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Law Regulating Materials Referred To Article 78 Of The Constitution On Liability Of Carriers Of Passengers By Sea In Case Of Accident (1)

Original Language Title: Loi réglant des matières visées à l'article 78 de la Constitution en matière de responsabilité des transporteurs de passagers par mer en cas d'accident (1)

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belgiquelex.be - Carrefour Bank of Legislation

30 JANVIER 2012. - Law regulating the substances referred to in section 78 of the Constitution in respect of liability of passenger carriers by sea in the event of an accident (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act:
1° "Athens Convention 2002": the 2002 Athens Convention on the Carriage by Sea of Passengers and Their Baggage, within the meaning of Article 15, paragraph 3, of the 2002 Protocol to the 1974 Athens Convention relating to the Carriage by Sea of Passengers and Their Baggage;
2° Regulation (EC) N° 392/2009 » : Regulation (EC) No. 392/2009 of the European Parliament and the Council of 23 April 2009 on the liability of passenger carriers by sea in the event of an accident;
3° "ship": only a sea building excluding any vehicle on air cushion.
Art. 3. It is not permitted at any time to operate a ship subject to the provisions of Article 4bis of the 2002 Athens Convention and beating Belgian flag if the ship is not provided with a valid certificate issued under Article 4bis of the 2002 Athens Convention.
The King may make the provisions of the 2002 Athens Convention and of this Act applicable, possibly in a suitable form, to all categories of passenger transport by sea that are not part of the scope of the 2002 Athens Convention and may adopt all relevant measures therein.
The King may take the measures referred to in section 2, second paragraph and rule 11 (EC) No. 392/2009 and all relevant measures.
Art. 4. Subject to the provisions of Article 4bis of the 2002 Athens Convention, an insurance or other financial guarantee corresponding to the requirements of paragraph 1er Article 4bis of the 2002 Athens Convention covers any ship authorized to carry more than twelve passengers, regardless of its place of registration, when it touches or leaves a port of Belgian territory, to the extent that the 2002 Athens Convention is applicable.
As evidence, the vessel has a valid certificate issued by the competent authority in accordance with Article 4bis of the 2002 Athens Convention.
Art. 5. Certificates prescribed by the 2002 Athens Convention or by Regulation (EC) No. 392/2009 shall be on board the vessel and shall be submitted to the competent supervisory authority, unless the vessel is flying the flag of a State that has made a notification in accordance with paragraph 14 of Article 4bis of the Athens Convention of 2002 and if the existence of the certificate issued by that State is demonstrated by an electronic register held by that State and consulted directly by the competent Belgian supervisory authority.
Art. 6. Subject to the provisions of Article 4bis of the 2002 Athens Convention, the King may set the conditions for the issue of certificates prescribed by the 2002 Athens Convention or the 2002 Regulations (EC) No. 392/2009, as well as all rules relating to the issuance and validity of certificates.
A refund is payable for the issuance of the certificates referred to in the preceding paragraph, copies of the certificates, copies of the certificates in respect of insurers or other persons whose financial guarantee is issued, and negative certificates, the amounts of which are fixed by the King.
Art. 7. § 1er. The certificates referred to in Article 6 shall cease to be valid,
1° where an amendment takes place in the data referred to in the certificate in respect of the vessel, registered owner or insurer or any other person whose financial guarantee is issued;
2° where, for any reason, insurance or other financial guarantee ceases to be valid;
3° when the vessel changes its flag;
4° where the insurer or any other person whose warranty is issued is no longer authorized to carry out these activities.
§ 2. In an exhalation case in accordance with § 1er, the owner mentioned on the certificate must promptly return the expired certificate to the authority that issued the certificate.
Art. 8. The monitoring of ships in order to ensure compliance with the Athens Convention of 2002, Regulation (EC) No. 392/2009, this Act and its enforcement orders is exercised by the officers responsible for the control of navigation designated for this purpose, and in relation to ships flying Belgian flag also by Belgian consular officials abroad.
The officers responsible for the control of navigation designated for this purpose have the right to stop any vessel that is not equipped with valid certificates prescribed by the 2002 Athens Convention, the Regulations (EC) No. 392/2009, this Act or its enforcement orders or to refuse access to a Belgian port or to Belgian territorial waters. Except in urgent cases the shipping officers designated for this purpose shall not exercise the right, as provided for in this paragraph, to foreign vessels except after having informed the consul of the country whose ship is flying the flag. In urgent cases this information is communicated immediately after the measures have been taken. The vessel is released as soon as the vessel has valid certificates prescribed by the 2002 Athens Convention, the Regulations (EC) No. 392/2009, this Act or its Implementing Orders, to the satisfaction of the Navigation Control Officers designated for this purpose.
The Belgian consular official has the right to prohibit the departure of a ship flying the Belgian flag if the ship is not equipped with valid certificates prescribed by the 2002 Athens Convention, the Regulation (EC) No. 392/2009, this Act or its enforcement orders. The departure ban is lifted when the vessel has valid certificates prescribed, to the satisfaction of the Belgian consular official.
In the event of a refusal of a departure permit or when a ship has been detained or has been denied access to a Belgian port or to Belgian territorial waters, the Navigation Control Service or, where applicable, the Belgian consular official shall prepare a substantiated report, a copy of which shall be sent, within 24 hours after the decision, to the master or owner of the ship.
Within fifteen days after the receipt of a copy of the written record in accordance with this article, an appeal may be brought against the decisions referred to in this article. The appeal is filed by the master or owner of the vessel, by means of a request addressed to the Commissioner of State to the Marine Investigation Board and containing the means invoked. The appeal is not suspensive.
Art. 9. The person who operates a ship without all valid certificates prescribed by the Athens Convention of 2002, Regulation (EC) No. 392/2009, this Act or its enforcement orders are on board or available in an electronic register in accordance with Article 5, shall be punished by a fine of 5.000 euros to 1,000,000 euros.
Who operates a ship without insurance or other financial guarantee prescribed by the 2002 Athens Convention, the Regulations (EC) No. 392/2009, this Act or its enforcement orders shall be punished by the same fine.
Compared to Belgian flag vessels, paragraphs 1er and 2 are applicable regardless of where the offence is committed.
Compared to vessels flying another flag than the Belgian flag, paragraphs 1er and 2 are applied to vessels that affect or leave a port of Belgian territory.
All provisions of Book Ier the Criminal Code, including Chapter VII and section 85, is applicable to offences under this Act.
Without prejudice to the powers of judicial police officers, the officers responsible for the control of navigation designated for this purpose and the Federal Police responsible for the police of the waters, are responsible for investigating and detecting violations of the provisions of this Act and its enforcement orders.
If the Federal Water Police finds violations under this Act, the Navigation Control Service shall be promptly informed of these violations and shall take appropriate action.
Art. 10. Article 5 of the Royal Decree of November 27, 1989 on the execution and entry into force of the Act of April 11, 1989 on the approval and execution of various international maritime acts, as amended by the Royal Decree of July 20, 2000, is repealed.
Art. 11. This Act comes into force on the first of the following dates:
- the date of entry into force of Belgium's accession to the 2002 Protocol to the 1974 Athens Convention relating to the carriage by sea of passengers and their baggage;
- the date of application of the Regulation (EC) No. 392/2009 of 23 April 2009 on liability of passenger carriers by sea in the event of an accident.
As long as the 2002 Protocol to the 1974 Athens Convention on the Carriage by Sea of Passengers and Their Baggage will not enter into force, it is necessary for the application of this Act and its Implementing Orders to understand the words "State Party" in Article 4bis of the 2002 Athens Convention on the Carriage by Sea of Passengers and Their Baggage, as "Member State of the European Union".
Promulgate this law, order that it be put on the seal of the State and published by the Belgian Monitor.
Given in Brussels on 30 January 2012.
ALBERT
By the King:
Minister of the North Sea,
J. VANDE LANOTTE
Minister of Finance,
S. VANACKERE
Minister of Foreign Affairs,
D. REYNDERS
The Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives.
Parliamentary documents. - Bill No. 53-1840/001. - Report, No. 53-1840/002. - Text corrected by the Commission, No. 53-1840/003. - Text adopted in plenary and transmitted to the Senate, No. 53-1840/004.
Full report. - 15 december 2011.
Senate.
Parliamentary documents. - Project referred to by the Senate, No. 5-1402/1. Report, No. 5-1402/2. - Decision not to amend, No. 5-1402/3.
Annales. - 22 December 2011.