DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

I voted for a non-violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.  I agree with the majority of the Court that the claims presented by the applicants were possessions within the meaning of this provision (P1-1).  On the other hand, I disagree with the conclusion drawn from applying the proportionality test.

In my view, it is significant that maritime law - and its rules on damages - is a branch of law in which many specific considerations apply.  Very high sums of money are often involved in disputes in this field and insurance cover plays a major role.  Shipowners are also protected by rules on limited liability.  Generally speaking there is nothing unusual or oppressive in promulgating legal rules according to which the liability for negligent piloting, even if it is provided or authorised by the State, is imposed on the shipowners.  Therefore the only problem in this case concerning Article 1 of Protocol No. 1 (P1-1) is the retroactivity clause in the 1988 Act.

It seems that the Court of Cassation did not give any judgments on the liability of pilots from 1896 to 1983.  The "La Flandria" judgment, delivered in 1920, concerned the general rules on State liability under the law of tort.  It has not been shown that at the time of those of the accidents in this case that took place before 1983, the shipowners could rely on a legal rule in Belgium on State liability for the actions of pilots.  Between 1983 and 1988 the situation was not the same.  Nevertheless, it needs to be demonstrated that this led to changes in insurance clauses and thereby deprived the shipowners of the possibility of suing the insurance companies.  This has not been done.  The rules promulgated in 1988 did not, moreover, deprive the shipowners of all possibility of having their losses covered by others because in many cases they could rely on the liability of other shipowners.  It is accordingly not clear in what way serious burdens were in fact imposed on the applicants as a result of the accidents in respect of which they claim, less still that any such burdens were individual and excessive.  To this it may be added, in my opinion, that a general ban on retroactivity of measures in the field of civil law cannot be read into our Convention.  The exact limits of the guarantees set out in Article 1 of Protocol No. 1 (P1-1) are difficult to draw and the claims in the possession of the applicants had not been finally determined.  In these circumstances I find the Government's arguments, which are summarised in paragraph 40 of the judgment, relevant and convincing.  Accordingly, I do not find that the fact that the national legislature enacted rules with retroactive effect such as those promulgated in Belgium in 1988, amounts, on the basis of a proportionality test, to a violation.

For these reasons I find no violation of Article 1 of Protocol No. 1 (P1-1).    

SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

In my view, the reasons which led the Court to find a violation of the applicants' right to the peaceful enjoyment of their possessions apply equally to their right to a fair trial.

The retrospective effect of the 1988 Act had, as is stated in the judgment, the aim and consequence of depriving the applicants of t heir claims for compensation [4] .  But it was also intended to thwart legal actions that had already been brought against the State or against another organiser of pilot services [5] , and any other claim of the same type concerning events that occurred prior to the entry into force of the new legislation [6] .

I therefore consider that there has been a violation of Article 6 (art. 6) of the Convention quite as much as there has be en of Article 1 of Protocol No. 1 (P1-1).

[1] The case is numbered 38/1994/485/567.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 332 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[4] Paragraph 43 of the judgment.

[5] This was the case of all the applicants except the twelfth (see paragraph 6 of the judgment).

[6] This was the case of the twelfth applicant and, as regards Brabo, the fifth (see the same paragraph).