We use cookies to improve your website experience. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. By continuing to use the website, you consent to our use of cookies. Close

INDEX

Modern Maritime Law Volume 2: Managing Risks and Liabilities

INDEX INDEX accidents aftermath, emergency procedures 23 analysis by European Maritime Safety Agency 38 Directive 2009/18/EC on investigation 42–3 human error, avoiding 19 inevitable, defence of 425–6 involuntary or gross negligence manslaughter 123 ISM Code 83 weather conditions 21 see also specific incidents accountability of harbour authorities 690, 715–16 Admiralty, contribution between joint tortfeasors by statute in 449–51 Advisory Committee on Pilotage (Pilotage Commission) 713 agents limitation of liability 746–7 negligence 802 aggregation doctrine, attribution of liability 125 ‘agony of the moment’ defence, collisions at sea 432–3 aircraft, salvage 491 AISs (automatic identification systems) 34, 35 ALARP (as low as reasonably practicable mnemonic) 9, 689, 690 Alert (journal) 10 Alfa I incident (2012) 845 Al Jaziah 1 incident (2000) 835 alter ego of company or corporation concept 98–9 concept of alter ego distinguished from ego of company 99 insurance issues 111 or identification doctrine 97 privity, meaning 99 towage contracts 608 alternative danger defence, collisions at sea 432–3 anti-fouling provisions 827 appurtenances 173 assignment shipbuilding contracts 284–5 tenants in common 136 Associated British Ports/Associated British Port Holdings (ABPH) 683 Association of Norwegian Marine Yards 222 Association of West Europe Shipbuilders 222 Athens Convention 2002 (previously 2002 Protocol to PAL 1974 Convention) 791 competent jurisdiction and recognition of judgments 813–14 compulsory insurance 810 contributory negligence 810 death or personal injury, limits applied for 812 defences 811 developments leading to adoption of 793–4 direct action 810–11 EU status 807 financial security 810–11 interest and legal costs 812 international status 806 liability cabin luggage, loss or damage 809 defect in ship 808 fault-based liability for death or personal injury caused by a non-shipping incident 809 incidents occurring during carriage 809 loss of right to limit 811–12 other luggage or vehicles, loss of or damage to 809 period and extent of 809 right to limit 811–12 strict liability for death or personal injury caused by a shipping incident 808 two bases of liability and two-tier limits under 807–9 luggage 809, 812 ‘pay first’ clauses 811 presumed fault under 809 recourse, right of 810 tacit acceptance procedure 793 time limits 812–13 valuables, carriage of 812 attribution of liability alter ego of company or corporation see alter ego of company or corporation collisions at sea 405 corporate personality and rules of attribution 97–8 identification doctrine 97, 100–3 International Safety Management (ISM), legal implications upon liabilities 104–31 carriage of goods contract, effect of ISM upon liability arising from 106–8 criminal liability and role of ISM Code 119–30 implications of ISM Code for criminal liabilities 131 insurance issues, effect of ISM upon 109–13 limitation of liability and role of ISM Code 113–19 Meridian rule 98, 103–4 , 112 privity 99, 109, 110–11 ‘special rule of attribution’ 98 substantive rule of law 103, 104 vicarious liability doctrine 98 authority of ship managers crew, engagement of 151 exceptional repairs 152 extent of authority to bind owners 150 issuing proceedings in name of principal 150 technical matters 151–2 automatic identification systems (AISs) 34, 35 ballast/laden method, repairs 470 ballast water BWM Convention (International Convention for the Control and Management of Ships, Ballast Water and Sediments) 827–8 general safety and environmental measures 50–2 Ballast Water and Sediments Management Plan 827 Ballast Water Record Book 827 Baltic and International Maritime Council (BIMCO) 73, 147, 323, 746 ‘Guardcon’ 2012 (standard terms contract) 20 management agreements 135, 146, 147 NEWBUILDCON see NEWBUILDCON (standard new building contract) towage contracts 582, 652 York-Antwerp Rules (YAR) 657 bareboat charterers 12–13 Basel II and III Implementation on Banking Supervision (Basel framework) 13 BC Code (Code of Safe Practice for Solid Bulk Cargoes) 48 best endeavours and ‘all reasonable endeavours’/‘reasonable endeavours’ 526, 527, 610 good faith, negotiation in 294–6 judicial interpretation 525–8 management of ships obligations of ship manager 152, 153–4 , 155 and reasonable care 155–6 risk management in drafting of best endeavour clauses 154–5 meaning 482 and reasonable care 155–6 salvage application of principles to 528–9 duties and conduct of salvors 524–40 towage, completion of 610–12 Best Management Practice (BPM4, 2011) 5, 7, 27 piracy risk assessment and planning guidelines 20, 21 Bierritz European Council, Erika II measures 34 BIMCO see Baltic and International Maritime Council (BIMCO) ‘blind eye’ privity or knowledge 110–11 , 779, 780 Blue Cards, IMO Reservation/Guidelines 2006 817 BMLA (British Maritime Law Association) 75 bottomry bonds, charges 178 BPM see Best Management Practice (BPM) BP Shipping, safety culture philosophy 10 The Braer disaster (1993) 3, 69–70 , 71 breach of contract contractual protection of manager/employees exclusion of liability 164 indemnity and Himalaya clauses 165–6 liability and limitation 165 damages 453 sale and purchase risks (second-hand ships) 294, 297 third-party contracts, interference by mortgagee 216 British Maritime Law Association (BMLA) 75 brokers, risk management by 307–8 bulk carriers 48–9 , 222 ‘bunker oil’ 863 Bunkers Convention (Bunker Oil Pollution Damage Convention) 2001 821, 862–6 compulsory insurance 864–5 liability 863–4 more than one person liable 863 no provisions for limitation of liability 864 pollution damage 863 responder immunity 865–6 scope of application 862 burden of proof collisions at sea civil liability 411 damages and rule of remoteness of damage 451 duty of care, breach 419–20 limitation of liability issues 767 cargo cargo-owners, authority of master to bind 589 Code of Safe Practice for Solid Bulk Cargoes (BC Code) 48 containerised, security for 563 damage to 775, 446–9 International Maritime Solid Bulk Cargoes Code (IMSBC Code) 48 loading risks 21 loss of or damage to 478–9 not part of security 174 unauthorized deck 668–9 voluntary services by owners 501–2 carriage of goods contract, effect of ISM upon liability arising from due diligence under HVR 106–7 ISM Code and DPA, relevance 107–8 causation accidental, following marine accident 58 break in chain of, unreasonable conduct 369–70 CLC 1992 and Fund Conventions, application 839–40 collisions at sea causation in fact 422–4 causation in law 424–5 damages 452 in fact 422–4 foreseeability and break in chain 665–6 general average 665–6 in law 424–5 limitation or exclusion of liability, conduct barring 767 sale and purchase risks (second-hand ships) ‘but for’ test (inducement and causation) 298, 301 ‘decisive part/real and substantial part’ (inducement and causation) 300 inducement to enter a contract 300–1 caveat emptor , effect 296 Central Register of British Ships, division of 142 certification 53, 72, 145, 341, 714 interim, under ISM Code 86–7 International Sewage Pollution Prevention (ISPP) 334, 335 ISM Code interim certification 86–7 required certificates 84–5 and verification 85–6 and verification under ISM Code 85 channelling provisions, pollution court having jurisdiction 850 government intervention 568 interpretation and exception to channeling 847–8 jurisdiction and procedural matters 850–2 MSAs, bringing claims for pollution damage under 851 persons protected by channelling 846–7 time bars 851–2 charge, ship mortgage compared 177–8 charterers bareboat 12–13 demise 745 liability for damages caused by hazardous and noxious substances 651 limitation of liability 745–6 , 753–7 part 745 slot 745, 746 charterparties 173, 188, 208 chattel security 178 civil law, hypothecation under 177–8 civil liability classification societies 374–83 American approach 382–3 comparison with air industry 380–2 whether duty of care owed to third parties 375–80 collisions at sea employer of wrongdoer 412–16 ‘equipment,’ ship as 417 fiduciary duty 413 liability attaching to ship 417 master, crew and pilot 417–18 negligence principles 411, 413 persons liable 412–19 persons responsible for management and operation of ship 416–17 port authority 418–19 salvors 418 shipbuilders and ship-repairers 419 three-stage negligence test 411–12 tug or tow 418 vicarious liability doctrine 412–16 pilots 722 Civil Liability Convention (CLC) 1992 see CLC (Civil Liability Convention) 1992 civil salvage 482 claims, obligation to discharge 188 classification societies civil liability to buyers and other third parties 374–83 American approach 382–3 comparison with air industry 380–2 whether duty of care owed to third parties 375–80 and flags of convenience 69–70 functions 72, 293 immunity from liability 72–3 inspections/surveys of ships by 29–31 conformity requirements of flag States 31 Directive 94/57/EC (1994) 29–30 Directive 2001/105/EC (2001) 30 Directive (Recast) 2009/15/EC (2009) 30–1 , 41–2 financial responsibility provision 30 monitoring of conformity with international standards 30–1 Recognised Organisations 30, 40 Regulation (EC) 391/2009 41–2 sales and purchases 328–9 safety and security of ships, role in 72–3 shipbuilding, new 221, 222 CLC (Civil Liability Convention) 1992 admissibility of claims and causation 839–40 application 834–42 geographical 836–7 incident and territory 836–7 territory and waters 836 ‘but for’ test 840 claims not covered 840 compulsory insurance 845–6 Convention of 1969 compared 852 defences 842–5 definition of ‘incident’ 836 definition of ‘vessel’ 835 direct property damage and consequential loss or expenses 837–8 environmental damage claims 838–9 financial security 845–6 geographical application 836–7 government wrongful act defence 844–5 and HNS Convention 866 Limitation Fund, constitution under 849–50 natural phenomenon defence 843–4 normal business operations claims 838 oil pollution 829, 830 pollution damage 837 pure economic loss 838 recognition and enforcement of judgment 852 salvors, possible claims by 840–2 sea-going vessels carrying persistent oil in bulk 834–5 ship-owners’ rights of subrogation 846 strict liability 842 third-party liability insurance 845–6 three-tier compensation system 832 types of pollution damage claim 837–9 CleanSeaNet (European satellite oil spill and vessel detection service) 36 clean-up expenses 760–1 , 837 CMCH Act see Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH Act), criminal liability under CMI (Comité Maritime International) 45, 46, 486, 579 coastguards, and salvage operations 506 Code of Safe Practice for Solid Bulk Cargoes (BC Code) 48 Code of Safe Working Practices for Merchant Seamen (CSWPMS) 11, 87 risk management 4, 5, 7, 9, 11, 17, 20, 24 collective knowledge doctrine, attribution of liability 125 collective responsibility 16–25 commitment to 25 funding for risk control and training 25 risk management stages 17–24 contract drafting 17–18 dispute resolution 23–4 incorporation of company 17 performance of voyage, risks at 19–23 ship operations 18–19 safety culture enhancement 24–5 systematic process, adopting 24–5 collisions at sea actions in rem and in personam 390 action to avoid, steering and sailing rules 394 adjustment of claims 479 ‘both to blame’ clause 449 bridge, collision with 443–4 burden of proof civil liability 411 damages and rule of remoteness of damage 451 duty of care, breach 419–20 cargo, loss of or damage to 478–9 civil liability employer of wrongdoer 412–16 ‘equipment,’ ship as 417 fiduciary duty 413 liability attaching to ship 417 master, crew and pilot 417–18 negligence principles 411, 413 persons liable 412–19 persons responsible for management and operation of ship 416–17 port authority 418–19 salvors 418 shipbuilders and ship-repairers 419 three-stage negligence test 411–12 tug or tow 418 vicarious liability doctrine 412–16 Conference on Revision 1972 884 contrast claims, cargo damage 446–9 contribution between joint tortfeasors 449–51 common law rule 449 by statute in Admiralty 449–51 criminal liability general 401 involuntary manslaughter for breach of duty 408–10 new statutory offence 410 statutory offences under MSA 1995 see below damages assessment 463–77 background of developments 451–2 detention 470–4 extent of damage 458–9 foreseeability 456, 457 idiosyncrasy of claimant, remoteness and mitigation of damages 460–3 kind of damage 457–8 mitigation of loss or damage 459–60 present law, general principle 453–7 reasonable foreseeability 459 rule of remoteness 451–63 ‘thin skull’ rule 459, 460 defences available actus novus interveniens 427–31 , 459, 461 ‘agony of the moment’ 432–3 alternative danger 432–3 contributory negligence 426–7 inevitable accident 425–6 necessity 433 time bar 433–4 detention damages loss and expenses, apportioning 472–3 mitigation issues 470–1 out-of-pocket expenses/other consequential losses 473 pure economic loss 473–4 routine repairs during collision damage repairs 472 distress, duty to assist those in 503–4 duty of care, breach 419–22 causation in fact 422–4 causation in law 424–5 res ipsa loquitur 420–2 standard of care and burden of proof 419–20 duty to assist following 502–3 fault, statutory presumption of and subsequent abolition 388–9 foreign currency damages 475–7 foreseeability 411, 412, 454, 456 insurance issues 478–9 involuntary manslaughter for breach of duty 408–10 law and regulations currently 389–90 limitation periods for commencement of claims 477 loss of life claims 445–6 negligence 389, 426–7 three-stage negligence test 411–12 two negligent acts, clear line between 440–1 objects, avoidance action causing damage to 444–5 partial loss of ship and incidental losses 468–74 cost of repairs 468 detention damages 470–4 fixture, loss of use 468–70 loss of use of fixture during repairs 468–70 proportionate fault rule 434–45 application 435 causative potency and blameworthiness 436–40 ‘clear preponderance of blame’ 436–7 composite faults approach 438 exceptions to 440–5 unit approach 438, 442, 443 proximity 411, 412 pure economic loss 412, 473–4 Regulations see Colregs (International Regulations for Preventing Collisions at Sea), 1972 risk management 19, 387–479 risk of 394 between ship and a non-ship 442–5 avoidance action causing damage to objects 444–5 bridge, collision with 443–4 statutory offences under MSA 1995 breach of documentation and reporting duties 403–4 conduct endangering ships, structures or individuals 405–7 dangerously unsafe ship/unsafe operation of ships 404–5 directions following shipping casualties, breach of duty to give 408 disobeying Collision Regulations 402–3 failure to give assistance to vessels after collision or to vessels/persons in distress 403 life-saving regulations, breach of statutory duty with regard to 407 lighthouses, buoys or beacons 407–8 Traffic Separation Schemes 389, 396 Colregs (International Regulations for Preventing Collisions at Sea), 1972 388–401 breach under Merchant Shipping Act 122 conduct of vessels in restricted visibility (Part B, Section III) 398–400 conduct of vessels in sight of each other (Part B, Section II) action by give-way vessel (Regulation 16) 398 action by stand-on vessel (Regulation 17) 398 crossing situation (Regulation 15) 397 specification of responsibilities between vessels (Regulation 18) 398 definition of vessel and ship 391 disobeying, as statutory offence under MSA 1995 402–3 general 391–2 lights and shapes (Part C) 400–1 and Orders in Council 390 origins 388 ships subject to 390 sound and signals (Part D) 401 statutory presumption of fault and subsequent abolition 388–9 steering and sailing rules (Part B, Section 1) 392–6 action to avoid collision (Regulation 8) 394 collision risk (Regulation 7) 394 narrow channels (Regulation 9) 395–6 proper lookout (Regulation 5) 392 safe speed (Regulation 6) 392–4 Traffic Separation Schemes (Regulation 10) 396 types of regulations 391–401 see also collisions at sea combustion, dangerous goods causing 673–4 Comité Maritime International see CMI (Comité Maritime International) Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), establishment under Erika II 29, 38–9 common law classification of terms of contract 319–20 common law possessory lien, ship mortgage compared 178 contribution between joint tortfeasors 449 exclusion of rules concerning duty of care 129 harbour authorities respective duties of master and pilot 721 risk management 688 statutory duties and liabilities 696–8 master’s authority to enter into salvage agreement at 516–23 negligent misconduct under 530–7 salvage duty of owner of property to co-operate 544 negligent misconduct 530–7 Tojo Maru case 536 shipbuilding contracts 234–5 tort, actions in 861 towage contracts commencement of towage 595 condition of tow 614–15 definitions 582–3 examples at 596–9 towage versus salvage 584–7 Common Structural Rules (IACS) 73, 76, 222 companies alter ego of see alter ego of company or corporation controlling or directing mind of 12, 97, 104, 123, 769 corporate interrelations 12–13 corporate personality and rules of attribution 97–8 definition of ‘company’ under ISM Code 79, 152, 159, 161 gross negligence manslaughter, attribution of liability to 124–6 identification of relevant persons in 100 incorporation, risk management 17 infrastructures of shipping companies 11–16 one-ship 12, 209 persons in actual control 101, 102 as ports 683 risks exposed to 8 ship ownership 402–3 company security officer (CSO) 96 compensation CLC (Civil Liability Convention) 1992 832 Compensation for Oil Pollution in European Waters Fund (COPE) 39 denial permanent 859 temporary 858–9 Fund Convention 1992 832 information provision 834 international regime, oil pollution 829–31 IOPC Funds 831, 841 limitation of liability 833 relevant UK legislation 834 SCOPIC see Special Compensation of Protection and Indemnity Clause (SCOPIC) ship-owners’ contributions, further 860 special, salvage concept 553 criteria 549–52 fair rate 549, 552, 555–6 Nagasaki Spirit case 550–2 out-of-pocket expenses 549 security 556 Supplementary Fund 2003 833 three-tier compensation system 832–4 see also International Oil Pollution Compensation Funds (IOPC Funds) Compensation for Oil Pollution in European Waters Fund (COPE) 39 compulsory insurance Bunkers Convention (Bunker Oil Pollution Damage Convention) 2001 864–5 CLC (Civil Liability Convention) 1992 845–6 limitation of liability 789 PAL 2002 (2002 Protocol to PAL 1974 Convention) 810 wilful misconduct defence 735 WRC (Wreck Removal Convention) 2007 734–5 see also insurance issues conflict of laws Convention on Maritime Liens and Mortgages (1993), ratification issues 183, 185 law governing mortgage and law of agreement to grant a mortgage 180–1 lex fori 182, 185 priorities between foreign liens and mortgages 181–5 whether proposals for a uniform approach 185 consideration, lack of in shipbuilding contracts 247–8 constructive total loss (CTL) 110 contract law breach of contract see breach of contract contract for services 595 contracts uberrimae fidei 296, 593, 594 dismissal of salvor under contract 541–3 duty to co-operate under contract, salvage 544–5 general average losses 655 insurance issues see insurance issues salvage under contract 483–4 shipbuilding contracts see shipbuilding contracts third-party contracts see third-party contracts, interference by mortgagee towage contracts see towage contracts travel agents, contracts of carriage through 803–4 unfair contract terms 594–5 contract price adjustment clauses, shipbuilding contracts 246 contracts, shipbuilding see shipbuilding contracts contrast claims, cargo damage 446–9 contributory negligence defence collisions at sea 426–7 harbour damage, liability of ship-owners for 709–10 passenger claims 802, 810 see also negligence control theory, tug and tow 619–20 control and ‘two employers’ conundrum 620–3 Conwartime charter 21 co-ownership joint tenants 136 minority shareholders, objections of 137, 138 in modern times 138 relationship between co-owners 137–8 tenants in common 136 in ‘whole ship’ 136 COPE (Compensation for Oil Pollution in European Waters Fund) 39 corporate interrelations 12–13 Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH Act), criminal liability under applicable organisations 128 corporate killing offence 126–7 deaths in custody 127 duty of care 127 exclusion of common law rules concerning 129 ‘relevant duty of care,’ meaning 128–9 elements of offence 127–8 fines 130 gross negligence killing 127 Law Commission proposal 126–7 penalties 129–30 prosecutions 130 question of law and of fact 129 reasons for offences under 127 reckless killing 127 corporate personality, and rules of attribution 97–8 corporations, alter ego of see alter ego of company or corporation Costa Concordia disaster (2012) 3, 18, 21, 49 craft non-displacement 391 recognised subject of salvage 489 crew civil liability 417–18 defence applicable Criminalisation Directives 55–6 engagement of 151 lifeboat crews of RNLI, salvage by 506–7 limitation of liability issues 762–3 training 21, 53 CREWMAN A and B 2009 (ship management agreement) 135, 146, 147, 165 Criminalisation Directives on ship-source pollution 27, 822 Council Framework Decision (2005/667/JHA) 56 Directive 2005/35/EC additional defence applicable to owner, master and crew 55–6 amendments made by Directive 2009/123/EC 64–5 background 54–5 challenge against 59–64 conduct 55 conflict with International Conventions 58–9 defences applicable to all persons involved 55 infringement 55 Directive 2009/123/EC amendments made to Directive 2005/35/EC by 64–5 background 54–5 ‘reckless misconduct’ 62, 63 ‘serious’ negligence, elusive concept 60–4 ‘wilful misconduct’ 62 International Conventions, treatment of ship-source pollution by conflict with Directive 2005/35/EC 58–9 MARPOL relevant provisions 58 UNCLOs relevant provisions 57–8 recklessness 62, 63 criminal liability collisions at sea general 401 involuntary manslaughter for breach of duty 408–10 new statutory offence 410 statutory offences under MSA 1995 402–8 harbour authorities 702–3 implications of ISM Code for criminal liabilities 131 management of ships 161–4 mens rea offences 125, 162–4 non-strict liability offences 162 Merchant Shipping (ISMC) Regulations, criminal liability under 122–3 Merchant Shipping Acts, statutory offences under 119–22 breach of Collisions Regulations 122 breach of documentation and reporting duties 403–4 collisions at sea 402–8 conduct endangering ships, structures or individuals 405–7 dangerously unsafe ship 120, 404–5 directions following shipping casualties, breach of duty to give 408 disobeying Collision Regulations 402–3 failure to give assistance to vessels after collision or to vessels/persons in distress 403 life-saving safety measures 120, 407 lighthouses, buoys or beacons 407–8 logbook of ship 119 notices 119–20 rules of special ships 120 safe manning regulations 120 unsafe operation of ships 121–2 , 404–5 non-strict liability offences 162 oil spills 872 pilots 721–2 prior to CMCH Act 2007 attribution of liability for gross negligence manslaughter to a company 124–6 gross negligence manslaughter test against individuals 124 offence of involuntary or gross negligence manslaughter 123 under CMCH Act 2007 applicable organisations 128 corporate killing offence 126–7 deaths in custody 127 elements of offence 127–8 exclusion of common law rules concerning duty of care 129 fines 130 gross negligence killing 127 Law Commission proposal 126–7 penalties 129–30 prosecutions 130 question of law and of fact 129 reasons for offences under 127 reckless killing 127 ‘relevant duty of care’ 127, 128–9 CSWPMS see Code of Safe Working Practices for Merchant Seamen (CSWPMS) damages assessment 463–77 foreign currency damages 475–7 general principle ( restitutio in integrum ) 463–4 , 467 limitation periods for commencement of claims 477 partial loss of ship and incidental losses 468–74 Tojo Maru case 537 total loss of ship 464–8 background of developments 451–2 breach of contract 453 causation 452 consequential 650 detention loss and expenses, apportioning 472–3 mitigation issues 470–1 out-of-pocket expenses/other consequential losses 473 pure economic loss 473–4 routine repairs during collision damage repairs 472 extent of damage 458–9 in foreign currency 475–7 foreseeability 456, 457 idiosyncrasy of claimant, remoteness and mitigation of damages 460–3 indemnity clauses 453 kind of damage 457–8 limitation of liability issues 748, 752 liquidated delays 264 or acceleration in payment 280–2 or termination of shipbuilding contract 260 and penalty clauses 280, 281 price escalation issues 246 measure of 360–73 breach by seller 367–73 causation and remoteness 361–7 mitigation 368–73 ratio decidendi , case law 366 ‘Reid test’ 361–2 mitigation 368–73 benefit derived by mitigating party 370–3 collisions at sea 459–60 detention damages 470–1 expectation loss 373 reasonable conduct 369 reliance loss 373 unreasonable conduct and break in chain of causation 369–70 novus actus interveniens 427–31 , 459, 461 partial loss of ship and incidental losses 468–74 detention damages 470–4 fixture, loss of use during repairs 468–70 repairs 468–70 , 472 present law, general principle 453–7 recoverable, by harbour 711 restitutio in integrum principle 463–4 , 467 rule of remoteness 451–63 ‘thin skull’ rule 459, 460 total loss of ship actual not speculative charter 467–8 value of ship where no market 466–7 yardstick applicable to ascertain loss sustained 464–6 danger dangerous goods causing combustion or fire 673–4 dangerously unsafe ship/unsafe operation of ships 120, 404–5 effect on a towage contract 495–6 environmental 497 future or contingent 494–5 International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) 50 International Maritime Dangerous Goods (IMDG) Code 49 kinds of 492–3 salvage 492–7 temporary difficulty 493–4 vessel in, salvage services by standing by 509 DAOs (Delegated Ashore Officers) 95 dead weight capacity (DWC) 231 death see life, loss of Deepwater Horizon incident (2010) 10, 681, 685 defects guarantee, provision exclusions from guarantee 255–6 , 257 guarantee period and conditions of cover 254–5 remedy for guarantee defects 255 risk minimisation 256–7 defences CLC (Civil Liability Convention) 1992 842–5 collisions at sea actus novus interveniens 427–31 , 459, 461 ‘agony of the moment’ 432–3 alternative danger 432–3 contributory negligence 426–7 inevitable accident 425–6 necessity 433 time bar 433–4 Criminalisation Directives on ship-source pollution 55 general average entitlement 666 HNS (Hazardous and Noxious Substances) Convention 2010 868–9 PAL 2002 (2002 Protocol to PAL 1974 Convention) 811 delays limitation of liability issues 758 shipbuilding contracts construction stage 252 delivery of vessel 246, 351–3 excusable under NEWBUILDCON 263–4 excusable under SAJ form 263 force majeure events 261–3 price escalation issues 246 remedies 264–5 Delegated Ashore Officers (DAOs) 95 delivery of vessel condition of vessel on 339–48 delays 246, 351–3 encumbrances or debts at time of 337 essential documentation for exchange at 293, 334–5 liabilities incurred prior to 337–8 non-delivery as per contract 351–3 passing of property and risk by contract 254 passing of property and risk by statute 253 post-delivery matters 293, 360 see also under Norwegian Sale Form (NSF) demise charterers 745 Department of Energy and Climate Change (DECC) 685 The Derbyshire disaster (1980) 3, 48 Designated Person Ashore (DPA) 81 carriage of goods, effect of ISM upon liability arising from 107–8 and ECDIS 88 harbour authorities, duties 690 insurance issues and ISM Code 112–13 limitation of liability and role of ISM Code 115–17 detention damages loss and expenses, apportioning 472–3 mitigation issues 470–1 out-of-pocket expenses/other consequential losses 473 pure economic loss 473–4 routine repairs during collision damage repairs 472 discharge port, risks at 22 disparity principle, salvage 482, 548–9 dispute resolution risk management stages 23–4 shipbuilding contracts 285 Special Compensation of Protection and Indemnity Clause (SCOPIC) 560 dock-owners, negligence 699 documentation breach, under Collision Regulations 403–4 delivery of vessel 293, 334–5 Document of Compliance (DOC) 79, 85, 86 ISM Code 84 non-signing of formal document, effect upon validity of contract 314–16 Dolly incident (1999) 835 double-hull tankers, building 222 DPA see Designated Person Ashore (DPA) drilling units 490, 743 dry-docking (inspection by classification society) see under classification societies due diligence external infrastructures 15 under HVR 106–7 mortgagee obligations when in possession 197 and role of DPA 113 stages of risk management 19 duty of care breach, collisions at sea causation in fact 422–4 causation in law 424–5 defences applicable to defendant 425–34 res ipsa loquitur 420–2 standard of care and burden of proof 419–20 Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH Act), criminal liability under 127, 128–9 exclusion of common law rules concerning 129 whether owed to third parties 375–80 ‘relevant’ 127, 128–9 salvage 529–39 negligent misconduct under common law 530–7 reasonableness requirement 529 remedy for negligent misconduct under Convention 529–30 Tojo Maru case 531–7 unresolved issues 537–9 towage contracts, skill and diligence requirements 612–13 duty to exercise during towage 616 Early Warning System for the Baltic Sea 74 ECDIS see Electronic Chart Display and Information System (ECDIS) economic duress price escalation issues 248–51 salvage 512–13 EEZ (exclusive economic zone) 55, 693, 824 Wreck Removal Convention (WRC) 2007 731, 735 Electronic Chart Display and Information System (ECDIS) 4 collisions at sea 387, 404 general safety and environmental measures 50 importance of 11 ISM Code, effect on 87–8 navigational risks, dealing with 22 risk management standards 17 stages of risk management 20 EMCIP (European Marine Casualty Information Platform) 43 emergency preparedness 23, 83 employers claims by master and crew against 762–3 collisions at sea, employment of wrongdoer 412–16 limitation of liability issues 762–3 towage contracts, control and ‘two employers’ conundrum 620–3 vicarious liability of 412–16 EMSA see European Maritime Safety Agency (EMSA) enforcement, regulatory context 68–77 classification societies, role in safety and security of ships 72–3 closer co-operation between flag and port State, need for 71 flag of ship, importance and role 68 flag State and PSC, role 70–1 flags of convenience 69–70 industry standards on safety and quality assessment 73–4 international safety measures, compliance with 70–1 other initiatives 74–7 ISM Code see ISM (International Safety Management) Code ISPS Code, role for security measures 28, 94–6 oil companies, deterrent effect of vetting by Rowan decision 92–4 vetting practice 91–2 Enron scandal, misrepresentation 297 environmental salvage 486, 571–80 background 571–2 whether can be tacked on to present Salvage Convention 575–6 whether can stand alone 576–7 feasibility for proposed reform 577–8 financial considerations 578–9 International Salvage Convention 1989 552–3 International Working Group (IWG) 572 ‘marine environmental protection levy’ 579 out-of-pocket expenses 571 proposal for reform 572–3 reasons for reform 572 Salvors’ Environmental Protection Fund 579 views of commentators 574–9 Equasis information system 76 equity of redemption, ‘clog’ or ‘fetter’ on 189–92 Erika I measures (2000) 29–34 elements 28 inspections and surveys of ships by classification societies conformity requirements of flag States 31 Directive 94/57/EC (1994) 29–30 Directive 2001/105/EC (2001) 30 Directive (Recast) 2009/15/EC (2009) 30–1 phasing out of single-hull tankers 31–3 Port State Control, Directives amending 33–4 Voyage Data Recorders, introduction of 33–4 Erika II measures (2002) Community monitoring, control and information system 34–6 Directive 2002/59/EC 35 Directive 2009/17/EC 35–6 COSS, establishment 38–9 European Maritime Safety Agency 36–8 oil pollution damage compensation fund 39 proposals 28–9 Erika III measures (2009) 39–48 accident investigation (Directive 2009/18/EC) 42–3 civil liability and financial guarantees for damage done by ships (Directive 2009/20/EC) 44 conformity requirements of flag States (Directive 2009/21/EC) 40–1 inspections by classification societies (Directive 2009/15/EC and Regulation (EC) 391/2009) 41–2 liability and compensation to passengers (Regulation (EC) 392/2009) 43–4 PAL 2002 (2002 Protocol to PAL 1974 Convention) 807 Port State Control Directive (Directive 2009/16/EC) 42 proposals 29 traffic monitoring and places of refuge (Directive 2009/17/EC) background 44–5 CMI Conference, draft instrument approved by 46 further EU measures 47–8 IMO Guidelines 46–7 status of places of refuge in the UK 47 Erika measures see Erika I measures (2000); Erika II measures (2002); Erika III measures (2009) The Erika disaster (1999) 3, 4, 27, 45, 54, 829 details 28, 847 measures following sinking see Erika measures estoppel, and exceptions clauses 301–3 European Economic Interest Groupings 142 European Economic Interest States, incorporation in 142 European Marine Casualty Information Platform (EMCIP) 43 European Maritime Safety Agency (EMSA) accident analysis 38 Administrative Board 37–8 Erika II measures (2002) 28–9 extension of remit 38 future developments in maritime safety, role in 37 general tasks 36 governance 37–8 monitoring role 37 pollution prevention role 37 specific tasks 37 European Quality Shipping Information System (Paris MOU) 74 European Union (EU) Commission inspections 96 EU Treaty, British citizens and nationals under 141–2 flagging rules, and tonnage tax 145 IMO, working in harmony with 27 LRIT (Cooperative Data Centre) 36, 47 passenger ships and roll-on/roll-off (ro-ro) vessels, safety and environmental measures 49 regulatory developments see under regulatory regime Three Pillars of competences 56 evidential estoppel, and exceptions clauses 301–3 exceptions clauses curtailment by Misrepresentation Act 1967 (Section 3) 303–5 and estoppel 301–3 exclusion of liability, breach of contract and contractual protection of manager/employees 164 exclusive economic zone (EEZ) see EEZ (exclusive economic zone) ‘extended producer responsibility’ principle 51 fatigue, prevention of 19, 22 MARTHA (fatigue prediction software model) 50 fault collisions at sea proportionate fault rule 434–45 statutory presumption of fault and subsequent abolition 388–9 deviation through unauthorised route 669–71 general average entitlement, effect on CONWARTIME 1993 clause 670 dangerous goods causing combustion or fire 673–4 deviation through unauthorised route 669–71 negligence 667 no liability to contribute 667–74 piracy issues 669–71 remedies or defences 666 rule against recovery (equitable defence) 666 unauthorized deck cargo 668–9 unseaworthiness 671–3 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) fault-based liability under 797–8 presumed fault under 798 shift from fault-based to strict liability 791–2 PAL 2002 (2002 Protocol to PAL 1974 Convention), fault-based liability under 809 proportionate fault rule, collisions at sea 434–45 application 435 causative potency and blameworthiness 436–40 ‘clear preponderance of blame’ 436–7 composite faults approach 438 exceptions to 440–5 unit approach 438, 442, 443 shift from fault-based to strict liability, in passenger claims 791–2 unauthorized deck cargo 668–9 financial issues environmental salvage 578–9 Erika III measures (2009) 44 inspections/surveys of ships 30 towage contracts financial losses 542–3 ‘loss of profit,’ conflicting views 643–5 fines MSA 1995, statutory offences under 403, 404, 406 under CMCH Act 2007 130 fire dangerous goods causing 673–4 drills 19, 21 limitation of liability issues 763–4 fishing vessels 140–1 , 143 fixtures, loss of use during repairs 468–70 flag of ship flags of convenience 69–70 , 145, 180 importance and role 68 flag States ‘blacklisting’ system imposed upon by amended PSC Directive 31 certificates of compliance granted by 84 conformity requirements under Erika measures 31, 40–1 implementation of International Conventions 75 need for closer co-operation with port States 71 role in enforcement 70–1 self-audit system (IMO) 41 floating platforms 490, 743 fluctuation clauses, shipbuilding contracts 246 force majeure events binding contracts 229 causing frequent disputes 262–3 delays 261–3 exclusion of liability 164 general strikes, knock on effect 262 labour strikes 262 SAJ (Shipbuilders’ Association of Japan) contract form 252, 261, 262 shortage of materials or equipment 262–3 foreclosure, mortgagee rights 207 foreign currency, damages in 475–7 foreseeability and break in chain of causation 665–6 collisions at sea 411, 412, 454, 456 damages and rule of remoteness of damage 456, 457 general average 665–6 formal safety assessment (FSA) 6–7 , 11 forum non conveniens principle 781 freezing injunctions, evaluation 354–60 case law 355–7 matters to be inferred from authorities 358 notification of application 358–60 Veracruz I/Siskina barrier 356–7 conditional injunctions 355–6 dissipation risk, test of 354 ex parte applications 356 limits to granting 355–60 freight not part of security 174 right to 196–7 at risk 490 FSA (formal safety assessment) 6–7 , 11 FSS Code (International Code for Fire Safety System) 50 Full City incident (2009) 741 Fund Assembly 1992 831, 835, 838 Working Group 2000 860 Fund Convention 1992 852–6 admissibility of claims and causation 839–40 advisors, use of 839 application 834–42 territory and waters 836 ‘but for’ test 840 claims not covered 840 defences of Fund 854 definition of ‘incident’ 836 definition of ‘vessel’ 835 direct property damage and consequential loss or expenses 837–8 environmental damage claims 838–9 geographical application 836–7 and HNS Convention 2010 866 incident and territory 836–7 judgments 855–6 jurisdiction 855 limited redress for pollution damage caused in 1969 CLC States 853 meeting of claims 853 normal business operations claims 838 oil pollution 830, 831 pollution damage 837 pure economic loss 838 salvors, possible claims by 840–2 sea-going vessels carrying persistent oil in bulk 834–5 subrogation rights 854–5 three-tier compensation system 832 time bar 855 types of pollution damage claim 837–9 GA see general average (GA) gas floats, and salvage 490 GBS (Goal-Based Standards) see Goal-Based Standards (GBS) general average (GA) 653–77 accrual of cause of action 674–5 authority to act in 659–60 basis of obligation 654–5 causation 665–6 common maritime adventure 655, 662–3 conditions giving rise to 660–5 common maritime adventure 662–3 danger or peril 660–1 intentionality 664 preservation of property imperilled 665 reasonableness requirement 664 threat 662 voluntary 664 danger or peril 660–1 definitions 653–4 ‘Digest of Justinian,’ adopted in 653, 675 direct consequence 665 elements 654 examples 655–6 expenditure or sacrifice 654, 655 extraordinary 663–4 fault, effect on GA entitlement CONWARTIME 1993 clause 670 dangerous goods causing combustion or fire 673–4 deviation through unauthorised route 669–71 negligence 667 no liability to contribute 667–74 piracy issues 669–71 remedies or defences 666 rule against recovery (equitable defence) 666 unauthorized deck cargo 668–9 unseaworthiness 671–3 foreseeability and break in chain of causation 665–6 foreseeable damage, loss for 656 limitation of liability issues 756, 762 lis pendens rule, Brussels I Regulation 676 losses, payment for 655 particular average, distinguished from 654 particular average loss 662 property subject to 655 security 675–7 forms 675–6 non-separation agreement 676–7 possessory lien, right to 675 time limits 677 Special Compensation of Protection and Indemnity Clause (SCOPIC) 560 threat 662 UKST towage contracts 666 York-Antwerp Rules (YAR) 653 of 1890 656 of 1924 656, 657, 661 of 1950 656 of 1974 656, 657, 658, 659 of 1994 656 of 2004 656–7 , 659 construction 657–9 expenses at port of refuge (Rule XI) 656, 661, 663 origin and application 656–7 provision of funds (Rule XX) 656, 661 Rule A 661, 664 Rule C 665 Rule D 666 Rule E 665 salvage remuneration (Rule VI) 656 temporary repairs (Rule XIV) 656, 659 voluntary nature of 657 Global Integrated Shipping Information System (IMO) 43 Goal-Based Standards (GBS) 73, 76 shipbuilding contracts 221, 222 good faith concept purchase of ships 293–4 ‘using best endeavours’ to negotiate in good faith 294–6 withdrawal, effect of 294 towage contracts whether duty of good faith 592–3 whether existing in 593–4 government wrongful act defence, pollution 844–5 Greek Shipping Cooperation Committee 59 Green Flag Award 74 gross negligence/gross negligence manslaughter attribution of liability to a company 124–6 offence of 123 test against individuals 124 towage contracts 649 Gulf of Mexico Deepwater Horizon incident (2010) 10, 685 Hague-Visby Rules (HVR), due diligence under 106–7 harbour authorities accountability 690, 715–16 claims 180 duties accountability for marine safety 690 under common law 688 under general and local legislation 687–8 revised guidance for risk assessment 689–90 in risk management area 687–90 specific obligations to implement risk assessment 688 statutory 690–703 environmental protection 684–6 ISM Code 680 limitation of liability 750 open port duty 690 pilotage compulsory 715 compulsory pilotage area, duties of masters and pilots 718–19 IMO recommendations 713–14 liability of harbour authorities with respect to 722–3 services 700–2 , 714–16 see also pilots pilots accountability for safety and risk management 715–16 authorisation 716–18 authority of 719–21 charges by competent harbour authority 730 civil liability 417–18 communication with 23 Directive 1999/42/EC 701–2 , 714 duties in a compulsory pilotage area 718–19 duties of competent authority in relation to 714–18 function 712 IMO recommendations 713–14 International Best Practice for Maritime Pilots 714 International Maritime Pilots Association 714 liability 721–2 negligence, liability of ship-owners for 723–30 offence not to have 718–19 PA 1987 713, 714–15 recognition of qualifications 715 relationship with master 719–21 risk assessment 713 and risks 712–30 rules of engagement 718 services, obligation to provide 714–16 statutes 713–14 training, certification and operational procedures 714 voluntary services, when exceptional 499–501 powers 680, 687 risk management by 679–736 duties in risk management area 687–90 statutory duties and liabilities under common law 696–8 criminal liability 702–3 duty to operate port 690–2 limitation of liability 702 maintenance of port in good condition 695–6 under Occupiers’ Liability Acts 698–9 pilotage services 700–2 port safety, contractual duty in relation to 699–700 to provide navigational safety/safety procedures 692 wrecks 692–5 types 683–4 Wreck Removal Convention (WRC) 2007 application 731–2 coming into force 736 compulsory insurance 734–5 definitions 731–2 , 733 liability of registered owner 734 objectives 732 obligations under 733 and places of refuge 735–6 proportionality and reasonableness 732–3 and salvors 735 see also harbours harbour master, potential offences by 567–8 harbours definitions ‘harbour’ 682 ‘harbour operations’ 683 ‘offshore installation’ 685 ‘release’ concept 685 dues 711–12 laws and regulations affecting 680–712 liability of ship-owners for damage caused to 703–11 contributory negligence defence, whether sustainable 709–10 options for owner 710–11 recoverable damages by harbour 711 River Wear Commission v Adamson 703–9 statutory cause of action against registered owner 703–9 powers 680–2 recoverable damages by 711 River Wear Commission v Adamson case 703–9 CA decision 704–5 House of Lords decision 705–6 problems created by decision 707–9 see also harbour authorities harm, possibility of 5 foreseeability 411 hazards definition of ‘hazard’ 5, 733 hazardous and noxious substances (HNS), liability for 651 hazardous occurrences, ISM Code 83 HNS Fund 866 liability 870–1 see also HNS (Hazardous and Noxious Substances) Convention 2010 The Herald of Free Enterprise disaster (1987) 3, 18, 77 attribution of liability 123, 124, 125 facts of case 125 high-risk area (HRA) 7 Himalaya clauses limitation of liability issues 748 ship management 165–6 towage contracts 635–7 , 649, 650 HM Coastguard 491, 506 HNS (Hazardous and Noxious Substances) Convention 2010 821, 866–71 concept of ‘damage’ 866 damage covered 867–88 exclusions 871 and Fund Convention 1992 866 geographical application 868 IMDG Code (International Maritime Dangerous Goods) Code 867 jurisdiction 870, 871 limitation 869–70 modelled on CLC Fund regime 866 registered ship-owner’s liability 868 ships covered 866 strict liability and defences 868–9 substances covered 867 time bar 871 two or more ships 869 Horizon Project, on crew fatigue 50 hovercraft LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 743 salvage 491 hull and machinery (H&M) insurance cover 109, 187 hypothecation, and ship mortgage 177–8 IACS (International Association of Classification Societies) see International Association of Classification Societies (IACS) IBC Code (International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk) 50 identification doctrine 100–3 corporate criminal liability 126 limitation of liability 115 or alter ego of company/corporation 97 and role of DPA 112 IMDG Code (International Maritime Dangerous Goods) Code 49, 867 imprisonment, statutory offences under MSA 1995 403, 404, 406 IMSBC Code (International Maritime Solid Bulk Cargoes Code) 48 incorporation of company, risk management 17 indemnity clauses damages 453 and ‘Himalaya’ clauses 165–6 limitation of liability issues 752, 755, 757–8 limitations 629–34 management of ships 165–6 ship management 165–6 towage contracts 627–34 independent contractors, limitation of liability 747–8 industry support organisations 27 inevitable accident defence, collisions at sea 425–6 infrastructures of shipping companies 11–16 compliance with International Conventions 14 external 14–16 internal 12 market forces 15–16 regulatory and fiscal 14 relational 12–14 third parties’ factors 14–15 injury prevention 22 inspections/surveys of ships by classification societies 29–31 conformity requirements of flag States 31 Directive 94/57/EC (1994) 29–30 Directive 2001/105/EC (2001) 30 Directive (Recast) 2009/15/EC (2009) 30–1 , 41–2 financial responsibility provision 30 monitoring of conformity with international standards 30–1 Recognised Organisations 30, 40 Regulation (EC) 391/2009 41–2 sales and purchases 328–9 European Commission 96 expanded inspection 33 by Port State Control 33 purchase and sale of ships inspection stage 327 pre-inspection stage 322–6 Institute Cargo Clauses A, B and C (1982) 655 Institute Clauses for Builder’s Risk terms 257 Institute Clauses for H&M 478 Institute Time Clauses Hull 113 Institute Time Clauses Hull (1983, 1995) 655 instructions, clarity requirement 21 insurance issues adjustment of claims 479 collisions at sea 478–9 compulsory insurance see compulsory insurance constructive total loss 110 ‘cross’ liability 479 effect of ISM Code upon duty to disclose material facts 109 privity of assured 109–11 provisions of insurance contract 113 role of DPA 112–13 role of ISM Code 111 role of third-party ship manager 112 general average losses 655 as indemnity contracts 479 and limitation of liability 740, 789 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 740 management of ships manager as a co-assured with owner 167 protection of manager and employees 166–7 mortgage of ships additional perils policies 219 mortgagor obligations 186–7 risk management and insurance issues of mortgagee 218–19 operating without 10 ‘pay to be paid’ rule 479 provisions 113 running-down clause 478, 479 shipbuilding contracts 257–8 sustainability of viable insurance system 740 third-party liability insurance 845–6 towage 651 uberrima fides contracts 296 ‘umbrella of a member’s entry,’ co-assurance 167 war-or terrorism-risks insurance 816–17 see also hull and machinery (H&M) insurance cover; liability insurer; protection and indemnity (P&I) cover Intercargo 59, 73 Inter-Governmental Consultative Organization (IMCO) 881 Interim DOC (IDOC) 85, 86 Interim SMC 86 International Association of Classification Societies (IACS) 72, 75 Common Structural Rules 73, 76, 222 International Atomic Energy Agency (IAEA), Vienna Convention on Civil Liability for Nuclear Damage 1963 872, 873–4 International Best Practice for Maritime Pilots 714 International Civil Aviation Organisation 31 International Code for Fire Safety System (FSS Code) 50 International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) 50 International Conference for Limitation of Liability, London (1976) 742 International Convention for the Prevention of Pollution from Ships (MARPOL) see MARPOL (International Convention for the Prevention of Pollution from Ships) 1973 International Convention for the Safety of Life at Sea (SOLAS) see SOLAS (International Convention for the Safety of Life at Sea) 1974 International Conventions accession 878 adopting 875–6 amendment 878–9 enforcement 879–81 entry into force 876–7 IMO Conventions 880–1 and interpretation 880 ratification, acceptance and approval 877–8 signature 877 tacit acceptance procedure 881–5 treatment of ship-source pollution by conflict with Directive 2005/35/EC 58–9 MARPOL relevant provisions 58 UNCLOs relevant provisions 57–8 uniform law and conflict of law rules 880 see also specific Conventions International Goal-Based Construction Standards for Bulk Carriers and Oil Tankers 222 International Group of P&I (IGP&I) Clubs 73, 556, 557, 861 International Hull Clauses (2003) 655 International Maritime Dangerous Goods (IMDG) Code 49 International Maritime Organization (IMO) 5 Assembly 77, 78, 221 Council, 89th session 221 EU, working in harmony with 27 Facilitation Committee 875 formal safety assessment (FSA) developed by 6, 11 49th Plenary Session (2003) 32 Global Integrated Shipping Information System 43 Guidelines (on traffic monitoring and places of refuge) 46–7 , 568–9 IMO Resolution LEG 5(99) 741, 788–9 information provision to 96 Legal Committee 46, 793, 811, 815, 816, 818, 883, 884 and London Convention 1972 826 Marine Environment Protection Committee (MEPC) 32, 875 Maritime Environment Committee (MEP) 52 passenger ships and roll-on/roll-off (ro-ro) vessels, safety and environmental measures 49–50 pilotage recommendations 713–14 regulatory developments see under regulatory regime Reservation and Guidelines 2006 792, 820 background 815–16 Blue Cards 817 non-war risks insurance 817 war-or terrorism-risks insurance 816–17 self-audit system for flag States 41 tacit acceptance procedure 65–6 International Maritime Pilots Association 714 International Maritime Solid Bulk Cargoes Code (IMSBC Code) 48 International Oil Pollution Compensation Funds (IOPC Funds) 831 compared to HNS Fund 866 Fund Assembly 1992 831, 835, 838, 860 Manuals of Incident Reporting 822, 838, 839, 841 pollution damage claims under MSA 851 International Organisation for Standardisation (ISO), piracy risk assessment and planning guidelines 20–1 International Safety Management (ISM) Code amendments 78 carriage of goods contract, effect on liability arising from 107–8 collisions at sea 387, 405, 407 consequences of breach of provisions 88–90 criminal sanctions and UK statutory instrument 88–90 no criminal sanctions for non-compliance 88 co-ownership 138 criminal liability and role of ISM Code Merchant Shipping (ISMC) Regulations, criminal liability under 122–3 Merchant Shipping Acts, statutory offences under 119–22 prior to CMCH Act 2007 123–6 under CMCH Act 2007 126–30 CSWPMS, effect on 87 deterrent effect 90–1 duties of company under and effect of 2010 amendments 160–1 ECDIS, effect on 87–8 and flags of convenience 69–70 harbour authorities 680 insurance issues, effect upon contract provisions 113 duty to disclose material facts 109 mortgage of ships 219 privity of assured 109–11 role of DPA 112–13 role of ISM Code 111 role of third-party ship manager 112 legal implications upon liabilities 104–31 criminal liability and role of ISM Code 119–30 effect of liability arising from contract of carriage of goods 106–8 insurance issues, effect of ISM upon 109–13 limitation of liability and role of ISM Code 113–19 limitation of liability and role of ISM Code faults 117–18 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1957 104, 113–14 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 114–15 risk management issues 117–19 role of DPA 115–17 management agreements 147 mortgage of ships 187 non-compliance 19 objectives 80 origin 77–8 Part A company responsibilities and authority 81 company verification, review and evaluation 84 core provisions 79–82 Designated Person Ashore (DPA) 81 documentation 84 emergency preparedness 83 functional requirements for a safety management system 80 general definitions 79 master’s responsibility and authority 81–2 non-conformities, accidents and hazardous occurrences 83 objectives 80 resources and personnel 82 safety and environmental protection policy 80–1 shipboard operations 82–3 Part B 84–7 certificates required 84–5 certification and verification 85–6 interim certification 86–7 philosophy 78–9 , 131 risk assessment and management under 4, 6 safety, role in 78 safety management system (SMS) 8, 9 ship manager, general obligations under 159 and SOLAS 824 stages of risk management 19, 20 teamwork requirement 8–9 and third-party ship manager, role 112 UK statutory instrument implementing (Merchant Shipping (ISMC) Regulations 1998) 88–90 application 89 defence 90 detentions 89 duties 89 offences and penalties 89–90 see also International Safety Management (ISM); safety and environmental measures International Salvage Convention 1989 application 487–92 Article 13 award 558 Article 14 environmental salvage 552–3 problems arising out of drafting of 553–6 substitution of 557 whether environmental damage can be tacked on to 575–6 fair rate 555–6 general application 487–8 increment 556 master’s authority under 523–4 pollution 828 recognised subject of salvage 488–92 ‘relevant waters’ 488 remedy for negligent misconduct under 529–30 role 511–12 security for special compensation 556 substantial physical damage 555 territorial limits 554 threatened damage 555 towage versus salvage 584 see also salvage International Salvage Union (ISU) see ISU (International Salvage Union) International Sewage Pollution Prevention (ISPP) Certificate 334, 335, 336 International Ship and Port Facilities Security (ISPFS) Code 28 application 94–5 EU Commission inspections 96 extent of control on entry into ports 95 IMO, information provided to 96 master, role of 95 piracy risk assessment and planning guidelines 20 port facility requirements 96 regulatory enforcement 94–6 requirements 95 role for security measures 94–6 ship management 147 ship security alert system 96 International Standards Organisation (ISO) 73–4 International Tonnage Certificate 145 International Transport Intermediaries Club (ITIC) 167 International Transport Workers’ Federation, industrial action by 68 Intertanko 59, 73 IOPC Funds see International Oil Pollution Compensation Funds (IOPC Funds) ISM Code see International Safety Management (ISM) Code ISO see International Organisation for Standardisation (ISO) ISO (International Standards Organisation) 73–4 ISPFS Code see International Ship and Port Facilities Security (ISPFS) Code ISPP (International Sewage Pollution Prevention Certificate) 334, 335, 336 ISPS Code see International Ship and Port Facilities Security (ISPFS) Code ISU (International Salvage Union) 59, 556, 557 environmental salvage proposal 579–80 ITIC (International Transport Intermediaries Club) 167 Joint Long-term Programme (JLTP), London Convention and Protocol (LC/LP) 826–7 joint tenants 136 JS Amazing incident (Nigeria 2009) 845 jurisdiction channelling provisions, pollution 850–2 Fund Convention 1992 855 HNS (Hazardous and Noxious Substances) Convention 2010 870, 871 passenger claims Athens Convention 2002 (2002 Protocol to PAL 1974 Convention) 813–14 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 803 salvage 564–5 Supplementary Fund Protocol 2003 859–60 UNCLOS provisions 823–4 key performance indicators (KPIs) 25 ‘knock-for-knock’ clauses, towage contracts 582, 652 unseaworthiness of tug 645–7 knowledge ‘blind eye’ 110–11 , 779, 780 of circumstances 209 collective knowledge doctrine 125 limitation of liability 776–80 lawful act duress, shipbuilding contracts 249 LC/LP (London Convention and Protocol) 826, 827 legal risk management 8 lex fori , conflict of laws 182–3 , 185 liability attribution of see attribution of liability civil see civil liability criminal see criminal liability limitation of see limitation of liability issues liability insurer direct action against 750 trigger of liability, statutory 749 when right of action against 749 liability salvage 484–5 , 546 liens common law possessory 178 discharge of 188 foreign, priority issues 181–5 general average 675 obligation to discharge 188 possessory, right to 675 life, loss of claims 445–6 fault-based liability caused by non-shipping incident 809 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 800–1 PAL 2002 (2002 Protocol to PAL 1974 Convention) 812 passenger claims 751 prevention 22 see also life-saving safety measures proportionate fault rule, exception to 441 strict liability 808 lifeboat crews of RNLI, salvage by 506–7 life salvage 491–2 , 546 Life-Saving Appliances (LSA) Code 407 life-saving safety measures breach of statutory duty with regard to 407 Merchant Shipping Act offences 120 see also Colregs (International Regulations for Preventing Collisions at Sea), 1972; life, loss of lighthouses, buoys or beacons, statutory offences in relation to 407–8 lights and shapes, Collision Regulations 400–1 likelihood of incident happening 5 Limitation Fund Admiralty Court procedure relating to limitation 786–7 bar to other actions 783–4 , 849–50 constitution 782–3 under CLC 849–50 counterclaims 785–6 distribution 785 establishment 781–7 lis pendens 781 MSAs, bar under to other proceedings against other liable person 850 procedural matters 781–5 limitation of liability 739–89 act or omission 766, 768–9 Admiralty Court procedure relating to 786–7 breach of contract and contractual protection of manager/employees 165 Bunkers Convention (Bunker Oil Pollution Damage Convention) 2001 864 charterers 745–6 , 753–7 claims excepted from limitation 761–3 general average claims, contribution in 762 by master and crew against employers 762–3 nuclear damage 762 oil pollution 762 salvage 762 claims subject to limitation 750–61 all claims, whether for damages, debt or indemnity 752 clean-up expenses 760–1 delay, loss resulting from 758 infringed rights 758 litigation costs claims 751–2 loss of life and personal injury of passengers 751 measures taken to avert/minimise loss 761 occurring on board/in direct connection with operation of ship or with salvage operations 752–8 owners and charterers 753–7 wreck removal 758–61 comparison between Convention provisions 764–7 act or omission 766 causation 767 persons liable 766 whether specific loss or damage 767 type of loss 766 compulsory insurance, EU Directive (2009/20/EC) 789 conduct barring limitation/exclusion of liability act or omission 766, 768–9 ‘actual fault or privity’ test under 1957 Convention 769–72 burden of proof 767 carriers 766 causation 767 comparison between Convention provisions 764–74 fault of ship managers under both Conventions 772–4 mental element 774–81 personal act or omission/omission of others 768–9 persons liable 766 whether specific loss or damage 767 test barring limitation 767–74 type of loss 766 damages 748, 752 exclusion of total liability 763–4 fire on board old law 763 present law 763–4 general average claims 756, 762 harbour authorities 702, 750 HNS (Hazardous and Noxious Substances) Convention 2010 869–70 identification doctrine 115 IMO Resolution LEG 5(99) 741, 788–9 indemnity claims 752, 757–8 and insurance 740, 789 International Conference for Limitation of Liability, London (1976) 742 ISM Code, role faults 117–18 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1957 104, 113–14 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 114–15 risk management issues 117–19 role of DPA 115–17 justification of 739–40 liability insurer 749–50 Limitation Fund Admiralty Court procedure relating to limitation 786–7 bar to other actions 783–4 constitution 782–3 counterclaims 785–6 distribution 785 Limitation Fund, establishment 781–7 procedural matters 781–5 litigation costs claims, exclusion 751–2 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1957 104, 113–14 ‘actual fault or privity’ test 769–72 and background to 1976 Convention 741–2 fault of ship managers 772–4 wreck removal 758–9 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 114–15 , 740 application/limitations 742–4 background 741–2 fault of ship managers 772–4 as ‘global limitation’ regime 741 scope 741–4 wreck removal 759–60 management of ships 165, 746, 772–4 measures taken to avert/minimise loss 761 mental element ‘intent to cause such loss’ 774–5 loss probably resulting 780–1 ‘recklessness’ 775–6 ‘recklessness and with knowledge’ 776–80 modern trends 740–1 offshore supplytime charters 650 owners and charterers, claims as between cargo damage, by way of indemnity 755 categories 753 consequential loss to loss of ship being liable 756–7 excluded claims 756–7 general average claims 756 included claims 753–6 indemnity claims 757–8 loss of or damage to ship 756 recourse claims 755–6 , 757–8 salvage claims 756 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 799–801 death or personal injury 800–1 losing right to limit 801 luggage, limitation for loss or damage 801 prohibition of contracting out 800 persons entitled to limit charterers 745–6 exclusion of persons with interest in or in possession 745 independent contractors 747–8 managers 746 servants or agents 746–7 ship-owners 744–6 rationale for 740 recourse claims 755–6 , 757–8 risk management issues 117–19 role of DPA 115–17 role of ISM Code 113–19 salvage 752–8 , 756, 762 salvors 748–9 ship-ownership claims as between owners and charterers 753–7 meaning of ‘owner’ under LLMC 1976 744–6 meaning of ‘owner’ under old regime 744 theft of valuables, present law 763–4 three-tier compensation system 833 towage contracts 638–40 , 650 travaux préparatoires 746, 747, 769 liquidated damages delays 264 or acceleration in payment 280–2 or termination of shipbuilding contract 260 and penalty clauses 280, 281 price escalation issues 246 lis pendens rule, Brussels I Regulation 676, 781 litigation costs claims, limitation of liability 751–2 litigation risks 23 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1957 104, 113–14 ‘actual fault or privity’ test 769–72 and background to 1976 Convention 741–2 fault of ship managers 772–4 wreck removal 758–9 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 740 application 742–4 background 741–2 fault of ship managers 772–4 as ‘global limitation’ regime 741 ISM Code 114–15 limitations 742–4 floating and drilling platforms excluded 743 hovercraft excluded 743 minimum tonnage 743–4 passenger claims 744 seagoing ships only 743 and PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 804–5 Protocol of 1996 general provisions 787 limits under 787–8 and PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 805–6 scope 741–4 wreck removal 759–60 Lloyd’s Open Form (LOF) 1980 481, 484, 511, 553 ‘safety net’ concept 497 Lloyd’s Open Form (LOF) 1990 522, 523, 546, 551 Lloyd’s Open Form (LOF) 1995 523, 546 Lloyd’s Open Form (LOF) 2000 511, 523, 546, 561 Lloyd’s Open Form (LOF) 2011 482, 523, 546, 562 Lloyd’s Register 59 Lloyd’s Standard Salvage and Arbitration Clauses (LSSA), changes to 562–4 costs 563–4 security for arbitrators’ fees 563 security for containerised cargo 563 logbook of ship, Merchant Shipping Act offences 119 London Shipping Law Centre 75, 77 Seventh and Eighth Cadwallader Lectures (2004 and 2005) 59 London Trinity House 388 long-range identification and tracking of ships (LRIT), system, EU 36, 47 lookout, steering and sailing rules (Collision Regulations) 392 losses actual not speculative charter 467–8 apportioning 472–3 cargo claimed against non-carrying ship 478 causing by unlawful means 216–17 colliding ships 478 consequential 473, 837–8 constructive total loss (CTL) 110 currency of 373–4 delays 758 expectation 373 fixture, loss of use during repairs 468–70 of life 22, 441, 445–6 limitation or exclusion of liability, conduct barring 766, 767 mental element ‘intent to cause such loss’ 774–5 loss probably resulting 780–1 partial loss of ship and incidental losses 468–74 detention damages 470–4 fixture, loss of use during repairs 468–70 repairs 468–70 , 472 particular average 662 payment for, general average 655 physical damage to insured ship 478 pure economic loss 412, 473–4 , 838 reliance 373 yardstick applicable to ascertain loss sustained 464–6 see also damages LRIT (Cooperative Data Centre), EU 36, 47 LSSA see Lloyd’s Standard Salvage and Arbitration Clauses (LSSA), changes to luggage defined 796 PAL 1974 limits for loss of or damage to 801 PAL 2002 Protocol on loss or damage 809, 812 Lyme Bay canoeing tragedy (1993) 123 MAIB (Marine Accident Investigation Branch) 91, 117 maintenance of ship, mortgagor obligations 187 management of ships agreements 146–8 authority of ship managers actual or implied 148–9 crew, engagement of 151 exceptional repairs 152 extent of authority to bind owners 150 issuing proceedings in name of principal 150 owner as an undisclosed principal 149–50 technical matters 151–2 best endeavours obligations of ship manager 152, 153–4 , 155 and reasonable care 155–6 risk management in drafting of best endeavour clauses 154–5 breach of contract and contractual protection of manager/employees exclusion of liability 164 indemnity and Himalaya clauses 165–6 liability and limitation 165 broad terms 147 confidentiality clauses in agreements 152 CREWMAN A and B 2009 (ship management agreement) 135, 146, 147, 165 criminal liability 161–4 mens rea offences 162–4 non-strict liability offences 162 discretion of managers 150 duties of ship manager ‘account of profits’ 158 fiduciary duty 156–8 ‘no conflict’ rule 158 reasonable care and best endeavours 155–6 statutory 159–64 and statutory duties 161 exclusion of liability 164 fiduciary duty of ship manager breach of 156–8 general principles 156 indemnity and Himalaya clauses 165–6 insurance and risk management 166–7 limitation of liability 165, 746, 772–4 obligations of ship manager 152–5 best endeavours 152, 153–4 risk management in drafting of best endeavour clauses 154–5 overview 145 reasonable endeavours 153, 154 shipbrokers and agents 145 SHIPMAN 2009 (form) see SHIPMAN 2009 (management agreement form) statutory duties criminal liability 161–4 duties of company under ISM Code and effect of 2010 amendments 160–1 effect upon manager’s duties 161 ISM Code, general obligations under 159 major non-conformity 159 third-party managers 146 see also ship-ownership manslaughter collisions at sea, involuntary manslaughter for breach of duty 408–10 Corporate Manslaughter and Corporate Homicide Act 2007 (CMCH Act), criminal liability under applicable organisations 128 corporate killing offence 126–7 deaths in custody 127 duty of care 127, 128–9 elements of offence 127–8 fines 130 gross negligence killing 127 Law Commission proposal 126–7 penalties 129–30 prosecutions 130 question of law and of fact 129 reasons for offences under 127 reckless killing 127 gross negligence see gross negligence manslaughter Mareva relief, freezing injunctions 356 see also freezing injunctions, evaluation Marine Accident Investigation Branch (MAIB) 91, 117 Marine Environment Protection Committee (MEPC) 32, 875 Maritime and Coastguard Agency (MCA) 47 maritime assistance services 569 Maritime Environment Committee (MEP) 52 Maritime Guidance Note, UK 22 Maritime Labour Convention (MLC) 2006, general safety and environmental measures 53–4 Maritime Safety Committee (MSC) 21, 221, 875, 880 Maritime Subsidy Board, US Department of Maritime Administration 222 MARPOL (International Convention for the Prevention of Pollution from Ships) 1973 824 amendment 885 and Criminalisation Directives 58 MARTHA (fatigue prediction software model) 50 Maritime Assistance Services (MAS) 46–7 MAS (Maritime Assistance Services) 46–7 master of ship agreement of salvage, authority to enter into actual authority 516 basis to bind cargo interests to a salvage contract 517–23 basis to bind principal to a salvage contract 517 at common law 516–23 implied by operation of law 516 authority to bind cargo-owners 589 to enter into salvage agreement 516–23 towage contracts 587–9 civil liability 417–18 compulsory pilotage area, duties in 718–19 defence under Criminalisation Directives 55–6 dismissal of salvor under contract 541–3 limitation of liability issues 762–3 and pilots common law, respective duties under 721 exchange of information 719–20 person in command 719 relationship of pilot with master 719–21 reporting duties 720 respective roles of master and pilot 719 responsibility and authority 81–2 role under ISPFS Code 95 salvage issues authority to enter into salvage agreement see above authority under Salvage Convention 523–4 dismissal of salvor under contract 541–3 Memoranda of Understanding (MOUs) compliance with international safety measures 69–70 Latin America (1992) 69–70 Paris MOU see Paris Memorandum of Understanding (MOU) Tokyo (1993) 42, 69–70 Memorandum of Agreement (MOA) binding contracts, shipbuilding 229, 230 sale and purchase risks (second-hand ships) 292, 315–16 , 325 mens rea offences criminal liability 125, 162–4 limitation of liability 774 MEP (Maritime Environment Committee) 52 MEPC (Marine Environment Protection Committee) 32, 875 Mercantile Fund 491 Merchant Shipping Act (MSA) 1988 effect of reform upon British ship-ownership 143–4 fishing vessels, irregularity on 140–1 fundamental changes brought by 139 owning British ship under 140 Merchant Shipping Act (MSA) 1995 collisions at sea civil liability 412 criminal liability 401 definition of vessel and ship 391 limitation periods for commencement of claims 477 loss of life and personal injury claims 445 proportionate fault rule 435, 440 ships subject to 390 statutory offences under 402–8 statutory presumption of fault and subsequent abolition 388 time bar defence 433, 434 ‘used in navigation’ 391 court jurisdiction 850 eligibility to own a British ship under British connection and majority interest 142 EU Treaty, British citizens and nationals under 141–2 harbour authorities 692, 693, 702, 750 Limitation Fund, bar to other actions 850 limitation of liability 742, 743, 750 exclusion of total liability 763–4 oil spills, criminal liability 872 pollution control 825, 826 salvage application of 1989 Convention 487, 489, 490 recognised subject 489 wrecks 490 Merchant Shipping Acts statutory offences under 119–22 breach of documentation and reporting duties 403–4 collisions at sea 122, 402–8 conduct endangering ships, structures or individuals 405–7 dangerously unsafe ship 120, 404–5 directions following shipping casualties, breach of duty to give 408 disobeying Collision Regulations 402–3 failure to give assistance to vessels after collision or to vessels/persons in distress 403 life-saving safety measures 120, 407 lighthouses, buoys or beacons 407–8 logbook of ship 119 notices 119–20 rules of special ships 120 safe manning regulations 120 unsafe operation of ships 121–2 , 404–5 see also Merchant Shipping Act (MSA) 1988; Merchant Shipping Act (MSA) 1995 Meridian rule of attribution 98, 103–4 , 112 misrepresentation Enron scandal 297 Misrepresentation Act 1967 exceptions clauses, curtailment (Section 3) 303–5 remedies under 305–7 representations inducing a contract amounting to 297–300 salvage 513–14 and silence 297–8 statements made during negotiations 296, 297 see also sale and purchase risks (second-hand ships) mitigation (damages) 368–73 benefit derived by mitigating party 370–3 expectation loss 373 reasonable conduct 369 reliance loss 373 unreasonable conduct and break in chain of causation 369–70 mortgagee’s interest insurance (MII) 219 mortgage of ships appurtenances 173 cargo on board not part of security 174 charge compared 177–8 charterparties, covenant as to 188 chattel security 178 common law possessory lien compared 178 comparison of ship mortgage with other types of security 177–8 conflict of laws Convention on Maritime Liens and Mortgages (1993), ratification issues 183, 185 law governing mortgage and law of agreement to grant a mortgage 180–1 priorities between foreign liens and mortgages 181–5 whether proposals for a uniform approach 185 freight not part of security 174 further advances 179 harbour authority’s claims, effect upon mortgagee’s priority 180 inherent risks 169 interference with third-party contracts by mortgagee 207–18 Collins v Lamport decision 210–11 De Mattos v Gibson decision 208–9 equitable remedy 209 impairment factor 210–11 issues 207–8 knowledge of circumstances 209 OBG v Allan decision 211–18 statutory basis 210 loan agreement 169 mortgagee rights 192–207 foreclosure 207 information provision 187 and minor default 192 receiver appointments 206–7 sale, power of 198–206 to take possession 193–7 mortgagor obligations bound by contractual covenants 186–8 charterparties, covenant as to 188 collateral security, assignment of earnings as 188 discharge of claims or liens 188 insurance 186–7 legal trading 188 maintenance of ship in good condition and repair 187 notification of mortgagee 187 not to sell or grant a charge on the ship 188 statutory 188 mortgagor rights Foresight Driller II example 191 ownership right of mortgaged ship 189 redemption right (no clog on equity of redemption) 189–92 nature of 170–4 OBG v Allan decision details of case 216 impact upon mortgagees and previous authorities 217–18 modern strand of authorities prior to 211–15 reformulation of economic torts 215–18 pledge compared 178 possession, right of mortgagee to take default, matters amounting to 193 mode of exercise of powers 195–6 rights and obligations in possession 196–7 security, impairment of 194–5 preferred ship mortgage (Greek legislation) 177 priorities between foreign liens and mortgages 181–5 further advances 179 harbour authority’s claims, effect 180 Hopkinson v Rolt rule 179 between mortgages 178 ‘project finance’ transaction, newly constructed ships 169–70 property subject to mortgage 173–4 property transfer theory, origin and deconstruction 170–2 purpose of registered mortgage 173 redemption right (no clog on equity of redemption) 189–92 registration scheme, statutory 174–6 rights in rem /rights in personam 181, 185, 195 risk management and insurance issues of mortgagee 218–19 sale, power of effect of sale by mortgagee 205–6 nature of duty of mortgagee in exercise of 199–205 role of mortgagee/extent of power 198–9 source of power 198 security, impairment of 194–5 statutory, prevailing theory 172–3 unregistered ships and status of unregistered mortgage 176 validity from 178 MSC (Maritime Safety Committee) 21, 221, 875, 880 narrow channels, steering and sailing rules (Collision Regulations) 395–6 National Contingency Plan for Marine Pollution from Shipping and Offshore Installations 825 natural phenomenon defence, pollution 843–4 navigational risks 22 necessity defence, collisions at sea 433 negligence collisions at sea 389, 411–12 , 426–7 three-stage negligence test 411–12 two negligent acts, clear line between 440–1 contributory negligence see contributory negligence dock-owners 699 general average entitlement 667 gross negligence/gross negligence manslaughter 63, 123, 124–6 , 649 independent contractors 747 passenger claims/PAL 1974 Convention 802 pilots 723–30 principles 411, 413 salvage negligent misconduct under common law 530–7 remedy for negligence conduct under Convention 529–30 Tojo Maru case see below ‘serious’ negligence, elusive concept under Criminalisation Directive (Directive 2009/123/EC) 60–4 servants or agents of carrier 802 stevedores 747 Tojo Maru case (salvage) arbitrator’s decision 531 CA decision 532–3 damages by way of counterclaim 537 House of Lords decision 534 judge at first instance 532 method of assessment of award 537 method of assessment of damages 537 ‘more good than harm’ principle 534, 535 ordinary principles of negligence at common law applied 536 summary of principles 535 volunteers on land and professional salvors 534–5 nemo dat quod non habet doctrine, joint tenants 136 NEWBUILDCON (standard new building contract) 17–18 establishment by BIMCO (2008) 222 excusable delays under 263–4 form 2012 18 objectives 222 sections and clauses Clause 14 (builder’s refund guarantee) 245, 273, 276, 278 Clause 19 (completion stage) 252 Clause 20 (approvals) 252 Clause 21 (supplies) 252, 257 Clause 24 (modifications of specification) 252, 264 Clause 26 (modifications of specification) 252 Clause 27 (sea trials) 253, 260 Clause 31 (passing of property) 254 Clause 34 (delays) 252, 260, 263, 264 Clause 35 (builder’s obligations) 254, 255, 257 Clause 37 (guarantee obligations) 256, 257 Clause 38 (insurance obligations) 257 Clause 39 (termination events) 245, 258, 259, 261, 264, 275, 276, 277 Clause 42 (dispute resolution) 285 Clause 45 (assignment) 284 outline 222, 241 Section 1 (description of vessel) 244 Section 2 (price and method of payment) 244, 245 Section 3 (specification) 252 Nissos Amorgas incident (Venezuela 1997) 844–5 ‘no cure, no pay’ principle, salvage 481, 482, 484, 485, 511, 552, 553, 557, 605 non-conformity, meaning under ISM Code 79 non-disclosure, salvage 513–14 non-separation agreements, general average 676–7 Norwegian Sale Form (NSF) 292 ‘appropriate amendments,’ subject to 314 Clause 2 (deposit) 316, 323, 324, 325, 326 Clause 3 (payment of purchase price) 330, 332, 333, 353 Clause 4 (inspection) 327, 328, 344 Clause 5 (time and place of delivery and notices) 333, 334, 353 Clause 6 (diver’s inspection and dry docking) 328–9 , 343 Clause 7 (seller’s obligation regarding listing spares, etc) 334 Clause 8 (documents) 334, 335 Clause 9 (encumbrances) actual or contingent liabilities 337 construction by courts 336–8 documentation 334 encumbrances or debts at time of delivery 337 guarantee provision 337 indemnity provision (liabilities incurred prior to delivery) 337–8 other breaches by seller 353 risk management 18 safeguarding against breach of 338–9 seller’s undertaking 335–6 spurious claims 337 Clause 11 (condition of vessel on delivery) 335, 339–48 1993 and 2012 forms 344–5 additional exceptions under 2012 form 345 ‘free of cargo’/’free of stowaways’ 345 omissions in 2012 form 345 Clause 13 (buyer’s default) 324, 325, 326, 351 Clause 14 (seller’s default) 333, 334, 335, 351–2 , 353 Clause 15 (buyer’s representatives) 323 Clause 18 (entire agreement clause) exceptions clauses and estoppel 302 express wording (2012 form) 348 notification to class 342 see also sale and purchase risks (second-hand ships) notice of readiness (NOR) 292, 329–35 ‘advance deposit’ 331 deliverable state 331–4 essential documentation for exchange at delivery 334–5 when payment of price arranged 330–1 notices Merchant Shipping Act offences 119–20 notice of readiness see above port safety 699–700 novus actus interveniens collisions at sea 427–31 damages 459, 461 successive causes 430–1 NSF see Norwegian Sale Form (NSF) nuclear damage 821, 872–4 Brussels Supplementary Convention 1963 and Protocols of 1964 and 1982 872 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention 1988 873 limitation of liability issues 762 NUCLEAR 71 (Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material 1971) 874 Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960 872, 873–4 UK legislation 874 Vienna Convention on Civil Liability for Nuclear Damage 1963 872, 873–4 Nuuk Declaration 2011, pollution 826 objective evidence, meaning under ISM Code 79 OCIMF see Oil Companies International Marine Forum (OCIMF) OECD (Organisation for Economic Co-operation and Development), Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960 872, 873–4 OHSAS (Occupational Health and Safety Standard) 18001 73–4 oil companies, deterrent effect of vetting by Rowan case decisions 92–4 facts 92 vetting practice 91–2 and Vitol charter 92, 93 Oil Companies International Marine Forum (OCIMF) 4, 24, 76 oil pollution current regime 829–30 Fund Convention 1992 830, 831 international compensation regime 829–31 IOPC Funds 831 limitation of liability 762 oil pollution damage compensation fund 39 oil pollution emergency plans (OPEPs) 685 Oil Pollution Incident Response Training Guidelines for UK Offshore Oil Industry 685 old regime 829 OPRC (International Convention on Oil Pollution Preparedness, Response and Co-operation) 1990 825–6 persistent oil 867 sea-going vessels carrying persistent oil in bulk 834–5 Secretary of State powers in relation to legislation 684–6 Small Tankers Oil Pollution Indemnity Agreement (STOPIA) 578, 830, 860, 861 spills, criminal liability under MSAs 872 Supplementary Fund 2003 830–1 Tankers Oil Pollution Indemnity Agreement (TOPIA) 578, 830, 860 see also compensation; International Oil Pollution Compensation Funds (IOPC Funds); pollution oil rigs, and salvage 490 oil spills 845, 872 open port duty, harbour authorities 690 operative mistake, salvage 514–16 Organisation for Economic Co-operation and Development (OECD) 76 out-of-pocket expenses environmental salvage 571 partial loss of ship and incidental losses 473 salvage compensation 549 ownership see ship-ownership P&I clubs 22, 76, 479, 860 compulsory insurance 734 passenger claims 815 salvage 555, 558, 578 unseaworthiness 673 see also protection and indemnity (P&I) cover P&I insurance see protection and indemnity (P&I) cover Pacific Adventurer incident (2009) 740 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) application and scope 794–5 contributory negligence 802 definitions ‘cabin luggage’ 796 ‘carrier’ 795–6 ‘contract of carriage’ 796 ‘loss of or damage’ 796 ‘luggage’ 796 ‘passenger’ 796 ‘performing carrier’ 796 ‘period of carriage’ 796–7 ‘ship’ 795 exclusion of application 795 fault-based liability under 791–2 , 797–8 ‘international carriage,’ applicable to 794, 795 invalidity of contractual provisions 814 jurisdiction 803 limitation of liability 799–801 death or personal injury 800–1 losing right to limit 801 luggage, limitation for loss or damage 801 prohibition of contracting out 800 and LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 804–5 negligence of servants or agents of carrier 802 non-seagoing and sea-going ships 805–6 persons liable 797 presumed fault under 798 and Protocol of 1996 805–6 ratification 792 risk assessment, relevance 798–9 strict liability, shift from fault-based 791–2 time limits 802 travel agents, contracts of carriage through 803–4 valuables, carriage of 801–2 see also passenger claims PAL 2002 (2002 Protocol to PAL 1974 Convention) see Athens Convention 2002 (2002 Protocol to PAL 1974 Convention) Panamanian flag, and flags of convenience 69, 181 Paris Memorandum of Understanding (MOU), 1982 blacklist of flags 33, 42 compliance with international safety measures 69 conformity requirements of flag States 40 European Quality Shipping Information System established by 74 part charterers 745 partial loss of ship and incidental losses 468–74 detention damages loss and expenses, apportioning 472–3 mitigation issues 470–1 out-of-pocket expenses/other consequential losses 473 pure economic loss 473–4 routine repairs during collision damage repairs 472 fixture, loss of use 468–70 repairs cost of 468 loss of use of fixture during 468–70 routine repairs during collision damage repairs 472 passenger claims amounts of potential liability 820 Athens Convention 2002 791, 797, 807, 820 background 792–3 contributory negligence 802 death or personal injury claims 808, 809, 812 definitions ‘cabin luggage’ 796 ‘carrier’ 795–6 ‘contract of carriage’ 796 ‘loss of or damage’ 796 ‘luggage’ 796 ‘passenger’ 796 ‘period of carriage’ 796–7 ‘ship’ 795 Erika III measures (2009) 43–4 IMO Reservation/Guidelines 2006 792, 820 background 815–16 Blue Cards 817 non-war risks insurance 817 war-or terrorism-risks insurance 816–17 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 744 loss of life and personal injury 751 see also life, loss of luggage defined 796 PAL 1974 limits for loss of or damage to 801 PAL 2002 Protocol on loss or damage 809 minimum tonnage 744 MS (Carriage of Passengers by Sea) Regulations 2012 819 negligence 802 PAL 1974 Convention see PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) PLR (Passengers Liability Regulation) 2009 817–19 Protocol 2002 see Athens Convention 2002 (2002 Protocol to PAL 1974 Convention) regional organisations, competence 793 strict liability, shift from fault-based 791–2 tacit acceptance procedure 793 travel agents, contracts of carriage through 803–4 valuables, carriage of 801–2 , 812 passenger ships and roll-on/roll-off (ro-ro) vessels safety and environmental measures EU level developments 49 human element developments 50 IMO level developments 49–50 passing of property contract, risk by 254 deliverable state 321 Sale of Goods Act (SOGA) 1979 321–2 statute, risk by 253 PCS see Port State Control (PCS) penalties ISM Code 89–90 MSA 1995, statutory offences under 403, 404, 406 under CMCH Act 2007 129–30 performance of voyage, risks at 19–23 accident aftermath 23 bulkhead failures and stresses, management 21 cargo loading 21 clear instructions requirement 21 crew training 21 discharge port 22 emergency procedures, accident aftermath 23 injury prevention 22 loss of life prevention 22 navigational 22 pilot, communication with 23 piracy risk assessment and planning 20–1 stowaways 22 voyage planning 20 Permanent Cooperation Framework, accident investigation 43 personal injury claims Athens Convention 2002 (2002 Protocol to PAL 1974 Convention) 812 collisions at sea 445–6 fault-based liabilty caused by non-shipping incident 809 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 800–1 passenger claims 751 strict liability 808 personal injury claims, collisions at sea, ‘thin skull’ rule 459, 460 personnel of ship ISMO Code 82 towage contracts, liability and cross-indemnity issues 641–2 pilotage compulsory 715 compulsory pilotage area, duties of masters and pilots 718–19 IMO recommendations 713–14 liability of harbour authorities with respect to 722–3 services, obligation to provide 700–2 , 714–16 see also pilots Pilotage Commission, Advisory Committee on Pilotage 713 pilots accountability for safety and risk management 715–16 authorisation EU Directive and Regulations 716–17 under PA 1987 716 revision of duties by PMSC 2012 and IMO Resolution A.960 717–18 authority 719–21 charges by competent harbour authority 730 civil liability 417–18 communication with 23 compulsory pilotage defence, abolition (1913) 722 Directive 1999/42/EC 701–2 , 714 duties in a compulsory pilotage area 718–19 duties of competent harbour authority in relation to 714–18 under PA 1987 714–15 recognition of qualifications 715 services, obligation to provide 714–16 function 712 IMO recommendations 713–14 International Best Practice for Maritime Pilots 714 International Maritime Pilots Association 714 liability civil 722 criminal 721–2 and master of ship exchange of information 719–20 person in command 719 relationship of pilot with master 719–21 reporting duties 720 respective roles of master and pilot 719 negligence, liability of ship-owners for court decisions 724–8 statutory provisions 723–4 offence not to have 718–19 PA 1987 713, 714–15 recognition of qualifications 715 relationship with master 719–21 revision of duties by PMSC 2012 and IMO Resolution A.960 717–18 risk assessment 713 and risks 712–30 rules of engagement 718 statutes 713–14 training, certification and operational procedures 714 voluntary services, when exceptional 499–501 see also pilotage Piper Alpha oilrig explosion (1988) 123 piracy issues general average entitlement, effect of fault on 669–71 risk assessment and planning 20–1 , 94 terrorism, and piracy activities 94 places of refuge status of places of refuge in the UK 47 and traffic monitoring background 44–5 CMI Conference, draft instrument approved by 45 further EU measures 47–8 IMO Guidelines 46–7 status of places of refuge in the UK 47 and Wreck Removal Convention 735–6 platforms 490, 743 pledge, ship mortgage compared 178 PLR (Passengers Liability Regulation) 2009 817–19 additional provisions 818–19 application 818 scope 818 pollution accidental causation following marine accident 58 Bunkers Convention (Bunker Oil Pollution Damage Convention) 2001 862–6 compulsory insurance 864–5 liability 863–4 more than one person liable 863 no provisions for limitation of liability 864 pollution damage 863 responder immunity 865–6 BWM Convention (International Convention for the Control and Management of Ships, Ballast Water and Sediments) 827–8 channelling provisions 846–8 Civil Liability Convention (CLC) 1992 see CLC (Civil Liability Convention) 1992 Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) 29, 38–9 Criminalisation Directives on ship-source pollution see Criminalisation Directives on ship-source pollution damage see pollution damage European Maritime Safety Agency, pollution prevention role 37 Fund Assembly 1992 831, 835, 838, 860 Fund Convention 1992 see Fund Convention 1992 Hong Kong Convention (Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships) 828 International Convention on the Control of Harmful Anti-Fouling Systems on Ships 827 International Sewage Pollution Prevention (ISPP) Certificate 334, 335, 336 Intervention Convention 825 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters 826–7 MARPOL (International Convention for the Prevention of Pollution from Ships) 58, 824 National Contingency Plan for Marine Pollution from Shipping and Offshore Installations 825 Nuuk Declaration 2011 826 oil see oil pollution ‘polluter pays principle’ 51 Salvage Convention see International Salvage Convention 1989 SOLAS (International Convention for the Safety of Life at Sea) 72, 824 Special Compensation of Protection and Indemnity Clause (SCOPIC) see SCOPIC (Special Compensation of Protection and Indemnity Clause) 2000 560 Supplementary Fund Protocol see Supplementary Fund Protocol 2003 Tanker Management Self-Assessment (TMSA) 578 towage contracts 651 UNCLOS (United Nations Convention on the Law of the Sea) 822–4 and Criminalisation Directives 57–8 ‘innocent passage’ 823 jurisdiction and rights and duties of States 823–4 sovereign obligations 823 Wreck Convention see WRC (Wreck Removal Convention) 2007 see also compensation pollution damage advisors, use of 839 Bunkers Convention (Bunker Oil Pollution Damage Convention) 2001 863 caused in 1969 CLC States 853 CLC (Civil Liability Convention) 1992 836, 837 defined 837 direct property damage and consequential loss or expenses 837–8 environmental 838–9 Fund Convention 1992 837 loss or expenses 837–8 MSAs, bringing claims under 851 prevention of normal business operations 838 property 837 pure economic loss 838 types of claim 837–9 in United States 828 see also oil pollution; pollution port authority, civil liability 418–19 Port Maritime Safety Code (PMSC) 2012 680, 682 compliance with 689–90 duty to maintain port in good condition 695–6 pilots IMO recommendations 713 revision of duties 717–18 responsibility 689 scope and aim 689 ports contractual duty to make reasonably safe 699–700 duty to maintain in good condition 695–6 duty to operate 690–2 entry into, extent of control 95 facility requirements 96 Guide to Good Practice on Port Marine Operations 2012 682, 690, 696, 713 harbour authorities, duties in relation to 695–6 , 699–700 major, in UK 683 open port duty 690 role in inspections and enforcement of legislation 686 security 712 see also Port State Control (PCS) Port State Control (PSC) regime 5 blacklisting of substandard ships by 71 Directives amending 33–4 insurance issues 109 mandatory inspections 33 role in enforcement 70–1 THETIS information system supporting 36 port trusts 683 possession, mortgagee in due diligence, obligation to act in 197 right of mortgagee to take possession default, matters amounting to 193 mode of exercise of powers 195–6 security, impairment of 194–5 rights and obligations in possession freight, right to 196–7 operation and management, obligations during 197 The Prestige disaster (2002) 27, 28, 31, 45, 54, 383, 829 pollution 847, 848 privity 99, 109 ‘blind eye’ 110–11 privity of contract doctrine, towage contracts 635 property concept 488–9 general average, subject to 655, 665 pollution damage 837 preservation where imperilled 665 property transfer theory, origin and deconstruction 170–2 salvage 489–90 property salvage 546 proportionality proportionate fault rule see proportionate fault rule, collisions at sea Wreck Removal Convention (WRC) 2007 732–3 proportionate fault rule, collisions at sea 434–45 application 435 causative potency and blameworthiness 436–40 ‘clear preponderance of blame’ 436–7 collision between ship and a non-ship 442–5 apportionment of blame when ship collides with bridge 443–4 avoidance action causing damage to objects 444–5 composite faults approach 438 exceptions to 440–5 ‘agony of the moment’ defence, success 440 collision between ship and a non-ship 442–5 innocent third ship claims against one of the tortfeasors 441–2 loss of life or personal injury 441 two negligent acts, clear line between 440–1 unit approach 438, 442, 443 protection and indemnity (P&I) cover 10, 23, 109, 186 P&I clubs see P&I clubs see also insurance issues proximity, collisions at sea 411, 412 public authorities, salvage operations controlled by 504–6 purchase and sale of ships see sale and purchase risks (second-hand ships) ‘qualifying ships,’ tonnage tax 144, 145 quality shipping 25 Quality Shipping Campaign 75, 76 RDC (running-down clause), insurance issues 478, 479 reasonableness requirement ‘all reasonable endeavours’ 526, 527 best endeavours and reasonable care 155–6 conduct 369 exceptions clauses, curtailment (Misrepresentation Act 1967, Section 3) 305 exclusion clauses, ship-building contracts 238 general average 664 identification doctrine 102 port safety 699–700 reasonable endeavours 153, 154 salvage, due care 529 traffic monitoring and places of refuge (Directive 2009/17/EC) 46 unreasonable conduct and break in chain of causation 369–70 Wreck Removal Convention (WRC) 2007 732–3 York-Antwerp Rules (YAR) 658 receiver appointments, mortgagee rights 206–7 recklessness Criminalisation Directives on ship-source pollution 62, 63 reckless killing, under CMCH Act 2007 127 towage contracts 649 Recognised Organisations (ROs) 30, 40, 75 Recognised Security Organisations (RSOs) 95 recourse claims, limitation of liability 755–6 , 757–8 recycling provisions 828 Redffren incident (Nigeria 2009) 845 refuge, places of IMO Guidelines 568–9 in international scene 569–70 maritime assistance services 569 UK approach to 570 registration of ships, in UK Central Register 142 conflict of laws 180 evidence, provision of 135 ‘flagging out’ of ships to foreign registries 139 and flags of convenience 145 ‘quota hopping’ by non-British ships, preventing 140 Registration of British Vessels 1823–5 170 see also ship-ownership regulatory regime 27–66 Criminalisation Directives on ship-source pollution see Criminalisation Directives on ship-source pollution Erika measures see Erika I measures (2000); Erika II measures (2002); Erika III measures (2009) general safety and environmental measures ballast water and waste residue 50–2 bulk carriers 48–9 crew training and certification 53 ECDIS 50 mandatory measures 50 Maritime Labour Convention 2006 53–4 passenger ships and roll-on/roll-off (ro-ro) vessels 49–50 ship recycling 52–3 rejection of vessel sale and purchase risks (second-hand ships) 354 termination of shipbuilding contract 260 remedies damages see damages general average entitlement 666 sale and purchase risks (second-hand ships) breaches by seller 353 breach of statutory terms by seller 353–4 buyer’s remedies 351–4 delay in delivery or non-delivery as per contract 351–3 whether freezing injunctions a protective measure for buyer 354–60 measure of damages 360–73 Misrepresentation Act 1967, under 305–7 non-performance by one party, available options 349–51 seller’s remedies 351 shipbuilding contracts delays 264–5 guarantee defects 255 liquidated damages 260, 264, 280–2 specific performance 264–5 termination of contract 265 repairs authority of ship managers 152 ballast/laden method 470 civil liability of ship-repairers 419 cost of 468 exceptional 152 loss of use of fixture during 468–70 mortgagor obligations 187 negligence of ship-repairers 747 routine repairs during collision damage repairs 472 time equalisation method 470 reporting duties, breach under Collision Regulations 403–4 res ipsa loquitur , breach of duty of care 420–2 resources, ISMO Code 82 respondeat superior principle 617, 726, 729 limitation of liability 770, 771, 773 responder immunity 571, 865–6 restitutio in integrum principle, damages 463–4 , 467 rights in rem /rights in personam 390, 504 mortgage of ships 181, 185, 195 risk exposure 8–9 risk management 3–25 accountability for 715–16 and assessment 6–7 best endeavour clauses, drafting 154–5 by brokers 307–8 collective responsibility and commitment 16–25 definition of ‘risk’ 5 funding for risk control and training 25 by harbour authorities 679–736 high-risk and low-risk ships 42 and insurance 166–7 legal 8 limitation of liability and role of ISM Code 117–19 mortgage of ships, risks in see mortgage of ships option agreements, drafting of shipbuilding contracts 242–4 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea), relevance of risk assessment under 798–9 refund guarantee 273–5 rescission by builder 284 safety culture 10 sale and purchase risks (second-hand ships) binding contract 308–19 brokers, risk management by 307–8 science of 4 shipbuilding contracts, making 229–32 ship-ownership see ship-ownership stages contract drafting 17–18 dispute resolution 23–4 incorporation 17 performance 19–23 ship operations 18–19 standards for risk control 16–17 towage contracts 647–9 and tug fitness 609–10 risk profile 9 risk tolerance 9–10 RNLI see Royal National Lifeboat Institution (RNLI) route (unauthorised), deviation through 669–71 Royal National Lifeboat Institution (RNLI) 491 salvage by lifeboat crews 506–7 Royal Navy, orders of naval commander 504 RSOs (Recognised Security Organisations) 95 running-down clause (RDC), insurance issues 478, 479 safe manning regulations, Merchant Shipping Act offences 120 SafeSeaNet (maritime information facility) 36, 47 safety and environmental measures ballast water and waste residue 50–2 bulk carriers 48–9 compliance with international measures, role of flag State and PSC in enforcement 70–1 crew training and certification 53 definition of ‘safety management system’ under ISM Code 79 ECDIS 50 functional requirements for a safety management system 80 industry standards on safety and quality assessment 73–4 mandatory measures 50 Maritime Labour Convention 2006 53–4 passenger ships and roll-on/roll-off (ro-ro) vessels 49–50 ship recycling 52–3 see also ISM (International Safety Management) Code safety culture 10 enhancement through collective responsibility 24–5 Safety Management Certificate (SMC) 79, 86 Safety Management Manual (SMM) 84, 107, 111 Safety Management System (SMS), ISM Code 79, 80, 81, 84, 91 attribution of liability 111, 117, 131 co-ownership 138 inefficient 117 risk management 8, 9 SAJ (Shipbuilders’ Association of Japan) contract form articles and provisions Article I (description of vessel) 244 Article II (price and method of payment) 244, 245, 276 Article III (delivery, speed, fuel consumption and dead weight)) 252 Article IV (approvals) 252 Article V (modifications of specification) 252, 263 Article VI (sea trials) 253 Article VII (delivery, passing of property) 254 Article VIII (delays) 252, 261, 262 Article IX (builder’s obligations) 254, 255, 256, 257 Article X (right to rescind) 252, 258, 270, 274, 285 Article XI (builder’s default) 274, 276, 277, 282, 283 Article XII (insurance obligations) 257, 270 Article XIII (dispute resolution) 285 Article XIV (assignment) 285 Article XVII (supplies) 252 Article XXI (sundry provisions) 278 outline 240 excusable delays under 263 wide use of 228 sale and purchase risks (second-hand ships) 291–383 binding contract and risk management 308–19 ‘buyer to be nominated,’ effect 316–19 intention, clear expression of 308–9 meaning of ‘subjects’ 310–14 non-signing of formal document, effect upon validity of contract 314–16 ‘subject to contract’ wording 309, 311 ‘subject to details’ wording 309, 311, 313 breach of contract 294, 297 brokers, risk management by 307–8 ‘buyer to be nominated,’ effect 316–19 classification of terms 319–22 breach of a condition or warranty 319 at common law 319–20 under SOGA 1979 320–2 classification societies, civil liability to buyers and other third parties 374–83 American approach 382–3 comparison with air industry 380–2 whether duty of care owed to third parties 375–80 completion stage, contractual terms at 293, 328–83 classification society inspection (dry-docking) 34, 328–9 closing meeting 292, 349 condition of vessel on delivery 339–48 non-performance by one party, available options 349–51 notice of readiness 329–35 post-delivery matters 360 see also Norwegian Sale Form (NSF) condition of vessel on delivery 339–48 certificates 341 ‘as is’ provision see above matters needing to be notified and when 343–4 notification to class 341–3 currency of loss 373–4 deposit, payment of ‘banking day’ 323 commitment to contract 292 consequences of non-payment 324–6 successive sales 326 when payable/method of payment 323–4 exceptions clauses curtailment by Misrepresentation Act 1967 (Section 3) 303–5 and estoppel 301–3 good faith concept 293–4 inducement to enter a contract and causation 300–1 and misrepresentation 297–300 inspection stage, contractual terms at 327 intention, clear expression of 308–9 ‘as is’/‘as she was’ provisions class free of recommendation 340 class maintained as additional exemption to ‘as is’ 341 effect upon SOGA, Section 14(2) 345–8 fair wear and tear excepted 340 free of average damage as additional exception to 340–1 making of contract 293–6 Misrepresentation Act 1967 exceptions clauses, curtailment (Section 3) 303–5 remedies under 305–7 negotiations and contract stage 291–2 , 293–326 ‘but for’ test (inducement and causation) 298, 301 caveat emptor , effect 296 Confidentiality Agreement 299 ‘decisive part/real and substantial part’ (inducement and causation) 300 estoppel 301–3 exceptions clauses 301–5 express statements 297 implied statements 297 inducement and causation 300–1 Information Memorandum (IM) 299 making of contract 293–6 mere ‘puffs’ 296 misrepresentation, representations inducing a contract amounting to 228, 297–300 whether obligation for disclosure by seller 296–308 statements made during negotiations 296–7 statements of fact 297 non-signing of formal document, effect upon validity of contract 314–16 Norwegian Sale Form see Norwegian Sale Form (NSF) notice of readiness 292, 293, 329–35 ‘advance deposit’ 331 deliverable state 331–4 essential documentation for exchange at delivery 334–5 when payment of price arranged 330–1 whether obligation for disclosure by seller 296–308 pre-inspection stage 322–6 rejection of vessel 354 remedies breaches by seller 353 breach of statutory terms by seller 353–4 buyer’s remedies 351–4 delay in delivery or non-delivery as per contract 351–3 whether freezing injunctions a protective measure for buyer 354–60 measure of damages 360–73 Misrepresentation Act 1967, under 305–7 non-performance by one party, available options 349–51 seller’s remedies 351 risk management issues for buyers 354–60 standard forms, contractual terms under 322–6 ‘subjects,’ meaning of 310–14 Sale of Goods Act (SOGA) 1979 classification of terms under class notation 321 de minimis rule 321 passing of property 321–2 sale by description 320–1 ‘satisfactory quality’ 236, 320 warranties 320 effect of ‘as is’ or ‘as she was’ upon (Section 14(2)) 345–8 narrow issue 347–8 wider issue 348 shipbuilding contracts contractual terms implied 233–9 nature of contract under SOGA 227 sales versus agreements to sell 227 sale power of mortgagee in event of mortgagor default effect of sale by mortgagee 205–6 nature of duty of mortgagee in exercise of 199–205 one-ship companies 209 role of mortgagee/extent of power 198–9 source of power 198 ‘true market value’ versus ‘proper price’ 200, 203 salvage agreements 510–16 court intervention 512–16 historical development 510–11 International Salvage Convention 1989 511–12 master’s authority to enter into 516–24 ‘Salvom’ International Salvage Union Agreement 512 apportionment and payment 564 assessment of award and special compensation 546–53 awards Article 13 558 assessment 537, 546–53 cause of action versus quantum meruit 507 ‘enhanced award’ and ‘safety net’ 484–7 , 553 foundation of a right for an award 483 meritorious services 507–9 Nagasaki Spirit case 551 best endeavours of salvor 525–9 civil 482 civil liability 418 concept under maritime law 482–3 contract, under 483–4 Conventions 484–7 court intervention economic duress/overbearing conduct by salvor 512–13 misrepresentation and non-disclosure 513–14 operative mistake 514–16 damage issues 555 danger effect on a towage contract 495–6 environmental 497 future or contingent 494–5 kinds of 492–3 temporary difficulty 493–4 definition 482 disparity principle 482, 548–9 due care obligation 529–39 negligent misconduct under common law 530–7 reasonableness requirement 529 remedy for negligent misconduct under Convention 529–30 Tojo Maru case 531–7 unresolved issues 537–9 duties and conduct of salvors 524–40 best endeavours 525–9 due care 529–39 duties arising under statute or official duty coastguards and salvage operations 506 duty to assist a collision 502–3 duty to assist others in distress 503–4 lifeboat crews of RNLI, salvage by 506–7 officers under orders of a naval commander of Royal Navy 504 public authorities, salvage operations controlled by 504–6 economic duress 512–13 elements 492–510 danger 492–7 voluntary services 497–507 engaged services 510 ‘enhanced award’ and ‘safety net’ prior to 1989 Convention 484–5 adoption into new Convention 486–7 and special compensation 553 environmental 486, 571–80 background 571–2 whether can be tacked on to present Salvage Convention 575–6 whether can stand alone 576–7 feasibility for proposed reform 577–8 financial considerations 578–9 International Salvage Convention 1989 552–3 International Working Group (IWG) 572 ‘marine environmental protection levy’ 579 out-of-pocket expenses 571 proposal for reform 574–9 reasons for reform 572–3 Salvors’ Environmental Protection Fund 579 views of commentators 574–5 fair rate 549, 552, 555–6 foundation of a right for an award 483 government intervention 566–70 potential offences by salvor or harbour master 567–8 SOSREP (Secretary of State Representative for Maritime Salvage and Intervention) 566–7 hovercraft/aircraft 491 International Salvage Convention 1989 487–92 Article 13 award 558 Article 14 552–6 , 557 creation of ‘enhanced award’ and ‘safety net’ prior to 484–5 duty of owner of property to co-operate under 543–4 fair rate 555–6 general application 487–8 increment 556 master’s authority under 523–4 pollution 828 position of several salvors under 543 recognised subject of salvage 488–92 ‘relevant waters’ 488 remedy for negligent misconduct under 529–30 role 511–12 security for special compensation 556 substantial physical damage 555 territorial limits 554 threatened damage 555 towage versus salvage 584 jurisdiction 564–5 liability 484–5 , 546 life 491–2 , 546 by lifeboat crews of RNLI 506–7 limitation of liability issues 752–8 , 756, 762 Lloyd’s Open Form (LOF) 1980 481, 484, 497, 511, 552, 553 Lloyd’s Open Form (LOF) 1990 522, 523, 546, 551 Lloyd’s Open Form (LOF) 1995 523, 546 Lloyd’s Open Form (LOF) 2000 511, 523, 546, 561 Lloyd’s Open Form (LOF) 2011 482, 523, 546, 562 Lloyd’s Standard Salvage and Arbitration Clauses (LSSA), changes to 562–4 costs 563–4 security for arbitrators’ fees 563 security for containerised cargo 563 master’s authority to enter into agreement actual authority 516 basis to bind cargo interests to a salvage contract 517–23 basis to bind principal to a salvage contract 517 at common law 516–23 implied by operation of law 516 master’s authority under Salvage Convention 523–4 master’s dismissal of salvor under contract 541–3 meritorious services 507–9 misrepresentation 513–14 Nagasaki Spirit case 550–2 appeal award 551 award 551 CA decision 551–2 environmental salvage 553 fair rate 555 House of Lords decision 552 judicial decision 551 revision of law, underlying reasons for 485–6 negligence negligent conduct under common law 530–7 occurring before salvage services rendered 539–40 Tojo Maru case see below ‘no cure, no pay’ principle 481, 482, 484, 485, 511, 552, 553, 557, 605 non-disclosure 513–14 operative mistake 514–16 origin 482–3 out-of-pocket expenses 549 overbearing conduct by salvor 512–13 owner of property in danger, duties to co-operate under common law 544 to co-operate under contract 544–5 to co-operate under Convention 543–4 obligation to provide security to salvors 545 potential offences by salvor or harbour master 567–8 property 546 public authorities, salvage operations controlled by 504–6 recognised subject 488–92 bunkers 489 definition of ‘capable of navigation’ 489 definition of ‘property’ 489–90 definition of ‘salvage operations’ 489 definition of ‘vessel’ 489 freight at risk 490 hovercraft/aircraft 491 life salvage 491–2 ship, vessel or craft 489 structures 490 wrecks 490 refuge, places of 568–70 responder immunity 571 revision of law, historical development 484–7 underlying reasons for revision by a new Convention 485–6 risks and liabilities under 481–579 Salvage Liaison Committee 556 ‘Salvom’ International Salvage Union Agreement 512 several salvors, position of 540–3 dismissal of salvor under contract by master of vessel being salved 541–3 dispossession of one by another under maritime law salvage 540–1 salvage under contract 542 salvage under maritime law 541–2 summary of principles 542–3 special compensation concept 553 criteria 549–52 fair rate 549, 552, 555–6 Nagasaki Spirit case 550–2 out-of-pocket expenses 549 security for 556 Special Compensation of Protection and Indemnity Clause (SCOPIC) see SCOPIC (Special Compensation of Protection and Indemnity Clause) 2000 special maritime law principles 481 standing by a vessel in danger, services by 509 success 507–12 time limits 565–6 Tojo Maru case arbitrator’s decision 531 CA decision 532–3 damages by way of counterclaim 537 House of Lords decision 534 judge at first instance 532 method of assessment of award 537 ‘more good than harm’ principle 534, 535 ordinary principles of negligence at common law applied 536 summary of principles 535 volunteers on land and professional salvors 534–5 versus towage 583–7 under common law 584–7 under Salvage Convention 1989 584 under TOWCON/TOWHIRE 1985 584 under UKSTC 1986 584 voluntary services cargo-owners 501–2 pilots, when exceptional 499–501 under pre-existing agreement 497–9 rendered by a tug under towage contract 499 see also ISU (International Salvage Union); SOSREP (Secretary of State Representative for Maritime Salvage and Intervention) ‘Salvom’ International Salvage Union Agreement 512 salvors best endeavours 525–9 civil liability, collisions at sea 418 dismissal under contract 541–3 duties and conduct 524–40 duty of care 529–39 limitation of liability issues 748–9 obligation to provide security to 545 overbearing conduct by 512–13 possible claims by 840–2 potential offences by 567–8 remedy for negligent misconduct under Convention 529–30 Salvors’ Environmental Protection Fund 579 several, position of 540–3 dismissal of salvor under contract by master of vessel being salved 541–3 dispossession of one by another under maritime law salvage 540–1 salvage under contract 542 salvage under maritime law 541–2 summary of principles 542–3 Tojo Maru case 534–5 as volunteers 583 and Wreck Removal Convention 735 SCOPIC (Special Compensation of Protection and Indemnity Clause) 2000 481, 511, 553 CLC 1992 and Fund Conventions, application 841, 842 and International Group of P&I (IGP&I) Clubs 556, 557 and International Salvage Union (ISU) 556, 557 invoking 557 oil pollution 841 and Salvage Liaison Committee 556 sub-clauses 557–61 discount (cl 7) 558 dispute resolution (cl 15) 560 duties of contractor (cl 10) 558–60 general average (cl 14) 560 invoking SCOPIC (cl 2) 557 payment of remuneration (cl 8) 558 pollution prevention (cl 13) 560 relationship with Article 13 award (cl 6) 558 security (cl 3) 557–8 ship-owners’ casualty representative (cl 11) 560 special representatives (cl 12) 560 substitution of Article 14 (cl 1) 557 tariff rates (cl 5) 558 termination (cl 9) 558–60 withdrawal (cl 4) 558 see also salvage SDRs (special drawing rights) 44 The Sea Empress disaster (1996) 3, 23 seaplanes, defined 391 sea trials, acceptance or rejection 252–3 seaworthiness towage contracts 603 see also unseaworthiness Secretary of State, oil pollution legislation, powers relating to 684–6 Secretary of State Representative for Maritime Salvage and Intervention (SOSREP) see SOSREP (Secretary of State Representative for Maritime Salvage and Intervention) security arbitrator’s fees 563 cargo not part of 174 chattel 178 classification societies, role in relation to 72–3 comparison of ship mortgage with other types of security 177–8 general average 675–7 impairment of 194–5 mortgagor obligations 188 obligation to provide to salvors 545 ports 712 salvage arbitrator’s fees 563 obligation to provide security to salvors 545 special compensation 556 Special Compensation of Protection and Indemnity Clause (SCOPIC) 557–8 see also International Ship and Port Facilities Security (ISPFS) Code servants limitation of liability 746–7 negligence 802 shipbuilding contracts 221–89 accrued rights of parties upon cancellation of contract 226–7 approvals 252 assignment 284–5 binding contract requirement 229–30 bridging contract 227–8 builder’s obligations defects guarantee, provision 254–7 insurance of vessel 257–8 refund guarantee, provision 258 buyer’s property rights to partly constructed hull 224–5 civil liability of shipbuilders or ship-repairers 419 class rules and regulations 244 condition precedent or subsequent 230–1 construction stage 251–3 contract drafting stage, risk management 17–18 contract for sale or a contract of construction and sale 223 contract price adjustment clauses 246 contractual terms 232–9 common law developments 234–5 compliance with description (law prior to 3 January 1995) 233–4 conditions 232 exclusion clauses and UCTA 1977 238–9 fitness for purpose 236, 237–8 general 232 implied at common law 233, 234–5 implied under SOGA 1979 233–9 innominate 232 ‘merchantable quality,’ demise of 235–6 ‘shipped in good condition’ 232 statutory developments 235 warranties 232 defects guarantee, provision exclusions from guarantee 255–6 , 257 guarantee period and conditions of cover 254–5 remedy for guarantee defects 255 risk minimisation 256–7 delays construction stage 252 delivery of vessel 246, 351–3 excusable under NEWBUILDCON 263–4 excusable under SAJ form 263 prevention principle 263 price escalation issues 246 remedies 264–5 delivery passing of property and risk by contract 254 passing of property and risk by statute 253 description of vessel 244 dispute resolution 285 disputes, events causing 262–3 essential terms 231–2 exclusion clauses, and UCTA 1977 238–9 fitness for purpose and ‘merchantable’ quality 236 reliance on skill and judgment of seller 237 Slater v Finning decision 237 subject matter, idiosyncrasy of 237–8 fluctuation clauses 246 force majeure events see force majeure events general framework 240–2 General Technical Specification 241–2 invitation to tender, legal effect 227 letter of intent 227 making of, risk management 229–32 manufacturer’s or builder’s liability to third parties 286–9 materials, property in prior to completion 225 ‘merchantable quality,’ demise of law until 3 January 1995 235–6 law following 3 January 1995 236 sale and purchase risks (second-hand ships) 320 modifications of specification 252 nature 223–7 negotiations, legal significance of representations made during 228 option agreements and risk management in drafting 242–4 overcapacity prior to 2008 221 payment method 244–51 buyer’s performance guarantee 245 buyer’s refund guarantee 245–6 contract price adjustment clauses 246 fluctuation clauses 246 price escalation issues 246–51 pre-contract stage 227–8 price escalation issues builder’s delay in delivery 246 Clarkson’s Clean Indexes 246 consideration, lack of 247–8 cost fluctuations and increase in price 246 economic duress 248–51 lawful act duress 249 Stilk v Myrick principle 247 quality of new shipbuilding 221 remedies delays 264–5 guarantee defects 255 liquidated damages 260, 264, 280–2 specific performance 264–5 termination 265 repudiation 149, 260–1 rescission by builder, effect 282–4 SAJ contract form see SAJ (Shipbuilders’ Association of Japan) contract form Sale of Goods Act (SOGA) 1979 contractual terms implied under 233–9 nature of contract under 227 sales versus agreements to sell 227 ‘satisfactory quality’ 236, 320 sea trials, acceptance or rejection 252–3 specification 241–2 standard terms 222 supplies by buyer 252 termination see termination of contract warranties 232, 320 Ship Inspection Report Exchange (SHIRE) system 24–5 SHIPMAN 2009 (management agreement form) 135, 146, 147–8 authority of ship managers (Clause 3) 148–9 , 150, 151 best endeavours, manager’s obligations (Clause 8) 152, 155 commercial management (Clause 6) 148 crew management (Clause 5) 148 duties of ship manager 155–6 insurance and risk management (Clause 10) 167 liability to owners (Clause 17) 155–6 , 164 obligations of ship manager 151, 155 technical management (Clause 4) 148, 151 see also management of ships ship management see management of ships ship operations risks in 18–19 unsafe 121–2 , 404–5 Ship-owners Association of Japan (SAJ) see SAJ (Shipbuilders’ Association of Japan) contract form ship-ownership acquiring 135–6 authority of manager to bind owner, extent of 150 bankruptcy, acquired by 136 bill of sale, as title 135 bunkers, position of owner in relation to 489 casualty representative of owner 560 ‘commercial’ management test, and UK tonnage tax 145 compensation contributions, further 860 co-ownership 136–8 corporate bodies, owners as 402–3 decline of British shipping 143 defence applicable to owners under Criminalisation Directives 55–6 evidence of 130 fishing vessels British, eligibility to own 143 irregularity of MSA 1988 on 140–1 harbour damage, liability of ship-owners for 703–11 contributory negligence defence, whether sustainable 709–10 options for owner 710–11 recoverable damages by harbour 711 River Wear Commission v Adamson case 703–9 statutory cause of action against registered owner 703–9 HNS Convention, liability under 868 inheritance, acquired by 136 insurance issues 167 limitation of liability see limitation of liability Merchant Shipping Act 1988 effect of reform upon British ship-ownership 143–4 fishing vessels, irregularity on 140–1 fundamental changes brought by 139 owning British ship under 140 Merchant Shipping Act 1995, eligibility to own a British ship under British connection and majority interest 142 EU Treaty, British citizens and nationals under 141–2 mortgaged ship, ownership right 189 owner as an undisclosed principal 149–50 pilot negligence, liability for court decisions 724–8 statutory provisions 723–4 principles 135–8 relationships of owners with others 13–14 shipping register, UK 139 statutory overview of, and registration of British ships 139–45 old law (MSA 1894) 139 effect of reform upon British ship-ownership 143–4 eligibility to own a British fishing vessel 143 Factorame case (1991) 140–1 Merchant Shipping Act 1988 139–41 , 143–4 Merchant Shipping Act 1995 141–2 subrogation rights 846 transmission, acquired by 136 undisclosed principal, owner as 149–50 wreck removal, liability of registered owner 734 see also management of ships ships building contracts see shipbuilding contracts collisions see collisions at sea; Colregs (International Regulations for Preventing Collisions at Sea), 1972 conduct endangering 405–7 definition of ‘ship’ 391, 489, 743, 795, 866 management see management of ships non-seagoing 805–6 operations see ship operations ownership see ship-ownership partial loss and incidental losses 468–74 detention damages 470–4 fixture, loss of use during repairs 468–70 repairs 468–70 , 472 recycling 52–3 sale and purchase of see sale and purchase risks (second-hand ships) salvage, recognised subject 489 seagoing 743, 805–6 security alert system 96 shipboard operations, ISMO Code 82–3 special rules, Merchant Shipping Act offences 120 substandard 71, 74 total loss actual not speculative charter 467–8 value of ship where no market 466–7 yardstick applicable to ascertain loss sustained 464–6 value where no market 466–7 see also cargo; freight; vessels ship security officer (SSO) 96 shore line, defined 490 signals, Collision Regulations 401 single-hull tankers, phasing out 31–3 slot charterers 745, 746 Small Tankers Oil Pollution Indemnity Agreement (STOPIA) see STOPIA (Small Tankers Oil Pollution Indemnity Agreement) SMC (Safety Management Certificate) 79 SMS see safety management system (SMS), ISM Code Solar I incident (2006) 861 SOLAS (International Convention for the Safety of Life at Sea) 1974 824 amendment 879, 885 certification required by 72 SOSREP (Secretary of State Representative for Maritime Salvage and Intervention) 47 government intervention 566–7 Intervention Convention 825 sound, Collision Regulations 401 Special Compensation of Protection and Indemnity Clause (SCOPIC) see SCOPIC (Special Compensation of Protection and Indemnity Clause) 2000 special drawing rights (SDRs) 44 speed safety, steering and sailing rules (Collision Regulations) 392–4 steering and sailing rules (Collision Regulations – Part B, Section 1) 392–6 action to avoid collision (Regulation 8) 394 collision risk (Regulation 7) 394 narrow channels (Regulation 9) 395–6 proper lookout (Regulation 5) 392 safe speed (Regulation 6) 392–4 Traffic Separation Schemes (Regulation 10) 396 stevedores, limitation of liability issues 747–8 STOPIA (Small Tankers Oil Pollution Indemnity Agreement) 578, 821, 830, 860 general scope 861 stowaways 22 stress management 21 strict liability CLC (Civil Liability Convention) 1992 842 death or personal injury caused by a shipping incident 808 HNS (Hazardous and Noxious Substances) Convention 2010 868–9 non-strict liability offences 162 shift from fault-based to, in passenger claims 791–2 strikes, force majeure events 262 structures, salvage 490 subrogation rights Fund Convention 1992 854–5 ship-ownership 846 Supplementary Fund Protocol 2003 859 substandard ships, tackling 71, 74 Supplementary Fund 2003 830–1 Assembly 857 ‘established claims’ 857 three-tier compensation system 833 Supplementary Fund Protocol 2003 applicability 856–7 communication obligations and denial of compensation 858–9 denial of compensation permanent 859 temporary 858–9 Fund Assembly 1992 860 jurisdiction 859–60 liability conditions 857 ‘membership’ fee 858 reasons for 856 recognition and enforcement 860 subrogation rights 859 time bar 859 time of payment 857 tacit acceptance procedure 65–6 , 793, 881–5 Tanker Management Self-Assessment (TMSA) 4, 9, 24 regulatory enforcement 73, 76, 91 tankers, single-hull: phasing out under Erika I measures 31–3 Tankers Oil Pollution Indemnity Agreement (TOPIA) see TOPIA (Tankers Oil Pollution Indemnity Agreement) technical matters, authority of ship managers 151–2 tenants in common 136 termination of contract builder’s accrual rights, effect on 283–4 buyer’s default and builder’s rights 275–84 determining existing of default 276 effect of default 276–7 performance guarantee for unpaid instalments, builder’s rights under 277–8 contract null and void 282 contractual limits of right to claim damages 274–5 effect 282–4 Rainy Sky decision bonds, relevant clauses 269 court at first instance 271 dissenting judge 271 facts of case 268–9 issue 270 parties’ arguments 270 ratio of majority of the CA 271 relevant provisions of shipbuilding contracts 269–70 risk of 273 Supreme Court 271–2 refund of prepaid instalments guarantee per se versus performance bond 266–8 issues of construction 268–72 sale proceeds, application 282–3 termination by buyer discharge from primary obligations 266 effect for builder’s default 266–75 liquidated damages instead of termination 260 occurrence of terminating event not leading to termination 259–60 Paget’s Law of Banking 268 refund guarantee and risk management 273–5 refund of prepaid instalments 266–72 rejection of vessel by buyer 260 repudiation of contract 149, 260–1 specific contractual events 258–9 see also shipbuilding contracts terrorism, and piracy activities 94 THETIS information system 36 third parties classification societies, civil liability to 374–83 American approach 382–3 comparison with air industry 380–2 whether duty of care owed to third parties 375–80 harbour authorities’ liability to maintenance of port in good condition 695–6 unmarked wrecks 694–5 infrastructures of shipping companies 14–15 manufacturer’s or builder’s liability to 286–9 third-party liability insurance 845–6 towage contracts allocation of liability between tug and tow 640–1 Contracts (Rights of Third Party) Act 1999 637–8 control and ‘two employers’ conundrum 620–3 control theory 619–20 transfer of contract rights to third parties 635–8 tug and tow 618–23 unit theory 442, 618–19 see also third-party contracts, interference by mortgagee third-party contracts, interference by mortgagee Collins v Lamport decision 210–11 De Mattos v Gibson decision 208–9 equitable remedy 209 impairment factor 210–11 issues 207–8 knowledge of circumstances 209 OBG v Allan decision details of case 216 impact upon mortgagees and prevous authorities 217–18 modern strand of authorities prior to 211–15 reformulation of economic torts 215–18 reformulation of economic torts 215–18 alleged wrongs 215–16 breach of contract, inducing 216 elements of tort 216–17 loss, causing by unlawful means 216–17 statutory basis 210 wrongful interference with contractual rights, tort of 211, 212, 214 see also third parties third-party ship managers 112, 146 Three Pillars of EU competences 56 time equalisation method, repairs 470 time limits channelling provisions, pollution 851–2 Fund Convention 1992 855 general average 677 HNS (Hazardous and Noxious Substances) Convention 2010 871 passenger claims Athens Convention 2002 (2002 Protocol to PAL 1974 Convention) 812–13 PAL 1974 Convention (Athens Convention 1974 relating to Carriage of Passengers and their Luggage by Sea) 802 salvage 565–6 Supplementary Fund Protocol 2003 859 time bar defence, collisions at sea 433–4 TMSA see Tanker Management Self-Assessment (TMSA) tonnage, minimum 743–4 tonnage tax, UK 144–5 TOPIA (Tankers Oil Pollution Indemnity Agreement) 578, 821, 830, 860 general scope 861 Torrey Canyon incident (1967) 829, 881 towage contracts agency of necessity 589 authority of master 587–8 to bind cargo-owners 589 authority of tugmaster 589–92 best endeavours, completion of towage 610–12 binding contract, making 587–95 civil liability 418 commencement 595 common law commencement of towage 595 condition of tow 614–15 examples at 596–9 old definitions under 582–3 towage versus salvage 584–7 condition of tow 613–16 common law 614–15 duty to disclose 613 express terms in contract 615–16 ‘fitness to be towed’ 615 contract for services 595 cross-indemnity 641–2 danger, effect on 495–6 definitions old, under common law 582–3 ‘tender’ 583 ‘towage’ 581, 582 under TOWCON/TOWHIRE 1985 583 ‘towing’ 583 under UKSTC 1986 583 ‘vessel’ 583 ‘whilst towing’ 583 duties of tow condition of tow 613–16 specification of what is required and to disclose condition of tow 613 examples at common law The Apollon 598 The Blenheim v The Impetus 599 The Clan Colquhoun 596 The Glenaffric 597–8 The Ramsden 598 The Uranienborg 597 exception clauses, ambit 624–7 exclusion clauses, limitations 629–34 fitness of tug, duties of tug-owners in relation to 601–8 contractual terms of standard towage contracts on tug’s fitness 607–8 decisions in favour of an absolute warranty of fitness 602–6 no general rule about absence of a warranty of fitness 609 position of fitness when specific tug requested 608–10 tug fitness and risk management 609–10 view that there is no absolute warranty of fitness 606–7 , 608–9 general average 666 good faith whether duty of 592–3 whether existing in towage contracts 593–4 Himalaya clauses 635–7 , 649, 650 indemnity clauses 627–9 limitations 629–34 interruption of towing, consequences 599–600 ‘knock-for-knock’ clauses 582, 645–7 , 652 limitation of liability 638–40 , 650 no-suit clause and ‘Himalaya’ provision 635–7 offshore, liabilities under 640–9 offshore supplytime charters charterer remaining liable for damage caused by hazardous and noxious substances 651 consequential damages 650 limitation of liability 650 mutual exclusions 650 mutual indemnities 650 pollution and insurance clauses 651 risk allocation under SUPPLYTIME 1989 650–1 SUPPLYTIME (1989) 650–1 SUPPLYTIME (2005) 651–2 offshore towage contracts, liabilities under 640–9 pre-contractual duties 592–4 recklessness 649 relationship between tug and tow under UKSTC 617–18 remuneration paid to tug 617 risk management 647–9 skill and diligence, duty to exercise throughout 612–13 during towage 616 standard forms BIMCO/ISU Wreckfixed (2011) see below HEAVYCONBILL (2007) 582 SALVCON (2005) 582 SUPPLYTIME (1989) 582, 645, 650–1 SUPPLYTIME (2005) 582, 645, 651–2 TOWCON/TOWHIRE see below UKSTC (United Kingdom Standard Towage Conditions) (1986) see below WRECKSHIRE (2010) 582 subcontracting authority 634–5 substitution of tugs 634–5 SUPPLYTIME (1989) 582 ‘loss of profit,’ conflicting views 645 risk allocation under 650–1 SUPPLYTIME (2005) 582 ‘loss of profit,’ conflicting views 645 risk allocation under 651–2 termination of towing 600–1 third parties allocation of liability between tug and tow 640–1 Contracts (Rights of Third Party) Act 1999 637–8 control and ‘two employers’ conundrum 620–3 control theory 619–20 transfer of contract rights to 635–8 and tug and tow 618–23 unit theory 442, 618–19 towage versus salvage 583–7 under common law 584–7 under Salvage Convention 1989 584 under TOWCON/TOWHIRE 1985 584 under UKSTC 1986 584 TOWCON/TOWHIRE international ocean towage forms (1985) 582 allocation of liability between tug and tow 641, 642 best endeavours, completion of towage 611 commencement of towage 595 condition of tow 614, 615 contractual terms of standard towage contracts on tug’s fitness 608 definitions 583 indemnity clauses 629 termination of towing 601 towage versus salvage 584 transfer of contract rights to third parties 637 transfer of benefits 634–5 tug and tow, allocation of liability between 640–9 cross-indemnity 641 financial losses 642–3 liabilities for loss of/damage to each other or to third parties 640–1 liability and cross-indemnity with regard to personnel 641–2 ‘loss of profit,’ conflicting views 643–5 tug-owners, duties of 601–8 UKSTC (United Kingdom Standard Towage Conditions) (1986) best endeavours, completion of towage 611 collisions at sea 418 commencement of towage 595 contractual terms of standard towage contracts on tug’s fitness 607–8 control and ‘two employers’ conundrum 621 definitions 583 duration of towage 595 exception clauses 626 general average 666 Himalaya and no-suit clause 635–7 indemnity clauses 629 liability between tug and tow under 617–18 substitution and Himalaya clause 634–8 towage versus salvage 584 unfair contract terms 594–5 unseaworthiness of tug 645–7 voluntary services rendered by tug under 499 TOWCON/TOWHIRE international ocean towage forms (1985) 582 allocation of liability between tug and tow 641, 642 best endeavours, completion of towage 611 commencement of towage 595 condition of tow 614, 615 contractual terms of standard towage contracts on tug’s fitness 608 definitions 583 indemnity clauses 629 termination of towing 601 towage versus salvage 584 transfer of contract rights to third parties 637 traffic monitoring and places of refuge (Directive 2009/17/EC) background 44–5 CMI Conference, draft instrument approved by 46 further EU measures 47–8 IMO Guidelines 46–7 status of places of refuge in the UK 47 Traffic Separation Schemes 389, 391, 396 training of crew 21, 53 of pilots 714 travaux préparatoires 104, 746, 747, 769 travel agents, contracts of carriage through 803–4 Trinity House rules 388 tugmaster, authority of 589–92 uberrima fides contracts 296, 593, 594 UKSTC (United Kingdom Standard Towage Conditions) (1986) best endeavours, completion of towage 611 collisions at sea 418 commencement of towage 595 contractual terms of standard towage contracts on tug’s fitness 607–8 control and ‘two employers’ conundrum 621 definitions 583 duration of towage 595 exception clauses 626 general average 666 Himalaya and no-suit clauses 635–7 indemnity clauses 629 liability between tug and tow under 617–18 substitution and Himalaya clause 634–8 towage versus salvage 584 UNCLOS (United Nations Convention on the Law of the Sea) 1982 822–4 and Criminalisation Directives 57–8 ‘innocent passage’ 823 jurisdiction and rights and duties of States 823–4 sovereign obligations 823 undisclosed principal, owner as 149–50 unfair contract terms, towage contracts 594–5 United Kingdom Standard Towage Conditions (1986) see UKSTC (United Kingdom Standard Towage Conditions) (1986) United Nations Convention on the Law of the Sea (UNCLOS) 1982 see UNCLOS (United Nations Convention on the Law of the Sea) 1982 United States (US), pollution damage 828 unit theory, tug and tow 442, 618–19 unregistered ships, and status of mortgage 176 unsafe ships (Merchant Shipping Act offences) dangerously unsafe ship 120, 404–5 unsafe operation of ships 121–2 , 404–5 unseaworthiness general average entitlement 671–3 negligence of ship-repairers 747 towage contracts 641, 645–7 US Coast Guard, ‘Qualship 21’ 74 US Department of Maritime Administration, Maritime Subsidy Board 222 valuables passenger claims 801–2 , 812 theft of, limitation of liability 763–4 vessels conduct where in sight of each other (Collision Regulations – Part B, Section II) action by give-way vessel (Regulation 16) 398 action by stand-on vessel (Regulation 17) 398 crossing situation (Regulation 15) 397 specification of responsibilities between vessels (Regulation 18) 398 crossing situation (Collision Regulations) 397 in danger, standing by 509 definition of ‘vessel’ 391, 489, 583, 835 delivery condition of vessel on 339–48 delays 246, 351–3 deliverable state 321 encumbrances or debts at time of 337 essential documentation for exchange at 334–5 liabilities incurred prior to 337–8 non-delivery as per contract 351–3 passing of property and risk by contract 254 passing of property and risk by statute 253 post-delivery matters 360 see also under Norwegian Sale Form (NSF) failure to give assistance to following collision 403 fishing British, eligibility to own 143 irregularity of MSA 1988 on 140–1 give-way, action by (Collision Regulations) 398 insurance see insurance issues rejection by buyer 260 salvage, recognised subject 489 sea-going vessels carrying persistent oil in bulk 834–5 specification of responsibilities between (Collision Regulations) 398 stand-on, action by 398 see also ships vicarious liability doctrine 98 collisions at sea 412–16 dual 623 limitation of liability 746–7 see also employers The Viking Islay accident (2007) 90 Voluntary Member State Audit Scheme (VIMSAS) 31 voluntary services cargo-owners 501–2 exceptions 498–9 pilots, when exceptional 499–501 under pre-existing agreement 497–9 rendered by a tug under towage contract 499 Voyage Data Recorders (VDRs), introduction of 33–4 voyage planning 20 warranties absolute warranty of fitness decisions against 606–7 , 608–9 decisions in favour of 602–6 shipbuilding contracts 232, 320 waste residue, general safety and environmental measures 50–2 wilful misconduct Collision Regulations, disobeying 402 compulsory insurance 735 Criminalisation Directives on ship-source pollution 62 defined 774 passenger claims 811 and recklessness 776 WRC (Wreck Removal Convention) 2007 application 731–2 coming into force 736 compulsory insurance 734–5 ‘convention area,’ defined 731–2 definitions 731–2 , 733 effect 759–60 liability of registered owner 734 ‘maritime casualty,’ defined 732 objectives 732 obligations under 733 and places of refuge 735–6 proportionality and reasonableness 732–3 and salvors 735 ‘wreck,’ defined 732 wrecks abandoned 693–4 duty to mark 694 harbour authorities, statutory duties in relation to 692–5 removal limitation of liability claims 758–61 LLMC (Convention on Limitation of Liability for Maritime Clauses) 1976 759–60 UK reservation for expenses 759 Wreck Removal Convention (WRC) 2007 see WRC (Wreck Removal Convention) 2007 salvage 490 unmarked, liability to third parties for 694–5 York-Antwerp Rules (YAR) 653 of 1890 656 of 1924 656, 657, 661 of 1950 656 of 1974 656, 657, 658, 659 of 1994 656 of 2004 656–7 , 659 and BIMCO 657 construction commercial practicability over principle 658–9 conflict between lettered and numbered rules 657–8 expenses at port of refuge (Rule XI) 656, 661, 663 origin and application 656–7 provision of funds (Rule XX) 656, 661 Rule A 661, 664 Rule C 665 Rule D 666 Rule E 665 Rule Paramount added to 658, 664 salvage remuneration (Rule VI) 656 temporary repairs (Rule XIV) 656, 659 voluntary nature of 657

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, please enter your details below to log in.

Enter your email address to log in as a user on your corporate account.
Remember me on this computer

Not yet an i-law subscriber?

Devices

Request a trial Find out more