North - Signals 28 - July 1997

The Mariner's Role in Collecting Evidence
Personal injury guide and posters win award
Stowaways - an update
Stowaway seminar planned
Fatal fumigants
Piracy in Brazil
Portable dehumidification units
Foreign forum selection in the US
New terms for London arbitrations
Trading to Cuba
Wearing gloves
Fire Extinguishers
Time limits for mis-delivery claims
Port state inspections - preliminary/basic inspections and initiation methods
ISM countdown
Garbage management plans
Work planning poster
Loss prevention seminar in Mumbai, India
International Command Seminar
British safety competition
Shocking complacency
Club news and views

'The Mariner's Role in Collecting Evidence'

The Nautical Institute has published a new guide book and video package entitled 'The Mariner's Role in Collecting Evidence'. It is based on the previous publication 'The Master's Role in Collecting Evidence' and was again edited by Phil Anderson, head of North of England's loss prevention department.

A special edition of the book has been produced for North of England Members in the style of existing loss prevention guides and copies of these have recently been distributed.

The title was changed from the original to avoid the implication that the job of gathering evidence is somehow the exclusive preserve of the Master.

Since the first edition was published in 1989, there have been a number of relevant developments - in particular the ISM code and STCW convention.

The Nautical Institute thus decided to undertake a major review of the book which involved extensive re-writing of many chapters to bring these up to date. The work was undertaken by a large multi-disciplined group of individuals including many North of England P&I staff.

In his foreword to the book, the Admiralty Judge - The Honourable Mr Justice Clarke - makes the following observation:

"Courts depend upon evidence. Contemporary evidence is of the utmost importance. It is vital to make a note or report of any incident immediately, if possible while it is still in progress. Photographic or video evidence is of particular assistance to the judge or arbitrator in trying to establish the true facts ...".

Clearly, it is of paramount importance that all aspects of ship operations are carried out in a safe and seamanlike way. In addition, due diligence must be exercised to make the ship seaworthy and to look after the cargo which has been entrusted into the carrier's custody carefully. However this may not, in itself, be sufficient.

It will also be of considerable importance to ensure that all the safe and careful practices and activities are properly documented and supported with other pieces of relevant evidence. This will then allow, should it become necessary, a judge or arbitration tribunal to draw the correct conclusions about the ship, the owners and the people working on board. This can have a very significant effect on determining liability, in a wide range of incidents.

In a second foreword to the book, the Nautical Institute President - Captain EH Beetham - makes the following pragmatic statement:

"... having worked as an expert witness and as a consultant for plaintiffs and defendants I can say that this one publication has saved shipowners more money than any other I know ...".

The book explains in a clear, practical and concise way what evidence to collect for a wide range of types of incidents and how to collect the evidence. It was decided however to produce a video to complement the book to explain why it is importance to collect evidence. The video is intended for onboard training but should also be of considerable interest to those ashore engaged in all aspects of a ship's operation.

Sufficient copies of the book have been sent to Members for distribution to their entered ships and for use in offices as well as a copy of the video. Additional copies of the book and video can be obtained from the loss prevention department of the Association at special discount rates of £7 and £15 respectively (including post and packing).

Non-members can obtain copies direct from the Nautical Institute.

Personal injury guide and posters win award

North of England P&I Association was voted a runner-up in the 'Safety at Sea' category of the 1997 'Seatrade awards' for its 'Personal Injury Prevention' loss prevention guide and 'Safe Work Accident Prevention Posters' (SWAPP).

Four further entries were shortlisted in the 'Safety at Sea' category and the organisers emphasised the enormous difficulties the judges had experienced in identifying the ultimate winner due to the very high standard of the entries.

The author of the loss prevention guide - Richard Bracken - received a runner-up certificate from Lord Donaldson at the awards' ceremony in London Guildhall on 19 May.

The SWAPP posters continue to be distributed to Members and their ships. The sixth in the series - highlighting the importance of 'work meetings' as a major management tool for controlling safety issues on board - will be sent to Members with this issue of 'Signals' - please also see page 6 of this issue. Further copies of earlier posters in the series are available to Members on request via the Association's loss prevention department.

Complimentary copies of the personal injury loss prevention guide were sent to members earlier this year for distribution to entered ships. Additional copies are also available to Members at a special discount rate of £10. The orders have been so prolific - with some Members purchasing sufficient copies to provide one to every seafarer in their employment - that initial stocks were quickly exhausted. Additional stock will soon be available to Members via the loss prevention department. Copies are available to non-members from Roll Technical Marketing or Kelvin Hughes at £25 per copy.

Stowaways - an update

The problem of stowaways requires action by nation states to make ports more secure and action by owners to make their ships more secure.

However, many countries now consider the presence of stowaways to be, if not entirely the fault of the shipowner, then certainly not the responsibility of the port. Assistance is less forthcoming and even the imposition of fines is becoming commonplace.

Turkey

Turkish law regarding stowaways is currently being strictly upheld to the disadvantage of the shipowner.

If unreported stowaways are discovered on board during routine inspections by the Turkish authorities, then both stowaways and the master will be taken by the marine police for questioning, which could result in both parties having to appear before a criminal court for infringement of the Passport Law.

If found guilty, the stowaways could face up to six month's imprisonment and the master up to two years. Alternatively, either could be fined at the discretion of the judge.

When stowaways are reported to the marine police by the master of a foreign ship at the time of entry into Turkish ports, the master is expected to take responsibility for keeping the stowaways on board until the ship leaves. If the stowaways escape from the ship, the master will be detained and questioned by the marine police authorities which could also result in charges under the Passport Law.

Members are thus reminded that stowaways should be immediately reported to the Association, in order that the Association can where necessary ensure the appropriate authorities are advised. If the master is concerned that the stowaways might escape, it may be possible for Club correspondents to assist with hiring a local security firm.

Belgium

In recent weeks the Ministry of Internal Affairs in Brussels instructed authorities in Antwerp to implement article 74 of the Belgian Law of Aliens. This states that any carrier who brings in an individual, not holding valid identity documents, who then illegally enters Belgian territory, will sustain a fine of BEF150,000 per person (approximately US$4,300).

The fine is payable immediately and the ship will not be allowed to leave the port until it has been settled, either by cash, a bank cheque, or a bank transfer.

Further, if the stowaway is not found, then security will be required from the ship to cover future possible repatriation costs. Previously, a Club letter of undertaking for BEF200,000 was considered sufficient but a bank guarantee will now be required. Once again, Members need to take every measure to prevent the escape of stowaways in Belgium.

Spain

The Spanish Merchant Navy recently issued two official communications on stowaways in Spanish ports. These state that the master of a ship is obliged to inform the authorities of the presence of stowaways and failure to do so is considered an infringement, leading to a file being opened and possibly a fine imposed on the ship.

The ship may be required to place a bank guarantee of up to PTAS20,000,000 (approximately US$143,000) prior to sailing.

It would not be acceptable for the master to make a statement advising that he was unaware of the presence of stowaways, as this would be interpreted as a master who does not know what is happening on his own ship.

If the stowaway should escape during the ship's stay in port, the master is held responsible. The Merchant Navy believes that if the officers and crew are not qualified to hold the stowaways then they are obliged to seek the services of a private security company.

North America

In the USA the situation is more favourable to shipowners. Not only is the presence of stowaways on board viewed with less suspicion but it can often be possible to have the stowaways repatriated.

In Issue 27 of 'Signals' it was reported that on 1st April 1997 the 'Illegal Immigration and Immigrant Responsibility Act 1996' came into being. Recently a group of Club correspondents met with US Immigration assistant chief inspector and others in order to discuss the interpretation and implementation of the Act.

The decision for allowing a stowaway to be removed from a ship and placed into US Immigration's custody until travel documents are obtained is made by the local district director. It was stressed at the meeting that the field manuals will clearly spell out situations when the district directors should allow stowaways to be removed. These include

an excess number of stowaways
poor health of the stowaway(s)
if the stowaway is a minor or female
if sanitary provisions on board are insufficient, the safety and welfare of the ship's crew is at risk
if the ship is not promptly returning to the stowaway's port of embarkation.

Stowaway seminar planned

This year's Nautical Institute Mariner and Maritime Law seminar will focus on the increasingly problematic issue of stowaways.

The Association is pleased to continue its co-sponsorship of this important series of annual seminars which are now in their eighth year. This year's seminar will be held at the Swallow Gosforth Park Hotel in Newcastle on Saturday 25 October 1997.

Full details and registration form are contained in the pamphlet accompanying this issue of "Signals".

Fatal fumigants

The Association has become aware that shippers are now pressuring Members to use fumigants, in particular methyl bromide, in a manner which is potentially unsafe for all involved.

Fumigants are used where contact insecticides will not provide sufficient insect or rodent control. A popular choice is methyl bromide as it is particularly strong and it is a clear, colourless gas with only a very slight odour. However, it is also extremely toxic and must be treated with extreme care.

The International Maritime Organisation (IMO) recommend that fumigant gases should be used by specialists only and never by the ship's crew as they are poisonous to humans and require special equipment and skills in application. Evacuation of the space under gas treatment is mandatory and the whole ship should be evacuated until exposure has fallen to a level deemed acceptable by the appropriate authority. This would normally take at least 24 hours.

The IMO also advises that a 'fumigator in-charge' should be designated by the fumigation company and this person should provide the master with written instructions on the type of fumigant used, the hazards involved, the threshold limit values and any precautions to be taken.

It is extremely important that such guidelines are adhered to as methyl bromide may be fatal if inhaled and harmful if swallowed or absorbed through the skin. It is a neurotoxin and a severe irritant to the respiratory tract, skin and eyes. High concentrations may damage the liver, kidneys and central nervous system and onset of toxic symptoms may be delayed from 30 minutes to several days.

First aid measures

If there has been eye contact, the eyelids should be held apart and promptly washed with copious flowing water for at least 30 minutes. In the case of skin contact, the skin should be washed thoroughly with mild soap and plenty of water for 15 minutes and, if swallowed, the mouth should be washed with plenty of water, and water or milk provided to drink.

In all situations medical assistance should be sought immediately, especially if methyl bromide has been inhaled. In the meantime, the patient should be kept quiet and warm and, if necessary, artificial respiration applied.

Piracy in Brazil

The Association has become aware of what appears to be a new piracy problem in Brazil.

There have been several instances reported in the major ports and these appear to follow a similar theme. A group of heavily-armed pirates board the ship in the early hours of the morning and then proceed to ransack the ship for cash and valuables.

It has been known for the officers and crew to be badly injured as a result and even for hostages to be taken.

Unfortunately, the Brazilian authorities seem unable to handle the situation and there is as yet no indication that measures will be taken to deal with the pirates. Warnings are simply issued to ships and fines can be levied for having insufficient lighting or leaving offshore ladders in place.

Members should thus ensure their ships are fully aware of the potential danger and urge them to take all precautions necessary to lessen the likelihood of pirates boarding.

Portable dehumidification units

The following letter is from Captain Arthur Sparks MNI, an expert in the carriage of steel cargo. It introduces the benefits of using portable dehumidification units specifically designed for maritime use and highlights a new product from the US. The editor of 'Signals' would be interested in receiving follow-up reports from readers who have experience with using these type of units.

"Marine carriage of cargoes through varying climatic conditions frequently leads to damage claims arising from condensation on the cargo (cargo sweat) or on the component parts of the cargo compartment (ship sweat) which drips onto the cargo. These claims can plague the carriage of moisture-sensitive commodities such as steel.

The only reliable method of combating sweat development and ensuring that cargo is discharged in the same condition as loaded is to fit a state-of-the-art dehumidification system. However, shipowners whose ships are employed in the tramping trades are understandably reluctant to go to the expense of permanently installing a dehumidification system in the holds of their ships when they only carry moisture-sensitive cargoes on an occasional basis.

The alternative is to use portable dehumidification units. Though these are widely available in other industries, they usually lack the required capacity and efficiency for shipboard use.

Only units specifically designed to dehumidify ships' cargo holds using 'desiccant dehumidification' technology are really suitable. These draw air from the cargo hold through cells of silicone gel, which partly remove moisture by desiccant drying. The air is then blown back into the cargo compartment to maintain a dewpoint air temperature of 5° C below the temperature of the cargo and/or ship steelwork. The temperature difference is known as the 'moisture margin'.

One such unit is the Protec 2250 Bulkcaire Cargo Preservation System recently devised by L&C Associates of New Hampshire in the US. These container-mounted units are positioned on the deck or hatch covers from where two flexible hoses are inserted in the cargo hold via ventilators or inspection ports.

Compared with the value of potential cargo claims, the cost of hiring portable dehumidification units is minimal. Furthermore, they only need to be installed at cargo holds containing moisture-sensitive material.

The elimination of cargo damage through ship and cargo sweat also means that incompatible cargoes, that is hygroscopic and non-hygroscopic cargoes, can be stowed together without fear of damage. The units once set up are fully automatic.

Other benefits of using effective dehumidification systems include:

leaking hatches are immediately identified by the system's built-in alarm, enabling damage to be minimised when underway
corrosion of hold steelwork can be significantly reduced, leading to lower maintenance costs and fewer problems with cargoes sensitive to rust scale
wet holds can be dried rapidly, avoiding loading delays
vermin and infestation may in certain circumstances be brought under control by dehydration, avoiding cargo damage and health risks".

Footnote: For further information apply to Sparks & Co Ltd, 23 Melbourne House, 50 Kensington Place, London W8 7PW. Telephone 0171 792 3020, fax 0171 792 3020.

Foreign forum selection in the US

The following is a summary of a detailed letter received from Mr Charles L Whited of New Orleans' law firm, Murphy Rogers & Sloss.

A US Circuit Court of Appeal and a number of US District Courts have now held that foreign forum selection clauses in ocean bills of lading, which require the settling of disputes in foreign forum, are valid and enforceable so long as the US Carriage of Goods by Sea Act (COGSA) is applied to the final proceedings.

The US courts have begun to appreciate that shipping cases do not generally concern US corporations but rather international companies involved in the global transportation of goods.

The change of attitude started with the landmark "Sky Reefer" (1995) case when it was held that "foreign arbitration clauses in bill of lading are not invalid under the United States COGSA in all circumstances". Whereas the "Sky Reefer" case was concerned with the validity of a foreign arbitration clause in an ocean bill of lading, subsequent judgments have extended the decision to recognise the validity of foreign forum clauses. A number of different courts have accepted that such clauses can not be considered as violating COGSA as they do not lessen the carrier's liability.

The result of the recent decisions should give shipowners greater confidence that disputes will be resolved in the forum decided upon at the outset of any contract of carriage.

New terms for London arbitrations

The London Maritime Arbitrators Association has recently published a new set of terms known as the LMAA Terms (1997) (the "New Terms") replacing the old terms published in 1994. The New Terms have been drafted specifically to take account of the Arbitration Act 1996 ("the Act") which was featured in the last edition of 'Signals' and will apply to arbitrations started after the 31 January, 1996.

Application of the New Terms

If the Arbitration Act 1996 provides a skeleton around which maritime arbitrations will take place the New Terms provide the flesh. Their importance should not be underestimated.

The New Terms expressly state that they modify and supplement the provisions of the Act, fine tuning the procedures for the purposes of maritime arbitration.

Maritime arbitrations in London are commonly conducted by a band of professional arbitrators who are members of the LMAA. Appointments will normally only be accepted by these individuals on the current LMAA terms.

The terms expressly provide that where the arbitrators appointed are full members of the LMAA, the New Terms are presumed to apply and the arbitration agreement will be varied to incorporate the New Terms.

The practical effect is that if a Member appoints a recognised maritime arbitrator in London, the procedures set out by the New Terms will almost certainly be incorporated into the arbitration. It would need the express agreement of both parties that New Terms are not to apply for them to be excluded.

Changes brought about by the New Terms

The New Terms represent a well drafted set of procedures enhancing the tribunal's powers in keeping with the provisions of the Act and incorporating many procedures that over the years have become good practice in London maritime arbitration.

For the first time it is recognised that the law applicable to the arbitration is English law and that the seat of the arbitration is in England. However, it is the way in which the New Terms deal with the procedure of the arbitration which users are going to find the most noticeable change to current practice.

Paragraphs 8 and 9 of the New Terms deal with the arbitral tribunal and the mechanism for appointment. Where the tribunal is to comprise of either three arbitrators or two arbitrators and an umpire, the paragraphs also supplement section 16 of the Act dealing with practical matters such as disagreements between the tribunal so that in the case of a tribunal of three arbitrators paragraph 8 provides that the chairman's vote will prevail where decisions are taken by the majority of arbitrators rather than the full tribunal.

Paragraph 9 requires the umpire to attend substantive hearings following his or her appointment (he or she must be appointed before any substantive hearing). This removes what has been a common problem, namely that the umpire is brought in only after the original two arbitrators cannot reach agreement and the matter effectively has to be re-heard before the umpire increasing costs and wasting everybody's time.

Paragraph 12 deals with the arbitration procedure. The paragraph introduces a number of important changes which will alter the manner in which London arbitrations are dealt with. Specifically paragraph 12(a) provides that it is for the tribunal to decide upon all procedural and evidential matters. The Association has already seen an example of a tribunal requiring the parties to reach an agreement for the conduct of the reference within 21 days of the second arbitrator's appointment. If this practice becomes uniform it will put pressure on claimants to ensure that they are adequately prepared to arbitrate their claim before they appoint an arbitrator.

Otherwise paragraph 12 emphasises that it is for the parties to attempt to agree between themselves how the arbitration should be conducted and it is only when an agreement has not been reached that it is open to one party to make an application to the tribunal.

12(d) deals with procedure. This in itself is a new development, there being no procedure for making applications for directions contained in the 1994 terms. Of particular note is that once an application setting out the proposed directions has been made, the respondent has a mere three working days within which to reply to that application. This provision is reinforced by paragraph 12(f) which specifically requires the parties to deal with the procedural matters "expeditiously".

12(c) also introduces an important change. Under the old terms it was open to either side to require the matter be dealt with by oral hearing. Under paragraph 12(c) the power to determine whether the reference should proceed on the basis of oral or written evidence is reserved to the tribunal.

There has for many years been a feeling that many oral hearings are unnecessary and that most matters could be dealt with on the basis of documentary evidence alone. The LMAA has been sensitive to such criticisms and indeed it tried to introduce a similar provision in its misconceived FALCA procedure.

Provided arbitrators are prepared to take a robust view and not be influenced by parties whose sole interest is to complicate and prolong matters, there is sufficient power in the New Terms to ensure that an oral hearing is not misused.

The procedure for documents only arbitrations is set out in the second schedule to the New Terms. It is very similar to the procedure used in the 1994 terms. Interestingly (perhaps by way of oversight) there is no provision in the terms that the arbitration should take place in the English language. The document's only procedure does though provide that adequate translations are provided.

As regards oral hearings, the New Terms go to considerable lengths to ensure that they too are conducted as efficiently as possible.

Paragraph 14(a) requires a timetable for the preparation of the case to be agreed upon and in paragraph 14(c) the parties are obliged to consult with each other to assess their readiness, the duration of the hearing and to identify work still to be done. The New Terms also provide for preliminary meetings which, while not specifically directed at oral hearings will probably be used almost exclusively for such cases.

Paragraph 16 refers to the tribunal the right to determine when a preliminary meeting should take place and requires a preliminary meeting to take place in complex cases involving hearings of more than five days duration.

The third schedule provides an extremely comprehensive agenda as to what should be considered at a preliminary meeting. The intention is that matters should not become bogged down because parties have simply failed to consider matters of procedure.

If the tribunal feels that the matter is not being dealt with efficiently, it can simply call a preliminary meeting and give directions for the future conduct of the reference. If a party failed to comply with those directions, then it would expose itself to penalties under section 41 of the Act (tribunal's powers in case of party's default).

Powers of the tribunal

A welcome addition to the New Terms is the power of the tribunal to hear concurrently arbitrations which give rise to common questions of fact or law. Where both references are being conducted under the New Terms, it will be open for example to an intermediate charterer to apply to the arbitrators for the two arbitrations on the same facts to be heard concurrently. Almost certainly this will reduce the overall cost of such proceedings.

paragraph 15(b) provides that the tribunal may give directions "... in the interests of fairness, economy and expedition ..." which will include a requirement that documents available in one arbitration be disclosed to parties in the other and that evidence in one arbitration should be made available in the other.

Paragraph 15 also provides the tribunal with power to limit the number of expert witnesses. Again this is directed at cost saving and reflects the view that experts have been over-used in the past.

The award

The LMAA has recognised that not all awards can be published in six weeks and the New Terms provide that an award will normally be available within six weeks from the close of the proceedings but that it may be longer. To keep the balance the New Terms also provide that "... in many cases ... when a matter is one of urgency the interval (between close of proceedings and publication of the award) should be substantially shorter".

Members should also be aware that under paragraph 23(b) unless one or both parties have asked for a reasoned award prior to the close of proceedings appeals are excluded. The tribunal also reserves to itself the right to correct an award and the procedures set out in section 37 of the Act are enhanced.

Conclusion

It is likely that the New Terms combined with the 1996 Act will change the manner in which London arbitrations are conducted. Most obviously there will be fewer oral hearings and the tribunals are likely to assume a more interventionist role in the conduct of the arbitration.

Trading to Cuba

"We regularly trade with the US and have been approached with a fixture for cargo to be shipped from Europe to a discharge port in Cuba. Given the recent tightening of sanctions against Cuba by the US, how will our US operations and future sale of our ship be affected?"

Under the Cuban Democracy Act of 1992, any ship that has entered a port or place in Cuba for trading in goods and services, is forbidden from entering a port or place in the US to load or unload freight (unless by license from the Secretary of the Treasury) for a period of 180 days from the date of leaving Cuba.

The prohibitions established under the Act are ship-specific and do not apply to other ships in the same ownership or management unless they too have been trading to Cuba.

It should be stressed, however, that while a prohibition was in force it would probably be construed as an "encumbrance" for the purpose of selling the ship.

Wearing gloves

The following letter was received from a major UK based shipowner who recently purchased additional copies of the Association's 'Personal Injury Prevention' loss prevention guide, together with the full Safe Work Accident Prevention Poster (SWAPP) series produced to date.

"Thank you for sending us copies of the Safe Work Accident Prevention Poster series which we feel will make a valuable contribution to our shipboard safety practices.

However, we have some concerns regarding SWAPP 3 - the rights and wrongs of workshop practice at sea. The poster depicts a lathe operator using gloves which we do not feel is appropriate and is against our company policy".

The use of gloves should be encouraged but there are always exceptions to the rule. As mentioned in the 'Personal Injury Prevention' loss prevention guide which accompanies the SWAPP series, every situation must be considered on its own merit. The Association recommends that gloves should be worn whenever their use will prevent injury. The type of gloves used depends on the task being undertaken. Leather-palmed general purpose gloves should be worn during most general duties, although it is appreciated that they can be difficult if handling small components. All operators of machine tools must be aware of the potential hazards and act accordingly. The correct protective equipment must be worn at all times, machine guards must be used and the workpiece must always be secured in accordance with best practices.

Fire Extinguishers

The report in the last issue of 'Signals' on recent changes to European directives regarding colour coding of fire extinguishers drew the following response from a Member based in South America.

"Our ships are currently registered with a non-European flag state and do not operate in European waters or visit European ports. Do we need to re - colour code our fire extinguishers if we anticipate a visit to a European port".

The European standard for fire extinguishers, BS EN3, refers to all new extinguishers on board British and other EU flag state registered ships. Thus, if ships remain registered in a non-EU flag state, the colour coding of fire extinguishers does not need to be amended for visits to ports within the EU. All Members operating ships registered in an EU flag state are advised to contact the relevant authorities to gain further information and clarification.

Time limits for mis-delivery claims

The following question was recently raised by a Member: if an owner discharges cargo against a letter of indemnity without presentation of the original bill of lading, does the original bill remain valid indefinitely or is there a time limit after which it is safe to consider the bill void?

The question is really whether there is a time limit for claims for mis-delivery.

It is of course a breach of Club cover to deliver cargo without presentation of the original bills. of lading. It is for this reason that the Association recommends that its standard form of undertaking is also signed by a bank. Members are advised that they should always seek assistance when they are asked to deliver cargo without the original bill.

The Association's standard form of undertaking requires the party giving the undertaking to hand over the original bills of lading to the owner as soon as they arrive or come into that party's possession. Members should always insist that the original bills are returned to them as soon as possible.

However, receipt by an owner of the original bills will not extinguish any mis-delivery claims which may have arisen before then.

Under English law a claim for mis-delivery can take two forms: a contractual claim for mis-delivery and a claim in tort for conversion.

The contract of carriage evidenced by the bill of lading may incorporate the Hague or Hague-Visby rules. If so, then the one year time bar at Article III rule 6 of the Hague or Hague-Visby rules is likely to apply (under English law at least) to claims for mis-delivery.

Article III rule 6 of the Hague rules provides that:

"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered".

Article III rule 6 of the Hague-Visby rules provides that:

"The carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered".

The Hague rules time bar is not as wide as that in the Hague-Visby rules. However, it is probable that a claim for mis-delivery would be a claim for "loss or damage". Under Article IV of the Hague-Visby rules the time bar will also apply to any claims made in tort. In a Hague rules case it is still possible for a claim to be brought in tort even if technically time-barred.

The Hague/Hague-Visby time bars will only apply if the party to whom delivery should have been made (the owner of the goods) was a party to the bill of lading contract which is not always the case.

If the Hague/Hague-Visby time bars do not apply then claims can be brought within the contractual or tortuous time bar of the law applicable to the bill of lading. In England this would be six years from the date of breach in a contract claim or from the date that the cause of action accrued in tort.

Whatever the law applicable to the bill of lading there is of course a risk that a claim for mis-delivery may be brought in the country where delivery of the cargo was to be made. In such cases, the outcome will depend upon the laws of that particular jurisdiction.

Thanks are extended to Nicola Jeanes of law firm Rayfield Mills for assistance in drafting this article.

Port state inspections - preliminary/basic inspections and initiation methods

The last edition of "Signals" provided the background to port state control. This issue explains how port state control inspections may be initiated and what a basic inspection involves.

In accordance with the provisions of the Safety of Life at Sea (SOLAS) Convention and other internationally recognised conventions, port state authorities can board and conduct inspections of foreign ships in their ports. The purpose of these inspections is to identify deficiencies, if any, in ships which would render them non-compliant with internationally recognised safety standards and also to eliminate unfair competition.

Port states are also empowered to oversee any remedial work undertaken to ensure compliance.

However, many people find themselves confused as to the scope of port state inspections and the authority of the port state control officer (PSCO).

Port state inspections may be initiated in three basic ways, namely:

at the initiative of the port state authority
at the request of or on the basis of information received from another party (ie) another port state authority
by the port state being privy to information provided by member(s) of the crew, professional bodies, associations or any other interested party.

A port state inspection can be at two distinct levels: a basic inspection or a second much more comprehensive one which is simply referred to as a detailed or expanded port state inspection. In normal circumstances basic inspections should be six months apart, except for ships targeted for detailed or expanded inspections.

Under the terms of the basic inspection, a PSCO would be expected to proceed to a ship and make the following enquiries/assessments having first introduced himself or herself to the master or a responsible ship's officer.

Make an assessment of first impressions of the ship, such as its standard of maintenance and the condition of its paintwork and/or corrosion.
Ascertain the year the ship was built, the purpose and type of ship and her size so as to determine which conventions are applicable. (In practice the date of build, purpose and type of ship are often ascertained from the computer database prior to arrival at the ship).
Examine all relevant certificates and documents (see checklist).

Certificate checklist

International Tonnage Certificate.
Cargo Ship Safety Certificate or Passenger Ship Safety Certificate; Cargo Ship Safety Construction Certificate; Cargo Ship Safety Equipment Certificate; Cargo Ship Safety Radiotelegraphy Certificate (SRC) or Cargo Ship Safety Radiotelephony Certificate or Cargo Ship Safety Radio Certificate; exemption certificates (if any); Document of Compliance (SOLAS 74 regulation II-2/54).
International Certificate of Fitness for the Carriage of Liquefied Gases in Bulk; Certificate of Fitness for the Carriage of Liquefied Gases in Bulk.
International Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk; Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk.
International Oil Pollution Prevention Certificate.
International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk.
International Load Line Certificate (1966) or Load Line Exemption.
Oil Record Book parts I and II.
Cargo record book.
Minimum safe manning document; Certificates of Competency.
Medical Certificates (ILO Convention No. 73 concerning Medical Examination of Seafarers).
Stability information.
Shipboard oil pollution emergency plan.
Certificates as to the ship's hull strength and machinery installations issued by the classification society if the ship is classed.
Survey report files (in case of bulk carriers or oil tankers).
Reports of previous PSC inspections.
For ro-ro passenger ships, information on the A/A-max ratio.

If all certification is valid and the impressions of the PSCO are favourable, the PSCO should generally confine the inspection to any reported or observed deficiencies. If the PSCO's impressions are not good and onboard observations indicate clear grounds for suspecting the ship, its equipment or crew do not meet international standards, a detailed inspection of the ship would then be undertaken.

The next issue of "Signals" will consider detailed and expanded port state inspections.

ISM countdown

Members will be well aware that the implementation date for the next group of ships required to comply with the International Safety Management (ISM) Code is rapidly approaching.

On 1 July 1998, all shipowners operating tankers, bulk carriers and cargo high speed craft must comply with the Code. However, as shipowners must have their management system in place for at least three months prior to accreditation and before certification can be issued, there are only nine months remaining.

Recent articles in the maritime press have indicated that certification of the worldwide fleet is progressing slowly. It is reported that of the 18,700 ships currently registered with the International Association of Classification Societies (IACS) only 1,500 ships have been issued with safety management certificates by classification societies on behalf of flag. It is not certain how many certificates have been issued directly by flag but clearly shipowners are running out of time.

William O'Neill, secretary general to the IMO, is adamant that there will be no time extensions and that viewpoint is receiving strong support from Roberto Salvarini, head of maritime safety at the European Commission.

One of the major classification societies said recently that there is still a perception that ISM is not a difficult thing to achieve, but went on to say that it takes on average 12 - 18 months to put a fully compliant management system in place.

Clearly that time frame is not now available but all Members are urged to use the remaining time wisely to ensure full compliance with the ISM Code on 1 July 1998.

In another recent development, the European Commission has reached agreement with the Paris Memorandum of Understanding (MOU) on Port State Control that any ship failing to comply with the requirements of the ISM Code will face port detentions or a ban from MOU waters until certification is in place.

All ships covered by the ISM requirements will be subject to a stringent inspection during the three months following the deadline to ensure full compliance.

In an effort to ensure consistency of standards, all port state control inspectors from MOU countries will attend specially convened seminars to be trained how to detect deficiencies. The European Union is also set to amend European directives on port state control to ensure that what is now an agreement in principle becomes law.

Garbage management plans

Amendments to Annex V of MARPOL 73/78 were adopted in 1995 requiring ships of 400 gross tons and over and all ships certified to carry 15 or more persons to have a garbage management plan and a garbage record book. In addition the amendments require every ship of 12m or more in length to display placards to notify the crew and passengers of the ship's disposal requirements. These new regulations enter into force on 1 July, 1997 for new ships and on 1 July, 1998 for ships built before 1 July, 1997.

In July, 1996 IMO adopted Resolution MEPC. 70(38), 'Guidelines for the Development of Garbage Management Plans'. These guidelines are intended to assist shipowners and operators in the implementation of MARPOL Annex V, Regulation 9, especially with regard to the development of a garbage management plan and a garbage record book.

While the regulations apply to ships of all types, from coastal ships to large cruise liners, it is recognised that factors such as the ship's trade, sailing schedule, nature and volume of garbage generated, personnel available, and available budget will have a major influence on the garbage management policy and procedures. As a result the particular arrangements for each ship will vary considerably in their complexity and level of sophistication, hence the need for an individual plan for each ship.

Although disposal into the marine environment is proscribed, advancements in technology should not be discounted if they prove more effective in the processing and handling of wastes than currently available methods.

Members requiring further information should contact the Association's loss prevention department.

Work planning poster

The latest in North of England's Safe Work Accident Prevention Poster (SWAPP) series depicts the rights and wrongs of work planning at sea.

This poster considers one of the single most important aspects of accident prevention and safety at sea, that of work planning.

Poor work planning is identified as a causative factor in many incidents handled by the Association. Many near misses, dangerous occurrences, incidents and injuries occur as a result of insufficient preparation and work planning.

It is essential that all tasks on board ship are planned and fully considered prior to commencement of work.

Formal work meetings should be held on a daily basis to enable shipboard managers to consider fully all safety aspects, personal protective equipment requirements, inter-departmental effects and any additional equipment requirements.

If necessary, a "permit to work" system should be set up and a permit should only be authorised by heads of department.

If jobs are to be undertaken which are particularly complex, involve several people or require more detailed planning, a comprehensive work plan should be prepared. Tasks which may justify such a plan include

major engine maintenance
major machinery maintenance
entry into enclosed spaces
major boiler maintenance
cargo operations
complex mooring operations
tank cleaning/washing
electrical maintenance
working aloft/overside.

Although the list is not exhaustive it gives an indication as to the types of jobs which may require more complex work planning.

However, all work planning meetings should be carried out conscientiously with information distributed to all interested parties. Reference should be made to safety guidelines, the 'Code of Safe Working Practice', the Association's 'Personal Injury Prevention' loss prevention guide and shipowner's standing instructions.

Typically, the master, chief officer, chief engineer, second engineer, chief petty officer and shipboard safety officer might be expected to attend the work-planning meetings. However, if any other persons with an interest or valuable contribution to make wish to attend, then this should be encouraged.

Good work planning and the adoption of best practices are essential loss prevention tools. If shipboard tasks are correctly planned then incidents, accidents and injuries can be prevented.

A copy of SWAPP 6 is enclosed with this issue of Signals. Further copies can be obtained from the Loss Prevention Department of the Association.

Loss prevention seminar in Mumbai, India

Coinciding with Indian National Maritime Day on 5 April, the Association was pleased to participate in a P&I and loss prevention seminar for Members - The Shipping Corporation of India [SCI] in Mumbai.

The seminar was jointly hosted by North of England and Steamship Mutual.

Attending delegates were drawn from many different departments within SCI offices in Mumbai - some of whom had had little contact with a P&I Club previously.

In addition to providing an explanation of what P&I insurance is and how it works, there were also a number of workshops and case studies exploring some specific incidents to see what lessons could be learned in order to avoid them recurring in the future. The widespread backgrounds of the delegates ensured some active and lively debate.

The opportunity was also taken to look at some issues relating to the ISM code and the role of port state control inspectors.

International Command Seminar

The Head of the Association's loss prevention department, Phil Anderson, made a presentation on 'The Mariner's Role in Collecting Evidence' to a distinguished group of delegates at the International Command Seminar held in London on 21-22 May 1997.

The seminar was organised by the Honourable Company of Master Mariners, The International Shipmasters' Association, The Nautical Institute and Trinity House in association with the International Maritime Pilots' Association and the International Association of Harbour Masters. The international group of over 100 delegates was provided with a wide-ranging programme but with a special focus on the master/pilot relationship and the ship/shore interface.

Copies of the speakers' papers can be obtained from the Nautical Institute at 202 Lambeth Road, London SE1 7LQ.

British safety competition

The Association has agreed to co-sponsor the 1997 British Chamber of Shipping safety competition.

The competition is open to any serving seafarer on board ships of companies which are Members of the Chamber.

The competition comprises two sections:

Spotting the hazards in a deck scene, combined with compiling an original health and safety slogan.
Designing a poster or cartoon on any health or safety aspect.

Cash prizes will be awarded to the winners.

Details will be sent directly by the Chamber to all qualifying shipowners.

Shocking complacency

It would appear that one of the single biggest causes of personal injuries on board ship is complacency. Whereas shipowners ensure that new recruits are fully trained and aware of the potential dangers involved in their work at sea, claims tend to come most frequently from crew members with many years experience.

The majority of injuries due to carelessness can be quite minor, nonetheless, many of the larger claims are also ultimately the result of a quite simple mistake, either on the part of the injured person or his or her colleagues. It really would seem that the old saying of 'familiarity breeds contempt' is as true today as ever before.

The Association has recently been advised of several claims involving the use of electrics, where crew members were injured due to lack of basic precautions. By way of a reminder, it should be noted that the following steps should be taken prior to attempting any electrical maintenance, whatever voltages are involved.

Any task should be discussed at a work-planning meeting.
A permit system should be implemented and the permits to work signed by authorised personnel.
Only properly trained and experienced personnel should attempt electrical maintenance.
The appropriate electrical plans must be consulted and amended whenever any changes are made.
Isolation of circuit breakers, which must be locked, is essential prior to maintenance.
Full isolation should be checked with a multimeter.
The appropriate notices should be posted where any reconnection of power supply is possible.
If possible, a standby crew member should be available.

In issue 21 of 'Signals' basic advice was provided on how to treat burns and shocks. It is clearly preferable, however, to take steps which will ensure that no such treatment should be needed. Remember, the only reason there is so much advice on health and safety is because so many injuries and fatalities result from lack of care in everyday situations.

Club news and views

North of England staff

Ian Henderson - The Association is pleased to welcome Ian Henderson back to its head office in Newcastle. Ian set up North of England's office in Hong Kong two years ago where he remained as General Manager. He has now been appointed Deputy Claims Manager.
Alan Lo - Alan has taken over from Ian Henderson as General Manager of the Association's Hong Kong office.
Jeremy Miles - Jeremy joined the FD&D Department of the Association two years ago from South Africa where he had practised as an attorney. He has now been promoted to Assistant Manager FD&D.
Denise Huddleston - Denise has extended the scope of her secretarial role by moving to the Loss Prevention Department. Amongst other things Denise will have responsibility for controlling loss prevention publications and administration of Distance Learning Course students.
Ian Shackleton - Ian joined the Association's personal injury department just over a year ago after practising as a solicitor. Unfortunately Ian has had to relocate to Spain where he will take up a position with the Spanish law firm AMYA in Madrid. The Association wishes him success in his new career.
Peter Jackson - Having joined North of England over five years ago, it is with sadness that the Association will say farewell to Peter in September.
Andrew Crichton - After spending a couple of years as an assistant in the Loss Prevention Department - Andrew will be leaving to further his education - the Association wishes him well in his studies.