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The Maritime Advocate online Issue 281

3 Dec 2006

< AVO 281

Issue 281
November 28th, 2006

Maritime Advocate Online is a weekly digest of news and views
on the maritimeindustries, with particular reference to dispute resolution.

 

___________________________________________________________________________

To SUBSCRIBE or UNSUBSCRIBE send an e-mail to:

contactus@AfterOfficeHours.com

To contact the editor Chris Hewer send an e-mail to:

editor@maritimeadvocate.com

___________________________________________________________________________

The Maritime Advocate online is published by:-

After Office Hours Ltd,
76 Florin Court
6-9 Charterhouse Square
London EC1M 6EY

SUBSCRIBE click here | UNSUBSCRIBE click here | Read Archives here |

IN THIS ISSUE

1. I can see clearly now
2. CMR liability in Germany
3. No claims complacency
4. North Sea SECA to enter force
5. Class alliance
6. Malacca Straits co-operation
7. People & Places
8. The Archive

___________________________________________________________________________


1. I can see clearly now

WHEN the vessels "Eleftheria" and "Hakki Deval" collided in fog in the Mediterranean, the "Eleftheria" argued that the invariable practice in cases of restricted visibility was a fifty-fifty apportionment of liability. But the English Commercial & Admiralty Court (Steel J sitting with Capt Gibb and Pryke, Elder Brethren of Trinity House, as Nautical Assessors) this month held that, in view of its speed, look-out arrangements and a surprising course alteration, the "Eleftheria" should bear the preponderance of the blame. The court held that "a fair apportionment" would be two-thirds/one-third in favour of the "Hakki Deval".

Rupert Talbot-Garman, solicitor with E G Arghyrakis & Co, London, who acted for the "Hakki Deval", comments, "We are delighted to have demonstrated that the old-wives' tale as to fifty-fifty apportionment in restricted visibility may be displaced. This case also highlights why the Commercial & Admiralty Court remains an important force in maintaining the flexibility of English maritime law." (EWHC 2809, November 9, 2006)

rtg@egalegal.com

.___________________________________________________________________________

2. CMR liability in Germany

COMPARED to other jurisdictions, in Germany it appears to be relatively easy to break the limits of liability set out by Article 29 of the Contract for the International Carriage of Goods by Road, according to Marco G Remiorz of German law firm Dabelstein & Passehl.

Writing on the International Law Office website, Remiorz says, "The federal court has observed that it is possible to establish the contributory negligence of the shipper of a parcel due to its failure to declare the value of the cargo if the shipper should have known that the carrier would have treated the consignment with special care had it known of its value.

"To date, the contributory negligence decisions (of the federal courts) have concerned only claims against parcel service providers. It remains to be seen whether the principles set out in these judgments will be applicable to ordinary consignments, consolidated consignments or full truckloads. If the federal court decides that the principles are applicable in such cases, it will have a significant impact on carrier's liability, which will be unlimited in light of Article 29, but subject only to the shipper's contributory negligence."

www.internationallawoffice.com/?l=6G35K36&i=1013606

__________________________________________________________________________

3. No claims complacency

THE London P&I Club has authorised a general increase of 7.5 per cent in advance calls for the 2007/2008 Policy Year. It noted that net incurred claims for the 2005/2006 policy year are running at a considerably lower level than in any previous year, principally as a result of the club not having experienced any major individual claim. But it warned that the current year is not progressing as favourably, with major claims once again being incurred, although attritional claims are developing normally. In addition, claims brought by other clubs on the International Group pool are being reported at a high level. The club can therefore "not be complacent about the future cost of claims".

www.lsso.com

___________________________________________________________________________

4. North Sea SECA to enter force

SHIPS operating in the North Sea have just one year to demonstrate compliance with stringent new exhaust emission standards following the entry into force of new air pollution regulations on November 22.

The North Sea SOx Emission Control Area (SECA) will come into effect on November 22, 2007, one year after the entry into force of related amendments to Annex VI Regulations for the Prevention of Air Pollution from Ships, 1973, as modified by the protocol of 1978 relating thereto (MARPOL 73/78).

In a SECA, the sulphur content of fuel oil used on board ships must not exceed 1.50 per cent. Alternatively, ships must fit an exhaust gas cleaning system.

www.imo.org

________________________________________________________________________


To advertise to the thousands of shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-


Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)

Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503

___________________________________________________________________________

5. Class alliance

SPEAKING at the tenth annual Bureau Veritas Beaujolais Nouveau reception at Trinity House in London on November 16, BV marine division managing director Bernard Anne said the proposed alliance between BV and Germanischer Lloyd would be number one in ship classification in terms of numbers of vessels, order-book size, and global revenue, and number three or four in terms of tonnage in class. He added that, within ten years, the new grouping would have a twenty per cent share of the market in China, arguably the world's largest shipbuilding nation, and thirteen per cent of the world's largest shipping market, Greece.

Anne concluded that, in a fiercely competitive market, a BV/GL alliance would have the critical mass to successfully survive any economic downturn.

www.bureauveritas.com

___________________________________________________________________________

6. Malacca Straits co-operation

AN agreement to support the proposed co-operative mechanism on safety of navigation and environmental protection in the Malacca Straits has been reached by the littoral states of the Straits of Malacca and Singapore and user states.

The so-called Kuala Lumpur Statement agrees to support the continuous efforts of the littoral states and a co-operative mechanism proposed by those states on safety of navigation and environmental protection. A range of projects will be supported, including wreck removal in the traffic separation scheme in the Straits of Malacca and Singapore, co-operation and capacity building on hazardous and noxious substance, and preparedness and response in the Straits of Malacca and Singapore.

One-third of the world's trade and half the world's oil supply are carried through the straits by about 60,000 vessels each year.

www.imo.org

__________________________________________________________________________

7. People & Places

THE TT Club has appointed Mike Foster to the new position of claims director, responsible for claims management worldwide. Until recently, the club has been managing claims on a regional basis reporting to senior executives in London.

www.ttclub.com
_________________________

LIFEBOAT supplier Schat-Harding has extended its wholly-owned global service network with the purchase of Cadiz-based Equipos Aquanor, an established independent lifeboat servicing station covering the ports and shipyards of Spain and Portugal.

www.schat-harding.com

___________________________________________________________________________

8. The Maritime Advocate online archive

The publishers are proposing to create an archive for the Maritime Advocate which will provide an opportunity for a number of firms to demonstrate their expertise to our readership.

In addition to the back editions of the Maritime Advocateitself, there will be two central aspects to the archive:

1. To provide regular case-law updates on transport and insurance law from their particular jurisdiction. It is expected that a wide range of jurisdictions will form part of the case-note database.

2. To provide an overview of the transport law in each jurisdiction.

An example of this overview which has already been prepared for India by BJ Macfarlane & Co can be supplied. In New Zealand, the firm of Wilson Harle has now agreed to be the sponsors for the country summary.

In Finland, The firm of Aminoff & Weissenberg have now agreed to be the sponsors for the case note database.

In the United States, the firm of Blank Rome has now agreed to be the sponsors for the United States country summary. The editors welcome interest from firms interested in supplying case notes for the 2nd, 5th, 9th and 11th circuits:

In other cases each jurisdiction will only be represented by two sponsoring law firms. One will provide the case law updates. The otherwill provide the country summary. If you or your firm is interested in supplying these materials please contact the publishers at:

contactus@afterofficehours.com

___________________________________________________________________________

Letter of the Week

Your report on banknote counterfeiting claims that the forgers have never managed to make an exact replica of a £20 note. How does anyone know? (The Times, London)
_____________________________________________________________________

Sledging of the Week

Australian wicketkeeper Rod Marsh to English batsman Ian Botham: "So how are your wife and my kids?" The reply: "The wife's fine, the kids are retarded."
_____________________________________________________________________

Ashes to ashes

MANY of our readers will be aware that the battle for cricket's Ashes has restarted. This is the series of five cricket matches between England and Australia to decide the fate of a small urn in which are contained the ashes of the first person to put the rules of cricket on a tea towel in a pathetic attempt to amuse people who are looking for a reason to mock cricket.

The Ashes are contested every four or five years or - when England are the holders - every six months. When they are contested in Australia, as is currently the case, your editor is in his element. These past few days he has been going to bed with the wireless on, listening - and eventually falling asleep - to the commentary from Brisbane. This is always measured and impartial, except on those occasions when a former Australian test player screams, "Hit the pad first, it hit the pad first!!! It hit the pad first!!! That's out!! You beauty!!!" in a voice that threatens to wake the rest of the house from its unknowing slumbers.

Then your editor has been waking in the small hours of a cold English morning to make a cup of tea and toast a pikelet, hardly able to bear the suspense as news of the latest score comes through from Australia.

You may be aware that Australia has won the first test. Against an opponent more gracious in victory, your editor would be prepared to admit that things do not look too good for England. But that would feed the need of a braying victor to visit nothing short of total humiliation on an admittedly forlorn opponent. Your editor will therefore keep his counsel. He cannot wait for Adelaide. Who needs sleep? Bring it on.

_________________________________________________________________________

Piece of cake

A JUDGE in the United States has recently decided that a burrito is not a sandwich. In essence, his ruling was that two pieces of bread does not equal one tortilla, and therefore the burrito is not a sandwich.

This is interesting, but not nearly as interesting as the 1991 case of HM Customs & Excise versus McVities, in which McVities argued that a Jaffa Cake was indeed a cake, and not, as the government argued, a chocolate-covered biscuit which attracted VAT at a rate of 17.5 per cent. The UK courts found for McVities on the basis of a test case which argued that a cake starts off soft and goes hard when stale, whereas a biscuit starts off hard and goes soft when stale.

Sadly, there is neither time nor space to detail the ruling in the Jiff Lemon case of Reckitt & Colman v Borden in 1990. But you get the idea.
__________________________________________________________________

Psychological advantage

THE UK has now become the ultimate nanny state after introducing a scheme to create 'super-nannies' in an attempt to improve parenting in many areas of England. Child psychologists will be funded by the prime minister's 'Respect Task Force'. Please be sensible.

In your editor's day, task forces were American. And you had to EARN respect. In your editor's house that meant getting up at five in the morning and being back from your paper round in time to cook father's full english, mother having already been at work for four hours by that time. Then you had to lay the fire for the evening, prepare the vegetables for dinner and limewash the outhouse before getting off to school.

We weren't allowed any hobbies, and if ever we were found abed after 6.30 in the morning we were given a thick ear, with no more explanation than, "That's what you get for lying stinking in your pit while the rest of the world is up doing things". Parents were cruel but fair, and would brook no interference from outside. The only psychologist who existed was Herbert Lom in The Human Jungle, which father watched while eating his supper of two rounds of roast beef and tomato sandwiches and a pig's trotter in front of the television on Monday evenings.

It never did us any harm.
_____________________________________________________________________

Out of the mouths …

A POLICEMAN parked his car in front of the station. As he gathered his equipment, his dog started barking, and he saw a little boy staring at him. "Is that a dog you have in there?" he asked. "It certainly is," replied the policeman. Puzzled, the boy looked at the policeman and then to the back of the car. Finally he said, "What did he do?"

_____________________________________________________________________

The perfect husband

A GROUP of men were in the changing room of a golf club. A mobile phone on a bench rang, whereupon one of the men engaged the hands-free speaker function and began to talk. Everyone else in the room stopped to listen.

MAN: "Hello"

WOMAN: "Darling, it's me. Are you at the club?"

MAN: "Yes"

WOMAN: "I'm at the shopping centre and found this beautiful leather coat. It's only £15,000. Is it OK if I buy it?"

MAN: "Certainly, go ahead if you like it that much."

WOMAN: "I also stopped by the Mercedes dealership and saw the new 2007 models. I saw one I really liked."

MAN: "How much?"

WOMAN: "£150,000."

MAN: "OK, but for that price I want it with all the options."

WOMAN: "Great! Oh, and one more thing. The house I wanted last year is back on the market. They're asking £950,000"

MAN: "Well, then, go ahead and make them an offer of £900,000. They will probably take it. If not, we can manage the extra fifty thousand. It really is a good price."

WOMAN: "OK. I'll see you later. I love you so much."

MAN: "Bye! I love you, too."

The man hung up. The other men in the changing room were staring at him in astonishment, mouths open. He smiled and asked, "Does anybody know who this phone belongs to?"

_______________________________________________________________________

Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritimeindustries, with particular reference to dispute resolution sponsored by Ignacio de Ros - Maritime Advocates. Ignacio and his multilingual staff and his world champion Yngling Crew can be contacted at:

office@ignacioderos.com

T: +34 932 050 265 / F: +34 932 046 896.

 

 

The Maritime Advocate online Issue 280

26 Nov 2006

< AVO 280

Issue 280
November 21st, 2006

Maritime Advocate Online is a weekly digest of news and views
on the maritimeindustries, with particular reference to dispute resolution.

 

___________________________________________________________________________

To SUBSCRIBE or UNSUBSCRIBE send an e-mail to:

contactus@AfterOfficeHours.com

To contact the editor Chris Hewer send an e-mail to:

editor@maritimeadvocate.com

___________________________________________________________________________

The Maritime Advocate online is published by:-

After Office Hours Ltd,
124 Florin Court
6-9 Charterhouse Square
London EC1M 6EY

SUBSCRIBE click here | UNSUBSCRIBE click here | Read Archives here |

IN THIS ISSUE

1. Validity of ETA
2. Illegal dumping penalty
3. Misleading misdelivery
4. BIMCO master-class
5. New IMO member
6. Concealed condition
7. Heated debate
8. People & Places
9. The Maritime Advocate online archive

___________________________________________________________________________


1. Validity of ETA

THE commercial court in London recently ruled that an estimated time of arrival is not made on reasonable grounds "if an inquiry which ought to have been made has not been made and the answer would have invalidated the estimate". As the sellers in the case at hand had failed to make such inquiries, they were in breach of a condition of the contract and the buyer was entitled to terminate the contract.

The dispute involved, among other things, the proper interpretation of the word 'laycan' when used in an FOB delivery clause. The court held that 'laycan' did not mean 'shipment' in this context. It found that the word had the same meaning it had when used in a charter party and was merely the period in which the vessel should arrive at the load port ready to load. In this case, the vessel had complied with this requirement because it had arrived at the load port within that period.

For further information, provided to the International Law Office website by Denys J Hickey and Katherine Preece of Ince & Co, go to:

www.internationallawoffice.com/?l=6G35ACZ&i=1013606

.___________________________________________________________________________

2. Illegal dumping penalty

SUN Ace Shipping Company, of Seoul, South Korea, was last week ordered to pay a $400,000 penalty and a $100,000 community service charge, and was sentenced to a three-year term of probation during which its vessels will be banned from US ports and waters, after pleading guilty to violating the US Act to Prevent Pollution from Ships (APPS) in relation to the operation of the bulk carrier "Sun New".

A trial date for the vessel's chief engineer and second engineer, who were charged with conspiracy, obstruction of justice, and a violation of the APPS, has meanwhile been set for December 5.

Sun Ace Shipping was charged with knowingly failing to maintain an accurate oil record book that fully recorded the disposal of oil residue and bilge into the ocean, and then falsifying records to conceal illegal discharges.

The US government has also petitioned the court for an award under the APPS to be granted to three of the vessel's crew members who reported the use of bypass hoses and the illegal dumping. APPS gives the court the discretion to award up to half the criminal penalty to the whistleblowers, and the justice department has asked the court to divide $200,000 equally among the three crew members who reported the dumping.

www.justice.gov/opa/pr/2006/November/06_enrd_760%20%20.html

www.usdoj.gov

__________________________________________________________________________

3. Misleading misdelivery

DAVID Martin-Clark writes in response to last week's item on a recent ruling of the Hong Kong courts:

"You note, 'In the case of Carewins Development (China) Ltd v Bright Fortune Shipping Ltd, the court, following the approach taken by the Court of Appeal in Singapore and the House of Lords in England, found that the carriers were, however, relieved from any liability for misdelivery by a clearly worded exemption clause in the contract. Because the misdelivery took place after discharge of the goods, the prohibition in the Hague/Hague-Visby Rules against such clauses did not apply'.

"I think that could be misleading, in that, while the Hong Kong court followed the court of appeal in Singapore and the House of Lords in the UK on the presentation point, it followed its own nose on the exemption clause point."

DavidMartinClark@aol.com

___________________________________________________________________________

4. BIMCO master-class

BIMCO, in collaboration with the Institute of International Shipping and Trade Law, University of Wales, Swansea, UK, is to hold its first master-class workshop on tanker laytime in Europe, from December 5-7 in Copenhagen.

The workshop has been designed for shipping professionals working in the likes of chartering, operations, post-fixing or demurrage, or people who already have some shipping experience and who wish to broaden their knowledge of a particular topic within the shipping industry.

courses@bimco.dk

www.bimco.org

________________________________________________________________________


To advertise to the thousands of shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-


Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)

Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503

___________________________________________________________________________

5. New IMO member

MONTENEGRO has become the 167th member state of the International Maritime Organisation.

www.imo.org

___________________________________________________________________________

6. Concealed condition

THE US Court of Appeals for the Fifth Circuit has ruled that a mariner forfeits his right to recover maintenance and cure for personal injury when he knowingly or fraudulently conceals his condition from the vessel owner at the time of employment.

In a case reported by Holland + Knight in its Maritime Items ezine, a seaman applied for employment with a shipowner. As part of the hiring process, the shipowner required new employees to complete a medical history questionnaire. On the questionnaire, the seaman indicated that he had never had back, neck, or spine trouble, or received chiropractic treatment. In fact, he had injured his back several times, most recently in a work-related incident six months earlier, for which he sought treatment from both an orthopaedic specialist and a chiropractor, and filed a workers' compensation claim. Evidence showed that the shipowner would not have hired the seaman if it knew of his medical history.

The seaman suffered a back injury one week after being hired as a deckhand. He then brought suit seeking maintenance and cure, as well as damages under the Jones Act for personal injury. The court held that recovery for maintenance and cure was barred where the plaintiff actively concealed material facts relating to his physical condition and medical history from his prospective employer.

www.hklaw.com

__________________________________________________________________________

7. Heated debate

THE North of England P&I Club has warned shipowners of the increasing risk of officers and crew suffering potentially fatal heat illness as global temperatures rise and ships work harder. The club says there have been a number of recent cases in which crew members suffering from heat stroke have become seriously ill and, in some cases, died.

The club points out that, unlike heat exhaustion, heat stroke can occur suddenly and can cause unconsciousness within minutes. Sometimes there will be no indication of what is wrong until it is too late.

www.nepia.com

___________________________________________________________________________

8. People & Places

THE Liberian International Ship & Corporate Registry (LISCR), the US-based manager of the Liberian Registry, has appointed Ali Tevfik Celepoven as its special agent in Turkey. Celepoven is a former oceangoing chief engineer and ex-ABS surveyor who also spent five years at Caferogu Shipping in Istanbul, working as a technical consultant on marine projects which included ISM/ISPS approval procedures, and pre-purchase condition and condition assessment surveys. Immediately prior to joining LISCR, Celepoven worked as an engineering consultant as part of an expert group preparing a Turkish shipyard master plan study for the Turkish government.

www.liscr.com

___________________________________________________________________________

9. The Maritime Advocate online archive

The publishers are proposing to create an archive for the Maritime Advocate which will provide an opportunity for a number of firms to demonstrate their expertise to our readership.

In addition to the back editions of the Maritime Advocateitself, there will be two central aspects to the archive:

1. To provide regular case-law updates on transport and insurance law from their particular jurisdiction. It is expected that a wide range of jurisdictions will form part of the case-note database.

2. To provide an overview of the transport law in each jurisdiction.

An example of this overview which has already been prepared for India by BJ Macfarlane & Co can be supplied. In New Zealand, the firm of Wilson Harle has now agreed to be the sponsors for the country summary.

In Finland, The firm of Aminoff & Weissenberg have now agreed to be the sponsors for the case note database.

In the United States, the firm of Blank Rome has now agreed to be the sponsors for the United States country summary. The editors welcome interest from firms interested in supplying case notes for the 2nd, 5th, 9th and 11th circuits:

In other cases each jurisdiction will only be represented by two sponsoring law firms. One will provide the case law updates. The otherwill provide the country summary. If you or your firm is interested in supplying these materials please contact the publishers at:

contactus@afterofficehours.com

___________________________________________________________________________

Simple pleasures

A UNIVERSITY professor in the UK has said that parents should stop spending hundreds of pounds on hi-tech toys for their children, because their children would rather play with old mobile phones and other redundant gadgets.

You really do not have to be a university professor to know that this is true. In your editor's day, we didn't have any mobile phones, old or otherwise, but we had cocoa tins and string and, provided you stood right next to the person you were talking to, and shouted, you could make yourself heard perfectly well.

Your editor became a grand prix driver simply by placing a kitchen chair in front of a gas cooker with the oven door open. His brother, meanwhile, found his pleasure in a carpet football game using 22 clothes pegs and a marble, this before substitutes had been invented. To the rest of us, the pegs all looked the same, but he would go out in all weathers to retrieve Di Stefano or Puskas from the clothesline, where they were being used by an unknowing parent to secure the week's wash.

It never did us any harm.
_____________________________________________________________________

Name-calling

THERE has been a lot in the newspapers this past week about the correct way to address people. The writer of one letter to the editor of The Times newspaper in London recalled how he started out being called 'master' until, at the age of thirteen, he became 'Mr'. During national service he became, successively, 'lieutenant' and 'captain', after which he became a surgeon and reverted to 'Mr'. Further degree success then resulted in a return to 'master'. But he only realised his true worth when, on a recent visit to hospital for minor surgery, he was wheeled into theatre by a porter who called him 'Martin'.

Of course, one has to make allowances for regional variations, witness the experience of another Times correspondent who recalled how he had once been told, after a minor altercation with another road-user in Dorset, "Bugger off my dear." But your editor does not believe in titles, and has not referred to anybody as 'Mr' these past forty years. Given names are given for a reason, and should be used at all times. They are the verbal equivalent of the tuxedo, placing everybody on the same level. Failure to understand this results in the sort of email your editor received this morning which began, "My deary friend, Hey, how are you? Do you know that soon is Xmas?"

Do you know how your editor deals with people who refer to him as 'Deary'? Wait till you hear!
_____________________________________________________________________

Getting shirty

SCIENTISTS in Australia have created a hi-tech tee-shirt which enables those so inclined to improve their air-guitar technique no end. It is no longer necessary to simply mime the actions to the music. As each flailing arm fingers an imaginary fretboard, or strikes the invisible strings, the shirt will read its intention and transmit it instantly to a computer, which holds a library of chords and individual notes. The digital signals thus produced are played back through an amplifier in the form of guitar riffs.

In you editor's day, we used to strum along quite happily to the Beatles on our tennis rackets until we could afford a real guitar. Then we got a copy of Bert Weedon's book out of the library and discovered that, by learning 'C', 'Am', 'F' and 'G' we could play everything from 'Just the Way you Look Tonight' to the entire Bob Dylan canon. Tee-shirts hadn't been invented, and scientists were busy splitting the atom.

If you wanted to know if somebody played the guitar, you looked at the ends of their fingertips - which were as rough as fortnight-old Shredded Wheat - and not at their tee-shirts.
____________________________________________________________________

Made in heaven

ON the night before they were to be married, a young couple were killed in a car accident. They found themselves at the pearly gates of heaven being escorted in by St Peter. After a couple of weeks in heaven, the prospective groom took St. Peter aside and said, "St Peter, my fiancee and I are very happy to be in heaven, but we miss very much the opportunity to have our wedding vows celebrated. Is it possible for people in heaven to get married?" St Peter looked at him and said, "I'm sorry, I've never heard of anyone in heaven wanting to get married. I'm afraid you'll have to talk to the Lord God Almighty about that. I can get you an appointment two weeks from Wednesday."

Come the appointed day, the couple were escorted by the guardian angels into the presence of the Lord God Almighty, where they repeated the request. The Lord looked at them solemnly and said, "I tell you what; wait a year and if you still want to get married, come back and we will talk about it again."

A year went by and the couple came back. Again, the Lord said, "I'm sorry to disappoint you, but you must wait another year, and then I will consider your request."

This happened year after year, for ten years. Each time they reasserted their yearning to be married; each time God put them off for another year. In the tenth year, they came before the Lord to ask again. This time the Lord answered, "Yes, you may marry! This Saturday at 2:00 p.m. We will have a beautiful ceremony in the main chapel. The reception will be on me!"

The wedding went off without a hitch. The bride looked beautiful. The Buddha did the flower arrangements for which Moses wove simple yet elegant baskets. Jesus prepared the fish course. All heaven's denizens attended, and a good time was had by all. Tragically, but perhaps inevitably, within a few weeks, the newlyweds realised that they had made a horrible mistake. They simply couldn't stay married to one another. So they made another appointment to see the Lord God Almighty.

Grovelling and frightened, they asked if they could get a divorce. The Lord heard their request, looked at them, and said, "Look, it took us TEN YEARS to find a priest up here. Do you have ANY idea how long it'll take us to find a lawyer?"
_____________________________________________________________________

Class divide

A NEW teacher was trying to make use of her psychology courses. She started her class by saying, "Everyone who thinks they're stupid, stand up!" After a few seconds, little Johnny stood up. The teacher said, "Do you think you're stupid, Johnny?"
"No, miss, but I hate to see you standing there all by yourself."
_____________________________________________________________________

Out of the mouths …

A MAN was driving with his three young children one warm summer
evening when a woman in the open-top car ahead of them stood up and
waved. She was stark naked. The man's five-year-old shouted from the back seat, "Dad, that lady isn't wearing a seat belt!"
_____________________________________________________________________

Sheepish

A SHEPHERD went to market and bought some sheep. That night, worried for the safety of his new charges, he told his sheepdog to go and count the number of sheep in the pen. The sheepdog raced off and returned shortly with the news that there were fifty sheep.

"That's not possible," said the farmer. "I only bought 48."

"I know," said the dog. "I rounded them up."

_______________________________________________________________________

Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritimeindustries, with particular reference to dispute resolution sponsored by Ignacio de Ros - Maritime Advocates. Ignacio and his multilingual staff and his world champion Yngling Crew can be contacted at:

office@ignacioderos.com

T: +34 932 050 265 / F: +34 932 046 896.

 

 

The Maritime Advocate online Issue 279

19 Nov 2006

< AVO 279

Issue 279
November 14th, 2006

Maritime Advocate Online is a weekly digest of news and views
on the maritimeindustries, with particular reference to dispute resolution.

 

___________________________________________________________________________

To SUBSCRIBE or UNSUBSCRIBE send an e-mail to:

contactus@AfterOfficeHours.com

To contact the editor Chris Hewer send an e-mail to:

editor@maritimeadvocate.com

___________________________________________________________________________

The Maritime Advocate online is published by:-

After Office Hours Ltd,
124 Florin Court
6-9 Charterhouse Square
London EC1M 6EY

SUBSCRIBE click here | UNSUBSCRIBE click here | Read Archives here |

CONTENTS

1. Lloyd Nelson
2. Reverse on unseaworthiness
3. Presentation rule
4. Second-home exemption
5. Reducing pollution
6. Profit-share pitfalls
7. People & Places
8. The Maritime Advocate Archive

___________________________________________________________________________


1. Lloyd Nelson

SAD news reaches us from the US, where Lloyd Nelson has passed away, at the age of 81. Lloyd was a giant among US maritime arbitrators, having started his career in the mid-50s with an appointment to a million-dollar charter party cancellation dispute on a vessel called the 'Ocean Rose'. At the time, it was the largest award ever issued in New York. Thereafter, Lloyd remained in continual demand as an arbitrator, right up until his untimely passing.

Lloyd was his own man. Although he initially refused to join the Society of Maritime Arbitrators in New York when it was founded in 1963 - on the grounds that he feared it might be an organisation that was going to try to tell people how to think - Lloyd joined the SMA two years later and subsequently became a director. He turned down the presidency, however, arguing, "I have a full-time job already."

Lloyd was the longest-serving New York maritime arbitrator, and was once referred to by an English barrister as 'My Lord'. He was a mentor to a number of New York's current maritime arbitrators, appointing them as panel chairmen for the first time. Past SMA president Manfred Arnold says of Lloyd, "He was my rabbi, my mentor, a great colleague, a friend and one of the smartest arbitrators New York ever had."

Your editor interviewed Lloyd Nelson 1997, during the US MLA fall meeting in Desert Springs. He was fresh from his triumph, on troublesome knees, as part of the US team which had defeated the rest of the world in the mini-Ryder Cup which is played out at these gatherings. He explained, "There's never a case you can't lose. And I don't want to be involved in a case I can't win."

A fitting epitaph for one of New York's finest.

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2. Reverse on unseaworthiness

THE Singapore Court of Appeal has reversed a decision in which the high court had previously found in favour of the insurers of a vessel lost at sea. The insurers had denied liability on the grounds that a diversion from the vessel's recommended course constituted a breach of warranty, and that the proximate cause of loss was the unseaworthiness of the vessel.

In November 2003, Marina Offshore bought an old tug which was built for Japan's coastal waters. The tug was laid up in a shipyard in Kobe and Marina Offshore wanted to bring it to Singapore for repairs. It was out of class. Marina Offshore insured it under hull policies for one year. The policies incorporated the Institute Time Clauses and the trading limits were Singapore home trade (including Indonesian waters) and one voyage from Kobe to Singapore.

The policies contained a warranty requiring that a seaworthiness and condition survey be undertaken and complied with before the tug sailed. The surveyor made six recommendations in the survey and stated that his report would be void unless all six were followed. One of the recommendations concerned the route of the voyage: it required the tug to track the nearest coast of Japan, the Philippines and Sabah, unless the weather permitted otherwise. The tug was to seek shelter if the weather became bad.

Although gale warnings were issued by the Kobe Meteorological Department, the tug left Kobe on the evening of December 26, 2003. It sank fifty miles from Kobe with the loss of the entire crew. Marina claimed under the policies.

The insurers denied liability on the main grounds that Marina had been in breach of the warranty in failing to comply with the surveyor's recommended route, and the cause of loss had been the tug's unseaworthiness, not an insured peril of the sea.
The trial court judge dismissed the action against the insurers, holding that Marina had breached the warranty. But the court of appeal reversed the decision and gave judgment to the insured.

The appeal court held that there was no warranty on the route of the vessel. The written warranty did not refer to the course of the voyage; the fact that its terms required that the recommendations be complied with before sailing meant that what had to be done enroute was part of the warranty requirements. It was held that the normal contractual test relating to the implication of terms does not apply to marine policies, as the only implied warranties are those implied by legislation.

The appeal court also found that, even though the policies covered the voyage from Kobe to Singapore, they were time policies, not hybrid time-voyage policies. The Marine Insurance Act implies a warranty of seaworthiness at the start of the voyage. So in this case, there was an implied warranty of seaworthiness.

The court accepted that there had been no competent master on board, so that the vessel had been unseaworthy on sailing. But the surveyor had found the crew to be adequate for the voyage. Although this opinion was not binding on the court, the insured, which had accepted the surveyor's expert opinion, could not be said to have knowingly or recklessly sent an unseaworthy vessel to sea. Furthermore, there was no evidence to show how the incompetence of the crew might have been a proximate cause of loss.

For more details, contributed to the International Law Office website by Len Sun Chan, of Ang & partners, go to:

www.internationallawoffice.com/?l=6G354FJ&i=1013606

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3. Presentation rule

THE Hong Kong Court of first instance has dismissed an argument brought by carriers that the presentation rule (that goods must be released to the consignee only against presentation of an original bill of lading) should not apply to straight bills of lading.

In the case of Carewins Development (China) Ltd v Bright Fortune Shipping Ltd, the court, following the approach taken by the Court of Appeal in Singapore and the House of Lords in England, found that the carriers were, however, relieved from any liability for misdelivery by a clearly worded exemption clause in the contract. Because the misdelivery took place after discharge of the goods, the prohibition in the Hague/Hague-Visby Rules against such clauses did not apply.

For more details, contributed to David Martin Clark's website by DLA Piper, go to:

www.onlinedmc.co.uk/carewins_v__bright_fortune.htm

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4. Second-home exemption

A DIESEL engine mechanic recently sued a vessel owner under the strict liability regime of New York's Labour Law. The mechanic was injured in a fall from a ladder leaning against the vessel while it was up on blocks in a repair yard. The vessel owner countered with the argument in a summary judgment motion that the labour law did not apply, because an exemption applied.

The labour law exempts from liability owners of one- and two-family dwellings who do not direct or control the work. The vessel owner argued for the exemption to apply to a pleasure yacht, such as his 40ft Tiara motor vessel, which he used as a second home. The yacht has two staterooms with capacity to sleep up to six people, a kitchen with all appliances, and two bathrooms.

The judge, recognising that this was an issue of first impression in New York, agreed that the vessel qualified as a dwelling, and the exemption from the labour law was found to apply.

The opinion addresses the vessel as second-home exemption as the basis for the grant of summary judgment for the vessel owner. The mechanic's complaint was dismissed. This decision is important for vessel owners and marine insurers in all jurisdictions with similar labour laws.

For a copy of the decision, email James Mercante of Rubin, Fiorella & Friedman in New York, who represented the vessel owner.

Jmercante@rubinfiorella.com

________________________________________________________________________


To advertise to the thousands of shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-


Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)

Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503

___________________________________________________________________________

5. Reducing pollution

BIMCO has recommended that all means of reducing pollution from the maritime sector are explored, and none excluded at this stage. It believes all Sulphur Emission Control Areas - SECAs - should have the same sulphur cap so that the number of different fuels to be carried on board is minimised. But it says the reduction of sulphur content in heavy fuel oil to below one per cent may be unworkable in practice, as blending may lead to unsafe fuel standards having inadequate combustion properties.

BIMCO supports nitrogen oxide (NOx) reductions through 'in-engine' improvements as a first step, and is not convinced that the use of abatement equipment will lead to reduced engine efficiency, resulting in increased air emissions.

BIMCO believes that, for NOx reductions to be achieved, long-term standards will have to be established, preferably in co-operation with engine manufacturers. And it advocates a differentiated and multi-speed approach as the way forward. This includes using distillate fuels in ports and estuaries but retaining the ability to burn residual fuels with higher sulphur content on the high seas, the continuous development and improvement of exhaust scrubbing techniques, and the implementation of more efficient refining tools and techniques for producing residual fuels with suitable combustion properties and minimum particulate content.

www.bimco.dk

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6. Profit share pitfalls

SHIPPING accountant and business adviser Moore Stephens says owners and charterers should beware the tricky questions raised by profit-sharing charters.

Moore Stephens partner David Anstis says, "There is an increasing trend towards risk-sharing charters that contain profit-related elements. This is fine, but in practice it raises some tricky questions. How and when will the profit share be calculated and paid? What rights of inspection to accounting records will the owner have? What costs and expenses should be included within the calculation of profit? Are these specified in the charter party? How will the owner's auditor verify that the income recognised in the profit share period is complete? How will companies know how much to include in their published results if the period for reporting profit-share arrangements does not coincide with this?"

Pointing out that profit-sharing may make verification difficult, and so hinder compliance with Sarbanes-Oxley and corporate governance requirements, Anstis concludes, "By all means share the risk, and the profit, but also be clear what the risk is and where the profits lie."

www.moorestphens.co.uk

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7. People & Places

NAVAL architect and marine engineer William N France, a long-time partner of the former New York maritime law firm of Healy & Baillie, has switched from the day-to-day practice of law to a technical and legal consulting role in the marine industry. William joined Healy & Baillie as an associate in 1977 and, during almost thirty years of practice, specialised in technical disputes and related litigation and arbitration. He now intends to focus on the commercial side of the marine industry - including consulting on and investigating technical matters for owners, operators and underwriters and their representatives - as well as serving as an arbitrator or litigation consultant to law firms on such matters, or as of-counsel or special counsel in technical disputes.

poetadmiral@earthlink.net
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NOVATUG, the Rotterdam-based specialist behind the design of the revolutionary Carrousel towing system for tugboats, has established an international tugboat equipment sourcing consultancy for vessel owners and shipyards. Rolf Kievits, general manager of Novatug, says, "There are huge shortages of certain types of equipment in today's market. But Novatug is in a position to offer a valuable service to help owners and shipyards find the right equipment in the right place, at the right time, at the right price.

www.novatug.nl
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THE Liberian International Ship & Corporate Registry (LISCR), the US-based manager of the Liberian Registry, has appointed master mariner Jorg Andreas Molzahn as regional operations manager of its dedicated Hamburg office. Molzahn has extensive seagoing experience as a senior officer on tankers, containerships and passenger vessels, as well as being a qualified nautical inspector. His role at LISCR's Hamburg office will include, among other duties, the review of ship security plans and safety management manuals, the conduct of onboard and shore-based ISPS and ISM/ISO audits, and the co-ordination of ISPS/ISM certification operations.

www.liscr.com


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9. The Maritime Advocate online archive

The publishers are proposing to create an archive for the Maritime Advocate which will provide an opportunity for a number of firms to demonstrate their expertise to our readership.

In addition to the back editions of the Maritime Advocateitself, there will be two central aspects to the archive:

1. To provide regular case-law updates on transport and insurance law from their particular jurisdiction. It is expected that a wide range of jurisdictions will form part of the case-note database.

2. To provide an overview of the transport law in each jurisdiction.

An example of this overview which has already been prepared for India by BJ Macfarlane & Co can be supplied. In New Zealand, the firm of Wilson Harle has now agreed to be the sponsors for the country summary.

In Finland, The firm of Aminoff & Weissenberg have now agreed to be the sponsors for the case note database.

In the United States, the firm of Blank Rome has now agreed to be the sponsors for the United States country summary. The editors welcome interest from firms interested in supplying case notes for the 2nd, 5th, 9th and 11th circuits:

In other cases each jurisdiction will only be represented by two sponsoring law firms. One will provide the case law updates. The otherwill provide the country summary. If you or your firm is interested in supplying these materials please contact the publishers at:

contactus@afterofficehours.com

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Visually challenged

SCIENTSTS (who else) have managed to make blind mice see by transplanting retinal cells into the creatures. Did you ever see such a thing in your life?
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The cost of upbringing

THE cost of bringing up a child today is apparently £180,000. This is ridiculous, and compares with the amount of less than twelve pounds which it took to bring up your editor.

Using the same categories of expenditure as today's researchers, your editor can set out the costs pertaining to his own upbringing as follows: Childcare - nothing. Education - nothing. Food - £8, including Christmas. Clothing - £3. 12s. 6d. (One pair of brown shoes and one snake-belt). Holidays - nothing. Babysitting - nothing. Lesiure and recreation - nothing. Pocket money - two shillings a week. Furniture - don't be ridiculous. Other - nothing.

It never did us any harm.
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Letter of the Week

AT a restaurant, I was told that my cocktail did not have the usual parasol because of health and safety. Moments later a waiter arrived with a sizzling griddle of fajitas and plonked it down in front of my six-year-old. (The Times, London)
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Out of the mouths…

A little boy got lost at the YMCA and found himself in the women's locker room. When he was spotted, the room burst into shrieks, with ladies grabbing towels and running for cover. The little boy watched in amazement and then asked, "What's the matter, haven't you ever seen a little boy before?"

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Restaurant maths

SOME people are reluctant to divulge their age. But beware. Your waiter may know.

Firstly, pick the number of times a week that you would like to go out to eat (more than once but less than ten times).

Multiply this number by two.

Add five.

Multiply by fifty.

If you have already had your birthday this year, add 1756.

If you haven't, add 1755.

Now subtract the four-digit year in which you were born.

You should have a three-digit number

The first digit of this is your original number explaining how many times you wanted to go out to restaurants in a week.

The next two numbers represent your age. (Oh yes, they do.)
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Put to good use

A WOMAN came home early and found her husband in their bedroom making love to a very attractive young woman. "You are a disrespectful pig!" she cried. "How dare you do this to me, a faithful wife, and the mother of your children? I'm leaving you. I want a divorce straight away."

Her husband replied, "Hang on just a minute, love, so at least I can tell you what happened."

"Fine, go ahead," she sobbed, "but they'll be the last words you'll say to me."

"Well," he said, "I was getting into the car to drive home and this young lady here asked me for a lift. She looked so down-and-out and defenceless that I took pity on her and let her into the car. I noticed that she was very thin, not well-dressed, and very dirty. She told me she hadn't eaten for three days. So, in my compassion, I brought her home and warmed up the enchiladas I made for you last night, the ones you wouldn't eat because you're afraid you'll put on weight. The poor thing devoured them in moments.

"Since she needed a good clean-up, I suggested a shower, and while she was doing that I noticed her clothes were dirty and full of holes so I threw them away. Then, as she needed clothes, I gave her the designer jeans you have had for a few years, but don't use because you say they are too tight. I also gave her the underwear that was your anniversary present, which you don't use because I don't have good taste. I found the sexy blouse my sister gave you for Christmas that you don't use just to
annoy her, and I also donated those boots you bought at the expensive boutique and don't use because someone at work has a pair the same."

"She was so grateful for my understanding and help and as I walked her to the door she turned to me with tears in her eyes and said, 'Please, do you have anything else that your wife doesn't use?'"
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Thinking aloud

A TEACHER asked her class, "If there are five birds sitting on a fence and you shoot one of them, how many will be left?"

She called on little Tommy, who replied, "None. They will all fly away with the first gunshot."

The teacher replied, "The correct answer is 'four', but I like your thinking."

Then little Tommy said, "I have a question for YOU. There are three women sitting on a bench having ice-cream. One is delicately licking the sides of the triple scoop of ice-cream. The second is gobbling down the top and sucking the cone. The third is biting off the top of the ice-cream. Which one is married?"

Blushing, the teacher replied, "Well, I suppose the one that's gobbled down the top and sucked the cone."

To which Little Tommy replied, "The correct answer is 'the one with the wedding ring on', but I like your thinking."

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Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritimeindustries, with particular reference to dispute resolution sponsored by Ignacio de Ros - Maritime Advocates. Ignacio and his multilingual staff and his world champion Yngling Crew can be contacted at:

office@ignacioderos.com

T: +34 932 050 265 / F: +34 932 046 896.

 

 

The Maritime Advocate online Issue 278

12 Nov 2006

< AVO 278

Issue 278
November 7th, 2006

Maritime Advocate Online is a weekly digest of news and views
on the maritimeindustries, with particular reference to dispute resolution.

 

___________________________________________________________________________

To SUBSCRIBE or UNSUBSCRIBE send an e-mail to:

contactus@AfterOfficeHours.com

To contact the editor Chris Hewer send an e-mail to:

editor@maritimeadvocate.com

___________________________________________________________________________

The Maritime Advocate online is published by:-

After Office Hours Ltd,
124 Florin Court
6-9 Charterhouse Square
London EC1M 6EY

SUBSCRIBE click here | UNSUBSCRIBE click here | Read Archives here |

CONTENTS

1. Under attack
2. Arresting developments in Malta
3. Arresting experience
4. AMSA container alert
5. FAL amendments
6. Forum shopping
7. Financial stability
8. Liberian growth

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1. Under attack

ACCORDING to a report in Lloyd's List this week, the French maritime cluster has attacked London's supremacy as a centre for maritime arbitration. Paris is said to offer a cheaper and faster service of at least comparable quality, while London is accused of inertia, resting on its laurels and using its historic advantage as a shipping centre to impose excessive costs and unacceptably long delays in delivering decisions.

Not so long ago, this would have been laughed off as sour French grapes. But there is no longer any good reason not to take seriously challenges to London's position as a centre of maritime arbitration. As the insurance industry has found to its cost, it is dangerous to sit back and do nothing when the barbarians are at the gate. And history won't save you either if you choose to carry on without regard for what is happening all around you.

London has the appointments to justify its maritime arbitration supremacy. But for how long will that be enough in a shipping industry where the competition for business is hungry and visible, and aware of the value of good publicity? Arrogance and secrecy are uncomfortable bedfellows. The French are even making efforts to publish maritime arbitration awards in English, which really does put the English to shame.

We would be interested to hear your views.

editor@maritimeadvocate.com

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2. Arresting developments in Malta

MALTESE law has long been crying out for amendments to bring legislation on jurisdiction in rem out of the Victorian era. And earlier this year the necessary reforms were pushed through parliament.

Once the amendments come into force, the courts will be able to rely on the new Section 742(b) of the Code of Organisation and Civil Procedure, which extends the grounds on which a vessel may be arrested.

Section 742(b) includes a variety of maritime claims. It relies particularly heavily on the act when considering the problem of ensuring justice and equity in claims involving vessels owned, chartered and bareboat-chartered by different parties at the time the incident occurred or the debt was incurred, as opposed to the time the cause of action arose.

These provisions are the first to address this question. Experts have previously relied on recent case law when advising clients on whether they may arrest a vessel and begin an action in rem for a debt incurred by a bareboat-charterer. In most cases the court has concluded that they may not. But the legislation puts the matter beyond doubt and introduces valuable clarity on this point.

In addition to bringing Maltese law up-to-date on jurisdiction in rem and arrest, the new law has introduced the concept of court-approved sales. Practitioners in the area are aware of a great demand for this type of remedy because of Malta's location in the central Mediterranean and the size of its fleet. Before the introduction of this concept, Maltese law did not allow a creditor to sell a debtor's vessel for a good price and have the sale approved in court, prompting a number of mortgagors to take their business elsewhere.

Further amendments have been introduced regarding arrest. Whereas it was previously necessary to issue two warrants, one of impediment of departure and one of seizure, it is now sufficient to file a warrant for arrest of a vessel. However, it is understood that the amendments to the arrest procedure may not come into force at the same time as the other amendments.

For more details, provided to the International Law Office website by Anne Fenech of Fenech & Fenech Associates, go to:

www.internationallawoffice.com/?l=6G35ACT&i=1013606

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3. Arresting experience

IT is normal practice in the shipping industry for a vessel to be registered on behalf of a single-ship company, even though the beneficial owner or group behind the company owns several other vessels. Sometimes the ownership of the vessel is formally transferred from one paper company to another, for fiscal reasons, because of a change of flag, for administrative considerations or - sometimes - with the simple intent to defraud.

But not all jurisdictions recognise such changes in ownership as valid. According to the doctrine of the Spanish Supreme Court, for example, the court of jurisdiction is allowed to pierce the corporate veil if the former and the current owner have the same address, telephone and fax numbers and /or the same personnel. Under these circumstances, a claim may stand or fall on whether or not an intention to defraud can be presumed.

Such considerations can be particularly significant in ship arrest cases, when the court has to determine whether or not the sale of a vessel is fictitious, and therefore whether the owner's opposition to the arrest is spurious.

We would be interested to hear how the courts in other jurisdictions deal with such issues.

www.editor@maritimeadvocate.com

www.ignacioderos.com

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4. AMSA container alert

THE Australian Maritime Safety Agency has issued a marine notice about the need to monitor and control the stuffing, transport, loading, securing and discharge of containers.

As a result of identified shortcomings in the securing of cargo transport units on board ships, AMSA has been conducting random cargo securing inspections on ships to verify compliance with the cargo securing manuals required by SOLAS and by marine orders. AMSA says it continues to be concerned with the number of obvious breaches of the securing requirements and will continue to intervene where deficiencies are found. This also extends to the condition and maintenance of securing equipment.

There have also been several incidents where containers have been loaded onto, and discharged from, vessels trading into Australian ports where the containers were subsequently discovered to be loaded in excess of the maximum gross mass marking of the CSC safety plate. In one incident, ten out of fourteen containers in one consignment were found to be seriously overloaded.

Additionally, there have been instances reported where cargo inside containers has shifted during transport. In one recent case, cargo stuffed into a soft-sided container broke free during passage on a vessel and subsequently spilled through the side of the container and onto the deck.

http://www.amsa.gov.au/Shipping_Safety/Marine_Orders/Marine_Orders_currently in_force.asp

________________________________________________________________________


To advertise to the thousands of shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-


Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)

Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503

___________________________________________________________________________

5. FAL amendments

A NUMBER of amendments to the Convention on Facilitation of International Maritime Traffic (FAL Convention) entered force on November 1. They include new recommended practices to encourage the use of electronic systems for exchanging data and, generally, to simplify procedures to enhance the facilitation of trade. The new recommended practices include transmission of data, required in connection with the arrival, stay and departure of ships, persons and cargo, to a single point (the 'Single Window' concept) and use of pre-arrival data for subsequent release and clearance of passengers and cargo. Another amendment requires authorities to facilitate the arrival and departure of ships carrying persons rescued at sea.

www.imo.org

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6. Forum shopping

THE US Court of Appeals for the Fifth Circuit has ruled that, while a shipowner can select the forum in which to file its limitation action, the claimant may file its claim in another appropriate forum.

In a case reported in Holland + Knight's Maritime Items ezine, a seaman was allegedly injured while working on board a vessel. The shipowner filed a petition for limitation of liability in this sole claimant case in federal court in the Northern District of Mississippi and established a limitation fund. The court issued an order enjoining claims against the owner, except in the proceeding of limitation.

The seaman filed a motion to dissolve the injunction, stipulating that he agreed that the federal court had exclusive jurisdiction to determine the owner's limitation of liability and the value of the limitation fund. He asked to be allowed to proceed in the federal district court in Galveston and agreed not to seek any judgment in excess of the value of the limitation fund as determined by the Mississippi court. The Mississippi court denied the motion and the claimant appealed.

The circuit court reversed, ruling that the shipowner has no privilege under the Limitation of Liability Act other than to acquire a limit on its liability. The shipowner can not otherwise control the claimant's discretion as to the forum in which the claim may be adjudicated.

www.hklaw.com

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7. Financial stability

THE London P&I Club's entered, owned tonnage now stands at a figure of more than 35m gt. At renewal in February this year, the club reported a growth of one million tons in entered membership and a ten per cent increase in its accumulated free reserves. Club chairman John M Lyras explains that the increase in free reserves was the result of a combination of low claims levels throughout the year, an improvement in investment returns, and an increase in premium income.

Lyras says the club continues to meet and overcome new challenges, not least the new risk-based capital solvency regime introduced in the UK by the Financial Services Authority. He explains, "To comply with the regime, an internal capital model had to be developed, based on the club's existing risk management system. The model indicates that the capital required to withstand an extreme series of market and insurance-related risks is well within the club's available resources, and should satisfy the requirements of the financial regulator."

www.lsso.com

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8. Liberian growth

THE Liberian registry has topped the 70 million gross tons mark for the first time in more than twenty years. It is also dominating the market for new ships, and is set to claim at least 25 per cent of the Greek newbuilding sector. This year alone, to end-September, more than 375 vessels aggregating 12m gross tons have signed up, bringing to almost 2,300 the number of ships under the Liberian registry - the highest total since the peak period between 1976 and 1981.

In addition, Greek and German owners have committed over 600 newbuildings, aggregating 10 m gross tons, to the Liberian registry. In the case of Greece, the commitment of owners to Liberian is second only to that shown to the Greek flag, and Liberia is set to have at least 25 per cent of the Greek newbuilding market.

www.liscr.com

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9. The Maritime Advocate online archive

The publishers are proposing to create an archive for the Maritime Advocate which will provide an opportunity for a number of firms to demonstrate their expertise to our readership.

In addition to the back editions of the Maritime Advocateitself, there will be two central aspects to the archive:

1. To provide regular case-law updates on transport and insurance law from their particular jurisdiction. It is expected that a wide range of jurisdictions will form part of the case-note database.

2. To provide an overview of the transport law in each jurisdiction.

An example of this overview which has already been prepared for India by BJ Macfarlane & Co can be supplied. In New Zealand, the firm of Wilson Harle has now agreed to be the sponsors for the country summary.

In Finland, The firm of Aminoff & Weissenberg have now agreed to be the sponsors for the case note database.

Each jurisdiction will only be represented by two sponsoring law firms. One will provide the case law updates. The otherwill provide the country summary. If you or your firm isinterested in supplying these materials please contact the publishers at:

contactus@afterofficehours.com

___________________________________________________________________________

Weather Forecast of the Week

Over much of the European region, the situation is now finely balanced with approximately even chance that the winter will be colder or warmer than average.

(Met Office)
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Letter of the Week

NOW that global warming means that the human race will be wiped out within fifty years, must I still keep saving for a pension? (The Times, London)
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Write away

IT is good to see that the Society of Maritime Arbitrators in New York has a sense of humour, which is not the first quality you associate with maritime arbitrators everywhere. In the latest issue of its newsletter, 'The Arbitrator', Michael Marks Cohen says the risk of someone citing against you an article you have written for publication should not be a big worry.

"When it happened to me many years ago," he explains, " I told the court, 'I was younger when I wrote the paper and I'm much older and wiser now'.

"Professor Louis Loss dealt with the problem even more effectively. One day when he was participating in oral argument before the Supreme Court of the United States, his opponent pointed out that Loss was advocating a position which was directly contrary to what he had written in a law review article. One of the justices leaned over and asked him about the inconsistency. Loss responded at once, 'I think better when I'm getting paid'."

www.smany.org
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How to annoy a judge

Say things like, "It's one o'clock in the afternoon. Why are you still in your robe?"

Say, "Eat Exhibit A".

Whenever there's a quiet moment during a case, groan, "Booooorrrring".

He says, "Approach the bench", you say, "Approach this".

(David Letterman)
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Drink alert

DRINKS manufacturers have apparently accepted a government suggestion that the following warning labels be placed immediately on all bottles of alcohol:

WARNING: The consumption of alcohol may make you think you are whispering when you are not.

WARNING: The consumption of alcohol may cause you to tell your friends over and over again that you love them.

WARNING: The consumption of alcohol may cause you to think you can sing.

WARNING: The consumption of alcohol may lead you to believe that ex-lovers are really dying for you to telephone them at four in the morning.

WARNING: The consumption of alcohol may make you think you can logically converse with members of the opposite sex without spitting.

WARNING: The consumption of alcohol may create the illusion that you are tougher, smarter, faster and better looking than most people.

WARNING: The consumption of alcohol may lead you to think people are laughing WITH you.

WARNING: The consumption of alcohol may cause pregnancy.

WARNING: the crunsumption of alcohol may mack you tink you kan tpye reel gode.
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Inner peace

A READER writes, "I am passing this on to you because it definitely worked for me, and we could all do with a little calm. By following the simple advice I read in an article, I have finally found inner peace.

"The article read: 'The way to achieve inner peace is to finish off all the things you have started'. So I looked round the house to see all the things I had started and hadn't finished. And before leaving the house this morning I finished off a bottle of red wine, a bottle of white wine, the Baileys, three Bacardi Breezers, the Jack Daniels, the Prozac, some Valium, some cheesecake and a box of chocolates.

"You have no idea how bloody good I feel. You must pass this on to those you feel are in need of inner peace."
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Out of the mouths …

A WOMAN used to take her four-year-old daughter on her afternoon rounds working for an organisation that delivered lunches to elderly people. The young girl was unfailingly intrigued by the various appliances of old age, particularly the canes, walkers and wheelchairs. One day her mother saw her staring at a pair of false teeth soaking in a glass. As she braced herself for the inevitable barrage of questions, the child merely turned and whispered, "The tooth fairy will never believe this!"
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Head for heights

TWO Irishmen were standing at the base of a flagpole, looking up. A blonde walked by and asked what they were doing. Paddy replied, "We're supposed to find the height of this flagpole, but we don't have a ladder"

The blonde took a spanner from her purse, loosened a few bolts and laid the flagpole down. She then pulled a tape measure from her pocket, took a few measurements and announced that it was eighteen feet and six inches. She then walked off.

Staring after her, Mick cried, "Ain't that just like a blonde. We need the height and she gives us the length."
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Murphy's hat

WHEN Murphy showed up at mass one Sunday, the priest almost fell down when he saw him. Murphy had never been seen in church in his life. After mass, the priest caught up with him and said, "Murphy, I am so glad you decided to come to mass. What made you come?"

Murphy said, "I got to be honest with you, father. A while back, I misplaced me hat, and I really, really love that hat. I know that McGlynn had a hat just like my hat, and I knew that McGlynn came to church every Sunday. I also knew that McGlynn had to take off his hat during mass and I figured he would leave it in the back of church. So, I was going to leave after communion and steal McGlynn's hat."

The priest said, "Well, Murphy, I notice that you didn't steal McGlynn's hat. What changed your mind?"

Murphy said, "Well, after I heard your sermon on the ten commandments, I decided that I didn't need to steal McGlynn's hat."

The priest gave Murphy a big smile and said, "After I talked about 'Thou Shalt Not Steal' you decided you would rather do without your hat than burn in hell, right?"

Murphy shook his head and said, "No, father, after you talked about 'Thou Shalt Not Commit Adultery' I remembered where I left me hat."

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Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritimeindustries, with particular reference to dispute resolution sponsored by Ignacio de Ros - Maritime Advocates. Ignacio and his multilingual staff and his world champion Yngling Crew can be contacted at:

office@ignacioderos.com

T: +34 932 050 265 / F: +34 932 046 896.

 

 

The Maritime Advocate online Issue 277

5 Nov 2006

< AVO 277

Issue 277
October 31st, 2006

Maritime Advocate Online is a weekly digest of news and views
on the maritimeindustries, with particular reference to dispute resolution.

 

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CONTENTS

1. Not in class
2. Arresting discussion
3. Unsigned charter binding
4. ISM review
5. Emissions solutions
6. Operating costs
7. US PSC guide
8. E-mail
9. The Maritime Advocate online archive

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1. Not in class

THE English high court has held that the underwriters of hull insurance on a tanker damaged by a typhoon were not liable because the vessel's class had been cancelled.

The owners had bought the vessel in Korea after it had been damaged by a previous typhoon and obtained hull insurance by way of an endorsement that extended cover under an existing hull policy for the owners' other two vessels. Cover was effective from the date of purchase of the vessel and the endorsement provided for cover subject to a limitation of trading in Indonesian waters only.

Additional cover was provided for the delivery voyage from Korea to Indonesia, with coverage given "subject to vessel being in class". The vessel's class was stated in the endorsement to be 'KR', a reference to the Korean Registry of Shipping.

On July 4, 2004, the vessel was struck by a second typhoon and went aground. The owners claimed under the hull policy, and the underwriters rejected the claim and sought to avoid the policy.

On the date of the grounding, the vessel was not in class with the Korean Registry of Shipping. On March 31, 2004, the vessel's class with the registry had been suspended and on July 1, 2004 it had been cancelled. On June 28, 2004, six days before the damage and the date of the endorsement's inception, the sellers had entered the vessel with the International Maritime Bureau of Panama, which had issued interim class certificates.

Justice Langley held that the reference to 'Class: KR' was a warranty that the vessel was classed with the Korean Registry. The owners were in breach of this warranty as the Korean Registry had cancelled the vessel's class. On this ground alone the underwriters were held not to be liable.

The court also found that the endorsement clearly stated that cover for the delivery voyage was "subject to vessel being in class and crewed to class standards". This was held to be a reference to the Korean Registry only and could not be read as "some or any class". Thus, the underwriters were off-risk at the time of the loss.

For more details, provided to the International Law Office website by Ted Graham of Ince & Co, go to:

www.internationallawoffice.com/?l=6G357HK&i=1013606

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2. Arresting discussion

DOUGLAS Lindsay, of Maritime Resolve Ltd, has written in response to our recent call for comments about the apparent decline in ship arrest appointments. He says, "There are actually three certainties in life - death, taxes, and the next shipping depression.

"Having been involved in ship arrest and repossession for quite some time, I have watched cycles at work for a long time. Yes, things are quiet just now but, in a market where you have to be incompetent or desperately unlucky not to be making handsome profits, it is hardly surprising that arrests have diminished. With the exception of fringe cruise operators and perhaps cable ships, virtually every kind of thing that floats is making money.

"Ah, but for how long? It was many years ago that a wise old head in maritime law said to me that, during a boom, owners are too busy making money to bother with legal action. In a bad market, they turn to their lawyers and sue each other vigorously as an alternative source of income, using all the old claims they've stacked up during the good times. (Question: what happens when the boom time exceeds the statute of limitations?)

"Predictions are always a dangerous hostage to fortune, but we suspect that the next slump will see a different sort of arrest predominating. Whereas last time it tended to be the smaller owners with old tonnage who got into difficulties, next time round it may well be new ships which are recovered. Many have been built and paid for at prices which can only show a profit in boom times, and with large sums outstanding banks will not be slow to reach for their security when owners can no longer cover their inflated mortgages. I know, of course the prudent (uninsured?) owner will have put away funds to carry him through the bad times. But back in the real world you don't have to lift very many stones to find a more cynical and greedy approach - and all those lavish parties will have had to be paid for.

"Be in no doubt: arrest and repossession will be back - the only guessing game is when."

djlindsay@dsl.pipex.com

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3. Unsigned charter binding

THE high court in England has upheld an arbitration ruling that an unsigned charter party became binding as a result of the conduct of the parties.

IN 2001, OSA entered negotiations with DSND for the charter of the "Botnica". DSND had previously bareboat-chartered the vessel from the Finnish Maritime Administration under terms whereby the vessel might need to return to Finnish waters for ice-breaking duties.

DSND sent its draft terms for the charter to OSA, which faxed back a signed copy containing handwritten amendments. DSND then signed every page of a full version of the Supplytime 89 Form, which provided in relevant part that the charter terms had to be signed by both parties before becoming binding.

OSA never signed the charter agreement, but the vessel still went on hire in October, 2001, and both parties signed an on-hire statement to that effect. In November, 2001, OSA was advised that the vessel would have to return to Finland, and the parties signed an off-hire statement.

DSND claimed that OSA had not paid the sums due under the terms of the charter. At subsequent arbitration, it was found that the charter was binding, and that the arbitrators had jurisdiction to hear the dispute. OSA applied to the high court for a declaration that the charter was not valid as the requirement for both parties to sign had not complied with and, consequently, the arbitration clause in the charter was not binding either.

The high court confirmed the arbitration ruling, noting that, by its conduct, OSA had chosen to waive its right to rely on the charter requirement for both parties to sign. It was held that both parties had proceeded in a manner which was consistent with the charter being binding, and had even signed on-hire and off-hire statements in accordance with its terms. The arbitrators therefore had jurisdiction to hear the dispute.

The case is reported in the latest 'Marine, Energy and Trade Notes', from Barlow, Lyde & Gilbert.

www.blg.co.uk

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4. ISM review

PHIL Anderson of ConsultISM has urged the maritime industry to have its say in an IMO review of the ISM Code.

Anderson believes that a full review, to be undertaken over a period of time, is on the agenda of the next IMO Maritime Safety Committee meeting scheduled for the end of November. He says, "Such an opportunity to amend the code will not arise very often. I would urge everyone in the industry to give careful thought to this and to consider submitting ideas and suggestions for possible amendment to your flag state administration or an NGO with which you may be associated - e.g., International Chamber of Shipping, BIMCO, IACS, IFSMA etc., or write directly to IMO."

www.consultism.co.uk

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To advertise to the thousands of shipping lawyers and shipping professionals who subscribe to this email newsletter, or who visit the websites of the Maritime Advocate and AfterOfficeHours contact:-


Paul Hubbard + 44 (0) 7747 686288 (Commercial Manager)

Humphrey Hill: +44 (0) 7785111503
Sam Ignarski +44 (0) 7887 632503

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5. Emissions solutions

THE International Bunker Industry Association (IBIA) says that moves to further tighten air emission controls on shipping through changes to IMO's Marpol Annex VI must be based on a multiple solution approach.

Speaking at IBIA's annual convention in Monaco last week, Ian Adams, secretary-general of IBIA, said, "The international community wants to see a further reduction in sulphur and other air emissions from ships. We support that, but we cannot support simplistic one-stop solutions to the problem. The bunker industry, both users and providers, believes that a combination of low-sulphur heavy fuel oil, distillate fuels, alternative fuels and emission abatement equipment such as scrubbers will together give the shipping industry the means to cut emissions without compromising the safety and efficiency of global shipping."

Adams was speaking out in response to calls from Intertanko for all shipping to move to burning distillate fuels only. "It sounds so simple," says Adams. "But in practice it would be very difficult to implement and could compromise both safety and efficiency. We believe that with sensible regulation and by applying the multiple solutions available the industry can reach the same low level of emissions with less disruption. We note that the ICS backs the same multi-stream approach and we shall certainly be putting this view strongly at IMO, where we have consultative status."

www.ibia.net

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6. Operating costs

LAST year, shipowners experienced an average increase of just under four per cent in their total operating costs, compared to the previous year. And OpCost 2006, Moore Stephens' operating cost benchmark tool, confirms that the biggest increases were recorded in respect of insurance and crew costs.

All vessel categories experienced an increase in total operating costs, but the increases were not as marked as in the previous year, when owners were using the cash generated by a period of strong freight rates to upgrade their ships. This year, overall operating costs in the tanker market, for example, were up by 5.4 per cent on a year-on-year basis, while a smaller increase - of 3.7 per cent - was recorded in the bulk carrier sector.

The single biggest increase - of 10.6 per cent - was recorded in respect of insurance. Dry cargo ships, the workhorses of the market, recorded the biggest increase, at 31.2 per cent. Cut-throat competition for business between underwriters in the marine markets has traditionally served to keep premiums down, but the insurance market may have gained some courage from a series of big losses. In P&I, meanwhile, increasing claims costs, higher reinsurance outgoings and generally uninspiring investment returns saw most of the clubs call for significant general increases.

richard.greiner@moorestephens.com

www.moorestephens.com

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7. US PSC guide

IN an effort to enhance compliance with MARPOL and SOLAS requirements and thereby reduce the frequency of related violations at US ports, BIMCO has made its guide to prepare for port state control inspections in the US globally available on its website.

Two versions of the guide are available for download - one, a high-resolution PDF file for quality printing purposes, and the second a low-resolution PDF version that will facilitate quick transmission via e-mail to ships.

http://www.bimco.dk/upload/m65_psci_folder_low.pdf

www.bimco.org

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8. E-mail

A COUPLE of weeks ago, we reported that Lizabeth Burrell, current president of the Maritime Law Association of the United States, had joined Curtis, Mallet-Prevost, Colt & Mosle as counsel, based in New York. Or, rather, we didn't.

We actually referred to Lizabeth as 'Elizabeth', giving her an extra 'E' which wasn't there. This is particularly unfortunate because Lizabeth's initials have a special significance. Both her parents were lawyers and, hoping that the apple would not fall far from the tree, they lopped off the usual 'E' and named their daughter "Lizabeth Lorie Burrell", so that, from birth, she would be an LLB, the old US degree for a Baccalaureate of Laws.

Lizabeth, to whom we apologise, says she has accepted her doom.

lburrell@cm-p.com

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9. The Maritime Advocate online archive

The publishers are proposing to create an archive for the Maritime Advocate which will provide an opportunity for a number of firms to demonstrate their expertise to our readership.

In addition to the back editions of the Maritime Advocateitself, there will be two central aspects to the archive:

1. To provide regular case-law updates on transport and insurance law from their particular jurisdiction. It is expected that a wide range of jurisdictions will form part of the case-note database.

2. To provide an overview of the transport law in each jurisdiction.

An example of this overview which has already been prepared for India by BJ Macfarlane & Co can be supplied. In New Zealand, the firm of Wilson Harle has now agreed to be the sponsors for the country summary.

Each jurisdiction will only be represented by two sponsoring law firms. One will provide the case law updates. The otherwill provide the country summary. If you or your firm isinterested in supplying these materials please contact the publishers at:

contactus@afterofficehours.com

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Letter of the Week (1)

Flip-flops may not be shoes but, according to my wife, all strapped shoes without high heels count as flip-flops. (The Times, London)
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Letter of the Week (2)

Yesterdays' edition carried the story, 'Voodoo shop killer cooks lover then leaps to death'. Not that old chestnut again. (The Times, London)
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Letter of the Week (3)

I HAVE just received an email from an airline enticing me to 'earn a massive 34,434 miles - enough to fly to Italy'. I can't help thinking there must be a more direct route. (The Times, London)
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Men are from Mars

AN English professor told his university class, "Today we will experiment with a new form of writing called the tandem story. The process is simple. Each person will pair off with the person sitting to his or her immediate right. As homework tonight, one of you will write the first paragraph of a short story and email it to your partner. Your partner will read the first paragraph and then add another paragraph to the story and send it back. The first person will then add a third paragraph, and so on back-and-forth. Remember to re-read what has been written each time in order to keep the story coherent."

The first paragraph of one story, written by Rebecca, read, "At first, Laurie couldn't decide which kind of tea she wanted. The camomile, which used to be her favourite for lazy evenings at home, now reminded her too much of Carl, who once said, in happier times, that he liked camomile. But she felt she must now, at all costs, keep her mind off Carl. His possessiveness was suffocating, and if she thought about him too much her asthma started acting up again. So camomile was out of the question."

The second paragraph, written by Gary, read, "Meanwhile, Advance Sergeant Carl Harris, leader of the attack squadron now in orbit over Skylon 4, had more important things to think about than the neuroses of an air-headed asthmatic bimbo named Laurie with whom he had spent one sweaty night over a year ago. 'AS Harris to Geostation17', he said into his transgalactic communicator. 'Polar orbit established. No sign of resistance so far.'"
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Out of the mouths …

A LITTLE girl was watching her parents dress for a party. When she saw her dad donning his tuxedo, she warned, "Daddy, you shouldn't wear that suit." Her father asked, "And why not, darling?" The girl replied, "You know it always gives you a headache the next morning."
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Pasta joke

AN Englishman was having an affair with an Italian woman for several years. One night, she confided in him that she was pregnant. Not wanting to ruin his reputation or his marriage, the man paid a large sum of money for the woman to go to Italy to secretly have the child. The man also promised that, if the woman stayed in Italy to raise the child, he would provide child support until the child turned eighteen.

The woman agreed, but asked how the man would know when the baby was born. He told her to simply send him a postcard with the single word 'Spaghetti' written on it. He would then arrange for the child support payments to begin.

Nine months later, the man came home to his confused wife, who told him, "You've received a very strange postcard today."

"Oh, just give it to me and I'll explain," he said. His wife watched as her husband read the card, turned white, and fainted. On the card was written, "Spaghetti, spaghetti, spaghetti - two with meatballs, one without."
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Timely affection

A MAN came downstairs one morning to be greeted by his wife in the kitchen, making breakfast. "Quick," said the wife. "Take me upstairs and make wild, passionate love to me, NOW."

The rather shocked husband duly obliged, and followed his wife downstairs immediately afterwards to the kitchen. "Well," said the husband, "that was something of a surprise. What came over you?"

"Oh, nothing," said his wife. "It's just that the egg-timer is broken."

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Thanks for Reading the Maritime Advocate online

Maritime Advocate Online is a weekly digest of news and views on the maritimeindustries, with particular reference to dispute resolution sponsored by Ignacio de Ros - Maritime Advocates. Ignacio and his multilingual staff and his world champion Yngling Crew can be contacted at:

office@ignacioderos.com

T: +34 932 050 265 / F: +34 932 046 896.

 

 

News archive

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