Issue 178


1. EU ruling on Dutch registration

LAST week the European Court of Justice ruled that the Dutch requirements for registration of vessels in the Netherlands are a violation of European law, especially the right of free establishment.

In accordance with European law, non-EU companies must have access to the European market if they are founded in conformity with the law of the country of their principal place of business within the EU. Reinier P van Campen, of Wiersma Mendel Prakke in Amsterdam, tells us the court ruled that Dutch law does not provide for this possibility. Therefore the law must be changed in the near future and Dutch vessel registration will become open to more parties.

2. Charterers bunkered

THE decision in a recent London arbitration award dealing with damage caused to a vessel’s main engines by bunkers could mean that charterers henceforth will face increased exposure to liability when supplying bunkers to a vessel.

The key defence raised in the dispute was that the bunkers were on spec, and the arbitrators found that any bunkers supplied would have to be of a reasonable and general merchantable quality, reasonably suitable for the particular vessel’s engines and reasonably fit for the purpose intended. Significantly, this was in addition to any obligation to provide bunkers which complied with the express terms of the specification set out in the charter party or bunker supply contract.

The tribunal found that the damage sustained by the vessel’s engines was more likely than not to have been caused by the poor ignition qualities of the fuel supplied. The charterers were therefore found liable not only for extensive engine damage, but also for consequent loss, including loss of time.

A UK P&I Club Bulletin, based on information sourced from Stephenson Harwood partner Mark O’Neil, says, “The application of this approach will certainly considerably increase the exposure to liability of charterers who are responsible for supplying bunkers, particularly in light of the ignition quality aspect of the dispute. Charterers can no longer simply rely on the fact that the bunkers supplied complied with their technical specification. There is a further and more onerous duty to ensure that the on-spec bunkers supplied will not cause damage to the particular engine on board the particular vessel.”

3. Don’t blame the pilot

IN what is reportedly the first decision of its kind in decades, a US district court in New York has enforced the exculpatory and indemnity terms of a pilot ticket.

The dispute centred on the grounding in New York harbour in May 2001 of the ‘Cape Archway’. After the grounding, the docking pilot presented the customary pilot ticket to the master of the vessel, who refused to sign it.

The pilot ticket provides that the pilot is the servant of the vessel and is not to be held personally liable. It also states that, in the event of a claim against the pilot by any third party, the owner and/or operator agrees to defend – and to hold the pilot harmless from – any and all claims, except for actions which are found to be occasioned by the pilot’s wilful misconduct or gross negligence.

The ship operator claimed the grounding was occasioned by the pilot’s wilful misconduct or gross negligence. But the court ruled there was no evidence of wilful misconduct or gross negligence on the part of the pilot, since any disregard of the captain’s order was necessary to safely berth the ship. It said the pilot ticket effectively exonerated the pilot from liability for negligence, and was effective against the ship operator even though the pilot’s services were ordered by a third party.

The court held that the captain is only justified in interfering with the pilot’s navigational command in exceptional circumstances, because if such interference were encouraged, “we should have a double authority on board … the parent of all confusion, from which many accidents and much mischief would probably ensue. The record demonstrated that the pilot issued his order with no other intent but to protect the ship and safely berth her.”

The pilot was held to be entitled to be indemnified under the provisions of the pilotage clause.

For a copy of the opinion, contact James Mercante, or Susan Ryan, at Rubin, Fiorella & Friedman in New York:

4. Cadwallader on criminals

THE Cadwallader lecture is typically the scene for some of the best-informed debate on the shipping circuit. This year, though, there was very little in the way of debate, at least amongst those attending. The topic – Criminalisation in Shipping: Human Pawns in Legal and Political Games – was controversial enough. But would anyone dispute that seafarers deserve the same right as everybody else to fair process of law and the right to do their jobs without fear of being prosecuted?

Sadly, events have shown that they would. Mind you, none of the 300 shipping people gathered in the Captain’s Room at Lloyd’s last Wednesday was arguing against the case presented by the keynote Cadwallader speakers. It seems fairly obvious that, while deliberate misdemeanours should be punished, those who are merely doing their best in an already difficult situation should be praised rather than imprisoned.

Preaching to the converted? Maybe, but it is a message that much of the rest of the world has yet to pick up on.

5. Personal injury mediation

CEDR (The Centre for Effective Dispute Resolution) has launched a mediation scheme dedicated to lower-value personal injury claims, developed in conjunction with leading professionals, including law firms and insurers.

The new scheme aims to make mediation more accessible and affordable by providing a low-cost, high-quality, streamlined service using a panel of personal injury mediators for cases in which the amount claimed is less than £300,000.

6. People & Places

BIJAN Sohrabi has rejoined New York law firm Healy & Baillie. He was originally with the firm from 1998 to 2000, before being appointed Associate General Counsel of the Liberian International Ship and Corporate Registry (LISCR). He will now work with Healy & Baillie’s transactional partners, Glen T Oxton and Katerina Shaw.
7. Picture perfect

IF a picture is worth a thousand words, how much is an award-winning picture worth? A good man to ask would be Roger Overall, formerly deputy editor of The Maritime Advocate magazine. Roger decided to swap his pen for a camera three years ago in a bid to build a career as a professional photographer. He was recently given a professional merit award by Japanese camera and film manufacturer Fujifilm for a photograph that he took during a commission in South America earlier this year.

The photograph was taken on board a JP Knight tug and barge combination on the River Commewijne in Suriname, where JP Knight ferries bauxite from an inland mine to a refinery near Paramaribo.

Roger also recently relaunched his maritime website. It now includes an online image bank that can be searched using keywords, along with a gallery of some of his commissioned work.
8. The devil’s ledger

WHO said accountants are boring, and insurance accountants VERY boring? A quick glance at the latest issue of Insured Interest, the newsletter produced by the insurance industry group at leading accountant Moore Stephens, would suggest otherwise.

In the first of a series looking at classic and alternative definitions of accountancy terms, Moore Stephens succinctly describes an audit as, “An examination and verification of a company’s financial and accounting records and supporting documents by a professional, such as a chartered accountant”. It then offers the following, alternative definition:

“An audit is an attempt to steer a ship by looking at its wake. This holds good both for rich companies and for companies with nothing in the bank. (Note: Some people are not sure if they are rich or poor. As a general rule, if your normal casual wear includes a stovepipe hat, you are rich.)

“Now for the audit. Take a sheet of figures. Any figures will do, but they should usually include compound fractions, and the distance of the earth from the sun. At the end of each page – assuming it is a long list – you should always write ‘Carry Forward’. When you have added up the list of figures, make sure the outgoings equal exactly the incomings, with the exception of one penny. Otherwise you are into mutuality. Massage if necessary. Then sign with a flourish. Serves four comfortably.”

Conkers explained

READER Stuart Vaux has come to our aid in the great conker debate initiated last week. He writes, “I had a 159er and would have gone higher had I not hit a wall on my follow-through. The rules are simple. A new conker is always a one-er and its score increases by adding the score of its defeated opponent. For example, if a four-er breaks a one-er it becomes a five-er. If a ten-er beats a twelve-er, it becomes a twenty two-er, and so on.”

Anyone for gobs?

Editor wins lottery

NOW that’s what I call lucky. Your editor’s email address is one of two which, from no fewer than thirty million others, has been attached to the winning numbers in the Quintris lottery. As a result, he is about to trouser a half-share of $1.4m.

There might be a slight delay in payment. The Italian lottery organiser cautions, “Due to mix up of some numbers and names, we ask that you keep your winning information confidential until your claims has been processed and your money paid out to you. This is part of our security protocol to avoid double claiming and unwarranted abuse of this program by some participants.”

But your editor doesn’t foresee a problem, and hereby resigns his post with immediate effect. Future editions of this newsletter will be written by hapless staff members, whom your editor is now considerably richer than, while your editor proceeds to large it up on a cornucopian scale.

Thank you for reading the last 178 editions. And no double-claiming.

Language difficulties

YOUR editor has noticed that people today are continually being incentivised, as opposed to being motivated, or offered incentives. ‘Incentivise’ is not a word – not yet, anyway. But, if one complains, one is told that it is a no-brainer. So it is better not to complain.

Your editor is disappointed at the way in which the English language is forever being bastardized. It is happening 24/7/365 (but 366 in a leap year).

Maximum reference

‘HOW often have you spent valuable time searching for an authoritative explanation of a frequently used term?” asks the publisher of the fourth edition of ‘The Dictionary of Shipping Terms’. ‘Never’, is the only, unequivocal reply to that one.

Your editor once knew the shipping lexicon from abaft to zanzibar, and remembers by heart that bit in the second edition of the dictionary when the young Catherine Morland is taken to the fashionable resort of Bath with her friends, the Allens, and then travels to the eponymous medieval abbey, the seat of the Tilneys, there to become possessed by possible atrocities, before Captain Tilney falls under the spell of the unpleasant, scheming Isabella Thorpe. Or was that ‘Northanger Abbey’?

But wait. You editor may be out of touch. He has come upon a word in the fourth edition of the dictionary with which he is not familiar. It is ‘malaccamax’. For someone who failed to see the sense in post-panamax, and who therefore refuses to acknowledge the existence of super-post-panamax, malaccamax is a strait too far. But perhaps it is time to invest in that new dictionary.

Things You Can Learn From a Six-Year-Old

1. A king size waterbed holds enough water to fill a three-bedroom house about four inches deep.

2. When you hear the toilet flush and the words “Uh oh,” it’s already too late.

3. ‘Play Dough’ and ‘microwave’ should not be used in the same sentence.

4. Always look in the oven before you turn it on. Plastic toys do not like ovens.

5. The average response time for the fire brigade is about twenty minutes.

6. The spin cycle on the washing machine does not make earthworms dizzy.

7. It will, however, make cats dizzy.

8. Cats throw up twice their body weight when dizzy.

Best Famous Last Words of the Week

“What? NOW?” (Ethelred the Unready)

(BBC Radio Five live)

Best Song Title of the Week

‘All I Want for Christmas is a Dukla Prague Away Kit.’ (Half Man Half Biscuit)

Palindrome of the Week

Some men interpret nine memos.

Most Ghostly Survey Finding of the Week

The [survey] clearly shows a need for a large global organisation that can provide a broad spectre of shipping services. (Barwil newsletter)

Quote of the Week

My second favourite household chore is ironing, my first being hitting my head on the top bunk bed until I faint. (Erma Bombeck)

Best Question-and-Answer Sessions of the Week

Q: Which US state shares its name with a well-known species of beetle?

A: Detroit

Q: Which letter of the Greek alphabet is also a word meaning ‘a tiny amount’?

A: Omega

Q: What word beginning with ‘k’ comes before ‘up’ and describes the activity between players immediately before the start of a game of tennis?

A: Kick-off

Q: A rich person is often said to be made of which commodity?

A: Gold

Q: Complete the lyric, “But me and my true love will never meet again on the bonnie, bonnie banks of Loch …

A: Ness

(The Weakest Link, BBC TV)