1. IBIA launches ADR schemes
THE International Bunker Industry Association (IBIA) will unveil new mediation and arbitration dispute resolution services next month at its annual convention in Buenos Aires.
Very little of the bunker industry’s dirty linen is washed in public. But Ian Adams, IBIA secretary-general, says, “Those disputes that do arise are usually quite small and revolve around quality, quantity or timing. It is in the interests of everybody in the industry that they are resolved as quickly and cheaply as possible. A key objective of both schemes is to restore relationships and to preserve goodwill that may be at risk from a dispute. The aim is to enable all sides to move forward with minimum conflict or disruption.”
The IBIA mediation and arbitration initiatives are distinct but complementary, aimed at bunker disagreements where the amount at issue is less than $100,000. Each scheme will keep costs to a minimum. The flat fee for each party using arbitration or mediation is set at $600.
Mediators and arbitrators will be appointed from an IBIA panel of bunker industry professionals. The parties will have a say in who is appointed.
2. Adulterated fuels
CHARTERERS need to wake up to the fact that they carry ultimate legal responsibility for the quality of the bunker fuel that is purchased and used in the vessels they charter, according to John Dixon, managing director of leading fuel testing agency Lintec.
A recent arbitration decision under English law in which the charterer had to pay for engine damage and time lost due to the poor ignition quality of the fuel (see maritime advocate online 178, October 19) shows that charterers are legally accountable for ensuring that the bunker fuel they purchase is ‘fit for purpose’. This requirement is in addition to any ISO 8217 specifications and terms of contract the charterer may have with the bunker supplier.
“For the charterer, ensuring fuel quality is like being between a rock and a hard place,” says Dixon. “Suppliers set the terms of the bunker supply contract and are able to limit their liability to the exact ISO 8217 specifications and terms that are set out.
“But shipowners are less worried by the exact formalities. They want to ensure that the fuel the charterers are using does not damage the vessel in any way, and this is reflected in the wording of the charter party. This leaves the charterer to bridge the responsibility gap between the views of the shipowner and the views of the bunker supplier.”
Lintec concludes, “Some fuels are adulterated deliberately, but in many more cases the contaminated fuel oils are the result of elements and compounds being introduced throughout the supply chain. The question should be not whether there are contaminants in the fuel oil, but whether they matter to the engineer on board and could potentially render the fuel unfit for purpose.”
3. Conflicting times
THE supreme court in Nigeria has ruled that, in the event of a conflict of terms, the provisions in a bill of lading are subordinate to the Carriage of Goods by Sea Act. In so doing, it overturned decisions of the court of first instance and appeal, which had held that the time allowed to make a claim in respect of cargo short delivery was three days, as opposed to one year.
The bill of lading at the heart of the dispute was made subject to the English Carriage of Goods by Sea Act 1924, which contains substantially the same provisions as the Nigerian Carriage of Goods by Sea Act (COGSA). The cargo interests had given notice of the short delivery 38 days after taking delivery of the cargo.
Clause 24 of the bill of lading provided that no claim made under the bill would be admitted unless made and properly attested within three days after the goods had been landed. But Article 3 Rule 6 of COGSA provides that the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year of delivery of the goods, or the date when the goods should have been delivered.
The trial court, relying on the provisions of Clause 24, held that the action was statute- barred because the claim was not made within three days. The appeal court subsequently affirmed that decision. But on further appeal to the supreme court it was held that, where a bill of lading is made subject to the provisions of COGSA, the provisions in that bill of lading are subordinate to COGSA and, where there is a conflict, the provisions of COGSA should prevail.
The supreme court allowed the appeal and held that the period of limitation was one year, and not three days. Accordingly, the action was not statute-barred.
4. Crashing boar
DAVID Martin-Clark’s most recent case note provides a summary, contributed by Kay Pysden of London law firm Pysdens, of a decision of the Central London Mercantile Court in an unusual dispute over liability for cargo damage.
Cargo interests and their insurers sued a road carrier for damage to cargo that had occurred when a tractor/trailer unit was involved in an accident on a motorway in Belgium. The accident was caused by the driver swerving to avoid a wild boar lying dead on the inner carriageway, he believing it at the time to be a human being.
The carrier’s defence was upheld under Article 17.2. of the CMR Convention, which provides that the carrier is not liable for damage caused through circumstances which it could not avoid, and the consequences of which it was unable to prevent.
(Netstal-Maschinen AG and Securitas Bremer Allgemeine Versicherung AG v Dons Transporte AG, Stewart Height and David O’Neill).
5. Registered bore
“THERE are no respectable flags of convenience. Some are just worse than others.” Even for the inexact and inexhaustible ITF general secretary David Cockroft, these comments, reported in last week’s maritime media, are a bit thick.
If you wanted to know how shipping flags perform, where would you go? To the Paris Memorandum of Understanding on Port State Control? Or maybe to the Shipping Industry Guidelines on Flag State Performance produced by the Round Table of shipping industry organisations. They are certainly the best-informed sources. Neither of them so much as mentions flags of convenience. Instead, both analyse the performance of national and open registers, and answer the question of where a respectable owner will flag its ships.
Cockroft has done for flags of convenience what Mary Whitehouse once did for loose morals on UK television – he has popularised them. Along with headline writers who make a living by appending suffixes and attributing double entendres to the term ‘FoC’, he continues undaunted. We wish he would stop. Unless you are Oscar Wilde, you cannot get away with talking nonsense and expect to retain your credibility.
6. People & Places
CHRISTINA Lau has joined the Singapore office of cargo claims adjuster and recovery agent Dolphin Claims Services (Singapore) Pte Ltd as an associate director.
7. CTC essay prize
MICHAEL Wagener, a lawyer from South Africa, has won the CTC Essay Prize sponsored by Charles Taylor Consulting (CTC) with a treatise on, “The use or abuse of the corporate veil in shipping: is legislation needed to unveil it and, if so, for what reasons?” Second prize went to Edward Waite, an assistant claims manager with Tindall Riley, who wrote on “Limitation of liability: is it needed any more and, if so, for what reasons?”
The competition was judged by the London Shipping Law Centre and the prize winners were announced last week at the Cadwallader lecture in London. Sadly, neither winner was in attendance to pick up the first prize of £1,500-worth of CTC shares or the second prize of £500 of the same.
YOUR editor may sometimes give the impression that he has a low opinion of competitions. That is because he is tired. The truth is he did toy with the notion of submitting a paper on the third suggested essay title in the CTC competition – “There are a number of private international conventions not yet in force; which of them most deserves to be in force, and why?” But he concluded that to do so would have hurt him a lot more than it would have hurt Charles Taylor.
There ARE a lot of private international conventions. Your editor’s choice for the one that most deserves to be in force is the Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods 1964. Why? Because five of the nine states which originally ratified the convention have since denounced it, and it would teach them not to be so precious.
LORD Woolf, it seems, was right to be worried about experts. Your editor has this week been invited to join a UK directory of experts, in an email which begins, “Editing a specialist magazine like yours, you must know what you are talking about. You are an expert, in fact.”
If your editor had realised that he was required to know what he was talking about, he would never have applied for the job in the first place. It wasn’t mentioned at the interview. And being an editor in FACT is pure fiction.
Assuming that the editor of a magazine knows what he, or she, is talking about is a very dangerous thing. Your editor knows very little about ISO 8217, has never visited Nigeria, and has never understood the CMR Convention, or the need for it. Yet he has written brilliantly on these and other subjects this week, and has plans to expound knowingly in forthcoming issues upon tonnage tax, kicking at school – why it is a bad thing, and the Chiltern Hundreds.
As things stand, he can write about more or less anything, without the need to travel the country with a suitcase full of slides and Sunday-best opinions. There is a lot to be said for not knowing very much about anything at all.
Telling the truth
NEW doubts have been raised this week about whether or not the ‘Titanic’ struck an iceberg. Whatever next? The bald eagle wears a hairpiece?
Your editor believes everything he has ever been told about the Titanic, from Bruce Ismay to Celine Dion, and will court no explanation other than an iceberg. There are some things we simply must believe in, even if they are not true.
There are those, for example, who say there was no such person as William Tell, the great thirteenth (or possibly fourteenth) century Swiss toxophilite, who may or may not have shot an apple charlotte off his son’s head before the days of penalty shoot-outs. Yet he inspired Friedrich von Schiller to write a play, Rossini to write an opera, and Peter, Paul and Mary to record Go Tell It On The Mountain.
Other mercurial things which may or may not exist include flags of convenience, gouda cheese (ninety per cent whey, ten per cent curds, and twenty per cent holes), reinsurance (100 per cent illusory, thirty per cent holes, allow to simmer over a low light) and a genuine desire to publish London maritime arbitration awards (50 per cent fear, 30 per cent hubris, 20 per cent brass neck).
POEM OF THE WEEK
Goodbye Bill Nick
You are gone.
You were a hard man,
Who stood no nonsense,
Either off the field, or on it.
But your teams played beautiful football.
You lived in a terraced house,
Just ten minutes from
White Hart Lane,
Because you couldn’t get any nearer.
You might find it funny
That news of your passing made
Dave Mackay cry.
Best Extract from a Novel of the Week
“I should warn you that you will not find Dr Plank’s name in any college lists should you try to look for it,” remarked Dr Wood, “and that is not because he is not a member of the college.”
Then Plank spoke. “The reason why there’s no Plank in the lists is not because there’s no Plank – there is – but because Plank is not spelled ‘Plank’. That is why.
“You may be aware that there are various English surnames which are spelled and pronounced in quite different ways. One of the best-known examples is ‘Featherstonehaugh’, which is pronounced ‘Fanshawe’. Then there is ‘Cholmondley’, which is simply pronounced ‘Chumley’, and of course anybody called ‘Beauchamp’ is usually ‘Beecham’.
“So how do you spell ‘Plank’?” asked Mathew Gureswitch.
“Haughland,” said Plank.
(‘At the Villa of Reduced Circumstances’, Alexander McCall Smith)
OFF to London’s famous Lloyd’s Building last week for Clyde & Co’s champagne reception, some humour and a little maths, courtesy of senior partner Michael Payton. 550 guests, 600 bottles of champagne and a blanket ban on George Bush jokes 21 days before the election. But only in the United States.
One night George Bush was awakened by George Washington’s ghost. Bush saw
him and asked, “George, what’s the best thing I could do to help the country?”
“Set an honest and honourable example, just like I did,” advised George.
The next night, the ghost of Thomas Jefferson moved through the dark bedroom.
“Tom, what is the best thing I could do for the country?” Bush asked.
“Cut taxes and reduce the size of government,” advised Tom.
Bush didn’t sleep well the next night, and saw yet another figure moving in the shadows. It was Abraham Lincoln’s ghost.
“Abe, what is the best thing I could do for the country?” Bush asked.
“Go to the theatre,” replied Abe.
Letter of the Week
HAVING sold my car, I wrote to my insurers requesting that my policy be cancelled. They replied, ‘Unfortunately, the documentation you have returned is unacceptable to cancel your policy. Please return within the next seven days your current certificate. If we do not hear from you by then, we will cancel your policy’. Problem solved.
(The Times, London)
Claim of the Week
“Two of the better FoCs are Cyprus and Malta.” (Fairplay)
(For sight of the Paris MoU blacklist, go to: www.parismou.org )
Quote of the Week
“It took me fifteen years to discover that I had no talent for writing, but I couldn’t give it up because, by that time, I was too famous. (Robert Benchley)
Best Question-and-Answer of the Week
Q: We are meant to learn from our mistakes. What will you never forget?
A: Having asked for ‘the postman’ for three days after every meal when in Barcelona, I will never forget that ‘the bill’ in Spanish is ‘la cuenta’.
(Neville Hopper, solicitor, Richards Butler, interviewed in RB Shipping Newsletter)
Best Email Message of the Week
Do you have no money?
Palindrome of the Week
Too bad I hid a boot.
Best Question-and-Answer Sessions of the Week
Q: Which activity does a falsetto engage in – forging, or singing?
Q: Which direction is indicated by the Italian command ‘Avanti’?
Q: In which country in the UK is the town of Haverford West situated?
Q: Who is editor of The Spectator magazine and Tory MP for Henley?
A: Sebastian Coe
Q: The Aegean and Ionian Seas feed into which larger body of water?
A: The Irish Sea
Q: A 1938 radio adaptation of which H G Wells novel panicked listeners into believing that aliens had actually landed on earth?
A: Animal Farm
Q: According to the Beatles, it was twenty years ago today that WHO taught the band to play?
A: Eleanor Rigsby
(‘The Weakest Link, BBC TV)