stowaway regulations
DESCRIPTION
shippingStowawayLawRegulationsTRANSCRIPT
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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.
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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