1. Asleep at the wheel
2. Greener fuels, greener seas
3. Styrene dangers
4. Shell appeals
5. Speeding ships
6. Ocean carriers audit programme
7. Bill of Lading surprises
8. Time bars at midnight
9. Positive shore-side Covid response
10. Mediation under the spotlight
11. Bahamas inspection campaign
12. Canadian ballast water
13. Personal jurisdiction
14. Seafarers’ happiness
Notices & Miscellany
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1. Asleep at the wheel
By Michael Grey
The results of an inquest in the UK on the deaths caused by a tram coming off the rails gave one pause for thought. The driver, it had concluded, had suffered a “microsleep” at the very moment he should have been applying the brakes and the tram had rushed on with fatal results. The verdict, it is fair to say, has been widely criticised, not least by the relatives of the dead and injured, along with others who pointed out that falling asleep at the wheel of a speeding vehicle invariably leads to criminal convictions in the event of an accident.
It might also be asked whether this momentary lack of alertness, in any moving vehicle, aircraft or ship is caused because the driver, pilot, or officer of the watch lacks sufficient stimulation to keep their mind on the job. It must be almost impossible to tell whether a person has briefly nodded off, or has become so bored that the mind has wandered.
Years ago Dr Martin Dyer-Smith, who had been a senior ship’s officer before retraining as an industrial psychologist, was commissioned by the Maritime & Coastguard Agency to undertake some research into the effects of fatigue. This was particularly important at that time, because there was a great deal of enthusiasm for One Man Bridge Operation, in which there would be no need for a lookout to be stationed alongside the OOW during the hours of darkness. The Norwegians, I recall, who retain their fetish about minimum manning, I recall were very gung-ho on the idea.
Martin undertook a number of voyages on short-sea ships and as a result came to important conclusions about the wisdom of OMBO and its numerous risks, along with the insidious and cumulative effects of sleep deprivation, particularly on officers working watch and watch. I recall his report of a case where, lurking in the back of a wheelhouse, he had passed his hand over the open eyes of the watchkeeper, who failed to even notice this, even as he had signally failed to react to a the lights of a ship on a steady starboard bearing. The officer, concluded Martin, had been in a “catatonic trance” – something we probably all have experienced at some stage, as your thoughts take you miles away from where you really ought to be at a given moment.
Decades later and we still are getting no nearer to any conclusive action that might sort out this problem once and for all. The latest concern, which has rather taken over from the disconnect between a human and machinery is “distraction”, and there is now a growing archive of accidents which have been attributed to this cause. This is somewhat different; rather than boredom or sleepiness, it is alarms going off, essential paperwork, endless communications or too many things happening at once for the available hands, that diverts the watchkeeper from the navigational task.
But as we address this issue, we should not forget the older problems raised by the lack of stimulation, boredom, sleepiness and equipment that it is difficult to deny has taken a great deal of the challenge out of the watchkeeper’s role. If people are bored witless, shouldn’t we recognise the dangers and try and do something about it?
They might have been introduced with the best of intentions, by clever equipment manufacturers anxious to sell things, but SatNav, AIS, clever computing radar and other gear that reduced the watchkeeper to a mere overseer of machinery, successfully managed to de-skill the human component, without replacing any of the stimuli required for alertness. And it is still going on unchecked – the messages are perhaps more subtle than “buy our amazing navigational system, it can be worked by idiots” – but the inference is the same. And now, rather than confronting the problem and putting a bit more interest and challenge into the task, we are actually talking about ships with nobody mostly on the bridge or at the machinery controls during a deep sea passage, leaving it to clever sensors to pick up any approaching dangers.
Then, I suppose, some bored watchkeeper, awakened from their slumbers like Rip Van Winkle, by alarms, or electric shocks, will stumble to the bridge or engine room, and do what is necessary, if they can remember what that is.
Michael Grey is former editor of Lloyd’s List.
2. Greener fuels, greener seas
As the maritime industry seeks to grapple with the issue of climate change and the use of greener fuels, Hill Dickinson has penned an assessment of some of the products available and the challenges that the industry faces when deciding which route to follow fuel–wise.
Listed here are some of the pros and cons of different alternatives and the article asks the question whether a single ‘new’ fuel might emerge for the future which would (hopefully) solve everyone’s problems. Read more about the issues with which the industry must get to grip at:
3. Styrene dangers – the Stolt Groenland
The UK’s Marine Accident Investigation Branch has recently published its report into the recent fire aboard the Stolt Groenland, which highlighted the dangers of styrene cargoes. On 28 September 2019, a cargo tank containing styrene monomer on board the Cayman Islands registered chemical tanker Stolt Groenland ruptured due to runaway polymerisation.
The catastrophic rupture released a large quantity of vapour to the atmosphere, and it subsequently ignited. Fire-fighting efforts by the emergency services took over six hours and involved more than 700 personnel and 117 units of fire trucks, pumps and fire tugs.
4. Shell appeals
Shell is set to appeal a ruling issued by the District Court in The Hague, in May 2021 saying the oil major must reduce its global net carbon emissions by 45% by 2030 compared to 2019 levels.
Shell says it wants to rise to the challenge of the ruling and accelerate its powering progress strategy to become a net-zero emissions energy business by 2050, in step with society’s progress towards the goal of the Paris Agreement on climate change. As part of this strategy, Shell had already set its own short- and medium-term targets for cutting carbon emissions. It is working with customers, governments and wider society, sector by sector, to establish rapid and realistic ways to get to net zero.
“We agree urgent action is needed and we will accelerate our transition to net zero,” said Royal Dutch Shell chief executive, Ben van Beurden. “But we will appeal because a court judgment, against a single company, is not effective. What is needed is clear, ambitious policies that will drive fundamental change across the whole energy system. Climate change is a challenge that requires both urgent action and an approach that is global, collaborative and encourages coordination between all parties.”
Shell published details of its powering progress strategy in April 2021. The court did not consider this because the hearings that led to the ruling took place several months earlier, Shell said in a statement.
5. Speeding ships
Oceana has released a new report finding that most vessels are exceeding speed limits in areas designed to protect critically endangered North Atlantic right whales, of which only around 360 remain. Oceana analysed vessel speeds from 2017 to 2020 in speed zones established by the National Oceanic and Atmospheric Administration (NOAA) along the US Atlantic coast, and found non-compliance was as high as almost 90% in mandatory speed zones, and non-cooperation was as high as almost 85% in voluntary areas.
Collisions with vessels are one of two leading causes of injury and death for North Atlantic right whales. Studies have found that slowing vessel speeds to 10 knots reduces a North Atlantic right whale’s risk of death from vessel strikes by between 80% to 90%. While this analysis focused on vessels 65 feet or larger that are required to use public tracking devices, vessels of all sizes can cause fatal injuries to North Atlantic right whales.
The Federal Maritime Commission has established a new audit programme and dedicated audit team to assess carrier compliance with the agency’s rule on detention and demurrage as well as to provide additional information beneficial to the regular monitoring of the marketplace for ocean cargo services.
The “Vessel-Operating Common Carrier Audit Program” was established at the direction of chairman Daniel Maffei. The audit programme will analyse the top nine carriers by market share for compliance with the Commission rule interpreting 46 USC 41102(c) as it applies to detention and demurrage practices in the United States. The Commission will work with companies to address their application of the rule and clarify any questions or ambiguities. Information supplied by carriers may be used to establish industry best practices.
Other focus areas of the audit process may include practices of companies related to billing, appeals procedures, penalties assessed by the lines, and any other restrictive practices.
“The Federal Maritime Commission is committed to making certain the law is followed and that shippers do not suffer from unfair disadvantages. The work of the audit team will enable the Commission to monitor trends in demurrage and detention practices and revenue, as well as to establish ongoing dialog between staff and carriers on challenges facing the supply chain. Of course, if the audit team uncovers prohibited activities, the Commission will take appropriate action. Furthermore, the information gathered by the audit process might lead to changes in FMC regulations and industry guidance if warranted,” said Maffei.
The Audit Program will begin with an information request establishing a database of quarterly reports allowing the Commission to assess how detention and demurrage is administered. Responses will be followed by individual interviews with the carriers. Each of the nine largest carriers by market share will be audited irrespective of whether a formal or informal complaint has been filed at the Commission.
Lucille Marvin, the Commission’s Managing Director, will lead both the audit program and the audit team, which will initially be comprised of existing Commission employees.
7. Bill of Lading surprises
While the bill of lading is ostensibly widely understood, its role as evidence of the contract of carriage holds some hidden surprises to watch out for. Ian Short, director, Campbell Johnston Clark, explains.
The basic functions of a bill of lading are widely understood as offering: acknowledgement that the goods have been loaded on board the vessel (the receipt); confirmation that a lawful bill of lading holder has title to the goods; evidence of the terms of the contract of carriage.
Whilst that may sound simple enough, recent guidance has emphasised that the last of these functions may not be so well understood after all.
One reason is that finding the terms for the contract of carriage involves seeking guidance not only from the face and reverse of the bill of lading but from relevant provisions in an incorporated charterparty. Another is that ascertaining terms will also involve establishing which of the Hague Rules / H-V Rules apply and whether they apply automatically or do so by virtue of the Clause Paramount on the back of the bill.
To add to the complexity there are scenarios where a B/L is not even evidence of the terms of the contract of carriage at all; for example, when the B/L is between the same two parties to a C/P (e.g., between an owner/carrier and a charterer/shipper or receiver).
For the full story see https://www.cjclaw.com/site/news/bill-of-lading-can-still-carry-surprises
8. Time bars at midnight
Where a deadline falls on midnight on a particular day, can action be validly taken on the next day? Cecilie Rezutka, Associate at CJC, reviews the UK Supreme Court’s judgment and what it means for shipping litigation.
In Matthew and others v Sedman, the UK Supreme Court considered whether where a cause of action accrues at, or on the expiry of, midnight at the end of a day, the following day counts towards the calculation of the limitation period.
9. Positive shore-side Covid response
Onshore personnel have reacted positively to companies’ efforts in the light of the Covid pandemic although more work is needed to address discrimination and diversity issues, according to a new report by Halcyon Recruitment, Diversity Study Group and Coracle Maritime.
Maritime employers have responded well in looking after their shore-based teams during the ongoing Covid pandemic, according to the results of a new survey of maritime employees, in contrast to the experiences of seafarers during the pandemic. Further action is needed to confront discrimination and to support diversity and inclusion in the workplace, according to the survey.
As far as responses to the pandemic were concerned and actions taken over lockdown, most respondents gave a positive response to the steps taken by their employers, with 73% stating that their employer has responded appropriately, 68% saying that their employer has supported them to work flexibly, and 75% feeling connected with their team and colleagues. At the same time, 53% reported an increase in their workload because of Covid.
Although this picture appears largely consistent across job roles, sectors and regions, there are some notable exceptions. Overall, 76% of survey participants feel either extremely or moderately secure in their jobs, but this falls to 67% for those in insurance and legal roles, 66% in HR, crewing and support roles, 61% in the offshore sector, and just 45% in the Indian sub-continent, the report suggests.
Despite the ongoing challenges posed by the pandemic, the maritime jobs market appears fluid, with 87% of respondents stating that they are either ready to move to a new role or are open to offers. This may be due to the success of remote working, with employees confident that they can work successfully, despite the restrictions of the past year, with many workplaces closed and very limited face-to-face contact with colleagues or customers.
The survey also reveals an unwelcome picture when it comes to discrimination in the maritime industry. Just over half of all survey respondents (51%) stated that they are personally aware of discrimination within the shipping industry. The three leading causes of discrimination were nationality (53%), gender (44%) and age (40%). Furthermore, only 52% of respondents said that they felt able to raise discrimination concerns with their current employer.
The survey report is available on the Halcyon website. To download a copy, visit https://www.halcyonrecruitment.com/files/Maritime-Employee-Survey.pdf
10. Mediation under the spotlight
Rhys Clift has recently published a paper on the Impact of Covid-19, Facilitative Mediation, Early Intervention, and the new Visual Online Dispute Resolution, the first of two papers published on ADR, at a particularly striking moment, as all restrictions imposed by the British Government (applicable in England) were to be lifted on 19/7/2021. He discusses the process below.
Facilitative Mediation (FM) has progressively become the dominant form of alternative dispute resolution (ADR) process in the UK and more widely aboard. The main reason is that it works, cases settle, problems are solved. This first paper is principally directed to that process.
Early Intervention (EI) is a new form of mediation. It has evolved from the original concepts that have made facilitative mediation so successful, but with differences that can prove useful in particular cases. The second paper will set out some of the essential features of EI.
Online Dispute Resolution (ODR) has existed from some point after the launch of the internet and widespread use of email, from about 1999 onwards. Software systems now offer the opportunity to conduct both mediation and early intervention remotely, in a manner that broadly replicates the original concept in each case, but in a radical new way, as a new and enhanced form of Visual ODR. The new visual ODR will also be dealt with in the second paper.
The impact of the COVID-19 pandemic, and the stunning shift to “compulsory” remote working, has catalysed a huge change in mediation practice, court practice and in general business practice, the many implications of which are progressively emerging. It may have huge, previously unexpected effects with wide ranging consequences, on town and city planning, office occupancy, commuting, the use and investment of capital (commercial and domestic), international travel, potentially even reversing the effects of decades of rural depopulation. It is reshaping thinking in a manner unseen since the Industrial Revolution and the extraordinary spread of the railways, notably in the UK. Without the parallel revolution in information technology, from the first development of the silicon chip, domestic PCs, laptops and tablets, and the invention and spread of the Internet, none of this would have been possible.
COVID-19 and technology have made on-line mediation, and on-line EI, both a necessity and a credible, workable and effective new normal. This is a paradigm shift.
Negotiation and deal-making are of enormous importance, from small domestic disputes to disputes between states.
The best way to describe and to analyse something new is often to make a comparison to that which it succeeds, or that which it is not; hence the model of these two papers. Traditional facilitative mediation provides the basis of practical and theoretical thinking for a certain method of managed negotiation. It is the framework or template on which later EI and the new Visual ODR are based. For that reason, having touched on the pandemic, this first paper then focusses substantially on facilitative mediation. In the second paper, many of the similarities and differences between FM on the one hand and EI and Visual ODR on the other will then be addressed. The papers are professional and practical not academic and theoretical (although there are footnote references to evidence and further material which might be reviewed).
The main sections or subsections of this paper (and the second paper) have been written, at least in part, to be self-standing. As such, they can largely be read in isolation, returning to themes in earlier sections for review, comparison and evaluation, internally within each paper and between both papers. The two papers are designed to be a coherent whole, where each informs the other.
This paper has just been published in the Journal of International Maritime Law (JIML) at 27 JIML page 96, on 9th July 2021. The second paper will shortly be published in the JIML. The first paper is to be published shortly on the Social Science Research Network.
Rhys Clift is an English solicitor, a partner in the international law firm Penningtons Manches Cooper LLP, based in the City of London, Commercial Mediator and author. He is a Distinguished Neutral at CPR the International Institute for Conflict Prevention and Resolution in New York. He has spoken and published widely, nationally and internationally, in particular on insurance, mediation and ADR.
11. Bahamas inspection campaign
The Bahamas Maritime Authority has put in place a Concentrated Inspection Campaign (CIC) for pilot transfer arrangements. It will continue to run until the end of 2021.
The BMA has shared the results of the International Maritime Pilots’ Association (IMPA) Safety Campaign with its fleet since 2015. Noting a consistent level of non-compliant pilot boarding arrangements across the industry and the related tragic deaths, The BMA has implemented a range of steps to improve safety. In January, Safety Alert 2021-01 was expanded to highlight common defects and why they are non-compliant as well as to share the IMPA survey results.
Subsequently the authority published an information notice in March 2021 to make vessels under the Bahamian Flag aware of the SOLAS requirements with regards to equipment and arrangements for pilot transfer. This included the pilot ladder construction and maintenance requirements under the ISO 799-1:2019 standard. To further emphasise the importance of the issue, The BMA produced a training presentation for its authorised flag inspectors worldwide to ensure that they were specifically aware of these requirements and regulations.
To underpin the new initiatives, The BMA has decided to undertake a CIC to run for the second half of 2021. The related technical alert raises the root causes of many of these cases, namely: use of non-compliant pilot and combination ladders; unauthorised modifications to deck access; defective winches and reels; and incorrect ladder securing. Not only will inspectors be asked to complete a checklist as to the compliance of equipment, they will also require evidence that the ship has conducted at least one training session to increase crew awareness of correct procedures. To aid inspectors, the checklist includes photographs demonstrating examples of both good and unacceptable practice.
Further information can be found at IN018-Pilot-Boarding-Arrangements-v1.1-ID-116166.pdf (bahamasmaritime.com)
12. Canadian ballast water
The Standard Club brings new ballast water regulations in Canada to our attention. Transport Canada recently issued new Ballast Water Regulations (SOR/2021-120) which are now in force.
The Regulations apply to Canadian vessels everywhere and to foreign vessels that are in waters under Canadian jurisdiction. The new Regulations give effect to Canada’s obligations under the International Convention for the Control and Management of Ship’s Ballast Water and Sediments 2004.
The Regulations impose requirements based on the vessel’s length, ballast water capacity, date of construction and area of operation. While the earlier Ballast Water Control and Management Regulations are repealed, the new Regulations maintain some of the foundational requirements such as those on reporting.
For more information, please see Transport Canada’s Ship Safety Bulletin 09/2021 which is available on the Government of Canada website.
13. Personal jurisdiction
Earlier this month, the US Court of Appeal for the Fifth Circuit agreed to reconsider en banc the personal jurisdiction issue presented in the case of Douglass v. Nippon Yusen Kabushiki Kaisha (NYK). The rehearing en banc means all active judges of the Fifth Circuit will consider and decide the test for assessing whether a US federal court has jurisdiction in a maritime case over a foreign defendant to adjudicate claims which are otherwise not connected to the forum. The decision once issued will be binding on the federal courts in the Fifth Circuit (which encompasses Texas, Louisiana, and Mississippi) and will be persuasive authority for federal courts in the other circuits.
Given the importance of the issue to be decided and the potential wide application of the eventual decision, the case is one to watch, the Standard Club says. The rehearing is tentatively scheduled for oral argument in September 2021.
For further details see the Standard Club website on https://www.standard-club.com/knowledge-news/article-us-5th-circuit-to-consider-test-for-federal-courts-to-exercise-jurisdiction-over-foreign-defendants-in-maritime-cases-3690/
14. Seafarers happiness
The Mission to Seafarers has published the latest Seafarers Happiness Index report for the second quarter of 2021, painting a grim picture of seafarer welfare with overall happiness dropping to an all-time low since the beginning of the COVID-19 pandemic.
The report, which is carried out with support from Wallem Group and the Standard Club, revealed that seafarers were becoming frustrated of being constantly in the same environment due to the lack of shore leave.
This quarter’s report has reflected the need for wider vaccination programmes via three core themes; the ban of shore leave in ports, the continued delay in keyworker status and, minimal movement for crew.
The absence of freedom of movement and continued extended contracts has dashed all the positive thoughts seafarers once had as boredom and irritation about many aspects of life at sea increase. One seafarer who responded to the survey mentioned having experienced one and a half years without setting foot on land, highlighting the dramatic need for the industry to do more.
Furthermore, the ban of shore leave and being constantly in a ship for a prolonged period has meant that physical wellbeing is being neglected. Seafarers who had been motivated to stay active during the earlier stages of their trips, expressed feelings of lethargy, apathy and physical exhaustion months into their assignments.
The maritime industry has started putting its vaccination plans into action with leading flag states and big seafaring nations including Cyprus, Singapore, Philippines, Germany and the US leading the way at their respective seafarer centres. However, with happiness levels down to 5.99 out of 10, it is time for the industry to ramp up international progress.
While momentum for designating seafarers as key workers was once the topic of conversation, seafarers feel like this has been put on the backburner and they’re no longer ‘flavour of the month’. As a result, concerns over wage rises, key worker status and the fact that seafarers have been indispensable to the world economy during the pandemic have been now brought back to the fore.
Responses from seafarers also reveal a worrying trend with reports of companies – namely manning agents – lying to crew, withholding pay, underpaying, and even threatening seafarers – despite longer hours and rising workload for seafarers. Some seafarers reported having to work 11-12 hours daily, compared to 8-9 hours before the COVID-19 pandemic.
In previous Seafarers Happiness Index reports, it was possible to see a rising tide of optimism as crews thought that either the pandemic was receding, or that vaccinations would lift the pall of the crew change crisis. The latest responses showed that if people know when they are going home, there is hope. However, if there is doubt, fear and uncertainty, then everything becomes a problem, and the pressures on board seem to be ramping up.
To read the latest Seafarers Happiness Index report, click here.
Notices & Miscellany
The International Maritime Organization and United Nations Environment Programme are jointly hosting Zero and Low Emission Innovation Forum from 27-29 September 2021, supported by the Government of Norway.
This virtual event will bring together all stakeholders to promote inclusive innovation towards maritime decarbonisation with the focus on developing countries, particularly Least Developing Countries and Small Island Developing States. For more information please visit: https://www.imo.org/en/OurWork/PartnershipsProjects/Pages/Maritime-Innovation-Forum.aspx
Understanding shipping course
The UK Chamber of Shipping’s next online Understanding UK Shipping course is set to take place on September 7, 2021. The interactive one day course will give participants an understanding of how the UK shipping industry operates, the regulations, constraints and current issues. See www.ukchamberof shipping.com/events for more details.
Seafarer Workforce Report
The new Seafarer Workforce Report from ICS and BIMCO has officially launched and is available to order now. Prepared by BIMCO and ICS, this comprehensive report details the global seafarer workforce supply and demand situation. With contributions from national maritime administrations, shipping companies, maritime education and training institutions and industry experts, this report is considered to be an essential tool for those tasked with developing crewing and training strategies.
Please notify the Editor of your appointments, promotions, new office openings and other important happenings: firstname.lastname@example.org
(With thanks to Paul Dixon)
LEASH: A strap which attaches to your collar, enabling you to lead your person where you want him/her to go.
DOG BED: any soft, clean surface, such as the white bedspread in the guest room or the newly upholstered couch in the living room.
DROOL: Is what you do when your persons have food and you don’t. To do this properly you must sit as close as you can and look sad and let the drool fall to the floor, or better yet, on their laps.
GARBAGE CAN: A container which your neighbours put out once a week to test your ingenuity.
You must stand on your hind legs and try to push the lid off with your nose.
If you do it right you are rewarded with margarine wrappers to shred, beef bones to consume and mouldy crusts of bread.
SNIFF: A social custom to use when you greet other dogs. Place your nose as close as you can to the other dog’s rear end and inhale deeply, repeat several times, or until your person makes you stop.
This can also be done to human’s crotches.
BICYCLES: Two-wheeled exercise machines, invented for dogs to control body fat.
To get maximum aerobic benefit, you must hide behind a bush and dash out, bark loudly and run alongside for a few yards; the person then swerves and falls into the bushes, and you prance away.
DEAFNESS: This is a malady which affects dogs when their person wants them in and they want to stay out.
Symptoms include staring blankly at the person, then running in the opposite direction, or lying down.
THUNDER: This is a signal that the world is coming to an end.
Humans remain amazingly calm during thunderstorms, so it is necessary to warn them of the danger by trembling uncontrollably, panting, rolling your eyes wildly, and following at their heels.
WASTEBASKET: This is a dog toy filled with paper, envelopes, and old candy wrappers.
When you get bored, turn over the basket and strew the papers all over the house until your person comes home.
SOFAS: Are to dogs like napkins are to people. After eating it is polite to run up and down the front of the sofa and wipe your whiskers clean.
BATH: This is a process by which the humans drench the floor, walls and themselves. You can help by shaking vigorously and frequently.
BUMP: The best way to get your human’s attention when they are drinking a fresh cup of coffee or tea.
GOOSE BUMPS: A manoeuvre to use as a last resort when the Regular Bump doesn’t get the attention you require….. especially effective when combined with The Sniff. See above.
LOVE: Is a feeling of intense affection, given freely and without restriction.
The best way you can show your love is to wag your tail. If you’re lucky, a human will love you in return. If not, you can always sniff their crotches.
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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.