Maritime Advocate Online - Issue 380
IN THIS ISSUE
1. EC Commission fines marine hose cartel €131m
2. Michael Grey
3. Through bills of lading in the United States subject to Carmack Amendment?
4. State of Washington Court takes traditional line on asbestos liability
5. Montreal Convention comes into effect down under
6. People and Places
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1. EC Commission fines marine hose cartel €131m
News reaches us on 03Feb09 ,courtesy of the publishers of Strategic Risk, that the European Commission has imposed a total fine of € 131m on five groups for participating in a cartel for marine hoses between 1986 and 2007. Bridgestone, Dunlop Oil & Marine/Continental, Trelleborg, Parker ITR and Manuli were all accused of violating bans on cartels and restrictive business practices in the EC Treaty (Article 81) and the EEA Agreement (Article 53).
Yokohama also participated in the cartel but was not fined because it revealed the existence of the cartel to the Commission. Manuli was granted a 30% reduction of its fine for its cooperation with the investigation under the Commission's leniency programme. The cartel members fixed prices for marine hoses, allocated bids and markets and exchanged commercially sensitive information.
The fines for Bridgestone and Parker ITR were increased by 30% because of their leadership of the cartel.
Competition Commissioner Neelie Kroes said: ‘For 20 years, this cartel added to the prices consumers paid for their oil deliveries. I will not tolerate illegal cartels and will continue to impose heavy fines on those companies found guilty of this kind of serious malpractice.’
Marine hoses are used to transport crude oil to and from ships for transportation from production sites.
The EC compeitition authorities have never really cared that much for the cozier ways of maritime commerce. Many liner conferences have the scars to show for it. No category of shipping or transport business is immune from the attentions of the authorities, as the classification societies also know.
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2. Michael Grey
To HQS Wellington near Temple Stairs we went to witness the ceremonials for the great maritime journalist Michael Grey, who is retiring from Lloyds List. Speeches from the current editor of the paper, the head of the IMO, the head of BIMCO and a titled person who once led the last great shipping company of these islands paid all due proper respect to an admirable and very likeable man. Also present, Mr Chris Hewer, a figure from Michael's time on Fairplay magazine, during the period when it was owned by the Financial Times (aka the pinkun), who like Michael set off many small boats onto the seas of maritime journalism in the form of columnists and specialist writers. Few if any of us will make our exits to quite the level of acclaim shown on Thursday last to Micahel Grey. Vale!
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Full Circle Marine and Transport
We provide Subscription or Primary Insurance Cover for the Intermodal and Marine Professional Professional Indemnity Markets
Security backing of Mitsui Sumitomo Insurance Underwriting at Lloyd's with an "AA" S&P rating
Deal with People you know and People who know You and your business. We enjoy working with our customers and we like working with each other!
Here are some contact details:-
Zareena.Hussain@FullCircleuw.com
Vincent.Egon@FullCircleuw.com
Humphrey.Hill@FullCircleuw.com
Sam Ignarski@FullCircleuw.com
Mike Foster@FullCircleuw.com
Sharon Duffy@FullCircleuw.com
Tel: +44 (0) 20 7100 0820
2nd Floor, 25 Lime Street, London EC3M 7HS
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To advertise to the 13,000 shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-
Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)
Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503
_________________________________________________________________________________
3. Through bills of lading in the United States subject to Carmack Amendment?
Our friend Dennis Bryant in the latest issue of his Haight's Maritme Items e-zine reports on a case ruling on the contentious matter of whether or COGSA applies to through bills:-
The US Court of Appeals for the Ninth Circuit ruled that the Carmack Amendment applies to goods shipped from overseas to an inland location in the United States under a through bill of lading covering both the oceanic and the rail portions of the transport. In the instant case, the goods were damaged when the train on which they were being carried derailed. When the shippers filed claims, defendants asserted that the dispute had to be litigated, if at all, in Tokyo as provided in the through bill of lading, which had incorporated the Carriage of Goods at Sea Act (COGSA). The shippers contended that the liberal forum selection provision of COGSA did not apply; rather, venue was restricted by the Carmack Amendment. The district court granted carriers’ motion to dismiss and the shippers appealed. Recognizing a split in the circuits, the appellate court reversed, holding that the Carmack Amendment applied in this case. The matter was remanded to the district court to determine whether there had been compliance with the applicable provisions of the Carmack Amendment. Note: This issue may now be ripe for the US Supreme Court. Regal-Beloit v. Kawasaki Kisen Kaisha, No. 06-56831 (9th Cir., February 4, 2009)
http://www.ca9.uscourts.gov/datastore/opinions/2009/02/04/0656831.pdf
http://www.hklaw.com/id49733/spotlight1/mpgid4720/
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There are still a significant number of sponsorship opportunities for firms wishing to provide case notes and/or a country summary from their jurisdiction on our Maritime Advocate Archive site. The firm of Snyder Mcgovern LLC in Palos Heights, IL has agreed to supply case notes of the US 7th Circuit and in Spain the firm of Blaz de Lezo Abogados in Vigo will be supplying case notes from the Spanish jurisdiction.
httt://www.avoarchive.com
Interested firms should contact the Publishers
ContactUs@AfterOfficeHours.com
Humphrey Hill +44 7785 111503
Sam Ignarski +44 7787 632503
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4. State of Washington Court takes traditional line on asbestos liability
The London Law e-letter published by our sponsors Lane Powell contains news of a decision by the Washington Supreme Court which it describes as adhering to traditional limitations to products liability claims. The court ruled:
that equipment manufacturers have no durty to warn of dangers posed by products they did not manufacture or sell.
On December 11, 2008, the Washington Supreme Court issued opinions in two asbestos cases that
presented the issue whether manufacturers of naval equipment, such as pumps, valves and evaporators,
owed a duty under common law products liability or negligence to warn of the dangers posed by
asbestos-containing insulation, gaskets and packing, materials they neither manufactured nor sold but that
were used in conjunction with their naval equipment.
Read more at:-
http://www.lanepowell.com/pdf/pubs/lmn_2009_0001.pdf
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5. Montreal Convention comes into effect down under
Although widely considered a different civilisation, where things are done differently, aviation is an area staying in touch with which many maritime lawyers are proud. We read in the newsletter prublished by DLA Phillips Fox in Sydney that the the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (the Act) came into effect in Australia on 24 January 2009, bringing Australian legislation up to date and in alignment with that now in place in much of the world.
The Act gives effect to the Convention for the Unification of Certain Rules for International Carriage by Air, created in Montreal 28 May 1999 (Montreal Convention).
Tto read more on the Act and its impact on carriers' liability and insurance click on the link below:-
http://www.dlaphillipsfox.com/content/upload/files/T&T_Bulletin_22_Jan_09_(U).pdf
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6. People and Places
Ian Baxter (FCILA, ACII) is joining loss adjuster Braemar Steege's Singapore office as a Director, effective 01Apr09
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Advice of the Week
Be kinder than necessary, for everyone you meet is fighting some kind of battle.
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Pregnancy Questions and Answers
Q: Should I have a baby after 35?
A: No, 35 children is enough.
Q : I'm two months pregnant now. When will my baby move?
A: With any luck, right after he finishes college.
Q : What is the most reliable method to determine a baby's sex?
A: Childbirth.
Q: My wife is five months pregnant and so moody that sometimes she's borderline irrational.
A: So what's your question?
Q : My childbirth instructor says it's not pain I'll feel during labour, but pressure. Is she right?
A: Yes, in the same way that a tornado might be called an air current.
Q: When is the best time to get an epidural?
A: Right after you find out you're pregnant.
Q : Is there any reason I have to be in the delivery room while my wife is in labour?
A: Not unless the word 'alimony' means anything to you.
Q: Is there anything I should avoid while recovering from childbirth?
A: Yes, pregnancy.
Q : Do I have to have a baby shower?
A: Not if you change the baby's diaper very quickly.
Q : Our baby was born last week. When will my wife begin to feel and act normal again?
A: When the kids are in college.
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Top ten things only women understand
10. Cats' facial expressions.
9. The need for the same style of shoes in different colours.
8. Why bean sprouts aren't just weeds.
7. Fat clothes.
6. Taking a car trip without trying to beat your best time.
5. The difference between beige, ecru, cream, off-white, and eggshell.
4. Cutting your hair to make it grow.
3. Eyelash curlers.
2. The inaccuracy of every bathroom scale ever made; and
1. Other Women
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True Love
A husband and wife are on the 9th green when suddenly she collapses from a heart attack! "Help me dear," she groans to her husband.
The husband calls 911 on his cell phone, talks for a few minutes, picks up his putter, and lines up his putt.
His wife raises her head off the green and stares at him. "I'm dying over here and you're putting?"
"Don't worry dear," says the husband calmly, "they found a doctoron the second hole and he's coming to help you."
"Well, how long will it take for him to get here?" she asks feebly.
"No time at all," says her husband. "Everybody's already agreed to let him play through."
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Thanks for Reading the Maritime Advocate online
Maritime Advocate Online - Issue 379
Issue 379 -
January 28th, 2009
Maritime Advocate Online is a weekly digest of news and views
on the maritime industries, with particular reference to dispute resolution.
_____________________________________________________________________________________
The Maritime Advocate online is published by:-
After Office Hours Ltd,
76 Florin Court
6-9 Charterhouse Square
London EC1M 6EY
IN THIS ISSUE
1. Punitive and Aggravated Damages
2. Restructuring and anti-trust case puts Horizon into red
3. Gard takes a hit
4. Contingency Fees now allowed in Spain
5. Wisconsin ruling on occurrence in asbestos lititgation
6. People and Places
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1. Punitive and Aggravated Damages
Gavin Magrath writing in the latest editon of Forwarderlaw, describes the background to the case of McDonald v Queen of the North (Ship), 2008 BCSC 1777. On 22 March 2006, the Queen of the North grounded on Gil Island in Wright Sound, approximately 135km south of Prince Rupert, British Columbia. Rescue efforts failed to recover a number of passengers, and the relatives of these unfortunate victims of the disaster brought claims against the defendant vessel, operators, and certain crewmembers.
These claims were brought under Canada’s Marine Liability Act, which incorporates articles 1-22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Section 6 of the MLA provides a right of action to named defendants for losses ‘resulting from’ the death of their relative, including loss of care and companionship. Art. 14 of the Athens Convention provides that no claim for loss may be brought other than in accordance with the Convention.
The Plaintiffs claimed for general damages, loss of care/companionship/services etc, and also for punitive and aggravated damages. Defendants admitted liability but applied to the Court for an Order striking the claims for punitive and aggravated damages as unrecoverable under the MLA. They argued that as s.6 of the MLA provides only for recovery of losses “resulting from death” the plaintiffs’ claims must be restricted to compensatory damages.
Punitive damages (sometimes called “exemplary damages”) are not compensatory, but serve to punish wrongdoers and act as a deterrent to others (see Hill v Church of Scientology, e.g.). The Court noted a number of authorities in which the analogous language at Art 17 of the Warsaw Convention was held to limit claims to compensatory damages (including the American case Re Air Disaster at Lockerbie Scotland). The Court also reviewed certain cases involving dependant claims brought under relevant family law legislation, which also (with one notable exception) restricted recovery to damages ‘resulting from’ the wrongful act and excluded recovery for punitive damages, which are not related to the loss sustained.
Aggravated damages, by contrast, are compensatory in nature and are awarded in cases where the oppressive conduct of the defendant increased the plaintiff’s humiliation, grief, fear, or similar mental distress. “They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.” (Hill v Scientology). Accordingly they are compensatory in nature, but non-pecuniary (e.g. not related to a quantifiable loss).
The Court was satisfied that, while compensatory in nature, aggravated damages would flow from the behaviour of the defendants, not from the death of the passenger, and were therefore not damages ‘resulting from’ the death of the passenger as required by s.6. The Court also reviewed the history of the development of fatal accidents legislation, noting that fatal accidents legislation had been introduced to remedy to provide a statutory right of action to dependants that would otherwise have no standing to bring any claim at all. While these statutes and their common law development had broadened the bases on which claims might be brought (including the identification of care and companionship as a compensable head of damages) at all times recoverable amounts were restricted to pecuniary damages. It is the loss of the services and support of the deceased, and not the grief caused by their loss, that is compensable at law.
In the result, the plaintiffs claims for punitive and aggravated damages arising out of the disaster were struck: such damages are not recoverable under the MLA or similar legislation.
McDonald v Queen of the North (Ship), 2008 BCSC 1777.
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2. Restructuring and anti-trust case puts Horizon into red
US domestic shipping company Horizon Lines reported a Q4 net loss of US$18.8m. This figure includes an impairment charge, restructuring charge and anti-trust related legal expenses totalling $32.4mn pre-tax. The company is considering scrapping one of its older vessels in response tot he economic slowdown.
Q4 revenue totalled $314.7m. Adjusted net profit, excluding these three items on an after tax basis, totalled $2.8m. For the same period in 2007, net income totalled $10.7 million, or $0.32 per diluted share, on revenue of $316.0 million.
“Our company faced an extremely challenging environment in the fourth quarter, but we performed well under the circumstances,” said Chuck Raymond, Chairman, President and Chief Executive Officer. “We generated adjusted free cash flow totalling $47.9 million, paid down $37.5 million in debt, and achieved adjusted EBITDA of $24.7 million for the quarter and $130.0 million for the year. We completed the quarter with adequate corporate liquidity and in compliance with our credit facility financial covenants.
“Volumes during the quarter were negatively impacted by the continued sharp downturn of our Hawaii market, and ongoing weakness in Puerto Rico, which is in its third year of recession,” Mr. Raymond said. “Partially offsetting this was a slight volume increase in our Alaska market and modest revenue per container increases across all of our trade lanes. The overall rate increase of 2.3%, net of fuel, was due in part to our focus on refrigerated and other higher-value cargo.”
“During the quarter, we embarked on a number of initiatives to reduce costs and conserve cash in order to remain well positioned in this uncertain economic environment,” Mr Raymond continued. “Among these actions, we reduced our non-union permanent, temporary and consultants workforce by more than 16%, which we expect will result in annualized cost savings of more than $11m. We also are evaluating scrapping one of our spare vessels, an action that could save approximately $700,000 in annual lay up costs and produce more than $1m in cash for the steel.”
“We believe that 2009 will be a very challenging year for the ocean transport industry,” Mr. Raymond said, “with the world economies likely sinking deeper into a recession and financial markets continuing in disarray. In light of this tremendous economic uncertainty and lack of visibility, we are temporarily suspending our practice of providing specific annual financial guidance until economic conditions stabilize and offer more clarity. We intend to re-evaluate this position at the end of the first quarter, when we hope to have a clearer look at the year.
“Nevertheless, we believe we are well positioned to meet the challenges of 2009, based on our operating and financial performance in a very challenging fourth quarter of 2008, and additional steps we have taken to eliminate expense and conserve cash,” Mr. Raymond continued. “Strategically, we enjoy long-standing relationships with the nation’s leading brand-name customers, serving as their vital supply link transporting basic goods between the US mainland and Alaska, Puerto Rico, Hawaii and Guam. Operationally, we continue to drive costs out of our organization while delivering service excellence for our customers. Financially, we remain properly capitalized, operating with adequate liquidity, within our financial covenants, and currently have no refinancing needs until 2012.” ( Anderimar Shipping News) To contact the editor click on the address below:-
david@anderimar.eclipse.co.uk
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Full Circle Marine and Transport
We provide Subscription or Primary Insurance Cover for the Intermodal and Marine Professional Professional Indemnity Markets
Security backing of Mitsui Sumitomo Insurance Underwriting at Lloyd's with an "AA" S&P rating
Deal with People you know and People who know You and your business. We enjoy working with our customers and we like working with each other! We have a new claims manager--Mike Foster.
Contact us at:
General@FullCircleuw.com
Tel: +44 (0) 20 7100 0820
2nd Floor, 25 Lime Street, London EC3M 7HS
-----------------------------------------------------------------------------------------------------------------
To advertise to the 13,000 shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-
Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)
Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503
_________________________________________________________________________________
3. Gard takes a hit
According to the P&I newsletter issued by AJ Gallagher, Gard has had its Standard & Poor's rating reaffirmed at A+. The Club's outlook was revised from stable to negative, reflecting significant unrealised investment losses incurred in past 3 months.
Consolidated Free Reserves (including Gard M&E) have fallen from $ 580 million to around $ 400 million at the time of the review.
Whilst it has not disclosed how much of this arose in the Club, and how much in the M&E subsidiary, it is understood that the subsidiary's position has been, in relative terms, hardest hit.
S&P states that it believes the Gard group will implement measures beyond future earnings to restore risk-adjusted capitalisation, over the short term, to a level more consistent with the ratings. This could mean an Excess call, or a Capitalisation issue similar to that seen in the summer at the UK Club. However the Club is not commenting at this stage. Reports of plans to sell its marine and energy subsidiary have been denied.
This level does not, as such, give rise to immediate concerns - although Gard is the only Club that could sustain such a heavy loss whilst remaining within its risk tolerances.
At an underwriting level the position at 20 August 2008 has improved somewhat - a consolidated 102% combined ratio was reported at the half year.
Bernard_Cook@ajg.com
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There are still a significant number of sponsorship opportunities for firms wishing to provide case notes and/or a country summary from their jurisdiction on our Maritime Advocate Archive site. The firm of Snyder Mcgovern LLC in Palos Heights, IL has agreed to supply case notes of the US 7th Circuit and in Spain the firm of Blaz de Lezo Abogados in Vigo will be supplying case notes from the Spanish jurisdiction.
httt://www.avoarchive.com
Interested firms should contact the Publishers
ContactUs@AfterOfficeHours.com
Humphrey Hill +44 7785 111503
Sam Ignarski +44 7787 632503
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4. Contingency Fees now allowed in Spain
The Supreme Court has found in favour of allowing contingency fees, also referred to as ‘no win no fee’ writes Alex Guillamont of the firm of Kennedys in the firm's Iberian and South American newsletter . Under this arrangement, lawyers accept to take on cases under a compromise of receiving no payment unless their clients recover something of value, which is then shared—usually on a percentage basis—between client and lawyer.
The Supreme Court has decided that the prohibition of contingency fee arrangements found in the Bar Code of Ethics is contrary to the principles of the Competition Act.
There is much debate over the pros and cons of contingency fees. What seems certain is that the number of court claims will increase. Over the past years we have seen a growing claims culture in Spanish society, and the allowance of contingency fees will certainly sustain this culture. We can expect to see a greater impact of this measure in both low quantum claims, where previously individuals did not usually issue claims fearing that proceedings costs would be higher than the claimed amount, and claims where irrespective of quantum there is a limited budget for legal costs.
The insurance sector has been prone traditionally to settle claims before they get to court due to there being a cost disincentive, particularly on the side of claimants to sue ahead. However contingency fees can have the contrary effect of incentivating litigation. Therefore, companies are expectant to see how the no win no fee system will impact claims.
However, potential users of the contingency fee arrangement must bear in mind, and so be reminded by their lawyers, that reckless litigants can be ordered by the court to pay their opponents’ legal costs.
a.guillamont@kennedys-law.com
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5. Wisconsin ruling on occurrence in asbestos lititgation
In the Cozen O'Connor Insurance Coverage Alert, William P. Shelley and Joseph A. Arnold report on the case of Plastics Engineering Co. v. Liberty Mutual Insurance Co, a decision of the Wisonsin Supreme Court, the latest weigh in on the obligations of liability insurers for underlying asbestos bodily injury claims. The Court ruled that les ach asbestos claimant's exposure constitutes a separate occurrence and it also adopted and 'all sums' approach to the allocation of defense costs allocation."
Read the full note at:-
http://www.cozen.com/cozendocs/outgoing/alerts/2009/inscov013009.pdf
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6. People and Places
We are sorry to learn of the death of Amir Sussman of Clyde&Co who collapsed and died on 22nd January 2009. Amir joined Clyde & Co's London office in 1990, having served as a public prosecutor in his native Israel. As part of his early legal training he spent time at the Max Planck Insititute for Public International Law in Heidelberg. His father had been one of the outstanding judges during the early years of the State of Israel, becoming President of the Supreme Court in 1976. Amir requalified as an English Solicitor in 1992, specialising initially on subrogated cargo claims, particularly for the German Market. In recent years, Amir developed close links with the insurance and shipping industries in Russia and the Ukraine making many friends and developing close business relationships.
Outside work, Amir was widely read, a cultured man with interests in history and languages. He built bridges with people wherever he went. He was also a great family man and leaves behind his wife Amelia and three sons, Roy, Alexander and Tom, to whom he was devoted.
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Saying of the Day
If there were no bad people, there would be no good lawyers.
-Charles Dickens (1812 - 1870)
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The Bar Bet
Bill and Gary are in a bar one evening. "I'll bet you a dollar," Bill says, "that if you give me two dollars I'll give you three dollars."
"Deal!" Gary replies, sensing a quick profit. He puts two dollars on the bar between them.
Bill says, "I lose," returns one dollar, and pockets the other. He tipped his hat, and left.
(And left his tab for Gary, while he was at it!)
Bill went on to found a successful software company and became very rich.
Gary never left the bar, let his operating system lapse into obsolescence, and died a bitter alcoholic.
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The Tax man writeth
Dear Mr Addison,
I am writing to you to express our thanks for your more than prompt reply to our latest communication, and also to answer some of the points you raise.
I will address them, as ever, in order.
Firstly, I must take issue with your description of our last as a "begging letter". It might perhaps more properly be referred to as a "tax demand". This is how we, at the Inland Revenue have always, for reasons of accuracy; traditionally referred to such documents.
Secondly, your frustration at our adding to the "endless stream of crapulent whining and panhandling vomited daily through the letterbox on to the doormat" has been noted. However, whilst I have naturally not seen the other letters to which you refer I would cautiously suggest that their being from "pauper councils, Lombardy pirate banking houses and pissant gas-mongerers" might indicate that your decision to "file them next to the toilet in case of emergencies is at best a little ill-advised.
In common with my own organisation, it is unlikely that the senders of these letters do see you as a "lackwit bumpkin or, come to that, a "sodding charity". More likely they see you as a citizen of Great Britain, with a responsibility to contribute to the upkeep of the nation as a whole.
Which brings me to my next point. Whilst there may be some spirit of truth in your assertion that the taxes you pay "go to shore up the canker-blighted, toppling folly that is the Public Services", a moment's rudimentary calculation ought to disabuse you of the notion that the government in any way expects you to "stump up for the whole damned party" yourself. The estimates you provide for the Chancellor's disbursement of the funds levied by taxation, whilst colourful, are, in fairness, a little off the mark. Less than you seem to imagine is spent on "junkets for Bunterish lickspittles" and "dancing whores" whilst far more than you have accounted for is allocated to, for example, "that box-ticking facade of a university system."
A couple of technical points arising from direct queries:
1. The reason we don't simply write "Muggins" on the envelope has to do with the vagaries of the postal system;
2. You can rest assured that "sucking the very marrows of those with nothing else to give" has never been considered as a practice because even if the Personal Allowance didn't render it irrelevant, the sheer medical logistics involved would make it financially unviable.
I trust this has helped. In the meantime, whilst I would not in any way wish to influence your decision one way or the other, I ought to point out that even if you did choose to "give the whole foul jamboree up and go and live in India" you would still owe us the money. Please forward it by Friday.
Yours Sincerely,
H J Lee Customer Relations
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Murphy's Love Laws
All the good ones are taken.
If the person isn't taken, there's a reason. (corr. to 1)
The nicer someone is, the farther away (s)he is from you.
Brains x Beauty x Availability = Constant.
The amount of love someone feels for you is inversely proportional to how much you love them.
Money can't buy love, but it sure gets you a great bargaining position.
The best things in the world are free --- and worth every penny of it.
Every kind action has a not-so-kind reaction.
Nice guys(girls) finish last.
If it seems too good to be true, it probably is.
Availability is a function of time. The minute you get interested is the minute they find someone else.
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Thanks for Reading the Maritime Advocate online
Maritime Advocate Online - Issue 378
Issue 378 -
January 23rd, 2009
Maritime Advocate Online is a weekly digest of news and views
on the maritime industries, with particular reference to dispute resolution.
_____________________________________________________________________________________
The Maritime Advocate online is published by:-
After Office Hours Ltd,
76 Florin Court
6-9 Charterhouse Square
London EC1M 6EY
IN THIS ISSUE
1. Volatility Rules OK?
2. Chambre Arbitrale Maritime de Paris
3. Notice of Readiness
4. The Arbitrator
5. Devil's dictionary
6. People and Places
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1. Volatility Rules OK?
Your editor's rumination of the day was fixed by the news feed in from the Insurance Insider, edited by the capable Peter Hastie which read as follows:-
"Swiss Re has led the slide in European insurance stocks today as its share price fell more than 20 percent amid concerns that it is set for a further round of heavy writedowns when it reports its fourth quarter 2008 figures next month.
Today's movement adds to a precipitous drop this week that has seen the reinsurance giant's share price slump 43 percent from last Friday's close of SFr46.32 to SFr26.38 at the time of writing."
Standing at the top of many of the world's insurance pryamids, Swiss Re is, it is said in the inns and taverns around Lime Street, very possibly up to its axles in the same mire as many another financial institution this January. Was it really only last April that the giant's shares were going for SFr90 a pop?
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2. Chambre Arbitrale Maritime de Paris
Philippe Delebecque the President, has sent in a link to the eighteenth and latest issue of the free internet newsletter of the 'Chambre Arbitrale Maritime de Paris' (Maritime Arbitration Chamber of Paris).
This issue contains a link at page 2 which allows readers to download abstracts in English of some recent awards.
To download the "Gazette de la Chambre", follow the link below :
http://www.arbitrage-maritime.org/cpt_download.php?file=gazette18.pdf
_____________________________________________________________________________________
To advertise to the 13,000 shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-
Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)
Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503
_____________________________________________________________________________________
3. Notice of Readiness
David Martin Clark has noted up a judgment of the English High Court, Queen’s Bench Division, Commercial Court Ocean Pride Maritime LP v Qingdao Ocean Shipping Co (The “Northgate”). Under a charterparty that provided that a valid notice of readiness could only be given at theinner anchorage at the port of loading if space was available at the inner anchorage upon the vessel’s arrival, the court held that, on the particular wording of the charter and the circumstances of the case inquestion, the loading terminal had, by accepting a notice sent whenthe ship was only at the outer anchorage, even though space was available at the inner anchorage on arrival, waived the charterer’s right to reject the notice as invalid.
The case note has been contributed by Jim Leighton Note BSc (Hons), LLB (Hons), LLM (Maritime Law), Trainee Solicitor and International Contributor to DMC’s CaseNotes. In commenting on the Acceptance,
Waiver & Estoppel issues in the case he says:-
”The judge has taken a rather pragmatic and commercial view of thecircumstances, based on the structure of the NOR provisions of the charter, in order to place the risk of acceptance of an invalid NOR on the Charterer. Such an approach can be justified on the practical grounds that the Charterer, who was privy to the NOR mmunication
could, at any time, have intervened in the process in order to protectits position and avoid a false impression been given to the Shipowner. Had the NOR been promptly challenged, the Shipowner would, as the judge identified, have simply moved the vessel to the inner anchorageand reissued the NOR in order to avoid the risk of laytime failing tocommence. That said, the judgment very much appears to revolve around the charter being silent on identifying the party to whom NOR was to be given for acceptance or rejection, so it may not be one of general
application to other charters.”
Access the case note at:-
http://www.onlinedmc.co.uk/OceanPride%20v%20QingdaoOcean.htm
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There are still a significant number of sponsorship opportunities for firms wishing to provide case notes and/or a country summary from their jurisdiction on our Maritime Advocate Archive site. The firm of Snyder Mcgovern LLC in Palos Heights, IL has agreed to supply case notes of the US 7th Circuit and in Spain the firm of Blaz de Lezo Abogados in Vigo will be supplying case notes from the Spanish jurisdiction.
http://www.avoarchive.com
Interested firms should contact the Publishers
ContactUs@AfterOfficeHours.com
Humphrey Hill +44 7785 111503
Sam Ignarski +44 7787 632503
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4. The Arbitrator
The latest edition of the Arbitrator, published by the Society of Maritime Arbitrators Inc contains strong items on how to irritate the various parties to arbitration, interesting (published) case notes and Old Hewers Almanac and Predictions for 2009 . Here is a sample extract:-
June: Law firms everywhere announce that they no longer require all correspondence to be sent and received in
triplicate - by post, fax and email.A spokesperson for the IBA, or possibly the ABI, says, “Werealise that most people these days have both letterboxes and fax machines. So we are dropping the requirement to send correspondence by email, as most lawyers do not have email, and those that do have no idea how to use it. As for attaching a document, you may as well ask the cat.”
http://www.smany.org/sma/pdf/Vol40_No2_Jan2009.pdf
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5. Devil's dictionary
THE insurance team at international accountant and consultant Moore Stephens has reached the letter 'R' in its devil's dictionary of accountancy terms. In the latest issue of its Insured Interest newsletter, it looks at Regulation, ascribing to the term the textbook definition of, "A set of rules designed to control the conduct of those to whom they apply."
In its alternative definition, meanwhile, it explains, "For the insurance industry, regulation is the new laissez faire. It started with Lloyd's, a coffee shop which made its fortune insuring Betty Grable's legs. In the old days - after bowler hats but before women - life was just a bowl of cherries. You could walk into the underwriting room at Lloyd's, ask a redcoat to call out 'Willis Faber Probyn' in a loud voice, and ten minutes later you had a ten per cent scratch on the most rotten old slip in the world, with cufflinks your only security. Not any more.
"In the 1980s, a combination of asbestosis and Sir Peter Green ushered in the new era of regulation which today extends to all parts of the UK insurance industry and some parts of East Anglia. Space and inclination prevent us from going into these in any detail whatsoever.
"There are those who claim that the insurance industry is a healthier place thanks to regulation. But others maintain that regulation has ruined the business. Underwriters must now have enough money in the bank to cover their losses. Brokers have to treat customers fairly (what's THAT all about?). Claims fraud is generally frowned upon. City lunches have been pegged back to four hours, tops.
"Forty years ago, a decent length of made-to-measure suiting on easy terms from John Collier and an aptitude for playing off-spin were pretty much all you needed to break into one of the top City broking houses. Now, you have to show that you know how to embed TCF procedures into the firm's business model.
"Terms and conditions apply."
http://www.moorestephens.co.uk
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6. People and Places
After being detained for more than a year by the South Korean authorities over an oil-spill for which they were not responsible, Captain Jasprit Chawla and Chief Officer Syam Chetan have been released on bail of $10,000 each pending a final decision from the Supreme Court.
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Guillem Permanyer has joined the firm of Blas de Lezo in Barcelona
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Connubial Saying of the Week
"I've had bad luck with both my wives. The first one left me and the second one didn't."
Patrick Murray (1956- )
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Affordable Drinking
The bartender asks the guy sitting at the bar, "What'll you have?"
The guy answers, "A Scotch, please."
The bartender hands him the drink, and says, "That'll be five dollars,."
To which the guy replies, "What are you talking about? I don't owe you anything for this."
A lawyer, sitting nearby and overhearing the conversation, then says to the bartender, "You know, he's got you there. In the original offer, which constitutes a binding contract
upon acceptance, there was no stipulation of remuneration."
The bartender was not impressed, but says to the guy, "Okay, you beat me for a drink. But don't ever let me catch you in here again."
The next day, same guy walks into the bar.
Bartender says, "What the heck are you doing in here? I can't believe you've got the audacity to come back!"
The guy says, "What are you talking about? I've never been in this place in my life!"
The bartender replies, "I'm very sorry, but this is uncanny. You must have a double."
To which the guy replies, "Thank you. Make it a Scotch."
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Reasons for the encouragement of on the job drinking
1. It's an incentive to show up.
2. It reduces stress.
3. It leads to more honest communications.
4. It reduces complaints about low pay.
5. It cuts down on time off because you can cure hangovers, from the night before, with another drink.
6. Employees tell management what they think, not what management wants to hear.
7. It helps save on heating costs in the winter.
8. It encourages carpooling.
9. Increases job satisfaction because if you have a bad job you don't care.
10. It eliminates vacations because people would rather come to work.
11. It makes fellow employees look better.
12. It makes the cafeteria food taste better.
13. Bosses are more likely to hand out raises when they are wasted.
14. Salary negotiations are a lot more profitable.
15. Suddenly, farting during a meeting isn't so embarrassing.
16. No one will remember your strip act at the Christmas Party.
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Drinking downside
A well off young man was moving from one house to another, a few streets away. Observing with dismay the care-free way in which the moving crew yanked his cherished antiques about, he was filled with a desire to save from possible damages a tall grandfather's clock which he prized highly.
Taking the clock in his arms he started for the new house. But the clock was as tall as its owner, and heavy besides, and he had to put it down every few feet and rest his arms and mop his streaming brow. Then he would clutch his burden and stagger on again.
After half an hour of these strenuous exertions he was nearing his destination, when an intoxicated person who had been watching his labors from the opposite side of the road took advantage of a halt to hail him.
"Mister," he said thickly, "could I ash you a quest'n?"
"What is it?" demanded the exhausted young man.
"Why on earth don't you carry a watch?"
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Thanks for Reading the Maritime Advocate online
Maritime Advocate Online - Issue 373
Issue 373 - November 19th, 2008
Maritime Advocate Online is a weekly digest of news and views
on the maritime industries, with particular reference to dispute resolution.
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The Maritime Advocate online is published by:-
After Office Hours Ltd,
76 Florin Court
6-9 Charterhouse Square
London EC1M 6EY
IN THIS ISSUE
1. IBF speaks out on Hebei Spirit treatment
2. American Club announces increases
3. English Case clears up law on asbestosis and EL
4. Drunken master sent to jail
5. Electronic Discovery in the US
6. People and Places
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1. IBF speaks out on Hebei Spirit treatment
The latest edition of Tanker Operator eidted by Ian Cochrane is full of artices related to the piracy crisis in the Gulf of Aden. But it leads with the efforts to secure fair treatment to the officers of the Hebei Spirit:-
The International Bargaining Forum (IBF) has condemned the treatment of the VLCC ‘Hebei Spirit’ officers detained in South Korea. The organisation has pledged that its members would do all they can to secure their release. Meeting in Hong Kong this week, the IBF spoke out on the plight of Captain Jasprit Chawla and Chief Officer Syam Chetan.
The two men have been refused permission to return home even though they were acquitted by a South Korean Court under article 325 of the Criminal Procedure Act of South Korea and cleared of all charges of violating the nation’s anti-pollution laws when a passing mobile craft collided with their ship last December. The IBF stated that since the collision and the ensuing oil spill cannot be attributed to any negligence on their part and since they have already been proven innocent under South Korean law, the treatment of them is unlawful and unjust, and in contravention of their human rights.
ITF maritime co-ordinator Stephen Cotton said: “Captain Chawla and Chief Officer Chetan have been found innocent of causing last December's spill, they have been held for nearly a year and now they are being effectively punished further on a virtual non-charge. The treatment of these men has been repudiated by us, by the shipping industry, by seafarers' unions and by the Indian Government, all of whom have petitioned the Korean Government and courts for their release. All of us are aware of the effect the oil spill had on those who live and work in the area, but picking on these two officers will not lessen the damage.”
Elsewhere, a blog has been created to gather opinions, views, questions, comments from the industry at large in the hope that their views will reach the right people in authority, in South Korea and ensure a fair and level playing field for innocent seafarers caught up in local politics.
(All well and good--the sponsors of the blog seem to us be in violation of one of the rules of good blogging which is to present a strong and identifiable editorial aegis-ed)
The blog can be accessed at:-
http://justiceforhebeispirit.blogspot.com
http://www.tankeroperator.com/news/todisplaynews.asp?NewsID=854
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2. American Club announces increases
Robert Belli, the Aon P&I man writes:-
The American Club have announced unbudgeted supplementary calls as well as an innovative 2009 premium requirement. Whilst they cite the unprecedented state of the global economy as a clear negative driver they report a better than expected investment return in comparison to some of their peers in the Group. This is due to a generally derisked strategy with funds predominately held in fixed income securities and cash. They also report an improving underwriting performance and a better than expected claims trend. Despite these positive elements the Club does need to generate additional funds to meet and exceed statutory and GAAP required surpluses of around $40m.
The Board has explored alternative funding mechanisms including subordinated debt but have concluded that a cash call is preferable. Thus they announce an additional Supplementary Call for the 2007 year of 25% of Advance Call premium and 25% of Advance Call for the 2008 year.
Because of their stated favourable trends the Club have decided to require a modest increase in Advance Call rating of 7.5%. However they also announce a 20% supplementary call for the year which in real terms increases the Estimated Total Cost for 2009 to 29%. As the majority of this amount is by way of supplementary premium it is thus non-negotiable in the event it is actually called. As in past years the increase does not include any changes to the International Group's Reinsurance programme.
http://www.american-club.com/
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3. English Case clears up law on asbestosis and EL
The firm of Reed Smith has reported on the results in the case of Durham vs BAI and Others, a ruling in the High Court relating to the liability of employer's liability insurers.
The judgment in the High Court means that employees - including thousands damaged by unwitting exposure to asbestos many years ago - can claim against the employers' historic insurers, even though there is no exact proof of when life-threatening tumours develop.
The ruling removes the confusion and doubt surrounding the issue since a Court of Appeal decision in 2006 - the Bolton decision - created an apparent get-out for some insurers faced with massive liabilities from claims going back several decades. The plaintiff's exposure arose from its acquisition, over the years, of other businesses, which had historic associations with asbestos. Such companies had paid their insurance premiums believing they had cover for claims, which have an average value of around L150,000, but suddenly found themselves with potentially huge liabilities that had to come straight off the bottom line.
.
Reed Smith says the High Court decision is a legal landmark, which clarifies the grey area, which emerged following the Bolton decision, since when a number of insurers have refused to pay out on many asbestos-related cases. Prior to Bolton the law had always been interpreted in a way that meant an employee with mesothelioma need only prove exposure to an asbestos contaminated workplace to succeed with a claim for compensation.
Bolton threw that convention into confusion. The case - involving rival insurance firms - revolved around public liability insurance, which, unlike employers liability insurance, is not compulsory.
The court had to decide whether claimants were injured when they first inhaled asbestos, or at the time the slow-growing tumours actually developed - on average ten years before the symptoms became obvious and the disease could be diagnosed.
The court in Bolton ruled that injury from mesothelioma occurred when the tumour developed rather than when exposure occurred. The effect of this was that a later insurer became liable to pay. The High Court has now ruled that although claims brought under public liability insurance are governed by the Bolton 2006 decision, employers' liability claims should be treated as they have always been, and that mere exposure to asbestos is sufficient to generate a legitimate claim.Those historic insurers whose employers' liability policies had a similar wording to that in the Bolton case should now fund the claims they have declined since 2006, and all future claims.
http://www.reedsmith.com/press_office.cfm
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4. Drunken master sent to jail
The UK's Maritime and Coastguard Agency (MCA) reported this week the conviction of Captain Gonchar Volodymyr a Ukrainian aged 53, the master of the Cypriot registered chemical tanker Elousa Trikoukiotisa which was bound for London from Rostock with a cargo of Ammonium Nitrate in liquid form. He was sentenced to two months in jail after pleading guilty to serving as master of an underway vessel while intoxicated. He will be deported upon completion of his sentence.
http://www.mcga.gov.uk/c4mca/mcga07-home/newsandpublications/press-releases.htm?id=4DDB29AD9BDE2786&m=11&y=2008
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5. Electronic Discovery in the US
The IUA has arranged a market briefing on the subject of Electronic Discovery in the U.S -- What Insurers and Reinsurers Need to Know -- conducted by Michael P. Thompson Partner of Edwards Angell Palmer & Dodge, LLP on Wednesday 3rd December 2008 in London.
In many ways, the technical aspects of electronic document production are still not well understood. These technical complexities often take litigators by surprise, increasing the costs of discovery and frequently leading to sanctions and other adverse consequences. This market briefing will update last year'sl event providing a review of recent decisions surrounding electronic discovery prepared for the insurance/reinsurance professional with exposure to these issues in the United States. The briefing will also consider the scope and potential application of U.S. rules on electronic claims files in the London market, discussing the importance of electronic data as evidence in litigation that has given rise both to a body of evolving case law in this area, and a parallel increase in the obligations of litigants and their outside counsel to ensure compliance with these new obligations.
For further details contact:-
deborah.finch@iua.co.uk
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6. People and Places
Mr. Vikas Bakshi, the head of the Japan desk at FoxMandal Little in New Dehli has organised ‘The Zenko-ji Shonin in India, The Exhibition of Buddhist Treasures from Japan’ at The National Museum in New Delhi, India for a period of one month commencing 11 November 2008.
An over 1400-year-old statue of Buddha - the only one to be made while he was still alive - has returned to India after spending centuries in its adopted country Japan.
vikas.bakshi@foxmandallittle.com
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Inchcape Shipping Services North America has completed an asset purchase in the USA of Coal Export Services International (CESI). This business was founded in 1982 as a cargo agency to facilitate shipments of coal from US ports to overseas buyers. In 1993 the business was expanded into Colombia and Venezuela.
Tim Cahill, the founder and former president has been retained to assist with the business on a consultancy basis.
Dan Thompson who joined the company in 1993 will remain as Chief Operating Officer working closely with Chuck Carmichael, ISS VP East Coast, to develop new accounts, territories and synergies within the ISS network.
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Thanks for Reading the Maritime Advocate online