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ISSUE 208 November 2012/January 2013
Ship safety and high reliability
organisations PAGE 4
Rough seas ahead for operators of
passenger ships PAGE 8
Have a good trip –
Drugs and P&I cover PAGE 20
GARDNEWS
Claes IsacsonChief Executive Officer
2
The end of the summer sees the halfway
point of our financial year, and the start of
what is always a very busy autumn as the
renewal season gets under way. We are
pleased to report a good result for the first
half year, in what continue to be competitive
market conditions and difficult economic
times.
Our combined net ratio was 105 per cent,
gross written premium rose by five per cent
to USD 724 million and we remain strongly
capitalised with free reserves of USD 817
million. The results for the first half of the
2012 policy year were impacted by a number
of large claims during the first quarter;
however, the underlying profitability of the
insurance portfolio was acceptable. While
investment results reflect the ongoing low
interest rate environment and volatility in the
financial markets, our aim is to outperform
the benchmark over time.
Refining our offeringIt has been nearly four years since we took
the decision to re-structure our underwriting
processes to better meet the needs of our
Members and clients by reflecting the way
they are organised. Based on our experiences
during this period, we have looked at our
structures and processes, and decided to
refine them to deliver a more effective
service.
A major part of this has been to merge some
of our underwriting teams – reducing the
overall number by four – so that we can
increase the depth of resource available and
ensure even closer co-operation. We are also
investing significantly in product development
and distribution.
Local and global Gard has invested considerable resources over
the last decade to create a genuinely global
footprint – designed to offer a first class
service wherever we are needed. We are
continuing to build on this strategy by
ensuring that we go where our Members and
clients are going, and where growth is being
driven by the emerging markets.
In the first instance we are looking at Brazil –
one of the world’s fastest growing economies.
While the P&I clubs have always had access to
the Brazilian market, the same has not been
the case for foreign marine and energy
insurers. As a result, while Gard P&I has had a
portfolio of Brazilian business for more than
20 years, Gard Marine & Energy Limited (Gard
M&E) has only been able to compete in a very
limited way.
In August we began the process of seeking to
establish Gard M&E as an admitted reinsurer
in Brazil, with a representative office in Rio
de Janeiro, which will have a low-key
underwriting presence, but no claims
handling capabilities. With the quantity and
value of assets increasing rapidly in the
country, we hope that, by having a local
presence, we can build closer relationships
with maritime businesses in the region.
We also continue to invest in more mature
markets. For example, we are seeking to
widen our Japanese presence to offer greater
‘on the ground’ support in Imabari. A
significant number of shipowners operate
from the west of Japan, so we are opening an
office there to get to understand local needs,
and decide on what resources we should
provide to meet them going forward.
This is a pivotal time of year. The recent
past has been dominated by major marine
claims, and these continue to develop –
the losses on the COSTA CONCORDIA
for example have increased by a further
USD 100 million. As we move through
the second half of the year, we need to
balance the technical rating that is
required in such tough market conditions
with the long-term support we offer to our
Members and clients. Our focus, as always,
is to plot the steadiest course forward. �
Dealing with exceptionalcircumstances
“While investment resultsreflect the ongoing lowinterest rate environmentand volatility in the financialmarkets, our aim is tooutperform the benchmarkover time.”
“Gard has investedconsiderable resources overthe last decade to create agenuinely global footprint –designed to offer a first classservice wherever we areneeded.”
In this issue:
© Gard AS. Gard News is published quarterly by Gard AS, Arendal, Norway.
Editorial Committee: Claudia Storvik (Editor), Leif Erik Abrahamsen, Peter Chard, Knut-Morten Finckenhagen,
Terje Paulsen, Nick Platt, Geir Sandnes. Production: Claire Osborne.
Disclaimer: The information contained in Gard News is provided for general information purposes only. Whilst we
have taken every care to ensure the accuracy and quality of the information provided, Gard can accept no
responsibility in respect of any loss or damage of any kind whatsoever which may arise from reliance on
information contained in Gard News, regardless of whether such information originates from Gard, its
correspondents or other contributors.
Federal Supreme Court of Australia decides that
Section 11 of COGSA 91 applies to voyage
charterparties.
Page 12.
Shipowners and operators should ensure that
guarantees from Chinese companies are
carefully drafted, approved and registered
with SAFE.
Page 14.
2 Message from the Chief Executive Officer – Dealing with exceptional circumstances
4 Ship safety and high reliability organisations
8 Rough seas ahead for operators of passenger ships
10 A brief update on the Maritime Labour Convention 2006
12 Australian law – Arbitration clauses in voyage charterparties, again
14 China – Charterparty performance guarantees – It is better to be SAFE than sorry
16 Arbitration in China – CIETAC
17 Indian law – Intervention of Indian courts in foreign arbitrations
18 Discovery in aid of foreign arbitrations in the US – A new interpretation
of an old statute
20 Have a good trip – Drugs and P&I cover
23 ECDIS implementation
24 MARPOL – Enforcement of North American Emission Control Area means
close scrutiny of documentary compliance
25 Maintenance and cure benefits in the US – Developments in the Second Circuit
26 The PRESTIGE – Spain v. ABS, final round
26 Hong Kong law – Collision liability apportionment update – The HE DA 98
27 Tonnage measurement of ships
28 Staff news
28 Gard P&I Member Circulars and Loss Prevention updates, summer 2012
Gard NewsNovember 2012/January 2013
MARPOL – Enforcement of North American
Emission Control Area means close scrutiny of
documentary evidence.
Page 24.
and more...
3
Gard News welcomes contributions from
external authors. Articles must not have
been published previously or be under
consideration for publication elsewhere.
Contributors may submit articles for
consideration for publication to
4
January 2012. I have found my seat. An
announcement informs: “Good afternoon and
welcome on board this flight to Schiphol
Airport. We are now fuelled up and ready, but
are waiting for a last remaining passenger”.
A few minutes go by before a middle-aged
man enters the plane in a hurry and finds his
seat next to mine. He seems too determined
to be a businessman, and too well-dressed to
be a blue-collar worker. My suspicion that he
works in shipping is soon confirmed: he is a
technical superintendent on his way back
from a docking. The talking gets started.
It is the “docking story” we have heard
several times before. First, he tells me about
all the unforeseen challenges. Technical
problems had been held back by the
engineers on board. The man continues:
“I even gave the chief engineer a warning last
time he reported an incident – I told him that
this was his last chance – and now he is
disappointing me again by holding back
important information…”. But, all in all, the
superintendent was happy with the docking.
True enough, they had had to cut a few
corners and turn a blind eye to some of the
company procedures – but they made it
on time and felt they deserved a treat, so
he arranged a night out with all the crew at
the end.
So the superintendent was happy with this
achievement, but had he really done the
company a favour – or rather the opposite? It
is easy to blame a chief engineer, or anybody
else for that matter, when something goes
wrong – and we tend to avoid asking the
important questions:
1. Have we done enough to foster open
dialogue when it comes to on-board
problems?
2. What is the likely consequence of giving a
warning when someone reports an incident?
3. What are the consequences of a shore
manager turning a blind eye when shortcuts
are taken?
4. Are you aware of the signals you give
when you reward the crew for reaching a
certain deadline despite knowing that corners
have been cut?
Like it or not, there are few shipping
companies that can truly say “yes” to all four
of these questions. And why is this important?
Ship safety and high reliability organisationsBy Torkel Soma, Partner, Propel Maritime Management Consulting, Oslo. How can companies build a culture
that nurtures high reliability?
“If you experience a majoraccident in your fleet, itwould not only put humanlives at risk, but it wouldalso harm your companycommercially in terms ofincreased costs, cancelledcontracts, off-hire and loss of reputation.”
5
It is important because at least 80 per cent of
all major accidents involve human error. And
if you experience a major accident in your
fleet, it would not only put human lives at
risk, but it would also harm your company
commercially in terms of increased costs,
cancelled contracts, off-hire and loss of
reputation.
How you behave as a shore manager greatly
influences the behaviour of the crew on
board. Through the way you act, you show
the crew what the company’s “true” priorities
are. Hence, it is your leadership style and
commitment that make the difference.
Here are some other situations to which you,
as a shore manager, should pay special
attention and act as a role model for the
company values:
Visits on board – do you communicate
expectations and goals clearly, and do you
talk with the crew or only to them?
Officers’ appraisal – do you know the
crew well enough to make a thorough
assessment?
Docking – do you still comply with the
company safety objectives?
Officers’ seminars – do you attend, do you
prepare well enough and behave as a good
role model?
Near-misses – do you encourage crews to
report near-misses and to suggest
improvements? Do you register and analyse
these reports, and issue fleet circulars about
best practices based on them?
Safe behaviour does not happen bychanceLeadership can be defined as social influence
over a group of people to achieve a common
goal and it is strongly interlinked with
company culture – leadership nurtures culture
(and vice versa). This is how leadership
commitment and company culture go hand in
hand. Hence, as a leader you must both think
about how you achieve the status and trust
needed to influence others and how you
actually use your status and trust. When you
learn to see the signs, it is quite easy to see
the dominating leadership style of your
company. The superintendent on his way back
from the docking is an example of how easily
your company can be diagnosed. In general,
companies can be divided into four cultural
categories, in which different cultural signs
dominate. The four categories range from the
least committed: “Laissez-faire”, to the most
committed: “High reliability”. These four
cultural categories are described below.
Laissez-faire
Low interest in safety. Here the crew see their
managers (on board and/or ashore) as
indifferent to the prevention of failures.
Responsibilities are not followed up. If
somebody fails or makes a mistake there is a
fair chance that nobody will care or notice.
Hence, the near miss reporting is low. Failure
is seen as a problem caused by the crew; it is
thought that little can be done to prevent
problems from occurring. Initiatives to
improve reliability are driven by external
pressure from clients, class, etc.
Cover-up
Self-interest dominates over company
interest. For example, managers’ priority is to
maintain their own power, to avoid conflict
and play down problems. If you fail or
criticise, you are seen as a threat to the power
and the harmony of the working climate.
As a result, people are afraid of failing,
reluctant to speak up, have a rigid focus on
responsibilities and focus mostly on overall
results such as budgets and time of arrival.
There is little co-operation between
departments. Hence, company interests that
are dependent upon several departments
such as planning of off-hire, delivery of
spares, communication with crew, cargo
troubleshooting, etc., are given lower priority.
Normative
Company interest starts to dominate over self-
interest. Here managers are oriented towards
routines and compliance with procedures.
Reliability is seen as something they have (or
don’t have), with reference to the quality of
their management systems. If you fail, this is
seen as a need either to improve procedures
or to enforce compliance. Lessons learned are
efficiently used to share such experience.
People feel that their managers treat them
relatively equitably, but each individual’s
positive or negative behaviour can easily be
overlooked. While managers see the need for
more supervision, the workforce sees the
need for more care and personal touch.
High reliability
The workforce sees their managers as
committed to both high reliability and
efficient ship management. Managers are
seen as trustworthy and are familiar with
daily work challenges (beyond routines). It
is acknowledged that high reliability is
dependent on how things are done in daily
work and is a result of good teamwork
and co-operation. If somebody fails, it is seen
as an opportunity to learn both for the crew
and shore management. Everybody is
constantly trying to improve reliability,
implying high flexibility and encouragement
to critical views.
How do we develop a high reliabilityculture?In many shipping companies, the signs of
“cover-up” dominate. Higher sustainable
safety performance is not achieved by chance.
Something has to be actively done differently
to reach a higher safety performance. The
description of how to prevent and manage
errors is based on the acknowledgement that
no matter how hard we work to prevent
errors, some errors will occur anyway.
Therefore the main principle for you as a
manager is that we can not only focus on
preventing errors, but we also need to look at
what we can do to handle them and diminish
their consequence. This principle comprises a
three-layered approach on the ability to:
1. Do it right in the first place. Preventing
errors from occurring by following routines,
and furthermore assess and prepare based on
potential threats.
2. Manage errors when they occur. Everybody
makes mistakes. Hence, the important thing
is to prevent errors from developing into a
critical situation by searching for and
correcting errors.
3. Handling critical situations. Emergency and
recovery actions.
“As a leader you must both think about how youachieve the status and trust needed to influence othersand how you actually useyour status and trust.”
“Higher sustainable safety performance is not achieved by chance.”
“It is acknowledged thathigh reliability is dependenton how things are done in daily work and is a resultof good teamwork and co-operation.”
6
If you adopt an authoritarian leadership style
you may to some extent achieve good results
in the first and third category, but you will (as
the superintendent in the docking) fail
considerably in the second one. In a way, this
is shipping in a nutshell. We have spent the
last decade building up management
systems, procedures and checklists to develop
good routines (point 1). Furthermore, research
and accident investigations demonstrate that
shipping is fairly good in handling
emergencies (point 3). Our weak spot is to
manage errors when they occur (point 2) as it
requires a social environment where speaking
openly about concerns, mistakes and
potential threats is appreciated.
Cross-industry research has shown that
companies that operate with high reliability
in environments of rapid change and high-risk
exposure have the signs of “high reliability”.
The way to reach “high reliability” is not
straightforward, but three steps that should
be given special attention are outlined below.
Understand the realities of theoperationIn “high reliability” companies, the full line of
management has clear awareness and
understanding of the daily work situation on
board, and of its limitations and challenges.
Managers are especially aware of their
relationship with the seafarers because they
know how difficult it can be to speak up about
ideas and concerns. This operational insight
improves decision-making and management’s
ability to manage conflict between different
goals such as compliance versus getting the
job done in time.
Shipping companies that do not satisfy the
requirements of “high reliability” may often
openly express statements revealing their
ignorance such as “our procedures are ok, the
problem is the crew who do not follow them”,
“100 per cent of our seafarers follow the
procedures all the time” and “we never told
him to take a risk like that – our regulations
are clear that safety always comes first”.
Another sign is when on-board operations are
interpreted through a few performance
indicators, missing the total picture.
You as a manager must actively position
yourself to be sensitive to the on-board
operation. It may imply that you need to visit
the ships more often. Here are some steps
you should consider:
1. You, as a manager, can not sit and wait
for the crew to tell you about operational
concerns. Due to our communication
barriers (inherited from our history and
multinational environment) an “open door
policy” is not enough. You have to actively
go out there and demonstrate that you
need to understand the daily on-board
work challenges. Use crew seminars, ship
visits, crew training sessions, etc., as
opportunities to meet the crew.
“Managers are especiallyaware of their relationshipwith the seafarers becausethey know how difficult it can be to speak up aboutideas and concerns.”
Managing errors requires an environment where speaking openly about concerns and mistakes is appreciated.
7
2. You, as a manager, have to know the
names of the members of your ship’s
management team. You have to know the
personalities of your subordinates and their
family situation. What is it that motivates
them and what are their fears? You have to
convince the captain and officers that they
have support from you and that you trust their
capabilities.
3. You need to have an overview of the ship’s
social atmosphere, personnel strengths and
weaknesses, technical limitations, cargo
characteristics, challenges arising in different
ports, importance of different roles on board,
etc. Be aware that it is an ”overview” you are
aiming for and not all the details.
Show that you truly care for safetyand management of errorsIn “high reliability” companies the whole
organisation works based on the hypothesis
that errors, deviations and non-conformities
are symptoms of underlying weaknesses,
even though they seem to be isolated
problems. For example, if you receive a non-
conformity report, the focus is not only to
close it, but to understand how it developed,
why it has not been detected earlier, whether
there may be similar cases, etc. Hence, errors
are discussed in detail. Furthermore, it is
acknowledged that it is a difficult task to
manage. When we make a mistake ourselves,
often we can easily pinpoint the external
factors that influenced our beliefs or acts.
However, we have a human tendency to
simplify how we judge other people through
stereotypes and assuming that actions are
determined by personal traits. If you simplify
less and discuss more you will also see more.
Shipping companies that do not have this
characteristic have an evident focus on quick
fixes, gap closing and corrections. People
involved in incidents may be sanctioned or
dismissed.
You, as a manager, must actively break the
communication barrier that prevents dialogue
regarding concerns. There are some steps you
should follow:
1. Most crew feel that they are safe enough –
so why bother about errors? You must give
them clear expectations to live up to and
provide an understanding of the importance
of accident prevention. Convince your crew
and colleagues that it is possible to prevent
all accidents and also that prevention is
important for the company and the
environment. It is vital that self-interests have
lower priority.
2. Be a role model in addressing concerns. If
you show that you have also made mistakes
and speak openly about it, you will contribute
to reducing the communication barrier. The
overriding principle must be that errors
happen, but it is unacceptable not to act upon
them or learn from them.
3. Actively address that it is a sign of strength
to allow others to check the quality of your
own work. You should be happy if somebody
cared to question how you do your job. When
it comes to safety there are no hierarchies or
ranks. Everybody must be empowered to
speak up about concerns. When you do all of
the above, you must communicate that these
are the principles that you try to adhere to,
and encourage others to also question these
principles and your own behaviour.
Involve your colleagues and managers Improving the organisational capabilities can
put you and your colleagues in a vulnerable
situation. The side effect of openness is that
weaknesses are brought to the surface. This
is, however, what you want to achieve,
because then you and your colleagues can act
upon the weaknesses before they develop
into critical situations and losses. But be
aware that this is a delicate process and, if
you are not prepared to handle it and seek to
avoid blame, you will fall back to the “cover-
up” level. To succeed you need backing from
your colleagues and managers.
Involve your colleagues and managers in your
initiative. Show the need for change by using
examples from your company’s own
operation where weaknesses have not been
addressed quickly enough. For example:
– How often is the Designated Person Ashore
(DPA) called up by the crew?
– How often are breaches of procedures
reported and there are no consequences?
– How often are personal mistakes made by
the captain reported to shore?
– How often do you get feedback from the
crew about unclear procedures?
Agree on how you all approach subordinates.
You, as a management team, must have one
voice to earn the trust of your crew and other
subordinates. Therefore, you must ensure that
you are working towards the same goal by
agreeing on some rules, both promoting
openness and how you all respond to errors,
concerns and failures.
When new weaknesses surface, you should
share this as a success story – not as a failure.
Openness is exactly what you want to
achieve. Make people aware of what could
have happened if the weakness had not been
discovered. Discuss how you, as managers,
could help bring this weakness to the surface
even earlier the next time.
ConclusionThis article has tried to beam a searchlight on
an important control mechanism which is
often lacking in shipping.1 There are huge
differences in leadership styles implying that
there is a huge improvement potential in
professional leadership – ensuring efficient
and reliable operations. In order to build a
culture that nurtures high reliability, the
whole line of management must be aware of
the cultural signs that influence safety
performance. Above all, the managers must
build trust and learn the leadership skills for
nurturing high reliability. In this task the
company superintendent is key, as he
represents the link between ship and shore
personnel. �
1 See also the article “Safety culture – Managing
conflicting goals in shipping operation” in Gard News
issue No. 200, which discusses how culture
influences work practices.
“We have a human tendency to simplify how we judge other peoplethrough stereotypes andassuming that actions aredetermined by personaltraits.”
“Show the need for changeby using examples from your company’s ownoperation where weaknesses have not been addressed quicklyenough.”
“You must ensure that youare working towards thesame goal by agreeing onsome rules, both promotingopenness and how you allrespond to errors, concernsand failures.”
8
2012 is about to become a significant year for
operators of passenger ships. Enormous
attention was given to the COSTA CONCORDIA
incident earlier in the year by media,
insurance markets and others. Later in the
year attentive eyes may again turn to the
maritime passenger industry, as two European
Union (EU) regulations on sea passenger
rights enter into force. The changes introduced
by these regulations are obviously positive
improvements for passengers. However,
together with better protection of passengers’
rights come problems for shipowners and
their insurers.
International, regional and domestic –A multifaceted legal system Legislation relating to sea passengers is
becoming an increasingly complex area of the
law. The international regime based on the
1974 Athens Convention1 (as amended by the
1976 Protocol) was designed to consolidate
and harmonise earlier conventions dealing
with passengers and luggage. It establishes a
regime of liability for damage suffered by
passengers carried on a sea-going vessel and
makes a carrier liable for damage or loss
suffered by a passenger if the incident
causing the damage or loss occurred in the
course of the carriage and was due to the
fault or neglect of the carrier. Unless the
carrier acted with intent to cause such
damage, or recklessly and with knowledge
that such damage would probably result, he
can limit his liability. Later protocols of 1990
and 2002 are not yet in force. The 1990
Protocol, which aimed to increase limits of
liability, was superseded by the 2002 Protocol
(Athens 2002) and will not enter into force.
Athens 2002, however, is expected to come
into effect relatively soon, 12 months after
the required number of states has signed it.
In addition to international regulations, there
are various regional provisions, for instance
various regulations developed and applicable
within the EU, such as the Package Travel
Directive,2 and legislation in the US, such as
the Americans with Disabilities Act (ADA) of
1990. A country may also have its own
domestic sea passenger laws that regulate
vital criteria such as the legal basis for
compensation, burden of proof, causal link,
time bar, venue, calculation of compensation,
etc. As a result, conflicts of laws and
jurisdictional disputes are not uncommon.
Market expectationsAbove and beyond the legal complexity, the
picture is spiced up by a variety of passenger
expectations and operators’ commercial
interests. Passengers, as most consumers,
will want to get no less than good and proper
service, regardless of any minimum
requirements of the law. They want to feel
cared for and appreciated, after all they are
paying for the service, so “minimum” may not
be enough. The operator, on the other hand,
may strive to be perceived in the market as a
serious player, to develop and keep a good
market reputation, winning passengers’
preference because of the standard of the
ships, destinations and service level.
Rough seas ahead for operators of passenger ships
A review of the 2002 Protocol to the Athens Convention and
other regulations applicable to sea passengers looming on
the horizon.
1 Athens Convention relating to the Carriage of
Passengers and their Luggage by Sea (PAL).2 EU Council Directive 90/314/EEC.
“The international regimebased on the 1974 AthensConvention was designed toconsolidate and harmoniseearlier conventions dealingwith passengers andluggage.”
9
New regulationsThere are three major legal shifts relating to
sea passengers that lie within the near future:
Athens 2002, an international set of rules that
will take passenger rights to a new level, and
two new EU regulations – Regulation
392/2009 Passenger Liability Regulation
(Passenger Liability Regulation) and
Regulation 1177/2012 Rights of Passengers
when travelling by Sea and Inland Waterway
(Passenger Rights Regulations). As indicated
above, the EU regulations are regional for
Europe, and not applicable world-wide like
Athens 2002. That said, the EU regulations will
still affect a big portion of passengers by sea.3
Athens “through the back door”Athens 2002 has not yet been ratified by a
sufficient number of states in order to enter
into force; in September 2012 two ratifications
were still needed.4 Once in force, Athens 2002
will introduce compulsory insurance to cover
passengers on ships and raise the limits of
liability of the Athens Convention. It contains
mechanisms which will make it easier to
increase limits again in the future, enabling a
faster response to economic development. It
introduces more effective mechanisms to
assist passengers in obtaining compensation.
These include replacing the fault-based
liability system with a strict liability system
for so-called “shipping incidents” and an
obligation on the shipowner to produce proof
of insurance up to a level of SDR 250,000 per
passenger. These requirements will make it
easier for passengers to get compensation
following a casualty.
The term “shipping incidents” refers to
shipwreck, capsizing, collision or stranding of
the ship, explosion or fire in the ship, or defect
in the ship. All other incidents aboard a vessel
which cause injury to or death of a passenger,
or damage to his or her belongings, are non-
shipping incidents. An example of the latter
may be slip and fall accidents due to greasy
substance on the floor or food poisoning in
the ship’s restaurant. In a literal interpretation
of Athens 2002, heavy weather incidents may
be considered non-shipping; however, it
remains to be seen how the courts will rule
on this point.
Carrier’s liabilityThe importance of the distinction between
shipping and non-shipping incidents relates
particularly to the legal basis of the carrier’s
liability.
In personal injury or death cases, if the
personal injury or death occurred as a result of
a shipping incident the legal basis will be
strict liability of the carrier5 for up to SDR
250,000 per passenger on each distinct
occasion multiplied by the number of
passengers the ship is certified to carry. For
liability above SDR 250,000 for personal injury
or death cases resulting from a shipping
incident the legal basis shifts to negligence,
but with a reversed burden of proof, i.e., the
carrier is prima facie liable for the loss but can
be relieved from liability if he can prove that
the incident which caused the loss did not
result from his fault or neglect. There is an
overall liability cap of SDR 400,000 per
passenger (i.e., if the loss or damage exceeds
SDR 250,000, the carrier will be liable for up
to SDR 400,000 per passenger on each distinct
occasion unless he shows the incident causing
the loss occurred without his fault or neglect).
For loss of life and personal injury resulting
from non-shipping incidents, liability is fault
based. The burden of proof lies with the
claimant.
For loss or damage to luggage liability is
based on fault and the burden of proof
depends on the type of luggage in question.
The liability of the carrier only includes loss
arising from incidents that occurred in the
course of the carriage. The burden of proving
that the incident which caused the loss
occurred in the course of the carriage, and the
extent of the loss, lies with the claimant.
The limits contained in Athens 2002 set a
maximum ceiling, empowering, but not
compelling, national courts to compensate for
death, injury or damage up to these limits.
Athens 2002 also includes an “opt-out”
clause, enabling state parties to retain or
introduce higher limits of liability, or unlimited
liability.
As under the Athens Convention, the time bar
for bringing claims against the carrier is two
years from the date of disembarkation. This is
a shorter time bar than for personal injury and
death claims ashore, which tends to be three
years or more.
Evidence of financial responsibilityAthens 2002 requires carriers to maintain
insurance or other financial security, such as a
guarantee from a bank or similar financial
institution, to cover the limits for strict liability
in respect of death or personal injury to
passengers (not less than 250,000 SDR per
passenger on each distinct occasion). This
evidence of financial security, commonly
known as COFRs6 or blue cards, will be
provided by P&I Clubs for the liabilities for
death and injury covered by them. However,
P&I Clubs do not cover war risks, so after the
International Group expressed concern to the
IMO about the absence of a terrorism
exclusion under Athens 2002, the IMO Legal
Committee adopted guidelines which
provided the dual certification of insurance
required, so that a separate certificate
covering war and terrorism liabilities will be
provided by war risk insurers.
3 EU regulations, as opposed to directives, become
automatically applicable in each member state from
the date stipulated by the regulation. The provisions
can be directly enforced by third parties in the courts
of member states and where there is a conflict
between the regulation and domestic law the
provisions of the regulation take precedence. 4 However, EU Regulation 392/2009 implements
provisions of Athens 2002 directly into the 27 EU
member states from 31st December 2012 (see more
on this below).5 The carrier is liable unless he proves that the
incident resulted from an act of war, hostilities, civil
war, insurrection or a natural phenomenon of an
exceptional, inevitable and irresistible character, or
was wholly caused by an act or omission done with
the intent to cause the incident by a third party.6 Certificates of financial responsibility.
“The importance of thedistinction between shippingand non-shipping incidentsrelates particularly to thelegal basis of the carrier’sliability.”
“The liability of the carrieronly includes loss arisingfrom incidents that occurredin the course of thecarriage.”
“P&I Clubs do not cover war risks, so after theInternational Groupexpressed concern to the IMO about the absenceof a terrorism exclusionunder Athens 2002, the IMO Legal Committee adoptedguidelines which providedthe dual certification ofinsurance required.”
On 20th August 2012 the International Labour
Organisation (ILO) announced what many
have been waiting for a long time: with the
recent ratifications by Russia and the
Philippines, the Maritime Labour Convention
(MLC) 2006 has finally reached its
requirement of 30 signatories and therefore
will enter into force on 20th August 2013.1
A better future lies ahead for many of the
world’s seafarers. MLC 2006 provides
comprehensive rights and protection for the
world’s more than 1.2 million seafarers. It
aims to deliver better working conditions,
inter alia by means of minimum requirements
for seafarers to work on board ships,
conditions of employment, medical care,
social security protection as well as setting
standards for accommodation, recreational
facilities, food and catering on board.
A brief update on the MaritimeLabour Convention 2006
Seafarers’ “bill of rights” comes into force in August 2013.
1 For full list of ratifications see
www.ilo.org/dyn/normlex/en/f?p=1000:11300:
0::NO::P11300_INSTRUMENT_ID:312331.
10
There are no similar requirements for other
liabilities, such as for luggage.
EuropeThe date of entry into force of Athens 2002 is
still unknown. But even if Athens 2002 itself
is still not in force, there will be major
changes in Europe come December 2012. This
is because the EU has taken steps to give
effect to key provisions of Athens 2002 in
member states through Regulation 392/2009,
the Passenger Liability Regulation, which
requires implementation directly into the 27
EU member states by 31st December 2012,
regardless of whether or not Athens 2002 has
entered into force by then. It provides a single
set of rules governing the rights of carriers
and sea passengers in the event of an
accident across the EU and adopts Athens
2002 in almost its entirety. Some notable
differences are that the Passenger Liability
Regulation extends the scope of Athens 2002
to cover domestic coastal (but not inland)
vessels, and makes provision for payments of
advanced compensation, as well as
compensation for passenger mobility
equipment.
The entry into force of the Passenger Liability
Regulation before Athens 2002, combined
with the fact that it also applies to domestic
passenger voyages, has raised a number of
unique issues for the P&I Clubs. In particular,
certification and evidence of insurance
generally remains a challenge. Blue cards
need to be in place by 1st January 2013.
Where a non-EU flag vessel is covered by the
Passenger Liability Regulation it will be
required by state parties to have the blue
cards in place when entering or leaving
their ports.
Delay and passenger discriminationIn a separate development, the European
Parliament and the Council have recently
passed Regulation (EU) No 1177/2010
concerning the rights of passengers when
travelling by sea and inland waterway.
Today, many countries have a system where
the passenger only gets compensation for
delay if the carrier is to blame and if the delay
is so significant that a financial loss is
foreseeable and occurred as a direct
consequence of the delay. This will change.
With effect from 18th December 2012, the
Regulation gives passengers certain rights to
information or compensation in the event of
delay or cancellation of a journey, except in
certain extraordinary circumstances or certain
unsafe weather conditions. The burden is on
carriers to prove that such circumstances or
weather conditions have taken place.
Compensation, if any, will be on the basis of
a percentage of the ticket price. Regulation
(EU) No 1177/2010 also affords people with a
disability or reduced mobility protection when
travelling by water, by preventing refusal of
boarding and ensuring free assistance to such
passengers at port terminals and on board as
well as an explicit right to financial
compensation for loss/damage to mobility
equipment.
The Regulation applies to so-called
“passenger services”, defined as commercial
passenger transport operated to a published
timetable. A typical example is a ferry service.
They also apply to “cruise”, defined as
transport service by sea or inland waterway
operated exclusively for pleasure or recreation
with accommodation and facilities exceeding
two nights on board. It applies to any carrier
established within the territory of an EU
member state or offering passenger services
to or from a member state. �
“Today, many countries have a system where the passenger only getscompensation for delay ifthe carrier is to blame and if the delay is so significantthat a financial loss isforeseeable and occurred as a direct consequence of the delay.”
11
In addition, it is reckoned that MLC 2006 will
promote fair competition for quality
shipowners. These are shipowners who over
the years have given priority to their
seafarers’ benefit schemes, to health, safety
and decent working conditions – investments
that require time, money and dedication.
Dodgy shipowners will no longer be able to
save money by being stingy and thereby
improve profit margins through poor crew
management.
Further details on MLC 2006 can be found in
the article “The ILO Maritime Labour
Convention 2006”, published in Gard News
issue No. 194 (May/July 2009), as well as on
the ILO website at www.ilo.org/mlc. The ILO
website also contains a useful FAQ.
Waiting and preparingWhilst waiting for MLC 2006 to come into
force, shipowners and crew managers will
have to prepare their ships, routines and
contracts.
Shipowners also need to arrange for so-called
“financial security” to cover the abandonment
of seafarers (i.e., repatriation costs if the
shipowner is insolvent), a requirement that
has caused some headaches. Who can
provide this?
The P&I Clubs frequently assist their Members
with proof of insurance, such as “blue cards”
or “COFRs”.2 However, such proof can only be
provided for liabilities covered by P&I
insurance, and presently P&I does not cover
payment of repatriation costs to crew
members directly where a shipowner
Member becomes insolvent.
The P&I Clubs in the International Group (IG)
are in the process of considering whether in
the future they may cover repatriation costs
to crew members directly where a shipowner
Member becomes insolvent. If they decide to
cover this risk, a P&I Certificate of Entry may
be sufficient as evidence of “financial
security”. The IG is monitoring the position in
conjunction with shipowners’ organisations.
Looking into the crystal ball – this isonly the beginningMLC 2006 consolidates and updates more than
68 international labour standards related to
the maritime sector adopted over the last 80
years. MLC 2006 sets out seafarers’ rights to
decent conditions of work on a wide range of
subjects, and aims to be globally applicable,
easily understandable, uniformly enforced
and, last but not least, easily updated. The
convention’s stated purpose is that its
provisions at the date of entry into force are
only the first step towards better protection
of seafarers. MLC is already scheduled to be
amended three years after it enters into force
to include even more detailed requirements.
It is intended that the financial security
system mentioned above should provide for
a right of direct action against the financial
security provider. The seafarer will get this
right in cases of repatriation and if claiming
contractual compensation for disability. In a
death case the family will be able to claim.
Further, in addition to paying the cost of
repatriation, reasonable expenses incurred by
the seafarer from the time of abandonment
until the time of repatriation must also be
paid, together with outstanding wages and
other entitlements due to the seafarer under
their employment contract, collective
bargaining agreement or the nation law of
the flag state, limited to a maximum period
of four months.
If the seafarer or his/her family is entitled to
contractual disability or death compensation,
the compensation should be paid without
delay and, if necessary, with interim
payments to avoid hardship.
Documentary evidence of such financial
security is to be posted in the crew
accommodation, empowering the seafarers
by educating them and making it easier for
them to protect their rights.
ConclusionWhen in force, MLC 2006 will be a fully global
instrument, forming the “fourth pillar” of the
International Maritime Organization (IMO)’s
international regulatory regime for quality
shipping.3 Shipping is a genuinely global
business and as such requires international
regulation of global standards applicable to
the entire industry.
The long and uncertain wait for the seafarers’
“bill of rights” is over. Once in force, MLC 2006
will have the potential to make a significant
difference to all seafarers, regardless of
nationality or the flag of the ship on which
they serve. Its entry into force will be the
culmination of over ten years of collective
efforts by the ILO social partners. �
2 Certificates of financial responsibility.3 The other three pillars are MARPOL, SOLAS and STCW.
“MLC 2006 sets out seafarers’rights to decent conditions ofwork on a wide range ofsubjects, and aims to beglobally applicable, easilyunderstandable, uniformlyenforced and, last but notleast, easily updated.”
The Maritime Labour Convention aims to deliver better working conditions to seafarers.
12
An article in Gard News issue No. 2051
reported on the decision of the Supreme Court
of South Australia in the case of Jebsens
Orient Shipping Services A/S & Anor v. Interert
Australia Pty & Ors2 that a voyage
charterparty is not a “sea carriage document”
for the purposes of the Carriage of Goods by
Sea Act 1991 (COGSA 91), with the result that
an arbitration clause in the contract is not
rendered void by its Section 11. However, a
subsequent recent decision of Australia’s
Federal Supreme Court in Dampskibsselskabet
Norden A/S v. Beach Building & Civil Group
Pty Ltd3 has reversed the position, by holding
that Section 11 of COGSA 91 applies to a
voyage charterparty and renders an
arbitration clause in the charterparty invalid.
The Jebsens caseThe facts of this case can be briefly
summarised as follows. Jebsens Orient
Shipping Services (JOSS) had chartered their
vessel to Interfert Australia (Interfert) on the
GENCON 1984 charterparty form for the
carriage of a cargo of fertiliser to Australia.
This contract contained a clause stating that
both parties agreed that the contract between
them was to be governed by and construed in
accordance with English law and furthermore
that any disputes under the charterparty were
to be resolved by arbitration in London.
Following the voyage a dispute arose
concerning freight and arbitration proceedings
were commenced in London. JOSS obtained
two London arbitration awards which they
then sought to enforce in Australia.
Interfert challenged the validity of the London
arbitration awards on the grounds that the
law and arbitration clause in the charterparty,
which they had agreed, was rendered void by
section 11 of COGSA 91. Sections 11(1) and
11(2) of COGSA 91 read as follows:
1. All parties to:
a. a sea carriage document relating to the
carriage of goods from any place in Australia
to any place outside Australia…
are taken to have intended to contract
according to the laws in force at the place of
shipment…
2. An agreement (whether made in Australia
or elsewhere) has no effect so far as it
purports to: …
b. preclude or limit the jurisdiction of a court
of the Commonwealth or of a State or
Territory in respect of a bill of lading or a
document mentioned in subsection (1).
For Interfert’s challenge to be successful they
needed to persuade the court that the voyage
charterparty containing the agreement to
resolve disputes by reference to London
arbitration was a sea carriage document
relating to the carriage of goods.
Australian law –Arbitration clauses in voyage charterparties, again
Federal Supreme Court of Australia
decides that Section 11 of COGSA 91
applies to voyage charterparties.
1 “Australian law – Supreme Court of South Australia
upholds London arbitration clause in voyage
charterparty”.2 [2012] SASC 50.3 [2012] FCA 696.
“The contract contained a clause stating that bothparties agreed that thecontract between them was to be governed by and construed in accordancewith English law.”
13
Although this may seem to be a
straightforward issue, it is one which has
vexed the Australian courts, lawyers and
academics for a number of years. Prior to
COGSA 91 coming into force the Australian
courts considered that a voyage charterparty
was a contract for the carriage of goods and
as such a clause in that contract agreeing to
arbitration abroad was void as it constrained
the jurisdiction of the Australian court.
However, JOSS were able to persuade the
judge that when interpreting COGSA 91 regard
should be made to the definitions of the
amended Hague Rules, as these have been
incorporated into the legislation. As such,
JOSS argued, COGSA 91 deals with the rights
of holders of bills of lading or other similar
documents. Their argument won the day and
many expected that the Federal Court of
Australia would uphold this decision in the
pending case of Dampskibsselskabet Norden
A/S v Beach Building & Civil Group Pty Ltd.
Unfortunately, this was not to be the case.
The Norden caseIn this case Dampskibsselskabet Norden A/S
(Norden) had chartered their vessel to Beach
Building & Civil Group Pty Ltd (Beach) on the
Amwelsh 93 voyage charterparty form to
carry coal from Australia to China. The terms
of the charterparty included a law and
jurisdiction clause which provided for disputes
to be settled by arbitration in London in
accordance with English law.
As is not uncommon in voyage charters, a
dispute arose concerning outstanding
demurrage and Norden commenced
arbitration proceedings. It is understood that
Beach participated fully in the London
arbitration proceedings and indeed had
requested the London arbitrator to establish
and determine whether he had jurisdiction to
hear the dispute. The arbitrator ruled that he
had jurisdiction by virtue of the law and
jurisdiction clause in the charterparty, a fact
which at the time appears to have been
accepted by Beach. At least Beach appeared
to accept the arbitrator’s decision until an
award was given in favour of Norden, who
then sought to enforce the award in Australia.
It was at this point that Beach challenged the
London arbitration award. Essentially, Beach’s
argument was that the voyage charterparty
was entered into for the provision of a vessel
to carry a cargo of coal from Australia to
China. The provisions of COGSA 91 apply to
the import or export of goods from Australia
and Beach argued that section 11 of COGSA 91
therefore applied. It followed that the law and
jurisdiction clause in the charterparty ran
contrary to the provision of clause 11(2) of
COGSA 91 in that the Australian courts
jurisdiction had been limited. Furthermore,
Beach argued, the law and jurisdiction clause
was invalid and as such the awards obtained
should not be capable of enforcement.
COGSA 91As in the case of Jebsens, the decision rested
on whether the judge considered a voyage
charter to be a document for the carriage of
goods. In reaching his decision the judge
interpreted the provisions of COGSA 91 and
the amendments to it in a very literal fashion.
In the original text of COGSA 91 Section 11
only applied to a bill of lading or other
document of title. In the mid-1990s a
working group which was set the task of
improving Australia’s marine cargo liability
regime made a number of recommendations.
Some of these found their way into the
Carriage of Goods by Sea Regulations 1998,
which sought to correct two technical drafting
errors, make a clarificatory amendment plus a
further amendment which had apparently
been requested by the industry. This
amendment was to widen the categories of
shipping documents in line with the intention
that COGSA 91 should apply to all relevant
shipping documents. This amendment
deleted the reference to “a bill of lading or
similar document of title” and replaced it with
“a sea carriage document to which, or relating
to a contract of which, the amended Hague
Rules apply”. The judge believed that a
voyage charterparty fell within that class of
documents and found in Beach’s favour.
Section 11 of COGSA 91 applied, the law and
jurisdiction clause in the charterparty ran
contrary to Section 11(2) and therefore the
arbitration clause was invalid.
The decision in Norden is a Federal Supreme
Court decision and as such is a higher
authority than the Jebsens case, obliging
inferior courts to follow it. There is a feeling
that the Norden case is ripe for appeal but it
is thought that Beach may be out of business
or in administration and thus there may not
be any desire on Norden’s part to challenge
the decision. Consequently, the decision will
remain unless a new case comes along to
challenge it or if the federal government
decides to clarify further exactly what the
legislation in COGSA 91 is designed to do.
Where does this decision leaveMembers?The current position is that if the Members
have a voyage charterparty for shipment of
goods out of or into Australia they will be
caught by the Norden decision and any
agreement in that contract for arbitration
outside Australia will be considered void. This
may work in their favour if a claim is being
brought against them. But if Members are
caught in arbitration or have an award in their
favour against an Australian company then
there may be problems in enforcing that
award in Australia, as the courts will be bound
to follow the Norden decision.
In such situations, it may be beneficial for
Members to attempt to obtain security for
their claim. Such action may have the useful
outcome of prompting negotiations to settle
the dispute without recourse to proceedings.
If an attempt is made to enforce against
assets held by an Australian company outside
Australia, for example in England, then the
Australian company that is bound to pay
under the award may raise as an argument or
defence to the enforcement proceedings in
the UK that the enforcement is contrary to
Australian law. It remains to be seen how
robust an approach the courts would take in
such a scenario.
Finally, although arbitration abroad may be
void under voyage charterparties, section
11(3) of COGSA 91 may assist if the parties to
the contract want disputes to be resolved by
arbitration. However, to be recognised, and
for any award to be enforced, the arbitration
would need to be held in Australia. �
“It is understood that Beach participated fully in the London arbitrationproceedings and indeed had requested the Londonarbitrator to establish anddetermine whether he hadjurisdiction to hear thedispute.”
“The decision in Norden is a Federal Supreme Courtdecision and as such is ahigher authority than theJebsens case, obliginginferior courts to follow it.”
14
Performance guarantees, usually in the form
of corporate guarantees, are one method
which owners and operators of ships use to
ensure that they will be adequately protected
if charterers default on their obligations
and/or fail to pay hire or other amounts
owing under a charterparty. Good drafting of
performance guarantees can enhance the
prospects of their enforcement. However,
where the guarantor is a Chinese company
and the charterers and/or the owners are not
a Chinese company, it is also essential to
ensure that the (“foreign-related” under the
Chinese law) performance guarantee has
been approved and registered with the
Chinese State Administration of Foreign
Exchange (SAFE).1 These are requirements all
too often overlooked by owners and operators
to their detriment.2
Enforcement of performanceguaranteesA performance guarantee can be of
considerable comfort to owners and operators
in circumstances where there are concerns
that their prospective charterers might not be
able to meet their obligations. Concerns might
arise where, for example, the owners or
operators have no previous experience of
working with the particular charterer or
where, as is often the case, the charterer is a
smaller subsidiary company of (or even a
special purpose vehicle for) a larger parent
company, with few assets of its own.
Performance guarantees from larger and
more obviously liquid companies can
therefore be powerful inducements to owners
entering into charterparty contracts, where
there are concerns that the chartering
company itself is reliable or substantial
enough to meet its obligations under a
charter. However, whilst good business might
have been secured in the meantime,
owners and operators need to take
care to ensure their performance guarantee
will be enforceable against the parent
company/guarantor if things turn bad.
There are a number of general points which
owners and operators should consider with
respect to the enforcement of performance
guarantees, including:
– The solvency of the guarantor should
be ascertained before the performance
guarantee is accepted.
– The guarantor should bind themselves jointly
and severally with the charterers, and as a
primary obligor (i.e., not merely a surety).
– The guarantee should be a continuing
security (i.e., not discharged by any interim
or partial payments made by the charterers or
the guarantor).
China – Charterparty performanceguarantees – It is better to beSAFE than sorry
Shipowners and operators should
ensure that guarantees from Chinese
companies are carefully drafted,
approved and registered with SAFE.
1 The Chinese state organisation responsible for the
administration of foreign reserves and foreign
exchange market activities.2 Gard has experience of a number of cases where
owner Members have had difficulty enforcing their
performance guarantees in China by reason of the
guarantees not being SAFE compliant.
15
– The guarantee should be directly and
immediately enforceable against the
guarantor on default of charterers (i.e. owners
should not first have to prove their case in
arbitration or court proceedings to trigger the
guarantor’s liability).
– The guarantee should include its own law
and jurisdiction agreement as the guarantee
is a distinct and separate contract from the
charterparty.
SAFE complianceWhere the guarantor is a Chinese company
and the charterers and/or the owners are not
a Chinese company, there is the added
requirement that the performance guarantee
must be SAFE compliant, which entails that
the performance guarantee:
– Has been approved by SAFE and
– Has been registered with SAFE.
Unlike refund guarantees issued by most
recognised banks in China, performance
guarantees provided by a Chinese company
are not pre-approved.3 SAFE will deal with the
approval of corporate performance guarantees
on a case by case basis. Once approval has
been obtained by the guarantor, they must
still register the corporate performance
guarantee with SAFE.
Owners and operators should note that under
Chinese law, a Chinese company may only
provide a performance guarantee (i.e., a
corporate guarantee) to a foreign party where
the company whose performance is being
guaranteed is its subsidiary.
Owners should take extreme care if presented
with a performance guarantee from a Chinese
company seemingly unrelated to the
charterers. There is a risk that such a
guarantee will be illegal under Chinese law. It
is in any event highly unlikely that a
guarantee from an unrelated company will
have been approved and registered with
SAFE, after such performance guarantee has
been issued.
Owners and operators should therefore ask
for proof that the performance guarantee has
been approved and registered with SAFE. If
the performance guarantee provided by the
Chinese company has been registered, SAFE
will in most, if not all, cases have provided a
certificate of registration.
The downside for owners and operators if
SAFE approval and registration have not been
obtained is that their performance guarantee
will be invalid and unenforceable as a matter
of Chinese law.4
Non-compliant guaranteesWhere owners and operators are already in
possession of performance guarantees that
have not been registered with SAFE, it is likely
to be impractical, if not impossible, to secure
subsequent approval and registration from
SAFE. However, all is not necessarily lost for
owners and operators in this situation. Under
the Securities Law of the People’s Republic
of China (Article 5), where it is established
that the guarantee is invalid, liability will
be borne by each of the parties involved,
i.e., the debtor (charterers), the creditor
(owners/operators) and the Chinese guarantor,
in proportion to their respective fault.5
The Chinese judicial interpretation of the
Securities Law provision (Article 7) says that
in circumstances where the guarantee is
invalid:
– If the creditor is not to blame for the
invalidity of the performance guarantee, then
the debtor and the guarantor will be jointly
and severally liable for the loss of the creditor
under the relevant contract, i.e., the
charterparty.
– If, however, the creditor and the guarantor
are to blame, the liability of the guarantor will
not exceed half of the unpaid liability/debt of
the debtor.
So it seems that the best that owners and
operators can hope for where they hold a
non-SAFE compliant performance guarantee
is to secure payment of 50 per cent of the
amount owing under the charter.
It is possible to include a contractual term in
the performance guarantee that the guarantor
confirms they will register the performance
guarantee with SAFE. This may assist owners
and operators in recovering monies owing
under their charter on the basis of the
guarantor’s breach of warranty under Chinese
contract law.
However, once again this is unlikely to be a
full recovery unless owners and operators can
show that they exercised due diligence to
ensure that SAFE approval and registration
was obtained. Due diligence will be difficult
to prove in circumstances where the owners
and operators arguably should have asked the
guarantor for the SAFE certificate proving
registration, but failed to do so.
ConclusionIt is obviously far better for owners and
operators to ensure in the first instance that
any performance guarantee they accept from
a Chinese guarantor is in respect of a
subsidiary company and that it is SAFE
compliant.
If owners and operators who are considering
accepting a performance guarantee from a
Chinese company guaranteeing the
performance of their charterers remember
only one word from this article, it should be
“SAFE”.
We thank AM Ocean & Co. for their assistance
in the preparation of this article. �
3 The majority of recognised Chinese banks which
regularly provide refund guarantees have already
obtained a “blanket” approval from SAFE for a
certain quota of guarantees per year. This facility has
been available to the banks since 30th July 2010
when SAFE issued a “Notice Concerning the
Administration of Foreign Security Provided by
Chinese Financial Institutions”. It has considerably
simplified the SAFE approval and registration process
insofar as refund guarantees are concerned.
However, it is still advisable to ensure that an
assignment under a refund guarantee is registered
separately with SAFE.4 This may not in itself affect the ability to enforce a
performance guarantee against the foreign assets of
a Chinese guarantor. See The Vine [2010] EWHC
1411 (Comm) where the English court held that it
would not be contrary to English public policy to
enforce a guarantee notwithstanding the fact that it
had been issued in breach of Chinese local law
relating to foreign exchange regulations, i.e., SAFE
requirements.5 This is similar to the principle of contributory
negligence found in the German Civil Law upon
which much of the Chinese Civil Code is based.
“The downside for owners and operators if SAFE approval andregistration have not been obtained is that theirperformance guarantee will be invalid andunenforceable as a matter of Chinese law.”
“Owners should takeextreme care if presentedwith a performanceguarantee from a Chinesecompany seeminglyunrelated to the charterers.”
16
GARD NEWS ISSUE 208 November 2012/January 2013
1 CIETAC arbitration has typically been seen by
foreign parties as preferable to litigation before the
Chinese courts. The perception amongst foreign
parties is that CIETAC rulings are of a high quality
with less risk of local protectionism. CIETAC
procedures are relatively faster and hearings can be
held in English. Chinese counterparties may prefer
CIETAC arbitration because arbitration awards are
more likely to be enforceable in other countries since
China is a party to the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards.
Arbitration in China – CIETAC
The internal rift in China International Economic and Trade ArbitrationCommission deepens.
The on-going internal dispute between China
International Economic and Trade Arbitration
Commission (CIETAC) Beijing and its Shanghai
and South China (Shenzhen) sub-commissions,
which followed the introduction of the CIETAC
Arbitration Rules (2012) on 1st May 2012, has
intensified in recent months, causing
considerable uncertainty for parties who have
agreed to arbitrate in this popular regional
arbitration centre.1
AnnouncementsOn 1st August 2012, CIETAC Beijing announced
that it had suspended the authority of its
Shanghai and South China sub-commissions to
accept and administer arbitrations and
required all parties that have agreed to
arbitrate before the two sub-commissions to
submit their disputes to CIETAC Beijing. The
arbitrations submitted to Beijing are to be
administered by them, though the seat and
hearings will remain in Shanghai or Shenzhen
unless the parties agree otherwise. In response,
the Shanghai and South China sub-commissions
published their own (joint) statement on 4th
August 2012, declaring that they have been
independent arbitration entities since their
establishment, so they consider that the
purported “authorisation” and “suspension of
the authorisation” by Beijing have no legal
foundation and are of no binding effect.
Shanghai and Shenzhen have also made it clear
that they will continue to accept and manage
arbitration cases submitted to them. Shanghai
will use its newly-published arbitration rules
for any cases that it handles after 1st May
2012. Shenzhen will continue using the old
2005 CIETAC rules for any cases submitted to
it after 1st May 2012 until it publishes its new
arbitration rules. It has re-branded itself as
the Shenzhen Court of International
Arbitration (SCIA).
The dispute between CIETAC Beijing and the
Shanghai and South China sub-commissions
has been festering for several months.
Shanghai and South China are the two oldest
and most popular sub-commissions of CIETAC.
There is speculation that Beijing was
concerned that it had been losing control over
its sub-commissions and their associated
revenue. The CIETEC Arbitration Rules (2012),
published by CIETAC Beijing, certainly seek to
exercise greater control of the activities of the
sub-commissions. These new rules:
– Expressly stipulate that a sub-commission is
a branch of CIETAC which is only able to accept
and handle arbitration cases with CIETAC
Beijing’s authorisation. This is a significant
departure from past practice as the old CIETAC
rules simply defined a sub-commission as a
component of CIETAC without stipulating
CIETAC Beijing’s explicit control of the sub-
commissions.
– Provide that if the parties have not specified
in their arbitration agreement to which sub-
commission their dispute should be
submitted, the dispute will be handled by
CIETAC Beijing.
The new CIETAC rules have been seen as
interfering with and potentially reducing the
number of new cases that the sub-
commissions would be allowed to handle. The
Shanghai and South China sub-commissions
have refused to apply the new CIETAC rules.
They have issued various statements affirming
their independence from CIETAC who have in
turn issued their own statements re-affirming
their control.
It is not clear when the dispute might be
resolved or whether the Chinese government
might intervene.
As a direct result of the CIETAC dispute,
arguments have already arisen between parties
that have previously agreed to submit their
disputes to arbitration before the Shanghai and
South China sub-commissions. In practical
terms, these arguments have centred on
issues such as whether the arbitration clauses
in those cases are valid, whether CIETAC
Beijing or the sub-commissions should
administer and hear the dispute, and which
arbitration rules to apply.
Considerable uncertainty has arisen from the
CIETAC dispute. There is an increased risk of
jurisdictional and/or procedural challenges
and there is a risk that arbitration awards
issued by the Shanghai and South China sub-
commissions after 1st May 2012, and even
more particularly after 1st August 2012, may
not be enforceable in the Chinese courts due to
CIETAC Beijing’s suspension of their authority.
AdviceUntil such time as the CIETAC dispute is
resolved, parties to new arbitration
agreements where CIETAC-administered
arbitration is being considered should
expressly select CIETAC Beijing in their
arbitration clauses. Shanghai and Shenzhen
may still be selected as the seat for the
arbitration. Parties to existing arbitration
agreements involving CIETAC should similarly
consider amending these to expressly select
CIETAC Beijing. Parties to existing arbitration
agreements involving CIETAC who do not
wish, or who are not in a position, to amend
their arbitration agreements in this way
should seek Chinese legal advice before they
commence arbitration. It is also open to
foreign parties, negotiating or re-negotiating
arbitration agreements, to consider selecting
other arbitration centres in the region, such as
the Hong Kong International Arbitration
Centre (HKIAC). �
“It is not clear when thedispute might be resolved or whether the Chinesegovernment mightintervene.”
17
GARD NEWS ISSUE 208 November 2012/January 2013
Bhatia TradingAn article in Gard News issue No. 2072
highlighted problems related to the
enforcement of foreign arbitration awards in
India. These included the tendency of parties
involved in foreign arbitration proceedings
with an Indian connection to seek interim
relief or to challenge the validity of foreign
arbitration clauses before the Indian courts,
often leading to substantial delays in the
progress of the foreign arbitration or
problems in the enforcement of foreign
arbitration awards. These practices had been
made possible by the decision of the Indian
Supreme Court in Bhatia Trading v. Bulk
Trading SA and Another3 and the line of cases
following this decision. In Bhatia Trading, the
Indian Supreme Court had held that Part 1 of
the Indian Arbitration and Conciliation Act,
1996 (the Act), which allows the Indian courts
to grant interim relief and to set aside
arbitration awards in the context of domestic
arbitrations, also applied to foreign
arbitrations.
Bhatia Trading was a controversial decision
amongst legal and arbitration practitioners,
and writers in India, who disagreed that
provisions of Part 1 of the Act, intended to
apply to domestic arbitrations, should also be
applied to Part II of the Act dealing with
foreign arbitrations. Concerns were raised not
only on the basis that the decision was
incorrect, but also on the basis that it
interfered with the rights of commercial
parties to choose to have their disputes
determined by foreign arbitration and
undermined the credibility of the Indian legal
system.
In light of the controversy surrounding the
correctness and desirability of the Bhatia
Trading decision, the matter was referred to a
panel of five judges of the Indian Supreme
Court for reconsideration in Bharat Aluminum.
Bharat AluminumBharat Aluminum had taken several years to
reach the Indian Supreme Court and, following
lengthy submissions and arguments, the
decision of the Supreme Court was much
anticipated. This was finally handed down on
6th September 2012.
In a landmark decision, in Bharat Aluminum
the Indian Supreme Court held that:
– The previous decision in Bhatia Trading has
been overruled;
– Part 1 of the Act only applies to domestic
arbitrations;
– The Indian courts can not provide interim
relief in relation to foreign arbitrations;
– The Indian courts will only have jurisdiction
relative to foreign arbitration awards when
the parties eventually seek to enforce their
awards in India pursuant to Part II of the Act.
ConclusionThe decision in Bharat Aluminum should
effectively reduce the scope for intervention
by the Indian courts in foreign arbitrations. It
has been widely applauded by legal and
arbitration practitioners for that reason.
However, the decision of the Indian Supreme
Court in Bharat Aluminum only applies to
arbitration agreements entered into after 6th
September 2012. This means that the
controversial decision in Bhatia Trading, and
the corresponding ability of the Indian courts
to intervene, will remain relevant to foreign
arbitration agreements entered into before
that date. �
Indian law – Intervention of Indian courtsin foreign arbitrations
In a landmark decision handed down in Bharat Aluminum Co. v. KaiserAluminum Technical Services Inc.1 on 6th September 2012, the Indian SupremeCourt has reduced the scope for the Indian courts to intervene in foreignarbitrations.
1 See www.supremecourtofindia.nic.in/outtoday/
ac701905p.pdf.2 See article “Enforcement of Chinese and Hong
Kong arbitration awards in India”.3 (2002) 4 SCC 105.
“The Indian Supreme Court held that Part 1 of the Act only applies todomestic arbitrations.”
“In light of the controversysurrounding the correctnessand desirability of the BhatiaTrading decision, the matterwas referred to a panel of five judges of the Indian Supreme Court for reconsideration in Bharat Aluminum.”
“The decision in BharatAluminum should effectivelyreduce the scope forintervention by the Indiancourts in foreignarbitrations.”
18
A recent decision in the United States Court of
Appeals for the Eleventh Circuit, Consorcio
Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA) Inc.,1 empowers US federal
courts to order parties to provide evidence for
use in proceedings in a “foreign or
international tribunal”, contemplating the
provision of such evidence for use in private
arbitration proceedings conducted in foreign
countries. Parties to such arbitration
proceedings may now apply to the federal
courts in the Eleventh Circuit, and perhaps
other Circuits that may find the Eleventh
Circuit’s decision persuasive, to compel the
provision of evidence located within the
jurisdiction for use in the foreign actions.
FactsConsorcio Ecuatoriano de Telecomunicaciones
S.A. (CONECEL) and Jet Air Services Equador
S.A. (JASE) were parties to a long-term
contract involving the provision of logistics
services by JASE to CONECEL for the
international shipment of mobile phones and
accessories. In 2008, the relationship
fractured and CONECEL asserted that it had
been overbilled by JASE by millions of dollars,
through collusion between JASE and two of
CONECEL’s former employees. JASE denied the
allegations, and asserted that CONOCEL had,
in fact, missed several payments under the
contract. JASE thereafter initiated arbitration
proceedings in Ecuador in accordance with an
arbitration clause in the logistics services
contract.
CONOCEL subsequently filed an ex parte
application for relief in the United States
District Court for the Southern District of
Florida, requesting that the court grant it
leave to issue a subpoena on JAS USA – a US
affiliate of JASE which CONECEL maintained
was involved in the processing of the
allegedly inflated bills – seeking evidence
pertaining to invoice generating and
calculation. In addition to use in the private
Ecuadorian arbitration initiated by JASE,
CONECEL also submitted that it needed the
evidence for civil and criminal collusion
proceedings it planned to initiate against JASE
and the former CONECEL employees in the
Ecuadorian commercial courts. CONECEL
maintained that it needed the evidence
before filing the contemplated collusion
actions because the courts in Ecuador required
that all evidence in support of such
proceedings be filed with the initial pleadings.
The statute upon which CONECEL relied in
making its ex parte application was 28 U.S.C.
§1782. That statute states in the relevant
part: “The district court of the district in which
a person resides or is found may order him to
give his testimony or statement or to produce
a document or other thing for use in a
proceeding in a foreign or international
tribunal …. The order may be made pursuant
to a letter rogatory issued, or request made,
by a foreign or international tribunal or upon
the application of any interested person and
may direct that the testimony or statement
be given, or the document or other thing be
produced, before a person appointed by the
court…”. The district court granted the
Discovery in aid of foreignarbitrations in the US – A new interpretation of an old statute
The United States Court of Appeals for the
Eleventh Circuit permits parties to a pending
foreign arbitration to obtain discovery in the US
through operation of legislation previously held
to be limited to foreign judicial proceedings.
1 Consorcio Ecuatoriano de Telecomunicaciones S.A.
v. JAS Forwarding (USA) Inc., 685 F.3d 987 (11th Cir.
2012), has interpreted 28 U.S.C. §1782.
“Parties may now apply tothe federal courts in theEleventh Circuit to compelthe provision of evidencelocated within thejurisdiction for the use in foreign actions.”
19
application and authorised CONECEL to serve
the subpoena upon JAS USA. JASE then sought
to intervene in the proceedings to quash the
subpoena on the grounds, among others, that
(1) the Ecuadorian judicial proceedings had
not been commenced and that therefore the
application was not ripe, and that (2) a
private foreign arbitration was not a “foreign
or international tribunal” within the meaning
of §1782. The court permitted JASE to
intervene but denied its application to quash,
finding against JASE on both issues. JASE
subsequently appealed to the United States
Court of Appeals for the Eleventh Circuit, the
US appellate court with jurisdiction over
appeals from the federal district courts sitting
in Florida, Georgia and Alabama.
DecisionThe Eleventh Circuit affirmed the lower court’s
decision, holding (among other findings not
pertinent to this article) that foreign private
arbitration panels are indeed the “foreign or
international tribunal[s]” contemplated by the
statute.
The court first turned to the language of
§1782 itself and noted that it had four
requirements that must be met before a
district court has the authority to accede to a
request made pursuant to the statute: (1) the
application must be made by either “a foreign
or international tribunal” or “any interested
person”; (2) seeking evidence of some sort;
(3) for use in a proceeding in a foreign or
international tribunal; (4) in the possession or
control of a person residing in the district of
the court to which the application is made.
Applying these criteria to the facts before it,
the court noted that JASE did not dispute that
three of them were undoubtedly met.
Clearly, CONECEL was an “interested person”
as a main party to the dispute; it was seeking
evidence pertaining to invoice processing and
calculation; and JAS USA, the target of the
subpoena at issue, had an office in Miami,
Florida, within the district in which the court
sat. The main dispute was thus distilled to
whether the third criteria above – requiring
proceedings in a “foreign or international
tribunal” – had been met. It was to this issue
that the court then turned.
CONECEL advanced two theories as to why the
present facts mandated a finding that §1782
permitted the court to grant the relief
requested. First, it argued that the foreign
private arbitration satisfied the “foreign or
international tribunal” language of the
statute. Second, it argued that, regardless of
whether or not the Ecuadorian collusion
proceedings had yet been initiated, existing
US case law supported the proposition that
§1782 merely required that the proceedings
“be within reasonable contemplation”, and
need not be “pending or imminent”. The
court, after noting that it need not address the
second argument concerning the “reasonable
contemplation” standard because it found for
CONOCEL strictly on the foreign arbitration
theory, turned to the guidance of prior US
Supreme Court jurisprudence in addressing
the question before it.
While not directly on point, the court relied
heavily on the Supreme Court case of Intel
Corp. v. Advanced Micro Devices, Inc.2 There,
the Supreme Court was presented with the
issue of whether the Directorate-General for
Competition of the European Commission was
a “tribunal” under §1782. The Supreme Court
began by noting that the original language of
the statute was amended in 1964 to
substitute “tribunal” for “judicial proceeding”,
and that the Senate report documenting the
substitution stated that it was made “to
ensure that ‘assistance is not confined to
proceedings before conventional courts’, but
extends also to ‘administrative and quasi-
judicial proceedings’”. The Supreme Court
went on to hold that, since the European
Commission “acted as a ‘proof-taking’ body
and a ‘first-instance decisionmaker’, the Court
had ‘no warrant to exclude the European
Commission … from §1782(a)’s ambit.’” In
addition, the Eleventh Circuit also noted that
the Supreme Court placed importance on the
fact that the European Commission’s findings
were subject to judicial review. In ultimately
articulating the standard gleaned from the
Intel Corp. decision, the Eleventh Circuit stated
as follows: “We [must] examine the
characteristics of the arbitral body at issue, in
particular whether the arbitral panel acts as a
first-instance adjudicative decisionmaker,
whether it permits the gathering and
submission of evidence, whether it has the
authority to determine liability and impose
penalties, and whether its decision is subject
to judicial review”.
Applying these criteria to the facts before it,
the Eleventh Circuit found that the Ecuadorian
arbitration panel was a “tribunal” within the
meaning of the statute. It noted that CONECEL
had submitted sworn declarations from
Ecuadorian counsel that the arbitration panel
met each of the elements set forth above.
JASE only seriously contested whether the
panel’s findings were subject to judicial
review, arguing that findings of fact and law
could not be overturned in the Ecuadorian
courts. However, CONECEL had provided
evidence that the courts could nullify an
award based upon procedural defects or
constitutional attack. This was enough for the
Eleventh Circuit. It held that, for purposes of
the judicial review criterion, a court need only
review an award for constitutionality or
“address [...] defects in the arbitration
proceeding”, and need not provide “a second
bite at the substantive apple that would
defeat the purpose of electing to pursue an
arbitration in the first instance”. In so finding,
the court therefore upheld the ability of
CONECEL to avail itself of the judicial
assistance made available to foreign parties
through the auspices of §1782.
CommentThe Consorcio Ecuatoriano case is the first
appellate decision that has expressly found
that §1782 applies to private foreign
arbitrations, but it is not the only appellate
case to consider the issue. Indeed, contrary
decisions have been handed down in at least
two other Circuits, with the Fifth Circuit
(Texas, Louisiana and Mississippi), in Rep. of
Kazakhstan v. Biederman Int’l,3 and the
Second Circuit (New York, Vermont and
Connecticut), in Nat’l Broadcasting Co. Inc. v.
Bear Stearns & Co.,4 each holding that the
§1782 reference to “tribunals” does not
encompass foreign arbitration panels.
However, it should be noted that both
contrary decisions pre-date the Supreme Court
Intel Corp. case relied upon so heavily by the
Consorcio Ecuatoriano court. In any event, it
is fairly safe to say that foreign parties to
arbitration proceedings will prefer seeking
their relief under §1782 in Eleventh Circuit
courts (to the extent that they are able) until
such time as the Supreme Court may address
the disagreement among the Circuits on the
point. �
2 542 U.S. 241 (2004). 3 168 F.3d 880 (5th Cir. 1999).4 165 F.3d 184 (2d Cir. 1999).
“Applying these criteria to the facts before it, theEleventh Circuit found thatthe Ecuadorian arbitrationpanel was a ‘tribunal’ withinthe meaning of the statute.”
20
IntroductionThe use of drugs, especially so-called
recreational drugs, first became widespread
in the 1960s, during the “flower power” era.
Since then, and despite increasing, and
increasingly harsh, action by the governments
of many countries to prevent the movement
of drugs and their consumption, the drugs
“business” has grown and is today a multi-
billion dollar industry. Some countries
impose the death penalty for drug trafficking.
Others impose long prison sentences on those
convicted of trafficking in, and sometimes
simply using, certain drugs. Despite these
measures, according to the United Nations
Office on Drugs and Crime, it is estimated that
“in 2009, between 149 and 272 million
people, or 3.3 per cent to 6.1 per cent of the
population aged 15-64, used illicit substances
at least once in the previous year.”
The way in which drugs are moved around the
world varies, but – as with just about every
other bulk commodity – the most common
method of transport is by ship. Sometimes
drugs are concealed inside a container, often
with a false floor and/or side(s). Sometimes
drugs are hidden inside palletised cargo.
Individual crew members may sometimes be
asked by a “friend”, usually someone they
have only just met, to carry a small “package”
for them. In exchange for this “favour”, the
crew member will usually be offered what to
him or her is a significant sum of money. As
will be seen, there are significant risks in
agreeing to do this “favour”. One other
method, which seems to be used relatively
widely, is for divers to attach a container to
the bottom area of a vessel, often in or near
the rudder trunk. One of the reasons for
using this method seems to be to conceal
from the crew the fact that their vessel is
being used to smuggle drugs.
What happens if drugs are found onboardIn Gard’s experience, there are, fortunately,
only a small number of cases where drugs are
discovered on board or attached to a vessel.
The consequences can, however, be very
severe for both the owners and the crew. At
best, the inevitable investigations by the
authorities will take time. The vessel will
almost certainly be delayed. The crew will
be questioned closely and may be detained
ashore for a short time, before being released
– provided the authorities are satisfied none
of them was involved in the attempt to
smuggle drugs. At worst, members of the
crew may be detained ashore in prison under
suspicion of smuggling drugs and may in due
course be charged with such an offence. In
addition, a substantial fine may be imposed
and/or the vessel may be threatened with
confiscation. It should be noted here that the
prisons in certain countries in which crew
members may be detained are unpleasant, to
put it mildly, and that the period of
“investigative detention” may be long
(probably several weeks, possibly several
months).
It goes without saying that clients and
Members are recommended to co-operate
fully with any authority carrying out such an
investigation. Gard will normally assist with
the appointment of correspondents, lawyers
and, if deemed necessary, experts, but since
borderline issues in relation to the availability
Have a good trip – Drugs and P&I cover
Borderline issues in relation to the
availability of P&I cover can arise when
illegal drugs are found on board a
vessel, so prevention is always better
than cure in these cases.
“The way in which drugs are moved around the world varies, but the most common method of transport is by ship.”
21
of P&I cover can arise in such cases, every
case will be considered on its own facts.
What type of liability can ariseProbably the most common penalty which is
imposed is a fine. The amount of any such
fine will depend on local legislation, but may
be substantial. Fines are usually imposed on
the owner of the vessel. In some countries,
the fine depends on the quantity of
drugs seized.
In some countries, local legislation allows the
authorities to confiscate a vessel found to be
smuggling drugs. Such legislation is rarely
fault-based: liability is usually strict. If drugs
are found on board or attached to a vessel,
that in itself is sufficient to establish liability.
Confiscation means the owner is deprived
irrevocably of the use of his ship, which then
becomes the property of the relevant
government department. As with a fine, the
impact of confiscation is directly on the
shipowner. If the vessel is mortgaged, the
mortgagee will also be very concerned, as will
any (time) charterer.
Instead of, or in addition to, the measures
mentioned above, some countries will bring
criminal charges against members of the crew
suspected of smuggling drugs. Such charges
are rarely against the ship owning/operating
company. The Master is usually charged,
often in his capacity as the senior person on
board, rather than because he personally is
suspected of being involved.
In addition, the vessel’s commercial
operations will be delayed and disrupted.
The vessel may be (partly) laden and will
almost certainly be operating under either a
contract of carriage or contract of
affreightment, pursuant to which the
shipowner has contractual obligations. The
end result is likely to be that the vessel’s
voyage is delayed, sometimes for a long time.
Time charterers will look to put the vessel off
hire. Cargo may have to be discharged and
stored ashore. Cargo interests will be anxious
about their cargo, especially if it is perishable.
Even if the vessel is released without charge,
it is probable that the owner will be exposed
to extra costs and claims for possible breach of
contract.
The P&I coverIt is important to keep in mind that Gard’s
cover is available to the Member (the
shipowner), but not to individual members of
the crew. The only exception is if a crew
member is deemed to be a “third party whom
the Member is legally obliged to reimburse or
whom the Member reimburses with the
Agreement of the Association)”.1
Gard’s Rule 47 deals with fines. Sub-Rule
47.1.d affords cover for fines or other
penalties in respect of “smuggling or any
infringement of any customs law or regulation
other than in relation to cargo carried on the
Ship.” Prima facie, P&I cover is available to a
Member for a fine imposed in the
circumstances stated.
Cover for the confiscation of a vessel is
outlined in Gard’s Rule 49. Compensation to
a Member under this Rule is at the discretion
of the Association and is available only in
the circumstances identified in this Rule. In
short, the Association can decide how much
(if any) compensation to pay, but in no
circumstance will this exceed the market
value of the vessel at the time of confiscation.
Further, no claim by the Member will be
considered until it is clear there is no prospect
whatsoever of the vessel being released or
returned to the Member. This Rule is invoked
only very rarely and if there exists other
insurance affording cover for this risk, Gard’s
cover will be subsidiary to that insurance.
Disruption of and delay to commercial
operation and any liability to third parties
consequent upon such disruption and delay
may fall within the P&I cover, depending on
the facts and the type of liability. If the
Member is covered for Defence, that cover is
likely to respond for the cost of obtaining
legal advice. Gard’s extended loss of hire
cover should, if purchased, be available to
provide cover for the Member’s loss of hire
arising from the presence on board of drugs.
Cover for the Member’s liability to third
parties may be available under Rule 34,
subject to the terms of Rule 34.2.
It is where a crew member is criminally
prosecuted for smuggling drugs that the cover
position is more complex. As noted, it is
generally the case that cover is not afforded
to individual crew members and that cover is
not available for criminal liability.
Nevertheless, the crew member(s) will need
legal representation and it is anticipated that
a shipowner will wish to do everything
possible to protect his crew. Such legal
assistance will be expensive and may be
difficult to find. The initial information may
not confirm whether or not there has been
any involvement of the crew in the alleged
drugs smuggling, but if the drugs have been
found attached to the bottom of the vessel, it
may perhaps be a reasonable initial
assumption that this has been done without
the knowledge of the crew. In such
circumstances, it is anticipated that the
shipowner will wish to provide all possible
support to the crew member(s). This may
involve costs or expenses which can be
covered by Gard if and to the extent that such
costs/expenses are considered to have
avoided or minimised a liability which would,
otherwise, have fallen on the Member
and Gard.
An owner’s attitude may be somewhat
different if a crew member is found to have
knowingly participated in the smuggling
of drugs.
It must be emphasised that the extent to
which P&I cover is available for such costs and
expenses is something of a “grey area” and
that each case is dependent on and is
assessed in accordance with its own facts. As
a general principle, Gard will try to assist the
Member as best it can, always in accordance
with the Rules for P&I Cover.
“In some countries, local legislation allows the authorities to confiscatea vessel found to besmuggling drugs.”
“It must be emphasised thatthe extent to which P&I coveris available for such costs andexpenses is something of agrey area and that each case is dependent on and isassessed in accordance withits own facts.”
“The Master is usuallycharged, often in hiscapacity as the senior person on board, rather than because he personallyis suspected of beinginvolved.”
1 See Gard’s Rule 47.
22
Problem areasCertain South American countries have been
and remain a focal point for the production
and export by sea of drugs. In the last few
years, there has been a number of serious
drugs cases in Venezuela. All the vessels
involved were entered with International
Group Clubs and information as to the facts of
each case has been exchanged among Clubs,
enabling a picture to be built up of the way in
which the authorities in Venezuela approach
such cases and the way in which they can
best be handled. The Venezuelan authorities
take a very aggressive approach to the
investigation and prosecution of such matters,
even in circumstances which, on investigation,
have indicated that the crew did not and
could not have had any knowledge of or
involvement in the alleged smuggling. The
investigation process involves several
different authorities and, unfortunately, is
rarely clear or understandable to foreign
seafarers. There have been cases where crew
members have been prosecuted, even though
they themselves have alerted the authorities
to the possible presence of drugs having been
attached to the bottom of the vessel. Only a
few lawyers in Venezuela are willing to take
the personal and professional risk of handling
such cases, which inevitably increases the
costs involved. Venezuela has legislation in
place permitting the confiscation of a vessel
found to be involved in drug smuggling and
may impose prison terms of up to 15 years on
individuals found guilty.
One vessel, the B ATLANTIC, has been
detained in Venezuela for alleged drug
smuggling since 2007. Two of her officers
were found guilty and sentenced to long
prison terms. They have since been
repatriated after having served part of their
sentence. In another case, dating back to
2008, two officers remain imprisoned in
Venezuela. It is clear from a more recent
case, involving one of Gard’s major clients
and Members, that a Venezuelan prison is an
unpleasant place for a non-Spanish-speaking
foreigner to spend even a few hours, let alone
several years.
Possible preventative measuresIn the last ten years, Gard has published a
number of articles and issued alerts about the
problem of drug smuggling. For example, in
Gard News issue No. 2012 readers were
advised of amendments to legislation in
Venezuela, which increased jail sentences for
convicted drug traffickers from 8-10 to 15-25
years. When it comes to effective preventative
measures, the position is more complex.
Measures which might be considered to be
effective in one country might not be
effective in another country. What is a
practical and sensible step to take in one
country might prove to be impractical in
another country. Take the issue of using
divers to inspect the bottom of a vessel
immediately before departure. Can the
divers be trusted? Might they be controlled
or influenced by the same people who are
smuggling the drugs?
Experience suggests that an owner who takes
little or no preventative steps is likely to have
difficulty in arguing that all reasonable steps
to prevent drugs being smuggled were taken.
In principle, therefore, seeking to take
preventative steps is a better option than
doing nothing. It is important that an owner
seeks up to date advice locally and from his
P&I Club specific to the country/area in which
the vessel is trading, ideally before going
there, but the following measures are
considered to be applicable broadly:
– Identify high risk areas
– Inform and instruct the crew
– Seek advice before arrival
– Follow the ISPS Code and try to ensure the
terminal does too
– Consider arranging private underwater
inspection of vessel on arrival and asking for
subsequent official (joint) inspection
– The crew should remain on board at all
times (to avoid the possibility of being asked
by a “friend” to carry a small package)
– Consider employing security guards
– Consider using additional lights over the side
to prevent unauthorised divers approaching
the vessel
– Carry out a search just before departure
(also consider a private underwater
inspection), followed by a request for an
official (joint) inspection.
Unfortunately, the measures are not
guaranteed to provide complete protection,
but either separately or together, it is
believed they will provide an owner with
grounds on which to argue that all reasonable
steps to prevent drug smuggling were taken.
Statistically, Gard’s records show the chances
of a vessel being investigated for possible
drug smuggling is small, but this will be of
little comfort to an owner whose vessel and
crew are detained and investigated. In the
unfortunate event this happens, Gard will do
everything possible to assist. �
2 See article ”Venezuela – Amendments to legislation
on drug smuggling”.
“Venezuela has legislation in place permitting theconfiscation of a vesselfound to be involved in drug smuggling and mayimpose prison terms of up to 15 years on individualsfound guilty.”
Gard’s correspondents in Venezuela,
Messrs Globalpandi S.A., have recently
informed that a new regulation imposed
by the Venezuelan National Maritime
Authority (INEA) requires that all
commercial vessels sailing from
Venezuelan ports and destined for a
foreign port must now undergo an
official drugs inspection before sailing.
In some areas, e.g., the ports and
terminals in the Maracaibo Lake, the
PDVSA Jose Terminals and those at the
Orinoco River, inspections have been
compulsory since 2011. However, at
the big commercial ports like La Guaira
and Puerto Cabello inspections have
been introduced with full force at the
end of September 2012, although there
have been problems due to lack of
resources. Despite the fact that these
official inspections are ordered by
the Harbour Master, they must be
paid for by the shipowner or any other
representative of the vessel.
Compulsory drugsinspections in Venezuela
23
GARD NEWS ISSUE 208 November 2012/January 2013
In 2009 the IMO’s Maritime Safety Committee
approved regulations for the mandatory
carriage requirement of Electronic Chart Display
and Information Systems (ECDIS) by ships
engaged in international voyages. An ECDIS is a
computer-based navigation system that
complies with IMO regulations and can be used
as an alternative to paper navigation charts.
The provision was included in SOLAS V
Regulation 19.2 and as of 1st July 2012 the
compulsory requirement came into effect. The
equipment is mandatory for certain new ships
on delivery. Other new ships and existing
ships are required to retrofit the equipment
“at the first survey”, in accordance with the
timetable in Figure 1 below.
With a phased implementation requirement
for ECDIS commencing in 2012, port
authorities will probably focus on the means
by which ships meet these implementation
requirements and effectiveness of use.
As a minimum requirement all bridge officers
should have general ECDIS training that follows
the IMO Model Course 1.27 (The Operational
Use of Electronic Chart Display and Information
System). Additional equipment-specific training
for the ECDIS model in use on board is required
for every ship, according to the ISM Code.
National authorities may require specific ECDIS
training for officers on board vessels in their
flag registries, or visiting their ports. The
European Union has provided “Guidelines for
Port State Control on Electronic Charts” along
with the Paris Memorandum of Understanding
(PSC MOU). Port state control in countries that
are party to the PSC MOU is authorised to
determine if “Master and deck watch-keeping
officers are able to produce appropriate
documentation that generic and type-specific
ECDIS familiarisation has been undertaken”.
Inspections might require demonstration of
competence by the crew as well as evidence
of inclusion of ECDIS operation procedures in
on-board safety management systems.
Some commercial operators’ vetting schemes
have similar requirements and non-
compliance could exclude a vessel from trade.
The ECDIS concept is a radical change from
traditional charts and the transition from
paper charts to electronic charts poses a
challenge for the industry, particularly for
those who have no previous experience of
electronic charts.
RecommendationsThe decision to install an ECDIS should be
made well in advance, to allow enough time
for system purchase, installation, related ISM
procedure preparation and crew training.
Some ECDIS manufacturers may not be able to
supply systems immediately and will require
a longer delivery time. The same problem
may be applicable to the availability of
certified installation engineers and crew
training courses. A decision regarding
suppliers should be made well in advance of
the implementation date. �
ECDIS implementation
Phased implementation of Electronic Chart Display and Information Systems has commenced.
Figure 1 – Timetable for the mandatory adoption of ECDIS.
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24
The United States Coast Guard (USCG),
together with the US Environmental
Protection Agency (EPA), is now enforcing the
requirements of MARPOL Annex VI within the
North American Emission Control Area (ECA).
MARPOL Annex VI, as enacted within the
Marine Pollution Prevention Act of 2008, is
intended to reduce air pollution by requiring
use of low sulphur bunker fuel or equivalent
controls within 200 miles of the East, West
and Gulf Coasts of North America and Hawaii.1
In addition to sulphur oxides, the ECA also
covers emission of nitrogen oxides (NOx) and
particulate matter (PM). The details of
technical requirements of compliance may be
found in previous Gard publications.2
Sulphur content of bunker fuel must be
limited to no more than one per cent for
operations within the ECA. Foreign flag
vessels over 400 GT operating in the ECA will
be required to evidence compliance with the
following documentation:
– Bunker delivery notes showing delivery of
compliant bunkers;
– Representative bunker samples;
– Written fuel oil changeover procedures;
– A fuel oil changeover log book that records
the volume of compliant fuel in each tank as
well as the date, time and position of the ship
when any fuel oil changeover operation is
completed.
In general, the USCG is responsible for
verifying compliance and the EPA is
responsible for enforcement of violations.
Non-compliance may result in civil fines of up
to USD 25,000.
The USCG has published a policy letter,
Guidelines for Compliance and Enforcement of
the Emission Control Areas, making it clear
that intentional falsification of the
documentation may result in criminal fines.
Further, with respect to criminal liability, it is
the USCG and not the EPA that will be the lead
agency for investigation and, if evidence of a
criminal violation is substantiated, the USCG
will refer the violation to the US Justice
Department for prosecution.
As an example of criminal conduct, the
guidelines make specific reference to
“intentional use of non-compliant fuel oil with
falsified log books”. It is therefore apparent
that false entries in the fuel oil changeover
log may result in criminal investigation and
criminal prosecution in much the same
manner as investigation and prosecutions for
false entries in an oil record book. Falsified
entries masking discharge of oily waste, the
so called “magic pipe” cases, have resulted in
millions of dollars of fines levied against
vessel owners and operators and jail
sentences for crewmen. Even innocent
mistakes have resulted in investigation with
delay to the ship, and detention of crew.
Accuracy of the documentation required to
evidence compliance with low sulphur fuel
requirements within the ECA is therefore
fundamental to avoiding delay, costly fines
and even incarceration of individual crew
members. While each case will be dealt with
on its own merits, P&I cover is unlikely to be
available in such matters, just as it is
unavailable in so-called “magic pipe” cases. �
MARPOL – Enforcement of North AmericanEmission Control Area means closescrutiny of documentary compliance
Inaccuracy of documentation required to evidence
compliance may have serious consequences.
1 The ECA also includes Canadian waters. Canada’s
enforcement activity is not reported here. For more
information see the Gard Alert dated 20th July 2012,
“Canada delays implementation of the North
American ECA requirements”.2 See Gard Loss Prevention Circular No. 05-09,
“US Guidelines on MARPOL Annex VI” April 2009,
Gard Alert dated 4th July 2012, “North American
ECA requirements after 1 August 2012” and articles
“Annex VI of MARPOL 73/78 – Regulations for the
Prevention of Air Pollution from Ships” in Gard News
issue No. 176, “MARPOL Annex VI – Solving the low
sulphur issue” in Gard News issue No. 184, “Marpol
Annex VI – New risks and challenges for owners and
charterers” in Gard News issue No. 187.
“Falsified entries maskingdischarge of oily waste haveresulted in millions of dollarsof fines levied against vesselowners and operators andjail sentences for crewmen.”
25
GARD NEWS ISSUE 208 November 2012/January 2013
The United States Court of Appeals for the
Second Circuit, in a case of first impression,
recently decided that a shipowner/employer
is liable for payment of maintenance and cure
benefits for a medical condition arising
subsequent to the seaman’s service aboard a
vessel despite the fact that he did not have
any symptoms during his service. The decision
in Messier v. Bouchard Transportation,1
overturned a lower court decision granting
summary judgment to the shipowner.
This decision opens a new area of exposure
for shipowners/employers of US seamen and
follows closely on the heels of the recent
Supreme Court decision in Atlantic Sounding
v. Townsend in which the court found that
failure to promptly pay maintenance and cure
could subject the owner/employer to punitive
damages.
FactsMr Messier was employed as a seaman by
Bouchard Transportation (Bouchard) in 2004
and 2005 working aboard one of their
tugboats. While in the service of the tug he
fell on a ladder suffering a back injury. The
initial injury was minor but the resulting
medical evaluation revealed a more serious
problem and he was then treated for renal
failure. Two months later, while attempting
to find a reason for Mr Messier’s renal failure,
treating doctors diagnosed him with B-cell
lymphoma. Following treatment, Mr Messier
returned to work in October 2006.
The argumentsMr Messier filed suit against Bouchard in
November 2008 asserting claims for negligence
under the Jones Act, unseaworthiness and
maintenance and cure under general
maritime law. Bouchard did not dispute the
allegation that Messier had lymphoma during
his maritime service, relying on prior court
decisions that the illness or injury must not
only occur but manifest itself during the
seaman’s service.
The appeals court decisionIn overturning the lower court’s decision, the
appeals court opined that the first
presentation of symptoms is not the
touchstone for payment of maintenance and
cure, stating that “[b]ecause the seaman’s
illness indisputably occurred during his
service, he is entitled to maintenance and
cure regardless of when he began to show
symptoms”.
Under US law, maintenance and cure benefits
are an entitlement to seamen and an
obligation for the owner/employer to provide
food, lodging and medical services to a
seaman becoming injured or ill while in the
service of the ship. “Maintenance”
compensates the injured seamen for food and
lodging expenses during medical treatment.
“Cure” refers to reasonable medical expenses
incurred in the treatment of the seaman’s
condition. This benefit is due and owing on a
timely basis until such time that the seaman
has reached “maximum medical recovery”
(reaching a point where further treatment
would be palliative) or has been declared
permanently not fit for duty. The importance
of the maintenance and cure concept is
illustrated in the US Supreme Court decision
in Vaughan v. Atkinson2 where the court
states that “[a] shipowner’s liability for
maintenance and cure is among the most
pervasive of all and is not to be defeated by
a restrictive distinction nor narrowly confined”.
The Second Circuit has replaced the traditional
rule that shipowners owe maintenance and
cure only for illnesses that “manifest”
themselves while the seaman is in the service
of the vessel with the new “occurrence rule”.
Therefore, under this decision a disease which
develops slowly over a period of months or
years may entitle a seaman to benefits that
were previously denied. It would be
reasonable to anticipate that there will be
more demands on owners and employers to
tender maintenance and cure benefits to
individuals who did not exhibit symptoms
before discharge from a ship. Assumedly, a
greater number of cases will now be driven
to litigation in order to determine, with a
degree of medical certainty (if this is possible
within current medical science parameters),
when a seaman’s illness occurred and if
he/she was in the service of the ship at the
time of the alleged occurrence. It is important
to note that under US law ambiguities and
doubts regarding entitlement are resolved in
favour of the seaman.
ConclusionWhile it remains to be seen whether courts
outside the Second Circuit territory
(Connecticut, New York and Vermont) will
follow this decision, the ruling is binding on
all federal courts within the Second Circuit.
There is no doubt that plaintiffs will be using
this case as authority in attempting to expand
maintenance and cure benefits in courts
throughout the US. It is possible that
Bouchard will seek further appeal and/or
review by the United States Supreme Court.
In the meantime, it is recommended that
Members be guided by the following phrase
in the opinion of the Second Circuit and be
“liberal in interpreting the duty of
maintenance and cure for the benefit and
protection of seamen”. �
Maintenance and cure benefitsin the US – Developments inthe Second Circuit
US Second Circuit Court of Appeals decision changes basis for paymentof maintenance and cure benefits.
1 2d Cir., Case No. 10-5181-CV, July 20, 2012.2 369 US @531-32.
26
GARD NEWS ISSUE 208 November 2012/January 2013
An article in Gard News issue No. 2061
reported the decision of the Hong Kong
High Court in The HE DA 98.2 Readers
may recall that in that decision the Hong
Kong High Court had unusually
apportioned 100 per cent of the liability
in a collision action to the HE DA 98,
which had been involved in a collision
with the PONTODAMON in the port area
of Shanghai on 30th November 2007.
The decision of the Hong Kong High
Court has been appealed by the HE DA
98 interests. A date for the appeal has
still to be set.
However, in the meantime Gard News
has learned that the HE DA 98 interests
had previously commenced competing
proceedings before the Rizhao Division
of the Qingdao Maritime Court in China
in May 2009. The PONTODAMON
The article “The PRESTIGE – Spain v. ABS, round
II”, which appeared in Gard News issue No.
200, reported that the government of Spain’s
efforts to recover more than USD 1 billion in
compensatory damages as well as punitive
damages from the American Bureau of
Shipping (ABS), stemming from the
November 2002 oil spill and sinking of the
PRESTIGE off the coast of Spain, were dealt a
blow by the summary dismissal of its case
against ABS by a federal district court in New
York1 and that Spain had filed an appeal from
that decision to the Second Circuit Court of
Appeals in New York. Spain claimed that ABS
acted recklessly in certifying the
seaworthiness of the vessel and therefore
was responsible for the PRESTIGE incident and
alleged violations of Spanish law and breach
of a duty of care under US law.
On 29th August 2012 the Second Circuit Court
of Appeals ruled in favour of ABS.2
The PRESTIGE – Spain v. ABS, final round
US Court of Appeals rules in favour of ABS.
In its decision the court was careful to limit its
ruling to the facts of the case, restricting its
precedential value. It considered all evidence
offered by Spain and found a lack of proof that
ABS and its subsidiaries recklessly breached
any duty of care that may have been owed to
Spain through any inaction or action taken in
the US. If the Court of Appeals had found that
Spain’s evidence established recklessness on
the part of ABS, it then would have to address
the issue of whether a duty of care was owed
to coastal nations under US law, but under the
circumstances it did not have to do that.
This decision is just the last in a series of cases
in which US courts have been reluctant to find
liability on the part of classification societies.
As noted in a previous issue of Gard News,3
the societies’ surveys and certificate system
are essential to maritime commerce. The
imposition of unreasonable liabilities that
could increase the costs incurred by such
societies could have a chilling effect on the
industry. �
1 Reino de Espana v. Am. Bureau of Shipping, 2010
U.S. Dist. LEXIS 78403, (S.D.N.Y. August 3, 2010).2 Reino de España v. ABS, No. 10-3518 (2d Cir. Aug.
29, 2012).3 See article “US law – Liability of classification
societies for negligent misrepresentation” in Gard
News issue No. 173.
“Spain claimed that ABSacted recklessly in certifyingthe seaworthiness of thevessel and therefore wasresponsible for the PRESTIGEincident and allegedviolations of Spanish lawand breach of a duty of care under US law.”
interests challenged the jurisdiction of
the Chinese courts to determine the
dispute. However, that challenge was
finally rejected by the Chinese Supreme
Court in Beijing in October 2010. The
proceedings before the Qingdao
Maritime Court have reportedly been
held in abeyance/suspended pending
the outcome of the appeal in the Hong
Kong court proceedings.
Gard News will keep readers updated.
However, it seems that even if the HE
DA 98 interests’ appeal is overruled, the
Hong Kong courts might not have the
final say in this matter. �
Hong Kong law – Collision liability apportionment update – The HE DA 98
1 “Hong Kong law – Collision liability
apportionment”.2 [2011] HKEC 1157.
27
GARD NEWS ISSUE 208 November 2012/January 2013
Tonnage certificateThe tonnage of ships forms the basis for
manning regulations, safety rules, registration
fees, calculation of port dues, etc. Most
merchant ships are required to hold an
International Tonnage Certificate, issued by flag
states, in accordance with the IMO International
Convention on Tonnage Measurement of Ships
1969 (ITC). The calculations are carried out
before delivery by the vessel’s classification
society, which issues the certificate on behalf of
the flag state. The certificate has no expiry date,
but will have to be amended in case of any
conversion to the vessel.
For centuries different nations used different
rules to measure vessels’ tonnage. In 1854 a
ship measurement system devised by George
Moorsom, based on the idea that size would be
best indicated by the volume of a ship and that
charging of service fees should be based on the
earning ability of a ship, was adopted and
became law in Britain. For volume, the system
used the enclosed volume of a ship, measured
in cubic feet. The unit of measurement of ships
had always been called “tons”, so the gross
volume, which was to be entered in the
Certificate of Registry, was called “gross
registered tonnage”. For earning capacity, the
system deducted from the gross registered
tonnage the non-cargo-carrying spaces, and the
resulting figure was called “net registered
tonnage”. Because the numbers involved were
very large, the system divided them by 100 for
simplification, so that one registered ton was
equal to a volume of 100 cubic feet (2.83m3).
The Moorsom system was followed by most
maritime nations, and tonnages determined
according to it were influential in deriving the
formula for the international tonnage
standard in the ITC.
Gross and net tonnage“Gross tonnage” (GT) and “net tonnage” (NT)
replaced “gross registered tonnage” and “net
registered tonnage”, respectively, when the
IMO adopted the ITC, which entered in force
for all new ships in 1982, with existing vessels
at the time having been given a migration
period of 12 years. So since 1994 the GT and
NT indices have been the only official
measures of ships’ tonnage.
GT, the magic measurement based on which
various dues will be levied and some statutory
requirements imposed, is a factor of the
internal volume of the permanently enclosed
spaces of a ship from keel to funnel, while
NT is the measure of the volume capacity
of the permanently enclosed spaces of the
vessel from keel to funnel, less the
volume of certain non-cargo carrying
spaces. GT and NT are calculated according
to formulas described in the ITC.1
Panama Canal and Suez Canal tonnageSince 1st October 1994 Panama Canal tolls
have been based on the Panama Canal
Universal Measurement System (PC/UMS),
which in turn is based on the international
standard of vessel measurement established
by the ITC (except for container vessels, which
pay in accordance with container-carrying
capacity). The tonnages stated on the Panama
Canal Tonnage Certificate are therefore
identical to those in ITC certificates.
The Suez Canal, however, has a system with a
multiplying factor applied to the NRT, thus
producing a figure called Suez Canal Net
Registered Tonnage (SCNRT), which forms the
basis for passage dues. It is different from all
other tonnage, continuing to be based on the
old Moorsom system of measurement. The
tonnages stated on the Suez Canal Special
Tonnage Certificate are therefore different
from those in ITC certificates.
Classification societies issue separate PC/UMS
and SCNRT certificates for vessels on behalf of
flag states.
Weight measurement of shipsThe following methods of ship measurement
are based on the ship’s weight.
A ship’s displacement is the volume of water
it displaces when it is floating, and is
measured in cubic metres (m3), while its
displacement tonnage is the weight of the
water that it displaces when it is floating with
its fuel tanks full and all stores on board, and
is measured in metric tons (MT, equivalent to
1,000 Kg). The displacement tonnage is the
actual weight of the ship, since a floating
object displaces its own weight in water.2
A ship’s lightweight or light displacement is
the actual weight of the ship with no
passengers, cargo, bunkers, lube oil, ballast,
fresh water, stores, etc., on board.
The loaded displacement is the weight of the
ship loaded down to its load line marks, that
is, loaded to its maximum capacity with
passengers, cargo, bunkers, lube oil, ballast,
fresh water, stores, etc., on board.
A ship’s deadweight is the difference in metric
tons between the loaded displacement tonnage
of the ship and the lightweight of the ship.
Therefore, the deadweight can be a tool to
express in metric tons the actual cargo capacity
of the vessel. However, the difference between
the loaded displacement tonnage and the
lightweight does not reflect the cargo carrying
capacity only, as deadweight also includes
bunkers, stores, freshwater, etc. These factors
will have to be deducted from the deadweight
in order to come to the actual cargo carrying
capacity in metric tons.3 �
Tonnage measurement of ships
A vessel’s particulars will list a number of different tonnages, which may seem confusing toanyone not familiar with the various measurement terms. So next in Gard News’ non-mariners’ guide to ship construction and operation is a basic guide to tonnage measurement.
1 The word “tons” is no longer in use in reference to
ships’ tonnage. Gross and net tonnages are unitless
indices; for instance, a ship will have a “gross
tonnage of 50,000”. 2 See article “Why do ships float?” in Gard News
issue No. 207.3 It obviously does not make much sense to describe
the cargo capacity of a car carrier or a container
vessel in deadweight. In those cases capacity is
described by volume, quantity of cars (car
equivalent units, or CEU) or containers (twenty-foot
equivalent units, or TEU).
28
GARD NEWS ISSUE 208 November 2012/January 2013
The following P&I Member Circulars and Loss
Prevention updates have been issued by Gard
during the summer of 2012:
P&I Member Circulars– P&I Member Circular No. 07-12, June 2012:
Iran Sanctions – EU Council Regulation
267/2012 – Exports of crude oil and petroleum
products from Iran – Prohibitions with effect
from 1 July 2012.
– P&I Member Circular No. 08-12, September
2012: Entry into force of the Regulation (EC)
No. 392/2009 of the European Parliament and
of the Council of 23 April 2009 on the Liability
of Carriers of Passengers by Sea in the Event
of Accidents (the “PLR”).
Loss Prevention Circulars– Loss Prevention Circular No. 04-12, June 2012:
Malaria and dengue – Precautions to be taken.
Trond Willy Olsen has been appointed Vice
President, Program Management Office
(PMO).
Peter Janssen has been appointed Vice
President, ICT.
Ove Jarl Andersen has been appointed
Senior Manager, Systems Development.
Adrian Moylan has joined Gard as
Casualty Lawyer in the Marine Claims
team in Bergen. He will work across all
business areas. Adrian is a qualified
English solicitor with a Law degree from
Cambridge University. He previously
worked for Vogt & Wiig, Bergen and was one
of the founding partners of More Fisher
Brown, London, where he was also Managing
Partner. Prior to that, Adrian was a partner
with Richards Butler, London.
Lars Lislegard-Bækken has joined Gard as
Lawyer in the Group Legal team. Lars has an
LLM degree from Oslo University and
previously worked for Hjort DA, Oslo.
Stefan Bjarnelöf-Sovtic has joined Gard as
Senior Claims Executive, Lawyer in the Liquid
Cargo Claims team. Stefan has an LLM degree
from Lund University and previously worked
as Senior Claims Executive at Skuld.
Gard P&I Member Circulars and LossPrevention updates, summer 2012
Staff news
Gard Alerts– Gard Alert, 26th September: Peoples
Republic of China Lanshan Port – New fish
farms impact on safe navigation.
– Gard Alert, 10th September: Conditions of
entry for vessels arriving in the US from the
Republic of Yemen.
– Gard Alert, 21st August: Reminder –
Anchoring in Malaysian Waters off
Singapore.
– Gard Alert, 26th July: New BIMCO
charterparty clause for solid bulk cargoes that
may liquefy.
– Gard Alert, 20th July: Canada delays
implementation of the North American ECA
requirements.
– Gard Alert, 6th July: Indonesia – Export of
unrefined mineral products, update 5 July.
– Gard Alert, 4th July: North American ECA
requirements after 1 August 2012.
– Gard Alert, 4th July: Togo implements new
anti-piracy measures.
– Gard Alert, 29th June: Bar Montenegro –
Liquefaction of zinc concentrate cargoes.
– Gard Alert, 21st June: Reminder Pilot –
Transfer arrangements – Revised requirements
applicable to existing ships.
– Gard Alert, 14th June: Port State Control –
2012 concentrated inspection campaign on
fire safety systems.
All Circulars and updates are available from
www.gard.no, and, if you would like to
receive Gard’s Loss Prevention e-mails, please
contact [email protected]. �
Radmil Kranda has joined Gard as Claims
Executive, Lawyer in the Energy Claims
team. Ramil is currently completing his
LLM degree in Maritime Law at Oslo
University.
Svein Ellingsen has retired from his
position as Senior Claims Executive at
Gard (Greece) Ltd. We wish him a long
and happy retirement.
Ragnar Løken has retired from his
position as Claims Executive in the
Offshore Energy Claims team. We wish
him a long and happy retirement. �
29
Katherine Wang Mobile +852 6396 3291Deputy Underwriter [email protected]
Asia West/Eastern Europe/Africa
Petter Eid Skalstad Mobile +47 99 29 22 74Area Manager [email protected]
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Latin America and London
Iain Laird Mobile +44 (0)7768 547401Area Manager [email protected]
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Nordic
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Espen Olsen Mobile +47 99 28 40 51Area Manager [email protected]
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Northern Europe
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Exploration & Production
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Staff directory
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MOU & Offshore
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Gisle Brøvig Mobile +47 94 52 91 70Underwriter [email protected]
Sven Jensen Mobile +47 99 29 22 63 Underwriter [email protected]
Marianne Bruun Mackrill Mobile +47 97 55 93 38Underwriter [email protected]
Kenneth Meyer Mobile +47 99 28 41 05Underwriter [email protected]
Atle Jonsborg Pedersen Mobile +47 99 29 22 65Underwriter [email protected]
Marine Builders’ Risks
Knut Morten Finckenhagen Mobile +47 99 29 22 50Vice President, [email protected] Manager
Ingunn Brenna Mobile +47 99 29 22 55Senior Underwriter [email protected]
Charterers Traders
Terri Lynn Jay Mobile +47 97 55 93 25Area Manager [email protected]
Terje Holte Mobile +852 9154 8101Vice President, Special Adviser [email protected]
Liv Kristensen Mobile +47 97 55 91 21Senior Underwriter [email protected]
Bart Mertens Mobile +47 94 52 96 32Senior Underwriter [email protected]
Small Craft Nordic
Thomas Nordberg Mobile +46 (0)70 311 70 02Managing Director, [email protected] (Sweden) AB
Patrik Palmgren Mobile +358 (0)40 046 5852Manager [email protected]
Malena Edh Mobile +46 (0)705 469 697Underwriter [email protected]
Mette Ellefsen Mobile +47 94 52 92 69 Underwriter [email protected]
Henry Hemtman Mobile +358 (0)50 414 6943Underwriter [email protected]
Ivar Rokne Mobile +47 99 28 40 74Underwriter [email protected]
Market Research & Analysis
Line Dahle Mobile +47 99 28 40 53Senior Manager [email protected]
Karin Nicolaisen Mobile +47 94 52 93 13Research Executive [email protected]
Vivi Sandsten Mobile +47 99 29 22 22Research Executive [email protected]
Technical Underwriting
Helge A Nordahl Mobile +47 99 29 22 64Senior Manager [email protected]
Veith Huesmann Mobile +47 94 52 22 92Business Analyst [email protected]
Tor Halvor Løyte Mobile +47 97 55 92 40Business Analyst [email protected]
Product Development
Andre Kroneberg Mobile +47 97 55 92 62Senior Manager [email protected]
Tonje Forøy Breivik Mobile +47 97 55 93 58Senior Lawyer [email protected]
Claes Isacson Mobile +47 97 55 93 37Chief Executive Officer (CEO)
Sara E. Burgess Mobile +44 (0)7818 421723Senior Vice President, [email protected] of International Group Matters
Svein Buvik Mobile +47 97 55 93 18Senior Vice President, [email protected] of Organisation & ICT
Steinar Bye Mobile +47 99 29 22 10Senior Vice President, [email protected] Financial Officer (CFO)
Kristian Dalene Mobile +47 97 55 91 42Senior Vice President, [email protected] Investment Officer (CIO)
Christen Guddal Mobile +47 97 55 92 95Senior Vice President, [email protected] of Quality Management
Jan-Erik Braathen Mobile +47 99 28 41 01Vice President, [email protected] Management and Analysis
Peter Janssen Mobile +47 97 55 91 46Vice President, ICT [email protected]
Svein Just Mobile +47 94 52 91 07Vice President, Property & Service [email protected]
Inge Liltved Mobile +47 97 55 91 25Vice President, Accounts [email protected]
Jens Martinius Nilsen Mobile +47 97 55 92 80Vice President, [email protected] of Gard Academy
Trygve Nøkleby Mobile +47 99 28 41 11Vice President, [email protected] Resources and Organisation
Trond Willy Olsen Mobile +44 (0)7826 853782Vice President, PMO [email protected]
Roar Rasten Mobile +47 99 29 22 80Vice President, Controller [email protected]
Ove Jarl Andersen Mobile +47 94 52 96 56Senior Manager, ICT [email protected]
Lily Karaiscos Mobile +30 693 220 0209Special Adviser [email protected]
Nicolas Wilmot Mobile +47 99 28 40 11Special Adviser [email protected]
Claudia Storvik Mobile +44 (0)7775 644791Website Chief Editor, [email protected] News Editor
Group Legal
Kjetil Eivindstad Mobile +47 97 55 92 18Senior Vice President, [email protected] Legal Counsel
Lars Lislegard-Bækken Mobile +47 97 55 91 96 Lawyer [email protected]
Tore A. Svinøy Mobile +47 97 55 92 01Lawyer [email protected]
Underwriting
Bjørnar Andresen Mobile +44 (0)7920 163586Senior Vice President, [email protected] Head of Underwriting
Rolf Thore Roppestad Mobile +47 97 55 92 45Senior Vice President, [email protected] Head of Underwriting
Bjarne Sælensminde Mobile +47 99 28 40 61Vice President, [email protected] Adviser
Terje Holte Mobile +852 9154 8101Vice President, Special Adviser [email protected]
Lars Schedenborg Mobile +46 (0)70 792 60 84Special Adviser [email protected]
May Kristin Lillebø Mobile +47 94 52 91 26Business Analyst [email protected]
Asia East
Sid Lock Mobile +852 9196 4210Area Manager [email protected]
Sigvald Fossum Mobile +852 9036 6561Underwriter [email protected]
Karianne Kristensen Mobile +47 97 55 92 72Underwriter [email protected]
30
Grethe Øynes Mobile +47 97 55 91 77Claims Executive [email protected]
Dry Cargo Claims South (Arendal)
Andres Duran Mobile +47 97 55 92 61Senior Manager [email protected]
Odd Helgesen Mobile +47 97 55 92 02Senior Claims Executive [email protected]
Torgrim Andersen Mobile +47 97 55 93 47Claims Executive [email protected]
Sandra Guiguet Mobile +47 97 55 91 71Claims Executive, Lawyer [email protected]
Vincent Gustavi Mobile +47 94 52 93 44Claims Executive, Lawyer [email protected]
Kine Haaland Mobile +47 94 52 22 52Claims Executive, Lawyer [email protected]
Roy Kenneth Jenssveen Mobile +47 97 55 93 41Claims Executive [email protected]
Morten Mauritz Seines Mobile +47 97 55 91 82Claims Executive, Lawyer [email protected]
Beatriz Åsgård Mobile +47 97 55 92 91 Claims Executive [email protected]
Casualty, Environmental, & Property Claims (Arendal)
Andreas Brachel Mobile +47 97 55 91 49Senior Manager [email protected]
Gunnar Espeland Mobile +47 97 55 92 53Senior Claims Adviser [email protected]
Kim Jefferies Mobile +47 97 55 92 90Senior Claims Adviser, Lawyer [email protected]
Tonje Castberg Mobile +47 97 55 91 36Senior Claims Executive [email protected]
Fredrik Doksrød Olsen Mobile +47 97 55 92 32Senior Claims Executive, Lawyer [email protected]
Roar S. Larsen Mobile +47 97 55 91 43Senoir Claims Executive [email protected]
Ole Gunstein Aasbø Mobile +47 94 52 96 57Claims Executive [email protected]
Torgeir Bruborg Mobile +47 94 52 96 18Claims Executive [email protected]
Grethe Ljøstad Mobile +47 97 55 92 16Claims Executive [email protected]
Paul Andor Marskar Mobile +47 94 52 93 69Claims Executive [email protected]
Isabel Martin de Nieto McMathMobile +47 94 52 96 19Claims Executive, Lawyer [email protected]
Malin Petré Mobile +47 94 52 96 54 Claims Executive, Lawyer [email protected]
Liquid Cargo Claims (Arendal)
Mark Russell Mobile +44 (0)7747 758789 Vice President [email protected]
Stefan Bjarnelöf-Sovtic Mobile +47 94 52 96 75Senior Claims Executive [email protected]
Alf Ove Stenhagen Mobile +47 97 55 91 66Senior Claims Executive [email protected]
Emil Evnum Mobile +47 97 55 91 28Claims Executive [email protected]
Severin Frigstad Mobile +47 94 52 91 60Claims Executive [email protected]
Robert Skaare Mobile +47 94 52 93 52Claims Executive [email protected]
Johan Svensson Mobile +47 94 52 96 55Claims Executive [email protected]
P&I and Defence Claims (Oslo)
Christopher Walker Mobile +47 99 29 22 75Senior Manager [email protected]
Michael Moon Mobile +47 94 52 22 11Senior Lawyer [email protected]
Alejandra Hardisson Sterri Mobile +47 99 29 22 71Senior Claims Executive, [email protected]
Hanne Topland Mobile +47 94 52 22 91Lawyer [email protected]
Tove Kaasine Skjeldal Mobile +47 99 29 22 41Claims Executive [email protected]
Anette Stinessen Mobile +47 94 52 22 45Claims Executive [email protected]
Offshore Energy Claims (Oslo)
Jan-Hugo Marthinsen Mobile +47 99 29 22 40Vice President [email protected]
Inger Eidem Mobile +47 97 55 93 90Product Adviser, Lawyer [email protected]
Geir Kjebekk Mobile +47 97 55 92 52Senior Product Adviser [email protected]
Thorbjørn Emanuelsson Mobile +47 94 52 22 51Product Adviser [email protected]
Underwriting Support
Ingebjørg Eliassen Mobile +47 97 55 92 70 Manager [email protected]
Trading Certificates(Bunkers and CLC Blue Cards/COFR/ITOPF
Inger-Helene Andersen Mobile +47 94 52 93 27Underwriting Assistant [email protected]
Liv Gundersen Mobile +47 94 52 91 23Underwriting Assistant [email protected]
Hanna Kristensen Mobile +47 94 52 93 22Underwriting Assistant [email protected]
Claims
Claims Management
Svein A. Andersen Mobile +47 97 55 91 92Senior Vice President, [email protected] of Claims
Leif Erik Abrahamsen Mobile +47 99 28 41 12Vice President, [email protected] Claims
Alice Amundsen Mobile +47 97 55 92 65Vice President, Defence Claims [email protected]
Christopher Mackrill Mobile +47 97 55 93 61Vice President, [email protected] Claims
Jan-Hugo Marthinsen Mobile +47 99 29 22 40Vice President, [email protected] Energy Claims
Lene-Camilla Nordlie Mobile +47 97 55 92 42 Vice President, [email protected] People Claims
Nick Platt Mobile +44 (0)7768 547402Vice President, Environmental Claims [email protected]
Mark Russell Mobile +44 (0)7747 758789 Vice President, Cargo Claims [email protected]
Geir Sandnes Mobile +47 97 55 91 63 Vice President, Claims [email protected]
Terje Paulsen Mobile +47 94 52 40 85Senior Manager [email protected]
People Claims (Arendal)
Lene-Camilla Nordlie Mobile +47 97 55 92 42 Vice President [email protected]
Kristin Aanonsen Mobile +47 97 55 92 47Senior Claims Executive [email protected]
Per Fredrik Jensen Mobile +47 97 55 91 91Senior Claims Executive [email protected]
Christopher Petrie Mobile +47 97 55 93 28Senior Claims Executive, [email protected]
Pål Berglund Mobile +47 97 55 92 37Claims Executive [email protected]
Lisbeth Christensen Mobile +47 97 55 92 75Claims Executive [email protected]
Trond Denstad Mobile +47 97 55 91 90Claims Executive [email protected]
Gudrun Mortensen Aaserud Mobile +47 97 55 91 17Claims Executive [email protected]
Thomas Ravnevand Mobile +47 94 52 96 14Claims Executive [email protected]
Stig Garmann Tønnesen Mobile +47 94 52 91 15Claims Executive, Lawyer [email protected]
Dry Cargo Claims North (Arendal)
Anne Boye Mobile +47 97 55 91 18Senior Manager [email protected]
Einar Gulbrandsen Mobile +47 97 55 91 64Senior Claims Executive [email protected]
Linn Therese Mostad Mobile +47 94 52 92 56Claims Executive [email protected]
Tom Bent Opsal Nielsen Mobile +47 94 52 93 62Claims Executive [email protected]
Gitana Røyset Mobile +47 97 55 91 41Claims Executive, Lawyer [email protected]
Rasmus Tideman Mobile +47 94 52 93 57Claims Executive, Lawyer [email protected]
Radmil Kranda Mobile +47 99 29 22 13Claims Executive, Lawyer [email protected]
Nils-Joakim Rosdahl Mobile +47 94 52 22 43Claims Executive [email protected]
Torstein Søreng Mobile +47 99 29 22 47Senior Claims Executive [email protected]
Marine Claims (Oslo)
Ivar Brynildsen Mobile +47 99 29 22 31Senior Manager [email protected]
Karl Petter Mühlbradt Mobile +47 99 29 22 78Senior Claims Adviser [email protected]
Anne Glestad Lech Mobile +47 99 29 22 76Senior Claims Adjuster [email protected]
Atle Olav Nordbø Mobile +47 94 52 22 24Senior Claims Adjuster [email protected]
Thomas Christiansen Mobile +47 99 29 22 62Claims Executive [email protected]
Hans Jørgen Hald Mobile +47 99 29 22 17Claims Adjuster [email protected]
Helge Stian Ødegaard Mobile +47 99 29 22 12Claims Executive [email protected]
Marine Claims (Bergen)
Leif Erik Abrahamsen Mobile +47 99 28 41 12Vice President, [email protected] Claims
Sveinung Måkestad Mobile +47 99 28 40 32Vice President [email protected]
Adrian Moylan Mobile +47 99 28 40 16Casualty Lawyer [email protected]
Svend Leo Larsen Mobile +47 99 28 40 22Senior Claims Adviser [email protected]
Alf Inge Johannessen Mobile +47 99 28 40 28Senior Claims Adjuster [email protected]
Vidar Solemdal Mobile +47 99 28 40 25Senior Claims Executive [email protected]
Asbjørn Arvid Asbjørnsen Mobile +47 94 52 40 41Claims Executive [email protected]
Trond Justad Mobile +47 99 28 40 27Claims Executive [email protected]
Påsan Vigerust Mobile +47 99 28 40 71Claims Executive [email protected]
Marit Bjørnethun Mobile +47 99 28 40 21Claims Adjuster [email protected]
Svein Arne Nilsen Mobile +47 99 28 40 34Claims Adjuster [email protected]
Defence Claims (Arendal)
Alice Amundsen Mobile +47 97 55 92 65Vice President [email protected]
Heiko Bloch Mobile +47 97 55 92 08Senior Claims Executive, Lawyer [email protected]
Arne Sætra Mobile +47 97 55 92 92Senior Lawyer [email protected]
Veronica Villegas Mobile +47 94 52 96 12 Lawyer [email protected]
Philip Woodroffe Mobile +47 94 52 96 69Lawyer [email protected]
Loss Prevention & Risk Assessment
Terje Paulsen Mobile +47 94 52 40 85Senior Manager [email protected]
Alf Martin Sandberg Mobile +47 97 55 92 51Senior Technical Adviser [email protected]
Bjarne Augestad Mobile +47 97 55 92 54Senior Marine Surveyor [email protected]
Per Arne Sæther Mobile +47 99 28 40 29Senior Marine Surveyor [email protected]
Marius Schønberg Mobile +47 97 55 91 75Senior Loss Prevention [email protected]
Kristin Urdahl Mobile +47 94 52 93 92Loss Prevention Executive [email protected]
Per Haveland Mobile +47 97 55 93 17Marine Surveyor [email protected]
Magnar Birkeland Mobile +47 99 28 40 18Risk Assessment Executive [email protected]
31
Accounting
Solvor Ek Hayes Mobile +47 97 55 91 48Senior Manager [email protected]
Inger Kristiansen Mobile +47 97 55 92 74Senior Manager [email protected]
Jorunn Bjørkli Mobile +47 97 55 92 88Manager [email protected]
Gard (Sweden) AB
Thomas Nordberg Mobile +46 70 311 70 02Managing Director [email protected]
Yvonne Mikulandra Mobile +46 70 787 04 06Controller [email protected]
Underwriting
Michaela Carlström Mobile +46 733 55 51 13Underwriter [email protected]
Malena Edh Mobile +46 705 469 697Underwriter [email protected]
Jonas Albertsson Mobile +46 703 54 60 90Deputy Underwriter [email protected]
Claims
Johan Henriksson Mobile +46 70 787 04 07Senior Manager [email protected]
Thomas Forssen Mobile +46 70 655 92 92Claims Executive [email protected]
Patrik Friberg Mobile +46 70 878 74 15Claims Executive [email protected]
Jonas Gustavsson Mobile +46 70 633 92 94Claims Executive [email protected]
Jerker Paulusson Mobile +46 73 442 60 70Claims Executive [email protected]
Johan Holmqvist Åstrand Mobile +46 70 536 71 54Claims Adjuster [email protected]
Gard (UK) Limited
Bjørnar Andresen Mobile +44 (0)7920 163586Managing Director [email protected]
Nick Platt Mobile +44 (0)7768 547402Vice President, Environmental Claims [email protected]
Mark Russell Mobile +44 (0)7747 758789 Vice President, Cargo Claims [email protected]
Underwriting
Iain Laird Mobile +44 (0)7768 547401Area Manager, [email protected] America & London
Stephen Mulcahy Mobile +44 (0)7799 894670Senior Underwriter [email protected]
Samira Hmam Mobile +44 (0)7990 591911Deputy Underwriter [email protected]
Claims
Ajaz Peermohamed Mobile +44 (0)7747 758978Senior Manager [email protected]
Adrian Hodgson Mobile +44 (0)7747 758956 Senior Claims Executive [email protected]
Chris Connor Mobile +44 (0)7747 758845Claims Executive [email protected]
Jennie Gibson Mobile +44 (0)7786 915855Claims Executive [email protected]
Tina Lind Havdahl Mobile +44 (0)7826 854156Claims Executive [email protected]
Keri Marner Mobile +44 (0)7901 536231Claims Executive [email protected]
Benedicte Plé Mobile +44 (0)7917 351450Claims Executive [email protected]
Misty Sung Mobile +44 (0)7881 921116Claims Executive [email protected]
Kelly Turner Mobile +44 (0)7748 646665Claims Executive [email protected]
Nigel Wright Mobile +44 (0)7795 843634 Claims Executive [email protected]
Defence Claims
Peter Newell Mobile +44 (0)7825 518447 Senior Manager [email protected]
Balvinder Ahluwalia Mobile +44 (0)7766 303047Senior Lawyer [email protected]
Peter M. Chard Mobile +44 (0)7766 251390Senior Lawyer Mobile +44 (0)7733 808051
Hélène-Laurence Courties Mobile +44 (0)7917 195810Senior Lawyer [email protected]
Jim Edwards Mobile +44 (0)7879 235982Senior Lawyer Mobile +44 (0)7547 480246
James Hawes Mobile +44 (0)7887 508198Senior Lawyer [email protected]
Helenka Leary Mobile +44 (0)7766 251387Senior Lawyer [email protected]
Helen Sandgren Mobile +44 (0)7901 530812Senior Lawyer [email protected]
Kelly Wagland Mobile +44 (0)7789 938200 Senior Lawyer [email protected]
Monica Kohli Mobile +44 (0)7920 423832Lawyer [email protected]
Oy Gard (Baltic) Ab
Roberto Lencioni Mobile +358 (0)50 500 0000Managing Director [email protected]
Taru Natri Mobile +358 (0)50 414 6944Office Manager [email protected]
Underwriting
Patrik Palmgren Mobile +358 (0)40 046 5852Manager, Underwriter [email protected]
Henry Hemtman Mobile +358 (0)50 414 6943Underwriter [email protected]
Claims
Johan Lång Mobile +358 (0)50 414 6941Claims Manager [email protected]
Riika Ahtiala Mobile +358 (0)50 414 6946Claims Executive [email protected]
Mikael Björklund Mobile +358 (0)40 544 1949Claims Executive, Lawyer [email protected]
Martin Jansson Mobile +358 (0)50 414 6942Claims Executive, Surveyor [email protected]
Gard (HK) Ltd
Richard Corwin Mobile +852 6391 1334Managing Director [email protected]
Underwriting
Terje Holte Mobile +852 9154 8101Vice President, Special Adviser [email protected]
Sid Lock Mobile +852 9196 4210Area Manager, Asia East [email protected]
Sigvald Fossum Mobile +852 9036 6561Underwriter [email protected]
Katherine Wang Mobile +852 6396 3291Deputy Underwriter [email protected]
Claims
Einar Christensen Mobile +852 9106 9262Claims Director [email protected]
Craig Johnston Mobile +852 6398 7265Senior Lawyer [email protected]
Tony Wong Mobile +852 6398 7265Senior Lawyer [email protected]
Michelle Pun Mobile +852 9337 6463 Senior Claims Executive [email protected]
Charmaine Chu Mobile +852 6478 7264Claims Executive [email protected]
Zoe Ho Mobile +852 6478 7262Claims Executive [email protected]
Nancy Kam Mobile +852 6292 7578Claims Executive, Lawyer [email protected]
Patrick Lee Mobile +852 9107 0302Claims Executive [email protected]
Wallace Yeung Mobile +852 9124 6365 Claims Executive [email protected]
Gard (Japan) K.K.
Tadashi Sugimoto Mobile +81 (0)80 4142 9688 Managing Director [email protected]
Toshiyuki Kawana Mobile +81 (0)90 6479 2544 Manager [email protected]
John Martin Mobile +81 (0)90 3095 2923Claims Director [email protected]
Katsumi Imamura Mobile +81 (0)90 4709 5174 Claims Executive [email protected]
Fernando Shuhei Iida Mobile +81 (0)80 4294 7788Claims Executive [email protected]
Hiroko Suzue Mobile +81 (0)80 4142 9718 Claims Executive [email protected]
Masamichi Yokoyama Mobile +81 (0)80 3546 5062Claims Executive [email protected]
Gard (North America) Inc
Sandra Gluck Mobile +1 (917) 670 3169President [email protected]
Evanthia Coffee Mobile +1 (917) 399 5918Senior Lawyer [email protected]
Frank Gonynor Mobile +1 (917) 670 3164Senior Claims Adviser, Lawyer [email protected]
John Scalia Mobile +1 (516) 551 1577Senior Claims Adviser [email protected]
Edward Fleureton Mobile +1 (917) 670 3510Senior Claims Executive [email protected]
Hugh Forde Mobile +1 (917) 670 3753Senior Lawyer [email protected]
Claudia Botero-Götz Mobile +1 (646) 248 8109Senior Lawyer [email protected]
Kunbi Sowunmi Mobile +1 (646) 812 3447 Senior Lawyer [email protected]
Cheryl Acker Mobile +1 (203) 258 7059Claims Executive [email protected]
Dina Gallaro Mobile +1 (917) 670 3209Claims Executive [email protected]
Christine Thomas Mobile +1 (917) 670 3271Claims Executive [email protected]
Gard (Greece) Ltd
George Karkas Mobile +30 694 451 3350Managing Director [email protected]
Joakim Bronder Mobile +30 693 662 1102Senior Manager [email protected]
Dominic Hurst Mobile +30 694 972 3460Senior Lawyer [email protected]
Alexandra Chatzimichailoglou Mobile +30 697 412 0812Claims Executive, [email protected]
Sarah Hamon Mathiopoulou Mobile +30 693 683 5210Lawyer [email protected]
Dimitris Giginis Mobile +30 698 103 1386 Claims Executive [email protected]
Peggy Lemou Mobile +30 694 646 0128Claims Executive [email protected]
Themis Ploumidakis Mobile +30 694 624 4965Claims Executive, Lawyer [email protected]
Lingard Limited, Bermuda
Graham Everard Mobile +1 (441) 330 3445Managing Director [email protected]
Jackie Stirling Mobile +1 (441) 305 3445Corporate Lawyer [email protected]
DIARY
Gard offices will be closed on the following dates:
Arendal, Bergen, Oslo24th-26th December, 31st December
London24th, 31st December (from 1300 GMT)25th, 26th December, 1st January
Gothenburg2nd November, 24th-26th, 31st December, 1st January
Helsinki6th December, 24th-26th December, 1st January
Hong Kong25th-26th December, 1st January
Tokyo23rd November, 24th December, 31st December
New York22nd-23rd November, 25th December, 1st, 21st January
Bermuda25th-26th December, 1st January
Piraeus24th, 31st December (from 1300 GMT)25th-26th December
Gard AS
Postbox 789 Stoa
NO-4809 Arendal
Norway
Phone: +47 37 01 91 00
Gard AS
Skipsbyggerhallen
Solheimsgaten 11
NO-5058 Bergen
Norway
Phone: +47 37 01 91 00
Gard AS
Støperigata 2, Aker Brygge
NO-0250 Oslo
Norway
Phone: +47 37 01 91 00
Gard (UK) Limited
85 Gracechurch Street
London EC3V 0AA
United Kingdom
Phone: +44 (0)20 7444 7200
Gard (Greece) Ltd
2, A. Papanastassiou Avenue
185 34 Kastella, Piraeus
Greece
Phone: +30 210 413 8752
Gard (North America) Inc
30 Broad Street
New York
NY 10004-2944
U.S.A.
Phone: +1 (212) 425 5100
Gard (Japan) K.K.
Kawade Building, 5F
1-5-8 Nishi-Shinbashi
Minato-ku
Tokyo 105-0003
Japan
Phone: +81 (0)3 3503 9291
Gard (Sweden) AB
Våstra Hamngatan 5
SE-41117 Gothenburg
Sweden
Phone: +46 31 743 7130
Gard (HK) Limited
35/F, The Centrium
60 Wyndham Street
Central
Hong Kong
Phone: +852 2901 8688
Oy Gard (Baltic) Ab
Bulevardi 46
FIN-00120 Helsinki
Finland
Phone: +358 30 600 3400
Gard P. & I. (Bermuda) Ltd.
Gard Marine & Energy Limited
Lingard Limited
Trott & Duncan Building
17A Brunswick Street
Hamilton HM 10
Bermuda
Phone: +1 (441) 292 6766
CATASTROPHE TELEPHONE
NUMBERS
P&I: +47 90 52 41 00
Marine: +47 90 92 52 00
OUTSIDE OFFICE HOURS
TELEPHONE NUMBERS
Gard AS:
+47 90 52 41 00
Gard (UK) Limited:
+44 (0)7747 021 224
Gard (Greece) Ltd:
+30 6936 600 603
Gard (North America) Inc:
+1 (917) 856 6664
Gard (Japan) K.K:
+81 (0)3 3503 9293
Gard (Sweden) AB:
+46 31 743 71 48.
Gard (HK) Limited:
+852 94 61 63 61
Oy Gard (Baltic) Ab:
+358 (0)50 402 7777
www.gard.no
