This was an appeal in cassation against a judgment delivered on 27 June 1991 by the Antwerp Court of Appeal. The plaintiff argued violation of arts 1413 and 1469 of the Gerechtelijk Wetboek/Judicial Code, arts 46 of the Zeewet/Maritime Code, arts 3.1, 3.4 and 9 of the Arrest Convention 1952, and arts 2 and 8 of the MLM Convention 1926, because the judgment under appeal, confirming the order of the first Court, after having established that the defendant does not have a claim against the plaintiff, nevertheless declared the plaintiff's claim [for release of the vessel] brought before the arresting Judge to be unfounded, on the ground that conservatory ship arrest must comply with the provisions of the Arrest Convention 1952, which was incorporated into Belgian law by the Law of 4 December 1961 and is now included in arts 1467-1480 of the Judicial Code.

Held: Appeal in cassation dismissed.

The findings of the judgment show that the plaintiff had chartered its ship Heinrich to BV Bacol-Line, that the charterer had had bunker oil delivered by the defendant, and that the defendant had placed a precautionary attachment on the ship in order to secure its claim. The judgment establishes that the parties agree that the claim is a maritime claim, as provided for in art 1.1 of the Arrest Convention 1952 and in art 1468 of the Judicial Code.

Articles 1468 and 1469 of the Judicial Code, in so far as they contain a specific system deviating from art 1413 of the Judicial Code, determine which seagoing vessels are subject to precautionary seizure as security for a maritime claim and which are the maritime debts that can legally result in such seizure. In accordance with the various parts of art 1469, the ship to which the maritime claim relates may be arrested, irrespective of whether the owner or any other person is responsible for the maritime debt within the meaning of art 1468.

Article 1469(2) of the Judicial Code does not derogate from the provisions of art 1469(1) regarding the seizure of the ship to which the maritime debt relates, but indicates, on the one hand, that other ships owned by the charterer by demise or the other persons responsible for the maritime debt may also be seized, and, on the other hand, that when said charterer or a person other than the owner of the ship is responsible for the maritime debt, seizure may not be placed on ships of the owner other than the one to which the maritime debt relates.

Under Article 9 of the Arrest Convention 1952, no provision of the Convention may be regarded as creating a right to a claim which would not exist outside the provisions of the Convention under the law applicable to the dispute, and the Convention does not grant to plaintiffs any maritime liens which do not exist under such law or under the MLM Convention 1926, if the latter is applicable. That provision states that the Arrest Convention 1952 does not create any new claims or rights of action and it is not related to the possibilities and conditions of precautionary seizure of a seagoing vessel provided for in the Convention. The judgment does not confer any personal claim against the shipowner or a resale right on its ship.

The rule that, in accordance with art 46 of the Maritime Code, the shipowner is not liable on the substance for the obligations entered into by the charterer does not preclude, in the conditions laid down by art 1469 of the Judicial Code, that a creditor may arrest the ship to which the maritime claim relates.

The judgment, which, on the basis of the specific provisions of art 1469 of the Judicial Code, considered that a precautionary attachment was possible in the circumstances specified by the judgment and that art 9 of the Convention did not preclude it from stating that this precautionary attachment would be allowed, justifies its decision according to law.