1. Staying in Nigeria
THE supreme court in Nigeria has overruled the country’s trial and appeal courts by agreeing to stay proceedings and lift a vessel arrest order in a dispute over an alleged charter party breach which had already been referred to arbitrators in London, prior to filing of the dispute in the Lagos courts.
An action was filed at the federal high court in Lagos claiming damages for an alleged charter party breach, and an order obtained for the arrest of the vessel. Clause 7 of the charter party provided that all disputes arising thereunder should be referred to arbitration in London, with English law as the governing law.
The appellant applied to the trial court for the unconditional release of the vessel and a stay of proceedings of the suit, contending, among other things, that the dispute was already being heard by an arbitral tribunal in London. The trial court refused to order a stay pending arbitration. On appeal, the Court of Appeal upheld that ruling.
On further appeal, however, the supreme court unanimously allowed the appeal. Relying on the relevant provisions of Sections 4(2) and 5 of the Arbitration and Conciliation Act, it held that, when a matter subject to an arbitration agreement is filed in court, the power of the court to order a stay of proceedings of the action before it is discretionary. However, courts should lean more in favour of the fact that, where parties have agreed to submit all their disputes under a contract to the exclusive jurisdiction of a foreign court, the court is bound to stay the proceedings unless strong reasons are shown to justify a refusal.
The supreme court said this was more so in this case because the arbitration proceedings had already started in London, and both parties had voluntarily submitted to the jurisdiction of the English tribunal before the plaintiff instituted the action in Nigeria.
2. Chinese bills of lading
THE question of entitlement to delivery under a straight (non-negotiable) bill of lading continues to occupy the attention of courts around the world.
In the latest issue of its ‘TT Talk’ newsletter, the TT Club says, “On the one hand there is what might crudely be called the US position, that the named consignee is entitled to demand delivery even though it does not have an original bill of lading in its possession. Other jurisdictions take the view that a bill of lading is always a document of title, no matter how it is made out, and that the consignee – even if specifically named in the address box – must still present an original bill before it can take delivery.
“These opposing views clearly create lots of difficulties for carriers, whether shipowners or NVOCs, and the club has consistently advised members to proceed with the greatest of caution when agreeing release of cargo carried in accordance with a straight bill.
“The law firm of Wang Jing & Co in China has recently reported an important development on this question under the Chinese judicial system. China’s main legislative body, the Commission of Legislative Affairs of the National People’s Congress, has recently reached consensus that, in all future cases where the Chinese maritime code is applicable, cargo delivery may only be made against the surrender of an original bill of lading, regardless of whether it is a straight bill or an order bill.
“This is a welcome clarification of the position in the People’s Republic of China. A previous supreme court judgment stating that “a straight bill of lading is not a document of title” resulted in much argument as to whether a delivery under a straight bill could still be made without it being surrendered.
This recent consensus has now answered this question and confirmed that surrender of a non-negotiable bill of lading is necessary under the Chinese maritime code.”
3. Revised MARPOL adopted
REVISED regulations to prevent marine pollution by ships carrying oil or chemicals have been adopted by the Marine Environment Protection Committee of the International Maritime Organisation.
The revised MARPOL Annex I for the prevention of pollution by oil is expected to enter force on January 1, 2007. It incorporates the various amendments adopted since MARPOL entered into force in 1983, including amended regulations on the phasing-in of double hull requirements for oil tankers. It also separates construction and equipment provisions from operational requirements and makes clear the distinction between the requirements for new ships and those for existing vessels.
4. What shall we do?
The US Court of Appeals for the Fifth Circuit has ruled that a shipowner may be liable in negligence for injuries incurred by one crew member when he was assaulted by another crew member who was intoxicated.
Holland & Knight reports that, when the seaman came on board the ship intoxicated, the master ordered him to sleep it off in his bunk. He later became belligerent and assaulted another crew member, who was severely injured. The injured crew member sued the owner, alleging negligence and unseaworthiness. The trial court granted summary judgment in favour of the owner, whereupon the crew member appealed. The appeal court ruled that the master had violated company policy when he allowed the intoxicated crew member to come on board. (Hasty v Trans Atlas Boats Inc).
5. People & Places
CEDR (the Centre for Effective Dispute Resolution has appointed James South as its new director of training. He succeeds Frances Maynard. A New Zealand-trained barrister and solicitor, South has been involved in ADR for the past nine years, the last four with CEDR.
6. IBIA goes Latin
THE International Bunker Industry Association annual convention 2004 is to be held for the first time in South America – in Buenos Aires, Argentina, from November 14 to16. It will be followed by a one-day basic bunkering course for newcomers to the industry, and a two-day advanced technical, operations and legal course.
IBIA has selected speakers to ensure that the event covers the key issues in bunkering from a local, regional and global perspective. Key sessions will cover the growth and development of the South American bunker industry, and the specialised and competitive issue of supplying bunker fuel offshore. Fuel quality, blending and the contentious issue of bunker surveyors will also be covered, as will security.
The convention starts with an organised visit to an Argentine ‘estancia’, followed by a welcome reception. It ends with a spectacular gala dinner at one of the most famous tango clubs in Buenos Aires.
Those wishing to see the programme, or to register for the IBIA annual convention 2004, can visit:
7. Latin phrase book
ANDREW Trasler, who retired from Thomas Miller & Co earlier this year and who now edits the TT Club’s newsletter, ‘TT Talk’, writes:
“Although the use of Latin is now officially discouraged by our courts, it has not escaped attention that lawyers still like to pepper their writing with phrases such as ‘caveat emptor’, ‘ex turpi causa’, ‘de minimis non curat lex’, and so on.
“Unfortunately, with the decline of classics teaching in our schools and the abandonment of Latin in the courts, there must be a real risk that lawyers will soon forget these useful phrases and, more importantly, what they mean. (Clients, of course, never understood the phrases in the first place, which explains why they are used so frequently.)
“To assist your readers may I commend to them the admirable and erudite lexicon produced by Miles Kington, which contains many helpful translations of Latin tags and phrases.”
Quid pro quo: the sterling exchange rate
Post hoc propter hoc: a little more white wine wouldn’t hurt us
Ad hoc: wine not included
Adsum: small extras on the bill
Exempli gratia: token tip
Infra dig: terrible accommodation
Primus inter pares: the stove has fallen in the fire
Compos mentis: mint sauce
Carpe diem: fish frying tonight
Non anglii, sed angeli: fishing absolutely prohibited
Curriculum: Indian restaurant
Casus belli: gastro-enteritis
Sic transit gloria mundi: the nausea will pass away, and you’ll be fine by Monday
O tempora o mores!: The Times is no more, alas!
Quis custodiet custodes ipsos: do you keep the Guardian?
Post meridiem: the Mail does not arrive until midday
Fiat lux: car wash
Rara avis: no car hire available
Volenti non fit injuria: the accident was caused by a badly fitted steering wheel
Reductio ad absurdum: road narrows
Nil obstat: River Nile impassable
Nil desperandum: River Nile overflowing
De minimis non curat lex: Lex garages cannot undertake to service small cars
Terminus ad quem: bus station for Quem (small Romanian town)
Caeteris paribus: restaurant facilities are available on the Paris coach
Post mortem: mail strike
Expostfacto: not known at this address
Sub rosa: rather unattractive Italian girl
Sal volatile: rather attractive Italian girl
Gloria in excelsis: very attractive Italian girl
Noli me tangere: I do not wish to dance with you
Ars longa, vita brevis: unsuitable bathing costume (literally: big bottom, small briefs)
Hic jacet: old-fashioned coat
Ecce homo: gay bar
Timeo Danaos et Dona Ferentes: that nice couple we met in Portugal
Mens sana: male massage parlour
Ex libris: dirty books
Ex cathedra: ruined church
Inter alia: an Italian airline
Summa cum laude: peak holiday period
In loco parentis: railway family compartment
Quondam: part of Holland reclaimed from the sea
Dum spiro: stupid Greek person
Festina lente: shops shut on Continent (literally: Lenten holiday)
Aut Caesar aut nihil: an Italian football result
Tertium quid: 33p
Trick or treat
THE Crypt off Holborn Circus was the suitably spooky setting for Lawrence Graham’s Halloween press party in London. The dark cellars, complete with cobwebs, candles, smoking cauldrons and pumpkins, provided the perfect venue for over 100 journalists and Lawrence Graham partners to celebrate not only Halloween but also a busy and successful 2004.
Treated to ghoulishly green punch, pumpkin soup and toffee apples, guests remained way beyond the witching hour before disappearing into the night. But they didn’t leave empty-handed, going away with a bag of goodies worthy of a long night trick or treating.
POEM OF THE WEEK
The Old Actor
I loved the lighting and the clothes –
Green jerkins or bluejeanery –
I loved a hunchback, a false nose,
I loved the change of scenery.
I loved my deep bows, the applause,
The fans, the glitz, the glam,
The only part I hated was
The man I really am.
(James Michie, ‘The Oldie’)
Letter of the Week
I RECENTLY found myself clasped to the bosom of a stranger to whom I had just introduced myself, and being kissed on both cheeks. This affectionate gesture, formerly reserved by me for special friends, has challenged my social skills. After careful consideration, I aim to demonstrate degrees of intimacy in the following ways: I shall offer a warm handshake to acquaintances whom I know and like, there will be a narrowing of the eyes with a touch on the elbow for old and valued friends, and for the few of the inner circle I shall reserve the step backwards and broad smile. As to strangers, I’m anybody’s.
(The Times, London)
THIS week your editor received from Friends Reunited an email asking, “Did you know that you attended one of the friendliest schools in Britain?” The answer to that question, insofar as it relates to the school in question, is “No”. Similarly, when asked if he had any fond memories of the school, your editor’s reply was in the negative.
We are talking about a school where a pupil in your editor’s class once corrected a teacher, who told us that Napoleon’s troops marched on Moscow, by saying, “But sir, I thought they marched on their stomachs.” (It was a school that loved a smart alec). It was a school where one of your editor’s best friends was sent off during a football match against a rival school for giving his name to the referee as ‘Shirley Bassey’. And it was a school whose headmaster threatened to use the money being collected to build a swimming pool to buy a harmonium instead, if we boys didn’t double the amount of homework we were doing.
Your editor can answer some of the questions posed by Friends Reunited. Favourite teachers? Mr Crouch (twice). Favourite class? Middle. Favourite school dinner? Bath chaps with melba thins and a taramasalata drizzle.
Your editor was a beamish boy, harshly treated by his peers. But he was perhaps more fortunate than the son of one of our readers, who tells us that her eight-year-old was recently ordered to write a 450-word essay on ‘Why Kicking Is Wrong’ after defending himself against an unprovoked attack by a classmate. Even the Great Train Robbers weren’t treated THAT badly.
YOUR editor recently commented on how well the years have treated former West of England P&I Club man Ken Norman, whose belies his recently achieved septagenerian status. But not everybody is so open about the question of age. Cary Grant, for example, was known to be very secretive about his age. One particular journalist apparently spent the best part of his career trying to discover the true age of the actor, and finally hit upon the idea of sending a telegram to the actor’s agent asking, “How Old Cary Grant?” He received a reply which read, “Old Cary Grant fine. How you?”
A SURVEY by the indefatigable Plimsoll Publishing has ‘revealed’ that the top 1,000 companies in the UK sea transport industry are in one of four different moods based on their current financial strength. It seems that 41 per cent are entering 2005 in a ‘cautious’ mood, 22 per cent are ‘upbeat’, 18 per cent are ‘gung-ho’, and 20 per cent are ‘under pressure’.
That adds up to 101 per cent, in anybody’s book, so it is no surprise that we are worried. Next year, look for more categories, including ‘high dudgeon’, ‘low esteem’, and ‘indigo’.
Up in smoke
AN Irish pub landlord was prosecuted recently for allowing after-hours drinking. The police drove past the pub at five in the morning and were suspicious when they saw two men standing outside. When questioned, the men explained that the landlord had insisted they go outside with their cigarettes because he didn’t want to break the strict law in Ireland banning smoking in public places.
(BBC Radio 2, ‘Wake Up To Wogan’)
Fly on the wall
A WOMAN walked into the kitchen to find her husband stalking around with a fly swatter. “What are you doing?” she asked.
“Hunting flies,” he responded.
“Oh. Killing any?” she asked.
“Yes. Three males, and two females.”
“How can you tell?”
”Three were on a beer can,” he said, “and two were on the phone.”
Cat Headlines of the Week
Cat takes control (Tug & Salvage)
Ace profits battered by $406m cat losses (Insurance Day)
Worst cat year in history focuses industry minds (Insurance Day)
Quote of the Week
If you haven’t got anything nice to say about anybody, come and sit next to me. (Alice Roosevent Longworth)
Best Question-and-Answer Sessions of the Week
Q: The term ‘Big E’ refers to which part of the human body?
Q: A WHAT lunch is one during which more alcohol than food is consumed?
Q: Which animal, beginning with ‘M’, supposedly goes mad in the month of March?
Q: Which large weapon is also a name used to described a fearsome woman?
Q: Those people undecided about where to place their allegiance during an election are referred to as floating WHAT?
Q: Hilaire Belloc said that, upon his death, he hoped people would say, ‘His sins were scarlet but his books were … WHAT?
Q: Which country has coastlines on both the Black Sea and the White Sea?
(BBC TV, The Weakest Link)