1. Clause lets subcontractor out; carrier’s clock kept ticking
2. Silence isn’t necessarily golden
3. Court reads C/P and B/L together
4. As time goes by
5. APL England cleared to leave Australia
6. Livestock carrier delayed in South Africa amidst legal dispute
7. Bulker strikes fishing vessel in Mindoro Strait
8. What comes first in a transport liability policy – limit or deductible?
9. Bankruptcy considerations for shipping lenders
10. U.S. Supreme Court confirms continuing vitality of Equitable Estoppel Doctrine
Notices,
Miscellany and more
Readers’ responses to our articles are very welcome and, where suitable, will be reproduced:
Write to: contactus@themaritimeadvocate.com
Mike Ryan has kindly sent us the Spring edition of the Cargo Newsletter, published by the Maritime Law Association of the United States’ Committee on Carriage of Goods and edited by Mike. Here are four cases he reviews. We’ll be publishing the remaining four in our next issue.
1. Clause lets subcontractor out; carrier’s clock kept ticking.
Marble tiles were transported from China to New York. The ocean carrier handled the journey across the Pacific Ocean and then subcontracted with the railroad to bring the tiles across the United States. When plaintiff received the tiles, they were allegedly damaged beyond repair.
After going through the ocean carrier’s claims process, and being denied, plaintiff brought suit against the ocean carrier in a New Jersey state court. The case was removed to federal court in New Jersey and later transferred to the Southern District of New York.
Plaintiff filed an amended complaint asserting claims against the ocean carrier and the railroad. Both defendants moved to dismiss the complaint.
The Sea Waybill contained a provision that no claim would be brought against any servant, agent, or subcontractor of the carrier, requiring that any suits for damage to cargo be brought against the ocean carrier. Plaintiff’s claims processing agent contacted the ocean carrier to file a claim, and in an email in response, the ocean carrier’s claims agent acknowledged receipt of the claim and requested supporting documents, including a “formal statement of claim, stating the amount claimed and its breakdown.”
Various documents were submitted to the ocean carrier’s claims agent and inquiries made as to the status of the claim. The carrier’s claims agent stated that a formal claims statement was needed, as a “formality.”
During the time emails and telephone discussions were exchanged, the one-year time to sue ran out.
FULL ACCOUNT:
https://themaritimeadvocate.com/wp-content/uploads/2020/07/Cargo-Newsletter-part_1.doc
2. Silence isn’t necessarily golden.
In 2017, plaintiff (an NVOCC) began providing its shipping service to defendant. It conducted business with respect to some eight overseas shipments for defendant before the shipment at issue was involved.
In late May of 2018, defendant enlisted plaintiff to ship seven sealed containers of plastic scrap from Houston and Jacksonville to Thailand. Plaintiff then secured the services of the actual carrier (MSC) to transport the cargo from the United States to Thailand.
As the vessel was en route to Thailand, the Thai port authority issued a notice suspending discharge of plastics until further notice. Plaintiff asked the defendant for instructions; however, defendant did not provide an alternative recipient or destination, instead instructed the cargo should be delivered to its original destination.
Because of the suspension notice, plaintiff eventually offloaded the cargo in Singapore, where it was ultimately sold, defendant having refused to accept delivery or retrieve the cargo. As a result, the actual carrier incurred import charges and expenses associated with storage and ultimate destruction of the cargo.
Plaintiff paid the actual carrier for demurrage and detention charges totaling $27,327.00 and brought an action against defendant for those expenses and attorneys’ fees. Both plaintiff’s House Bill of Lading and the actual carrier’s Bill of Lading contained a forum selection clause calling for suit to be commenced in the District Court for the Southern District of New York.
Defendant moved to dismiss the complaint, arguing that the forum selection clause in the plaintiff’s House Bill of Lading was not enforceable because the clause was not communicated to it. Defendant stated that the plaintiff did not provide a copy of its House Bill of Lading in the eight prior transactions or in the transaction at issue and, in fact, it did not communicate the terms and conditions of that Bill of Lading to it until the lawsuit. The plaintiff did not contend otherwise, but instead argued that, while it may not have issued or delivered its Bill of Lading to the defendant, such did not preclude application of that instrument to the carriage.
FULL ARTICLE:
https://themaritimeadvocate.com/wp-content/uploads/2020/07/Cargo-Newsletter-part_1.doc
3. Court reads C/P and B/L together.
A cargo of steel beams was transported by defendant from Taiwan to Los Angeles, California, pursuant to a charter party entered into between defendant and plaintiff’s assignor.
Seventeen separate bills of lading reflected the transfer of cargo from “Tung Ho” to plaintiff. The bills of lading listed plaintiff as consignee and Tung Ho as shipper.
Each bill of lading contained a provision stating that all disputes arising under and in connection with this bill of lading “…shall be settled in the flag state of the ship, or otherwise in the place mutually agreed upon between the Carrier and the Merchant…” The charter party contained a provision calling for claims to be brought in the District Court for the Southern District of New York.
The cargo was damaged. After realizing this, the plaintiff obtained an assignment of the charter party from Tung Ho. Plaintiff then filed suit against defendant and the vessel alleging maritime jurisdiction and federal question jurisdiction. Defendant moved to dismiss the complaint. Plaintiff relied on the forum-selection clause of the charter party and the assignment as bases for the Court to assert personal jurisdiction over defendant.
Defendant took the position that the forum-selection clause in the charter party was applicable only between it and Tung Ho, not the plaintiff, and that the relevant forum-selection provision was the one contained in the bills of lading.
The plaintiff took the position that it could rely on the charter party’s forum-selection provision even though it was not a signatory to that agreement, relying on Asoma Corp. v SK Shipping Co., Ltd., 467 F.3d 817 (2d Cir. 2006). In that case, the Charter Party identified the charterer as “MUR London or nominee.” The Court distinguished Asoma: “… unlike in Asoma, where the text of the charter party made clear that Asoma could become a party to the agreement as MUR London’s “nominee”, nothing in the text of the Charter Party indicates that (Plaintiff) was a party to the Charter Party, a third-party beneficiary of the Charter Party, or an agent for Tung Ho.”
FULL ARTICLE:
https://themaritimeadvocate.com/wp-content/uploads/2020/07/Cargo-Newsletter-part_1.doc
4. As time goes by.
A shipment of glass windows was transported from Brooklyn, New York, to Louisville, Kentucky. The shipment was pursuant to defendant’s Internet Straight Bill of Lading, which incorporated its tariff.
The tariff provided, “Carrier must receive all claims for cargo loss or damage including all supporting documentation within nine (9) months of the date of delivery….”
Upon arrival, the windows were found to be damaged. On that same day, the plaintiff’s assured sent an email to defendant stating that the shipment had arrived with some damage: “…We are documenting the damage with pictures. Please advise as to the insurance liability, and the process required when making a claim.” The defendant replied that it was not liable for any damage as the shipment was “shipper load and offload.”
Thereafter, the plaintiff’s assured filed an insurance claim with plaintiff who paid $21,076.83 pursuant to its insurance policy.
Thirteen months after the assured’s notice to defendant, plaintiff’s counsel sent a letter to defendant demanding reimbursement.
Defendant denied the plaintiff’s claim as untimely as its insurance counsel’s letter was received after the nine-month window required by defendant’s tariff.
Plaintiff filed a lawsuit and then moved for summary judgment.
The July 19, 2017 email from plaintiff’s assured was the only contact with defendant prior to the August 21, 2018 letter from the plaintiff’s counsel.
49 C.F.R. §370.3(b) provides, in relevant part, that a written communication from a claimant must be filed within the time limits specified in the bill of lading or contract of carriage and must specify in a claim for damages a specified or determinable amount of money.
FULL ARTICLE:
https://themaritimeadvocate.com/wp-content/uploads/2020/07/Cargo-Newsletter-part_1.doc
More of Mike Ryan’s case reviews in our next issue.
5. APL England cleared to leave Australia.
Mike Schuler for gCaptain reports. See also Gard’s paper in Issue754: “Why do containership stacks collapse and who is liable?”
The APL England has been cleared to leave Australia after losing some 50 containers overboard off the coast of New South Wales in May of this year.
Inspectors with the Australian Maritime Safety Authority (AMSA) boarded the vessel last week at the Port of Brisbane and were satisfied that the ship was fit to sail to China where it will undergo repairs. The ship departed Brisbane on June 19 without cargo and with a new Master.
The ship’s previous Master, who is facing multiple charges related to the incident, will be repatriated.
The Singapore-flagged APL England lost about 50 containers overboard and dozens more were damaged after the ship lost propulsion in heavy weather off the coast of Sydney on Sunday, May 24. The ship was able to restore power and arrived at the Port of Brisbane where it was put under detention.
A spokesperson for the Australian Maritime Safety Authority said previously that the authority’s inspection of the ship had revealed that lashing arrangements for cargo were inadequate and securing points for containers on the deck of the ship were heavily corroded.
Prior to allowing the ship to sail, AMSA received a formal written undertaking from the ship’s insurer, Steamship Mutual, that it will pay fines and other costs amounting to $22.5 million that are agreed or imposed by a court in relation to AMSA’s costs in responding to the incident.
The AMSA reports that the APL England‘s owner and insurer have been begun tendering for a sonar to search an area encompassing some 386 square miles where missing containers are believed to be located.
AMSA General Manager Response Mark Morrow last week said 15 containers had been recovered from the shoreline or towed in after being spotted floating off the coast, but 35 containers were still missing.
“While it is unfortunate that this incident occurred in the first place, the early response by the owners and their insurers has been welcomed,” said AMSA’s CEO Mick Kinley.
“The response to incidents like these don’t happen overnight, but this early commitment shows that the vessel’s owners and insurers intend to do what they can to ensure our seas remain safe and clean,” Kinley added.
APL England’s former Master, Captain Mohamad Zulkhaili Bin Alias, was charged earlier this month with two offences related to discharging garbage into the sea and failure to ensure his vessel was operated in a safe manner. The charges carry maximum penalties in excess of $300,000.
The container cleanup comes on the heels of cleaning-up more than 60 from the seafloor off Newcastle after the Yang Ming ship YM Efficiency lost more than 80 containers overboard back in June 2018.
6. Livestock carrier delayed in South Africa amidst legal dispute.
This report comes courtesy of Insurance Marine News.
Livestock carrier Al Messilah (IMO 7924425) has been delayed at the port of East London, South Africa because of a legal dispute over whether she can load a cargo of South African sheep.
The South African National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) had filed suit to block the departure of Al Messilah with live sheep onboard. On June 10th it secured an injunction from the Grahamstown High Court to prevent the vessel from loading until after a hearing on July 16th. Al Messilah’s operator and the cargo owner – Kuwaiti meat supplier Al Mawashi – may not transport any sheep from the feedlot or export any sheep from South Africa until after the outcome of the hearing.
Al Mawashi filed a motion to lift the injunction on June 25th. It asserted that the delay was imposing unreasonable costs (extra animal feed and wharfage). The firm warned that if the delay went on too long, it would cause “substantial financial losses to the degree that they would have to close their operations in South Africa,” according to NSPCA.
Al Mawashi also proposed that it could satisfy NSPCA’s concerns by reducing the number of sheep on the voyage from 70,000 to 56,000. The NSPCA disagreed, and the court ruled against Al Mawashi.
In 2017, the Australian Maritime Safety Authority stopped the Al Messilah from loading sheep in Fremantle, Western Australia, after a port state control inspection found significant deficiencies, including corroded decks and bulkheads, wastage of structural members, corroded cabling and a broken generator. The vessel was not detained, but was prevented from loading cargo until repairs were completed.
In 2018 Al Mawashi said that it would be exploring new sources of livestock due to Australia’s changing regulatory stance towards live export. “Our trust in Australia as a supplier of sheep to Kuwait has weakened,” CEO Usama Khaled Boodai said. He named South Africa as one of several potential alternative sources for live sheep.
1980-built, Kuwait-flagged, 38,988 gt Al Messilah is owned and managed by Livestock Transport & Trading Co. of Safat, Kuwait.
7. Bulker strikes fishing vessel in Mindoro Strait
Roose and Partners report on a tragic collision.
In the evening of 27 June 2020 the Vienna Wood N was in collision with a fishing vessel, the Liberty 5, in the Mindoro Strait, Philippines, which led to the capsize and subsequent sinking of the fishing vessel and the loss of her 12 crew members and two passengers who were also on board.
The bulk carrier was enroute from Subic Bay to Groote Eylandt, Australia when she collided with the local fishing vessel some 15 miles off the coast of Mindoro Occidental. The accident happened at 2220 hours on 27 June 2020 but authorities did not receive an emergency communication from the Vienna Wood N until 0146 hours, over three hours after the collision. Authorities have claimed that although the Vienna Wood N stopped following the collision, her Master failed to deploy any rescue boats to search for any survivors from the fishing vessel. Her Master explained that there were several other fishing boats in the area and that he thought it would be unsafe to deploy the boat and conduct assistance due to the risk his large vessel possibly posed to the other responding vessels. The crew on the vessel had noted the collision and had carried out a damage assessment before returning to the exact site of the collision only to find the upturned vessel which finally sank in the evening of 28 June 2020.
The Philippine Coastguard deployed aircraft and search and rescue vessels to the area in an attempt to locate any survivors but none have been found and weather conditions hampered the search. The bulk carrier remained on site until the arrival of the search and rescue teams and then proceeded to Batangas Bay escorted by the Coast Guard. She was found to have a small hole at her bow. An investigation into the collision is being undertaken by the authorities.
8. What comes first in a transport liability policy – limit or deductible?
M. Jagannath, of Nau Pte Ltd, Singapore answers and explains.
This question cropped up in a claim under a Transport Liability Policy in which the claimed amounts exceeded the limits provided in the policy. In this instance, the policy provided for a substantial deductible and therefore it was important to ascertain whether the deductible should be applied first followed by the limits or vice versa.
The default position must be that once the claim is ascertained under the policy, the deductible must be applied to work out the reimbursement available to the Insured. There may however be some losses for which the policy would allow for recovery without application of the deductible such as Total Loss and Costs to defend the claim. The question to be asked is therefore what is the ascertained claim?
Definitions:
Deductible is the first portion of the claim borne by the Insured themselves. There is an inverse relationship between the deductible and the premium, i.e. the higher the deductible, the lower the premium. However, the law of diminishing returns would apply at some point such that increase in the deductibles may not have a commensurate effect in the reduction of premiums.
The Limit of Liability is either mentioned in the policy or the schedule to the policy and would indicate the maximum extent of the insurer’s liability for any one loss or in the aggregate. The policy may provide for a general limit or a specific limit applicable to various covers provided under the policy.
As most of the Transport Liability Policies incorporate English Law and Practice, the UK Marine Insurance Act 1906 (“MIA 1906”) would apply. S74 of the MIA 1906 deals with liabilities to third parties and states: “Where the assured has effected an insurance in express terms against any liability to a third party, the measure of indemnity, subject to any express provision in the policy, is the amount paid or payable by him to such third party in respect of such liability”.
S55 (1) of the MIA 1906 deals with Included and Excluded losses and states “Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but, subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against”.
We therefore submit that the contractual provisions provided in the insurance contract will be the basis of cover subject to them not being in conflict with any of the mandatory provisions of the MIA 1906. Accordingly, to ascertain whether the deductible should be first applied to the gross claim or the ascertained claim, one must look at the wordings of the Insurance contract i.e. the policy and the schedule.
Unfortunately, there are no standard market wordings available for Transport Liability Insurance (Freight Forwarders, Non-Vessel Operating Common Carriers, Logistics Service Providers, etc.). Instead, most of the Insurers issue their own manuscript wordings for the cover they provide.
FULL ARTICLE:
http://nau.com.sg/what-comes-first-in-a-transport-liability-policy-limit-or-deductible-under-the-policy/
9. Caveat lender: bankruptcy considerations for shipping lenders
The impact of the COVID-19 pandemic is pushing both US and foreign borrowers to consider US bankruptcy options, including a Chapter 11 restructuring or a foreign insolvency proceeding and Chapter 15 recognition.
Lenders are increasingly asking what they need to know about the US Bankruptcy Code to protect their investment. They are right to be concerned, because creditors who are caught unawares by US Bankruptcy Code provisions can find themselves in a much weaker position than they bargained for, even if their borrower successfully reorganizes.
“The Bankruptcy Code’s liberal jurisdiction provisions allow any company that has property in the United States to file a Chapter 11 proceeding.”
CHAPTER 11 CONSIDERATIONS FOR LENDERS
Who May File?
Foreign companies utilize Chapter 11 to restructure due to the many debtor-friendly rules. The Bankruptcy Code’s liberal jurisdiction provisions allow any company that has property in the United States to file a Chapter 11 proceeding. There is no requirement that the property has been in the United States for any particular amount of time, so the transfer of funds to a US account prior to filing is sufficient to create jurisdiction.
Automatic Stay
One powerful tool for debtors restructuring under Chapter 11 is the imposition of an automatic stay on creditors. Immediately upon filing a bankruptcy petition, the worldwide automatic stay takes effect, staying all actions to enforce or collect pre-petition claims against the debtor and its assets. As a result, creditors are forbidden from (1) terminating existing contracts, (2) commencing or continuing litigation or lien enforcement actions, and (3) taking any other legal actions against the debtor or its assets, without leave of the Bankruptcy Court. The stay is so broad as to not only preclude lenders from foreclosing on their collateral, but also prohibits sending notices of default or acceleration to the debtor.
Most loans contain termination clauses that are triggered by the borrower filing for bankruptcy. These so-called “ipso facto” clauses are generally unenforceable in executory contracts (discussed further below) but may be enforceable in loan agreements. Additionally, lenders cannot be forced to extend financing to a borrower in bankruptcy despite a previous agreement to do so.
FULL ARTICLE:
https://www.wfw.com/articles/caveat-lender-bankruptcy-considerations-for-shipping-lenders/
10. U.S. Supreme Court confirms the continuing vitality of the Equitable Estoppel Doctrine
Kirk M. Lyons of Lyons & Flood, LLP reports on the U.S. Supreme Court’s ruling on the continuing vitality of the Equitable Estoppel Doctrine in allowing non-signatories to Compel Arbitration against signatories of an Arbitration Agreement
In GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (opinion issued on June 1, 2020), the Supreme Court was asked to decide whether a conflict existed between the signatory requirement in Article 2[i] of the New York Convention[ii] and the common law contract doctrine of equitable estoppel by which a non-signatory can enforce an arbitration agreement. A unanimous Supreme Court, per Justice Thomas, found that there was no such conflict.
The dispute arose out of three contracts between ThyssenKrupp Stainless USA, LLC and F.L. Industries, Inc. for the construction of cold roll mills at ThyssenKrupp’s steel manufacturing plant in Alabama. Each of the contracts contained identical arbitration clauses. After those contracts were reached, F.L. Industries hired GE Energy to design, manufacture, and supply motors for the cold roll mills. Nine motors were delivered to the plant and thereafter, Outokumpu acquired ownership of ThyssenKrupp.
According to Outokumpu, the motors supplied by GE Energy failed resulting in substantial losses. Outokumpu and its underwriters filed suit against GE Energy in state court for those losses, which was removed to federal court by GE Energy.
FULL ARTICLE:
https://themaritimeadvocate.com/wp-content/uploads/2020/07/GE-Energy-Newsletter.pdf
Notices
On – Off Hire Condition & Bunker Surveys.
Safe ship operations and the carriage of cargo are highly dependent upon competent mariners and expert surveyors. In this book Captain Allen Brink describes in detail the work of the surveyor to provide a comprehensive guide to both the surveyor and the mariner. By defining the inspections to be taken and explaining the evidence to be observed, Allen has created a source of reference that will enhance understanding and professional respect between the two disciplines. This is especially important at either end of a period on hire and helps protect the interest of the owners, charterers and ship managers. The work is thorough, informative and comprehensive in its content and provides clear direction on the presentation of accurate information. A worthy source of reference to all parties.
Captain John Lloyd
Chief Executive, The Nautical Institute
https://www.iims.org.uk/product/what-a-marine-surveyor-needs-to-know-about-on-off-hire-condition-and-bunker-surveys/
Quadcast Live! – When crime does pay?
Thursday, 9th July 2020, 5pm BST
Quadrant Chambers invites you to register for Quadcast, a live streamed discussion programme looking at legal developments, news and hot topics in the field of commercial litigation.
Join them live on the Quadrant Chambers YouTube channel for a lively analysis of a topical issue that our team hopes you find both relevant and engaging. The format is simple.
Each edition, the Quadcast team will discuss a particular topic of interest and invite you to join in using the YouTube chat function, giving your comments, questions and observations live as the programme is on air. This week the Quadcast team will be discussing when crime does pay.
When Crime Does Pay?
The Supreme Court is presently considering two cases where illegality and its impact on commercial dealings is the focus of attention.
The first is Stoffel v Grondona, a case involving mortgage fraud where one of the fraudsters sued the solicitors completing the transaction for negligence. Negligence was admitted, but liability was denied on the grounds that the entire transaction was tainted by fraud. The issue being considered is whether the Court of Appeal erred in its application of the Patel v Mirza guidelines.
The second is the well-known case of Shagang Shipping v HNA Group where the court is considering a bribery/torture case involving payments to an employee of a Chinese charterer. The first instance trial heard by Knowles J involved allegations that admissions had been extracted by torture. The successful appeal (ordering a retrial) is now the subject of reconsideration by the Supreme Court. The hearing took place on 15-16 June and judgment is awaited.
Both cases raise important points of principle for commercial practitioners. The Quadcast team will consider the law arising in these areas and seek to predict which way the judgments will go.
Register here: https://www.quadrantchambers.com/
Baltic Exchange launches new website for Expert Witness Association.
The Baltic Exchange’s Expert Witness Association is ready to establish itself as the centre of the maritime expert witness world.
Born from the previous Baltic Exchange Expert Witness Panel, the Baltic Expert Witness Association (BEWA) boasts an array of expertise comprising shipbrokers, shipowners and operators, charterers, financiers, Masters, surveyors, naval architects, engineers and more.
It is managed by a council elected from BEWA members and is governed by its own rules. All BEWA members subscribe to the Baltic Code of Conduct.
In 2017, users of the expert services – including lawyers and P&I clubs – identified the need for a more transparent association where a broader scope of experts could be found in one place.
With the support and input of the Baltic Exchange, BEWA was born.
“It’s crucial to have a clearly defined location where maritime professionals can seek out expert witnesses,” said Richard Goodall, Chairman of BEWA, ahead of BEWA’s new website launch.
“An effective expert witness needs to have patience, flexibility and the ability to think and present thoughts logically.
“We have members with many years of cumulative experience from both the commercial and technical sides of shipping who are willing and able to assist in maritime dispute resolution and consultancy.
“The Baltic Exchange’s expert witness database allows you to log in easily and find the most suitable individual for a particular job.”
BEWA operates as a distinct membership tier under the Baltic Exchange umbrella and forms part of the Baltic Exchange group of maritime and related services.
For more information, view the new BEWA website at www.balticexpertwitness.com
Members of the Baltic Exchange and others who wish to join BEWA should contact bewa@balticexchange.com
BIMCO publishes Covid-19 crew change clause.
BIMCO has produced a COVID-19 Crew Change Clause for Time Charter Parties in response to the extraordinary circumstances faced by many owners whose crew have had to remain on board during the COVID-19 “lockdown” for periods often extending beyond their contracts of employment.
Although travel restrictions are beginning to ease, there are still restrictions in many countries impacting on crew changes. The new clause is designed to give owners the liberty to deviate for crew changes under tightly defined circumstances. It also provides an option for charterers to contribute to the crew change in recognition of the potentially high cost of making a COVID-19 related crew change.
“Although the cost of crew changes is usually for owners’ account under a charter party, the extraordinary and unusual circumstances created by COVID-19 have left some owners unable to conduct crew changes on the ship’s trade route. With crew now on board for periods extending beyond their contracts of employment, owners need to have the flexibility to deviate to an alternative place if crew changes can’t be done at the places where the ship is ordered by charterers. This clause is designed to help them with that process and to encourage charterers to assist,” says Soren Larsen, Deputy Secretary General, BIMCO.
The clause is available to download from the BIMCO website along with explanatory notes providing a guide to its use and application.
https://www.bimco.org/contracts-and-clauses/bimco-clauses/current/covid-19-crew-change-clause-for-time-charter-parties-2020
Guidelines for the control of Drugs and Alcohol Onboard Ship.
The Oil Companies International Marine Forum (OCIMF) is pleased to announce the publication of the second edition of the Guidelines for the control of Drugs and Alcohol Onboard Ship.
OCIMF and the maritime industry in general recognise the potentially serious impact and risks associated with the use and abuse of alcohol, drugs or other impairing substances by maritime personnel.
Research has shown that a properly designed random workplace drug and alcohol testing programme can mitigate the risk of inappropriate drug and alcohol use and reduce workplace incidents and accidents.
This guideline applies to operators of marine vessels and terminal operators associated with ship and shore operations. It does not address drug and alcohol testing associated with substance abuse treatment, return to work and aftercare testing.
The guidance can be viewed here: https://www.ocimf.org/media/160761/guidelines-for-the-control-of-drug-and-alcohol-onboard-ship-1-.pdf
EU Law and Mediation.
EU law impacts in two main ways on Mediation. First, initial steps have been taken by the EU legislature to ensure cross-border mediation, amongst other forms of ADR, is available subject to a framework of common principles, generally, and in particular to consumers, including online.
Second, Mediation can play a similar role in cases involving issues of substantive EU law as in those involving national law, for example, an action claiming damages caused by competitors party to a cartel agreement which infringes EU (Article 100(1) TFEU) and/or UK (Chapter 1 of the Competition Act 1998). Competition law may be the subject of a Mediation, if only to avoid the High Court’s power to penalise those parties who refuse to mediate through cost sanctions.
https://www.lux-mediation.com/eu-law-and-mediation/
Practical advice from the Swedish Club helps crews face COVID-19.
The Swedish Club has launched its COVID-19 Handbook, offering clear, simple and practical advice to help both those at sea and those on shore to face the day-to-day challenges posed by the pandemic.
These challenges have caused the whole shipping industry to pull together and provide a quantity of high quality and informed advice to those formulating policies in these new and difficult times. Yet with such a volume of information, and such a complex industry, it can be hard for some sectors to find the level of information they need to safely fulfil their job roles.
The COVID-19 Handbook aims to meet the needs of those in positions of responsibility at sea and those supporting them on shore, providing simple guidance and concise information on understanding and implementing the practices and procedures which are now necessary for safe and successful operations on board ship.
“We have seen the pandemic cause unprecedented operational challenges for our members,” said Lars Rhodin, Managing Director of The Swedish Club. “Crew changes, quarantine requirements, disruptions and delays, have become day-to-day issues in these difficult times. Whilst the wider long-term effects are more unpredictable, what we do know is that those on board and ashore must put procedures in place to ensure the continuing safety of crew and the ongoing protection of their business activities.”
Part One of the COVID-19 Handbook focuses on keeping the crew safe, looking after the crew’s mental wellbeing, coming into port, and dealing with visitors to the ship. Part Two focuses on Club cover and provides advice on some of the most common situations a vessel could face in this new environment.
The Swedish Club would like to thank those organisations who have contributed source material for this handbook, including the International Chamber of Shipping and ISWAN.
Download your copy of the COVID-19 Handbook:
https://www.swedishclub.com/films-and-publications/publications/loss-prevention-and-brochures/
Please notify the Editor of your appointments, promotions, new office openings and other important happenings: contactus@themaritimeadvocate.com
Misecellany
Monkey business: Brian’s wild ride – just another case for a Gard claims executive.
Gard’s Beatriz Luaces Ă…sgĂĄrd, Senior Claims Executive reports.
It was mid-May and the member’s vessel was enroute from Port Kelang, Malaysia to Xiamen, China when the crew noticed a monkey scampering on a container stack.
Gard’s member immediately notified us of the sighting. Primates are susceptible to the Corona Virus and the Gard correspondent in Xiamen advised that the monkey must be caught and quarantined for fear of COVID-19 infection. The initial plan was to bring on board personnel from a Xiamen safari park to catch the monkey. The zookeepers reviewed the photos of the monkey and preliminarily identified it as a type of Langur, a protected animal in China.
Customs explained that it was illegal to import mammals into China and efforts to catch the monkey had been unsuccessful so the next plan was to bring on board a cage and try to lure the animal into the cage with apple slices and hope to have the monkey contained by the time the vessel arrived at her next port of call, Qingdao.
Still unsuccessful at catching the agile visitor and after several rounds of discussion with local Custom authorities, the agent managed to persuade the Qingdao authorities to allow the vessel to berth during day time and continue to try to lure the animal into the cage. The agent contacted the Qingdao Zoo who would have liked to assist but were prevented by COVID-19 concerns to come aboard. By this time, the crew had named their visitor “Brian”. The vessel completed operations at Qingdao with the next stop Busan, Korea.
In Busan, the correspondent arranged for the fire station rescue team to assist in the capture and had contacted a veterinarian, but again COVID-19 concerns kept them away. In any event, Korean authorities had already determined that Brian could not be disembarked in Korea, so it was off to the next port of call, Shanghai. Enroute to Shanghai, Brian finally decided to forego the run of the ship for a steady supply of apples and was kept in a cage where he was cared for by the crew.
The Shanghai correspondent liaised with the wild animal zoo and wild animal protection station in Shanghai and all seemed ready to accept Brian to a new home. But Customs denied disembarking him because his embarkation point was considered to be endemic for Dengue fever. Poor Brian had to stay caged on board – next scheduled call Ningbo.
After Ningbo, the Master decided that only thing left to do was to bring Brian home to Port Kelang. The vessel then deviated from a call in Singapore to Port Kelang and Brian was returned to where he had boarded. All told Brian was on board for over a month plying the waters of the South China sea. This was my third case involving monkeys. Dealing with such visitors is always challenging and more so during a pandemic.
Derek Luxford bids a fond farewell.
I have retired from Hicksons and from fulltime legal practice after 46 years as a lawyer, the last 40 as a maritime lawyer, a speciality I first embraced while working as a young lawyer in London in the late 70s and early 80s.
I have been an ardent supporter and occasional contributor to Maritime Advocate since its birth as a glossy magazine in the mid 90s if I am not mistaken, and then transforming itself into the outstanding online publication we all know so well through the enthusiasm and professionalism of Humphrey Hill and the late Sam Ignarski whose mantle you have assumed so well. Perhaps you would be kind enough to let your readers know of my retirement. I would like to continue receiving MA through my personal email derekaluxford@gmail.com.
I wish you and MA continued success.
Kind regards
Derek
Derek Luxford Consultant
E: Derek.Luxford@hicksons.com.au
And we wish Derek a long and happy retirement.
What’s that smell?
Early on in my career as Captain on many tankers, we were transporting a full load of Arctic diesel for NATO to Labrador and Greenland. The ship’s pump room was just forward of the engine room and the pump room bilge overboard was just forward of the fresh water distiller intake.
We were pretty far north and one morning our fresh water smelled like oil, even made the coffee undrinkable. The Chief Engineer came up to me and wondered if the Mate had pumped the pump room bilge and maybe some oil residue was in the water. I assured him that overboards were sealed and the bilges were not pumped, verified by checking that the seals were still intact. Came to find out later that we had sailed through a really high concentration of krill and if you distil krill it tastes exactly like fish oil. Not at all harmful, but certainly unpleasant to drink and smell.
The 2nd incident was transiting upbound in the Sacremento River to Benecia. As we passed through the Pinole Shoal channel deeply loaded there was a school of anchovies also in the channel and all our cooling water pump strainers immediately plugged up and everything in the Engine Room started to overheat. In a spot where we were restricted in manoeuvring we slowed a bit and the engineers quickly started the fire pumps and Butterworth pumps and crossed them over to the cooling water input and managed to keep the plant going. When we got to the dock and they started opening and cleaning strainers the entire engine room smelled like a fish factory!
I still remember vividly both of these incidents although it is now 40+ years ago.
Larry
Laurence V Wade, Commodore, USMS, Ret.
A maritime thrill, courtesy of Splash 24/7
Thrillers set in a maritime environment are all too rare at bookshops these days, and yet the opaque nature of shipping makes it the perfect setting for dark, mysterious tales.
Within the shipping industry there have been a few notable names who have turned their hands as fiction authors such as Nick Elliott and Matthew McCleery. To this list can be added the name – or pseudonym – Carlos Luxul whose new book, The Ocean Dove, is a tense maritime terrorism thriller, charting brilliantly how dangerous shipping’s loose global regulatory framework could be used for carnage.
Luxul, who declines to reveal his identity in conversation with Maritime CEO, is very much involved in the shipping industry in his day job, having held roles a broker and working on the commercial side for a number of owners and operators over the years. He managed to complete his first book writing in the evenings and weekends over a 12-month period.
“The genesis of the plot came from being in ports and realising how vulnerable their host cities were if someone had the wrong intentions,” Luxul says.
Many historical ports have moved outside their old downtown settings to green or brownfield sites, but many haven’t and are still operating “cheek by jowl” with major urban centres, Luxul points out.
“These ports are so often back doors to cities; doors that have been left open,” he says.
While The Ocean Dove is a complete story with a definite conclusion, it does lend itself to a sequel, something Luxul is not ruling out.
Buy the book here:
https://www.amazon.co.uk/Ocean-Dove-Dan-Brooks-Thriller/dp/1838594000/ref=sr_1_1?dchild=1&keywords=the+ocean+dove&qid=1593669236&sr=8-1
And read of the three nefarious maritime crimes that inspired your Editor’s Angus McKinnon thrillers, Sea of Gold, Dark Ocean and Black Reef:
https://nickelliott.org/blog/three-maritime-crimes-that-inspired-the-angus-mckinnon-thrillers/
Now for some more motivational miscellany, this time from Paul Dixon
“The significant problems we face cannot be solved at the same level of thinking we were at when we created them.” – Albert Einstein
Ever stop to think, and forget to start again?
A conclusion is simply the place where you got tired of thinking.
I don’t have a solution, but I admire the problem.
Calories can be burned by the hundreds by engaging in strenuous activities that do not require physical exercise.
Exercise Calories burned per hour:
Beating around the bush……………..75
Jumping to conclusions……………..100
Climbing the walls…………………150
Swallowing your pride……………….50
Passing the buck……………………25
Throwing your weight around (depending on your weight)…50-300
Dragging your heels………………..100
Pushing your luck………………….250
Making mountains out of molehills……500
Hitting the nail on the head…………50
Wading through paperwork……………300
Bending over backwards………………75
Jumping on the bandwagon……………200
Balancing the books…………………25
Running around in circles…………..350
Eating crow……………………….225
Tooting your own horn……………….25
Climbing the ladder of success………750
Pulling out the stops……………….75
Adding fuel to the fire…………….160
Wrapping it up at the day’s end………12
To which you may want to add your own favourite activities, including:
Opening a can of worms ……………..50
Putting your foot in your mouth……..300
Starting the ball rolling……………90
Going over the edge…………………25
Picking up the pieces after…………350
Thanks for Reading the Maritime Advocate online
Maritime Advocate Online is a fortnightly digest of news and views on the maritime industries, with particular reference to legal issues and dispute resolution. It is published to over 20,000 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.
