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08 August 2012
On June 2 2012 a new law was passed that establishes an investigative body for maritime casualties. The legislation brings with it certain obligations and criminal penalties for those involved in maritime incidents. Ships flying the Belgian flag and all ships calling at Belgian ports will finance the new institution, the Federale instantie voor Onderzoek van Scheepvaartongevallen (FOSO).
FOSO was established to implement EU Directive 2009/18/EC. This directive is intended to reduce the number of marine casualties and incidents by ensuring investigation and analysis of the causes of marine casualties (Article 2). As with many other international maritime safety regulations, this European framework mirrors international public maritime law as set forth in regulations of the United Nations(1) and the International Maritime Organisation.(2)
An autonomous and functionally independent federal body acting under government supervision, FOSO will have competence to investigate marine casualties and incidents. An investigation by FOSO will be mandatory where there is a "severe marine casualty". The total loss of a ship, loss of life or severe pollution will be considered severe marine casualties. However, investigations will be limited to casualties meeting at least one of the following criteria:
FOSO will have the power to detain ships and any objects involved in the incident. It may also destroy objects for public health and safety reasons. It is forbidden to remove any object involved in an incident without the permission of FOSO.
EU Directive 2009/18/EC acknowledges that some incidents are too minor to be discovered by the authorities. A solution to this problem is the requirement that EU member states implement a rule that the parties involved must notify their respective investigative body of any casualties or incidents without delay. However, Belgium has limited the obligation to notify to the captain, owner, shipper or manager of any Belgian ship involved in an incident.(3)
The importance of this obligation to report maritime casualties and incidents should not be underestimated, as the scope of a 'marine casualty' is very wide; it includes any "material damage to a ship". Moreover, a ship flying the Belgian flag must provide FOSO with all relevant information and submit copies of any related documents to the authorities. Every person involved in the incident must cooperate with the investigation or else risk severe criminal penalties.
It is expected that this new legislation will create a delicate issue over the question of whether evidence from such official inquiries may be used to determine court costs and liability. In accordance with the directive, the new law has opted to keep the two aspects separate: FOSO investigations are intended not to determine liability or guilt, but rather to analyse casualties, suggest reconstruction methods and follow up on the implementation of measures imposed to avoid similar incidents (Articles 5 and 6). Therefore, information obtained by FOSO is not public (Article 26, Section 2), and the use of reports and safety recommendations as evidence is explicitly prohibited "in criminal disciplinary or civil proceedings" (Article 29).
The law applies retroactively to incidents since June 17 2011 (Article 35). However, first enquiries will have to wait, as FOSO itself has yet to begin operations.
The new law foresees the establisment of a fund to finance FOSO. Managers(4) of a ship flying the Belgian flag will be required to contribute directly to the fund by paying a certain amount per gross registered ton. Foreign ships calling at a Belgian port will pay indirectly – Belgian ports will have to contribute annually to the fund in accordance with the total foreign registered tonnage calling at their port. The amount of the annual contribution has been fixed at €0.126 per gross ton with a minimum of €25 and a maximum of €1,500 per Belgian vessel. This will presumably also have an indirect impact on port charges.
For further information on this topic please contact Pieter Neels or Dirk Noels at Kegels & Co by telephone (+32 3 257 1771), fax (+32 3 257 1474) or email (firstname.lastname@example.org or email@example.com).
shipowner or the bareboat charter".
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