IN THIS ISSUE
1. Disputed Facts Preclude Summary Judgment on The Oregon Rule
2. Bulk Cargo and Package Limitation
3. Bolero and Evergreen
4. P&I Renewals
5. From the Frontiers of Lexicography
6. People and Places
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1. Disputed Facts Preclude Summary Judgment on The Oregon Rule
Jason Minkin and Jonathan Ciprianof the Chicago firm of BatesCarey write:-
Under maritime law, The Oregon Rule presumes that a moving vessel is at fault when it allides with a stationary object. This rule has its origins from the 1895 United Supreme Court case, The Oregon, 158 U.S. 186 (1895). The owner of the stationary object that is hit by the moving vessel can satisfy its initial burden of demonstrating the moving vessel’s breach of duty by invoking The Oregon Rule. The burden then shifts to the moving vessel to demonstrate that it acted with reasonable care, the stationary object was at fault, or the allision was unavoidable. This presumption was recently rebutted in Vane Line Bunkering, Inc. v. Natalie D M/V, et al., 2018 WL 999912 (E.D. La. Feb. 21, 2018), where the federal district court in New Orleans found contested issues of material fact precluding a finding that the moving vessel was solely at fault. The factual determinations, according to the court, will be best left for the trier of fact.
Vane Line Bunkering involves an allision in the Mississippi River. Vane Line Bunkering owned and operated the M/V Chesapeake and a tank barge. According to Vane Line, the Chesapeake and the tank barge were placed in a designated anchorage area by a federal pilot and displayed proper lights. The following day, at about 7:00 p.m., the M/V Natalie D entered the anchorage area, attempted to pass between the Chesapeake and another vessel, and struck the Chesapeake’s anchor cable causing it to part and setting the tow adrift.
Vane Line argued that the sole cause of the accident was the negligence of the Natalie D and its owner/operator, Triple S Marine, LLC. Triple S disagreed and filed a counterclaim, arguing that Vane Line was responsible for the allision because its vessels were not properly moored.
In determining whether The Oregon Rule would apply to relieve Vane Line from liability, the court noted that the “presumption derives from the common-sense observation that moving vessels do not usually collide with stationary objects unless the [moving] vessel is mishandled in some way.” While the presumption of fault has been found not to apply to allisions with sunken and hidden objects, a vessel operator’s knowledge of the nonvisible object gives rise to the presumption because such knowledge means the accident is not fortuitous or unavoidable. Here, the moving vessel allided with a stationary object, the tow’s anchor cable which, according to Triple S, was below the water and not visible to its captain. The Natalie D’s captain also claimed that he did not know the location of the anchor wire. Thus, where, as here, the allision is with an allegedly unknown, nonvisible object, the court noted that The Oregon Rule may not apply.
Finally, the court noted that The Oregon Rule is rebutted if the stationary object is also at fault. Triple S, the owner of the moving vessel Natalie D, argued that such fault on the part of the stationary object exists here because: (1) it acted reasonably in navigating between anchored vessels to reach the fleeting facility, as it claimed was customary in this area of the river; and (2) the anchored vessel was an obstruction to navigation because its anchor chain was improperly set and the anchor cable protruded into the area where other vessels navigated.
In light of the competing arguments and evidence as to which party is at fault, the court declined to enter summary judgment in favor of Vane Line under The Oregon Rule. Rather, the factual determinations will be decided by the trier of fact.
2. Bulk Cargo and Package Limitation
Jai Sharma and Ian Woods, lawyers at Clyde & Co for those concerned in cargo, have sent us their views on the decision in the Aqasia. Their case note represses notes of glee but the meaning of the decision is that Article IV Rule 5 of the Hague Rules does not apply to bulk cargo and the unsettled storm clouds over the cargo recovery market are quite gone.
https://www.clydeco.com/insight/article/the-aqasia-court-of-appeal-confirms-hague-rules-package
3. Bolero and Evergreen
Scott Lunn has passed us this announcement, noting the take up of electronic documents by a major container operator, a long time in coming you might say:-.
Evergreen Launches New Electronic Documentation Function in Partnership with Bolero International
Evergreen Line introduces paperless Bill of Lading (B/L) and dispatch documentation via its ShipmentLink digital portal, enhancing connectivity for exporters and importers with banks, insurers, regulators, customs and port authorities. Evergreen is the first container carrier to integrate with Bolero’s proven electronic Bill of Lading (eBL) solution.
March 01, 2018 – Evergreen, in line with its avowed mission to deliver the highest standards of customer service through continual improvement, has introduced two new Intelligent Services – the intelligent i-B/L (Bill of Lading) and i-Dispatch, a solution that delivers documents associated with such transactions.
These new services, provided in partnership with Bolero International, will lower shippers’ costs while making data transfer more accurate, efficient, reliable and secure. Accessed via the line’s established ShipmentLink portal, the ability to achieve paperless data exchange among all parties concerned in a shipment will significantly simplify supply chain linkages.
Bolero’s eBL technology has been integrated into Evergreen’s ShipmentLink customer portal, delivering the benefits of almost 20 years’ experience of proven, secure and accepted electronic transfer of Bills of Lading (B/Ls) in the shipping community.
The advantages of this new integration for Evergreen’s container shippers start with the rapid issuance and transmission of the i-B/L. This is helpful in all cases but particularly for short-sea shipments when a paper Bill of Lading can sometimes arrive later than the vessel, making it difficult for importers to pick up cargo on a timely basis.
However the advantages of i-B/L do not end there. The paperless environment allows reviews and alterations to be undertaken online and speeds up cash-flow by avoiding the delays associated with traditional documents. Carriers can release goods and banks can release payment to shippers far more quickly.
With Bolero’s assistance, the new i-Dispatch function facilitates electronic exchange of the wide range of documentation associated with shipments in addition to the B/L, including packing lists, commercial invoices, certificates of origin and other customs-related credentials, licenses and inspection reports. This avoids the dangers of loss, fraudulent copying and errors associated with paper documents and where necessary, transmission can be in an encrypted form.
Evergreen is pleased therefore to add i-B/L and i-Dispatch to its existing suite of electronic functions, including shipment booking and tracking, for the use of customers via Evergreen ShipmentLink. Partnership with Bolero, introducing new digital functionality, marks the expansion of the established online portal into high-volume container trades.
Ian Kerr, CEO of Bolero, said: “We are delighted that Evergreen, such a major global container carrier, is partnering with us to help transform an industry on which world trade depends. Bolero’s eBL platform has already been proven in bulk cargo trades and initial container-based transactions by corporates such as Cargill, BHP Billiton and Reliance Industries, but now with Evergreen we are taking a very significant next-step in the digitization of world trade by putting our technology at the disposal of a wider community of container shippers and NVOCCs.”
4. P&I Renewals
Ordinarily this is the time of year when marine insurance writers and journalists reveal the changes consequent upon the completion of the 20th of February renewal season. In classic years, fleet moves between Clubs are mentioned, confidential you understand. The Clubs will insist it has all gone rather well and the calculating observer cannot help but notice that the market appears to have grown its tonnage as a whole in ways which have escaped the editors of the new buildings supplements.
This season toilers in the P&I market have attained the goal of all good professionals which is to make their field appear complicated but unexciting. Travelling hopefully but solidly, the P&I train arrived on time in 2018 at Dullsville Arizona. The industry itself, during these years of shipping rate gloom, has been anchored at Fat City. The Clubs, tending as usual to tug at their contra cyclical anchors, are at present full of capital whereas during the longest boom in world shipping since the late 1700s they were strikingly short of cash. In the circumstances of this year’s renewals, each Club eschewed asking for general increases. Where warranted a little dab of discount was findable for restive members complaining about their rates. Trends long in the making did not show much deviation from their paths–the industry is developing into a two or even three tiered affair, the largest Clubs able and maybe preparing to go their own way–some day, other Clubs seeming too titchy in their monoline design to sail anywhere much away from the platoon. Then out in the wind, bobbing up and down, are dozens and dozens of entities eager to take some fixed premium money. Come on in say these players, old and new, the water’s great.
One topic which seems to be on the minds of many is the indifferent condition of the International Group Agreement as pertaining to competition. The obligations to honour the rates issued by the holding club are it seems indifferently policed these days. Vigilance for transgressions it is said is a thing of yesteryear and inducements to change Clubs seem to crop up here and there without anyone calling foul.
Warning voices mention that benign claims climates like the present have a tendency to fade away. That a more competitive P&I market is upon us, ushered in by large losses booked by reinsurers and large funds paying for the caprices of mother nature in 2017. We shall see. In the immortal words of Chris Hewer, one of the predecessor editors of this publication it takes a great deal of time for not very much to happen in P&I and quite right too, for the need to protect and indemnitfy shipowners in respect of their third party liabilities is not a suitable field for those with a short termist mentality.
5. From the Frontiers of Lexicography
A visit to the Oxford English Dictionary by Guardian journalist Andrew Dickson. He asks the perfectly reasonable question: can the world’s biggest dictionary survive the internet? Your editor’s shelves carry the two volume version which was acquired with great pride, anticipation and contentment sometime in the 1980s. Truth to tell, the last time the books were taken down in earnest and consulted is probably 15 years ago.
The long and splendid piece in the Guardian ought to be read by anyone who loves working with words:-
Throughout it all, OED churns on, attempting to be ever so slightly more complete today than it was yesterday or the day before. The dictionary team now prefer to refer to it as a “moving document”. Words are only added; they are never deleted. When I suggested to Michael Proffitt that it resembled a proud but leaky Victorian warship whose crew were trying to keep out the leaks and simultaneously keep it on course, he looked phlegmatic. “I used to say it was like painting the Forth bridge, never-ending. But then they stopped – a new kind of paint, I think.” He paused. “Now it’s just us.”
6. People and Place
W K Websters have announced the retirement of Senior Partner and Finance Director, John Martin, after 35 years of service to W K Webster. He will, however, act as a consultant to W K Webster & Co Ltd during the period of transition to a new Finance Director, before moving into full retirement. Gregg Newman takes over the role of Senior Partner.
———-
After many years of representing the Britannia P&I Club in Taiwan, Capt. Mike Chiang, the founder of Chiang Marine Services (CMS), has decided to retire. As a result CMS’s exclusive correspondent role is passing to a successor company, B Taiwan P&I Correspondent Co, which will be headed by Euly Luo who is well known to Britannia’s membership in Taiwan, having served with CMS for 30 years.
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.
Looking back to Issue 88 of 13th January, 2003, editor Chris Hewer cast his eye on the conditions of marine insurers:-
Clubs must improve performance
FOR P&I clubs, February 20 is more sacred than is the Glorious Twelfth to the grouse cognoscenti. And this year there could be an unusually high level of grousing in the P&I market.
Lloyd’s broker and P&I specialist HSBC Insurance Brokers in its Protection & Indemnity Review 2003 says that inferior underwriting results and inadequate or even negative investment income continue to haunt the clubs.
HSBC says the market environment for the traditional February renewal will be hard. “Realistically,” it notes, “there is some way to go before the clubs move back into an underwriting surplus, or even underwriting balance.”
HSBC says the clubs relied too heavily on investment income made during the long bull markets of the 1990s which, rather than being regarded as a bonus and employed to bolster free reserves, was instead used to subsidise new underwriting business. It adds that the clubs were more assiduous in their quest to attract new business or tonnage at the expense of existing and established members, whose money had been used to earn the healthy investment returns in the first place.
Nigel Russell, Managing Director of the Marine Division of HSBC Insurance Brokers, concludes, “The plain and simple fact is that the clubs must improve underwriting performance. They must also bolster free reserves, and cannot rely on investment income.”
www.hsbc.com
Corporate patience waning
IF P&I has a long way to go before it moves back into surplus, hull underwriters in the commercial market are still eating the clubs’ dust.
The Joint Hull Committee (JHC) has warned that recent increases in hull insurance rates following the spate of casualties at the end of 2002 may not be enough to return the account to necessary levels of profit. It says that losses such as those produced by the Diamond Princess, Prestige and Tricolor casualties, among others, have served to focus the attention of all markets on the basics of rating and return on capital, with some significant hardening of rates achieved during the recent round of renewals. But JHC chairman Simon Beale warns, “These increases alone would appear not to be enough to return the account to the necessary levels of profit, especially for newer tonnage. The corporate patience of insurers will be sorely tried by further poor results. If the corrective measures being taken prove not to be sufficient, the outlook for the market is bleak.”
The JHC is finally the sum of all its parts. If the market had had a strong, focused and empowered JHC thirty or forty years ago, hull insurance might not be in the mess it is in today.
Observations
1. Men are like Slinkies, not really good for anything, but you still can’t help but smile when you see one tumble down the stairs.
2. I read recipes the same way I read science fiction. I get to the end and think, “Well, that’s not going to happen”.
3. Health nuts are going to feel stupid someday, lying in hospitals dying of nothing.
4. The other night I ate at a really nice family restaurant. Every table had an argument going.
5. Have you noticed since everyone has a camcorder in the car these days,no one talks about seeing UFO’s like they used to?
6. You know when you’re sitting on a chair & you lean back so you’re just on two legs, then you lean too far & you almost fall over but at the last second you catch yourself? I feel like that all the time.
7.According to a recent survey, men say that the first thing they notice about a woman are their eyes. And women say that th e first thing they notice about men is that they’re a bunch of liars.
8. Whenever I feel blue, I start breathing again.
9. All of us could take a lesson from the weather. It pays no attention to criticism.
10. Why does a slight tax increase cost you $200.00 & a substantial tax cut save you thirty cents?
11. I’m not 40-something. I’m $39.95, plus shipping and handling.
12. In the 60’s people took acid to make the world weird. Now the world IS weird and people take Prozac to make it seem normal.
13. Politics is supposed to be the second oldest profession. I have come to realize that it bears a very close resemblance to the first.
14. There ‘s a theory that states that if anyone discovers exactly what the Universe is for & why it ‘s here; it will instantly disappear & be replaced by something even more bizarre & inexplicable. There’s another theory that states that this has already happened.
15. How is it that one careless match can start a forest fire, but it takes a whole box to start a campfire?
16. Doctors can be frustrating. You wait 6 weeks for an appointment and he says, “I wish you’d have come to me sooner.”
Autre Angles–Nursing
You know you are a nurse if:-
The front of you scrubs read:
‘Nurses…here to save your ass, not kiss it!’
You occasionally park in the space with the ‘Physicians Only’ sign,and knock it over.
You’ve ever told a patient to ‘move toward the light.’
You believe that all the patient needs is some vitamin A (ativan)
You’ve ever run out of linens, syringes, IV fluid, meds, and patience all at the same time
You believe some patients are alive only because it’s illegal to kill them
You do the “only-27-more-minutes-of- the-shift-from-hell happy dance”
You always follow the rules,but be wise enough to forget them sometimes.
You believe any family member who is more drunk (or more stupid) than the patient,is the real problem.
You can’t cure stupid.
You believe if it’s wet and sticky and not yours, leave it alone!
You believe just because someone’s license date is before yours does not mean (You’ve had pain for 3 weeks..
have a seat, well get to you in 3 days)
You refer to vegetable and you don’t mean the food group.
You know the local detox center number by heart.
You believe the lab should have a ‘dumb shit’ profile on the lab requisition slip.
You firmly believe that ‘too stupid to live’ should be a diagnosis.
You have to leave the patient before you begin to laugh uncontrollably.
You believe a book entitled ‘Suicide: Getting it Right the First Time’ will be your next project.
You find humor in other people’s stupidity.
Your idea of fine dining is sitting down to eat.
You believe a good tape job will fix anything.
You get an almost irresistible urge to stand and wolf down your food,even in the nicest restaurants.
Your idea of a good time is a Code Blue at shift change.
You don’t believe 90% of what you’re told, and 75% of what you see.
You have your weekends off planned a year in advance.
[Paul Dixon]