MODERN ADMIRALTY LAW WITH RISK MANAGEMENT ASPECTSPDF电子书下载

PART Ⅰ ADMIRALTY JURISDICTION AND PROCEDURE 3

INTRODUCTION 3

1 INTRODUCTORY ELEMENTS 5

1 The jurisdiction of the Admiralty Court-Historical overview 5

2 Admiralty jurisdiction at the present time 9

3 Foreign aspects and extent of Admiralty jurisdiction 10

4 The civil law and common law approaches 10

5 Unique aspects of the Admiralty jurisdiction 11

6 The Admiralty Court 13

7 Limits of exercise of Admiralty jurisdiction 14

8 What is a ship? 14

8.1 Why is it important to define it? 15

8.2 Old definition 15

8.3 Modern definitions 17

8.3.1 Physical appearance 17

8.3.2 Used in navigation 18

2 NATURE OF THE ADMIRALTY JURISDICTION 21

1 Introduction 21

2 Maritime liens contrasted with other statutory rights in rem 22

3 Maritime claims under s20(2)of the SCA 1981 25

3.1 (a)Any claim to the possession or ownership of a ship or to the ownership of a share therein 25

3.2 (b)Any question arising between the co-owners of a ship as to possession,employment or earnings of that ship 28

3.3 (c)Any claim in respect of a mortgage of or a charge on a ship or any share therein 29

3.4 (d)Any claim for damage received by a ship 31

3.5 (e)Claim for damage done by a ship 31

3.5.1 Extent of the nature of this claim 31

3.5.2 Does it cover enforcement of claims for pure economic loss? 33

3.6 (f)Any claim for loss of life,personal injury 34

3.6.1 Origins of this provision 34

3.6.2 Wrongful act,neglect or default in the navigation or management of a ship 37

3.6.3 Incidents that occurred on board another ship 37

3.6.4 Defect in a ship,her apparel or equipment under para(f) 38

3.6.5 Claims in the Admiralty Court by foreigners against a foreign ship for a tort committed on the high seas 41

3.7 (g)Any claim for loss of or damage to goods carried on a ship 42

3.8 (h)Any claim arising out of an agreement relating to the carriage of goods on a ship or to the use or hire of a ship 43

3.8.1 General principle 43

3.8.2 Claims in negligence or deceit for ante-dated bills of lading 45

3.8.3 Claims under an agreement for the mooring and unmooring of a vessel 46

3.8.4 Claims against salvors for negligence during the salvage services 47

3.8.5 Claims for indemnity against a shipowner under a towage contract for the loss of a tug 48

3.8.6 Claims for wrongful detention of goods 49

3.9 Excluded claims from para(h) 49

3.9.1 Non-payment of insurance premiums or brokerage 49

3.9.2 Non-payment of container hire or damage to containers under a container leasing agreement 52

3.9.3 The enforcement of an arbitration award obtained in relation to a charterparty dispute 52

3.10 (j)Any claim under the Salvage Convention 1989 53

3.11 (k)Any claim in the nature of towage in respect of a ship or aircraft 54

3.12 (1)Any claim in the nature of pilotage in respect of a ship or an aircraft 54

3.13 (m)Any claim in respect of goods or materials supplied to a ship for her operations or maintenance 55

3.14 (n)Any claim in respect of the construction,repair or equipment of a ship or dock charges or dues 57

3.15 (o)Any claim by master or crew of a ship for wages 57

3.15.1 The breadth of seamen's wages 58

3.15.2 Wages in lieu of notice,when a seaman is wrongly dismissed,and emoluments 61

3.15.3 Severance payments(redundancy pay)were not considered to be part of wages 62

3.16 (p)Any claim by a master,shipper,charterer or agent in respect of disbursements on account of a ship 65

3.17 (q)Any claim arising out of an act which is claimed to be a general average act 67

3.18 (r)Any claim arising out of bottomry 67

3.19 (s)Any claim for the forfeiture or condemnation of a ship or for the restoration of a ship or goods after seizure or for droits of admiralty 68

4 Further jurisdiction of the Admiralty court is given by s20(1)(b)and(3) 68

5 Power of the Court to grant injunctions 69

3 MODE OF EXERCISE OF JURISDICTION 73

1 Introduction 73

2 Claims in personam-s21(1)of the Supreme Court Act 1981 74

3 The in rem claim(or the old action in rem) 75

3.1 The origins of non-rruly in rem claims 75

3.2 Functions of the in rem proceedings 75

3.2.1 The crystallisation of non-truly in rem claims on the property 76

3.2.2 Does’action brought’mean institution of claim? 81

3.3 Who is the defendant in the in rem proceedings? 82

3.4 Nature and features of the in rem claim prior to The Indian Grace(No 2) 84

3.5 The nature of the in rem claim after The Indian Grace(No 2) 85

3.5.1 The decision 85

3.5.1.1 Factual background 85

3.5.1.2 Ratio decidendi 86

3.5.1.3 The reasons 86

3.5.2 Criticisms of the decision in The Indian Grace(No 2) 89

3.5.2.1 The misapplication of the procedural theory decisions 89

3.5.2.2 The sovereign immunity cases-an inappropriate parallel 91

3.5.2.3 The service of proceedings is important in the context of the Brussels/Lugano Convention 92

3.5.3 Consequences of The Indian Grace 93

3.5.3.1 The Indian Grace may have indirectly undermined The Monica S 94

3.5.3.2 The effect of The Indian Grace on other assets of the defendant who would be liable in personam 96

3.5.3.3 Risk management issues 96

3.6 Extent to which the features of the in rem action are affected by The Indian Grace 97

3.7 Another point of view 100

3.8 Conclusion 101

4 The relevant conditions of bringing in rem claims 102

4.1 No conditions in truly in rem claims 102

4.2 Non-truly in rem:in personam link when the cause of action arose 103

4.3 Non-truly in rem:ownership criteria when the action is brought 105

4.3.1 Beneficial ownership and arrest of the relevant ship or a sister ship 105

4.3.2 Minority shareholding in a ship not sufficient for the purpose of arrest 110

4.3.3 Investigation of who is the real beneficial owner:is it permitted? 111

4.3.4 When the corporate veil has been pierced 114

4.3.5 When the corporate veil was not pierced 116

4.3.6 Beneficial ownership and privatisation of State owned corporations 120

4.3.7 Beneficial ownership and risk management 122

5 Property against which an in rem claim may be brought 123

4 PROCEDURE(OVERVIEW) 125

1 Issue of the in rem claim form 125

2 Effect of issue 126

3 Service of the in rem claim form 126

4 Arrest by issue and execution of a warrant 127

5 The aftermath of arrest 128

5.1 Rights of third parties 128

5.2 Provision of security for the claim and release from arrest 130

5.3 Release in particular circumstances 131

5.4 Wrongful arrest 132

5.5 Can there be a re-arrest? 133

5.5.1 Prior to judgment on liability there can be re-arrest with the leave of the court 133

5.5.2 No re-arrest after a judgment on liability has been given 134

5.5.3 A foreign in rem judgment can be executed by re-arrest in this jurisdiction 136

5.5.4 Prohibition of re-arrest by s21(8)of the SCA 1981 137

5.5.5 Re-arrest and risk management 138

5.6 Appraisement and sale by the court 139

5.6.1 When it can be ordered 139

5.6.2 Sale by the admiralty marshal and effect 139

5.6.3 Sale pendente lite 141

6 Competition of claims brought in Admiralty and Company Courts 143

7 Priorities in payment of claims out of the court fund 144

7.1 Statutory powers of port authorities for detention and sale 145

7.1.1 Effect of sale by the admiralty marshal upon the right of the port authority 145

7.1.2 Effect of constituting limitation fund on the right of the port authority 146

7.1.3 The Scottish approach 147

7.1.4 Reconciliation of approaches 147

7.1.5 Port authorities'statutory right of sale and risk management 148

7.2 The ship-repairers'lien and risk management 149

8 Distribution of the court fund by the court 152

9 Applicable law to maritime liens and conflict of laws 154

10 Extinction of maritime liens 159

11 Are maritime liens transferable by assignment of the claim to,or payment by,a third party? 159

11.1 Assignment 159

11.2 Voluntary payment of claims 161

5 RULES AND DOCTRINES RESTRICTING THE JURISDICTION OF THE ADMIRALTY COURT TO ADJUDICATE ON THE MERITS OF A CASE 163

1 Introduction 163

2 Jurisdiction bases 163

3 Occasions when jurisdiction may not be exercised or be maintained 164

3.1 Discontinuance of proceedings on ground of time bars 165

3.1.1 Cargo claims against the carrying ship or her owners 165

3.1.2 Indemnity claims for liability to cargo owners 167

3.1.3 Claims for loss of life or personal injury against the carrying ship 168

3.1.4 Claims of passengers carried on passenger vessels 168

3.1.5 Property or personal injury/loss of life claims against another ship at fault 168

3.1.6 Claims for contribution 169

3.1.7 Salvage claims 169

3.1.8 Claims for wages 169

3.2 No assumption of jurisdiction if a claim in personam is not within Ord 11 169

3.3 Stay on the ground of forum non-conveniens 170

3.3.1 Historical perspective and'the 1936 rule' 170

3.3.2 Why was the 1936 rule distinct from the doctrine of forum non-conveniens? 172

3.3.3 The gradual incorporation of the Scottish doctrine into English law 173

3.3.4 The application of forum non-conveniens principles and service out of the jurisdiction under RSC Ord 11 178

3.3.5 The present formula of forum non-conveniens 179

3.3.5.1 General principle 180

3.3.5.2 Burden of proof 180

3.3.5.3 Effect of founding jurisdiction as of right 180

3.3.5.4 Connecting factors(first stage test) 181

3.3.5.5 Second stage test(all the circumstances) 181

3.3.5.6 Treatment of a legitimate personal juridical advantage 181

3.3.6 Order 11 and forum non-conveniens compared 183

3.3.7 What change did The Spiliada bring to the doctrine of forum non-conveniens? 184

3.3.8 Forum shopping by way of limitation actions 184

3.4 Stay on the ground of a foreign jurisdiction agreement 188

3.4.1 General principle 188

3.4.2 What is a strong cause or reason for the court to refuse stay of proceedings? 189

3.4.2.1 Availability of factual evidence in England is not in itself a strong cause 189

3.4.2.2 Time bar in the contractual jurisdiction is not in itself a strong cause 191

3.4.2.3 Expert evidence in England would be a strong cause 193

3.4.2.4 Multiplicity of proceedings is a strong cause 194

3.4.2.5 The Spiliada connecting factors provide a strong cause 196

3.4.2.6 Forum shopping in breach of a jurisdiction agreement and risk management 197

3.5 Stay on the ground of an arbitration agreement 200

3.5.1 General principles under s9 of the Arbitration Act 1996 200

3.5.2 Application of principles in recent cases 201

3.5.3 The scope of s 11 of the AA 1996 203

6 CONVENTION JURISDICTION BASES AND MULTIPLE PROCEEDINGS IN ADMIRALTY 205

1 Introduction 205

1.1 The Athens Convention 1974 205

1.2 Convention relating to Contracts for International Carriage of Goods by Road 1956(CMR) 205

1.3 The International Convention on Civil Liability for Oil Pollution Damage 1992 206

1.4 The International Convention Relating to the Arrest of Sea-going Ships 1952 206

1.5 The International Convention on Civil Jurisdiction in matters of Collisions 1952 206

1.6 The Brussels and Lugano Conventions 207

2 The ECJCs 209

2.1 Application of the Conventions 209

2.1.1 The domicile rule and allocation of jurisdiction 209

2.1.2 Mandatory versus optional derogation from the domicile rule 210

2.1.3 Inapplicability of certain national jurisdictional rules 211

2.1.4 Convention allocation to other Convention jurisdiction 211

2.2 Community versus national law concepts 211

2.3 Conflicts of jurisdiction-multiple proceedings within Contracting States 213

2.3.1 When does a court of a Contracting State have an obligation to decline its jurisdiction? 213

2.3.2 When does a court of a Contracting State have an obligation to stay its proceedings? 214

2.3.3 When does a court of a Contracting State have discretion to decline or stay its proceedings 214

2.3.4 How do the Convention rules resolve lis alibi pendens? 215

2.3.4.1 English lis pendens versus Convention Us pendens 215

2.3.4.2 When is a court seised 216

2.3.4.3 When is there a'pending action'under the Convention rules? 222

2.3.4.4 The'same cause of action'and'between the same parties' 222

3 How do the Convention rules delegate jurisdiction on the merits? 228

3.1 The window of Art 57 229

3.1.1 The flight to the Arrest Convention 1952 230

3.1.2 How has the trap of The Deichland been prevented? 232

3.1.3 Submission to jurisdiction and bail 234

3.1.4 The new Arrest Convention 1999 235

3.1.5 The flight to the Collision Convention 1952 236

3.2 Return to the general Convention ground of jurisdiction 237

3.2.1 Operation of Arts 21 and 22 237

3.2.2 Definition of related actions 238

4 Can principles of forum non-conveniens be permitted in the ECJC Regime? 239

4.1 The Convention approach 239

4.2 When the defendant is not domiciled in a Contracting State 241

4.2.1 The effect of Art 4 of the Conventions 241

4.2.2 Limitation actions within the Conventions regime and risk management 244

4.3 When the competing court is in a non-contracting State 245

5 Jurisdiction Agreements,Art 17 248

5.1 Is jurisdiction under Art 17 exclusive,in a sense of being mandatory? 248

5.2 Why is the status of Art 17 important? 251

5.3 Is there a conflict between Arts 57 and 17? 254

5.3.1 When does jurisdiction under Art 17 apply? 255

6 An overview of remedies for breach of jurisdiction agreements 258

7 ANTI-SUIT INJUNCTIONS 261

1 Underlying principles 261

2 When an anti-suit injunction can be granted 263

2.1 The’breach of contract'cases 263

2.1.1 General principles 263

2.1.2 Breach of an arbitration agreement 265

2.1.3 Breach of an English jurisdiction agreement 267

2.1.4 Discretion of the judge in’breach of contract'cases 268

2.2 The’non-breach of contract’cases and anti-suit injunctions 269

2.2.1 Historical overview 269

2.2.2 The new formula-stricter approach having regard to comity 271

2.2.2.1 Brief facts of Airbus v Patel 271

2.2.2.2 Airbus v Patel(general principle) 272

2.3 Jurisdiction allocated by a convention and anti-suit injunctions(in’non-contract'cases) 273

2.4 Mixture of’contract'and’non-contract'cases 274

2.5 Are there any common considerations applicable to the various categories? 275

2.5.1 ‘Vexatious or oppressive'-an offensive element in the pursuit of justice 275

2.5.2 The second common consideration is’comity' 276

2.6 Practical considerations and risk management 277

2.7 Conclusion 279

PART Ⅱ ACQUIRING OWNERSHIP IN SHIPS 283

OVERVIEW 283

8 OWNERSHIP,REGISTRATION AND MANAGEMENT OF SHIPS 285

1 Introduction 285

1.1 Importance and role of the ship's flag 285

1.2 Flags of convenience 286

1.3 The regulatory regime 287

1.3.1 The Flag and Port State Controls 287

1.3.2 The role of classification societies in the safety of ships 289

1.3.3 The role of the ISMC and further initiatives on safety 289

1.3.4 The missing link in the equation of safety 291

2 Statutory overview of ownership and registration of British ships 293

2.1 The effect of the Merchant Shipping Acts prior to l995 293

2.2 Who can own and register a British ship under the present statute? 296

2.2.1 Eligibility to own a British ship under the MSA 1995 296

2.2.2 Eligibility to own a British fishing vessel 297

2.3 The decline of British shipping 297

3 Ownership principles 299

4 Management of ships 303

4.1 General overview 303

4.2 The framework of management of ships 305

4.3 Authority of ship managers and risk management 306

4.4 Duties arising from the management agreement 311

4.5 Consequences of breach by the manager and contractual exclusion or limitation of liability 314

4.6 Indemnity and’Himalaya'clauses 315

4.7 Insurance 316

4.8 Safety aspects and the manager's obligations under the ISMC 316

5 Legal implications of the ISMC 319

5.1 Effect of non-compliance 319

5.2 The rule of attribution 320

5.3 The due diligence provision of the HVR 322

5.4 Privity of the assured under s 39(5)of the MIA 1906 324

5.5 Limitation of liability 328

5.5.1 From an English law perspective 328

5.5.2 From a US perspective 330

5.6 Criminal liability 334

5.6.1 Statutory offences under the MSAs 334

5.6.2 Criminal liability under SI 1998/1561 336

5.6.3 Criminal liability of a company for involuntary manslaughter 338

5.6.3.1 The test for gross negligence manslaughter against individuals 339

5.6.3.2 Attributing liability for gross negligence manslaughter of individuals to the company 340

5.6.3.3 The future of corporate manslaughter 344

9 SHIP MORTGAGES 347

1 Introduction 347

2 What is the nature of a ship mortgage in English law? 348

2.1 The property transfer theory 348

2.2 The statutory nature of a ship mortgage perfected by registration 350

3 Effect of the statutory scheme of registration 353

4 Unregistered ships and status of an unregistered mortgage 355

5 Comparison of a ship mortgage with other types of security 357

5.1 Charge 357

5.2 A pledge 358

5.3 Common law possessory lien 359

6 Priorities of mortgages 359

6.1 Priorities between mortgages 359

6.2 Further advances 361

6.3 Harbour authority claims and risk management by the mortgagee 362

7 Conflict of laws 363

7.1 Law governing the mortgage and law of the agreement to grant a mortgage 363

7.2 Priorities between foreign liens and mortgages 365

7.3 Proposed solutions and risk management issues 369

8 Rights and obligations of the mortgagor 370

8.1 The mortgagor is bound by contractual covenants 370

8.1.1 An obligation to insure 370

8.1.2 An obligation to maintain the ship in good condition and repair 371

8.1.3 An obligation to notify the mortgagee 372

8.1.4 An obligation to discharge claims or liens 372

8.1.5 An obligation not to sell or grant a charge on the ship 373

8.1.6 An obligation of legal trading 373

8.1.7 A covenant as to charterparties 373

8.2 The mortgagor's statutory obligations 373

8.3 The mortgagor's right of ownership of the mortgaged ship 373

8.4 The mortgagor's right to redeem the ship 375

9 Mortgagee's rights and obligations 379

9.1 The right to take possession 379

9.1.1 What would amount to default? 380

9.1.2 When would the security be impaired? 380

9.2 Mode of exercising his powers 382

9.3 Mortgagee's rights and obligations in possession 383

9.3.1 Right to freight 383

9.3.2 Obligation during operation and management 384

9.4 Power of sale 385

9.4.1 Source of power 385

9.4.2 Role of the mortgagee in the sale of the ship 385

9.4.3 Nature of duty of the mortgagee in the exercise of his power of sale 386

9.4.4 Effect of sale by the mortgagee 391

9.5 Appointment of a receiver 391

9.6 Foreclosure 392

10 Effect of mortgagee's exercise of rights upon charterparties 393

10.1 The issues 393

10.2 Charterparty subsequent to the mortgage(leading cases) 394

10.3 Charterparty entered into prior to the mortgage(leading cases) 396

10.4 Can a purchaser of a ship be bound by a pre-existing charterparty?(A related matter) 399

10.5 An injunction on the ground of tort of knowing interference with contractual rights 400

10.6 Conclusion 403

10.6.1 A post-mortgage charterparty:the impairment factor 403

10.6.2 A pre-mortgage charterparty:the knowledge factor 403

10.6.3 Exception to De Mattos principle 404

10.6.4 The tort of wrongful interference with a contract 404

11 Risk management and insurance issues of the mortgagee 406

10 SHIPBUILDING 409

1 Introduction 409

2 Nature of shipbuilding contracts 409

3 Pre-contract stage 415

4 Significance of representations during negotiations and risk management 416

5 The making of a shipbuilding contract and risk management 417

6 The framework of the contract 420

7 Types of contractual terms 421

7.1 General 421

7.2 Implied terms under the SOGA 1979 421

7.2.1 Compliance with description(the law before 3 January 1995) 422

7.2.2 The’taming'of the SOGA 1979 by the SSGA 1994 424

7.2.3 The Demise of’merchantable quality' 425

7.2.3.1 The law until 3 January 1995 425

7.2.3.2 The law after 3 January 1995 425

7.2.4 Fitness for purpose 426

7.2.4.1 Reliance on the skill and judgment of the seller 427

7.2.4.2 Idiosyncrasy of the subject matter 428

7.3 Exclusion clauses and the Unfair Contract Terms Act 1977 429

8 The specification 430

9 Increase of price 431

9.1 Lack of consideration and risk management 431

9.2 Economic duress and risk management 434

10 Basic rights and obligations of the parties 435

10.1 Payment,transfer of title and protection of the builder in the event of non-payment 436

10.1.1 Title and risk 436

10.1.2 Statutory protection of the builder in the event of buyer's default 436

10.1.3 Buyer's default and contractual protection of builder 437

10.1.4 Repudiation of contract and risk management 437

10.1.5 What is to happen to the vessel on rescission by the builder? 438

10.1.6 Rights of the builder under the guarantee for payment of instalments 439

10.1.7 Acceleration in payment and penalty clauses 441

10.2 Builder's guarantee,trials and risk management 443

10.3 Default by builder-the buyer's right to reject the ship or rescind the contract 445

10.4 Delay in delivery and force majeure 446

10.5 Effect of buyer's rescission 448

10.6 Can specific performance be ordered? 449

11 Insurance and management of risks 450

12 Manufacturer's or builder's liability to third parties for defective products 451

11 SHIP SALE AND PURCHASE 455

1 Introduction 455

SECTION A THE NEGOTIATIONS AND CONTRACT STAGE 457

2 The making of the contract and good faith 457

3 The parties’obligation to avoid misrepresentations 458

3.1 Untrue statements forming express terms of the contract 458

3.2 Mere representation inducing the contract 459

3.3 Brokers’role and risk management 460

4 On the making of a binding contract and risk management 461

4.1 Express your intention clearly 461

4.2 The effect of non-signing a formal document upon the validity of the contract 463

4.3 The effect of’buyer to be nominated'on the validity of the contract 465

4.4 What do’subjects’mean? 467

5 Classification of terms of a contract and their importance 473

5.1 At common law 473

5.2 Under the Sale of Goods Act 1979 474

5.2.1 Sale by description 475

5.2.2 The passing of property 475

6 Contractual terms under standard forms of the sale contract 477

6.1 When is the deposit payable? 477

SECTION B THE INSPECTIONS STAGE 479

6.2 Inspections by the buyer 479

Section C THE COMPLETION STAGE 480

6.3 Inspection by classification society(drydocking) 480

6.4 Notice of readiness and risk management 483

6.5 Essential documentation for exchange at delivery 487

6.6 Sellers’obligations under cl 9 487

6.6.1 Sellers’undertaking 487

6.6.2 Construction of cl 9 488

6.6.3 Comments on the wording of cl 9 in the 1987 and 1993 NSF 490

6.6.4 Judicial interpretation of cl 9 NSF 1993 490

6.6.5 Risk management in drafting and safeguarding against breach of cl 9 492

6.7 Condition of vessel on delivery and risk management 493

6.8 The closing meeting 498

6.9 Post-delivery matters 498

7 The parties’respective remedies for default 499

7.1 Buyer's default 499

7.1.1 The seller's contractual remedies 499

7.1.2 The seller's statutory remedies 500

7.2 Seller's default 501

7.2.1 Delay in delivery or non-delivery as per contract 501

7.2.2 Other breaches by the seller 502

7.3 Causation and remoteness of loss 503

7.4 Mitigation of loss by the buyer 504

7.5 Currency of loss 505

8 Legal and commercial risk management for the buyer 506

8.1 Considerations before exercising the option to reject the ship 506

8.2 Considerations before applying for a freezing injunction against the purchase money 507

8.2.1 The underlying principles 507

8.2.2 Limits of granting such an injunction to a buyer of a ship 508

8.2.2.1 There must be an accrued cause of action 508

8.2.2.2 Obligation to notify the sellers of the application prior to delivery 512

9 Civil liability of Classification Societies to buyers and other third parties 513

PART Ⅲ SAFETY REGULATIONS IN NAVIGATION AND LIABILITIES OVERVIEW 529

12 COLLISIONS AT SEA AND LIABILITIES 531

Introduction 531

SECTION A 531

1 The Collision Regulations and their application 531

1.1 Origins of the regulations 531

1.2 Statutory presumption of fault and its subsequent abolition 532

1.3 The law and regulations at present 533

1.4 Ships being subject to the Collision Regulations 534

1.5 Definition of vessel and ship 534

1.6 Types of Collision Regulations 536

1.6.1 General 536

1.6.2 Steering and sailing rules(Pt B,Section Ⅰ) 536

1.6.3 Conduct of vessels in sight of each other(Pt B,Section Ⅱ) 542

1.6.4 Conduct of vessels in restricted visibility (Pt B,Section Ⅲ) 544

1.6.5 Lights and shapes (Pt C) 546

1.6.6 Sound and signals (Pt D) 547

SECTION B 548

2 Criminal liability 548

2.1 General 548

2.2 Statutory offences under the MSA 1995 548

2.2.1 Disobeying the Collision Regulations 548

2.2.2 Not giving assistance to vessels after collision or to vessels or persons in distress 550

2.2.3 Breach of documentation and reporting duties 551

2.2.4 Dangerously unsafe ships and unsafe operation of ships 552

2.2.5 Conduct endangering ships,structures or individuals 553

2.2.6 Offence in relation to lighthouses,buoys or beacons 555

2.2.7 Breach of duty to give directions after shipping casualties 555

2.3 Involuntary manslaughter for breach of duty 556

SECTION C 559

3 Civil liability 559

3.1 Introduction 559

3.2 Who may be liable? 560

3.2.1 The employer of the wrongdoer in personam 560

3.2.2 Persons responsible for the management and operation of the ship 562

3.2.3 Liability attaches on the ship 562

3.2.4 Master and crew 563

3.2.5 Tug or tow 563

3.2.6 Salvors 564

3.2.7 Pilots 564

3.2.8 Port authority 565

3.2.9 Shipbuilders and ship-repairers 568

3.3 Actionable negligence 568

3.4 Breach of the duty of care 569

3.4.1 Standard of care and burden of proof 569

3.4.2 Res ipsa loquitur 571

3.5 Causation in fact 573

3.6 Causation in law 576

3.7 Defences available to the defendant 577

3.7.1 Inevitable accident 577

3.7.2 Contributory negligence 579

3.7.2.1 The proportionate fault rule 579

3.7.2.2 When and how does the rule apply? 579

3.7.2.3 The effect of subsequent negligence by the claimant-multiple causes 583

3.7.3 Actus novus interveniens 588

3.7.4 Exceptions to the proportionate fault rule 590

3.7.4.1 Alternative danger 590

3.7.4.2 When a clear line can be drawn between two separate negligent acts 591

3.7.4.3 When an innocent third ship claims against one of the tortfeasors 593

3.7.4.4 Claims for personal injury or loss of life 594

3.7.5 The defence of necessity 594

3.7.6 Time bar defence 594

3.8 How claims for loss of life and personal injury are dealt with 595

3.9 Claims in relation to cargo damage 596

3.10 Claims in relation to collision between a ship and other objects 602

3.11 Contribution between joint tortfeasors 605

3.11.1 The common law rule in non-admiralty cases 605

3.11.2 Property claims in admiralty 606

3.11.3 Non-property claims in admiralty 606

3.11.4 When the common law rule applies in admiralty 606

3.12 Remoteness of damages 607

3.12.1 General principle 607

3.12.2 The kind of damage 617

3.12.3 Extent of damage 618

3.12.4 Mitigation of loss or damage 620

3.12.5 The idiosyncrasy of the claimant,remoteness and mitigation of damages 621

4 Assessment of damages 627

4.1 General principle:restitutio in integrum 627

4.2 Total loss of a ship 628

4.2.1 Value of the ship(how is it ascertained) 628

4.2.2 Loss of a profitable charterparty 629

4.3 Partial loss of the ship and incidental losses 631

4.3.1 Cost of repairs 631

4.3.2 Loss of profit 631

4.3.3 Out of pocket expenses and financial loss 632

4.3.4 Detention time and dock charges 635

4.4 Pollution damage 637

4.5 Damages in foreign currency 639

5 Limitation of liability 640

6 Limitation periods for commencement of claims 640

7 Insurance issues and risks arising from collisions 641

PART Ⅳ ASSISTANCE AT SEA AND IN PORTS 647

OVERVIEW 647

13 SALVAGE 649

1 Introduction 649

2 The Concept of Salvage under maritime law 650

3 Salvage under contract 651

4 The Salvage Conventions 652

5 Preconditions of salvage 654

5.1 The relevant waters for salvage prior to the Salvage Convention 1989 654

5.2 The law under the Salvage Convention 1989 657

5.3 What is a recognised subject of Salvage 658

5.3.1 The law prior to the Convention 658

5.3.2 The law after the Convention 658

5.3.3 Hovercrafts/aircraft 659

5.3.4 Bunkers 660

5.3.5 Cargo 660

5.3.6 Freight 660

5.3.7 Life salvage 660

6 Elements of salvage 662

6.1 Danger 662

6.1.1 General principles 662

6.1.2 Future or contingent danger 665

6.1.3 Effect of danger on a towage contract 666

6.1.4 Threat or danger to the environment 668

6.2 Voluntary services 668

6.2.1 Pre-existing agreement preventing salvage 668

6.2.2 Exemptions 670

6.2.2.1 When would the services of the master and crew qualify for salvage award? 670

6.2.2.2 When would the services of tugs under towage qualify for salvage award? 670

6.2.2.3 When would the services of pilots qualify for salvage award? 671

6.2.2.4 Would cargo-owners be able to claim a salvage award for services rendered? 674

6.2.3 Could performance of duties arising under statute or official duty be a bar to salvage award? 676

6.2.3.1 Duty to assist after a collision 676

6.2.3.2 Duty to assist others in distress 678

6.2.3.3 Salvage by officers under orders of a naval commander of the Royal Navy 679

6.2.3.4 Salvage operations controlled by public authorities 680

6.2.3.5 Salvage operations and HM coastguards 682

6.2.3.6 Salvage by lifeboat crews of the RNLI 682

6.3 Success 683

6.3.1 Meritorious services 683

6.3.2 Salvage services by standing by a vessel in danger 686

6.3.3 Salvage and engaged services 686

7 Salvage Agreements 687

7.1 General 687

7.2 Court's intervention 689

7.2.1 When the agreement is reached by extortion or overbearing conduct 690

7.2.2. Misrepresentation and non-disclosure 690

8 The Master's authority to enter into salvage agreements 692

8.1 Master's authority at common law 692

8.1.1 The basis of the master's authority to bind his principal to a salvage contract 693

8.1.2 The basis of the master's authority to bind cargo interests to a salvage contract 693

8.2 Master's authority under the Convention 702

9 Duties and conduct of salvors 704

9.1 Best endeavours 704

9.2 Due care 705

9.3 Negligent misconduct 706

9.4 Unresolved issues 715

9.5 Negligence occurring before salvage services were rendered 717

10 The position of several salvors 719

10.1 Dispossession of one salvor by another under maritime law salvage 719

10.2 Dismissal of a salvor under contract by the master of the vessel being salved 721

10.3 The position of several salvors under the Salvage Convention 1989 724

11 Duties of the Salved 724

11.1 Duty to co-operate 724

11.2 Obligation to provide security to salvors 726

12 Assessment of the award and special compensation 727

12.1 The underlying principles and developments 727

12.2 The criteria of assessing the salvage award and special compensation 730

12.3 The decision in The Nagasaki Spirit 732

13 Problems arising from the drafting of the Convention 734

13.1 Territorial limits 735

13.2 Substantial physical damage 735

13.3 Threatened damage 735

13.4 Fair rate 736

13.5 The increment 736

13.6 Security for special compensation 737

13.7 The solution provided by the SCOPIC-government intervention 737

14 Apportionment 740

15 LOF 2000 overview 740

16 An overview of environmental salvage 741

Successful saving of The Castor and related problems 743

17 Jurisdiction 744

18 Time limits 745

14 TOWAGE 747

1 Introduction 747

2 Definitions 747

3 Towage versus salvage 749

4 The making of a binding contract 753

4.1 Authority of the master to bind the shipowners 753

4.2 Authority of the master to bind the cargo-owners 755

4.3 Authority of the tugmaster 756

4.4 Pre-contractual duties 757

4.5 Unfair contract terms 758

5 Commencement of towage,interruption and termination 759

5.1 Commencement 759

5.2 Interruption of towing 763

5.3 Termination of towing 765

6 Duties of the tugowner 766

6.1 Fitness of the tug for the purpose for which she is required 766

6.1.1 Cases in favour of an absolute warranty of fitness 767

6.1.2 The view that there is no absolute warranty of fitness of the tug 772

6.1.3 What do the contractual terms of standard towage contracts provide? 774

6.2 The position of fitness when a specific tug is requested 775

6.2.1 One school of thought:no absolute warranty of fitness 775

6.2.2 Second school of thought:there can be no general rule about absence of a warranty of fitness 778

6.2.3 Tug fitness and risk management 779

6.3 To use best endeavours to complete the towage 779

6.4 The duty to exercise proper skill and diligence throughout 780

7 Duties of the tow 781

7.1 Duty to specify what is required and to disclose the condition of the tow 781

7.2 The tow to exercise due care and skill during the towage 783

7.3 To pay remuneration to the tug 783

8 Relationhip between tug and tow and their liabilities to third parties 784

8.1 Tug and tow 784

8.2 Tug,tow and third parties 785

8.2.1 Tug in control of a particular manoeuvre 786

8.2.2 Contrast between the’unit’and the’control’theories 787

8.2.2.1 The unit theory(the notion of identity) 787

8.2.2.2 The control theory 789

8.2.2.3 Application of the control theory for risk management 791

8.2.3 Joint tortfeasors(the common law rule) 792

8.2.4 Contribution between joint tortfeasors by statute 795

9 Exclusion from liability and indemnity clauses(risk management issues) 797

9.1 The ambit of the exception from liability clauses 798

9.2 Indemnity clause 802

9.3 Limitations to exclusion and indemnity clauses 804

10 The substitution and Himalaya Clause of the UKSTC 808

10.1 Substitution 808

10.2 The Himalaya provision and the Contracts (Rights of Third Parties) Act 1999 809

11 Limitation of Liability 812

15 HARBOURS AND PILOTAGE 815

Introduction 815

SECTION A-ASPECTS OF LAW AFFECTING HARBOURS 817

1 Sources of powers and definitions 817

1.1 Statutes and regulations regulating harbours’powers 817

1.2 Definitions 818

2 Types of harbour authorities 819

3 Powers,duties and liabilities of harbour authorities 820

3.1 Powers of harbour authorities 820

3.2 Duties and rights of harbour authorities 821

3.2.1 Duty to operate the port 821

3.2.2 Statutory duty to provide navigational safety,and other safety procedures 825

3.2.2.1 Abandonment of wreck by its owner and powers of harbour authorities 827

3.2.2.2 Legal risks management in drafting 831

3.2.2.3 The duty to mark wrecks and liability to third parties arising from unmarked wrecks risk management issues 832

3.2.3 Statutory duty to maintain the port in good condition and risk management 835

3.2.4 Common law duty of care to make the port safe for users and risk management 836

3.2.5 Contractual duty to make the port reasonably safe 839

3.2.6 The duty to provide efficient pilotage services 840

4 Liability of shipowners for damage caused to harbours 842

5 Harbour dues 853

SECTION B-PILOTAGE LAW 853

1 Introduction 853

2 Duties of a competent harbour authority in relation to pilotage 855

2.1 Consideration and provision of pilotage service 855

2.2 Authorisation of pilots 856

3 Charges by the competent harbour authority 857

4 Duties of masters and pilots in a compulsory pilotage area 857

5 Pilot's authority and division of control between master and pilot 859

6 Liability of a pilot 862

7 Liability of harbour authorities with respect to pilotage 863

8 Liability of the shipowner for negligence of the pilot 864

PART Ⅴ MISCELLANEOUS 875

OVERVIEW 875

16 EXCLUSION AND LIMITATION OF LIABILITY 877

1 Introduction 877

2 The scope of tonnage limitation of liability under the 1976 Convention 879

2.1 Reasons of acceptance of the 1976 Convention 880

2.2 Application of the Convention and limitations 881

2.2.1 Limitation to sea-going ships 881

2.2.2 Hovercraft not included in the Convention 882

2.2.3 Minimum tonnage 882

2.2.4 Floating and drilling platforms excluded 882

3 Persons entitled to limit 882

3.1 Shipowners and others 883

3.1.1 Owner,manager or operator 883

3.1.2 Charterer 884

3.1.3 Any person for whose act,neglect or default the shipowner or salvor is responsible 885

3.2 Salvors 886

3.3 The liability insurer 887

3.3.1 When is there a right of action against the insurer? 887

3.3.2 ‘Pay to be paid rule’under the rules of the liability insurer 889

3.3.3 Insurer's contractual and statutory defences 889

3.3.4 Implications for claimants in respect of personal injury,or loss of life 890

3.3.5 What the future holds for passengers 891

3.4 Harbour authorities 892

4 Claims subject to limitation 893

4.1 All claims whether for damages or for a debt or indemnity (Art 2(l)(2)) 893

4.2 Expenses incurred for wreck removal imposed by law (not being incurred contractually) (Art 2(l)(d)(e)) 894

4.3 Claims occurring on board or in direct connection with the operation of the ship or with salvage operations (Art 2(l)(a)) 895

4.4 Claims for consequential loss under Art 2(l)(a),and a possible anomaly 896

4.5 Claims for loss resulting from delay (Art 2(l)(b)) 897

4.6 Claims for rights which have been infringed (Art 2(l)(c)) 897

4.7 Claims in respect of measures taken in order to avert or minimise loss (Art 2(l)(f)) 898

5 Claims excepted from limitation (Art 3(a)-(e)) 898

5.1 Salvage and contribution in general average claims 899

5.2 Claims for oil pollution 899

5.3 Nuclear damage claims 900

5.4 Claims by the master and crew against employers 900

5.5 Claims by harbour authorities for expenses in relation to wreck raising or removal in the UK 902

5.6 Claims of contractors with shipowners in respect of steps taken to avert or minimise loss 902

6 Exclusion of total liability 903

7 Conduct barring limitation or exclusion of liability 905

7.1 Comparison between the’fault and privity’system and the present systems of limitation 907

7.1.1 Burden of proof 907

7.1.2 Personal act or omission versus acts or omissions of others 908

7.1.3 ‘Fault or privity’versus’intent or recklessly and with knowledge' 909

7.1.4 Faults of ship-managers under the old system as compared with the present 915

7.1.5 ‘Loss’and’such loss' 917

8 Corporate personality and whose misconduct should be attributed to the company 919

8.1 The concept of the’alter ego’of a corporation 919

8.2 The’identification’doctrine 924

8.3 The’Meridian rule of attribution’by interpretation of the substantive rule of law 929

8.4 The effect of the ISMC on limitation and risk management 930

9 Establishment of the limitation Fund 934

9.1 Procedural matters under the Convention 934

9.2 Counterclaims 935

9.3 Amount of limitation 935

9.4 Procedure in the Admiralty Court in relation to limitation (brief account) 937

17 THE EUROPEAN COMMISSION AND MARITIME SAFETY 939

Recent developments 939

1 Introduction 939

2 First set of proposals 940

2.1 A proposed amendment to Directive (94/57/EC)on inspections of ships 940

2.2 Phasing out single-hull tankers 940

2.3 Amending the directive on Port State Control 941

3 Second set of Proposals 941

3.1 The proposed directive for a Community monitoring,control and information system 942

3.2 The proposed regulation for establishment of a Maritime Safety Agency 943

3.3 The proposed regulation on the establishment of a fund for compensation for oil pollution damage in European waters and reform of the liability regime 944

3.3.1 The present system of compensation for oil pollution 944

3.3.2 The Commission's proposals and reasons 946

3.3.3 A brief commentary on the Commission's proposal 947

18 RISK MANAGEMENT CULTURE AND COLLECTIVE RESPONSIBILITY 951

1 Introduction 951

2 Understanding infrastructures of shipping companies 952

2.1 Internal infrastructures 953

2.1.1 Vertical and horizontal structures 953

2.1.2 Safety culture 954

2.1.3 Risk tolerance 954

2.2 Relational infrastructures 954

2.2.1 Corporate interrelations 954

2.2.3 Owners and others 955

2.3 External infrastructures 956

2.3.1 Regulatory and fiscal 956

2.3.2 Third parties’factors 956

2.3.3 Market forces 957

3 Collective responsibility and commitment 958

3.1 Risk exposure 958

3.2 Risk profile 959

3.3 Risk management standards for risk control 960

3.3.1 At the incorporation stage 960

3.3.2 At the technical and operational stage 961

3.3.3 At the contract stage 961

3.3.4 At the performance stage 962

3.3.5 At the dispute resolution stage 965

3.4 Enhanced safety culture 965

3.4.1 Adopting a systematic process 965

3.4.2 Funding risks 966

3.4.3 Commitment to change and collective responsibility 966

Index 969