IN THIS ISSUE
1. Burden of Proof for Cargo Claims
2. New German Freight Forwarders’ Standard Terms and Conditions
3. German Arbitration News
4. JLT P&I Review
5. The Story of Donald Crowhurst
6. People and Places
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1. Burden of Proof for Cargo Claims
Gavin Ritchie has sent in this note which appears in the most recent
E-Bulletin of the Charterers Club. The note is by Julian J Clark of
Campbell Johnston Clark and concerns the case of Volcafe Ltd and Others
v. CSAV [2016] EWCA Civ 1103:-
In a judgment handed down on 10 November 2016, the English Court of
Appeal has finally settled the application of the burden of proof issue
in cargo claims while providing useful guidance on the application of
the inherent vice defence under the Hague Rules and what needs to be
shown to establish “a sound system” for the care and carriage
of goods.
The Court of Appeal decision serves to settle a longstanding controversy
and criticism as to how the burden of proof should be applied in cargo
claims and particularly whether a carrier must first disprove negligence
before it can rely on the defences under Article IV Rule 2 of the Hague
Rules.
Read the full note here:-
http://tinyurl.com/VolcafevsCSAV
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2. New German Freight Forwarders’ Standard Terms and Conditions
Courtesy of Forwarderlaw and their correspondent Dr. Marco Remiorz
of Dabelstein & Passehl we learn that on 1 January 2017 the new
2017 German Freight Forwarders Standard Terms and Conditions (ADSp 2017)
will come into effect. He writes:-
Both, the leading forwarders’ and cargo interests’ unions have
agreed to recommend the application of the new German Freight Forwarders’
Standard Terms and Conditions (ADSp 2017) applicable from 1 January
2017 onwards. The ADSp 2017 are the result of long lasting negotiations
aiming for a modernization of the former version of the ADSp adopted
in 2003. The new ADSp 2017 have concluded a dispute between the unions
of forwarders and cargo interests which came to a head with the recommendation
of two different sets of terms and conditions in 2016: On the one hand
the ADSp 2016, and, on the other hand, the German Transport- and Storage-conditions
(DTLB).
The ADSp 2017 are a compromise based on the rationale that the application
of the ADSp 2016 as well as DTLB would result in legal uncertainty and
unavoidable conflicts. With the new ADSp 2017 the parties involved retrieve
a well-familiar basis for the forwarding and logistic business in Germany.
The ADSp 2017 take the sender’s interest more into account, in
particular by increasing the maximum liability of a forwarder per loss
to EUR 1.25 million, for losses or damage other than damage to the goods
to EUR 125.000 and per damage event to EUR 2.5 million.
The ADSp 2017 increase (as did the ADSp 2016) the limitation of liability
from EUR 5.00 per kg to 8.33 SDR per kg for cargo damage. However, the
liability is limited to 2 SDR per kg for multimodal carriage including
a sea leg and, when the damage can be allocated to the sea leg of the
transport, to the higher of 666.67 SDR per package or per unit.
In addition, the ADSp 2017 limit the liability of the sender to EUR
200.000 per damage event e.g. for damage arising from inaccuracy or
incompleteness of the required information regarding the goods or insufficient
packing or marking.
The ADSp 2017 also lay down in more detail the obligations of each
party as previously being set out in the DTLB. However, crucial aspects
such as the liability for loading and discharge as well as rules on
the exchange of pallets have been left out as no compromise could be
achieved. The ADSp 2017 will certainly serve as clarification in many
respects of daily business. However, daily practice and the courts will
ultimately decide on the relevance of some of the clauses of the ADSp
2017 which might be held invalid under German law.
For further information on this topic contact Marco G Remiorz at Dabelstein
& Passehl at
http://forwarderlaw.com/library/view.php?article_id=1070
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3. German Arbitration News
At the recent AGM of the German Maritime Arbitration Association (GMAA),
Gregor Harbs was elected as the new Vice Chairman and Honorary Secretary
of the GMAA.
As a result, the secretariat of the GMAA will move to new premises
located at the law firm Ahlers & Vogel, Schaarsteinwegsbrücke
2, 20459 Hamburg, phone: +49 (40) 37 85 88-0. E-mail remains unchanged:
info@gmaa.de.
Gregor Harbs’ predecessor, Christoph Hasche, held the position for
8 years and did not run for this position again. The following members
of the board were re-elected: Jan Wölper (CMS Hasche Sigle) as
Chairman, Esther Mallach (Dabelstein & Passehl) as Treasurer and
Falk Fischer (Reederei Harren & Partner) as Vice Chairman. The AGM
also approved a modification of the GMAA Arbitration Rules which will
apply for all arbitrations initiated after 1 January 2017. This can
be downloaded from the GMAA website in due course at:-
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Henry.Hill@worldwidecurrencies.com…………………….+44 (0)20
3326 4514
4. JLT P&I Review
The JLT Review has appeared recently with reflections on the still
birth of the P&I mega Club by merger and the nature of the P&I
reinsurance arrangements. Mark Cracknell steers this publication with
ability–there are some broker reviews elsewhere which are so anodyne
you just ache for a bit of candour and insight.
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5. The Story of Donald Crowhurst
Courtesy of the Browser we read this sad reprise of the deeds of yachtsman
Donald Crowhurst, a man who went too close to life’s many edges and
over into the abyss. It is by Shannon Proudfoot who writes very well
and appears in Sports Net:-
http://tinyurl.com/donaldcrowhurst
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6. People and Places
Maria Pittordis of Hill Dickinson has been named Defendant Personal
Injury Lawyer of the Year at the 2016 Eclipse Personal Injury awards.
The judges praised the range of her expertise, the quality of the work
she handles, her contribution to thought leadership and her promotion
of good practice to help her clients and the wider industry mitigate
against PI claims arising in the first place in the shipping, port,
offshore and travel sectors.
The recent high profile success and landmark victory in the case of
Nolan v TUI UK Ltd [2015] was also shortlisted for Outstanding Personal
Injury Case of the Year. Nolan was hailed as a significant judgment
in the defence of claims relating to disease outbreaks not only in interpretation
of the law, but in the recognition of the importance of good practice
by the cruise operator.
———-
On 3 January 2017 Holman Fenwick Willan (HFW) will be merging with
US energy and marine firm Legge, Farrow, Kimmitt, McGrath & Brown
LLP, based in Houston, Texas.
———-
Ben Courtney, head of tanker derivatives at ICAP Energy, has been elected
as Chairman of the Tanker FFA Brokers Association. He replaces Jay Lovell
of Braemar ACM who has led the group, which represents the worldwide
community of tanker FFA brokers, for two years.
The FFABA is an independent association of 15 Forward Freight Agreement
broking Baltic Exchange member firms formed in 1997. The Association
runs regular forums with the Baltic Exchange to promote FFA trading
and bring together market participants.
Since the drop in oil price, freight risk has become an increasingly
important element in the commodity cycle. Those hedging continue to
seek an off-set for their exposure to unpredictable spot rates while
speculators look to FFAs to exploit opportunities created by a more
volatile tanker market.
———-
The new President-elect Donald Trump has nominated Elaine Chao for
Secretary of the United States Department of Transportation.
The former Labour Secretary will have road vehicles, airplanes, the
rail network, pipelines and ports all within her remit. Her responsibilities
also include the approval and development of autonomous vehicles, drone
usage and fuel efficiency standards.
Observers suggest she may well take a leading role in infrastructure
development projects after MR. Trump announced his plan to spend US$1
trillion on infrastructure.
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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.
We found only a single reference to the abyss in the archive but this
note by Douglas Lindsay is pretty pregnant with meaning as it appeared
in Issue 372 of November 12th, 2008:-
The Lloyd’s Shipping Economist Ship Finance & Investment Conference
in London on 4th and 5th November was rather different in 2008. For
many years now this has been the ‘must attend’ conference for the bankers
and lawyers concerned with the specialist world of shipping finance.
But this year both these worthy types were thin on the ground, partly
because of a rival bash going on in Rotterdam and partly – we suspect
– from an urge to keep heads down. The original title was hurriedly
changed from "Shipping’s Super Cycle: will the Ride Continue?"
to "The Global Economic Crisis: Plotting Shipping’s Course"
and that tells it all.
Getting a steer from those present was also difficult: usually there
is a subliminal main theme about where things are going, good bad or
indifferent. This year everyone had a different opinion, from ‘It will
all be over by Christmas’ to the Jeremiahs predicting seven lean years.
Banks of course never have problems and if there was a subliminal theme
it was that each bank thought it was all right because of prudent lending
policies and relationship banking, but that others might well be in
difficulties. But this was whispered quietly when no-one else was listenening
and certainly this humble scribe wasn’t going to laugh in their faces.
A little banker’s joke: ‘What’s the difference between a shipping banker
and a pigeon?’ A pigeon can at least put down a deposit on a Lamborghini’.
But in a time of great uncertainty and with many overleveraged owners
contemplating the abyss, a statistic emerged that rather set it all
in context. One of the major bankers present remarked that shipping
represented just six percent of his bank’s loanbook – and it was a major
player in the shipping sector. Others nodded sagely in agreement. So
although we think we are frightfully important one can perhaps forgive
the banks for taking a different view.
As always there was a certain level of nervousness over the publicly
quoted shipping companies. For the second time around there are those
among them likely to go bust in short order, with Britannia pointing
the way – big share issue (like $116 million) in June, bust in November
with those shares worthless. No matter which of the opinions on show
proves to be the right one, there seems little doubt that there will
be more failing shipping firms unless the China effect bursts forth
in a quite remarkable way, and soon.
The China effect, of course, remains a dominant theme but perhaps less
so than in the last few years. The optimists who believe the Celestial
Kingdom will get them out of trouble seem to be dwindling by the day,
despite a continuing level of internal demand. Growth is slowing, but
this is relative – even at 6%, modest by Chinese standards, growth will
generate some international demand. With major infrastructure plans
including 400 new cities, new ports and transport systems and a huge
demand from a population emerging into prosperity, a level of demand
must persist. And China has the money to pay for it: 1800 billion USD
of foreign exchange reserves, more than twice any other countries’.
But how much of that growth is provided for by internal resources, and
how much will come onto world markets, remains to be seen.
So what else emerged from the coal face? It’s a truism that credit
is tight, one view being that equity might be possible, but loans gone
forever. Others opined that rather cleverer mezzanine finance might
still be obtainable – but hang on, wasn’t it clever financial instruments
that got us all into this mess in the first place? The usual banker’s
wish list of sound charterers offering long-term time charters at profitable
rates, much higher equity to loan ratios, and shorter periods for loans
all came up – as they do whenever the bankers think they hold the whip
hand. But this always gets blown away by the first whiff of an upturn
in the market.
No doubt no few of the tourist banks will withdraw with bloody noses
while those with long-term views and knowledgeable staffs will remain,
but it does seem certain that choice will be limited for some time to
come. The order book and green field building yards also look distinctly
doubtful. Well over half the forward book is unfunded and on present
indicators isn’t likely to be so. Export credits were seen as a possible
source of funding which has seen a good deal more take-up just lately,
but the harsher fundamentals of a freight market not even covering prime
fixed cost are likely to blow a very chill wind through the order book
unless there is an upturn pretty soon.
So whither the shipping industry? The high cloud suggests major winds
are coming, but whether that turns into a hurricane or remains no more
than line squalls is very difficult to read. The bankers certainly don’t
know but are battening down the hatches.
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Desert Island Dreams
A guy, a sheep, and a dog were survivors of a terrible shipwreck and
they found themselves stranded on a desert island.
After being there awhile, they got into the habit of going to the beach
every evening to watch the sun go down. One particular evening, the
sky was red with beautiful cirrus clouds, the breeze was warm and gentle;
a perfect night for romance. As they sat there, the sheep started looking
better and better to the man. Soon, he leaned over to the sheep and
put his arm around it.
The dog got jealous, growling fiercely until the man took his arm from
around the sheep. After that, the three of them continued to enjoy the
sunsets together, but there was no more cuddling.
A few weeks passed by, and lo and behold, there was another shipwreck.
The only survivor was a beautiful young woman, the most beautiful woman
the guy had ever seen. She was in a pretty bad way when they rescued
her, and they slowly nursed her back to health.
When the young maiden was well enough, they introduced her to their
evening beach ritual. It was another beautiful evening, red sky, cirrus
clouds, a warm and gentle breeze; perfect for a night of romance. Pretty
soon, the guy started to get "those feelings" again. He fought
them as long as he could, but he finally gave in, cautiously leaned
over to the young woman, and whispered in her ear… "Would you
mind taking the dog for a walk?"
[Paul Dixon]
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Hamlet’s Cat’s Soliloquy
Shakespaw
To go outside, and there perchance to stay
Or to remain within: that is the question:
Whether ’tis better for a cat to suffer
The cuffs and buffets of inclement weather
That Nature rains on those who roam abroad,
Or take a nap upon a scrap of carpet,
And so by dozing melt the solid hours
That clog the clock’s bright gears with sullen time
And stall the dinner bell. To sit, to stare
Outdoors, and by a stare to seem to state
A wish to venture forth without delay,
Then when the portal’s opened up, to stand
As if transfixed by doubt. To prowl; to sleep;
To choose not knowing when we may once more
Our re-admittance again: aye, there’s the hairball;
For if a paw were shaped to turn a knob,
Or work a lock or slip a window-catch,
And going out and coming in were made
As simple as the breaking of a bowl,
What cat would bear the household’s petty plagues,
The cook’s well-practised kicks, the butler’s broom,
The infant’s careless pokes, the tickled ears,
The trampled tail, and all the daily shocks
That fur is heir to, when, of his own free will,
He might his exodus or entrance make
with a mere mitten? Who would spaniels fear,
Or strays trespassing from a neighbour’s yard,
But that the dread of our unheeded cries
And scratches at a barricaded door
No claw can open up, dispels our nerve
And makes us rather bear our humans’ faults
Than run away to unguessed miseries?
Thus caution doth make house cats of us all;
And thus the bristling hair of resolution
Is softened up with the pale brush of thought,
And since our choices hinge on weighty things,
We pause upon the threshold of decision.
by Jack Kolb, Department of English UCLA
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