IN THIS ISSUE
1. Right of Stoppage in Transit
2. MLAANZ Marine Insurance Roadshow
3. IUMI gives Thumbs up for Revised York Antwerp Rules
4. Meaning of a Time Charter Trip – the Wehr Trave
5. The Panama Papers
6. People and Places
Situation Vacant
Our reader is seeking to employ an English qualified lawyer to join
a growing marine insurance team. The company has
offices in both Asia and London and has a well-established business
portfolio of Asian ship operators.
In order to supplement the legal advice platform that the company already
provides to its ship operating clients it is the company’s wish
to hire a further member of staff with a marine legal background, experienced
in dealing with the full
gamut of contractual and liability issues that the operator clients
may face. The successful candidate should be able to
show that they are experienced in dealing with both P&I and FD&D
insurances.
"What we can offer are working hours and conditions to suit you,
whatever your circumstances may be. Occasional overseas business trips
may be required.
We are happy to consider applicants based in either Asia or the UK,
of any age, working on either a full-time or part-time
basis, and can offer the flexibility to suit individual needs. Working
from home offers no barrier.
If such a position is of interest to you then you can contact the editor,
describing your experience, at the following email
address:-
Any interest will be dealt with in complete confidence.
_____________________________________________________________________________________________
FOB Network News
The current count of Members is 3906.
Our newsfeed on the site is courtesy of Splash 24/7. A
recent editors pick may be found in the Future Group Page. It is a rather
good and somewhat mordant look at the future of shipping by Andrew Craig-Bennett.
Our latest Business Members are the Steamship Mutual P&I
Club. Every Club has a website but not everyone in our experience is
as eager as the Steamship Mutual to communicate with the world. See
their recent efforts here:-
https://www.steamshipmutual.com/
FOB Network is a kind of facebook for the maritime classes.
It is designed for use by people who are very often quite shy of opining
in wide open internet platforms. The exchanges are polite, moderated
and untainted by boorish online presences. Only registered members can
see what goes on in the groups and we have yet to request anyone to
moderate their tone.
———–
Registration for FOB is gratis for individuals. Businesses
can take out a page for a small supporting contribution and we welcome
firms prepared to sponsor Group pages or advertise with us. This helps
to keep FOB a going concern and puts a smile on the face of our programmers
and accountants.
FOB is a project designed to adapt the new ways of using the internet
for the sorts of people who read The Maritime Advocate.
You are welcome to join
____________________________________________________________________________________________
1. Right of Stoppage in Transit
The current issue of Forwarderlaw contains an article by Maurice Lynch
of the firm of Mills Oakley, who writes:-
A right of stoppage is the right of an unpaid seller to stop goods
in transit that they have sold to a purchaser, and retain them until
payment of the purchase price.
For an unpaid seller to exercise a right of stoppage it must, prior
to possession of the goods transferring to a purchaser, give notice
to a carrier or freight forwarder of its claim in respect of the goods.
Once such notice is given, the carrier or freight forwarder must redeliver
the goods and not deliver them to the purchaser. Should a freight forwarder
deliver the goods to the purchaser despite a seller’s request to
exercise a right of stoppage, it could be exposed to a claim by the
seller for damages for conversion.
The recent Federal Court of Australia decision in Toll Holdings Ltd
v Stewart [2016] FCA 256, is a reminder to freight forwarders that when
asked to exercise a right of stoppage they must:-
• have adequate procedures in place to determine whether or not
they have delivered goods to the purchaser;
• understand their contractual obligations with the purchaser and
the seller and/or their agents to ascertain when the parties contemplated
that delivery from the seller to the purchaser will occur; and
• not blindly follow the usual procedures for the collection of
goods from a port of discharge, even if the goods are being collected
under bond.
Read the note in full here:-
http://forwarderlaw.com/library/view.php?article_id=1043
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2. MLAANZ Marine Insurance Roadshow
Derek Luxford has send in details of an initiative undertaken by the
Maritime Law Association of Australia and New Zealand (MLAANZ) in relation
to marine insurance.
Hot on the heels of the UK Insurance Act 2015 (UKIA) amending the UK
Marine Insurance Act 1906, on which the Australian Marine Insurance
Act 1909 (MIA) is based (and is almost identical), MLAANZ established
a committee of experienced marine insurance practitioners under the
chairmanship Derek to review the MIA and make recommendations to amend
it if considered appropriate. The committee has recommended significant
amendments to the MIA in its explanatory Memorandum and has drafted
a Bill to amend the MIA accordingly. Many of the recommended amendments
are similar to those introduced in the UK by the UKIA including in the
areas of the duties of utmost good faith and disclosure, warranties
and remedies for breach of duty and warranties, and have similarities
to corresponding provisions in the Australian Insurance Contracts Act
1984, which does not apply to insurance contracts to which the MIA applies.
MLAANZ’s recommendations will be taken to stakeholders in the Australian
marine insurance industry for comment and consideration in a series
of roadshows in major centres in Australia commencing in Sydney on 24
May 2016. A copy of the flyer for the roadshows may be seen in the link
below:-
https://www.scribd.com/doc/311972830/Mlaanz-Smdg-Event-Sydney-2016-2
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3. IUMI gives Thumbs up for Revised York Antwerp Rules
Mike Elsom has sent in this release from IUMI.
In general, the International Union of Marine Insurance (IUMI) welcomes
the revised York-Antwerp Rules (YAR 2016) which were adopted by the
Comité Maritime International (CMI) at its conference in New
York last week.
The York-Antwerp Rules (YAR) is a set of rules by which General Average
(GA) is adjusted (see detailed explanation in the notes below). IUMI
has a particular interest in their content as, on average, the GA system
increases the cost of maritime casualties by between 10%-30% largely
due to interest (7% p.a. under the 1994 and 1974 YAR), commission (2%)
on nearly all expenses and sacrifices, and adjusters’ fees. The process
of collecting GA security from all the cargo interests, assembling information
about ship and cargo values and expenses then re-adjusting all GA expenses
and sacrifices usually takes several years and prevents claims files
being closed quickly. For these reasons IUMI has, for more than 20 years,
been campaigning for a set of YAR which allow more GA expenses to lie
where they fall outside GA (but usually still covered as "particular
average" under marine insurance policies) and encourage the quicker
publication of GA adjustments.
Prior to YAR 2016, CMI had adopted YAR 2004 following a long campaign
by IUMI. YAR 2004 contained a number of measures which reduced the cost
of GA such as a variable but generally lower interest rate on GA allowances
(averaging 3.86%), the abolition of commission at 2%, the exclusion
of salvage from GA (except in cases where one party paid the salvage
liability of another), and the reduction of the amount of wages and
maintenance which a shipowner can recover in GA while detained at a
port of refuge. If the YAR 2004 had been universally incorporated into
contracts of carriage it is estimated that the underwriters’ GA exposure
would have been reduced by roughly 20% p.a. on average.
For a number of reasons YAR 2004 were not incorporated into BIMCO’s
standard forms of contract and so have remained largely redundant. YAR
1994 have continued to be the most frequently encountered set of YAR
costing insurers significant sums each year which might have been saved
under the YAR 2004.
To resolve this, a CMI international working group undertook in 2012
a complete re-appraisal of YAR in view of adoption at the CMI conference
last week.
The new YAR 2016 introduces some helpful measures which, if incorporated
into contracts, may reduce insurers’ GA exposure by a few percentage
points.
The most important gains in the new YAR for insurers are:
1. Interest will be fixed annually at ICE LIBOR on the first banking
day of each year in the currency of the adjustment plus 4 percentage
points. For a US$ adjustment that would produce a rate of 5.18% for
2016 as opposed to 7% under YAR 1994 or 2.5% for YAR 2004. However while
this will result in savings in the short term if interest rates rise
substantially insurers may be exposed to rates even higher than 7%.
2. Commission at 2% will no longer be recoverable. This was one of
the few changes made by the YAR 2004 which was retained.
3. Several measures designed to speed up the adjusting process have
been introduced; these include excluding low value cargo from contributing
in GA if the cost of including them is greater than their contribution
and clarifying the process by which adjusters can estimate GA allowances
in the absence of information from the parties.
4. Approved CMI Guidelines about the nature and operation of the GA
process have been introduced which it is hoped will assist those involved
in GA in understanding what is required of them.
Against these helpful moves a number of changes made by the YAR 2004
and/or sought by IUMI have not found their way into the YAR 2016. These
include:
(a) Wages and maintenance of crew while a vessel is detained at a place
of refuge are to be allowed (as in YAR 1994 but not in the YAR 2004).
(b) The cost of temporary repairs of accidental damage at a port of
refuge will not be capped as it is under the YAR 2004 thus restoring
the position under the YAR 1994.
(c) Salvage will be re-adjusted in GA in most cases save where such
re-adjustment is going to make no material difference to the parties’
situations, the so-called simple salvage situations.
A number of other, generally minor, amendments have been made to the
YAR with varying effects on insurers.
Overall IUMI welcomes the YAR 2016 as being an improvement on the YAR
1994. On Tuesday 10th May BIMCO’s Documentary Committee meet to consider
whether to approve the YAR for incorporation into their standard contracts.
Should this be done the new YAR should start to be incorporated into
contracts of carriage by the end of 2016 and will hopefully start to
show small reductions in the extent of insurers’ GA liabilities in 2017.
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Henry.Hill@worldwidecurrencies.com…………………….+44 (0)20
3326 4514
4. Meaning of a Time Charter Trip – the Wehr Trave
Gavin Ritchie writing in the E-Bulletin of the Charterers P&I Club
notes a recent English Commercial Court judgement in
SBT STAR BULK & TANKERS (GERMANY) GmbH & Co KG -and- COSMOTRADE
SA – The “WEHR
TRAVE” [2016] EWHC 583 (Comm) which he says provides "useful
guidance on the scope and meaning of a Time Charter Trip on a question
of whether Charterers were allowed to instruct the vessel on an additional
voyage after she had discharged her cargo. The decision emphasises that,
when confronted with this question, English Courts will focus on the
words chosen by the parties to detemine how the contract is constructed."
Read the note here:-
http://exclusivelyforcharterers.com/docs/E-Bulletin%20May%202016%20-%20The%20WEHR%20TRAVE.pdf
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5. The Panama Papers
Our friends at Maritime TV this week feature an interview with Clay
Maitland examining, in not too many words, the effects the Panama Papers
disclosures are likely to have on shipping. Maitland is not sure there
will be many, but sees the modern internet era as tending to erode the
anonymity of beneficial ownership.
http://tinyurl.com/PanamaPapersandShipping
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6. People and Places
Clyde & Co has appointed Fanos Theophani as Partner in its Global
Marine Group.
Fanos Theophani is a leading lawyer in the marine industry with 15 years’
experience. He joins from specialist shipping firm More Fisher Brown
where he was a Partner.
Fanos’ practice focuses on the owner and charterer market. His clients
are a combination of direct instructions from ship owners & charterers
and their P&I Club insurers. The success of his practice has been
built on close working relationships with the majority of the London
and Scandinavian P&I market.
———-
The wholly owned subsidiary set up by ClassNK, Ship Data Center Co.,
Ltd., officially commenced operations of its big data center, ShipDC,
from April 2016. ClassNK’s Information Technology Department General
Manager Takashi Nagatome has been appointed as Representative Director
and President of the subsidiary.
Ship Data Center Co., Ltd. was established on 7 December 2015 with the
aim of providing a secure platform through which ship-related big data
can be accumulated and provided to end users.
———-
The 21st Annual General Assembly of WISTA (Women’s International
Shipping & Trade Association) Hellas took
recently held General Elections to appoint the new Board of Directors
and the new Auditing Committee for the coming two-year period 2016-2018.
Board of Directors
1. President: Angie Hartmann, Crew Manager, Starbulk S.A.
2. Vice-President: Petraki Elpiniki-Natalia, Director, Enea Management
3. General Secretary: Maria Mavroudi, Business Development Manager &
Claims Executive, The American P&I Club
4. Treasurer: Ioanna Topaloglou, Orion International Brokers and Consultants
Ltd.
5. Board Member: Maria Angelidou, Marketing Manager, GAC Group
Substitute Board Members
1. Zoe Lappa-Papamatthaiou, Legal Director, Danaos Shipping Co. Ld.
2. Angeliki Karagianni, Business Partner, Karagianni Bros Marine &
Industrial Products
3. Despina Agyranopoulou, Managing Director, Global Seaways S.A.
Auditing Committee
1. Elizabeth Ioannidi, Oceanbulk Maritime S.A.
2. Marina Papaioannou, DNV GL, Maritime Academy Hellas
3. Vicky Roussos, J.G. Roussos Shipping S.A.
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From the Avo Archive
The website of this newsletter contains all the editorial material
since the inception of the Maritime Advocate as a print based quarterly
in 1997 under the founding aegis of John Guy, Chris Hewer and Manfred
Arnold. Readers can go to the site and search the database on the home
page in its entirety. If you are looking for an old case, an old controversy
or you would just like to see how many times you and your firm have
featured in our annals feel free to access the archive. It is like this
e-zine, free to Readers and we always appreciate the support of advertisers
and sponsors.
The term "trip charter" in the search engine produced this
fine item which appeared in Issue 332 of February 5th, 2008
Novel construction
The latest issue of the newsletter of the London Maritime Arbitrators
Association contains a transcript of a very entertaining talk given
by Sir Anthony Colman QC to the LMAA annual lunch at Trinity House last
year. Warming to his subject of
‘London Maritime Arbitration: The view from the Commercial Court’, Sir
Anthony said, "At whatever moment in time one takes one’s perspective,
maritime arbitrators almost always exuded a striking atmosphere of commercial
common sense – not, I am afraid, always matched by the commercial judges.
"Indeed, some might remember the hilarious case of The Aragon
in 1975. This was an award in the form of a special case by Cedric Barclay
as sole arbitrator. It involved a time trip charter on the NYPE form
– "one time charter trip via safe ports east coast Canada within
trading limits." The trading limits were defined thus: ‘Always
within Institute Warranty Limits East Coast Canada, USA East of Panama
Canal, UK Continent Gibraltar-Hamburg Range.’
"The charterers first ordered the vessel to load at Port Cartier
on the east coast of Canada – but on arrival the port was strike-bound
and the charterers then ordered the vessel to US Gulf "intention
New Orleans." Owners said they were not entitled to do so because
the charter obliged the charterers to load east coast Canada and they
had so elected.
"In his award, Cedric Barclay found that there was no custom of
the trade that the words used meant that loading must take place in
East Canada and that the charterers were entitled to order the vessel
to the US Gulf.
"The owners set down the award as a Special Case and it came before
Mr Justice Donaldson, one of the most inventive judges ever to sit in
the Commercial Court. In the course of argument, having an atlas handy
on the bench, he thought of a point which had never been argued before
Mr Barclay or by Mr Longmore on the hearing of the Special Case, namely
that ‘USA East of Panama Canal’ meant only such parts of the US east
coast as were west of the north-south meridian which passed through
the canal. This excluded the whole of the southern stretch of the US
eastern seaboard from north of Charleston and the whole of the US Gulf.
He then persuaded Mr Longmore to take the point, which Mr Longmore,
being the opportunist that he was, could not resist.
"Somehow or other, I then persuaded Mr Justice Donaldson to remit
the case to Mr Barclay for further consideration, including hearing
further evidence as to whether there was a customary meaning of ‘USA
east of Panama Canal’. And so was born one of the more remarkable decisions
of the Commercial Court in the last 100 years.
Mr Barclay’s second special case set out a whole raft of evidence from
brokers as to their understanding of the words used – some even describing
the judge’s construction as ‘absurd’. The view of the majority was that
the meaning of the words was simply such as to prevent the vessel entering
the Pacific. Well, so the second special case came back to the judge
who had to eat humble pie – although he did say he found the point ‘not
at all easy’.
"So the charterers won and got all the costs of both hearings.
The judgment ends with these words: "There might be a strong case
for asking for the costs against me personally, but I shall resist that
strenuously." Not even Mr Hobhouse could persuade the Court of
Appeal to reverse this decision. Lord Denning found it hard to keep
a straight face."
http://www.avoarchive.com/searchBI.php
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The State Of The Joke
The publisher of JumboJoke.Com, Randy Cassingham, decided to publish
a joke for every state in the United States. Some of them are rather
good. Here is instalment one:-
Alabama
Did you hear about the $3,000,000 Alabama State Lottery?
The winner gets $3 a year for a million years.
Alaska
An Alaskan was on trial in Anchorage. The prosecutor leaned menacingly
toward him and asked, "Where were you on the night of October to
February?"
Arizona
It’s so hot in Arizona, cows are giving evaporated milk and the trees
are whistling for dogs.
Arkansas
An Arkansas state trooper pulls over a pickup truck on I-40. He says
to the driver, "Got any ID?"
The driver asks, "’Bout what?"
California
The Los Angeles Police Department, the FBI, and the CIA want to see
who is best at catching perps. So a rabbit is released into the forest,
and each of them has to catch it.
The CIA goes in. They place animal informants throughout the forest.
They question all plant and mineral witnesses. After months of extensive
investigation, they conclude that rabbits do not exist.
The FBI goes in. After two weeks with no leads, they burn the forest,
killing everything in it, including the rabbit.
The LAPD goes in. They come out two hours later, dragging a bruised
mountain lion behind them. The mountain lion’s yelling, "Okay!
Okay! I’m a rabbit! I’m a rabbit!"
Colorado
How do you know you’re in the presence of a real Coloradan?
He carries his $3,000 mountain bike atop his $500 car.
Connecticut
What’s the difference between Massachusetts and Connecticut?
The Kennedys don’t own Connecticut.
Delaware
A DuPont chemist walks into a pharmacy and asks the pharmacist, "Do
you have any acetylsalicylic acid?"
"You mean aspirin?" says the pharmacist.
"That’s it! I can never remember that word."
Florida
My parents didn’t want to move to Florida, but they turned 60 and that’s
the law. –Jerry Seinfeld
Georgia
How do you know you live in Georgia? When all directions start with
"Go down Peachtree…" and include the phrase "When you
see the Waffle House…"
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A Diplomat is a Person who:
-always tries to settle problems created by other diplomats.
-can always make himself misunderstood.
-can convince his wife not to hide her nice body under a floor-length
sable.
-can juggle a hot potato long enough for it to become a cold issue.
-can keep his shirt on while getting something off his chest.
-can look happy when he has unexpected dinner guests.
-can make his wife believe she will look fat in a mink coat.
-can make nothing sound like something.
-can put his best foot forward when he doesn’t have a leg to stand on.
-can put his foot down without stepping on someone’s toes.
-can say the nastiest things in the nicest way.
-can tell a man he’s open-minded when he means he has a hole in his
head.
-can tell you to go to hell so tactfully that you look forward to the
trip.
-comes right out and says what he thinks when he agrees with you.
-divides his time between running for office and running for cover.
-has a straightforward way of dodging issues.
-lets you do all the talking while he gets what he wants.
-puts his cards on the table, but still has some up each sleeve.
-straddles an issue whenever he isn’t dodging one.
-will approach every question with an open mouth.
-will lay down your life for his country.
-will refuse to answer any question on the ground it might eliminate
him.
[Source: Paul Dixon”s Joke of the Day zine]
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