On 16 March 2012, Euroports Terminals Leftbank NV was loading a barge with coils of steel wire at its quay number 1205 in the port of Antwerp. This quay number 1205 is part of the concession granted to NV Westerlund Group (Westerlund) by the Gemeentelijk Autonoom Havenbedrijf Antwerpen, the defendant in cassation. The latter made its rights available to SA Euroports Terminals Leftbank (Euroports). During loading, the cargo came loose, the ship listed, took on water, and eventually sank together with the cargo.

By an order of 19 March 2012 by the President of the Commercial Court in Antwerp, the plaintiff in cassation was allowed to form a limitation fund in the amount of EUR 47,300 plus interest and costs, or EUR 57,621.25 in total, and a liquidator was appointed. The limitation fund was constituted by a decision of 26 April 2012.

By a writ served on 13 April 2012, Euroports and Westerlund summoned the defendant in cassation in summary proceedings regarding the latter's order to remove the wreck of the sunken inland vessel and salvage the cargo within eight days of service, subject to a penalty payment of EUR 20,000 per day of delay. By a writ dated 17 April 2012, the defendant in cassation proceeded to summon the plaintiff in cassation, the owner of the barge in question, to intervene and indemnify, and remove and salvage the wreck and the cargo within six days after service of the writ and subject to forfeiture of a penalty of EUR 20,000 per day of delay. In cassation, the defendant also filed a counterclaim against Euroports and Westerlund for the clearance of the wreck and the cargo, also subject to a penalty payment.

In a decision of 8 June 2012, the President of the Commercial Court in Antwerp, sitting in summary proceedings, decided as follows:

• the main claim is unfounded;
• the counterclaim is unfounded;
• the direct claim of the defendant in cassation against the plaintiff for cassation is well-founded and the plaintiff is ordered to clear the ship and the cargo within 12 days after service, subject to forfeiture of a penalty of EUR 2,500 per day of delay.

This decision was served on the plaintiff in cassation at the request of the defendant in cassation on 11 June 2012. Plaintiff in cassation then appealed to a bailiff's writ dated 25 June 2012. However, in view of the fact that the decision was enforceable and in view of the penalty that was linked to it, the plaintiff in cassation proceeded with removal of the ship in accordance with a quote obtained from Mammoet Maritime. The quote amounted to EUR 59,750 for lifting the ship onto a barge or pontoon, and EUR 11,250 for the storage of the cargo, plus the daily price of the barge and additional costs.

Before the appellate Court, the plaintiff in cassation claimed that the indemnification claim and the direct claim against it for salvage of the ship should be declared inadmissible, or at the very least unfounded, and that the penalty payment imposed should in any event be revoked. The plaintiff in cassation further claimed that the defendant in cassation should be ordered to reimburse the costs which it already had to pay for the salvage of the ship, which were provisionally estimated at EUR 100,000.

The contested judgment handed down by the Court of Appeal in Antwerp on 14 August 2012 declared the main appeal of the plaintiff in cassation and the cross-appeal of the defendant in cassation admissible, declared the appeal unfounded and ordered the plaintiff to pay the costs of its appeal in cassation. The plaintiff then appealed to the Court of Cassation, challenging the judgment under appeal, in so far as it, in view of the limitation fund formed by the plaintiff in cassation: 1) exceeded its jurisdiction for interim relief; 2) prejudiced the substance of the case; and 3) disregarded the authority of res judicata (the earlier decision regarding constitution of the limitation fund). The plaintiff raised the question whether a shipowner can be ordered in summary proceedings to proceed with the salvage of its sunken ship, subject to a penalty payment, after it has been allowed by a decision to form a limitation fund and when, as in in the present case, the costs of the salvage exceed the amount of that limitation fund.

Held: Appeal dismissed.

The Attorney-General delivered an opinion recommending that the appeal in cassation be dismissed (see ECLI:BE:CASS:2014:CONC.20140123.3, from which the summary of the facts above is also taken). The Attorney-General noted that in accordance with art 1.1 of the LLMC 1976, approved by the Act of 11 April 1989 (BS, 6 October 1989, err, BS, 8 December 1990) shipowners may limit their liability for the claims referred to in art 2 in accordance with the rules of this Convention. Any person held liable may, in accordance with art 11 of the LLMC 1976, form a limitation fund up to the amounts specified in arts 6 and 7 of the Convention applicable to the claims for which that person may be liable, which shall be exclusively intended for the satisfaction of claims in respect of which limitation of liability can be invoked. Under art 13.1 of the LLMC 1976, where a limitation fund is constituted in accordance with art 11, a person who has made a claim against the fund is not permitted to exercise any right in respect of such claim against any other assets of any person by or on behalf of whom the fund is formed. Article 273.1 of the Maritime Act stipulates that, subject to arts 273.2-4, the provisions of arts 1-15, save for art 6.5, of the LLMC 1976 also apply to inland vessels. According to art 273.2, for the purpose of art 273.1, the term 'ship', where it appears in the indicated articles, is replaced by 'inland vessel'. Pursuant to art 13 of the Act of 11 April 1989 concerning the approval and implementation of various international Acts relating to maritime transport (the Wrakkenwet or Wrecks Act), the owner, master or skipper of a vessel that has run aground or has sunk must recover and remove it - including everything that is or has been on board, in particular the cargo - to the place designated for that purpose by the government.

The plaintiff in cassation's plea is based on the assumption that the creation of a limitation fund in accordance with art 11 of the LLMC Convention excludes the application of art 13 of the Wrakkenwet. The obligation imposed in preliminary relief proceedings to proceed to salvage the sunken inland vessel would, according to the plaintiff in cassation, also constitute a violation of art 15.2 of the Wrakkenwet. This legal provision refers to the intervention options of the government and more specifically to art 14.1 of the Wrakkenwet, which provides that the competent authority can itself salvage the vessel and the cargo and remove them from the public domain, and take the necessary measures to to guarantee the safety of shipping and to protect the maritime environment against pollution, if the owner, captain or skipper does not proceed to salvage his vessel, or in urgent cases. Article 15 of the Wrakkenwet then allows the government to demand an advance payment or a guarantee from the owner or from the person who could be liable (or from their respective insurers) before proceeding with salvage or taking measures.

The Court of Cassation agreed with the Attorney-General, holding that the decision of the Judge examining the apparent rights of the parties without adjudicating on the merits of the parties' rights did not violate the substantive law that the Judge took into account in its assessment. The appeal Judge correctly ruled that:

• pursuant to art 13 of the Wrakkenwet, the owner of a sunken vessel is obliged to raise and remove this vessel, including everything that is or has been on board, in particular the cargo;
• the obligation under art 13 of this Act to refloat and remove the vessel does not constitute a final assessment of the legal position of the parties;
• the constitution of the limitation fund on an application of the LLMC 1976, does not prejudice this, since the problem of limitation of liability will be the subject of a debate on the merits.