I S S U E 1 3 4 J U N E 1 9 9 4

G4RD NEWS

THE C O M M ITTE E GARD DIARY

Ran Hettena (Chairman) Marit ime Overseas Corporation, New YorkJohan Jørgen Ugland (Deputy Chairman) Ugland Group A/S, GrimstadLuis Fernando Alarcon Mantilla Flota Mercante Grancolombiana S.A.,BogotåAlain Bernard Olympic Shipping and Management S/A, Monte CarloKaare E. Borch Torvald Klaveness & Co. A/S , OsloJon Christian Brynildsen Kværner Shipping A/S , OsloB.M. Chang Heiwa Shipping Agency Co. Ltd., TokyoK.H.Chang Evergreen Marine Corp. (Taiwan) Ltd..TaipeiAlt Clausen Gotaas-Larsen Limited, LondonPaulo Cotta Empresa de Navegacåo Alianca S.A., Rio de JaneiroWalter Defortuna Empresa Lineas Mantimas Argentinas, Buenos AiresJan Durajczyk Polish Steamship Company, SzczecinØystein Eskeland OsloRichard Fain Royal Caribbean Cruises Limited, MiamiC. Bennett Gleason American President Companies Ltd., OaklandNoriaki Hori Navix Line Ltd., TokyoClaes Isacson Cool Carr iers AB, StockholmJørgen Jahre jr. Jørgen Jahre Shipping A/S, SandefjordErik Johnsen Central Gulf Lines Inc., New OrleansSadao Kawai The Sanko Steamship Co. Limited, TokyoSverre Kjelland-Mørdre Wilh. Wilhelmsen Limited A/S, OsloDieter Ostendorf Aug. Bolten Wm. Miller's Nachfolger, HamburgEinar Rasmussen Rasmussen Group, KristiansandVeli-Matti Roponnen Neste Oy, EspooStelios F. Triantafyllakis Michail A. Karageorgis S.A., Piraeus

A ren d a lThe Annual General Meeting wil l be held in Arendal on 19th Augus t 1994 .

LondonThe o f f ice will be c losed on the fo l low ing day:

29 th August 1994

TokyoThe o f f ice will be c losed on the fo l low ing days:

15th S ep tem ber 1 9 9 4 2 3 rd Sep tem ber 1 9 9 4

THE EXECUTIVE C O M M ITTE E

Sigurd Wælgaard (Chairman)Brynjulf Marcussen (Deputy Chairman) Gunnar Brøvig John Hatleskog Torleiv AaslestadN.B. Herlofson (Managing Director)

OsloC.H.Sørensen & Sønner A/S, Arendal

Th. Brøvig, Farsund A /S Havtor, Oslo

Bergesen d.y .A/S, Oslo Arendal

THE EDITORIAL C O M MITTEE

Sara Burgess (Editor),Erling Johnsen, Jan Larsen, Willy Parera,

Kurt Severinsen, Claudia N. Storvik, Sigurd Thomassen

Production: Randi G. Gaughan

AS PER 2 0 T H M AY THE TOTAL ENTERED TO N NA G E WAS

6 6 , 6 9 9 , 2 8 1 GROSS TO N S . THE NUM BER OF VESSELS ENTERED

WAS 4 , 0 1 0 SPREAD OVER 7 9 FLAGS

2

F R O N T C O V E R

“M AJEST Y OF THE SEAS”

Owners: Royal Caribbean CruisesLim ited

Built: 1992GT: 73 ,9 4 1Flag: NIS

C O N TEN TS

HIGHLIGHTS FROM THE C O M M IT T E E M EE TIN G IN BORDEAUX ON 2 9 T H AND 3 0 T H M AY 1 9 9 4

5 -8 US LAW

E N VIR O N M E N T A L LAW NATURAL DAMAGE A S S E S S M E N T UNDER OPA AS VERSUS CERCLA

(SUPERFUND)By Sharon Ell iot o f Haight Gardner Poor & Havens, New York

9 - 1 3SHIPBOARD EM E R G E N C Y RESPONSE PLANS - M ARPO L 7 3 / 7 8

ARE YOU PREPARED FOR APRIL 1 9 9 5 ?

14HAGUE, HAGUE-VISBY AND HAMBURG RULES

PACKAGE L IM ITA T IO N VALUES

15M E X IC A N LAW

NEW LAW OF NAVIGATIO N PR O VIS IO NS ON PO LLUTION BY SHIPS

15NEW YORK ARBITRATIO N - A M E N D M E N T TO RULES

1 6 - 1 7GARD SEM INA RS IN SC AN D INA VIA IN 1 9 9 3

1 8 - 2 0"N YPE 9 3 " - THE NEW YORK PRODUCE EXCHANGE T IM E CHARTER

REVISED 1 4 T H SEPTEM BER 1 9 9 3

2 1 - 2 3S H IPO W NER'S LIABILITY FOR PASSENGERS

UNDER ENGLISH AND N ORW EG IAN LAW

2 3PORT STATE C ON TR OL

UNITED STATES OF A M ERIC A - SUB-STANDARD SHIPS

2 4"LITTLE SHOP OF HORRORS"

2 5 - 2 7 P&l IN C ID E N TS

PERSONAL INJURY ILLNESS CLAIM S IN AUSTRALIA - TALES FROM "DOW N UNDER"

2 71 9 6 9 TO N NA G E M E A S U R E M E N T C O N V E N TIO N

2 8 - 2 9 FRENCH LAW

SIS TE R-S HIP ARREST IN FRANCE AND A C O M P A R IS O N WITH THE PO S IT IO N IN ENGLAND

2 9 US LAW

DRUG SM UG G LING - UNITED STATES TIC KE TING SY STEM FOR SMALL SPILLS

2 9HONG KONG LAW

HONG KONG E N A C T M E N T OF COGSA 1 9 9 2

3 0P&l STORIES

3 0CERTIFICATES OF F IN AN CIA L R ESP O NS IB IL ITY

3

HIGHLIGHTS FROM THE COMMITTEE MEETING HELD IN BORDEAUX ON 29TH AND 30TH MAY 1994The Com m it tee o f Gard held its Spring Meeting on 29 th and 30 th May 1 9 9 4 at the Pullman Hotel in Bordeaux. We repo r t below on some of the i tems of in te res t d iscussed at the meeting.

FUNDS

The Com m it tee noted tha t the to ta l funds available to Gard ’s Members fo r ou ts tand ing and unreported cla ims, tak ing into accoun t the Assoc ia t ion 's own funds and those of its s is te r Assoc ia t ion Gard P&l (Bermuda) Lim ited, amounted to some USD 4 8 9 mil lion at 2 0 th February 1 9 9 4 as com pared with USD 3 58 million at the same date the prev ious year.

PR EM IU M AND IN V E S T M E N T IN C O M E

It was repor ted to the Com m it tee th a t the prem ium income including con tr ibu t ions fo r the year to 20 th February 1 9 9 4 amounted to approx im ate ly USD 251 million. Realised investm ent income fo r the year amounted to USD 43 million.

C L A IM S

It was noted tha t the re had been some increase in c la ims in the 1 9 9 3 po l icy year over the 1 9 9 2 pol icy year but no more than could reasonably have been expected. Gard ’s re ta ined p ropo r t io n o f its own c la ims in the 1 9 9 3 pol icy year was cu rren t ly some 11 per cent above the level, at the same period f rom incept ion, of the 1992 po l icy year, but was sti ll marginal ly below tha t of the 1991 po l icy year at the same time.

C O N TR IBU TIO NS

The Com m it tee made the fo l low ing dec is ions with regard to con tr ibu t ions :

1 9 9 1 policy year: The Com m ittee expects to c lose th is year in O c tober 1 9 9 4 w ithou t levying any addit ional con tr ibu t ion .

1 9 9 2 policy year: The Com m ittee expec ts to c lose th is inO ctober 1 9 9 5 w ithou t fu r the r con tr ibu t ion . An addit ional con tr ibu t ion of 15 per cen t was levied in May 1 9 9 3 , which was half the or ig ina l ly fo re c a s t 30 per cent con tr ibu t ion fo r the year. At tha t t im e the Com m it tee was advised to cont inue to budge t fo r the remain ing15 per cent. The Com m it tee noted tha t the year, which had been rem arkab le fo r the a lm os t to ta l absence of large c la ims fo r Gard ’s own account, had deve loped even be tte r than expected last May.

1 9 9 3 policy year: The Com m ittee dec ided to levy a con tr ibu t ion of30 per cent. The or ig ina l ly fo re c a s t con tr ibu t ion was4 0 per cent. On cu r re n t fo re ca s ts the year was expec ted to end in surp lus. If the surp lus were to be eventual ly achieved, it would continue the rebuild ing of the A sso c ia t io n ’s funds. The C om m it tee cons idered tha t such rebuild ing, which was only intended to be undertaken in good years and then only on a l im ited scale, was essentia l in view of the increas ing vo la t i l i ty tha t was inevitab le with the ra is ing of Club re ten t ions and Pool t ranches.

1 9 9 4 policy year: The Com m it tee con f i rm ed tha t the es t im ated con tr ibu t ion fo r the year should remain at 4 0 per cent.

RELEASE C O N TR IBU TIO NS

The Com m it tee acco rd ing ly set the re lease con tr ibu t ions fo r the open po l icy years as fo l lows:

1991 po l icy year: 5 per cen t1 9 9 2 po l icy year: 5 per cent1 9 9 3 po l icy year: 50 per cen t1 9 9 4 po l icy year: 65 per c-ent

M E M B E R SH IP OF THE C O M M IT T E E AND THE ELECTIO N C O M M IT T E E

The Com m it tee resolved to recom m end to the Annual General Meeting tha t the fo l low ing persons be e lec ted as new m em bers to the two com m it tees :

The C o m m itte e :

Mr Samir M. Jad, T reasurer, Vela In ternational Marine Ltd, Dharan Ms Jane Hinkley, Managing D irecto r , Gotaas-Larsen Ltd, London Mr Peter Smedvig, Chairman,Smedvig Tankship A /S , London Mr Lars Ugland, Ugland Group,Egham

The E lection C o m m it te e

Mr Sadao Kawai, The Sanko S team sh ip Co. L im ited, Tokyo

4

US LAW

ENVIRONMENTAL LAW IN THE UNITED STATES

NATURAL RESOURCE DAMAGE ASSESSMENT UNDER OPA AS VERSUS CERCLA

(SUPERFUND)By Sharon Elliot of Haight Gardner Poor & Havens, New York

On 7th January 1 9 9 4 , the National Oceanic and A tm ospher ic Adm in is tra t ion (NOAA)1 issued a notice of p roposed ru lemaking (NPRM) regard ing natural resource damage assessm ents (NRDA or assessm ents) under the Oil Pollution Act o f 1 9 9 0 (OPA 90). On 25 th March 1 994 , the Departm en t of the In te r io r (DOI or In ter ior) issued a Final Rule fo r assess ing natura l resource dam ages under the Clean Water Act (CWA) and the Comprehensive Environmental Response, Clean-up, and L iabi l i ty Act (CERCLA or Superfund). NRD.A is the p rocess o f co l lec t ing and analysing in fo rm ation to de te rm ine damages fo r in juries to a natura l resource a n d /o r serv ice, e.g. w ild l i fe or dr ink ing w ater supplies. Most industry rep resen ta t ives have focused on the issue o f whether cons t ruc ted m arke t m ethodo log ies , inc luding C ont ingent Valuat ion [CM), can be used to ca lcu la te values fo r natural resources . The announcem ent fo r a sem inar on these new regu la t ions declared:

“ It's a whole new ba l lgam e fo r natura l damage c la ims. For over a decade the g o ve rnm en t has been in a sta te o f v ir tua l g r id lo ck in assess ing and co l le c t ing m oney f rom “respons ib le p a r t ie s " fo r natura l resource damage resu lt ing e ither f rom hazardous substance or oil spills. But tha t s i tuat ion is d ras t ica l ly changed with the January 1 9 9 4 pub l ica t ion o f NOAA damage assessm e n t and co l lec t ion rules under the Oil Pollut ion A c t o f 1 9 9 0 and the rev is ion o f the DOI rules under CERCLA which were re leased 2 5 th March 1 9 9 4 . ”

The number and amount of natural resource damage c la ims are expected to increase dram atica l ly . What do you do now?

To know “what to do now” , industry rep resen ta t ives must b roaden the ir focus f ro m CV and

understand some bas ics concern ing the NOAA assessm e nt regu la t ions and those of the DOI. NOAA has published two tab les g iv ing an overv iew of the “ Natural Resource Damage Assessm en t Process Proposed Rule under OPA 9 0 ” and a “ Comparison Between CERCLA and OPA P ro ce sse s . ’’ Both are helpful and the re fo re are rep roduced at the end of th is art ic le .

BACKGROUND A SSE SS M EN TS UNDER THE CWA, CERCLA AND

THE ROLE OF THE NATIONAL C O N T IN G E N C Y PLAN

The CWA and CERCLA author ise natura l resource t rus tees to recover com pensa to ry dam ages fo r injury to, des truc t ion of, or loss of natura l resources resu lt ing f rom a d ischarge o f oil into navigable wa te rs or a re lease o f a hazardous substance.

Damages under CERCLA are recoverab le fo r natural resource in jur ies not fu l ly remedied by response act ions. Federal and state rep resen ta t ives may be des ignated to serve as natura l resource t rus tees under both the CWA and CERCLA. Sums recovered m ust be used to res to re , rehabil i ta te , rep lace or acqu ire the equiva lent o f the injured resources . Trus tees also may recover the reasonable cos ts of assess ing natural resource dam ages and any pre- judgm ent in terest.

F irst p repared in 1 9 6 8 under the Clean W ater A c t2, the National Contingency Plan (NCP) outl ines how the federa l governm ent responds to d ischarges o f hazardous substances into the env ironment. The NCP was how the CWA author ised co ­ord inat ion of federa l hazardous clean-up and response e f fo r ts involving navigable w aters . In 1 980 , when CERCLA was passed, Congress requ ired the NCP to be expanded to include a w ide r va r ie ty o f em ergency

responses and to encom pass more substances be cleaned up in response ac t ions . Included in tha t revision of the NCP was the federa l po l icy on oil spill response.

CERCLA requ ires the p rom ulga t ion of two types of regu la t ions fo r the assessm e nt of natural resource dam ages resu lt ing f rom the re lease of a hazardous substance or f rom the d ischarge of oil (under CWA). “Type A ” regu la t ions p rov ide s tandard p rocedu res fo r s im pli f ied assessm ents requ ir ing minimal fie ld observa t ion ; “Type B” 3 regu la t ions prov ide s i te-specif ic p rocedu res fo r deta i led assessm ents in individual cases. The p rom ulga t ion of these regu la t ions was de legated to the DOI, which published both Type A and Type B regu la t ions several years ago.

Under these regu la t ions , as under NOAA’s regu la t ions , assessm ents cons is t o f fou r phases: (1) Pre-assessm ent ac t iv i t ies , (2) p repara t ion o f an A ssessm ent Plan,(3) conduc t ing the w ork in the A ssessm en t Plan, and (4) p os t­assessm ent ac t iv it ies .

Numerous part ies f i led pe t i t ions fo r rev iew of the DOI’s orig inal assessm e nt regu la t ions4. The Type A rule was cha l lenged in S ta te o f Colorado v. United Sta tes Dept o f the In ter ior, 8 8 0 F. 2d (D.C. Cir. 1989) (Colorado v. Interior). The Type B rule was cha l lenged in State o f Ohio v. United Sta tes Dept o f the Interior, 8 8 0 4 3 2 (D.C. Cir. 1989) (Ohio v. Interior).

In Ohio v. In ter ior, the Court upheld numerous aspec ts of the Type B ru les5, rem and ing three issues. DOI was orde red to revise the rule (1) to re f le c t the s ta tu to ry p re fe rence fo r ut i l is ing res to ra t ion cos ts as the measure of natura l resource dam ages (“ Restorat ion c o s ts " are the c o s t o f res to r ing , rehab i l i ta t ing , rep lac ing , a n d /o r acqu ir ing the equ iva lent o f the

5

injured natural resource); (2) to revise the rule to a llow fo r the recovery of all re l iab ly ca lcu la ted lost use and non-use values of in jured natura l re so u rce s6; and (3) to c lar i fy whether the assessm e nt regu la t ions apply to natura l resources not owned by the governm ent . In Colorado v. In terior, the co u r t found the Type A regu la t ion p rope r in scope, but remand was necessary to develop the s tandard p rocedu res fo r s im pli f ied assessm ents .

On 25 th March of this year,DOI published a f inal rule amending its Type B assessm ent regu la t ions. However, DOI le f t open assessm ent of los t non-use values of injured resources , sta t ing tha t “the Departm en t will soon issue a new p roposed rule" on tha t point.

NOA A ’S REGULATIONS AND A S S E S S M E N T S UNDER OPA

OPA was s igned into law on 18th August 1 990 , and in the p rocess amended the natura l resource damage prov is ions of the CWA. OPA 90 also author ised NOAA to develop new assessm e nt regu la t ions fo r d ischarges of oil into navigable waters . The e lem ents of natura l resource l iab i l i ty under OPA 90 are:(1) a d ischarge , (2) of oil, (3) f rom a vessel or fac i l i ty , (4) into or upon navigable waters , ad join ing shore l ines or the Exclusive Economic Zone, (5) which resu lts in injury to natura l resources a n d /o r serv ices. Similar to CERCLA, OPA 90 prov ides fo r the des ignat ions o f federa l, s tate, Indian t r ibe or fo re ign gove rnm en t t rus tees to assess natural resource im pa irm en t and dam ages a f te r an oil spill . The trus tee is respons ib le fo r p resent ing c la ims to recover these dam ages, and fo r a l loca t ing the funds tow ards res to ra t ion o f the resources .

Assessm ents do not replace clean-up response ac t ions under OPA 90. The response action is based large ly on w he the r or not it is “ a substant ia l th re a t to the public health or w e lfa re ” . Assessm ents com ple te response ac t ions by prov id ing a means to de te rm ine and quanti fy injury, the app rop r ia te res to ra t ion approach, and the “ damages resu lt ing f rom the in jury ” . The damage assessm e n t p rocess descr ibed in the NPRM has three m a jor phases: (1) the Pre­assessm ent Phase, (2) the A ssessm ent Phase, and (3) the Post­assessm e nt Phase (See Figure 1).

u s l a w

The in terp lay between assessm e n t rules under CERCLA and OPA 90 is unclear la rge ly because both sta tu tes may impose natura l resource damage l iabili ty fo r oil spills. CERCLA’s defin it ion of a hazardous substance exc ludes “ pe tro leum , inc luding crude oil or any frac t ion thereo f, which is not o th e rw ise sp e c if ic a l ly l isted or d e s ig n a te d as a hazardous substance [ . ] ” OPA defines “ o i l” as “ oil o f any kind or in any fo rm . . .b u t does not inc lu de p e tro le u m , inc luding crude oil or any f rac t ion thereo f, which is spec i f ica l ly l isted or des ignated as a hazardous substance under [CERCLA].” Depending upon the p roduc t , it is the re fo re unclear w hether a response would fall under the am bit of CERCLA assessm ents or those under OPA 90 . Unfortunate ly , the DOI regu la t ions do not address the issue and the NOAA regu la t ions leave the issue open. A ccord ing to NOAA:

The [DOI] has p rom u lga ted natural resource damage assessm ent regu la t ions under [CERCLA]. These regu la t ions es tab l ish an adm in is tra t ive p rocess and p rocedures fo r the assessm e nt of damages fo r in juries to natura l resou rces a f fec ted by a re lease of a h a z a rd o u s su bstance or oil.These regu la t ions cu rren t ly provide gu idance fo r damage assessm ents resu lt ing f ro m both oil and hazardous substances. A f te r the OPA regu la t ions are p rom u lga ted , the CERCLA p rocedures can still be used to assess dam ages fo r natura l resource in juries resu lt ing f ro m a re lease of a hazardous substance or a d ischarge o f oil not co v e re d un d er OPA.

Having conceded the overlap between .CERCLA’s assessm e nt rules and those of OPA 90, the agency does noth ing to c la r i fy the s ituation but goes on to s tate:

“ The p roce d u re s iden t i f ied in 4 3 CFR Part 11 p rov ided a base f rom which to iden t i fy assessm e n t p rocedu res to be p ro m u lg a te d under OPA. NOAA reques ted com m en ts on the app l icab i l i ty to oil d ischarges o f 4 3 CFR Part 11, as m od if ied by the c o u r t dec is ions o f [Ohio v. In ter io r ] and [Colo rado v. In ter io r ] , In addit ion, NOAA and DOI are co ­o rd ina t ing the ir respec t ive ru lem ak ings to ensure cons is tency, when p ra c t ic a b le , fo r the t rustee(s) and [respons ib le pa r t ie s ] in conduc t ing natura l resou rce damage assessm ents due to e i the r a

d ischarge o f oi l o r re lease o f a hazardous s u b s ta n ce .7"

The agency then goes on to explain the re lat ive ly s imple “ s t ru c tu ra l ” d i f fe rences between the DOI and NOAA assessm e nt rules (Figure 2).

C O N C L U S IO N OR “W HAT TO DO N O W ”

NOAA has extended the com m en t period on its assessm e nt ru les f rom 7th April 1 9 9 4 to 7th July 1 9 9 4 (It may be extended fu r ther) . Industry rep resen ta t ives should cons ider ask ing fo r c la r i f ica t ion of the in terp lay between DOI’s final assessm ent rules under CERCLA and NOAA’s p roposed assessm e nt rules under OPA ’90 . C om m ents are to be subm it ted to Linda Burlington,P ro jec t Manager, or Eli Reinharz, A ss is tan t P ro jec t Manager,

Damage A ssessm ent Regulations Team (DART), c /o NOAA/DAC,1 3 0 5 East-West Highway, SSMC #4, 10th Floor, W orks ta t ion # 1 0 2 1 8 , Silver Spring, MD 2 0 9 1 0 ,Fax (202) 6 0 6 -4 9 0 0 .

For individuals concerned with no t only where “o i l ” f i ts in the s ta tu to ry scheme of CERCLA versus OPA ‘ 90, a ttendance at NOAA's Seminar is encouraged. Among the quest ions ra ised by the new rules, the fo l low ing are supposed ly to be addressed at sem inars::(1) What d i f fe rence can it make to a “ poten t ia l ly respons ib le pa r ty ” w he ther a cla im is made under OPA or CERCLA?(2) What does OPA cover tha t CERCLA doe sn ’t and vice versa?(3) What are natural resources “t r u s te e s , ” and who are they?(4) What are the im po r tan t issues th a t poten t ia l ly respons ib le part ies and “t ru s te e s ” should be concerned with in the c u r re n t ru lem ak ings and in the future?(5) When is the gove rnm en t expec ted to s ta r t p rosecu t ing these claims?(6) Who is poten t ia l ly l iable fo r paying these c la ims and to what extent?(7) How will it be poss ib le to put an actual pr ice or “va lue” on a b ird, a f ish, an o t te r , a wetland, a s tream or a forest?(8) Who is respons ib le fo r p rov ing natura l resource “values", and how do they do it?

US LAW

(9) What is the d i f fe rence between natural resource “ re co ve ry ” , “ re s to ra t io n ” and “ rep lacem ent" , and how do cho ices between natura l “ recovery " and active “ re s to ra t io n ” potent ia l ly im pac t the final measure of “ damages?”(10) Do t ru s te e s have a duty to "m i t ig a te ” dam ages to natura l resources?(11) Is natural resource damage l iabili ty jo in t and several?(12) What does the governm ent have to prove? Does it have to prove actual “ fau l t , " or is it s t r ic t l iabili ty w ithou t fault?(13) Does the governm ent have to prove “ cause in fa c t ” , “ p rox imate cause", or any causat ion at all?(14) What de fences are there or may the re be to a natural resource damage claims?(15) Does anyone have the r igh t to be heard or pa r t ic ipa te during the damage assessment?(16) When, how and in what fo rum is jud ic ia l review available; and, what will be rev iewable at which s tage of the assessment?(17) Are there any ways natura l resource damage l iab i l i ty can be m in im ised or m it iga ted , now and in the future?

PO STNO TES

1 NOAA is a federa l agency under the aegis of the Departm en t of C om m erce .2The S ta tu te was then called the Federal Water Pollution Contro l Act. The NCP is now author ised under CERCLA, 42 USC § 9 6 0 5 .3The regu la t ions are named fo r the ir respec t ive s ta tu to ry c it is , 4 2 USC § 9651 (c) (2) A and B.4 A party may pet i t ion the Court of Appeals fo r the D is t r ic t o f Columbia c i rcu i t to review any regulation issued under CERCLA § 1 1 3 (A).5To “ rem and" means to send back i.e. re turn the m a tte r to the lower co u r t o r agency fo r fu r the r cons idera t ion .6 “ Use" values are derived through rec rea t iona l ac t iv i t ies or o the r public uses o f a resource like hik ing or f ish ing. Ohio v. In ter ior, 8 8 0 F.2d at 4 7 5 . “ Non-use” values are required when the injured resources has no m arke t value. It inc ludes “ ex is tence ” value, which is the value o f knowing tha t a resource exists, plus “ beques t” value, which is the value of knowing tha t a resource will be available fo r fu tu re genera t ions.7 59. Reg. 1 0 6 9 (emphasis added)

NATURAL RESOURCE DAMAGE PROCESS PROPOSED RULE UNDER OPA 1990

Figure 1

7

COMPARISON BETW EEN C ERC LA AND OPA PROCESSES

CERCLA OPA

I. Pre-spillA. Prespill PlanningB. Trustee Co-ordination

I. Pre-assessment PhaseA. Pre-assessment Screen

II. Pre-assessment PhaseA. Pre-assessment Determination

B. Data Collection and Sampling B. Data Collection and Sampling

C. Pre-assessment Screen Determination

C. Damage Assessment Determination

D. Emergency Actions

II. Assessment PhaseA. Co-ordinationB. NotificationC. Decision on Type of

Assessment1. Type A or Type B

E. Assessment

1. Injury determination2. Injury Quantification3. Damage Determination

III. Assessment PhaseA. Plan Development

B. Assessment(Comp. Formula/Type A/EDA/ CD A)

1. Injury Determination2. Injury Quantification3. Restoration4. Compensable Values

Determination

III. Post-assessment PhaseA. Report of AssessmentB. DemandC. Restoration AccountD. Restoration Plan

IV. Post-assessment PhaseA. Report of AssessmentB. DemandC. Restoration AccountD. Restoration Plan

Figure 2

SHIPBOARD EMERGENCY RESPONSE PLANS

MARPOL 73/78ARE YOU PREPARED FOR

APRIL 1995?Much atten t ion has been focused in recen t years on vessel response plans requ ired under the US Oil Pollution Act 1990 . The f i l ing of such plans is com pu lso ry fo r all tanke rs capable o f carry ing oil in bulk as ca rgo and trad ing in US waters . Much less a tten t ion has been d i rec ted tow ards a requ irem en t which will short ly a f fe c t the m a jor i ty o f tonnage trad ing wor ld w ide. Regulation 26 o f Annex I o f the International Convention fo r the Prevention of Pollut ion by Sea 1973 as m odif ied by the P ro toco l o f 1 978 , fam il ia r ly known as MARPOL 7 3 /7 8 applies to every oil ta n k e r1 of 150 g ross tons or more and every ship o ther than an oil tanke r o f 4 0 0 gross tons or more. It requ ires such ships to ca rry on board a sh ipboard oil po l lu t ion em ergency plan approved by the Adm in is tra t ion o f the vesse l ’s f lag sta te . The requ irem en t has imm edia te e f fe c t fo r all ships del ivered on or a f te r 4 th April 1 993 . For all ships del ivered before 4th April 1 9 9 3 the requ irem ent applies f rom 4th April 1 995 . The Convention also applies to any fixed or f loa t ing d r i l l ing r ig or o ther o f fshore insta l la t ions when engaged in the exp lo ra t ion , exp lo i ta t ion or assoc ia ted o f fshore p rocess ing of sea-bed mineral resources . A large ma jo r i ty o f f lag Sta tes have rati f ied MARPOL and thus th'e requ irem en t wil l a f fe c t m o s t sh ipowners.

IN TER NA TIO NA L C O N V E N T IO N ON OIL POLLUTION PREPAREDNESS

AND RESPONSE 1 9 9 0

To trace the legis la t ive h is to ry of Regulation 26 one re tu rns to the “ EXXON VALDEZ” oil spill which

o ccu rred in early 1 9 8 9 in Prince Wil liam Sound, on the West Coast of the United Sta tes. The cons iderab le amount o f pub l ic ity engendered by th is spill and the he ightened public awareness of the im portance of p repara t ions fo r a response to pol lu t ion d isas te rs resu lted in d iscuss ions at in ternat iona l level in In ternational Marit ime Organisat ion (IMO) cu lm inat ing in an IMO Resolution on International Co-operat ion on Oil Pollution P reparedness and Response.(Acting independently the United Sta tes Governm ent enacted the Oil Pollution Act 1 9 9 0 (OPA 90) m entioned above in August of tha t year.) The IMO Resolution called fo r the convening o f an in ternational con fe rence to cons ide r the adoption o f an in ternat iona l convention on oil po l lu t ion p reparedness and response. Several p repa ra to ry m eetings were held in 1 9 9 0 and a d ip lom at ic con fe rence was held in November 1 9 9 0 at the end of which 81 Sta tes s igned the Final Ac t of the Conference and 15 States s igned the Convention. The Convention was named the In ternational Convention on Oil Pollution Preparedness, Response and Co-operat ion 1 9 9 0 (OPRC Convention).

In the pream ble to the Convention it was recogn ised tha t the re is a serious th rea t to the marine env ironm ent by oil po l lut ion inc idents involving ships, o f fsho re - units etc . and tha t only p ro m p t and e f fec t ive action can min im ise serious environmenta l damage. The im portance o f mutual ass is tance and in ternat iona l co-opera t ion re la t ing to various m a t te rs is acknow ledged. These m atte rs include the exchange

of in fo rm ation respec t ing the actual capab i l i t ies of S ta tes to respond to oil po l lu t ion inc idents , the p repara t ion o f oil po l lut ion con t ingency plans, the exchange of repo r ts on inc idents of s ign if icance which m igh t a f fe c t the marine env ironment, and research and deve lopm ent respec t ing means of com ba t ing oil po l lu t ion in the marine env ironm ent. A r t ic le 3 of the Convention prov ided tha t Part ies to the Convention requ ire ships under such Pa r t ies ’ f lags to have on board a sh ipboard oil po l lu t ion em ergency plan as requ ired by IMO. O pera to rs of o f fshore units under the f lags of Part ies to the Convention were requ ired to have s im ila r em ergen cy plans. As a consequence of A r t ic le 3 MARPOL 7 3 /7 8 was amended to include Regulation 26. The OPRC Convention is not ye t in fo rce . However, when it com es into fo rce the sh ipboard em ergency plan requ ired under the Convention Ar t ic le 3 will be identica l to tha t requ ired by Regulation 26 of MARPOL 7 3 /7 8 .

M ARPO L 7 3 / 7 8

The stated aim of MARPOL is to achieve the com p le te e lim ina t ion of intentional pol lu t ion of the marine env ironm ent by oil and o the r harmful substances f rom ships and to min im ise the acc identa l d ischarge of such subs tances . There are several annexes to MARPOL and coun tr ies can be se lect ive in which annexes they rat i fy . Annex I deals with oil po l lu t ion. Regulation 4 o f Annex I requ ires a survey to be carr ied out of the vessel by a f lag Sta te Adm in is tra t ion p r io r to a vessel

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enter ing into serv ice a f te r which an International Oil Pollution Prevention (IOPP) ce r t i f ica te is issued. In e f fec t a f lag gove rnm en t will not issue such a ce r t i f ica te fo r the ship if Regulation 26 has not been com plied w ith. Inspection of such docum enta t ion may then be carr ied out under po r t Sta te contro l p rocedures p resc r ibed by MARPOL 7 3 /7 8 .

GUIDELINES

At its 32nd session in March 1992 , IMO adopted a set o f guidel ines fo r the p repara t ion of plans. These are conta ined in the annex to Resolution MEPC.54 (32). IMO has published a book le t IMO-586E which conta ins the afore-mentioned guidel ines and the te x t of Regulation 26. The book le t can be obta ined at a p r ice of GBP 5 f rom :

The International Marit ime Organisation 4 A lbe r t Embankment London SE I 7SR

The guidel ines have two main ob jec t ives:

(a) to ass is t sh ipowners in prepar ing sh ipboard oil po l lu t ion em ergency plans tha t com p ly with Regulation 26; and

(b) to ass is t governm ents in deve lop ing and enact ing dom est ic laws which give fo rce to and im p lem ent the regulat ion.

The guidel ines m ust be w r it ten in the w ork ing language of the m aste r and o f f ice rs of the ship. If there is a change in the m as te r and o f f ice rs which resu lts in a d i f fe ren t w ork ing language on board ship, the language of the plan m us t also be changed.

The guide l ines are div ided into th ree sect ions:

(a) An in troduc t ion p rov id ing a genera l overv iew of the guidel ines and the ir purpose;

(b) Guidance on how to com p ly with the m andatory p rov is ions of Regulation 26 o f Annex I

(c) Guidance concern ing the inc lusion of o the r in fo rm ation in the Plan, which is not requ ired by Regulation 2 6 but which may be

required by local au thor it ies in ports v is i ted by the ship or which may be added to p rov ide addit ional ass is tance to the sh ip ’s m as te r when respond ing to an em ergency s ituat ion. The sect ion also inc ludes gu idance on updating and app lica t ion of the Plan.

(a) In troductionThe plan m us t conta in a pream ble s ta t ing tha t it is w r it ten in acco rdance with the requ irem en t of Regulation 26.

(b) M a n d a to ry ProvisionsThere are fou r m andatory prov is ions:(i) The p rocedure to be fo l lowed by the m as te r or o ther persons having charge of the ship to re p o r t an oil po l lu t ion inc ident;(ii) The l is t of au thor it ies o r persons to be con tac ted in the event of an oil po l lu t ion inc ident;(iii) A deta i led descr ip t ion of the action to be taken im m edia te ly by persons on board to reduce or con tro l the d ischarge of oil fo l low ing the incident; and(iv) The p rocedures and po in t of c o n ta c t on the ship fo r co-ord inat ing sh ipboard action with national and local au thor it ies in com bat ing the pollut ion.

R e q u ire m e n t fo r p ro c e d u re to be fo l lo w ed by th e m a s te r or o th e r persons: the neares t coasta l s tate m us t be no t i f ied of actual or p robab le d ischarges . This is to ensure tha t the coasta l s ta tes are in fo rm ed w itho u t delay o f any pol lu t ion inc ident or th rea t the reo f and of ass is tance and salvage measures. Such a re p o r t is requ ired when the re is a d ischarge or probab le d ischarge of oil resu lt ing f rom damage to the ship or its equ ipm ent or fo r the purpose of secur ing the safe ty of a ship or saving life at sea or d ischarge during the opera t ion o f the ship o f oil in excess of the quanti ty or rate pe rm it ted . Examples are given o f s i tuat ions which m igh t fal l into the ca te g o ry o f p robab le d ischarge .

C o n ta c t lists of persons: coasta l s ta tes au thor it ies , p o r t au thor it ies as well as o the r in te res ted persons should be noted in the plan.

Steps to contro l d isch arg e : theplan should d is t ingu ish between steps to be taken in the case of

opera t iona l spills and those to be taken in the case of a casualty. Examples are given o f operat iona l spills. Casualt ies com pr ise ground ing , f i re /e xp lo s io n , co l l is ion, hull fa i lu re and excessive list.

C o -o rd in a t in g sh ipb oard ac t iv it ies with n at io na l and local au th o ri t ies in c o m b a t in g the pollution: theplan m ust emphasise the need to co n ta c t the coasta l State fo r au thor isa t ion p r io r to undertak ing m it iga t ing act ions. It is em phasised tha t the iden t i t ies and ro les of national and local au thor it ies vary w ide ly f rom State to State and f rom po r t to po r t as do approaches to respons ib i l i ty fo r d ischarge response. Some Sta tes have agencies which take charge o f response im m edia te ly and subsequently bill the owner fo r the co s t (e.g. the United Kingdom) whereas o thers leave respons ib i l i ty fo r in i t ia t ing response to the sh ipowner (e.g. the United Sta tes of America). In the la tte r case the plan m ust conta in much m ore detail than in the fo rm e r . The Independent Tankers Owners Pollution Federation is cu rren t ly prepar ing country p ro f i les which will give a br ie f, two page overv iew fo r each coasta l nation, with in fo rm at ion on the spill no t i f ica t ion point, a sum m ary of the response a rrangem ents and com m and s t ruc tu res fo r both at-sea and on-shore response, the avai lab i l i ty of gove rnm en t and priva te ly-owned resources , and the s ta tus of in ternational conventions . A l is t o f national c o n ta c t points is conta ined in the Model Plan d iscussed below.

(c) N o n -m a n d a to ry provisionsSuch prov is ions m igh t include plan rev iew p rocedures, t ra in ing and dri ll p rocedures, record-keep ing p rocedures, the p rocedures fo r deal ing with the media, and an inventory o f the response equ ipm ent ca rr ied on board.

The use o f f low charts to show the d issem ina t ion of repor ted in fo rm ation is encouraged.

MO DE L PLAN

Four in te res ted o rgan isa t ions have worked to g e th e r to p roduce a model plan. They are the International

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Chamber of Sh ipping (ICS), the In ternational Tanker Owners Pollution Federation (ITOPF), the International Tanker Owners Organ isat ion and the Oil Companies In ternational Marine Forum (OCIMF). The plan has been based on the gu ide l ines descr ibed above and cos ts GBP 35. It conta ins a l ist of spi ll no t i f ica t ion points in various coasta l s ta tes . The cu r re n t l is t is updated to March 1 9 9 4 . However a note is made tha t it is ant ic ipa ted tha t IMO will regu la r ly publish updated l ists. Obviously th is is a sec t ion which should be kept c lose ly under review since it conta ins so many deta i ls which are sub jec t to change such as te lephone and te le fax num bers . The plan has been devised to fac i l i ta te updating by the rep lacem ent of the min imum num ber o f pages.. The plan makes use o f check l is ts and f low charts to fac i l i ta te unders tand ing or repo r t ing requ irem en ts e tc ., examples o f which are shown below. (See Appendix 1 to th is art ic le)

INTERFACE BETWEEN OPA 9 0 AND M ARPO L PLANS

The United Sta tes has ra t i f ied Annex I of MARPOL and recent ly published a not ice of p roposed ru lemaking on sh ipboard em ergency plans. The ru lemaking was open fo r com m ents until 18th April 1 9 9 4 . The d ra f t ru lemaking in the main fo l lows the gu ide l ines m entioned above. It recogn ises tha t some sh ipowners will be requ ired to subm it plans in acco rdance with OPA 90 as well as MARPOL 7 3 /7 8 and endeavours to ensure tha t the task of com bin ing the tw o plans is fac i l i ta ted . In the p reamble to the ru lemaking emphasis is p laced on the concern of the au thor it ies tha t all vessels trad ing in US wa te rs should have some fo rm of em ergen cy response plan on board. It notes tha t only 10 per cen t o f the w o r ld ’s tonnage belongs to Sta tes not party to Annex I of MARPOL 7 3 / 7 8 and thus a large m a jo r i ty of tonnage trad ing in US w aters is requ ired by its f lag State to have a plan on board. However to ensure tha t there is no tonnage trad ing in US wa te rs which does not com p ly with the minimum em ergency response s tandards of Regulation 26 of MARPOL 7 3 /7 8 , the d ra f t ru lemaking applies to all oil tanke rs over 150 g ross tons and all o the r vesse ls over 4 0 0 g ross tons no

m a tte r the ir f lag State. It s ta tes tha t the ships m ust ca rry ev idence of such com p liance issued by the gove rnm en t o f a country tha t is pa rty to MARPOL or by a recogn ised c lass i f ica t ion soc ie ty . Barges or o the r ships which are so cons truc ted or opera ted tha t no oil can be d ischarged f ro m any port ion the reo f are exempt. The Inter im Final Rule of 5th February 1 9 9 3 issued under OPA 90 re la t ing to vessel response plans includes many of the non mandatory p rov is ions of Regulation 26 guidel ines in addit ion to many o f the m andatory p rov is ions.

The fo l low ing d i f fe rences between the IFR and the MARPOL plan are h ighl ighted:

(a) MARPOL applies to oil tankers of 150 g ross tons and above and o the r ships of 4 0 0 g ross tons and above, while the IFR applies to all tank vesse ls which ca rry oil in bulk as ca rgo regard less o f size.

(b) MARPOL requ ires a l ist of co n ta c t wor ld w ide; the IFR requires a com p le te geogra ph ic -spe c i f ic l ist fo r US ports only.

(c) MARPOL requ ires planning fo r all oil d ischarges including sh ip ’s fuel oil; the IFR only applies to oil carr ied in bulk as cargo .

(d) MARPOL requ ires p rocedures and po in t o f c o n ta c t on the ship fo r co ­ord ina t ing response action with shore-based au thor it ies . The IFR requ ires more fo rm a l ised a rrangem ents with oil spill response organ isa t ion in all US ports of call, the appo in tm en t o f a qualif ied individual to ob l iga te funds on the part of the sh ipowner or opera to r , the ident i fy ing o f pr ivate f ire f igh t ing , salvage and l igh te r ing resources .The d i f fe rences are h igh l ighted in the tab le set ou t below.(See Appendix 2 to this art ic le).

Section 1 5 5 .1 0 3 0 of the IFR al lows fo r the subm ission o f a vessel response plan which com pl ies with both sets of response plan requ irem en ts . To fac i l i ta te com pl iance , the approval period fo r both plans is the same (five years).It is intended tha t fo r fo re ign f lag tank vesse ls opera t ing in US waters , the IFR requ irem en ts under OPA 90 can be cons ide red a local requ irem en t and thus included as an appendix to the MARPOL plan. (See

non-mandatory requ irem en ts above.) Ships to which the MARPOL plan requ irem en ts a lready apply should consu lt the US Coast Guard Navigat ion and Vessel Inspection C ircu lar (NVIC) No. 2-93 published on 5th March 1 9 9 3 (as amended) which prov ides gu idance fo r MARPOL plans fo r US ships pending the issuance of regu la t ions.

Although Regulation 26 of Annex I to MARPOL 7 3 / 7 8 does not com e into fo rce fo r m os t ships fo r a fu r the r year, owners would be well advised, if they have not a lready done so, to com m ence d ra f t ing em ergency response plans fo r their ships fo r thw ith .

PO S TNO TE S

1 For the pu rposes o f MARPOL 7 3 /7 8 Annex I, an oil ta n ke r is a ship c o n s tru c te d o r adap ted p r im a rily to c a rry o il in bulk in its ca rg o spaces and inc ludes com b ina tion c a rr ie rs and any chem ica l ta n ke r as de fined in Annex II when it is c a rry in g a ca rg o o r p a rt ca rgo o f o il in bulk.

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APPEN DIX 1

REPORTING REQUIREMENTS

HAS THERE BEEN AN ACCIDENT I OR HAZARDOUS OCCURRENCE?

YES NO

______________________ vPREPARE FOLLOW-UP REPORTS AS PRACTICABLE

A P PEN D IX 2

RESPONSE PLAN REQUIREMENTS

V V

Vessel required to use "Vessel Response Plan" in accordance with OPA 90

Vessel required to use "Shipboard Oil Pollution Emergency Plan" in accordance with Regulation 26 of Annex I of MARPOL 73/78

(1) Any petroleum-based oil including, but not limited to, petroleum fuel oil, sludge, oil refuse and oil mixed with wastes other than dredged oil.

(2) Any non-petroleum based oil including, but not limited to, animal and vegetable oils.

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SOUTH A M ERIC A

HAGUE, HAGUE-VISBY AND HAMBURG RULES

PACKAGE LIMITATION VALUESSOUTH AM E RICA

Most mar i t ime nat ions in South America have not enacted legislat ion equivalent to the Hague,

We are grateful toDr. Car los Rameh, Clyde &Co., Sao Paulo, Brazil;Power Mari t ima, Guayaquil, Ecuador; Dr. Jaime Roca Marcos, Guayaquil, Ecuador and Overseas Service Agency S.A., Lima, Peru, for provid ing some of the informat ion contained in the above table.

Hague-Visby or Hamburg Rules. However, the cour ts of the major i ty of these countr ies will uphold a contractua l "per package"

PO S TNO TE S

'A lth o u g h A rgen tina has no t ra tif ie d the Hague-V isby Rules, som e o f the p rin c ip le s o f the conven tion have been in c o rp o ra te d in to d o m e s tic law by Decree-Law 2 0 0 9 4 .2 E qu iva len t to app rox . USD 9 ,0 1 5 at the tim e o f go ing to p ress .3 DEG = "Derecho E spec ia l de G iro", or SDR (Specia l D raw ing R ight), E qu iva lent to USD 1 ,1 8 2 .3 0 a t the tim e o f go ing to p ress .4 E qu iva len t to USD 3 .5 3 a t the tim e o f go ing to p ress .

l imi tat ion. The fo l lowing are sta tu tory l imi tat ions, appl icable i r respect ive of any provision in the relevant con t rac t of carr iage.

5 E qu iva len t to USD 1 4 ,2 3 0 a t the tim e of go ing to p ress . A fra n c m eans a un it o f 6 5 .5 m illig ram m e s o f go ld o f m illes im a l fineness 9 0 0 '.6 E qu iva len t to USD 4 2 .6 a t the tim e of go ing to p ress .7 The p o s ition in Peru is unce rta in as to w he the r the Hague Rules have been e ffe c tiv e ly enacted by th is Suprem e Reso lu tion , w h ich is an a d m in is tra tio n act, and no t an A ct o f P arliam en t. The ques tion w ill be un reso lved un til the Peruvian S uprem e C ou rt dec ides upon the issue.8 S te rlin g Pounds. E qu iva len t to USD 150 at the tim e o f go ing to p ress .

C ountry H a g u e /V is b y /H a m b u r g or eq u iv a le n t

D ate e n a c te d P a c k a g e L im ita t ion

Argentina Hague Rules1(Ley 1 5 7 8 7 , sanctionedby Decree-Law 2 0 0 9 4 )

19th O c tober 1961 and 1 5th January 1973 respect ive ly

4 0 0 Gold Pesos2

Chile Hamburg Rules (Book III of Chilean Marit ime Code)

12th July 1 9 8 8 8 3 5 DEG3 per package or 2 .5 DEG4per ki lo, w h ichever is the g rea te r

Ecuador Hague-Visby Rules (Decree No. 935)

18th November 1975 Equivalent to 1 0 ,0 0 0 gold f ra n c s 5 per package or unit or 30 gold f ra n c s 6 per kilo g ross weigh t, wh ichever is the g rea te s t

Peru Hague Rules (Supreme Resolution 6 8 7 )7

29th April 1965 GBP 1 0 0 8 per package (Gold value)

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M E X IC A N LAW

NEW YORK ARBITRATIONAMENDMENT TO

RULES

NEW MEXICAN LAW OF

NAVIGATIONPROVISIONS ON POLLUTION

BY SHIPS

In the last issue o f Gard News we out l ined the main p rov is ions o f the new Law of Navigation - “ the law” which came into fo rce in Mexico on 5th January 1 994 . The law conta ins some prov is ions dealing spec if ica l ly with pol lu t ion f rom ships, which are descr ibed below.

Chapter VII o f Tit le III o f the law deals with the prevention of marine pol lu t ion. It p roh ib i ts any ships to je t t ison bal last, debr is or garbage, to spill petro l and its by-products , sewage, or o the r dangerous or harmful substances of any kind, in wa te rs over which Mexico exerc ises ju r isd ic t ion .

Further, the law reasser ts the app lica t ion in Mexico of the 1975 London Convention on the Prevention of Marine Pollution by Dumping Wastes and o the r M atte rs , which came into fo rce in Mexico in August 1 9 7 5 . The app lica t ion o f the London Convention is, however, w ithou t p re jud ice to the prov is ions of Mexico 's “ Ley General de Equil ibrio E co log ico y la Pro tecc ion al A m b ien te ” .

In Chapter VI of Title VI the law makes re fe rence to sh ipow ne rs ’ l iab i l i ty to th ird part ies. It es tab l ishes tha t a sh ipowner will be l iable fo r all damage caused to th ird part ies by an inc iden t which can be a t t r ibu tab le to him, ar is ing f rom the em p loym ent o f the vessel, spill or d ischarge of ca rgo . The owners will a lso be respons ib le fo r the m easures taken to min im ise losses. All vesse ls opera t ing in Mexican w a te rs m ust have th ird party l iabili ty insurance and ev idence m us t be shown at each p o r t o f cal l in Mexico. A copy o f a P&l c e r t i f ica te of en try will suff ice.

The same chap te r conta ins p rov is ions on the l im ita t ion of sh ipow ne rs ’ l iab i l i ty . A cco rd ing to it, the owners, sa lvors, cha r te re rs and o pe ra to rs o f vesse ls may l im it the ir l iab i l i ty in acco rdance with the pr inc ip les estab l ished in the 1976 Convention on L im ita t ion o f L iabil ity fo r Marit ime Cla ims, as well as the 1 9 6 9 International Convention on Civil L iab i l i ty fo r Oil Pollution (CLC-69).

In o rde r to provide supp lem enta ry com pensa t ion fo r damage caused by the spi ll of h yd rocarbon s f ro m tankers which exceed the CLC-69 l im its, “ the owners, the sh ipp ing com pan ies or the ca rgo owners must subscr ibe to a vo luntary com pensa t ion fund or ag re e m e n t” , in acco rdance with the l im its and te rm s estab l ished in the In ternational Convention on the Estab l ishm ent o f an In ternational Fund fo r Compensation fo r Oil Pollution Damage 1971 (The Fund Convention), which is also not yet into fo rce in Mexico.

The CLC 69, the Convention of L im ita t ion o f L iab i l i ty fo r Marit ime Cla ims and the Fund Convention were ra t i f ied by the Governm ent of Mexico in January 1994 . However, they canno t en te r into fo rc e dom est ica l ly until they have been published in the Off ic ia l Bulletin and the ir publ icat ion is not expec ted be fo re the end of 1 9 9 4 . Presumably unti l then, m em bersh ip of TOVALOP and CRISTAL is required.

We are g ra te fu l to Dr Enrique Garza o f the Mexican law f i rm J. W. Pinedo & Assoc iados S.C. fo r his ass istance in the p repara t ion of the above note.

The Soc ie ty of M arit ime A rb i t ra to rs o f New York has p rom u lga ted am endm ents to its a rb i t ra t ion rules, which come into fo rce in May 1994 . Three m ajor changes are in troduced by the am endm ents. They are descr ibed below.

A T T O R N E Y S ’ FEES

The arb i t ra t ion tr ibuna l m us t address the issue of a t to rn e ys ’ fees and cos ts incurred by the part ies . The tr ibunal has powers to award reasonab le a t to rn e ys ’ fees and expenses or co s ts incurred by a party in the p rosecu t ion or defence of the c laim.

CO N S O LID A T IO N OF D ISPUTES

The part ies may agree to conso l ida te p roceed ings involving d ispu tes under re la ted c o n tra c ts with o the r part ies, where the same quest ions of fa c t or law arise.

PR O CE ED ING S TO C O M P E L A RECA LC ITRA NT PARTY TO

ARBITRATE

A c la im an t may demand tha t the o ther party appo in t its a rb i t ra to r within 20 days, fa i l ing which the c la im ant h im self may appo in t an a rb i t ra to r on the reca lc i t ra n t p a r ly ’s d e fa u l t .1

In addit ion, under the new rules a rb i t ra to rs are under an ob l iga t ion to issue a reasoned w rit ten award not la ter than 12 0 days a f te r the final ev idence or br ie fs have been subm it ted and the part ies have been not i f ied tha t the p roceed ings have been c losed. Under the new rules it is also open to the part ies to agree to use the Socie ty of Marit ime A rb i t ra to rs ’ shortened a rb i t ra t ion p rocedure .

1 U nder the US A rb itra t io n A ct, if a pa rty re fuses to a ppo in t an a rb itra to r , a p e tition m us t be file d w ith the US D is tr ic t C ou rt in o rd e r to com pe l the pa rty to a p po in t an a rb itra to r .

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GARD SEMINARS IN SCANDINAVIA IN 1993

D uring recent years the Assoc ia t ion has been active in host ing seminars and w orksho ps in Norway. Last year we

real ised th a t even though Arendal is home to the second la rges t P&l club in the wor ld , our l i t t le town is not a sh ipping capita l (not even by Norwegian s tandards).

We the re fo re sent out inv ita t ions and held sem inars in the two major sh ipping c it ies in Norway. In all during 1 9 9 3 GARD arranged three sem inars in Oslo and two in Bergen.

The sem inars enjoyed g rea t success . Whether it was the quality of the sem inars and the speakers, the socia l a tm osphere or the food and drinks served, is not fo r us to judge. However, the num ber of part ic ipan ts increased at about the

same rate as P&l p rem ium s have unfortuna te ly done in recen t years.

Oslo6th August 612 1 s t O c tober 822nd D ecem ber 90

B erg en30th August 276th December 40

The seminars a t t rac ted a ttent ion both f rom sh ipowners and broke rs and also gave the M embers and broke rs the oppor tun ity to meet some of the GARD employees.

The sem inars inc luded several sub jec ts , such as the s truc tu re of P&l re insurance, resu lts f ro m the A ssoc ia t ion ’s accounts , cu rren t trends w ith in various c la ims

ca tego r ies , de l ivery o f cargo w itho u t p roduc t ion of or ig ina l bil ls of lading. M ost o f the speeches were held by GARD em ployees but some sub jec ts were p resented by gues t speakers .

Robert L K lawette r f rom Gard 's co rresp o n d e n ts in Houston, Eastham, Watson, Dale & Forney, gave an update on exposure to personal in jury c la ims in the United Sta tes, in pa r t icu la r in Texas. Mr K lawette r pa r t ic ipa ted in the sem inar in Oslo on 26 th August and in Bergen on 30 th August 1993 .

The seminar in Oslo on 2 1 s t O c tober 1 9 9 3 was ded ica ted to p rob lem s re la ted to tankers and pol lu t ion. Except fo r a short p resenta t ion o f the A ssoc ia t ion ’s half-yearly accoun ts as at 20 th Augus t 1 9 9 3 , the sem inar

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Joseph N ichols f ro m ITOPF, London

1

j

Bergen

focused on pol lu t ion l iab i l i t ies and in pa r t icu la r on the Civil L iab i l i ty and Fund Convention, TOVALOP and CRISTAL. In addit ion, Arild Wegner of the Norwegian Sh ipowners ' Assoc ia t ion lec tu red on “ Unlimited Liabi l i ty under OPA 90?" and in fo rm ed the sem inar about the cu rren t s ta tus of the G re e k / N o rw eg ian /S w ed ish sh ipow ners ’ proposa l fo r a Mandatory Excess Facil ity (MEIF) in the United Sta tes.

We nearly m issed Joseph Nichols of ITOPF, London. Im m edia te ly be fo re the Oslo seminar, he was called to a major pollut ion inc iden t in the United Sta tes.

Luckily , he managed to ass is t with the m os t im po r tan t issues and arr ived in Oslo ju s t in t im e to del iver an in te res t ing update on "The Pract ica l Handling o f a Pollution Inc ident in the United S ta tes ” . His arrival in Oslo was t im ed so t igh t ly tha t he nearly sti ll had pe rs is ten t oil on his shoes.

In the sem inars in Oslo on 2nd D ecem ber and in Bergen on 6th D ecem ber the lec tu r ing t im e was cu t down to a min imum to a llow t im e fo r trad i t iona l Norwegian C hr is tm as fa re , “ ju le b o rd ” with every th ing th a t normally comes with it.

OTHER SE M INA RS IN SCAND INA VIA

During 1 9 9 3 sm alle r sem inars were conduc ted in S tockho lm , Gothenburg and Helsinki.

We wish to extend our thanks to the gues t speakers and to all seminar p a r t ic ipan ts . The apprec ia t ion expressed has encouraged us to plan fo r fu tu re sem inars and w o rkshops. We believe the ac t iv i t ies will help to maintain the good re la t ionsh ip between the Mem bers , the shipping com m unity , b roke rs and the ir Club.

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“NYPE 93”THE NEW YORK PRODUCE EXCHANGE

TIME CHARTERREVISED 14TH SEPTEMBER 1 9 9 3

The NYPE is the m ost com m only used t im e cha r te r fo rm fo r dry cargo vessels. It is a docum ent with which many of us are very fam il ia r a lthough due to the d ras t ic am endm ents tha t are normally made to the 1 9 4 6 fo rm rare ly are tw o char te rs ever the same. Massive s tr ik ing out of the p r in ted tex t, numerous amendm ents and even more numerous r ider c lauses (60 or so are not uncommon) has not only taken its toll on many a P&l Club lawyer ’ s eyes igh t but alas has also led to freque n t l i t iga t ion as uncerta in ty o f meaning abounded.

In 1 9 9 2 aga ins t th is background and recogn is ing the im portance o f the NYPE fo rm , the Charte r ing and D ocum entary Com m it tee of The Assoc ia t ion of Ship B rokers and Agents (U.S.A) Inc.,New York (ASBA) dec ided, in co-opera t ion with The Balt ic and International Marit ime Council (BIMCO) and the Federation of National Assoc ia t ion o f Ship Brokers and Agents (FONASBA), to undertake a genera l revis ion of the NYPE charte r. Some minor amendm ents had been e f fec ted in the late 1 9 7 0 ’s resu lt ing in ASBATIME 1981 but this fo rm gained l i t t le suppo r t in the m arke t and was rare ly used. The aim in 1992 was a m a jor overhaul o f the fo rm to take accoun t of not only changes in m arke t p rac t ices , but also ship types, s ince the last revis ion of the NYPE fo rm itse l f which had taken p lace in 1946 .

Acco rd ing ly a jo in t w ork ing g roup was put to g e th e r cons is t ing of represen ta t ives f rom ASBA, BIMCO and FONASBA. The resu lt of the ir e f fo r ts is “ NYPE 9 3 ” .

Upon f i r s t reading of the new fo rm there is a notable absence of the language seen in the 1 9 4 6 fo rm which could now be te rm ed “ a rch a ic ” . The new w ord ing is apt to modern cus tom s, te rm in o lo g y and techno logy and is easily readable.The layout, with the in troduc t ion of headings, p roduces c lar i ty , which had becom e absent in the prev ious fo rm when it was fe roc ious ly

amended. Indeed these were the very aims of the w ork ing com m it tee .

Below we h igh l ight some of the more im po r tan t changes which have been made to the fo rm . Unfortunate ly it is beyond the scope of th is art ic le to c om m en t on each and every change which has been made, but anyone w ishing to have fu r ther , deta i led , in fo rm at ion on the changes should co n ta c t the Legal D epartm ent o f the Assoc ia t ion .

CLAUSE 3 - O N /O F F -H IR E SURVEYS

O n/o f f -h ire surveys were usually covered in addit ional r ider c lauses s ince no such c lause appeared in the 1 9 4 6 fo rm . A c lause has now been added as a log ica l add it ion to the cha r te rpa r ty , fo l low ing the clause on Delivery. In line w ith usual p rac t ice it p rov ides th a t the on-hire survey is to be in C harte re r 's t ime, the off-h ire survey to be in Owner’s t ime.

CLAUSE 4 - DANGEROUS C A R G O / CARGO EXCLUSION

The 1 9 4 6 fo rm prov ided only tha t the vessel was to be em ployed “ in ca rry ing lawful m erchand ise ” . There was no prov is ion which fo rbad e the sh ipm ent of dangerous cargo although the part ies usually prov ided fo r such by way o f am endm ents to the p r in ted fo rm . The new fo rm conta ins a spec if ic exc lusion of “ l ives tock o f any desc r ip t ion , arms, ammunit ion, exp los ives, nuc lear and rad ioac t ive m a te r ia ls ” but p rov ides th a t the vessel shal l be allowed to ca rry “ goods o f a dangerous, in jurious, f lam m able or co rros ive na tu re ” if ca rr ied in acco rdance with the requ irem en ts or recom m enda t ions o f com p e te n t author it ies .

In recogn it ion o f the fa c t tha t many hull po l ic ies put a l im it on the am ount o f dangerous ca rgo which can be carr ied on any one voyage a new prov is ion has been inserted

prov id ing tha t if IMO-classified cargo is agreed to be ca rr ied the amounts shall be l im ited to the maximum agreed between the part ies.

CLAUSE 7 - CHARTERERS TO PROVIDE

A s tandard am endm ent to Clause 2 o f the 1 9 4 6 fo rm was to add the w o rds “wh ils t on h ire ” a f te r the w ord “ C ha r te re rs ” . This provis ion now appears in the p r in ted tex t.The rem ainder o f the c lause is essent ia l ly the same as the previous word ing .

CLAUSE 8 - PE R F O R M A N C E OF VOYAGES

Clause 8 has mainta ined the same div is ion o f respons ib i l i ty fo r cargo m atte rs between Owners and Charte re rs as was found in the 1 9 4 6 vers ion but, im portan t ly , rec t i f ies the om iss ion of any re fe rence to “ d isch a rg e ” which was usually added in p rac t ice . The c lause now ta lks of Charte re rs pe r fo rm ing “ all ca rgo hand ling” and then goes on to detail the opera t ions more c lose ly including a re fe rence to “ d isch a rg in g ” .This should add c la r i ty to the div is ion o f respons ib i l i t ies . The prov is ion regard ing s igning of bil ls o f lading has now been moved to a separate free s tand ing c lause (Clause 30).

CLAUSE 9 - BUNKERS

The prov is ions o f old Clause 3 are now deta i led in Clause 9, but prov ide th a t not only the quanti ty of bunkers on de l ive ry / re d e l ive ry should be spec i f ica l ly agreed but also the pr ices . This is p re fe rab le to the re fe rence to “ cu r re n t p r ic e ” in the p rev ious fo rm which was always vague and p rob lem at ic .

In Clause 9(b) the cha r te r has been amended to encourage the part ies to agree and c learly set out the spec if ica t ion o f bunker fue ls requ ired by the vessel. Clause 9(b)

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goes on to p rov ide what Owners' r igh ts are to be if the fuel supplied by the C harte re rs does not com ply with the agreed spec if ica t ion or is o therw ise unsuitable fo r the vessel. This is an im p o r ta n t addit ion since it will obv ia te the necess i ty of having to imply te rm s into the co n tra c t about what C ha r te re r ’s ob l iga t ions were with regard to the prov is ion of fuel.

CLAUSE 11 - HIRE PA YM E N TS

Sub-clauses (a) and (b) of Clause 11 conta in some im po rtan t amendments to the hire paym ent c lause of the 1 9 4 6 fo rm (Clause 5). Firstly, the la t te r part of sub-clause (a) prov ides tha t Owners shall have the r igh t to w ithhold pe rfo rm ance of any or all of the ir ob l iga t ions under the char te r wh ils t hire remains ou ts tand ing.This is an im p o r ta n t new r igh t fo r Owners since Owners have never prev ious ly been allowed to make a “ part ia l w ithd raw a l” o f the vessel f rom the charte r. Owner's remedy was prev ious ly a case o f all or noth ing i.e. they e ither had to w ithd raw the vessel fo rm a l ly under the char te r or they had to continue with the charte r. The l iberty to w ithho ld pe r fo rm ance will be part icu la r ly helpful to Owners when hire is m iss ing when the vessel is about to load a ca rgo fo r a new voyage and there is a C harte re r who is in severe f inancial d i f f icu lt ies .If the Owner p roceeds to load the ca rgo he runs the risk o f being saddled with the pe r fo rm ance of the new voyage w itho u t hire being paid. It is too late to w ithd raw the vessel if the ca rgo has been loaded and bil ls of lading have been s igned.Thus if the Owner can re fuse to load until hire is paid he is p ro tec ted aga ins t the w o rs t a f fec ts o f an impecunious Charterer.

Sub-clause (b) in troduces a "g race p e r io d ” o r so-called “ anti- techn ica l i ty " c lause which has becom e com m on in many c ha r te rpa r t ies by v ir tue o f an addit ional c lause. The prov is ions are aimed at p revent ing cance l la t ions and w ithd rawa ls fo r t r i f l ing delays over which C ha rte re rs may have no con tro l .

CLAUSE 1 6 - D E L IV E R Y / C ANCE LLING

The im po rtan t addit ion to th is c lause is the “ ex tens ion o f cance l l ing ” c lause or so-called “ in terpe l la t ion

c lause ” . The idea behind the clause is to p ro te c t an Owner f ro m the som et im es harsh resu lts of being unable to make a cance ll ing date but neverthe less being legally ob l iged to tende r his vessel fo r delivery, perhaps a t a rem ote port , only to find tha t the cha r te r will be cance lled. In the ex tension of cance ll ing c lause the C harte re rs are requ ired to dec la re w hether or not they will cancel the cha r te rp a r ty p r io r to the Owner se tt ing ou t fo r the port or p lace of delivery.

CLAUSE 17 - OFF-HIRE

Substantia l am endm ents have been made to the 1 9 4 6 off-h ire clause, in Clause 17 of the 1 9 9 3 vers ion. The c lause appears to rem edy some of the “ in jus t ices" which Charte re rs bel ieved they suffe red under the old c lause. Thus, we find tha t the vessel is now express ly off-h ire should she deviate or put back during a voyage con tra ry to the o rde rs of C harte re rs or fo r a reason o the r than is pe rm it ted by the l iberty clause.Under the old c lause full hire became payable as soon as the vessel was again e ff ic ien t, so tha t a fter , fo r example, a to ta l b reakdown causing a vessel to d ive r t to a po r t of refuge C harte re rs were ob l iged to pay hire f ro m the m om ent the vessel was repa ired even during the period the vessel was ge t t in g back into the pos it ion she was in when she dev iated or put back.

We also see what had become a s tandard am endm en t /add i t io n to the c lause inco rpo ra ted into the pr in ted te x t at the f i r s t line, namely the prov is ion tha t the vessel is off- hire owing to loss of t im e from “ de fau lt a n d /o r s tr ike of o f f ice rs or c re w ” . There is also c la r i f ica t ion of the issue o f w hether the vessel is off -h ire wh ils t under a r re s t (unless the a rres t is caused by the C harte re rs them se lves). Line 2 2 2 of the c lause places the vessel off-h ire fo r such per iods - an issue which was unclear in the prev ious fo rm and which to a large ex ten t depended upon the underly ing reason fo r the a r re s t fo l low ing the dec is ion o f the High Court in “THE MAESTRO GIORGIS” (1 9 8 3 ) 2 L loyd 's Rep. 66.It m ust be rem em bered , however, th a t th is pa r t icu la r cause of off-hire is sti ll sub jec t to Charte re rs dem ons tra t ing tha t the full work ing of the vessel has been prevented .

Finally on Clause 17 we see the add it ion of the word “ s im i la r ” in “ any o the r sim ilar cause p revent ing the full w ork ing of the vesse l” (line 225). The 1 9 4 6 vers ion m ere ly re fe rred to “ any o ther c a u s e . . . ” . A lthough unclear f rom the w ord ing , the opera t ion of the so called “ ejusdem g e n e r is ” rule meant tha t “ any o ther cause ” was re s t r ic te d to a cause of the same type as those spec if ica l ly l is ted in the clause. This is now c la r i f ied by the use of the word “ s im ilar" .

CLAUSE 2 3 - LIENS

Mr Just ice Lloyd in “THE CEBU”(1 9 8 3 ) 1 L loyd 's Rep. 3 0 2 , held tha t in the con tex t of the NYPE fo rm the re fe rence to ’sub-fre ights ' in the lien c lause included sub-time cha r te r hire. However, Mr Just ice Steyn in “ THE CEBU NO. 2 ” (19 9 0 ) 2 L loyd 's Rep. 3 1 6 dec l ined to fo l low the previous dec is ion and found tha t “ p roper ly cons trued “ sub- fre igh ts ” in Clause 18 does not inc lude sub-time cha r te r h ire” . To rem edy the s ituat ion the liens c lause in the new fo rm now makes spec i f ic re fe rence to “ sub­h ire” , an am endm ent many Owners were making fo l low ing the dec is ion of “THE CEBU NO. 2 ” .

CLAUSE 2 7 - CARGO CLAIM S

The new fo rm makes an express re fe rence to the Inter Club New York Produce Exchange A g reem ent or any m od if ica t ion or rep lacem ent thereo f . The part ies should rem em ber , however, tha t fo r the Inter-Club A g reem ent to be e f fec t ive there must not be substant ia l am endm ents to e ither Clause 8 or Clause 26 (Navigation). The Inter-Club A g reem ent is p resent ly being revised and a new A g reem en t is expected short ly .

CLAUSE 3 0 - BILLS OF LADING

As ind icated in the com m en ts on Clause 8 above the p rov is ions concern ing signing of bil ls o f lading have been moved to a self-standing c lause. It was always th o u g h t that there was an implied indemnity under Clause 8 in favour o f Owners, aga ins t any consequences which may arise f ro m an incons is tency between bills of lading s igned by the Charte re rs and the prov is ions of the

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cha r te rpa r ty . This s ituation is now covered by an express indemnity in pa r t (b) of Clause 30.

CLAUSE 3 1 - PROTECTIVE CLAUSES

By Clause 24 of the 1 9 4 6 fo rm , the cha r te r was sub jec t to the Harte r Act as well as the US Carr iage o f Goods by Sea Act which was also to be inco rpora ted into any bil ls o f lading issued under the charte r. Given the world-w ide use of the NYPE fo rm , however, it was though t tha t it was no longer app rop r ia te to make the c ha r te r sub jec t to the Harte r Act and the re fo re re fe rence to th is s ta tu te has now been om itted .

Clause 31 of the new fo rm makes the cha r te r and all bil ls of lading or way bills (an addit ion to the 1 9 4 6 form), sub jec t to the prov is ions of the US Carr iage of Goods by Sea Act, the Hague Rules or the Hague- Visby Rules or “ such o the r sim ilar national leg is la t ion as may m and ito r i ly apply by v ir tue o f or ig in o r dest inat ion of the bil ls of lad ing” as may be the case.

In addit ion Clause 31 inco rpora tes the Both To Blame Coll is ion Clause, New Jason Clause and the US Trade Drugs Clause all of which were com m on ly dea lt w ith by r ider c lauses to the prev ious fo rm .

Whilst the addit ion o f the d rugs c lause may be w e lcom ed by owners, it is likely to be unpopular with cha r te re rs , espec ia l ly the p rov is ions making them respons ib le fo r drugs found concea led on the vessel o ther than in ca rgo or crew e f fec ts . M oreover cha r te re rs will be r igh t in being scept ica l about such prov is ions, fo r the indemnit ies they are requ ired to give owners may well be outs ide the ir P&l cover. We would sugges t any cha r te re rs take fu r the r advice be fo re agree ing the d rugs clause. Clause 31 also adds a war c lause at paragraph (e). The 1 9 4 6 fo rm did not conta in a war c lause in its pr in ted tex t . To rec t i fy th is s ituat ion it was com m on to find the part ies agree ing to an addit ional c lause, often inc luding the long obso le te Chamber o f Sh ipping War Risk Clauses 1 and 2. During the d iscuss ions on the d ra f t ing o f a war c lause fo r the 1 9 9 3 fo rm , BIMCO sugges ted tha t the recent ly revised “ C onwart im e” c lause known as “ Conwart im e 19 9 3 " be inco rpo ra ted into the new fo rm . (See Gard News 132). The C onwart im e c lause has been tho rou gh ly revised to meet

p resen t day requ irem en ts and the poss ib i l i ty of ac t ions or in tervent ion of supranationa l bodies or o rgan isa t ions such as the United Nations and the European Union in war s ituat ions. However, wh ils t acknow ledg ing tha t the “ Conwart ime 1 9 9 3 ” c lause was a g rea t im provem ent, ASBA p re fe r red to see the c lause tr ied and tes ted over a period of t im e before inc luding it in the NYPE 93 . ASBA have ind icated, however, tha t they will cons ide r inc luding the c lause as an am endm ent to the NYPE at a fu tu re date if t im e has shown th a t the c lause works sa t is fac to r i ly . Consequently the war clause con ta ined in Clause 31(e) is som eth ing o f a com prom ise .It is im po r tan t to rem em ber , however, tha t the war clause should be mainta ined in con junct ion with the war cance l la t ion c lause to which see below.

CLAUSE 3 2 - WAR C AN CELLAT IO NS

This clause, g iv ing e ither party the r igh t to cancel the cha r te r in the case of ou tb reak of war, has been a com m on addit ion to the old fo rm . It now s tands as an independent pr in ted clause.

CLAUSE 3 5 - STEVEDORE DAMAGE

The 1 9 4 6 fo rm did not conta in a clause dealing with s tevedore damage. As a consequence the issue was com m on ly dea lt w ith in a r ider c lause. Unfortunate ly , however, all too o ften such r ider c lauses were badly d ra f ted and le ft room fo r c o n f l ic t between the part ies and d isputes over the ir respect ive ob l iga t ions . The new clause appears to avoid many of the obvious p rob lem s seen in "hom e-m ade” clauses but would sti ll seem to prov ide some scope fo r d isag reem en t over the no t i f ica t ion of damage. Sub jec t to th is po in t the c lause sets out fa ir ly c lear ly the part ies ' respec t ive ob l igat ions .

CLAUSE 4 0 - D O C U M E N T A T IO N

This is ano ther new clause and ob l iges Owners to prov ide all necessary docum enta t ion re la t ing to the vessel as may be requ ired to pe rm it her to t rade w ith in the agreed l im its. It was p rev ious ly implied tha t the vesse l would ca rry all requ is ite

docum enta t ion in o rde r fo r her to trade between the agreed l imits. However, the advent o f prob lem s with ce r t i f ica te s of f inancial respons ib i l i ty fo r oil po l lu t ion meant th a t these m a t te rs were now com m on ly dea lt w ith in an express clause. It is to be noted tha t so far as c e r t i f ica te s o f f inancial respons ib i l i ty are concerned the Owner is only ob l iged to prov ide these “ prov ided such .. .ce r t i f ica te s are obta inab le f rom the O wners ’ P&l c lub ” . We suspec t tha t th is clause will f requen t ly be the sub jec t of negotia t ion between the part ies espec ia l ly when the United Sta tes final rule on ev idence of f inancial respons ib i l i ty is published.

CLAUSE 4 1 - STOW AW AYS

This is another addit ion to the prev ious fo rm . BIMCO sta te tha t the p rov is ions o f Clause 41 are “ an a t te m p t to a l locate the risks and cos ts between Owners and Charte re rs in the case of s towaways ga in ing access to the vesse l” . We suspec t tha t th is c lause will be sub jec t to negotia t ion between the part ies since it has poten t ia l ly more fa r reach ing consequences than was probab ly intended. In part icu la r , it may give rise to l iab i l i t ies which are outs ide a ch a r te re r ’s P&l cover. A cha r te re r should the re fo re seek advice f ro m the Assoc ia t ion before accep t ing th is clause.

CLAUSE 4 5 - ARBITRATION

For the sake o f cons is tency ASBA sugges ted tha t the a rb i t ra t ion c lause in the various cha r te rpa r t ies issued under the ausp ices o f ASBA, inc luding the “ NORGRAIN 8 9 ” , “ NYPE 9 3 " and “AMWELSH 9 3 ” should be identica l by adop t ing the te x t o f the a rb i t ra t ion c lause in the NORGRAIN 8 9 charte r. This was agreed and Clause 45 is the result. It should be noted tha t Clause 4 5 now prov ides a cho ice between New York o r London and in both ju r isd ic t ions also prov ides an op t ion fo r the “ Shortened A rb it ra t ion P roce du re ” (New York) or the “ Small C la ims P roce du re ” (London).

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SHIPOWNER’S LIABILITY FOR PASSENGERSUNDER ENGLISH AND NORWEGIAN LAW

IN TR O D U C TIO N

In the Scandinavian countr ies the sh ipowner ’s l iab i l i ty fo r injury to or death of passengers and fo r damage to or loss of the ir luggage is based on fault. In co n tra s t to the United Kingdom, ne ither Norway, Sweden nor Denmark have ra t i f ied the Athens Convention re la t ing to the Carr iage of Passengers and the ir Luggage by Sea 1974 , but the materia l p rov is ions and pr inc ip les laid down in the Convention are inco rpo ra ted into the Scandinavian c o u n tr ie s ’ respec t ive m arit ime leg is la t ions with the except ion of the l im itat ion f igu res . When the 1990 P ro toco l to the Athens Convention inc luding the increased l im itat ion f igu res com es into fo rce , the Scandinavian coun tr ies ' leg is la t ions should be harmonised with the Convention, a lthough it is still an open quest ion w hether the Scandinavian coun tr ies will ra t i fy the Athens Convention.

Aga ins t this background it is in te res t ing to examine the d ra f t package to u r leg is la t ion in Norway in o rde r to d iscove r bow it im pinges on a sh ipowner ’s l iabili ty. This a rt ic le is based on the Norwegian d ra f t Package Tour Act which again is based on the Council D irective 9 0 /3 1 4 /E E C on Package Travel, Package Holidays and Package Tours. A com par ison is then made with the pos it ion under English law.It is not known when the d ra f t Ac t will com e into fo rce in Norway, but it is unlikely to pass into law be fore 1 995 .

SCOPE OF APPLICATIO N

The d ra f t Package Tour Act will apply to “ package to u rs ” which include a p re-arranged com bina t ion of a t least two of the fo l low ing com ponen ts sold at an inc lusive pr ice (a) t ran sp o r t , (b) accom m oda t ion and (c) o the r to u r is t se rv ices not anc i l la ry to t ra n s p o r t and accom m odat ion .

A typ ica l “ package" is l ikely to be a com bina t ion of ca rr iage by air and accom m oda t ion at a hotel at the des t inat ion. It could be, fo r example, a six day t r ip to the Canary Is lands including both t ra n s p o r t and hotel accom m oda t ion . A ccord ing to the o ff ic ia l com m en ta ry to the d ra f t leg is la t ion a package tou r will also include ca rr iage by sea when the ship serves as both means of t ra n s p o r t and accom m odat ion , prov ided the main purpose of the ca rr iage is to s tay and be en terta ined aboard the ship, fo r example a cru ise. This means tha t the d ra f t Package Tour Act may apply to the coasta l c ru ises with the Norwegian “ H u r t ig ru ten ” , w h ils t the p rov is ion of a berth on a fe rry sailing between Norway and the Continent wil l not c rea te a “ package ” under the d ra f t Act. In the la tter case the main purpose of the t ra n s p o r t is to be ca rr ied f rom one place to another. In o the r words, the ca rr iage by sea in such a case is jus t "p a r t o f the ro a d ” .

The d is t inct ion in some cases may be d i f f icu l t to draw because ca rr iage by sea may som et im es involve both e lem ents descr ibed above and the main purpose of being on board may not be so easy to identi fy . It is l ikely, however, tha t these unanswered quest ions will be dea lt with in fu tu re case law, although we suspec t tha t it will be the passenger or the “ c o n su m e r” , which is the te rm in o lo g y used in the d ra f t Package Tour Act, who will have the benefi t o f the doubt.

THE ORGANISER AND THE C O N SU M ER

The re levant part ies under the d ra f t leg is la t ion are not, as we a lready have ind icated above, re fe rred to as the “ c a r r ie r ” and the “ passe n g e r” as we are used to in m arit ime leg is la t ion, but the “ o rg a n is e r ” and the “ c o n su m e r” . The “ o rg a n ise r ” is defined as the person who organ ises package to u rs and sells o r o f fe rs

them fo r sale w hether d irec t ly or th rough a re ta i le r . If a sh ipowner assumes a tou r o p e ra to r func t ion he may be deemed to be an “ o rg a n ise r ” under the d ra f t Package Tour Act.The o ff ic ia l com m en ta ry to the d ra f t Ac t re fe rs to an owner o f a Norwegian coasta l c ru isesh ip (Hurt ig ru ten) as an example o f a sh ipowner who may assume an o rg a n ise r ’s l iabili ty under the d ra ft Package Tour Act because a cru ise is a com bina t ion of t ra n s p o r t and accom m oda t ion and the p r im ary pu rpose of a c ru ise is not s imply to g e t to one place f ro m another.

The "c o n s u m e r” is defined as the pr inc ipa l co n t ra c to r who has agreed to purchase the package tour, or any person to whom the princ ipal c o n t ra c to r t ra n s fe rs the package. Again a c ru isesh ip passenger on board one of the Norwegian coasta l c ru isesh ips is an i l lus tra t ive example o f a person who may have the benefi t o f being a consum er under the d ra f t Package Tour Act as opposed to being a passenger under trad i t iona l m ari t im e leg is la t ion . We explain below why we believe it to be a benefit .

IN TER NA TIO NA L C O N V E N T IO N S

An observan t reader may quest ion how the d ra f t package tour leg is la t ion may in te r fe re with a sh ipowner ’s l iab i l i ty because m ari t im e leg is la t ion in m os t European coun tr ies is based on various in ternat iona l conventions , which the State part ies are bound to fo l low in the ir dom es t ic law, fo r example the above-ment ioned Athens C onven t ion .1 As fa r as the Scandinavian countr ies are concerned , they have not ra t i f ied the Athens Convention and consequent ly the Convention will not govern the serv ice which the sh ipowner is render ing to the passenger if Scandinavian law applies. The quest ion may, however, be re levant in o the r ju r is d ic t io n s ^ .g . England) and it has been dea lt with

21 - -

express ly in the European D irective. The D irect ive pe rm its the co n tra c t between the o rgan ise r (i.e. the shipowner) and the consum er (i.e. the passenger) to prov ide fo r com pensa t ion to be l im ited in accordance with the in ternational conventions govern ing the serv ices involved in the package. In o ther w ords , under the d ra f t Ac t the sh ipowner acting as an “ o rg a n ise r ” has the r igh t to l im it l iab i l i ty under the law govern ing the c o n t ra c t of ca rr iage or the law govern ing the serv ices rendered to the passenger prov ided tha t the law is based on an in ternational convention which has been ra t i f ied and im p lem ented in the re levant ju r isd ic t ion .

STRICT LIABILITY

The e f fe c t o f the p roposed Package Tour Act will be to impose s t r ic t l iabili ty on the pa r t of the o rgan iser who may be a sh ipowner as explained above. The d ra f t leg is la t ion p rov ides tha t the o rgan ise r is liable to the consum er (i.e. the passenger) fo r any damage, inc luding personal injury and death, caused to him by the o rg a n ise r ’ s (i.e. the shipowner's) fa i lu re to per fo rm the c o n t ra c t or the im p rope r pe r fo rm ance of the con trac t . There are some l imited except ions with regard to fo rce majeure and where the fa i lu res which o ccu r in the pe r fo rm ance of the c o n t ra c t are a tt r ibu tab le to the consum er himself.

In o the r w ords, if the sh ipowner is deemed to be an “ o rg a n ise r ” pursuant to the d ra f t Package Tour A c t he is s t r ic t ly l iable fo r injury to or death of a passenger who is deemed to be a consum er under the said Act. The p roposed leg is la t ion extends the sh ipow ner ’s l iab i l i ty beyond tha t under the trad it iona l m ari t im e leg is la t ion which is based on the pr inc ip le of fau l t and under which the c la im ant passenger m ust establ ish such fau l t on the pa r t o f the ca rr ie r or his servants.

LIM ITA TIO N OF LIABILITY

Under the d ra f t Package Tour Act the o rgan ise r has an unlim ited l iabili ty save to the ex ten t the se rv ices are governed by any in ternat iona l conventions . As we have explained above, the Athens Convention has not been ra t i f ied by the Scandinavian countr ies and consequent ly under

Scandinavian law the said Convention does not govern the serv ices which are supplied to a c ru ise passenger. Aga ins t th is background a shipowner, who is deemed to be an o rgan ise r under the d ra f t Package Tour Act, will have unlim ited l iab i l i ty fo r any injury to or death of a passenger, who is also a consum er under the p roposed Package Tour Act. The new Package Tour Act wil l supersede the trad i t iona l m ari t im e leg is la t ion govern ing the ca rr iage o f passengers by sea save fo r the ow ne r ’s r igh t to l im it l iab i l i ty pursuant to the 1 9 7 6 Convention on L im ita t ion of L iabil ity fo r M arit ime Cla ims, which has been ra t i f ied by m os t European States inc luding the Scandinavian c o u n tr ie s .2

Under the 1 9 7 6 Convention the sh ipowner has the benefi t of es tab l ish ing a ce i l ing fo r the to ta l l iab i l i ty ar is ing out of one event. Acco rd ing to the cu r re n t l im itat ion f igu res the maximum liab i l i ty fo r passenger c la ims under the 1 9 7 6 Convention aris ing out o f one event is ca lcu la ted on the basis of SDR 4 6 ,6 6 6 m ult ip l ied with the number of passengers the ship is ce r t i f ied to carry . The maximum liabili ty shall in any event not exceed SDR 25 million.

The sh ipowner 's r igh t to l im it l iabili ty pursuant to the 1976 Convention wil l only apply if and to the ex ten t he is held liable as a sh ipowner, i.e., the c la im is deemed to be a m ari t im e cla im because it has arisen in d i re c t connect ion with the opera t ion o f a ship. If on the o the r hand a c ru ise sh ipowner as a tou r o p e ra to r has a rranged shore excurs ions and is held liable as a to u r opera to r , he will not be ent i t led to l im it l iabili ty pursuant to the 1976 Convention quite s imply because the c la im will not be deemed to be a m ar i t im e c la im.

P O SIT IO N UNDER ENGLISH LAW

The EEC D irect ive has a lready been inco rpo ra ted into UK law by the Package Travel, Package Holidays and Package Tours Regulations 1 9 9 2 , which app ly to packages sold or o f fe red fo r sale on o r a f te r 3 1 s t D ecem ber 1992 .

The overall scheme of the Regulations is very s im ila r to tha t of the Norwegian Draft A c t since both are based on the European D irective. Sh ipowners may be caugh t by the Regulations if they are deemed to be

an “ o rg a n ise r ” by o rgan is ing and selling or o f fe r ing packages fo r sale. The Departm en t of T rade and Industry (D.T.I.) has issued some gu idance notes to ass is t in in te rp re t ing the Regulations although these are not law and u lt imate ly it will be the European Court of Justice which will in te rp re t the D irect ive on which the Regulations are based. In the D.T.I. ’s opinion, a c ru ise will c rea te a ‘packa g e ’ in th a t it com bines both t ra n s p o r t and accom m oda t ion and the prov is ion o f accom m odat ion in such a case would be more than inc identa l to the prov is ion of t ranspo r t . However, a berth, fo r example, on a c ross-channel fe rry , will not c rea te a package since the p rov is ion o f accom m oda t ion is not a s ign i f ican t e lem ent and is merely incidenta l to the prov is ion of t ranspo rt .

N otw iths tand ing the above, some fe r ry o pe ra to rs may find tha t they are sti ll caught by the Regulations in the ir capac ity as an ‘o rg a n ise r ’ o f c ross channel tr ips which include a fe r ry c ross in g and a few days hotel accom m oda t ion on the cont inent.

Under English law the im pac t of being a sh ipowner and ‘o rg a n ise r ’ is not so d ram at ic as it will be under Scandinavian law. The UK has ra t i f ied the Athens Convention and the re fo re the Convention applies to all c o n tra c ts made in the UK fo r the in ternat iona l ca rr iage o f passengers by sea.

Since the 1 9 9 2 Regulations p e rm it an o rgan ise r to l im it his l iab i l i ty to pay com pensa t ion to the consum er in acco rdance with the International Conventions which govern the serv ices included in the package, a s h ip o w n e r /o rg a n ise r selling a package in the UK may the re fo re l im it his l iab i l i ty to pay com pensa t ion fo r any loss a n d /o r damage su ffe red by the p a s s e n g e r / consum er during the ca rr iage by sea in accordance with the Athens C onvent ion .3

In theo ry the 1 9 9 2 Regulations may have in troduced a s ign i f ican t advantage to the p a s s e n g e r / consum er in re sp e c t of b r ing ing a c la im aga ins t the s h ip o w n e r / o rgan iser. The Athens Convention prov ides tha t the c a r r ie r shal l be l iable to the passenger if the loss or damage suffered by the passenger was due to the fau l t or neg lec t o f the ca r r ie r or his servants or agents. Now, a sh ipowner, who is also an o rgan ise r under the 1992

22

PORT STATE CONTROL UNITED STATES OF AMERICA

SUB-STANDARD SHIPS

Regulations, will be s t r ic t ly liable to the p a sse n g e r /c o n s u m e r fo r the p rope r pe r fo rm ance of the con trac t , sub jec t to certa in l im ited defences based on un foreseeab i l i ty or fau l t of the consum er. The p a s s e n g e r / consum er no longer has the burden of prov ing fau l t on the part o f the ca rr ie r . However, only t im e will tell w hether the Regulations will resu l t in a substant ia l increase in the number of successfu l passenger cla ims.

THE P&l COVER

P&l insurance covers l iab i l i t ies in re sp e c t o f passengers incurred in d i re c t connec t ion with the operat ion of the entered ship. If the Member incurs a l iabili ty in re sp e c t of a passenger in d i rec t connect ion with the opera t ion o f the ship, it will in pr inc ip le be covered under standard P&l te rm s of entry regard less of whe the r the l iabili ty is based on t rad it iona l m ari t im e leg is la t ion or any new package tou r leg is la t ion. The te s t with regard to the P&l cover is whether the cla im is a m ari t im e claim ra ther than w hether the sh ipowner has incurred the l iab i l i ty under the m ari t im e code as opposed to o ther leg is la t ion, prov ided tha t the P&l insu re r ’s l iab i l i ty shall not exceed what it would have been had the passage co n tra c t re lieved the sh ipowner o f l iab i l i ty to the maximum ex ten t perm it ted by app licab le law.

PO STNO TES

1 Of the EU and EFTA c o u n trie s only B elg ium , G reece, Luxem bourg , Spain and UK have ra tif ie d the Athens C onvention.2 Of the EU and EFTA c o u n trie s the fo llo w in g have ra tif ie d the 1 9 7 6 L im ita tion C onvention: B elg ium D enm ark, Finland, France, G erm any, G reece, N ethe rlands, N orw ay, Spain, Sweden and JJK. The fo llo w in g have ra tif ie d the 1 9 5 7 L im ita tion C onvention: P ortuga l, Ice land and Luxem bourg .3 Under the A thens C onvention the m axim um lia b ility o f a c a rr ie r fo r dea th of o r pe rsona l in ju ry to a passenge r is 4 6 ,6 6 6 SDRs. By v irtu e o f A rtic le 7(2) of the C onvention , the UK has increased the lim it to 1 0 0 ,0 0 0 SDRs in re sp e c t o f its own na tiona l c a rr ie rs .

On 1s t May the US Coast Guard in troduced a new sub-standard ship inspect ion p rog ram m e. This p rog ram m e mod if ies the Coast Guard's fo rm e r po r t s tate con tro l p rog ram m e and ta rg e ts ships which are cons ide red to be the g re a te s t r isk to sa fe ty o f life, the po r t and the environment.

Various fa c to rs are cons idered to con tr ibu te to the risk including the vessel f lag , c lass, owner, age and the h is to ry of prev ious USCG in tervent ions . Foreign f lag vessels presen t ing the g re a te s t r isk will be ta rg e te d and p r io r i ty will be given to inspect ing such ships. Some will be inspected on every voyage. Consequently , delays can be expec ted . L ists of sub-standard f lags and c lass i f ica t ion soc ie t ies will be made available to the public. Originally , l ists of sub-standard owners were available as well but a f te r the o u tc ry f rom sh ipowners they are no longer available to the public.

The ta rge te d owner is defined as the owner, opera to r , o r managing o p e ra to r o f any vessel tha t is the sub jec t of a US po r t s tate in tervent ion carr ied out under the au tho r ity o f an in ternat ional convention. Every vessel assoc ia ted with the ta rg e te d owner, not ju s t the vesse l sub jec ted to in tervent ion, will be a f fec ted . Targe ted owners can be removed from the l ist if none of the vesse ls w ith which they are assoc ia ted are in tervened with in a twe lve-month period.

A ta rg e te d c lass i f ica t ion soc ie ty is a c lass i f ica t ion soc ie ty which has not been recogn ised by the Coast Guard as dem onstra t ing com p l iance with the gu ide l ines in IMO Resolution A .7 3 9 (1 8 ) .1 The Coast

Guard is m od ify ing its regu la t ions to require the ve sse l ’s c lass i f ica t ion soc ie ty to be included in the ve sse l ’ s advance notice o f arrival in US waters .

Targe ted f lag s ta tes are ident i f ied based on a com par ison of the vessel in tervent ion ra t ios of various f lag s ta tes . At p resen t the ta rg e te d f lag s ta tes are as fo l lows:

Paraguay, the Dominican Republic , Belize, Peru, St V incent and the Grenadines, Ecuador, Venezuela, Honduras, Argent ina, United Arab Emirates, Malta, Vanuatu, Cyprus, India and the Bahamas.

It should be noted tha t a s im ilar in it ia t ive can be expected in the European Union coun tr ies short ly .The European Com m iss ion has p roposed a D irect ive on Common Rules and S tandards fo r Ship Inpsection and Survey O rganisat ions. The D irect ive is intended to enhance sa fe ty s tandards and help prevent pollut ion by e l im ina t ing sub-standard o pe ra to rs and ships f ro m European Union waters .

PO S TNO TE S

1 R esolu tion A .7 3 9 (18 ) was adop ted on 4 th N ovem ber 1 9 9 3 . It seeks to deve lop un ifo rm p ro ce d u re s to a s s is t fla g S ta tes in the un ifo rm and e ffe c tiv e im p lem en ta tion o f IMO C onventions, such as the S afe ty o f L ife at Sea C onvention 1 9 7 4 (SOLAS), the Load Lines Convention 1 9 6 6 , the C onvention fo r the P revention o f P o llu tion fro m Ships (MARPOL 7 3 /7 8 ) and the C onvention on S tandards of T ra in ing , C e rt ific a tio n and W atchkeep ing fo r S ea fa re rs (STCW)

23

"LITTLE SHOP OF HORRORS"

O ur D e a r D e p a rte d : This is a b a lla s t tank ven t p ipe w h ich , w ith rubbe r hose aid and cap a 'c o ck , has gone its own way - leaving free a ccess fo r w a te r fro m the w e a th e rd e ck via the tw eendeck in to th e low er hold though a pipe w hich bore a s tro n g fa m ily likeness to "the one th a t g o t away"

H a tc h c o v e r L au n d ro m at: H atchcove r o f the "O verhanging rubber p a ck in g '-typ e . Ensures in s ta n t w ash ing down by seaw a te r o f all those dus ty g ra in ca rg o e s . A lso very popu la r am ong C la im s R ecovery A genc ies , w here it is ca lled the “Make my day“-hatch.

F lashy E q u ipm ent: Open c o n tra c to r on live e le c tr ic a l w ir ing on cranehouse . If you fee l bo red on seaw a tches, th is p rov ides in s ta n t e n te rta in m e n t when the seas g e ts choppy!

P&l IN C ID E N TS

PERSONAL INJURY

ILLNESS CLAIMS IN AUSTRALIATALES FROM ‘DOWN UNDER’

O ur readers may recall an a rt ic le in an ear l ie r edit ion of Gard News ent i t led ‘Personal Injury - Il lness c la ims in Austra lia , In

the course o f h is /h e r e m p lo ym e n t”?' (Issue 130, Page 7). In tha t edit ion we repo r ted on the case of a seaman who wh ils t jo g g in g in his own t ime, died o f a heart a ttack . His w idow and two chi ld ren b rough t a claim pursuant to the prov is ions of the Seaman’s Com pensation A c t 1911 (Commonwea lth) . In view of the c i rcum sta nces o f the case l iabili ty was denied. Unfortunate ly , the judge held th a t the deceased died by reason of injury in the course of his e m p loym ent and the sh ipowners were the re fo re found l iable. An appeal has been entered but is unlikely to be heard be fo re the m iddle of th is year. We will o f course re p o r t fu r the r on the ou tcom e.

In the m eantime, readers may be in te res ted in the fo l low ing case summaries:

A ‘N EA R ’ MISS?

This case involved the Third O ff icer o f a vessel entered w ith the Assoc ia t ion who a l legedly suffe red a t raum a t ic s tress d iso rde r in March 1991 .

The vessel was proceed ing th rough the Cook S tra it and the Third O ff ice r was on watch on the b ridge during the hours of darkness, when a near co l l is ion occu rred .There are various vers ions of the fac ts , but it is c lear th a t the vessel, which was t rave l l ing at 20 knots at the t ime, came within half a mile o f a wooden cerem on ia l Maori war canoe, carry ing 90 people on board. The Third O ff ice r was respons ib le fo r m anoeuvr ing the vessel at the t ime.

The Third O ff ice r ceased his sh if t at m idn igh t fee l ing “ ex trem ely ag ita ted , anxious and nauseous"

caused by reco l lec t ions of what he cons idered to have been “very c lo se ” to a co l l is ion. On arrival in the po r t the next day, he was la ter d iagnosed as suffe r ing f ro m a c lassica l p resenta t ion of p os t t raum a t ic s tress d isorder.

The Master re lieved him of his duties and he was repa tr ia ted to Austra lia to undergo fu r the r psych ia tr ic counsell ing .

He was paid full wages fo r th ree m onths under the prov is ions of the Navigation Act, 1912 .Following tha t per iod, com pensat ion paym ents were gran ted in acco rdance with the Seaman's Compensation Act 1911 (SCA 1911). These ceased in June, 1991 when a medica l re p o r t ind icated tha t he could no longer be cons idered unfi t fo r work.

The Third O ff ice r then brough t a c la im fo r on-going weekly benefi ts and medical expenses, and com pensa t ion fo r perm anent im pa irm en t and non-economic loss. Because the c la im had been made under the repealed SCA 1 911 , he now has a cla im under the new Seafarers Rehabili tat ion and Com pensation Act 1 9 9 2 (SRCA 1992), as a resu lt o f the t rans it iona l prov is ions of the new leg is la t ion . In re sp e c t o f the claim fo r pe rm anen t im pa irm en t and non­e conom ic loss, Section 7(3) of the Seafarers Rehabili tat ion and Compensation (Transit ional Provis ions and Consequentia l Amendm ents) Act 1 992 , has de te rm ined tha t the level of com pensa t ion payable if any, will be the same th a t would have been payable under the repealed SCA 1 9 1 1 . However, Section 5B(1) of the repea led SCA 1911 conta ined prov is ions to pay a lump sum in re sp e c t of certa in losses of func t ion but did not conta in any p rov is ion to pay a lump sum in re sp e c t of s tress d iso rders .

Whils t it is not d ispu ted tha t he su f fe red a post- t raum a t ic d iso rde r as a resu lt o f a w ork re lated inc ident in March 1 9 9 1 , the medica l ev idence ind icated tha t he had recovered f rom the e f fe c t o f th a t t raum a by 26 th June 1 9 9 1 , the date he was ce r t i f ied f i t to return to work , and th a t any residual s ym p tom s did not p revent him f rom being employab le in genera l a lthough he was not regarded as f i t to return to the mari t im e industry .

A ccord ing ly , the owners have denied l iabili ty fo r com pensa t ion fo r pe rm anent im pa irm en t or non­econom ic loss. Current ly , the fo rm e r Third O ff ice r (who subsequently dec ided h im self not to re turn to life a t sea) has f i led an app l ica t ion fo r Appeal. The case con t inues.. .

H IDDEN DANGERS

This case involves a c rew a ttendan t who in Augus t 1 9 9 3 was punctured in the hand by a used hypoderm ic syr inge tha t was lodged between lounge chair cushions w h ils t he was c leaning the crew lounge area on board a vessel entered w ith the Assoc ia t ion . His duties on board the vessel involved look ing a f te r the crew, being respons ib le fo r food prepara t ion , hygiene, c leaning and genera lly ca te r ing fo r the house needs of the crew.

It appears tha t in it ia lly he was not too concerned about the inc ident until he was a lerted by a co l league to the danger of being in fec ted with a used syringe, at which po in t he became quite anxious and concerned . A c rew m em ber called the Chief O ff ice r to the scene and then requested tha t he was taken to the medical room. The Chief O ff icer ins truc ted him to remove the syringe, to apply an t isep t ic to the wound and to cover it with a p las te r d ress ing.

P&l IN C ID EN TS

The syringe was p laced in a bag and he was to ld to seek medical a t tent ion.

When the Chief O ff icer explained the poss ib le consequences of the acc iden t and tha t there was a poss ib i l i ty of having co n trac ted AIDS he became ex trem e ly anxious.

He consu lted a d o c to r tak ing the syringe with him. He was advised tha t the syringe did in fa c t bear t ra ce s of b lood and at th is he became fu r the r alarmed, quest ion ing w hether the blood was his own and if not whether the blood was HIV con tam ina ted . He was in form ed tha t the con ten ts of the syringe would be tes ted .

However, the syringe was inadverten t ly lost and he became fu r th e r a larmed tha t, as a result, tes ts m igh t not be able to de term ine if he had been con tam ina ted with the AIDS virus.

He sought advice f ro m his own d o c to r who conduc ted fu r the r tes ts to ver i fy his HIV sta tus. The initial tes ts ind icated tha t he had not been HIV in fec ted . However, he was to ld th a t it would take a fu r the r three months to de te rm ine whether, as a resu lt of the syr inge injury, he would te s t pos it ive fo r HIV.

As a resu lt he s ta tes tha t he is su ffe r ing ex trem e anxiety since the inc iden t and repo r ts tha t his cond it ion has de te r io ra ted . He rep o r ts tha t he has deve loped a sleep d isorder, averag ing only two hours sleep per night, su ffers n igh tm ares where he v isualises h imself f loa t ing in dark w a te r or fa l l ing into water. He fu r the r repor ts tha t he su ffe rs f ro m heart pa lp i ta t ions , uncontro l led persp ira t ion , loss of appeti te , mood swings, anxiety, t igh tness ac ross the chest, poor concen tra t ion , tension headaches, m orb id though ts and c laus trophob ia . He s ta tes tha t pr io r to the acc iden t he was an easy go ing soc ia lab le person while he now sta tes he has undergone a persona l i ty change becom ing aggress ive easily and w ithd raw ing f ro m social con tac t . He s ta tes tha t his wife does not understand the s ign if icance o f th is inc iden t and his cu r re n t cond it ion , and thus there has been a g re a t deal o f tens ion within the marr iage . He also repo r ts tha t his libid inal drive has decl ined and th is p laces fu r the r p ressure on the ir re la t ionsh ip . Apparent ly , his wife fee ls tha t he has s topped loving her and is cons ide r ing leaving him.

He now undergoes both psych ia tr ic and psycho log ica l t re a tm e n t although it appears tha t he is sti ll su f fe r ing severe an t ic ipa to ry anxiety tha t is quite deb i l i ta t ing and impairs his abi l i ty to funct ion normally . In the opinion of his doc to r , he is unfit fo r w ork and will be so indefin ite ly.

At the cu rren t t im e fu r the r te s ts fo r HIV have proved negative, however, it appears tha t he is still unable to re turn to w ork due to his anxious state.

The Defin it ion of “ in jury” conta ined in the SRCA 1 9 9 2 c learly inc ludes “ . . .m en ta l in jury ar is ing out of, o r in the course of, the em ployee 's em p loym en t" and as such it is likely tha t he has a com pensab le injury pursuant to the Act.

A SAUCY STORY

In th is case a County Court w r i t was issued by a c rew m em ber employed as a Bosun’s Mate on board a vessel en te red with the Assoc ia t ion c la im ing dam ages f ro m the sh ipowners fo r personal in juries a l legedly susta ined in the course o f his em p loym ent in Decem ber 1 9 9 2 . Another w r i t was also issued by the same crew m em ber c la im ing fo r damages fo r in juries a l legedly susta ined as a resu lt of an assau lt also in Decem ber 1 9 9 2 . The inc idents mentioned in the w r its apparent ly occu rred on consecut ive days.

With regard to the ear l ie r c laim the Bosun’s Mate al leged tha t he susta ined an injury to the lumbar sec t ion o f his spine as well as the aggrava t ion and acce le ra t ion of degenera t ive changes in the lumbar spine when he slipped on the deck of the vessel. At the materia l t im e he c la im s he was using a deg rea se r to clean the deck of the vessel.

He a ttended a m edica l cl in ic the fo l low ing day in relation to the in juries a l legedly susta ined in the fall. L iab i l i ty was accep ted under the SCA 1911 and he rece ived approp r ia te benefi ts under both the Navigation Act 1 9 1 2 and the now repealed SCA 1911 until he was ce r t i f ied f i t to return to w ork on 8th June 1993 .

With regard to the second claim it is a l leged tha t he was assaulted by another c rew m em ber, the Bosun. It seems tha t the day be fo re the inc iden t (the day o f his fall) the re had been some “ internal p rob lem s" on board the vessel

resu lt ing in a union o ff ic ia l f rom the Seaman's Union of Austra lia (the SUA) a ttend ing on board. It also appears th a t as a resu lt o f a poss ib le persona l i ty con f l ic t , the union o ff ic ia l, who had been requested to ad jud icate on the m atte r , may have ind icated to both men tha t they would no longer be serv ing on the ship.Upon his return to the vessel, a fte r having a ttended the medical c l in ic in re lation to his fall the p rev ious day, the Bosun’s Mate alleged th a t he was abused by the Bosun who com m enced to assaulted him. The inc iden t cu lm inate in the Bosun s tr ik ing him on the head with a sauce bott le . The o ff ic ia l log reco rds tha t a l though the Bosun acknow ledged s tr ik ing him, he said tha t he had been provoked by the Bosun’s Mate. The M aster found the Bosun to have been in breach of the Seaman’s code of co nduc t and im m edia te ly d ism issed him.

It is c la imed by the Bosun’s Mate tha t the Bosun had p rev ious ly assaulted persons on board the vessel with a knife and tha t the owners should have known tha t the Bosun had a p ropens ity fo r v io lence.

Unfortunate ly , the re is l i tt le ev idence regard ing the “ internal p ro b le m s ” re fe rred to and the owners advise tha t as the con f l ic t was between m em bers of the M arit ime Union of Austra lia (the MUA) the m a tte r was dea lt with by the MUA. Whils t m a tte rs are unc lear in this re sp e c t it seems tha t p rob lem s may have ex is ted between the crew. The MUA had prev ious ly sugges ted th a t the Bosun be d ischarged f rom the vessel on com pass iona te g rounds and undergo counsell ing and the owners advise tha t th is was done. Owners, however, advise tha t they were not in fo rm ed of the reasons. It seems tha t MUA m em bers are employed by the ro s te r system adm in is te red by, am ongs t o thers , the MUA.Sh ipowners have no cho ice as to whom they engage on the ir vessels. Basica l ly it is “ luck of the d raw ” .When a sh ipowner requ ires a ra t ing to fill a pos it ion a call is put in to the ro s te r adm in is tra to rs and the sh ipowner is then advised fo l low ing the “ p ick up” who will fil l the available posit ion.

The Bosun’s Mate has not re tu rned to work . No l iab i l i ty was accep ted by Owners fo r the in juries susta ined during the al leged assault

26

27

P&l IN C ID E N T S I

and no com pensa t ion payments read ing. He is also apparen t ly The owners have deniedmade. Com pensation was however hampered in undertak ing wash ing, l iab i l i ty in so fa r as any cla im fo rpaid in re lat ion to the back and neck vacuum ing and any o the r dut ies cont inu ing com pensa t ion in relat ioninjury susta ined p r io r to the alleged involving p ro longed bending or to the ear l ie r c la im. The caseassault. No com pensa t ion was paid heavy l i f t ing. He c la ims tha t pr io r to con t inues.. .a fte r 8th June 1 9 9 3 . th is inc iden t he w ent on socia l These are ju s t a few of the

The Bosun’s Mate com pla ins ou t ings th ree to fou r t im es per more in te res t ing cases with which wetha t he is sti ll su ffe r ing f ro m the week. Now he only goes ou t once have been faced. As M em bers aree f fe c t of his in juries and suffers f rom per fo r tn ig h t . He has not re turned aware as f rom 20 th February 1 9 9 4cons tan t headaches and is anxious, to his em p loym en t as a seaman the Assoc ia t ion has dec l ined coverirr i tab le , has d i f f icu lty s leeping and since the inc ident a lthough in fo r any c la im s, l iab i l i t ies, cos ts orfo rm ing social re la t ionsh ips . He S ep tem ber 1 9 9 3 he com m enced expenses aris ing pursuant to thealleges th ta he has d i f f icu lty with his part- t ime em p loym en t work ing as a SRCA 1 9 9 2 (No. 2 3 4 of 1992) of thevision. He also c la ims tha t he is secu r i ty guard at a bowling c lub. C om m onwealth of Austra lia or anyprec luded f rom undertak ing He believes tha t he will not be able s ta tu to ry am endm ent , mod if ica t iongarden ing , recrea t iona l walk ing, the to return to w ork at sea and will or re -enactm ent th e re to fo r the t imeduties o f an Able Seaman and su ffe r p rospec t ive loss of income. being in fo rce .

1969 TO N N A G E MEASUREM ENT C O N VE N TIO N

On 18th July 1 9 9 4 the 1 9 6 9 Tonnage Ro-Ro vesse ls and fe rr ies , however,M easurem ent Convention will com e g ross tonnages wil l be some 35 tointo fo rce fo r all ca tego r ies of ships. 60 per cen t g re a te r than g ross(It has a lready been in fo rce fo r reg is te r tonnages. The g rea te s ttwe lve years as regards new ships or d i f fe rences are found in the case of ex is t ing ships which have undergone open Ro-Ro vessels where the g rossa lte ra t ions or m od if ica t ions which the tonnage may be up to fou r t im esflag State deemed to be a substant ia l g rea te r than the g ross reg is te rvaria t ion in its ex is t ing g ross tonnage,tonnage .) From tha t date all vesse ls Rem easurem ent is beingwhose f lag State has ra t i f ied the ca rr ied ou t by c lass i f ica t ion societiesConvention, m ust be m easured on the basis of ship 's draw ings byacco rd ing to the new regu la t ions . means of com pu te r models.The Convention does not apply to Rem easurem ent in situ is notships o f less than 2 4 m etres nor to requ ired. Nonethe less it is estimatecships nav igating sole ly on inland th a t on average it would take onewaterways. Each ship m us t be person a week to com p le te theissued with an In ternational Tonnage rem easurem ent of a ship.Cert i f ica te (1 9 6 9 ) s ta t ing the g rossand net tonnages ca lcu la ted EFFECTS OF THE C O N V E N TIO Nacco rd ing to the Convention. . . _ .

The reason fo r the change in (a) Under the 1 9 7 6 L im ita t ionm easurem ent system was descr ibed Convention the re levant measure is ain Gard News 104. The trad i t iona l vesse l's g ross tonnage m easured inmeans of tonnage m easurem ent is acco rdance with the 1 9 6 9 Tonnageknown as the M oorsom system . M easurem ent Convention. However,Ships m easured acco rd ing to th is under the 1 9 5 7 L im itat ionsytem are m easured in g ross and net Convention, which is sti ll in fo rc e inreg is te r tons (g r t and nrt) . The new some countr ies , the sh ip ’s l im itat ionm easurem ent system is known as the fund is ca lcu la ted by re fe rence to Universal Measurem ent System. l im ita t ion tonnage which represen tsShips m easured acco rd ing to th is the sh ip ’s net reg is te red tonnagesytem are measured in g ross and net plus the prope l l ing mach inery space,tons (g t and nt). It is the re fo re poss ib le th a t a vessel

p ossess ing an In ternational Tonnage D IFFER EN CE BETW EEN THE UMS C ert i f ica te (1 9 6 9 ) may sti ll need to

AND M O O RSO M SY STE M S have re fe rence to old net reg is te redtonnage in those coun tr ies which still

For m os t ships types, the d i f fe rence apply the 1 9 5 7 L im ita t ion Conventiorbetween the old and new m easured and newer vesse ls no t possess ingtonnages is small. For bulk ca rr ie rs , the o lder type of ce r t i f ica tetankers and ore ca rr ie rs g ross estab l ish ing the net reg is te redtonnages are about fou r to f ive per tonnage , may in some ins tances nee<cen t less than g ross reg is te r to be re-measured fo r th is purpose,tonnages. In the case o f c losed Thus the l im ita t ion tonnage can be

expec ted to increase in the case of certa in ca tego r ies o f ships.(b) At the t ime of s ign ing the 1969 Tonnage Convention the Egyptian Government in re sp e c t of the Suez Canal, and the United States Governm ent in re sp e c t of the Panama Canal, reserved the r igh t to charge canal dues on a d i f fe ren t tonnage m easurem ent f igure . The Egyptian Governm ent has not ra t i f ied the 1 9 6 9 Tonnage M easurem ent Convention and thus the pos it ion with regard to Suez Canal dues remains unchanged.

With regard to the Panama Canal changes wil l take place with e f fe c t f rom 1st O c tober 1994 .Final rules have not ye t been published but are expec ted in July 1 994 . They are expec ted to becom e e f fec t ive in August. The d ra f t rules p ropose tha t all ships making a f i r s t canal t ra n s i t a f te r 1st O c tober 1 9 9 4 will be charged to l ls based on PC/UMS net tonnage. PC/UMS (Panama Canal Universal M easurem ent System) is a local varia t ion of the tonnage m easurem ent system outl ined in the 1 9 6 9 Tonnage M easurem ent Convention. It is p roposed tha t any vessel which has a valid Panama Canal tonnage ce r t i f ica te and which has made a canal t ra n s i t between March 1 9 7 6 and 1st O ctober 1 9 9 4 will , fo r the life of the ship, be charged to l ls based on the cu r re n t Panama Canal Net Tonnage. However, if a ship undergoes major s t ruc tu ra l changes its tonnage will be requ ired to be measured in acco rdance with the PC/UMS system.

We are g ra te fu l to Taipan Ship M anagement fo r the in fo rm ation concern ing the changes in the m easurem ent of tonnage fo r the purpose of Panama Canal dues.

FRENCH LAW

SISTER-SHIP ARREST IN FRANCE- AND A COMPARISON WITH THE POSITION IN ENGLAND -

The 1 9 5 2 Brusse ls Convention on the Unif icat ion of Certa in Rules Relating to the A rres t of Seagoing Ships was ra t i f ied by France on 25 th May 1957 , and subsequently published by Decree No. 14 o f 4th January 1958 , which had the e f fe c t o f enact ing the rules of the Convention into the French legal s y s te m .1

Art ic le 3 o f the A rres t Convention es tab l ishes the rule tha t a vessel may be a rres ted in re lation to the c la ims l isted in the Convention when her owner is liable fo r one such c laim re la t ing to tha t ship. Two fu r the r ru les, however, establ ish a r igh t to a r re s t where the link between the c la im, the ship and the sh ipowner is som ewhat looser. One of them es tab l ishes tha t a person o the r than the sh ipowner o r demise cha r te re r may be liable in re sp e c t o f a m arit ime c la im in re la t ion to which the vesse l may be arres ted . The second rule is the s ister-sh ip a rres t p rov is ion.

SIS TE R-S HIP ARREST

A ccord ing to Ar t ic le 3 o f the A rres t Convention a s ister-ship may be a rres ted when she is owned by the person liable in respec t o f a m ari t im e c la im , even if the c laim re la tes to another ship, whether owned or opera ted by the person l iable. The convention def ines ‘s ister- sh ip ’ as “ any othe r ship which is owned by the pe rson who was, at the t ime when the m ar i t im e cla im arose, the owner o f the pa r t icu la r sh ip” . Further, paragraph 2 o f A r t ic le 3 p rov ides tha t ships shall be deemed to be in the same ownersh ip when all the shares there in are owned by the same person or persons. “ S hares” in the co n te x t of the convention (“ pa rts de p ro p r ie té " in the French tex t) is unders tood to mean shares in a ship, or part o f the p rope r ty in a ship. Ships owned by two com panies whose shares (i .e., the shares in the company) are owned by the same person or persons are not cons idered to be in the same ownership.

IN TER PR ETA TIO N OF THE FRENCH COURTS

French cour ts have cons is ten t ly shown a tendency to l i ft the co rp o ra te veil and to t re a t vessels owned by d i f fe ren t com panies con tro l led by the same person or the same g roup as in the same ownership, and the re fo re sub jec t to a rres t under the sister-sh ip provis ion. In doing so, the French f ind support in the ir “ théor ie de I 'apparence” , which de te rm ines tha t when som ebody ac ts in such a manner as to appear to those who enter into a re la t ionsh ip with him to be the owner o f the ship, he m ust be t rea ted as the actual owner.

PRACTICAL CASES

Recently the Assoc ia t ion has been involved in two inc idents involving s ister-sh ip a rres ts in France, in La Rochelle and Marsei l les. The in ference to draw f rom these two m atte rs is tha t any single-ship com pany s truc tu re should cons ider its pos it ion care fu l ly if the poss ib i l i ty o f a r re s t o f o the r vesse ls w ith in the g roup m anagem ent is to be avoided.

In La Rochelle ship A was a rres ted fo r a l leged debts o f ship B under a cha r te r party. The vessels were under the same management, but owned by two separa te Cyprus reg is te red com pan ies . The judge in the local co u r t at La Rochelle (a single layman) g ran ted the a r re s t on the g rounds tha t(i) the app licants had a m arit ime c la im aga ins t B and(ii) the com pany which owned B had su f f ic ien t “ com m unauté d ’in té ré ts ” (com m unity o f in te res ts ) with the owners o f A to jus t i fy , as fa r as French law was concerned , an a rres t under the Brussels Convention.

The owners of the a rres ted vessel appealed aga ins t the dec is ion in the Cours d 'Appel de Po it iers, but the ir appeal was d ism issed on the g round tha t wh ils t the legal ent i t ies were o f f ic ia l ly separa te , in real i ty they were so c lose ly linked in a c lear

“ com m unau té d ' in té ré ts" th a t the ir assets could not be regarded as d iv is ib le, espec ia l ly when the same indiv iduals , indeed the same fam ily were holding the pr incipal part of the shares and ca rry ing out the m anagem en t and adm in is tra t ion duties.

In the second case, ship X was a rres ted in Marsei l les fo r a m arit ime cla im aga ins t ship Y, owned by a separate com pany. The ownership and m anagem ent s t ruc tu res o f the tw o com pan ies were a lm os t identica l to th a t in the La Rochelle case. As P&l insurers o f Y , Gard o f fe red to put up secur i ty up to her l im itation fund in exchange fo r the re lease of the a rres ted vessel. The a rres to rs , however, re fused to accep t a l im ited guaran tee, and the vessel remained arres ted w h ils t owners p repared an appeal to the a rres t o rder . Before the appeal co u r t had reached a dec is ion the m a t te r was se tt led am icab ly by the part ies . As a consequence of the a rres t , the vessel was deta ined fo r 32 days w ithou t her owners being able to recover the ir losses in re s p e c t o f the delay.

In equating “ com m unauté d ’in té ré ts ” to ‘com m on ow nersh ip ’ the French cou r ts regard fa c to rs such as com m on m anagem ent, a com m on ‘c o n ta c t nam e’ in L loyd ’s Index o f Shipping, a com m on head of f ice and s im ila r i t ies in the owning co m pany ’s share hold ing s truc tu re , as ind ica t ions o f ‘com m on ow nersh ip ’ . In o rde r to avoid th is wide in te rp re ta t ion a de fendant must be able to es tab l ish true legal, financia l and adm in is tra t ive independence of the ship owning companies .

THE PO S IT IO N IN ENGLAND

One should com pare the a t t i tude of the French Courts w ith the pos it ion adopted by the English courts .

The 1 9 5 2 A r re s t Convention was ra t i f ied by the United Kingdom on 18th March 1959 , and m o s t of the conven t ion ’s prov is ions, inc luding

28

FRENCH LAW US LAW

DRUG SMUGGLINGUNITED STATES

the ‘s is te r-sh ip ’ a r re s t p rov is ion, are given e f fe c t in England by the Supreme Court Ac t 1981 .

For a lm os t one cen tury the cour ts have applied the princ ip le tha t a com pany is a separa te legal person f ro m its shareho lders and d i rec to rs . Accord ing ly , the English cou r ts are re luc tan t to l i f t the co rp o ra te veil in o rde r to establ ish the ownersh ip of the shares in a ship owning company. When the shares in a ship are owned by a com pany, the shareholders them se lves have no p roper ty in the assets of the company.

In England it is not enough to show a connect ion between the vesse ls , like com m on share holding and con tro l , in o rde r to benefi t f rom the ‘s is te r-sh ip ’ a r re s t prov is ion. The Supreme Court A c t does not give c la imants the r igh t to a rres t a ship which is not the part icu la r ship or a s is te r ship, but is owned by a s is te r com pany o f the com pany which owns the part icu la r sh ip .2 The only exception to the rule is in the case of fraud, where the co rpo ra te veil is used in o rde r to avoid liabili ty.

PO STNO TES

1 As a m a tte r o f fa c t, the a rre s t o f vesse ls in France may be su b je c t to tw o d iffe re n t se ts o f ru les:

(a) The B russe ls C onvention app lies to vesse ls fly in g the fla g o f a C o n tra c tin g S ta te (inc ludes French vesse ls in cases w here an in te rn a tio n a l e lem en t can be found , like when the a rre s to r is a na tional o f a C o n tra c tin g S ta te).

(b) French Decree o f 2 7 th O c tobe r 1 9 6 7 , as m od ified by the D ecree of2 4 th February 1971 app lies to vesse ls fly in g the fla g o f a non-C on trac ting S ta te , and French vesse ls (when d isp u te s involve only French c itizens ). H owever, i t m us t be no ted th a t A rtic le 8 o f the A rre s t C onvention a llow s the a rre s t o f a vesse l fly in g the fla g o f a non -C on trac ting S ta te in re sp e c t o f any o f the m a ritim e c la im s lis te d in A rtic le 1.

2 The Fvno Aenic (1 9 8 8 ) 2 L loyd ’s Rep. 411 (C.A.).

We re fe r to our c ircu la rs on the US Custom s Sea Carr ie r In itiative A g reem ent.cu lm ina t ing with C ircu lar 2 /9 1 of Apri l 1 9 9 1 . The c ircu la r l isted the US Custom s risk ra t ings fo r drug sm ugg l ing . The secur i ty

TICKETING SYSTEM FOR SMALL SPILLSOn 7th April 1 9 9 4 USCG published an in ter im final rule on a t icke t ing system fo r civil pena lt ies in the case of m inor spills (1 0 0 ga l lons or less). The p i lo t p rog ram m e will run fo r six m onths in th ree areas, Charleston, South Carolina, Galveston, Texas and Long Beach, Cali forn ia. A f te r a spill the owner wil l be given the opt ion of paying a m odes t f ixed penalty or 't icke t ' p r io r to the vesse l's departu re f ro m p o r t in full sa t is fac t ion o f the penalty involved instead o f pos t ing a bond or le t te r of undertak ing fo r the maximum amount o f the fine as allowed by law and then await ing the assessm e nt o f the penalty which can take some months.

m easures with which owners are requ ired to com p ly depend on the risk ra t ing o f the coun tr ies to which ca rr ie rs are t rad ing . Risk ra t ings have changed fo r the fo l low ing coun tr ies l isted below.

HONG KONG ENACTM ENT OF COGSA 1992By v ir tue o f the Bills of Lading and Analogous Sh ipping Documents Ordinance (Cap. 85 of 199 3 ) the English Carr iage of Goods by Sea Act1 9 9 2 has been inco rpo ra ted into Hong Kong law. The Ordinance becam e e ffec t ive on 1st March 1 9 9 4 and applies to all bi l ls o f lading, sea waybil ls and sh ips ’ de l ivery o rders issued on or a f te r tha t date. For in fo rm ation on the changes the Ordinance will e f fe c t re fe rence is made to the a rt ic le on this sub jec t by Richard W. Will iams which appeared in Gard News Issue 127,S ep tem ber 1992 .

C ountry Previous ra t in g P re s e n t ra t ing

C e n tra l A m e r ic aEl Sa lvador Medium High

A fr icaCameroon Low MediumGuinea Low HighIvory Coast Low HighNigeria Low HighSierra Leone Low HighTogo Low High

AsiaTaiwan Low High

S o u th eas t AsiaLaos Medium High

US LAW HONG KONG LAW

29

P&l STORIES

PATERNITY NEGLIGENCE??This case was repor ted f ro m one of our c la ims ad jus te rs dealing with, in te r alia, Norwegian coasta l fe rr ies .

A car was damaged on board a coasta l fe r ry wh ils t c ross in g a f jo rd in the northern part of Norway. The w eather was fa ir, but neverthe less an unexpected ly large wave hit the vessel on the s ta rboard side, which caused the car to sh ift s ideways and smash aga ins t the s t ruc tu re of the car deck. The car was not lashed to the deck, as the ch ie f o f f ice r found it unnecessary due to fa ir w eather and m odes t sea upon departu re . Most of the r igh t side o f the car was damaged and the repa ir co s ts were natura lly a heavy burden fo r the car owner, who c la imed dam ages from the sh ipowner; our Member.

In it ia lly we repud ia ted l iabili ty on behalf o f our Member. There were fou r o the r cars s towed on the car deck w ithou t lashings, none of which was dam aged. In v iew of the fa ir weather upon departu re , one could not blame the ch ie f o f f ice r fo r not having p laced lashings on th is p a r t icu la r voyage. The wave which caused the damage was unexpected ly large and could not have been fo reseen.

In repud ia t ing l iabili ty we advised the c la im ant that, during several p rev ious passages under s im ilar w eather cond it ions , no cars had been lashed, and in the absence o f an abnormal occu rrence (such as the large wave), no cars had been damaged.

The owner o f the car replied: “ The sh ipowner is in all m easures respons ib le when i t com es to handling and secur ing o f cargo . In this m a t te r the sh ipowner has fa iled to lash the ca r on a passage during which heavy seas have to be expected. To argue tha t no inc idents o c cu rre d dur ing the prev ious passages holds ju s t as l i t t le water as to argue be ing innocent in a pa te rn ity case on the basis tha t every th ing had gone ju s t f ine on o the r o c c a s io n s ” .

The case is ye t to be sett led. However, we expec t tha t some “fa the rhood c o n t r ib u t io n ” will be requ ired f ro m our M em ber should the case be d isposed o f w itho u t legal p roceed ings.

DEARASSURANCEFORENINGENGARD

We quote below par t of a le t te r rece ived f ro m an Italian lawyer, g iv ing us an update on a c la im which arose in the 1 9 8 0 insurance year, and which has been pending before the Italian cour ts s ince 1980 .

“A t the las t hear ing o f th is stale law suit, the counse l fo r adverse part ies asked fo r ano ther adjournment, main ta in ing he was lack ing ins truc t ions f rom his pr inc ipa ls . Our co rresp o n d e n ts s trong ly opposed this request. The judge re fused anyhow to consen t to str ike ou t the suit. The conclus ive hearing was pos tponed to

. . .2 7 th May 1 9 9 7 . ..yes, you are r igh t in read ing .. . / con f i rm : 1 9 9 7 That is the p resen t s ta te o f the jud ic ia l bus iness in Italy.

The m o s t eager jud g e s are busy s ince two years to p u t in ja i l po l i t ic ians , tycoons and pub lic servants. P robably they will continue up to 1997 .

I am o ld now and I am no t sureI wil l be able to give you fresh news on tha t date. So I shall take the l ibe r ty o f subm it t ing m y small note fo r fees.

Please a c ce p t my b es t regards.S incere ly Yours . . . "

CERTIFICATES OF FINANCIAL

RESPONSIBILITYIn Gard News 128 (D ecem ber 1992) we published a survey of the requ irem en ts fo r c e r t i f ica te s of financia l respons ib i l i ty under the Civil L iab i l i ty Convention, TOVALOP, and under US State law. This a rt ic le has been updated and an updated vers ion as at the beginn ing o f June 1 9 9 4 can be obta ined f ro m the Assoc ia t ion on request.

NEW C O R R ESPO N D EN TS

The Assoc ia t ion has appoin ted new co r responde n ts in:

A n c h o ra g e

Keesal Young & Logan Suite 2 05431 West 7th Avenue Anchorage, Alaska 9 9 5 0 1 -3 5 8 3 United Sta tes o f America

Telephone (Office): 1 (907) 2 7 9 9 6 9 6 Telephone (H o m e ( : l (907) 2 4 3 4 2 8 6

Mr Douglas Davis Telefax: 1 ( 9 0 7 ) 2 7 9 4 2 3 9

Ho Chi Minh City

Spica Servicesc /o Vietnam Salvage Corpora t ion 3 6 0 Hai Ba Tung, 1s t D is tr ic t Ho Chi Minh City Vietnam

Telephone (Off ice): 8 4 8 2 2 4 6 1 4Telephone (Home): 8 4 6 3 9 6 0 7 2 / 3

Capt. Richard Skene Telex: 8 1 1 2 8 1 vsal vtTelefax: 8 4 8 2 9 4 0 2 5

CATASTRO PHE TELEPHO NE ____________ NUM BER____________This te lephone num ber, manned on a 24 hour bas is, is to be used by M em bers and co rre s p o n d e n ts in the event o f a ca ta s tro p h ic in c id e n t re q u irin g the u rgen t ass is ta n ce o f the A sso c ia tio n . The num ber is:From o u ts ide N orw ay: + 4 7 9 4 2 94 8 2 6From w ith in N orw ay: 0 9 4 2 9 4 8 2 6

STAFF CHANGESColin G. Johnston It is with re g re t we announce the departu re of Colin Johnston, Deputy Managing D ire c to r of Gard (UK) Limited.He jo ined Gard in Arendal on2nd January 1 9 7 9 fo r tw o years thenle f t to w ork a t Ince & Co. in London.In 1 9 8 4 he rejo ined Gard at the ir newly opened o f f ices at Gard (UK) L im ited. He has prov ided a valuable con tr ibu t ion to the Assoc ia t ion and will be much m issed. Colin jo ined the Br itannia Steam Ship Insurance Assoca t ion on 1s t June 1994 .

30

■ ■ ■ THE STAFF HOME TELEPHONE NUMBERS

A S S U R A N C E F O R E N I N G E N G A R D

Guillermo P arera..................... (081) 870 5826M anager (London)

Kurt Severinsen................................. 37 02 84 59Manager

Bjørn F rem m erlid .............................. 37 01 68 28

Terje H olte .......................................... 37 01 18 38

Liv K ris tensen.................................... 37 03 62 54

USCG — CLC POLLUTION CERTIFICATESKnut G oderstad ................................. 37 03 33 62

Liv Gundersen....................................37 08 84 96

Wenche O lsen.................................... 37 01 02 65

P&l CLAIMSGunnar Top land.................................37 04 03 92Senior Manager

Geir Sandnes..................................... 37 01 18 23Manager

Svein E llingsen..................................37 16 65 18

Alf Flak................................................. 37 09 60 31

Christen G uddal................................37 16 32 34

Einar G ulbrandsen........................... 37 08 60 86

Harald M ørland..................................37 08 54 31

Hanne W inkler................................... 37 02 36 43

T A N K E R /L IQ U ID CARGO ANDOIL PO LLUTIO N CLAIM SSvein E. Dahl.....................................37 01 00 18Senior Manager

Gunnar Espeland..............................37 01 67 73

Jan R. Isaksen.................................. 37 01 17 83

S igurd Thom assen.......................... 37 08 52 82

SY N D IC A TE B, P E R S O N AL IN J U RY

C hristopher J. B row n..................... 37 02 36 43A ss is tan t D irec to r Mobile 94 29 60 56

P&l CLAIM SSvein A. A ndersen...........................37 08 62 76Senior M anager

Rune Dybedal....................................37 02 15 60

Geir K jebekk......................................37 01 61 65

Fredrik W. Schulze..........................37 01 02 50

PERSONAL INJURYBjarne P rin tz ..................................... 37 08 83 28Senior Manager Mobile 94 56 31 45

Magnus Heim tun..............................37 01 06 05Manager

Pål Berglund......................................37 02 45 10

Trond D enstad..................................37 27 19 82

Per Fredrik Jensen..........................37 01 07 24

N.B. Herlo fson.................................. 37 02 10 48Managing D irec to r and 37 02 16 57

Mobile 94 20 39 73

J.G. Bernander..................................38 06 33 48Deputy Managing D irec to r

Mobile 94 29 73 81

D. David S. C om er.................. (0 8 9 2 )8 6 2 016D irec to r (London)

A D M IN ISTRAT IO N , A C C O U NTS

Karl 0 . L ien.......................................37 01 55 11D irec to r Mobile 94 29 73 15

Jan Ivar Thom as..............................37 02 72 48Asst. Manager, S ta tis tics

Finn Høgsaas................................... 37 02 63 20Asst. Manager, Accounting

F IN AN CE , EDP

B irger Ø ygaren.................................37 01 06 71D irec to r Mobile 94 29 14 65

Just Arne S to rv ik ............................37 02 12 36Manager, Finance and EDP

Harald Stridsklev, j r ...................... 37 02 52 38Asst. Manager, Finance

QUALITY ASSURANCE AND TE C H N IC A L DEPAR TM EN T

Jan Petter La rse n ........................... 37 01 69 13D irec to r Mobile 94 29 14 64

Steinar Evensen...............................37 02 73 82Manager

Alf M. S andberg............................... 37 08 61 01Marine Surveyor

LARGE CLAIM S

All Syndicate D irectorsKjell S trø m b e rg ................................37 01 51 87D irec to r Mobile 94 29 14 67

Louis Herm ansen.............................37 01 07 82Manager

SYNDICATE A, INSURANCE, TA N K E R

Sven-Henrik Svensen......................37 02 20 72D irecto r Mobile 94 29 14 68

INSURANCEReidar B ruborg .................................37 04 70 76Asst. D irecto r Mobile 94 29 58 81

Richard W ebbe............................ (0582) 768406Asst. D irecto r (London)

Jon E. B irke tve it...............................37 01 53 79Manager

Knut G oderstad................................ 37 03 33 62Manager

John-Olaf Sagen............................... 37 01 50 75Manager

SYNDICATE C , COLLISION

Jan Petter La rse n ...........................37 01 69 13D irec to r Mobile 94 29 14 64

P&l CLAIMSJan Kr. Jacobsen............................ 37 01 12 02Senior Manager

Nick P la tt................................... (0435) 8 6 5 3 6 2M anager (London)

Andrew J. Bass (London)......(081) 5 79 4 5 0 8

Einar Christensen............................ 37 09 54 65

Alexandra Evered (London)..(081) 543 9 554

Erling Johnsen.................................. 37 01 01 88

Geir Tegdan...................................... 37 16 79 51

C O L LIS IO N CLAIM SOle Enge............................................ 37 08 57 41Senior Manager

Hans-Øyvind Le ikvin ........................37 01 18 34

GARD JAPAN AND FAR EASTToyoo M ohri............................. (03) 3 4 2 9 1078Representative (Tokyo)

Yasuhiro Shira i........................ (0471) 59 3115General M anager (Tokyo)

Hideo Teram ach i.................... (0297) 68 6 726General M anager (Tokyo)

S YND ICA TE D, LEGAL

Sara B urgess.....................................37 02 64 18D irec to r

P&l CLAIM SAlejandro E. P elu ffo .........................37 02 66 77Senior Manager

Odd Helgesen....................................37 09 52 50

Tore F u rnes.......................................37 02 83 82

Peter L e ijs ......................................... 37 01 69 88

Claudia N. S to rv ik ............................37 02 12 36

LEGALKjetil E ivindstad................................ 37 02 51 07A ssis tan t D irec to r Mobile 94 29 68 91

Jennifer C hallenor..................(071) 780 9 429M anager (London)

M orten Harsvik................................. 37 01 11 70

Alice Jackson .................................... 37 02 29 35

Helenka Leary (London)...... (081) 290 4164

IN T E R N A T IONAL DIALING C O D E S:

NORWAY: 4 7UK: 4 4

JAPAN: 81When d ia ling fro m ab road , p lease o m it the zero in fro n t o f the lis te d num bers fo r London and Tokyo.

31

ASSURANCEFORENINGEN GARD

PO BOX 1563 MYRENE. 4801 ARENDAL TELEPHONE 37019100. INTERNATIONAL 47 37019100

TELEX 21812 CLUB N. TELECOPIER 47 37024810 37022187

GARD (UK) LTD.

16 EASTCHEAP. LONDON EC3M 1BD TELEPHONE 071 283 5991. INTERNATIONAL 44 71 283 5991

TELEX 886891 883514 GARDUK G. TELECOPIER 44 71 623 8657

GARD P&l JAPAN AND FAR EAST

TOKYO SAKURADA BUILDING, 6TH FLOOR, 1-1-3 NISHI-SHINBASHI MINATO-KU, TOKYO 105, JAPAN

TELEPHONE 03-3503 9291, INTERNATIONAL 81 3 3503 9291 TELEX 2224942 GARD J, TELECOPIER 81 3 3503 9655.

Gard News is published quarterly by Assuranceforeningen Gard, Arendal. Norway- Printed in England by Gavin Martin Associates Ltd, London.