The Maritime Advocate–Issue 760

Posted:

 

 

Issue 760

August 14th, 2020

 

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Editor: Sandra Speares | Email: contactus@themaritimeadvocate.com

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IN THIS ISSUE
1. Shipping’s humanitarian crisis.
2. Easily forgotten –   Michael Grey comments
3. Force Majeure under review
4. Wakashio investigation and comment
5. Tugs on station
6.  Human rights arbitration
7.  Don’t do it again
8. Exceeding laytime
9. TT Club: supply chain security
10. Liquefaction dangers
11. Lifesaving appliances
12. Indian Supreme Court ruling on abandoned cargo
13. Cargo screening tool for dangerous goods
14. Indian multimodal legislation
15. Benchmarking crew wage costs

Notices & Miscellany

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

 


 

1. Shipping’s humanitarian crisis

A humanitarian crisis is taking place at sea and urgent action is needed to protect seafarers’ health and ensure the safety of shipping, the IMO Secretary-General Kitack Lim has warned. In a strong statement issued ahead of the General Assembly of the United Nations, he called on governments to take swift action to resolve the crew change crisis. 

It is estimated that more than 300,000 seafarers and marine personnel are currently stranded at sea and unable to be repatriated despite the expiry of their contracts. A similar number of seafarers have been unable to join ships and relieve them. This is due to restrictions imposed by several governments in the wake of the Covid-19 pandemic, including restrictions on travel, embarkation and disembarkation in ports, quarantine measures, reductions in available flights and limits on the issuing of visas and passports.

Mr Lim said that resolving the crew change crisis will require a “whole of government” approach involving several ministries. He reiterated his call to all Member States to designate seafarers as key workers providing an essential service, and to implement the IMO-approved Protocols to allow for safe and secure crew changes. The IMO Secretary-General also insisted on the importance of removing other barriers to crew changes, such as visa and travel restrictions, and of providing seafarers with immediate access to medical care and medical facilities on shore, when needed. 

Mr Lim has invited Member States to raise the issue of seafarers and the crew change crisis during the upcoming High-Level Week of the 75th session of the United Nations General Assembly, beginning on 22 September 2020. ILO, IMO and the UN Global Compact will host a side event during that week in order to raise the visibility of the crew change crisis on World Maritime Day, 24 September 2020.

Read the full statement here
 


2. Easily forgotten –  Michael Grey comments

“Seafarers at the core of shipping’s future” might seem somewhat an obvious observation – a bit like suggesting that the sea is a necessary adjunct to the flotation of ships. It is, in case it has escaped your notice, the IMO’s “World Maritime Theme” for 2021, and it is clear, bearing in mind the world’s treatment of this important workforce in 2020, something that needs to be yelled from the rooftops.
IMO would like its annual campaign to increase the visibility of seafarers, which is harder than it seems, as few among our populations, preoccupied with their Covid concerns, would ever think about them. But it is worth considering that unlike all those millions of folk who have been largely idle since the pandemic struck, or cheerfully WFH, it’s the seafarers who have stopped the world starving, and prevented your lights going out.

Well, you might say that’s their job, like the dustmen and supermarket delivery drivers and postmen and farmers who never ceased their activities even during lockdown. But what nobody seems to appreciate, is that unlike all those other heroes of the pandemic, the seafarers never stopped at the end of their shifts, keeping on working well beyond the end of their long contracts, because there was no relief for them.
In ports around the world, officials whose job was to say “no”, denied these invisible workers their right to shore leave, making it clear that they were to stay aboard their ships, and that there was no possibility of a crew change. There were endless excuses – there were no hotels available in which waiting crew might be quarantined before their ships arrived, or until an aircraft might take them home. It was always someone else’s problem and the easiest thing to tell the master that he had to push on to the next port, where help might be available. Everyone knew that it probably wouldn’t be.

Listening to someone waxing lyrically on the radio today on the human rights of refugees and illegal asylum seekers, I thought that some emphasis on the human rights of seafarers might be nice. It would be interesting to see some sort of legal challenge, on behalf of seafarers, focussing on the denial of rights to which others are accustomed. Rights to a family life, perhaps, or in the case of months on end without setting foot on land might be considered “cruel and unusual punishment”.  There have been ports where seafarers wanting urgent medical or dental treatment have had this denied. There have been other places where positively vituperative campaigns have been stirred up by the local media, suggesting that the ships coming into their ports, bringing the goods they could not do without, and in which their exports will be carried, will be laden with disease.

The industry’s institutions and fair minded employers have done their utmost to raise the plight of these essential workers with governments and there have indeed been successes in repatriating crew who have been at sea for ridiculous lengths of time, often well beyond legal limits. There are some nations which have been prepared to categorise seafarers as the “essential workers” which they are, some ports and governments which have gone that extra mile.

One of the real consequences of this invisibility of the seafaring workforce is the complete inability to even imagine what life is like aboard ship, under this appalling regime. The ships, and their goods, keep coming, but no landsman ever has a clue what goes on the other side of the dock wall. Outside the specialised cruise ship sector with their considerable shipboard populations, the individual ship’s complements are too small to make any waves.

What a miserable life to contemplate, one of apparently endless work, as the voyage goes on, and on, with no prospect of it terminating. No chance of a brief visit to the shops, with the ship in port, no possibility of getting beyond the end of the gangway. Think of a forty day voyage at “economical” speed in your steel box, and only being able to smell the land or glimpse a tree from the top of the superstructure, when your ship finally berths. What is there to recommend in such a life?
And think on those thousands of seafarers who are on leave, but financially unsupported and unable to join the ships they need to earn the money to feed their families.  Shipping companies, agencies, all jumping through bureaucratic hoops as they try and negotiate the changing regulatory minefield. There are quite extraordinary journeys criss-crossing the earth, as seafarers make their journeys home, or attempt to get to work. Most, invariably with little logic, will involve weeks in quarantine.
 
You might suggest that this pandemic is a one-off and desperate times need appropriate measures, but it is the failure to even recognise the needs of this essential workforce that sticks in the craw. Maybe we can expect nothing better, if you look back to the way that merchant seafarers have been treated over the years, in both war and peace. Essential workers they might be, but very easily forgotten. 

Michael Grey is the former editor of Lloyd’s List.


3. Force Majeure under review

With an increasing focus on force majeure due to the Covid-19 outbreak, BIMCO has gathered a drafting team to develop a free-standing force majeure clause for use in a variety of contracts.
Successfully invoking force majeure under a charterparty or other contract depends on many factors. One essential element for contracts governed by English law is that the agreement must contain a clause that defines what constitutes a force majeure event and sets out the circumstances under which the clause can be invoked to excuse liability for non-performance. That is because force majeure is not a free-standing legal concept under English law, as opposed to some civil law countries such as France, where it is written into the Code Civil. English law operates instead with frustration, which has a reputation of being almost impossible to attain.

Although several BIMCO contracts include a force majeure clause, this clause was never published as a stand-alone clause in BIMCO’s clause library. The drafting team met for the first time on 1-2 September to discuss issues such as:
•    Who the clause should benefit and what the threshold for invoking force majeure should be.
•    What should qualify as a force majeure event for the purpose of the clause. 
•    What the consequences of a force majeure event should be, for example, non-liability for damages, suspension of performance, or termination.
•    Whether different force majeure clauses should be developed for different types of contracts. A force majeure clause in a voyage charter party would need to provide for different consequences than in a ship sale and purchase contract due to the nature of these contracts.

The experts on the drafting team – Inga Frøysa, Klaveness, Nicola Ioannou, Oceanfleet, Peri Ertugruloglu, Glencore Agriculture, Rory Butler, HFW, Andrew Rigden Green, Stephenson Harwood, and Philip Stephenson, The Standard Club – will continue their deliberations at the next meeting in October. contracts@bimco.org

 


4. Wakashio investigation and comment

Investigation into the circumstances surrounding the grounding of the Panama-flagged bulker Wakashio are ongoing, with the detention of the master in Mauritius. The Panama Maritime Authority (AMP) has issued an initial statement about the investigation, which is still in the data collection phase. In the statement AMP says:

“As far as the evidence shows, it has been known, through statements by the same crew, that the change of course is produced by indications of the captain of the boat, who gave instructions to approach about 5 miles away from the coast of Isla Mauricio, looking for a telephone and Internet signal, so that the crew members could communicate with their families.

“It should be noted that the captain of the ship, the chief engineer and the first officer were on the navigation bridge when this improper approach took place, which caused a dangerous situation alerted, in the first instance, by the Mauritian authorities.

The last position taken in the ECDIS (Integrated Nautical Charts and Navigation Equipment System) was at 1802 LT, and the ship grounding was recorded at 1925 LT.

According to the analysts, with a safe guard and applying good seamanship practices, a proper analysis of the situation would have allowed taking the pertinent actions to correct the course and avoid the accident.

On the navigation bridge there were people with enough experience in assessing the problem. An erroneous assessment of the Electronic Nautical Chart could also be verified, since it seems that the wrong chart was being used and with the wrong scale, which made it impossible to properly verify the approach to the coast and shallower waters, the researchers add in their  preliminary report.

The lack of supervision and monitoring of the navigation equipment, the distraction generated when the officer of the watch totally loses the course of the navigation and an “excess of confidence” during the watch, are indicated among the causes that could cause the grounding and partial sinking of the vessel on a coral reef off Mauritius.
 
The AMP awaits the result of an interview with the captain, in custody, and the first officer, and has requested access to the VDR (voyage data recorder) and other essential ship navigation documents in the investigation, which are in the custody of the Police of the Republic of Mauritius.” 

https://amp.gob.pa/

Further useful commentary on the accident are to be found in Baird Maritime’s newsletter: https://www.bairdmaritime.com/ship-world/dry-cargo-world/column-destroyed-by-technology-grey-power/

 


5. Tugs on station

The issue of whether there should be tugs on station round the UK coastline has been a matter for ongoing debate for many years.  Those readers who have been following the story will be interested to read the new study published by the UK Government on whether or not Emergency Towing Vessels are likely to be available to assist ships in advance of a collision or grounding occurring.

Readers can see the latest report at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913687/S_31_-_ANNEX_A_-_Summary_Report.pdf
 


6. Human rights arbitration

UK-based NGO Human Rights at Sea and the Paris-based arbitration practice of global law firm Shearman & Sterling  have gone live with a new website dedicated to the development of an international arbitration-based system of redress for victims of human rights abuses occurring at sea entitled: “Human Rights at Sea Arbitration”.

The Human Rights at Sea Arbitration initiative seeks to establish a standalone, institutional system of international arbitration that is specifically tailored to the sensitivities and complexities of human rights at sea issues.  A central feature of this system is that it will put the enforcement of human rights in the victim’s hands by giving the victim the right to bring claims directly against alleged responsible parties.

The principal aim of this design – and of the initiative more generally – is to provide victims of human rights abuses at sea with access to an effective remedy, while at the same time combating impunity for the perpetrators of such abuses.
 


7. Don’t do it again.

Learning from mistakes and bad practice is a key part of improving safety and good work practices. The latest series of reports of incidents from the CHIRP Charitable Trust, MARITIME FEEDBACK 60 is now available.

This is the third bulletin this year and contains reports on working aloft, engine failures whilst manoeuvring, the use and limitations of navigational equipment including pilot PPUs. There is also mention of a recent report on the use of mobile phones and the potential for distraction. MFB 60 is available online in four languages, English, Chinese, Portuguese and Filipino.

The latest edition can be found here
 


8. Exceeding laytime

Reed Smith brings to our attention a new judgment in the English courts on damages in addition to demurrage. The judgment handed down by the English High Court has re-opened the door to recovering damages in addition to demurrage for losses caused by exceeding laytime in cargo operations.

For further details on the 85 page judgment in K Line Pte Ltd vs Priminds Shipping (HK) Co Ltd (The Eternal Bliss) [2020] EWHC 2373 (Comm) go to https://www.shiplawlog.com/2020/09/07


9. TT Club: supply chain security

It is well recognised that cargo theft is prevalent and always identifies weak links in the supply chain. Analysis identifies the “final mile” leg of transit as the most frequently exposed. Often involving temporary or in transit storage, the trucking element of the journey is often targeted. Here we look at two specific aspects of security for such risks.

Appreciating that where opportunity exists, innovation follows, TT says it closely monitors developments in a number of sectors. Developments in supply chain security in particular are of high interest, whether it is a new locking device, a tamperproof security seal, smart containers or initiatives to make wholesale fundamental changes to the current security landscape.

One security innovation that TT has been monitoring over the last 12 months is a product brought to market by Freightsafe and BOSCH Secure Truck Parking.

https://www.ttclub.com/news-and-resources /news/tt-talk/2020/tt-talk