Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - LOF DIGEST (3RD EDITION)
LOF DIGEST (3rd Edition). Lloyd Lloyd, editor. Lloyd’s of London, London (1994).
The need for publication of maritime arbitration awards is most easily seen by looking at salvage arbitrations under Lloyd’s Open Forms (“LOF”). There are only a few part-time arbitrators—all Q.C.s—and one appeal arbitrator to impose consistency. Salvage awards are rarely appealed to the courts. For good reason. The Admiralty Judge is often a former salvage arbitrator himself. To bring the case to him is like having a second level of appeal arbitrator. From his determinations, the case would go to the Court of Appeal, where most probably only one out of the three judges hearing it would be familiar with maritime matters and that judge himself might have been a former salvage arbitrator. Another reason for the paucity of appeals is that most often the salvor has received security for his award from the hull, cargo and freight underwriters. The certainty of payment reduces appeals for the most part either to disappointed salvors or to underwriters who seek to make new law by way of a test case. There is, then, very little binding precedent in the courts. Instead, a private system of more-or-less binding precedent exists in the rulings of the appeal arbitrator.
With only a total of about 50 awards a year, it is not surprising that awards circulate quietly among a select group of the solicitors and barristers who specialize in salvage work, as well as some professional salvors in the International Salvage Union. All of the salvage arbitrators receive copies of each other’s awards. The arbitrators (except the appeal arbitrator) are also actively in practice as salvage advocates. (Such close connection between bench and bar has a very long history in admiralty matters; see Dickens, David Copperfield, Chap. 23, describing Doctors’ Commons: “you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise”).
Other commercial maritime arbitration awards are also passed from hand to hand in the United Kingdom. They are said to be “confidential” but are not truly private documents, like prenuptial agreements or trade secrets, disclosure of which by a lawyer acting on his own would constitute professional misconduct. Instead, British judges subject maritime arbitration awards to what could be described as the “sore loser doctrine”—they are inadmissible as evidence and uncitable as precedent because it is presumed that the parties did not consent to public disclosure. It would make far more sense, and be highly beneficial, if the presumption were reversed. Awards would then openly circulate on the theory that, unless all parties otherwise agreed to keep the results secret, it would be presumed they did not object to public disclosure. But, as things now stand in London, the shipping industry must cope as best it can with the handicaps imposed by the courts in order to keep itself informed about new decisions of trade disputes.
While at least one maritime arbitrator boldly describes unpublished awards in print by name (D. Davies, Commencement of Laytime, 2nd edn, 1992) the custom has grown up, if summaries of awards are published at all, to redact all references to the parties and ships involved (see Lloyd’s Maritime Law Newsletter). Only Victorian pornography (the undersigned disclaims any extensive familiarity), with its substitution of initials for names, was handled as delicately as maritime arbitration awards are handled today. Recent rulings of one Commercial Court judge, cloaking commercial arbitration awards with more confidentiality than they are commonly given by the lawyers or the parties, casts doubt upon the whole state of affairs: Insurance Co. v. Lloyd’s Syndicate
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