Jurisprudence on maritime conventions a cmi project to which your assistance is required
Scope of application (Art. 15(2)(a))
Download 1.09 Mb.
|
- Navigate this page:
- Scope of application (notion of "ship") France
- THE 1976 ATHENS CONVENTION ON THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA
- THE HAMBURG CONVENTION 1978 (HAMBURG RULES)
- Scope of application (Art. 2) France
- UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
- SUA CONVENTION 1988 ------------------------------------------------------------------------------------------------------------- Article 3(1) United States
- THE SALVAGE CONVENTION 1989
- Authority to conclude the salvage contract (art.6(2)) England
- Danger of being lost (articles 1(a) and 10) Italy
- Limitation of actions (art. 23) Italy
- Reward (Art. 13) England
Scope of application (Art. 15(2)(a)) New Zealand Kimberley Birkenfield v. Yachting New Zealand Inc. - Supreme Court of New Zealand, 10 November 2006 ([2006] NZSC 93) On 8 August 2002 in the Saronikos Gulf, one and a half miles off the coast of Greece, just before an international windsurfing regatta, there was a collision between a rigid inflatable boat owned by Yachting New Zealand Inc. (YNZ), and driven by Mr. Bruce Kendall, and a windsurfing board, ridden by Ms. Kimberly Birkenfled, an American athlete about to take part in the regatta, and in training for the Olympics. Ms. Kimberly was severely injured and as a consequence of such injuries was confined to a wheelchair. She then brought an action in Wellington in which she sought from Mr. Kendall, YNZ and the International Sailing Federation Ltd. $15m damages. YNZ, in separate but related proceedings, brought in Auckland, applied under the Maritime Transportation Act 1994 for a decree limiting its liability to a figure less than $400,000. The Maritime Transportation Act has given effect to the LLMC Convention, to which New Zealand has acceded. An application to the Supreme Court for leave to appeal was made by Ms. Birkenfeld. Held, by the Supreme Court of New Zealand, that: [1] Since s. 84 of the Maritime Transportation Act contains no restriction to the scope of application of the Convention of Limitation of Liability for Maritime Claims, 1976, the Convention applies to all vessels, whether or not intended for navigating inland water ways. Scope of application (notion of "ship") France Tribunal de Commerce of Marseilles 19 July 2006, Mutuelles du Mans Assurances IARD v. SAIPEM and Others (2006 DMF 798) By order dated 11 January 2000 the Tribunal de Commerce of Marseilles on application of Bouygues Offshore declared the opening of the limitation proceedings in respect of the dredger Jean Maria following its allision on 10 April 1995 with a dock of the pleasure harbour of Marines de Cogolin. On 8 June 2006 Mutuelles du Mans Assurances, acting also on behalf of its co-insurers and the Port de Plaisance Les Marine de Cogolin brought proceedings in order to obtain the revocation of the order on the ground that the Jean Maria is not a seagoing ship and that, therefore, its owners were not entitled to limit their liability. Held, by the Tribunal de Commerce of Marseilles, that: [1] Pursuant to article 1 of the LLMC Convention and to article 58 of law of £ January 1967 a dredger is not a ship and, therefore, its owners are not entitled to limit their liability in respect of loss or damage caused by it. THE 1976 ATHENS CONVENTION ON THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA ------------------------------------------------------------------------------------------------------------- Scope of application (art. 2) England Davis v. Stena Line Limited - The “Koningin Beatrix” - Queen's Bench Division 17 March 2005 ([2005] 2 Lloyd's Rep. 12) Mr and Mrs Davis and their two young children were passengers on Koningin Beatrix when it sailed at 1040 from Rosslare on the morning of 29 October 2000. The scheduled sailing time from Rosslare was 0900, but departure had been delayed because of particularly bad weather. Although the weather had begun to moderate by the time Koningin Beatrix actually sailed, conditions still remained poor with gale force south-westerly winds and rough seas. Wave heights were about 4 metres and there was a 1.5 metre swell. Shortly after Mr Davis had left one of his sons and gone outside, a number of passengers saw him in the sea and raised the alarm. Until Mr Davis was actually spotted from the bridge, the bridge team gave no consideration as to how Mr Davis was to be rescued. Thereafter the master decided to recover him to his ship and ignored the alternative of using the rescue boat of another ship in the vicinity, the Celtic King, which was ready to be launched. It was, however, well known that it was virtually impossible to rescue a man overboard by recovering him to a high-sided vessel like Koningin Beatrix, when its own rescue boats could not be launched because of bad weather. Unfortunately the attempt to rescue Mr Davis alive failed. The widow of Mr Davis brought then a claim against Stena Line Ltd., the owners of the Koningin Beatrix, in the Queen's Bench Division.
In connection with that arrangement, Maritime Freight Forwarders, a non-party Austrian corporation, executed Hapag-Lloyd Container Linie GmbH ("HLCL")'s Sea Waybills ("Waybills") in Vienna, Austria, listing MFA as consignee. This established HLCL as carrier of the subject cheese from Bremerhaven, Germany, the "port of loading", to New York, New York, the "port of discharge" as noted on the Waybills. The four cargoes of cheese were eventually delivered, allegedly in damaged condition, to the Port of Newark, New Jersey. Third-party defendant HLCL sought the dismissal of the action and the transfer of proceedings to the courts of Hamburg, Germany. This is required, HLCL argued, since the Waybills contained a mandatory forum selection clause which provides, in pertinent part: "… any claim or dispute arising under [the Waybill] shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg Courts to the exclusion of the jurisdiction of the courts of any other place …" Held, by the Supreme Court of the State of New York, that: [1] The port of discharge, reference to which is made in article 21(1) (c) of the Hamburg Rules, is the actual port of discharge and not the port listed in the transport document. * By the courtesy of Mr. Michael Marks Cohen, New York, mcohen@nhcslaw.com Scope of application (Art. 2) France Cour d’Appel of Paris 3 December 1997, Ocean View Shipping Ltd. and Others v. Cargill International Antigua and Others (1998 DMF 588) In August 1994 a full cargo of rice was loaded at Yangon (Burma) on the Teesta. A shortage was ascertained during discharge at Conakry (Guinea) and the consignee, Cargill International Antigua commenced proceedings against the carrier, Ocean View Shipping Ltd. in the Tribunal de Commerce of Paris. By judgment dated 23 January 1996 the Tribunal de Commerce affirmed its jurisdiction pursuant to Art. 21 of the Hamburg Rules, since the bill of lading had been issued in Paris. The Tribunal de Commerce held that the Hamburg Rules applied since the port of discharge was in a State party to the Hamburg Rules. The carrier appealed against the judgment. Held, by the Cour d’Appel of Paris, that: [1] France has not ratified the Hamburg Rules and therefore Art. 25 thereof is not applicable, even if the port of discharge is located in a State party to the Hamburg Rules. Italy Corte di Cassazione 14 February 2001, No. 2155, Brendani AB v. Magazzini Generali & Frigoriferi S.p.A. (2002 Dir. Mar. 227). A consignment of paper rolls carried on the m/v Lech was discharged in Naples in damaged conditions. The consignee sued the carrier in Naples. The Tribunal of Naples held the carrier liable for the damage and its decision was affirmed by the Court of Appeal of Naples who found that the provisions of the Hamburg Rules applied, since its ratification had been authorized by Italy with Law 25 January 1983, No. 40. The carrier appealed to the Supreme Court. Held, by the Corte di Cassazione, that: [1] The Hamburg Convention of 1978 is not in force in Italy since its ratification, although authorized by Parliament, has never taken place. United States Caterpillar, Inc. v. m/v Karonga, United States District Court for the Southern District of New York 23 April 2008 (2008 AMC 1128) Five generators carried on board the m/v Karonga were damaged during an ocean voyage from Cristobal (Panama) to Valparaiso (Chile). Shippers (Caterpillar, Inc.) brought proceedings against Neptune Lines, Inc., owners of the Karonga in the United District Court for the Southern District of New York claiming damages, maintaining that the Hamburg Rules applied since they had been ratified by Chile. Neptune Lines instead argued for the application of the Carriage of Goods by Sea Act of the United States. The bill of lading contained a Paramount Clause of the following tenor: “Except where the Carriage covered by this Bill of Lading is to or from a port of locality where there is in force a compulsorily applicable ordinance or statute similar in nature to the International Convention for the Unification of Certain Rules relating to Bills of Lading, dated at Brussels, August 25, 1924, the provisions of which cannot be departed from, this Bill of Lading shall have effect subject to the Carriage of Goods by Sea Act of the United States (COGSA), approved April 18, 1936.” Claimants argued that pursuant to the terms of the Paramount Clause the Hamburg Rules should apply since they were in force in Chile and they were “similar in nature” to the Hague Rules. Held, by the U.S. District Court for the Southern District of New York, that: [1] A bill of lading clause providing that except where the carriage is to or from a port where there is in force a compulsorily applicable ordinance or statute similar in nature to the Hague Rules the United States Cogsa applies cannot entail the application of the Hamburg Rules that are in force in the country of destination since the Hamburg Rules cannot be deemed to be similar in nature to the Hague Rules. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982 ------------------------------------------------------------------------------------------------------------- Damage to environment (art. 228) France Cour de Cassation 5 May 2009, The “Trans Arctic” (2009 DMF 717) In proceedings brought in the Tribunal de Grande Instance of Brest against the master of the “Trans Arctic”, flying the Norwegian flag, in respect of pollution caused by the vessel within the French EEZ the Tribunal refused direct application of article 228 of UNCLOS and maintained its competence even after the request by Norway to stay the proceedings in order to carry our an investigation on the accident and held the master liable to pay a fine. The decision of the Tribunal was subsequently reversed by the Cour d’Appel of Rennes with judgment of 27 September 2007 (2008 DMF 36). Third parties that suffered loss on account of the pollution appealed to the Cour de Cassation. Held, by the Cour de Cassation, that: [1] The Court that has declared the proceedings brought in France against the master of a Norwegian vessel on account of pollution within the French EEZ terminated after delivery in Norway of a final judgment, in connection with that accident, has made correct application of article 228 of UNCLOS and of article 4(2) of MARPOL. Cour de Cassation 5 May 2009, The “Fast Independence” (2009 DMF 719) In proceedings brought in the Tribunal de Grande Instance of Brest against the master of the “Fast Independence”, flying the Maltese flag, in respect of pollution caused by the vessel within the French EEZ the master and the owner were condemned to the payment of a fine of globally 500,000 Euro. In the meantime the Malta Maritime Authority had issued proceedings and condemned the master to pay a fine of 9,500 Maltese pounds (corresponding to about 24,000 Euro). Neither the Tribunal nor the Court of Appeal of Rennes considered that decision relevant, in view of the very small amount of the fine, as compared with that applied by the Tribunal of Brest. The owners appealed to the Cour de Cassation. Held, by the Cour de Cassation, that: [1] The Court of the state within whose EEZ a foreign flag vessel has caused pollution damage, that has refused to take into consideration the decision of the competent authority issued in the state of the flag of the vessel, on account of the small amount of the fine applied by that authority, has misapplied article 228 of UNCLOS. SUA CONVENTION 1988 ------------------------------------------------------------------------------------------------------------- Article 3(1) United States United States of America v. Lei Shi, U.S. Court of Appeals for the IX Circuit, 24 April 2008 On March 14, 2002, the Full Means No. 2, a Taiwanese fishing vessel registered in the Republic of the Seychelles, was sailing in international waters off the coast of Hawaii. The Captain of the vessel was Taiwanese, while its 29 crewmembers, including Lei Shi, the ship’s cook, were mainland Chinese. According to Shi, the Captain and First Mate beat and harassed him repeatedly and, on this date, demoted Shi from the position of cook to deck hand, punctuating the decision with a beating that was particularly severe. A few hours later, Shi responded. He retrieved two large knives from the kitchen, ascended to the deck of the ship, and fatally stabbed both men. According to the government, Shi then ordered the Second Mate to “drive the ship” and ordered the other crewmembers to throw the captain’s body overboard. Shi stated he would kill anyone who disobeyed him and refused to let his fellow crewmates use the radio. Shi retained control of the ship for two days, setting a course for China and threatening to scuttle the vessel if his instructions were not obeyed. On March 16, 2002, the crew overpowered Shi and imprisoned him in a storage compartment on the ship. The crew then set a course for Hawaii. On March 19, 2002, a Coast Guard cutter intercepted the ship approximately 60 miles from Hilo, Hawaii. On March 21 at approximately 3:00 pm, FBI agents boarded the vessel and arrested Shi for violating 18 U.S.C. § 2280, which prohibits acts of violence that endanger maritime navigation. The government filed an indictment charging Shi with several violations of § 2280, which proscribes certain acts of violence that endanger maritime navigation. The statute codifies the United States’ obligations under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), which authorizes any signatory state to extradite or prosecute offenders, regardless of where the offender’s acts occurred. Accordingly, § 2280 authorizes federal jurisdiction over any offender “later found” in the United States after a prohibited act is committed. 18 U.S.C. § 2280(b)(1)(C). In a published order, the district court concluded that it had jurisdiction under the statute. United States v. Shi, 396 F. Supp. 2d 1132 (D. Haw. 2003). Shi initially pled guilty, but soon withdrew the plea, and the government filed a superseding indictment. The new indictment charged Shi with one count of seizing control over a ship by force, in violation of § 2280(a)(1)(A), and two counts of performing an act of violence likely to endanger the safety of the ship, in violation of § 2280(a)(1)(B). The indictment alleged that the acts charged in all three counts “resulted in death,” elevating the maximum statutory penalty for each from 20 years to life in prison. The jury convicted Shi on all counts, and the district court sentenced him to 36 years in prison. Shi filed an appeal. Held, by the U.S. Court of Appeals for the IX Circ., that: [1] Section 2280 codifies the United States’ obligations under the Maritime Safety Convention to extradite or to prosecute those who commit acts of maritime violence. Section 2280 is an exercise of Congress’s constitutional authority to define and punish “Felonies on the high Seas” because it proscribes felony offenses and expressly applies to international waters.. In addition, §§ 2280(a)(1)(A) and (B), the provisions under which Shi was charged, proscribe offenses which meet the definition of piracy. All three acts require the use of force. Section 2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof,” and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship.” THE SALVAGE CONVENTION 1989 •Authority to conclude the salvage contract (art. 6(2)) •Danger of being lost (articles 1(a) and 10) •Limitation of actions (art. 23) •Reward (Art. 13) •Salvage contracts (Art. 6) •Salvage of property (Art. 1(c)) •Salvage operations controlled by public Authorities (Art. 5) •Scope of application (Art. 2) •Services rendered under existing contracts (Art. 17) •Special compensation (Art. 14) ---------------------------------------------------------------------------------------------------------- Authority to conclude the salvage contract (art.6(2)) England Tsavliris Salvage (International) Limited v. Grain Board of Iraq, Queen’s Bench Division (Commercial Court) 1st April 2008 [2008] EWHC 612 (Comm) On 28th August, 2006, in the course of a voyage from Rostock to Umm Qasr, in Iraq, the m/v Altair grounded, close to her destination but in Kuwaiti waters. Thereafter, various unsuccessful efforts were made to re-float the vessel, involving the use of her engines and local tugs. The vessel was successfully re-floated by Tsavliris on the 7th September, 2006. On the 9th September, the vessel berthed at Umm Qasr and a certificate of redelivery was signed (bringing the salvage services to an end). The claim of the salvors against owners was settled at an early stage, but that against the cargo interests was not and the salvors were advised that the cargo, owned by the Grain Board of Iraq, could not be arrested in Iran. They therefore commenced arbitration proceedings in London pursuant to the arbitration clause contained in the Lloyd’s Standard Form of Salvage Agreement, 2000 edition that had been signed by a representative of Tsavliris and, purportedly on behalf of the “property” to be salved, by an employee of the managers of the vessel, acting on behalf of owners. In the arbitration proceedings it was argued on behalf of the Grain Board that the arbitrator had no jurisdiction over the dispute because the Grain Board enjoyed immunity as a State entity and because the power to sign a salvage agreement on behalf of the cargo was granted under Article 6(2) of the Salvage Convention only to the master and the owner of the salved vessel. The arbitration award that rejected both exceptions was appealed by the Grain Board.
[2] A sailing yacht that after repairing its rigging may reach under sail the nearest port is not in danger. Limitation of actions (art. 23) Italy Tribunal of Cagliari 17 December 2008, Moby S.p.A. v. D’Amico Società di Navigazione S.p.A. and Others – The “Zhora” ( not yet reported) In December 2000 Rimorchiatori Sardi S.p.A., subsequently incorporated in Moby S.p.A. rendered salvage services with its tug “Silvia Onorato” to the m/v “Zhora”, owned by Sius di Navigazione S.p.A., subsequently incorporated in D’Amico Società di Navigazione S.p.A. (D’Amico) and its cargo and on 28th November 2003 brought proceedings in the Tribunal of Cagliari against D’Amico and the owners and insurers of the cargo laden on board the Zhora claiming payment of a salvage remuneration for the services rendered, The Defendants raised inter alia the exception of time bar under article 23 of the Salvage Convention 1989, proceedings having been brought more than two years after the date when he services had been completed. Held, by the Tribunal of Cagliari, that: [1] The legal nature of the time limit by which pursuant to the Salvage Convention 1989 any action relating to payment under the Convention must be brought is that of a “decadenza” (“déchéance”) rather than that of a prescription. [2] The provision of the Italian Civil Code (article 2966) pursuant to which the “decadenza” is prevented by the acknowledgment of the debt cannot not apply because under the Convention the only manner by which, in addition to the institution of judicial proceedings, the time bar may be prevented is, pursuant to article 23 (2), the extension of the limitation period by the person against whom the claim is made. Reward (Art. 13) England The Owners of the vessel “Ocean Crown” and Others v. Five Oceans Salvage Consultants –The “Ocean Crown”, Queen’s Bench Division (Admiralty Court) [2009] EWHC 3040 (Admlty) The m.v. “Ocean Crown”, a modern, handy sized, geared bulk carrier, of 52,347 DWT, laden with 49,850.6 tonnes of copper concentrates in bulk, when, in August 2007, in the course of a voyage from Chile to Indian ports, ran aground on an uncharted rock in the Canal Darwin, in about a position 45º 24.57’ S, 074º 03.717’W. By an agreement dated 7th August, 2007, on the LOF standard form of salvage agreement made between the Contractors and the owners of the ship, her cargo, bunkers and stores it was agreed that the Contractors would exercise their best endeavours to salve the vessel and her cargo and that the Contractors’ remuneration for doing so would be determined by arbitration in London. The services were lengthy and successful. They lasted for some 66 days to the redelivery of the ship on the 11th October, 2007 and about 107 days until completion of redelivery of the transhipped cargo (an operation arranged by the Contractors under the LOF) on the 24th November, 2007. The salved fund was of a very high value. The value of the ship (at the termination of the LOF services and so after the casualty) and her stores was US$66,096,259.79, that of her bunkers was US$243,291 and that of her cargo US$99,846,280.00, making a total salved fund of US$166,185,830.79. The arbitrator awarded the Contractors salvage remuneration in the amount of US$34,500,000 plus interest and costs; the appeal arbitrator increased that award to the sum of US$40,750,000, plus interest and costs. The owners of the salved property were granted leave to appeal on three questions of law arising out of the appeal award: i) Whether, when assessing salvage remuneration payable pursuant to a Lloyds Open Form salvage agreement in the standard form, it is correct to take into account, as an enhancing feature, the possibility that the salvor and/or the salvage industry may experience difficult economic conditions in the future; ii) If, in principle, it is relevant to take such matters into account, whether it is permissible to take into account the actual economic conditions experienced between the date of termination of the services and the date of the award; iii) Whether the principle in The Amerique (1874) LR 6 PC 468 is applicable to all types of salvage cases, including complex and comprehensive cases, or whether, as the appeal arbitrator found, a different principle applies in such cases. Held, by the Admiralty Court, that: [1] The value of the salved fund is in any case a significant element in the assessment of a salvage award. Additionally and in accordance with the principle of encouragement already discussed, where the value of the salved property is very high and it is at risk of damage or loss in the absence of assistance, then it is right to give some real effect to the very high value of the salved property beyond simply recognising it as furnishing a sufficient fund out of which to reward salvors. [2] However, the high value of the fund must not be allowed to raise the quantum of a salvage award to an amount altogether out of proportion to the services actually rendered; this is the moderating principle, for which The Amerique stands as authority. Moreover, as observed in the authorities, where the value of the property is high, an award of a small proportion may well provide adequate compensation. [3] The moderating principle in The Amerique (itself a case of derelict) is equally applicable to all cases, whether straightforward, or involving high dangers, or complex services. [4] The application of this moderating principle is necessarily fact sensitive; whether an award will be “altogether out of proportion” to the services actually rendered must involve a consideration (inter alia) of the applicable dangers and the nature of the salvage services. So, an award which is “altogether out of proportion” in a case of low dangers, involving short and simple salvage services may well not be disproportionate in a case where the risks to the salved property are serious and complex salvage services have been provided. The key point is that the value of the salved property by itself must not be allowed to result in an award “altogether out of proportion” to the services actually rendered. [5] Although there is necessarily a “future” element in the principle of encouragement” now expressly mentioned in art. 13(1) of the Salvage Convention 1989, the risk of future economic downturns and the actual economic conditions experienced by the salvor after termination of the salvage services are not factors enhancing the award. The “Voutakos” [2008] EWHC 1581 (Comm), Queen’s Bench Division (Admiralty Court), [2008] 2 Lloyd’s Rep. 516 On 19 October 2006 the motor bulk carrier Voutakos (“the vessel”) suffered a main engine breakdown in the South Western approaches to the English Channel. She was in position Latitude 48° 17’ North, Longitude 07° 58’ West. She was in the course of a voyage from Puerto Prodoco, Columbia to Rotterdam with about 174,496 tons of coal. Very quickly a salvage agreement was entered into between the owners and the salvors on the terms of a Lloyd’s Standard Form of Salvage Agreement 2000 (“the LOF”) and steps were taken by the respondents to identify a suitable tug to take the vessel in tow. In due course the salvors chartered in the ocean going tug Fairmount Glacier from Fairmount Marine. The tug proceeded to the vessel’s position and established a towage connection during the morning of 30 October. The tug then commenced towing the vessel to Rotterdam in good weather conditions. On 31 October the wind increased in force causing the vessel to shear. On 1 November with the wind having increased to force 6 – 7 and the flotilla approaching the Dover straits, the salvors decided to hire in another tug to act as a steering vessel for the casualty. Accordingly the Alphonse Letzer was hired from URS. She made fast to the vessel at 1510 on 1 November and the tow continued. On 2 November the flotilla was close to the entrance channel to Europort where she was due to pick up a pilot. However difficulties in controlling the tow led to the pilot slot being missed. The wind reduced in force and at 08.20 on 3 November the flotilla picked up a pilot and the vessel was duly berthed in Rotterdam at 19.00. The tow had covered some 560 miles. By Final Interim Award dated 7 January 2008 made by Mr. John Reeder Q.C. in his capacity as the Lloyd’s Salvage Appeal Arbitrator substantially increased the salvage remuneration payable for salvage services rendered to Voutakis and her cargo in late October 2006 from US$1,750,000 to US$2,700,000. An appeal against such award was brought by the owners of the Voutakis. Held, by the Queen’s Bench Division (Admiralty Court), that: [1] The “disparity principle” pursuant to which in salvage cases where there is only immobilisation, there exists no great urgency and only straightforward towage is required to effect a cure, it is important that the sum awarded should not be wholly out of line with commercial towage rates. However the question whether any influence should be restricted to straightforward towages cases expressed in such a limited sense is unworkable given the gradations of danger in cases of immobilisation, taken with the problem of identifying the proper status of the salvors to be adopted for the purpose of the claim and the uncertainties as to the terms on which such services might have been performed by others. [2] Although a general increase of commercial towage rates is required properly to comply with the requirements of the 1989 Salvage Convention and the policy issues underlying it, given the current conditions in the shipping and salvage industry as a whole short commercial rates are admissible and relevant but their significance will depend on the facts of each case. In the simplest of towage cases they may be particularly influential and provide, subject to values, a floor to any award that could begin to be regarded as encouraging. The "Star Maria" [2002] EWHC 1423 (Admlty), Queen's Bench Division (Admiralty Court), [2003] 1 Lloyd's Rep. 182 and 2004 Dir. Mar. 455 Shortly after midnight on 2 January 2001 the Star Maria, a steel single screw motor general cargo vessel of 2386 dwt, at the material time she was laden with a cargo of 1300 tonnes of steel products in the course of a voyage from Grimsby to Gemlik in Turkey, was involved in a collision with the Unden about six miles southeast of Dover. As a result of damage caused by the collision water entered the steering gear room and the vessel was effectively immobilised. The casualty requested tug assistance and her starboard anchor was dropped. Far Turbot, an anchor handling tug with a bollard pull of 100 tonnes, was instructed by the Coastguard to proceed to the casualty. She was underway by 0058. At 0113 Doughty, a steel twin screw tug with a bollard pull of 55 tonnes owned by the Board, also set out from Dover to the casualty. The weather conditions were bad. The wind was south south westerly force 7-8 with rough seas and a swell of about 4 metres. High water at Dover was predicted for 0309. At about 0121 contact was established between Doughty and the casualty by vhf. Doughty offered her assistance on the terms of Lloyd's Standard Form of Salvage Agreement ("LOF") and that offer was accepted. By about 0200 Doughty was in the vicinity of the casualty and attempted to make fast. However, although a messenger line was put on board the casualty it parted and the tow wire fouled the tug's propeller. Doughty was as a result unable to provide any assistance and returned to Dover. By about 0300, when Doughty was attempting to make fast, Far Turbot arrived. When it was apparent that Doughty was unable to assist Far Turbot offered her services under LOF which offer was accepted. Far Turbot made fast a tow line and the casualty recovered her starboard anchor. By 0357 towage commenced to Dover. At about 0441 Far Turbot and the casualty approached the eastern entrance to Dover Harbour. The master of Far Turbot requested the assistance of Dauntless, a sister tug to Doughty, to assist in the task of bringing the casualty into the harbour. In response Dauntless left Dover harbour and came up with the casualty at about 0505. By about 0520 Dauntless made fast to the stern of the casualty with a tow rope (not a heavy wire because all that was envisaged was steerage assistance). By this time the casualty was about eight cables due east of the eastern entrance. The wind was force 8-9, there was a four metres swell and, it being over 1 hour after high water, the tidal current off the eastern entrance was running in a north easterly direction. At 0529 the Far Turbot's tow line parted. At this time the casualty was about 4 cables east of the eastern entrance. Captain Billowes, the master of Dauntless, attempted to pull the casualty's stern into the wind but the task was extremely difficult and he did not succeed in doing so. He did not wish to put his own tug beam onto the seas and he had to be careful that his towage connection did not part as a result of snatching. By about 0534 the casualty had dropped her starboard anchor and Far Turbot instructed Captain Billowes to assist the casualty in heading into the wind and hold the casualty whilst Far Turbot established another towage connection. Under the influence of the wind and tide, notwithstanding that she had her starboard anchor out and Doughty was made fast, the casualty drifted in a north north easterly direction. By 0545 the casualty had drifted to a position about two cables off shore. She was just outside the five metre sounding contour, inside which Captain Billowes knew there to be rocky outcrops. It was clear to Captain Billowes that the casualty's starboard anchor was not holding her and that he now had to pull the stern of the casualty out of the shallow water. He succeeded in pulling the casualty to a position about one cable to the south and to seaward of the 10 metre sounding contour. The casualty was advised by Far Turbot to drop her port anchor also which she did. Holding the casualty in that position was a difficult task for Captain Billowes on Dauntless. There were heavy seas and he had to be careful not to allow the towline to part as a result of snatching. This required extremely careful use of his engine power. But he was successful in doing so and the Court had no doubt that he displayed extremely high standards of seamanship. By 0605 Far Turbot re-established her towage connection and the towage into Dover harbour re-commenced. By 0645 the casualty was inside the harbour and brought alongside a berth. Dauntless was released. Later that day, at about 1242 Far Turbot left Dover and resumed her coastguard patrol duties. Held, by the Admiralty Court, that: [1] Having taken into account the criteria listed in Article 13 of the Salvage Convention 1989, that has the force of law in England, and having sought to fix an award with a view to encouraging salvage operations, a fair salvage award to the owner of the Dauntless against the whole salved fund would have been £20,000 plus the costs of repairing damage sustained in providing the service, £1,360.20, making a total award of £21,360.20. Since the claim was against the owners of Star Maria only and ship's proportion of the fund is 12.29%, the salvage remuneration payable by the owners of Star Maria is therefore £2,626.40 plus interest on that sum at the rate of base rate plus 1 per cent from Jan. 3, 2001. Italy Tribunal of Rome 23 January 2003, SE.MAR.PO. v. Finagen - m/y "Gold" 2004 Dir. Mar. 252 In June 1996 the m/y Gold, with about 10,000 litres of gasoil on board as bunker caught fire at Fiumicino. Two tugs of SE.MAR.PO. S.r.l. towed the yacht to Fiumicino where the yacht sank, thus becoming a constructive total loss. The salvors brought an action against the owners of the yacht in the Tribunal of Rome, claiming special compensation under article 14 of the Salvage Convention, 1989. Held, by the Tribunal of Rome, that: [1] No salvage reward is due when the salvage services have not had a useful result. South Africa Transnet Limited v. m.v. Mbashi, The Cargo Laden on board the m.v. “Mbashi” and Safbank Line Limited. On 1 August 1997 at about 17.20 hours the m.v. Mbashi, a 20.000 ton container vessel, sailed out of Durban harbour towards Port Elisabeth. When it reached a point some 3.5 miles from the southern breakwater of the harbour a fire broke out in the engine room and could be doused by pumping carbon dioxide into the engine room. As a result of the fire the vessel lost all power: the helm could not function properly, there was no lights save for emergency lights operated by a battery and the vessel’s radio did not function, so that radio communications could only take place with a VHF short-range portable radio. The master radioed the Durban port authorities informing them of the situation and requesting that two tug boats be sent out to assist the vessel. The port authority gave instructions for two tug boats to proceed to the vessel and render assistance to it. In addition instructions were given to a pilot to proceed on a pilot boat to the vessel. The tugs Bart Grové and Dupel Erasmus reached the vessel and the former was made fast at 19.20 hours, about 1 hour 20 minutes after assistance had been requested. The pilot had already boarded the vessel using a rope ladder and directed the salvage operations. The following morning the ship was towed into Durban harbour. The salvage operations lasted for approximately 17,15 hours. The pilot was engaged for about 17 hours and so was the Bart Grové, whilst the Dupel Erasmus was released after 5.30 hours. The salvors brought proceedings against the m.v. Mbashi, the owners of the cargo laden on board the vessel and the charterers before the High Court of South Africa, Durban and Coast Local Division claiming a salvage reward pursuant to art. 13 of the 1989 Salvage Convention. The defendants argued that the element of voluntariness was lacking since the claimants were under a statutory duty to perform the particular service that had been rendered. Held, by the High Court of South Africa, Durban and Coast Local Division, that: [1] The vessel was in an extremely dangerous situation and a reward of 2.30 per cent of the value of the salved properties (R 128,498,396) must be fixed pursuant to Art. 13 of the Salvage Convention 1989 for the salvage services rendered by the two tugs and the pilot. Directory: Uploads Uploads -> 587 Return function, r i(X) r i(0) r i(1) r i(2) r i(3) 1 0 2 4 6 Thermal Station, I 2 0 1 5 6 3 0 3 5 6 10 Uploads -> Department of science and humanities department of mathematics part-a questions and answers Uploads -> The Case Against the nypd’s Quota-Driven ‘Broken Windows’ Policing What Is It? Uploads -> For want of a nail Uploads -> Ownership Models There are two different types of ownership models Uploads -> Police Militarization Uploads -> City of rising star regular meting thursday, july 14, 2016 Uploads -> Township of winfield Uploads -> Stop Militarizing Law Enforcement Act of 2014 Uploads -> The Black Panther Party’s Ten-Point Program What We Want Now! Download 1.09 Mb. Share with your friends:
|