‘cadastration’ of some kind and to the granting of a kind of civil status to the ship.
And last but not least: the registration of a seagoing ship entitles her to obtain the nationality of the country of the registry and to fly the flag of that country[83].
39. The Belgian land registration system is focused on the owner(s) of the immovable, not on the immovable itself– or the cadastral parcel for that matter.
The consequence of this is that the land registry’s documentation is person-oriented.
The system is ‘personal’.
This means that the registers can only be searched for information on the specific person who owns the immovable or on each and every person who owned the immovable at any time during the last 30 years[84]. This way of proceeding is not without complications.
Contrary to this, the Belgian ship registration system is focused on the ship. This makes it a lot easier to search the registers for information.
40. The Belgian land registries – and very presumably the majority of all EU land registries – enjoy a kind of monopoly position. All deeds regarding immovables situated within their jurisdiction have to be registered at their registry, so no competition from national or foreign registries has to be feared.
This means that there is a constant amount of work and of income guaranteed, whatever the (lack of) commitment, the (lack of) quality of the services rendered, no matter how customer (un)friendly they are. This is, no doubt, a very comfortable situation.
The Belgian ship registry – and, again, presumably the majority of all EU ship registries – has no such monopoly position. Ship registration is optional[85].
Moreover, property deeds and deeds regarding other rights in rem, mortgages or arrests with respect to ships can only be registered on the Belgian register of ships (or, for that matter, on any other EU register of ships) provided the ship as such was duly registered before under Belgian flag[86].
A shipowner may seek registration of his ship under any national flag in any ship registry in the world. Ship registration is optional and shipowners may choose the register and the flag that best suit them[87].
This means that the ship registry’s business is not free from competition[88] and that a ship registry has to provide a high quality service to stay in the running and to keep the shipowners satisfied.
Finally, it goes without saying that a ship registrar – besides the fact that he has to be able to explain everything in his own national language(s) – obviously also needs to have a good command of the English language, which is not surprisingly the language of the international maritime community.
[1] PCC: Permanent Committee on Cadastre in the European Union – http://www.eurocadastre.org
[2] Proposed directive of the European Parliament and of the Council of Europe establishing a framework for maritime spatial planning and integrated coastal management (SWD(2013) 64 final & SWD(2013) 65 final). In Belgium, a royal decree of March 20, 2014 – published in the ‘Moniteur belge/Belgisch Staatsblad’of March 28, 2014 – approved a marine spatial plan (MSP) for the Belgian part of the North Sea.
See the brochure ‘Something is moving at sea… A marine spatial plan for the Belgian part of the North Sea’, which explains in a clear language the content of the MSP.
[3] CLGE (= Comité de Liaison des Géomètres Européens – Council of European Geodetics Surveyors – http://www.clge.eu/) is willing to lead this study.
[4] According to the Communication from the Commission (COM(2012)494Final) about ‘Blue Growth – Opportunities for marine and maritime sustainable growth’, the ‘blue economy’ regards a vast array of sectors, comprising: coastal tourism – offshore oil and gas – deep sea shipping – short sea shipping – yachting and marinas – passenger ferry services – cruise tourism – fisheries – inland waterway transport – coastal transport – offshore wind – monitoring and surveillance – blue biotechnology – desalination – aggregates mining – marine aquatic products – marine mineral mining – ocean renewable energies.
[5] See: Unctad, The Review of Maritime Transport 2013, to be read on: www.unctad.org/en/docs/rmt2013_en.pd
[6] Cf. http://worldmaritimenews.com/archives/108505
[7] Cf. http://ec.europa.eu/enterprise/sectors/maritime/shipbuilding/index_en.htm (regarding situation as in 2009) & http://ec.europa.eu/enterprise/sectors/maritime/files/fn97616_ecorys_final_report_on_
shipbuilding_competitiveness_en.pdf (regarding the situation as on October 8th, 2009). According to this site the top 4 European yards were at that time: Meyer Werft in Germany (building container and special purpose vessels), Daewoo Mangalia in Romania (a subsidiary of Daewoo Korea, building bulkers and container vessels), STX Europe (formerly Aker, now a subsidiary of STX Korea, building cruise vessels as well as offshore ships and other types), and Fincantieri in Italy (known for its cruise vessels and ferries).
[8] A list of the important shipyards in Europe can be inspected on the site of the Community of European Shipyards’ Associations (CESA): http://www.cesa-shipbuilding.org/shipyards_in_europe
[9] According to ‘Shipbuilding Market Monitoring 1-3Q 2013 – report N°33 – December 2013’ published on the CESA site: http://www.cesa-shipbuilding.org/links_downloads#
[10] This very concise maritime history will mainly focus on ancient Greece, ancient Rome and the Low Countries (Belgium and the Netherlands – which lie at the very heart of the European Union and with which the author is most familiar).
[11] Garezou, Maria-Xeni & Lagogianni-Georgakarakos, Mara & Makkad, Sypros & Petrounakos, Spyros,
Nautilus : navigating Greece, catalogue (translated from Greek) of the exhibition organised at the Bozar in Brussels (23.01.2014 till 27.04.2014) – published by the Hellenic ministry of culture and sports, Athens, 2014
According to the map inserted in this catalogue (pages 146 & 147), this expansion resulted in the foundation of many important towns like: Byzantium (Istanbul), Sinope (Sinop), Trapezous (Trabzon), Smirna (Izmir), Ephesus (Efes), Priene (Sansun Kale) and Halicarnassus (Bodrun) in present-day Turkey; Cyrene in Libia; Tartessos (not far from Cadiz) and Emporion (Ampurias/Empúries) in Spain; Naukratis (Kom Gieif) in Egypt; Massalia (Marseille) and Antipolis (Antibes) in France; Cumae (Cuma-Pozzuoli), Posidonia (Paestum), Taras (Taranto), Croton (Crotone) and (Epizephyrian) Locris (Locri) in Italy; Naxos (Giardini Naxos), Catana (Catania), Syracuse and Akragas (Agrigento) on Sicily.
[12] The text in italics is a quote from: Lambrinoudakis, Vassileios K., From the Aegean to the Mediterranean: a dawn of Classical Civilization – a contribution to the catalogue “Nautilus: navigating Greece” – pages 141 to 153 – referred to in the preceding foot note.
[13] In Greek mythology Hesperia is one of the Hesperides or evening nymphs who tend a blissful garden in a far western corner of the world, probably a place in the South of Spain; these nymphs are also called the Western Maidens, the Daughters of Evening or the Sunset Goddesses.
See: http://en.wikipedia.org/wiki/Hesperides
[14] Extract from the poem ‘Second Odyssey’ by C.P.Kavafis (1863-1933) (http://www.cavafy.com/poems/content.asp?id=329&cat=4).
No doubt Kavafis’s internationally most famous poem is ‘Ithaca’, not in the least thanks to Sean Connery and Vangelis (http://www.youtube.com/watch?v=1n3n2Ox4Yfk)
[15] Holland, Tom, Persian Fire – The First World Empire and the Battle for the West, London, Abacus, 2013
Quote from page xvii: “There was much more at stake during the course of the Persian attempts to subdue the Greek mainland than the independence of what Xerxes had regarded as a ragtag of terrorist states. As subjects of a foreign king, the Athenians would never have had the opportunity to develop their unique democratic culture. Much that made Greek civilisation distinctive would have been aborted. The legacy inherited by Rome and passed on to modern Europe would have been immeasurably impoverished. Not only would the West have lost its first struggle for independence and survival, but it is unlikely, had the Greeks succumbed to Xerxes’ invasion, that there would ever have been an entity as ‘the West’ at all.”
[16] Gnaeus Pompeius Magnus (106 BC – 48 BC) (Pompey) was a Roman general and statesman; he formed the first ‘triumvirate’ in the mid 60’s of the first century BC with Marcus Licinius Crassus and Gaius Julius Caesar; Pompey and Caesar later contended for the leadership of the Roman state; in the ensuing civil war Pompey was defeated at the Battle of Pharsalus and was assassinated at his place of refuge.
See: http://en.wikipedia.org/wiki/Pompey
[17] Pirenne, Henri, Mahomet et Charlemagne, Presses Universitaires de France, Paris, 1970
[18] Italy saw the growth of the famous ‘città marinare’ (= sea cities) Amalfi, Pisa, Genua (Genova) and – last but not least – Venice (Venezia).
[19] Famous Flemish medieval towns were/are Bruges (Brugge), Ghent (Gent), Lille (Rijsel in Dutch), Ypres (Ieper) and Arras (Atrecht in Dutch).
[20] The German Hansa was a loose confederation of Northern German merchant towns; it was active during the 13th to 17th century; it monopolized Scandinavian, Baltic and Russian trade of furs, grain, wood, salt and fish for more than 200 years; the most important Hanseatic Cities were Lübeck, Hamburg, Bremen, Cologne, Danzig, Riga and Visby; the Hansa had 4 major foreign trading posts (‘Kontore’) in Bruges, London, Bergen (Norway) and Novgorod (Russia).
See: D’haenens, Albert, Die Welt der Hanse, Mercatorfonds, Antwerpen, 1984
[21] These Latin words mean: ‘navigation is of the essence, life is not of the essence’. They were allegedly used by Pompey during his anti-piracy campaigns in the 1st century BC. They were written above the entrance to the “Haus Seefahrt” in Bremen – http:www.zeno.org/meyers-1905/A/Haus+Seefahrt
[22] Charles V, also called ‘Keizer Karel’ in Dutch, ‘Charles Quint’ in French and ‘Carlos Quinto’ in Spanish, was born in Ghent (in the then Burgundian Low Countries, nowadays Belgium) in 1500 and died in Yuste (Spain) in 1558. His empire included many territories in Europe, islands in the Mediterranean and Atlantic, cities in North Africa and vast territories in the Americas.
His was an “empire on which the sun never sets” («el imperio en el que nunca se pone el sol»).
Charles’ full titulature went as follows:
Charles, by the grace of God, Holy Roman Emperor, forever August, King of Germany, King of Italy, King of all Spains, of Castile, Aragon, León, of Hungary, of Dalmatia, of Croatia, Navarra, Grenada, Toledo, Valencia, Galicia, Majorca, Sevilla, Cordova, Murcia, Jaén, Algarves, Algeciras, Gibraltar, the Canary Islands, King of Two Sicilies, of Sardinia, Corsica, King of Jerusalem, King of the Western and Eastern Indies, of the Islands and Mainland of the Ocean Sea, Archduke of Austria, Duke of Burgundy, Brabant, Lorraine, Styria, Carinthia, Carniola, Limburg, Luxembourg, Gelderland, Neopatria, Württemberg, Landgrave of Alsace, Prince of Swabia, Asturia and Catalonia, Count of Flanders, Habsburg, Tyrol, Gorizia, Barcelona, Artois, Burgundy Palatine, Hainaut, Holland, Seeland, Ferrette, Kyburg, Namur, Roussillon, Cerdagne, Drenthe, Zutphen, Margrave of the Holy Roman Empire, Burgau, Oristano and Gociano, Lord of Frisia, the Wendish March, Pordenone, Biscay, Molin, Salins, Tripoli and Mechelen.
See: Devisscher, Hans & Volckaert, Jo (ed.), Carolus, Keizer Karel V, 1500-1558, Snoeck-Ducaju & Zoon, Gent, 1999 (Gemeentekrediet/Dexia) – catalogue of the 1999-2000 Ghent exhibition dedicated to the Emperor Charles V
[23] Bruges and Ghent continuously rebelled against their Habsburg princes in order to preserve their communal liberties. Furthermore, the silting-up of the Zwin river resulted in Bruges becoming ever less accessible to large seagoing ships trying to reach its port from the North Sea.
[24] ‘Enrique o Navigador’ (1394-1460) – famous for having founded the so-called ‘Sagres school of navigation’.
[25] This capital – as well as their know-how and connections – would make the Antwerp protestant merchants and skilled workers very welcome in Amsterdam and other business places in the Northern Netherlands, after the fall of Antwerp in 1585.
[26] Geyl, Pieter, The revolt of the Netherlands 1555-1609 – page 238, Cassell Publishers Ltd, London, 1988 (originally published in 1932 by Williams & Norgate Ltd)
[27] Geyl, Pieter, op.cit. – page 239
[28] Geyl, Pieter, op.cit. – page 234
[29] The so-called ‘Vereenigde Oost-Indische Compagnie’, VOC for short.
See: Jacbos, Els, De Vereenigde Oost-Indische Compagnie, 1997, Teleac/NOT/Keravisual Zeist, Utrecht
[30] The so-called ‘West-Indische Compagnie’, WIC for short.
See: Den Heijer, Henk, Geschiedenis van de WIC, Walburg Pers, Zutphen, 2013
[31] In 1664, Peter Stuyvesant, the last Dutch governor of New Holland, surrendered New Amsterdam to superior English forces who renamed the city New York. Though most people think of Stuyvesant as “the man who founded New Amsterdam”, he actually was the man under whose rule the Dutch lost their colony. The role of founder of New Amsterdam should be rather claimed by the Walloon/Belgian Pierre Minuit who managed to buy Manhattan from the Indian Lanape tribe in May 1626 and who took care of the initial development of the territory.
[32] According to Delâge, author of Le Pays renversé, Amérindiens et Européens en Amérique du Nord-Est, 1600-1664, pp. 28, 44, 246, 250, 270 and 344 – published by Editions du Boréal, Québec, 1991 – the people of the Dutch Republic were not really interested in colonizing North America, since their standard of living at home in the Northern Netherlands was the highest in Europe and there was no incentive for them to leave their country.
Anyway, even if the Dutch people had been willing to settle abroad, the sheer demographic figures would never have allowed them to come to terms with such a huge colonization task: a population of 2,000,000 was simply too small to achieve this task. If the more populated Southern Netherlands had remained united with the Northern Netherlands, in other words if no separation had occurred, things might have been different, and New Holland might have remained Dutch…
The English situation was more conducive to successful colonization. England had a large number of poor people whose misery pushed them to emigrate and to look for better prospects in America.
Such is the irony of history: the worse a country treats its subjects, the more willing they are to leave their homes and to contribute to the success of their country’s colonial adventures abroad…
[33] Massie, Robert K., Peter the Great – His life and world, Random House Trade Paperbacks, New York, 2011 – pp. 178-179
[34] Delâge, Denys, Le Pays renversé, Amérindiens et Européens en Amérique du Nord-Est, 1600-1664, Editions du Boréal, Québec, 1991 – pp. 26-27
[35] Massie, Robert K., op.cit. – pp. 179-189
[36] Davies, Norman, Europe – A History, Oxford Univserity Press, Oxford-New York, 1996 – p.625
[37] Davies, Norman, op.cit. – p.637
[38] Dumont, Georges-Henri, L’Epopée de la Compagnie d’Ostende 1723-1727, Bruxelles, Le Cri édition, 2000;
Parmentier, Jan, commissioner of the exhibition Tea in Flanders (1996 – Flagstaff House Museum of Tea Ware in Hong Kong), Thee van overzee – Maritieme en handelsrelaties tussen Vlaanderen en China tijdens de 18de eeuw, published by Ludion at Antwerp & Flagstaff House Museum of Tea Ware at Hong Kong & Havenbestuur Brugge-Zeebrugge (MBZ) and printed by Die Keure at Bruges, 1996;
Gaastra, drs F.S, & Emmer, dr P.C., ‘De vaart buiten Europa’, in Broeze, Bruijn en Gaastra (ed.), Maritieme Geschiedenis der Nederlanden (deel 3), Unieboek bv, Bussum, 1977 – bl.286-289 (‘De handel op Azië vanuit Oostende’).
[39] After having been part of France since 1795, the former Austrian Netherlands were united in 1815 with the former Dutch Republic so as to create the United Kingdom of the Netherlands.
[40] The price that Belgium had to pay for its independence was high. Under the 1831 and 1839 London Treaties it lost half of the province of Limburg and more than a third of the province of Luxemburg. Belgium had to pay more than half of the debt of the split kingdom. It also had to pay substantial river tolls to Holland in exchange for free navigation on the Scheldt river.
The fact is that the Dutch arranged for substantial bribes to be paid to the Prince de Talleyrand, the French special envoy to the London diplomatic conference, with a view to obtaining more favourable terms regarding border delimitation and debt partition.(Cf. De Launay, Jacques, Histoire de la Diplomatie secrète 1789-1914, Editions Rencontre, Lausanne, 1966 – p.190-192 & 216-220).
[41] In contrast to this unexpectedly favourable evolution stood the economic situation in Holland, which Dutch historians themselves tend to describe as ‘industrially backward’ (achterlijk) and ‘lagging behind in industrial development’ (industriële achterstand). In those years the Dutch were sometimes nicknamed the ‘Chinese’ of Europe, so as to point at their economic inadequacy.
Cf. De Jonge, J.A., ‘Nijverheid en conjunctuurbeweging’ in: Blok, Prevenier, Roorda, Van Houtte, Van den Eerenbeemt, Van Tijn en Balthazar, De Algemene Geschiedenis der Nederlanden (deel 12-Nieuwste Tijd – Nederland en België 1840-1914 – eerste helft), Unieboek bv, Bussum, 1977.
[42] Cf. De Latte, G., Reders, bankiers en scheepsmakelaars in de Belle Epoque – Scheepseigendom en scheepshypotheek in de registers van de Antwerpse hypotheekbewaring in de periode 1879-1908 – Bijdrage tot de Belgische maritieme geschiedenis (= Shipowners, bankers and shipbrokers of the Belle Epoque – Property rights and mortgages on ships in the registers of the Antwerp Mortgage Registry during the period 1879-1908 – A contribution to Belgian maritime history), Academia Press, Ghent, 2014 – pp. 175 to 193
[43] Cf. De Latte, G., op.cit. – N°s 31 to 33
[44] The official name of the Red Star Line was ‘Société Anonyme de Navigation Belge – Américaine’ (SANBA for short). It was part of the American ‘International Navigation Company’ (INC) – later to be named International Mercantile Marine (IMM) – founded in 1871 by Clement Griscom
In 2013 a museum opened up about the massive emigration to America at the very location of the former warehouses of the Red Star Line – http://www.redstarline.be/en/page/red-star-line-museum-nutshell
[45] Many German and English people emigrated to Antwerp. The names of English shipbrokers, shipowners and bankers like Barber, Best, Good, Hackney, Hunter and Walford became well-known to the Antwerp people, as did the names of their Germans competitors like Bärenklau, Bunge, Grisar, Horn Feist, Kärcher, Kreglinger, Nottebohm, Osterrieth, Speth, Von Bary and Von der Becke. The book about ‘shipowners, bankers and shipbrokers of the Belle Epoque’ that is quoted under foot note 43, tells the interesting stories of this English and German colony.
[46] The limited scope of this paper does not allow for going into details. It follows that the paper cannot but be very incomplete and general, thereby failing to do justice to the more complicated aspects of maritime law.
[47] Eleanore d’Aquitaine (1122-1204) was the wife of the English king Henri Plantagenet. The ‘rôles d’Oléron’ were promulgated in about 1160 and further completed afterwards. A 1266 version of these rules or judgments can be found at: http://www.admiraltylawguide.com/documents/oleron.html
Apparently the medieval wine export from Bordeaux to England may have been the source of the ‘rôles d’Oléron’.
[48] The city of Damme was the outer port of medieval Bruges.
[49] This principle was first formulated by the great Dutch jurist and philosopher Hugo Grotius (= Hugo de Groot) in his famous book Mare Liberum (= the freedom of the seas) published in 1609.
See also point 35 of this paper.
[50] Cf. last paragraph of point 21 of this paper.
[51] The so-called Brussels Conventions that were the result of diplomatic conferences convened at Brussels, such as: the 1910 Assistance and salvage convention, the 1926 Liens and mortgages convention, the 1952 Arrest convention, the 1957/1979 (revised) Limitation of shipowners’ liability convention, the 1967 Vessels under construction convention and others.
The articles of the Belgian Maritime Act (= ‘Belgische zeewet – Loi maritime Belge’) dealing with liens and mortgages, are still based upon the 1926 Liens and mortgages convention.
The articles of the Belgian Judicial Code dealing with ‘saisie conservatoire sur navires / bewarend beslag op schepen’ are still based upon the 1952 arrest convention.
It should be noted that for the time being Belgian maritime law is in the process of being revised (see: http://www.droitmaritime.be/).
[52] Such as: the 1969 Convention on tonnage measurement of ships (Tonnage 1969), the 1972 Convention on the international regulations for preventing collisions at sea (COLREG), the 1973 Convention for the prevention of pollution from ships (MARPOL) ,the 1976 Convention on liability for maritime claims (LLMC 1976), the 1978 Convention on standards of training, certification and watch keeping for seafarers (STCW), the 1979 Convention on maritime search and rescue (SAR), the 1982 United Nations convention on the law of the sea (UNCLOS), and many others.
[53] ‘Wisdom through suffering’ = pathei mathôs = Aeschylus’ insight revealed in his tragedy ‘Agamemnon’ (II.177-8).
‘Knowledge through suffering’ is a favourite theme of the British historian Arnold Toynbee. In his work ‘A Study of History’, volume x, page 235, he wrote: “Aeschylus anticipated my experience of life in teaching me, while I was still at school, that learning comes through suffering, and that this is a law that has been ordained for us by God. Though I had not yet tasted the cup for myself, the truth of his words – ‘ton pathei mathôs thenta kuriôs echein’ – was warranted for me by their beauty.”
[54] http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/IMO100YearsaftertheTitanic/
Pages/default.aspx
[55] Other pollution accidents involving crude oil carriers: AMOCO CADIZ (Brittany – France – 1978), EXXON VALDEZ (Alaska – 1989), ERIKA (Brittany – France – 1999) and PRESTIGE (Galicia – Spain – 2002) – cf. Belgian newspaper ‘La Libre Belgique’ 22 & 23 March 2014, pages 28- 29
[56] The French language uses the word ‘fortune(s) de mer’ to designate ‘perils of the sea’.
Actually, this word ‘fortune(s) de mer’ is rather ambiguous because it also means: the wealth/property/assets connected with and gained as a result of ‘l’aventure de mer’ (i.e. the maritime enterprise).
‘Perils of the sea’ also refers to the property that is insured under marine insurance covers and that is exposed to maritime perils in a marine adventure; this insurable property is the ship, goods or movables and the adventures are those where the insurable property is exposed to maritime perils. – Cf. Tetley, William, International Maritime and Admiralty Law, Editions Yvon Blais, Cowansville (Québec-Canada), 2002 – pp.592-593
[57] http://definitions.uslegal.com/p/perils-of-the-sea/
[58] There might have been, of course, more immediate and personal incentives, such as the desire to reap huge profits from overseas trade and the eagerness to travel to far away countries…
[59] This ‘lex Rhodea de jactu’ (the Rhodean law on jettison) is found in the Justinian’s Digesta, book XIV, Title 2, fr.1: “The Rhodean law decrees that, if in order to lighten the ship, merchandise have been thrown overboard, that which has been given for all should be replaced by the contribution of all”.
Cf. Tetley, William, International Maritime and Admiralty Law, Editions Yvon Blais, Cowansville (Québec-Canada), 2002 – p.365
[60] The York/Antwerp Rules date back to 1877 and were last amended in 2004 at the Vancouver conference of the Comité Maritime International (CMI). The Rule A reads as follows: “There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.”
Cf. Tetley, William, International Maritime and Admiralty Law, Editions Yvon Blais, Cowansville (Québec-Canada), 2002 – p.367-368
[61] Belgian Maritime Act (‘loi maritime – zeewet’), article 46 regarding shipowners’ liability:
French text: Art.46. § 1er. Tout propriétaire de navire est personnellement responsable de ses propres faits, fautes ou engagements. § 2. Le propriétaire du navire est civilement responsable des faits du capitaine et tenu des obligations contractées par ce dernier dans l’exercice de ses fonctions.§ 3. Le propriétaire du navire est civilement responsable des faits de l’équipage, du pilote et d’autres préposés qui en font l’office, dans l’exercice de leurs fonctions respectives.(…)
Dutch text: Art.46. § 1. Iedere scheepseigenaar is persoonlijk aansprakelijk voor zijn eigen handelingen, verzuimen of verbintenissen. § 2. De scheepseigenaar is burgerlijk aansprakelijk voor de handelingen van de kapitein en staat in voor de verbintenissen door deze aangegaan in het uitoefenen van zijn dienst. § 3. De scheepseigenaar is burgerlijk aansprakelijk voor de handelingen van de bemanning, van de loods en van andere als dusdanig werkzaam zijnde aangestelden, in het uitoefenen van hun respectieve dienst.(…)
[62] The age of discoveries and colonisation increased this need of transport by sea and of a great commercial fleet being available.
[63] Delwaide, Leo, ‘Considérations sur le caractère réel de la responsabilité du propriétaire de navire’, in: Liber Amicorum Roger Roland, De Boeck & Larcier, Brussels & Gent, 2003 (pp. 109 – 248)
[64] In his paper, quoted in the preceding foot note, Professor Delwaide mentions: the co-ownership of ships under Roman law, the Byzantine ‘Koinônia’, the ‘Colonna’ from Amalfi, the ‘Commenda’ in the ‘Llibre del Consolat del Mar’, and the still existing German ‘Partenreederei’.
All these joint maritime enterprises could be considered forerunners of the modern business companies that came into existence in the 19th century.
[65] This LLMC convention has restricted the claims subject to limitation of liability. According to article 2 of this LLMC convention, the claims concerned are: a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom; b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations; d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship; e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship; f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.
[66] The Hague/Visby Rules 1968/1979 has established the responsibilities, liabilities, rights and immunities of the ship or the carrier – owner or charterer of the ship – under a contract of carriage of goods covered by a bill of lading or any similar document of title. This international convention has limited the carrier’s liability for loss or damage of goods. This liability has been excluded in many cases. According to article 4 of the Hague/Visby Rules – transposed into Belgian maritime law (art.91, A, §4) – neither the carrier nor the ship shall be liable for loss or damage arising or resulting from: 1) unseaworthiness unless caused by want of due diligence on the part of the carrier to (…); 2) a) act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship, b) fire, unless caused by the actual fault or privity of the carrier, c) perils, dangers and accidents of the sea or other navigable waters, d) act of God, e) act of war, f) act of public enemies, g) arrest or restraint of princes, rulers or people, or seizure under legal process, h) quarantine restrictions, i) act or omission of the shipper or owner of the goods, his agent or representative, j) strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general, k) riots and civil commotions, l) saving or attempting to save life or property at sea, m) wastage in bulk of weight or any other loss or damage arising from inherent defect, quality or vice of the goods, n) insufficiency of packing, o) insufficiency or inadequacy of marks, p) latent defects not discoverable by due diligence, q) any other cause arising without the actual fault or privity of the carrier (…); 3) any cause without the act, fault or neglect of the shipper, his agents or his servants.
[67] International Convention for the unification of certain rules relating to the arrest of seagoing ships (Brussels – May 10th, 1952), article 2: ” A ship flying the flag of one of the Contracting States may be arrested (…) in respect of any maritime claim, but in respect of no other claim; (…).”
According to article 1 of this convention, “A “maritime claim” means a claim arising out of one of the following: a) damage caused by any ship either in collision or otherwise, b) loss of life or personal injury caused by any ship (…), c) salvage, d) agreement relating to the use or hire of any ship (…), e) agreement relating to the carriage of goods in any ship (…), f) loss of or damage to goods (…), g) general average, h) bottomry, i) towage, j) pilotage, k) goods or materials wherever supplied to a ship for her operation or maintenance, l) construction, repair or equipment of any ship (…), m) wages of Masters, Officers or crew, n) Master’s disbursements (…), o) disputes as to the title to or ownership of any ship, p) disputes between co-owners of any ship as to the ownership, possession, employment or earnings of that ship, q) the mortgage or hypothecation of any ship.”
[68] The duty to render assistance is enshrined in:
- the 1982 United Nations convention on the law of the sea (UNCLOS), article 98
- the 1989 International convention on salvage, article 10.
[69] 1926 Belgian merchant marine and sea fishery disciplinary and criminal code (Code displinaire et pénale pour la marine marchande et la pêche maritime – Tucht- en strafwetboek voor de koopvaardij).
cf. Libert, Hubert, ‘De kapitein: boegbeeld van het zeerecht, spilfiguur in de koopvaardij’ (=The captain: figure-head of maritime law, driving force behind the merchant marine), in: Rechtskundig Weekblad of
31 May 1986
& De Weerdt, Ivo (Ed.), Grondbeginselen van het Belgisch Privaatrechtelijk Zeerecht, deel 1, ETL, Antwerpen, 1998 – pp.177 to 199
[70] Belgian Civil Code, art. 59, 86, 87, 988 & 990
[71] Belgian Maritime Act (‘loi maritime – zeewet’), article 57
[72] The 1989 International convention on salvage, article 12
[73] Cf. point 24 of this paper.
[74] The 1982 United Nations convention on the law of the sea (UNCLOS), articles 86 to 90.
[75] The articles 91 and 92 of UNCLOS referred to under the preceding foot note, read as follows:
Article 91- Nationality of ships – 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.
2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
Article 92 – Status of ships – 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
[76] Cf. point 30 of this paper, paragraph 3, ii
See also: Delwaide, Leo, op.cit. – pp. 166 to 94
[77] Tetley, William, op.cit.– pp.406 & 407
[78] The 1952 International convention for the unification of certain rules relating to the arrest of seagoing ships, article 3 (4): When in the case of a charter by demise of a ship the charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the charterer by demise, subject to the provisions of this Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claim.(…).
[79] But why is a ship a ‘she’ and not a ‘he’?
I quote from the website http://www.glossophilia.org/?p=1411,:
(…) One prosaic explanation is that the gender of the Latin word for “ship” — Navis — is feminine. But people generally agree on the more romantic notion of the ‘ship as a she’ phenomenon: that it stems from the tradition of boat-owners, typically and historically male, naming their vessels after significant women in their lives — wives, sweethearts, mothers. Similarly, and more broadly, ships were once dedicated to goddesses, and later also to mortal women of national or historic significance, thereby bestowing a benevolent feminine spirit on the vessels that would carry seafarers across treacherous oceans. Figureheads on the prows of ships were often depictions of such female namesakes, denoting the name of the ship for a largely illiterate maritime population. (…)
And then there is a more male chauvinistic explanation most seafarers would agree on. I quote from the same website:
A ship is called a she because there is always a great deal of bustle around her; there is usually a gang of men about; she has a waist and stays; it takes a lot of paint to keep her good-looking; it is not the initial expense that breaks you, it is the upkeep; she can be all decked out; it takes an experienced man to handle her correctly; and without a man at the helm, she is absolutely uncontrollable. She shows her topsides, hides her bottom and, when coming into port, always heads for the buoys.
[80] The authentic texts of this convention is in French (and Russian)= ‘Convention relative à l’immatriculation des bateaux de navigation intérieure’ & ‘Protocole n°1 relatif aux droits réels sur les bateaux de navigation intérieure’ & ‘Protocole n° 2 relatif à la saisie conservatoire et à l’exécution forcée concernant les bateaux de navigation intérieure’.
See: https://treaties.un.org/doc/Publication/UNTS/Volume%201281/volume-1281-I-21114-English.pdf
[81] The registration of the ship and of its particulars is based upon an application for registration supported by a valid tonnage certificate containing the technical description of the ship.
See: De Latte, G., Teboekstelling en registratie van schepen (= about ship registration), Maklu, Antwerp, 2007
[82] See: De Latte, G., Zakelijke rechten en hypotheken op schepen (= about rights in rem on ships and ship mortgages), Kluwer, Mechelen, 2006
[83] Belgian ship registration act of 21 December 1990, art.2, §1: “Un navire n’acquiert ou ne conserve le droit de battre pavillon belge que par l’enregistrement.- Enkel door de registratie verkrijgt of behoudt een zeeschip het recht de Belgische vlag te voeren.”
UK merchant shipping act 1995, section 1 (1): “A ship is a British ship: if (a) the ship is registered in the United Kingdom under Part II; or (…).”
[84] The longest limitation period (‘délai de prescription – verjaringstermijn’) regarding acquisition of property rights on immovables is 30 years, which explains why information sought by notaries or other people concerned covers the last period of 30 years.
[85] Cf. Belgian 1996 royal ship registration decree, art.15
[86] Cf. Belgian maritime act (‘loi maritime – zeewet’), art.11: “Aucun acte n’est admis à l’inscription si le navire auquel il se rapporte n’est pas enregistré dans le register des navires – Een akte wordt niet ter inschrijving toegelaten wanneer het schip niet in het register der zeeschepen geregistreerd is.”
Land registration obeys to the ‘lex rei sitae’, and registration of deeds relating to ships is subject to the ‘lex registrationis’ of the country under whose flag the ship is registered.
[87] The reasons for choosing one flag rather than another vary. They have to do with (more or less) interesting rules with respect to company formation, taxation, manning of the ship, the way the ship’s operation and the ship’s seaworthiness are controlled or not controlled, the easy access to the registry and so on.
It all comes down to ‘flag shopping’. For years some countries have been trying hard to make ship registration a profitable business in its own right and attract as many foreign ships as possible to their shipping registers, with an array of different incentives. The flags of those countries are called ‘flags of convenience’ and they usually have a bad reputation.
[88] The competitiveness of EU ship registries has substantially been increased as a result of the 1997 EU state aid guidelines to maritime transport; these guidelines also guarantee a level playing field between the national ship registers of the member states.
