Tag: shipping

Misdelivery by the carrier after discharge and the Article III Rule 6 time bar: the ‘Alhani gap’ is filled

FIMBank p.l.c. v KCH Shipping Co., Ltd [2022] EWHC 2400 (Comm)

The Commercial Court (Sir William Blair) has recently handed down judgment in FIMBank p.l.c. v KCH Shipping Co., Ltd, an appeal under section 69 of the Arbitration Act 1996, holding that the time bar in Article III rule 6 of the Hague-Visby Rules can apply to claims in relation to misdelivery after discharge. The Court’s decision resolves an important question which had not previously been decided by the English courts, and which has divided leading academic commentators as well as judges in other common law jurisdictions.

Background

The appeal relates to a claim brought by FIMBank p.l.c. (“FIMBank”), as the holder of bills of lading, for the alleged misdelivery of cargo by the contractual carrier, KCH Shipping Co., Ltd (“KCH”). The bills were concluded on the Congenbill form, and were subject to the Hague-Visby Rules, including the time bar in Article III r 6 of one year after delivery which applies to claims against carriers.

FIMBank served a Notice of Arbitration on KCH after that time bar expired. Its position was that its claim was nevertheless not caught by the time bar, contending that: (a) on the facts, delivery took place after discharge; and (b) as a matter of law, the time bar did not apply to claims for misdelivery occurring after discharge. In its submission, this was so given that the Hague-Visby Rules do not regulate a carrier’s obligation to deliver cargo (as opposed to the carriage of goods by sea), and only relate to a ‘period of responsibility’ which ends with the discharge of cargo. FIMBank further argued that the parties had, in any event, contractually disapplied the Rules in respect of the period after discharge, insofar as Clause 2(c) of the Congenbill form provided: “The Carrier shall in no case be responsible for loss and damage to the cargo, howsoever arising prior to loading into and after discharge from the Vessel …”.

In an Award on preliminary issues, the arbitral tribunal determined that FIMBank’s claim was time-barred irrespective of whether delivery post-dated discharge on the facts (which remained a matter in dispute). This was because: (i) the Hague[1]Visby Rules time bar can apply to claims relating to misdelivery occurring after discharge; and (ii) Clause 2(c) of the Congenbill form does not disapply the Rules in respect of the period after discharge.

The Court’s reasoning

The Court upheld the tribunal’s decision on both questions, and accordingly dismissed the appeal.

On the first question, it concluded that, on its true construction, Article III r 6 of the Hague-Visby Rules applies to claims for misdelivery of cargo after discharge. The Court noted that this conclusion avoided the need for fine distinctions as to the point at which discharge ended, and accorded with the objective of the rule which was intended to achieve finality and to enable the shipowner to clear its books. It further observed that, although certain common law authorities and commentaries might be said to support the construction of Article III r 6 for which FIMBank contended (including Carver on Charterparties and Voyage Charters), there was no international judicial or academic consensus to that effect.

The Court held that, even if its conclusion above was wrong, the tribunal’s decision was in any event justified by its finding that the bills of lading contained an implied term providing that the Hague-Visby Rules obligations and immunities are to continue after actual discharge and until delivery takes place, in line with the reasoning of the Court of Appeal in The MSC Amsterdam [2007] EWCA Civ 794.

On the second question, the Court held that, on a proper construction, Clause 2(c) did not disapply the Hague-Visby Rules to the period after discharge. Although FIMBank relied in this regard on The MSC Amsterdam, in which the express terms of the bill of lading concerned were held to have disapplied the Hague Rules after discharge, the Judge held that that decision did not warrant a different result, insofar as it featured a bill of lading with materially distinguishable terms.

Simon Rainey K.C. of Quadrant Chambers and Matthew Chan of Twenty Essex acted for KCH, instructed by Kyri Evagora and Thor Maalouf of Reed Smith LLP














MASS and the International Legal Framework – A Paradigm Shift or Old Wine in New Wineskins?

One of the issues discussed during the International Relations and Defence Committee of the House of Lords’ inquiry into the 1982 Law of the Sea Convention (LOSC)[i] and whether, almost forty years after its conclusion, it remains ‘fit for purpose’, was the challenges the LOSC presents for the use of Maritime Autonomous Surface Ships (MASS) (the relevant sessions can be accessed here). Building and expanding on the evidence that I gave as an expert witness on this issue, this short blog post ponders the following question: does the use of MASS – and the connected disappearance of a master, officers, and crew from on board a ship – constitute a paradigm shift for the current international legal framework that requires making significant changes thereto, or are MASS merely old wine in new wineskins that can be accommodated with relative ease?

In a general sense, there is a correlation between the level of autonomy MASS are imbued with and the extent of difficulties they present for the existing international legal rules. These rules pertaining to MASS do not exclusively flow from the LOSC, but also from a number of international shipping conventions, including the International Convention for the Safety of Life at Sea (SOLAS).[ii] Concerning those MASS where seafarers and the master remain on board, fewer challenges are presented by the current international legal framework. However, it is when MASS are controlled from an onshore remote-control centre, or that the operation of MASS is completely based on algorithms performed by a computer, that problems start to come to the fore from an international law of the sea perspective.

Some Issues Flowing from the International Legal Framework in its Current Form[iii]

Looking at the current debate in relation to MASS, it is widely recognised that some change must be made to the existing international legal framework in order to facilitate their operation at sea.[iv] In these debates, the main bone of contention is how extensive the overhaul of the existing international legal framework would need to be: is it more tinkering at the margins that is required, or is a more significant overhaul necessary? At the heart of this debate is the question whether this exercise can be confined to making the necessary amendments to the international shipping conventions that have been negotiated under the auspices of the International Maritime Organisation (IMO). For example, would amending those provisions contained in the IMO Conventions in existence today that presuppose an on-board presence – for example, Part 4 of Section A-VIII/2 of the International Convention on Standards of Training Certification and Watch 1978 (STCW Convention),[v] requiring watch to be kept by officers, both on the bridge and in the engine room – be enough? Or, rather, would updating IMO Conventions only resolve matters in part, because of the LOSC, which as exemplified by its context and the language of several of its provisions (e.g., Article 94 of the LOSC) operates on the assumption that a vessel has a master, officers and/or a crew on board?

As regards the LOSC, one issue is whether MASS can be brought within the scope of application of those parts dealing with international shipping. This has given rise to different views, which have ranged from that MASS do not fall under the scope of the LOSC, because of them not being ships/vessels,[vi] to that no difficulties would arise because they are ships/vessels.[vii] Other issues have arisen as well, including around Articles 92, 94, and 98 of the LOSC and the tension that is inevitably created because of these provisions referring to a master/officer/crew, and that flag States have certain obligations, which for their execution rely on an on board presence of persons as well. For example, Article 94(4)(b) of the LOSC prescribes that each flag State must ensure that its vessels have a (properly qualified) master and crew. Under this obligation, each flag State must not only make sure that its vessels have a (properly qualified) master on board, but officer(s) and (not ‘or’) crew as well.

Another issue is that MASS do raise difficulties for flag States in terms of them being able to effectively implement their flag State duties, as is, amongst others, envisaged pursuant to the genuine link requirement. In order for a State to grant its nationality to MASS, there has to be a genuine link pursuant to paragraph 1 of Article 91 of the LOSC. A genuine link is assumed to exist when a flag State has actual control over a ship.[viii] However, how can a flag State exercise control over a remote controller if they are, for example, not located in the territory of the flag State, but in a remote-control centre that is based in another State’s territory?[ix] The way offered out of this conundrum often is that the human controller onshore in a remote-control centre would have the role of the ‘master’. However, this argument is not without difficulties, one issue being that the LOSC speaks of a singular master. This will create difficulties if this requirement is transposed to one or more controllers that are located in an onshore remote-control facility, including in terms of labour standards.

Leaving this issue further aside, if it would be accepted that an onshore controller can be considered the ‘master’ for LOSC purposes, it seems that in order for the flag State to meet the threshold of it exercising its jurisdiction and control in an effective manner, more is required from the flag State in relation to MASS as compared to manned vessels flying its flag. Because flag States are responsible for MASS flying their flag and any legal issues arising, issues that might occur in the relation with the State on whose territory the onshore remote-control centre, and thus the controller, is based, will need to be regulated (this was discussed in one of the webinars organised by the National University of Singapore’s Centre for International Law (CIL) on MASS, see here). This includes that potential extradition arrangements between the States concerned would need to be in place in case something goes wrong.

The Way Forward

MASS challenge a preconceived understanding that a vessel carries a master and a crew on board. This was similarly the guiding thought on the mind of the drafters of the LOSC at the Third Law of the Sea Conference, which is exhibited by the LOSC’s content and language, creating difficulties for these provisions to be applied to MASS. Because of this, should the LOSC itself be reopened for renegotiation because of it being ‘unfit’ to address MASS specifically, as has occasionally been suggested?[x] The short answer is ‘no’. Sight must not be lost of that the LOSC is a framework convention, which recognises that for certain matters more specific law might be required. The road leading to the LOSC was long, only being agreed upon after close to two decades of negotiations between States. The final text that was produced is rather remarkable, especially against the background of various compromises having to be struck between various, at times, competing interests and views of States. Regarding MASS specifically, States are also unlikely to deem this topic sufficiently important to go through renegotiations of the LOSC, which may well amount to nothing. This is not an unlikely outcome considering that the 168 States being a party to the LOSC would have to be on the same page on how to deal with MASS. In this light, even if States would be willing to renegotiate the text of the LOSC for this purpose, there is no guarantee that it will lead to changes facilitating autonomous ship operations at sea.

But making changes to the existing international law to accommodate MASS can occur via different routes than amending the LOSC, which after entering into force in 1994 has not happened. These approaches are not new, having been used in the past in cases where it was felt that the LOSC could be improved upon to deal with specific subject matters. One such alternative approach, being similarly not without precedent, having been pursued in connection with straddling fish stocks and the Area, is to negotiate an Annex to the LOSC. The development of a de novo regime dealing with MASS provides a further option; a potential difficulty here is that it might be difficult to reach an agreement that is able to secure significant participation from the around 200 States existing today, which all have their own interests. It may also be that customary international law will come to bear out rules pertaining to MASS, although due to State practice being in its infancy, this option is less relevant at the moment.

As a further alternative, whereas amending the LOSC is notoriously difficult, and not desirable, this is less the case for the various IMO Conventions. In a general sense, a key role is played by the IMO in regard of the future regulation of MASS, as is also illustrated by Article 94(5) of the LOSC. Along these lines, more recently, the IMO, to be more specific its Maritime Safety Committee (MSC), completed a scoping exercise with regard to MASS (see here), focusing on the extent to which IMO Conventions related to the safety of navigation (e.g., SOLAS) need to be updated to ensure that MASS are able to comply with them. Other IMO bodies, including the Marine Environment Protection Committee, have not performed similar exercises for other relevant IMO Conventions yet; however, the Legal Committee has examined the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation in relation to the use of MASS.[xi] Of course, by following the IMO route any difficulties existing in these IMO Conventions pertaining to MASS specifically can be ironed out. Or, if deemed necessary, new instruments could be created. But there is a broader issue that may rear its head in this context, one which will only be signposted here: to what extent can the IMO remove all of the legal hurdles thrown up by the LOSC in relation to MASS? If the LOSC operates on the understanding that vessels must carry a master/officer(s)/crew on board, can the IMO introduce rules and standards which are at variance therewith, for example?

Some Concluding Thoughts on the Current State of Affairs

To return to the present and the issue of MASS and the international legal framework as it is: irrespective of the view held as to how extensively the international rules need to be updated to account for autonomous ship operations, MASS cannot comply with the existing international and generally accepted shipping rules and regulations as they currently stand. One corollary to this is that coastal States do have powers to act against MASS when they would be, for example, traversing through that coastal State’s territorial sea. Another effect is that, without the international legal framework providing provisions specifically tailored to MASS, or that its relevant provisions have not been updated to account for their modus operandi, flag States should think carefully about registering MASS. And particularly they should ask themselves the question whether they are in a position to adequately execute their flag State duties in relation to MASS. A more comprehensive set of international rules specifically tailored to MASS will surely take significant time to develop. Connected to this, it will be interesting to see whether the IMO, as it progresses with its work on MASS, will also consider the LOSC and the way in which it may impact its ability to comprehensively deal with MASS.

[i] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC).

[ii] International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2 (SOLAS).

[iii] For a more comprehensive analysis of this issue see Y. van Logchem, ‘International Law of the Sea and Autonomous Cargo ‘Vessels’, in A. Tettenborn and B. Soyer (eds.), Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework (Hart Publishing, 2021), pp. 25-62.

[iv] See e.g. N. Klein, D. Guilfoyle et al., ‘Maritime Autonomous Vehicles: New Frontiers in the Law of the Sea’ (2020) 69 International and Comparative Law Quarterly 719-734; A. Tettenborn and B. Soyer (eds.), Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework (Hart Publishing, 2021).

[v] International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) UKTS 50 Cmnd 9266, with amendments in 1995, which entered into force on 1 February 1997 (STCW Convention 78/95).

[vi] See e.g. M. Schmitt and D. Goddard, ‘International Law and the Military Use of Unmanned Maritime Systems’ (2016) 98 International Review of the Red Cross 577.

[vii] See e.g. J. Kraska, ‘The Law of Unmanned Naval Systems in War and Peace’ (2010) 5 The Journal of Ocean Technology 64.

[viii] See e.g. M /V Saiga (No 2) (Saint Vincent and the Grenadines v. Guinea) (Judgment) ITLOS Reports 1999, 10, pp. 41-42, paras. 81– 83.

[ix] A. Chircop, ‘Maritime Autonomous Surface Ships in International Law: New Challenges for the Regulation of International Navigation and Shipping’, in M. Nordquist et. al (eds.), Cooperation and Engagement in the Asia-Pacific Region (Brill/Nijhoff, 2020), pp. 24-25.  

[x] E. Van Hooydonk, ‘The Law of Unmanned Merchant Shipping – An Exploration’ (2014) 20 Journal of International Maritime Law 410.

[xi] United States of America, ‘Summary of Results of the LEG Regulatory Scoping Exercise for the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988’, IMO Doc. LEG 107/8/5 (9 January 2020).

Who is an “operator of a seagoing ship” for the purposes of the 1976 Limitation Convention?

In a recent blog post I commented on various gaps in the limitation regime and the Admiralty court has now given guidance as to how another gap may be plugged – namely whilst an “operator of a seagoing ship” is a “person entitled to limit liability” pursuant to article 1.2 of the 1976 Limitation Convention, what is meant by the term “operator”? That is a term that is not defined in the Convention nor in the travaux preparatoires to the Convention, Furthermore, the issue has not been considered in any prior case and there is no helpful commentary in any of the leading textbooks on the subject.

In the case of the “Stema Barge II”(2020) EWHC 1294 (Admlty) Teare J has engaged in a careful and cogent analysis of the issue. The judge notes firstly that article 2.1 refers to the “manager and operator of a seagoing ship” and comments that in many instances there is considerable overlap between “manager” and “operator” and that the terms may often be used interchangeably:

“I therefore consider that the ordinary meaning of “the operator of a ship” includes the “the manager of a ship”. Indeed, in many cases involving a conventional merchant ship there may be little scope for operator to have any wider meaning than that of manager”. (para 74)

However, he goes on to say that a person may be an “operator” even if that person does not engage in the more conventional management activities which would include manning, fuelling, technical and safety supervision, trading, deployment of the ship etc.

The “Stema Barge II” was an unmanned dumb barge which required unique handling as explained by the judge:.

“The present case does not involve a conventional merchant ship but a dumb barge, laden with cargo, which is towed from the loading port to the discharge location, left there by the tug and thereafter “attended” (to use a neutral word) by a company which places men on board with instructions to operate the machinery of the dumb barge. The question which arises in these circumstances is whether the ordinary meaning of “the operator of a ship” in article 1(2) can include those who physically operate the machinery of the ship and those who cause the machinery of the ship to be physically operated, or whether the ordinary meaning of “the operator of a ship” is limited to the manager of the ship.” (para 75)

The judge concludes that:

“I have therefore concluded that the ordinary meaning of “the operator of a ship” in article 1(2) of the 1976 Limitation Convention embraces not only the manager of the ship but also the entity which, with the permission of the owner, directs its employees to board the ship and operate her in the ordinary course of the ship’s business.”

Whilst the facts of the case may have been somewhat special the decision may have an impact on the wider issue of who is deemed to be an “operator” of an unmanned ship and whether an entity that operates the controls of an unmanned ship “in the ordinary course of the ship’s business” from shore can limit its liability. It is true that in the case of the “Stema Barge II” the entity that sought the right to limit had actually boarded the barge in order to be able to operate its machinery. However, it does not seem that the physical boarding of the vessel should necessarily be a restricting factor and there are indications  that the judge was thinking in more general terms. For example, he makes the following more general observations:

“The question which arises in these circumstances is whether the ordinary meaning of “the operator of a ship” in article 1(2) can include those who physically operate the machinery of the ship and those who cause the machinery of the ship to be physically operated…” (para 75)

“Those who cause an unmanned ship to be physically operated…” (para 81)

It is true that the judge says at para 74 that:

“Indeed, in many cases involving a conventional merchant ship there may be little scope for operator to have any wider meaning than that of manager.”

However, it is equally true that an unmanned ship is not a “conventional merchant ship.”

THE FIRST ADMIRALTY CASE HEARD REMOTELY OWING TO COVID19 PANDEMIC

On 29 January 2020, the Admiralty Court made an order at the request of the claimant in Qatar National Bank QPSC v Owners of the Yacht Force India [2020] EWHC 103 (Admlty) that the yacht Force India be sold. The circumstances in which the order for the sale was granted were described in a previous post on this blog. See https://iistl.blog/2020/03/09/no-judgment-in-default-of-a-defence-in-in-rem-proceedings-against-an-arrested-ship-unless-the-court-is-satisfied-that-the-claim-has-been-proved/.

After twenty bids had been received by the Admiralty Marshal during the sale process, Qatar National Bank QPSC applied to the Court for an order to set aside the order for the sale. While the Admiralty Court declined to grant such order, it suspended the sale to enable a proper hearing to take place on notice to the interested parties. 

On 20 March 2020, the hearing took place by telephone as a result of the COVID19 pandemic, making Qatar National Bank QPSC v Owners of the Yacht Force India [2020] EWHC 719 (Admlty) the first case to be heard by the Admiralty Court remotely.

The Court decided to set aside the order for sale in the present case. That is because an independent third party paid the sums secured by the mortgage. As a result, the judicial sale of the yacht Force India was rendered unnecessary.

It may be worth noting here that the case at hand is exceptional in that the mortgage had been granted as additional security for a €27 million loan to finance the acquisition of a company which owned a property on an island off the coast of France. Thus, when the loan secured by the charge on the property was paid to Qatar National Bank QPSC, the smaller sum secured by the mortgage on the yacht was also discharged.

Indeed, the Admiralty Court emphasised the need for orders setting aside judicial sales of vessels to remain the exception rather than the norm, with a view to protecting its reputation and its ability in future cases to achieve a vessel’s market value when an order for sale is made.

When is the Fund not the Fund? Venezuela’s unsuccessful fishing expedition.

The 1971 IOPC Fund ceased to exist on 31 December 2014. The 1992 IOPC Fund, however, is still going strong. This fact was not lost on the Venezuelan fishermen’s union who lodged a claim in Venezuela in respect of damage sustained as a result of an oil spill in May 1997 from the tanker Plate Princess. In 2009 they obtained a judgment against the shipowner and also against ‘The International Fund for Compensation for Oil Pollution Damage’. In March 2015 Master Eastman made a Registration Order in respect of that judgment.

In Sindicato Unico de Pescadores del Municipio Miranda del Estado Zulia v. IOPC [2015] EWHC 2476 (QB); [2016] 1 Lloyd’s Rep Plus 2, Picken J has set aside the Registration Order. The 1992 Fund was not involved in an incident which occurred at a time when Venezuela, although a signatory to the 1992 Protocol, had yet to ratify, accept, approve or accede to it. The Venezuelan judgment could not be regarded as applying to the 1971 Fund Convention as amended by the 1992 Protocol. Even if the judgment had been against the 1992 Fund, there was no relevant exception to the 1992 Fund’s immunity under art. 5(1) of the International Oil Pollution Compensation Fund 1992 (Immunities and Privileges) Order 1996. The only possible exception, in art. 5(1)(b) “in respect of actions brought against the 1992 Fund in accordance with the provisions of the [1992] Convention” would not apply.

The 11th IISTL Annual Colloquium

International Trade and Carriage of Goods: Emerging Issues and Legal Problems in Contemporary Practice

It has been a decade since the Law School’s Institute of International Shipping and Trade Law (IISTL) launched its annual international colloquia with a view to providing a forum for discussing contemporary and controversial aspects of shipping, trade and commercial law.

From modest and experimental beginnings in 2005, since then these colloquia have grown exponentially and established themselves as a key event in the commercial maritime law calendar. Today they attract not only the best academics in the area from the UK, Europe and elsewhere, but also large numbers of leading lawyers, judges and executives from shipbroking, P & I, banking and other businesses.

This year’s event, the eleventh in the series, was held on 10-11 September at Swansea and was devoted to international sale contracts and related issues such as carriage issues, documentary credits and cargo insurance. It was fully embraced by the international shipping and trade community, attracting 72 delegates from 11 jurisdictions. In addition to academics, lawyers, arbitrators and P & I interests were represented; from the commercial judiciary we were delighted to welcome the Hon. Mr Justice Males (Presiding Judge of the North Eastern Circuit), who enthusiastically participated in the debates and chaired one of the sessions. Apart from academics from the IISTL, namely Professors Baughen, Soyer, Tettenborn and Williams and Associate Professor Theodora Nikaki, the following academics and practitioners presented papers at the event:

Professor Olivier Cachard (University of Lorraine, France); Professor Jason Chuah (Head of Department, The City Law School, City University London); Sara Cockerill QC (Essex Court Chambers);Dr Miriam Goldby (Centre for Commercial Law Studies, Queen Mary, University of London); Damian Honey (Partner, Holman Fenwick Willan LLP); Ruth Hosking (Quadrant Chambers); Peter MacDonald-Eggers QC (7 King’s Bench Walk and IISTL); Simon Rainey QC (Quadrant Chambers and IISTL); Stuart Shepherd (Partner, Ince & Co LLP); Professor Michael Sturley (University of Texas, Austin); and Dr Frank Stevens (Roosendaal Kezer Advocaten, Antwerp).

Williams, Hu, Cachard

From left to right: Professor James Hu (Shanghai Maritime University), Professor Richard Williams (IISTL) and Professor Olivier Cachard (University of Lorraine, France)

The Colloquium dinner, most generously sponsored by leading commercial law publisher Informa Law and entertainingly hosted by Head of College Professor Elwen Evans QC, was held at Sketty Hall. Informa (to whom, as ever, the IISTL remains enormously grateful) has also agreed to publish the papers presented at the Colloquium in book format in 2016, thus continuing another excellent traditional.

Talking after the event, Professor Soyer, Director of the IISTL, commented:

“The fact that this year’s Colloquium attracted record numbers of delegates from all around the world, including the US and China, is a clear sign that this event has been taken to heart by the shipping and trade community and is a permanent fixture. I would like to thank all those who helped: delegates, speakers and chairpersons, and also my colleagues at the IISTL who provided their unstinting support. I am leading a talented group of individuals here at the IISTL, who have enormous respect for each other and the sector that we aim to serve. They exemplify everything that is good about diversity and co-operation, and this becomes ever more obvious during events like this!

A number of events are planned for 2016, and the IISTL will continue to work towards achieving one of its key missions: namely bridging the gap between academia and practice.”

Soyer (11th Colloquium)

Professor Baris Soyer (Director, IISTL) presenting his paper

Temporal scope of Hague Rules

Volcafe v CSAV [2015] EWHC 516 (Comm); [2015] 1 Lloyd’s Rep 639.

Loading of a cargo of coffee inland by the carrier into its containers has been held to fall within the temporal scope of the Hague Rules. This may seem somewhat surprising in the light of Article 1 (e) of the Rules which provides: “(e) “Carriage of goods” covers the period from the time when the goods are loaded on to the time they are discharged from the ship.” However, David Donaldson QC in the London Mercantile Court has held that the initial loading into the carrier’s containers and the subsequent loading of the container onto the vessel were to be regarded as part of a single loading process. Even if this were not the case, the parties had exercised their freedom to agree what constituted loading under art 1. (e) which they had done by providing that the carrier would stuff the cargo into its own containers.

Simon Baughen

Free in/ Free out clauses and cargo claims

SDTM-CI v Continental Lines N.V. [2015] EWHC 1747 (Comm)

Cargo claims were brought against the shipowner under two bills of lading incorporating the terms of a charterparty which contained a clause providing “Cargo shall be loaded, spout trimmed and/or stowed at the expenses and risk of Shippers/Charterers … Cargo shall be discharged at the expenses and risk of Receivers/Charterers at the average rate of 1,500 metric tons per weather working day ……Stowage shall be under Master’s direction and responsibility…” Flaux J has held that the incorporated provision has the effect of transferring responsibility for loading and discharging away from the shipowner. To the extent that it was established that the cargo was damaged by bad loading and/or discharge, as opposed to bad stowage, the cargo interests could not recover such damages from the shipowner.

Simon Baughen

Arrest of Ships

An interesting decision of the Federal Court of Australia in The Sam Hawk [2015] FCA 1005. For the purpose of determining if a claimant has a maritime lien for a contractual claim (here the supply of bunkers), the law of the contract under which the bunkers were supplied controls. The court refused to follow the Privy Council in The Halcyon Isle [1981] AC 221 .

More details at http://www.hfw.com/Arrest-of-the-SAM-HAWK-October-2015

Andrew Tettenborn

IISTL Members at Prestigious International Events in 2014-15

Academic staff teaching at Swansea LLM degrees are at the forefront of scholarship in their particular areas of expertise, which they combine with skilled and innovative teaching.

They are also members of the Institute of International Shipping and Trade Law (IISTL), an internationally renowned research centre, which promotes research and teaching of the highest standard in the fields of international shipping and trade law. 

The IISTL has a global reputation and its members are often invited to speak at international conferences to disseminate the results of their research. Like any other year, members of the Postgraduate Legal Studies Department with the commencement of the academic year of 2014-15 have travelled around the world delivering academic papers in prominent international events on shipping, transport and trade law.

Nikaki (S)

On 17 September 2014, Dr Theodora Nikaki delivered a keynote address at the InterTran Research Project Closing Conference in Helsinki entitled “European Intermodal Sustainable Transport – Quo Vadis?”. The InterTran project is an interdisciplinary research project focusing on the expanding new, European transport policy from a legal and logistical point of view. It is a research project financed by the Finnish Academy and The Scandinavian Institute of Maritime Law jointly. Dr Nikaki’s paper, titled “The Future of Multimodal Transport: Is the Uniform Liability System the Way Forward?”, tested the feasibility of the uniform liability system as basis of a new multimodal regime. The paper also examined the difficulties in implementing a new multimodal transport regime arising out of the existing international transport conventions, a theme which also provoked a lively debate among the participants.

Tettenborn (M)

On 11 September, Professor Andrew Tettenborn addressed the Eighth European Colloquium on Maritime Law Research, hosted by the Rotterdam Institute for Shipping & Transport Law (RISTL). The European Maritime Colloquia are a series of biannual conferences organized by leading maritime law centers in Europe, in collaboration with the Scandinavian Institute of Maritime Law (University of Oslo, Norway). The Eighth Colloquium’s theme was “Common core, PECL and DCFR: Could they change shipping law?” and Professor Tettenborn delivered a paper on “”How far the imposition of a serious good faith obligation (an important part of both PECL and DCFR) might impact on the black-and-white world of shipping contracts.” His thought-provocative paper has sparked a debate over the concept of good faith in various jurisdictions and its impact on shipping law.

‌‌Baughen (S)On 16 October, Professor Simon Baughen gave a paper at a conference at the University of Marmara on “Marine Pollution Liabilities in EU waters. New Developments” which considered the impact on oil rig operators of art. 38 of the 2013 Offshore Oil and Gas Operations Directive, art 38, extends the geographical limits of water pollution to the EEZ of Member States. The paper also considered the extent to which the CLC system of civil liability for oil pollution from ships has been undermined by civil claims attached to criminal proceedings arising out of the ‘Erika’ spill, in France, and the ‘Prestige’ spill, in Spain.

Most recently (7-8 November), Professor Bariş Soyer, the Director of the IISTL, attended the International Conference on “Hong Kong Maritime Law Forum” organised by the Hong Kong Centre for Maritime and Transportation Law (City University of Hong Kong) and delivered a paper discussing why the Athens Convention 2002 will be a good model for Asian countries to follow to regulate compensation claims for passengers carried by sea. Professor Soyer has written on this subject extensively and is currently working on a piece with Dr Leloudas, another IISTL member, evaluating how air law conventions can be utilised to fill the gaps that arise in the context of the Athens Convention.

On 8 November Professor Simon Baughen co-organised a conference at the University of Bristol on “Corporate Accountability and Access to remedies for Corporate Wrongs”, the third in a series of conferences organised by the University of Sheffield with an ESRC grant. The series will conclude in 2017 with a submission to the UN Human Rights Council based on findings from the conference series. Professor Baughen gave a paper “Life after Kiobel. The future for human rights litigations against MNCs in the US.” on the future of human rights litigation in the US District Courts under the Alien Tort Statute following the Supreme Court’s decision on the territorial reach of the statute in April 2013 in Kiobel.

Similarly, with the commencement of the new academic year, IISTL members spread around the world presenting academic papers in various international events addressing shipping, transport, trade and marine and environmental law.

Soyer (2)Professor Bariş Soyer, the Director of the IISTL, was invited to present a paper at the 8th International Conference of Maritime Law organised by the Piraeus Bar Association held at the Congress Hall of the Piraeus Port Authority (10-12 October 2013). This event was the latest in a prestigious series, first established 22 years ago, which provides a forum for maritime academics, practitioners, public officers and experts from all over the world to discuss timely issues of theoretical and practical interest. The theme of this year’s event, which was a fitting tribute to the late Emeritus Professor Anthony M. Antapassis (Athens University), to whom the conference was dedicated, was ‘Shipping in Periods of Distress. Professor Soyer’s paper, entitled ‘Early Redelivery of Chartered Vessels – Remedies Available for Shipowners’ was well received and prompted an interesting debate on the subject. The early redelivery of chartered vessels poses significant problems for shipowners. As Professor Soyer outlined, the current legal protection accorded to shipowners under English law is far from satisfactory. In his paper, Professor Soyer elaborated how shipowners could best protect themselves by incorporating contractual provisions into their agreements with charterers.

In May 2014, Professor Soyer was invited by the Italian School of Judiciary (Scuola Superiore Della Magistratura) to speak at their Conference held at Genova on international maritime law. This event, which was organised in collaboration with the Association of Bar of Genoa, attracted delegates from the Italian judiciary and legal practice. Professor Soyer in his paper evaluated the position of standard cargo insurance on offer in international insurance markets highlighting their limitations especially in the context of multimodal transport.

On 11-14 October Dr Richard Caddell participated at the Sixth Symposium on Polar Law, an annual event dedicated to the regulation of the Arctic and Antarctic regions and which has rapidly established itself as the leading scholarly forum for debating these issues. The Polar Regions – especially the Arctic – have rapidly become a core area of international focus, raising controversial questions over their future governance and the exploitation of marine resources. Dr Caddell presented a paper entitled “Regulating the Whale Wars: Freedom of Protest, Navigational Safety and the Law of the Sea in the Polar Regions” in which he examined the scope for environmental activism at sea and its conflict with other legitimate uses of ocean space. The paper was especially timely given the recent arrest of 30 Greenpeace activists for boarding the Prirazlomnaya oil platform in Russian Arctic waters, a situation that Dr Caddell examined alongside significant legal developments from a variety of other jurisdictions, which also provoked a lively debate among the participants.

Dr Caddell has also been invited to join an expert group reviewing the future protection of cetaceans (whales, dolphins and porpoises) under European Law, with a view towards reforming the current unsatisfactory and contentious legal position of these species. Moreover, in late October he presented a paper entitled “Wilderness Protection in Estonia” at a workshop of invited participants at the University of Tilburg, the Netherlands. Here Dr Caddell will present research that will form part of a chapter contribution to the first major book examining European wilderness law, edited by Professor Kees Bastmeijer, scheduled for publication by Cambridge University Press in 2014.

Dr. Leloudas was invited at the 5th Annual McGill Conference on International Aviation Liability & Insurance which was held at Montreal, Canada (25-26 October 2013). The Conference is one of the main international events in the field of carriage of passengers by air and attracts aviation legal professionals from all over the world. Dr. Leloudas was on the panel that discussed the erosion of the principle of exclusivity under the Warsaw and the Montreal Conventions, a principle which creates a constant stream of case law worldwide with often mixed results. Dr. Leloudas was one of the very few academics from outside McGill who was invited to speak at the Conference.

Leloudas (s)Furthermore, Dr George Leloudas was invited to present a paper to the LL.M (Air Law) students of the Institute of Air & Space Law of McGill University in Canada (24 October 2013). The paper was entitled “Multimodal Transport under the Montreal and the Warsaw Convention: a velvet revolution?” in which he examines the boundaries of application of the air law conventions in a multimodal context. This issue is in high academic and practical demand as result of conflicting case law developing in continental, English and US courts, with Dr. Leloudas providing his interpretation of the current judicial developments and his prediction as to where the future lies. The presentation gave the impetus for a heated discussion among the students, the academics of the Institute and the speaker on the (dis)uniformity of this area of law and the commercial reasons behind the latest judicial developments.