The Maritime Advocateā€“Issue 717



1. Court Grants Permission to Appeal in Air Cargo Damages Litigation
2. BARECON 2017: What’s New?
3. Security for Arbitrations in the US
4. e/BLs Progress?
5. Whaling
6. People and Places

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1. Court Grants Permission to Appeal in Air Cargo Damages Litigation

The following note appears in the Brick Court Chambers Case Notes sent to us on March 27th, 2018:-

Mrs. Justice Rose today granted permission to appeal her ruling in her judgment of 4 October 2017, in which she struck out part of the Claimantsā€™ claims for damages in relation to infringements of EU competition law pre-dating 1 May 2004. The Claimants assert that they were overcharged for freight services by British Airways and other airlines because those airlines were parties to a covert cartel whereby they agreed with each other about the level of certain surcharges applied to charges for the carriage of freight. The claims followed two decisions by the European Commission, in which it found there to be an infringement of EU competition provisions, the overall duration of that infringement being between 9 December 1999 to 14 February 2006.

Mrs. Justice Roseā€™s ruling was based on an interpretation of the transitional provisions applicable to air transport on routes between the EU/EEA airports and third countries. She found that those transitional provisions did not allow national courts, prior to 1 May 2004, to rule on the compatibility of an agreement with ex Article 85(1) EEC in the absence of either implementing measures adopted under ex Article 87 EEC or a prior decision taken under the transitional regime in ex Articles 88 or 89 EEC. She further found that the provisions of Regulation 1/2003, on which the Claimants relied, did not have retrospective effect.

Having heard submissions from the parties, she granted permission to appeal on the basis that there were difficult points of law involved, there was no domestic authority on the issues and that consequently it was not possible to say that there was no real prospect of success.

2. BARECON 2017: What’s New?

Nick Austin and Chris Moxon of Clyde and Co have written a piece for the firm’s Insight pages:-

By publishing BARECON 2017, BIMCO hopes to bring the industry-standard bareboat charterparty terms fully up to date, reflecting commercial practice, addressing issues recently raised by the UK Courts, and simplifying the form where possible.

In this article, the authors explore the key differences between this latest incarnation of the BARECON form and its 16 year old forerunner, BARECON 2001, and consider the impact it will have on the bareboat chartering market.

Read the piece in full here:-

3. Security for Arbitrations in the US

Readers at Lyons and Flood, the New York maritime attorneys write:-

Society of Maritime Arbitrators’ Rules Update

The New York Society of Maritime Arbitrators (“SMA”) has recently updated their Rules dealing with awarding pre-award security. As from March 14, 2018, Section 30 of the SMA Rules has been amended to make explicit what has been implicit for many years now: that New York arbitrators have the discretionary power to require a party to provide security. The authority to award pre-award security extends to both claims and counterclaims, and to the form and amount of the security.

The opportunity to receive pre-award security is another arrow in a claimant’s quiver when arbitrating in New York.

The first paragraph in Section 30 now reads:

“The Panel shall grant any remedy or relief which it deems just and equitable including, but not limited to, specific performance and the posting of security for part or all of a claim or counterclaim in an amount determined by and in a form acceptable to the Panelā€¦”

4. e/BLs Progress?

News reaches us via Nicholas Demetriou that there are moves afoot to distance the shipping and transport classes from their adherence to paper-based freight documents. We first took an interest in the subject when your editor was aged but 43 and employed at the TT Club. He is 63 this month. The march of time goes on.

FIATA is introducing an electronic FIATA Bill of Lading (eFBL) offering safe, secure, reliable, efficient, and faster paperless trade to its members. As part of the project plan, FIATAā€™s Advisory Body Information Technology will work on the digitisation of FIATA documents, starting with the eFBL and in a second phase the electronic House Bill of Lading (eHBL issued by NVOCCs) plus other FIATA documents. With essDOCSā€™ assistance, its CargoDocs electronic exchange will help prevent fraudulent copying and errors that might be associated with paper documents. This is part of the long-term strategy identified by FIATA with the involvement of several FIATA entities and experts.

Five FIATA Association Members from diverse regions will participate in the pilot project to test the new CargoDocs-customized FIATA system. The pilots will ensure a seamless transition to a paperless environment. They will be conducted across pre-specified trade lanes and will be guided by FIATA Association Members.

Specifically, the pilots will be carried out in 3 phases. Initially, FIATA members will simply replace their current printing of FBLs with an online, collaborative tool housed within essDOCSā€™ secure hosted servers. Members will be able to either draft their FBL online, and share it with their shipper before it is printed and signed, or allow their shipper to draft their own FBL before being printed and signed. The FBLs will be printed onto blank FBL paper which will be distributed by FIATA and signed by FIATA NVOCCs.

Phase 2 of the project will add various security features to help identify fraudulent FBLs and will be extended to include membersā€™ own House Bills of Lading. In phase 3, FIATA members will be able to adopt fully electronic FIATA Bills of Lading (eFBL) or House Bills of Lading (eHBL).

[We wish the parties well–ed]

5. Whaling

The Avo does not do much on whaling, an industry with a considerable past. Courtesy of the Browser we became aware of this essay by Lyndsie Bourgon which appears in the Aeon zine:-|

Boys growing up in the Shetland Islands had only one job option, well into the last century: Whaling. They crossed the world to do it. After over-fishing the North Atlantic, they moved to the South Atlantic, then to Antarctica. World wars increased demand for whale products. ā€œMargarine, made with whale oil, replaced butter. Whale-meat extract was a primary ingredient in Bovril. More than half of all whales harvested in Antarctica were hunted after the Second World War.ā€

6. People and Places

Shipping industry stalwart Robert Maxwell, Managing Director of Bernhard Schulte Shipmanagement (BSM) Singapore, died on March 26, after a three-year battle with cancer. Mr Maxwell had a remarkable career in shipping and his contributions to the ocean freight industry were formidable. Maxwell trained as a Mechanical Engineer at Southampton College of Higher Education. He started his career at sea in 1988 as a 2nd Engineer and in 1993 became a Chief Engineer officer sailing on bulk carriers ranging from 149,000 to 186,000 tonnes. A few years later, in 1996, he joined Hanseatic Shipping as a Chief Engineer sailing on large containerships and gas carriers.

[source: Handy Shipping Guide]


At the Nautical Institute HQ

Captain Maneesh Varma joins as Training and Accreditation Development Officer and will be working to enhance and manage The Nautical Institute’s CPD services. With 25 years’ experience at sea, Maneesh worked through the ranks to Captain for Maersk. He has held numerous roles in the maritime training sector, working as senior lecturer at Warsash Academy, Lowestoft College and Liverpool John Moores University.

Qasim Masood MSc MRINA has been appointed as Accreditation Manager. Having worked through the ranks from Deck Cadet to Chief Officer, Qasim came ashore to study for an MSc in Maritime Safety and worked for Lloyd’s Register as Senior Technical Specialist. Qasim brings a rich background in delivering technical guidance and project coordination to The Nautical Institute.

Originally The NI’s Accreditation Manager, Captain Ghulam Hussain LL.M MBA FICS FCILT MRIN FNI has taken on the role of Technical Manager and Head of IMO Delegation. He is a Master Mariner and after stepping ashore, he dealt with commodity trading, ship management and operations and ship broking. Prior to joining the Institute, he was CEO of a ship owning company.


The 23rd Annual General Assembly of WISTA (Womenā€™s International Shipping & Trade Association) Hellas took
place on Wednesday, 28th March, 2018 at the Athenaeum Grand Hotel, during which General Elections were
held to appoint the new Board of Directors and the new Auditing Committee for the coming two-year period

Board of Directors

1. President: Angie Hartmann, Crew Manager, Starbulk S.A.
2. Vice-President: Petraki Elpiniki-Natalia, Director, Enea Management
3. General Secretary: Ioanna Topaloglou, Orion International Brokers and Consultants Ltd.
4. Treasurer: Maria Angelidou, Group Marketing Manager, Gulf Agency Company Limited
5. Board Member: Maria Sofia Ioannidi, Compliance Officer, Aspida

Substitute Board Members

1. Christiana Prekezes, HELMEPA
2. Angeliki Karagianni, Business Partner, Karagianni Bros Marine & Industrial Products
3. Iris D. Liaskoni, Marketing & Business Development Coordinator, Seascape Ltd.

Auditing Committee

1. Elizabeth Ioannidi, Oceanbulk Maritime S.A.
2. Kolliopoulou Vivi, Thenamaris Shipmanagement Inc.
3. Vicky Roussos, J.G. Roussos Shipping S.A.

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 lots of references to whales in the archive, many too flippant to mention. But this one from Derek Luxford is the real deal. It appeared in Issue 421 of January 24th, 2010:-

Southern Ocean Anti-whaling Protests

Derek Luxford writes:-

This is the time of year for the annual highly publicised protests by the anti whaling acftivists Sea Shepherd Conservation Society (SSCS) against the Japanese whaling fleet’s annual foray into the Southern Ocean around Antarctica as it hunts for whales exploiting a loophole in the international whaling conventions regarding in relation to alleged “scientific research”. The SSCS uses small vessels to harass the whaling vessels. The whaling vessels in turn do not take kindly to this harassment. It gives rise to quite spectacular and potentially dangerous cat and mouse games in the Southern Ocean often in waters over which Australia claims jurisdiction, although few other countries recognise that claim. Japan does not recognise it. Whale hunting of any sort is illegal under Australian law. Japan claims the “scientific research” hunting takes place in international waters where it is not illegal. An Australian Federal Court judgment several years ago found the Japanese fleet in breach of Australian law.

All this came to the fore in early January when one of the Japanese whaling vessle collided with ASScS vessel Ady Gil cutting the Ady Gil in two and injuring one of its crew. Film footage tended to inmdicate the Ady Gil was primarily at fault “loitering with intent” as it were in the direct path of the whaler, playing a sort of maritime chicken.

The incident has become controversial highlighting issues concerning the International CollRegs, crimes at sea, environmental issues. And various private and public international law issues in an emotive environment. Many of these issues were covered in a recent interview I did on Sydney talk back radio for radio station 2 UE. Your readers can listen to the interview by following the links on the station’s website. The interview lasts about 10 minutes

[The radio link seems to have gone with the repositioning of radio 2 UE to lifestyle programming]

Fairy Story

Once upon a time there was a Prince who, through no fault of his own was cast under a spell by an evil witch. The curse was that the Prince could speak only one word each year. However, he could save up the words so that if he did not speak for a whole year, then the following year he was allowed to speak two words.

One day he met a beautiful princess. She had ruby lips, golden hair and sapphire eyes. He fell madly in love. With the greatest difficulty he decided to refrain from speaking for two whole years so that he could look at her and say “my darling”. But at the end of the two years he wished to tell her that he loved her. So he waited three more years without speaking, bringing the total number of silent years to 5.

But at the end of these five years he realized that he had to ask her to marry him. So he waited ANOTHER four years without speaking.

Finally as the ninth year of silence ended, his joy knew no bounds. Leading the lovely princess to the most secluded and romantic place in that beautiful royal garden the prince heaped a hundred red roses on her lap, knelt before her, and taking her hand in his, said huskily, “My darling, I love you! Will you marry me?”

The princess tucked a strand of golden hair behind a dainty ear, opened her sapphire eyes in wonder, and parting her ruby lips, said, “Pardon?”

[Paul Dixon]

Fairy Tale

A Duke was hunting in the forest with his men-at-arms and servants when he came across a tree. Upon it, archery targets were painted and smack in the middle of each was an arrow.

“Who is this incredibly fine archer?” cried the duke. “I must find him!”

After continuing through the forest for a few miles he came across a small boy carrying a bow and arrow. Eventually the boy admitted that it was he who shot the arrows plumb in the center of all the targets.

“You didn’t just walk up to the targets and hammer the arrows into the middle, did you?” asked the duke worriedly.

“No my lord. I shot them from a hundred paces. I swear it by all that I hold holy.”

“That is truly astonishing,” said the duke. “I hereby admit you into my service.” The boy thanked him profusely.

“But I must ask one favor in return,” the duke continued. “You must tell me how you came to be such an outstanding shot.”

“Well,” said the boy, “first I fire the arrow at the tree…
….and then I paint the target around it.”