Challenging question

Challenging question

WHEN is a woman not a woman? If that sounds like a riddle, it isn't. Neither is it a variation of Professor Higgins' question. It is question with a simple answer - and the answer is, when a woman is appointed as an arbitrator under a 'commercial man' clause.

A few weeks ago we received an inquiry from a woman who had been appointed to an arbitration and was subsequently challenged because she supposedly did not meet the criteria of a commercial man, thus leading to a disappointment.

The arbitration clause for this particular dispute provided that, "All disputes arising out of the contract which cannot be amicably resolved shall be referred to arbitration in New York and governed by United States law under Society of Maritime Arbitrators and unless parties agree upon a sole arbitrator, one to be appointed by each of the parties involved, the arbitrator (sic) shall be commercial men and the umpire if appointed shall be a legal man experienced and qualified by the experience to deal with commercial shipping disputes."

The clause is certainly not a model of clarity in itself, nor would it stand up to the scrutiny of the rules for the formation of grammatical sentences or punctuation.

The courts have addressed the issue of whether a lawyer is qualified to serve under a 'commercial man' clause, but they have not decided whether there is a gender distinction attached to the 'commercial man' label. Not that a court decision is always or ultimately the needed imprimatur. Just look at the Happy Day decision. But commonsense would dictate that the term 'commercial man' means 'commercial person'.

In 1983, the Maritime Law Association of the United States adopted this concept in what to date is the only quasi-official commentary on the point. Furthermore, the Society of Maritime Arbitrators in New York had a woman serve as its president for four years who not only led the near-exclusive male membership but also actively participated in arbitrations held under the 'commercial men' qualification.

The SMA rules by reference also recognise that an arbitrator could be of either gender when stating, "Each panel member shall determine the amount of his/her compensation." It must be obvious that, if there is a his/her designation, the arbitration clause must have contemplated male and female arbitrators.

Dictionaries have not helped in the clarification of this issue, as they have elusively covered all bases. But US columnist and presidential speech writer William Safire analysed Abraham Lincoln's Gettysburg Address in the context of September 11 memorial speeches with a comment germane to the subject. He said, "Consider the barrage of images of birth in the opening sentence. The nation was 'conceived in liberty', and 'brought forth' - that is, delivered into life - by 'our fathers', with all 'created' equal. In the 19th century, both 'men' and 'fathers' were taken to embrace women and mothers."

True, the Gettysburg Address is not a charter party clause, and as such is of no direct consequence in relation to the 'he' or 'she' issue, but by its significance and impact it is a much more compelling piece of prose.

Women have become chairmen of the board and foremen of juries, so what is wrong with them becoming commercial men in the context of maritime arbitration?

Happy days

GENDER issues do not stop with people, of course. There has been a ridiculous debate recently about whether a ship should be a 'she' or an 'it'. But never mind that. Owners, like parents, would do well to give some thought to the names they bestow on their pride and joy, bearing in mind the fate that might await them.

There can be few more inappropriate names than that bestowed on the Happy Day, which brought very little happiness to anybody as it became the subject of a laytime dispute which finally came to rest in the Court of Appeal in London. Thankfully, however, the right decision has now been made, and an element of common sense restored to the business of tendering notice of readiness.

Read more about the judgment in this issue, but bear in mind the extraordinary first-instance decision that made it necessary, whereby the charterers were held to be entitled to despatch despite having held onto the ship well beyond the fifteen days' allowed laytime, ostensibly because the owner had submitted a notice of readiness which was technically invalid.
In layman's terms, the appeal court found that, once you take the ship in and start work, technicalities over the validity or not of the NOR won't hold water. This is a decision reached by judgment rather than happenstance. Owners exhale.

Multi-determination

YOU can say what you like about UNCTAD - and lots of people do - but you cannot accuse it of being easily beaten. It is having another stab at establishing a new international instrument on uniform multimodal liability, and to that end has prepared a questionnaire on 'International Regulation of Liability for Multimodal Transport'.

It is to be hoped that any new convention that follows from this UNCTAD initiative will enjoy greater success than the MT Convention. Those of our readers who have never heard of this will be surprised to know that it was adopted in 1980, but not surprised to learn that it did not attract the necessary number of ratifications. In a world that can send the Hamburg Rules through with a nod, this is quite an achievement.

The MT (or Multimodal Transportation of Goods, to give it its proper name) - Convention has over the years been used as a sort of template for various national and regional multimodal rules, but it had failed to achieve any international recognition, let alone celebrity. Similarly, the UNCTAD/ICC Rules for Multimodal Transport Documents have proved spectacularly ineffective in achieving international uniformity since they were prepared in 1992.

Despite the continued expansion of international multimodal transportation, there is still no international uniform liability regime in force. Now UNCTAD has invited governments and industry to express their views by completing a questionnaire on the subject, with a view to developing such a regime, by 2003. We wish UNCTAD well, but suspect that the patience of this most resilient organisation will be sorely tested to the limit.

His master's voice

IT is difficult to dispel the image of ship masters around the world drinking a toast to the health of the English admiralty court as news came through of its recent decision in the David Agmashenebeli.
We are paraphrasing, but it seems that the judge, Colman J, said that the master should make up his own mind whether cargo appears to satisfy the description of its apparent order and condition in the bills of lading. If he honestly takes the view that the goods are not in apparent good order and condition, and that is a view that could properly be held by a reasonably observant master, he is entitled to clause the bill of lading - even if not all masters would necessarily agree with him. The terms in which the master thinks it appropriate to qualify the bill of lading are, again, a matter for his own judgment, and he should use terms that reflect reasonably closely the actual apparent order and condition of the cargo and the extent of any defect which he considers it to have.

This is little more than common sense. But fear and greed too often override commonsense in shipping, and the courts don't always make it right. Do they canonise judges?

Above average

IN the strange, arcane language of marine insurance, General Average is not a military commander of middling ability, but a means of trying, not always successfully, to spread loss. So the news that BIMCO has recently published a Standard General Average Absorption Clause has been widely acclaimed by underwriters and average adjusters alike.

It is hoped that the clause will help promote a broad move away from declaring GA for small and uneconomic claims in all sectors of the industry. As such, it should benefit both shipowners and underwriters by avoiding the time and expense associated with pursuing small GA claims.

The key feature of the clause is that it is triggered automatically under a hull and machinery policy if the shipowner decides not to claim general average. The clause is governed by a threshold and upper limit figure to control its application to smaller GAs. And, to help eliminate small GAs, the deductible does not apply to the exercise of the absorption clause.

It is good to see a clause that provides a commercial solution to a problem which has caused a lot of anxiety over the years, much of it needless. And it is a bonus to find that it has been developed by means of co-operation between BIMCO and the insurance market, which co-operation should be encouraged on all levels. Howard McCormack, president of the Average Adjusters Association of the United States, welcomes the BIMCO clause and says it is a "practical method of dealing with what is a purely commercial issue". He adds that it does not involve any variation or change in the York-Antwerp Rules, but fails to say whether this is a good or a bad thing.