LP News Issue 14 - October 2001

IN THIS ISSUE

Taking care
Environment
Fines
Claims forum
Cargo matters
New regulations
Stowaways
Evidence
SUPPLEMENT: Cruise & Ferry Matters

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Medical programme grows from strength to strength

The more common causes for rejection include hepatitis B, heart diseases, hearing loss and liver disorders.

The UK P&I Club’s Crew Risk Management Programme is celebrating its fifth anniversary. In the past 12 months, the number of seafarers examined in the Programme, which provides a system of high quality standards for pre-employment medical examinations at accredited clinics around the world, has been greater than the four preceding years. (click here to go to full report)

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Corporate killing - the key issues

"Undertakings as well as corporations will be included and the Government is also considering whether the legislation should include companies not incorporated in England and Wales but which do business in England and Wales."

In the light of the recent United Kingdom rail disasters such as the Hatfield rail tragedy and the findings of the public inquiry into the Paddington rail disaster, the question of whether corporations and their directors ought to face criminal prosecution is once again attracting close attention from UK legislators.

Under existing UK laws there is already scope to bring prosecutions against both individuals and corporations under the provisions of the Health & Safety at Work Act 1974 and under the common law offence of gross negligence manslaughter, but successful prosecutions have been exceptionally rare.

The difficulties faced by the prosecuting authorities arise out of:

• the inability to aggregate separate pockets of negligence which, when combined cause the catastrophic event, and more importantly
• the need to show that the controlling mind of the company was guilty of gross negligence.

On 23 May 2000 the UK Government announced long awaited proposals on how the general law governing involuntary manslaughter should be changed in England and Wales by publishing a draft Bill. The timetable for introduction of the legislation is not clear but, not least because of public opinion, it is anticipated that the legislation will be on the statute book perhaps as soon as April 2002.

If enacted in its draft form, the key provisions of the Bill will dispense with the need to locate the controlling mind and replace it with a requirement to show that:

• there had been a management failure by the company as a whole which constituted conduct falling far below what could be reasonably expected of the corporation in the circumstances, and
• management failure was the cause or one of the causes of the person's death.

  In addition, the court's jurisdiction and sentencing powers will be extended so as to enable the court to:

• Require parent companies to pay fines incurred by their subsidiaries.the inability to aggregate separate pockets of negligence which, when combined cause the catastrophic event, and more importantly
• Freeze company assets at the investigation stage, ie. even before conviction.the inability to aggregate separate pockets of negligence which, when combined cause the catastrophic event, and more importantly
• Link the level of fines to the corporation's profit and resources.the inability to aggregate separate pockets of negligence which, when combined cause the catastrophic event, and more importantly
• Impose penalties such as demotion/disentitlement to bonus on individual directors which cannot currently be imposed under the Companies Act.

It is apparent from the legislation that successful prosecutions for corporate manslaughter will be much more achievable than under the current law. It is equally apparent that corporations need to take steps now to ensure they are able to satisfy the requirement, which the legislation will necessarily impose, in terms of ensuring that health and safety is at the core of their business considerations.

As a result of the proposed changes, all enterprises will have to commit far greater resources to health and safety issues and risk assessments will be of fundamental importance. Management, at all levels, must be aware of the responsibilities they will face under the proposed legislation and the training which they in turn must ensure is provided to their employees. Risk assessments will have to be tailor-made to identify the particular needs of a particular enterprise and will need to be reviewed and, if necessary, updated if there has been any significant change in the matters to which it relates.

Management must be prepared to implement health and safety procedures and must also be prepared to enforce disciplinary procedures for employees at all levels within their organisation who have not complied with designated health and safety procedures. Enterprises should assume that ‘no stone will be left unturned’ by the investigating/prosecuting authorities and bear that in mind when documenting all issues referable to health and safety policy. The creation of documents identifying an enterprise's health and safety policy should be to its advantage in showing that its policy is given adequate attention and sufficient resources to ensure satisfactory implementation. At the same time, documents which reveal an inadequate approach to health and safety will be used in any prosecution. Such documents will not be limited to, for example, minutes of health and safety meetings but will include personal internal memoranda and emails. Home and office computers will be searched!

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Steel plates can cause serious injury

The Club regularly sees injuries caused to crewmembers arising from the movement of large heavy steel plates, that are kept onboard ships for use in regular repair and maintenance operations. The familiar scenario generally involves the movement of several such steel plates, causing them to be simply positioned unrestrained leaning against a bulkhead. In a recent case a crewmember was ‘lucky’ to have ‘only’ suffered serious leg and foot fractures when 11 steel sheets, each weighing some 100kg, unfortunately fell on him.

Despite many crewmembers usually being involved in such operations, it is evident that manpower alone is inadequate to resist any unexpected movement of such plates. It is that message which this note is intended to convey. As ever with such operations, prior planning and recognition of the safety issues will ensure incidents have the least opportunity to occur. As a precautionary matter, two restraining systems should be in place before such an operation is begun, and sequentially engaged after each plate is removed/replaced in the original stack. The aim being to ensure that at all times, for both the main stack of steel plates and any individual sheets removed from the stack, any such movement is controlled by a safe means designed to restrict any unplanned movement. It is this unexpected, and often sudden, shifting of a 100kg steel sheet that will result more often than not in serious personal injury to unsuspecting members of a ship's crew.

It should always be remembered, as in any dangerous workplace operation, that a risk assessment should be carried out by the appropriate safety officer and the correct personal protective equipment is issued to all the ship's personnel that may be involved in the specified task, before any such work is actually carried out.

Philippine crew personal injury claims

Recently, there have been two significant developments in cases pending in the Panamanian Maritime Court.
One involves a claim for wrongful death initiated by the widows, and on behalf of their children, of two Filipino crewmembers who died onboard a Philippine flag ship whilst in Brazilian waters. The ship was arrested in Panama in order to obtain security and jurisdiction of the Panamanian Maritime Court. The claimants alleged that the releases they had signed upon settlement of their claims were signed under pressure and duress.

Attorneys representing the ship filed a motion requesting that the Court decline jurisdiction based on forum non conveniens in favour of the Philippines due to jurisdictional clauses in the relevant contract, the flag of the ship and nationality of the deceased crewmembers. The Panamanian Maritime Court refused to decline jurisdiction.

The Supreme Court has now reversed this decision and granted the forum non conveniens defence, based on the contract jurisdiction clause, flag and citizenship.

INDIA

Preventing the spread of ebola

The following measures are to be applied for the prevention of entry and spread of ebola haemorrhagic fever in India as directed by the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India.

• Apart from giving answers to Maritime Declaration of Health questions, masters should also declare whether any person from Uganda has embarked the ship within the last 21 days. If the answer is "yes", then the pilot will not grant free pratique to the ship. First the port health officer for medical examination and health measures will board the ship, and then free pratique will be granted. Until then no person should board the ship.
• Masters should note that Mombassa and Dar-es-Salaam are the nearest ports to Uganda, from where persons from Uganda are likely to board. All ships coming from Mombassa, Dar-es-Salaam or any other port in Somalia, Kenya or Tanzania should be investigated thoroughly in order to establish whether any person (crew/passengers) from Uganda has boarded, or if any person onboard has symptoms of fever, headache, muscle pain, diarrhoea, skin rash or bleeding from the mouth, nose or any other part of the body.
• Any such person displaying any of the symptoms should be isolated onboard from other crew or passengers and the nearest port health authorities should be informed immediately.

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UNITED STATES OF AMERICA

USCG investigates oil record books

We have become aware that the US Coast Guard is launching multiple inspections of foreign flag ships to ascertain whether the oil/water separator in the engine room is being bypassed. In conjunction with these inspections, they are also reviewing all oil record books, log books and other ship documents to establish whether in fact proper documentation has been maintained and whether fraudulent entries are being made, especially in the oil record book. What they are looking for is the following:

• Discrepancies between the deck log and the oil record logs in regard to any discharges noted in the oil record book
• Discrepancies between the amount of water pumped overboard after going through the oil/water separator and the amount that the pumps could physically pump overboard during the same period, ie. whether the amount shown in the oil record book is greater than the pump capacity, and
• Whether discharges from sludge tanks to shoreside facilities or barges exceeds the pumping capacity of the ship during the period the sludge oil was being discharged.
  The Coast Guard has already fined three shipping companies substantial amounts of money (multi millions $) and indications are that additional carriers will be checked.

AUSTRALIA

New ballast water requirements

On 1 July 2001 the Australian Quarantine and Inspection Service (AQIS) introduced new ballast water management arrangements for all international ships visiting Australia. These arrangements have been put in place to assist in reducing the risk of exotic pests or diseases entering Australia's marine environment.

AQIS is the Australian Government agency for the management of ballast water issues. Guidelines published by AQIS, which apply to all ships visiting Australia from an overseas port, largely reflect the International Maritime Organization's Resolution A.868(20), November 1997, Guidelines for the Control and Management of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens.

The shipping industry and AQIS agree that ballast water compliance needs to be improved to protect Australia's marine environment, its economy, aquaculture and fisheries industries, and the health of its people from the risks posed by the introduction of harmful marine organisms and pathogens.

Under the new management arrangements, risks associated with ballast water will be assessed by the Australian Ballast Water Decision Support System (DSS), a fully automated computer application. The DSS will provide a risk assessment based upon the information provided by the ship's master, as to the likelihood of the introduction of harmful marine species into Australian waters. Access to the DSS will be via the Internet or Inmarsat-C. Under the new requirements ballast water information may be lodged with the DSS at the last port of call or as early as possible prior to entry into Australian waters, the rationale being to assist ship's masters by allowing early exchange of ballast water data.

Based on the details provided by the master, the DSS will provide a 'high' or 'low' risk rating for each ballast tank. If a ballast tank is assessed as high risk, then an AQIS approved management option will be required to be carried out before the ship's arrival in Australia. On the other hand, if a tank is assessed as low risk, then no treatment of the ballast water for that tank will be required. AQIS approved management options open to the master include:

• Non-discharge of high risk ballast tanks in Australian ports or waters.
• Tank to tank transfer.
• Full ballast water exchange at sea.
• Case by case consideration of other comparable treatment methods.

• A full ballast water exchange at sea or comparable treatment, prior to the ship entering Australian waters
• Undertake not to discharge ballast water in Australian ports or waters, or
• Enter into a Ballast Water Compliance Agreement with AQIS for ships that meet the relevant criteria.

• That the reporting by ships' Masters on ballast water management is mandatory and verification tests will be applied to ensure accurate reporting. The AQIS Ballast Water Reporting Form must be used (section 27A Quarantine Act).
• Access to a safe onboard ballast water and/or ballast sediment sampling point is mandatory. Ships' masters are required to advise Australian quarantine inspectors on a suitable sampling point and to provide assistance in removing ballast tank covers. Ships' masters are to ensure ship and personnel safety in determining sampling access (section 78AA Quarantine Act).
• Sediment resulting from tank and/or hold cleaning must be disposed of in an AQIS approved manner on land.

AUSTRALIA

Environmental fines

Tough new laws have been introduced with effect from 4 May 2001 to give greater protection to the Great Barrier Reef from negligent mariners and oil spills. Ships that endanger the environment in the Great Barrier Reef Marine Park will now be liable for fines up to AU$ 1.1 million (equivalent to approximately US$ 600,000) which is a significant increase from the previous maximum fine of AU$ 110,000. Illegal fishing, including prawn fishing, may also incur similar fines.

Assistance in the event of a spill

The ITOPF is funded by the world’s shipowners, through their P&I insurers, to provide objective technical advice on effective response to oil spills and the mitigation of damage. The organisation’s highly experienced staff also assess the claims for compensation resulting from spills, undertake contingency planning studies and produce a wide range of technical publications. Full details can be found on the ITOPF’s website at: www.itopf.com.

The ITOPF’s tanker-owner members and shipowner associates have first call on the organisation’s technical services but this is not always fully appreciated by those within the ship-owning companies who would be in the frontline at the time of a spill. The ITOPF is therefore keen to raise awareness of its services within the technical departments of its members and associates and their ship management companies.

Members represent virtually all the world’s oil and chemical tank ship tonnage and so it is extremely rare for the owner of any such ship engaged in international trade not to be a member of the ITOPF.
Associates comprise the owners and bareboat charterers of all other types of ship. This reflects the ITOPF’s increasingly important role in responding to bunker spills from non-tankers.

One key group of individuals with whom the ITOPF would like to establish a closer relationship is companies’ designated persons, who, under the International Safety Management (ISM) Code* (see below), are responsible for monitoring safety and pollution prevention procedures onboard their ships. As a first step in this process we would invite all members and associates to provide contact details of their designated person, or person specifically responsible for pollution prevention and response, using the form that can be found on the ITOPF’s website at: www.itopf.com/news.html

When the ITOPF receives these contact details, each identified individual will be sent a copy of its latest annual handbook. All names will also be added to a mailing list so that they automatically receive future issues of the handbook and other technical publications.

Your help in this matter would be much appreciated.

* Compliance with the ISM Code became mandatory for passenger ships, high speed craft, oil tankers, chemical tankers, gas carriers and bulk carriers on 1 July 1998, and will apply to other cargo ships from 1 July 2002.

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BANGLADESH

Customs fines

In Bangladesh, ship agents are considered to be jointly and severally liable with shipowners for cargo claims and for customs penalties for shortlanded cargo. Thus, when a shortlanding is alleged at a port in Bangladesh it is not uncommon for the Club to provide letters of undertaking to the ship agents in order to avoid detention of the ship.

With regard to customs penalties, it has become increasingly common for ship agents to approach the correspondents or shipowners, suggesting that they can arrange a significant reduction of the customs penalty. This can appear quite attractive, as it enables the Club letter to be returned in exchange for a receipt from the agents, despite the fact that this type of arrangement is unofficial and does not bind the customs authorities. Any customs penalty is imposed by government authority and only a direct settlement with the customs has any legal force – although in practice settlements directly with the customs are very rare. What seems to happen, when settlement is made with the agents, is that an arrangement is made with the customs office who then ‘lose’ the documentation. Whilst this can be successful, the penalty is never formally removed from the record and there is no guarantee that it will not be pursued in the future. If this happens the release provided by the agents will have no validity. In addition to this, the reputation of the Club is at stake in Bangladesh if it becomes generally known that the Club is involved in such arrangements.

There is a defined process of appealing customs fines in Bangladesh consisting of levels of customs tribunals and ending up in the Supreme Court. Unfortunately, at the first stage of appeal to the customs, it is necessary to provide security directly to the authorities for the full amount of the penalty. This is demanded in the form of 50% cash deposit and 50% bank guarantee. However, the Club's legal correspondents in Dhaka can usually obtain a court order compelling the authorities to accept a bank guarantee for 100% of the penalty amount. Whilst it is almost certain that any appeal will fail in the various levels of customs hearings, once the matter ultimately passes to the civil courts there is a good chance of success. Although this may take many years and incur some moderate legal costs, by adopting the official approach consistently we can give a signal to the ship agents and the local customs offices that claiming exaggerated penalties will not result in them receiving short-term cash payments.

It is therefore recommended that, except for cases where only a nominal sum is involved, owners should avoid unofficial negotiations with agents and should instead challenge such penalties through the legal appeal process.

SPAIN

Safety fines

The growing concern of the Spanish authorities over shipping safety has resulted in the inspection of a minimum of 25% of ships entering Spanish jurisdiction. The inspections are focused on the checking of all certificates and documents required by international convention and examination of the general condition of ships, with emphasis on the engine room, accommodation and hygiene. Inspectors have the power to detain ships which fail to meet the requirements and fines ranging from Pesetas 10 million ($US 54,000), for a small infraction, up to Pesetas 150 million ($US 810,000) for a severe infraction, may be imposed. The harbour master will detain any such ship until the fine has been paid or alternatively an acceptable form of guarantee has been provided.

ARGENTINA

Fines due to non-declaration of bunkers

We have been advised by the Club's correspondents in Buenos Aires, of a number of incidents which have recently led to customs penalties in Argentina. These incidents concern inaccurate declarations of bunkers.

When a ship is cleared on arrival in Argentina by the customs authorities, the bunkers onboard are required to be declared in the ship's store list. Lack of declaration or any inaccuracies will constitute, prima facie, an infringement of customs regulations. Although it is not clear yet under which section of the Customs Code this infringement will be framed, the penalty could amount to twice the ‘market’ value of the non-declared goods or 1 to 5 times the value of the duty payable.

As these penalties could be high, we recommend that Members advise their crews to be particularly careful when declaring HFO, MDO and LO quantities at Argentinian ports. Care should also be taken to ensure that any duplicates of the stores list left onboard correspond to the original given to the authorities.

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Members' letters of undertaking

Sometimes Members themselves, instead of the Club, issue letters of undertaking / guarantees under pressure from claimants and agree to compensate claimants for their loss.

There are however some possible dangers in Members providing such letters.

• If the letter is given without the prior written consent of the managers and amounts to an admission of liability and then the Member will be in breach of the Club's Rule 5N(iv). In such a case the Club's directors may, at their discretion, reject any claim or reduce the sum payable by the Club.
• The letter may contractually bind the Member in such a way that they are unable to limit their liability in accordance with the applicable Limitation Convention and instead may be liable to compensate the claimant for the full value of their loss. This problem can be overcome if the letter expressly reserves the Members' right to limit liability.
• The letter itself may become admissible as evidence of the terms of an agreement to settle even though it is written 'without prejudice'.

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IRAQ

Wheat discharge problems

Several Club Members are currently involved in alleged quality problems with wheat in Iraq. In one case, a full cargo of Australian wheat has been rejected due to alleged contamination with urea (the previous cargo). Bearing in mind the stringent quality requirements of the Australian Wheat Board, such contamination is considered suspect. Another Member has a similar problem with Argentinian wheat, where infestation is the alleged problem. This cargo was rejected but has been now been sold on to other buyers outside Iraq.

We understand the silos in Iraq are currently full, the country having in the region of nine months reserve. Members should be aware that serious problems and delays should be anticipated with wheat cargo discharges in Iraq for the present time.

CHIWAN - CHINA

Bulk cargo discharge disputes

In a recent dispute, a Member's ship with a part cargo of NPK for discharge at Chiwan, Southern China was alleged by the Chiwan Port Authority to have discharged 280 mt of cargo short. This was based on shore weighbridge figures (accuracy not known, nor calibration certification sighted/verified). The port appears to have been acting as the agent of the receiver. The port demanded that the alleged shortage be made up from remaining cargo bound for other Chinese ports and would not allow the ship to sail until this was done.

The owners refused to discharge extra cargo, as prior to the Port Authority's intervention the receiver's surveyors CIQ (state surveyors) had confirmed by draft survey that the correct quantity of cargo had been discharged.
The port then demanded that a further surveyor be appointed to re examine the draft survey. The owners refused this on the basis that the second CIQ surveyor might be prejudiced.

Fortunately, the owners had appointed their own independent draft surveyor, who had verified the first surveyor's findings and was able to avoid further cargo being discharged. After two days of discussions, the ship was finally allowed to sail.

It is strongly recommended that owners trading to this region nominate their own independent surveyor to carry out draft surveys, in particular where there are multiple discharge ports involved, to avoid excessive losses at the final discharge port.

Independent draft surveys are an important tool in defending shortage claims which are frequently laid against the carrier, as are photographs of inefficient and wasteful shoreside practices (see picture). In many cases, whatever the type of bulk cargo, the receiver may not sight the cargo until it reaches his premises and may be relying on weighbridges/measuring devices over which he has no control or whose accuracy cannot be easily checked or verified. It is necessary, therefore, to provide independent draft and photo-graphic evidence to protect the shipowner. Such evidence also enables the receiver/cargo underwriter to focus on where the loss actually occurs, thus helping to reduce loss in future shipments.

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UNITED ARAB EMIRATES

Ship ban

The UAE Cabinet has decided that ships flying the flags of certain countries are to be banned from UAE ports, its territorial waters (up to 12 nautical miles) and the Economic Zone (up to 200 nautical miles) as part of the effort to prevent maritime pollution. However, this only applies to ships not carrying valid classification certificates issued by IACS member classification societies.

The countries named are: Albania Belize Bolivia Cambodia Comoros Islands Georgia Honduras Maldives Mauritius Saint Vincent and Grenadines

Government authorities will be authorised to seize ships violating the ban and to take whatever action they may deem appropriate. This is thought to mean that such ships may be auctioned; the buyer then having to arrange for the scrapping of the ship.

SPAIN

New law of civil procedure arrest of ships

A new Act 1/2000 relating to civil procedure came into force on 8 January 2001. This new law replaces the old procedural rules dating from 1881 and will now govern the Spanish civil process (non-criminal and non-administrative), including attachment and interim measures.

The Brussels Convention of 10 May 1952 has been enforced in Spain since 1957. Its provisions apply to the arrest of ships in Spanish ports though, in accordance with the Convention, the matters of procedure are governed by domestic rules – ie. the new Spanish Act 1/2000.

Formerly, it was easy enough to obtain a court order for arrest against a particular ship through a simple application in which one of the maritime claims listed at Article 1.1 of the Convention was alleged. Under the new law, the applicant for the arrest must show that he is party to court proceedings or arbitration, in Spain or abroad, already commenced or to be commenced. So documentary evidence to this effect should be provided with the application.

Previously, the issue of jurisdiction on the merits did not arise at the early stage of the arrest proceedings and was irrelevant for obtaining the arrest order. Now the selection of the court that is to hear the application for arrest will be related to the issue of which court is to be competent to hear the merits. Therefore, in principle, the latter court will be solely competent to determine on the arrest. As a special rule for arbitration proceedings, the court shall be competent by reference to the place in which the award must be enforced or otherwise to the place in which the arrest would prove to be effective. The only method for overcoming this jurisdiction issue is to seek the arrest under the emergency rule, ie. by pleading a case of urgency due to the short stay of the ship in the port. In this case the applicant will need to show that there is reason for such urgency. A certificate or such like from the port authorities will be required.

Also, formerly, the court used to grant an arrest order without first hearing the ship's owner, who was allowed no appeal. Now, as a general rule, the court must hear the owner (defendant) before deciding on the application for arrest. Although, this rule may be excluded where the arrest is applied for by way of emergency, and the judge must decide within five days upon carefully examining the applicant's petition. In either case, it is quite likely that the ship will have left the port by the time the arrest order is issued.

In addition to the above, there are a number of issues under the new law which may conflict with the rules of the 1952 Convention and of the subsequent Act 2/67 (in supplement of the Convention) for the arrest of sea-going ships. The rules of the Convention and those of the special enactment 2/67 should prevail by virtue of the Spanish Constitution. However, in the future Spanish judges, when applying the new rules of civil process, may often be inclined to study rather thoroughly the arrest applications in the light of such conflicts (which should be lessened when the UN Geneva Convention of 1999 receives international and domestic force), resulting in more applications being rejected or in delay granting the arrest.

It is to be expected, therefore, that the arrest of ships in Spain will become more difficult and considerably more burdensome to maritime claimants than before the new Act.

IMO reminders

STCW 95 CONVENTION

The Standards of Training, Certification and Watchkeeping Convention (STCW 95) comes into full effect next year, from February 2002, and requires flag states to accept direct responsibility for seafarers serving on their ships. Officers on ships registered under flags other than those issuing their certificate of competence will have to obtain a separate endorsement from a recognised flag state. It is thought that this will apply to more than 200,000 seafarers worldwide and flag states will be obliged to conclude agreements with countries supplying the labour. In fact the Convention only requires agreement between maritime administrations but some countries seem to be intending to treat these agreements as a diplomatic issue requiring full government approval. This is likely to result in delays in concluding treaties which will, in turn, hold up the issuance of the flag state endorsements which will be demanded by port state control inspectors around the world. The situation is being monitored by both the International Chamber of Shipping and the International Shipping Federation. In addition to this, under the STCW Convention seafarers are required to take regular refresher courses which include personal survival techniques, first aid, fire prevention and basic fire fighting before they can qualify for new certificates.

Further information can be found on the IMO’s website at:

http://www.imo.org/Newsroom/contents.asp?doc_id=1363&topic_id=477

ISM CODE - PHASE 2

Members will be aware that the deadline for compliance with the second phase of the International Safety Management Code is 1 July 2002.

The first phase of the Code applied to passenger ships, including passenger high speed craft; and oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high speed craft in excess of 500 gross tonnage.

This, the second phase of the code, applies to those remaining cargo ships including general cargo ships, container ships and mobile offshore drilling units, in excess of 500 gross tonnage.

Members’ attention is drawn to Rule 5k (vi) of the Association’s Rules where it is stated that valid statutory certificates in relation to the ISM code be maintained. These certificates consist of a Document of Compliance (DOC) for the company and a Safety Management Certificate (SMC) for each individual ship. If such certificates are not maintained then the Rule makes it clear that recovery in respect of any claim during the period when certificates are not valid cannot be made unless and to the extent that the Directors otherwise decide.

Further information on implementation of the code can be found at:

http://www.imo.org/Newsroom/contents.asp?doc_id=1364&topic_id=477

Radioactive materials - new UN numbers

In January 2001 a new edition of the IMDG Code for Dangerous Goods Transport was published by the IMO. One of the significant changes for transporters of radioactive materials is that the UN numbers for these materials have changed, principally with respect to fissile materials.
Continuing to use the old numbers can cause confusion. The new numbers are given in the Schedules for Class 7 Material in the new IMDG Code. They can also be found in the IAEA Regulations for the Safe Transport of Radioactive Material, 1996 Edition (Revised) – No. TS-R-1 and in the United Nations Recommendations for the Transport of Dangerous Goods.

For further information contact the Club's Nuclear Materials adviser:

Roger Cheshire
RPC Transport Consultants
Telephone +44 (0) 1829 732059
Fax +44 (0) 1829 732541
Email rchesh@cwcom.net

NIGERIA

Mandatory container inspection and congestion

There is presently significant congestion in the ports of Lagos (Apapa and Tin Can Island). Although this is primarily due to the Port Authority's lack of logistical and organisational structure, the problem has recently been exacerbated by the introduction of a mandatory inspection of all incoming containerised cargo. Despite an existing regulation stipulating that all imports must be subject to a preshipment inspection, almost all goods entering Nigeria are under-declared. For bulk cargoes, there have been instances of under-declarations in the region of 12,000 metric tonnes.

In addition to this, there are three newly-constructed facilities in the port of Apapa which have contributed considerably to the volume of lorry traffic, and there has also been a recent general increase in the number of ships calling at Apapa. Much of the discharged cargo is now brought to open areas off the berths, which are not meant for stacking or storage, thereby causing blockages to all vehicular traffic. The container terminal at Apapa is almost full of containers awaiting clearance, and there is only just enough space to allow container handling equipment to maneouvre safely between the ship's side and the adjacent stacking area. The situation at Tin Can ro-ro port is equally bad. More used vehicles are being imported from Europe and the severe lack of storage space and painfully slow process of clearing the vehicles have made the problem even worse. In February this year the Port Authority arranged for 24-hour port operations to go ahead, but at the same time banned the overnight parking of trucks idling within the port premises. The congestion problem has therefore extended outside of the port area resulting in huge traffic jams. The Club correspondent's two mile drive to the office now takes in excess of 45 minutes.

Nobody has yet succeeded in specifying what needs to be done to resolve the situation, which may thus be considered as a long-term problem.

Stowaway difficulties in Gabon

Local correspondents in Gabon advise that, unfortunately, the Gabonese authorities’ position regarding the disembarkation of stowaways has not positively improved. During the past few months, the number of stowaways being disembarked from ships calling at Port Gentil has increased and, as a result, the local immigration authorities are becoming very difficult with the various maritime representatives, local agents and club correspondents usually involved.

The authorities are now threatening to take legal action against these same maritime representatives if any more stowaways are disembarked on Gabonese territory. In the circumstances, Members are strongly advised not to attempt the disembarkation of stowaways in Port Gentil or Owendo.

Stowaways at Italian ports

Members, to their cost, know how difficult if not impossible it is to have a stowaway removed from their ship on arrival at any Italian port. The Italian immigration law is very strict. If a ship arrives in an Italian Port with a stowaway onboard, the local police authority is required to immediately serve an order on the master, holding him personally liable for the safety of the stowaway and ordering him to appoint security guards to prevent any escape attempt being made.

It is sometimes possible to have a stowaway officially removed and repatriated. For example, if the stowaway is in possession of a valid ID document (ID card, passport etc) and a valid visa he could be allowed to enter Italy. However, if the stowaway has only an ID document but no visa he may still be removed from the shipand repatriated (at the owner's expense) upon condition that there is a direct flight via the nearest airport to the port of arrival, to the stowaway’s home country. The stowaway must have left Italy before the ship responsible departs. If there is no direct flight, the stowaway will not be allowed to be repatriated or to leave the ship.

Tackling the stowaway problem

A Mombassan P&I correspondent reports

The discovery of a stowaway onboard a ship marks the beginning of frantic attempts to have them disembarked as early as possible. It is a distressing time for the master, owners, the P&I club and the correspondents.
Stowaways will usually hide or destroy any document which identifies their nationality. This is done so that they are not repatriated to their country of origin; the main reason for stowing away being to seek resident status in some first-world country under the belief that they may have a better life.

There has been an increase in stowaway incidents arising from the port of Mombasa. The main reason for this trend is the deteriorating standard of living. Kenya has officially declared that for the first time since independence, she is experiencing negative growth and the economy is slowly but progressively deteriorating. Young men stow away in the hope that once onboard and at sea, the master will offer them employment, and eventually they will be disembarked at a port in a first-world country whereupon they can make a claim for asylum. The general view is that they will be personally more successful in the prosperous West and, as a result, many East Africans risk their lives to stow away onboard members’ ships in search of adventure.

Apart from Kenyan stowaways, in Mombasa there is a large presence of Tanzanians, who are also quite adept at stowing away. Tanzania unfortunately went into economic doldrums decades ago. The Kenya/Tanzania border is freely negotiated in reality and is only about 80 kilometres away from Mombasa. Both Tanzanians and Kenyans speak a common language and, due to the recent economic co-operation between the three main East African states, movement of their respective nationals is unrestricted. As a result, Tanzanians find it much easier and convenient to stow away by entering Kenya and then heading for Mombasa to board shipping headed for Europe, India or America, rather than use their own port of Dar es Salaam, which in the main acts only as a feeder port.

Gaining access to the port of Mombasa is unfortunately very easy for prospective stowaways, as they can simply pose as casual labourers. The Kenyan Port Authority depends on a very large pool of casual labourers for stevedoring services.

The only effective method of avoiding stowaways is to prevent them from getting onboard the ship. A number of precautions need to be taken:

• The ship's local agent should appoint a guard to man the gangway on a 24-hour basis. The guard should be under strict instructions not to allow any unauthorised people onboard. The guard should also vet those who pose as stevedores since all stevedores should have some official identification.
• Unfortunately security guards may be compromised in some way and may allow a potential stowaway to board. It is also possible that an unauthorised person may gain access onto the ship undetected. For this reason, it is prudent for the Member to appoint a specialist stowaway search company, not only to guard the ship 24 hours before sailing, but also to undertake a methodical stowaway search prior to departure. At least one reputable stowaway search company is based at the port of Mombasa. This particular company conducts a patrol covering the ship's last 24 hours in port and then conducts an extensive search for stowaways before the ship leaves the berth, plus another search before the ship crosses the pilot station. The charge for such service is understood to be very competitive.
• Whilst the ship prepares for departure, crewmembers must keep watch on all sides, since most stowaways are able to gain access onto the ship by climbing mooring ropes. It should be remembered that most stowaways originate from local communities which actually earn their livelihood from boat fishing and/or stevedoring so, by definition, they are experienced boat people who not only know how to board ship but also exactly where to remain undetected.

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Acknowledgements

The UK P&I Club would like to thank the following for contributing articles to Loss Prevention News:

Corporate killing – the key issues – Hill Dickinson, Solicitors, Liverpool, UK

CSteel plates can cause injury (photo) – McAusland and Turner Ltd, Surveyors, Hull, UK

Spain – New law on arrest of ships – Amya Abogados, Madrid, Spain

Philipine crew personal injury claims – De Castro & Robles, Attorneys, Panama

Tackling the stowaway problem – Dolphin P&I, Mombasa, Kenya

The UK P&I Club would like to thank the following for contributing articles to the Cruise & Ferry supplement:

Foreign-flagged ships and the US Disability Act – Kaye Rose & Partners, Attorneys, San Diego, USA

Important legal developments in the USA – Chaffe, McCall, Phillips, Toler & Sarpy, Attorneys, New Orleans, USA

The hidden menace – Winton Applied Occupational Hygene Ltd, Surrey, UK 

Loss Prevention News
Cruise & Ferry Matters Supplement
Editor: Peter Jackson. Tel: +44 171 204 2548 Fax: +44 171 204 2103
e-mail: peter.jackson@thomasmiller.com

 

Published by:
Thomas Miller & Co Ltd
International House, 26 Creechurch Lane, London EC3A 5BA
Tel: +44 171 283 4646 Fax: +44 171 282 5614

For and on behalf of the Managers of

The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited

The United Kingdom Freight Demurrage and Defence Association Limited