J.M William Turner – The Shipwreck, 1805, London - Tate Britain

Shipwrecks and other disasters at sea were frequently painted during the Romance period.

Costa Concordia Salvage Operation

It is expected to be the biggest salvage operation ever attempted. As of September 2013 the salvage has cost over $800 million.

The Bulk Carrier Double Fortune

The Panama flagged bulk carrier Double Fortune was built in 2010. Gross tonnage and deadweight are 50617 t and 95790 t respectively.

Manoeuvring Container Operations

Containerisation and multimodal transport: the development of door-to-door transport.

Fire Onboard Vessel

Fire on board ship is one of the most dangerous risks for vessels and cargos. Electrical equipments, flammable liquid on board, engines and boilers often cause it.

Wednesday, 25 February 2015

Court of Appeal confirms construction of in-transit loss clause in voyage charterparty

February 25, 2015.

Trafigura Beheer BV v. Navigazione Montanari SpA (Valle di Cordoba) [2015] EWCA Civ 91

The Court of Appeal has recently confirmed the meaning of the expression "in-transit loss" ("ITL") in a voyage charterparty.

In the High Court, it was held that (1) a loss by piracy does not fall within the meaning of "in-transit loss" so that the Owner would not be liable for loss so caused; and (2) if the Court was wrong and the type of loss did fall within the meaning of in-transit loss, then the Owner could nonetheless rely on the exceptions contained within the Hague-Visby Rules (the "Rules") that were incorporated in the charterparty. This decision was upheld by the Court of Appeal on both counts.


Ince & Co. acted for the successful Owner in this important decision that clarifies how the in-transit loss regime operates and the type of losses that clauses such as this one are meant to cover. If the Owner had been held liable, P&I cover would have been lost because of the standard provisions in Club rules, providing that Club cover is lost if an owner agrees to a liability regime in his contract of carriage that is more onerous than the one contained in the Rules.


The background facts

On 24 December 2010, 15 armed pirates took control of the Valle di Cordoba whilst she was off Lagos, Nigeria, and stole some 5,300 mts of oil cargo loaded on board. The pirates transferred the stolen cargo to an unknown lightering vessel that then departed with the cargo. The Charterer claimed against the Owner for the value of the cargo “lost” on the basis that the charterparty contained the following in-transit loss clause:

"In addition to any other rights which Charterers may have, Owners will be responsible for the full amount of any in-transit loss if in-transit loss exceeds 0.5% and Charterers shall have the right to claim an amount equal to the FOB port of loading value of such lost cargo plus freight and insurance due with respect thereto. In-transit loss is defined as the difference between net vessel volumes after loading at the loading port and before unloading at the discharge port."

The High Court decided that:

1.the stolen cargo was not in-transit loss, but even if it had been;
2.the Owner would have been able to rely on the exceptions within the (incorporated) Rules to avoid liability for the cargo loss.

The Court of Appeal decision

The Court of Appeal confirmed the High Court decision and dismissed the appeal.

The Court was referred extensively to the case of the Olympic Brilliance [1992] 2 Lloyd's Rep. 205, the only authority put before it in relation to ITL clauses.

As to the first issue, the Court distinguished the Olympic Brilliance on the basis that the ITL clause in that case dealt only with the charterer's right to make deductions from freight as opposed to a claim for cargo loss, as in this instance. The Court was assisted by that judgment to conclude that the commercial reasons for ITL clauses are to help in determining notoriously difficult oil shortage claims. The parties therefore make an allowance (sometimes 0.3% but in this case 0.5%) to account for discrepancies in volumetric measures in circumstances where the loss is "of a kind encountered on a normal voyage", when the loss is otherwise unexplained. The Court rejected the Charterer's construction of the ITL clause because it would effectively make the Owner an insurer of the cargo. If that were the intention of the parties, they would have had to agree a clear clause to that effect. The wording of the ITL clause was not clear enough to achieve that.

The majority of the Court concluded, therefore, that the wording of the ITL clause was clear in covering loss incidental to the carriage of the cargo and so excluded loss caused by piracy. Turning to the second issue, the Court unanimously held that even if the ITL clause was meant to cover losses of the type claimed, the Owner would still be able to benefit from the exceptions incorporated by the Rules. The Court concluded that there was no incompatibility between the ITL clause and the clause incorporating the Rules - neither clause made the other otiose. By way of an example, where there is a cargo loss during a normal voyage and the reason for that loss is unexplained, then the ITL clause would apply and it would be unlikely that an owner could excuse himself from liability by relying on the exceptions provided in the Rules.

Lord Justice Briggs agreed with the majority that, whether or not the claim for loss from piracy in this case fell within the ITL clause, that claim was still excluded by the exceptions to the Rules. However, he had difficulties as to the construction of the ITL clause. He expressed the view that, as a matter of language, the ITL clause imposed liability for loss of cargo in transit regardless of the cause of that loss, provided that it exceeded 0.5%.

Comment

This decision is important because it clarifies the scope of ITL clauses within the charterparty regime. The court confirmed that ITL clauses deal only with losses occurring during a normal voyage, incidental to the carriage of cargo.

Source: http://incelaw.com/

English Court clarifies what law governs procedure applied in Hong Kong arbitration

February 25, 2015.

Shagang South-Asia (Hong Kong) Trading Co Ltd v. Daewoo Logistics (The Nikolaos A) [2015] EWHC 194 (Comm)

A recent Commercial Court decision considered the position when a contract provides for the law of one jurisdiction to be applicable, but for the arbitration to take place outside that jurisdiction. Unless the parties have clearly and expressly provided to the contrary, the law governing the     arbitration procedure will be that of the seat of the arbitration.


The background facts

The underlying dispute in this case concerned alleged short landing of a cargo of steel products at Jebel Ali in 2008. Claims arose and were passed down the charterparty chain.  The charterparty between Shagang and Daewoo was one of the links in that chain. The Fixture Note provided as follows:

“23. ARBITRATION: ARBITRATION TO BE HELD IN HONG KONG. ENGLISH LAW TO BE APPLIED.
24. OTHER TERMS/CONDITIONS AND CHARTER PARTY DETAILS BASE ON GENCON 1994 CHARTER PARTY.”

Many readers will be familiar with the Gencon 1994 form and with the law and arbitration clause found at clause 19 of that form. That clause provides a series of options for the parties to select and further states that, if none of the options are selected, the first of those options is to apply. That first option, clause 19(a), provides for the application of English law and the resolution of disputes in London arbitration.

Daewoo purported to commence arbitration against Shagang by appointing Timothy Rayment as arbitrator. Shagang did not respond to the request that they appoint their own arbitrator, so Daewoo purported to appoint Mr Rayment as sole arbitrator. Shortly thereafter, Shangang instructed English solicitors, who queried the appointment of Mr Rayment and thus his jurisdiction as arbitrator. Shagang’s argument was that the seat of the arbitration was Hong Kong and that the applicable procedural law was, therefore, Hong Kong law. Accordingly, the Hong Kong Arbitration Ordinance (the “HKAO”) applied. They further argued that it followed from this that Mr Rayment had not been validly appointed and lacked jurisdiction.

Mr Rayment made an award on his own jurisdiction. He found that English law governed the conduct of the arbitration proceedings, even though the seat of the arbitration was Hong Kong. He also held that Gencon clause 19(a) applied and that, therefore, he had been validly appointed as sole arbitrator. Shagang appealed to the Court under s.67 of the Arbitration Act 1996, which deals with challenging arbitration awards on jurisdictional grounds.

The Commercial Court decision

The Court set aside the arbitration award. The Court concluded that the arbitration ought properly to have been subject to Hong Kong procedural law, that the appointment of an arbitrator had to be made under clause 23, not under clause 19(a) Gencon, and that the arbitrator had not, therefore, been validly appointed.

In reaching its decision, the Court placed particular weight on the following points:

It would be unusual for parties to specify the curial (i.e. procedural) law of a contemplated arbitration and still more unusual for them to wish to apply the procedural law of somewhere other than the seat of the arbitration. Such a division clearly has the potential to cause difficulties. For example, the HKAO is  compulsorily applicable to all arbitrations taking place in Hong Kong, whether or not the parties wish that to be the case.
By contrast, it is quite common for parties to apply different laws in respect of the substance of the dispute and in respect of the procedural aspects of the arbitration.
Clear words or indications are required in order to displace the presumption that the parties wish the law of the seat of the arbitration to be the applicable procedural law.
The weight of authority supported the points above. Shagang were able to cite a wealth of authority in support of their case, whereas Daewoo could identify only one reported case in which the applicable procedural law was found not to be the law of the seat. There had been clear words to that effect in that one case.
The effect of clause 23 was to displace entirely clause 19(a) Gencon. The clauses could not be read together and clause 23 would prevail.

Comment

This decision affirms what, in our view, was generally understood to be the position, namely that the choice of an arbitration seat implies a choice of the procedural law of that seat. It is perhaps a little surprising that it was necessary, in this case, to go as far as a s.67 appeal in order to reach this conclusion. Nevertheless, the clarity offered by the decision is to be welcomed. Parties wishing, for whatever reason, to apply a different procedural law to that of the seat must use clear and unambiguous words in their arbitration agreement if they are to achieve that goal. If necessary, legal advice should be obtained.

The decision also serves as a reminder of the importance of clear drafting, particularly in the context of dispute resolution clauses. In this case, Daewoo have expended significant time and, presumably, costs, without yet having reached the point at which the substantive issues are under consideration. They may well also have incurred a significant costs liability to Shagang. We do not know whether Daewoo’s claim has now become time-barred, depriving them of any recourse at all against Shagang, but that certainly appears possible, given the time that has elapsed since the events giving rise to the dispute.

Finally, from a Hong Kong perspective, it is pleasing to note the positive comments made by the English Judge about Hong Kong arbitration: “… a well known and respected arbitration forum with a reputation for neutrality, not least because of its supervising courts”.

Source: http://incelaw.com

Tuesday, 24 February 2015

ISM COMPLIANCE FOR TANKER VESSELS

February 24, 2015.

The International Safety Management Code comes with a mandatory compliance requirement by virtue of its adoption in to SOLAS (Safety of Life at Sea) Chapter IX, and has come in to force since 1st July 1998. The background for the Code is certain tragic Shipping accidents including the Herald of Free Enterprise in 1987 and the loss of the Estonia in 1994.

Under the Code, effective for most vessels (including Tankers) of 500 gt and above from 1998 and for other cargo ships and mobile offshore drilling units of 500 gt and above from 2002, Companies needed to develop, implement and maintain a Safety Management Systems (SMS) for their vessels. Compliance requires both shore (Management) and ship side (Officers and Ratings) implementation.

The Code aims to ensure safety at sea, the prevention of injury and loss of life, and protection of the marine environment, in addition to ensuring safe practices on vessels and creation of a safe working environment for crews. An unmentioned objective is the sustainability of the maritime industry.

While the Code requires that Companies develop such a SMS for their vessels, it was left broadly open as to the terms and was deliberately intended to be sufficiently flexible to allow adoption by companies of varying sizes and across different industry sectors. 



Source:http://www.skuld.com/

Wednesday, 18 February 2015

URUGUAY: OIL SPILL RESPONSE CONTRACT REQUIREMENTS

February 18, 2015.
Background
On 20 February 2015, Disposición Marítima N° 149 (the "Regulation") will take effect in Uruguay with the aim of establishing a set of rules governing the requirement for owners to contract with an oil spill response company (OSRO) approved by the Uruguayan Coast Guard, amongst other requirements. The Regulation has been established under the scope of Uruguayan Law N° 19.012 of 23 November 2012. The intention of this circular is to summarise the key provisions of this Regulation.

Overview
The Regulation requires the local agent (unless Uruguayan flagged) for any of the following vessels to conclude an oil spill response clean-up contract with a Uruguayan Coast Guard approved OSRO at least 24 hours before entering a Uruguayan port or an anchorage in Uruguayan waters:

All tank vessels or barges regardless of size;
All vessels where the Uruguayan authorities have determined that the vessel has a deficiency which could result in her grounding or sinking;
All vessels at anchorage in Uruguayan waters for a period of more than 24 hours
All vessels engaged in exploration or exploitation of resources in the Uruguayan Exclusive Economic Zone (EEZ).
In case of vessels under the Uruguayan flag, owners may contract direct with the OSROs.

It is the International Group's understanding that there are currently two approved OSROs for the purposes of the Regulation, namely Marine Environmental Care Lasimar S.A. and CINTRA Golantex S.A. A certificate of coverage provided by one of the two approved OSROs must be submitted to the local authorities where a vessel falls within the scope of 1-4 above.

The International Group has reviewed both the Lasimar and CINTRA contract certificates that the vessel's local agent (or owner where the vessel is Uruguayan flagged) will need to sign where vessels fall within the scope of 1-4 to above. The terms of both contracts conform with the International Group vessel response plan guidelines and the liabilities arising therein fall within the scope of Members' P&I cover.

The Regulation also requires that the following documentation must be provided to the local authorities where a vessel falls within the scope of 1-4 above:

Evidence of the vessel's P&I cover. This should be provided by means of the vessel's Certificate of Entry, and
If a tank vessel is carrying more than 2,000 tons of persistent oil in bulk as cargo, the vessel's State certificate issued in accordance with the International Convention on Civil Liability for Oil Pollution Damage, 1992.
A certificate of cover, provided by the OSRO, in the format required by the Regulation in order to evidence that the owner has entered into an OSRO contract with either of the two contractors mentioned above.
It is important therefore that owners with vessels that fall within the scope of these requirements renew their P&I cover sufficiently in advance of 20 February 2015 in order to ensure compliance with the Regulation. In particular, the vessel's local agents should be able to provide the required documents no less than 24 hours prior to requesting authorisation for the vessel to anchor or operate in Uruguayan waters.

The International Group will continue to review the Regulation, and any further update to Members will be provided in due course where necessary.

Members should however work on the basis that the Regulation, together with the accompanying requirement to contract with an approved OSRO, will become effective on 20 February 2015, and should make contact with their Club accordingly.

All Clubs in the International Group of P&I Clubs have issued similar circulars.

Source: http://www.skuld.com

World's Largest Offshore Wind Farm Approved


February 18, 2015.

The first consent order for offshore wind energy at Dogger Bank in the North Sea has been granted – making it the largest renewable energy development ever to receive planning consent in the UK.

The consent approval is the result of more than four years of comprehensive assessments, stakeholder consultation and planning by the Forewind consortium, owned equally by the four international energy companies – RWE, SSE, Statkraft and Statoil. This work included the most extensive study of an offshore area by a wind energy developer ever undertaken with more than £60 million spent on surveys, the vast majority going to UK-based contractors.

Energy and Climate Change Secretary Ed Davey approved the application for the Dogger Bank Creyke Beck development, which was submitted to the Planning Inspectorate by the Forewind consortium in August last year. He said:

“This is another great boost for Yorkshire and Humberside. This development has the potential to support hundreds of green jobs and power up to two million homes.

“Making the most of Britain’s home grown energy is creating jobs and businesses in the UK, getting the best deal for consumers and reducing our reliance on foreign imports. Wind power is vital to this plan, with £14.5 billion invested since 2010 into an industry which supports 35,400 jobs.”

Dogger Bank Creyke Beck, which has a total generating capacity of 2.4GW, comprises two separate 1.2GW offshore wind farms, each with up to 200 turbines installed across an area of around 500km2. The wind farms will be located 131km from the UK coast and will connect into the existing Creyke Beck substation near Cottingham, in the East Riding of Yorkshire.

When constructed, Dogger Bank Creyke Beck is expected to be one of UK’s largest power generators, second only to the 3.9GW Drax coal-fired station in North Yorkshire and is the same size as the 2.4GW Longannet coal-fired station in Fife. In total it will be capable of generating 8 terrawatt hours (TWh) of green energy per annum, equal to the amount used annually by approximately 1.8 million British homes.

General Manager, Tarald Gjerde said the organisation and its four owners are thrilled that the first consent for the Dogger Bank Zone has been granted, taking the flagship development a step closer to supplying the UK with such a significant amount of renewable energy, and to realizing the many potential economic opportunities, particularly on the east coast.

Dogger Bank Creyke Beck could create up to 4750 new direct and indirect full time equivalent jobs and generate more than £1.5 billion for the UK economy, with the majority of opportunities in the North East and Yorkshire and the Humber regions. This is particularly due to the regions proximity to the development as well as their historic strengths, existing skills in large-scale production activities and a marine support legacy.

“Achieving consent for what is currently the world’s largest offshore wind project in development is a major achievement for Forewind and will help confirm the UK’s position as the world leader in the industry,” Gjerde said. “It is testament to the stellar efforts made by the outstanding Forewind team, and to the invaluable support given by a wide range of expert consultants and specialist suppliers."

Dogger Bank Creyke Beck is part of the Dogger Bank Zone, the largest of the Round 3 zones but one of the shallowest, with high wind speeds and seabed conditions ideally suited to offshore wind development.

The rights for the Dogger Bank Zone were awarded to Forewind by The Crown Estate, manager of the UK seabed. Head of Offshore Wind for The Crown Estate, Huub den Rooijen said that:

“Today’s announcement for Dogger Bank Creyke Beck is the largest planning consent for an offshore wind development globally. The sheer scale of this project creates the potential for it to be built at significantly lower costs, presenting a powerful opportunity for economic growth and jobs. We look forward to working with the Forewind consortium and the wider offshore wind industry to ensure the UK remains the most attractive country to invest into the long term.”

As part of the consent process a final six-week judicial review period is now underway.

A decision on Forewind’s second development consent order application, for Dogger Bank Teesside A&B, in anticipated around August this year.

RenewableUK’s Director of Offshore Renewables, Nick Medic, said: “This is an awesome project. It will surely be considered as one of the most significant infrastructure projects ever undertaken by the wind industry. A colossal wind energy power station right in the middle of the North Sea, comprising hundreds of offshore wind turbines over 80 miles offshore.

“Dogger Bank demonstrates the sheer potential of offshore technology to turn our vast ocean and wind resources into green energy. It is a project that pushes the offshore engineering envelope - demonstrating how far this technology has evolved in the ten short years since the first major offshore wind farm was installed in North Hoyle just 5 miles from shore.

“The Dogger Bank projects now in planning could supply around 5 percent of UK electricity. We need to make sure that this project as well as other worthy offshore projects around these islands are adequately supported and funded. In return, offshore wind will generate much more than just electricity: it will turn the country into a green-economy powerhouse, creating jobs and business growth for years to come. Finally, we offer our congratulations for the team at the Forewind consortium taking this project to its consent.”

Source: http://www.maritime-executive.com.

Tuesday, 17 February 2015

Court grants anti-suit injunction in respect of some but not all cargo claims

February 17, 2015.

Golden Endurance Shipping SA v. RMA Watanya SA and others (Golden Endurance) [2014] EWHC 3917 (Comm)

This dispute related to cargo claims brought under three bills of lading. One issue was whether the claims were subject to London arbitration and/or English court proceedings and/or Moroccan court proceedings. The Commercial Court decision held that the claims under one bill were subject to London arbitration and granted an anti-suit injunction in respect of Moroccan court proceedings brought in breach of the arbitration agreement. In respect of the claims under the other two bills, the Court held that these could be pursued in the English courts, but refused to grant an anti-suit injunction. The result is that, unless the parties come to some agreement, there will be three sets of proceedings in respect of cargo claims arising out of the same voyage: London arbitration, English court proceedings and Moroccan court proceedings. Clearly not ideal.

The background facts

The Golden Endurance loaded a cargo of wheat in Gabon, Togo and Ghana for discharge in Morocco. The cargo arrived in a damaged condition, the ship was arrested and the Owners had to put up security in Morocco and become involved in the court proceedings there. However, the charterparty provided for English law and London arbitration. The bills were based on the Congenbill form. So the Owners applied to the English Commercial Court for an anti-suit injunction which, in this context, meant an order from the English Court that cargo interests were not allowed to pursue the substantive claims in Morocco. The Owners wanted the cargo claims to be decided in London, where the Hague Rules would apply, rather than in Morocco where the local court would apply the Hamburg Rules.

Anti-suit injunctions can no longer be obtained if the court proceedings are within the EU, but they can still be obtained where cargo interests have commenced proceedings outside the EU. Readers may well ask themselves why a Moroccan cargo claimant, holding a bank guarantee that responds to a decision of the Moroccan Court, would take any notice of an order from the English Court. The answer to this is that to ignore the order is a very serious thing. Were the directors of that company to come to the UK, they could be fined and imprisoned for contempt of court. Furthermore, many cargo claims are, as in this case, brought by subrogated cargo insurers who in turn may come to the UK on business and/or place their reinsurance here and/or have assets in the UK. So anti-suit injunctions can be effective but, if you want to obtain one, you must act quickly and be sure not to submit to the jurisdiction of the local courts, save under protest. Legal advice should be obtained promptly.

The Commercial Court decision

The facts of this case gave rise to some interesting findings by the Court, some of which may be useful for dealing with other cargo claims and some of which relate solely to the business of obtaining anti-suit injunctions.

There was an argument about whether the charterparty needed to be signed in circumstances where the Charterers asked the Owners to sign and return the charterparty. The Court confirmed that it did not need to be signed.
The shipper must have been using fake Bimco bills of lading because one of the bills that was signed by the Owners’ agents at the load port was a curious mix of Congenbill 1978 and 1994. Older readers will remember that the main reason for the change from 1978 to 1994 was that the 1978 version did not expressly say that it incorporated the arbitration clause from the charterparty and that, without these express words, the English court would not bring the arbitration clause into the bill. The other two bills that were issued were 100% Congenbill 1978. The outcome of this was that only the first bill (we will call this the 1994 bill) incorporated the arbitration clause from the charterparty, the other bills just incorporated the English law clause.
The fact that the 1994 bill incorporated the arbitration clause made it easy for the Court to grant an anti-suit injunction in respect of this bill.
With regard to the 1978 bills, the Judge agreed that the English Court was a more appropriate forum than the Moroccan Court to decide the case because the parties had chosen English law and the Owners would be unjustly deprived of the benefit of their bargain if the claims were not allowed to proceed in the UK (because the Moroccan court would apply the Hamburg Rules.)
The Court had the jurisdiction to decide whether the Owners were liable for the cargo claim, but that did not mean the Court could necessarily grant an anti-suit injunction because the anti-suit was not of itself a contractual claim that was subject to English law. The judge decided, however, that he could grant the anti-suit injunction because it was “ancillary” to the English contractual claim.
Nonetheless, the Judge refused to grant the anti-suit injunction because an English law clause did not, unlike an English jurisdiction clause, trump other competent jurisdictions. This notwithstanding that he recognised that two sets of proceedings, one in London and one in Morocco, might lead to inconsistent judgments in respect of claims under the 1978 bills.
Finally, the Judge touched upon an argument by cargo interests that the phrase “or corresponding legislation”, which is found in all Congenbills, could mean the Hamburg Rules. The Court’s provisional view was that this argument did not work, but the Judge said the point required further investigation.

Comment

For our shipowner clients and their P&I insurers, this case is a good reminder that, whenever you face a cargo claim at the discharge port despite an English law and jurisdiction clause in the bill of lading, you should consider whether an anti-suit injunction from the English Court might assist. In addition, just as you take care over the wording of your charterparties, take care as regards the wording of the bills of lading you sign. The Owners’ position would have been very much better in this case had the 1994 version of the Congenbill been used rather than 1978.

This case also helps to clarify a couple of legal issues relating to the jurisdiction to grant anti-suit injunctions. First, no separate jurisdictional gateway is required, provided the injunction is ancillary to claims where English jurisdiction is established – in this case, the application for a declaration of non-liability for the cargo claim. Second, in the absence of an exclusive English jurisdiction clause, an anti-suit injunction will not be granted merely because the local court will apply the Hamburg Rules, rather than those applying under the proper law of the contract, in this case the Hague/Hague Visby Rules.

Source: http://incelaw.com

Tuesday, 3 February 2015

Regulation EU on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Regulation 44/2001 was replaced by regulation 1215/2012 on 10th January 2015

February 4, 2015.

The main points under the new Regulation are as follows:

  • Regulation 1215/2012 restates the arbitration exception and confirms that proceedings relating  to arbitration fall outside of its scope. As a result it clarifies that any court proceedings  brought in order to support an arbitration (including enforcing or challenging an award and  deciding the validity of an arbitration agreement) fall outside the scope of the Regulation, and  hence a court which is not first seised can decide these matters, despite the risk of parallel  judgments. If, for example, the agreement between the parties provides for London arbitration but  one party commences court proceedings in Italy, and the Italian court then finds that there is no  valid arbitration agreement and goes on to rule on the underlying merits of the case, that judgment  must still be recognised and enforced by other EU courts. However, if the English court finds that  the arbitration agreement is binding and the arbitrators eventually make an award, it is not currently clear whether the Italian judgment or the award will take precedence. Recital 12 of  the Regulation suggests  that the award might take priority, but does not expressly state this.
  • The EU court named in an exclusive jurisdiction clause can hear the case, even if it is not the  court first seised in the  EU now. Other EU courts must stay their proceedings if the court named  in the clause determines that it does have jurisdiction. The court named in the exclusive  jurisdiction clause can hear the case even if the court first seised has not yet decided on a stay
  • A jurisdiction clause will fall within the scope of the Regulation even if neither party is  domiciled in the chosen EU state or any other EU state. So, for example, if the English court is  chosen to have jurisdiction, permission to serve out will not now be required even if neither party  is domiciled in the EU (but if proceedings are ongoing in another EU country, permission will be  required if the jurisdiction clause is not exclusive).
  • The EU courts now have a discretion to stay their proceedings in favour of a non-EU court if  the non-EU court was first seised. The non-EU court’s judgement must also be capable of recognition  and enforcement in order for a stay to be granted.

In a separate development, Advocate General Wathelet has recently issued an Opinion in the case of  “Gazprom” OAO. In it, he opined that the recast Regulation overturns the West Tankers decision (see  Weekly Update 06/09) and that if the same facts were to arise again, the English court would be  entitled to issue an anti-suit injunction, as such an injunction would not be incompatible with the  recast Regulation (the Regulation itself is silent on this point). The opinion can be found below. The ECJ will not reach a decision in this  case, though, until spring this year. Although the ECJ usually follows an Advocate General’s  opinion,  it is not obliged to do so and it remains to be seen whether the ECJ will adopt the same  approach as Advocate General Wathelet.

Source: http://www.lexology.com.

Should the Master Go Down with the Ship?

February 2, 2015.
Maritime TV is pleased to present another program in the Internet TV series known as “Conversations with Cartner”, a weekly video and blog discussion on maritime industry issues of the day with Shipmaster and Maritime Lawyer, Dr. John A.C. Cartner. In this 4th program in the series, Dr. Cartner addresses the age-old question of whether a Captain should go down with his ship. Dr. Cartner argues that the concept that the Master should somehow or the other sacrifice himself when in the command and custody of a ship in bad straits is counterproductive, immoral, and not required by any law.

There has been a good deal of press on the subject of the pseudo-moral duty of the master to go down with his ship after a particularly bad maritime accident. There is a rampant folk notion popularized by the lay press – and I have even seen some lawyers of lesser ability sincerely argue the point -- in the affirmative. While vaguely amusing, when any person, lay or legal, tries to argue seriously the notion it loses any value and indeed the argument becomes an obscenity.

I will say right here: the concept that the master should somehow or the other sacrifice himself when in the command and custody of a mere chattel which has found itself in bad straits is counterproductive, immoral, not required by any law and in some jurisdictions likely unlawful if the master with intent suicides after the fact.

Usually calls for the master’s head on a salver are made after an accident or in which there has been either loss of life or substantial environmental injury due to superficially apparent dumb acts on the part of the master. The drumming comes in stages. The calls are made first on television by the armchair Tugboat Annie’s who have little knowledge of the maritime business and lesser knowledge about how to practice in it. Then the military armchair expert arises, often appearing as a Commander (retired), who once went to sea and who has few if any relevant or recent command credentials. Then arises -- in some cases -- a rating or an engineer from the vessel in question, who, by mere presence when the accident occurred, is obviously an expert on the vessel, its command and the master’s acts. We all know in our memories that in The Love Boat the vessel was run by a bartender and a social director and an affable if bumbling master with no hair. The bartender and the social director were where the power lay. The Old Man wore a fresh uniform with four gold stripes and smiled a lot.

At the end of the hang-the-shipmaster cycle a suit on some sort of official panel stands up. This bureaucratic wizard will make anti-master pronouncements and urge punishment of the ubiquitous those who will sully us – piously of course -- and with no apparent blemish on his immortal soul or off-the-rack raiment.  One can see in one’s mind’s eye these toga-clad holier-than-thou’s looking stern and holding out their thumbs, always down.

I will say it to each class: there is no basis in domestic law anywhere governing shipmasters that the master must go down with his ship. In fairness it may be a fleeting noble thought on the part of the master to answer the expected ignoble cries. The master may in fact consider his own mortality knowing how he will be treated afterwards and in his or her anticipation of being criminalized for a what is usually and properly a civil tort.  About the closest thing to come to some sort of rule in these regards are the laws requiring the master to leave the vessel last -- after he has done all he can. He is therefore not required by law to commit suicide. It follows then that if not law requires that there must be a reason for the old mate’s tale.

In the west we abhor suicide. The armchair moralists are demanding the master do so. That is as obscene is it is impractical. The master is the person who knows more about the proximate causes of the casualty than any other person. He also knows more about the vessel and her capabilities than any other person. He is necessary for knowledge in the saving of persons and the vessel and is necessary for the inquiries following a casualty. If he is dead he is not helpful. We learn from casualties. We correct systems after them. Why ask the master to die and take with him his knowledge? Why indeed -- to meet the media cycle?

Let us take the SEWOL matter with many lives lost, including those of children In this case, as in others of similar stripe, there is the usual tendency to victimize masters at law and in press after a disaster – and the more awful the sooner the cries arise to hang the person. Not now but right now.  What that means morally is that the ignorant believe with all the fervor their little black hearts can muster that a shipmaster should sacrifice himself if another in proximity to his management as described on a piece of paper lose their lives. We are back to the same obscene and immoral argument that a master should commit suicide in a grotesque way for the sake of the dead he was unable to save.

What happened to letting an unbiased court sort things out?  In the SEWOL matter one suspects that the master’s prison term may be reduced in the opaque ways of South Korean justice. Hold not your breath, Matey, and recall the HEBEI SPIRIT, however.  There are salient facts that the vessel may have been structurally unseaworthy unknown to the master – who had no duty to act other than a prudent master in similar circumstances.  However, the courts are swayed by the press too. Hanging the master makes a group of the jeering class feel good and pays the wages of the chattering class. It does nothing for anyone else or society except proclaim and express mob applications and drumhead trials for justice.

However, there is the COSTA CONCORDIA.  There is no rule that says that there are no poorly-placed  masters any more than there is any rule that says that fools are all outlawed and are no longer permitted to practice life.  As in any profession,  for example surgery (hot on the commercials at prime time now), and even maritime law, there are 40-watters who slip through. The court can handle maritime  casualties and those related to them better than the press and come up with a conclusion in law that meets the law’s requirements. Is the man guilty from press reports? I do not know. We have ways we have fought for nearly a thousand years to attain the truth and to protect the innocent and to punish the guilty. Let the system work. I have faith that the Italian system will work too. This has nothing to do with the man himself. It has everything to do with the facts educed properly and applied correctly by skilled lawyers and jurists with substantial maritime expertise and experience.  Then look at it this way. Would the master of that vessel have provided so much amateur philosophizing  and media cynicism for all to see if he were dead by his own hand? I think not.

The opinions expressed by Dr. John A.C. Cartner in the ‘Conversations with Cartner’ Video Series and accompanying blogs are the opinions of Dr. Cartner and do not necessarily reflect the views of the Maritime Executive or Maritime TV.

Source: http://www.maritime-executive.com