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Modern Maritime Law (Volumes 1 and 2) 3rd edition [Multiple-component retail product]

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Formaat: Multiple-component retail product, 1448 pages, kõrgus x laius: 246x174 mm, kaal: 2844 g, Contains 2 hardbacks
Sari: Maritime and Transport Law Library
Ilmumisaeg: 02-Dec-2013
Kirjastus: Focal Press
ISBN-10: 0415843200
ISBN-13: 9780415843201

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International maritime law

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Formaat: Multiple-component retail product, 1448 pages, kõrgus x laius: 246x174 mm, kaal: 2844 g, Contains 2 hardbacks
Sari: Maritime and Transport Law Library
Ilmumisaeg: 02-Dec-2013
Kirjastus: Focal Press
ISBN-10: 0415843200
ISBN-13: 9780415843201

Teised raamatud teemal:

International maritime law

Püsilink: https://www.kriso.ee/db/9780415843201.html

Märksõnad:

This unique title examines in depth issues of jurisdiction, maritime law and practice from a modern perspective and highlights the importance of risk management with a view to avoiding pitfalls in litigation or arbitration and minimising exposure to liabilities.

The third edition has been fully revised and restructured into two self-contained volumes, the first covering jurisdictional issues and risks and the second exploring the diverse aspects of maritime law, risks and liabilities.

The first volume tackles a wealth of complex jurisdictional aspects, ranging from the enforcement of maritime claims to a detailed analysis of the conditions of arrest of ships, including reconsideration of wrongful arrest, beneficial ownership, forum non-convenience and limitations upon the jurisdiction of the English courts.

The second volume tackles the substantive maritime law with a particular emphasis on risk and liabilities, and analyses issues of contract, tort and criminal law, causation and remoteness of damages.

Key features of Volume One include:

Expert analysis of the very latest case law, including noteworthy cases in international jurisdictions

Highlights important recent changes and developments in:

piercing the corporate veil State immunity

conflict of laws and jurisdictions

stay of proceedings for breach of jurisdiction or arbitration agreements

issues arising from tiered dispute resolution clauses

anti-suit injunctions

Timely examination of the EU jurisdiction scheme and the Review of the Brussels I Regulation New Chapter on Freezing Injunctions as compared with the US Rule B Attachment

Key features of Volume Two include:

An analysis of the regulatory regime, new EU and IMO safety at sea legislation, reforming practices for flag states and recognised organisations, vetting, codes of good practice, and International Conventions.

An explanation of the Rules of attribution of liability, the impact of the ISM Code upon liabilities, including criminal, corporate manslaughter, and the new Directive for ship-source pollution.

Important developments in areas including:

Ship-managing risks, best endeavours and fiduciary duties

Mortgagees risks and economic torts

New BIMCO standard terms of contracts

Ship-sale risks - including sale "as is" and "as she was"

Shipbuilding risks - guarantees and performance bonds

New trends on wrongful acts of employees, collisions and measure of damages, salvage issues, environmental salvage, and towage contracts

Piracy risks cases and general average

New perspectives on risks and liabilities of port authorities

Pollution liabilities, including trends of prosecution of class societies and charterers and new limits of liability under International Conventions

This book serves as an invaluable reference for lawyers, academics, and a host of shipping and risk management professionals worldwide

Both volumes are also available to purchase individually:

Volume 1 at http://www.routledge.com/books/details/9780415835169/

and Volume 2 at http://www.routledge.com/books/details/9780415839068/

Arvustused

Although the title Modern Maritime Law might suggest the author considers modern aspects of maritime law, what is modern is actually her approach to the analysis of the problems. - Professor Francesco Berlingieri for International Maritime Law (Vol 20, No. 1, 2014)

This is a book of a monumental work, which should grace the shelves of all shipping law firms, P&I Clubs and shipping law chambers with an interest in modern maritime law and/or risk management. - Jeremy J. Thomas, Partner, Constant & Constant 1977 - 2007 & TLT LLP 2007-14

Foreword to the first edition

vii

Pateley Bridge

Foreword to the second edition

Stone-cum-Ebony

Foreword to the third edition

Sir Bernard Rix

Preface to the third edition

xiii

Biography

xvii

Acknowledgements

xviii

Table of Cases

xxix

Table of Statutes

xliv

Table of Foreign Statutes

xlvii

Table of Statutory Instruments

xlviii

Table of European Council Directives and Regulations

xlix

Table of International Conventions

List of Abbreviations

liii

Chapter 1 The Jurisdiction Of The Admiralty Court

(22)

1 Historical overview

(4)

1.1 Origins

(1)

1.2 Conflict between the Admiralty and the common law courts

(1)

1.3 The Admiralty Court Acts since 1840

(2)

1.4 The need for consolidation of all courts

(1)

2 Admiralty jurisdiction at the present time

(2)

2.1 The sources

(1)

2.2 Terminological changes

(1)

2.3 The Admiralty Court

(1)

2.4 Subject matter jurisdiction

(1)

3 Foreign aspects and extent of the Admiralty jurisdiction

(1)

3.1 International ambit

(1)

3.2 Limitations

(1)

4 The civil law and common law approaches

(1)

4.1 Civil law approach

(1)

4.2 Common law approach

(1)

4.3 The Arrest Convention 1952

(1)

5 Unique aspects of the Admiralty jurisdiction

(3)

5.1 The action in rem

(2)

5.2 The action in personam

(1)

6 Limits to invoking Admiralty jurisdiction

(3)

6.1 Ships of the Crown

(1)

6.2 Foreign sovereign

(3)

7 The subject matter of in rem proceedings -- the ship

(8)

7.1 Importance of definition

(1)

7.2 What is a ship?

(6)

7.3 Conclusion

(2)

Chapter 2 Enforcement Of Maritime Claims

(42)

1 Introduction

(2)

1.1 The statute as a tool for enforcement

(1)

1.2 The subject matter jurisdiction

(1)

2 Statutory rights in rem and maritime liens

(3)

2.1 Statutory rights in rem or statutory liens

(1)

2.2 Maritime liens

(3)

3 Maritime claims enforceable under s 20(2) of the SCA 1981

(37)

3.1 Any claim to the possession or ownership of a ship or to the ownership of a share therein (s 20(2)(a))

(2)

3.2 Any claim arising between the co-owners of a ship as to possession, employment or earnings of that ship (s 20(2)(b))

(1)

3.3 Any claim in respect of a mortgage of or a charge on a ship or any share therein (s 20(2)(c))

(1)

3.4 Any claim for damage received by a ship (s 20(2)(d))

(1)

3.5 Any claim for damage done by a ship (s 20(2)(e))

(3)

3.6 Any claim for loss of life, or personal injury ... (s 20(2)(f))

(6)

3.7 Any claim for loss of or damage to goods carried on a ship (s 20(2)(g))

(1)

3.8 Any claim arising out of an agreement relating to the carriage of goods on a ship or to the use or hire of a ship (s 20(2)(h))

(8)

3.9 Any claim for salvage services (s 20(2)(j))

(1)

3.10 Any claim in the nature of towage in respect of a ship or aircraft (s 20(2)(k))

(1)

3.11 Any claim in the nature of pilotage in respect of a ship or an aircraft (s 20(2)(1))

(1)

3.12 Any claims in respect of goods or materials supplied to a ship for her operations or maintenance (s 20(2)(m))

(2)

3.13 Any claim in respect of the construction, repair or equipment of a ship or dock charges or dues (s 20(2)(n))

(1)

3.14 Any claim by master or crew of a ship for wages (s 20(2)(o))

(4)

3.15 Any claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship (s 20(2)(p))

(2)

3.16 Any claim arising out of an act which is claimed to be a general average act (s 20(2)(q))

(1)

3.17 Any claim arising out of bottomry (s 20(2)(r))

(1)

3.18 Any claim for the forfeiture or condemnation of a ship or for the restoration of a ship or goods after seizure or for droits of Admiralty (s 20(2)(s))

(3)

Chapter 3 Freezing Injunctions And The Us Rule B Attachment

(32)

I Freezing injunction

(1)

1 Introduction

(4)

1.1 Origins of the power to grant injunctions

(1)

1.2 Nature, scope and objective

(2)

1.3 Comparison with other security measures

(1)

2 Requirements for the injunction to be granted

(1)

3 Extended jurisdiction for the injunction

(7)

3.1 The previous `Siskina' barrier

(1)

3.2 Free-standing injunction

(1)

3.3 Worldwide freezing injunction

(5)

4 Extent of the jurisdiction to third parties

(2)

5 The duty of the bank

(1)

5.1 Not to be in contempt of the court order

(1)

5.2 No duty of care is owed to the person who obtained the injunction

(1)

II Rule B(1) attachment -- security for maritime claims in US

(1)

Alan Van Praag

1 Introduction

(1)

1.1 The purpose of Rule B

(1)

1.2 History

(1)

1.3 Distinction from other forms of security

(1)

2 Substantive requirements of Rule B attachment

(4)

2.1 Admiralty or maritime claim

(2)

2.2 The defendant shall not be found within the district

(1)

2.3 Defendant's tangible or intangible personal property within jurisdiction

(1)

3 Procedural requirements for Rule B attachment

(3)

3.1 In personam action -- filing a complaint with affidavit

(1)

3.2 Notice to defendant

(1)

3.3 The amount sued for

(1)

3.4 No bond required

(1)

3.5 Garnishees named in the process

(1)

3.6 Answer by garnishee/defendant

(1)

3.7 Review by the court

(1)

4 Piercing the corporate veil

(3)

4.1 Conditions for piercing

(1)

4.2 Factors or indicators of dominated corporation

(1)

4.3 Risks faced by defendants

(2)

5 Applications to vacate attachment

(3)

5.1 Post attachment hearings -- the Aqua Stoli case

(2)

5.2 De novo review

(1)

5.3 Amendment

(1)

5.4 Post-attachment procedures -- substitute security

(1)

6 Other considerations

(2)

6.1 Agreement to arbitrate or litigate in a particular forum

(1)

6.2 Counterclaims and countersecurity

(1)

7 Wrongful attachment principles and remedies

(1)

8 Conclusion

(1)

Chapter 4 Conditions Of Arrest -- Beneficial Ownership -- The Corporate Veil

(56)

1 Introduction

(1)

1.1 Truly in rem and non-truly in rem claims

(1)

1.2 Considerations for arresting a ship

(1)

2 In personam proceedings

(1)

2.1 Nature and function

(1)

2.2 Restrictions

(1)

2.3 Weaknesses

(1)

3 In rem proceedings

(16)

3.1 Nature

(1)

3.2 Functions of the in rem proceedings

(7)

3.3 The defendant in the in rem proceedings

106

(1)

3.4 Traditional features of the action in rem

107

(1)

3.5 Effect of The Indian Grace (No 2) on the action in rem

108

(3)

3.6 Flaws of the decision

111

(4)

3.7 What is the effect of The Indian Grace?

115

(1)

4 Conditions of arrest

115

(4)

4.1 Truly in rem claims

116

(1)

4.2 Non-truly in rem claims

117

(2)

5 Who would be liable in personam

119

(34)

5.1 Meaning of `owner'

119

(1)

5.2 Meaning of `charterer'

120

(1)

5.3 Meaning of `person in possession or control'

121

(1)

5.4 Meaning of `beneficial ownership'

122

(3)

5.5 Company structures and the `person who would be liable in personam'

125

(1)

5.6 Minority shareholding

125

(1)

5.7 Corporate veil and the beneficial owner

126

(4)

5.8 The veil of one-ship companies

130

(2)

5.9 The difference between lifting and piercing the corporate veil

132

(3)

5.10 Piercing the corporate veil

135

(7)

5.11 Beneficial ownership and privatisation of State-owned corporations

142

(3)

5.12 Managing the risks of beneficial ownership

145

(1)

5.13 Cost orders and piercing the corporate veil

145

(2)

5.14 Associated ship arrest in South Africa and piercing the corporate veil

147

(6)

Chapter 5 Arrest Of Ships -- Priorities Of Claims -- Conflict Of Laws

153

(46)

1 Issue of the in rem claim form, service and arrest

153

(3)

1.1 Issue of proceedings

153

(1)

1.2 Service of the in rem claim form

154

(1)

1.3 Effecting the arrest

154

(2)

2 The aftermath of arrest

156

(24)

2.1 Rights of third parties

156

(1)

2.2 Provision of security for the claim and release from arrest

157

(1)

2.3 Release in particular circumstances

158

(1)

2.4 Wrongful arrest of ships

158

(13)

2.5 Can there be a re-arrest?

171

(7)

2.6 Appraisement and sale

178

(2)

3 Competition of claims brought in Admiralty and Companies Courts

180

(2)

4 Priorities in payment of claims out of the court fund

182

(5)

4.1 Statutory powers of port authorities for detention and sale

182

(3)

4.2 The ship-repairers' lien

185

(2)

5 Distribution of the court fund

187

(2)

6 Applicable law to maritime liens and conflict of laws

189

(7)

6.1 Classification of maritime claims in different jurisdictions

189

(2)

6.2 Lex fori or lex causae

191

(4)

6.3 Risk management issues

195

(1)

7 Extinction of maritime liens and transferability

196

(3)

7.1 Extinction

196

(1)

7.2 Transferability

196

(3)

Chapter 6 Dismissal Or Stay Of Proceedings, Forum Shopping

199

(60)

1 Introduction

199

(1)

1.1 Jurisdiction bases

199

(1)

1.2 Jurisdiction not exercised or discontinued

200

(1)

2 Dismissal on time bar grounds

200

(5)

2.1 Cargo claims against the carrying ship or her owners

201

(2)

2.2 Indemnity claims for liability to cargo owners

203

(1)

2.3 Claims for loss of life or personal injury against the carrying ship

203

(1)

2.4 Claims of passengers carried on passenger vessels

203

(1)

2.5 Property or personal injury/loss of life claims

204

(1)

2.6 Claims for contribution

204

(1)

2.7 Salvage claims

204

(1)

2.8 Claims for wages

204

(1)

3 Jurisdiction not exercised -- no leave for service out

205

(1)

4 Stay on grounds of forum non-conveniens

206

(20)

4.1 Origins of the doctrine and `the 1936 rule'

206

(1)

4.2 The 1936 rule versus the doctrine of forum non-conveniens

207

(1)

4.3 The gradual incorporation of the Scottish doctrine into English law

208

(4)

4.4 The present formula of forum non-conveniens

212

(5)

4.5 The Spiliada impact upon the doctrine of forum non-conveniens

217

(1)

4.6 Forum non-conveniens and service out of the jurisdiction compared

218

(4)

4.7 Forum shopping by way of limitation actions

222

(4)

5 Stay of English proceedings on ground of a foreign jurisdiction agreement

226

(13)

5.1 General principle

226

(1)

5.2 Breach of a foreign jurisdiction clause -- stay unless strong reason shown

226

(7)

5.3 What would not constitute a strong cause or reason?

233

(3)

5.4 Jurisdiction agreements -- forum shopping and risk management

236

(3)

6 Stay of English proceedings in favour of arbitration

239

(20)

6.1 Stay of the court proceedings under s 9 of the AA 1996

240

(1)

6.2 Preconditions to a stay of court proceedings under s 9

241

(15)

6.3 The scope of s 11 of the AA 1996

256

(3)

Chapter 7 The Eu Jurisdiction Regime And Its Review

259

(62)

1 Introduction

259

(1)

2 Background to the EU jurisdiction regime

260

(3)

2.1 Inception

260

(1)

2.2 Aims and objectives

261

(1)

2.3 The Brussels I Regulation and the need for its review

262

(1)

3 The Regulation and the Recast compared

263

(6)

3.1 Application

263

(1)

3.2 The domicile rule

264

(1)

3.3 When national rules can be applied

264

(1)

3.4 Exceptions to the domicile rule

265

(1)

3.5 Mandatory derogation from the domicile rule

266

(1)

3.6 Optional derogation from the domicile rule

266

(2)

3.7 Interpretation of concepts

268

(1)

3.8 Conferment to specialised Conventions

268

(1)

4 Multiple proceedings within Member States

269

(12)

4.1 `Lis alibi pendens'

269

(1)

4.2 Identical actions as between Member States

269

(10)

4.3 Related actions as between Member States

279

(2)

5 Multiple proceedings between Member States and third States

281

(2)

5.1 Pending proceedings in a court of a third State -- special lis pendens rule

281

(2)

5.2 Pending proceedings in a court of a third State -- related actions

283

(1)

6 Role of specialised Conventions

283

(6)

6.1 Interpretation of Art 71

284

(1)

6.2 Delegation of jurisdiction by Art 71 to specialised Conventions

285

(4)

7 Ban of forum non-conveniens

289

(8)

7.1 Defendant domiciled in a Member State -- natural forum a third State

290

(1)

7.2 Proceedings in a third State and in a Member State

291

(1)

7.3 Defendant domiciled in a third State -- proceedings in two Member States

292

(2)

7.4 Defendant domiciled in a third State -- natural forum a Member State

294

(1)

7.5 Limitation of liability actions -- defendant domiciled in a third State

295

(2)

8 Prorogation of jurisdiction

297

(12)

8.1 Choice of court agreements under Art 23 of the Regulation

297

(1)

8.2 Choice of court agreements under Art 25 of the Recast

298

(10)

8.3 Entering an appearance

308

(1)

8.4 Choice of court of a non-Member State

308

(1)

9 Exclusive jurisdiction

309

(1)

10 The arbitration exception

309

(2)

11 Protective measures

311

(2)

11.1 Application as between courts of Member States

311

(1)

11.2 Limitations of Art 35

312

(1)

11.3 The Van Uden status

312

(1)

12 Recognition and enforcement of judgments

313

(8)

Annex: The Recitals of the Recast Regulation

314

(7)

Chapter 8 Anti-Suit Injunctions

321

1 Introduction

321

(3)

1.1 Nature and scope

322

(1)

1.2 Common law versus civil law regime

323

(1)

1.3 Issues with anti-suit injunctions

324

(1)

2 The law prior to Turner and The Front Comor

324

(7)

2.1 Cases of breach of an arbitration agreement

325

(1)

2.2 Issues of recognition and enforcement of an anti-suit injunction

326

(1)

2.3 The arbitration exception and lis pendens

327

(1)

2.4 The arbitration exception prior to The Front Comor

328

(3)

3 Prohibition of anti-suit injunctions

331

(9)

3.1 The general ban as between EU Members' Courts

331

(2)

3.2 Breach of an arbitration agreement -- The Front Comor

333

(2)

3.3 The aftermath of The Front Comor

335

(5)

4 Anti-suit injunctions outside the scope of the Regulation

340

(16)

4.1 General principles

341

(1)

4.2 The contract cases

342

(6)

4.3 The `non-contract cases'

348

(5)

4.4 Hybrid cases

353

(1)

4.5 `Interests of justice' -- a preferable concept

354

(1)

4.6 The importance of comity in all cases

355

(1)

5 Practical considerations and risk management

356

Index

359

(528)

Foreword to the first edition

vii

Pateley Bridge

Foreword to the second edition

Stone-cum-Ebony

Foreword to the third edition

Sir Bernard Rix

Preface to the third edition

xiii

Biography

xvii

Acknowledgements

xviii

Table of Cases

xxxix

Table of Statutes

lxi

Table of Foreign Statutes

lxvii

Table of Statutory Instruments

lxviii

Table of European Council Directives and Regulations

lxxi

Table of International Conventions

lxxv

List of Abbreviations

lxxxiii

PART I OVERARCHING ASPECTS OF RISK MANAGEMENT

(132)

Chapter 1 Managing Risks In The Twenty-First Century: An Overview

(24)

1 Introduction

(8)

1.1 Risk

(1)

1.2 Risk assessment and management

(2)

1.3 Legal risk management

(1)

1.4 Risk exposure

(1)

1.5 Risk profile

(1)

1.6 Risk tolerance

(1)

1.7 Safety culture

(1)

1.8 The necessity for the CSWPMS

(1)

1.9 The importance of ECDIS

(1)

2 Understanding infrastructures of shipping companies

(5)

2.1 Internal infrastructures

(1)

2.2 Relational infrastructures

(2)

2.3 External infrastructures

(2)

3 Collective responsibility and commitment

(11)

3.1 Risk management standards for risk control

(1)

3.2 The stages of risk management

(7)

3.3 Enhancing safety culture through collective responsibility

(3)

Chapter 2 The Regulatory Regime: Eu And Imo Developments

(40)

1 Introduction

(1)

2 The Erika measures

(20)

2.1 The Erika I measures

(5)

2.2 The Erika II measures

(5)

2.3 The Erika III measures

(9)

3 General safety and environmental measures

(6)

3.1 Bulk carriers

(1)

3.2 Passenger ships and ro--ro vessels

(1)

3.3 Ecdis

(1)

3.4 Other mandatory measures

(1)

3.5 Ballast water and waste residue

(2)

3.6 Ship recycling

(1)

3.7 Crew training and certification

(1)

3.8 The Maritime Labour Convention 2006 (MLC)

(1)

4 The criminalisation Directives on ship-source pollution

(11)

4.1 The background to 2005/35 and 2009/123 Directives

(1)

4.2 Directive 2005/35/EC

(1)

4.3 The Council Framework Decision 2005/667/JHA

(1)

4.4 The treatment of ship-source pollution by International Conventions

(2)

4.5 The challenge against Directive 2005/35/EC

(5)

4.6 The amendments to the 2005 Directive by the 2009/123/EC Directive

(1)

5 Conclusion

(2)

Chapter 3 Context Of Regulatory Enforcement: The Ism, The Isps, Vetting And Deterrence

(30)

Introduction

(1)

1 Context of regulatory enforcement

(9)

1.1 Importance and role of the ship's flag

(1)

1.2 Flags of convenience

(1)

1.3 The role of the flag State and PSC in enforcement

(2)

1.4 The role of classification societies

(1)

1.5 Industry standards on safety and quality assessment

(1)

1.6 Other initiatives

(3)

2 The ISM Code

(2)

2.1 Origin

(1)

2.2 The role of the ISM Code in safety

(1)

2.3 The philosophy of the Code

(1)

3 The core provisions of the ISM (Part A)

(3)

3.1 General definitions

(1)

3.2 The objectives of the Code

(1)

3.3 The functional requirements for a safety management system

(1)

3.4 Safety and environmental protection policy

(1)

3.5 Company responsibilities and authority

(1)

3.6 The designated person ashore (DPA)

(1)

3.7 Master's responsibility and authority

(1)

4 Remaining provisions of Part A

(2)

4.1 Resources and personnel

(1)

4.2 Shipboard operations

(1)

4.3 Emergency preparedness

(1)

4.4 Non-conformities, accidents and hazardous occurrences

(1)

4.5 Maintenance of the ship and equipment

(1)

4.6 Documentation

(1)

4.7 Company verification, review and evaluation

(1)

5 Certification and verification under Part B

(3)

5.1 The required certificates

(1)

5.2 Certification and verification

(1)

5.3 Interim Certification

(1)

6 Effect of the CSWPMS upon the ISM

(1)

7 Effect of ECDIS upon the ISM

(1)

8 Consequences of breach of the ISM provisions

(2)

8.1 No criminal sanctions for non-compliance

(1)

8.2 Criminal sanctions -- the UK Statutory Instrument implementing the ISM

(2)

9 The deterrent effect of the ISM Code

(1)

10 The deterrent effect of vetting by oil companies

(3)

10.1 The vetting practice

(1)

10.2 The facts of The Rowan

(1)

10.3 The decisions

(2)

11 The role of the ISPS Code for security measures

(3)

11.1 Application

(1)

11.2 Requirements

(1)

11.3 Extent of control on entry into ports

(1)

11.4 The role of the master

(1)

11.5 Ship security alert system

(1)

11.6 Port facility requirements

(1)

11.7 Providing information to IMO

(1)

11.8 EU Commission inspections

(1)

Chapter 4 Attribution Of Liability: Risk Management In The Context Of The Ism

(36)

1 Corporate personality and rules of attribution

(1)

1.1 The alter ego or identification doctrine

(1)

1.2 The vicarious liability doctrine

(1)

1.3 The Meridian rule of attribution

(1)

2 The concept of the alter ego of a corporation

(2)

3 The identification doctrine

100

(3)

4 The Meridian rule of attribution

103

(1)

5 Legal implications of the ISM upon liabilities

104

(29)

5.1 Effect of the ISM upon liability arising from the contract of carriage of goods

106

(3)

5.2 Effect of the ISM upon the insurance contract

109

(4)

5.3 Limitation of liability and the role of the ISM Code

113

(6)

5.4 Criminal liability and the role of the ISM Code

119

(12)

5.5 The implications of the ISM Code on criminal liabilities

131

(2)

PART II OWNERSHIP ASPECTS AND MANAGEMENT OF RISKS

133

(252)

Chapter 5 Ship-Ownership And Ship Managers' Risks

135

(34)

Introduction

135

(1)

1 Ownership principles

135

(4)

1.1 Acquiring ownership

135

(1)

1.2 Co-ownership

136

(3)

2 Statutory overview of ownership and registration of British ships

139

(6)

2.1 The old law under the MSA 1894

139

(1)

2.2 Fundamental changes brought by the MSA 1988

139

(1)

2.3 Owning a British ship under the MSA 1988 -- the British connection

140

(1)

2.4 The irregularity of MSA 1988 on fishing vessels

140

(1)

2.5 Eligibility to own a British ship under the MSA 1995

141

(2)

2.6 Eligibility to own a British fishing vessel

143

(1)

2.7 The effect of the reform upon British ship-ownership

143

(1)

2.8 Brief outline of the UK tonnage tax

144

(1)

3 Management of ships

145

(24)

3.1 General overview

145

(1)

3.2 Third-party managers

146

(1)

3.3 The ship management agreements

146

(2)

3.4 Authority of ship managers

148

(4)

3.5 The manager's obligations

152

(3)

3.6 Duties of the manager

155

(9)

3.7 Breach of contract and contractual protection of the manager and his employees

164

(2)

3.8 Insurance and risk management

166

(3)

Chapter 6 Risks In The Mortgage Of Ships

169

(52)

1 Introduction

169

(1)

2 The nature of a ship mortgage

170

(4)

2.1 The property transfer theory -- origin and deconstruction

170

(2)

2.2 The statutory nature of a ship mortgage -- prevailing theory

172

(1)

2.3 The property subject to the mortgage

173

(1)

3 Effect of the statutory scheme of registration

174

(2)

4 Unregistered ships and status of an unregistered mortgage

176

(1)

5 Comparison of a ship mortgage with other types of security

177

(1)

5.1 Charge

177

(1)

5.2 Pledge

178

(1)

5.3 Common law possessory lien

178

(1)

6 Priorities of mortgages

178

(2)

6.1 Priorities between mortgages

178

(1)

6.2 Further advances

179

(1)

6.3 Effect of harbour authority's claims upon the mortgagee's priority

180

(1)

7 Conflict of laws

180

(6)

7.1 Law governing the mortgage and law of the agreement to grant a mortgage

180

(1)

7.2 Priorities between foreign liens and mortgages

181

(4)

7.3 Are there prospects for a uniform approach?

185

(1)

8 Obligations and rights of the mortgagor

186

(6)

8.1 The mortgagor is bound by contractual covenants

186

(2)

8.2 The mortgagor's statutory obligations

188

(1)

8.3 The mortgagor's right of ownership of the mortgaged ship

189

(1)

8.4 The mortgagor's right to redeem the ship - no clog on the equity of redemption

189

(3)

9 Mortgagee's rights and obligations

192

(15)

9.1 The right to take possession

193

(2)

9.2 Mode of exercising his powers

195

(1)

9.3 Mortgagee's rights and obligations in possession

196

(2)

9.4 Power of sale

198

(8)

9.5 Appointment of a receiver

206

(1)

9.6 Foreclosure

207

(1)

10 Interference with third-party contracts by mortgagee

207

(11)

10.1 The issues

207

(1)

10.2 De Mattos v Gibson -- equitable remedy -- the knowledge factor

208

(2)

10.3 Collins v Lamport -- statutory basis -- the impairment factor

210

(1)

10.4 Modern strand of authorities prior to OBG v Allan

211

(4)

10.5 Reformulation of economic torts: OBG v Allan

215

(3)

11 Risk management and insurance issues of the mortgagee

218

(3)

Chapter 7 Shipbuilding Contracts And Risks

221

(70)

1 Introduction

221

(2)

2 Nature of shipbuilding contracts

223

(4)

2.1 Is it a contract for sale or a contract of construction and sale?

223

(1)

2.2 The importance of determining the nature of the contract

224

(3)

3 Pre-contract stage

227

(2)

3.1 Legal effect of an invitation to tender, letter of intent and bridging contract

227

(1)

3.2 Legal significance of representations made during negotiations

228

(1)

4 The making of a shipbuilding contract and risk management

229

(3)

4.1 What makes a binding contract?

229

(1)

4.2 Condition precedent or condition subsequent?

230

(1)

4.3 Other essential terms

231

(1)

5 Types of contractual terms

232

(8)

5.1 General

232

(1)

5.2 Implied terms at common law

233

(1)

5.3 Implied terms under SOGA 1979

233

(5)

5.4 Exclusion clauses and the UCTA 1977

238

(2)

6 General framework of shipbuilding contracts

240

(2)

6.1 An outline of the SAJ contract

240

(1)

6.2 An outline of the NEWBUILDCON

241

(1)

6.3 The specification

241

(1)

7 Particular aspects of shipbuilding contracts

242

(12)

7.1 Option agreements and management of risk in drafting

242

(2)

7.2 Description of vessel -- class rules and regulations

244

(1)

7.3 Price and method of payment

244

(7)

7.4 The construction stage

251

(2)

7.5 Delivery -- title and risk

253

(1)

8 Builder's specific obligations

254

(4)

8.1 Builder's obligation to provide defects guarantee

254

(3)

8.2 Builder's obligation to insure

257

(1)

8.3 Builder's obligation to provide a refund guarantee

258

(1)

9 Events for termination by the buyer

258

(3)

9.1 Specific contractual events for buyer's right to terminate

258

(1)

9.2 The occurrence of a terminating event may not lead to termination

259

(1)

9.3 The remedy of liquidated damages instead of termination

260

(1)

9.4 Occasions for rejection of the vessel by the buyer

260

(1)

9.5 Occasions of repudiation of contract

260

(1)

10 Force majeure and permissible delays

261

(5)

10.1 Force majeure

261

(2)

10.2 Other excusable delays under the SAJ form -- modifications

263

(1)

10.3 Excusable delays under the NEWBUILDCON

263

(1)

10.4 Remedies for delay

264

(2)

11 Effect of buyer's termination for builder's default

266

(9)

11.1 Discharge from primary obligations

266

(1)

11.2 The refund of prepaid instalments

266

(7)

11.3 Risk management issues

273

(2)

11.4 Completion of the ship by the buyer

275

(1)

12 Buyer's default and builder's rights

275

(9)

12.1 When is there buyer's default?

276

(1)

12.2 Effect of buyer's default

276

(1)

12.3 Builder's rights under the performance guarantee for unpaid instalments

277

(2)

12.4 Acceleration in payment or liquidated damages: are they penalty clauses?

279

(3)

12.5 Effect of termination/rescission by the builder

282

(2)

12.6 Rescission by the builder and risk management

284

(1)

13 Assignment

284

(1)

14 Dispute resolution

285

(1)

15 Manufacturer's or builder's liability to third parties

286

(5)

Chapter 8 Risks In Ship Sale And Purchase

291

(94)

1 Introduction

291

(2)

Section A The negotiations and contract stage

293

(1)

2 The making of the contract

293

(3)

2.1 How English courts view the concept of good faith

293

(1)

2.2 The effect of `using best endeavours' to negotiate in good faith

294

(2)

3 Is there an obligation for disclosure by the seller?

296

(12)

3.1 What is the effect of caveat emptor?

296

(1)

3.2 Statements made during negotiations

296

(1)

3.3 When a representation inducing a contract amounts to misrepresentation

297

(3)

3.4 Inducement and causation

300

(1)

3.5 Exception clauses and estoppel

301

(2)

3.6 Curtailment of exception clauses by s 3 of the Misrepresentation Act 1967

303

(2)

3.7 Remedies under the Misrepresentation Act

305

(2)

3.8 Brokers be aware to manage your risks

307

(1)

4 On the making of a binding contract and risk management

308

(11)

4.1 Express your intention clearly

308

(2)

4.2 What do `subjects' mean?

310

(4)

4.3 The effect of non-signing of a formal document upon the validity of the contract

314

(2)

4.4 The effect of `buyer to be nominated'

316

(3)

5 Classification of terms

319

(3)

5.1 At common law

319

(1)

5.2 Under SOGA 1979

320

(2)

Section B Contractual terms under standard forms

322

(1)

6 Pre-inspection stage

322

(5)

6.1 Payment of the deposit

323

(4)

7 Inspections by the buyer

327

(1)

8 Inspection by classification society (dry-docking)

328

(1)

9 Notice of readiness

329

(6)

9.1 When payment of the price is arranged

330

(1)

9.2 Deliverable state

331

(3)

9.3 Essential documentation for exchange at delivery

334

(1)

10 Sellers' obligations under cl 9

335

(4)

10.1 Sellers' undertaking

335

(1)

10.2 Construction of cl 9 by the courts

336

(2)

10.3 Safeguarding against breach of cl 9

338

(1)

11 Condition of vessel on delivery

339

(10)

11.1 `As is' provision -- fair wear and tear excepted

340

(1)

11.2 `As is' provision but class free of recommendation

340

(1)

11.3 Free of average damage as an additional exception to `as is'

340

(1)

11.4 Class maintained as an additional exemption to `as is'

341

(1)

11.5 All other certificates

341

(1)

11.6 Notification to class

341

(2)

11.7 What matters need to be notified and when

343

(1)

11.8 Clause 11 under the 1993 and the 2012 forms

344

(1)

11.9 The effect of `as is' or `as she was' upon s 14(2) of SOGA

345

(4)

12 The closing meeting

349

(1)

13 Available options in the event of non-performance by the one party

349

(2)

14 Sellers' remedies

351

(1)

15 Buyers' remedies

351

(3)

15.1 Delay in delivery or non-delivery as per contract

351

(2)

15.2 Other breaches by the seller

353

(1)

15.3 Breach of statutory terms by the seller

353

(1)

16 Risk management issues for buyers

354

(6)

16.1 Considerations before exercising the option to reject the ship

354

(1)

16.2 Is a freezing injunction a protective measure for the buyer?

354

(6)

Section C Post-delivery and issues of damages

360

(1)

17 Post-delivery matters

360

(1)

18 Measure of damages

360

(13)

18.1 Causation and remoteness

361

(6)

18.2 Measure of damages for breach by the seller

367

(1)

18.3 Mitigation

368

(5)

19 Currency of loss

373

(1)

20 Civil liability of classification societies to buyers and other third parties

374

(11)

20.1 Is there a duty of care owed to third parties?

375

(5)

20.2 A comparison with the regulatory regime applicable to the air industry

380

(2)

20.3 Comments

382

(1)

20.4 The American approach

382

(1)

20.5 Conclusion

383

(2)

PART III SHIP AND PORT RISKS AND LIABILITIES

385

(352)

Chapter 9 Risks And Liabilities Arising From Collisions At Sea

387

(94)

Introduction

387

(1)

1 The Collision Regulations and their application

388

(13)

1.1 Origins of the Regulations

388

(1)

1.2 Statutory presumption of fault and its subsequent abolition

388

(1)

1.3 The law and regulations at present

389

(1)

1.4 Ships being subject to the Collision Regulations

390

(1)

1.5 Definition of vessel and ship

391

(1)

1.6 Types of Colregs

391

(10)

2 Criminal liability

401

(10)

2.1 General

401

(1)

2.2 Statutory offences under the MSA 1995

402

(6)

2.3 Involuntary manslaughter for breach of duty

408

(2)

2.4 New statutory offence

410

(1)

3 Civil liability

411

(66)

3.1 Introduction

411

(1)

3.2 Who may be liable?

412

(7)

3.3 Breach of the duty of care

419

(3)

3.4 Causation in fact

422

(2)

3.5 Causation in law

424

(1)

3.6 Defences available to the defendant

425

(9)

3.7 The proportionate fault rule

434

(11)

3.8 Claims for loss of life and personal injury

445

(1)

3.9 Contrast claims in relation to cargo damage

446

(3)

3.10 Contribution between joint tortfeasors

449

(2)

3.11 Damages and the rule of remoteness of damage

451

(12)

3.12 Assessment of damages

463

(14)

4 Limitation periods for commencement of claims

477

(1)

5 Insurance issues

478

(3)

Chapter 10 Risks And Liabilities Under Salvage

481

(100)

1 The concept of salvage under maritime law

482

(1)

1.1 Definition

482

(1)

1.2 Origin

482

(1)

1.3 Foundation of a right for an award

483

(1)

2 Salvage under contract

483

(1)

3 The Salvage Conventions

484

(3)

3.1 Historical development of the revision of salvage law

484

(3)

4 Application of the 1989 Salvage Convention

487

(5)

4.1 General application

487

(1)

4.2 `Relevant waters'

488

(1)

4.3 Recognised subject of salvage

488

(4)

5 Elements of salvage

492

(18)

5.1 Danger -- General principles

492

(5)

5.2 Voluntary services

497

(10)

5.3 Success

507

(3)

6 Salvage agreements

510

(6)

6.1 Historical development

510

(1)

6.2 The role of the Convention and other legislation

511

(1)

6.3 Court's intervention

512

(4)

7 The master's authority to enter into salvage agreements

516

(8)

7.1 Master's authority at common law

516

(7)

7.2 Master's authority under the Convention

523

(1)

8 Duties and conduct of salvors

524

(16)

8.1 Best endeavours

525

(4)

8.2 Due care

529

(10)

8.3 Negligence occurring before salvage services were rendered

539

(1)

9 The position of several salvors

540

(3)

9.1 Dispossession of one salvor by another under maritime law salvage

540

(1)

9.2 Dismissal of a salvor

541

(2)

9.3 The position of several salvors under the Salvage Convention 1989

543

(1)

10 Duties of the owner of property in danger

543

(3)

10.1 Duty to co-operate under the Convention

543

(1)

10.2 Duty to co-operate under common law

544

(1)

10.3 Duty to co-operate under contract

544

(1)

10.4 Obligation to provide security to salvors

545

(1)

11 Assessment of the award and special compensation

546

(7)

11.1 The criteria for assessing the salvage award

546

(3)

11.2 Criteria for special compensation

549

(3)

11.3 Article 14 does not provide for environmental salvage

552

(1)

11.4 Some issues for consideration

553

(1)

12 Problems arising from the drafting of Art 14 of the Convention

553

(3)

12.1 Territorial limits N

554

(1)

12.2 Substantial physical damage

555

(1)

12.3 Threatened damage

555

(1)

12.4 Fair rate

555

(1)

12.5 The increment

556

(1)

12.6 Security for special compensation

556

(1)

13 The solution provided by the SCOPIC

556

(5)

13.1 The initiative

556

(1)

13.2 The sub-clauses

557

(4)

14 LOF 2000 and 2011: overview

561

(3)

14.1 LOF 2000

561

(1)

14.2 Changes made by LOF 2011

562

(1)

14.3 Changes to the LSSA clauses

562

(2)

15 Apportionment and payment

564

(1)

16 Jurisdiction

564

(1)

17 Time limits

565

(1)

18 Government intervention

566

(5)

18.1 The SOSREP

566

(1)

18.2 Potential offences by the salvor or harbour master

567

(1)

18.3 Places of refuge

568

(3)

19 Responder immunity

571

(1)

20 Environmental salvage

571

(10)

20.1 The background

571

(1)

20.2 The reasons for the proposal

572

(1)

20.3 The Proposal

572

(2)

20.4 Some views by commentators

574

(1)

20.5 The writer's views

575

(4)

20.6 The present status of the ISU proposal

579

(2)

Chapter 11 Risks And Liabilities Under Towage Contracts

581

(72)

1 Introduction

581

(1)

2 Definitions

582

(1)

2.1 Old definitions under common law

582

(1)

2.2 Definitions under the UKSTC 1986

583

(1)

2.3 Under Towcon/Towhire

583

(1)

3 Towage versus salvage

583

(4)

3.1 Under the Salvage Convention 1989

584

(1)

3.2 Under UKSTC 1986

584

(1)

3.3 Under Towcon/Towhire

584

(1)

3.4 Under common law

584

(3)

4 The making of a binding contract

587

(8)

4.1 Authority of the master

587

(2)

4.2 Authority of the master to bind the cargo-owners

589

(1)

4.3 Authority of the tugmaster

589

(3)

4.4 Pre-contractual duties

592

(2)

4.5 Unfair contract terms

594

(1)

4.6 Contract for services

595

(1)

5 Commencement, duration, interruption, termination

595

(6)

5.1 Commencement

595

(1)

5.2 Commencement and duration under the UKSTC

595

(1)

5.3 Examples at common law

596

(3)

5.4 Consequences of interruption of towing

599

(1)

5.5 Termination of towing

600

(1)

6 Duties of the tug-owner

601

(12)

6.1 Fitness of the tug

601

(7)

6.2 The position of fitness when a specific tug is requested

608

(2)

6.3 To use best endeavours to complete the towage

610

(2)

6.4 The duty to exercise proper skill and diligence throughout

612

(1)

7 Duties of the tow

613

(4)

7.1 Duty to specify what is required and to disclose the condition of the tow

613

(1)

7.2 The condition of the tow

613

(3)

7.3 Duty to exercise due care and skill during the towage

616

(1)

7.4 To pay remuneration to the tug

617

(1)

8 Relationship between tug and tow and their liabilities to third parties

617

(7)

8.1 Liability between tug and tow under the UKSTC

617

(1)

8.2 Tug, tow and third parties

618

(6)

9 Exclusion from liability and indemnity clauses

624

(10)

9.1 The ambit of the exception clauses

624

(3)

9.2 Indemnity clause

627

(2)

9.3 Limitations to exclusion and indemnity clauses

629

(5)

10 The substitution and Himalaya clause of the UKSTC

634

(4)

10.1 Substitution of tugs, authority to subcontract and transfer of benefits

634

(1)

10.2 Transfer of contract rights to a third party

635

(3)

11 Limitation of liability

638

(2)

12 Liabilities under Offshore towage contracts

640

(10)

12.1 Introduction

640

(1)

12.2 Allocation of liability between tug and tow

640

(10)

13 Offshore supplytime charters

650

(3)

13.1 Allocation of risks under SUPPLYTIME 89

650

(1)

13.2 Allocation of risks under SUPPLYTIME 2005

651

(2)

Chapter 12 Liability And Risks In General Average

653

(26)

1 Introduction

653

(3)

1.1 Definitions

653

(1)

1.2 Basis of the obligation

654

(1)

1.3 Who pays for the loss?

655

(1)

1.4 Property subject to GA

655

(1)

1.5 Examples of GA

655

(1)

2 The York--Antwerp Rules

656

(4)

2.1 Origin and application

656

(1)

2.2 Construction

657

(2)

2.3 Authority to act in GA

659

(1)

3 Conditions giving rise to GA

660

(5)

3.1 Danger or peril to the common adventure

660

(3)

3.2 Extraordinary expenditure or sacrifice

663

(1)

3.3 Voluntary, or intentional, and reasonable

664

(1)

3.4 Preservation property imperilled

665

(1)

4 Causation

665

(1)

4.1 Direct consequence

665

(1)

4.2 Foreseeability and break in the chain of causation

665

(1)

5 Effect of fault on GA entitlement

666

(8)

5.1 Remedies or defences -- the principle

666

(1)

5.2 Negligence

667

(1)

5.3 No liability to contribute

667

(7)

6 Accrual of the cause of action

674

(1)

7 Security

675

(4)

7.1 Right to a possessory lien

675

(1)

7.2 Forms of security

675

(1)

7.3 Non-separation agreement

676

(1)

7.4 Time limit

677

(2)

Chapter 13 Risk Management By Harbour Authorities: Liabilities Relating To Ports, Pilots And Wreck Removal

679

(58)

Introduction

679

(1)

Section A Law and regulations affecting harbours

680

(1)

1 Sources of port powers and definitions

680

(3)

1.1 Statutes and regulations regarding harbours' powers

680

(2)

1.2 Definitions

682

(1)

2 Types of harbour authority

683

(1)

3 Legislation for the protection of the environment

684

(3)

3.1 Oil pollution legislation and powers of the Secretary of State

684

(2)

3.2 The role of the port in inspections and enforcement of legislation

686

(1)

4 Powers and duties of harbour authorities

687

(16)

4.1 General powers

687

(1)

4.2 Duties of harbour authorities in a risk management era

687

(3)

4.3 Statutory duties and liabilities

690

(13)

5 Liability of ship-owners for damage caused to harbours

703

(8)

5.1 Statutory cause of action against the registered owner of a ship

703

(6)

5.2 Is a defence of contributory negligence sustainable?

709

(1)

5.3 Other options for the owner

710

(1)

5.4 Recoverable damages by the harbour

711

(1)

6 Harbour dues

711

(1)

7 Port security

712

(1)

Section B Pilotage and risks

712

(1)

1 Introduction

712

(2)

1.1 Pilots' function

712

(1)

1.2 The Statutes and further developments

713

(1)

2 Duties of a competent harbour authority in relation to pilotage

714

(4)

2.1 Obligation to provide pilotage services

714

(2)

2.2 Authorisation of pilots

716

(2)

3 Duties of masters and pilots in a compulsory pilotage area

718

(1)

3.1 Rules of engagement

718

(1)

3.2 Offence not to have a pilot

718

(1)

4 Pilot's authority and relationship between master and pilot

719

(2)

4.1 Who is in command?

719

(1)

4.2 Respective roles

719

(1)

4.3 Exchange of information

719

(1)

4.4 Reporting duties

720

(1)

4.5 Respective duties under common law

721

(1)

5 Liability of a pilot

721

(1)

5.1 Criminal liability

721

(1)

5.2 Civil liability

722

(1)

6 Liability of harbour authorities with respect to pilotage

722

(1)

7 Liability of the ship-owner for negligence of the pilot

723

(7)

7.1 Statutory provisions

723

(1)

7.2 How the courts have dealt with pilots' negligence

724

(4)

7.3 Comments

728

(2)

8 Charges by the competent harbour authority

730

(1)

9 Conclusion

730

(1)

Section C The WRC 2007

731

(1)

1 Introduction

731

(1)

1.1 Application

731

(1)

1.2 Objectives of the Convention

732

(1)

2 Fundamental provisions

732

(5)

2.1 General principles: proportionality and reasonableness

732

(1)

2.2 Obligations under the Convention

733

(1)

2.3 What is a hazard?

733

(1)

2.4 Liability of the registered owner

734

(1)

2.5 Compulsory insurance

734

(1)

2.6 The WRC and salvors

735

(1)

2.7 The WRC and places of refuge

735

(1)

2.8 Coming into force

736

(1)

PART IV COMPENSATION FOR LIABILITIES AND LIMITATION UNDER INTERNATIONAL CONVENTIONS

737

(138)

Chapter 14 Limitation Of Liability For Maritime Claims

739

(52)

1 Introduction

739

(2)

1.1 Justification of limitation

739

(1)

1.2 Modern trends: overview

740

(1)

2 Scope of the LLMC

741

(3)

2.1 Background to LLMC 1976 and recent developments

741

(1)

2.2 Application of the LLMC and limitations

742

(2)

3 Persons entitled to limit

744

(6)

3.1 Ship owners and others

744

(4)

3.2 Salvors

748

(1)

3.3 The liability insurer

749

(1)

3.4 Harbour authorities

750

(1)

4 Claims subject to limitation

750

(11)

4.1 The UK treatment of claims by passengers (for loss of life and personal injury)

751

(1)

4.2 Are litigation costs claims included?

751

(1)

4.3 All claims, whether for damages or for a debt or indemnity (Art 2(1)(2))

752

(1)

4.4 Claims occurring on board or in direct connection with the operation of the ship or with salvage operations (Art 2(1)(a))

752

(6)

4.5 Claims for loss resulting from delay (Art 2(1)(b))

758

(1)

4.6 Claims for rights that have been infringed (Art 2(1)(c))

758

(1)

4.7 Cost incurred for wreck removal (Art 2(1)(d),(e))

758

(3)

4.8 Claims in respect of measures taken in order to avert or minimise loss (Art 2(1)(f))

761

(1)

5 Claims excepted from limitation (Art 3(a)-(e))

761

(2)

5.1 Salvage and contribution in GA claims

762

(1)

5.2 Claims for oil pollution (dealt with by special legislation)

762

(1)

5.3 Nuclear damage claims

762

(1)

5.4 Claims by the master and crew against employers

762

(1)

6 Exclusion of total liability

763

(1)

6.1 Loss caused by fire on board: old law

763

(1)

6.2 Loss by fire on board, or loss of valuables by theft: present law

763

(1)

7 Conduct barring limitation or exclusion of liability

764

(17)

7.1 Comparison between Convention provisions

764

(3)

7.2 The test barring limitation: comparison between Conventions

767

(7)

7.3 The mental element of test under the 1976 Convention

774

(7)

8 Establishment of the limitation fund

781

(6)

8.1 Procedural matters under the Convention

781

(4)

8.2 Counterclaims

785

(1)

8.3 Procedure in the Admiralty Court in relation to limitation (brief account)

786

(1)

9 The 1996 Protocol and recent developments

787

(4)

9.1 General provisions

787

(1)

9.2 The Limits under the Protocol

787

(1)

9.3 The IMO Resolution LEG 5(99)

788

(1)

9.4 The EU Directive for compulsory insurance

789

(2)

Chapter 15 Liability, Limitation And Compensation For Passengers' Claims

791

(30)

1 Introduction

791

(3)

1.1 A shift from fault-based to strict liability

791

(1)

1.2 The background

792

(1)

1.3 The developments leading to the adoption of the 2002 Protocol

793

(1)

2 The PAL 1974 Convention

794

(10)

2.1 Application and scope

794

(1)

2.2 Exclusion of application

795

(1)

2.3 Definitions

795

(2)

2.4 Persons liable

797

(1)

2.5 Fault-based liability under PAL 1974

797

(1)

2.6 Presumed fault under PAL 1974

798

(1)

2.7 The relevance of risk assessment

798

(1)

2.8 Limits of liability

799

(2)

2.9 Carriage of valuables

801

(1)

2.10 Contributory negligence

802

(1)

2.11 Liability arising through the negligence of the servants or agents of the carrier

802

(1)

2.12 Time limit

802

(1)

2.13 Jurisdiction

803

(1)

2.14 Contracts of carriage through travel agents

803

(1)

3 Relationship between PAL 1974, the LLMC 1976 and the LLMC Protocol 1996

804

(2)

3.1 PAL 1974 and LLMC 1976

804

(1)

3.2 The 1996 Protocol to the 1976 LLMC and PAL 1974

805

(1)

4 The 2002 Protocol to the PAL 1974 Convention (PAL 2002)

806

(9)

4.1 The status of the PAL 2002 Protocol internationally

806

(1)

4.2 Status of the PAL 2002 Protocol at the EU level

807

(1)

4.3 Two bases of liability and two-tier limits under the PAL 2002

807

(2)

4.4 Period and extent of liability

809

(1)

4.5 Right of recourse or of the defence of contributory negligence

810

(1)

4.6 Financial security (compulsory insurance and direct action)

810

(1)

4.7 The right to limit liability and loss of it

811

(1)

4.8 Time limit for claims

812

(1)

4.9 Competent jurisdiction and recognition of judgments

813

(1)

4.10 Invalidity of contractual provisions

814

(1)

5 The IMO Reservation/Guidelines 2006

815

(2)

5.1 The background

815

(1)

5.2 The broad provisions of the Reservation/Guidelines

816

(1)

6 The Passengers liability Regulation (PLR 2009)

817

(2)

6.1 Scope

818

(1)

6.2 Application

818

(1)

6.3 Additional provisions

818

(1)

7 The MS (Carriage of Passengers by Sea) Regulations 2012

819

(1)

8 Conclusion on the amounts of potential liability

820

(1)

Chapter 16 Liability, Limitation And Compensation For Marine Pollution, Hns, And Nuclear, Damage

821

(54)

Introduction

821

(1)

1 Related International Conventions

822

(7)

1.1 Unclos

822

(2)

1.2 Marpol

824

(1)

1.3 Solas

824

(1)

1.4 The Intervention Convention

825

(1)

1.5 Oprc

825

(1)

1.6 Convention on Prevention of Marine Pollution by Dumping

826

(1)

1.7 Anti-fouling

827

(1)

1.8 Ballast water management

827

(1)

1.9 Recycling

828

(1)

1.10 The Wreck Removal Convention

828

(1)

1.11 The Salvage Convention

828

(1)

1.12 The system in the United States: OPA 1990

828

(1)

2 The international oil pollution compensation regime

829

(3)

2.1 Overview

829

(3)

3 The three-tier system of compensation

832

(2)

3.1 The 1992 CLC: first tier

832

(1)

3.2 The 1992 Fund: second tier

832

(1)

3.3 The 2003 Supplementary Fund: optional third tier

833

(1)

3.4 Limitation of liability

833

(1)

3.5 Information on the compensation regime

834

(1)

3.6 The relevant UK legislation

834

(1)

4 Application of the 1992 CLC and Fund Conventions

834

(8)

4.1 Sea-going vessels carrying persistent oil in bulk

834

(1)

4.2 What is a `vessel'?

835

(1)

4.3 Geographical application

836

(1)

4.4 Pollution damage

837

(1)

4.5 Types of Pollution Damage Claim

837

(2)

4.6 Admissibility of claims and causation

839

(1)

4.7 Claims not covered by the regime

840

(1)

4.8 Possible claims by salvors

840

(2)

5 Liability, defences and compulsory insurance under the CLC 1992

842

(4)

5.1 Strict liability

842

(1)

5.2 Defences

842

(3)

5.3 Compulsory insurance or other financial security

845

(1)

6 Channelling provisions and the ship-owner's rights of recourse

846

(3)

6.1 Who are protected by channelling?

846

(1)

6.2 Interpretation of, and exception to, channelling

847

(1)

6.3 Joint and several liability when two or more ships are involved in an incident

848

(1)

7 Constitution of the limitation fund under CLC

849

(1)

7.1 The limitation fund

849

(1)

7.2 Bar to any other actions against the assets of the owner

849

(1)

7.3 Bar under MSA to other proceedings against other liable person

850

(1)

7.4 Restriction under MSA on enforcement after establishment of limitation fund

850

(1)

8 Jurisdiction and procedural matters

850

(2)

8.1 Which court has jurisdiction

850

(1)

8.2 Bringing claims for pollution damage under MSA

851

(1)

8.3 Time bars

851

(1)

8.4 Recognition and enforcement of a CLC judgment

852

(1)

9 Differences between the 1969 CLC and 1992 CLC

852

(1)

10 The 1992 Fund Convention

852

(4)

10.1 Limited redress against the 1992 Fund in respect of pollution damage caused in 1969 CLC States

853

(1)

10.2 When the 1992 Fund will meet claims

853

(1)

10.3 Fund defences

854

(1)

10.4 Rights of subrogation

854

(1)

10.5 Time bar

855

(1)

10.6 Jurisdiction

855

(1)

10.7 Judgments

855

(1)

11 The 2003 Supplementary Fund Protocol

856

(4)

11.1 Why is it needed?

856

(1)

11.2 Applicability

856

(1)

11.3 Conditions for the Supplementary Fund liability

857

(1)

11.4 When should the Supplementary Fund pay?

857

(1)

11.5 The `membership' fee

858

(1)

11.6 Communication obligations and the denial of compensation

858

(1)

11.7 Time bar

859

(1)

11.8 Rights of subrogation

859

(1)

11.9 Jurisdiction

859

(1)

11.10 Recognition and enforcement

860

(1)

12 Stopia and Topia

860

(1)

12.1 Background to further contributions to compensation by ship-owners

860

(1)

12.2 Stopia

861

(1)

12.3 Topia

861

(1)

12.4 General scope of STOPIA and TOPIA

861

(1)

13 Common law

861

(1)

14 The Bunkers and the HNS Conventions

862

(10)

14.1 The Bunkers Convention

862

(4)

14.2 The HNS Convention

866

(6)

15 Criminal liabilities under the MSA 1995 relevant to oil spills

872

(1)

16 Nuclear Damage Conventions

872

(3)

16.1 Introduction

872

(1)

16.2 Common elements of the Vienna and Paris Conventions

873

(1)

16.3 The UK legislation

874

(1)

16.4 The 1971 Convention on Civil Liability for Maritime Carriage of Nuclear Material

874

(1)

APPENDIX: IMO PROCEDURE OF ADOPTION OF A CONVENTION AND TACIT ACCEPTANCE

875

(12)

Adopting a convention

875

(1)

Entry into force

876

(2)

Signature, ratification, acceptance, approval and accession

877

(1)

Accession

878

(1)

Amendment

878

(1)

Enforcement

879

(2)

Relationship between Conventions and interpretation

880

(1)

Uniform law and conflict of law rules

880

(1)

IMO Conventions

880

(1)

Tacit acceptance procedure

881

(6)

Index

887

Dr Aleka Mandaraka-Sheppard (LLB, LLM, PhD, Dip.IArb), is a dually qualified lawyer (Greece and England) and was formerly a practising solicitor in the City of London, Head of the Shipping Law Unit, UCL, and Visiting Professor of Maritime law. She is the Founder and Chairman of the London Shipping Law Centre Maritime Business Forum and practises as a Maritime Arbitrator and Mediator. Her passion has been in promoting risk management education since 1998 through the LSLC and privately to shipping companies in-house. This book was inspired by her teaching and practice in maritime law. Her students gave her great encouragement to write it and continue its editions.

In her early years of studies in the UK, apart from her interest in shipping, she carried out research in organisational behaviour and published "The dynamics of aggression in womens prisons" (1986), which gave her insights in causes of conflict, ways of resolving difficult conflict situations, and the effect of regulations on deterrence, or aggravation, of misbehaviour. Her knowledge in this area has provided the backbone in her practice as a lawyer, educator, writer, arbitrator, mediator and risk management advisor.

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