The cassation appeals in this case are directed against a judgment delivered on 31 January 2011 by the Antwerp Court of Appeal. The Court of Appeal decided that the oil pollution caused by the Sapphire is subject to the application of the LLMC 1976 on the ground that this vessel is an inland navigation vessel and not a seagoing vessel within the meaning of the LLMC 1976. C Bulk NV appealed to the Court of Cassation. Attorney-General Dubrulle recommended that the judgment under appeal be annulled and the case referred to another Court of Appeal: see ECLI:BE:CASS:2012:CONC.20120614.7.

Held: Appeals allowed. Case returned in limited form to the Ghent Court of Appeal.

Article 47.1 of Title X of Book II of the Commercial Code (the Maritime Code) provides that, subject to the provisions of arts 47.2 and 47.3, a shipowner may limit its liability in accordance with the provisions of the LLMC 1976. Under art 47.2 a shipowner may limit its liability for oil pollution damage in accordance with the provisions of the CLC 1969, so far as hydrocarbons defined in that Convention are concerned. Under art 1.1 of the LLMC 1976, shipowners may limit their liability in accordance with the rules of LLMC 1976 in respect of the claims referred to in art 2. Under art 1.2 of the LLMC 1976, the term 'shipowner' means the owner, charterer, manager and operator of a seagoing ship. According to art 3.b of the LLMC 1976, the rules of the LLMC 1976 do not apply to claims for oil pollution damage within the meaning of the CLC 1969.

In accordance with art 15.2 of the LLMC 1976, a State Party may determine, by express provisions of its national law, which limitation of liability regime applies to vessels that are: (a) under the laws of that State, vessels intended for navigation on inland waterways; (b) ships of less than 300 tons.

For the purpose of the application of the CLC 1969, art 1.1 provides that 'ship' means 'any sea-going vessel and any seaborn craft of any type whatsoever, actually carrying oil in bulk as cargo'. Pursuant to art 2 of the same Convention, it applies 'exclusively to pollution damage caused on the territory including the territorial sea of a Contracting State and to preventive measures taken to prevent or minimize such damage'. The material scope of the CLC 1969 is determined by the autonomous definitions of the terms hydrocarbons, pollution, damage and ship.

Article 273 of the Maritime Code provides that, subject to art 273.2-4, the provisions of arts 1-15 inclusive, with the exception of art 6.5, of the LLMC 1976 are applicable to vessels of inland navigation. By virtue of art 273.2, for the purposes of art 273.1 of the Code, the concept of 'seagoing vessel', as it is found in the articles referred to, is replaced by 'vessel of inland navigation'.

It is the legislator's intention to allow owners of inland navigation vessels to limit their liability in accordance with the rules of the LLMC 1976, and not to defeat this protection for claims resulting from oil pollution damage. In addition, the absence of a reference in art 273 of the Maritime Code to art 47 of the same Code, indicates that the limitation of the liability of owners of inland navigation vessels in respect of oil pollution is also subject to the rules of the LLMC 1976, provided that the pollution is not subject to the material scope of the CLC 1969.

The appellate Judges, who decided that the oil pollution caused by the Sapphire is subject to the application of the LLMC 1976 on the grounds that this vessel is an inland navigation vessel and not a seagoing vessel within the meaning of the LLMC 1976, but have not examined whether the ship is not a 'ship' within the meaning of the CLC 1969, have not legally justified their decision.