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Specialists in Shipping, Marine Insurance & Transit Law, London |
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WINTER NEWSLETTERCommentary by Michael Buckley
Although the winter has not been particularly newsworthy, developments have occurred which are not without interest. British Maritime Law Association Salvage Committee.In the Autumn Newsletter I referred to the Committee’s conclusion, which
was conveyed to the Foreign & Commonwealth Office, that the proposed UNESCO
Convention on the Protection of the Underwater Cultural Heritage was neither
necessary nor desirable so far as this country is concerned because we have
the benefit of legislation enacted for that purpose almost thirty years ago.
Although the Committee’s views were shared by other organisations, including
the International Salvage Union, it was apparent from the voting at earlier
meetings convened by UNESCO, that the draft convention was popular with a significant
majority of national delegations. It therefore came as no surprise that at the
UNESCO General Conference on 29th October 2001, the draft convention was approved
by 94 votes to 5, with 19 abstentions including the UK, France, Germany, Greece,
Sweden and the Netherlands. Those who voted against comprised Russia, Norway,
Turkey, Venezuela and Belarus. The project in which the BMLA Salvage Committee is currently involved relates to the efforts being made internationally to produce an agreed regime for dealing with what are often referred to as “leper ships”, that is to say, vessels which have suffered serious damage and, in consequence, have been refused permission to enter a port of refuge on account of the perceived dangers such vessels may present. Frequently, these risks are associated not only with the damaged condition of the vessel and the prospects of its foundering but with the hazardous nature of the cargo on board and the potential for pollution from, say, noxious chemicals. A recent example of these problems involved the vessel “Castor” which, after sustaining structural damage and being taken in tow in the Mediterranean by professional salvors, was refused entry by all the coastal States in the area which were approached. In the event, the cargo had to be transferred at sea to another vessel and the salvage services prolonged until the causes of concern were eliminated. In the wake of that incident, the Legal Committee of the International Maritime Organisation (IMO) decided in October 2001 that the legal issues should be investigated to assist the IMO Maritime Safety Committee in its aim to establish an international regime to tackle these problems. The BMLA Salvage Committee is preparing a response to the IMO questionnaire which is designed to ascertain the legal position in each country with respect to “places of refuge” and past experience in connection with casualties in need of a safe haven. This is likely to reveal that the UK is amongst the most advanced nations in establishing a clear and efficient response plan for dealing with situations of that nature for which most of the credit is due to Lord Donaldson and the report and recommendations he made following the “Braer” incident. The Lloyd’s Form Working Party.The annual meeting took place in November 2001 and there was some concern that it might prove to be the shortest on record as LOF 2000 had only been in existence for about 12 months and had not, thus far, given rise to any problems. In the event, however, there was an interesting discussion on a number of general issues which had caused concern. Firstly, mention was made of the fact that the LOF system attracts criticism in some underwriting circles because of the perception that LOF awards are too high in the relatively straightforward case involving, for example, the simple towage of a disabled vessel over a modest distance. In many cases, and if circumstances permit, the services required can be obtained on commercial terms without signing LOF and it was said that experience shows that this usually results in a significant saving because of the huge differential between the commercial price and the level of LOF award which many felt could not be justified. The new Appeal Arbitrator, Nigel Teare QC, who chaired the meeting, emphasised that, in response to similar criticism in the past, his predecessor had put down some guidelines in an effort to eradicate this problem which, in the circumstances, might need to be reconsidered. Another possibility put forward for consideration in this context was the preparation of a form of contract for use in such cases which would involve the adoption of an agreed tariff for towage services to a casualty with an option to convert the contract to LOF if the risks increased due to a change in the circumstances. Secondly, concern was expressed regarding the expense of LOF arbitrations including arbitrators’ fees and those charged by Lloyd’s. It was felt that greater transparency would assist in allaying those concerns and the Appeal Arbitrator agreed to consider that suggestion with Lloyd’s and the panel of original arbitrators. Thirdly, there was a debate concerning access to awards and arbitrators’
Reasons which are supplied in confidence by Lloyd’s to all arbitrators
on the panel. It was agreed that it was undesirable to allow Counsel to have
access to such information or to refer to other awards when making submissions
and the Appeal Arbitrator undertook to take steps to achieve that objective.
However, he emphasised the need for an updated version of the “LOF Digest”
in which Lloyd’s published summaries of awards in cases in which issues
of principle or general importance had been decided as it was plainly desirable
that all practitioners were aware of such decisions. Lloyd’s confirmed
that a new edition of the Digest would soon be available and it has since been
published. Return to News |
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