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A treatise on Belgian law: containing a complete translation of the entire ... online

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mately to be filed in the Registry of the Commercial
Court. When he lands in a foreign port he must attend
before a Belgian consul and make a report to him, taking
from him a certificate show^ing the time of his arrival
and of his departure, and the nature of his cargo. Unless
circumstances of great and unusual danger exist, the
captain is not at liberty to discharge any portion of his
cargo before having made this report. The bill of lading
to be signed by the captain must state the nature and
quantity of the articles to be carried, the names and
addresses of the consignor, the consignee, and the captain^
the name, nationality and tonnage of the vessel, her ports o£
departure and destination, and of any contracts as to the
freight. It must also in the margin state the marks and
numbers of the things to be carried, and also the number
of copies that are in existence of such bills of lading,
and tne same may be made to order to bearer or to a
named person. There must be at least four originals of
the document, one for the consignor, one for the consignee,
one for the captain, and one for the owner — the captain's
copy must be signed by the consignor, and the other
copies by the captain, and the signatures must be appended
within twenty-four hours of the time of loading. Within
the same length of time the consignors are bound to
furnish to the captain receipts for the goods which he has



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160 Code of Commerce (Commentary).

taken on board, and this bill of lading, when duly signed
and prepared as above, is complete legal evidence of the
facts stated in it as between the parties thereto and the
assurers. The holder of the bill of lading, even where
the endorsement thereof to him is in blauK, is the only
person having the right to claim delivery of the cargo
from the captain ; but if several copies are produced the
captain must apply, in Belgium to the Commercial Court,
or in foreign countries to the Belgian consul, to appoint
a person to whom the goods are to be delivered in
exchange for payment of the freight. Every commission
agent or consignee receiving the goods mentioned in
a bill of lading is bound to give a receipt therefor to
the captain, under penalty of being liable for damages
should he refuse so to do. The terms of engagement of
the captain and crew of a vessel are proveaole by pro-
duction of the muster roll, or of the agreements between
the parties. Should the voyage be prevented by the acts of
the owners, the captain or the affreightors before the vessel's
departure, sailors engaged for the voyage or by the month
are to be paid their wages in respect of the time that they
have been occupied in getting the vessel ready for sea ;
and they are also entitled to retain sums paid to them in
advance on account of wages. If they have received no
advance wages, however, they are entitled to be paid one
month's wages by way of damages ; and if they are
engaged for the voyage, a proportion equivalent to such
month's wages. If abandonment of the voyage is decided
upon after the voyage has commenced, sailors engaged
for the voyage are entitled to be paid the whole amount
under their contract. If, however, the abandonment is
attributable to a trading prohibition made by the Govern-
ment of the country to which the voyage was to be made,
the sailors are only entitled to be paid their wages for the
time they were actually employed in getting the vessel
ready for sea. Should the voyage be prolonged beyond
the time fixed, the wages of the sailors engaged for the
voyage are to be increased proportionately to the length
of its prolongation as compared with the time the
original voyage was expected to last. Should the voyage,
on the other hand, be shortened, the sailors are entitled to
be paid in full. In the event of the vessel being taken
as a prize, of shipwreck, or of a declaration of un-
seaworthiness, the sailors engaged by the month or for



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As TO THE Mercantile Marine, 161

the voyage are to be paid their wages up to the time
when their services come to an end ; and they are also
entitled to recover the cost of getting home to the port
at which they were engaged, or, at the captain's option,
to a sum sufficient for such purpose unless it is proved
that they have not done all in their power to save the
vessel, in w^hich case it is for the court to decide what
sum shall be deducted from the wages which have accrued
due to them. Under whatever terms the sailors may
have been engaged, they are to be paid for the time
during which they have helped to collect together spars
and other things saved from a wreck. A shipwrecked
sailor is entitled to be paid his wages, his cost of living,
medical expenses, and his expenses of getting home by
the vessel, should he become ill during the voyage, or should
he be wounded in the service of the vessel. His wages
are to be paid up to the end of the voyage contracted for,
unless it is proved that he has reached home before that
time and could have rejoined his vessel, or could have
obtained another engagement. He is also entitled to
be paid the like sums should he be wounded whilst fighting
a/^ainst enemies and pirates ; if, however, his wounds or
his illness are brought about owing to his own fault, or
if, having left the vessel witliout authority, he is wounded
on land, he is liable to pay these expenses himself ; and
he may also be discharged by the captain, in which event
he is only entitled to his wages in respect of the time that
he actually served. Should the sailor die on the voyage,
if he is engaged by the month, his wages up to the date of
his death are payable to his personal representatives ; but
if he is engaged by the voyage, only one half of his wages
are payable to the like person ; if he dies either going to
or at the port of destination, the whole of his wages are
payable as if he had died on the return voyage. Every
sailor who is able to prove that he was discharged without
good cause is entitled to claim damages against the
captain, and such damages are fixed at one third of his
wages if he is discharged before the voyage commences ;
or the whole of his wages and his expenses of returning
home if he is discharged during the voyage, and the
captain is not entitled to charge such amounts in his
account against the owners, but the sailor is not entitled
to any damages for being discharged if this event happened
before the muster roll was completed. Under no circum-



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162 Code OF Commerce (Commentary).

stances is a captain entitled to discharge a sailor in a
foreign country.

Neither the captain nor any member of the crew is
entitled to take cargo on board for their own benefit
under any pretext whatever without the pei'mission of
the owners and without paying freight, unless it is
provided that they are to be at liberty so to do by the
terms of their contract of engagement ; and should any
such goods be found on the vessel before her departure
from port, all persons causing the same to be taken on
board are rendered liable to pay double freight without
prejudice to further damages, should the circumstances
justify the same.

As TO Charter Parties and other Contracts of
Maritime Hiring.

Title 3. A charter party in respect of a ship, in the absence
of a statement to the contrary therein, does not include the
cabins and other portions of the vessel reserved for the
captain and crew, but no goods may be stored in these
portions of the vessel by the captain without the consent
of the consignor ; and in the event of a breach of this con-
dition, the provisions above referred to with regard to
captains or members of the crew taking cargo on board for
their own gain apply. The price payable for the hiring of
a vessel or other maritime craft is called freight or
" nolis," and the conditions of it are to be regulated by
agreement between the parties — it may be either for the
whole or a portion of the vessel, for a complete voyage, or
for a limited time, according to weight, according to the
number of articles, according to measure, dependent upon
the price realised, or upon the result of the adventure.
It is the duty of the owner or person loading the vessel
to secure to the charterer the use of the ship in accordance
with this agreement — if she is let as a whole, and even
although the charterer does not provide a complete
cargo, the captain is not entitled to take other goods
on board without such charterer's consent, and he is
entitled to the benefit of the freight charged in respect of
any other goods which are taken on board. Any captain
who declares his vessel's carrying capacity as being greater
than is actually the case is liable in damages to the
charterer ; there shall, however, not be taken to have been



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As TO THE Mercantile Marine. 163

any misrepresentation as to her carrying eapacitr unless
the excess is more than one half of the amount aeclared,
or if the declaration made is in accordance with the
gauging certificate. The charterer is bound to furnish
the cargo which he has undertaken to provide, and to pay
the freight as agreed. When he has not a full cargo,
as shown by the charter party, he is bound, nevertheless,
to pay the whole freight agreed upon. Should he furnish
^argo in excess of that mentioned in the document, he is
bound to pay for such excess in accordance with the
terms of the charter party. Should he, without having
provided any cargo, abandon the voyage before the ship
sails, he is liable to pay an indemnity to the captain to
the extent of one-half of the freight agreed upon in the
charter party in respect of the whole cargo mentioned
therein. He is not at liberty to abandon the voyage after
the ship has received any portion of her cargo, and if after
this she sails, the whole of the freight is payable to the
captain, unless the same was to be payable upon the result
of the adventure. The consignor is not at liberty to abandon
goods which have diminished in value or deteriorated
owing to inherent vice, or as the result of any unforeseen
circumstances, in payment of the freight, provided, never-
theless, that vessels containing wine, oil, honey, and other
liquids, if they have leaked so much as to be nearly empty
may be abandoned for the freight. Should the consignee
refuse to accept goods consigned to him, the captain may,
upon obtaining legal authority for the purpose, cause the
same to be sold in order to provide for payment of the
freight, and cause the surplus of the proceeds to be put
apon deposit, and should such proceeds be insufficient to
pay the freight, he retains his right of action in respect
of any balance against the consignor. A captain is not
entitled to detain goods in his ship for payment of freight,
but he may at the time of discharge require a deposit in
the hands of third parties to be made of a sum sufficient
to cover his claim therefor, he, however, is entitled to
a prior lien thereon for fifteen days after the same have
been discharged in respect of amounts due for freight and
for average, and should the consignors of or claimants to
the goods become bankrupt before the expiration of
fifteen days, such lien takes priority over the claims of all
creditors of the persons entitled to the same. Should the
vessel be detained before sailing, whilst on her voyage or

M 2



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164 Code of Commerce (Commentary).

at her port o£ discharge owing to causes attributable to
the consignor he is liable to pay demurrage. If the
vessel has been hired for the outward and homew^ard
voyage, and she returns light or with an incomplete
cargo, the whole of the freight is payable to the captain
as well as an amount for demurrage, but the captain
is liable for damages to the charterer if the delay is
caused by any fault of his. If the vessel is detained
during her voyage owing to circumstances amounting
to vis major J no freight is payable in respect of such
time as she is so detained. Should a prohibition against
trading be declared in the country where the ship's
port of destination is whilst she is on her voyage ; and
the captain is obliged to return with the cargo, he is
only entitled to recover freight in respect of the outward
voyage, although the ship may have been chartered for
the return voyage also. If the port of destination is
under blockade, or if there are circumstances amounting
to vis major which prevent such port from being entered,
the captain is bound, in the absence of orders to the
contrary, to act for the best in the interests of the con-
signor, either by sailing into a neighbouring port or by
returning to his port of departure. In the event of the
captain naving to put into a port for the purpose of
repairs during the voyage, the charterer must either wait
until the repairs have been effected in order to enable the
ship to proceed, or else pay the whole of the freight.
Where the ship is, owing to her condition, incapable of
being repaired, the captain must, if possible, charter
another ; and if he is unable so to do the liability for
freight is regulated by Article 97 herein, which pro\'ides
that no freight is payable in respect of goods lost as
a result of snipwreck or foundering, pillage by pirates,
or capture by enemies, and under these circumstances
the captain is bound to repay any freight which may
have been advanced to him in the absence of agreement
to the contrary. By the same Article it is provided
that no freight is payable in respect of goods which,
after shipwreck or declaration of unseaworthiness of the
vessel, have failed to reach their destination. Should
the goods arrive at their destination having been carried
at a less rate of freight than had been agreed upon with
the captain of the wrecked or unseaworthy vessel, the
difference at least between the two freights is payable



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As TO THE Mercantile Marine. 165

to the captain, but he is entitled to nothing if the freight
is of the same amount as that which had been agreed with
him ; and should the new freight be greater, the consignor
is liable to him therefor. The captain loses his freight
and is liable in damages to the charterer if the latter is
able to prove that at the time when the vessel set sail she
was unseaworthy, and proof to this eflfect may be given
in support of and in contradiction to the certificate of
survey issued at the time of her departure. The captain
is entitled to be paid freight for goods jettisoned for
the general benefit of the ship, but the amount which he
can claim is subject to deduction in respect to such
jettisoned portion of the cargo. A captain who has
rendered salvage services, or who has brought bax3k goods
which have not reached their destination, is entitled to be
paid in respect thereof an amount which, if necessary, is
to be settled by the court.

The law with regard to averages and their settlement
will be found in Articles 99 — 119 of this law, and they are
described by Article 99 as "all extraordinary expenses
" made for the benefit of the vessel and her cargo either
" jointly or separately ; all damages which arise to the
" ship or her cargo from the time she was loaded and
" sailed until her return or discharge." In the absence of
agreement to the contrary between all the parties interested,
average contributions are settled in accordance with the
following provisions, namely : Averages are of two classes,
namely, general and particular average. General average
means extraordinary expenses incurred and damage
suffered voluntarily for the common benefit of the ship
and her cargo. All other averages are particular. Pro-
vided nevertheless that the expenses incident to delays by
reason of sea risks are to be considered as general average
assuming the ship and her cargo, if the voyage had been
continues, would have been placed in jeopardy, and
included in these expenses are wages, and cost of feeding
the crew from the time the vessel leaves the port in \yhich
she was detained up to the time when she is in a condition
to continue the voyage. Should the delay have arisen
owing to accidents which are recognised as being the
result of inherent defects in the vessel or from any cause
attributable to the captain or crew, such expenses are to
be considered as particular average. Should the delay
arise from spontaneous fermentation or other inherent



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166 Code of Commerce (Commentaby).

defects in the cargo, all the expenses relating thereto are to
be particular average attributable to the cargo. General
average is to be borne by the cargo, by the ship, and by
the net freight pro rata according to their value. Par-
ticular average is to be borne bj? tne owner of the article
which has given rise to the damage or occasioned the loss.
Munitions of war, stores, the wardrobe and wages of
members of the crew, as well as passengers' luggage, are
free from liability to contribute to general average ; but
their value is to be spread over the whole of the other
goods contributing. AH goods salved are liable to contri-
bute in respect of their net value at their place of discharge
or upon their net proceeds, deduction being made in
respect of freight payable upon them. Goods jettisoned
or sacrificed are to be paid for at their value including
freight, but subject to their liability to contribute their
proportion of freight. They are liable to contribute in
respect of freight in the same manner and to the same
extent as goods which are saved. The meaning of this is,
that although the owners of goods which have been
jettisoned or sacrificed are to be entitled to receive from
the shipowner the value of their ^oods, yet they do not
get sucn value without incurring the liability which they
would have incurred had their goods been saved of paying
the freight and other expenses which would have attached
to them had they been so saved or preserved. If in
respect of goods which have been jettisoned there is no
bill of lading or declaration made by the captiiin, then
nothing is payable in respect of them to the owner ; but
they are liable to contribute to the average charged if they
are saved. The ship is liable to contribute to the extent
of her value at her port of discharge ; but provided she
is not saved as the result of the jettison, then she is not
liable to contribute. If, however, she is saved as the
result of the jettison, and she continues her voyage but is
subsequently lost, goods saved contribute to the jettison
upon the footing of their value according to the state in
wnich they are found, deduction being made for the
expenses of salvage. The captain is bound to prepare in
writing a minute of proceedings relating to the jettison
and other sacrifices o£ goods made as soon as he is able so
to do, and this minute of proceedings must set out the
reasons which operated upon his mind in causing him to
make the sacrifice, and must be signed by the captain and



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. As TO THE Mebcantile Marine. 167

the principal members of the crew (or if not so signed the
reasons of refusal to sign must be set out), and this
document must be entered in the log book, and at the
next port which the vessel enters the captain is bound
within twenty-four hours of his arrival to prove the truth
of his minute of proceedings by oath. Tne state of the
losses and damage is to be proved at the place of the
vessel's discharge at the expense of the captain and by
experts, and these experts are to be appointed by the
Commercial Court provided the discharge is in a Belgian
port. Where there is no Commercial Court the experts
are to be appointed by a justice of the peace, and if the
discharge is in a foreign port they are to be appointed by
the Belgian consul, or, in default of him, by a magistrate of
the place where such discharge takes place, and the experts
are to be put under oath before entering upon their work.
Their duty when once appointed is to apportion the losses
and damages, and their report and apportionment is
rendered enforceable by being approved and adopted by
the court, and in foreign ports by the Belgian consul or
by a competent court of such place.

The contract of carriage of passengers by sea included in
Title 4 of the above heading and in Articles 120 — 133, is
regulated as follows : Passage tickets are not transferable
without the captain's consent. The cost of food is included
in the price of the passage in the absence of provision to
the contrary, and should this provision exist the captain is
bound to supply the passenger with all necessary food at a
fair price. The passenger is treated as being a consignor
so far as any articles which he may have upon the ship
are concerned ; but the captain is not responsible for any
harm happening to goods which the passenger keeps in his
own possession, unless such harm has arisen by some act
of the crew. The passenger is bound to obey the instruc-
tions of the captain so far as the maintenance of order on
board is concerned, and his effects on board are liable for
payment of the passage money and for the expenses of
maintenance, etc., in case of need. In the event of the
death of a passenger on board, the captain is respon-
sible for looking after his efifects during the voyage,
and is bound to deliver them up, in the absence of pro-
vision to the contrary, to the persons entitled thereto on
arrival at the ship's port of destination. The captain is
not bound to wait for a passenger who either at the port



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168 Code of Commerce (Commentary).

of departure or at any port touched at during the voyage
fails to appear on hoard at the proper time, and the
passenger under these circumstances is liahle to pay the
whole of his passage money. The captain is only entitled
to one-half of the passage money if eight days before the
ship's departure the passenger gives notice to him of his
intention to give up the contract. After the expiry of
this time the whole of the passage money becomes due.
The captain is entitled to a quarter of the passage money
if the passenger is unafile to go on board by reason of
death, illness, or vis majors and in either of tnese events
the cost of maintenance is not payable if it is included in
the passage money. The passenger is entitled to damages,
and rescission of the contract may be decreed if, owing to
the captain's fault, the ship does not sail on the day fixed ;
but the contract is rescinded without liability on either
side if the sailing is prevented by a prohibition against
trading with the port of the vessel's destination, by
blockade, or by otner circumstances amounting to tv^
major. A passenger who leaves the vessel at a port before
that of her destination is liable to pay the whole of his
passage money. Should the vessel fail to arrive at her
destination as the result either of capture, shipwreck, or a
declaration of unseaworthiness, the captain is only entitled
to be paid the cost of maintenance in a proper case.
Should he be obliged to have the ship repaired during her
voyage, the passenger must wait whilst the repairs are
being done or pay the whole of his passage money ; but
he is entitled during such time to free lodgings on the
ship and to the performance of the contract so far as it
relates to his being maintained, unless the captain offers to
provide him with accommodation on an alternative vessel
of the same class to continue his voyage.

Title 5 deals with mortgages of ships and maritime
liens, and in Articles 134 — 155 provides that ships may be
mortgaged by agreement between the parties. The contract
providing for a mortgage must be prepared in writing,
and may be under the hand of the mortgagor only. The
mortgage can only be given by the vessel's owner or by
virtue of a special power of attorney given by him for the
purpose, and such special power or mandate must be in
writing. A mortgage or charge upon a ship extends, in
the absence of agreement to the contrary, to the ship's
tackle, apparel, furniture, machinery, and other accessories.



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As TO THE Mebcantile Marine. 169

and it may be given npon a ship whilst in course of being
bnilt, and is rendered " public by being entered in the
shipping register at Antwerp. In order to secure entry
npon the register an original copy of the bill of sale giving
rise to the mortgage must be produced, and must remain
deposited in the registry if it is under the hand of the
mortgagor only, or a certified copy of it must be left if it



Online LibraryTodd BelgiumA treatise on Belgian law: containing a complete translation of the entire ... → online text (page 17 of 64)