Currents and Tides

February 25, 2016

Sailing in rough weather: The
recent catastrophes involving the M/V EL FARO and the M/V ANTHEM OF THE SEAS, ships
which were put to sea in the face of incredible storms, may result in a shift
by the courts in giving significant deference to Masters making the
determination as to when it is safe to go to sea.  We suspect that the courts will be looking
more and more to the head office and Operations Department to intervene in
these decisions when there are serious weather conditions to which the vessel
could be exposed….

Emphasis on the shipper to declare cargo
: A regulation known as the “Verified Gross Mass” Amendment to
the Solace Convention is due to come into effect July 1.  It requires all container weights to be
verified prior to arrival at the container terminal.  Its primary purpose is to cull out overweight
containers which can be dangerous.  The
burden will be on the shipper to verify the weights.  This may raise an interesting question as to
whether carriers who have been held liable in the past for the weights declared
by shippers on their bills of lading should continue to be responsible for
those weights once shippers have an international duty to verify the accurate
weights.  It may also raise issues as to
whether an NVO has an obligation to independently verify the weight of
containers, as a shipper cannot rely upon weights provided to it by third
parties.  The NVOs are shippers vis-à-vis
the ocean carriers….

Proportional discovery requirement added:
The federal courts in the United States have
adopted a revised Rule 26 to the Federal Rules of Civil Procedure which require
that “the court and the parties secure the just, speedy, and inexpensive
determination of every action.”  As of
December 1, 2015, parties can only seek discovery that is relevant to the claim
or defense, and “proportional to the needs of the case.”  Proportional means that the importance of the
discovery has to be measured in comparison to the burden or expense of that
discovery, and whether it outweighs its likely benefit.  At a conference in Houston in January,
several federal court judges noted that the Rule would most likely have
significant impact upon production of documents and emails, and perhaps

Security for bunker claims: The
O.W. Bunker bankruptcy case in New York has still not fully confronted the
issue of whether a singular transaction, like the supply of bunkers, can result
in multiple liens in favor of the contractual supplier, physical supplier, and
any intermediaries, and if so, whether those multiple liens can justify
multiple arrests and multiple security to be posted by the shipowner.  Rumor has it that multiple securities have been
required in other bunker supply cases in the Middle East and Far East.  Perhaps this is a topic which needs to be the
subject of a convention….

Voluntary disclosure of bunker samples:
The U.S. Coast Guard will begin this month a program of allowing shipowners to
voluntarily provide samples of their bunkers to port state control officers who
request testing for determining sulfur content.
The vessel would not be sanctioned if the fuel is non-compliant.  This may help narrow the gap with first class
operators who feel they are the only ones going to the expense of low sulfur

MLA meets CMI: The Maritime Law
Association and the Comite Maritime International will be holding a joint meeting
in New York from May 4 – 7, 2016.  On the
agenda will be new proposed rules in respect to general average.  It should also provide an interesting forum
to measure the pace of maritime legal work around the world.