On 6 October 2015, off the coast of Zeebrugge, a collision occurred between the Flinterstar and the Al Oraiq. The Al Oraiq sailed on to Zeebrugge. The Flinterstar suffered too much damage and was placed on a sandbank just outside the sailing route. Onego Shipping & Chartering BV (Onego) was its charterer.

The Belgian State and the other defendants requested a guarantee on 7 October 2015. The claimants constituted a limitation fund. By order of 14 October 2015, the Chair of the Commercial Court in Antwerp permitted the claimants to constitute a wreck fund. The Government made claims in this limitation fund (wreck fund). The owners of the Al Oraiq also provided a guarantee of more than EUR 40,000,000 in favour of the Government.

By summons of 16 October 2015, the Belgian State claimed that the claimants should be ordered to salvage the wreck. The second and third defendants intervened voluntarily in these summary proceedings. On 8 December 2015, the Commercial Court in Ghent, Bruges Division, held in favour of the Belgian State. Onego appealed. On 22 February 2016, the Seventh Chamber of the Court of Appeal in Ghent confirmed the contested judgment, in so far as it ordered the claimants to proceed with the salvage of the Flinterstar, and recommended that within two-and-a-half months an agreement should be concluded with a company that could perform this task, subject to a penalty of EUR 300,000 per day of delay. The claimants appealed for cassation on the basis of a violation of arts 1, 2, 6, 7, 11, 12, 13, 14 and 15 of the LLMC 1976, approved in Belgium by the Act of 11 April 1989 on Approval and Implementation of Various International Maritime Conventions.

The claimants argued that under art 47 of the Maritime Code, the shipowner may limit its liability in accordance with the provisions of the LLMC 1976. In accordance with art 1.1 of the Convention, shipowners and salvors may limit their liability for the claims referred to in art 2 in accordance with the rules of that Convention. In accordance with art 2.1.d, claims with regard to the completion, removal, destruction or rendering harmless of a sunk, wrecked, stranded or abandoned ship, including anything that is or has been on board such ship, as well as claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship under art 2.1.e, are subject to limitation; while claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit its liability in accordance with this Convention, and further loss caused by such measures, are subject to limitation under art 2.1.f. In accordance with art 2.2 of the Convention, the claims referred to in art 2.1 are subject to limitation of liability whether they are brought by virtue of an agreement, by way of recourse, or by indemnification. In accordance with art 11 of the Convention, any person held liable may establish a fund with the judicial or other competent authority in any State Party in which proceedings are brought with respect to restrictive claims. The fund is formed in the amounts referred to in arts 6 and 7 plus the interest thereon, calculated from the date of the incident that gave rise to the liability, up to the date on which the fund is constituted. Any fund thus constituted is exclusively intended for the settlement of claims in respect of which limitation of liability can be invoked. In accordance with art 13.1 of the Convention, when a limitation fund has been established 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 in respect of any other assets of a person by or on behalf of whom the fund was constituted. In accordance with art 14 of the Convention, the rules governing the formation and distribution of a limitation fund, as well as any related procedural rules, are governed by the law of the State Party to the Convention in which the fund is constituted.

By the Act of 11 April 1989 (the Wrakkenwet/Wrecks Act), the legislator made use of the reservation possibility provided in art 18.1 of the Convention to exclude limitation of liability under arts 2.1.d and 2.1.e of the Convention. In accordance with the Convention, there is no limitation of liability for salvage of a seagoing vessel under Belgian law. However, the legislator has explicitly decided with the Wrecks Act that with regard to shipping accidents, a special regime will be developed for seagoing vessels. In particular, a separate limitation fund is provided for. The preparatory works for the Wrecks Act make it clear that the legislator was opposed to unlimited liability towards the Government:

Article 18, paragraph 1 of the LLMC Convention allows the States to formulate a single reservation on ratification. As a result, the claims stated in Article 2, paragraph 1, littera d and e of the application of the limitation of liability which is regulated by that Convention, has been excluded by some acceding countries, including France. Unless the national law introduces a derogation in this respect, these claims are subject to unlimited liability.

This is not the intention of the Government, which would also jeopardise the commercial attractiveness of Belgian ports. Art 18.1 of the Convention allows us to reconcile the interests of shipping with those of the Government, which is responsible for the clearing or keeping clear of public waters in the general interest of the freedom and safety of shipping.

This interest of the Government consists mainly in the fact that the person who is held liable for the events in which its ship or that of another owner is sunk or stranded, either removes that ship itself or advances the costs and pays for the measures and operations - to be carried out or ordered by the Government - whereby the public fairway is made free and safe as quickly as possible in the general interest of shipping.

Held: Cassation.

Pursuant to art 13 of the Wrecks Act, the Government may require the owner or the charterer of a vessel that has run aground or sunk to be refloated and removed. The Government can also do this ex officio at the risk of the owner and liable third parties in the cases referred to in art 14 of this Act. If the Government decides to proceed with the salvage on its own initiative, it may, pursuant to art 15 of the Wrecks Act, require in advance that the owner or liable third parties advance the sum it deems sufficient to cover the costs of the salvage. In that case, according to art 15.2, the amount claimed from the owner of the stranded or sunken vessel may not exceed the amount to which the owner can limit its liability on the basis of art 18 of the Act.

Pursuant to art 18, the owner of a seagoing vessel, who, under art 16, is liable for payment of the costs, may thereby limit his liability to the amounts specified in that provision. Pursuant to art 18.4, the liable owner is not entitled to limit its liability if it is proven that the damage is the result of its personal act or omission, committed either with the intent to cause such damage, or recklessly and with the awareness that such damage is likely to result.

It follows from these provisions that in the event of a limitation of liability in accordance with art 18, the Government cannot oblige the shipowner to salvage the vessel.

In ruling that it follows from art 13 that the shipowner may be obliged to remove the vessel, even if it has limited his liability in accordance with art 18, the Court of Appeal did not justify its decision according to law. The contested judgment is therefore annulled. The case is referred to the Antwerp Court of Appeal.