Striving for uniformity

Striving for uniformity

IN the early part of this century, the CMI had a vision. That vision was to create a set of internationally accepted rules which would govern the relationship between the owners of ships and the owners of the cargoes which they carried. Instead, we got the Hague Rules.

That is cruel, of course, and wrong. Hague and Hague-Visby attracted strong international support, and are still widely applicable. There is general agreement, however, that they are out of date and should be replaced by a system of liability which meets modern requirements.

Now, the CMI has launched a project entitled Issues of Transport Law which will examine all aspects of the marine transportation of goods. A CMI working group has already drafted and distributed to all national maritime law associations a questionnaire, the answers to which will be used to identify which aspects of the international carriage of goods by sea could usefully be the subject of unifying rules. From there, the work will be referred to a CMI international subcommittee, to whose meetings affiliated national associations and international shipping organisations will be invited.

This initiative was started by UNCITRAL, the UN organisation which, among other things, created the Hamburg Rules, which were supposed to replace Hague/Hague-Visby. What, you might ask, became of them? The truth is that the Hamburg Rules are largely unloved. They have achieved a large number of ratifications, but these do not include too many countries which might fairly be described as major maritime nations.

The CMI has been invited to submit an agenda note to the UNCITRAL meeting scheduled for New York in June and July next year. There, the CMI will propose that the project should be extended to include an updated liability regime, a subject on which UNCITRAL has been silent to date.

We should wish the CMI well. For its part, the CMI says it would be nice to think that this initiative will receive universal support and that, in the meantime, individual governments would refrain from devising their own national or regional solutions. Dream on.

As we all fantasise about a unified international liability regime, the US is just putting the finishing touches to its new carriage of goods by sea act. The US, of course, never ratifies any international maritime conventions. Okay, one or two maybe, but it still feels that the Harter Act was the mother of the Hague Rules, and will doubtless continue to go its own way. It is neither right nor wrong to do so. It is just out of step with much of the rest of the maritime world, and therefore the largest - if not the only - obstacle to creating a truly international liability regime.

Independent advice

IT is often said that there is nothing wrong with shipping's rules and regulations, only with the failure to implement them. So we should not automatically welcome attempts to set up new regulatory bodies, even when they are "groundbreaking, new and independent".

The International Commission on Shipping describes itself in just those terms. It has been set up with initial funding from the International Transport Workers' Federation (ITF) to recommend a strategy on shipping regulation. It has appointed three commissioners, each with the right sort of reputation - James Bell, former IACS secretary, Peter Morris, of Australia's Ships of Shame fame, and professor Moritaka Hayashi from Japan, whose name is not familiar to me.

These are good, honest people, and I wish them well. But is the ITF the right organisation to be doing this sort of thing, never mind that the commissioners are committed to "reaching their own conclusions on any matter within the terms of reference"?

And what are the terms of reference? To "look at existing materials, recent developments and initiatives... investigate and appraise the current approaches used by governments, industry and interested parties to ensure compliance with international minimum safety, environmental and social requirements (and) examine whether those approaches are in line with applicable international law, especially the UN Convention on the Law of the Sea (UNCLOS)."

Isn't this a job that IMO is supposed to do? Even if it is, the terms of reference are okay up to a point, and the point is UNCLOS. Nobody has bothered to even disturb the dust on UNCLOS for the last fifteen years, and nobody who earns their living in commercial shipping today ever gives it a thought. Maybe they should do, and maybe that is what this new commission is trying to do. But I can't help thinking there are better ways for the ITF to spend its money.

Holding back the tide

TIME is money, and particularly where disputes are concerned. So it is no surprise to see the London Maritime Arbitrators Association warning that its arbitrations are in danger of being overwhelmed by unnecessary interlocutory exchanges and applications.

In its latest newsletter, the LMAA says "...some arbitrators receive between forty and sixty faxes or letters a day. Some of them do not require a response, but they all have to be considered."

The LMAA is not exaggerating. I rang a London arbitrator recently, just before he went to lunch. That morning, he had received twenty faxes, all of which should have been unnecessary.

In an attempt to cut down on paper, and to cut out unnecessary interlocutories, the LMAA has said that new procedural guidelines will be applied with immediate effect. In fact, rather than a new initiative, this is a pulling together of the strands of something that already exists, in an attempt to change things for the better. It is something we should all support.

There is a danger in generalisation, of course. Some arbitrators I have spoken to have said that certain parties to disputes have taken this plea to ridiculous lengths, and have effectively kept arbitrators in the dark on matters of fundamental importance. Clearly, if you are going to arbitrate a time charter hire dispute, you are going to need to see the hire statements. If you are deciding a balance of freight issue, you are going to have to see each side's freight calculations. Arbitrators still need pertinent information, but not every piece of inconsequential correspondence that passes between the parties or their solicitors.

It is quite conceivable that today's busy arbitrator could spend his or her entire working life dealing with interlocutory exchanges and applications, without having time for the luxury of making an award. So it is incumbent on the parties to arbitration to stop wasting arbitrators' time. Solicitors could agree minor points between themselves. The two sides' solicitors could talk to each other more often. Senior partners in solicitors' offices could oversee the work of juniors a little more closely. The practice of delivering huge boxes of documents to arbitrators' homes the night before the hearing starts in the City could be replaced by something more sensible. It is not necessary to both fax and mail every piece of paper pertaining to the dispute.

LMAA president Mark Hamsher must be feeling a bit like King Canute in making his appeal for a cutback in paperwork. But at least Canute, after a rocky start, was able to rule with what the historians tell us was a blend of wisdom and fairness. Arbitrators should enjoy such luxury.

Cat nap

RECENTLY, I opened my copy of Lloyd's List Insurance Day - a paper I enjoy very much - to find a special report on 'Cat Exposure'. With nine lives to spare, one imagines the premiums are quite low. I worry about the effect of the new Civil Procedure Rules on cat exposure, however. Is the appointment of Lord Woolf mere coincidence in this regard?

All this talk of cat exposure reminded me of an occasion many years ago when a colleague came into the office one morning, visibly upset. It transpired that his cat, Mr Paws, had died overnight. "What was it, curiosity?" I enquired, not without some cruelty. He saw the funny side of it - about six years later.

Boxed off

IT was instructive to hear a container lessor talking to the maritime arbitration committee of the US Maritime Law Association in Orlando recently, explaining that, for most box people, debt collection - otherwise known as demurrage - constitutes the major part of the disputes they get involved in.

The lessors have to be pretty hard-nosed about this sort of thing when it comes to serial non-payers, and to adopt the attitude that, "If you don't pay, your world's gonna end." More Schwarzenegger than Scrutton, perhaps, but quite effective.

The lessor added, "We no longer have bankruptcy cover, because we consider it to be non-cover." I have often said - or rather written - the same thing about libel.

Let's talk - and eat

ARBITRATORS don't like lawyers because they make arbitration too legalistic, too lengthy, and too expensive. And lawyers don't like arbitrators because they don't know or understand the law.

These are just two examples of the more unworthy generalisations you hear in maritime company, and - never mind that they aren't true - it is not difficult to see how they get started. But there is plenty of evidence to the contrary, not least from New York, where I hear that an ad hoc group of attorneys have been invited to become "friends of arbitration". A working group has already been formed, and an annual dinner organised.

The arbitrators feel that getting together with lawyers in a non-adversarial setting will help make the arbitration process smoother. It is not clear who pays for dinner, but as a sort of amicus arbitrament, it is an idea worth repeating elsewhere.

Stopping off

WHERE are you planning to do your christmas shopping this year? New York? Too gaudy, too expensive, no good excuses. Barcelona? Too many distractions, too busy, no good excuses. London? Now we're talking.

The world's best shopping, proper food at last, and a brilliant excuse. On December 7 and 8 this year you can attend the Fifth Annual International Forum on Ship Arrest, at London's Tower Thistle Hotel. That is conveniently a Tuesday and Wednesday, so you can easily fit in a weekend and a couple of shopping days.

What about the conference? Well, any conference that attracts a following big enough to run for five years must have more than christmas shopping going for it. The Ship Arrest Forum has become a lively debate on arresting issues, a meeting ground for like-minded lawyers and users of arresting services, and a fixture in the calender for a worldwide network of lawyers who arrest ships.

You think London is an expensive place to shop? You're right, but the conference is a good investment. Over the last five years the amount of arresting business passed from country to country between people who have met there is enough to buy half of Bond Street.

This year sees the scene set by Richard Harvey, of Richards Butler. He took a leading role in the negotiations over the new ship arrest convention, and he will give delegates a good idea of its chances of success in its final form. Then comes the jurisdictions day, with Ireland, Malta, Belgium, France, Germany, Greece and the Netherlands Antilles all putting out their stall.

The second day is when the fun is. A lively interactive round-table session will focus on the practical problems of arresting ships, particularly in the Far East. The game will be played live, in teams, and, if last year's effort was anything to go by, delegates will be fighting for the microphone to get their point of view across. This is conference in the round, learning by doing, and a real meeting place in which like minds can find each other. The afternoon is devoted to asset tracing and the role of ship agents.

Who should go? Any lawyer who wants to learn more about ship arrest, more about who does it, and how, in different places. More importantly, this is a meeting for lawyers who want to meet the right people with whom to share business. And, of course, for anyone who fancies London's shops in December. See you there.

The Fifth Annual International Forum on Ship Arrest. Tuesday 7 and Wednesday 8 December 1999. Tower Thistle Hotel, London. Call +44 20 7453 5492 to register.

A change as good as arrest

YOU will find plenty of grist to the ship arrest mill in this issue of the Advocate. There is an overview of the new ship arrest convention, plus news of developments in jurisdictions as diverse as India, South Africa, and Ireland.

The new arrest convention received encouraging support from the majority of those who attended the Geneva conference earlier this year to debate and approve the final version of the instrument. But it is not being welcomed to the bosom of all maritime nations.

During the recent United States Maritime Law Association meeting in Orlando, it was clear that the new ship arrest convention is, to paraphrase Churchill, something up with which the US will not put. For the US to take its own position on an international maritime convention is nothing new, of course, but I have to tell you that the lack of enthusiasm for the new arrest convention in Orlando was by no means confined to the host nation.

A Belgian, speaking at the US MLA's CMI Dutch treat luncheon (if that is not too perverse a notion), said, "I trust I can count on your support not to ratify the new convention."

No room for grey areas there. And no room for grey areas, either, about the entry date of the new arrest convention - six months following the date on which ten states have expressed their consent to be bound by it. In the meantime, the convention is open for signature until August 2000 at the United Nations headquarters. The United Nations headquarters in New York, that is. How apposite.

Building blocks

Finding myself with a quarter of an hour to kill between appointments in London this month, I was drawn towards some of the City buildings I used to scratch a living in. There, opposite what used to be the Wills Faber/Furness Withy building in Fenchurch Street, tucked in behind the East India Arms, I came upon a sight that filled me with horror. Here, a building is going up which is too ugly for words.

Abutting supposedly consecrated ground in St Katherine Coleman Churchyard, they are building the new international headquarters of Lloyd's Register. They are welcome to it.

I imagine the instructions to the builder went something like, "Build me something more wilfully ugly than the Lloyd's Building, and something that will make people regret they didn't get to work in Hook after all." The specification has been followed to the letter.

Architecture can tip the best of us over the edge - from melancholy into a bad mood, from a bad mood into depression, and so on. I'm not interested in recent claims that the building has been instrumental in LR cutting 400 jobs, either. This is more important than money. In architecture, my philosophy is that, if it's a good idea, somebody is bound to have thought of it already.

And while we're on the subject, who stole Plantation House? It was there last time I went to town. Now, though, you can see clear through to the French coast. Many's the wet hour I have spent wandering the warren of that old building, with its pungent smell of wet wool and linoleum polish and the sound of umbrella ferrels tap-tapping along its echoing corridors. EC3 will never seem quite the same again.

Don't spare the rod

THERE are times when actions must speak louder than words. Consider this, from Senior US District Judge for the Southern District of New York, Charles S Haight Jr, speaking earlier this year in New York, at the Blue Ribband Exhibit at the House of the US Circuit Court, about the symbolic use of the mace in admiralty courts.

"When you think of it...a mace was an all-purpose tool. Imagine an English bailiff in the year 1360. He is sent to execute a warrant for the arrest of a suspect who cannot read or write. The bailiff shows the mace to the suspect and says, 'You are under arrest. Come with me.' The suspects says, 'No, I won't .' The bailiff unscrews the top of the mace, extracts the warrant, reads it to the suspect, and says, 'Come with me.' The suspects says, 'No, I won't.' The bailiff then carefully refolds the warrant, places it back in the mace, and hits the suspect over the head with it."

Thin boys' club

ONLY last year, the International Bar Association was described to me by a young lady as a "fat boys' club." Times must be hard because, last month in Barcelona, many of the lawyers attending the IBA Business Law meeting were on the slim side. Few of them could even charitably be called boys, although it is true there were no girls and very few women there either.

There were three thousand lawyers talking law and making friends. Of those, a supposed two hundred were pure shipping. Counting heads at the functions, many of those were there to enjoy one of Europe's most vibrant cities, rather than a vibrant law conference. But those present did their best to get fat, eating out at Can Cordoniu on the Monday, with all the cava even a thirsty lawyer could drink, and then on Thursday spending the day knocking back Catalan sausages and paella with all the Raimat wine even thirsty lawyers could drink at the house of Barcelona lawyer Ignacio de Ros, in the Montseny National Park.

Sounds like a boys' club? It is unashamed fun, and a get-together. I'll be there for herrings and geneva in Amsterdam next September. Fat or not.

A level

We commented in a previous issue on The Times Law Reports headline which explained, "Litigant has no right to lay adviser in chambers". The case has since been before the Court of Appeal, which has upheld the decision. The Times, meanwhile, has reported the appeal decision under the headline, "No right to a lay adviser in private cases". What a difference an 'a' makes.

Finally, on the subject of headlines, I know it isn't really funny, but I laughed out loud when I read the headline in a US law firm's newsletter which said, "Myopic sisters rejected for airline pilot jobs". The only headline more unlikely than this which I can recall was placed over a story about a man who paid a chap called Archie a pound to strangle his wife, a shelf-stacker at Sainsbury's. Archie did the job, but had to strangle the wife's friend as well, since the two women were working late at the shop. The headline in the local paper the next morning read, "Archie chokes two for a pound in Sainsbury's".

On board

OUR congratulations to an old friend, Sybil Gosselin, who is quitting her post as press officer at Intertanko to open a hotel in the south of France. One can think of at least one blue-chip tanker operator who might make a very apt guest. Basil!