Tag Archives: maritime law

MARITIME OPINION | Not so chilly at the North Pole

Michael Byers | Khaleej Times, 2011.08.22
No country will ever “own” the North Pole, which is located roughly 400 miles to the north of any land. The central Arctic Ocean belongs to humanity; its challenges are the responsibility of all nations.

Those challenges – of life-threatening accidents, oil spills and over-fishing – are increasing as the sea-ice melts and ships of all kinds gain access.

The 1959 Antarctic Treaty is sometimes advanced as a model for Arctic governance. But the Antarctic Treaty was concluded before nations had developed vested interests there.

The Arctic has already seen more activity than the Antarctic. Fully 20 per cent of Russia’s GDP comes from its Arctic territories, mostly as revenue from oil and gas. And unlike the Antarctic, the Arctic is home to indigenous peoples.

The Arctic is also already substantially regulated by domestic and international laws. For while the Antarctic is a continent surrounded by oceans, the Arctic is an ocean surrounded by continents. All of the land belongs incontestably to one or another Arctic nation, with the insignificant exception of Hans Island, a rocky islet halfway between Greenland and Canada.

The Arctic Ocean itself is governed by the law of the sea, which all nations accept as customary international law. Developed through centuries of diplomatic practice, these rules have been codified in the UN Convention on the Law of the Sea, which most nations – though not yet the United States – have ratified.

As in the rest of the world, the territorial seas of Arctic nations extend 12 nautical miles from shore. Within that band, coastal states have extensive powers over foreign shipping and absolute rights over fish and seabed resources such as oil and gas. Between 12 and 200 miles, in the so-called exclusive economic zone, coastal states have no powers over foreign shipping but absolute rights to fish, oil and gas.

The crucial issues in the central Arctic Ocean concern ship safety and fisheries management. For this reason, the United States recently led the negotiation of a search-and-rescue treaty involving all Arctic nations, including Russia. The treaty designates zones of coastal state responsibility for search-and-rescue that extend into international waters all the way to the North Pole.

As the Arctic Ocean warms, commercially valuable fish species such as Pacific Sockeye Salmon and Atlantic Cod are moving north. Those species that exist within the high seas, or move between the high seas and the exclusive economic zones of coastal states, are acutely vulnerable to long-range fishing fleets from non-Arctic countries.

In 2008, Senators Ted Stevens and Lisa Murkowski of Alaska co-sponsored a Senate resolution directing the US government to negotiate the establishment of an international fisheries management organisation for the Arctic Ocean. Similar organisations already exist and are effective in the North Atlantic and elsewhere.

Setting up such an organisation would require the support of other Arctic nations, and membership would have to be open to non-Arctic nations also. These countries would thus have access to the fisheries beyond 200 nautical miles from shore, but only if science-based consensus on quotas was achieved.

But again, it’s often easier to achieve international agreement before the interests of nations become entrenched. For this reason, speed is of the essence. The high seas north of the Bering Strait are already ice-free in late summer – and closer to South Korea, Japan and China than many of the places where their long-range fishing boats currently operate.

The Arctic is not the Wild West zone of popular imagination, but neither is it a region where international cooperation is complete. As the ice melts, new rules for shipping and fishing are needed, quickly.

Michael Byers is a professor of global politics and international law at the University of British Columbia in Vancouver

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MARITIME LAW | Arctic cruise company sues Canada over stranded ship

The Canadian government is facing a multimillion-dollar lawsuit from the owner of a cruise ship that became stranded in the Northwest Passage last summer, CBC News has learned.

Adventurer Owner Ltd. of Nassau, Bahamas, is seeking at least $15 million US for costs related to its cruise ship, MV Clipper Adventurer, running aground on Aug. 27, 2010, according to a statement of claim that has been filed with the Federal Court.

The Clipper Adventurer was ferrying 128 passengers through the Arctic passage when it struck an uncharted rock shelf in Coronation Gulf, near Kugluktuk, Nunavut.

No one was injured, but the passengers and crew were forced to stay on the stranded ship for almost two days until a Canadian Coast Guard icebreaker arrived to take them to Kugluktuk.

The passengers were customers of Adventure Canada, a tour operator that had chartered the Clipper Adventurer for the Arctic cruise.

It took more than two weeks before the cruise ship was refloated on Sept. 14, 2010, according to Adventurer Owner’s statement of claim.

Ship was seriously damaged

The company claims that the ship was seriously damaged, and it was taken to a shipyard in Poland for repairs in November and December.

The damages Adventurer Owner is seeking from the federal government includes $12 million in repair and salvage costs related to the ship’s hull, $2.6 million for loss of business, and $350,000 in other costs.

The company says the federal Department of Fisheries and Oceans failed to inform mariners about the rock shelf, which the department has known about since September 2007, according to the statement of claim.

The nautical charts the Clipper Adventurer’s captain had on board indicated there were 29 metres of water in that spot, when there were only three metres, the company claims.

Federal officials “failed to put in place and maintain, or to take reasonable steps to put in place and maintain … any reasonable system for disseminating such information,” the company’s claim states in part.

None of Adventure Owner’s allegations have been proven in court [so far]. The federal government has not yet filed a statement of defence. A court motion indicates that lawyers have asked for more time.

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PRESTIGE | Spain appeals latest decision

Spain files a notice of appeal in the US Court of Appeals

Rajesh Joshi | LLOYD’S LIST

SPAIN has appealed against a US district court ruling from last month that threw out the country’s $1bnPrestige lawsuit against ABS.

This is Spain’s second appeal in this case since 2008. The appeal perpetuates the seven-year-old lawsuit, which already has become legendary in certain quarters as the biggest lawsuit in maritime history.

Spain yesterday filed a notice of appeal in the US Court of Appeals against the district court’s August 20 order dismissing Spain’s complaint.

As Lloyd’s List has reported, a Spanish appeal appeared to be inevitable following the August 20 ruling, in which district court Judge Laura Taylor Swain threw out the country’s case for the second time in 32 months.

The content of Spain’s new appeal, as well as the appellate judge before whom the appeal would come up, would become clear only in the weeks ahead, after a scheduling conference takes place.

In the country’s first public statement since the August verdict, Spain’s lead counsel Brian Starer told Lloyd’s List on Wednesday night: “Clearly, the district court decision is out of step with maritime law that has existed for hundreds of years.

“In short, ABS cannot partake in reckless misconduct which causes damage to a third party and then simply walk away with no responsibility. Our appeal will face this finding head on, and seek to establish that ABS does, indeed, bear liability for reckless conduct.”

ABS vice-president for external affairs Stewart Wade countered: “We are not at all surprised that Spain appealed. However, we remain confident that the circuit court will uphold the district court verdict, and vindicate ABS’ victory.”

At issue is Judge Swain’s verdict in August that accepted Spain’s contention that US law and not the laws of China or the United Arab Emirates as contended by ABS applied to the case, but held that US law “imposed no duty on ABS that is enforceable by Spain”.

Judge Swain was ruling on Spain’s insistence on holding ABS accountable for recklessness on top of negligence, which in Spain’s view makes a jury trial mandatory.

Spain’s case came up short twice in Judge Swain’s courtroom. The first instance was in January 2008 when she stymied Spain’s pursuit of the case by ruling that it was precluded by the International Convention on Civil Liability for Oil Pollution to which the country and Prestige flag state Bahamas are signatories.

In an apparent U-turn, Judge Swain ruled last month that the CLC was a non-issue because US law indeed applied, but she was throwing out Spain’s case anyhow.

Legal sources close to Spain had expressed outrage to Lloyd’s List after Judge Swain’s August verdict, stating that as a sovereign nation, Spain was entitled to “its day in court” regardless of the alleged whims of a solitary American judge.

Now that the case has officially left Judge Swain’s docket, Spain also hopes for an entirely “new beginning” before a new set of judges.

Spain sued ABS in May 2003 for alleged negligence in certifying the 1976-built, 81,564 dwt tanker Prestige as fit. It sank off Spain in November 2002, for which $1bn was sought to reimburse Spain for claims paid out.

Observers are following the matter with deeper interest in light of the fact that ABS classed Deepwater Horizon.

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PIRACY | Disaster in the courts

OP ED By Eugene Kontorovich, Associate Professor at Northwestern University Law School and a leading expert and author on maritime piracy.

In a surprising and dramatic development, a federal judge in Virginia threw the international campaign against Somali piracy into jeopardy this week by dismissing piracy charges against six Somalis accused of an attack on a U.S. warship. The holding turned on a statute dating back to 1819 that punishes “piracy against the law of nations.” The judge, in an unprecedented decision, held that attempted piracy is not itself part of the international law definition of piracy.

The practical effects of the decision will be disastrous for anti-piracy policy. Pirates are generally caught in the attempt, or not at all. Once pirates are onboard a vessel, it becomes a hostage situation. The owners negotiate and a ransom is paid; the pirates are allowed to escape. The dramatic recapture of the Maersk Alabama was undertaken because it was a U.S. ship, but this is rarely the case. After a successful seizure and ransom, it is hard to link suspected pirates at sea to particular attacks.

The ruling was based on out-of-context language in an 1820 Supreme Court case (and an of out-of-context passage from my own writings). It contradicts both binding treaty law and universal practice. The comprehensive Law of the Sea treaty clearly includes attempts as part of piracy. The judge wrongly claimed the U.S. did not ratify the treaty. It ratified the 1958 version that had the same piracy language, and accepts the current version as stating customary international law.

Over a hundred Somalis are being held in Kenya or the Seychelles on piracy charges roughly 20 separate cases. The suspects were apprehended by the unprecedented coalition of naval forces from roughly two dozen countries that is policing the Gulf of Aden and adjacent waters. The majority of these cases only involve attempts.

This broad and uniform practice by a variety of nations, supported by numerous Security Council resolutions further shows the court simply got the international law wrong. Moreover, the United States has been at the forefront of this practice. In 2006, the U.S. captured Somalis involved in an attempted attack on a vessel and turned them over to Kenya for trial. This pioneered the practice of using Kenya as a forum for trying piracy suspects captured by third-party countries. Others captured by the U.S. since then have also been involved in attempts. Yet according to the court, U.S. involvement in these captures may violate international law.

The court’s ruling will roil already strained relations with Kenya and the Seychelles, the only states that have proven willing to prosecute pirates. These poor states have always been reluctant about bearing the primary burden of dealing with pirates. Presumably it won’t sit any better with them when U.S. courts declare that they will not hear similar cases.

The Norfolk case involves an attack on a U.S. vessel, so there are many additional charges against the defendants. The Kenyan cases have no connection to that country – they are brought under the international law doctrine of universal jurisdiction. Without the piracy charges, there is little else for those countries to hold the defendants for.

Of course, the governments of the U.S. and other leading naval powers share some of the blame for failing to update their piracy statutes. To be sure, in marked contrast to the debacle in Virginia, the Netherlands recently convicted five Somali pirates under a 18th century statute with little difficulty – even though it was the first time it was ever used. Still, it would be best to modernize these laws which, given the ongoing boom in piracy, will be ever more needed. Such a modernization could clarify the policy toward attempts and conspiracy.

Any modernization should also consider something like the “equipment laws” that were so effectively used by Britain and other nations to repress the slave trade in the 19th century, an effort that is currently being promoted by the One Earth Future Foundation. Under these provisions, having pirate equipment – grappling ladders, huge outboard motors, RPGs and so forth – would be presumptive evidence of piratical intent. This would make it easier to prosecute pirates caught simply cruising around, in between jobs, so to speak. While courts can currently consider such evidence, the U.S. decision shows that the novelty of such cases may make judges very reluctant to convict without clear legislative guidance.

Source: The Maritime Executive

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MARITIME LAW | Harbour pilot cleared of putting man’s life at risk in landmark judgement

A harbour pilot who had been accused of putting a man’s life at risk and seriously injuring him through negligence was acquitted this week, after a court ruled that it is the ship’s captain who is responsible for every decision taken on a ship.

It is being considered as a landmark case that distinguishes between the responsibilities of the captain of a ship and those of the pilot.

The case goes back to 3 March 2003, when the ship MT Allegro, steered by harbour pilot John Pace Bardon, was about to leave Delimara, Marsaxlokk. One of the mooring ropes had snapped, hitting mooring-man Alfred Bone on the head and causing him a blunt head trauma.

Four doctors who testified in the proceedings said that as a result of the incident, Mr Bone’s hearing had deteriorated and he is still suffering serious consequences to this day.

In his testimony, Mr Bone explained that as MT Allegro was about to leave Delimara, he and another mooring-man, Carmel Dimitri, were letting go of the mooring ropes on the quay.

They had let go of the ropes to the stern and the bow of the ship, and he was trying to let go of the spring line, which was taut and ended up snapping, said Mr Bone.

Mr Dimitri said he remembers hearing the sound of a loud shot when Mr Bone was hit by the rope.

The court heard the testimony of Joe Micallef Stafrace, who had been appointed as a legal expert on the case.

Mr Micallef Stafrace said: “There appears to have been some haste in the sequence of events and orders given to let go remaining mooring ropes… had the order been given to the tugs [to take up the weight] a few moments later, this accident could well have been avoided.

“Both the tugs and the pilots are servants of the master/ship’s owner and therefore the latter bears responsibility for their actions and ultimately for the accident.”

Other experts and captains who testified all confirmed that the ship’s captain is ultimately responsible for the ship and the way it operates; the pilot is simply an advisor and the captain can choose whether or not to follow his/her advice.

The court examined what Captain Arlotta, the ship’s captain, had said under oath during the verbal process of the case (he has not been traced since).

“The pilot was on the starboard wing looking towards the jetty… I realised that the stern spring was becoming tight and asked the second mate aft to slack[en] the stern spring at the same time requested the pilot to stop pulling the stern.

“At this time the engine of my vessel was not running but it was stopped and the second mate told me that the rope was very tight and could not be slackened. In no time I noticed that the spring parted and saw the broken rope hitting the mooring man.”

The court noted that this statement clearly shows that the captain knew what was going on and what the problem was with the mooring rope; in fact, it was the captain who requested the pilot to “stop pulling the stern”, and this shows that he was well aware of the situation – probably even more so than the pilot.

The court took into consideration a number of points from the law that the defence had brought up.

Regulation 96 of 2003 of the Organisation of Pilotage states: “The function of a pilot on board a ship is to provide information and advice to the master of the ship… Despite the presence of a pilot on a ship, the master of the ship continues to be responsible for the conduct and navigation of the ship in all respects”.

Another section of the regulation states: “Notwithstanding anything contained in any law, the owner or master of a ship navigating under circumstances in which pilotage is compulsory, shall be answerable for any loss or damage caused by the ship or by any fault of the navigation of the ship in the same manner as he would if pilotage were not compulsory”.

The court concluded that the ship’s captain is criminally responsible, even if he is given wrong advice by the pilot. The pilot was therefore acquitted of all the charges brought against him.

Source: http://www.independent.com.mt/news.asp?newsitemid=109949

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MARITIME LAW | Rickmers Genoa at fault for tragedy

By Jim Mulrenan | TRADEWINDS.NO

A Bertram Rickmers owned containership has been held to be 70% responsible for a collision that claimed the lives of 13 seafarers on a small general cargoship.

The collision between the 1,864-teu Rickmers Genoa (built 2003) equipped for carrying heavy cargo and the 5,700-dwt general cargoship Sun Cross (built 1984) operated by South Korea’s Ja Sung Marine occurred more than five years ago in the Yellow Sea.

The Sun Cross laden with a cargo of pig iron sank within minutes of the March 2005 night time collision with the loss of 13 of the 15 crew members.

A London admiralty court found fault with the navigation of both vessels but Justice David Steel ruled “Rickmers Genoa must clearly carry the preponderance of blame.”

The judge described a decision to turn the Rickmers Genoa to port as “wholly improper.”

Rickmers however contended that its ship was inhibited from turning to starboard by the proximity of fishing vessels.

The Rickmers Genoa was the stand on vessel and the Sun Cross the give way vessel under navigation regulations.

The Rickmers Genoa, since renamed the Rickmers Dalian, was equipped with ARPA radars and AIS which identified the Sun Cross as a dangerously proximate target.

The second officer of the containership then made attempts to contact the general cargoship by VHF radio.

“The persistent and unsuccessful attempts to make contact whilst in the meantime making no alteration of course and speed are strongly suggestive of a reliance on VHF contact as the method of first resort in collision avoidance. This is to be deplored as enhancing the risks rather than limiting them,” noted Justice Steel.

The judge said he suspected the emergence of AIS providing the identity of vessels as well as range, bearing, course and speed had encouraged private VHF arrangements as a collision avoidance technique.

The ruling arises from claims from the owners of cargo aboard the Sun Cross, with the consequence of the 70:30 apportionment of blame determining financial liability in the same proportions.

Justice Steel sat with nautical assessor, Capt Derek Richards, who advised the judge on the navigational aspects of the dispute.

Click [here] to read the judgment in full.

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