IN THIS ISSUE
1. Piracy and Another Reminder from West Africa
2. The Yangtse Xing Hua–Decision on the Meaning of “Act” under the IGA
3. Punitive Damages and US Maritime Law
4. Another Fine Idea which did not Work Out:Nuclear Powered Cargo Ships
5. My Self-Storage Hell
6. People and Places
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1. Piracy and Another Reminder from West Africa
Paris Pantelis and Maryam Taher of M Taher & Co have sent in this summary of the state of play in the world’s most popular piracy zones.
On 1 February the product tanker “Marine Express”, with a crew of 22 and carrying 13,500 tonnes of gasoline, was presumed hijacked by pirates. This was confirmed by the vessel’s operators when she was recovered, with the crew safe and cargo intact, just five days later. Few other details have emerged about a fortunately and surprisingly brief incident which is the latest major instance of the growing threat of piracy in the Gulf of Guinea (“GOG”).
Is the GOG the new focus area?
Yes, it is. Many people think only of Somali skiffs off the Horn of Africa and in the Gulf of Aden (here, together, the “GOA”) and occasionally further afield, with the GOG still somehow attracting little notice. However, having lessened to its lowest level since 2006, Somali activity has now been overtaken by escalating GOG piracy, and moreover many incidents there probably go unreported. As well as increasing, GOG pirate activity is still developing, and countermeasures must do likewise.
Different considerations
There are five main differences between East and West Africa:
Long wholly and still partly lawless, Somalia is just one state and long coastline. These key factors have both required and permitted the combined response of foreign navies. They have also made regular and effective provision of armed guards fairly straightforward. By contrast the GOG has seven neighbouring sovereign countries. Despite efforts, concerted action remains a challenge and (as rigorously enforced) it is unlawful for any but state military to carry weapons;
Most Somali attacks are on the high seas, whereas GOG activity is still largely in terminals or harbours or otherwise in one state’s territorial waters;
GOA piracy is well established, as are its counters, including convoys, escorts, guards and daytime-only navigation. However, the GOG problem is still evolving and many of the familiar measures are anyway unworkable. Having quickly moved from minor pilferage to large-scale robbery, GOG pirates then targeted hydrocarbon cargoes. However, suppression of illicit refining capacity and lower oil prices meant progressive increase in the worldwide key concern and the core of the Somali model – the capture and holding of crew for ransom – which has recently seen a marked increase and has meant more attacks on vessels other than tankers;
GOA industry standards and terms have come far ahead of those for the GOG. As for previous versions, the latest Best Management Practices for Protection against Somalia Based Piracy – BMP4 – is of course specific to that region. Much of it can apply or is adaptable to the GOG, and specific guidelines have followed. Numerous GOA charterparty terms are in regular and familiar use, but while standard provisions have been developed, overall GOG fixture clausing is still ad hoc by comparison;
The GOA and adjacent seas are largely transit areas alongside sometimes lawless coastline, but the GOG is a region of destinations under state governance. This presents additional issues, such as waiting at intended secure locations before fast transit when called in, the place for valid tender of NOR and the running of laytime, and in some cases perhaps the safety of the nominated port. It should also thankfully mean less scope for sustaining lengthy crew kidnap.
Charterparty matters
The main issues are crew and vessel safety and who pays and/or must insure for loss and delay, and time and voyage fixtures commonly address these matters.
Most include bespoke or standard piracy terms, such as clause 35 of BPVOY5. Otherwise, a War Risks clause could apply, though that might depend on the width of the definition: some such provisions do not include piracy.
Frequently, Owners or the Master may decline transit that is assessed to be “dangerous” or likely to give rise to the specified risks, in which case the vessel may reroute under mandatory fresh orders, with stipulated time and cost consequences, and fixture termination or some other outcome in default.
Protective steps may be taken, according to industry norms (and in some cases on pre-approved contract terms) and with provisions covering cost and risk, with demurrage running or not, or the vessel on or off-hire, according to any waiting or other operational measures, and sometimes depending on duration. All applicable local regulations and insurance requirements must be met, and usually any resulting change in transit is not deviation, so what might have been breach becomes performance.
There are also detailed provisions for response to an attack, with communication protocols to immediately alert operators’ emergency response teams, and as to liability if an attack is successful, and charterers are usually required to insert identical clausing in all Bills of Lading.
Awareness is key
GOA and GOG piracy are in some respects the same and in others greatly different, and while some wording derived from the former will suit the latter, each carriage will raise its own issues. Any draft fixture must first be read as a whole, so allocation of liability and risk can be seen and suitable piracy clausing prepared or adjusted. As well as meeting all P&I and other insurance stipulations, such must cater for the particular issues presented by vessel and crew, cargo, transit and destination.
Above all, since developments can sometimes be vital as regards the balance of risk and the interpretation of terms, parties and their advisers must be ever aware of the level and also the nature of pirate activity in what is now the world’s most hazardous region.
2. The Yangtse Xing Hua–Decision on the Meaning of “Act” under the IGA
The latest edition of Chans Advice, the newsletter published by specialist brokers Sun Mobility in Hong Kong examines the decision of the Court of Appeal in England in November last which gave support to the the clear meaning of the words apportioning liability under this well worn agreement. The note can be read in full below and we have also included a lnk to the law report.
http://www.sun-mobility.com/files/chansadvice/Chans_Advice_205.pdf
https://tinyurl.com/YangtseXingHua
3. Punitive Damages and US Maritime Law
Katie Matison of Lane Powell reports:-
On January 23, 2018, a panel of the Ninth Circuit held that an injured seaman asserting a general maritime law unseaworthiness claim against a vessel owner is entitled to seek an award of punitive damages. In Batterton v. Dutra Group, __F.3d __ (9th Cir. 2018), the Ninth Circuit considered the district court’s certification of the single question of the availability of punitive damages for an injured Jones Act seaman’s general maritime law claim of unseaworthiness. The Panel distinguished the U.S. Supreme Court decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), concluding that an injured seaman is entitled to seek punitive damages against the vessel owner for a general maritime law unseaworthiness claim.
Read the note in full here:-
https://www.lanepowell.com/Our-Insights/131802/Seamans-Remedies-Under-General-Maritime-Law
4. Another Fine Idea which did not Work Out:Nuclear Powered Cargo Ships
Dan Wang, writing in the rather excellent Flexport Blog relates the story of The NS Savannah the first and last American nuclear-powered merchant ship. Taking to the sea in 1964, she had range and no greenhouse gases. But there was a snag: large quantities of low-level radioactive water dumped into the sea. So it was Arrivederci Nuclear Cargo Ship in 1971.
https://www.flexport.com/blog/nuclear-powered-cargo-ships/
5. My Self-Storage Hell
Courtesy of the Browser we read this wise piece by Gaby Del Valle which appears in Outline. The article confirms how odd storage can be and the people who populate the storage classes and professions. Seems like a downturn is coming….
“Much like gyms, which make the bulk of their profits off people who sign up for memberships but never work out, self-storage facilities profit off people who think they’re going to store some old junk while they get their life together, before ultimately realizing it’s easier to throw $87.15 at their local self-storage corporation each month than it is to actually sort through all their stuff. Self-storage facilities thrive the most when people are getting divorced, dying, or fleeing hurricanes”
https://theoutline.com/post/3475/self-storage-unit-cancel?zd=2&zi=23a6um5p
6. People and Places
Charles Taylor Adjusting (CTA) has appointed Oliver Hutchings as Managing Director, Europe & Singapore of CTA – Marine.
Hutchings’ remit will be to build on the business’s recognised global expertise in marine average adjusting under the Richards Hogg Lindley brand, and specialist claims management and adjusting services in the areas of hull, superyacht, marine liabilities and cargo.
He will succeed Paul Silver, who is retiring after 40 years in marine adjusting.
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Cyde & Co has hired four leading marine partners and has opened an office in Hamburg. The partners join from Ince & Co and are :
Daniel Jones, an English qualified maritime lawyer who specialises in shipbuilding, charterparty, yachting and trading disputes acting for German and Scandinavian shipowners in contentious matters in London maritime arbitrations and the English courts.
Dr Volker LĂĽcke, whose litigation practice covers matters relating to dry shipping, admiralty and yachting. He specialises in cargo and charterparty claims and handles a variety of marine insurance cases predominately acting for underwriters.
Dr Tim Schommer, who advises on commercial, shipping and insurance litigation and arbitration matters with specific expertise in handling shipbuilding, ship repair, yachting and trade disputes, while negotiating contracts for traders, owners, yards and manufacturers.
Dr Eckehard Volz’s whose practice encompasses shipping, marine insurance and offshore matters advising on all aspects of admiralty law, P&I and marine insurance as well as ship management matters. A dedicated and experienced litigator, he has extensive experience of commercial litigation and arbitration cases.
From 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.
Looking for an entertaining reference to storage, we ran across this reference in Issue 153 of 27th April 2004 which time has done little to erode:-
Defining gender
THANKS to Capt Mukul Soni this week for confirmation that there are three genders – male, female and neutral. If you’re like most people, common everyday items look inert to you and you may classify them as neutral. But many of them have a gender. For example:
(a) See-through bags for food storage — male, because they hold everything in, but you can see right through them.
(b) Copier – Female, because, it can wreak havoc if the wrong buttons are pushed.
(c) Tyre – Male, because it goes bald and is often over-inflated.
(d) Hot-Air Balloon –Male, because to get it to go anywhere you have to light a fire under it. And, of course, there’s the hot air part.
(e) Web Page – Female, because it’s always getting hit on.
(f) Subway – Male, because it uses the same old lines to pick people up.
(g) Hourglass — Male or Female because, over time, the weight shifts to the bottom.
(h) Hammer – Male, because it hasn’t evolved much over the last 5,000 years, but it’s handy to have around.
(i) Remote control — Female. A man would be lost without it and, while he doesn’t always know the right buttons to push, he keeps trying.
captmsoni@yahoo.com
Impecunious Part 1
A college student has been thrown out of his apartment for not paying his rent, so he sends an e-mail to his father.
“Please send money. I’m in the street.”
The father replies, “Have no money. Watch out for cars.”
Impecunious Part 2
I’m so broke, I go to KFC and lick other peoples fingers.
I’m so broke me and my girlfriend got married for the rice.
I’m so broke, if a trip around the world cost a nickel, I wouldn’t have enough to leave the couch!
If pickles were 10 cents a truckload I couldn’t buy a wart off a cucumber!
I’m so broke, just to rub two nickels together, I’d have to borrow one.
We were so broke, that at Christmas, all we could exchange was glances.
I’m so broke, the bank asked for their calendar back.
I’m so broke, long distance companies don’t even call me to switch!
If I stopped on a dime, I’d probably owe it to someone.
I ain’t broke, but I’m severely bent.
Someone saw me kicking a can down the street, and when asked what I was doing I said, “Moving.”
I’m so broke I can’t afford to pay attention!
A guy walked into our house, stepped on a cigarette and my Mom yelled, “Who turned off the heat?”
I’m so broke that when someone saw my Mom walking down the street with one shoe, they said, “Hey, you lost a shoe.” She said, “No, I found one.”
We’re so broke that if someone rings our doorbell I have to yell, “Ding Dong!” out the window.
[Paul Dixon]