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15TH ANNUAL COLLOQUIUM OF THE IISTL, SWANSEA UNI

SHIP OPERATIONS: NEW RISKS, LIABILITIES AND TECHNOLOGIES IN THE MARITIME SECTOR

12-13 SEPTEMBER 2019

Sponsored By

Ship Operators are facing new challenges every day, with innovative tech in the maritime sector exposing them constantly to unchartered liabilities, like cyber risk and adequate data protection, all while regulators continue to impose more exacting regimes. This has led to operators seeking protection through attempting to shift risk to charters or other parties. 

The 15th IISTL Colloquium will look at the issues in detail and examine the liabilities which might arise out of them, including extended reference to the wording of common insurance policies, charterparty forms and other contracts. 

We envisage four sessions on the first day and two on the second, finishing at about 1.30 pm on the latter. The format will be as in previous Colloquiums: that is, each session will be regulated by a chairman with discussion led by two or three speakers, followed by free and open debate.

Delegates will be provided with a pack containing papers and source materials. The proceedings will, at a later date, be published in full by Informa (to whom we are enormously grateful for sponsorship and unstinting support).

The topics discussed will be very varied, but we envisage including:

  • Sanctions and money laundering
  • Shipping and data protection
  • The EU Pollution Directive
  • The Sulphur Directive
  • Insolvency-related issues
  • The liability of ancillary players such as shipbrokers and managers
  • Cyber risks and tort liabilities
  • Cyber risks insurance
  • BIMCO clauses dealing with new risks
  • GENCON and ship operations
  • Indemnity issues in charterparties
  • Bunkers – who pays when things go wrong?
  • Ship management contracts
  • Ship arrest and legal/practical difficulties

Speakers and Chairpersons

· Professor Simon Baughen, Institute of International Shipping and Trade Law, Swansea University

· Professor Olivier Cachard, University of Lorraine, France

· Sir Bernard Eder (TBC), Arbitrator, 4 Essex Court, International Judge of the Singapore International Commercial Court, Acting Judge of the Eastern Caribbean Supreme Court

· Grant Hunter, Chief Officer for Legal and Contractual Affairs, BIMCO

· Daniel Jones, Clyde & Co, London

· Associate Professor George Leloudas, Institute of International Shipping and Trade Law, Swansea University

· Daniel Martin, Partner, HFW, London

· Dr Tabetha Kurtz-Shefford, Institute of International Shipping and Trade Law, Swansea University

· Professor Henrik Ringbom, Scandinavian Institute of Maritime Law, Oslo University

· Simon Rainey QC, Quadrant Chambers, London

· Associate Professor Frank Stevens, Erasmus University Law School, The Netherlands

· Professor Barış Soyer, Director, Institute of International Shipping and Trade Law, Swansea University

· Professor Andrew Tettenborn, Institute of International Shipping and Trade Law, Swansea University

· John Weale, Fednav, Montreal

Registration, Fees & Accommodation

To register (and book university accommodation) please click the link here: Eventbrite  Early booking is recommended as placed are limited.

Fee, inc. materials, dinner & accommodation for 2 nights (9 & 10 Sept): £440

Fee, inc. materials and dinner: £350

Fee (for postgrads & Swansea alumni) inc. materials, dinner & accommodation for 2 nights (9 & 10 Sept): £265

Fee (for postgrads & Swansea alumni) inc. materials & dinner: £175

Should you not like to take advantage of our on-campus accommodation, please feel free to make your own arrangements. There are several good hotels in town, notably the Dragon Hotel, tel: 01792 657100, and the Marriott Hotel, tel: 01792 642020. Please note, however, that the organisers cannot take responsibility for booking accommodation off campus.

The closing date for registration is 03 September 2019

Supreme Court Clarifies the Law on CTL Calculation in Marine Insurance

The Swedish Club v Connect Shipping (The MV Renos) [2019] UKSC 29

Under s. 60(2)(ii) of the Marine Insurance Act (MIA) 1906, there is constructive total loss (CTL) when the insured ship is damaged by a peril it’s insured against and the cost of repairing said damage would exceed the insured value of the ship when repaired. In estimating the cost of repairs for the purposes of this provision, it has been held by Knowles, J, [2016] EWHC 1580 (Comm) that i) the costs incurred prior to the date of notice of abandonment and ii) the costs of salvage operations performed before the notice of abandonment, including sums payable under the SCOPIC clause, should be taken into account.

The underwriters’ appeal to the Court of Appeal on these points was rejected unanimously [2018] EWCA Civ 230 (per Hamblen, LJ, with whom Simon, LJ and Sir Geoffrey Vos C agreed). In a previous case note, the author was critical of the Court of Appeal’s reasoning, especially with regard to the second point, i.e. taking into account SCOPIC expenses incurred before the notice of abandonment in estimating the cost of repairs.

The Supreme Court (composed of Lords Sumption, Reed, Hodge, Kitchin and Lloyd Jones) allowed the appeal on this ground holding that SCOPIC charges cannot be considered as part of the “cost of repairing the damage” under s. 60(2)(ii) of the MIA 1906 (or the “cost of recovery and/or repair” under clause 19.2 of the Institute Hull Clauses). The Supreme Court stressed that the primary purpose of SCOPIC expenditure is to protect owners’ potential liability for environmental pollution not to enable the ship to be repaired. Hence, such expenditure is not connected with the damage to the hull or its hypothetical reinstatement and the mere fact that a prudent uninsured owner would have contracted with the same contractors for both prevention of environmental pollution and protection of the property does not make them indivisible. The author believes that the Supreme Court’s decision on this issue is intuitive and makes sense.   

On the issue of whether expenses incurred prior to the notice of abandonment should count towards the calculation of a CTL under s. 60(2)(ii) of the MIA 1906, the Supreme Court rejecting the submission of the underwriters, affirmed the findings of the lower courts. The Supreme Court approached the matter with reference to basic principles of insurance law indicating that several older judgements on the matter (in particular Hall v. Hayman (1912) 17 Comm Cases 81 and The Medina Princess [1965] 1 Lloyd’s Rep 361) lacked reasoning and legal argument. Taking into account the objective character of the factual enquiry of whether a vessel is a CTL and the fact that in marine insurance context the loss is suffered at the time of the casualty, the Supreme Court was adamant that the reference to “damage” in s. 60(2)(ii) was in fact reference to the entire damage arising from the casualty from the moment that it happened. Therefore, it cannot make any difference when costs are incurred, i.e. pre or post notice of abandonment. On that premise, the Supreme Court evaluated whether this principle might be affected by the legal requirement for a notice of abandonment but reached the conclusion that it is not.                   

At the commencement of litigation, it was agreed by the parties that, to be declared a CTL under s. 60 of the MIA 1906, the repair costs needed to be in excess of US$ 8 million. The matter in the light of the Supreme Court judgment will be remitted to the trial judge to determine whether the vessel had been a CTL and what financial consequences would follow from that. 

Examples of recent IP Wales impact on the Welsh Innovation Economy

Reading the IP Wales SME Guide to IP Cybersecurity, underpinned by Beale A., Ratcliffe S., Tettenborn A., The Protection of Data in our Digital Age [2017] Journal of Business Law, Issue 6, 2017 p.461-472, has resulted in each of the following businesses seeking to adopt new methodologies and processes to protect their online commercial activities:-

Benchmark Skincare Limited (Managing Director: Peter Friswell) “By seeking to be certified for Cyber Essentials will enable our business to become “GDPR compliant, protect itself from phising emails, protect itself from external cyberattacks, creating an effective and robust backup data storage process.”

Boyns Information Systems (Director: Robert Boyns) “Reading the IP Wales SME Guide to IP Cybersecurity helped increase our awareness on the importance of cybersecurity in the field intellectual property. As a result, we have adopted new methodologies and processes to allow Boyns Information Systems to grow our cybersecurity infrastructure, whilst protecting us from online harm. Being awarded the IP Wales grant assisted our bid to achieve the Cyber Essentials Plus accreditation, preparing us more fully to mitigate any cyberattack.”

Cadmhas Limited (Director of Services: Elfed Williams) “We are a registered charity and company limited by guarantee and as the Director of Services of CADMHAS I have a duty of care and responsibility to both my Directors, Staff and Service Users that we mitigate the threat of a Cyber Attack. I have spoken to our suppliers Boyns Information Systems Ltd., and they have assured me that by following the 5 pillars of the Cyber Essentials Scheme this will help towards my goal of having a system secured to government guidelines. By having the certification and adhering to it, I will be able to focus on the development of our day to day operations and plan towards the future with a good IT foundation to move forward.”

Castell Howell Foods Limited (Head of IT: Paul Rankin) “Having read the IP Wales SME Guide to Cybersecurity, we decided to increase our protection to Cyber Essentials Plus to reduce the risk of being infiltrated or having data breaches in line with GDPR. With an ever-increasing rise in cybercrime it makes sense to do as much as we can to prevent attacks on our company. I can honestly say that I feel much more confident in our security now and would highly recommend others to carry out this process. Thanks again for considering us for the funding, much appreciated.”

CCTV Wales Limited (Compliance Supervisor: Steve Gallagher) “…to ensure that all customer data and company information is properly protected allowing the company to enhance their service and support Cybersecurity in the area.”

David W.Harris & Co. Solicitors (Practice Manager: Neil Startup) “We are now in the process of undertaking risk analysis and management relating to cyber security. We have updated our internal governance to include more detail on IT security, such as: maintenance of an asset register to include the addition or removal of any assets, Updated IT security and systems policies, Implementation of remote access control, Implementation of a protocol to manage remote devices with access to exchange accounts, Implementation of server password policies, Implementation of automatic screen lock down through user inactivity, Introduction of periodic penetration testing, Password Protection introduced for all electronic documents.”

Daydream Education (Operations Director: Wesley Paetel) “Reviewing and updating all internal cybersecurity awareness and reporting processes, reviewing all third-party anti-virus and malware applications, ensuring system security is reviewed regularly, and reviewing our disaster recovery processes as well as educating staff members about the dangers of cybersecurity and how to become more aware of threats.”

Guardian Property Services Limited (Business Development: Lauren Thomas) “It’s apparent that cybersecurity should be a priority of any business, irrespective of size. Having the right level of knowledge and preparation is vital to minimise and control damage, as well as an understanding of the consequences of a breach and how to recover.”

Health & Her Limited (Marketing Director: Kate Bache) “Collecting, protecting and processing sensitive customer data to improve our understanding in the therapeutic areas of female health, including menopause and menstrual wellbeing.”

Masons Moving Group Limited (Financial Controller: Robert Power) “Protecting the business from online harm is of paramount importance and the Guide has enabled us to implement new security and knowledge to ensure cyber threats are eliminated. These new systems will be monitored frequently and updated when necessary.”

Masons Self Storage Limited (Marketing Manager: James Mason) “The Guide has been extremely helpful in helping our business truly understand the impact cyberattacks can have on a small business. We have ensured brand new office procedures have been put in place with efficient regimes of how we hold and process all types of data.”

PLF Wealth Management Limited (Director: Jeremy Freeman) “Your Guide has made me appreciate the myriad of potential cybersecurity attacks that my small firm has to be aware of, and the steps we as a company need to take to protect our data and network from becoming a victim of these attacks. As a small business our in the financial services arena, we control large amounts of personal data and sensitive data which could make us a viable target to such attacks.”

The Business Centre (Cardiff) Limited (Centre Manager: Emma Mason) “Reading the Guide has given me great knowledge on how to protect our business from online harm. Using this knowledge has enabled us to put new office processes and procedures in place to ensure that we are protected. We have looked closely at how we hold and process our data.”

IP Wales Online Initiative (2017-2020)

IP crime is traditionally viewed as counterfeiting (false branding) and piracy (illegal copying) but cybercriminals (& some state players) are increasingly coming to recognise the value of confidential data held by businesses, be it sensitive information about the business operation (trade secrets) or customer information such as passwords and credit card details (made even more topical with the arrival of the EU General Data Protection Regulation 2016).

These attacks on confidential data are happening globally with increasing rapidity and ever more complexity. Zero-day vulnerabilities (where hackers have discovered and exploit a software security breach before a fix is available) are increasing exponentially.

In response our award-winning business support initiative IP Wales has launched a new Online Initiative 2017-2020, the aim of which is to help small/medium sized enterprises (SMEs) to protect their IP from online threats.

SMEs are particularly vulnerable to cyberattack, with our research (commissioned by the Welsh Government) showing that many take little or no precautions against cyber threats, in the mistaken belief that they are too small to attract the cybercriminal’s attention, or that they don’t possess any data worth stealing. Examples of cyberattacks on SMEs have included:-

• IP ‘Theft’ (i.e. trade secrets), the loss of which seriously undermines a company’s attractiveness to both investors and prospective buyers of the business.

• Ransoming of Data, where the business is coerced into paying off hackers in order to retrieve or access stolen or encrypted data.

.• ‘Theft’ of Customer Data (including payment details) which exposes the business to lawsuits, regulatory fines for improper handling of personal data, and reputational damage.

Our website www.ipcybersecurity.co.uk is dedicated to helping SME Boards of Directors to better understand and better protect their business from this increasing threat of IP cybercrime. It also acts as a repository for our research into emerging trends in Cyber-Risk oversight, offering free Briefing Guides for the IP Service Community (IP active Solicitors and Patent Attorneys) on:-

Protecting Trade Secrets Using Employment Law

Cyber Defence

SMEs Outsourcing Cybersecurity Incident Response & Data Recovery Activities

Who is threatening SME Clients & Why?

SMEs Reporting IP Cybercrime

First Intergovernmental Standard on AI & Cyber Risk Management

In giving evidence to the Public Accounts Committee (PAC) on Cybersecurity in the UK Sir Mark Sedwill (Cabinet Secretary, Head of the UK Civil Service and UK National Security Advisor) asserted, “the law of the sea 200 years ago is not a bad parallel” for the “big international question” of cyberspace governance today (see Public Accounts Committee Oral evidence: Cyber Security in the UK, HC 1745 [1st April 2019] Q93).

In making this assertion Sir Mark may have had in mind articles such as Dr. Florian Egloff’s Cybersecurity and the Age of Privateering: A Historical Analogy in which the author asserted: 1. “Cyber actors are comparable to the actors of maritime warfare in the sixteenth and seventeenth centuries. 2. The militarisation of cyberspace resembles the situation in the sixteenth century, when states transitioned from a reliance on privateers to dependence on professional navies. 3. As with privateering, the use of non-state actors by states in cyberspace has produced unintended harmful consequences; the emergence of a regime against privateering provides potentially fruitful lessons for international cooperation and the management of these consequences.”

In our IP Wales Guide on Cyber Defence we note: “Since 2004, a UN Group of Governmental Experts (UN GEE) has sought to expedite international norms and regulations to create confidence and security-building measures between member states in cyberspace. In a first major breakthrough, the GGE in 2013 agreed that international law and the UN Charter is applicable to state activity in cyberspace. Two years later, a consensus report outlined four voluntary peace time norms for state conduct in cyberspace: states should not interfere with each other’s critical infrastructure, should not target each other’s emergency services, should assist other states in the forensics of cyberattacks, and states are responsible for operations originating from within their territory.

The latest 2016-17 round of deliberations ended in the stalling of the UN GGE process as its members could not agree on draft paragraph 34, which details how exactly certain international law applies to a states’ use of information and communications technology. While the U.S.A. pushed for detailing international humanitarian law, the right of self-defence, and the law of state responsibility (including the countermeasures applying to cyber operations), other participants, like China and Russia, contended it was premature.”

Indeed China has gone further and condemned the U.S.A. for trying to apply double standards to the issue, in light of public disclosures of spying by their own National Security Agency (NSA).

Sir Mark went on to reveal that because cyberspace governance is being only partly addressed through the UN, “we are looking at coalitions of the willing, such as the OECD and some other countries that have similar systems to ours, to try to approach this.”

Evidence of this strategy in operation can be seen at Ministerial Council Meeting of the Organisation for Economic Co-ordination and Development (OECD) on the 22nd May 2019 when 42 countries adopted five value-based principles on artificial intelligence (AI), including AI systems “must function in a robust, secure and safe way throughout their life cycles and potential risks should be continually assessed and managed.”

The recently created UK National Cyber Security Centre (NCSC) has sought to give substance to this principle through offering new guidance on cybersecurity design principles. These principles are divided into five categories, loosely aligned with the stages at which a cyberattack can be mitigated: 1. “Establishing the context. All the elements that compose a system should be determined, so the defensive measures will have no blind spots. 2. Making compromise difficult. An attacker can target only the parts of a system they can reach. Therefore, the system should be made as difficult to penetrate as possible. 3. Making disruption difficult. The system should be designed so that it is resilient to denial of service attacks and usage spikes. 4. Making compromise detection easier. The system should be designed so suspicious activity can be spotted as it happens and the necessary action taken. 5. Reducing the impact of compromise. If an attacker succeeds in gaining a foothold, they will then move to exploit the system. This should be made as difficult as possible.”

Alec Ross (Senior Advisor for Innovation to Hillary Clinton as U.S. Secretary of State) warns that, “small businesses cannot pay for the type of expensive cybersecurity protection that governments and major corporations can (afford)” A Ross, Industries of the Future (2016). It remains to be seen to what extent cybersecurity design principles will become a financial impediment to small business engaging with AI developments in the near future.

EU takes action against cyber-enabled ‘IP theft’ perpetrated from outside the EU

In the first EU measure of its type, Council Regulation (EU) 2019/796 concerning restrictive measures against cyberattacks threatening the Union or its Member States [17th May 2019] contains targeted sanctions against online “external threats” to IP. This Regulation is aimed at threats which originate from outside the EU, use infrastructure from outside the EU, or otherwise the person(s) instrumental in such a cyberattack are established abroad (Article 1).

Amongst other criteria, Article 2 of the Regulation targets an actual or attempted cyberattack on IP which has a, potentially, “significant effect”, on the “loss of commercially sensitive data”. Such commercially sensitive data will fall within the definition of a ‘trade secret’ under Council Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure [8 June 2016] if that data: 1. is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; 2. has commercial value because it is secret; 3. has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

Article 3 of this new Regulation imposes an asset freeze on natural or legal persons, entities or bodies who are responsible for the actual or attempted cyberattack; provide financial, technical or material support for or are otherwise involved in the cyberattack; or are associated with the natural or legal person, or bodies involved. As a result of such an asset freeze, all funds and economic resources belonging to, or controlled by, such listed persons and that fall under EU jurisdiction (e.g. held by EU banks) will be frozen. In addition, no funds or economic resources may be made available to or for the benefit of the said listed person by parties falling under EU jurisdiction.

This latest EU Regulation should serve to remind us that the “big international question” of cyberspace governance still remains to be resolved, albeit Sir Mark Sedwill (Cabinet Secretary, Head of the UK Civil Service and UK National Security Advisor) would note that the major private sector providers are more receptive than ever to its resolution (see Public Accounts Committee Oral evidence: Cyber Security in the UK, HC 1745 [1st April 2019] Q93).

In his article Jurisdiction In Cyberspace: A Theory of International Spaces Darrel Menthe asserts that, “unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-law and reduces them to absurdity.” Akin to the “law of the flag” on the high seas, nationality of a vessel (manned or unmanned) in outer space or the nationality of the base in Antarctica, Menthe advocates, even in the absence of such a sui generis treaty regime as regulates the other three international spaces, that jurisdictional analysis requires cyberspace should be treated as a fourth international space governed by a comparable set of default legal rules (see Darrel Menthe, Jurisdiction In Cyberspace: A Theory of International Spaces 4 MICH.TELECOMM.TECH.L.REV 69 (1998)).

Carriage contracts mean what they say, OK?

Open any contract textbook at the chapter on exception clauses, and you will come across a long list of cases on the restrictive interpretation of such clauses, saying that (for example) they will not lightly exonerate a party from the consequences of his own fault in the absence of clear words; that if a clause could cover both negligence and strict liability it will presumptively only cover the latter; that ambiguities will be construed contra proferentem; and so on.

As usual, however, things are not as they seem. No doubt such matters have formed the stuff of contract lectures and provided law professors with enjoyment for as long as most of us can remember. Outside academia, however, commercial lawyers today can pretty safely treat them as a mere empty ritual incantation and then go on quietly to ignore them.

The latest demonstration of this point comes in a case decided six weeks ago but only just reported, Aprile SpA v Elin Maritime Ltd [2019] EWHC 1001 (Comm). On the facts as assumed, steel fabrications were carried on deck from Thailand to Algeria under a straight bill stating that they were so carried and continuing: “ The Carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising prior to loading into or after discharge from the Vessel or while the cargo is in the charge of another Carrier, nor in respect of deck cargo or live animals.” The cargo did not arrive in one piece, and cargo — or its insurers — wanted to bring a claim. Faced with the unpromising terms of the bill of lading (which was unaffected by the Hague Rules because of the statement of deck carriage), they argued, with a touching hope, that for all its wideness the exemption did not cover any damage caused by negligence or unseaworthiness.

The deputy judge, Stephen Hofmeyr QC, was having none of it. In line with a series of recent authorities such as Persimmon Homes Ltd v Ove Arup & Partners [2017] EWCA Civ 373, he held that the exception clause had to be read, like any other contract term, with a view to seeing what it would mean to a reasonable businessperson, taking into account the circumstances surrounding the contract. He saw no reason to interpret the words “howsoever arising” as meaning anything other than what they said, or to regard claims alleging negligence or unseaworthiness as raising any special issue in this connection. He expressed the view that Langley J had been right to suggest as much in The Imvros [1999] 1 Lloyd’s Rep 848, and saw no justification in criticisms later made of that case. Equally he joined in the general tendency to sideline Canada SS v R [1952] AC 192 and its suggestions for cutting down the presumptive meaning of clauses that did not mention negligence in so many words. The argument that there might be strict liability as a common carrier and that the exception clause might have been intended to be limited to that he treated with the disbelief it richly deserved.

In short, in carriage as elsewhere commercial contracts mean what they say; complex rules of interpretation, and outdated presumptions about exoneration for fault, have little part to play. And rightly so. Carriers and cargo interests alike are keen on English law and jurisdiction precisely because they know their contracts will be read in a common sense and businesslike way. The deputy judge here needs, if one may say so, to be commended for approaching this case with a realistic and hard-headed attitude, and not disappointing them.

Supplytime 2017. Pay now, counterclaim later.

Boskalis Offshore Marine Contracting BV v Atlantic Marine and Aviation LLP (The “Atlantic Tonjer”) [2019] EWHC 1213 (Comm) is the first case to consider Supplytime 2017. A multi-purpose support vessel was chartered by disponent owners, Atlantic Marine, to Boskalis for 21 days on Supplytime 2017 form. Atlantic Marine rendered invoices for hire, accommodation, meals and other services which Boskalis did not pay on the grounds that the largest item in dispute was not due because the vessel was offhire throughout.

Clause 12(e) of Supplytime 2017 provides:
“Payments – Payments of hire, fuel invoices and disbursements for the Charterers’ account shall be received within the number of days stated in Box 24 from the date of receipt of the invoice. Payment shall be received in the currency stated in Box 20(i) in full without discount or set-off to the account stated in Box 23… If payment is not received by the Owners within five (5) Banking Days following the due date the Owners are entitled to charge interest at the rate stated in Box 25 on the amount outstanding from and including the due date until payment is received.
If the Charterers reasonably believe an incorrect invoice has been issued, they shall notify the Owners promptly, but in no event no later than the due date, specifying the reason for disputing the invoice. The Charterers shall pay the undisputed portion of the invoice but shall be entitled to withhold payment of the disputed amount…”
In this case the due date was 21 days.
Sir Ross Cranston, acting as a judge of the High Court has held that clause 12(e) does debar charterers from raising defences against owners’ invoices if and to the extent that they have failed to notify owners that they believed those invoices to be incorrect because of those defences by the due date of those invoices. Clause 12(e) is not a time bar provision. It gave Boskalis a relatively short period of 21 days within which to dispute an invoice and once that period has expired, Boskalis came under an obligation to pay any undisputed sum to Atlantic Marine, whether they were liable for such sums or not, with disputed sums left over to be subsequently resolved. Boskalis’s obligation to pay any undisputed sum to Atlantic Marine was also subject to their right subsequently to challenge their liability for such sums either by requiring an audit under clause 12(g) and a credit (if appropriate) or by way of a counterclaim.

The clause was clear and unambiguous. “A reasonable person with the background knowledge available to the parties at the time of the contract would understand that invoices had to be paid within 21 days of their being received. namely, that charterers are barred from disputing the payment of invoices unless done within the 21 days referred to in the contract.”

If charterers reasonably believed that there was an error in the invoice they could withhold payment of the disputed amount by notifying the owners under the clause within the period agreed in the contract. Charterers also had the audit rights under clause 12 (g) to reclaim amounts paid through accounting-type errors (wrong hire rate, wrong number of meals and so) up to four years ahead, as well as the right bring a counterclaim, for breach of contract or for unjust enrichment, if they had paid sums which they later believed were not properly payable.

Brexit. UK to exit with no deal on 31 October unless Parliament passes vote of no confidence in the government.

With the resignation of Mrs May and the end of any prospect of Parliament passing the withdrawal agreement reached with the EU last November, it is looking very likely that the UK will leave the EU with no deal on 31 October. This is the default position under the EU Withdrawal Act 2018. Analysis by Maddy Thimont of the Institute of Government shows that the only way a no-deal exit could be stopped would be by Parliament passing a vote of no-confidence in the government. https://www.instituteforgovernment.org.uk/blog/new-prime-minister-intent-no-deal-brexit-cant-be-stopped-mps-0

The ‘Cooper’ clause added to the 2018 Act would only have effect in relation to any proposed ratification of the proposed withdrawal agreement with the EU. The clause in the 2018 Act requiring required the Government to hold a vote in the Commons if no agreement had been reached with the EU by 21 January is somewhat time expired now.

Who’d want to be PM now?

Shipping casualties and clearing-up

After a casualty the clear priority for shipowning, P&I and insurance interests alike is to clear up the mess as soon as possible and start trading again. The last thing they want is a run-in with well-meaning administrators saying that nothing can be done until form after form has been filled in, checked, rubber-stamped and filed, and permission to act obtained from Old Uncle Tom Cobleigh and all. Yet this was exactly what happened in 2012 to the owners of the 86,000 dwt container vessel MSC Flaminia. A fire broke out on a voyage from Charleston to Antwerp, forcing the crew to abandon ship and resulting in the vessel being towed dead to Wilhelmshaven in Germany. The owners wanted to send her directly to an entirely reputable ship-repairer in Romania for cleanup and repair, but the German environmental authorities were having none of it. The vessel was full of filth, sludge, metal debris and the dirty water used to extinguish the fire. This was, they said, waste and subject to the Waste Directive 2008 and Regulation 1013/2006, requiring extensive documentation, planning and administrative oversight before any transfer could take place. Owners argued in vain that Art.1.3(b) specifically excepted waste produced on board ships, trains, etc and later discharged for treatment: debris from a casualty, said the bureaucrats, was not within the exception. The result was that the ship remained marooned in Wilhelmshaven for seven months before it was finally allowed to go to Romania. The German courts, in proceedings to recover the resulting losses from the state, initially supported the Teutonic bureaucracy, but the Munich Landgericht then sent the question off to the ECJ: was waste resulting from a marine casualty within the exception?

The ECJ, much to everyone’s relief, today said that it was. The Directive had to be interpreted purposively and there was no reason to give special treatment to waste resulting from a casualty, especially as the terms of Art.1.3(b) were unqualified. Within the EU this now means that vessels can get out of ports of refuge quickly and be sent with due expedition to wherever they can be cleaned up and repaired most efficiently. And a good thing too.

The decision, under the name of Conti II v Land Niedersachsen (Case C‑689/17) [2019] EUECJ C-689/17, is here (unfortunately only in French).