Progress denied

Progress denied

WELCOME to our fifth anniversary edition. Five years is a long time. Technology and innovation have continued to push back the frontiers of human knowledge and understanding. But what has that meant for shipping?

A cynic, or a realist, might say that it has meant that you can now read about shipping casualties within moments of them happening, and even watch them on the internet as they develop. And that means that politicians and environmentalists are moved to speak without the pause for reflection which might usefully have moderated their thoughts and actions in the time that used to elapse between a stricken vessel being refused a port of refuge and the first newsreel disaster footage being flashed onto our TV or computer screens.

The Prestige casualty is a classic example of how easy it is to get things wrong. To combine a refusal to offer the vessel a safe haven with an arbitrary decision to throw the unfortunate master into prison is the sort of script that would be rejected by even the most excitable writer of soap operas. To allow the gruesome plot to drag on for months just compounds the original errors. A wrongful imprisonment is not just for Christmas.

Shipping, among others, has let Apostolos Mangouras and his family down badly. When it mattered, nobody could raise the monstrous guarantee demanded by Spain to bail out the master of the Prestige. This is hardly progress.

Shipping has always had to balance the interests of commercial expediency against the demands of the law, politics, and the environment. Increasingly, politicians are having the last word in an industry which they largely ignore when it needs help, and dance attendance upon when it doesn't. The US and Europe can lead the rest of the world to water, and can make it think.

Things will only get worse. But they will get worse at the pace at which shipping allows them to deteriorate. Let us hope that shipping uses its best minds to mount a cogent argument against the worst excesses of political scare-mongering. In the meantime, let shipping - and its legal advisers - feel suitably contrite at the plight of Apostolos Mangouras.

Whatever progress we make, sometimes we still manage to get the important things wrong.

Damned London?

WE are indebted to 'The Lawyer' magazine for news that "the London Maritime Arbitration Association (LMAA) is apparently debating publishing arbitration awards to stem worries about highly confidential discipline being undermined by a lack of case law.

"Although in New York and Paris arbitration awards are published, albeit without the names of the parties involved, arbitrators in the UK have to rely on word of mouth. If the LMAA gives publication the green light, every arbitration client in London will be told their case is likely to go into the public domain. There are fears that such a move - even though it would follow the New York and Paris example of not naming parties - could destroy London's position as a leading arbitration centre for shipping disputes."

Our readers, of course, will be aware that the LMAA stands for the London Maritime Arbitrators Association. They will also be aware that New York is not in the least chary of naming names in its published awards. Indeed, it insists on it. And, of course, they will know that London already goes in for some sanitised and highly selective publication of awards, so the real issue is rather one of whether or not the shackles should be thrown off the limited amount of publication that already takes place. But oh, those words from The Lawyer - 'every arbitration client in London will be told their case is likely to go into the public domain' - sound so simple, so heretical, but so right.

Considering wider publication to allay fears about a lack of case law seems to us a new departure. The last we heard, Graham Harris of Richards Butler was suggesting that the commercial court should be persuaded to take more arbitration appeals to address this imbalance.

'The Lawyer' quotes Bruce Harris (no relation), a former LMAA president, saying that, "While London sees more than 3,000 maritime arbitration appointments a year, the markets in New York and Paris have dwindled. There's nothing to suggest that publication has helped New York, Paris or any other centre. There may be grounds for suspecting the contrary. The numbers of arbitrations going to other centres has declined remarkably, while London's numbers have in the main held up and its share increased."

Call us Mr Picky, but we rather thought the whole point was whether publication was good for the shipping industry, and not whether it would be good for London, or good for its arbitrators' pockets or their self-esteem, which - if you'll excuse an expression I use - is already as high as a flag on the fourth of July.

Letter to the Editor

SIR: In Issue 20, the Third Man column contained an article entitled, "Challenging Question". That article was written without the benefit of complete information. It is a pity that it appeared in the form it did.

As the attorney representing the party who challenged the woman who had been appointed as an arbitrator in a clause requiring a "commercial man", I had evidence that the brokers for both owner and charterer had only males in mind when they put that language into the arbitration clause. It would be a pity if social activists chose to thwart the wishes of private contracting parties as to the nature of the arbitrators they wish to have. That seems to be the thrust of the article.

The courts in the United States have not ruled on whether a woman constitutes a "commercial man". It is quite likely that the courts would be guided by the intent of the parties and to the extent that the intent was ambiguous would allow parole evidence. In the case at hand that parole evidence would have been affidavits or testimony of the brokers who negotiated the charter. In addition, the vessel owner in this particular case was most insistent that he would never have willingly agreed to have a woman serve as an arbitrator.

I am personally in favour of having the most qualified persons act as arbitrators regardless of sex. When I draft arbitration clauses for contracts, I am careful to put in the term "commercial person" after, of course, discussing the consequences with my client. It is irrelevant what the Maritime Law Association of the United States resolves on this subject or whether women have served under this clause previously. In the latter instance it has been because there has been no objection. In the former instance the Maritime Law Association of the United States resolutions do not carry the weight of law.

The lesson from this story is that drafters of charter parties should be careful to articulate fully the qualifications of the arbitrators they wish to have and if the parties wish to have a commercial male and not a female as an arbitrator then it is their right.

Yours etc

Lawrence G Cohen
Vandeventer Black
New York