Issue 764

November 6th, 2020

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IN THIS ISSUE

Notices & Miscellany

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Write to: contactus@themaritimeadvocate.com

1. Into the citadel!
By Michael Grey

I only ever met a stowaway once, when I was patrolling a darkened tweendeck with the light of my torch and he leaped out from behind a bale of wool, where he claimed to be sleeping. I almost died of fright, before ushering him to the booby hatch and the gangway. He was perfectly well behaved and cheerful as he wandered off along the wharf in Kingston, probably to look for another ship. The police weren’t remotely interested, but we redoubled our stowaway searches before we eventually left the port.
It has become a lot nastier these days, witness the drama aboard the tanker Nave Andromeda off the Isle of Wight, when seven of the blighters terrified her crew and caused the Special Boat Service to break out their formidable armoury.

In its way, this incident merely demonstrates what seafarers are having to put up with in so many parts of the world. Seafaring has always been something of a “frontier” existence, but it has become more hazardous at a time when there is this surge in desperate migration, along with piracy, kidnapping and the malevolent influence of the drug cartels. I sometimes think of the little notice most of our ships would have under the glass on the chart table – “You have to be mad to work here” it said. These days there is no doubt.

The vulnerability of the modern seafarer to these “social” problems cannot be denied. On most ships, there are so few of them, so the bodies available to respond to the untoward challenges are just not there. Just a few determined thugs, angry stowaways or enraged migrants picked up at sea will have a small crew at their mercy, no arms being permitted aboard the modern vessel under any circumstances. 
Despite the obvious and manifest hazards of the West African coast, none of the solutions that were effective to counter the Somalian piracy – such as armed guards – are permitted by the riparian states. Perhaps understandably enough, as they would angrily deny being “failed states”, they see such matters as within their sovereign competence and assert that the defence of merchant shipping in their waters is entirely their business. Sadly the fact that their waters are insufficiently policed for the current level of lawlessness, leaves the merchant mariners once again on their own.

So there are insufficient “perimeter defences” to keep a big ship safe against either kidnappers or indeed desperate stowaways. There will be a comforting logbook entry noting that “a thorough stowaway search has been conducted”, but there are probably not enough of a crew to properly examine the ship, while there will be inevitably pressure to get off the berth and away to sea. There are places, such as the rudder trunk, which are difficult to get at, while access to even a well-secured ship may have been facilitated by local corruption, with the watchman ushering the would-be travellers to a safe space.
There is almost certainly more that can be done to make ships more secure and to bolster protection for their crews, except that it all costs a bit of money. Alarm systems, motion activated lighting, better lighting over the side and far greater use of closed circuit and even infra-red TV cameras are regular features of shore-side premises, so why can they not become standard fittings on merchant vessels, which are every bit as valuable? Maybe ships crews cannot be issued with Lee-Enfield muskets (as they were once on the pirate-infested China coast) but they ought to be given what support technology makes available. As the welfare organisations, bless them, constantly make clear, a ship is also the seafarer’s home and if it cannot be made a castle, it deserves to provide a reasonable degree of safety in the more dangerous places to which he or she is required to travel.

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

2. Combatting drug smuggling

Combatting the spread of narcotics using ships as a means of transport has been increasingly in the news in recent years. Masters and crews have often been implicated in drug busts by the authorities   whether rightly or wrongly.

Law firm Campbell Johnston Clark’s Ian Short and Sam Jones have put together a commentary on drug smuggling in commercial shipping, as improvements in anti- narcotics operations round the globe have meant traffickers are finding increasingly novel and ingenious ways of smuggling drugs. They look at the indirect legal and commercial consequences to shipowners and charterers arising out of delays and losses caused.

https://www.cjclaw.com/site/news/drug-smuggling-in-commercial-shipping
 

3.   William O’Neil

Tributes have been coming in for former IMO Secretary-General William O’Neil who has died at the age of 93.  “It is with great sadness that we have learned of the passing of Mr. O’Neil, who was a great friend and mentor who made a huge personal contribution to securing globally applicable safety, security and environmental standards,” IMO Secretary-General Kitack Lim said.
 
O’Neil was Secretary-General of IMO from 1990 to 2003. “Mr. O’Neil was a truly great Secretary-General whose actions and initiatives had a great and lasting impact on the work of the Organization. I, personally, always valued his guidance and advice, as well as his friendship and leadership. Mr. O’Neil left a lasting legacy on the Organization. He was committed to the universality of IMO and oversaw a significant increase in membership. He encouraged wide and effective participation in the Organization from all stakeholders in the maritime sector,” Mr. Lim said.

“Above all, Mr. O’Neil was dedicated to enabling developing States to adopt and implement IMO instruments, through his active pursuance of new sources of extra-budgetary funding. And he worked tirelessly to strengthen the relevance and capacity of IMO’s educational institutes, the World Maritime University and the IMO International Maritime Law Institute.” During Mr. O’Neil’s tenure, the Organization adopted a number of new treaties and responded to global issues such as maritime security and piracy.
 
Mr. O’Neil personally acted to request the IMO membership address key safety issues, including the safety of bulk carriers and of large passenger ships. He established a team of experts to look into ro-ro safety, following the tragic sinking of the Estonia ro-ro ferry. All of these led to significant improvements in maritime safety standards.
 
Protecting the environment was also paramount for Mr. O’Neil. He oversaw the adoption in 1997, of the Protocol to the MARPOL Convention, to include a new Annex VI on Prevention of Air Pollution from Ships – now expanded to include energy efficiency requirements – and revisions of the MARPOL Convention to accelerate the phase out of single hull tankers. His passion for protecting marine biodiversity laid the foundation for the development of measures to prevent the spread of potentially harmful aquatic species in ships’ ballast water – which would later, in 2004, be adopted as a new IMO treaty on ballast water management.

The introduction of the mandatory International Safety Management (ISM) Code and the key 1997 revisions to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978, were amongst other landmark achievements made by IMO under Mr. O’Neil’s stewardship.  The attacks of September 11, 2001 led to the development of an entirely new regime for the security in the maritime field, the International Ship and Port Facility Security Code.
  
He also oversaw the establishment of the memorial to seafarers at IMO Headquarters in London, emphasing the human element in shipping and specifically the role of the people at the heart of shipping, the seafarers. The Seafarers Memorial Fund was established by Mr. O’Neil to fund the sculpture.

4. Small claims handling

There are many, many small claims which cannot be cost-effectively resolved and which therefore simply linger and fester, arbitrator Jonathan Lux says. A small group of legal experts have therefore come up with a brand-new scheme which, they believe, has the potential to resolve this problem. 
The Small Claims Resolved Informally by Experts (SCRIBE) Process introduced and administered by LWP.Sg Consultants in Singapore is an abbreviated procedure by which parties will be able to resolve their disputes. Under the default SCRIBE Process, parties will have the opportunity to file and exchange written submissions and thereafter, unless by express agreement reached between the parties, shall advance to oral submissions at an abbreviated oral hearing.

This is a process which is most likely to add value for parties with small claims (i.e. claims of up to USD 50,000) or parties whose claims are relatively straightforward. The idea is that such claims should be resolved as quickly and inexpensively as possible, with the benefit of a decision from an Expert drawn from the panel who is both reputable and experienced in dispute resolution. The aim is to achieve this without either party having to incur an extensive investment in costs and in-house resources.
It is for this reason that the fees to be paid to the Expert for the Expert’s services under the SCRIBE Process will be fixed at SGD 3,000, and LWP.SG Consultant’s administrative fee will be fixed at SGD 300. In the event that the matters proceeds to the oral hearing stage, the Expert deciding the matter should also provide parties with a hearing venue. Although the cost of the hearing venue will be an extra cost, the cost of the hearing venue should not, as a general rule, be more than SGD 150/hour and shall be borne equally between parties at time of fixing.

That being said, the SCRIBE Process is unlikely to be suitable for parties whose claims involve complex technical / legal issues, public policy issues, issues which may involve fraud, criminal, or politically sensitive matters.

As more often than not, parties in a contractual relationship will have certain dispute resolution clauses incorporated into their contracts. Parties interested in the SCRIBE Process should be mindful of this and should carefully consider the nature of the claim(s) / issues(s) involved and should also consider the various dispute resolution options available to them before deciding if the SCRIBE Process is suitable. Parties using the SCRIBE Process should also be mindful of the fact that the written decision issued by the Expert will not carry the same weight nor will it have the same effect as an award from an arbitral tribunal / a court judgment.

https://www.lux-mediation.com/scribe/
 

5. Covid business interruption

Tatham Macinnes draws our attention to a landmark decision relating to Covid-19 insurance. The Financial Conduct Authority has pursued a test case against multiple insurers providing business interruption cover in order to try and quickly bring more certainty to the wordings of hundreds of thousands of policies.

 In a long and complicated first instance judgement, the Court provided varying degrees of clarification and guidance on the interpretation of many commonly used terms in business interruption insurance policies, including: Prevention; Vicinity; Event; Incident; Restriction; Interruption; and Authorities.
The Court also considered important points of causation and disagreed with the findings of the Orient Express case, decided some 10 years ago.

This article seeks to identify the key issues considered and the main findings adopted by the Court. The decision is expected to impact on “some 700 types of policies across over 60 different insurers and 370,000 policyholders could potentially be affected by the test case, according to the law firm.

Read the full article
 

6. Eternal Bliss

The TT Club is warning of potential new exposures resulting from the judgment in the case of the Eternal Bliss. The Club believes this first instance judgment in relation to a charterparty dispute has the potential to spawn a range of liability exposures that could reverberate through the complex network of supply chain contracts. Most particularly the reasoning may expose ports and terminals in non-liner trades.

Eternal Bliss was voyage chartered to carry a cargo of soybeans from Brazil to China. After the ship arrived in China, she waited at anchorage for 31 days due to congestion and lack of storage ashore. Upon discharge it was found that some of the cargo was damaged with mould and caking. The ship owner settled the cargo interests’ claim and sought to recover the losses from the charterer in arbitration.
The cargo deteriorated as a result of the detention beyond the laytime, with no break in the chain of causation and no lack of care by the owners. No breach of contract was alleged against the charterers other than the failure to discharge within the laytime.

K LINE Pte v PRIMINDS SHIPPING (HK) Co Ltd (“Eternal Bliss”)
[2020] EWHC 2373 (Comm)

https://bit.ly/365DLAQ
 

7. Training berths

The UK Chamber of Shipping has highlighted the issue of seafarer training in the pandemic. The Covid –19 pandemic has had a huge impact on all our lives one way or another, but the long-term impact on seafarer training and education is only now becoming apparent.

Many young UK Cadets in training have been unable to complete their sea time due to travel restrictions enforced nationally and internationally, none more affected than those cadets being sponsored by cruise line companies whose vessels are either in warm lay up or temporarily out of operation. The MCA and the MNTB have offered a number of solutions that have helped to alleviate some of the issues, back to back college phasing, alternatives to sea time etc, but the consequences of cadets not securing sea time are far reaching and something needs to be done now. 

They are appealing to shipping companies to come forward with the offer of a training berth/s which they can then offer to one of the many cadets whose training has been dramatically impacted due to their lack of sea time.

If you think that you could assist with one berth or several berths, please get in touch with Kathryn Neilson, Director of MNTB.
 

8. Seafarers’ living nightmare

Life during Covid is described as a “living nightmare” by one seafarer in a new report.  Seafarers continue to face a bleak future in the face of the Covid-19 pandemic, according to the latest Seafarers Happiness Index report, published by The Mission to Seafarers.

The survey, undertaken with the support of the Shipowners’ Club and Wallem Group, reports on the experiences of seafarers between July and September 2020. This period saw some welcome action to address the dire situation facing the world’s seafarers in the midst of Covid-19, including the ongoing crew change crisis, but still fell short of the comprehensive response that is needed from the international shipping community in the face of the second wave of the pandemic. Issues raised include a decline in optimism as seafarers faced the second wave of the pandemic, financial and crew change issues. Crew cohesion has been put under pressure, the report suggests.

In response to this latest survey, Andrew Wright, Secretary General of The Mission to Seafarers, commented: “Once again, the Seafarers Happiness Index has revealed the immense human cost of the Covid-19 pandemic among the men and women who serve at sea and upon whom we all depend. It is deeply worrying to learn of the impact on the bonds between crewmates and the damage to social cohesion onboard. All of us who care about our seafarers must act now and act faster to deliver the immediate support and relief that they need, along with a longer-term plan of action; one that meets the needs of those serving at sea and those stranded ashore.

“The Mission to Seafarers is doing all that we can through our global network of ship visitors and seafarer centres, including adapting our facilities to make them ‘Covid-secure’ and developing alternative solutions such as our online ‘chat to a chaplain’ service, but this crisis requires a global response from our industry leaders and national authorities.”

Louise Hall, director for Loss Prevention at the Shipowners’ Club, emphasised the need for the industry to embrace new ways of meeting the needs of seafarers: “This latest report highlights the heightened plight of seafarers both ashore and at home. Those on board are feeling increasingly concerned with the ongoing situation with many voicing that they feel physically and emotionally exhausted, whereas those at home are surrounded by the uncertainty of their future employment and financial woes. It is imperative that we work together as an industry to provide new services and tools, such as the online ‘chat to a chaplain’ service, to improve the health and wellbeing of seafarers during these most difficult times.”

Frank Coles, chief executive of Wallem Group said: “The index is a measure of the incompetent leadership of world governments to recognise and support seafarers. We need to start listening to our seafarers and urge governments to open their borders to seafarers and confirm their key worker status as a matter of urgency.”

To read the latest Seafarers Happiness Index report, click here.
 

9. UKHO innovation challenge

As part of the ADMIRALTY Marine Innovation Programme, the UK Hydrographic Office is inviting innovators and start-ups to develop new solutions for the maritime risk and insurance sector using ADMIRALTY data.

For the maritime insurance sector, access to accurate and reliable data is essential to help quantify risks faced by shipping companies and create the best insurance products to support their customers.

As part of the UKHO’s new innovation challenge, participants will have access to ADMIRALTY data that can provide valuable insight into risk and asset management not yet available that is spread over a large geographic area and historic period. These participants will be asked to identify, trial and prove how this data can be used to help build more accurate risk models that can lead to even better underwriting decisions and improved maritime insurance products.
All submissions for this challenge will be reviewed by a panel of experts, with the winners receiving 12 weeks of hands-on support and ADMIRALTY data worth around £75,000 to develop a product for a market estimated to be worth £18.5 billion by 2030.

To take part, participants will need to register on the ADMIRALTY website and submit their solutions by the 20th November 2020.

You can register and find more details on the Maritime Risk and Insurance challenge here: admiralty.co.uk/innovation-programme/maritime-insurance-challenge
Details on the overall ADMIRALTY Marine Innovation Programme can be found here: admiralty.co.uk/innovation-programme
You can find out more about this sector in the UKHO’s latest report:
https://www.admiralty.co.uk/AdmiraltyDownloadMedia/Innovation%20Programme/UKHO%20Blue%20Economy%20Research%20-%20Maritime%20Insurance.pdf
 

10. Smart ships

The maritime industry is undergoing a massive shift as vessels transform into sophisticated sensor hubs, generating data and connecting through satellites in an expanding interconnected web. To enable the uptake of these systems and unlock the associated efficiencies, DNV GL is launching a new chapter to its world leading rules for ship classification: Digital Features. The new chapter was launched with three new notations (D-INF, DDV, REW) on 28 October and will enter into force on January 1st 2021. In addition, a new Smart vessel notation (Smart) – a framework for assessing and visualising digital vessel features – was introduced.

Vessels, their systems and components are now increasingly linked to the internet, making them accessible from anywhere and part of a network of online maritime assets. This is giving the industry access to real-time data, enabling increased automation, decision support, remote monitoring, and overall boosts to safety and performance. At the same time this data – collected in cloud storage and used as the basis for digital twins and other operational, design and construction simulations – is having a dramatic effect on the way the industry looks at information, while opening up new business models and risks.

“The pandemic has triggered a renaissance in the maritime industry, as we see greater and deeper adoption of digital solutions to enhance safety, sustainability and efficiency,” said Knut Ørbeck-Nilssen, chief executive of DNV GL – Maritime. “The key to maximising the potential of these digital technologies and strategies is to enable companies to more easily build trust in them. With the new Digital Features chapter, we have laid a clear class foundation for three of the most essential building blocks of maritime digitalization.”

“Digital Features and Smart are exciting next steps in our classification journey because they enable owners, operators and yards to qualify and demonstrate their latest technologies,” added Ørbeck-Nilssen. “Right across the industry we are seeing a wave of innovation that is propelling the industry forward. These new rules and notations give our customers the perfect platform for demonstrating cutting edge technologies and unlocking the value they bring to the market.”

The new chapters and 4 class notations were launched on October 28th and will enter into force on January 1st 2021. A description of the rules and links can be found here: https://www.dnvgl.com/news/dnv-gl-rules-for-ships-october-2020-edition-188668
 

11. ITIC warning on traffickers

The International Transport Intermediaries Club (ITIC) is warning its ship and port agent members to be aware of approaches from people traffickers attempting to smuggle illegal immigrants through their ports.

Traffickers, pretending to be shipping companies, are approaching ship agents and requesting them to handle a change of crew, including booking travel and accommodation. Operating through an agent in this way gives the traffickers a degree of legitimacy and provides a cover for their illegal operations. Often the ship agent will make the arrangements but the migrants will simply disappear.
Andrew Jamieson, ITIC’s claims director, explains further: “This is not a new issue but we have seen a re-emergence of this scam. Sadly, in the past some of our members have fallen for this scam and have been left with unpaid hotel bills and other expenses. More seriously, they can face fines from the immigration authorities plus liability for detention and repatriation costs if the migrants are caught.”

He continued: “Coronavirus has impacted heavily on the process of crew changes and this appears to have shifted focus away from people smuggling. Traffickers are resourceful and can pass themselves off as a legitimate vessel operator. Not every offer of business is genuine and due diligence should be carried out on all potential new clients. We urge our members, and others, to remain extremely vigilant.”

www.itic-insure.com
 

12. IUMI Stats

The International Union of Marine Insurance (IUMI) has released its 2020 analysis of the global marine insurance market – known as IUMI Stats. The report presents a range of statistical data from a variety of sources, including IUMI’s own data, to provide an insight into the marine insurance market within the context of global trade and shipping.

IUMI’s Secretary General, Lars Lange explains: “Working with a number of valued partners, our Facts and Figures Committee has produced this year’s statistical analysis which also includes insight and opinion. IUMI collects data on global marine premiums which we present alongside loss ratios, claims and other data. Whilst our data covers 2019, we also try to comment on the general health of marine underwriting but that has been extremely challenging this year. The coronavirus pandemic has significantly impacted trade, shipping, commodity prices and consumer activity which in turn, means the outlook for marine insurance is far from certain. Despite this, our analysis is reporting the beginnings of a modest market recovery in most business lines.”

“This year, and for the first time, our report also includes the initial findings from IUMI’s major claims database. Over the past three years we have recruited 22 national insurance associations who, together, have submitted 6,800 records of major marine losses.  Our analysis of the major cargo claims data can be seen in the report. I’d like to thank our partner, Boston Consulting Group, and the project team for undertaking such a large and valuable project”.  

The full report is available to download from IUMI’s website: https://iumi.com/statistics
 

Notices & Miscellany
 
HFW senior partner hire
HFW has boosted its shipping practice with the hire of senior partner Paolo Ghirardani. Ghirardani joined HFW’s London office on 2 November from Stephenson Harwood, where he had been a partner for almost 30 years, including 15 years as the head of its global Marine and International Trade practice. He spent the first seven years of his career at HFW, having joined as a trainee in 1983.
 
He specialises in wet and dry shipping disputes, and has significant experience acting on major fires, explosions and groundings. He advises clients across the industry, including P&I Clubs, charterers and shipowners, and is ranked in The Legal 500’s ‘Hall of Fame’ as one of the market’s leading shipping lawyers. He also handles complex, multi-jurisdictional trade and commodity litigation, focusing on fraud investigations and asset tracing.

DNV GL chairman
Jon Fredrik Baksaas, the former CEO of Telenor, has been appointed as DNV GL’s new chairman of the board.  Although best known for his thirteen-year tenure as CEO and president of the telecoms firm, Mr Baksaas started his career with DNV (as it was then known) and spent six years at the company before leaving in 1985.  He has also served as member of the DNV Council for 12 years.

New IHMA president
International Harbour Masters’ Association (IHMA) announced that its new president is Captain Yoss Leclerc of the Port of Quebec. He succeeds Captain Allan Gray, President and CEO, Halifax Port Authority, Canada.

North award
Leading global marine insurer North P&I Club has won the 2020 SAFETY4SEA Technology Award for its Digital Covid-19 Tracking Tool, after a public vote recognised the solution as the year’s standout technological contribution to maritime safety.

The Tracking Tool provides live updates on developments related to Covid-19, with data provided by North Correspondents as well as international maritime and health organisations. This allows users to plan their operations based on the most up-to-date information regarding infection rates, port entry requirements, quarantine rules and more.

BV Nordics chief
Gijsbert de Jong has succeeded Bengt Sangberg as Regional Marine Chief Executive, Nordics for Bureau Veritas.  Bengt assumes the role of a Special Advisor, facilitating the handover and transition, until his departure at the end of 2020. Gijs will report directly to Herman Spilker, VP North Europe Zone with responsibility for operations and business development in Denmark, Iceland, Norway, and Sweden.

Arbitration appointment
Cozen O’Connor member Christopher Kende has recently been elected to membership in the Chambre Arbitrale Maritime de Paris (CAMP). CAMP is the premier French maritime resource for arbitration and is made up of the leading maritime professionals, both in industry and law, as well as the leading French law professors of maritime law in France. See their website at https://arbitrage-maritime.org

New Wikborg Rein Singapore MD
International law firm Wikborg Rein has appointed Ina Lutchmiah as the new managing director of its Singapore office. The appointment further cements Wikborg Rein’s leading presence in the shipping and offshore sectors. Lutchmiah already heads up Wikborg Rein’s transactional practice in the Asia Pacific region which encompasses both shipping and offshore energy projects (including renewables). In the Legal 500 United Kingdom 2020 rankings, Ina was recommended for oil and gas projects and ranked as a “Rising Star”.
 

Please notify the Editor of your appointments, promotions, new office openings and other important happenings: contactus@themaritimeadvocate.com

And finally,

A tribute to the great actor Sean Connery who died recently.

Sean Connery walks into a bar and takes a seat next to a very attractive woman. He gives her a quick glance and then casually looks at his watch for a moment. The woman notices this and asks “Is your date running late?”

“No” he replies, “Q has just given me this state-of-the-art watch. I was just testing it.”

The intrigued woman says. “A state-of-the-art watch? What’s so special about it?”

Bond explains, “It uses alpha waves to talk to me telepathically.”

The lady says, “What’s it telling you now?”

Well it says you’re not wearing any panties.”

The woman giggles and replies, “Well it must be broken because I’m wearing panties!”

Bond smirks, taps his watch and says, “Bloody thing’s an hour fast.”
 

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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.