20/09/19

A more user-friendly Shipping Code in the pipeline?

The new Maritime Code draws attention to the important role of self-regulation in the shipping sector, and more specifically to customs in the shipping and port sectors. From September 2020, this form of "self-regulation" will be legally supported.


Leeward

The "old" Law of the Sea did not contain provisions on the sources of Belgian shipping law, nor did it provide a legal framework for the self-regulation of shipping law (i.e. the habits, customs, general conditions and professional guidelines). However, these legal sources play an important role in the general transport sector (e.g. "The regulations and customs of the Port of Antwerp"; the "FOB-Zeebrugge Resolution" or "The general terms and conditions applicable to the handling of goods in the ports of Bruges/Zeebrugge").

The new Maritime Code changes this in one of the first provisions. Art. 1.1.2.4, § 1 Maritime Code provides for this:

"The customs and general principles of maritime law are special sources of maritime law".

In other words, the new Maritime Code recognises customs as a source of law. The next question is, when is there a 'use' within the meaning of the Maritime Code?

The Maritime Code defines "use" as a rule which has found general or almost general application in the industry or place concerned. A rule or custom will therefore only be recognised as a use after it has become general in practice. A practice which is merely common practice between the parties is therefore not a use.

The fact that certain undertakings would not follow the rule does not prevent it from being a use; it is sufficient that the rule has been generally or almost generally applied. Moreover, the use may be well established in the industry, nationally, but also at regional or local level. In practice, for example, port uses are usually local in nature.

The (maritime) customs will complement the agreement between the parties and contribute to the interpretation of the agreement. The use thus becomes part of the agreement, unless the parties deviate from it. In addition, the customs may deviate from the law, unless the law in question is of mandatory law or public order.

Leeward

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