The Third Man; At a recent LMAA seminar

US and us

"IN our small Upper Manhattan community alone, nine people are missing, and it seems unlikely that any household or family in the region can remain unaffected by this satanic act."

So wrote marine claims specialist Jonathan Spencer, who witnessed the terrorist attack on the World Trade Centre in New York. His poignant words will live as long in the memory as will the evil which prompted them. Our deepest sympathy and unconditional support go to all of those who have suffered losses.

Rough and almost ready

At a recent LMAA seminar, held at Norton Rose in London, Christopher Moss, current LMAA president, highlighted just some of the abuses that are taking place. He pointed out that agreement by parties to use the small claims procedure waives their right to appeal. But appeals still seem to be taking place. "People obviously don't understand the small print," says Moss. Time limits also seem to be ignored. As Moss points out, if the procedure is to work properly, anyone unable to comply with the limits should make an appropriate application.

Moss also complains that parties are failing to make the nature of the case clear in their initial submissions, causing confusion and delays further down the line. And he urges parties looking to the LMAA to appoint an arbitrator to clearly define the case, thus enabling the LMAA to select the most suitable person for the job.

In a bid to speed up the process, the LMAA proposes to remove the possibility of an oral hearing. It believes that, with a little co-operation from both parties, it is possible to arbitrate on documents only - a concept that appears to have been lost, according to Moss. Excessive interlocutory exchanges are also significantly hindering the process. Expecting arbitrators to pore over countless lever-arch files of documentation is becoming intolerable, especially at a fixed fee of just £1,000 for the small claims procedure.

The LMAA hopes the new guidelines, due out early next year, will help put an end to the abuses which are being visited upon what is, when used properly, a rough, ready and effective means of resolving small claims.

Considering the alternatives

The LMAA has also recently expanded its mediation services. It arranged a four-day mediation workshop attended by nearly half its full membership, and its mediation terms are currently being reviewed and updated. A number of meetings are planned with industry users to ensure that the revised mediation terms will suit the broadest range of requirements.

Christopher Moss says the LMAA regards itself as the international market leader in providing dispute resolution services to the maritime industry. That may or may not be true. What is true is that the LMAA first introduced its terms for mediation in 1991, which makes it seem ahead of its time. But it is also true that the terms appeared to do little but gather dust over the next ten years.

The LMAA is not alone. Most maritime arbitrators throughout the world seem to have treated mediation - or any form of dispute resolution other than arbitration - with studied indifference over the years, in the hope - and belief - that it would go away. For them, arbitration was ADR, and vice versa. Now, bearded in their den by Woolf, whose writ will effectively run outwith the confines of England and Wales, the light has come on. It will no longer be acceptable to deal with ADR by ignoring it.

ADRoit profession

ANYBODY who doubts the power of ADR should look at the figures from the Centre for Dispute Resolution (CEDR) in the UK, which show that 27 per cent of the mediations arranged last year by CEDR's dispute resolution and prevention service were court-ordered. This compares with nineteen per cent the previous year, and eight per cent the year before that. According to CEDR, there has been a 37 per cent drop in the number of claims issued in the Queen's Bench Division since the implementation of Lord Woolf's Civil Procedure reforms in April 1999.

One cynical observer once suggested that ADR stood for A Drop in Revue so far as the legal profession is concerned. The truth is, however, that there is plenty of ADR work around for lawyers. For some time now, perceptive lawyers have recognised the benefits that ADR can bring to their clients. ADR also provides a good opportunity for lawyers to assess and treat cases on their merits, and to present such cases themselves without the involvement of counsel. It might also be argued that a quick settlement at mediation allow lawyers the opportunity to move on to new cases which previously might have been lost to them.

Lawyers have an important role to play in ensuring that ADR works. So perhaps A Dual Role would be more appropriate than A Drop in Revenue.

Moss gathers no publicity

CHRISTOPHER Moss seems to have slipped comfortably into the role of SMAA president, in succession to Mark Hamsher, who is on record as saying that most people in the LMAA had very little idea even of the theory, never mind the practice, of mediation, less than two years ago.

We wish Christopher well. If his appointment as LMAA president is news to you, it is because the LMAA seems to have taken its usual scatological approach to publicity, which consists of not telling anybody anything but just waiting for somebody to let the cat out of the bag, all the while innocent of the knowledge that not everybody in the world reads the remarkably unremarkable LMAA newsletter.

Some presidents are a hard act to follow. Christopher Moss, meanwhile, will do us all a favour if he improves the public image of the LMAA which, both in London and overseas, is often regarded these days as having too lofty an opinion of itself, invariably without good reason.

Under contract

SMALL wonder that the Starsin is to end up in the House of Lords. It is a dispute which has generated interest outside its immediate maritime parish because it raises issues which are not confined to bills of lading but are relevant to all contracts based on standard printed terms which are then modified by an express provision which conflicts with the standard printed text.

The nub of the case appears simple enough - whether a bill of lading containing identity of carrier and demise clauses, signed on behalf of the charterers "as carrier", created a contract of carriage with the charterers or with the owners. In the definitions clause, the "carrier" was described as the party on whose behalf the bill of lading had been signed.

In the court of first instance, Mr Justice Colman decided that the bills were charterers' bills. But the Court of Appeal overturned that ruling, by a majority of two to one. The dissenting judge in the appeal court, Lord Justice Rix, felt the key to interpretation was the preponderant importance given by the courts to typewritten clauses which, in this case, meant that this was a charterers' bill.

The judgments of Colman J and Rix LJ have been described as "good commercial sense" by a number of legal commentators. It hardly reflects well on shipping that such a fundamental question can remain unresolved. The outcome of the Lords appeal will be eagerly received.

There is a limit

SOMETHING even more fundamental which remains unresolved is the question of how to apply the package limitation provisions in the Hague Rules. A simple question seemingly continues to defy the powers of deduction of the greatest minds in commercial law.

The Auckland division of the High Court in New Zealand, in the case of the Tasman Discoverer, recently debated the issue of whether the Hague Rules package limitation was introduced into the contract represented by the bill of lading covering a shipment of tin plate from Korea to New Zealand - and, if so, what its effect was on reducing the shipowner's liability for cargo damage?

During the voyage, some of the cargo was damaged as a result of seawater ingress. Some was salvaged, and 55 coils were sold as scrap. The shipowner accepted liability for the damage. The claimants argued that the package limit was 55 times the present value in gold of £100 sterling in 1924. The owner, however, maintained that its liability was restricted to £100 per package or unit.

The Auckland court found for the claimants, the point being made that the reference to "£100 sterling" in the Hague Rules was intended to avoid the effect of the erosion of the value of sterling by inflation. How many times can you milk the same cow?

Limitation loophole

In the US, meanwhile, New York law firm De Orchis, Walker & Corsa notes in its most recent client alert that, "With the unintended help of carriers and some courts, shippers have found an easy way to get around the COGSA $500 package limitation. Many shippers, or their underwriters, are managing to recover 100 per cent for cargo losses without declaring full value or paying the extra charges.

"The loophole opened when some courts decided that the limitation for containerised cargo should be applied to the number of items listed by the shipper that qualified as any sort of package, regardless of their small size and regardless of the fact that such items may have been palletised or shipped in master cartons or crates.

"The legal theory is that, by permitting such listing in the Shippers Particulars, the carrier is deemed to have agreed with the shipper that the number of inner cartons listed are the 'intended' COGSA packages. The basis for this is that COGSA, like the Hague Rules, provides that the carrier need not allow any description except the marks and numbers of packages that it can reasonably check. Thus, when a sealed container is shipped, the carrier can legally cross out the number of packages that the shipper claims are in the sealed container. The carrier could give a receipt only for the number of containers and their serial numbers."

There have been cases in which the shipper has not disclosed that the listed cartons were palletised or were the inner cartons packed in large master boxes. In every such case, the shipper has recovered full value because the $500 limitation was applied to the inner cartons, despite the fact that they have each been worth well under $500.

De Orchis Walker says, "The carriers can only blame themselves for creating the loophole. The courts are also at fault for not having asked whether the small inner cartons could have been shipped separately or whether the listed shipping packages were marked and numbered."

And we are all at fault for scrapping in the playground over this tiresome issue. The CMI plans to submit to UNCITRAL the draft of a new law governing the international carriage of goods by sea. This can't come a moment too soon. UNCITRAL has yet to live down the execrable Hamburg Rules, which even Hamburg is ashamed of. Read Chester Hooper's article in this issue, and you might begin to hope that the CMI can help create an international carriage convention that the whole world can live with. Even the US might be part of the package. But don't count on it.

Hirsute suit

THE subject of wigs continues to exercise the minds of observers of the UK court system. The English Bar's right to wear wigs is under challenge yet again, not least from those who claim that it discriminates against solicitors and breaches human rights.

Strange, is it not, that there are millions of people in the world who would give almost anything not to wear a wig, and yet there is apparently a whole cadre of solicitors in the UK claiming that they should be allowed to enjoy that very same privilege.

The argument, of course, has nothing to do with hair, or the lack of it. Lee Trevino once said there is nothing wrong with grey hair, and he was right. It is more a question of protocol. And it is difficult to know which side to come down on.

If, as it is claimed, wigs give barristers an unfair advantage, I want a barrister with a full wig the next time I'm up before the beak. Crystal Gayle would not be hirsute enough for my needs if my back was to the wall. I would even wear a wig myself if I thought it would help.

But if we allow everybody to wear wigs, won't it all be rather pointless, like the wearing of tuxedos for social functions? At a black-tie dinner, a plumber is the equal of a prince. But do we want to encourage that sort of equality in the courts?

Perhaps the best option - as yet not suggested by anyone else - is for the Bar to be allowed to wear hair extensions rather than wigs. I fancy I can see Lord Phillips of Worth Matravers in a shag-comb, and His Lordship Thring in a six-inch hair-in-a-pinch. Any nobody need be any the wiser. Solicitors, meanwhile, can eat crow.

Changing course

THE online maritime advocate online has quickly built up a strong readership base. It is now coming up for six months of weekly publication, and has a subscriber base of five-thousand, and rising.

There are other e-zines (as they are apparently called) out there worth a look. Jonathan Ignarski's irreverent and consistently entertaining Bow-Wave is good value, and now coming up for two years of weekly publication. And a newer entrant, Changing Course, a monthly email newsletter from Spinnaker Consulting Ltd, is quickly making a name for itself.

Spinnaker specialises in shipping, offshore and transport recruitment across the commercial, technical, legal and insurance disciplines. The newsletter is accessible and chatty, and includes a selection of current vacancies, including one seeking a "master mariner for City law firm."

It seems that it is becoming fashionable for law firms to seek out ex-masters to work in their wet departments, which must be good news for both shipping and the law. Spinnaker says it is reminded of one navigating officer, now happily earning a living as a marine surveyor, who swallowed the anchor more than thirty years ago. On his first day on board ship in the merchant navy, in the US Gulf, he asked the cook what was for dinner that night. "Grits," replied the cook. "Grits? What's grits?" he asked. "Grits?" said the outraged cook. "Grits is grits".

In oar

HUGE congratulations to Stephen Drury, partner at London-based Holman Fenwick & Willan, who has fulfilled a long held ambition to row the length of the non-tidal River Thames. Raising £2,500 for the charity, Cherry Trees, Drury started his voyage in Lechdale, Gloucestershire, and negotiated 41 locks before completing the 125-mile journey in London. His only companion, and means of transportation, was his 1893 built single skiff with foldable outriggers. Cherry Trees is a UK centre which provides respite care for disabled children, giving their parents a break from their day-to-day care.

Sheikh Tariq Abdullah

JUST as there is no such thing as bad breath, there is no such thing as a good debt. But bad debts are bad news. We have comparatively few of them here at the Maritime Advocate, which says a lot about you, our readers. But Sheikh Tariq Abdullah, from the Republic of Yemen, is an exception.

We have been politely and repeatedly asking Tariq Abdullah to pay for two advertisements which he contracted for and authorised to appear in this magazine. One invoice is over a year old, the other about ten months. Tariq Abdullah has repeatedly ignored our requests for payment.

Tariq Abdulla's advertisement claims, "The office offers an international service and has long-standing relationships with leading lawyers in many countries. The lawyers … maintain the British tradition and standard combined with a general western style practice."

We have a long-standing relationship with Tariq Abdullah. Too long. And since when has not paying your bills and ignoring correspondence been general western style practice?