Issue 186


1. Early loading

A RECENT maritime arbitration in London dealt with the issue of early loading, and its effect on the running of laytime. The charter party at issue included a clause under which the charterers, if they agreed to the vessel loading earlier than the start of laydays, should have the benefit of the time so saved. The clause included a provision that “such benefit shall be from the time laytime commences until commencement of laydays”.

The issue was whether the time prior to the laydays should cease when loading was completed, or only at the start of the laydays. The arbitrators held that the stipulation in the wording that ‘such time saved which counts under the charter party terms’ could only mean that, in order to calculate the time saved, regard had to be had only to the charter laytime provisions, so that any excepted periods did not count to the credit of the charterers. In this case, time ceased when loading stopped, and there was no conflict between this construction and the wording of the clause.

2. Holiday interruption

MAHATMA Gandhi might have been amused at a recent London arbitration which was asked to decide whether laytime under a charter party which provided for “holiday excepted even if used … legal/local holiday not to count even if used’ was interrupted during Mahatma Ghandi Jayanti, which was described in the statement of facts, not as a local/legal holiday, but as a ‘charter party holiday’.

Reporting the arbitration in its latest Monthly Shipping Bulletin, Richards Butler notes that the BIMCO Holiday Calendar for the year in question drew attention to the risk to owners in agreeing to the term ‘legal/local holidays’, which it warned would serve to interrupt laytime, and advised owners that it would be better to agree instead ‘charter party holiday’, so as to limit their exposure to laytime interruptions. In this case the question was whether, by way of the language used in the charter party, the charterers had achieved the inclusion of ‘legal and local holidays’ only to exclude ‘charter party holidays’ from the charter party laytime regime.

The holiday in question was clearly both a charter party holiday and an important national holiday. But it had also been adopted locally and was therefore both a local and a charter party holiday. The arbitrators found that both parties must have known that it was an important national holiday, and that it would qualify as a holiday within the provisions of laytime. Accordingly, laytime was interrupted.
3. Sub-freights included
THE US Court of Appeals for the Fifth Circuit has ruled that the term ‘all freights’ in a charter party includes ‘all sub-freights’.

Under the terms of a time charter, a shipowner was granted a lien on all cargoes and all freights due. The time-charterer of the owner’s vessel then granted a voyage charter to a third party and, in a separate transaction, also voyage-chartered another vessel. The time-charterer failed to make payments due on either of its two charters.

The shipowner faxed notice of its lien to the voyage-charterer of its ship, telling it to remit all money due on that voyage charter. The owner of the second ship then sought a writ of maritime attachment and garnishment against the money held by the voyage-charterer of the first ship. Subsequently, the shipowner sought a writ of maritime attachment and garnishment against the same money.

The issue before the court was whether the terms used in the original charter party were sufficient to give the shipowner a lien against both the freights and the sub-freights. The court held that, while ‘sub-freights’ was the technically correct term for the money due in this instance, the law had not drawn a clear distinction between freights and sub-freights. (Source: Healy & Baillie)

4. New Zealand amends transport act

IN New Zealand, the Maritime Transport Act 1994 has recently been amended by the Maritime Transport Amendment Act 2004. An updated version of the Maritime Transport Act 1994, as amended, is now available on the New Zealand Maritime Law website.

Paul Myburgh writes, “Please note that, whilst Section 11 of the Maritime Transport Amendment Act 2004 – which continues a venerable New Zealand tradition of conferring silly names on public bodies by changing the title of the New Zealand Maritime
Safety Authority to ‘Maritime New Zealand’ – will only come into force on July 1, 2005, I have already incorporated the name changes into the version on my website, so that we all have some time to get used to it.”

5. Pollution compensation increase

INCREASED levels of compensation will be available for victims of oil pollution from oil tanker accidents when the 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund comes into existence on March 3, 2005. This will supplement the compensation available under the 1992 Civil Liability Convention (CLC) and Fund Convention with an additional, third tier of compensation. Participation is optional, although open to all states which are parties to the 1992 Fund Convention.

The total amount of compensation payable for any one incident will be limited to a combined total of 750 million Special Drawing Rights (SDR) (just over US$1,152 million) including the amount of compensation paid under the existing 1992 CLC/Fund Convention.

6. Arbitration developments

A NUMBER of developments in arbitration have been reported on the International Law Office website.

In Canada, the Supreme Court has affirmed the view that parties to an arbitration have virtually unfettered autonomy in identifying the disputes that may be subject to arbitration. By promoting a wide interpretation of arbitration agreements, the decision allows arbitrators to consider all questions that are necessarily connected with the issues in dispute. (Borden Ladner Gervais)

In El Salvador, a recent decision issued by the chief justice of the supreme court reflects that a new, arbitration-friendly policy has taken root at the top levels of the Salvadoran judiciary. This is the first step towards establishing the widespread use of arbitration and building confidence in its effectiveness as a dispute resolution method. (Delgado & Cevallos).

In Finland, the Central Chamber of Commerce has adopted a new set of rules for expedited arbitration to be applied by its Arbitration Institute. The rules provide a speedy and inexpensive procedural alternative for minor disputes. But this alternative is not intended to replace regular arbitration as the primary dispute resolution mechanism for commercial disputes. (Castrén & Snellman)

And in the US, in dismissing a motion to compel arbitration, a circuit court highlighted the criteria that must be met in order to satisfy the “irreducible constitutional minimum of standing” to sue. The petitioner must demonstrate that it has suffered an injury-in-fact, which was caused by the respondent and which would be redressed by the relief sought from the court. (Baker & McKenzie).

7. People & Places

INTERNATIONAL shipbroker and shipping consultant Galbraith’s has appointed three new directors with effect from January 1, 2005 – Bjorn Andersen, Peter Bartleet, and Richard Harmsworth.

Bjorn Andersen is a Norwegian national, 35 years of age, who started his shipping career in New York before moving to Galbraith’s in 1999. He focuses on the crude oil sector and in particular on VLCC and Suezmax trades. Bjorn, in addition to his London base, has developed direct links with a number of clients in the Far East, an area where he will continue to work to expand Galbraith’s worldwide reach.

Peter Bartleet, aged 47, becomes the second director on the Sale & Purchase desk, working alongside head of S&P Neil Rokison. He has over 25 years of broking industry experience spanning both tanker chartering and S&P. He has worked extensively abroad and has strong connections in the Italian and Monaco markets, having lived in Monaco for many years. While in Monaco he gained extensive experience of shipmanagement and business development, and thus brings to the board of Galbraith’s a valuable breadth of commercial experience. He is a Fellow of the Institute of Chartered Shipbrokers.

Richard Harmsworth is 34 years of age and joined Galbraith’s in 1997 after five years, spent in London and in Australia, with another major London shipbroking company. Richard works with fellow director James Palmer on the products desk, where he is recognised as a leader in his field in both spot and period trades for a variety of vessel sizes.

Richard Sayer, chairman of Galbraith’s, says, “Bjorn Andersen, Peter Bartleet and Richard Harmsworth are highly regarded by clients and competitors in their respective markets. The Galbraith’s board gains three people committed to the group’s agenda of growth whose breadth of vision and energy will add significant value to the company.

AFTER almost thirty years in the business, Julia Mavropoulos, claims director of International Transport Intermediaries Club (ITIC), is retiring at the end of this month.

Julia’s career in the shipping industry began in the 1970s when she worked for a Piraeus-based firm who were general correspondents for the UK P&I Club and Lloyd’s Agent for Greece. When she returned to London in the 1980s she joined the management company of TIM, one of the predecessors of ITIC. Since then she has been an underwriter and claims handler for ITIC and has been in charge of claims at the club for the past eleven years.

“I have been with ITIC since the beginning and am very proud of what we have achieved in making the club the world leader it is,” says Julia. “Working for ITIC has given me the opportunity to make friends around the world and help members with their problems. It is wonderful to be part of ITIC’s dedicated team and I am happy that ‘my’ members will be in good hands when I retire.”

Travelling was an integral part of Julia’s job, and it is something she hopes to do far more of once she retires. She will also be acting as a part-time consultant to ITIC for the foreseeable future.

MARINE and energy lawyer Alan Sacks has relocated to New York from New Orleans to join Rubin, Fiorella & Friedman, bringing over twenty years’ experience from the Gulf of Mexico region. His admission to the Bars of Louisiana, Texas and Oklahoma, and long relationship with the London insurance market, will add a new dimension to the depth already enjoyed by the firm’s marine department, says admiralty partner James Mercante.

DLA and Piper Rudnick are merging to create one of the world’s largest law firms. Effective January 1, 2005, the new firm, DLA Piper Rudnick Gray Cary, will have over 2,700 lawyers across 49 offices in 18 different countries – making it the third largest provider of legal services in the world.

The merged firm will continue to operate in its seven key areas of corporate and finance, litigation, real estate, legislative and regulatory, human resources, commercial (including transportation), and technology, media and communications.

NORTON Rose took three awards at the Jane’s Transport Award ceremony earlier this month. In addition to winning the port finance law and rail finance categories, it was also involved in what was named as the ‘port finance deal of the year’.

The deal concerned the $36 million financing for the expansion of container terminal facilities at the port of Gdynia in Poland. Acting as borrower’s counsel, Norton Rose was responsible for drafting all the facility and security documentation.

The deal is one of the first major infrastructure financings concluded in Poland following the country’s accession to the EU in May this year.

Proof positive

GOOD friend and insurance writer Adrian Leonard writes in response to last week’s wine column. He asks, “Just how much is 14.5 per cent proof?” He then comes up with some cockamamie definition of ‘proof’ as, ‘Twice the volume percentage of ethyl alcohol (ethanol) in an alcoholic beverage. Example: An alcoholic beverage that is 40 per cent ethyl alcohol by volume is referred to as being 80 proof.” How absorbing.

For good measure, he throws in the show-stopper that proof is “a term used to indicate the amount of alcohol in LIQUOR or other spirits. In the United States, proof is exactly twice the percentage of alcohol. Therefore, a bottle of liquor labelled ’86 Proof’ contains 43 per cent alcohol.”

Adrian suggests that this might be a transatlantic translation problem. He refers to 132 per cent-proof rum, and adds for good measure that proof spirit is “a mixture of alcohol and water containing (in the UK) 57.1 per cent alcohol by volume or (in the US) 50 per cent.”

Adrian is a very nice chap, but he should take more water with it. Of course it is possible to provide proof of ANYTHING if you set your mind to it. Switzerland, for example, is quite a small country, but if you iron out flat all the mountains, it would take up an area bigger than China.

Adrian is American, or possibly Canadian.

Web wonders
IN your editor’s experience (vast), lawyers are the last people to come to terms with technology. This is not because they are silly, but simply because they are so bound about with caveats that they are unable to make the best of what innovation has to offer. So, for example, an email from a lawyer might contain a 200-word disclaimer at the beginning, making you promise, among other things, not to read it if you are not who the lawyer thinks you are. (If you are not who YOU think you are, you might need a shave). The email may also contain a promise to mail you a hard copy of the email, which is the last thing you need with Christmas just around the corner.
But help may be at hand. A web design company has released a new content management system for law firms. Put ridiculously, this will enable law firms to update their websites online, in real time, at any time, all the time, time after time (Cyndi Lauper).

The manufacturer claims that the system enables law firms to “add an attorney, select their practice areas, and upload their articles. Poof! They are instantly added to all the appropriate pages. That is just for starters.” (To follow, there is a full turkey roast, with all the trimmings, plus plum pie for afters).

Your editor believes that law firms should not be left to their own devices when it comes to websites. They should leave it to the experts, whoever THEY are. Ask a law firm to put information onto its own website and it will start putting double spaces after every full-stop, indenting paragraphs, running orange text on yellow background, adopting one-and-a-half-line spacing, inserting semi-colons, starting every other word with a capital letter, and beginning each news item with, “White Plains, Thursday, 10.00 am”.

There are thousands of web designers who do this already, without having to get the lawyers involved.

Matter over mind

‘HEALTHY body, healthy mind’ is the second most memorable phrase your editor remembers from his schooldays. The MOST memorable is ‘Measure twice, cut once’, the mantra chanted by his carpentry master.

We must have had healthy minds, because we got through a lot of exercise. We barely had time to cram in the lessons. Yet, this morning, the UK government announced that, within a handful of years, it wanted every school child in the country to be getting at least two hours of physical education each week. FNARR!!!!

At your editor’s school, two hours of PE was a mere mouthwash. Each day started with a five-mile cross-country run through Epping Forest, the highlight of which came halfway through when the games master would eye some wretched stragglers and, pulling down his shorts to reveal a huge, Heath Robinson-type surgical truss which began under his armpits and ended just below his knees, would bellow, “You want to get yourselves one of THESE.”

The head boy was as fit as a butcher’s dog. He could be found most evenings astride the roof of the school, one foot on the roof of the turret on the west wing, the other foot on the east wing turret, plucking low-flying starlings out of the air as slip practice for the cricket season, while reciting his latin verbs.

Enduring image. Isn’t it?

Catching up

YOUR editor is beginning to suspect that people are inventing cat stories. Firemen in Italy last week reportedly rescued a 46-year-old man who was stuck up a tree in Milan. The man believed he was a cat, and was mewing for help, but couldn’t be tempted down by a saucer of milk. What a terrible story. Imagine believing you are a CAT.

Meanwhile, a stone slab which had marked the final resting place of a cat named Winkle for the past twenty years has been found to be a valuable, rare survivor of pre-Conquest English sculpture depicting St Peter giving a Benedictine blessing in papal clothes. Does this make it a catacomb?

Whatever happened to PROPER cat stories, stories in which cats are chased by bulldogs, canaries are chased by cats, and cats are willed millions of pounds by old ladies, only to blow the lot on a fish supper? Your editor has yet to meet a cat he likes, or one who likes him, and he doesn’t intend to start now.

Artful dodger

A THIRTY-year-old man, about five feet-seven tall, and wearing a thigh-length leather coat, last week stole a rare sixteenth century crystal ball from the Science Museum in London. A spokesman for the museum didn’t say that, in view of the recent spate of raids on London museums, he should have seen it coming.

Meanwhile, nobody, sadly, saw fit to steal this year’s Turner Prize winner, ‘Memory Bucket’, a mixture of graffiti, video footage of anti-war rallies and a copy of the Hutton report, placed on a dining table. The winner, Jeremy Deller, says he wasn’t allowed to take his art exams at school, because he couldn’t draw, paint or sculpt. He has gone on to prove his teachers right.

Your editor might have been a famous artist, but for the fact that he couldn’t draw hands. Will somebody please put an end to this madness, now.

Seasonal wishes

THIS will be the last maritime advocate online before the traditional end-of-year break. Your editor would like to thank you all for staying with him through another eventful year, and he wishes you every good wish for 2005. He will doubtless find something to fill his time on Mondays until the new year comes around, although he is not sure what. He feels rather like the turkey who, in the lead-up to Christmas, agonised, “Wattle I do?”

Quote of the Week

Nobody can make you feel inferior without your permission. (Eleanor Roosevelt)

Best Question-and-Answer Sessions of the Week

Q: George Bernard Shaw once said that England and America are two nations divided by a common WHAT?

A: Water

Q: Johann Sebastian WHO was a prolific German composer?

A: Tchaikovsky

Q: What is the term used to describe first-year students at university?

A: Loafers

Q: What ‘H’ is a word used to describe a hanging bed, suspended on cords?

A: Hamper

Q: Bremerhaven is a major port city in which European country?

A: Spain

Q: The Murray and Darling Rivers are to be found in which Southern Hemisphere country?

A: Hebrides

(BBC TV, ‘The Weakest Link’)