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  • 1LOSS PREVENTIONNEWS

    UK CLUBNOVEMBER 2004 ISSUE 17

    INSIDE THIS ISSUE PAGE

    Cargo matters 4

    Stowaways 5-7

    Regulations 7-8

    ISPS ship security (suppl) 9-16

    Taking care 17-18

    P&I entry 18-19

    Case summaries 19 -20

    Personal injury 21-22

    ISPS summary 23-24

    Miscellaneous 24

    Accidents are they avoidable?Taken from the UKClubs series of HumanFactor seminars,presented to over 2,000people worldwide

    continued over

    What is an accident?

    An accident or incident is an

    unplanned chain of events which

    has, or could have, caused injury

    or illness and/or damage to

    people, assets, the environment

    or reputation. Modern research

    has shown that the basic

    components of an accident can

    be shown as the simple formula:

    And that by adding the concept of

    breached, or missing, controls and

    Uncontrolled hazard + Undefended target

    = Unwanted event (accident)defences a simple accident can be shown

    diagrammatically (below left).

    But accidents are not as simple as this,

    because usually there are several

    breached or missing controls and defences.

    More importantly almost all

    accidents consist of a series of

    interlinking events, in which

    each event becomes either a

    new hazard or a new target in

    its own right. In the presence of

    further targets or hazards and

    new and further breaches of

    defences and controls, a

    second event is created and so

    on. During accident

    investigations it is not

    uncommon to identify five, six

    or even seven interlinking

    Simple accident

    Hazard

    Breached control

    Target

    Breached defence

    Accident

    events before the final event or accident

    becomes a reality.

  • 2equation but very quickly established an

    alternative theory of accident causation.

    Because of the triangular shape of the

    basic model of the theory, it became

    known as the Tripodian view of accident

    causation. Basically it uses the

    conventional diagram shown below, left,

    but adds a third component general failure

    types (GFTs).

    This alternative model of accident

    causation is shown in the diagram below.

    The research accepts that, properly

    investigated, there is much in a reactive

    sense to be learnt from accidents. It also

    recognises, that unsafe acts or active

    failures can be reduced using tools aimed

    at modifying human behaviour. The

    research suggested that the problem with

    attempting to learn solely from active

    failures is that; (a) there are potentially

    millions of them; (b) they will rarely be

    repeated in the same way, and; (c) the

    circumstances in which they occurred will

    never be exactly the same. More

    importantly the research established once

    and for all that the sick camel could be

    made considerably healthier by managing

    what are called the general failure types

    (GFTs) of which there are just eleven. Using

    a medical analogy, the GFTs could be

    considered as the vital organs of the

    safety body. If properly managed in terms

    of their inherent health or strength, these

    could actually help prevent large numbers

    of accidents from ever happening at all.

    Once again, in medical terms its a bit like

    having a healthy heart and preventing

    heart attacks, or being vaccinated against

    accidents continued

    The concept of the event chain or

    incident trajectory is shown above.

    Note the original (first) event resulted in

    a fire. In the presence of two new

    targets, i.e. an operator and a piece of

    equipment, the resultant double event led

    to a badly burnt operator (injury) and

    damaged equipment (asset damage).

    Because the immediate aftercare of the

    injured operator (first aid or paramedic

    treatment) was ineffective (new hazard),

    the operators injuries resulted in a partial

    disability (final event).

    Reverting to the simple accident

    diagram and the formula in the text box

    on the front page, if one of the controls or

    defences had not been breached there

    would not have been an accident. If

    detected, the resultant near-miss or

    dangerous occurrence could still have

    been reported, investigated and acted

    upon as if it were the real thing.

    The usual mechanism, whereby controls

    and defences are breached, is an unsafe

    act by an individual at the sharp end.

    Occasionally, they may be breached by an

    inherent unsafe condition but these too

    will invariably have been caused by the acts

    or omissions of people, which may be

    nothing more than a simple and

    unintentional mistake. Such unsafe acts or

    unsafe conditions are generally referred to

    as active failures.

    While active failures

    are interesting

    indeed much can be

    learnt from them a

    lot more can be learnt,

    and more effective

    remedial measures put

    in place, by addressing

    the sick camel in the

    first place.

    Conventional

    wisdom (below, left),

    dictates that in order

    for an accident to

    happen, defences of

    some kind will have

    been breached, usually

    by an unsafe act, carried out in a specific

    situation and in the presence of hazards of

    some kind.

    What changed this long-established

    view, which as a basis

    for the new model is

    still correct, was some

    highly original

    research sponsored by

    one of the oil-majors

    and carried out at two

    major universities, one

    in the UK and one in

    the Netherlands. The

    research originally set

    out to establish the

    role of the human

    being in the accident

    Simple event chain or incident trajectory

    EVENT(equipmentdamaged)

    HAZARD(ignition source)

    TARGET(flammablematerial)

    HAZARD(ineffectiveaftercare)

    EVENT-TARGET(operator-burned)

    TARGET(equipment)

    EVENT-HAZARD(fire)

    TARGET(operator)

    EVENT(partial disability)

    FIRST EVENT SECOND SET OF EVENTS FINAL EVENT(ACCIDENT)

    Accident causation the Tripodian view

    AccidentsIncidentsLTIs etc

    Unsafe acts

    Hazards

    Specificsituations Defences

    Generalfailuretypes

    Learn from

    Manage

    Reduce

    Accident causation the conventional view

    AccidentsIncidentsLTIs etc

    Unsafe acts

    Hazards

    Specificsituations Defences

  • 3but human error as we have already seen

    is a broad term that includes a number of

    different sources of error.

    Not all active failures are human

    actions. Physical failure of controls and

    defences also occur due to conditions such

    as over-stress, corrosion or metal fatigue.

    These are often referred to as unsafe

    conditions. Having said that, human

    actions are often implicated as

    contributory causes to this form of active

    failure but they are not, in themselves,

    unsafe acts. For instance, a designer may

    have failed to identify the need to use a

    particular high-tensile material in a specific

    the future potential for adverse effects of

    decisions may not be fully appreciated, or

    circumstances may change that alter their

    likelihood or magnitude.

    The accident-producing potential of

    latent failures may lay dormant for a long

    time, only becoming apparent when they

    combine with local triggering factors

    active failures, technical faults, abnormal

    environmental conditions or abnormal

    system states; some of which even the best

    HSE management systems will have

    absolutely no control over whatsoever.

    Rather than dealing with an infinite

    number of active failures, it is reassuring to

    pneumonia or flu all designed to

    prevent illness in the first place. Thus rather

    than acting in response to an incident we

    seek instead to act before an incident.

    The research, delved deep into the

    causation theory in order to establish a

    concrete link between breached defences

    and controls, and active and latent failures,

    thus the Tripod causation model was born

    (see diagram below).

    The interesting point about this model,

    is that it introduces two new elements into

    the causation chain. First it provides a

    linking mechanism, known as the

    precondition, though sometimes referred

    to as the psychological precursor,

    between the active and latent failures.

    Secondly, it introduces the policy maker

    at the very start of the chain, thus

    illustrating the clear relationship between

    commitment by the policy makers at the

    beginning of the chain and the results at

    the end of the day.

    No commitment = No effective safety or

    HSE management system

    By comparing the diagram of the Tripod

    causation model and the simple accident

    diagram on the front page, it should

    become obvious that the link between the

    two is established through failed defences

    (for the target) and failed controls (for the

    hazard). The combined accident model,

    known as the Tripod-BETA tree, complete

    with all basic components is shown in the

    diagram (above right).

    Bearing in mind that any accident

    consists of a series of interlinking events, a

    completed accident tree can be

    exceedingly complex indeed.

    Active failures

    Both defences and controls are breached

    by active failures. Active failures are the

    failures close to the accident event that

    defeat the controls and defences on the

    hazard and target trajectories. In many

    cases, these are the actions of people, i.e.

    unsafe acts. Human errors are implicated

    in at least four out of five active failures,

    A defining characteristic of latent failuresis that they have been present within the operation

    before the onset of a recognisable accident sequence

    circumstance, thus sometime later causing

    component failure.

    Latent failures

    As already mentioned, latent failures are the

    vital organs of the safety equation. Latent

    failures are deficiencies, or anomalies, that

    create the preconditions that result in the

    creation of active failures. Management

    (the so-called policy or decision makers)

    decisions often involve the resolution of

    conflicting objectives. Decisions taken using

    the best information available at that

    moment prove to be fallible with time. Also,

    Activefailures

    Policymakers

    Latentfailures

    Pre-conditions

    HAZARD

    Failed control

    TARGET

    Failed defence

    Activefailures

    Policymakers

    Latentfailures

    Pre-conditions

    EVENT

    The Tripod-BETA tree

    note that there are just eleven latent

    failures on which to work to ensure

    absolute good health.

    The eleven latent failures, which

    constitute the general failure types (GFTs)

    are:

    HARDWARE

    DESIGN

    MAINTENANCE MANAGEMENT

    PROCEDURES

    ERROR-ENFORCING CONDITIONS

    HOUSEKEEPING

    INCOMPATIBLE GOALS

    COMMUNICATIONS

    ORGANISATION

    TRAINING

    DEFENCES

    The Clubs new DVD No Room For Error

    examines these in detail

    Policymakers

    Latentfailures

    Pre-conditions

    Active failures(incl. unsafe acts)

    Failed systemdefences/controls Incident

    Tripod causation model

  • 4precautions self-heating coals.

    In particular, he was advised to

    completely close down the cargo spaces,

    sealing all joints in covers, ventilators, etc

    with Ramnek tape. He reported air

    movement through the coaming drains and

    these were also closed. Within a short

    period of time, the levels of carbon

    monoxide and oxygen began to fall and this

    fall continued through the voyage.

    Discharge was completed with no problems.

    In respect of coals liable to spontaneous

    heating, the Code recommends that the

    hatches should be closed immediately after

    completion of loading in each cargo space.

    The atmosphere in the cargo spaces should

    be monitored and, if the carbon monoxide

    level shows a steady increase, then the

    cargo spaces should be completely closed

    down. The covers could also be additionally

    sealed with suitable sealing tapes.

    It should be noted that even well-fitted

    hatchcovers may be weathertight to rain

    and seas over the deck. However, with

    various rolling movements of the ship, the

    covers may not be airtight. Leakage of air

    into the cargo space will then assist

    spontaneous heating of the coal.

    Subsequent heating of the coal will set up

    thermal movements within the cargo

    space, hot products of combustion out of

    the space and a fresh supply of oxygen into

    the space to assist further oxidation and

    heating of the coal.

    It is suggested that ships chartered to

    carry coal cargoes should be provided with

    an adequate supply of sealing tape to

    maintain effective sealing of the cargo

    spaces.

    Members should note that this incident

    highlights the need to closely follow the

    recommendations of the IMO Code related

    to the carriage of coal

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    Carriage ofcoal cargoesSeveral incidents have highlighted further

    possible problems arising out of the safe

    carriage of coal cargoes.

    It appears that there are still possible

    problems relating to the information

    provided by the shipper and/or his

    appointed agent. The IMO Code of Safe

    Practice for Solid Bulk Cargoes clearly

    states that the master shall be provided in

    writing the characteristics of the cargo and

    the recommended safe handling

    procedures for loading and transport.

    In a recent loading in the Far East, the

    master was presented with a shipper's

    declaration which gave a brief outline of

    the cargo characteristics which included

    the following:

    This cargo is not considered liable to

    emit significant amounts of methane. This

    cargo is not considered liable to

    spontaneous combustion.

    The master had studied the relevant

    entry in the IMO Code and followed the

    recommendations of the Code under the

    heading General requirements for all

    coals.

    For the first 24 hours of the voyage the

    holds were surface ventilated to release

    any methane evolved from the cargo. No

    methane was detected in this period and

    the hold ventilation was closed. The hold

    atmospheres mentioned were monitored

    for methane, carbon monoxide and oxygen

    twice daily in accordance with

    recommended procedures. However,

    within four days of sailing from the load

    port, it was noted that the levels of carbon

    monoxide in some of the cargo holds

    showed a steady rise. The master reported

    these figures in his daily report and

    requested advice.

    The results of these tests indicated that

    there was a possible spontaneous heating

    problem with the cargo and the master

    was advised to follow the

    recommendations of the IMO Code

    described under the heading Special

    cargo matters

    UKRAINE

    Discharge ofbagged riceThere have been several recent cases

    where ships have faced difficulties

    disharging cargoes of bagged rice in

    Ukrainian ports due to the cargo being

    allegedly of an unsound condition.

    The Ukraininan ports State Sanitory

    Authority (SSA) boards ships immediately

    on arrival to inspect the apparent

    condition of the cargo. If mould is found to

    be present, even if only on the cargo

    packing, the SSA will prohibit discharge of

    all cargo from the holds where the mouldy

    bags were found. The position held by the

    SSA in these circumstances is a tough one

    and it is difficult to negotiate with them

    and the cargo receivers. The cargo

    receivers will reject the cargo claiming it

    does not correspond to the clean bills of

    lading on the grounds of the SSAs findings.

    Occasionally, mould may be apparent only

    on the outside of the bags, but in many

    cases the rice adjoining the material of the

    bag is also affected. It should be stressed

    that it makes no difference to the SSA

    where the mould was found, or the

    possibility of segregating sound from the

    damaged bags, as further discharging of

    sound bags is often forbidden.

    This problem concerns mainly ships

    arriving from Chinese load ports, where

    the cargo is occasionally packed in single

    woven polypropylene bags (not double

    bags) and is stored (prior to loading) in

    stacks in an open area covered only by

    tarpaulin. As a consequence, some bags

    become wetted / collect moisture prior to

    and during loading operations. During a

    long passage from China to the Black Sea,

    stowage of the cargo inside the holds

    ie. without sufficient vertical and

    horizontal channel ventilation will also

    add to the development of mould.

    Members should be aware of the

    extreme action being taken by the

    Ukrainian authorities and be particularly

    careful when loading this type of cargo,

    especially from Chinese ports at this time

  • 5stowaways

    SINGAPORE

    StowawayregulationsWe have been advised that the Singapore

    Authorities will not permit stowaways to

    be landed in Singapore for repatriation,

    even if these stowaways possess valid

    travel documents or passports.

    Ships prior to their arrival must declare

    the presence of stowaways onboard to

    the Singapore Authorities. On arrival, the

    ship must proceed to the quarantine

    anchorage for immigration and port

    formalities clearance where the master

    will have to sign a bond of US$10,000 for

    each stowaway.

    The authority will enforce these bonds

    if the stowaways are found missing from

    the ship prior to the departure clearance.

    The ship must therefore ensure that the

    stowaways are kept locked onboard

    during the entire port stay.

    Ships whilst at the quarantine

    anchorage are not allowed to carry out

    cargo operations and/or receive stores or

    bunkers. To perform these operations, the

    ship must shift from the quarantine

    anchorage to a proper berth or anchorage

    after the immigration and port formalities

    have been completed.

    We advise all Members to be fully

    aware of the above and to inform their

    chartering and operations departments

    accordingly

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    BRAZIL

    Stowawaysfrom Africanports

    the stowaway was barely conscious.

    As the stowaway had no

    documentation with him, and due to

    difficulties in repatriating stowaways from

    Saudi Arabia, the stowaway returned with

    the ship to Djibouti, where temporary

    travel documentation was obtained to

    allow for his repatriation. Prior to again

    sailing from Djibouti, the master requested

    a search of the rudder cavity. A mooring

    boat from the Port Harbour Office was

    used for the inspection, with a

    crewmember climbing into the rudder

    housing to check and confirm the space

    empty.

    In other cases of stowaways being

    discovered in the rudder housing, they

    were found to be in very poor health and in

    one case two stowaways were

    unfortunately found dead.

    We advise all Members of this situation

    and recommend that crews intensify

    stowaway searches and ensure that hard

    to reach positions on the ship, like the

    rudder housing, are thoroughly searched

    The Club has been made aware of several

    cases concerning stowaways hiding in

    ship's rudder housings, specifically with

    ships coming from African ports in ballast to

    load sugar in Brazil.

    Stowaways have apparently discovered

    that the void space around the rudder

    stock is the best place to hide from the

    local stowaway search, since this place is

    not easily accessible from inside the ship.

    Crews should be instructed on this new

    stowaway strategy, intensifying the

    stowaway search to include the rudder

    housing. Crew may have access to the

    rudder housing by opening any of the

    available accesses in the steering gear

    room.

    One case involved a Members ship,

    which was on a regular run between

    Djibouti and Yanbu al Bahr, Saudi Arabia.

    The ship was of conventional construction,

    but with a peculiarity in the rudder area

    which the stowaways could make good

    use of. On arrival at Jeddah anchorage

    where the ship called for bunkers, a

    stowaway was found sitting on top of the

    rudder assembly. This stowaway was a

    Kenyan national, who had entered the

    rudder cavity in Djibouti and had travelled

    for two days in the cavity, less than two

    metres above the water line with the noise

    of the propeller and steering gear

    constantly in his ears. When discovered,

  • 6DURBAN SOUTH AFRICA

    Stowaways ISPS Code

    A recent decree, issued by the Kenyan

    authorities, states that non-Kenyan

    stowaways are no longer permitted to be

    disembarked and be placed in the safe

    custody of the Mombasa Port Police

    pending investigation and eventual

    repatriation.

    Non-Kenyan stowaways may only be

    disembarked when a consular/embassy

    To disembark stowaways in Durban,

    South Africa, the following requirements

    must now be in place:

    Ships arriving in Durban from a foreign

    port are required to give 96 hours

    notice of stowaways onboard

    providing the ship is ISPS compliant. If

    the ship is not compliant with the ISPS

    code then this could hinder the

    disembarkation of stowaways.

    Ships arriving at Durban whose last

    port of call was a South African port,

    will be allowed to disembark

    stowaways without giving notice

    provided that they meet with the

    National Ports Authority's

    requirements.

    Ships arriving at Durban Roads from a

    South African port that wish to

    disembark stowaways at the outer

    anchorage will be allowed to do so,

    provided they meet with the National

    Ports Authority's requirements.

    Ships leaving Durban harbour where

    stowaways are found onboard after

    the ship has left the anchorage will be

    allowed to disembark the stowaways,

    provided they meet with the National

    Ports Authority's requirements.

    The National Ports Authority requires the

    following:

    In all cases where stowaways have been

    found onboard a ship from either a foreign

    port or a South African port, a pre-arrival

    form from the National Ports Authority of

    South Africa must be completed by the

    ship's local agent and forwarded, prior to

    the stowaway or stowaways

    disembarkation, to:

    1 Maritime Rescue Coordinating

    Centre, Cape Town

    2 Durban Port Control

    3 Port Security Officer, Durban

    We advise Members of the above

    requirements, which may be subject to

    changes, and also advise that local

    immigration requirements must also be

    complied with

    WEST COAST USA

    Reoccurrenceof ChinesestowawaysTowards the end of May 2004, two entered

    vessels, a container and bulk carrier arrived

    at Long Beach, California and Vancouver,

    Canada respectively. Each had sailed from

    Busan, Korea, around the middle of May,

    one from the main container terminal and

    the second from Pier 5, bulk cargo, which is

    adjacent to the terminal.

    During the voyage to Long Beach on the

    container vessel, three Chinese stowaways,

    all originating from Fujian, were found

    hiding in the deck container stack area.

    There was no evidence of any crew

    involvement in secreting the stowaways

    aboard and it was suspected that they had

    gained access during the vessels stay in

    Busan.

    In the case of the bulk carrier, seven

    Fujianese stowaways were discovered

    hiding in a void space below the forecastle

    and above the fore peak tank. In this case,

    they alleged that crew had assisted them to

    gain access to the vessel.

    During the course of investigations it

    transpired that a third non-club entered

    vessel had also been found in Long Beach to

    have four Fujianese stowaways aboard,

    again hiding in above-deck container

    stacks.

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    .........................................................................................................................................................................................

    MOMBASA KENYA

    Problems with disembarking stowawaysofficial has confirmed their nationality and

    the requisite emergency travel documents

    have been issued. The stowaways will then

    be disembarked and taken directly to the

    airport. Unfortunately, it is almost

    impossible to have necessary repatriation

    documentation on hand in time.

    Most embassies are situated in

    Nairobi. Even if the officials manage to

    coincide their arrival in Mombasa with the

    arrival of the ship, the necessary flight

    schedules and seats may not be available

    for the stowaways to be transferred

    directly from the port to the airport. In

    some exceptional cases, Tanzanian

    stowaways can be removed in time, as the

    Tanzanian consular representative is

    located in Mombasa

    continued over

  • 7In this instance, no evidence was

    present that the crew had assisted them

    and similarly the vessel had sailed from

    Busan during the same period.

    From enquiries and debriefing of the

    stowaways, it appears that Korean

    Nationals in Busan provided help and, in

    some cases, the stowaways had been

    housed in Busan pending the discovery of a

    suitable vessel.

    Fortunately, there is no suggestion that

    the stowaways had gained entry to

    containers and the most likely explanation

    is that they boarded the vessel at a time

    when the gangway was unattended.

    Certainly in respect of the non-club

    related incident, four Chinese were

    allowed onboard the vessel in the

    company of two Korean Nationals, who

    alleged that they were from owners. No

    evidence existed of them having left the

    vessel.

    It is obviously important that owners

    and operators provide training and

    adequate supervision to those crew

    members responsible for vessel security in

    ports, although within increasing numbers

    of crew members, providing adequate

    cover becomes increasingly difficult.

    If crew are not adequate to cater for

    this obligation, then consideration should

    be given to recruiting a security officer to

    supplement vessel security whilst in port.

    Certainly, Members should afford

    renewed attention whenever vessels are

    calling at this terminal

    .........................................................................................................................................................................................

    regulations

    New limits on sulphur in marine fuels

    continued over

    New regulations shortly to come into force

    are contained in Annex VI of the regulations

    of MARPOL 73/78 (International Convention

    for the Prevention of Pollution from Ships,

    1973, as modified by the Protocol of 1978).

    Annex VI was actually adopted by the IMO as

    far back as 1997 but, like all IMO regulations,

    only comes into force 1 year after it is ratified

    by a certain number of states having a

    certain percentage of the worlds tonnage.

    This occurred on 18 May 2004 when it was

    ratified by Samoa so it will come into force

    on 19 May 2005.

    Annex VI covers the prevention of air

    pollution from ships. The problem being that

    when fuels are burnt in engines the gasses

    they produce contain sulphurous oxides

    (known as SOx) and nitrous oxides (known as

    NOx) and scientists tell us that these play

    their part in environmental pollution, acid

    rain etc.

    One of the main reasons why shipping is

    now being targeted is not that ships are

    putting out more of such polluting gasses but

    that land based industries have been

    subjected to such regulations for some time

    and have therefore been decreasing their

    emissions which means emissions from ships

    form a bigger percentage.

    Annex VI therefore sets a global limit on

    the sulphur content of marine fuels of 4.5%.

    This will supercede the limit of 5% in the

    international fuel standard, ISO 8217.

    Annex VI also contains provisions for what

    are know as SOx emission control areas (or

    SECAs) which will have much more stringent

    controls on sulphur emissions and will limit

    the sulphur content of fuels to 1.5%. The

    first SECA will be the Baltic Sea and this will

    come into force 1 year after Annex VI, i.e.

    on 19 May 2006. There are moves to make

    the North Sea and English Channel the next

    SECA but this is not likely to come into force

    until possibly March 2007.

    The European Union has also decided to

    bring in its own regulations. This would

    appear to be because of the EUs frustration

    at the delay between Annex VI being

    adopted by IMO in 1997 and it coming into

    force in 2005. Fortunately, the EU has fallen

    into line with the regulations concerning

    SECAs but have their own rules for distillate

    fuels. The EU directive covers the use of

    distillate fuel within member states national

    waters, i.e. within the 12 mile limit, or

    alongside berths and allows a maximum

    sulphur content of 0.2% (some exceptions

    have been negotiated). It is possible that this

    limit will be reduced to 0.1% in 2010.

    So what are the implications of this?

    Marine fuels supplied worldwide have an

    average sulphur content of between 2.5%

    and 3.0% with only 0.5% of all fuels

    supplied containing over 4.5% sulphur. So

    the global limit will have very little practical

    effect on ships.

    However the same cannot be said of the

    SECA limit of 1.5% sulphur. None of the

    grades of residual fuel in the present IFO

    8217 standard have a limit on sulphur which

    would comply with this. So if a vessel

    wanted to continue using residual fuel, it

    would have to have a separate low sulphur

    fuel oil and would have to properly

    segregate it. In fact the only grade of fuel in

    the ISO 8217 standard which would meet

    the SECA limit is DMA or gas oil, both the

    normal grades of MDO, DMB and DMC,

    have a limit on sulphur of 2.0%. Not only

    could this mean segregated storage tanks

    but it also raises the possibility of dual

    pumping systems etc one way round this

    would be to change over to low sulphur fuel

    early enough so that the transfer system

    and daily use tanks are flushed through

    before the vessel enters a SECA.

    If a vessel uses diesel oil in its generators

    and goes into an EU member state port, it

    will also have to have low sulphur gas oil to

    comply with the 0.2% limit, with even more

    segregated storage tanks etc. The EU

    regulations (which came into force in 1999)

    only cover distillate fuels so a uni-fuel ship

    using only residual fuel in its generators as

    well as main engine, could continue to use

    fuel oil of upto 4.5% sulphur in port as long

    as it is not in a SECA.

    One point to bear in mind is that the

    cylinder oil used in large slow speed diesel

    engines is highly alkaline to counteract the

    acidic conditions produced when burning

    high sulphur fuel oil. The affect of using low

    sulphur fuel could lead to the situation

    where excess alkalinity occurs. There has

    7

  • 8From 13 August 2004, the USCG began

    enforcing US ballast water management

    regulations. The master, owner, operator

    or person-in-charge of any ship equipped

    with ballast water tanks that is bound for

    ports or places in US waters must ensure

    that complete and accurate ballast water

    management (BWM) reports are

    submitted in accordance with 33 CFR

    151.2041, and signed BWM records are

    kept onboard the ship for a minimum of

    two years in accordance with 33 CFR

    151.2045. The final rule titled Penalties

    for Non-submission of Ballast Water

    Management Reports (33 CFR 151,

    subpart D, as amended 14 June 2004)

    implements a maximum US$27,500 a day

    civil penalty and class C felony provisions

    for failing to submit BWM reports and

    failing to maintain BWM records.

    The final rule also expands existing BWM

    reporting and record keeping

    requirements to include all ships equipped

    with ballast water tanks that transit to

    any US port or place of destination,

    regardless of whether the ship operated

    outside the exclusive economic zone (EEZ)

    of the US or the equivalent Canadian

    zone.

    From 1 July 2004, the transitional period of

    the requirement for all crew of non-military

    ships entering Australian waters to carry a

    passport and identity document for

    presentation at immigration clearance

    ends.

    The identity document must show and

    confirm the person concerned as a seafarer

    employed on that ship. The passport and

    document must be located on the ship as it

    enters Australia at a proclaimed port or a

    place other than a proclaimed port, if

    We expect that the USCG captain of

    the port (COTP) will in most cases take a

    tiered approach to enforcement actions

    starting with letters of warning (LOW),

    notices of violation (NOV), civil penalties,

    suspension and revocation (S&R), captain

    of the port orders and then, in a worst case

    situation, criminal charges. Conversely,

    COTPs may also consider including superior

    compliance recognition programmes for

    those operators who continuously show

    superior compliance with new or existing

    BWM requirements.

    The only ships that are exempt from the

    mandatory BWM requirements under the

    final rule are:

    Ships that operate exclusively within

    one COTP zone;

    Crude oil tankers engaged in coastwise

    trade; and

    Ships of the Department of Defense,

    Coast Guard, or any of the armed

    services as defined within 33 USC 1322

    (a) and (n).

    Details of sending the ballast water

    management report form can be found on

    http://invasions.si.edu/nbic

    permission for it to do so has been granted

    by the Australian Customs Service.

    Under the Migration Act 1958 (Cth),

    authorised officers of the Department of

    Immigration now have the authority to

    impose a penalty on the master, owner,

    agent and charterer of a ship due to crew

    members' non-compliance. In one recent

    case an infringement notice was issued to

    the local agent of a foreign ship for the

    failure of a crew member to be in

    possession of the required identity

    document. The agent has been fined

    AUS$5,000.00, which must be paid within

    28 days.

    In these circumstances it seems clear

    that the Department of Immigration is now

    determined to enforce the new

    requirements regarding identification

    documents. Therefore, care should be

    taken to ensure that all crew of non-

    military ships entering Australian waters

    carry with them the required

    documentation

    AUSTRALIA

    Crew immigration clearance requirements

    ........................................................................................................................................................................................

    UNITED STATES OF AMERICA

    USCG enforcing ballast watermanagement regulations

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    regulations continued

    been very little research done on this but it

    is thought that excess alkalinity could be as

    corrosive as excess acidity. The grade of

    cylinder oil should therefore be matched to

    the sulphur content of the fuel and both

    owners and engine manufacturers may

    have to consider the possibility of dual

    cylinder oil systems.

    Annex VI puts the burden on bunker

    suppliers to supply fuel which conforms with

    the sulphur limits but the burden on

    demonstrating compliance will be on ships

    and their owners. The requirements to

    cover this aspect include retaining bunker

    delivery receipts, which will have to show

    the sulphur content, of all fuels received for

    3 years and for the taking of what will be

    known as regulatory samples so that,

    should a port authority require it, it can be

    tested to prove compliance. What is of

    interest is that IMO has decided that this

    sample should be taken by the continuous

    drip method at the receiving vessels bunker

    inlet manifold i.e. not on the bunker barge.

    Owners will also have to ensure that not

    only do the crew properly segregate low

    sulphur fuel but that they also properly

    document it and the change over

    procedure so that the evidence is available.

    Retaining the documentary evidence and

    regulatory samples for the required period

    may require dedicated storage.

    Further information can be obtained

    from The International Bunker Industry

    Association : http// www.ibia.net

  • 9Security a shared response

    Clear notices

    Monitoring visitors

    !

    ISPS SHIP SECURITYA LOSS PREVENTION NEWS SUPPLEMENT

    Restricting the access

    ""

    "

    "

    "#"""""

    $

    "

    FIRST

    LINE

    S OF

    DEFE

    NCE

    Good security is teamwork a responsibility for all onboard, not just a select

    few, to protect and secure their environment.

    This supplement illustrates just a few examples of the positive ways in which

    Members crews have responded to the need for onboard security and the

    preventive measures used to tackle this ongoing, ever-evolving, problem.

    First line of defence the gangway

    %"

    ""

    9

  • 1010

    &

    Body searches'""

    (

    &

    Record keeping

    ##" )*+

    Checkingbaggage"

    Tactful bodyscreening$""

    CHECKING ON

    VISITORS

  • 1111

    Clear to enter"

    ,+

    "

    "

    )*

    Clear, precise written records-

    . " "/"

    Electronicsurveillance mayassist ships staff0

    Electronic cameras-"

    0

    "

    Radio communication

    1*$$$(2$ 3

    ELECTRONIC

    SURVEILLANCE

  • 12

    Video display of visitors andselected parts of the ship-+

    Sensitive areas under continuous surveillance and recording devicesin operation on some ships

    4

    "

    "(45"("

    Issuing ships staff with ID badgescan avoid confusion

    ""6"

    ""

    Search/electronic surveillance of all persons and bags/"

    /""

    Passenger ships crew ID(

    # &

    "

    KEEPING A

    WATCHFUL EYE

    12

  • 13

    Security in the home" 7

    "

    Restricting movementon exterior stairways-!

    "

    Protecting theaccommodationblock%

    "

    High securitymeasures$

    Open void spaces

    $

    5

    Frequentuse areas8"9

    SECU

    RE EN

    TRY

    POIN

    TS

    13

  • 14

    Coded keypads or key lockson steel doors(

    "

    3'

    Coded locks oninterior doors

    "

    Emergency escape

    4

    ""

    """

    6"

    !7

    Deck lockers#2 6

    Sounding pipes"

    &

    "

    "

    LOCKS AND CODED

    KEYPADS14

  • 15

    Focsle areas$

    More focsle security

    Cargo security

    #" "

    "

    /

    *

    7::

    "6

    "

    Engine room security

    ;

    Checking stores"

    $

    ""

    CONTROLLING

    SENSITIVE AREAS

    Access control0

    6

    15

  • 1616

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    For further information contact:

    Karl Lumbers, Loss Prevention Director

    Thomas Miller P&I Ltd

    International House, 26 Creechurch Lane

    London EC3A 5BA

    Tel: +44 (0)20 7204 2307

    Fax: +44 (0)20 7283 6517

    e-mail: [email protected]

    http://www.ukpandi.com

    Preparing for the unexpected

    What these examples cannot illustrate is

    the ongoing work behind these security

    measures. The need to practice security

    drills, to regularly audit and update security

    procedures, as well as to maintain

    continuous synopsis records the need to

    be prepared.

    They are not exhaustive, but show

    some ways in which the issues of safety and

    security onboard have been tackled. But

    Security applies to all onboard"

    "

    "

  • 17

    taking care

    PANAMA CANAL

    Accidentand cargoclaimsWe have recently noted changes in the

    manner in which administrative claims for

    vessel accidents and cargo damage are

    being processed by the Panama Canal

    Authority (PCA). The organic law of the

    Panama Canal provides that the PCA is

    responsible for damages suffered by

    vessels, their cargoes, crew or passengers

    while transiting the Panama Canal and

    which are caused by the negligence of the

    PCA. The law further provides that the PCA

    shall promptly adjust and pay such

    damages. The enabling statute governing

    the operation of the Panama Canal by the

    Panama Canal Commission, US

    administered predecessor of the PCA,

    contained a similar provision regarding the

    disposition and adjudication of the

    aforementioned claims. For the first few

    years subsequent to its assuming full control

    of the operation and maintenance of the

    Panama Canal, the PCA did in fact promptly

    adjust and pay such damages, in line with its

    often-repeated position that the Panama

    Canal would continue to be administered in

    the same or better manner as in the past.

    We are aware of at least one claim

    wherein the PCA has failed or declined for

    reasons best known to its administrator and

    legal department, to make a final

    adjudication of said claim, even though that

    claim had been pending before the PCA for

    UNITED STATES OFAMERICA

    The dangersof enteringconfinedspacesIn a recent

    incident, a ship's

    second engineer

    lost his life when

    he entered and

    became trapped in the

    main engine's scavenging air

    receiver. In this case, the ship reported that

    the second engineer was missing prior to

    sailing. Despite an extensive search by

    ship's personnel of all areas including many

    searches of the machinery spaces and the

    main engine, the engineer could not be

    found therefore it was presumed he had

    gone ashore and missed sailing. Upon

    arrival at the next port the individual was

    found deceased behind an access door to

    the main engine scavenging air receiver.

    ........................................................................................................................................................................................

    It was determined that the

    engineer entered the scavenging

    air receiver alone. The reason for

    entering the receiver is not known,

    although engine maintenance was

    performed in that space whilst at the

    first port and, therefore, he may have

    returned to inspect the area for tools left

    behind or to retrieve something. It appears

    that after his entry, the easily-moved,

    inward-opening, hinged door accidentally

    closed (see photographs). Investigators

    believe that at that time, the upper left

    dog due to its weight and perhaps the

    vibration of the door as it closed moved,

    allowing its edge to catch the

    circumferential lip at the opening. Once

    caught, even with the loosened fastener, continued over

    the door could no longer be opened from

    inside the receiver. The engineer would

    have initially had sufficient quantities of

    oxygen to breath, but when the engine

    was started the conditions inside the

    receiver would have dramatically changed

    and caused the fatality.

    It is important to note that the second

    engineer was an experienced mariner

    who, it was reported, was trained and

    familiar with the ship's confined space

    entry procedure. In all previous instances,

    he had followed the procedures and safely

    performed maintenance inside the space.

    Unfortunately, on this occasion he entered

    without informing anyone or having an

    assistant stationed outside.

    over 21 months. Additionally, claimants

    advised the PCA more than 10 months ago

    that they would not be presenting further

    information and documentation with

    respect to their claim and specifically

    requested that the claim be adjudicated.

    This apparent new position by the PCA

    respecting the handling and adjudication

    of administrative claims is a source of great

    concern because the PCA is attempting to

    assert that it cannot be sued until it

    adjudicates a claim regardless of the time it

    (the PCA) takes to adjudicate such claim. If

    the PCA takes this seemingly capricious

    position to an extreme, a party, whether

    shipowner, cargo owner or passenger,

    could be waiting indefinitely for their claim

    to be adjudicated, without having any

    other recourse under the law (as

    interpreted by the PCA) to force the PCA

    to resolve its claim and reimburse the

    claimant for any damages suffered as a

    consequence of the fault of the PCA

  • 18

    JAPAN

    Compulsory insurancerequirements on non-tankervessels

    P&I entry

    Main engine crankcases, scavenging air

    spaces, exhaust ducting, boiler drums,

    furnaces, stack casings, condensers,

    sewage plant tanks and other systems,

    equipment, and components may present

    potential confined space type hazards

    that mariners may, on occasion, not

    associate as confined spaces and therefore

    not take the precautionary steps needed.

    A confined space may be defined as any

    location that, by design, has limited

    openings for entry or egress and is not

    intended for continuous human

    occupancy. This definition applies

    regardless of whether or not the

    atmosphere is explosive or toxic. See

    related US Department of Labor,

    Occupational Safety & Health

    Administration information by accessing

    their website at www.osha.gov

    It is strongly recommended that:

    All vessels complying with the

    International Safety Management

    Code (ISM) have a specific plan for

    entering confined spaces outlined

    within their Safety Management

    System.

    The confined space entry procedures

    include and identify various types of

    shipboard spaces such as those

    previously mentioned that could be

    encountered and which should be

    treated as confined spaces.

    Crew safety meetings address the

    identification of confined spaces and

    provide instruction on confined space

    entry procedures.

    Individual crew members that work in

    confined spaces review existing entry

    procedures and requirements

    regularly.

    All other vessels and maritime

    operations falling outside of ISM

    requirements develop and include in

    their marine safety programmes similar

    confined space identification and entry

    procedures.

    We advise all Members to be fully aware of

    the above and to inform their ships'

    masters and operations departments

    accordingly

    taking care continued

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    From 1 March 2005, in accordance with

    the newly amended Japanese Law on

    Liability for Oil Pollution Damage, all ocean-

    going, non-tanker vessels of 100 gross tons

    or more must comply with the

    requirements of compulsory insurance

    when calling at a Japanese port.

    Liability

    The English version of the amended Law

    on Liability for Oil Pollution is not available.

    However the Japan Ministry of Land,

    Infrastructure and Transport (MLIT) has

    posted a summary on its website from

    which it is clear that the new law imposes

    strict, joint and several liability on the

    shipowner and charterer of the vessel for

    damage caused by a bunker spill.

    Insurance

    MLITs summary announcement indicates

    that insurance required under the new law

    must include coverage for damage caused

    by bunker pollution and coverage for the

    expenses of wreck removal. The amounts

    of insurance cover must be sufficient to

    meet both personal claims and other claims

    in accordance with the limits provided

    under the 1976 LLMC.

    Charterers which may include time

    charterers but not voyage charterers are

    also liable under the law. However MLIT

    has confirmed that if the owner has a Club

    Certificate of Entry onboard the vessel, the

    charterer will not be required to supply

    another insurance certificate.

    What Members should do inorder to comply with the newrequirements

    Carry the relevant certificate of

    insurance onboard

    For owners insured with any of the

  • 19

    AUSTRALIA

    Confirmationof P&I entryMembers who are trading to Australia

    should be aware that the Australian

    Customs Service (ACS) is now insisting upon

    sighting a confirmation of ships P&I entry

    prior to granting them permission to sail

    from any Australian port.

    We have been advised of cases where

    ships have been delayed until the P&I Club

    in question has provided a fax

    confirmation. ACS stated that they would

    accept fax copies of the confirmation until

    20 April 2004, after which ships should be

    able to produce an original certificate of

    entry

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    (1) Mayban General Assurance BHD,

    (2) AMI Insurans BHD, (3) Malaysian National

    Insurance BHD, (4) Sharikat Takaful malaysia

    BHD -v- (1) Alstom Power Plants Ltd, (2) Alstom

    T&D Ltd [2004] EWHC 1038 (Comm)-QBD

    Query: Is inability of goods to

    withstand the ordinary perils of a sea

    voyage a new category of inherent

    vice?

    A transformer was shipped from Ellesmere

    Port, UK, to Malaysia under an all risks

    cargo policy. When it arrived, it was found

    seriously damaged and had to be returned

    to the UK for repairs . The shipper lodged a

    claim against his insurer alleging loss caused

    by some unusual event in the course of the

    voyage. The insurers rejected the claim

    citing inherent vice on the basis of the

    transformers inability to withstand the

    ordinary incidents of carriage by sea from

    the UK to Malaysia during the winter

    months.

    On the facts, the weather conditions

    encountered were not unusual and the

    transformer had been properly secured.

    The evidence accepted by the court was

    that the joints of the transformer began

    working loose when subjected to stresses

    and strains of the kind that could be

    expected to be encountered in the course

    of carriage.

    Moore-Bick J pointed out that under an

    all risks policy, there are nevertheless

    limits. Insurers accept the risk, but not the

    certainty, of loss. A cargo that cannot

    withstand prolonged exposure to

    conditions of that kind cannot be regarded

    as fit for the voyage. Damages caused by

    the nature of the goods themselves rather

    than by an external cause would fall

    outside the remit of such a policy. The

    insurers were able to avoid payment under

    the policy.

    The CMA DJAKARTA CMA CGM S.A.

    -v- Classica Shipping Co Ltd, Court of Appeal

    [2004]EWCA Civ 114

    A charterer cannot limit his liability in

    respect of damage to ship

    A fire and explosion occurred onboard the

    CMA Djakarta in 1999 whilst she was on

    time charter to CMA CGM for trading in

    CMA CGMs liner service. The incident was

    attributed to two containers filled with

    bleaching powder. The charterparty

    provided that the vessel was to be

    employed in carrying lawful containerised

    merchandise excluding any goods of a

    dangerous, flammable or corrosive

    nature.

    In the arbitration that followed, the

    arbitrators found the charterer in breach

    of the dangerous cargo clause and

    upheld the owners claim for damages in

    the sum of US$26.6m for repairs including

    salvage and owners demand to be

    indemnified in respect of all cargo claims

    and general average contributions.

    The arbitrators ruled, following the

    decision of Thomas J in the Aegean Sea

    [1998] that the charterer could not limit his

    liability under the 1976 Convention

    because his acts or omissions in relation to

    the shipment of the cargo were acts or

    omissions done in his capacity as charterer,

    not as shipowner. The arbitrators decision

    was upheld by Steel J on appeal to the

    Commercial Court.

    The Court of Appeal has now

    overturned this decision. Longmore LJ who

    gave the leading judgment, said that he

    believed Steel J and Thomas J had both

    started from the wrong point. In

    reaching their decision that the charterer

    must be acting as an owner before he is

    entitled to limit his liability, both judges

    appeared to have relied to some extent on

    the history of the United Kingdom

    legislation and its incremental approach to

    case summaries

    continued over

    International Group of P&I Clubs, the

    Clubs Certificate of Entry will be

    accepted. However the Certificate of

    Entry must be an original.

    Report the status of insurance before

    entering a port or certain designated

    sea areas.

    A report form must be filled out and faxed

    to the relevant district transport bureau

    before noon on the previous working day

    before the entry of the vessel in a

    Japanese port or entry into certain

    designated sea areas, these being Tokyo

    Bay, Isewan Bay and the Inland Sea. (For

    details of the bureaux and the report form

    when it is available, visit MLITs website).

    MLITs announcement appears to indicate

    that this notification requirement also

    applies to CLC tankers.

    This article provides preliminary advice

    in response to queries from Members,

    but as noted above, since an English

    version of the law is not available,

    Members are encouraged to visit the MLIT

    website for updated information and to

    download the report form, when it is made

    available.The website also includes the

    MLITs contact details and can be found at

    the following address:

    www.mlit.go.jp/english/maritime/

    insurance_portal.htm

  • 20

    the widening of the category of persons

    entitled to limit their liability. This

    interpretation was also putting a gloss on

    the word charterer which was not

    apparent from the words used. He cited

    the dicta of Lord Macmillan in a case on

    the interpretation of the Hague Rules:

    The interpretation of international

    conventions must not be controlled by

    domestic principles but by reference to

    broad and generally acceptable

    principles of construction. The duty of

    a court is to ascertain the ordinary

    meaning of the words used, not just

    in their context but also in the light

    of the evident object and purpose

    of the convention.

    Longmore LJ then looked at Article 1 of

    the 1976 Limitation Convention and said

    that two matters were immediately

    noticeable. First, two classes of people are

    accorded the right to limit, shipowners and

    salvors; secondly, the word shipowner is

    defined and is said to mean the owner,

    charterer, manager or operator of a

    seagoing ship. The mere fact that

    charterer is part of the definition of the

    word shipowner cannot of itself mean that

    a charterer (an expression otherwise

    unqualified) has to be acting as if he were a

    shipowner before he can limit his liability.

    Longmore LJ then went on to look at

    whether a claim for loss or damage to the

    vessel by reference to which a charterer

    seeks to limit his liability is a claim which falls

    within art. 2.1(a), i.e was it contemplated in

    the 1976 Convention that the tonnage of

    that vessel could be used to calculate the

    charterers limitation. He concluded that the

    answer was no. On the facts, the only head

    of claim in respect of which the charterer

    could limit his liability was the indemnity for

    cargo claims. His conclusion was that

    limitation was available to a charterer qua

    charterer but damage to the ship itself was

    excluded from the scope of claims subject to

    limitation. A charterers ability to limit will

    therefore depend on the type of claim that

    is brought against him rather than the

    capacity in which he was acting when his

    liability was incurred.

    Leave to appeal to the House of Lords

    was refused.

    Dairy Containers Ltd -v- Tasman Orient Line CV

    [2004] UKPC 22 - Privy Council (NZ case)

    Construction of a damage limitation

    clause in a contract for the carriage of

    goods by sea to see if the same is

    qualified by Art. 10 of the Hague Rules

    (the Gold Clause Trap)

    Fifty five coils of electrolytic tin plate were

    damaged by seawater. The Hague Rules

    were incorporated into the contract of

    carriage.

    Article IX Hague Rules; The monetary

    units mentioned in this convention are to

    be taken to be gold value.

    Clause 6(B)(b)(i) of the B/L: By the

    [Hague Rules] , if the loss or damage is

    proved to have occurred at sea or on

    inland waterways; for the purpose of this

    sub-paragraph the limitation of liability

    under the Hague Rules shall be deemed to

    be 100 Sterling, lawful money of the

    United Kingdom per package or unit

    The loss was calculated at

    NZ$ 613,667.25 and Dairy Containers, the

    B/L holder, were awarded this sum by the

    first instance judge in NZ. The carrier

    however contended that the deeming

    provision in Clause 6(B)(b)(i) applied and

    that he was entitled to limit his liability to

    100 Sterling, lawful money of the United

    Kingdom per damaged coil, making a total

    liability of 5,500. This was upheld by the

    Court of Appeal. This case came before

    the Privy Council by way of Dairy

    Containers appeal against the Court of

    Appeals decision. Dairy Containers argued

    that the limitation figure of 100 had to be

    interpreted by reference to Article IX, the

    Gold Clause.

    The Privy Council accepted that the

    effect of Art. IX was that the figure

    referred to in Art. IV (5) (the original

    limitation provision) was the gold value, not

    the paper value, of pounds sterling (the

    Rosa S [1988] 2 LLR 574).

    Had the Hague Rules been incorporated

    compulsorily, the deeming provision would

    have fallen foul of Article III (8) (provision

    making null and void any attempt to lessen

    liability as provided by the Rules). On the

    facts, the carriage was not governed by

    any international convention or by the laws

    of Korea and New Zealand and the

    application of the Rules by contractual

    incorporation and the deeming provision in

    Clause 6(B) was therefore valid.

    Lord Bingham, delivering the judgment,

    said: The general rule should be applied

    that if a party, otherwise liable, is to

    exclude or limit his liability or to rely on an

    exemption, he must do so in clear words. A

    term in the bill cannot be repugnant to any

    provision of the Hague Rules if the term in

    question represents a modification of the

    Hague Rules provision agreed by the

    parties in exercise of their freedom to

    agree what they will. It would similarly be

    absurd to hold that a clear contractual

    limitation agreed by the parties is

    invalidated by article III rule 8 of the Hague

    Rules.

    The carriers maximum liability was

    therefore 5,500

    case summaries continued

  • 21

    personal injury

    REPUBLIC OF IRELAND

    Personalinjury claims:a changinglandscapeBackground

    In an effort to tackle the high cost of

    insurance in Ireland the Government

    recently introduced legislation to

    implement two new initiatives. They are:

    the establishment of the Personal

    Injuries Assessment Board (PIAB); and

    the introduction of strict new

    procedures for the handling of personal

    injuries litigation.

    Establishment of PIAB

    Key features

    The function of PIAB is to offer a speedy

    and cost-effective means of dealing

    with personal injury claims without the

    involvement of lawyers.

    Under the scheme all personal injury

    claims must be referred to PIAB before

    proceedings may be issued. In respect of

    employers liability claims, the scheme

    became operational on 1 June, and,

    earlier than expected, was extended to

    include motor accident and public

    liability claims as from 22 July 2004.

    This role of PIAB is limited to assessing

    claims and issuing awards which can be

    accepted or rejected by the parties.

    PIAB has no role in determining liability

    and will not make any findings of fact

    relating to fault or negligence.

    PIAB will only make an assessment

    where the prospective defendant

    admits liability. This is done on a without

    prejudice basis and in any subsequent

    court proceedings liability can be

    contested.

    Where there is no admission of liability

    for the purposes of a PIAB assessment, it

    will issue a release certifi cate, which will

    allow the claimant to proceed to court in

    the normal way.

    The notification of the claim to PIAB will

    stop time running under the statute of

    limitations.

    Assessment of claims

    Assessment of claims is based on written

    evidence, which is made available to both

    parties. If a respondent

    disputes the claimants medical evidence,

    PIAB will refer the medical evidence to an

    independent expert.

    Each claim is assessed by a panel which

    comprises medical, financial, legal and other

    experts and is chaired by a member of PIAB.

    Claims are assessed by reference to a

    PIAB Book of Quantum, which identifies the

    appropriate levels of compensation payable

    for different types of personal injury. This is

    available on the PIAB website at

    www. piab.ie

    If both parties accept PIABs ruling, the

    award is binding. Where either or both

    parties reject the assessment, the claimant

    must issue proceedings within a period of six

    months and the claim will be treated as

    new without any reference to the prior

    PIAB process.

    Operation of PIAB to-date

    At this early stage, there is no information

    publicly available regarding the number of

    claims handled or the rate of acceptance of

    assessments. Its immediate impact has been

    limited by the fact that a huge number of

    court proceedings were issued in advance of

    the introduction of the scheme in order to

    avoid its application. In due course PIAB will

    publish statistics on its website regarding the

    claims handled and assessments accepted.

    A flowchart identifying the key steps in

    the PIAB process is shown overleaf.

    continued over

    21

  • 22

    Civil Liability and Courts Act2004

    The aim of this legislation is to speed up and

    streamline personal injury litigation, to

    discourage exaggerated claims and to

    penalise claimants who give false and

    misleading evidence.

    Key features

    In personal injury claims each party is

    required to swear an affidavit verifying

    the allegations made in the pleadings;

    criminal penalties are provided for false

    or misleading claims.

    A defendant may require the plaintiff

    to provide details of any previous

    personal injury claims made and any

    court awards received or settlements

    reached. This novel provision is aimed at

    discouraging serial litigants.

    To reduce lengthy oral hearings, the

    court can direct that evidence be given

    on affidavit; the right to cross-examine

    is preserved however.

    The Act will reduce the limitation period

    for the commencement of personal

    injury actions from three to two years

    (effective from 31 March 2005).

    Plaintiffs are required to serve a notice

    in writing setting out the terms upon

    which they are prepared to settle a

    claim. In determining costs the court

    can take the offer, and the defendants

    refusal to accept it, into account. Up to

    now, the scope for making a formal

    settlement offers, by means of a

    payment into court, has been limited to

    defendants.

    The legislation gives the court power to

    direct the parties to engage in a

    mediation process and the court has

    power to penalise, in costs, a party who

    refuses to do so.

    Rules of court are to be introduced to

    streamline the handling of personal

    injury claims with the introduction of

    case management procedures and

    provision for pre-trial hearings.

    In dealing with claims, the court must

    have regard to the PIAB Book of

    Quantum although it is not bound to

    follow its guidelines on compensation

    levels.

    Implications for insurers and ship

    operators

    These two initiatives, namely the

    establishment of the PIAB and the

    introduction of new procedures and

    penalties under the Civil Liability and Courts

    Act 2004, will significantly alter the personal

    injury regime in Ireland by reducing the time

    and cost involved in processing personal

    injury claims where liability is admitted and

    by streamlining the litigation process where

    cases are contested

    Matter is

    finalised and no

    litigation occurs

    Claimant may initiate litigation; every personal injuries

    action will be subject to the new procedural rules

    stemming from the Civil Liability and Courts Act 2004

    PIAB the Personal Injuries Assessment Board(adapted from PIABs process map on www.piab.ie)

    Claimant submits claim accompanied by medical

    reports and PIABs fee

    If documentation properly completed, limitation period

    stops running upon acceptance of claim by PIAB

    Respondent receives copy of submission

    Respondent admits liability

    Liability admitted on a

    without prejudice basis

    Respondent denies liability

    Compensation is assessed

    with reference to the PIAB

    Book of Quantum

    Assessment issued by PIAB

    PIAB award is

    accepted by

    both parties

    PIAB award is

    rejected by

    both parties

    PIAB issues a release certificate

    personal injury continued

  • 23

    isps summary

    ISPS and legalimplicationsWith the entry into force of the ISPS

    Code, we summarise below some of the

    key requirements and legal implications.

    SOLAS was amended in December

    2002 to include a new Chapter XI-2

    addressing ship security.

    In addition, the International Ship and

    Port Facility Security (ISPS) Code was

    adopted.

    The ISPS Code came into force on

    1 July 2004.

    Interested parties

    Passenger ships, including high-speed

    passenger craft;

    Cargo ships, including high-speed craft,

    of 500 gross tonnage and upwards;

    Mobile offshore drilling units;

    Shore facilities serving such ships

    engaged on international voyages.

    Summary of requirements

    A Ship modifications

    As of 1 July 2004 vessels are required to:

    Fit and carry an automatic

    identification system;

    Show the ship identification number

    internally and externally;

    Have a compliant ship security alert

    system.

    B Documentary / information

    requirements for ships

    Vessels are required to:

    Carry a ship security plan which has

    been approved by, or on the behalf of,

    the flag state;

    Obtain and carry an international ship

    security certificate issued or authorised

    by the flag state;

    Carry a continuous synopsis record

    issued by the flag state;

    Carry additional information onboard

    relating to parties responsible for crew

    appointees, parties to charterparties,

    and those responsible for deciding the

    employment of the ship;

    Have available onboard a record of

    certain other security related

    information eg: the ships level of

    security in at least the last ten previous

    ports.

    C Shipping company responsibilities

    As of 1 July 2004 shipping companies are

    required to obtain an international ship

    security certificate in respect of each ship

    that they operate. In order to do so the

    company must:

    Appoint a company security officer who

    should have knowledge and training in

    the relevant security matters;

    Carry out a ship security assessment;

    Designate an officer on each ship as

    the ship security officer;

    Produce a ship security plan, ensuring

    that the plan is approved by or on behalf

    of the flag state, available onboard the

    vessel at all times and that the measures

    outlined in the plan are implemented.

    Ensure that appropriate security drills

    and exercises are carried out;

    Provide appropriate resources to the

    ship to carry out the security plan.

    ISPS in practice

    As of 1 July 2004, Regulation 9 of XI-2

    establishes that a contracting

    government, will have the right to

    exercise various control and compliance

    measures, including:

    Port state control inspection to verify

    that a valid international ship security

    certificate (or interim certificate) is

    held onboard;

    Inspection of the ships security plan

    with limited access allowed to specific

    sections of the plan relating to the non-

    compliance, subject to the consent of

    either the flag state or the master;

    If there are clear grounds then the

    port can impose additional control

    measures.

    Clear grounds

    These may include evidence or reliable

    information that:

    The vessel does not correspond with

    the requirements;

    Documentation is not valid or has

    expired;

    The master or ships personnel are not

    familiar with the security procedures;

    The vessel has embarked persons, or

    loaded stores in violation of the ISPS

    Code;

    The vessel has not completed a

    declaration of security.

    Additional control measures

    These may include:

    A more extensive inspection of the ship;

    Delaying or deviating the ship;

    Detention of the ship;

    Restriction of operations within the

    port;

    Refusal of port entry/expulsion of the

    vessel from the port.

    Denied entry/expulsion

    When this occurs, the port state should

    continued over

  • 24

    UK P&I CLUB

    Loss Prevention News

    Editor: Peter Jackson, Area Director

    Editorial assistant: Jacqueline Tan

    Tel: +44 (0)20 7204 2548

    Fax: +44 (0)20 7204 2106

    e-mail: [email protected]

    Published by:

    Thomas Miller & Co Ltd

    International House, 26 Creechurch Lane

    London EC3A 5BA

    Tel: +44 (0)20 7283 4646

    Fax: +44 (0)20 7282 5614

    http://www.ukpandi.com

    For and on behalf of the Managers of

    The United Kingdom Mutual Steam ShipAssurance Association (Bermuda) Limited

    The United Kingdom Freight Demurrage andDefence Association Limited

    Loss Prevention News on-line

    This newsletter and earlier editions

    can be viewed on the Clubs website:

    http://www.ukpandi.com

    Whilst the information given in this newsletter is believed

    to be correct, the publishers do not guarantee its

    completeness or accuracy.

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    Good Practiceposters 3The Club has just published the third set of

    its highly-acclaimed Good Practice posters.

    If you wish to receive further copies,

    contact the Loss Prevention Department

    isps summary continued

    miscellaneous

    advise the appropriate facts to the

    port state authorities of the next

    appropriate ports of call, if known, and

    any other appropriate coastal states;

    Such notifications should remain

    confidential;

    This can be imposed where the

    inspecting officers of the contracting

    government have clear grounds to

    believe that the ship poses an

    immediate threat to security;

    It can only be imposed while the non-

    compliance giving rise to such action

    remains in force;

    If a ship is unduly detained or delayed

    or expelled it shall be entitled to

    compensation for any loss or damage

    suffered;

    Necessary access to the ship shall not

    be prevented for emergency or

    humanitarian reasons and for security

    purposes.

    Legal implications

    Paper trail: ISPS requires more

    procedures, certifications, drills etc.

    most of which will be the responsibility

    of owners. As noted above, ISPS allows

    considerable scope for intervention by

    local port state authorities.

    Charterparties: Owners and charterers

    may seek to incorporate protective

    clauses into their charterparties and

    contracts of carriage dealing with

    liability as a consequence of non-

    compliance with the ISPS Code. Useful

    guidelines have been provided by

    BIMCO see the BIMCO ISPS Clause for

    Time Charterparties and the BIMCO

    ISPS Clause for Voyage Charterparties.

    In the absence of any contractual

    wording the position will be uncertain.

    Insurance cover: The ISPS Code forms

    part of the vessels flag state

    requirements. Non-compliance with

    the ISPS Code on the part of owners

    may therefore amount to a breach of

    the insurance terms. ISM compliance is

    built into the International Hull Clauses

    2002 and may be found added as a

    term of other hull policies. In the event

    of a vessel being found non-compliant

    and being denied entry or expelled

    from a particular port, this could also

    give rise to deviation which may need

    to be insured separately.

    Cargo claims: detention of the vessel, or

    delays arising in connection with non-

    compliance with the ISPS Code may

    give rise to cargo claims for delay, loss

    of profit, or physical loss of perishable

    goods.

    Conclusion

    Owners are faced with a host of

    additional requirements and legal

    implications. In order to avoid delay or

    detention of their vessels, owners will

    have to continue to ensure good

    communication and a high degree

    of vigilance to ensure that wherever their

    vessels trade they are going to comply

    with the applicable security measures for

    individual ports

    Acknowledgements

    Carriage of coal Cliff Mullins, MintonTreharne & Davies Ltd, Cardiff, Wales

    Bagged rice Dias & Co Ltd, Odessa,Ukraine

    Stowaway regulations, Singapore SpicaServices Pte Ltd, Singapore

    Disembarking stowaways, Kenya MitchellCotts P&I Ltd, Mombasa , Kenya

    Stowaways: ISPS Code, South Africa RonEvans, P&I Associates, Durban, South Africa

    Sulphur in marine fuels Ian Green,Casebourne Leach & Co, London, England

    Crew clearance, Australia Middletons, (lawoffice), Melbourne, Australia

    Accident & damage claims, Panama DeCastro Robles (law office), Panama

    Compulsory P&I, Australia Middletons,(law office), Melbourne, Australia

    Personal injury, Republic of Ireland McCannFitzerald, (solicitors), Dublin,Republic of Ireland

    ISPS summary Matt Illingworth, solicitor,Ince & Co (law firm), London, England

    .........................................................................................................................