The Shipping Law Blog
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Contributor Article: 10 Extraordinary Modern Shipwrecks

September 21, 2011

 

This article was contributed by a reader of the Shipping Law Blog, Jennifer Lynch from the E-Advisor Blog, which contains some fascinating factual articles on science and the modern world. 

Shipwrecks aren’t really considered a modern problem. Air transportation, which is obviously much more efficient, supplanted ocean liners decades ago, causing the romanticism that came with setting out on long overseas journeys to fade. Even still, ships remain a large part of worldwide commerce and transportation, the latter of which is more common in poor countries, where unfortunate accidents are more frequent. The following shipwrecks range from small-scale tragedies to unforgettable catastrophes, capturing headlines worldwide when they occurred.

  1. USCGC WHITE ALDER (1968):

    Longtime residents of New Orleans still discuss the plight of the White Alder, a former Navy YF-257-class lighter assigned to tend river aids-to-navigation and various other Coast Guard duties. The ship met its demise in the early evening of December, when it collided with a 455-foot Taiwanese freighter in the Mississippi River near White Castle, Louisiana, killing 17 of the 20 crew members. Just three of the dead were recovered due to the thick river sediment that quickly buried the cutter. More than 40 years later, 14 crewmen remain at the bottom of the Mississippi.

  2. SS EDMUND FITZGERALD(1977):

    Perhaps America’s most famous modern shipwreck, theEdmund Fitzgerald is still a fresh wound for the families of the 29 crew members who perished that night. When it was launched, it was the biggest ship on the Great Lakes, and its large hauls made it extremely valuable during its 17-year run. En route to a steel mill near Detroit from Superior, Wisconsin, the freighter encountered a winter storm with hurricane-force winds that created 35-foot waves. With a bad list, broken radars and water engulfing the deck, it sank 17 miles from Whitefish Bay. No distress signals were sent out, and Captain Ernest McSorley, who planned to retire at the end of shipping season, last reported “We are holding our own.”

  3. RAINBOW WARRIOR (1985):

    A former UK Ministry of Agriculture, Fisheries and Food trawler, the Rainbow Warrior was operated by Greenpeace to curtail whaling, seal hunting and nuclear testing, most notably evacuating 300 Marshall Islanders from Rongelap Atoll, a former US nuclear testing area. Docked in a harbor in New Zealand, it suffered two large, crippling explosions that sent it under water — photographer Fernando Pereira was killed when he returned to the ship to collect his equipment as the second explosion occurred. Two French secret service agents were arrested, and the nation denied involvement until a British newspaper revealed French President Francois Mitterrand authorized the plan. The scandal resulted in several high-profile resignations in the French government.

  4. MS HERALD OF FREE ENTERPRISE (1987):

    During the early stages of its trip across the English Channel from Dover, South East England to the Belgian port of Zeebrugge, the Herald of Free Enterprise began taking on water, listing and then capsizing in just 90 seconds. The sudden turn of events ended with the deaths of 193 people, many of whom were overcome by hypothermia in the 3-degree Celsius waters. One man disappeared after he made himself into a human bridge to save his wife, daughter, and other passengers. Failure to close the bow doors resulted in the worst peacetime maritime disaster for a British-registered ship since the Titanic disaster 75 years earlier.

  5. MV DONA PAZ (1987):

    Never before has there been a worse ferry disaster. The Dona Paz, en route from Tacloban City to Manila in the Philippines amid choppy seas, collided with the MT Vector, an oil tanker carrying 8,800 barrels of gasoline. Most of the passengers were asleep, so few had time to react as a fire aboard the Vector spread rapidly to theDona Paz. With life jackets locked away and a confused crew, the passengers’ chances of survival were slim. Philippine maritime authorities heard about the accident eight hours later, taking an additional eight hours to conduct search and rescue operations. Just 26 survived from both ships; the estimated number of passengers who died varies, ranging from just more than 1,500 to 4,000.

  6. MS ESTONIA (1994):

    As the largest ship belonging to the recently liberated Estonia, the MS Estoniaserved as an object of pride for the nation. It also caused horrible despair. Destined for Stockholm from Estonia, it struggled through a storm with 35 to 45 mph winds and 10-to 13-foot waves, weather typical for the Baltic Sea in the fall. When water flooded the vehicle deck, the ship rolled to 90 degrees, prompting the ship’s crew to communicate a mayday. Ferries and helicopters arrived at the scene during the next couple hours, rescuing 138 people — including one who died at the hospital. Drowning and hypothermia caused 852 deaths, the largest peacetime shipwreck disaster in the history of the Baltic Sea.

  7. NEW CARISSA (1999):

    Fortunately, no lives were lost during the grounding of theNew Carissa, but it did have an adverse impact on Oregon’s coastline. Approaching Port of Coos Bay, it was forced to anchor due to poor weather conditions and thus delay its arrival. A short chain and high winds, however, dragged the ship toward the shore, and by the time the crew had figured it out, it was too late. The vessel ran aground and two of its fuel tanks spilled 70,000 gallons of fuel oil and diesel, eventually killing 3,000 shorebirds and seabirds. Attempts to burn off the oil caused the ship to break into two, and it was later dismantled in 2008 despite becoming somewhat of a tourist attraction.

  8. WORLD DISCOVERER (2000):

    The German-based cruise ship was constructed with a double hull to prevent damage from minor collisions around the Antarctic Peninsula, a feature that made it seem perfectly safe. Even still, it wasn’t strong enough to withstand a large rock or reef in Sandfly Passage, Solomon Islands. After the passengers were successfully evacuated and the ship began to list, the captain was forced to ground it in Roderick Bay, where it has since remained with a 46-degree list. Like the New Carissa during its prolonged grounding, theWorld Discoverer serves as an offbeat attraction for tourists.

  9. MV JOOLA (2002):

    Only the Dona Paz disaster is considered to have been more costly than the Joola disaster, which ended with 1,863 deaths. Owned by the Senegalese government, the ship made frequent trips from Southern Senegal to Dakar with more passengers than its intended 580. As it embarked on the usual journey prior to its sinking, it held about 2,000 passengers, enough to make the ship vulnerable to a storm off the coast of Gambia. Designed only to navigate coastal waters, it quickly succumbed to the strong winds and heavy waves, sinking in fewer than five minutes. Overcrowding and a long history of technical problems were primary factors leading to its demise. Only 64 passengers survived, including only one woman who was pregnant.

  10. MV LEVINA 1 (2007):

    Tragedy struck twice aboard the Levina 1. Just six hours after the ferry departed from Jakarta, it caught fire, forcing hundreds of passengers to jump into the Java Sea. At least 51 people were killed and more than 290 were rescued, many of whom were picked up by the Levina II, the ferry’s sister ship. Remarkably, 60 passengers were able to swim to a nearby island to wait for help. The next day, four investigators and 12 journalists were transported to the ship, where several boarded without lifevests. Not long after, it listed and quickly began to sink, causing a panic among the party aboard. Two police forensic officers and a cameraman went missing, and another cameraman died in the hospital.

Article: The Growing Business of Armed Guards on International Ships (to Counter Piracy)

September 21, 2011

We often wonder, when reading of news stories involving piracy, who are the people at the forefront of dealing with this problem day to day. I mean if you mention any of the places we commonly associate with piracy to a ‘normal’ marine professional / surveyor they would baulk at the offer of a trip there or a project involving sorting something out there. 

 
However, one company that springs to mind is Gray Page. They specialise in maritime investigations, crisis management and providing plans and intelligence in handling such situations. Check out their website for further information (linked above).
 
One of the issues they are presently warning about is the fact that there is an increasing need to vet companies offering armed guard (private security services) services to vessels. This is a burgeoning market at the moment and it appears that some think that a cautious approach needs to be taken to those rushing to enter the market.  
 
Gray Page advised that the IMO’s Maritime Safety Committee’s (MSC) recently approved interim guidance on the employment of privately contracted armed security personnel (PCASP) to combat piracy underlines the requirement for independent vetting of private armed maritime security providers (AMSP).


The MSC guidance, issued in May, incorporates recommendations for flag States confirming that it is the responsibility of individual flag States whether to ordain the carriage of security personnel and their firearms on board ships sailing under their flags. Further interim guidance, for shipowners, ship operators and shipmasters, seeks to address the difficulties faced in selecting an appropriate provider of armed security services.

James Wilkes, managing director, Gray Page, commented: “The IMO should be commended for setting these guidelines focused, as they are, on ensuring that the provision on board of armed maritime security teams is managed safely and lawfully.”

“For a shipowner, employing the services of an armed maritime security provider is an exceptionally serious proposition, as the logical consequence of putting men with arms on board a ship is, fundamentally, to sanction the potential use of lethal force to defend the crew and vessel (albeit in extreme and proscribed circumstances). Any decision of such importance should be supported by comprehensive and objective due diligence.”

Gray Page has launched an ‘Armed Maritime Security Provider’ Vetting Programme to provide shipowners with a reliable and independent means of vetting prospective providers of armed maritime security services. The programme helps shipowners objectively and comprehensively evaluate prospective providers against professional, legal and ethics-based criteria encompassing corporate probity, financial substance, regulatory and legislative compliance, commercial experience, contractual integrity, operational and logistical capability, weapons licensing and accountability, and the selection, recruitment and training of security personnel.


About one in ten vessels off the Somali coast already carry armed guards. The IMO claims there were 489 reports of piracy and armed robbery against ships in 2010 – up more than 20% on 2009. So far this year more than 200 cases have been reported.

– 
Update October 2011 – We are told that the North of England P&I Club (a member of the International Group of P&I Clubs) has partnered with Gray Page to provide armed guard vetting services to all its members. 

How Do International Conventions Work?

September 15, 2011

There are generally three ways in which states agree to be bound by to international treaties (also referred to as conventions, protocols etc.):

1) Full Signature – Very uncommon, basically the state signs up to the new treaty and agrees to be bound by its terms at the same time – a move for the main proponent of a treaty or a state which has much to gain from its going ahead.
2) Signature subject to Ratification – Probably the most common type of way to proceed: a state signs a treaty to show its support in principle for a treaty but does not wish to be bound by its terms until it feels the time is right, when it will ratify the convention.
3) Accession – This is normally for the ‘latecomers’ if you like – they come along and see other who have signed and already moved to ratification and skip all the nonsense and just ‘accede’ to the treaty, agreeing to be bound by all its terms straight away in one step.

In some states once the treaty has been consented to fully it automatically becomes binding on a national level, national courts must abide by it. In other states a national law must be passed in the normal way by parliament, containing the text of the convention.

Latin Terms Used in Shipping Law

July 20, 2011

Some might say that shipping law is one of the more old fashioned categories of civil law, especially in comparison with say Intellectual Property or Media law. And although the Woolf Reforms* signalled the death knell for much of the latin used in civil courts in England and Wales it is still common  to come across the use of legal latin in shipping law claims and cases.

Here is a list of some of the most common legal latin phrases and words and their meanings.

Latin – English – Meaning 

Ab Initio – From the outset – This is normally used to describe that something is invalid or unlawful from its beginning. For example if you entered an illegal contract and after some time operating under it someone breached it, you might say that the contract was invalid from the date of the breach whereas another party
might argue that the contract was void ab initio, in other words it was never effective.  

Bona Vacantia – Ownerless goods – Some legal systems, including the English legal system, have a concept of Bona Vacantia, to organise how to deal with property which is owned by no one. Examples of such property would be if someone set up a company and then suddenly moved to the Amazon (for a lfiestyle change). The company would eventually be dissolved for not trading and its assets, not being claimed by any shareholders, would be Bona Vacantia and go to the government (essentially). Another example is the assets of people who die with no known relatives and leaving no will.

De Minimus Non Curat Lex – The law does not concern itself with trifles – This is a very useful maxim. The point behind it is that the law is made for keeping order in society (criminal) and allowing confidence in personal and commercial contracts (that the Civil law will uphold them if broken). All this is for the greater good of everyone in the society. The law is not there to pick on tiny points and punish people or businesses for tiny technicalities which are of no interest to anyone. For example, if you walk on the grass where there is a sign that says ‘do not walk on the grass’, you may have technically broken an agreement with the landowner or caused criminal damage but neither the civil nor criminal courts will be interested in your actions as they are relatively insignificant. Another example, that I witnessed myself, was someone entering train station barriers to meet a friend on the platform. They were asked where they were going by an attendant on the platform and when they explained he told them the terms of their season ticket say they must only enter the area beyond the barriers for the purpose of travel. Whilst this may be true no court would be interested in such a minor indiscretion.

Nemo Dat Quod Non Habet – You cannot give what you do not have – English law recognises this concept, particularly in relation to the transfer of property. If I sold your car on Ebay, despite you being the owner clearly that would be a fraud so this subtle maxim would probably not be relevant. Where it is more relevant, for instance in a maritime law context, would be if your vessel goes on fire and, although put out, the repair cost will be more than the total insured value. The H&M insurers might agree to pay you the total insured value but in doing so obtain a proprietary interest in the vessel (i.e. a right to sell the fire damaged vessel and offset the proceeds, say £ 10,000 against their payout). If you then accept their cheque and then sell the wreck to a hobbyist boat restorer friend for £ 1, say, then the court could invaludate this sale because you have given something (the proprietary interest in the vessel) that was not yours to give.

Res Judicata – A judged matter – This means that a claim has been dealt with already and cannot be reopened. For example if a Claimant sues someone and they agree to pay them compensation. They spend the compensation and then issue legal proceedings for compensation the defendant would please Res Judicata as a defence on the basis the matter had already been dealt with. Similarly if you are sued and win your case before the court, only to find the Claimant sueing you again for the same claim, you could please Res Judicata.

* The 1996 Woolf Reforms (implemented to civil law cases from 1999 onwards) were designed to make the civil court process in England and Wales more approacheble, cheaper, quicker and easier to understand. As a result they abolished the use of latin in civil cases. As they related to civil cases you will still find latin used in criminal law (Actus reus etc.).

ARTICLE: The Sinking of the “Bulgaria” (2011)

July 15, 2011

 

 

Vessel: Passenger Ship “Bulgaria”
Year: 2011 (July)
Place: Tatarstan, Volga River, Russian Federation.
Incident: Sinking.
Casualties: 77 Adult fatalities, 11 children. 
Cause: Age & Maintenance of Vessel / Overcrowding / Heavy Weather. 

 

On 11 July the vessel “Bulgaria” was sailing, heavily overcrowded, when it rolled, allowing water to rush into the internal spaces, causing the vessel to sink. It took just three minutes to sink leaving almost 200 people overboard and trapped inside, two miles from land.

 

One of the most tragic reports from the incident was that two nearby vessels sailed past and refused to offer assistance to the survivors. It noew appears that legal proceedings will be issued against those two ships by the Russian government.

 

 

The ship was 55 years old and its construction meant that any water ingress to internal areas was fatal (there were no seperation comprtments in the hull). The extrememe overcrowding would not allow it to stay upright in the weather it experienced. Investigations into this tragic accident are ongoing.

 

NEWS: Greece Gets Tough on Yacht Owners

July 10, 2011

The Times Newspaper recently reported* that the Greek customs agency in charge of ship taxes is currently visiting every single vessel registered as residing in Greece, to check whether its vessel type has been correctly designated. The agency reports that in the past an estimated 1,400 yachts in Greece were designated as various forms of merchant vessel and even fishing vessel. This led to some paying less, or no, tax and others actually earning subsidies. 

Now, amidst the tight austerity regime brought in to balance the Greek budget deficit, all yacht owners will be required to pay tax on the same scale, and checks will be made to ensure that all vessels are correctly designated.

The Times reports that the new ‘stricter’ regime has led to unusual numbers of empty berths in the marinas of Piraeus, just outside Athens, where many of the yachts which were apparently incorrectly registered have decided to head to new homes in other parts of the Mediterranean, notably in Turkey.

However, with the proximity of Athens to the major yacht destinations of the Med’ and the benefit that luxury yachts bring to the local economy, irregardless of registration information (hiring crew, using yards, paying berthing fees, buying parts and victuals and drawing in wealthy tourists to the area), we suspect that any reportedly empty berths will not be vacant for long.
* ‘Not yet a revolution, but a feeling of nothing to lose‘, Charles Bremner, Athens, published in the Times, twenty first of June 2011

ARTICLE: Legal Costs

June 25, 2011
 


 Shipping law is one of the most niche areas of the legal system. Whilst there is a huge body of law, which is for the most part very complex, there are very few shipping law cases that result in legal proceedings. There are therefore relatively few firms (especially outside the big cities) who can concentrate their entire practice on an area of shipping law or even shipping law as a whole. For this and other reasons the costs of shipping law disputes tend to be towards the higher end of the spectrum.

Indeed, when a case involving shipping law does go to trial it is often found that there has not been a clarification of the law for some time – in the recent case of Global Process Systems v Syarikat Takaful Malaysia Berhad a question arose as to what constituted ‘inherent vice’ under a marine insurance policy and it was surprising how many different views appeared on what was one of the fundamental elements of marine insurance. This case was unusual in that the parties had particularly ‘deep pockets’ and were willing to hold their ground on the legal points. The claim therefore went from first instance decision to Court of Appeal and all the way to the Supreme Court (Judgment link). This is highly unusual for a shipping law case in England and the legal costs for the losing party must have been significant.

 

ALLOCATION OF COSTS – THE COMPETING REGIMES
 

THE ‘ENGLISH RULE’ (the successful party can recover costs from unsuccessful party)

In most parts of the common law world costs are based on what is known as the ‘English Rule’; that costs ‘follow the event’. In other words the case is concluded and then the legal costs are divided as appropriate, usually meaning that the losing party pays their own costs and the costs for the other side. The logic is that in every dispute one side is at least theoretically wrong and had they amended their position the need for legal proceedings would have been avoided altogether.

This is a general rule and there are many nuances and exceptions to it. For instance in small claims track cases (low value disputes) the winning party normally will either not be able to recover any costs from the other side or only fixed amounts of costs. This is to stop parties with large amounts of funds available spending disproportionate amounts on legal fees in small disputes to ‘scare off’ the other side. For instance if you did not pay £ 150 on your phone bill because you were billed that amount by mistake. If the company did not listen and took you to court threatening that you would have to agree to pay it or be left owing them approx. £ 35,000 in legal costs.

The costs system in England, and the level of costs generally, is often cited as the main reason for there being relatively little use of the civil courts and a general reluctance to take disputes to legal proceedings in England. Lord Justice Jackson recently conducted a wholesale review of the system which is available here.

THE AMERICAN WAY (the successful party cannot recover costs from unsuccessful party) 

The USA is the best example of the alternative system. In the USA a successful party in litigation generally cannot recover their legal costs from the other side in the dispute. Like small claims in England this gives those people and companies of limited means the ability to use the court system freely, without the threat of incurring enormous unbudgeted defendant’s costs. The flip-side of this is that people perhaps lose a natural inhibition to litigate small or needless disputes that exists in England and the level of litigation is quite high.

AN ALTERNATIVE (the successful party can recover a fixed amount of costs from the unsuccessful party)

Lord Justice Jackson, who has conducted a wholesale review of the English costs system (linked to above) has been known to admire the German courts system for attribution of costs. This system is a blend of the English and American systems, where successful parties can recover reasonable costs but only up to a fixed amount.

“NO WIN – NO FEE”

Sometimes referred to in a maritime context as ‘no cure, no pay’, this is an agreement that the lawyer will only charge legal fees where they are successful in your legal case. This normally means that they obtain compensation from the other side for you (either in court or before going to court). This does not mean no win, no charge. Even where the lawyer is not successful they only waiver their legal fees and they may still charge you disbursements (telephone and travel costs, photocopying expenses, court fees, barrister’s fees etc.).

Because lawyers taking on these cases are risking being essentially unpaid for some of the work they do they will normally wish to charge more for the cases that they do win. For this reason in the USA it is common for such lawyers to note that is successful they are entitled to legal fees and / or a share of the compensation. This is known as a ‘contingent or contingency fee‘ and is normally not allowed for family or criminal cases.

Whilst it can seem unfair, if you have a civil claim but no ability to pay for legal representation to enforce it, the  contingency fee option is a real boon. In English law such fees are only allowed in very specific instances, where costs are not generally recoverable from the other side. Normally English solicitors may only use a ‘conditional fee‘ which is a percentage increase on their fees (or a ‘success fee’) that they get where they are successful. This is normally between 10  and 100 % and is recoverable from the other side in the dispute as long as they are properly informed about its existence.

ARTICLE: The “Exxon Valdez” Oil Spill (1989)

June 18, 2011
The vessel underway, with tug assistance.
 
Vessel: “Exxon Valdez”
Year: 1989
Place: Alaska, USA
Incident: Pollution (Crude Oil)
Loss: Approx. 500,000 barrels of crude oil spilled, affecting 1,300 miles of coastline.
Cause: Grounding on reef due to insufficient maintenance of software and crew fatigue / negligence. 

 

 

 

On 24 March 1989 the tanker “Exxon Valdez” was underway in the pristine natural habitat of Prince WIlliam Sound, Alaska, carrying 55 million gallons of crude oil, when she struck the a reef. She became grounded on the reef and her hull was breached, allowing oil to escape into the surrounding sea. In the days following as much as possibly 58 % of the crude oil onboard spilled into the ocean and to this day it is considered to be one of the biggest man-made environmental disasters of all time.

 

 

 

The Master was found to have been asleep at the time (below deck), and the third mate (who was taking his place on the bridge) failed to see or avoid the danger. The ship’s RAYCAS raydar system, which could have prevented the accident, was not working. Many of the failings identified in subsequent reports / investigations were not considered to be unique to Exxon, or this vessel, and were thought to be industry-wide concerns. 


A US court in Baker v Exxon awarded the victims of the incident approximitely USD 5.3 Billion in compensation, but this has since been the subject of numerous appeals and the amount was reduced to about one tenth of that amount. The main reason for the reduction was an argument over the level of ‘punitive damages’ under US law. The initial judgement was made essentially on the principle that a judge could award what they felt appropriate as a level of punishment (USD 5 Billion was about one year’s profit for the oil company), but the latest appeal judgment was made basically on the idea that the ‘punitive’ damages should be within a ratio of the real damages payable. 

 

 

 

The incident has led to some of the most wide-ranging reforms in the tanker world, in terms of recommended safety procedures, working hours for crews, oil pollution laws and regulations etc.

 

A photograph of the aftermath of the spill.

 

 

GUIDE: CARGO SHIPS

May 29, 2011

Cargo ships are some of the most distinctive ships of any genre of shipping; most uniquely designed to carry a specific type of cargo. Some of the main ones and most distinctive are set out below.

1. BULK CARRIERS

1.1 BULK CARRIERS WITH MULTIPLE HOLDS

1.2. GEARED BULK CARRIERS (HAVE THEIR OWN CRANES SO THEY CAN VISIT SMALLER PORTS)

 

2. TANKERS
2.1. GAS TANKERS

2.1.A. LPG TANKERS

 

2.1.B. LNG TANKERS

2.2. PRODUCT TANKERS

3. CONTAINERSHIPS

 

4. REFRIGERATION SHIPS (“REEFERS”)

This particular type of vessel is now quite uncommon; thanks to the refrigerated containers which can on containerships there is little need for charterers or cargo interests to hire an entire refrigerated vessel.

 

5. CAR CARRIERS
5.1. RO / ROs – Roll On Roll Off ships with ramps to load cars which generally transport other cargo at the same time.

 

5.2. PURE CAR CARRIERS

 

ARTICLE: Cargo Ship Hull Colours

May 29, 2011

Cargo ship’s have a lot of hull to cover in paint and one of the considerations when purchasing or refurbishing a ship is which colour to paint the hull. 

Grey or Black would be natural choices, like in the navy and many merchant vessels agree:

Others are painted in their company livery, like:

Maersk (blue)



However, some companies are also in the habit of painting their ships in garish colours, such as:

The Pink Containership (which has a female Master, Captain Ebner, believe it or not):

The Yellow Feeder Vessel:

However, even the most gauche of the modern merchant ships would have trouble competing with the “dazzle ships” of World War I. The allies gave up on trying to camouflage the ships with grey or blue paint and instead conceded they could be spotted, and switched the paints function to be so confusing that through a small u-boat periscope it was very difficult for a Germany naval officer to identify the size, type, weight, course or speed of the ship; thus their torpedoes (which then were required to be precisely aimed), missed the target.

 

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