14th IISTL Colloquium on New Technologies and Shipping/Trade Law

 

                                       sponsored by                   

The Institute’s 14th Annual Colloquium will be held on 10-11 September 2018. The subject of this year’s event is new technologies and their present and future effect on shipping and trade law.

14th IISTL Colloquium

As evidenced elsewhere in commercial law, technological advancement shows an ever-accelerating influence on shipping and trade law and practice. One instance is the use of blockchain technology to supplant paper: shipping companies love the idea, but recent legal authorities confirm that under traditional legal principles it could have hazardous consequences for carriers, insurers, banks and others.

AI is expected to have significant impact not only in litigation, but also in the context of underwriting and claims handling. As well as this, it will be key in more-or-less autonomous craft controlled by sensors and technological devices, and in increasingly automated port handling procedures.

The objective of this year’s Colloquium is to consider the impact of these new technologies. It aims to home in on emerging issues and unresolved questions, especially about existing liabilities and new ones that may emerge. The discussion will range over national, international, and EU dimensions. As ever with Swansea colloquiums, this event will be led by top-class professional and academic experts.

Topics of Discussion

The topics discussed will be varied, but we envisage they will include:

  • Smart contracts in shipping
  • The use of blockchain technology
  • Electronic signature
  • Electronic (mis)delivery
  • Smart ports
  • Smart containers
  • Smart ships
  • AUVs and other mobile assets in maritime law
  • Technological IP in the oil and gas sector
  • Legal tech- shipping litigation and disclosure

Speakers and Chairpersons

The speakers and chairpersons of the colloquium, we expect will include:

  •  Lord Justice Gross, Court of Appeal, UK
    · Professor Simon Baughen, IISTL, Swansea University, UK
    · Simon Cooper, Partner, Ince & Co, London, UK
    · Paul Dean, Senior Partner, HFW, London, UK
    · Grant Hunter, Head of Contracts & Clauses, BIMCO, Copenhagen, Denmark
    · Professor Francesco Munari, University of Genoa, Italy
    · Associate Professor George Leloudas, IISTL, Swansea University, UK
    · Peter Macdonald-Eggers QC, 7 King’s Bench Walk, London, UK
    · Simon Rainey QC, Quadrant Chambers, London, UK
    · Erik Røsæg, Scandinavian Institute of Maritime Law, Oslo University, Norway
    · Dr Frank Stevens, Erasmus University, The Netherlands
    · Professor Michael Sturley, University of Texas, USA
    · Professor Barış Soyer, Director, IITSL, Swansea University, UK
    · Professor Andrew Tettenborn, IISTL, Swansea University, UK
    · Professor Erik van Hooydonk, Ghent University, Belgium

Registration and additional information

The Colloquium proper commences on Monday 10 September with registration at 8.30am sharp; a welcome buffet will, however, be available to delegates arriving on the previous evening of Sunday 9 September. A dinner will take place on the evening of Monday 10 September at Sketty Hall, an eighteenth-century mansion previously owned by the Baring family and to this day probably the finest building in Swansea.

Accommodation is available on campus during the event: in addition, there will be no difficulty in arranging an extended stay for those who would like to remain longer (it is worth remembering that the Gower Peninsula, the UK’s first designated Area of Outstanding Natural Beauty, is just a stone’s throw away).

For those who prefer, there are also a number of good hotels in town, notably the Dragon Hotel, tel: 01792 657100, and the Marriott Hotel, tel: 01792 642020. Please note, however, that the organisers cannot take responsibility for booking accommodation off campus.

The closing date for registration is 31 August 2018. We will of course try to accommodate those applying after that date, but can make no guarantees in that respect. More detailed information and joining instructions will be sent to delegates on registration.

To register for this event, please visit our Eventbrite page.

 

Should you have any further queries please direct your email to Ms Stella Kounakoustyliani.kounakou@swansea.ac.uk
 
We are looking forward to seeing you at Swansea. 
 

 

No direct liability in tort for UK parent company. Third ‘anchor defendant’ decision in the Court of Appeal.

 

AAA v Unilever [2018] EWCA Civ 1532 is the third Court of Appeal decision in the trio of anchor defendant cases (the others being Lungowe v Vedanta and Okpabi v Royal Dutch Shell) that came before the courts last year raising the issue of when a parent company owes a duty of care to persons affected by the activities of its overseas subsidiary. The claimants were workers on a tea plantation in Kenyan who had suffered from criminal acts following the violence that followed the 2007 elections, which was on tribal lines. The issue was whether the parent company and the subsidiary owed a duty of care to people on the estate to protect them from unlawful violence. The claimants conceded that Kenyan law applied but it was accepted that English law was very persuasive in Kenya and Kenyan law would follow English law on the imposition of a duty of care on the parent company. Elizabeth Laing J admitted the possibility of a duty of care being owed by the parent company but the claim foundered on the issue of foreseeability of the type of harm suffered by the claimants.

Last week the Court of Appeal dismissed the claimant’s appeal on the grounds that there was no arguable case that the parent company owed a duty of care to the claimants. Sales LJ, giving the judgment of the Court, held that a parent company could owe a direct duty of care to those affected by the activities of its subsidiary in two situations: (i) where the parent has in substance taken over the management of the relevant activity of the subsidiary in place of, or jointly with, the subsidiary’s own management; or (ii) where the parent has given relevant advice to the subsidiary about how it should manage a particular risk.

The appellants accepted that they could not say that their claim was within the first category as the management of the affairs of Unilever’s Kenyan subsidiary, UTKL, was conducted by the management of UTKL. Instead, they sought to bring their claim within the second category, relying upon advice which they say was given by Unilever to UTKL in relation to the management of risk in respect of political unrest and violence in Kenya.  However, the witness evidence and the documentary evidence, showed that UTKL did not receive relevant advice from Unilever in relation to such matters, and that UTKL understood that it was responsible itself for devising its own risk management policy and for handling the severe crisis which arose in late 2007, and that it did so.

So far, the three anchor defendant cases on whether a parent company owes a duty of care in respect of the activities of its subsidiary company have seen two decisions against the claimants, and one Vedanta v Lungowe in their favour. In Vedanta  permission to appeal to the Supreme Court was granted on 23 March 2018, and in Okpabi the claimants have stated their intent to apply for permission to appeal to the Supreme Court. We are likely to see a lot more on this question in the coming months.

 

 

Assignee’s right to damages for cargo claim. Title to sue is not the whole story.

 

In making a cargo claim, a party’s title to sue is separate to the question of whether it has suffered loss and is thus entitled to substantial damages. The issue arose in The Fehn Heaven [2018] EWHC 1606 (Comm) where charterers loaded a cargo of organic sunflower seeds and organic wheat, carried under two straight bills of lading which named Justorganic, as consignee. At some stage in the voyage the cargo had to be fumigated and as a consequence it could no longer be sold as organic. Charterers had to discount the price to their two Dutch buyers and sought to recover the amount of the discounts from the shipowner. They claimed in arbitration against the shipowner either as assignees of the consignee’s rights under the bills of lading or in their own right under the charterparty.

The tribunal awarded the charterers damages and found that charterers had title to sue, as assignee of the consignee’s rights under the bill of lading. However, the tribunal  made no express finding that Justorganic, the assignor, had suffered loss. This was a critical absence in the award because of the principle that an assignee could not recover more from the debtor than the assignor could have done had there been no assignment.(Chitty on Contracts (32nd edition at paragraph 19-075). The award could not be upheld on the alternative basis of charterers’ claim, that they had a right to recover their losses under the charterparty, as it was clear that the tribunal had decided that charterers’  title to sue was based on the assignment rather than on the charterparty. Owners’ appeal, therefore, succeeded and the matter was remitted to the tribunal.

Stuck in the middle with you.  Back to back time bar clauses in chain of charters.

 

 

P v Q, Q v R, R v S [2018] EWHC 1399 (Comm) involved three voyage charters in the middle of a lengthy chain, between P and Q, Q and R, and R and S. Each contained the same time bar clause barring all claims if arbitration was not commenced within thirteen months of final discharge. Final discharge was on 16 October 2015 and  in September 2016 cargo claims were made against the owners and duly passed down the chain. On 16 November 2016 after their office had closed, P received notification of the appointment of an arbitrator by their disponent owner, Sinochart. By the time they became aware of this on 17 November, the thirteen month time limit in their charter with Q had expired.  P notified Q and appointed an arbitrator on 30 November. Q then contacted R and appointed  their arbitrator on 17 November, with R doing likewise to S, appointing their arbitrator on 1 December.

The notices of arbitration down the three charter chain from P to S were all out of time. However, P argued there had to be an implicit limitation on the literal meaning of the arbitration clause C so that the time bar would not apply where it was impossible for a claim to be passed on within the stipulated time because the recipient of a notice of claim was unaware of the claim or receipt of a notice thereof, or where, at the expiration of the time limit, no dispute existed that could be made the subject of a commencement of arbitration.  A similar argument had been raised, and rejected, in  The Himmerland [1965] 2 Lloyd’s Rep 353 and in The Stephanos [1989] 1 Lloyd’s Rep 506  in which it had been held that the three month Centrocon arbitration clause should be given a literal construction, so that claims or disputes that had not even arisen within the stipulated period were nonetheless time-barred. Sir Richard Field, acting as a judge of the High Court, did likewise, noting that the words in the arbitration clauses were clear and ambiguous and should be given the same construction as was given in the Centrocon cases.

Time could be extended under s.12 of the Arbitration Act 1996 if it were just, but the applicant would need to have acted expeditiously and in a commercially appropriate fashion to commence proceedings once it became aware that a claim was being made against the applicant under the charterparty above or below in the chain.  Q had done so by appointing their arbitrator on 17 November, and were granted an  extension but this was not the case with P who had appointed  their arbitrator on 25 November, nor with R who had appointed their arbitrator on 1 December.

 

 

Misdelivery claims and the Hague Rules time limit.

 

 

The Alhani (Deep Sea Maritime Ltd v Monjasa A/S) [2018] EWHC 1495 (Comm), 15 June 2018,  deals with two important issues relating to the scope of one year Hague Rules time limit. First, does it apply to a misdelivery claim? Second, if so, what is the effect of commencing proceedings within the one year limit in a foreign jurisdiction, in breach of an exclusive jurisdiction clause in favour of the English High Court?

The case involved a bill of lading for the carriage of bunker fuel for Lome, Togo, to Cotonou, Benin. The bill was subject to the Hague Rules and  incorporated the terms of a charter in terms that were sufficient to incorporate its exclusive English jurisdiction clause. In November 2011 the cargo was discharge through a ship-to-ship transfer into another vessel, without production of the bill. Proceedings were commenced in Tunisia with the vessel’s arrest in April 2012. The Tunisian court subsequently dismissed the claim for want of jurisdiction. At the time of the hearing there was a pending appeal  to the Court of Cassation against the dismissal.  In February 2017 owners sought a declaration of non-liability in the English High Court and shortly afterwards, and well outside the one year limit, the claimant commenced proceedings against the owner in the English High Court.

On the first issue, David Foxton QC, acting as a judge of the High Court, held that the one year time bar will nonetheless apply provided the misdelivery took place within the temporal scope of the Hague Rules, from the start of loading to the completion of discharge. This was the case here where the delivery had occurred with the discharge of the cargo. Although it was debatable whether the Hague Rules imposed any obligation on the carrier with regard to delivery, Article III Rule 6 was not limited to breaches of the Hague Rules, and also covered breaches of the carrier’s obligations which take place during the period of Hague Rules responsibility, and which have a sufficient nexus with identifiable goods carried or to be carried. The position would be the same under the Hague-Visby Rules

On the second issue, he held that the commencement of suit in Tunisia, in breach of the exclusive jurisdiction clause, could not be relied upon by the claimant as the bringing of suit for the purposes of Article III Rule 6 in other proceedings commenced outside the one year period. However, for reasons of comity, he was not prepared to grant a declaration as to whether the Tunisian proceedings were time barred.

 

 

 

 

BIMCO Piracy Clause (2009) and duty to proceed with due despatch

 

 

In London Arbitration 13/18 the vessel was time chartered under a charter on NYPE form which incorporated the BIMCO Piracy Clause for Time Charter Parties (March 2009). This provides:.

(c) If the Owners consent or if the Vessel proceeds to or through an area exposed to risk of piracy the Owners shall have the liberty:

(i) to take reasonable preventive measures to protect the vessel, her crew and cargo including but not limited to taking a reasonable alternative route, proceeding in convoy, using escorts, avoiding day or night navigation, adjusting speed or course, or engaging security personnel or equipment on or about the vessel,

 

Owners employed armed guards and purchased additional security equipment when proceeding through an area exposed to risk of piracy, in this case the Gulf of Aden. Charterers contended that the options in paragraph (c)(ii) of the Piracy Clause were disjunctive so that owners could not recover both costs. The Tribunal disagreed and held that the clause made it clear that the owners were not so limited and could recover both costs. However, owners’ liberty to take ‘reasonable preventive measures’ did not justify their decision to proceed via a route which skirted the border of the high risk area, and constituted a breach of their obligation under cl. 8 to prosecute voyages with due despatch. The vessel employed armed guards for the fourth voyage and had installed a new set of protective materials and had the maximum level of security measures as set out under Best Management Practices 4 for Gulf of Aden Transits, Somalia Transits and Indian Ocean Transits. It was unreasonable to route the vessel in such a way that there would be no chance of interference from pirates and the owners were in breach of cl.8 for which the charterers were awarded damages in hire and fuel costs.

 

A further issue arose as to owners’ right to claim crew war bonuses from charterers. Clause 57 provided that when trading in the Gulf of Aden the crew war bonus if any was to be for charterers’ account. Owners claimed that the only condition was that the war bonus must actually have been paid to the crew. However, the Tribunal pointed to the BIMCO Piracy Clause which provided:

(d) Costs…

(ii) If the Owners become liable under the terms of employment to pay to the crew any bonus or additional wages in respect of sailing into an area which is dangerous in the manner defined by the said terms, then the actual bonus or additional wages paid shall be reimbursed to the owners by the charterers at the same time as the next payment of hire is due, or upon redelivery, whichever occurs first.

 

To be recoverable from charterers any bonus had to be one which owners were obliged to pay under the crew’s terms of employment. Here, the relevant terms provided that a bonus for transit of the Extended Risk Zone would be paid only if the vessel were attacked, which had not been the case. Accordingly, owners were not entitled to recover from charterers the bonus they had paid to the crew.

 

 

 

Meaning of ‘similar amendment’ in cl.8(b) of 1996 Inter-Club Agreement

Agile  Holdings Corporation v Essar Shipping Ltd [2018] EWHC 1055 (Comm) is a recent decision on the meaning of “similar amendment” in cl.8(b) of the 1996 Inter-Club Agreement (‘ICA’), in favour of the claimant shipowners, represented by IISTL’s Simon Rainey QC.

The “Maria” was time chartered for a single trip from Tunisia to India via Trinidad, carrying a consignment of direct reduced iron (“DRI”) which is  highly reactive and combustible in the presence of heat or water. During loading the cargo onto the vessel by means of a conveyor belt at Port Lisas, Trinidad, the belt was seen to have caught fire, but the appointed supercargo inspected the holds and advised that loading could continue. The cargo was still on fire during the voyage and cargo interests, an associated company of the charterers, brought a claim against the shipowners. In turn, they claimed a 100% indemnity from the charterers under the Inter-Club Agreement 1996 which was incorporated into the charter. The charter was on NYPE 1946 form, with an unamended cl.8, so under cl.8(b) of the ICA owners would be entitled to a 100% indemnity in respect of claims “in fact arising out of the loading, stowage, lashing, discharge, storage or other handling of cargo”.

The clause contains the proviso “ unless [1]  the words “and responsibility” are added in clause 8 [of the NYPE form]” to which the 1996 form added the words  “or there is a similar amendment making the Master responsible for cargo handling”, in which case a 50/50 split applies. Charterers pointed to cl.49 which provided “The Stevedores although appointed and paid by Charterers/Shippers/Receivers and or their Agents, to remain under the direction of the Master who will be responsible for proper stowage and seaworthiness and safety of the vessel…” and argued that this constituted a ‘similar amendment’. Charterers argued that  this would transfer back responsibility to the owners that aspect of cargo handling which was in fact in issue in the particular case. His Honour Judge Waksman QC rejected this, and held the required “similar amendment” must be one which would have the same effect as the addition of the words “any responsibility” and therefore, connotes the transfer of all aspects of cargo handling generally back to the Owner. He went on to observe that Clause 49 only transferred back responsibility for stowage, and probably only stowage affecting the seaworthiness or safety of the vessel. A transfer back of stowage only did not connote any transfer back of other cargo handling responsibilities.

When copper turns out to be slag. No physical loss of cargo, no claim under all risks open policy.

 

In   Engelhart CTP (US) LLC v Lloyd’s Syndicate for the 2014 year of account [2018] EWHC 900 (Comm) the cif buyer claimed under an all risks open policy when containers were found not to contain the copper ingots it had traded, only slag of nominal value. It was assumed that no copper was ever shipped and that the claimant in good faith has paid for and taken up fraudulent bills of lading and other shipping documents.  Sir Ross Cranston held that the purpose of all risks marine cargo insurance, was to cover loss of or damage to property. In this case, there was no physical loss of or damage to property as  there never was any cargo of copper ingots, and, consequently, no cargo to be physically lost or damaged. Something must exist to be physically lost.

The scope of the policy was extended by additional clauses but these were all suggestive of physical loss. The first was a Container clause which provided that the policy “is also to pay for shortage of contents…notwithstanding that seals may appear intact”.  The word “shortage” in the clause bore its ordinary meaning and could not cover a situation where there were no goods in the first place.  The second was a Fraudulent Documents clause which was expressly provided to cover a physical loss of goods through acceptance of fraudulent documents of title. Neither clause extended the scope of the policy beyond physical loss of or damage to goods.

 

Demurrage or detention? Agreement for vessel to wait mid-voyage.

 

What is the nature of a claim for compensation when the parties to a sale contract agree that the vessel shall wait for orders mid voyage? Demurrage, or detention? This was the question that came before the court in Glencore Energy UK Ltd v OMV Supply & Trading Ltd [2018] EWHC 895 (Comm).

Glencore Energy sold oil on cfr terms to OMV Supply & Trading. There was congestion at the discharge port of Trieste and OMV asked Glencore that the carrying vessel should wait offshore until a berth was available, to which Glencore agreed.  On arrival at the waiting area the vessel’s master served NOR. The sale contract provided for 36 hours laytime at disport, commencing 6 hours after tendering of NOR or on commencement of discharge, and provided for demurrage to be paid in accordance with the  actual charterparty rate. The clause also required any claim for demurrage to be received latest 90 days from completion of discharge otherwise it would be deemed to have been waived. The contract also incorporated the BP 2007 General Terms and Conditions for CFR deliveries.

Glencore claimed compensation for the period waiting offshore at OMV’s request by reference to the demurrage rate, as well as for the cost of bunkers consumed there. This was a detention claim on the basis of an implied contract. The claim was submitted outside the 90 day period for submission of demurrage claims and OMV rejected it, arguing that the claim was a claim for demurrage, in that laytime was advanced when the master served NOR on arrival at the waiting area, with the demurrage provisions following mechanically.

Sir Ross Cranston held that the waiting period did not fall within the laytime and demurrage provisions in the sale contract or the incorporated BP terms. The former referred to laytime at disport and the latter defined laytime as time allowed for loading and unloading. The NOR given by the master could not start laytime for a waiting period during which there was neither loading or unloading. Glencore were entitled to compensation for the waiting time at the demurrage rate, together with the cost of bunkers consumed during the waiting time. Their acceptance of OMV’s request gave rise to an implied contract for “delay by agreement” under which the vessel would wait until further orders and Glencore would be remunerated for that service. The claim was one for detention, not demurrage, and accordingly was not within the time bar provisions for demurrage claims.

Foreign banks breathe easier in the US after Supreme Court’s decision on scope of the Alien Tort Statute.

 

 

The US Judiciary Act of 1789, 28 U. S. C. §1350. which is now known as the Alien Tort Statute, provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of of the law of nations or a treaty of the United States.” For nearly forty years it has been used as the gateway to bring suits in the US District Courts against individuals and corporations based on alleged violations of norms of international law. The Supreme Court has twice considered the scope of the ATS, in Sosa in 2004, and in Kiobel in 2013, each time limiting its scope. It has now spoken for a third time in Jesner v Arab Bank when it gave judgment last Tuesday, in a majority decision that foreign corporations could not be subject to liability under the ATS.

In Jesner v Arab Bank  foreign plaintiffs sued a Jordanian bank, Arab Bank, alleging that it had helped facilitate financial transactions to terrorist organisations which had then committed attacks in Israel, West Bank and Gaza Strip between 1995 and 2005 during which plaintiffs or their family members were injured. It was alleged that Arab Bank had used its New York branch to clear US dollar transactions which had led to money being sent to the terrorist organisations.

The question framed before the Supreme Court was whether corporations could be held liable under the Alien Tort Statute. The Second Circuit in 2010 in Kiobel had found that corporations could not be held liable under the ATS, and the question was referred to the Supreme Court. However, in 2013 the Supreme Court left the question unanswered and affirmed the Second Circuit’s dismissal by reference to a new question it had raised during argument before it in 2012 concerning the extra-territorial scope of the ATS. The Supreme Court concluded that the presumption that US statutes should not have extra-territorial effect applied to the ATS and would only be rebutted if the claim were to ‘touch and concern the territory of the United States…with sufficient force’.

In Jesner, the Supreme Court gave a partial answer to the question initially framed in Kiobel. The Supreme Court referred to its 2004 decision on the scope of the ATS in Sosa  which set out a two part test. First, was the alleged violation of the law of nations a violation of a norm that  is ‘specific, universal and obligatory’?  Second, would allowing the case to proceed be an appropriate exercise of judicial discretion?

On the first question of whether there is a specific, universal and obligatory norm that corporations are liable for violations of international law, Justice Kennedy expressed the view that there was not such norm, citing the fact that international criminal tribunals had never been given jurisdiction over corporations, but only over natural persons. Justice Roberts and Thomas concurred but this view did not obtain majority support.

The case was decided on the basis of the application of the second Sosa test. By a 5-4 majority the Supreme Court concluded that extending liability under the ATS to foreign corporations should be a matter for Congress to decide, rather than the judiciary. Congress’s intent could be deduced from the fact that a similar statute, the 1991 Torture Victims Protection Act, had been specifically limited to suits against ‘individuals’.  Accordingly, the Supreme Court affirmed the Second Circuit’s dismissal of the suit under the ATS against Arab Bank, a foreign corporation.

The upshot of the decision is that the scope of the Alien Tort Statute has been further restricted in that it no longer permits claims against foreign corporations. The decision may put the final nail in the ATS coffin. However, claims against US corporations, and foreign and US natural persons, could still be made, although the ‘touch and concern’ requirement set out in Kiobel means that there must be a strong link to the US for the claim to proceed. Some Circuits have interpreted the ‘touch and concern’ requirement to mean that the primary violation of international law must have taken place within the US, so excluding claims based on secondary violations for aiding and abetting by US corporations. The Supreme Court has twice denied certiorari to clarify this issue.