RECENT AMENDMENTS TO THE PRIVATE INTERNATIONAL LAW RULES ON CARRIAGE OF
GOODS BY SEA IN THE BELGIAN SHIPPING CODE.
AN UNCALLED-FOR EXERCISE WITH UNFORTUNATE RESULTS
Prof. Dr Ralph DE WIT
Law Faculty VUB, Antwerp Maritime Academy
Attorney (GDS Advocaten), arbitrator CEPANI
I. INTRODUCTION
In Belgian law, the influence and importance of private international law (PIL – conflict of law
rules and jurisdiction issues) has increased exponentially over the past decades, partly due to
legislative activity at the EU level. This impact has also been noticeable in maritime and
transport law, where, at least in Belgium, there used to be a tendency to solve PIL problems in
a way as simple as it is effective: by ignoring them1.
On 20 April 2021, a bill amending the recently implemented Belgian Shipping Code2 was
submitted to the Federal Parliament. The text comprised 391 pages. The bill was rushed
through3 and approved by the House of Representatives Committee (Kamercommissie) on 18
May 2021. The resultant Act was officially published in September 20214.
In addition to extensive new chapters, the Act contains numerous changes, but this contribution
will only focus on a few small, but very far-reaching changes to private international law rules
regarding carriage of goods by sea. Unfortunately, the present text is an anthology on “how not
to do things”. In order to put the changes into context, some aspects of this complex area of
maritime law should be briefly reviewed.
1
2
3
4
Extensive substantiation of a thesis such as this would require much more space than is available here, but a
few aspects are obvious. As far as the jurisdiction of Belgian courts is concerned, a defence was rarely, if ever,
raised; a lawyer who did so successfully would lose his (lucrative) case. Nor was much attention paid to the
applicable law, because important parts of maritime law are in any case governed by many (often mandatory)
international treaties to which Belgium is often a party.
The somewhat cavalier treatment of PIL was not unique to Belgium. In 1994, Peter Mankowski, a leading
German specialist in the PIL field, devoted a book review to the third edition of a monument of German
maritime law: H. PRÜßMANN and D. RABE, Seehandelsrecht, Munich, Beck, 1992, 1006 p. After
acknowledging, in his review (P. MANKOWSKI, “Besprechung von H. Prüßmann / D. Rabe,
‘Seehandelsrecht’, 3. Aufl. vom 1991”, RabelsZ 1994, 772-786) the prestigious status of the treatise, he subtly
showed that even monuments are not be spared criticism, by extensively enumerating the incompletely treated
PIL aspects of the subject matter.
Bill to amend the Belgian Shipping Code, Parl.St. Kamer (House of Representatives) 2020-2021, no. 1935/001.
The Raad van State – Conseil d’Etat (a specialised body that reviews submitted bills as to content and form)
was required by the Government to render its expert opinion within 30 days, thus limiting its examination to
the legal basis of the preliminary draft, the draughtsmen’s authority and the preliminary formal requirements
to be fulfilled (Article 84, §1 and 3, Coordinated Acts of 12 January 1973).
Act 16 June 2021 amending the Belgian Shipping Code, Belgisch Staatsblad – Moniteur belge (Belgian
Official Journal) 6 September 2021.
II. BRIEF STATUS QUAESTIONIS IN THE OLD MARITIME CODE
A. TRANSPORT UNDER THE HAGUE RULES (1924): ABOLITION OF FREEDOM OF CONTRACT
In order to understand the issues discussed here, a minimum historical framework is
indispensable. Most readers, for that matter, will be aware of this. In 1921, at an international
congress of the Comité Maritime International (CMI)5 at ’s Gravenhage (The Hague, in The
Netherlands), a model set of rules for contracts of carriage by sea under a bill of lading was
proposed. This text was the result of decades of difficult negotiations. Finally, it was decided
to elevate the new rules to the status of a mandatory international Convention, and thus the
Brussels Bill of Lading Convention saw the light in 19246. The nickname “Hague Rules” (HR,
for the place where the text was first proposed), however, has survived in many countries.
The HR introduced, for the first time, important compulsory restrictions on the parties’
contractual freedom in a contract for the carriage of goods by sea. Cargo interests, generally
perceived as the weaker contracting party, were protected against the common and traditional
practice of shipping companies to abundantly insert draconian exemption clauses into their
standard contracts. The carrier was made subject to strict liability (in European Continental
parlance, an obligation to deliver the promised result, i.e. obligation de résultat), and in return
he enjoyed a wide range of statutory exemptions from liability and a general limitation of
liability to a maximum amount per item of damaged or lost cargo. Any clause detracting from
the minimum level of protection in the HR is null and void7.
In Belgium, the Convention was in its entirety copied into Article 91 Shipping Code8. The scope
of application was defined as any carriage “from or to a port of the Kingdom”.
In 1968 the HR received a much-needed facelift with the Visby Protocol9. Important in the
present exposé is that the Protocol, for the first time, defined its own specific scope of
application, which made the amended Convention directly applicable in national law. The
amended text was rechristened “Hague Visby Rules” (HVR).
The HVR were never able to match the original HR’s success, but they are the standard for
most European states.
B. JURISDICTION OVER CARGO CLAIMS
It was established case law that clauses intended to withdraw from Belgian jurisdiction a dispute
materially governed by the Belgian version of the HVR (Article 91 Maritime Code – Zeewet)
5
6
7
8
9
The CMI is the umbrella organisation of the national maritime law associations; in Belgium, for example, the
Belgische Vereniging voor Zeerecht (BVZ) – Association belge de droit maritime (ABDM).
International Convention for the unification of certain rules relating to bills of lading and the Protocol of
Signature, done at Brussels on 25 August 1924 and approved by Act of 20 November 1928, Belgisch Staatsblad
– Moniteur belge (Belgian Official Journal) 11 January 1929, as amended by the Protocol done at Brussels on
23 February 1968 and approved by Act of 28 August 1978, Belgisch Staatsblad – Moniteur belge (Belgian
Official Journal) 23 November 1978, and by the Protocol done at Brussels on 21 December 1979 and approved
by Act of 17 August 1983, Belgisch Staatsblad – Moniteur belge (Belgian Official Journal) 22 November 1983.
Article 3, 8° HR (Brussels Convention).
Zeewet, i.e. Commercial Code, Book II: Shipping and inland navigation, Article 91.
See footnote 6.
were null and void10. The Belgian courts considered the HR, and later the HVR, as a spatially
conditioned and directly applicable policy rule11. A jurisdiction clause was only considered
valid if it fulfilled two conditions: the contract must contain a paramount clause, making the
Belgian HR or HVR (Article 91 Shipping Code) applicable as substantive law, and the party
relying on the clause must prove, to a reasonable degree of certainty, that the foreign court, to
which the jurisdiction clause referred, would apply Article 91 Shipping Code in the same way
as a Belgian court would; if not, the clause would be held to be null and void12.
C. THE TILLY RUSS JUDGMENT
Needless to say, carriers (shipping companies) had no particular liking for this case law. At first
sight, relief appeared to be brought by the 1968 Brussels Jurisdiction and Judgments
Convention (at the time), the predecessor of the present Regulation Brussels I-bis13, which
offered the possibility to stipulate exclusive jurisdiction in the courts of a member state, when
one of the contracting parties was domiciled in an EU state14. The Belgian courts showed
remarkable inspiration in nullifying the effect of jurisdiction clauses under the 1968 Brussels
10
11
12
13
14
See, inter alia: Cass. 9 June 1932, Pas. 1932, I, 183, RHA 1932, 259 (Ostsee); Cass. 19 December 1946, Pas.
1946, I, 480, Arr.Cass. 1946, 445; Cass. 2 February 1979, Arr.Cass. 1978-1979, 630, Pas. 1979, I, 634, RHA
1979-1980, 37, ETL 1979, 595, RW 1978-1979, 2109, case note (Berkshire); J. LIBOUTON, “Examen de
jurisprudence (1979 à 1987). Le droit maritime”, RCJB 1990, (129) 153; R. ROLAND, “La clause de
juridiction du connaissement en droit belge”, in J. BLOCKX, I. CLINCK, L. DELWAIDE and A.
VANDEPLAS (ed.), Liber amicorum Lionel Tricot, Antwerp, Kluwer, 1988, (439) 442; J. HEENEN and J.
LIBOUTON, “Examen de jurisprudence (1966 à 1978). Le droit maritime”, RCJB 1979 (183) 197; CA
Antwerp 16 September 1987, ETL 1987, 695.
L. DELWAIDE and J. BLOCKX, “Kroniek van Zeerecht. Overzicht van rechtsleer en rechtspraak 1976-1989”,
TBH 1990, (565) 586; J. VAN RYN and J. HEENEN, Principes de droit commercial, IV, Brussels, Bruylant,
1988, no. 715, and cited references (“une loi d’application immédiate”, the authors reversing their earlier
position, that the rule was of international public policy; one author maintains – probably rightly so – that the
one qualification does not exclude the other: J. LIBOUTON, “Examen de jurisprudence (1979 à 1987). Le droit
maritime”, RCJB 1990, (129) 154).
See, inter alia: J. VAN RYN and J. HEENEN, “Examen de jurisprudence (1954 à 1957). Le droit maritime”,
RCJB 1958, (211) 216-217; J. VAN RYN and J. HEENEN, “Examen de jurisprudence (1958 à 1965). Le droit
maritime”, RCJB 1967, (85) 95-97; R. ROLAND and M. HUYBRECHTS, “Maritiem recht. Overzicht van
rechtspraak (1960-1967)”, TPR 1968, (459) 483-486; R. ROLAND, M. HUYBRECHTS and S. ROLAND,
“Overzicht van rechtspraak. Scheepvaartrecht (1968-1975)”, TPR 1976, (81) 127-131; J. LAENENS,
“Bevoegdheidsovereenkomsten in cognossementen”, case note CA Antwerp 15 June 1977, RW 1977-1978,
1635-1638; I. DE WEERDT, “Bevoegdheidsbeding in cognossementen voor de Belgische Rechter”, ETL 1987,
317 (319); J. LIBOUTON, “Examen de jurisprudence (1979 à 1987). Le droit maritime”, RCJB 1990, (129)
153-157; L. DELWAIDE and J. BLOCKX, “Kroniek van Zeerecht. Overzicht van rechtsleer en rechtspraak
1976-1989”, TBH 1990, (565) 590-594; P. VERGUTS, “De overeenkomst van zeevervoer”, in A. POELMANS
(ed.), “Overzicht van rechtspraak. Vervoersrecht. 1976-2012”, TPR 2013, (1607) 2175-2177, no. 25.
This does not mean that jurisdiction clauses were always automatically null and void: Cass. 2 February 1979,
Arr.Cass. 1978-1979, 630, Pas. 1979, I, 634, RHA 1979-1980, 37, ETL 1979, 595, RW 1978-1979, 2109, case
note (Berkshire).
On jurisdiction clauses in carriage of goods by sea in general, see inter alia: F. SPARKA, Jurisdiction and
Arbitration Clauses in Maritime Transport Documents. A Comparative Analysis, Heidelberg, Springer, 2010,
279 p.; V. HOFFMEYER, Die Gerichtswahlklausel im Konnossement. Eine rechtsvergleichende Studie, in
Berkeley-Kölner Rechtsstudien, Kölner Reihe, vol. 4, Karlsruhe, Verlag C.F. Müller, 1962, 214 p.; F.
STEVENS, “Bevoegdheidsbedingen in cognossementen en de internationale handelsgewoonten”, TBH 2012,
743-750.
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L351/1, 20 December 2012.
In Reg. Brussels I-bis the requirement that at least one party must be domiciled in a contracting state has been
dropped. It is sufficient to refer to the courts of an EU Member State.
Convention, at least when it came to the protection of a third party holder of a negotiable bill
of lading. A first approach was that the conditions for application could not be met because the
holder of the bill of lading did not have any contractual relationship with the carrier15.
Sometimes a distinction was made between “formal” and “substantive” rules of law, making a
jurisdiction clause that was formally valid under the EEX Convention nevertheless void because
it was contrary to the substantive rule of Article 91 Shipping Code (Zeewet)16.
In 1983, the Belgian Supreme Court (Hof van Cassatie – Cour de Cassation) was given the
opportunity to decide on this dismissive case law. The Court submitted a preliminary question
to the European Court of Justice17. Two aspects had to be examined: first, whether a jurisdiction
clause in a bill of lading could be regarded as a written agreement within the meaning of Article
17 EEX and, secondly, if so, whether the third party holder of a negotiable bill of lading was
also bound by that agreement. In the well-known Tilly Russ judgment18, the Court of Justice
decided, not surprisingly, that the answer to the first question was affirmative. As to the second
question, the Court ruled that if the clause had been validly agreed between the shipper and the
carrier, a third party holder to whom the bill of lading had been endorsed would also be bound
by it, provided that it succeeded to the rights and obligations of the shipper under the applicable
national law. If the third party holder does not succeed to the rights and obligations of the
shipper, the jurisdiction clause has no effect towards him. The Belgian Supreme Court could
therefore suffice with stating that, according to Belgian law, the third party holder does not
succeed the shipper in its rights and obligations, in order to throttle jurisdiction clauses19. This
position has since then been unanimously accepted in Belgian case law.
15
16
17
18
19
Article 17 Brussels Jurisdiction and Judgments Convention 1968 (as it was then), the current Article 25 Reg.
Brussels I-bis (the text has been adapted in the meantime, but in this context this does not make much
difference): CA Antwerp 28 February 1979, RHA 1979-1980, 261; CA Antwerp 21 November 1979, RHA
1979-1980, 346; for a review of the case law of the lower courts, see J. LIBOUTON, “Examen de jurisprudence
(1979 to 1987). Le droit maritime”, RCJB 1990, (129) 158; P. VERGUTS, “De overeenkomst van zeevervoer”,
in A. POELMANS (ed.), “Overzicht van rechtspraak. Vervoersrecht. 1976-2012”, TPR 2013, (1607) 22832294, nos. 181-194.
Antwerp 28 February 1979, RHA 1979-1980, 261. This reasoning found approval in some legal writings: R.
ROLAND, M. HUYBRECHTS and S. ROLAND, "Overview of case law. Maritime law (1968-1975)", TPR
1976, (81) 131-135. Other authors (rightly) criticised this case law: J. HEENEN and J. LIBOUTON, "Examen
de jurisprudence (1966 à 1978). Le droit maritime", RCJB 1979 (183) 199.
Cass. 8 April 1983, Arr.Cass. 1982-1983, 928, note, Pas. 1983, I, 829, RW 1983-1984, 1697.
ECJ 19 June 1984, Partenreederei m/s ‘Tilly Russ’ and Ernest Russ v. Haven- en vervoerbedrijf Nova nv and
nv Goeminne Hout (Tilly Russ), Case 71/83, [1984] ECR 2417, opinion A-G G. SLYNN, Rev.crit.dr.int.pr.
1985, 385, note H. GAUDEMET-TALLON, RHA 1983-1984, 420, opinion A-G G. SLYNN, Cah.dr.eur. 1985,
420, note M. EKELMANS, “Les conditions de validité au regard de l'article 17 de la Convention de Bruxelles
du 27 septembre 1968 d'une clause attributive de juridiction insérée dans un connaissement maritime”,
Nederlandse Jurisprudentie (NJ) 1984, no. 735, opinion A-G. SLYNN and note J.C. SCHULTSZ, TBH 1985,
98, note J. LIBOUTON, Droit maritime français (DMF) 1985, 93, note P. BONASSIES, RW 1984-1985, 109,
opinion A-G. SLYNN, JT 1984, 553, Eur.Vervoerr. 1985, 3, opinion A-G. SLYNN. For further comments of
that period see inter alia: M. WILDERSPIN, “Article 17 and bills of lading”, (1984) 9 E.L.Rev. 456-459; J.-M.
BISCHOFF and A. HUET, “Chronique de jurisprudence de la Cour de Justice des Communautés européennes”,
J.dr.int. (Clunet) 1985, 159-165; R. ROLAND, “Le connaissement et le droit européen”, RHA 1983-1984, 403419 and TBH 1985, 84-97; H. VERHEUL, “The EEC Convention on Jurisdiction and Judgments of 27
September 1968 in Dutch legal practice”, NILR 1987, (99) 104-105; P.M. NORTH, “Jurisdiction Clauses in
Bills of Lading and the European Judgments Convention. The Tilly Russ”, [1985] 2 LMCLQ 177-179; R.
ROLAND, “La clause de juridiction dans les connaissements devant l’article 17 de la Convention C.E.E. du
27 septembre 1968”, JT 1983, 301.
Cass. 25 January 1985, Arr.Cass. 1984-1985, 691, note, Pas. 1985, I, 611, note, RHA 1983-1984 (sic), 472,
RW 1985-1986, 994, Eur.Vervoerr. 1985, 73.
D. CURRENT SITUATION
The Belgian Supreme Court’s position has since then been unanimously accepted in Belgian
case law20. It should be noted, however, that this protection applies to the third party holder of
a negotiable bill of lading. It is of no use to the consignor, nor to the consignee when a sea
waybill is used.
III. THE ROTTERDAM RULES
A. RAISON D’ÊTRE
In the United States, neither the Visby Protocol nor later attempts to modernise maritime
carriage of goods law have ever been accepted. In the 1980s, AMLA decided21 to create, by
itself, new (national) legislation to succeed the famous Harter Act of 1893, which had helped
trigger the development of the HR. That initiative would undoubtedly have dealt a death blow
to the tried and tested internationally unified maritime carriage of goods law22, but in the nick
of time the US agreed to support one more attempt to achieve a comprehensive replacement of
the HR, the HVR, the Hamburg Rules23 and the hybrid national codifications that had sprung
up. However, UNCITRAL, the obvious UN organisation to pilot such an initiative, had not yet
recovered from the hangover of the Hamburg Rules, and UNCTAD, after the fiasco of the
Multimodal Convention24, was no longer an acceptable forum for many states. UNCITRAL,
however, needed a political success, and so a compromise was reached: the abovementioned
CMI, the primogenitor of unified maritime law and of the successful HR and HVR, would
prepare a completely new convention, and UNCITRAL would present this internationally with
a view to its rapid adoption by a diplomatic conference.
The further sequence of events demonstrates how extremely sensitive the balance of power in
maritime transport is, and how irreconcilable the contradictions are. The CMI began its work
in 1999 and expeditiously delivered a draft text, which was already submitted to UNCITRAL
in 2001. The subsequent negotiations25 dragged on until... 2009, with a full month of plenary
sessions per year. The CMI draft convention was thoroughly dissected and almost completely
rewritten, through many difficult compromises. In 2008, in view of the impending hopelessness
of the negotiations, short work was made of the remaining problems. Three controversial
chapters were simply deleted, the text was adapted to accommodate these major changes, and
20
21
22
23
24
25
See, inter alia: P. VERGUTS, “De overeenkomst van zeevervoer”, in A. POELMANS (ed.), “Overzicht van
rechtspraak. Vervoersrecht. 1976-2012”", TPR 2013, (1607) 2286-2291, nos. 184-188.
American Maritime Law Organisation, the national American maritime law association.
See, inter alia, R. DE WIT, “Enkele beschouwingen over vervoersrecht en internationaal privaatrecht bij de
hand van de nieuwe Amerikaanse Carriage of Goods by Sea Act”, in Liber amicorum Jozef Van den Heuvel,
Antwerp, Kluwer, 1999, 277-296.
United Nations Convention on the Carriage of Goods by Sea, Hamburg, 1978 (the “Hamburg Rules”). This
Convention entered into force in 1992, but its success has been limited.
United Nations Convention on the International Multimodal Transport of Goods, Geneva, 24 May 1980 (the
“Multimodal Convention”). This Convention met an even worse fate than the Hamburg Rules: of the required
30 ratifications, only 11 were achieved; it is almost certain that it will never enter into force.
Thus, the original idea that the discussion and approval by UNCITRAL would be a mere formality did not
materialise. The undersigned participated in these negotiations from 2002 to 2007, on behalf of FIATA (the
world-wide professional association of freight forwarders). The very comprehensive preparatory works are
available in full at https://uncitral.un.org/en/texts/transportgoods/conventions/rotterdam_rules/travaux, as well
as a large number of comments at https://uncitral.un.org/en/en/library/online_resources/rotterdam_rules.
the finalised version was solemnly signed at Rotterdam in 2009. Hence, in the CMI tradition of
using the name of the place where a new treaty is concluded, the new convention was baptised
the Rotterdam Rules (RR).
B. THE (VERY LIMITED) FREEDOM OF CONTRACT IN THE RR
A major controversy in the negotiations on the RR was the desire of the United States and others
to do away with the mandatory nature of the HR, the HVR and the Hamburg Rules. Although
the origin of the HR was precisely the need for a mandatory minimum protection of cargo
interests, it was argued that times had changed, and that many shippers were often in a stronger
negotiating position than the shipping companies.
The US specifically wanted the freedom to allow volume contracts. This contract in fact has
few distinguishing features compared to a “simple” contract of carriage, except that it relates to
a minimum, and significant, volume of goods that will be shipped during the course of the
contract. The contract of carriage is then, by definition, a framework contract containing a
number of successive shipments. In legal writings, such a contract is described as a “contract
of affreightment (CoA)”, “volume contract”, “tonnage contract”, “quantity contract”, “service
contract”, and, with the typical American penchant for acronyms, OLSA (ocean liner service
agreement)26. In French law, it is generally referred to as a “contrat de tonnage”27. In German
law, it is considered to be a variant of the charterparty28. Its specific features are that the carrier
enters into a “generic” commitment (a generally defined duty which is to be specified later on),
to carry a certain quantity of goods; that no ships are as yet nominated in the contract; that the
cargo consists of a large quantity of goods which must be carried by several ships over a certain
period of time; that the freight is calculated on the basis of an agreed unit of account or as a
lump sum; and that the risk of delay is for the carrier29. The volume contract thus presents many
of the characteristics of a voyage charter.
Another similarity with chartering is that this type of contract is usually concluded between
parties who are on more or less equal footing in terms of negotiating power. The shipper is not
necessarily concerned with the minimum protection of his interests, which the HVR or the older
HR offer for individual shipments. In a volume contract, the risk is distributed in an entirely
different way. The shipper acts as an insurer of his own risk, because paying an insurance
premium for the whole volume of goods shipped in the course of the framework contract is
more expensive than writing off the loss and damage of a small percentage of the goods. The
parties agree that this percentage must stay below a certain limit, and it is on this basis that the
service level is established, which the carrier must contractually meet as a minimum. The
26
27
28
29
US law defines this type of contract as “a contract between a shipper and an ocean common carrier or
conference in which the shipper makes a commitment to provide a certain minimum quantity of cargo over a
fixed time period, and the ocean common carrier or conference commits to a certain rate or rate schedule as
well as a defined service level - such as, assured space, transit time, port rotation, or similar service features;
the contract may also specify provisions in the event of nonperformance on the part of either party” (Shipping
Act 1984, sec. 3 (21) (46 USC app. 1702).
Apparently, this does not qualify as a contract of carriage by sea: P. BOULOY, “Le contrat de tonnage.
Nouvelles et informations”, DMF 1980, 312.
B. LAUDIEN, Der Mengenvertrag im Deutschen Seefrachtrecht. Empfielt sich Seine Kodifizierung im
Seehandelsrecht? Neuwied, Kommentator/Luchterhand, 1992, 43.
P. MANKOWSKI, Seerechtliche Vertragsverhältnisse im Internationalen Privatrecht, 1995, 111, and
references cited.
agreement then works very simply: for example, 99% of the goods must be delivered in good
condition; the consequences of the 1% unavoidable accidents, which happen to even the most
diligent carrier, are borne by the shipper without further discussion. If the carrier performs
better, he gets a bonus; if he performs worse, he pays a penalty. There are no discussions about
liability, breach of duty, exemption, etc. Such arrangements exist in practice, but they are
usually treated discreetly, because they unavoidably conflict with the mandatory HVR or HR
(to the extent that bills of lading are used).
Of the aim, at the time the RR were drafted, to return to complete contractual freedom, even if
only for volume contracts, virtually nothing has remained. The animated discussions
culminated in a typical compromise30, in which the exception for volume contracts is indeed
permitted, but in which it is then so restricted by conditions and exceptions that an alternative
mandatory regime is actually created. The exception applies only as between the contracting
parties and does not affect the position of third parties, including the consignee (if he is not the
co-contracting party) and the third party holder of a negotiable bill of lading, unless they
expressly agree. In addition, the carrier’s co-contracting party must first be offered a contract
based on the general RR regime; the alternative terms must have been freely negotiated, or at
least prominently displayed in the contract, and not be part of a set of pre-imposed nonnegotiable standard trading conditions. The carrier remains subject to the mandatory liability
rules on seaworthiness and the delivery of an unsuitable ship, the shipper to those on the
obligation to inform and warn about dangerous goods. The exception does not apply to conduct
which would breach the limit of liability31.
C. INTERNATIONAL RECEPTION OF THE RR
The Rotterdam Rules were, at best, very lukewarmly received. Too much, too difficult, too
many controversial changes...32. For the Convention to enter into force, 20 ratifications are
required. Since 2009, 25 states have signed the Convention, but there are only 5 ratifications33.
30
31
32
33
Article 80 Rotterdam Rules.
A. TETTENBORN, “Freedom of contract and the Rotterdam Rules: framework for negotiation or one-sizefits-all?”, in D.R. THOMAS (ed.), The Carriage of Goods by Sea Under the Rotterdam Rules, London, Lloyd’s
List, 2010, (73) 80, nos. 4.18-4.19.
An examination of this, often unjustified, criticism obviously transcends this contribution. See, inter alia: Y.
BAATZ, C. DEBATTISTA, F. LORENZON, A. SERDY, H. STANILAND and M. TSIMPLIS, The
Rotterdam Rules: A Practical Annotation, London, Informa, 2009, 673 p.; H. BOONK, “The Rotterdam Rules
and their significance for current law”, Nederlands Tijdschrift voor Handelsrecht (NTHR) 2010, 81-94; K.
RAMMING (ed.), Die Rotterdam Regeln, in Schriften des deutschen Vereins für internationales Seerecht, 107,
Hamburg, 2011, 162 p.; M.F. STURLEY, “Solving the Scope-of-Application Puzzle: Contracts, Trades and
Documents in the UNCITRAL Transport Law Project”, (2005) 11 Journal of International Maritime Law
(JIML) 22-41; D.R. THOMAS (ed.), An Analysis of the UN Convention on Contracts for the International
Carriage of Goods Wholly or Partly by Sea, Witney, Lawtext Publishing, 2009, 396 p.; D.R. THOMAS (ed.),
The Carriage of Goods by Sea Under the Rotterdam Rules, London, Lloyd’s List, 2010, 421 p.
Benin, Cameroon, Congo, Spain and Togo.
See:
https://uncitral.un.org/en/texts/transportgoods/conventions/rotterdam_rules/status
(consulted
on
16.7.2021).
The Netherlands has initiated the ratification procedure, but Parliament is free to leave open the date of entry
into force (C. VAN STEENDEREN, “The Netherlands take first steps towards ratification of Rotterdam
Rules”, Forwarderlaw 23.8.2018, http://forwarderlaw.com/2018/08/23/the-netherlands-take-first-stepstowards-ratification-of-rotterdam-rules/ (accessed 16.7.2021).
The general impression is that most states are taking a wait-and-see attitude until the major maritime trading
nations take action, first and foremost the US. Such a long wait is not so unusual. The US only ratified the 1924
IV. MARITIME TRANSPORT IN THE BELGIAN SHIPPING CODE 2019
A. IMPLEMENTATION OF NEW BELGIAN MARITIME LAW
In 2007, a commission for the revision of the badly outdated Belgian maritime law was
established. This commission first published a Green Book with a short review of the existing
problems34. Subsequently, it proposed a very extensive revision project, thematically divided
into Blue Books35. A number of proposed reforms turned out to be very controversial, and hence
the final bill differed considerably from the commission’s work on a number of points. For
maritime transport, dealt with in Blue Book 636, the general feeling was that no major changes
were desirable or even possible. The rules on chartering were modernised, but this is
traditionally a matter of non-mandatory law. As regards contracts of carriage, Belgium is and
remains a party to the HVR, so there was little room for manoeuvre. The Rotterdam Rules are
not in force and have not yet attracted ratifications from major maritime players. The biggest
change was the extension of the scope of the HVR to cover sea waybills (instead of only bills
of lading), but apparently there was a broad consensus on this.
B. VERSION IN BLUE BOOK 6
In Blue Book 6 it was proposed to literally copy the Visby Protocol’s scope of application37.
This would have meant that the scope of application of the new Act would have been
significantly narrower on this point: Article 91 of the old Maritime Code (repealed) applied to
both incoming and outgoing carriage, whereas the proposed Article 6.87 would only apply to
outgoing carriage (unless the incoming carriage originated from another State Party, but that
creates uncertainty).
In addition to the actual provisions of the HVR, which had to be reproduced verbatim in view
of their status as an international Convention, a number of “additional provisions” were also
included in a separate subsection 2, which were intended to fill in the worst gaps in the outdated
HVR38.
34
35
36
37
38
HR in 1936. The 1978 Hamburg Rules only entered into force in 1992. In any case, time is running out, and
unfortunately there are enough failed treaties already. Striking examples are the already mentioned Multimodal
Convention (UNCTAD, 1980), which required no less than 30 ratifications and never got beyond 11, and the
OTT Convention (Liability of Operators of Transport Terminals, UNCITRAL, 1991), which required 20
ratifications and received 4.
E. VAN HOOYDONK, L. DELWAIDE, R. DE WIT, W. FRANSEN, B. GOEMANS and M. HUYBRECHTS,
Groenboek Nieuwe Belgische Zeewet. Consultatiedocument ter voorbereiding van een nieuw Belgisch
maritiem wetboek, Antwerp, Maklu, 2007, 110 p. See also: E. VAN HOOYDONK, Schip van staat met slagzij.
Sterkten en zwakten van maritiem recht en beleid in België, Antwerp, Maklu, 2006, 242 p.
Perhaps because of their size and limited target audience, these books (except volume 1) have not been
published in hard copy. They are freely available on the commission’s website: www.zeerecht.be. An integral
version in French is also available.
E. VAN HOOYDONK (ed.) and F. STEVENS, Zesde blauwboek over de herziening van het Belgisch
scheepvaartrecht. Bevrachting en vervoer, 2013, 608 p., www.zeerecht.be.
E. VAN HOOYDONK (ed.) and F. STEVENS, Zesde blauwboek over de herziening van het Belgisch
scheepvaartrecht. Bevrachting en vervoer, 2013, www.zeerecht.be, article 6.87, p. 305.
E. VAN HOOYDONK (ed.) and F. STEVENS, Zesde blauwboek over de herziening van het Belgisch
scheepvaartrecht. Bevrachting en vervoer, 2013, www.zeerecht.be, articles 6.97- p. 313-
In this subsection, a specific provision on jurisdiction was included, which, apart from the cases
governed by Regulation Brussels I-bis, was intended to ensure that the Belgian courts would
enjoy the widest possible jurisdiction, simply by making them always competent to deal with
claims relating to contracts of carriage from or to a Belgian port39. When it comes to a
jurisdiction clause, this provision can only have an effect when jurisdiction is contractually
granted to a court outside the EU; if not, Article 25 Brussels I-bis Regulation obviously takes
priority. In this way, (common) jurisdiction clauses in favour of, for example, American,
Chinese and Taiwanese courts are eliminated.
Somewhat surprisingly, the material scope of application of this subsection is defined
differently from that of subsection 1, which includes the HVR40.
C. VERSION IN THE BELGIAN SHIPPING CODE 2019
The final version of the Belgian Shipping Code, in 2019, contained two remarkable changes,
which are not explained in the “Travaux Préparatoires” (more specifically in the Memorie van
Toelichting, literally the “Explanatory Memorandum”).
First, the scope of application for carriage of goods by sea is taken literally from the Visby
Protocol41, but it is then added that the Act also applies to all carriage to Belgium42. Thus, the
new Act has at least the same scope of application as the old Article 91 Maritime Code
(repealed), which mandatorily applied to all carriage from and to a Belgian port43 under a bill
of lading.
Secondly, and rather surprisingly, it is stipulated that the HVR have no direct effect in Belgian
law44. The purpose of this rule is uncertain and is not clarified in the Explanatory Memorandum
to the Act. Nevertheless, it seems impossible to deny an international Convention, to which one
is a party, its direct effect by a hierarchically lower rule of national law. It seemed unlikely that
39
40
41
42
43
44
E. VAN HOOYDONK (ed.) and F. STEVENS, Zesde blauwboek over de herziening van het Belgisch
scheepvaartrecht. Bevrachting en vervoer, 2013, www.zeerecht.be, article 6.98, p. 314 (own translation):
“Without prejudice to other grounds of jurisdiction, the Belgian courts have jurisdiction to hear claims relating
to contracts for maritime carriage to or from the Kingdom”. Such special provisions undermine the structure
of the Belgian Code of Private International, in which all Belgian conflict of law rules are intended to be
collected; it would perhaps have been better to add the provision to this Code.
E. VAN HOOYDONK (ed.) and F. STEVENS, Zesde blauwboek over de herziening van het Belgisch
scheepvaartrecht. Bevrachting en vervoer, 2013, www.zeerecht.be, article 6.99, p. 314 (own translation):
§ 1. Without prejudice to Article 6.87, this Section applies to any transport to or from a port of the Kingdom.
§ 2. The provisions of this Subsection are overriding mandatory provisions.
Article 2.6.2.2. International application (own translation)
§ 1. This subsection shall apply:
1° to any bill of lading involving the carriage of goods between ports in two different States, if:
a) the bill of lading is issued in a Contracting State; or
b) the carriage is from a port in a Contracting State; or
c) the contract contained in or evidenced by the bill of lading provides that the Hague Visby Rules or
legislation of any State giving effect to them are to govern the contract, whatever may be the nationality
of the ship, the carrier, the shipper, the consignee, or any other interested person.
Article 2.6.2.2, § 2.
The combination of Articles 2.6.2.2, § 1, b (from a Belgian port) and 2.6.2.2, § 2 (to a Belgian port) is identical
to Article 91, A, Maritime Code (own translation): “To the negotiable bill of lading, issued for the carriage of
goods in any ship of any nationality, from or to a port of the Kingdom [...]”.
Article 2.6.2.4, § 1. The Hague Visby Rules are not directly applicable (own translation).
this rule would cause problems in the practical application of the HVR, because the final result
remains the same as in the previous legislation: a very broad application of the mandatory
regime. It is precisely with regard to this scope of application that the 2021 amendment creates
an additional surprise.
The provisions listed below (own translation), which have now been amended, all concerned
private international law aspects of carriage by sea: which law is applied to an international
contract, and which court has jurisdiction in the event of a dispute?
This subject matter is as complex as it is controversial. In the new Shipping Code few major
changes were in fact made, precisely because of its sensitivity.
Article 2.6.2.2. International application (of the Hague Visby Rules)
§ 2. This subsection consists of overriding mandatory provisions.
Article 2.6.2.4. Other rules
§ 1. The Hague Visby Rules are not directly applicable.
Article 2.6.2.12. Jurisdiction
Without prejudice to other grounds of jurisdiction, the Belgian courts shall have
jurisdiction to hear actions relating to contracts for the carriage of goods by sea relating
carriage to or from Belgium.
Article 2.6.2.13. International application (of the additional Belgian rules)
[This subsection] consists of overriding mandatory provisions.
Article 2.6.2.15. Paramount clause
The applicability of this section of the Belgian Shipping Code must be mentioned on the
transport document.
D. LEGISLATIVE AMENDMENTS BY THE ACT OF 6 SEPTEMBER 2021
In the Shipping Code’s new version, Articles 2.6.2.2 § 2, 2.6.2.13 and 2.6.2.15 are abolished.
The impact of the omission of three seemingly innocent phrases is enormous. This change is
linked to the abovementioned Article 2.6.2.4 (which is retained). It removes all practical sense
from Article 2.6.2.12 (and that was probably the main intention).
The (very limited) clarifications in the Explanatory Memorandum are of an appalling standard.
The text is a mishmash of legal errors and tendentious assertions. It is reproduced here (own
translation) with a brief comment in square brackets.
“Paragraph 2 [of Article 2.6.2.2, overriding mandatory provisions] is abolished because
otherwise this would mean that this subsection applies to all carriage to Belgium and that
this cannot be derogated from by contract [this has been the case ever since the introduction
of the Hague Rules, the Brussels Bill of Lading Convention, in 1924, not only in Belgium
but in a large part of the world]. This is contrary to the purpose of the Belgian Shipping Code
to make Belgium attractive as a maritime nation [apparently by flouting mandatory liability
rules that apply uniformly in a large part of the world, and with absolute disregard for the
interests of all parties involved except the shipping companies]. Moreover, this provision
constitutes a contradiction with European law (Council Regulation (EC) No 44/2001 of 22
December 2000 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters) [plainly wrong, this Regulation – now 1215/2012, Brussels I-bis,
but apparently the draughtsmen were unaware of this detail – concerns the jurisdiction of
courts, whereas the matter discussed here concerns applicable law, a confusion of
fundamental principles]. All the more so since these provisions of the Belgian Shipping Code
are of an overriding mandatory nature”45.
About Articles 2.6.2.13 (the same as Article 2.6.2.2, § 2, but relating to the Belgian rules) and
2.6.2.15 (the paramount clause) the following story is concocted in the Explanatory
Memorandum (own translation, again with a short comment in square brackets):
“In practice, Articles 2.6.2.13 and 2.6.2.15 could put our shipping industry in a position
where Belgian law is always applicable in a very international sector [as already mentioned
above, this has been the case since the introduction of the Hague Rules in 1924] and,
moreover, this section of the Belgian Shipping Code must also be included in the bill of
lading [this has always been so in Belgian law, this is not new]. This would mean in practice
that every contract of carriage at an international level is subject to Belgian law [every
carriage to or from a Belgian port, a small nuance]. In an international sector, this is not
desirable [why not? The express purpose was to protect cargo interests and all the sectors
concerned against the omnipotence of shipowners] and an administrative burden [why?
Applicable law is not administration and Belgian law applies a widespread international
convention]. This article would disproportionately damage shipping traffic to Belgian ports
and is therefore abolished [this damage would then have occurred since 1924, and not only
in Belgium; this contention is based on nothing]”46.
The provision about overriding mandatory rules in Articles 6.2.2.2 and 6.2.2.13 is the modern
translation of the abovementioned concepts of “mandatory police law” and, possibly,
“international public order”. It corresponds with the terminology used in the Rome I Regulation,
but there is no difference in substance: in case of carriage from or to a Belgian port, Belgian
law was always applicable and parties could not derogate therefrom by making another law
applicable in the bill of lading. In this sense, the articles that have now been deleted were no
more than a confirmation of established case law that had existed for decades. This case law
relies on the provision in the original HR of 1924, that any clause that conflicts with the liability
regime of the Rules is “null, void and of no effect”47. The intention of the Convention
draughtsmen was more than sufficiently clear and no one (to our knowledge) has ever claimed
that the Hague Rules are not mandatory.
The innovation of the Belgian Shipping Code was to make this internationally and globally
recognised regime equally compulsory for carriage by sea under a sea waybill.
45
46
47
Wetsontwerp tot wijziging van het Belgisch Scheepvaartwetboek, Parl.St. Kamer 2020-2021, no. 1935/001, p.
17, Article 81.
Wetsontwerp tot wijziging van het Belgisch Scheepvaartwetboek, Parl.St. Kamer 2020-2021, no. 1935/001, p.
17, Articles 83 and 84.
Article 3, 8° HR (Brussels Bills of Lading Convention), literally reproduced in Article 91, A, § 3, 8° Maritime
Code (repealed), and now in Article 2.6.2.5, § 8 Belgian Shipping Code.
The European Regulations and the established Belgian case law remain, of course, fully
applicable, even now that their explicit confirmation has been removed from the Shipping Code,
but the extension to all contracts for carriage of goods by sea is lost.
The paramount clause in Article 2.6.2.15 (a clause souveraine in French) is traditionally
intended to make the mandatory regime contractually applicable, as a final addition so as to
(hopefully) induce courts of states that are not parties to the Hague Visby Rules to apply them
as a matter of contract. This is a classic technique that dates back to the very beginning of the
Hague Rules (the Brussels Bills of Lading Convention), which was (under the impulse of
Belgium!) a revolutionary innovation at the time. It was hoped that the Convention would be
quickly applied as widely as possible48. The Explanatory Memorandum does not mention (or
apparently the draughtsmen simply did not know) that this rule has been part of Belgian law
since time immemorial49. This provision may not have much effect anymore, since the HR and
the HVR have become such a worldwide success, but there is no reason to abolish it.
Ironically, in the section on chartering, the Mecca of contractual freedom, there is a similar
provision that seems not to have bothered anyone50.
Finally, the changes outlined here will also have a detrimental effect on certain problems of
jurisdiction. The question of which court has jurisdiction in a dispute concerning maritime
carriage has been the subject of legal trench warfare for decades. In Article 2.6.2.12, a new rule
has been introduced (outside of the Code of Private International Law), which stipulates that
Belgian courts have jurisdiction over claims relating to contracts for carriage of goods by sea
to or from Belgium. First of all, an exception is made for “other grounds of jurisdiction”. This
undoubtedly refers to the already mentioned Regulation 1215/2012, Brussels I-bis. To the
extent that this Regulation applies (generally, regarding jurisdiction of courts throughout the
EU), the Belgian national legislator no longer has any authority (sovereignty).
For all other cases, where the jurisdiction of a court of a non-EU Member State is in question,
Article 2.6.2.12 offered a simple remedy for small and medium-sized shippers, who would
otherwise be forced to litigate in every corner of the world.
If, however, the entire body of legal rules governing carriage of goods by sea is surreptitiously
downgraded to supplementary (non-mandatory) law, the provision on jurisdiction immediately
becomes useless: it may be contractually eliminated by means of a simple standard clause,
against which the co-contracting party has no recourse.
E. SOME THOUGHTS ON THESE CHANGES
The Belgian legislator has succeeded, by:
⎯ on the one hand, eliminating the direct effect of the mandatory liability regime of the Hague
Visby Rules in Belgian law (Article 2.6.2.4); and
48
49
50
See on the paramount clause, inter alia: J.F. WILSON, Carriage of Goods by Sea, Harlow, Pearson, 2010,
183-186; G. TREITEL and F.M.B. REYNOLDS, Carver On Bills of Lading, London, Sweet & Maxwell, 2005,
nos. 9-075 - 9-077; W. TETLEY, Marine Cargo Claims, I, Quebec, Thomson Carswell, 2008, 9-10.
See Article 91, B, Maritime Code (repealed) (own translation): “In each bill of lading issued in accordance
with the foregoing provisions it shall be stated that the ‘rules of Article 91’ apply to it”.
See Article 2.6.1.69, Contract of carriage (own translation): “The charterparty is presumed to contain a clause
according to which bills of lading are subject to the Hague Visby Rules”.
⎯ on the other hand, expressly depriving the entire body of rules regarding carriage of goods
by sea of its status of “overriding mandatory rules” (within the meaning of the Rome I
Regulation),
to completely disable, for the first time in almost 100 years, the mandatory liability regime of
the Hague Visby Rules, as contained in Belgian maritime law, at least on paper.
These amendments are incompatible with both the HR and the HVR as such, and it is clear,
from the above-described negotiations on the Rotterdam Rules, that there is no international
support at all for the “reinstatement” of contractual freedom.
It remains to be seen whether the Belgian courts will simply accept that the HVR as an
international Convention are sidelined by removing their direct effect in national law. It is also
unlikely that the legal position of the third-party holder of a bill of lading will be affected,
because this is based on the European PIL Regulations and on the status of a bill of lading as a
document of title.
In terms of a change of mentality, however, the current action is quite remarkable. From being
a worldwide pioneer of internationally harmonised maritime law in the first half of the 20th
century, Belgium has apparently turned into one of its gravediggers.
For all sectors involved in maritime transport, except the shipping companies, these
amendments are a serious disappointment. None of these sectors were consulted51 and their
complaints, from the moment the first draft was published, were not heeded. The useful
extension of the classic liability regime to carriage under a sea waybill is completely reversed.
As for the shipping companies, ships under Belgian flag do not often call at Belgian ports. The
only companies that will be pleased with these new provisions are the large (oligopolistic)
foreign shipping companies (mainly container ship operators) that call at Belgian ports in liner
services. These shipping companies have long been fighting a bitter battle to have the
jurisdiction clauses in their transport documents generally recognised and applied. Nowhere in
the Explanatory Memorandum is it clarified, what fantastic economic advantage this would
bring to Belgium as a “maritime nation”.
The aftertaste of this unfortunate result becomes even more bitter, when one reads the
preparation of the so-called B2B Act52. This Act, for the first time, sets a limit to contractual
freedom between companies; it prohibits a considerable number of contractual terms that are
considered to be overly burdensome or unfair. The Explanatory Memorandum to this Act
clearly explains, inter alia, the purpose of these provisions and the role of the rules of private
international law (own translation):
51
52
According to the Explanatory Memorandum, the only market player consulted is the Royal Belgian
Shipowners’ Association (KBRV). See Wetsontwerp tot wijziging van het Belgisch Scheepvaartwetboek,
Parl.St. Kamer 2020-2021,, no. 1935/001, p. 4 (own translation): “The majority of these amendments were
discussed in various consultation meetings between the Federal Public Service for Mobility and Transport [the
Ministry of Transport] – Directorate General of Shipping and the sector, i.e. the Royal Belgian Shipowners’
Association (KBRV). The aim of this consultation was to adapt the Belgian Shipping Code so as to make
Belgium even more attractive as a maritime nation”.
Act of 4 April 2019 amending the Code of Economic Law (Wetboek Economisch Recht, WER) with regard to
abuses of economic dependence, unfair contract terms and unfair market practices between companies, BS 24
May 2019 (insertion, in Book VI WER, of a Title 3/1. Contracts concluded between undertakings (Articles
VI.91/1 – VI.91/10).
“The provisions proposed [...] are protective provisions aimed at regulating public
economic order. Such legal provisions are mandatory and belong to what is commonly
referred to as the category of ‘police rules’. The European PIL Regulations (mainly Rome
I and Rome II) regulate the PIL aspect with regard to the applicable law within the
European Union. The Rome I Regulation (Regulation (EC) No 593/2008 of the European
Parliament and of the Council of 17 June 2008 on the law applicable to contractual
obligations) regulates the applicable law in contractual obligations. Article 9 of the Rome
I Regulation, which refers to overriding mandatory provisions, should be noted in this
respect. Overriding mandatory provisions prevail over provisions whose application
results either from a choice of law by the parties or, in the absence of such a choice, the
normal ‘lex contractus’ (generally the law of the country where the party who is to effect
the performance which is characteristic of the contract has its habitual residence). Again,
these mandatory rules cannot be derogated from ‘by contract’”53.
Why a legislator, who implements such a far-reaching general restriction on the contractual
freedom of companies as the B2B Act of 2019 (with all the controversy this has entailed),
simultaneously does exactly the opposite in the maritime transport sector (where contractual
freedom has been restricted for decades), is a complete mystery.
V. CONCLUSION: CARGO INTERESTS SACRIFICED ON THE ALTAR OF THE MYTHICAL
FREEDOM OF CONTRACT
The new Belgian Shipping Code version 2019 contained few novelties relating to the carriage
of goods by sea. This was not surprising, as Belgium has for a long time past been a party to
the leading international Convention on the subject, the Hague Rules, including the later Visby
Amendments. The most striking change was the extension of the Convention’s material scope
of application, which only relates to carriage under a bill of lading, to carriage under a sea
waybill.
For the rest, the status quo was largely maintained. On the thorny issue of jurisdiction, cargo
interests (other than third party holders of a bill of lading, who were already protected) were
given a helping hand by generally granting jurisdiction to the Belgian courts over disputes
concerning carriage to or from a Belgian port. Of course, this rule must give way to Regulation
Brussels I-bis, but this only concerns the prorogation of jurisdiction in favour of courts in EU
member states. Jurisdiction clauses in favour of states such as China, Taiwan and the United
States, which are popular with shipowners, would then no longer be exclusive, and recently,
due to Brexit, this would also apply to the United Kingdom54.
With the current amendments, the limited innovations of the Belgian Shipping Code regarding
carriage of goods by sea have been almost completely undone. As far as private international
law is concerned, the clock is turned back to 1978, when the Visby Protocol (with its own scope
53
54
Wetsvoorstel tot wijziging van het Wetboek van Economisch Recht wat het misbruik van een aanmerkelijke
machtspositie betreft, Parl.St. Kamer, 2018-2019, no. 1451/003, pp. 34-35.
Unless the UK becomes a party to the Lugano Parallel Convention (EVEX II, Convention on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters, OJ L-147/5, 10 June 2009, in
force between the EU, Denmark, Iceland, Norway and Switzerland). The UK has applied for membership, but
accession is not possible without the consent and cooperation of the EU and its Member States, which are also
parties to the Convention. It is possible that the EU may wish to shape the civil procedure regime with the UK
outside the Convention.
of application) entered into force in Belgian law. At that time, the legislator forgot to adapt the
old version of Article 91 Maritime Code, the implementation of the original HR, causing a
significant discrepancy between the obsolete national rules and the HVR as a Convention with
direct effect. This “mistake” was corrected only in 198955.
Why, and on whose initiative, these amendments were made remains a mystery. The summary
objection in the Explanatory Memorandum, that the new rules “could not be contractually
deviated from”, does not make sense. It is equally unclear why a Code, the drafting of which
took more than 10 years, should suddenly be amended on crucial points at breakneck speed, in
back rooms, without any consultation with all the sectors involved (except for the shipping
companies) and without any substantive opinion from the Raad van State (the body that offers
expert advice on new legislation). Hence the somewhat provocative title of the present
contribution.
In the most optimistic view, the HVR as such would retain their direct effect (as an international
Convention), as well as their mandatory character56. Belgian case law on jurisdiction clauses in
bills of lading (a third party holder in good faith is not bound by them) would also remain intact,
to the extent that it is based on the HVR and the European PIL Regulations.
Even in this optimistic view, the whole chapter on carriage of goods in the new Belgian
Shipping Code, which is after all a core subject matter of maritime law, is a waste of effort.
55
56
Act of 11 April 1989, BS 6 October 1989.
Via Article 3, 8° HR (Brussels Bills of Lading Convention), still contained in Article 2.6.2.5, § 8 Belgian
Shipping Code.