1. Tsakos victory in “safe berth” US Supreme Court ruling
2. Dutch court rules Royal Caribbean wrongly fined
3. Kaami grounding off Skye
4. Tanker grounding linked to ECDIS
5. BNWAS alarm didn’t prevent accident
6. Lay-up options until normality returns
7. Ship finance and COVID-19
8. Piracy and armed robbery off West Africa – best management practice
9. Venezuelan patrol boat sinks itself after ramming cruise ship (You couldn’t make it up!)
10. People and Places
Things people actually said in court (You couldn’t make these up either!)
Finally, a fitting quotation from Skuld’s Ståle Hansen
1. U.S. Supreme Court holds that Standard Unqualified Safe Berth clause unambiguously provides a warranty of safety
The United States Supreme Court has issued a decision affirming the holding by the Third Circuit Court of Appeals and following the ‘long-line’ of decisions from the Second Circuit Court of Appeals which interpret the language of unqualified safe berth charterparty clauses as embodying an express warranty of safety by the charterer.
The M/T Athos I was en route from Venezuela to New Jersey when an abandoned ship anchor punctured the vessel’s hull in the Delaware River causing approximately 264,000 gallons of crude oil to spill into the river. The vessel was owned by Frescati Shipping Co. and was on sub-charter to Citgo Asphalt Refining Co. (CARCO), who had selected the berth in question. Clean-up costs totalled in excess of US$133 million.
2. Dutch Court rules Royal Caribbean wrongly fined writes Janny Kok
The Dutch court in The Hague has ruled that cruise line, Royal Caribbean, was wrongly fined €992,000 for assumed violation of rules and regulations related to working conditions on board. In 2014 the Inspectorate for Working Conditions levied the fine on the basis of the Labour Act for Aliens.
At the time the inspectors of the department of the Dutch Ministry of Social Affairs and Employment visited the Royal Caribbean owned Oasis of the Seas while she was docked at Keppel Verolme in Botlek Rotterdam (now Damen), only to find that foreign workers on board the cruise ship did not have the proper Dutch work permits. However, it appears that the foreign workers within the so-called Royal Caribbean riding crew were legally allowed to refurbish the inside of the cruise ship without having the proper Dutch work permit.
3. Roose & Partners on the grounding of the 4,293 Kaami
The general cargo vessel ran aground on a reef known as Eugenie Rock close to Scotland’s Isle of Skye. The vessel remains hard aground. Latest reports state that “most of the fuel and contaminated seawater” has been removed from the vessel’s tanks.
The local Portree lifeboat was launched within half an hour and the emergency towing vessel Ievoli Black was deployed. The NLB’s buoy-laying vessel Pharos was diverted to the site. The Stornoway Coastguard rescue helicopter was despatched and airlifted the eight crew off the vessel despite challenging and stormy weather conditions.
4. Tanker Grounding Linked to ECDIS
Germany’s Federal Bureau of Maritime Casualty Investigation (BSU) has published its investigation report on the grounding of the LNG tanker Pazifik off Indonesia in 2018, reports the Maritime Executive.
The tanker grounded on a shallow between the islands of Komodo and Banda while carrying a cargo of 18,000 tons of ammonia. No cargo escaped, as only the fore peak and ballast water tanks were damaged. The vessel was refloated and headed to a shipyard in Singapore under her own power. Approximately 50 meters of her double bottom was replaced during the repair and the rudder, which was damaged in a minor collision with the tug when the ship was refloated, was also repaired.
The investigators found the ship to be in good condition and sufficiently manned with a qualified crew. Work hours and rest periods were adhered to, and no human error was detected. Instead, the accident was ascribed to the ECDIS (Electronic Chart Display and Information System) which was not yet fully developed and approved as the primary aid to navigation. The BSU compared the vessel’s electronic charts with other sources and found significant differences regarding the display of hazards at the site of the accident.
5. BNWAS Alarm Didn’t Prevent Accident
The U.S. National Transportation Safety Board (NTSB) has released a Marine Accident Brief about an accident that occurred in March 2019, involving the towing vessel Dixie Vandal, noting that the BNWAS (Bridge Navigational Watch Alarm System) didn’t prevent the fatigued pilot from falling asleep. The Maritime Executive reports
At 0408 local time on March 15, 2019, the Dixie Vandal, pushing a partially loaded fuel barge upbound through the Houston Ship Channel, struck the towing vessel Trinity and one of its barges, which were moored and preparing to discharge cargo at the Kinder Morgan Pasadena Liquids Terminal in Pasadena, Texas.
The contact caused the Trinity and its tow to shift about 100 feet upriver, breaking the cargo hoses and mooring lines and damaging the facility. About a half-gallon of jet fuel discharged into the channel. No injuries were reported by the crew of five aboard the Dixie Vandal nor by the Trinity’s crew of four. Damage to the facility and barges amounted to $630,230.
The NTSB determined that the probable cause of the collision was the fatigued pilot falling asleep near the end of his 12-hour watch while manoeuvring in the Houston Ship Channel. Contributing to the pilot’s fatigue was the extended length of duty through the night and early morning hours and his use of an over-the-counter antihistamine.
6 Lay-up and re-activation revisited
Gard P&I has published a useful guide to key decisions that need to be taken when planning to lay up a vessel.
The COVID-19 pandemic has affected the maritime industry in previously unthinkable ways. Ports around the world are denying entry to certain vessels, travel restrictions have postponed crew changes, ships are taken out of service and crew have been laid off. These operational problems are forcing some owners and operators to consider placing vessels in lay-up.
Once a vessel owner has decided to lay up a vessel, several important decisions must be made. The most important decision is the duration of the lay-up, which will be critical for the type of lay-up selected. If the owner expects to be able to re-employ the vessel in the next twelve months, a hot (or warm) lay-up will be appropriate, with minimum crew on board to keep the machinery and equipment in operational running condition. If the lay-up is planned to last longer than a year, the owner will probably choose to go for a cold lay-up, which will reduce the daily running costs to the actual lay-up fee and watchkeeping.
Another important decision is where to lay up the vessel. Owners should obtain approval from local authorities, including information on worst-case weather conditions.
7 Ship finance and COVID-19: the devil’s in the detail says Watson, Farley & Williams.
As a result of the spread of COVID-19, the shipping industry is one of many contending with a global crisis. We have received numerous queries from concerned lenders and borrowers as to the potential effect of the crisis on their English law loan facilities and the following is intended to address at least some of these concerns.
However, each facility agreement is different and, as with any contract, the devil is in the detail, so a review of the relevant agreements is vital before any action should be taken. So far there has not been any UK government intervention which directly affects the issues touched upon in this briefing, but government policy is constantly evolving in response to the crisis so this might yet come.
“Ship values are volatile at the best of times and this is one area where the effect of COVID-19 is likely to have a more immediate and measurable impact.”
WHAT PROVISIONS COMMONLY SEEN IN A SHIP FINANCING FACILITY AGREEMENT MIGHT BE TRIGGERED BY THE CURRENT GLOBAL PROBLEMS?
8 West Africa piracy: Best Management Practices
The International Group, in partnership with other shipping industry associations, have launched new best management practices to deter piracy and enhance maritime security off the coast of West Africa including the Gulf of Guinea.
The recently published Best Management Practices (BMP) West Africa is a new addition to the established BMP series and provides enhanced threat mitigation guidance on counter-piracy/armed robbery at sea. Building upon existing guidance and drawing upon the experience gained by ships operating in West Africa, the new BMP aims to help ship operators and masters plan their voyages and to detect, deter, delay and report attacks while operating in the Gulf of Guinea region.
The BMP West Africa is free to download from: www.maritimeglobalsecurity.org/geography/gulf-of-guinea/
9 Venezuelan patrol boat sinks itself – you couldn’t make it up
In what sounds like an April Fool’s joke, a Venezuelan Navy offshore patrol vessel sank after ramming a cruise liner in the Caribbean. The RCGS Resolute, which had no passengers on board and has a ice-strengthened hull, suffered only minimal damage in what the operating company, Columbia Cruise Services, has called an “act of aggression … in international waters.”
The company, which is headquartered in Germany, said the RCGS RESOLUTE was drifting just over 13 miles off the coast of Isla La Tortuga, a Venezuelan island situated some 60 miles off the country’s northern coast, when ANBV Naiguatá, approached ordering the cruise ship to follow it to Puerto Moreno on Isla De Margarita, accusing it of violating the country’s territorial waters. The Resolute had been drifting while conducting routine engine maintenance when, shortly after midnight, she was approached by an armed Venezuelan navy vessel, which via radio questioned the polar expedition vessel’s intentions.
The owners reported: “While the Master was in contact with the head office [in Germany], gun shots were fired and, shortly thereafter, the navy vessel approached the starboard side at speed with an angle of 135° and purposely collided with the Resolute. The navy vessel continued to ram the starboard bow in an apparent attempt to turn the ship’s head towards Venezuelan territorial waters.” The steel-hulled patrol ship suffered severe damage from repeatedly ramming the cruise ship, began to take on water and ultimately sank. German-based Columbia Cruise Services says their vessel remained in the area until it was clear her services were not required to help in the rescue of the 44 crew members. She then continued, as planned, to Willemstad, Curaçao.
Venezuela’s President Maduro accused the ship of acting aggressively and said she was possibly carrying “mercenaries” seeking his ouster. Regardless of the exact circumstances, the Venezuelan Navy’s attempt to seize the cruise ship certainly backfired. The Resolute is safely in port and Venezuela has lost one third of its GUAICAMACUTO class patrol boat fleet.
10. People and Places
Claire Womersley has been appointed a Partner at HFW, London. A Master Mariner, Claire’s practice encompasses all aspects of crisis response and ensuing “wet” litigation arising from marine casualties, particularly those involving mass fatalities and natural disasters.
Campbell Johnston Clark has appointed two new London-based Directors: Duncan Ealand and James Clayton. Duncan has a background in both wet and dry litigation across a broad range of P&I and FD&D work while James specialises in transactional, corporate and ship finance law.
Edward Liu of Hill Dickinson Hong Kong has been appointed as a member of the Advisory Committee on Promotion of Arbitration. The appointment was made by Teresa Cheng, secretary for justice at the Department of Justice of Hong Kong Special Administrative Region (HKSAR).
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Things people actually said in court – you couldn’t make this up either.
These are from a book called Disorder in the Court, and are things people actually said in court, word for word, taken down and now published by court reporters – who had the torment of staying calm while these exchanges were actually taking place.
Q: What is your date of birth?
A: July 15th.
Q: What year?
A: Every year.
Q: What gear were you in at the moment of the impact?
A: Gucci sweats and Reeboks.
Q: This myasthenia gravis, does it affect your memory at all?
Q: And in what ways does it affect your memory?
A: I forget.
Q: You forget. Can you give us an example of something that you’ve forgotten?
Q: How old is your son, the one living with you?
A: Thirty-eight or thirty-five, I can’t remember which.
Q: How long has he lived with you?
A: Forty-five years.
Q: What was the first thing your husband said to you when he woke up that morning?
A: He said, “Where am I, Cathy?”
Q: And why did that upset you?
A: My name is Susan.
Q: Do you know if your daughter has ever been involved in voodoo or the occult?
A: We both do.
A: We do.
Q: You do?
A: Yes, voodoo.
Q: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?
Q: The youngest son, the twenty-year-old, how old is he?
Q: Were you present when your picture was taken?
Q: She had three children, right?
Q: How many were boys?
Q: Were there any girls?
Q: How was your first marriage terminated?
A: By death.
Q: And by whose death was it terminated?
Q: Can you describe the individual?
A: He was about medium height and had a beard.
Q: Was this a male, or a female?
Q: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
A: No, this is how I dress when I go to work.
Q: Doctor, how many autopsies have you performed on dead people?
A: All my autopsies are performed on dead people.
Q: All your responses must be oral, OK? What school did you go to?
Q: Do you recall the time that you examined the body?
A: The autopsy started around 8:30 p.m.
Q: And Mr. Dennington was dead at the time?
A: No, he was sitting on the table wondering why I was doing an autopsy.
Q: Doctor, before you performed the autopsy, did you check for a pulse?
Q: Did you check for blood pressure?
Q: Did you check for breathing?
Q: So, then it is possible that the patient was alive when you began the autopsy?
Q: How can you be so sure, Doctor?
A: Because his brain was sitting on my desk in a jar.
Q: But could the patient have still been alive, nevertheless?
A: Yes, it is possible that he could have been alive and practicing law somewhere
And thanks to Ståle Hansen, Skuld’s president and CEO for these encouraging words:
“But in the end, it’s only a passing thing, this shadow.
Even darkness must pass.
A new day will come.
And when the sun
Shines, it will shine out the clearer.”
J.R.R Tolkien – Lord of the Rings
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