Areas of practice
Benoît’s practice focusses on
- drafting security interest instruments (pledge, mortgage, etc.)
Dry Shipping law
- Ship arrest (read more)
- Ship mortgage and foreclosure, judicial sale (read more)
- Sale, lease, sale and leaseback
- Containers (read more)
- c/p and custom made service agreements
Wet Shipping law
- Collision (read more)
- Cargo claims
Other transport modes: Road and Rail
Yachting (read more)
Liability and insurance (read more)
General Commercial and Corporate (read more)
Dispute Resolution: negotiation, settlement, litigation and arbitration
Enforcement of judgements and awards (read more)
Benoît Goemans developed a vast experience in the collection of receivables through arresting ships. Belgium hosts several sea ports, such as Antwerp, Europe’s second largest harbor where 15,000 ships call every year, Ghent (Gent), Oostende (Ostend) and Zeebruges (Zeebrugge).
Ship arrest in Belgium (in aforementioned ports or on the River Scheldt) allows the arrest of a ship provided the claim to secure is a maritime claim in the meaning of the 1952 Ship Arrest Convention. According to constant case law, a creditor can arrest a ship to secure a maritime claim even if the shipowner is not the debtor of the claim, provided the claim is related to the ship to arrest. The claim should not necessarily be in relation to the ship, as sister ship arrests are also permitted as provided for in the 1952 Convention.
If you have an outstanding maritime claim, you may want to read more about the abilities of a recovery in Belgium in our February 2018 bulletin https://gdsadvocaten.be/maritime-claims-collection-ship-arrest/ , or just call +32 231 54 36 or mail to benoit.goemans@GDSadvocaten.be .
Ship mortgage and foreclosure, judicial sale
Benoît Goemans assists in the drafting of local mortgage deeds and in the registration thereof.
Benoît Goemans has been appointed by the mortgagees in most of the ship foreclosures in Belgium over the last two decades. He masters the do’s and dont’s to save every single day in the sales process, to ensure a trouble free sale and post sale situation as well as the best possible sales price.
- authored the standard book on Maritime Liens and Mortgages: (« Privilèges et hypothèques maritimes et fluviaux », Répertoire Notarial, Larcier, Bruxelles, 2009) ;
- authored Judicial Sale of Ships in Belgium, Maritime Law Handbook, III, Kluwer Law and Taxation Publishers, Boston, Deventer and International Bar Association, 1998 ;
- prepared an amendment to the Belgian Code of International Private Law to avoid issues with foreign insolvency orders, which the Belgian legislature has adopted in 2014. Also see: https://gdsadvocaten.be/insolvency-and-ship-mortgage/
- participated in the preparation of the Draft International Convention on Foreign Judicial Sales of Ships and their Recognition, adopted at Hamburg in 2014 (as a member of the IWG and ISC of the CMI on Judicial Sale)
While multimodal transport containers have been used already since 1830 (such as by the Liverpool and Manchester Railway) the modern container was developed by trucking company owner Malcom McLean in 1955.
Nowadays, no less than 17 million shipping containers are in use around the globe. Benoît has a wide experience in various legal aspects in relation to containers, whether in respect of cargo claims, container demurrage, investment, sale purchase, sale and lease back, lease, container recovery (by lessee when lessor bankrupts), contingency insurance, investment demurrage, loss or damage to the container and the cargo contained therein, investment, lease recovery from depots, terminals etc. by lessor in the event of an insolvency of the lessee.
Leasing, recovery, contingency insurance
Benoît Goemans assists most of world’s leading container lessors in the recovery of receivables and equipment. Benoît Goemans will not only try to cure an issue, he is often able to improve the standard wording of client’s leasing agreements, especially with the view of better protecting the lessor against lessee’s default. The particular difficulty in drafting agreements of lease of containers is that at the time of contracting, lessor does not know, in the event of a default, where he will be able to enforce a judgement ordering the payment of outstanding lease and even less where he will have to recover the equipment.
For reasons one cannot always understand, containers happen not to be collected at destination, stuck at custom premises, or otherwise remain in port of destination. The sea carrier will claim demurrages and storage which happen to accrue up to impressive amounts, often not in proportion to the value of the container and neither of the residual value of the cargo.
Container cargo claims
(see cargo claims)
Nautical accidents (collision, sinking, wreck removal)
Fortunately, very few nautical accidents occur although the navigation approaching the Belgian harbors is notably difficult.
A nautical accident requires an accurate fact finding, usually by the Nautical Commission, and typically involve issues of liability (liability for pollution, other third party liability, liability to cargo interests, classification societies and cargo), limitation thereof, wreck removal, salvage, general average, arrest, jurisdiction, forum shopping and insurance.
- worked on several of the nautical accidents in Belgian blue and brown waters, such as Jaco, Linda G, Hans Nico II, Capella, Navidor, Thor, Simi Too, Tricolor, Kariba, Crystal Topaz, DN31;
- lectured the legal subjects in relation to nautical accidents as a professor of maritime law;
- lectured on the wreck removal act of 1989 at the Belgian Maritime Law Association;
- La Responsabilité du fait des engins de transport in the standard Belgian publication on liability (Responsabilités, Traité théorique et pratique, Kluwer, Louvain 2005 ;
- Liability and Limitation of Liability in Maritime Law, in International Encyclopedia of the Laws, Kluwer Law and Taxation, Boston, Deventer, 1994
As a sailing competitor and a yachtsman himself Benoît developed a specific interests in the legal issues of yachting, whether in relation to the
- Sale, purchase, registration, financing (mortgage or other);
- occupation of the yacht: timesharing, charter, lease, management;
- nautical accidents.
He built up experience in these matters and lectured on the subject. (Yachting Federation, Liège 1997).
Liability and Insurance
Benoît assisted clients in liability and insurance matters. He lectured Marine and transport insurance at the Hasselt University from 1998 up to 2008, he was a speaker at the colloquium in Marine Insurance at the turn of the Millenium in Antwerp in 1999 and authored the « Interpretation of Insurance Contracts under English law and under Belgian and French law » Intersentia, Oxford, 2000. He lectured on marine liability at the University of Louvain from 1994 up to 2008 and authored « La responsabilité du fait du transport », Traité de Responsabilité, Editions Kluwer, Louvain, 2005 (liability arising out of transport) and “Liability and Limitation of Liability in Maritime Law”, in International Encyclopeadia of the Laws, Kluwer Law and Taxation, Boston, Deventer, 1994.
General commercial and corporate law
GDS advocaten, handle general commercial law matters, both to assist in the transaction as to resolve disputes. We will be happy to assist in relation to finance, security interests, l/c, sales, leasing, logistics, agency, company set up, share purchase agreement, M&A, and other shareholders’ matters, director’s liability, insurance thereof, etc.
Howerver, some subjects may not be within our knowledge zone, and we will then be happy to refer to other law firms, as this may occur for intellectual property, labor law, social security, taxation, etc.
Enforcement of judgements and awards
Foreign law firms appoint us to enforce in Belgium court judgements and arbitration awards they have obtained.
Belgium is a popular place for the enforcement of court judgements and arbitration awards for three main reasons.
Firstly, as an important trade center in Europe, assets and receivables of judgement or award debtors are often available in Belgium.
Secondly, significant information on corporate assets and intercompany links are available to the profession, which allows to find assets or receivables in Belgium, and to discover signs of insolvency threats.
Thirdly, the body of law governing the matter in Belgium provides for a fast, expeditious and ex parte enforcement of foreign judgements. If the judgement is originating from a European Member state the involvement of the Belgian judiciary is very limited under Brussels I Recast. Otherwise, International conventions such as Lugano 2007 with Switzerland, Norway, and Iceland, or The Hague 2005 with Mexico, Montenegro and Singapore provides for a fast enforcement with very limited judiciary control. Finally, in the absence of an international convention the exequatur procedure is very swift, ex parte and without review on the substance for judgements from all other countries under the Belgian Code of International Private Law. And, for arbitration awards, of course, Belgium will apply the 1958 NY convention. And if the award originates from a non 1958 NY Convention country, then the local exequatur procedure is also ex parte and submits the award to a restricted number of checks.
Although the enforcement procedure is swift, it may also be an option to proceed to immediate freezing of assets or receivables. A foreign judgement shall often allow this.
Also see https://gdsadvocaten.be/bulletins/foreign-judgements-belgium/ , and for the impact of the Brexit on this matter, see https://gdsadvocaten.be/bulletins/brexit/.