IN THIS ISSUE
1. New False Claims Act (Qui Tam) Precedent
2. P&I Clubs Looking to Merge
3. The Arbitration Act 1996 – 20 Years On
4. Salvage Investment – Who Pays?
5. German Wings, the Suicidal Co-Pilot and the Compensation of
Families
6. People and Places
FOB Network News
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Job Vacancy in London
General Manager/ The Sustainable Shipping Initiative Ltd.
The Sustainable Shipping Initiative (‘SSI’) is an ambitious
coalition of shipping leaders from around the world that is taking practical
steps to tackle some of the sector’s greatest opportunities and
challenges. With corporate members from across the shipping supply chain
and two NGO’s, the ultimate goal is to show that collaborative
action can drive progress to a sound sustainable industry as set out
in the SSI Vision 2040.
The General Manager is a new role reporting directly to the Chair/board
and will be responsible for the day to day running of the SSI. With
a sound knowledge of the shipping industry and a strong interest in
sustainability and environmental issues, the General Manager will be
implementing strategy, building the brand of the SSI as a practical
and progressive voice of the industry and growing the organisation as
well as managing a small team. Providing support and resources for members
and able to represent the SSI in media and events and with a salary
of £43,000 p.a. this is an exciting opportunity to lead an industry
forwards.
A role description is available here:-
http://ssi2040.org/wp-content/uploads/2016/02/SSI-Role-Description-General-Manager.pdf
Applicants must be eligible to work in the UK. International travel
will be required.
To apply please send your CV and covering letter detailing how you
meet to job specification to the SSI at:-
Any questions about this opportunity can be emailed to:-
Closing date for applications: Monday 14th March 2016
Interviews will take place from Tuesday 29th March 2016
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1. New False Claims Act (Qui Tam) Precedent
Florida based attorney Michael T. Moore has written in with a note
on the case where the Third Circuit Court of Appeals held that a law
firm can bring a FCA Claim in the case of U.S. ex rel. Moore & Co.
PA v. Majestic Blue Fisheries LLC.
Recently the Third Circuit Court of Appeals issued a Precedential Opinion
loosening restrictions on who can bring an FCA “qui tam” claim
in a matter involving U.S. flag Vessels. Since 1986, the U.S. Government
has recovered more than $27 billion though False Claims Act (“FCA”)
litigations. The new opinion promises even greater returns for the Government
and more opportunities for individual relators. This one is in the maritime
world and specifically the Pacific Tuna Fishing fleet.
In a Precedential Opinion, a three-judge panel reversed a lower court’s
decision and allowed Florida-based law firm Moore & Co. PA’s
suit to proceed. The firm’s suit alleges that the filings by newly
created U.S. companies was fraudulent and done to benefit a Korean tuna
fishing superpower, Dongwon.
The panel interpreted Congresses 2010 amendments to the FCA for the
first time and determined that “Congress [had] overhauled the public
disclosure bar” to the FCA. Under the old version of the FCA, the
public disclosure bar prohibited qui tam actions that were based on
information that was “publicly disclosed” though federal reports,
law suits, or the news media. The panel held that cases interpreting
the old FCA were irrelevant and held that the 2010 amendments limited
what would be considered a “public disclosure” and also expanded
the “original source exception” to the public disclosure bar.
The Court reinstated the case, holding that Moore & Co. qualified
under the “original source” exception because it had “materially
added” to the publically disclosed information with facts learned
while representing a client in a separate, wrongful death law suit.
This is a dramatic shift in the law. Before this case, information learned
in law suits was considered “publically disclosed” and to
qualify as an “original source” an individual needed “direct
and independent knowledge” of the fraud rather than something that
“materially adds” to the allegations of fraud.
Under the South Pacific Tuna Treaty (“SPTT”), a limited number
of licenses to fish the tuna-rich waters of the Pacific Island nations
are available to vessels under the control and command of U.S. citizens.
The U.S. Government pays 16 million dollars in aid annually in return
for the licenses to promote the U.S. distant water fishing industry.
Even so, the alleged fraudsters acquired two of these SPTT licenses
by forming US LLCs using straw men, then fraudulently certifying to
the U.S. government that two of their vessels were owned and commanded
by U.S. citizens. Effectively, the alleged fraudsters and unidentified
at this point, co-conspirators bilked the US government out fishing
licensees paid for with millions of dollars of tax payer money.
Moore & Co. is now considering amending its Complaint to bring in
other defendants who it has been learned facilitated the fraud.
Attached is Moore & Co.’s Amended Complaint and the Third Circuit
Court of Appeals’ Opinion.
https://www.scribd.com/doc/300271272/Moore-Co-Complaint
https://www.scribd.com/doc/300271318/Moore-and-Co-Precendential-Opinion
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2. P&I Clubs Looking to Merge
This is the time of year when the P&I Clubs emerge from the renewal
season and issue or leak news of how well they have done. Some years
this process seems to reveal a much larger market than most of us are
able to recognise. The rates of growth reported seem to add up to a
sunlit shipping industry of heart’s desire. This year observers in the
market have been waiting for some major consolidation news in the wake
of what has been a rather anodyne renewal. Sure enough as the day drew
on various well placed broker sources were breaking the news. Martin
Hubbard of Tyzers sent us this report:-
It has been confirmed today that the UK and Britannia P&I Clubs
are planning to merge during 2016. Final approval is expected to be
given by the Boards of both Clubs at meetings to be held for this purpose
in April, and members will then be asked to give their approval. If
approved, the managers of the Clubs (Thomas Miller and Tindall Riley)
will also merge.
This merger will create a Club with nearly 250 million owned GT and
around 125 million chartered tonnage, and free reserves exceeding $1.1
billion. It is understood that the merger is based on the preference
of both Clubs to remain P&I specialists rather than diversify into
other insurances, with the consolidation expected to produce economies
and other benefits of scale for the members.
We are expecting further details of the merger to be published by both
Clubs tomorrow.
[Your editor is long enough in the tooth to remember the still born
merger between Brittania and the Standard Club back in the late 1990s
which failed, as they say, to eventuate. The logic of a merger between
players in a saturated market made sense then and makes sense now as
London in particular hosts too many fading players in a changing market.
The devil will be in the details–ed]
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3. The Arbitration Act 1996 – 20 Years On
Gerard Mathews of the London Shipping Law Centre writes:-
On the theme of arbitration again, we are organising this significant
event which would be of great interest to all in the various sectors
who have used the arbitral system. Here are the details:-
Chair: Lord Saville of Newdigate
Date: Thursday 10th March 2016 – 4.15pm – 8.00pm
“A practical, just and effective arbitration system is of great
value to both the domestic economy and the global economy.” Lord
Neuberger, President of the Supreme Court
Has the 1996 Act proven fit for purpose?
Twenty years on from the inception of the Act, the LSLC is leading
a debate and has gathered the views of a number of senior members of
the Bar on the practical and legal issues arising. In future seminars/debates,
the Centre will seek the views of other practitioners and users of the
Act.
Our distinguished panel, under the chairmanship of Lord Saville, will
consider issues including:-
· The degree of party autonomy when certain provisions of the
Arbitration Act are made mandatory
· Disapplying Limitation Periods
· The Court’s powers to assist given the development of
emergency arbitrator rules in all the major arbitral institutions
· Conflicts of Law
· “Emergency arbitrators” – no provision in Act,
does it matter?
· Confidentiality – what, if anything, should be done?
· What is the proper approach to an application for a stay under
s. 9? Determination of the issue or “prima facie” test?
· Section 57 – a trap for the unwary?
· Inappropriate re-hearings?
· Objections regarding improper/unfair conduct – practically
nothing to gain and all to lose?
· Too many appeals? Too few? Or about right? – Should S.69 be
amended and if so how?
· Security of costs and third party funding
· The degree of party autonomy when certain provisions of the
Arbitration Act are made mandatory
· Disapplying Limitation Periods
These discussions will be divided into two sessions with Plenaries
to follow.
Chairman – Lord Saville
Moderator – Sir Bernard Eder
Session One
Ravi Aswani – Stone Chambers
Nakul Dewan – 20 Essex Street
James Leabeater – 4 Pump Court
Duncan Matthews QC – 20 Essex Street
Sean O’Sullivan QC – 4 Pump Court
Alistair Schaff QC – 7 King’s Bench Walk
Summing up: Louis Flannery – Stephenson Harwood
Session Two
James Drake QC – 7 King’s Bench Walk
Brian Dye – Essex Court Chambers
Philippa Hopkins – Essex Court Chambers
Poonam Melwani QC – Quadrant Chambers
Simon Rainey QC – Quadrant Chambers
Rachel Toney – Stone Chambers
Summing up: Bruce Harris – LMAA Arbitrator
Concluding remarks – Lord Saville
Venue 1 Finsbury Circus, London, EC2M 7SH
The event is accredited for 3.5 CPD points
SRA course reference DVS-LSLC; BSB course reference 1609
For further details and bookings please contact the Centre’s office
on 020 7936 3417 or e-mail to: _
All of the Centre’s events are accredited by the Solicitors Regulation
Authority and the Bar Standards Board. ~
Attendance fee: LSLC Members – Free; Non-members – £60.00
© LSLC 2016
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4. Salvage Investment – Who Pays?
Joanna Waterfall of Roose + Partners writes:-
Last week we reported on the APL VANDA grounding, the second grounding
of an ultra large container vessel within as many weeks, and we referred
to concerns that salvors do not have the resources available to salve
such large vessels where simply using tug power is not possible or has
been exhausted. We were not blaming salvors but were merely seeking
to highlight the continuing issue that as commercial vessels get larger
the salvage craft and equipment needed to assist them need to develop
and adapt. This issue is not new. As tankers got larger in the 1970s
and 1980s there was similar concern raised.
It is a simple fact that further investment is still required to meet
the continuing development of larger vessels. The increases in vessel
sizes, containerships especially, has been rapid and it may be that
the speed of development has led to a lag in investment, not forgetting
the very considerable costs involved. We understand some salvors have
developed systems to offload ultra large container vessels but have
not built them due to the capital cost. Interestingly we were recently
involved in a casualty where the capital investment of the attending
craft and equipment was over five times the value of the vessel being
assisted.
Some would suggest that salvors already receive sufficient encouragement
to invest via salvage awards. It is certainly the case that the 1989
Salvage Convention and Lloyd’s Open Form provide a mechanism to
encourage investment and salvors who can demonstrate a commitment to
investment should receive due credit in salvage awards (LOF or other).
This is also a principle enshrined in English law. However, although
there was an increase in LOF contracts last year, there are less LOFs
generally year on year and increasingly many LOF agreements are capped
or amended. These amended forms give the salvors (offering them) a commercial
advantage over their competitors and also reduce property underwriters’
potential exposure to salvage. When considering the bottom line in negotiating
responses to a particular casualty agreeing such caps could be seen
as a win win for both salvors and underwriters. However is this a potentially
a short-sighted approach, on both sides, which may lead to underfunding
and under investment?
With less LOF contracts and reduced opportunities for salvors to be
credited for investment by way of salvage rewards, are there any alternatives
and who should be responsible for the investment? Is it for salvors
alone? Most have responsibilities to their shareholders so there is
inevitably a balance between investment and profit. Clearly it is important
that all those involved, including shipowners, charterers, salvors and
marine insurers, work closely together to understand the changing risks
and challenges facing the shipping industry in terms of potential casualties
and salvage requirements. There is little doubt that the increased sizes
in commercial vessels will have brought significant economic advantages
and increased profit to owners and operators. Perhaps there should be
a funding process whereby some of the profits derived from operating
the larger vessels could be diverted towards salvage investment with
levies raised either on ships or cargos to contribute to salvage investment.
The debate continues. To assist we understand the ISU is currently trying
to compile data on the investment made by its members.
The firm’s casualty and case writings deserve to be better known–ed.
. See:-
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5. German Wings, the Suicidal Co-Pilot and the Compensation of Families
Courtesy of the Browser we read this compelling narrative by Joshua
Hammer which appears in GQ magazine. The compensatory regimes in place
within Germany are well known to those who deal with maritime tourism
and cruise claims. In the aviation field the amounts payable to families
left behind in air tragedies in Germany do not compare to the compensations
claimed and paid in the United States. A case like this shines a light
into many modern themes: human, legal and organisational. Terrible tragedy
and per head limits of liability meet in this tale of how everything
can go wrong in lives on a short cheap flight home.
http://www.gq.com/story/germanwings-flight-9525-final-moments
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6. People and Places
Tor E. Svensen, Group Executive Vice President at DNV GL, has decided
to retire from his position with effect from 1 August 2016. He will
continue to work in the maritime industry and will, amongst other things,
take up a role as professor at the University of Strathclyde in Glasgow,
focusing on education and research related to safety at sea. Mr Svensen’s
career at DNV GL spanned more than twenty years and saw him lead the
Maritime Business for more than a decade.
———-
The International Bunker Industry Association (IBIA) has appointed
three new members to its Management Board. They are Bob Sanguinetti,
CEO and Captain of the Port of Gibraltar, Henrik Zederkof, CEO Dan-Bunkering
and Mustafa Muhtaroglu, CEO Energy Petrol will all join the IBIA Board
on 1 April, 2016. Also appointed was one new member to the IBIA in Africa
Board who is Patrick Holloway, Partner with Webber Wentzel Attorneys,
who is an IBIA main board member and steers the IBIA in Africa, Executive
Committee.
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From the Avo Archive
The website of this newsletter contains all the editorial material
since the inception of the Maritime Advocate as a print based quarterly
in 1997 under the founding aegis of John Guy, Chris Hewer and Manfred
Arnold. Readers can go to the site and search the database on the home
page in its entirety. If you are looking for an old case, an old controversy
or you would just like to see how many times you and your firm have
featured in our annals feel free to access the archive. It is like this
e-zine, free to Readers and we always appreciate the support of advertisers
and sponsors.
There are numerous references to consolidation to be found, but one
of the best is this story courtesy of the mordant wit of Chris Hewer
which appears in Issue 132 of 18th November 2003. Hewer is also the
author of a famous industry aphorism: which says it takes a great deal
of time for nothing much to happen in P&I.
Regional optimism
IN a recent issue we made a rather cruel joke at the expense of Liverpool
Football Club, and Merseyside in general. We were only able to do that
because, among other things, Liverpudlians are famous for their sense
of humour, and because anybody who has been to Liverpool recently will
know that it is in many respects – not least in shipping – one of the
most exciting, vibrant, safe and stimulating English cities to live
in right now. And there are few football teams with a better pedigree,
or trophy room, than Liverpool.
We are reminded of the story about a discussion between Liverpool manager
Gerard Houllier and Leeds United manager Peter Reid on the eve of this
season’s English premiership kick-off.
"What do you expect to achieve this year, Peter?" asked Houllier.
"Well," said Reid, "I see this as a season of consolidation.
I want to try and reduce the club’s debt, and improve the image of Leeds
generally, which has been dragged through the mud lately. Hopefully
we can avoid relegation, and have a decent run in the Carling Cup. What
about you?"
"Oh, said Houllier, "I think we can win the Premiership,
the FA Cup and the Carling Cup, as well as lifting the EUFA Cup."
"Oh come on, " said Reid. "That’s a bit unrealistic,
isn’t it?"
"Maybe," said Houllier, "but you STARTED it."
http://www.avoarchive.com/searchBI.php
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Thames Twilight
Thgis item appears in our favourite blog on London called Spitalfields
Life. The editor writes;:-
These atmospheric photographs of the Thames by John Claridge offer
a unique vision of the working river that was once a defining element
of the East End. Within living memory, the busiest port in the world
was here yet today barely a trace of it remains. And John’s pictures,
mostly taken when he was a mere kid photographer, capture the last glimmers
of the living docks.“My dad’s friends were saying that the
docks were going down, so I was aware of that and I just wanted to grab
hold of it,” John told me.
See the item in full:-
http://spitalfieldslife.com/2016/02/23/john-claridge-along-the-thames/
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Letter from Capt Iyer
I am student of Law and carrying out a study on Human Rights violations
in Marine accidents. Is it possible to get the English translation of
the MT Prestige verdict? Can one of your Readers help?
http://www.alborsgaliano.com/2016/02/01/prestige-judgment-of-the-spanish-supreme-court/?lang=en
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