The defendant supplied bunkers to the Maltese-flagged vessel Blanc, and later arrested the vessel for non-payment. The plaintiff shipowner argued that the ship arrest was null and void, because the arrest order failed to identify the debtor against whom the attachment was imposed. The Judge at first instance ruled that the seizure was valid because it was an seizure requested by the supplier of bunkers to the seized ship. It was sufficient that there was an allegation of a maritime claim and designation of the ship, so that the information provided in the petition was sufficient for a precautionary attachment to be allowed on the ship.

The plaintiff appealed to the Antwerp Court of Appeal, arguing that the defendant filed a 'claim in rem', more specifically a claim against a ship, which is not possible under Belgian law.

The Court of Appeal rejected this argument, noting that the Judge at first instance had stated that: 'In accordance with Article 1469, §1, of the Judicial Code, the ship to which the maritime claim relates may be seized. It is thereby possible that a seagoing vessel to which a particular sea claim relates may be seized without the owner of that ship being the debtor of the sea claim in question.' The defendant's claim concerns deliveries of bunkers to the seagoing vessel Blanc, the vessel that was seized. Article 1468, k, of the Judicial Code (which implements art 1.1.k of the Arrest Convention 1952 in Belgium) stipulates that a maritime claim means a claim arising from one of the following causes: 'Deliveries, wherever, of goods, materials to a ship for its management or maintenance'. Pursuant to the Omala judgment (Court of Cassation, 10 May 1976), the seagoing vessel to which the maritime claim pertains can be seized in respect of a claim for which only the charterer is responsible. The explanation of the plaintiff with regard to the rules on precautionary attachment of seagoing ships, as governed by the Arrest Convention 1952, is not relevant in this case. The considerations of the plaintiff in connection with the claim 'in rem' are also irrelevant and, moreover, unfounded.

There is no contradiction between art 9 of the Arrest Convention 1952 and arts 1468-1469 of the Judicial Code, and art 9 of the Convention is not related to the possibilities and conditions of precautionary attachment of a seagoing vessel, as provided for in the Convention: (Heinrich, Court of Cassation, 1 October 1993, RHA 1994, 132 (CMI1124)). The Court of Appeal confirmed the ship arrest.

The plaintiff appealed in cassation, arguing that while, in principle, it is sufficient for the attachment creditor to submit a maritime claim, if there is a dispute about this, the attachment Judge must decide whether the existence of the claimed claim is certain and due and payable and is established or open to a provisional estimate (art 1415 of the Judicial Code), or at least whether this claim appears sufficiently plausible (art 1415, 1468 and 1469 of the Judicial Code). A sea claim exists only if it is directed against a specific debtor. Articles 1468 and 1469 of the Judicial Code do not purport to make the ship itself the debtor of the claim. The attachment creditor who invokes a maritime claim must therefore designate the debtor of his claim. If it fails to do so, it will fail to designate an essential part of his claim and fail to meet the requirement to bring forward a maritime claim. If the debtor is not appointed, no attachment can be made. Furthermore, if the debtor is not identified, the shipowner will be made unable to dispute the existence of the maritime claim and the Court will be prevented from examining whether the sea claim appears sufficiently plausible.

The plaintiff further criticised the decision of the attachment Judge that an agreement had been reached between the parties regarding the issue of the bank guarantee and that it was not up to the Court to change the terms or conditions thereof. The plaintiff filed a claim at first instance and again on appeal that the bank guarantee given on 2 November 2002 should be refunded and replaced by a bank guarantee with a different text.

The plaintiff argued that, in accordance with art 5 of the Arrest Convention 1952, '[t]he Court or other appropriate judicial authority within whose jurisdiction the ship has been arrested shall permit the release of the ship upon sufficient bail or other security being furnished, save in cases in which a ship has been arrested in respect of any of the maritime claims enumerated in article 1, (o ) and (p). In such cases the Court or other appropriate judicial authority may permit the person in possession of the ship to continue trading the ship, upon such person furnishing sufficient bail or other security, or may otherwise deal with the operation of the ship during the period of the arrest.'

In this respect, the plaintiff argued that it had given a guarantee under art 5 of the Convention because the fully loaded ship had to be able to leave the port quickly. The plaintiff further argued that the guarantee was issued subject to all rights, that is to say subject to the right to dispute the validity of the attachment and/or to reclaim the guarantee as given and/or have it changed.

Held: Appeal dismissed.

Pursuant to art 1470 of the Judicial Code, the warrant for attachment contains the statements prescribed in art 1389. Article 1389, 2 °, of the Judicial Code provides that under penalty of nullity, the attachment order contains the name, first name and address of the debtor against whom the attachment is made. Articles 1468 and 1469 of the Judicial Code determine which seagoing vessels are subject to precautionary seizure as security for a maritime claim and which are the maritime claims that may give rise to this seizure. In accordance with the various parts of art 1469, the ship to which the claim relates may be seized, regardless of whether the owner or another person is responsible for the maritime debt within the meaning of the said art 1468. If the attachment is made for a maritime claim for which a third party is responsible, the attachment order complies with the requirement of art 1389, 2 °, if, in addition to the description of the seagoing vessel, it either contains the name and the address of the debtor of the maritime claim, or indicates the name and address of the owner of the seagoing vessel.

The judgment shows that:

• the defendant delivered bunkers to the Blanc and these supplies remained unpaid;
• the defendant, by writ of 2 November 2002, has placed the Blanc under arrest;
• the seizure order states the details of the ship and the name and place of residence of the shipowner.

On the basis of these findings, the Court of Appeal correctly held that the information stated in the seizure notice of 2 November 2002 allows the ship and the owner to be identified so that the seizure notice is legally valid.

In accordance with arts 1468 (k) and 1469, §1 and §2, of the Judicial Code, a claim for deliveries of goods or materials to a ship constitutes a maritime claim for which the creditor can seize the seagoing vessel by protective seizure to which those supplies relate, irrespective of whether the owner or another person is responsible for the debt.

The Court of Appeal established that there was an agreement between the parties regarding the replacement security, that the defendant was obliged to lift the attachment in accordance with art 5 of the Arrest Convention 1952, and that the attachment Judge was therefore not authorised to make any changes to the text. The Court thus indicated the factual information on which it based its decision, thus rejecting the contradictory and other factual information put forward by the plaintiff in its submission. The Court established that the formulation of the guarantee to lift the attachment arose from the agreement between the parties. That finding formed the basis for the Court for its decision that the wording of the guarantee can no longer be changed by the Court.