In spite of its reputation as a conservative industry, shipping has a long record of technological innovation and advance. It would be wrong to portray seafarers and their unions as Luddites opposed to all forms of new technology.

History shows how adaptive and resilient mariners can be and in most cases these advances have been embraced, not least when they have been shown to deliver improvements in safety or living and working conditions on board ship.

However, I don’t believe it is right that we just sit back and let the tide of progress sweep over us. I’m certainly concerned about the way that some of the debate over autonomous shipping has unfolded so far.

The torrent of trials and projects that hogged the headlines over the past year has lacked a sense of the human element. To us, it seems that much is being driven by equipment manufacturers and potential service suppliers – with the result that the agenda has concentrated on systems rather than their potential social and human impact.

We must remember that the introduction of some new systems and equipment in the past has not been painless and that some technologies have not been successful, especially when retro-fitted.

The shipping industry and those who regulate it need to exercise caution in the adoption of autonomous ships – acknowledging that changes should be evaluated at every stage. This process should begin now, with analysis of the existing impact of automation – and most notably to assess it as a factor within accident investigation reports. There is an urgent need for research to assess these critically important factors. Too often, accidents are written off as being the consequence of “human factors” when, in reality, issues such as ergonomics, equipment design and training are of crucial significance.

Despite the zeal of the equipment and systems manufacturers, I suspect that the adoption of autonomous ships will be driven largely by economics. ‘Smart ships’ and the supporting infrastructure will require huge amounts of investment and savings on labour may be marginal, given the relatively low cost of many seafarers in the global maritime labour market. However, I would argue that economics should not be the core criterion influencing the adoption of autonomous systems – it should be safety.

Nautilus believes there is worrying evidence already that safety is taking second place in the debate. There’s no sense of a considered approach to the implications for people, and there’s a danger that the fragmented and uncoordinated use of big data could prove counter-productive.

We have the potential to use technology to advantage – to make the lives of seafarers not only safer but qualitatively better. We’ve all heard the repeated complaints about the burden of paperwork at sea these days – why are we not better harnessing IT to eliminate those tedious tasks?

I want to see more of a debate about the potential for technology to improve the nature of work for maritime professionals – emphasising the ‘high tech’ nature of the sector and removing some of the inherently unsafe aspects of work at sea.

Properly managed, the transition to ‘smart’ shipping operations will not mean the demise of seafaring but instead could lead to the creation of different ways of working, such as new specialist ship ‘operators’ and ‘maintainers’ based at sea and ashore.

During the transitional period, new technologies offer significant potential to improve safety – with intelligent use of sensors and diagnostic tools being of considerable help to deck and engineering departments in supporting decision-making and situational awareness.

Done properly, new skills for new technologies have the potential to create better paid employment, reflecting the increasing scarcity of specialist staff to construct, fit out, operate, and maintain these new systems. As with the first industrial revolution, there is an opportunity to create and develop new specialist skills.

Let’s not forget, for instance, the recent evolution of the electro-technical officer – a post that my union battled to secure for many years before its formal STCW recognition in 2010. The work that we did to create a training and certification structure to reflect the skills and expertise of electronic specialists on board provide a model for the essential work that lies ahead to ensure that there is appropriate training, skills and knowledge to safely operate new systems and to provide the necessary underpinning seafaring expertise for remote and autonomous maritime operations.

I get the sense that there are exciting opportunities out there. Virtual reality training, augmented reality operations, and science fiction is becoming a scientific fact.

Done well, Nautilus believes those opportunities could transform the external perception of the maritime profession – putting seafarers and the maritime sector where they should be, as a high-tech and high-skills industry.

This case arose from a dispute between the Owners and Charterer of the “Houston” as to whether the vessel could be properly arrested under the Admiralty Act 1988 (Cth) (the Act). The question to be decided was whether the Owners had a ‘proprietary maritime claim’ within the meaning of section 4(2) of the Act.

Background of the dispute
In 2010, TBONE chartered the “Houston” for the purpose of, amongst other things, carrying locomotives to be used for mining in Western Australia. On 2 December 2015, the Owners served a notice purporting to terminate the Charterparty due to non-payment of hire. TBONE countered that the Owners had previously wrongfully arrested the vessel in the US, describing this conduct as “a breach of the covenant of good faith inherent” in the Charterparty, and for this reason gave notice of early redelivery of the “Houston”. TBONE also stated that it had paid all hire up to the date of redelivery.

The parties corresponded in relation to the redelivery. However, TBONE eventually wrote to the Owners that as a direct result of their “continued bad faith conduct”, the proposed redelivery was delayed. TBONE sought confirmation that the vessel would not be arrested and asserted that redelivery would be in accordance with the “charter terms” governing termination due to “the Owner’s breach”.

The Owners responded asserting their right to terminate, demanding hire, and complaining that TBONE ignored demands for immediate redelivery at various ports of call.

Proceedings
On 23 December 2015, TBONE filed and served a caveat against arrest. The Owners subsequently issued a writ claiming hire, loss and damage for detention/conversion of the vessel, indemnity for loss, damage and expense incurred by Owners, delivery up of the vessel, interest, and costs. On 11 January 2016, TBONE filed an interlocutory application seeking an order that the writ be set aside for want of jurisdiction.

The Owners contended that the claims for loss and damage arising from the detention/conversion of the “Houston” and for delivery up of the vessel were claims which related to the possession of a ship under s 4(2)(a)(i) of the Act. They were, it was argued, properly characterised as proprietary maritime claims invoking the Court’s jurisdiction under section 16 of the Act.

Section 4(2) of the Act states that a reference to a proprietary maritime claim is a reference to a claim relating to possession or ownership of, or title to a ship.

In support of its argument for lack of jurisdiction, TBONE made a number of submissions which depended upon the acceptance of its version of the facts advanced in its submissions. For example, TBONE contended that, after 2 December 2015, it held the “Houston” as a bailee and, therefore, the Owners’ claims were misconceived because the Owners already held constructive possession.

Decision
The Court dismissed the interlocutory application, holding that the Owners’ claims did relate to possession of the ship and therefore the Court had jurisdiction.

The Court followed the “Shin Kobe Maru” decision in determining that the proper approach to determining the jurisdictional question was to examine the legal characterisation of the claims, not the merits. It was also noted that the High Court held in “Shin Kobe Maru” that a wide meaning was to be given to the words “relating to” in s 4(2)(a) of the Act.

The claim for delivery up was held clearly to be a claim for possession of a ship in that it was a claim for the delivery up of possession of the “Houston”.

The loss and damage claim was held to be founded upon an assertion that TBONE, whilst the “Houston” was in its actual possession, denied the Owners’ right to possession. In the Court’s view, that claim was to be characterised as relating to possession of a ship, as it sought to vindicate the Owners’ asserted right to possession of the “Houston”.

Comment
This case serves as a reminder that when asserting that a claim is outside the Court’s jurisdiction under the Act, it is important to attack the legal basis for the claim, rather than the merits of the claim. This may be difficult, given that a wide meaning is to be given to the words “relating to” in section 4(2)(a) of the Act. Rather than seeking that the writ be set aside for want of jurisdiction, TBONE’s efforts may have been better focussed on defending the claims with its arguments on the merits.

As ship-owners gear up to embrace new sulfur emission norms that will come into effect from 2020 onwards, challenges related to upgrade of vessels, availability of cleaner fuels, and ordering new ships remain vexing issues. The International Maritime Organization, or IMO, has stipulated a reduction in the maximum sulfur limit in marine fuels from 3.5% to 0.5% from January 2020 onwards. In less than three years, all ships across the globe will mandatorily have to use low-sulfur fuels or gas instead of the high-sulfur fuel oil, or HSFO, that currently dominates the market.

A common refrain among ship-owners is that while the date of implementation of the new sulfur cap is finalized, the “fine print of how to enforce and implement” needs to be worked upon. This is significant because the new norms will entail additional costs that can cause serious commercial distortion if the implementation does not happen uniformly across the world. Since this involves a global equivalent to millions of tons of fuels used in thousands of ships, several stakeholders in the shipping industry are now suggesting additional measures to ensure that the transition is smooth and hassle free.

According to shipping industry estimates, based on current demand, close to 2.5 million b/d, or over 75% of the current bunker fuel market, will be displaced when the lower sulfur content norms are implemented. “There are a number of practical consequences — it is of course hard to believe that in one minute on the new year eve of 2020, all ships around the world will suddenly become 100% compliant, particularly if in the middle of a voyage,” Dragos Rauta, technical director at the International Association of Independent Tanker Owners, or Intertanko, told S&P Global Platts. Intertanko has around 210 members, whose combined fleet comprises some 3,654 tankers, totaling over 312.7 million dwt.

Ship-owners will have to choose whether they want to use 0.5% sulfur fuel or invest in scrubbers, an assessment they will make based on ship’s age, price of scrubbers, operational costs of scrubbers, and price differential between HSFO and ultra-low sulfur fuels, or ULSFs, Rauta said.

NEW PROPOSALS
“A great deal more needs to be done at IMO ahead of the 2020 deadline,” the secretary general of Asian Shipowners’ Association, Harry Shin, told Platts. Intertanko, Baltic and International Maritime Council, or BIMCO, and a host of other industry bodies have now jointly submitted a proposal document to an IMO sub-committee over the issues of concern for effectively implementing the cap on sulfur emissions.

Among others, the document mentions of the impact on machinery systems, particularly the safety concerns that may arise from the use of new sources of fuels and blends, and a verification mechanism “to ensure a level commercial landscape,” and delivery of compliant fuels on ships. “Ships cannot ascertain the sulfur level of fuels being delivered to [them] prior to or during bunkering operations; non-conformity is discovered only days after bunkering,” the document said. Not all ports will be ready to supply 0.5% sulfur fuels by 2020 and there is already a provision to allow ships which could not obtain compliant fuels, but parameters for such instances need to be formally recognized by IMO, it said.

However, ship-owners say that this can put them at a disadvantage, especially those who are scrupulously following the rule book, because ULSFs command a premium over HSFOs. The price differential between HSFO and 0.10% sulfur-content marine gas oil has typically been in the $250-$350/mt range, according to the shipping industry estimates.

ENFORCEMENT AND QUALITY
“Enforcement is [critical] to make sure that owners following the new laws are not at a competitive disadvantage to ships not using the required fuels,” managing director of the Hong Kong Shipowners Association, Arthur Bowring, told Platts. The association is one of the world’s largest, with its members owning and operating a fleet with a combined carrying capacity of more than 162.5 million dwt.

Questions remain as to whether the sulfur cap will be enforced effectively, as legal frameworks and detection methods remain inadequate, and fines and sanctions are currently upto the individual member countries to enforce, Banchero Costa, a Genoa-based shipping consultancy and brokerage said in a recent report.

There is also a concern that the new blends that are described in the IMO’s assessment report, might not be compatible with the existing engines and fuel systems, Bowring said. Many of the new fuels with 0.10% sulfur content that showed up in the market over the last two years are not included under the ISO standard for marine fuels, called ISO 8217, said Rauta. Since safety requires full transparency, the criteria defining any such new fuels should be fully provided and they should be inserted in the ISO 8217 series, he added. “In 2020, the entire world will be an Emission Control Area, so there are no cheap options left,” the chief shipping analyst at BIMCO, Peter Sand, told Platts. BIMCO is the world’s largest international shipping association, with more than 2,200 members globally.

SCRUBBERS VS FUELS
“If the operator also owns the ship and pays for bunker fuel, investing in a scrubber is the most economical option,” Sand said. Scrubbers are exhaust gas cleaning systems that remove sulfur from fuel, thus enabling continuous use of HSFO, and are permitted under the IMO rules but have related technical and environmental challenges. Ship-owners can recover investment costs sooner or later, Sand said, adding that “if the prices of IMO-compliant fuels go through the roof in early-2020 and the world is awash with HSFO, it will be a matter of months before a scrubber investment is recouped.”

Ship-owners’ concern will be the upfront cost of around $3 million-$4 million with no guarantee that it will be needed in case the spread between marine gasoil and HSFO stays very narrow. “Keep in mind that if today a five-year old Supramax is worth some $14 million, to spend at least $3 million-$5 million on a scrubber is quite a big investment,” said Ralph Leszczynski, research director at Banchero Costa. “I [think] we will get into a bit of a rush to install scrubbers towards 2019, when it sinks in that the rules are indeed going to be implemented and distilled fuels really do cost a lot more than HSFO. I think, for the moment, 95% of people will go for either distilled fuels or scrubbers,” he said.

Intertanko’s Rauta points out that if a ship is running on 50 mt fuel/day and is on sea for 200 days/year, while the ULSFs’ premium to HSFO is $200/mt, the extra cost of fuel for the ship-owner will be $2 million/year. Depending on the price one pays to retrofit a scrubber, but assuming it to be $2 million-$4 million, the owner can recover it within one or two years of operations, he said. In 2012, Intertanko developed a calculator to assist ship-owners in doing a cost-benefit analysis of installing a scrubber versus using ULSFs in the Emission Control Areas. “LNG as fuel is also an option, but not a cheap one; retrofitting a ship to use LNG [may not be] economically viable today,” said Rauta.

Currently, only a miniscule number of ships, around 100 out of the global merchant fleet population of more than 85,000, are running on LNG, though newbuilding orders are on the rise and may rise exponentially over the next decade. “The supporting infrastructure for LNG bunkering currently remains limited globally. LNG requires cryogenics for bunker storage tanks, which would reduce available onboard cargo space,” the Banchero Costa report said. “LNG has the main problem of limited availability at ports. So if you trade a Supramax bulk carrier or an Aframax tanker, you are not going to cut yourself off from the possibility of bunkering at most ports in the world,” added Leszczynski.

However, things are not hunky dory for scrubbers either. The wash-water of a scrubber is an acid which is very corrosive. Ship-owners have options to invest in hybrid scrubbers that have closed loop for operations in ports that do not allow direct discharge of wash-waste. “There are also challenges in disposing solid waste ashore if closed-loop scrubbers are used, and they may be a preferred option only for a small, and perhaps specialized, portion of the fleet, unless the ULSFs are in shortage and very costly,” said HKSOA’s Bowring.

Rauta suggests a blend option. It would be cheaper to operate the open-loop scrubber on high seas and switch to ULSFs in specific waters where their use is restricted, he said. Ship-owners can reconfigure the fuel system of ships so that the operations of ULSFs and HSFOs are segregated and the fuel switch is managed to maximize the use of scrubbers and minimize that of expensive IMO-compliant fuels, he added.

Another interesting dimension of the entire initiative is that now new ships will be ordered which must be able to run on different type of fuels though the shipyards are not regulated by IMO.

China’s massive investment in infrastructure has improved the 2017 forecast for dry bulk imports, even though surplus shipping supply will drag freight rates to loss-making levels in the traditionally slow first quarter, according to BIMCO’s latest market outlook.

The shipping association said planned investment into physical infrastructure and transport connectivity as part of China’s five-year plan – most noticeably directed at the One Belt, One Road initiative – would support the dry bulk shipping business. During 2017, USD259 billion is earmarked for highway and waterway projects in China, and USD503 billion on expanding the country’s railway system. “As in past years, China’s investments in housing and connectivity is critical for the dry bulk shipping sector as the rest of the world isn’t growing its dry bulk imports,” BIMCO said in its market outlook.

The first quarter is generally soft and significantly affected by seasonality, historically having an overall lower level of demand than any fourth quarter, BIMCO noted. The shipping association said 2016/17 would be no different with demand contracting by as much as 5.4% from Q4-2016 to Q1-2017. But seasonality does not only have a negative impact, and demand for certain commodities being transported by ocean would increase. The positive effect will see coarse grain exports out of Argentina, soya exports out of Brazil and wheat out of Australia being generally higher in Q1-2017 compared to the last quarter of 2016.

China’s coal imports could provide another demand avenue. Usually by 15 March, the Chinese winter heating period is at an end and during this period, coal mines benefit from an extension to the official national limit on the number of working days they can operate – from 276 to 330 days. This is to allow them to increase domestic production and thereby “control” the coal price during peak demand seasons. BIMCO said the end of this extension during March may benefit dry bulk shipping if domestic demand for coal exceeds domestic supply while coal prices do not increase significantly as they did in the run up from April 2016 to the start of the winter heating period late in the year.

Another noticeable seasonality BIMCO pointed out was the fact that January and the first quarter always showed a disproportionate amount of newbuildings that were delivered. During 2013-2016, January deliveries accounted for 17% of the year’s total additional dwt capacity and Q1 deliveries were 35% of the year’s total. Based on those figures, 2017 would see 5.3 million dwt delivered in January and 10.9 million dwt delivered by April. However, the world’s largest global shipping association said that a continued slowdown in demolition interest was “alarming” and would merely postpone the industry recovery. More orders could also be placed in 2017 as prices for new vessels have flattened out since mid-August 2016, and BIMCO said owners and investors might be tempted by the low prices to go back to the yards for new ships.

With the depressed market, the lack of activity from the newbuilding yards has meant the second-hand market has been red hot. According to VesselsValue, 648 dry bulk “trading sales” were made in 2016. The panamax segment was the busiest with 154 ships traded, equal to 7% of all panamax dry bulk ships. Average price and age of the traded ships was USD8.4 million and 10.2 years.

On the demand side, BIMCO said iron ore provideed 30% of the demand for the dry bulk market and during 2016, its related tonne mile demand went up by 6%. This was the key factor behind the overall demand side growth of 2.2% for the year. In China alone, from January to December 2016, iron ore imports went up by 7.5%, and for the first time, imports by sea and land exceeded 1 billion tonnes in a calendar year.

Looking further out than the first quarter, the early consensus among New York-based shipping analysts and industry executives who spoke to Fairplay was that dry bulk rates would improve modestly this year and could be poised for more substantial gains in 2018. The caveat is that optimistic market chatter is a notoriously poor bellwether of rebounding bulker rates. Most notably, there was a surge in optimism on dry bulk in 2013 that spurred major new investments by private equity and public companies and a wave of secondhand acquisitions and newbuilding orders. The predicted rate rebound in 2014–15 never materialised, with disastrous financial consequences for early movers.

FATIGUE levels are increasing among seafarers, particularly masters and watchkeepers, according to a three-year study into crew tiredness on board vessels. Project Martha found that more masters reported higher fatigue at the end of a voyage than both third officers and seafarers. Masters worked more on a weekly basis than other crew members, and were more at risk of fatigue than other ranks. However, no-one on board gets adequate sleep, with the night watchkeepers being particularly at risk of falling asleep. High levels of sleepiness can occur at any stage of the voyage, but the quantity and quality of sleep deteriorates over long voyages.

The majority of all 110 seafarers in the study, including crew of all ranks, said they were more fatigued at the end of a voyage than at the beginning, irrespective of the length of the voyage. Port work was seen as more demanding than work at sea.

The report identified significant discrepancies between working hours of different ethnic groups. Specifically, Chinese seafarers averaged 15.11 hours of work a day compared with the 10.23-hour daily average for European seafarers. There was evidence of higher levels of fatigue and stress in seafarers from Chinese-managed companies than European-managed ones. “This suggests that differences in organisational factors are significant in affecting fatigue mitigation on board,” according to the study.

Triggers for fatigue reported by seafarers included increasing pressure from competitive voyage schedules and having to handle tasks with fewer crew members. Crews also reported increased fatigue levels when employers did not relieve them of their duties on time.

InterManager secretary-general Kuba Szymanski said the study could demonstrate that seafarer fatigue leads to reduced motivation over time. “People who were on board for six months or more are beginning to show signs of reduced motivation; they are beginning to not care about the job,” he told an audience at the International Maritime Organization. “That has implications for safety culture — people making mistakes, people taking shortcuts.”

Capt Szymanski presented a slide that was not in the report, which showed that over time, social cohesion on board was also affected by fatigue. “By the end of six months, people are sick of the sight of each other and just want to go home,” he said. Capt Szymanski called on the global industry to get fatigue out in the open. “Fatigue was something that was a little bit under the carpet,” he said. “Issues to do with near-misses that are caused by fatigue need to come out into the open.”

Project Martha research and analysis was conducted by multiple stakeholders, including Warsash Maritime Academy, University of Southern Denmark, Dalian Maritime University, Stress Research Institute, University of Stockholm, University of Southampton, and InterManager. The $3m project, sponsored by the TK Foundation, was launched in 2013. It looked at both the ‘sleepiness’ and fatigue experienced by seafarers from two Europe-based companies, MF Shipping Group and Zodiac Shipmanagement Co, and two state-owned Chinese companies that operate bulk carriers and tankers.

The project included a field study with questionnaires, interviews and voluntary diary-keeping by seafarers. It provided data from crew who had been on board for six months or more. Seafarer movement was recorded via an accelerometer, which measures acceleration and can indicate the difference between awake and sleep periods. Some 70 European seafarers took part in this actigraphy study over two years. Actigraphy is a non-invasive method of monitoring human rest/activity cycles via an accelerometer.

President Trump’s Executive Order of January 27, 2017 on immigration indefinitely barred Syrian refugees from entering the United States, suspended all refugee admissions for 120 days and blocked citizens of seven countries.

• For the next 90 days crewmembers from Syria, Yemen, Sudan, Somalia, Iraq, Iran and Libya, whether or not they hold visas, will be denied entry to the U.S.
• It also bars the entry of refugees from Syria indefinitely.
• The order stops admission of all refugees to the United States for the next four months.
• The order also calls for a review into suspending the Visa Interview Waiver Program, which allows travellers from 38 countries — including close allies — to renew travel authorizations without an in-person interview.
• The order should not affect naturalized U.S. Citizens from the seven named countries;
• After some initial confusion, it appears holders of U.S. Green Cards will be allowed into the US;

Recommendations
At present, the implementation of the Executive Order is not entirely clear should Members be affected by the order please contact the Club. Given the situation the Club recommends:

• For the next 90 days, crewmembers from Syria, Yemen, Sudan, Somalia, Iraq, Iran and Libya will be denied entry into the US. Whether or not they hold U.S. visas;
• Nationals from the seven named countries with permanent resident (green card) status will be permitted entry, “….absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare…”
• Do not arrange crew changes in the United States for those citizens of the identified countries including flights with transit through the U.S.
• The Departments of State and Homeland Security (CBP) may determine on a case by case basis and when in the national interest, to issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. We anticipate that in the event of a true medical emergency the CBP may permit the injured or ill crewmember entry to the U.S. under section 3(g) of the Executive Order.
• For those nationals affected by the Visa Interview Waiver Program, we recommend contacting the local U.S. embassy or consulate for guidance as an interview now appears to be required.

The Club will continue to monitor the situation and will update Members as the situation becomes clearer.

Gregory Callimanopulos-backed shipowner Toisa has filed for Chapter 11 bankruptcy protection in New York.

The company and 23 subsidiaries owning the same number of offshore vessels, tankers and bulkers among the assets they are seeking to shield with court protection.

Callimanopulos’s UK-based Sealion Shipping and Greek management companies Marine Management Services and Marine Management Bulker Services are listed as affiliates but not covered by the Chapter 11 filing.

Assets and liabilities both range between $1bn and $10bn, according to legal filings and Reorg Research.

Toisa’s assets also include two Gulfstream aircraft.

Danish Ship Finance is the largest creditor in the case, with nearly $123m in claims secured by seven vessels.

DNB Bank runs a close second thanks to its more than $115m in claims backed by three tankers. And ING Bank is owed nearly the same amount thanks to claims secured by seven vessels.

The companies are represented by New York law firm Togut, Segal & Segal.

Largest creditors
Danish Ship Finance $123m
DNB Bank $115m
ING Bank $116m
Citibank $99.5m
BNP Paribas $82.3n
China Shipping Industry $23.1m

The Tribunal of Genoa recently issued two decisions dealing with the legal nature of sea waybills. In both decisions the tribunal considered the extent to which the content of a sea waybill is relevant when identifying the parties to the contract of carriage and, consequently, when deciding on the defence of title to be sued.

Facts
Both decisions involved claims filed by an Italian fruit trader for damages incurred to consignments of fruit transported from Italy to the Far East by a liner shipping company.

Instead of filing claims against the shipping company, the plaintiff filed the claims against the shipping agent of the carrier, arguing that the relevant contracts of carriage had been concluded with the agent.

The shipping agent disputed the claims and raised the preliminary defence of lack of title to be sued, stating that it was not in fact a party to the contracts of carriage, which were concluded between the plaintiff and the shipping company.

The shipping agent argued that it had signed the two sea waybills “only as agent for the carrier” and had listed specifically the liner shipping company as the carrier. Therefore, it did not act as carrier under the relevant contracts of carriage.

The plaintiff responded that the sea waybill is a document which allows the consignee to obtain the delivery of goods at a destination simply by providing evidence of its identity (i.e. confirming that it is the party named in the document), but that it cannot be considered as evidence of the contract of carriage or be used to identify the parties to the contract.

Decision
The Tribunal of Genoa recognised the shipping agent’s defence of lack of title to be sued and rejected the plaintiff’s claims on the grounds of the sea waybill’s content. The tribunal explained that the sea waybill was introduced in response to:

• issues arising in the use of bills of lading; and
• advancements in transport technology.

The tribunal further stated that – in contrast to bills of lading – sea waybills are not negotiable documents of title, representing goods, and that the right to control the goods in transit and the right to claim their delivery at the destination port are not dependent on the sea waybill. The sea waybill acts as a non-negotiable receipt which consignees need not present to obtain delivery of the goods; they need only proof of identity.

However, after underlining the differences between the bill of lading and the sea waybill, the tribunal stated that the two documents are similar to the extent that both constitute proper evidence of the contract of carriage’s terms.

In particular, the tribunal affirmed that the sea waybill is prima facie evidence of the contract of carriage since it is issued after the shipper has delivered the goods to the carrier and details the parties to the contract of carriage, the goods, the port of origin and the port of destination.

On the issue of identifying the parties to the contract of carriage, the tribunal found that the shipping agent had signed the sea waybills as an agent for the carrier and therefore could not be considered a party to the contracts.

The tribunal concluded that the plaintiff failed to identify the carrier and thus did not file action against the proper defendant. The claims were therefore rejected.

Senegalese customs continue to pay particular attention to a vessel’s declarations of lubrication (lube) oil and failure to declare “used lube oil” may be considered an infringement of the country’s customs code.

The imposition of customs fines continues to be an issue at the port of Dakar, Senegal. In a recent case, a Gard Member’s vessel was fined EUR 100,000 for failure to properly declare a quantity of “used lube oil”. According to the attending customs officer, a difference was noted between the amount of lube oil stated in the official customs declaration and in an attached “Lubricants Declaration” stamped and signed by the Chief Engineer.

Members and clients have also previously been alerted to the risk of fines being imposed in Dakar should a vessel fail to properly and accurately declare its cargo, fuel, stores, provisions and other material on board, see our Gard Updates of 13 April 2012, 2 November 2008 and February 2007. Reports at that time included incidents of fines being imposed for:

• failure to have the bunker declaration form completed by the time the customs officers arrived in the Master’s cabin;
• attaching “unofficial” documents to the customs declaration, even if their purpose was to clarify details stated in the official declaration;
• differences between declared quantities and quantities measured and counted by custom officers’ during own inventory inspections; as well as
• differences noted between the quantity of lube oil notified by the Master to customs and the detailed list by grade remitted by the Chief Engineer at customs’ request.

Masters of vessels calling at the port of Dakar must continue to be vigilant and pay close attention when filling in the customs declaration and stores list as any errors, omissions and/or discrepancies are likely to result in substantial fines. Even lube oil considered to be “in use”, e.g. in the engine sump tank, hydraulic system pressure tank for windlass and winches, stern tube, etc. should be declared in the stores list. However, as such measurements could depend on whether the equipment is in service or not, we recommend to state in the store list whether the measurement was carried out with the equipment in operation or stopped. The accuracy of all numbers is crucial.

As previously recommended by Gard, Masters should also contact the vessel’s local agent well in advance of arrival to ascertain the customs regulations in force in Senegal and the documentation required. In order to avoid misunderstandings, it is advisable that the agent verifies the formal documents before remittance to the customs officer and is present on board when the Master meets with the customs officers.

Source: Gard

An ice breaker and two bulk carriers are being forced to wait out the winter off Russia’s Arctic coast after the ice became too thick for safe navigation.

The ice breaker Kapitan Dranitsyn and two bulk carriers, Sinegorsk and Iogann Makhmasta, are being forced to stay for the winter at Chukotka anchorage outside the port of Pevek, according to Russian news site PortNews.

The port which is on the North Sea Route that connects Europe to Asia during in the summer months, normally closes in November for the winter, however, it had remained open for the supply of materials for building the floating nuclear power plant Akademik Lomonosov.

A convoy comprising ice breakers Kapitan Dranitsyn and the two bulkers arrived in Pevek on 7 January and left the port on 13 January but faced a barrier of heavy ice at the exit from the Chaunskaya Guba bay.

FSUE Rosmorport said the two ice breakers could have broken through the four – five mile ice barrier there was risk of damage to the two Arc 5 ice class bulkers.

“It is not an emergency situation. Winter anchorage is a positive practice to prevent incidents associated with severe ice conditions,” a statement from FSUE Rosmorport said.

The vessels are set for a lengthy stay with the summer navigation period not expected to start until late May – early June.