The Maritime Advocate–Issue 747


1. Cargo Claims and the Rotterdam Rules
2. Brexit Preparedness
3. UK Freeports
4. UK and e-CMR Protocol
5. Sands of Time
6. People and Places

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1. Cargo Claims and the Rotterdam Rules

Stuart Hetherington writes:-

Re the decision in Volcafe Limited & Ors v Cia Sud Americana de Vapores SA (UK Supreme Court, December 2018),
The Journal of International Maritime Law will be publishing a paper by Stuart Hetherington, partner of Colin Biggers & Paisley in Sydney, and former President of the CMI, which argues that the Supreme Court’s decision in Volcafe Limited & Ors v Cia Sud Americana de Vapores SA is regrettable. The paper will be featured in the next two issues of JIML. The first issue is available now and the second will be released at the end of October.

He examines the decision critically and looks at the practice & procedure that was applied to the conduct of cargo claims litigation in the UK since the 19th Century; the Harter Act; the Travaux Preparatoires of the Hague Rules, the Rotterdam Rules, and the leading cases including the “Glendarroch”, Gosse Millard, and other decisions handed down by some of the leading Judges in the UK and Australia in the aftermath of the Hague Rules, including Scrutton LJ, Greer LJ, Lord Sumner; Lord Simon LC; Lord Atkin; Lords Pearce and Pearson; and, especially, Lord Wright in the Joseph Constantine case.

Stuart will also be giving lectures in the London market during the second week in October, suggesting that this decision highlights that:

1. Countries around the world need to ratify the Rotterdam Rules (with which this decision is inconsistent) and,
2. Until the UK ratifies the Rotterdam Rules and they come into force, carriers need to know that a Paramount clause making English law applicable to their contracts, carries with it the risk that where onus of proof issues under Article 3 rule 2 of the Hague Rules are involved in their carriage of goods disputes they will no longer be determined in the United Kingdom in accordance with the long accepted interpretation of exception clauses in bills of lading and under the Hague Rules on this issue dating back to, at least, the mid-19th Century, potentially to their detriment.

2. Brexit Preparedness

Our friends at CLECAT have sent us this note taken from their journal:-
On 4 September, the European Commission published its 6th Brexit Preparedness Communication, reiterating its call on all stakeholders in the EU-27 to prepare for a ‘no-deal’ scenario. The Commission states that in light of the continued uncertainty in the UK regarding the ratification of the Withdrawal Agreement– as agreed with the UK government in November 2018 – and the overall domestic political situation, a ‘no-deal’ scenario on 1 November 2019, remains a possible, although undesirable,outcome.

The European Commission also published a detailed Brexit preparedness checklist to help businesses that trade with the UK with the necessary formalities in cross-border trade and make final preparations The list builds on previous Communications and stakeholder notices, which cover abroad range of sectors. In view of the extension of Article 50 until 31 October 2019, the Commission has screened all the EU’s preparedness and contingency measures to ensure that they are still fit for
purpose. The Commission has concluded that these measures continue to meet their objectives and therefore there was no need to amend any of them on substance. The Commission has now proposedto adjust the duration of the EU’s ‘no-deal’ contingency measures in the area of transport in order to take account of the new Article 50 timeline:

• the Regulation ensuring basic road freight and road passenger connectivity (Regulation (EU) 2019/501) – proposed to be extended until 31 July 2020.

• the Regulation ensuring basic air connectivity (Regulation (EU) 2019/502) – proposed to be
extended until 24 October 2020.

The Communication also notes that the European Commission and Ireland continue working together, in the context of the unique situation on the island of Ireland and their twin objectives of protecting the integrity of the internal market while avoiding a hard border, to identify arrangements both for contingency solutions for the immediate aftermath of a withdrawal without an agreement and for amore stable solution for the period thereafter. The European Commission states that the backstop provided for by the Withdrawal Agreement is the only solution identified that safeguards the Good
Friday Agreement, ensures compliance with international law obligations and preserves the integrityof the internal market.
The European Commission also proposed that the European Solidarity Fund and the European Globalisation Adjustment Fund are available to support businesses, workers and Member States most affected by a ‘no-deal’ scenario. These proposals need to be agreed by the European Parliament and the Council.

The Communication provides an overview of preparedness work in those areas where continued vigilance is needed. This includes citizens’ rights, border formalities and trade, medicinal products,medical devices and chemical substances. The European Commission recalls that it is the responsibilityof all stakeholders to prepare for all scenarios. Given that a ‘no-deal’ scenario remains a possibleoutcome, the Commission strongly encourages all stakeholders to use the extra time provided by theextension of the Article 50 period to ensure that they have taken all necessary measures to prepare
for the UK’s withdrawal from the EU.

3. UK Freeports

The British Ports Association has sent us their thinking on the subject:-

A new trade campaign coalition has published a report calling on the Government to grant special economic status to airports and seaports in order to stimulate international investment, reshore manufacturing and ultimately lower prices for consumers in a post-Brexit Britain.

Port Zones UK is a new coalition of British airport and seaport operators, whose aim is to promote regional growth centred on key UK transport hubs, through the designation of enhanced ‘Enterprise, Development and Free Trade Zones’. Founding members of the new organisation include the British Ports Association (BPA), Regional and City Airports (RCA), the Port of Milford Haven, the Port of Tyne and the Institute for Exports.

The UK Government recently announced it was planning to create up to 10 free ports across the UK after Brexit allowing firms to import goods and then re-export them outside normal tax and customs rules. However, Port Zones UK, which was officially launched today, has published a new report – ‘A Licence to Operate: ‘Enterprise, Development and Free Trade Zones’ – which looks in more detail at the potential policy measures needed to make a success of any contemporary free ports programme.

In its report, Port Zones UK states that the UK’s imminent departure from the European Union (EU) has created a fresh impetus for a new and innovative growth-generating policy in regional and coastal communities. However, business conditions need to be created which increase the flow of foreign direct investment, which is central to the future of Great Britain.

Specifically, the report states that ‘zonal’ enhancements to the terrestrial and marine planning systems, as well as modifications to business focused policies of enterprise zones, need to be overlaid with any free port designation.

The report reveals three key areas of detailed policy which the Government needs to focus on. These include:

Speeding up the process and granting of planning permissions for development.

Ensuring that the marine and terrestrial planning systems relating to ports are closely co-ordinated to expedite marine licences.

Reducing delays arising from environmental legislation such as the Habitats Directive and environmental impact assessments.

Read the report here:-

4. UK and e-CMR Protocol

This eminently practical note was sent to us by Peter Thornton and Adrian Marsh of Hill Dickenson:-

Earlier this month, the secretary of state for foreign and commonwealth affairs presented parliament with its intention to accede to the e-CMR protocol.

e-CMR is an electronic method of meeting the requirements of the Convention on the Contract for the International Carriage of Goods by Road (CMR), which the UK incorporated into domestic law with the Carriage of Goods by Road Act 1965.

Read the article in full here:-

5. Sands of Time

Courtesy of the Browser we learn from Mette Bendixen et all in Nature about the sand trade. Desert sand is too smooth, so most industrial sand comes from rivers. Demand outstrips the natural replenishment rate. “Most of the trade in sand is undocumented.” Singapore claimed to import 80 million tonnes from Cambodia, but Cambodia only recognises 4% of that. Sand-mining of the Mekong delta means 500,000 people will have to leave their homes.


6. People and Places


HFW is launching an office in Monaco with the hire of a market-leading team to be led by partners Ian Cranston, Andrew Charlier and Marco Crusafio.

The team, which will also include legal directors Ian Fisher and Ruth Monahan, associate George Kaye and trainee legal executive Laura Pike, specialise in shipping, yachts, business aviation, international trade, commodities, energy and insurance.

They will join HFW in early September 2019 from Ince, where Ian Cranston was Monaco Office Head and Andrew was Global Head of Yachts.