The Maritime Advocate–Issue 756

Posted:

1. Widow of Bangladeshi shipbreaker free to sue shipowner
2. Crew kidnappings surge in seas off West Africa
3. Grounding incidents in the Indonesian archipelago avoidable?
4. USCG fines vessel that failed to provide Notice of Arrival
5. West African countries apply ‘Traffic Rights’ levy on shipowners
6. ‘Mandatory provision of law’ found to cover U.S. secondary sanctions
7. Not enough information? How to comply with an order requiring an RFI response
8. We expect much of the freight container
9. ‘Shipper’ proves it was not the shipper and avoids claim for cargo explosion
10. EU Ship Recycling Regulation deadline approaches

Notices & Miscellany

ReadersÂ’ responses to our articles are very welcome and, where suitable, will be reproduced:
Write to: contactus@themaritimeadvocate.com

 


 

1. Widow of Bangladeshi shipbreaker free to sue, court rules.

Thanks to gCaptain and Naimul Karim (Thomson Reuters Foundation Copyright) for this report.
A Bangladeshi woman whose husband died while dismantling an oil tanker at a shipbreaking yard in 2018 can file a negligence claim against a British company involved in the vesselÂ’s sale, London’s High Court has ruled.

Khalil Mollah, 32, fell to his death while working on the tanker Ekta in the port city of Chattogram in south eastern Bangladesh, where scores of end-of-life ships are sent to be scrapped each year.

British lawyers representing his widow, Hamida Begum, took her case to court arguing that Maran (UK) Ltd was responsible for the ship ending up in Bangladesh, where working conditions in shipbreaking yards were known to be dangerous. The High Court judgment said Begum had “a real prospect of succeeding in relation to her claim in negligence. The proximate cause of the accident was the deceasedÂ’s fall from a height, but on a broader, purposive approach the accident resulted from a chain of events which led to the vessel being grounded at Chattogram,” the court’s judgment read. The ruling denied an application filed by Maran earlier this year to have BegumÂ’s claim struck out.

The Ekta, which was formerly called the Maran Centaurus, had been owned and managed by companies belonging to the Angelicoussis Shipping Group, which included Maran (UK) Limited, according to details from the judgment.

Rather than deal directly with shipbreakers it has been standard practice for decades for shipowners to act through brokers or intermediaries, the ruling said. The Maran Centaurus was sold for demolition in an August 2017 deal worth more than $16 million.

Bangladesh is one of the most popular destinations for breaking end-of-life ships with at least 230 broken on its beaches last year, according to NGO Shipbreaking Platform. Thousands of Bangladeshis depend on the sector for survival, but rights groups have been sounding the alarm about hazardous working conditions in the industry for years.

At least 24 shipbreaking workers were killed last year and another 34 were seriously injured at the scrap yards, the highest toll in almost a decade, according to Bangladeshi non-profit Young Power in Social Action.

FULL ARTICLE:
https://gcaptain.com/widow-of-bangladeshi-shipbreaker-free-to-sue-uk-company-court-rules/


2. Crew kidnappings surge in seas off West Africa, IMB reports.

So far this year, 49 crew have been kidnapped for ransom in the Gulf of Guinea and held captive on land for up to six weeks. Rates are accelerating with 32 crew kidnapped in the past three months alone. And they are happening further out to sea: two-thirds of the vessels were attacked on the high seas from around 20 to 130 nautical miles off the Gulf of Guinea coastline.

The IMB’s Piracy Reporting Centre urges vessels to report any attacks promptly. It can then liaise with coastal agencies, international navies and vessel operators, encouraging a quick response to deter piracy and armed robbery and improve the security of seafarers. The Piracy Reporting Centre also broadcasts to shipping via GMDSS Safety Net Services and email alerts to Company Security Officers.

FULL ARTICLE:
https://www.icc-ccs.org/index.php/1293-crew-kidnappings-surge-in-seas-off-west-africa-imb-reports

 


3. Are grounding incidents in the Indonesian archipelago avoidable, asks GARD P&I.

The Indonesian archipelago lies astride several main maritime trade routes. Daily, thousands of vessels ply between the Indian Ocean and South China Sea or Celebes Sea by transiting the narrow straits between the archipelagic islands and zig-zagging their way through them. Navigation in these waters is tricky given the high traffic density, lack of sea-room to manoeuvre and more importantly, the presence of uncharted underwater obstructions and relatively old and sparse hydrographic data. These multiple aspects suggest the most obvious risk is grounding on uncharted obstructions. The question we try to answer is – are such grounding incidents avoidable, and if yes then how?

To do so we first look at the traffic patterns in this area followed by a few case studies which Gard has handled in the recent past. All the case studies selected have multiple common denominators which we subsequently discuss. Finally, we provide some recommendations which mariners and shore management can consider.

FULL ARTICLE:
http://www.gard.no/web/updates/content/29992212/grounding-incidents-in-the-indonesian-archipelago
 

 


4. USCG fines vessel that failed to provide Notice of Arrival.

By Nick Blenkey writing in Marine Log.

The Coast Guard Sector Juneau, Alaska, reports that a foreign-flag vessel has been fined for failing to submit a Notice of Arrival in accordance with ports and waterways safety regulations. The Notice of Arrival (NOA) regulations require pleasure craft over 300 gross tons that are registered with foreign nations, and all foreign-flagged commercial vessels, to provide advanced notification to the Coast Guard Captain of the port responsible for the area in which they will moor or anchor. This allows the Coast Guard to screen vessels for safety, security or environmental concerns before they enter U.S. ports.

“Vessels that fail to comply with the Notice of Arrival requirements pose an undue risk to our ports, waterways and communities. The Coast Guard has these regulations in place to protect lives, property and the environment,” said Lt. Cmdr. Jonathan Dale, Sector Juneau prevention department head. “Any violations of these requirements will be investigated.”

The information submitted as part of an NOA allows the Coast Guard to verify that the vessel complies with applicable international conventions and determines whether the vessel requires an onboard safety/security examination upon arrival. Additionally, the Coast Guard can ascertain if the vessel has contracted with local resources that will be available to respond immediately to a discharge of oil into U.S. waters as required under U.S. law.

In addition, with the ongoing global pandemic, the Coast Guard employs the Notice of Arrival as a tool for screening the crewmembers and passengers of inbound vessels for signs and symptoms of COVID-19.

A vessel that fails to comply with the Notice of Arrival regulations, as published in Title 33, Code of Federal Regulations Part 160, may be subject to denial of entry to the United States, expulsion from U.S. waters, and/or a civil penalty of up to $34,871.00. Furthermore, knowing and wilful noncompliance with these regulations may constitute a Class D felony.

FULL ARTICLE:
https://www.marinelog.com/shipping/uscg-fines-vessel-that-failed-to-provide-notice-of-arrival/
 

 


5. West African countries apply ‘Traffic Rights’ levy on shipowners.

North P&I reports that Ivory Coast and Senegal are applying a ‘traffic rights’ levy on internationally trading vessels that load or discharge cargo at their ports, resulting in significant costs to shipowners.

Regulations issued by L’Union Economique et MonĂ©taire Ouest Africaine (UEMOA) relating to ‘Rights of Maritime Traffic’ took effect in January this year. They include the collection of fees from vessels based on the amount of cargo being imported or exported.

The tax is levied on the shipowner and the Article 4 of the UEMOA regulation warns they cannot seek reimbursement from cargo interests. The UEMOA regulation further states that goods in transhipment or in transit do not give rise to fees levied by its member coastal states.

FULL ARTICLE:
https://www.nepia.com/industry-news/ivory-coast-levy-on-shipowners/
 


6. “Mandatory provision of law” in an English law loan agreement found to cover U.S. secondary sanctions.

Reed Smith’s Brett Hillis, Leigh T. Hansson, Ray-Shio Ho, Eli Rymland-Kelly and Nicole Cheung explain.

The Court of Appeal has upheld the High CourtÂ’s decision that U.S. sanctions targeting Lamesa Investments Limited’s (LIL), ultimate owner, justified Cynergy Bank Limited’s (CBL) withholding of interest payments on a ÂŁ30 million loan from LIL.

While this case was decided in the context of a loan agreement, the case is of interest to anyone drafting or interpreting a provision of an agreement that grants a party rights if another party is affected by some form of illegality, including illegality clauses and sanctions clauses. In particular, it illustrates the court’s approach to interpreting such clauses in the context of U.S. secondary sanctions: measures which do not directly prohibit certain conduct by non-U.S. persons but which allow U.S. authorities to take severe action against such persons if they engage in that conduct. It is therefore of relevance to the shipping industry.

FULL ARTICLE:
https://www.reedsmith.com/en/perspectives/2020/07/english-court-of-appeal-upholds-finding-that-the-term
 


7. Not enough information? How to comply with an order requiring an RFI response.

Quadrant Chambers reports on the Gravity Highway v The Maritime Maisie case.

The Gravity Highway and the Maritime Maisie collided in the Korea Strait on 29 December 2013, and both parties brought substantial claims for damages. Gravity Highway was a newbuild car carrier on sea trials at the time of the collision and her owners therefore carried out the repairs themselves. Their claim was for the cost of those repairs.

Maritime Maisie interests served a document containing 155 requests for further information concerning the Gravity Highway claim. After some delay on the part of that ship’s interests in responding, the Registrar made an unless order requiring Gravity Highway interests to respond by a specified date, failing which a substantial part of their claim would be struck out.

Gravity Highway served a document purporting to respond to the requests by the required date, but Maritime Maisie took the view that the response did not adequately address certain of the requests. Maritime Maisie therefore applied for a declaration that the strike-out sanction had come into effect. Gravity Highway interests maintained that they had complied, but also appealed against the order and applied for relief from sanctions in the alternative. The Judge concluded that Gravity Highway interests were not in breach of the RegistrarÂ’s order.

The Court also upheld the appeal against the RegistrarÂ’s order and indicated that it would have granted relief from sanctions if necessary.

FULL ARTICLE:
https://www.quadrantchambers.com/news/not-enough-information-how-comply-order-requiring-rfi-response-gravity-highway-v-maritime
 


8. We expect much of the freight containerÂ…

The freight container’s simplicity and modularity has made it the mode of choice for the transport of goods for as much as 25% of dry trade globally, reports Peregrine Storrs-Fox, Risk Management Director at the TT Club. This remarkable position is underpinned by standards and expectations that have not been undone by the uncertainties of the current COVID-19 global pandemic or the financial crisis over a decade ago. Here he looks at such standards and expectations.

The use of standardised containers for much of global trade has become second nature; the range of cargo types utilising such units continues to expand. There is significant reliance placed by the various stakeholders on the overall integrity of the concept, some explicit and some implicit.
 
FULL ARTICLE:
https://www.ttclub.com/loss-prevention/tt-talk/tt-talk-discussion-of-cargo-worthy-containers-152706

Â…but containers do not just fall from the sky.
TT Club has previously reported on incident experience whereby containers have dropped from lifting equipment during handling operations. Recurrence appears, as previously, to have nothing to do with the intrinsic quality of the corner castings. The reliability of the lifting process is critical.

FULL ARTICLE:
https://www.ttclub.com/loss-prevention/tt-talk/tt-talk-containers-do-not-just-fall-from-the-sky-152708
 


9. ‘Shipper’ proves it was not the shipper and avoids claim for cargo explosion.

Sally-Ann Underhill and Emily Balment of Reed Smith report on the findings in the “MV NORTRADER” case.

The claimant was named as shipper on a bill of lading for a consignment of cargo on the MV Nortrader, despite not being a party to the contract of carriage. The defendant, the owner of the vessel, suffered losses after a cargo explosion occurred on board the vessel shortly after the cargo had been loaded. The defendant commenced arbitration and brought a claim for damages against the claimant, as the named shipper. Although a London tribunal found it had jurisdiction to hear the dispute, the claimant was successful in its application to the High Court under section 67 of the Arbitration Act 1996 to set aside the award on the basis it was not the shipper and therefore was not a party to an arbitration agreement with the defendant.

FULL ARTICLE:
https://www.shiplawlog.com/2020/07/09/shipper-proves-it-was-not-the-shipper-and-avoids-claim-for-cargo-explosion-mvv-environment-devonport-ltd-v-nto-shipping-gmbh-co-kg-ms-nortrader-2020-ewhc-1371-comm/
 


10. EU Ship Recycling Regulation – compliance and inventories of hazardous materials.

The European Union (EU) Ship Recycling Regulation (SRR) came into force in 2018 and aims to reduce the adverse impact on health and the environment of recycling ships at the end of their use. The SRR requires all EU flagged vessels and non-EU flagged vessels calling at any EU member state to have – from 31 December 2020 – an Inventory of Hazardous Materials (IHM) on board. The London P&I Club has been examining the Guidelines.

The IHM consists of the following:
 
Part I: Materials contained in the vessel itself, or equipment
Part II: Operationally generated waste
Part III: Stores on board the vessel
 
Shipping industry organisations have jointly developed Guidelines on the preparation/steps to develop the IHM. Owner members should take steps at the earliest opportunity to ensure compliance with the EU SRR in view of the approaching deadline and potential restrictions on physical inspections arising from the COVID-19 pandemic.

FULL ARTICLE:
https://www.londonpandi.com/knowledge/news-alerts/eu-ship-recycling-regulation-compliance-inventories-of-hazardous-materials/
 


Notices

LMAA publishes guidelines for Virtual Hearings.
Daniella Horton, FCIArb, Honorary Secretary and Full Member of the London Maritime Arbitrators Association, has sent us a link to the Guidelines document as it appears on the LMAA website. Ian Gaunt, Past President of the LMAA and Chairman of the LMAA IT Working Group, said:

“LMAA arbitrators have been carrying on with virtual hearings since the lockdown began at the end of March. Although there was some initial reluctance of parties to have hearings dealt with in this way, virtual hearings have now become the norm and in most cases arbitrators and parties have been able to find a way around the logistical difficulties which appeared at first, such as making documents available electronically. It is estimated that some 20 virtual hearings have now been held in LMAA cases (around 100 hearings being typical in a 12 month period). It seems certain that when we are able to go back to physical hearings, some of the techniques used in lockdown will continue to be used, for example presentation of documents electronically and cross-examination of witnesses without the need for them to fly to London. The new LMAA Guidelines are an important step in making clear to parties involved what will be expected of them in preparing for a virtual hearing and in the hearing itself.”
http://www.lmaa.org.uk/news-article.aspx

Fumihiko Shimizu appointed new President of Thomas Miller KK
Thomas Miller, manager of the UK P&I Club, has announced the appointment of Fumihiko Shimizu as the new President of Thomas Miller KK in Japan.

Fumihiko Shimizu gained extensive experience in the Japanese shipping industry when working with a leading Japanese shipowner where he held various roles in insurance, claims and commercial management. As the new President, he will concentrate on the operations of TMKK, building on and promoting the correspondency and service management areas of the business, which were established in Japan last year. He will be working closely with Masaki Oiwa, the UK P&I Club Representative of the Japan Branch, and Paul Sessions, the Regional Director for Japan, responsible for the servicing of the ClubÂ’s Japanese business globally.

Ince adds former P&I man and master mariner Dalby as partner
The experienced lawyer joins from Mills & Co after spending time at the North of England P&I – and at sea. Ince has added valuable P&I and shipping experience with the recruitment of new partner and master mariner, Martin Dalby.

‘Well-liked’ P&I stalwart Neil Day dies aged 53
Gary Dixon of TradeWinds reports that tributes to P&I executive Neil Day have poured in following his death at the age of 53. The experienced claims handler passed away due to complications following an operation. Known to many in the shipping world, Day began his career at the West of England club, where he worked as a claims handler from 1995 to 2003.
 

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Miscellany

In searching for suitable epigraphs to go into the Angus McKinnon thrillers, I ended up with the following which I thought might be apposite or at least of interest to our readers:

‘There is a tide in the affairs of men,
Which taken at the flood,
Leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat [Ed:hopefully],
And we must take the current when it serves,
Or lose our ventures.’

William Shakespeare, ‘Julius Caesar’, Act 4, Scene 3
(Sea of Gold)

“For whosoever commands the sea commands the trade;
whosoever commands the trade of the world commands the riches of the world,
and consequently the world itself.”

Sir Walter Raleigh
(Dark Ocean)

‘Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt.’
Sun Tzu, The Art of War
(Black Reef)

An English professor wrote the words, “a woman without her man is nothing” on the blackboard and directed the students to punctuate it correctly.

The men wrote: “A woman, without her man, is nothing.”

The women wrote: “A woman: without her, man is nothing.”

Perspective is everything!

And finally, did you hear about the dyslexic, agnostic, insomniac?
He lay awake all night wondering if there was a dog.
 


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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.