1. Misfortune risk
A RECENT London arbitration, reported by Richards Butler in its monthly shipping newsletter, dealt with a dispute about the level of Suez Canal dues which a charterer was obliged to pay, based on the representation of the vessel by the owner.
The vessel, a bulk carrier, was chartered on the NYPE form for a voyage ‘via intended Suez Canal’. The classification society had treated and classified the vessel as a general cargo ship, and a dispute arose as to whether the dues payable for transiting the Suez Canal should be based on the vessel being a general cargo ship or a bulk carrier.
The charterer argued that its only obligation was to pay the charges on the basis that the ship was a bulk carrier. It claimed that the owner was in breach of the charter, and liable for misrepresentation.
The arbitrators found that there should be no implied term that the charterer’s liability was limited to the charges that were levied on a bulk carrier. There was no term, express or implied, that the owner could be said to be in breach of, and the only representations made by the owner were that the vessel was a bulk carrier and classed with the appropriate classification society. There was therefore no misrepresentation.
It was found that the case therefore concerned a ‘misfortune risk’, liability for which was not dealt with by the charter, and had to lie where it fell, namely upon the charterer.
2. Drop the pilot
TWO decisions handed down by the Australian courts last month serve as a reminder that, under Australian law, the presence of a pilot on board doesn’t relieve ships’ officers of their duties with regard to ship safety.
Commenting on the cases in its latest Transport & Trade e-Bulletin, Phillips Fox says the two decisions are “unremarkable insofar as they articulate the law as it is generally understood. On the other hand, one could understand a shipowner’s bemusement (to say the least) in finding itself liable for the conduct of an unlicensed pilot appointed compulsorily. Similarly, it may seem extraordinary to impose strict liability upon a shipowner for damage to a wharf by a pilot appointed by the local harbour authority.
“Nevertheless, the decisions are a reminder that, under Australian law, the presence of a pilot on board the ship does not relieve the ship’s officers of their duties in respect of the ship’s safety. Critically, the pilot remains subject to the ship officers’ authority at all times, and it is irrelevant that the pilot has been appointed compulsorily.”
The cases in point are Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (2004) FCA 1211, and Amarantos Shipping Co Ltd v The State of South Australia & Ors (2004) SASC 276.
3. Failure to seek arbitration
IN an unpublished opinion, the US Court of Appeals for the Third Circuit has ruled that, where a party fails for an extended period to seek arbitration of a dispute, the right to enforce arbitration has been waived.
A complaint was filed against a ship and its owner. For a period of almost a year, the parties engaged in extensive discovery and participated in court proceedings. The plaintiff then filed a motion to compel the ship and owner to engage in arbitration of the dispute. The court held that the plaintiff’s overall conduct waived such right.
4. Claims sea-change
DELEGATES to a new claims conference in Dublin last week called for the introduction of recognised professional marine claims qualifications and better market communication.
Conference chairman and IUA special adviser David Taylor said, “At present there is really no single professional body or association to which marine claims professionals can affiliate, associate or submit for examination in order to obtain a recognised qualification. There is no certification process. When I asked the conference if they would support the development of such recognised qualifications the response was an emphatic ‘yes’.
“The marine market bemoans the fact that there is a shortage of professional claims skills, yet this deficit is largely self-inflicted. Claims personnel have not always been valued, but I believe there is a sea change now taking place in insurers’ attitudes.”
The IUA-backed International Marine Claims Conference 2004 was the first event of its kind in the industry. It was attended by about 140 delegates.
5. IMO reviews pollution
THE Marine Environment Protection Committee (MEPC) of the International Maritime Organisation is set to consider for adoption revised regulations relating to the prevention of pollution by oil and by noxious liquid substances carried in bulk, and to adopt a revised code for carriage of chemicals in bulk, when it meets for its 52nd session in London this week.
6. LMAA lunch
THE annual luncheon of the London Maritime Arbitrators Association will be held at the Grange City Hotel, London, on Monday, November 8. The paying bar will be open from 1230hrs, and lunch will start at 1300hrs.
7. Arbitration Club dates
THE next Arbitration Club lunch is to be held at the London offices of Holman Fenwick & Willan on November 11 at 1230 for 1300.
But there is never enough lemon drizzle cake to go round all those who want to attend. Places are always over-subscribed, and the organisers try to strike a balance at the table between the various interests in London maritime arbitration. So those wanting to attend should let Simon Everton know as soon as possible.
Next year, the club will be holding its first lunch in Newcastle, thanks to the sponsorship of Eversheds. A date is to be arranged in January/early February.
The club still need hosts for London lunches in 2005.
8. People & Places
BURNESS Corlett & Partners is relocating its London office, with effect from October 12, to 12 – 20 Camomile Street, London EC3A 7AS.
GRACE Hou, a legal consultant in the New York office of Healy & Baillie, is relocating to the firm’s Hong Kong office. This move is designed to increase the firm’s services to its clients from that office, optimising Grace’s blend of Chinese and US experience and education.
9. The weakest (Belgian) link
LAST night, on BBC television, The Weakest Link quiz programme featured, for the first time, a contestant from Belgium. He lasted until the second round, when he got all of his questions wrong and was voted off. But he seemed like a nice chap, which is your editor’s experience with almost all Belgians he meets. And, from the maritime advocate’s point of view, he is by no means the weakest Belgian link.
Here is a question which Anne Robinson might have asked last night’s contestant.
“Which Antwerp-based maritime and commercial law firm has failed to pay an invoice in respect of an advertisement published by the Maritime Advocate, despite eight reminders and a couple of empty promises?”
The answer to the question is, “Wagner, Cryns & De Troij”.
It is difficult to think of a valid reason why a reputable law firm would not pay for services properly contracted and professionally delivered, and then treat polite reminders with bad manners and bad grace.
Links do not come much weaker. Goodbye.
WE reported last week that Albert Weatherhill had won an iPOD at the ITIC Forum in London by relating a very funny account of his first seafaring medical. We have since been reliably informed that the REAL winner was Ken Wardle from the Salvage Association, who related how an officer of the watch had told him he was unaware of how a collision had occurred because he had been writing the safety log at the time.
We still prefer Albert’s story.
ACCORDING to the Cats Protection League, the top six names for cats are Sooty, Tigger, Lucy, Smokey, Charlie, and Dave. This is true, apart from the last one, which we made up. It is also true, apparently, that fifty per cent of people would rather wake up with their cat than with their partner, and that 98 per cent of women would rather date someone who likes cats.
A cat may look at a queen, of course. But who ARE these people? Your editor would rather wake up with a headache than a cat, would like to ban handbags with motifs of cats on them (you know who you are), and would rather date someone who likes semolina. It wouldn’t do for us all to be the same, of course. Except cats, that is. All cats are grey in the dark. That’s true as well.
A HEADMASTER in England has banned children from playing conkers in the school playground unless they wear the sort of goggles that Biggles himself would have scoffed at. And, even as we speak, horse chestnut trees are falling under the axe throughout England in an attempt to cut off the conker supply at source.
Some people are blaming lawyers for this, as well as for everything else. But lawyers do what we ask them to do. It isn’t their fault. In your editor’s day, all you needed to play conkers was a conker, a skewer, an old (or new) shoelace, and perhaps a little pickling vinegar. (Your editor once had a little beauty, an 85-er, although its lineage was slightly dubious because it was never clearly established whether a one-er became a fifty-er if it demolished a 49-er, for example, or if it became a mere two-er. Can any reader help?)
Of course it would be possible, if one trawled the internet, to find a pour soul who had lost the sight in one eye as the result of a conker injury. But is that sufficient to put an end to good, clean fun? Soon, none of the activities which your editor used to engage in as a youth – dead-legs, chinese burns, hiding Tony Farrant’s cap – will be legal. But it is doubtful if the world will be a safer place.
Quote of the Week
“There are people who strictly deprive themselves of each and every eatable, drinkable and smokable which has in any way acquired a shady reputation. They pay this price for health. And health is all they get for it. How strange it is. It is like paying out your whole fortune for a cow that has gone dry.”
(Mark Twain, 1835-1910)
Cat Headline of the Week
Cat aims to cut loads of lorries (Numast Telegraph)
Headline of the Week
Paul Gaugin changes hands (Tradewinds)
Palindrome of the Week
Are we not drawn onward, we few, drawn onward to new era?
Best Literary Put-Down of the Week
That’s not writing, that’s typing. (Truman Capote, on Jack Kerouac)
Best Insurance Claim of the Week
I had been driving for forty years when I fell asleep at the wheel and had an accident.
Best Question-and Answer Session of the Week
Q: What do elephants have for lunch?
A: An hour, the same as the rest of us.
Questions of the Week
1. How angry would you be if it was suggested that (1) the eleventh chapter of the Consolations of Boethius was an interpolated palimpsest? (2) that an eisteddfod was an agricultural implement?
2. ‘The end of the closing of the second stage of the Treaty of Bretigny marks the opening of a new phase in the first stage of the termination of the Hundred Years War.’ (Confute)
3. ‘Know ye not Agincourt’. (Confess)
4. ‘Uneasy lies the head that wears a throne.’ (a) Suggest remedies, or (b) imitate the action of a tiger.
5. Why do you picture John of Gaunt as a rather emaciated grandee?
6. Are you Edmund Mortimer? If not, have you got him?
7. Why on earth was William of Orange? (Seriously, though)
8. Which do you consider were the more alike – Caesar or Pompey, or vice versa? (Be brief).
9. Discuss, in Latin or Gothic (but not both) whether the Northumbrian Bishops were more schismatical than the Cumbrian Abbots (Be honest).
10. Which came first, AD or BC? (Be careful)
N.B. Do not on any account attempt to write on both sides of the paper at once.
(Sellar & Yeatman, ‘1066 And All That’)
Best Question-and-Answer Sessions of the Week
Q: Which colour of the rainbow is also a word used to describe somebody who is raw, inexperienced, or naïve?
Q: Which boy’s name comes before ‘ass’ to describe a stupid person?
Q: Which type of moustache takes its name from an item used in dental hygiene?
A: Dental floss
Q: The classic narrative ‘Pilgrim’s Progress’ was written by John WHO?
Q: Dove Cottage, in the Lake District, was home to literary brother and sister William and Dorothy WHO?
(The Weakest Link, BBC TV)