The Maritime Advocate–Issue 728

Posted:

 

1. The InterClub Agreement and the Provision of Security
2. Cargo Case Notes
3. Launch of the London Shipping School
4. Rhenus Cuxport Terminal Commences Work for Deutsche Bucht Wind Farm
5. Seagulls
6. People and Places

 

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1. The InterClub Agreement and the Provision of Security

Gavin Ritchie has passed us this note by Sian Morris of the Charteres Club, commenting on a recent arbitration award relating to the ICA and provision of security. She writes:-

A recent arbitration award brings welcome news for charterers in relation to the obligation to provide counter security to owners under the Interclub NYPE Agreement 2011 (“ICA 2011”.)

Readers may recall that the ICA 2011 incorporated a new provision, which sought to create an entitlement to counter security upon demand once one of the parties to a charterparty had put up security in respect of a cargo claim. Our Circular No 008/2011 contains a detailed analysis of the ICA 2011 including the Club’s position on cover.

In this instance, the vessel was chartered on an NYPE 1946 form with additional clauses by the disponent owners (“owners”) to the charterers. After discharge on one of the voyages, the cargo receivers and insurers brought a claim against the head owners for alleged damage to cargo amounting to US$900,000.

Following a threat of arrest, the head owners’ P&I Club gave security of US$900,000 in the form of a letter of undertaking (LOU).

The Head owners’ P&I Club then sought security for the same amount from the owners and this was given. Owners considered that the head owners were entitled to counter-security pursuant to the ICA 2011 which they understood was incorporated into the charterparty. The charterparties between the head owners and the disponent owners and the charterers were essentially back-to-back.

The tribunal had no trouble in determining that Clause 9 of the 2011 ICA dealing with counter-security was not applicable both as a matter of construction of the charter & on the basis of the proposition in Time Charters that the ICA “was neither designed nor drafted to be incorporated into charters”.

Read the note in full here:-

https://www.themecogroup.co.uk/charterers-liability-insurance/publication/right-to-counter-security-under-the-ica-2011/

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2. Cargo Case Notes

Another extract from Issue 71 of Cargo Newsletter of the US MLA’s Committee on Carriage of Goods edited by Mike Ryan writes:-

Carmack Needs More than “TBD”…

Suit was brought to recover $84,511.23 that the underwriter had paid to its assured with respect to batteries which suffered damage while carried by a trucker. On summary judgment, the District Court held that neither the trucker nor the broker was liable because the loss claims did not indicate “a specified or determinable amount of money” as required by the Carmack Amendment.

The Court noted, “[t]o obtain relief against a carrier under the Carmack Amendment, claimants must comply with ‘[m]inimum filing requirements'” (citations omitted). The claim must at least (1) contain facts sufficient to identify the…shipment or shipments of property; (2) assert liability for alleged loss, damage, injury, or delay; and (3) make a claim for the payment of a specified or determinable amount of money.

The Court found that the claim forms at issue lacked such a specified or determinable amount, but merely noted the cargo’s total value of $148,055.30 and stating the extent of damage was “unknown until cargo is inspected.”
A few weeks after the claim was submitted, the assured was warned that the amounts of the referenced claim was still missing and the claim form needed to be updated. No update followed. “Merely identifying the upper bound of possible damages with exact damages ‘TBD’ does not suffice.”

Even under a standard of “substantial performance,” the claim fails as the damage to the batteries was not obvious, but out-of-sight without any apparent means for inspecting them.

The District Court’s judgment was affirmed.

New York Marine and General Insurance Co v. Estes Express Lines, Inc. et ano.; Ninth Circuit Court of Appeals; Docket No. 16-56748; Decision of Judges Rogers, Bybee and Watford, filed April 17, 2018.

[Editor’s Note: The decision of the Ninth Circuit is marked “NOT FOR PUBLICATION” and “This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.”]

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Mike Ryan also writes:-

Re: Returning to those Thrilling Days of Yesteryear–Hague Rules [Issue 727]

I was chagrined to see that a prior (uncorrected) version of the newsletter had been sent to you (and others).

In most cases, typos do not greatly change the thrust of a paragraph or piece, but I believe the following bears comment: In addressing paragraphs 50/51 of the decision, it was indicated the decision “made reference” to the comment of judge Hough in opposition to Mr. Bragge (That was not the case; the correction being “made no reference”). That was a 180 degree turn around from the actual, turning a negative to a positive.

Mea culpa and a thousand Gomenasai!

mryan@hillbetts.com

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3. Launch of the London Shipping School

Matt Gilbert writes:-

The London School of Shipping, part of the Institute of Chartered Shipbrokers, is now offering evening classes in preparation for professional qualifying exams(PQE) in commercial shipping. Classes begin at the end of September / early October and take place every fortnight per subject over two semesters leading up to exams in May 2019. The courses are held in our new modern facilities close to London Bridge, offering a broad range of subjects in a structured programme:-

http://www.shipping-school.com

https://www.ics.org.uk/about-us/international-network/london-school-of-shipping

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4. Rhenus Cuxport Terminal Commences Work for Deutsche Bucht Wind Farm

Rachel Fenning has passed us this report:-

Although yet to be officially opened, berth no.4 at Cuxport terminal in Cuxhaven has secured its first offshore project. The Deutsche Bucht offshore wind project, contracted by Van Oord, is using berth no.4 to store and tranship monopiles and transition pieces for a new offshore wind farm. 31 pieces for the wind farm have already been supplied to berth no.4 from Spain by the “Happy Star” heavy lift vessel. The segments, which weigh more than 300 tonnes each, were lifted onto the quay by the ships own crane and are currently being stored there in their installation sequence.

The 31 monopiles, each weighing around, 1,100 tonnes, were transported by barge from Rostock to Cuxhaven in sequence where they will be transhipped directly onto the vessel that has been jacked up in front of berth no.4. The Jack-up vessel will then transport them to the offshore construction site.

Rhenus Offshore Logistics have taken on the operation as port agent for the project, as well as the customs clearance and crew changes.

“By using the ship’s own cranes, it’s possible to complete the project without any shore crane. The fact that this new berth is being used for this project so soon after its completion shows how essential it is,” says Roland Schneider, Head of Business Development at Cuxport.

The Deutsche Bucht wind farm is the Canadian power producer Northland Power’s third North Sea offshore wind project. It has an allocated grid connection capacity of around 269 megawatts and is located about 95 kilometres northwest of the island of Borkum in the German Exclusive Economic Zone. It is 77 kilometres from Northland’s other German offshore wind project known as Nordsee One – and Cuxhaven served as the base port for this, too.

Van Oord is responsible for the design, engineering, procurement, construction and installation of the foundations, inter array cables and offshore substation, and the transport of the wind turbines. MHI Vestas is handling the installation of the turbines. The offshore wind turbines will be connected to the BorWin beta offshore converter station, which is already operating.

The Deutsche Bucht wind farm will have a total of 33 wind turbines, 31 on monopiles and two on so-called Mono Bucket foundations. It is the first time this new type of foundation structure will be tested under commercial operating conditions. The 33 MHI Vestas offshore wind turbines can each generate up to 8.4 megawatts of power.

For more information, please visit:-

https://www.rhenus.com/en/uk/

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5. Seagulls

Twitcher Tim Dee describes the emergence of the seagull as an urban scavenger and reflects upon the unease prompted by these large avians. A good example of how birds point out the ways of our world and how we live.

https://www.nybooks.com/daily/2018/09/11/gulls-and-us/

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6. People and Places

Paul Gunton is leaving Riviera Maritime Media to work for himself.

Contact him at:-

paulgunton@yahoo.co.uk

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Syd Oram reports on his “retirement”:-

I have been “retired” since February 2006, but continue to do the occasional survey for the survey business (DS Oram and Associates) with which I assist my son David. We launched the business in 2007 and since then have a lot of project work, including transport route surveys and preload, stowing, discharge and delivery surveys. Projects included surveys on all equipment for an entire mineral sands recovery plant erected in Moma, Northern Mozambique, through to all the turbines, generation plant, transformers, shunt reactors, etc. for the two new Eskom power stations at Medupi and Kusile here in South Africa. Presently David is doing a series of surveys on equipment built in South Africa and being shipped up to Ghana.

We also do general cargo surveys and claims investigation for underwriters and brokers in the London, North American and South African markets. Surveys had been undertaken in South America, Eastern, Western and sub- Saharan Africa and the Indian Ocean Islands.

syd.oram@gmail.com

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Marsh & McLennan Inc. agreed to buy Jardine Lloyd Thompson for about £4.3 billion ($5.7 billion) to expand its global offering of reinsurance and consulting service.

The New York-based purchaser said it aims to become the world’s leading company offering advice on risk, strategy and personnel. The purchase of JLT will strengthen its specialty risk broking, expand its global reinsurance network and enhance its position in Asia and Latin America, it said. The companies estimate that Marsh & McLennan’s revenue will rise to about $17 billion as a result of the acquisition.

[Source: Insurance Journal]

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The Avo Archive

The website of this newsletter contains all the editorial material since the inception of the Maritime Advocate as a print based quarterly in 1997 under the founding aegis of John Guy, Chris Hewer and Manfred Arnold. Readers can go to the site and search the database on the home page in its entirety. If you are looking for an old case, an old controversy or you would just like to see how many times you and your firm have featured in our annals feel free to access the archive. It is like this e-zine, free to Readers and we always appreciate the support of advertisers and sponsors.

Work is underway to lodge the Archive within a new site for this publication.

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Writing a Reference for Employees Let Go

For the chronically absent: “A man like him is hard to find.” “It seemed her career was just taking off.”

For the office drunk: “I feel his real talent is wasted here.” “We generally found him loaded with work to do.” “Every hour with him was a happy hour.”

For an employee with no ambition: “He could not care less about the number of hours he had to put in.” “You would indeed be fortunate to get this person to work for you.”

For an employee who is so unproductive that the job is better left unfilled: “I can assure you that no person would be better for the job.”

For an employee who is not worth further consideration as a job candidate: “I would urge you to waste no time in making this candidate an offer of employment.” “All in all, I cannot say enough good things about this candidate or recommend him too highly.”

For a stupid employee: “There is nothing you can teach a man like him.” “I most enthusiastically recommend this candidate with no qualifications whatsoever.”

For a dishonest employee: “Her true ability was deceiving.” “He’s an unbelievable worker.”

(Paul Dixon)

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Reasons for Staying Healthy

Syd Oram has sent us these actual writings in a Provincial Hospital Register

1. Examination of genitalia reveals that he is circus sized.
2. The patient has no previous history of suicides.
3. Patient has left white blood cells at another hospital.
4. Patient’s medical history has been remarkably insignificant with only 11kgs weight gain in the past three days.
5. She has no rigors or shaking chills, but her husband states she was very hot in bed last night.
6. Patient has chest pain if she lies on her left side for over a year.
7. On the second day the knee was better, and on the third day it disappeared.
8. The patient is tearful and crying constantly. She also appears to be depressed.
9. The patient has been depressed since she began seeing me in 1993.
10. Discharge status: Alive but without my permission.
11. Healthy appearing decrepit 69-year old male, mentally alert but forgetful.
12. Patient had waffles for breakfast and anorexia for lunch.
13. She is numb from her toes down.
14. While in ER, she was examined, x-rated and sent home.
15. The skin was moist and dry.
16. Occasional, constant infrequent headaches.
17. Patient was alert and unresponsive.
18. Rectal examination revealed a normal size thyroid.
19. She stated that she had been constipated for most of her life, until she got a divorce.
20. I saw your patient today, who is still under our car for physical therapy.
21. Both breasts are equal and reactive to light and accommodation.
22. The patient refused autopsy.
23. The lab test indicated abnormal lover function.
24. Skin: somewhat pale but present.
26. Large brown stool ambulating in the hall.
27. Patient has two teenage children, but no other abnormalities

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Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritime industries, with particular reference to legal issues and dispute resolution. It is published to over 21 000 individual subscribers each week and republished within firms and organisations all over the maritime world. It is the largest publication of its kind. We estimate it goes to around 60 000 Readers in over 120 countries.

 

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