The Maritime Advocate–Issue 797

Posted:

1. Useful advice for potential experts
2. Force majeure
3. Flag state performance
4. Welfare app
5. Global tax rules
6. Grasping realities
7. Ammonia bunkering survey
8. Deceptive practices
9. Top woman in shipping
10. This year’s market
11. Lithium risks
12. Port protests
13. Giulia I report
14. Surveys and inspections
15. New OCIMF chairman

Notices & Miscellany

Readers’ responses to our articles are very welcome and, where suitable, will be reproduced:
Write to: contactus@themaritimeadvocate.com

 


1. Useful advice for potential experts

By Michael Grey

If you consider the enormous scope for dispute in any marine “adventure”, actually sorting out these problems is almost an industry in its own right. An argument about charter party terms, the tortured chronology surrounding a casualty, disputes about employment law and its terms and conditions, expensive entitlements after a massive salvage operation or a ship or equipment that failed to do what its manufacturer promised, might be thought of as just some   of the areas that demand both legal judgement and technical expertise to reconcile.

Enter the expert witness, which is a possible alternative career option for expert seafarers, who might be looking for a new challenge, which is why the Nautical Institute has published Guidelines for the Maritime Expert Witness; advertised as “essential reading for anyone in the dispute resolution process”. It is also a very sensible and practical guide to exactly what an expert witness does, what expertise or qualifications might be needed for someone aspiring to enter the field and is a compendium of expertise in its own right, contributed by a group of people who are thoroughly familiar with the business. They include former seafarers who have successfully made the transition, along with practising solicitors, barristers, arbitrators, mediators and a former judge.

The expert witness, in short, assists a court in deciding the technical merits of a case in dispute. The reader quickly learns that the overriding duty of the expert witness is to the court and not to anyone who might have appointed them. And while some expert witnesses might suggest that they got into the field almost by accident, there is no doubt that there is great value in training.

I’m afraid that I learned this the hard way, having been asked to provide some expertise by a solicitor friend. It was an area in which I was familiar and I foolishly agreed, before ascertaining what being an expert witness actually meant, and the importance of what I was providing in written evidence. Too late, I asked another friend, who had long experience in the field for some helpful advice and then spent sleepless days and nights re-writing my opinions, with recurrent nightmares involving my public evisceration by learned counsel at the subsequent hearing. Fortunately, in this case, and a handful of others in which I have been involved, the case was settled without the appearance of this apprehensive witness.

“Experts can win or lose a case” is a phrase that leaps out of the text as is the opinion that we are dealing here in English Law with adversarial proceedings, resembling “two armies engaged in battle”. And while it is confidently asserted that “a well-prepared expert has nothing to fear from the most critical counsel or tribunal”, it is also emphasised, by more than one of the authors, that giving evidence can be “a daunting process”. Experts who enjoy the sound of their own voices are also enjoined to curb their enthusiasms and confine their answers to brief summation of facts, the court greatly appreciating “yes” or “no” responses. It is pointed out succinctly by Sir Nigel Teare in his contribution “A View from the Bench” that experts are not supposed to be advocates in their own right!

But this is a useful book that rather than deterring a new generation of experts, may positively encourage some into an interesting career, as it is clear that real expertise has tremendous value and that properly employed, is a vital element in the infrastructure which is such a selling point in maritime London and some of its challengers around the world.

After a foreword by Sir Julian Flaux and introduction by its technical editor John Noble, the chronology of events in a case is explained by David Pockett, along with the duties and obligations of the expert witness. The importance of training – which is available – is emphasised by Mark Solon, while a useful hypothetical case study, involving casualties and salvage issues, gives the reader food for thought. The role of the arbitrator and how an expert witness can progress into arbitration is covered by Keith Hart, while the relationship between maritime lawyers and the experts they employ forms an illuminating chapter.

What of the barristers? Their approach in these cases is explained by Sara Masters and Michael Collett, with a useful insight into the expert’s role in maritime arbitration by Charles Baker. Finally, prior to Sir Nigel Teare’s view from the Bench, Jonathan Lux introduces the perhaps less familiar role of the mediator, who can perhaps assist in resolving disputes without court proceedings. The NI has experience producing these useful publications, with its earlier volumes on the collection of maritime evidence, which offers essential advice to practising shipmasters.

Two items of advice from these Guidelines which have wider and rather current resonance suggest that the expert witness “takes a pride in” the evidence provided and is “honest and truthful”. Check out this useful volume which is available from the NI this month.

Michael Grey is former editor of Lloyd’s List.


2. Force majeure

Expecting the unexpected is the theme of a new force majeure clause recently introduced by BIMCO for including in charterparties and other contracts affecting the industry. Reed Smith’s Nick Austin and Laura Hyne take a look at the clause to assess what it says and how it will support the industry.

As they say in a recent Ship Law Log, the new clause aims to provide a comprehensive regime for parties to follow if certain circumstances arise, beyond their reasonable control, that prevent performance of a charterparty or other shipping contract. “Force majeure clauses in carriage contracts are traditionally quite rare, with English law preferring to treat the issue as one of risk allocation,” the law firm says. The writers say that BIMCO has set a high bar for reliance on the clause to prevent misuse and to ensure it only responds to a genuine inability to perform caused by extraneous events.

To read the full story see:
https://www.shiplawlog.com/2022/02/04/expecting-the-unexpected-bimco-releases-force-majeure-clause/


3. Flag state performance

The annual Shipping Industry Flag State Performance Table, from the International Chamber of Shipping, has identified reporting on seafarer wellbeing as a “casualty of the pandemic,” following its publication recently.

The table is intended to encourage shipowners to maintain a dialogue with their flag states, and help facilitate necessary improvements in the interests of safety, the environment and decent working conditions, among other issues.

This year’s table highlights a drop in levels of reporting on the status of national ILO labour standards, including the 2006 Maritime Labour Convention (MLC), underscoring the severe administrative pressures of the pandemic and the ongoing ‘crew change crisis’ on seafarers, governments and the industry alike. The table’s criterion assessing flag states’ reporting on ILO labour standards, including the MLC, revealed a six percentage point decrease in flag states successfully meeting their obligations.

The ILO Committee of Experts on the Application of Conventions and Recommendations, which compiled the report used by the ICS Table, noted that “there was a sharp decrease in the number of reports received by the deadline of 1 October this year in relation to previous years.” In total, of the 2,004 reports on labour standards requested by the ILO from governments in 2021, only 42.9% of these requests were granted. This is in comparison to a 70.7% rate of reporting received by the ILO the previous year.


4. Welfare app

International maritime charity Stella Maris is partnering with FrontM on their development of onship – a new crew collaboration and wellbeing platform and super-app.

As a result, seafarers and fishers across the world will be able to gain quick access to Stella Maris’s global chaplaincy directory, media content and faith resources.

Stella Maris is the largest ship-visiting network in the world with over 1,000 chaplains and volunteers in 330 ports across 60 countries. The team makes 70,000 ship visits in a normal year to vessels of all flags and nationalities to look after the wellbeing and welfare of seafarers and fishers – regardless of their race, creed or faith.

Now that Stella Maris is partnering with FrontM and joining the onship digital marketplace platform of free welfare services, seafarers and fishers will be able to quickly access its chaplains and devotional materials. They will also be able to use the app’s built-in voice, instant messaging, and video conferencing tools, as well as a growing suite of welfare and virtual assistant services.

onship is a free seafarer communications and welfare super-app designed to bring all seafarers, maritime organisations and welfare charities closer together under one digital roof. The app uses up to 30 % less data than some other apps, enabling seafarers to send and receive more messages and calls.
Kiran Venkatesh, chief executive of FrontM, described the collaboration as: “a breakthrough in the way devotional support and content is currently consumed and distributed to seafarers and the global maritime community. We are delighted to partner with Stella Maris to bring this devotional application and directory of chaplains to seafarers and fishers, everywhere.

“At FrontM we believe faith and communications are two basic human rights; technology plays a vital role in ensuring the under-connected can gain access to the welfare, communications, and faith support services they need, when they need them the most. The partnership with Stella Maris will help to expand onship’s welfare focus whilst ensuring our seafaring community will always have access to faith services and a friend in port via the Stella Maris network,” he said.


5. Global tax rules

OECD rules designed to implement a global minimum corporate tax rate for very large multinational groups have now been published and are expected to come into force around the world in 2023. Shipping income was expected to be outside of the rules, Watson Farley & Williams says in an online shipping newsletter.

The detailed rules do not provide a blanket “shipping industry exemption” but require that certain shipping income streams can fall outside of the rules if the strategic or commercial management of the vessel earning the income is carried on in the ship operator’s home jurisdiction.

This requirement for local substance is likely to benefit “onshore” tonnage tax regimes and create obstacles for “offshore” shipping centres which will need to be considered. So where are we now? The short answer, according to the story, is “not quite where we expected to be”.

Global plans to introduce a “minimum effective tax rate” for very large groups (known as the “GloBE” rules) have been agreed politically and now even exist in written form. The changes should be effective in 2023.

Shipping had expected a sector exemption. The draft rules reveal something really rather different. What was seen as a threat to the onshore tonnage tax regimes now appears to be an opportunity.

Find here an article by WFW London Tax Partner Richard Stephens.


6. Grasping realities

The recent proposal by MEP Peter Liese to update Amendment 9 of the EU emissions trading system (ETS) draft directive and support the ‘polluter pays’ principle is cautiously welcomed by INTERCARGO.

This recognition that often the shipping company is not the commercial entity controlling the ship operation, and thus is not responsible for the resulting GHG emissions, is long overdue. INTERCARGO chairman, Dimitrios Fafalios says: “Although we retain our reservations on the EU emissions trading system as a whole, we are pleased to see the EU take steps in the right direction, as regulators finally grasp some of the realities of our industry. Trading patterns within the dry bulk sector are diverse and dispersed. A significant share of the bulk carriers’ operation is administered by charterers, which not only take responsibility for purchasing the fuel, but also take operational decisions that directly affect the CO2 emissions of the ship, such as speed of transit. At the same time, whilst the proposal recognises the need to establish a contractual requirement between the shipowner and commercial operator to pass on the costs, it must be understood that this will be easier said than done.”

Despite this move, INTERCARGO is still firmly committed to supporting the role of the IMO as the global forum and regulator for driving the elimination of all CO2 emissions from shipping worldwide. The association does, however, support any initiative designed to ease this transition for ship operators, and as such supports Liese’s proposal for the establishment of an Ocean Fund to finance R&D into maritime decarbonisation and to fund R&D projects aimed at bridging the price gap between cleaner and conventional fuels.


7. Ammonia bunkering survey

DNV has been selected to lead an ammonia bunkering safety study by the Global Centre for Maritime Decarbonisation (GCMD) in Singapore. The pioneering study aims to define a robust set of safety and operational guidelines  that will establish the basis for ammonia bunkering trials at two local sites.

To that end, DNV will team up with Singapore’s leading infrastructure developer Surbana Jurong and the Singapore Maritime Academy. DNV’s work will comprise ammonia demand forecasting, bunkering site recommendations, the development of conceptual designs of bunkering modes like truck to ship or ship to ship, HAZID/HAZOP/QRA studies, as well as drafting of technical and operational guidelines.

While ammonia is said to be one of the most promising fuels to decarbonize shipping, DNV research shows that a number of safety gaps hold the potential to disrupt the speed and success of the transition. “The safe handling of ammonia is one such gap which urgently needs to be closed, given the threat it poses to seafarers and ships unless properly managed. We are therefore thrilled to partner with Surbana Jurong and the Singapore Maritime Academy on this pioneering initiative, which we hope will lay the foundations for robust ammonia bunkering safety guidelines with industry wide applicability”, said Knut Ørbeck-Nilssen, chief executive of DNV Maritime.

In response to the growing industry interest for ammonia fuelled and ammonia ready ship designs, DNV has undertaken many projects in the development of ammonia as a viable future marine fuel.
DNV’s “Fuel ready” notation was launched as an industry first in April 2021 by Höegh Autoliners in their new series of car carriers and for shipowners looking to move towards a full zero-carbon fuel option with their next newbuilding, DNV’s new “Gas fuelled ammonia” rules provide a practical path. Further adding to this work, DNV has awarded several Approvals in Principle for ammonia fuelled ship designs, while also cooperating with engine maker MAN Energy Solutions on the safe development of a 2-stroke ammonia engine intended to be market-ready in 2024.

According to its recent Maritime Forecast to 2050, DNV expects there will be demonstration projects for onboard use of ammonia by 2025, paving the way for zero-carbon ships ready for commercial use by 2030. While the future fuel mix will be broad, DNV predicts that both ammonia and bio-based methanol are the most promising carbon-neutral fuels towards 2050.


8. Deceptive practices

The International Group Clubs have recently issued a common circular highlighting several deceptive practices that some parties deploy when they engage in sanctions breaking activities. The circular provides information on the manipulation of Automatic Identification Signal (AIS) signals and the perils of accepting false cargo documentation, which is particularly prevalent in the tanker trade and ship-to-ship (STS) operations.

A copy of the circular can be downloaded here: Sanctions Recent Deceptive Practices


9. Top woman in shipping

All About Shipping is holding its 3rd annual Competition for the Top Woman in Shipping details of which are contained in the article below.

https://allaboutshipping.co.uk/2022/02/01/vital-statistics-of-results-of-the-allaboutshipping-100-top-women-in-shipping-for-2020/

Please send your vote to infox2mml@yahoo.com   Only one vote for one woman.


10. This year’s market

Peter Sand of Xeneta has been giving the company’s views on the market saying that Those shippers hoping for relief in spot freight rates, as traditionally occurs around the New Year, have been left disappointed on the major trades out of the Far East. Another year of COVID impacted Lunar New Year’s celebrations, and a backlog of boxes waiting for exports in the Far East mean little respite for the hard-pressed market. See https://www.xeneta.com/blog/weekly-rate-update-week-06-2022

Of the three major trades out of the Far East, only rates to North Europe have fallen slightly since 15 January, down USD 62 per FEU, a minimal decrease when considering a freight rate of USD 14 736 per FEU on 7 February.  On the other hand, rates for containers going into the US have increased since the middle of January, up to USD 382 per FEU going to the West Coast and USD 603 for the East Coast, as the latter continues to prove an attractive alternative to shippers looking to avoid the West Coast congestion.

The flat or higher freight rates around Chinese New Year are just another illustration of how different this year is compared to previous ones. Over the past years, there are only very few examples of freight rates not having fallen in the week after Chinese New Year compared to the middle of January, the blog says.

Instead, as the pre-Chinese New Year rush to get cargoes out of the region before it shuts down gives way to the celebrations, lower exports lead to lower freight rates and increased blank sailings.

This year, any respite from lower manufacturing activity is quickly filled by the backlog in exports already prepared and waiting to be exported either at the warehouse or already in the terminal, with added complications such as sudden port closures thanks to COVID cases complicating matters further.

One bright point for shippers is a fall in premium surcharges on some trades, particularly to the USWC from the Far East and North Europe. Premiums on the Far East to the USEC have held up more, as this coast continues to prove increasingly popular over the West Coast. Shippers who had pinned their hopes on lower spot freight rates after Chinese New Year will have to wait even longer.

The high market will continue for many months to come, with freight rates unlikely to fall anywhere near as much as would be needed for them to return to ‘normal’ pre-pandemic levels. Instead, they may ease slowly as carriers continue to deal with congestion and supply chain problems, potentially rising again as we enter the next traditional peak season, in July-Sept.

For more information watch   Xeneta Newsroom, every Thursday at 2pm CET Xeneta Newsroom, Thursday 10 Feb at 2pm CET


11. Lithium risks
While certain risks relating to the characteristics of lithium have been well-known for decades, the recent exponential (and persistent) growth in its use together with scientific advances have resulted in it presenting an ‘emerging risk’ to the transport and logistics industry. The latest edition of TT Talk provides some opening comments on a topic that is causing concern in terms of safety and emergency response, and consequent regulatory strain.

TT Club’s analysis of claims points to an increase in impact related incidents, with corrosion of tank containers’ inner surface and contamination caused by cargoes previously carried as significant other causes of loss. For details on both topics see the TT Club website https://www.ttclub.com.

 


12.  Port protests

European ports including Rotterdam have been coming in for criticism on the environmental front with Transport & Environment saying the port of Rotterdam is associated with almost 14 million tonnes of CO2 each year,  in a new study ranking ports’ carbon emissions. Antwerp and Hamburg come in second and third, while three of the top 10 polluting ports are in Spain, according to the report. The study, carried out by T&E, assesses carbon emissions from ships departing and entering ports from across the supply chain, as well emissions from activities at port like loading, unloading and refuelling. T&E says the shipping industry is a fast-growing emitter and Europe’s ports have been reluctant to back mandates for clean fuels.

In response Allard Castelein, chief executive of the port authority said: “We realise that the port of Rotterdam, being the largest port, has the highest emissions of European seaports. In 2018, we presented our own research into the level of emissions from the logistics chains via Rotterdam and how they can be reduced to ‘0’. Since then, we have been focusing, together with other parties, on targeted projects to reduce emissions. We are aware that we can and must make an impact in the port of Rotterdam and be able to make a substantial contribution to the established climate targets. It goes without saying that we feel responsible and assume responsibility.”

Here you can read a more detailed explanation, and about how the portof Rotterdam is working towards achieving the 2050 climate
targets.


13. Giulia I report

Our thanks to Miller’s Maritime Newsletter for news that the Maltese authorities have released its investigation report into the fatality and serious injuries sustained on board the Maltese-registered bulk carrier Giulia I which occurred on January 30, 2021. For details of the report see https://mtip.gov.mt.

 


14. Surveys and inspections

A pioneering joint development project (JDP) between ABS and Nakilat – Keppel Offshore & Marine Ltd. (N-KOM) will examine how techniques developed by ABS for its industry-leading programme of remote survey of vessels in service can be applied to surveys and inspections in the shipyard.

Remote inspection technologies will be applied to six Class surveys for this trial, to test how they can then be used to verify the required survey or inspection by ABS Surveyors to optimize scheduling and minimize downtime for the shipyard, vessels and ABS.

The JDP will examine how remote techniques can be carried out on rudder clearance inspection; stern tube wear inspection; rudder plug opening inspection; boiler safety valve testing; fit-up inspections prior to welding and final weld visual inspection of non-critical items.


15. New OCIMF chairman

The Oil Companies International Marine Forum (OCIMF) has appointed Shell’s Head of Shipping & Maritime in Asia Pacific and the Middle East, Nick Potter, as the new OCIMF chairman. After four years of service, Chevron Shipping Company president Mark Ross completed his term as OCIMF chairman. He commented, “It has been an honour to serve as OCIMF chairman for the past four years, and I believe that Nick Potter will be an excellent fit for the role.”

Nick Potter said, “I would like to thank Mark, personally and on behalf of the organisation, for the significant contributions he has made over the past four years as chairman, particularly the implementation of the new strategy and OCIMF’s ongoing work throughout the pandemic.”

“I am honoured to be working with OCIMF members to advance our priorities,” added Nick. “First and foremost, we must continue to focus on the safety and care of the people that work in this important industry whilst also ensuring no harm to the environment. The roll out of SIRE 2.0, further strengthening links across industry and the ongoing work to embed the strategy will be the focus of 2022.”

Notices & Miscellany

Helping hand
Ince Group Charitable Foundation is lending its support to maritime charity Sailors’ Society’s new Sea Change Fund, pledging £30,000 to helping seafarers in crisis.   The Foundation is donating £10,000 per year for the next three years towards the grant fund, with additional support from Ince global senior partner, Julian Clark, who has committed a personal annual donation of £5,000.

Sara Baade, Sailors’ Society’s chief executive, said: “Since the pandemic hit, we’ve seen requests for support increase, with sickness, unemployment and bereavement leaving rising numbers of seafaring families, who are often from deprived areas of the world to start with, struggling to put food on the table.

“Our new Sea Change Fund will help provide urgent financial assistance for those in desperate need, whether to pay for food, medical bills, schooling or even a roof over their heads. We’re extremely grateful to the Ince Group Charitable Foundation for being our founder funders and to Julian Clark for making this long term, personal commitment. We would be delighted to talk with any other companies or individuals who would also like to help our
keyworkers of the sea by supporting the Sea Change Fund.”

Sailors’ Society launched the fund in response to the huge increase in calls for the charity’s help, with demand for grants increasing by 850 per cent in the first 18 months of the pandemic. Grants are made via application and can assist with a range of pressing welfare needs, including help with vital bills like food and medicine, education costs, or in emergency situations such as natural disasters or cases of abandonment.

To find out more and to make a donation towards Sailors’ Society’s Sea Change Fund go to: https://sailors-society.org/sea-change-appeal

North appointments
North P&I Club has announced the appointments of Feirin McConville and Louise Ferrari as directors within its FD&D department with effect from 1 February 2022.

Maritime Safety Guide
Jacob Bryant has brought to our attention a new maritime safety guide from Lanier law firm. The shipping industry is so important that the entire world relies on its success, however, many overlook the workers who make international trade possible. As you know, maritime workers face many safety and security risks. For this reason we wanted to make a maritime safety guide to shed some light on these issues and also to help educate others. Check it out at lanierlawfirm.com/maritime-safety-guide/

Watson Farley & Williams
WFW has announced that assets and structured finance expert Jonathan Silver has joined the firm as a partner in Hong Kong. Jonathan joins WFW from Maples Group and was previously a partner at Norton Rose Fulbright Hong Kong

Please notify the Editor of your appointments, promotions, new office openings and other important happenings: contactus@themaritimeadvocate.com


And finally,

(With thanks to Paul Dixon)

You Know It’s Time To Diet When….

  • You dance and it makes the band skip.
  • You are diagnosed with the flesh eating virus, and the
    doctor gives you 22 more years to live.
  • You put mayonnaise on an aspirin.
  • You go to the zoo and the elephants throw you peanuts.
  • Your driver’s licence says, “Picture continued on other
    side.”
  • You ran away and they had to use all four sides of the milk
    carton for your picture.
  • You learn you were born with a silver shovel in your mouth.
  • Your blood type is Ragu.
  • You need an appointment to attend an ‘open house’.

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