LP News Issue 18 - March 2006
INSIDE THIS ISSUE:
SUPPLEMENT
Club initiative tackles dangerous goodsThe need for action
The frequency and severity of incidents involving dangerous goods have prompted the UK P&I Club to launch a set of four guidebooks with supporting training material on the workings of the International Maritime Dangerous Goods (IMDG) Code. Under the collective title Book it right and pack it tight the guidebooks are aimed respectively at shippers and forwarders; shipping lines and booking agencies; consolidators and shipping container packers, including managers and supervisors; and fork lift operators and cargo handlers.
 Code compliance
The IMDG Code is a set of globally accepted rules that provide a framework for packaged dangerous goods to be carried safely by sea. But non-compliance with these rules is a continuing problem. The UK Club believes significant improvements in Code compliance can be made through practical, and easy to understand, training packages such as Book it right and pack it tight.
Easy to use
Each book focuses on how roles and key duties within a particular group's operations relate to the Code. The aim is to enable readers to quickly identify requirements and to access full technical details in the Code itself if more detailed information is needed. A reference section on dangerous goods classification is standard to all. Copies are being mailed to UK Club Members with containerships.
For more details, see the accompanying LP News Dangerous Goods supplement. POLLUTION
United Kingdom
Lessons to be learned from oil pollution prosecution
A recent oil pollution prosecution brought by the Maritime and Coastguard Agency (MCA) against the owners of a Swedish registered chemical tanker serves as a reminder to vessel owners and operators of the need to have sufficient ship board critical alarm systems and adequate operating procedures in place when routine onboard fuel oil transfers are undertaken.
Facts of the prosecution
The MCA brought a prosecution in respect of an oil pollution incident that was alleged to have occurred in British waters. The prosecution was brought under S128 and S131 of the Merchant Shipping Act 1995 ('the MSA'). S131(1)(a) MSA provided that: "the owner or master shall be guilty of an offence if oil or mixture containing oil is discharged into United Kingdom national waters which are navigable by sea-going ships." The penalty for conviction of the S131 offence is a fine upon summary conviction of up to £250,000 and upon indictment an unlimited fine.
Incident details
The pollution incident arose as a result of a routine transfer of ship's bunkers from two wing storage tanks to the fuel oil settling tank shortly after the vessel departed a British port. Under normal operations, when fuel oil was transferred by the fuel oil transfer pump, the fuel oil transfer pump would cut out when the level in the settling tank reached approximately 98 per cent. In this instance, this did not happen. Instead, when the settling tank was filled to capacity, it over flowed back to a separate centre fuel oil storage tank. Unfortunately, the capacity available for transfer in the wing tanks was in excess of the free space in the centre fuel oil storage tank and a quantity of fuel oil overflowed from the centre fuel oil storage tank, on to the vessel's deck and through the deck scuppers into the water.
Cause of overfilling
When the matter was initially investigated, it became apparent that prior to the fuel oil transfer operation, routine cleaning of the fuel oil transfer pump suction filter had taken place. To isolate the pump, the pump control had been switched from the automatic to manual mode. Unfortunately, when in manual operation, the settling tank high level pump cut out was isolated allowing fuel transfer to continue unchecked. The contents in the wing tank were transferred into the settling tank which overflowed into the centre fuel oil storage tank resulting in fuel oil being spilled on to deck.
Quantity of oil spilled
At the hearing of this matter, the vessel owners pleaded guilty to the offence under S131 of the MSA. It was a strict liability offence.
In an attempt to mitigate the offence, it was the owners' case that very little, if any, oil had entered the water resulting from the spill on deck.
The vessel's chief engineer had carried out detailed quantity calculations to show that the amount of fuel oil transferred, spilled and recovered meant that only a very small quantity of oil had in fact passed through the vessel's deck scuppers and given the prevailing temperature at the time of the incident it may have been the case the fuel oil did not enter the water at all.
The judge's decision
The judge imposed a fine of £20,000 upon the owners and ordered the owners to pay the prosecution's costs.
Notwithstanding the argument that only a very small quantity of fuel oil had entered the water, the judge criticised the owners for not having an adequate critical system in place for preventing such an incident from occurring. Although there was a system in place whereby any fuel oil overflowing from the settling tank could be diverted into the centre fuel oil storage tank, the operation of the fuel oil transfer pump in manual meant that if fuel transfer was left unmonitored, fuel oil would eventually overflow from the centre fuel oil storage tank on to the deck.
Lessons to be learned
In this day and age of criminalisation of the seafarer in respect of oil pollution, it is imperative that onboard systems and operations relevant to the transfer of fuel oil are such to provide a high degree of safeguard to prevent incidents like the one reported from occurring.
Vessel owners and operators must ensure that appropriate critical alarm systems are employed within fuel systems and measures are taken to remove the risk of oil spill incidences. It is not desirable that critical alarm systems can be overridden and not reinstated during periods of routine maintenance.
In the circumstances of this case, the root cause of the oil spill stemmed back to the isolation of the fuel oil supply pump cut off switch when the transfer pump was selected to manual operation during routine maintenance. If a situation like this arises, then sufficient procedures (such as an appropriate permit to work system) should be in place to ensure that systems are returned to normal. In addition, as a further safeguard during fuel transfer operations continual monitoring of the contents of all tanks should be carried out to remove the risk of the 'unexpected' from occurring (in this case, the ship board procedure required continual monitoring of fuel transfer operations but this was not being carried out at the time of the incident).
Having considered the inherent critical alarm systems within the fuel transfer system on this particular vessel, it was evident that further, relatively straightforward additions to the alarm systems (independent fuel oil settling tank/ overflow tank high level alarms) could have prevented the incident.
This case demonstrates the importance to vessel owners and operators to ensure that adequate procedures and systems are in place and also sends out the clear message that even when relatively small quantities of oil are spilled in British waters the MCA will invariably exercise its powers to investigate and prosecute leading to the potential for significant fines being levied on shipowners by the courts.  Oily water separator – maintenance/ operational recommendations
In the last three years, the Club has had 17 incidents in the USA (including the US Virgin Islands) where the authorities have alleged irregularities in both the set up and use of the ship's 15 ppm oily water separator (OWS) system. Only 4 of these incidents have resulted in a fine and none in a criminal conviction. However, the expenditure of investigating these incidents and defending the crew is in excess of US$ 1,600,000, which is an average of around US$94,000 per allegation.
To help Members avoid incurring such costs the Club's ship inspectors offer the following advice:
It is recommended that the vessel's planned maintenance system (PMS) and company's standing instructions include inspection and cleaning of the OWS unit and all associated piping at least every six months. It has been suggested that the equipment filters should be cleaned monthly where possible, especially prior to a prolonged period of coastal voyages. We advise that this work should not be carried out immediately prior to entering port, as it may be construed as suspicious by PSC or MARPOL inspectors. The oil content meter should also be tested annually and calibrated by a factory technician at least once every five years (this is now a requirement in Canada and will possibly be adopted by other countries).
 Manager's instructions and service manuals concerning the OWS and related equipment should be maintained on the ship. It is mandatory that proper operating instructions and an operating diagram are posted on the OWS unit. These should be as clear and simple as possible. It is a STCW convention requirement that engineering officers receive the mandatory minimum training required by the provisions of Annex 1 of MARPOL 73/78.
It is illegal under MARPOL to sail from a port without a functioning OWS unit and it is a requirement that sufficient spares for the OWS must be maintained onboard.
All work performed on or around the OWS and oil content meter should be carefully logged in the PMS and in the oil record book (ORB), entries in the ORB being made under code letter 'I' (general remarks). A log entry could read as follows:
"Opened and inspected OWS unit, filters cleaned/renewed as required. Valves and piping on discharge side of OWS opened, inspected and cleaned as required. After maintenance OWS and oil content meter checked for proper operation."
All log entries should be checked as accurate and countersigned by the chief engineer and the master. Consecutive logs should be kept onboard so that the full history of the equipment can be verified if required. It may also be beneficial to have a company wide instruction that the entries in the ORB are only made by the chief engineer after cross referencing the engine log book, PMS records and sounding records of all relevant tanks.
The OWS should be operated during normal engine room working hours. Engineers should not operate the OWS at night apart from during their regular watches. Units of measurement of volumes, rates and capacities used in the engine room should be consistent. For example the units of measurement used in tank sounding tables should be the same as those used in recording volumes processed in the OWS. Care must be taken to ensure that the quantity of water discharged overboard in any logged period does not exceed the certificated capacity of the OWS unit. If any such discrepancy should occur, a full explanation should be recorded in the oil record book.
Tank and equipment titles used in the ORB and in logbooks should match those of the tanks and equipment identified in the ship's international oil pollution prevention certificate (IOPP).On one ship a tank was variously described in log entries as 'bilge holding tank', 'bilge collecting tank', and 'BCT'. Bilge tanks should also be identified by their location (frame number) and capacity as well as their correct title.
 Capacities of equipment and serial numbers noted on the IOPP certificate should be verified. It was found on one ship that the rated capacity of an incinerator on the ship’s IOPP certificate was different from the capacity stamped on the incinerator’s identification plate. It is suggested that the certificates issued by flag state or class are checked to ensure they match the capacities stated in the vessel’s manuals and if there is a discrepancy a request be made for the certificates to be amended accordingly.
Ships' personnel should be instructed that if they are asked questions by PSC or MARPOL investigators they must give honest answers.
If a ship is boarded by government investigators and it becomes apparent that the inspection has been extended because of problems arising from the training of ship’s personnel, documentation or equipment, the Club should be notified immediately. The crew should never be instructed to withhold information from investigators. In the USA however they may be told that the law does not require them to speak to investigators if they choose not to and that they are entitled to the presence of a lawyer during questioning.
A recent development in the USA is for officials to scrutinise the E/R alarm book and compare the times recorded for bilge/sludge tank alarms and subsequent pumping out with the ORB times of pumping bilges overboard, checking for any discrepancies.Worldwide
Port State Control Concentrated Inspection Campaign
The Paris Memorandum of Understanding on Port State Control Authorities will start a concentrated inspection campaign on 01 February 2006 focusing on how requirements for preventing marine pollution from ships (MARPOL73/78, Annex 1) have been implemented. The three month inspection campaign will end on 30 April 2006.
The Paris MOU press release explains that in practice the concentrated inspection campaign will mean that during every Port State Control inspection within the Paris MOU region, the oil filtering equipment and record keeping shall be verified in more detail for compliance with the international standards. This campaign will be carried out in parallel with the Tokyo MOU on Port State Control.
The inspections shall be mainly focused on the equipment located in the engine room. Illegal by-passes of the oil filtering system (OFE) and illegal overboard connections from sludge tanks have regularly been found in past inspections. On many occasions the oil record books were not properly kept. In 2004 a total of 3646 MARPOL Annex 1 deficiencies were found during inspections.
During the campaign, Port State Control Officers shall use a list of 13 selected items for inspection, some of which are related to:
- OFE alarm and automatic stopping device
- Discharge to reception facilities
- Sludge capacity for intended voyage
- Illegal bypasses or connections.
It is expected that approximately 4500 inspections will be carried out during the concentrated inspection campaign. If deficiencies are found, the Port State Control Officer will conduct an in depth investigation into other aspects of the MARPOL area, including operational performance by the responsible crew.
When deficiencies are found, sanctions by the port State may vary from recording the deficiency and instructing the master to rectify within fourteen days to the detention of the ship until all deficiencies have been rectified. In case of detention, the ship could face the risk of further inspections in other Paris MOU ports and publication in the monthly list of detentions issued by the Secretariat of the Paris MOU.
The twenty-two Maritime Authorities of the Paris MOU include EU members plus Canada, Croatia, Iceland, Norway, and the Russian Federation. Brazil
Ballast water management requirements
 Mandatory requirements for ballast water management (BWM) and reporting are in place for ships visiting ports and terminals in Brazil. The regulations, which came into force 15 October 2005, require vessels to exchange ballast water prior to arrival in Brazil using either the sequential, flow through, or dilution method.
Every ship that uses ballast water is required to have a BWM plan, establishing safe and efficient procedures for that purpose. Brazilian vessels and ships chartered to Brazil* must have their BWM plan approved by a Classification Society recognised by the Directorate of Ports Coasts (DPC). There is no requirement for foreign flag vessels trading to/from Brazil to have the BWM plan approved.
Ships must be at a distance of least 200 nautical miles from the coast, and in a water depth of at least 200 metres when exchanging ballast. When this is not possible, the exchange is to be made as far as possible from the coast but not less than 50 nautical miles, and with a water depth of at least 200 metres. When it is not possible to exchange the water ballast at sea the ballast is to be retained onboard.
Ships entering the Amazon River from international voyages or from other hydrographical regions will have to undertake two water ballast exchanges. The first is to be as detailed above; the second, to reduce the salinity of the water ballast, between the isobaric of 20 metres and Macapá. When the ballast volume is less then 5,000 cubic metres the limit will be the Jari River. In this second exchange it will be necessary only to pump the tank volume once.
Ships entering the Para River from international voyages or from other hydrographical regions are also required to undertake two ballast water exchanges: the first must be as detailed above; and the second must be between 70 nautical miles from Salinópolis and the Light of the Ponta do Chapéu Virado (Ilha do Mosqueiro).
A vessel will not be required to deviate from its course or delay its voyage in order to conduct a ballast water exchange. A ship may be exempted if the master considers that an exchange may impair the ship's safety and stability or the safety of the crew and passengers on board. However, failure to conduct a ballast water exchange will result in a penalty unless the vessel is exempt due to safety, voyage constraints or specifically exempted from the regulations.
A ballast water report form is to be completed and forwarded by the ship's master or its agent, to the port captaincy twenty-four hours before arrival of the ship. A water ballast history is to be maintained onboard for a period of two years. Ships arriving in Brazilian ports and terminals, for loading discharging or any other reason will be inspected to ensure compliance with these requirements.
WORLWIDE
HNS Convention and OPRC-HNS Protocol
The number of incidents involving hazardous and noxious substances (HNS) is low in comparison with those involving oil. Nevertheless, the International Tanker Owners Pollution Federation attended two incidents in 2004 in which chemical tankers exploded resulting in loss of life as well as the loss of chemical cargo, and another two incidents in 2005 where significant quantities of a flammable and toxic cargo were spilt. Also in 2005 there were at least ten other incidents where HNS was either spilt or had the potential to spill, thus dispelling any notion that this kind of event never happens.
It is perhaps of interest to know that a framework of preparedness and compensation for HNS incidents has been created, under the auspices of the IMO, in the form of two new legal instruments; the HNS Convention1 and the OPRC-HNS Protocol2.
The main aims of the HNS Convention are to ensure adequate, prompt and effective compensation for damage to persons and property caused by HNS substances. A European Council decision has set a deadline of June 2006 for all EU Member States to become parties to the HNS Convention.
The OPRC-HNS Protocol mirrors the principles of the OPRC Convention relating to oil spill preparedness and response. In addition to oils, the Protocol will apply to substances such as liquefied gases, dangerous materials in bulk, liquid and in packaged form. Parties to the OPRC-HNS Protocol will be required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries. Ships will be required to carry a pollution emergency plan onboard to deal specifically with incidents involving HNS. As of 31 December 2005, 13 States had ratified the Protocol, which will enter into force 12 months after 15 States have ratified.
CARGO
Western Australia
Alumina loading
We have been advised of several recent incidents where ships loading alumina in Western Australia have been rejected due to uncleanliness of holds. Alumina is a refined product and any form of contamination is considered a problem.
The following recommendations to owners, loading this cargo, in this area, have been received from local consultants:
 Cargo residues
The holds including hatchcovers, coamings, deck beams, side frames, frame brackets, horizontal surfaces, ventilator trunkings, ledges, grilles, ladder flanges, pipe casings, spar ceiling and wood sheathing, should be free of all residues of previous cargoes.
It is particularly noted that cement, lime, salt, phosphate, sulphur, coal and all ferrous residues are especially undesirable.
Rust scale
All loose rust scale must be removed from the hold prior to loading, with particular attention being given to the underside of the hatchcovers, the coaming faces, the underdeck spaces at both ends of the hold, the undersides of the topside tanks, the inner surfaces of the ship's shell plating, the 'hidden' flanges of the frames and the upper and lower frame brackets, the bulkheads, ladder flanges, ventilator trunkings, ledges, grilles and all hard rust scale must also be removed from the tank top, lower hopper sides and lower bulkhead areas.
Flaking paint
All flaking paint scale must be moved from the hold prior to loading, with particular attention being given to the underside of the hatchcover, the coaming faces, the underdeck spaces at both ends of the hold, the undersides of the topside tanks, the inner surfaces of the ship's shell plating, the 'hidden' flanges of the frames and the upper and lower frame brackets, the bulkheads, ladder flanges, ventilator trunkings, ledges, grilles and the tank tops.
 General
Where applicable, the outer/upper sides of the hatchcovers should be clean and free from flaking paint, residues or loose scale which could fall into the hold during loading and discharging.
Bilges and wells
Bilges and bilge wells must be covered with hessian/burlap or similar permeable materials in such a manner as to prevent the entry of alumina into the bilge or well, but to permit the entry of water. The hessian/burlap or permeable material must be sealed around the crown with a good quality marine adhesive tape or cement.
Comments and conclusion
The above information should be adhered to when preparing the cargo holds for an upcoming upliftment of alumina in bulk. In addition, and although briefly described under 'General', all hatchcover track-ways are to be free of any contaminating materials (usually rust scale from the hatchcovers) that will inevitably be 'blown into the holds' on the completion of loading, when the ship's crew clean the hatch track-ways prior to closing the same.
Vessels that have recently discharged a quantity of bulk cargo (especially clinker) must ensure that the exterior surface areas on the deckhouses, cranes, timber stanchions (permanent and/or collapsible), grabs and main deck areas are free of any loose residues.
There have been many occasions where vessels on completing a discharge of 'clinker' in Kwinana, then have to prepare their cargo holds for an upliftment of alumina in Kwinana or Bunbury. Quite often, and despite all efforts and good intentions of the ship's crew, the time period between the completion of discharge and the inspection for alumina is too short. It is the view that three days of good and proper cleaning, is needed to properly clean a 5-hold vessel.
The Association would also refer Members to Carefully to Carry newsletter February 2005 (page 26) Hold Cleaning: bulk cargoes, which may also be of assistance.
Worldwide
Petcoke hold washings
Following several recent enquiries on where petcoke hold washings can be disposed of, we offer the following advice from Steamship Maritime. Petcoke, as a material, is solid, 95% carbon, wholly insoluble in water and contains no oil in liquid form. Petcoke has also been analysed and is shown in the Gesamp/EHS Composite list of Hazard Profiles which is an IMO publication. This states that it has no bioaccumulative effects, is nonhazardous to marine organisms and humans (oral intake or skin, eye contact or inhalation). Finally petcoke does not reduce the value of amenities (e.g. if petcoke is washed ashore after a discharge the beach does not need to be closed due to hazardous effects).This analysis is obviously not applicable to petcoke in its dry form where its dust can be hazardous to humans.
It therefore follows that petcoke hold washings properly falls under Annex V of Marpol and not Annex I. Within the 'Guidelines for the Implementation of Annex V' hold washings are classed as 'operational wastes' and, with the Amendment to Annex V (MEPC 51/22) such discharges must now be recorded in the vessels garbage record book. This amendment simply changes the format of the record book and does not change the Marpol definitions of 'cargo residues' or 'operational wastes'.
Worldwide
Carriage of fluorspar cargoes
Fluorspar is a mineral cargo which has been shipped from Chinese sources in past months. The mineral is mined and then is subjected to a washing process. The mineral as shipped consists of finely divided particles and generally high moisture content, of the order of 9 to 10 percent. In such a form the mineral is thus liable to liquefy during ocean transport and this liquefaction may result in shift of cargo. Under extreme circumstances this shift of cargo may result in capsize of the carrying vessel.
We are aware of several incidents of cargo shift during the carriage of fluorspar. In one instance the vessel capsized, in another the list was so severe that the vessel was abandoned and later grounded, another leaned against the quay wall during loading.
The IMO Code of Safe Practice for Solid Bulk Cargoes lists materials which may liquefy. Fluorspar is not included but the Code stresses that the list is not exhaustive. The Code describes tests to determine the flow moisture content of the material and then the calculation to determine the transportable moisture content. The Code states that:
"Ships other than specially constructed or fitted ships (see 7.2.2. and 7.2.3.) should carry only those cargoes having a moisture content not in excess of the transportable moisture limit as defined in the Code."
Unfortunately the masters of the vessels in the incidents of which we are aware were not presented with certificates relating to transportable moisture limit, they received certificates of the total moisture content only. They were not able to determine if the cargo was safe to carry in accordance with the information provided to them and as recommended by the IMO Code of Safe Practice.
Shippers of cargoes liable to liquefy normally test their production at regular intervals to determine the transportable moisture limit. The properties of minerals from the same mine or seam within that mine should be fairly constant, and this would include the transportable moisture limit. However, it has been noted that there can be a variation of the transportable moisture limit within a particular cargo provided for shipment. These variations have been observed in tests for transportable moisture limit, screening behaviour, appearance, etc.
To ensure safe shipment of these cargoes the master should demand certificates relating to transportable moisture limit and total moisture content of the cargo immediately before it is loaded to his vessel. If the actual moisture content is in excess of the transportable moisture content, the cargo should not be loaded unless the vessel is specially constructed or fitted.
China
Illegal shipments of thiourea dioxide
A US court has recently found an American manufacturer 100 per cent liable for losses arising from one of the worst containership fires (the DG Harmony) because of insufficient warnings being given as to the risk of explosion in a shipment of calcium hypochlorite.
This bulletin highlights several recent incidents where shippers have been found shipping another chemical – thiourea dioxide – under another name and even declaring the substance as not dangerous.
In recent months chemical products manufactured in China under the name of 'Thiourea De' and 'Thiourea D' have been offered for shipment. The material safety data sheet provided by one manufacturer of 'Thiourea De' describes the product as a white solid that may decompose on exposure to moist air. The chemical formula is stated to be very slightly different from thiourea dioxide. A declaration originating from the manufacturer describes the chemical as a white crystalline powder that is very stable and it appears to suggest that the material does not decompose explosively in contact with moisture.
 In a recent incident a chemical declared to be 'Thiourea De' was found by chemical analysis to be thiourea dioxide. This had decomposed violently in a container producing highly toxic sulphur dioxide that contaminated the contents of other containers. A heavy sulphurous residue covered the surfaces of the hold and its contents. Expensive decontamination and cleaning operations were required.
Thiourea dioxide is a white to weak light yellow crystalline powder. It is an IMDG Class 4.2 material that is normally shipped in sealed drums. It readily oxidises in air and in contact with readily oxidisable organic material may cause ignition and a fire. In contact with moisture or water it may generate heat, causing ignition. In contact with acids it will produce highly toxic sulphur dioxide. High humidity, contamination and impurities are believed to be factors that independently or in combination can cause the material to decompose violently at normal ambient temperatures.
'Thiourea De' and 'Thiourea D' are not recognised shipping names. If such material is offered for shipment, any declaration made to the effect that it is not thiourea dioxide should be treated with circumspection. Thiourea dioxide is banned from carriage on many Members' ships.
Worldwide
Bird flu and its effect on the shipping industry
In recent weeks several European countries have reported cases of H5N1, otherwise known as bird or avian flu. This deadly strain of the flu virus originated in South East Asia several years ago. Thousands of birds across Europe are being slaughtered in an attempt to contain the virus which appears to be spreading very quickly across the globe. Although H5N1 usually only affects birds, scientists fear that the avian virus could mutate to allow easy human to human transmission. They also warn that, because people have very little immunity to it, it will spread rapidly.
So what will the impact of this potential pandemic be on the shipping industry? Clearly those involved in the poultry business and the transport of birds will be most affected. On 21 October the European Commission extended a ban on the import of pet birds and feathers to most of Russia after another confirmed case of bird flu. It is predicted that similar measures to those taken during the SARs crisis will be imposed throughout the world. China has already enforced controls on travellers following the culling of 100,000 birds after an outbreak of H5N1 in Mongolia. Travellers now face infra-red body temperature checks and shoe sterilisation. It is highly probable that other countries will shortly follow suit. Greece has already demonstrated how it will deal with the virus at a port level: the impact of the recent case of the Mary Ann has so far been played down, but shows that crews aboard vessels may come into contact with infected migratory birds and are therefore at risk of contracting H5N1. The Mary Ann was en route to Piraeus when she was stopped near to the port so the crew could undergo medical checks. The alarm was raised after finding suspect dead and living migratory birds onboard. Medics have advised that those working 'in close proximity' to birds are at risk of catching the virus. Clearly this includes crewmembers. Advice given to those at risk is to wash their hands thoroughly after contact with infected birds.
A fuller discussion of bird flu, its impact on shipping and measures to deal with it, can be found on the Club Members' website in the Encyclopaedia.RISK MANAGEMENT
ScotlandHealth & Safety breaches: Time for a change in culture?
In light of two recent Scottish court decisions, Duncan MacLean, a shipping specialist at Scottish legal firm Brodies LLP, considers whether culture change rather than increased criminalisation is a more effective tool in delivering improvements to health and safety.
No one is likely to dispute that whatever steps can be taken should be taken to avoid a repetition of tragedies such as the Herald of Free Enterprise, Piper Alpha, or the Hatfield rail crash. But does increased criminalisation assist in the prevention of such tragic loss of life, or does it simply put in place a mechanism for apportioning responsibility after such a tragedy? The former seems to be by far the more desirable, yet there is clearly a place for those criminally responsible for loss of life to be held to account by the law. "Prevention is better than cure" may trip off the tongue easily, but criminal sanctions for those responsible do not generally amount to cure for the victims or their families, and certainly can not be guaranteed to cure future accidents.
The Scottish courts have recently handed down two significant fines in prosecutions under the Health and Safety at Work Act. Firstly, Shell was fined £900,000 in respect of the death of two employees on the Brent Bravo platform in the North Sea. Secondly, and much more significantly, the gas pipeline company Transco was fined £15 million having been found guilty of breaches of the Health and Safety at Work Act resulting in a catastrophic explosion in which four members of the same family died. This level of fine marked the court's finding of management failures over a long period, and Transco's apparent lack of contrition. Whilst these fines have hit the headlines, the ability of the court to levy fines of this level has long been there under the Health and Safety at Work Act, and is also available in appropriate cases in much of the criminal sentences available for breach of Merchant Shipping legislation.
The use of risk assessment has been common in the workplace onshore and at sea for well over a decade now for, as its very name implies, the assessment of risks in the business of every day working life. The key to their effectiveness is how those risks are identified and subsequently managed. The draft Corporate Manslaughter Bill in England recognises this by defining the offence of corporate manslaughter with reference to "the way in which any of the organisation's activities are managed or organised by its senior managers"
Risk assessment and subsequent management is not, however, a tick box exercise. It requires real life appraisal of daily operational activities, followed by appropriate action – be that in terms of physical modifications, changes to operational guidelines, or training of staff. A well respected and successful fisherman told of how he had carried out a risk assessment as required by regulations, introduced in 1997, signed it off and filed it neatly on a shelf. Then one day, as he described it "the penny dropped". He realised he had to carry out the whole exercise again, walking round his vessel with his crew identifying the risks and working out with them what they could do to eliminate, reduce or manage them. For him, that exercise will in one sense never be completed as his risk assessment is a living document.
An offence of corporate killing will no doubt focus the minds of senior managers and shareholders. A change within the culture of an organisation, at all levels, would, however, seem to be the key deliverer of the prevention of future tragedies. The culture of an organisation needs to encourage the identification and management of risk, and although senior management who control the organisation's finances clearly have a role and a responsibility, in delivering change, responsibility for good and safe practice should, however, permeate all those who operate vessels within an organisation.
The culture of blame which presently exists is a product not only of the desire to have a person or organisation found responsible under the criminal law, and punished, but also of the civil law which requires there to be either negligence or breach of the statutory duty in order for a claim by relatives of a deceased to succeed.
The current draft English Bill sets a very high test for the charge of corporate manslaughter, requiring the organisational failures to have caused the death and have been a gross breach of the relevant duty of care – a concept which may be more familiar in civil law rather than in criminal law (although criminal law does recognise reckless conduct). Even under the new Bill, therefore, whether in England and Wales alone or with a separate Bill in Scotland, the hurdle for conviction is likely to be high.
The answer to the problem that everyone is committed to solving lies in encouraging an open culture of learning from mistakes, safety and risk assessment, rather than allowing the culture of blame to flourish and accidents to continue to happen. However, the jury is still out – and probably will be so for some time – on how best that may be achieved.
South Africa
Befriending stowaways
The recent incident at Durban, South Africa, involving stowaways allegedly forced off a vessel in the harbour has received worldwide coverage.
The facts of the matter were that seven stowaways hid onboard the vessel whilst she was at Mombasa and the stowaways then made themselves known to the crew after the vessel had sailed from that port. The vessel was on route to Durban.
The crew followed the IMO guidelines with regard to stowaways found on board a vessel. The stowaways were kept in confinement and given three meals per day. They were given clothes. They were allowed 30 minutes of exercise each day. They were given bathroom facilities. However, the master failed to notify the owners of the presence of stowaways onboard the vessel. The crew then broke the cardinal rule when it comes to stowaways in that they allowed the stowaways to befriend them.
Stowaways will always seek to befriend the crew in the hope that the crew will feel sorry for them. They will tell the crew gruesome tales of life in the home countries and that the reason that they are stowing away, is to get to Europe or North America in order to seek out a better life for themselves.
Crews should be advised not to befriend stowaways, as stowaways are not their 'friends'. The case of the vessel at Durban is such an example.
The crew felt sorry for the stowaways and the master failed to report the presence of stowaways onboard the vessel to the owners. Had the owners been aware of the fact that stowaways had boarded the vessel they would have reported the matter to their P&I Club who in turn would have contacted the local P&I correspondents to assist in having the stowaways removed from the vessel and arranging for their repatriation.
When the vessel arrived in Durban, the stowaways were not declared to the port authorities and the crew agreed to allow the stowaways to sneak off the vessel at Durban since the vessel was not heading to what they would term a favourable
destination. The crew listened to the stowaways rather than following the proper guidelines. In order to avoid detection by port security personnel on the quayside the stowaways climbed off the vessel by way of a rope, fixed to the offshore side of the vessel, and dropped down into Durban harbour where they planned to swim to a more remote quayside, no doubt in search of the next vessel to stowaway on.
However, the plan was not executed as was envisaged, and as result two of the seven stowaways drowned. The five surviving stowaways made it to the quayside where they then alleged that they had been forced off the ship. The police were called in and the master and three crewmembers were arrested.
The stowaways made statements to the police, which they subsequently elaborated on in a later statement made to the prosecuting authorities. The stowaways subsequently became the victims and the crew the accused.
The stowaways turned on the crewmembers who they had befriended on the way to Durban in order to get off the vessel. Although the vessel was on route to South Africa, the stowaways would most probably have used the same tactics if the vessel were going to Europe. Stowaways befriend the crew in the hope that the crew will feel sorry for them and will then help them to get to where the stowaways want to go.
The incident in Durban turned into a tragic accident. The plan went horribly wrong and two stowaways died. The crewmembers were charged and were arrested, inter alia, with murder. This charge was subsequently dropped to culpable homicide. Culpable homicide in South Africa is also known as manslaughter in other jurisdictions.
The crewmembers subsequently agreed a plea bargain. They were in a foreign country and were miles from home. They had no idea about their futures. They were frightened and scared. No doubt various people who met with crewmembers told them rather grim stories about South African prisons. They missed their families and their support bases and English was not their first language. They found themselves in a very difficult situation.
We urge all Members to inform crews of the IMO guidelines with regard to stowaways. Once stowaways are found onboard a vessel the incident should immediately be reported to the owners and the crew should never think of the stowaways as being their friends. Stowaways will not be the crew's friends when something goes wrong. In fact, as this case clearly illustrates, they will turn against the crew as quickly as they befriended them.
The crewmembers in this matter were heavily fined and received suspended prison sentences in terms of the plea bargain.
We would like to further warn ship owners that since this recent incident the police now attend on all vessels arriving at Durban with stowaways and they question the stowaways to ascertain where and when they boarded the vessel and how the crew have treated them. In view of the above it is essential that the master and crew follow the IMO guidelines for handling stowaways and furthermore ensure that the master properly documents all actions taken within those guidelines. ADMIRALTY
Australia - Queensland
Anomaly in collision liability – 19th century law still applies
Until recently, lawyers in Queensland had operated on the basis that, in determining damages between ships involved in a collision between two ships where both vessels were in some way at fault, liability would be apportioned according to the degree of fault. However, the 3rd edition of Davies & Dickie's text, Shipping Law, (Sydney: LBC, 2004) has demonstrated that this is seemingly not the law in Queensland. Instead the general maritime 50/50 apportionment rule must be applied in relevant cases.
 The authors have highlighted a statutory provision which has languished unnoticed in the dark recesses of Queensland's Judicature Act 1876. That section was relocated (but, importantly, not re-enacted) in 1995 and is now found as s. 247 of Queensland's Supreme Court Act 1995 stating:
"In any cause or proceedings for damages arising out of a collision between 2 ships if both ships shall be found to have in fault the rules hitherto in force in the High Court of Admiralty so far as they have been at variance with the rules in force in courts of common law shall prevail."
As it was not re-enacted, it has been in force since 1876.
The High Court of Admiralty Rule in force in 1876 required a 50/50 apportionment of liability where both ships were at some fault. The text concludes that this rule still governs where there is a collision in Queensland waters involving a ship outside the scope of the (Commonwealth) Navigation Act 1912, namely:
- trading ships on intra-Queensland voyages;
- Australian fishing, or fleet support, ships on intra or interstate voyages;
- pleasure craft and inland waterways ships.
The alternative apportionment regime, laid down by the Navigation Act, does not apply to these vessels, but – as a result – liability resolution complications can be expected to arise in the case of a collision between vessels of this type and vessels falling under the Navigation Act. No judicial interpretation of the position has arisen yet to provide clarity. FINES
Russia – Novorossiysk
Carriers' improper declaration to customs authorities
In October 2004 amendments to the Russian Federation Code on Administrative Violations regarding customs violations were adopted. And from that time on the container and roro carriers have been facing problems with the Novorossiysk customs authorities connected with declaration by carriers of information about weight, quantity and description of the cargo delivered in containers and vehicles carried onboard.
In accordance with clause 74 of the Russian Federation Customs Code the carrier shall present to customs authorities the above mentioned information. If there is a discrepancy in the declared information about the cargo description, weight and quantity and the actual cargo in a container or a vehicle, the administrative proceedings are brought up. The minimal fine stipulated by the above clause in RUR 50,000 (approx. US$1800).
 The customs authorities used to bring up administrative proceedings even in cases of clerical errors in documents or discovery of advertisement materials about the goods delivered. The above actions of the customs authorities do not correspond to the Russian Federation Law, as well as to the International Conventions signed by the Russian Federation in the customs control sphere.
However, some carriers used to follow the path of least effort and pay the fine instead of appealing to court or to a superior body against the Novorossiysk customs actions. In cases when the value of the cargo misdeclared exceeds RUR 250,000 (approx. US$9,000) criminal proceedings are instituted against the master of the vessel which have carried the misdeclared cargo. The investigators are insisting on their allegation that the master must, and has opportunity to, check the contents of the containers. The clause of the RF Criminal Code (contraband) under which the master is called to account, stipulates sanctions from a fine in the amount of RUR100,000 (US$3,600) to imprisonment up to 5 years. When such criminal proceedings are brought up the master is disembarked from the vessel and is to stay in Russia for the whole period of the investigation which can last up to 6 months.
Our recommendation to the masters of the vessels is to be extremely attentive while presenting to the customs authorities the information about the weight, quantity and description of the goods carried in the containers and vehicles. Our recommendation to carriers is to appeal to court or higher administrative bodies against the customs authorities actions as there are enough grounds for defence of their position.
Now several cases on appealing against the Novorossiysk Customs Resolutions on the similar administrative violations are being considered by the Krasnodar Region Arbitration Court. As soon as arbitration court judgments are obtained under these cases we will inform you additionally. LEGAL
England
House of Lords' decisions
"JORDAN II" [2004]
Jindal Iron and Steel Co Limited and others v Islamic Solidarity Shipping Company Jordan Inc [2004] UKHL 49
Since the last edition of LP News, the House of Lords' decision on the Jordan II is now out. The cargo interest had earlier lost their claim against owners in both the High Court and the Court of Appeal.
The cargo interests were the sellers and purchasers of steel coils. The goods were shipped from Mumbai under two Bills of Lading issued on behalf of owners. The bills incorporated a voyage charterparty which provided by Clause 3 'Freight to be paid at ...the rate of $US .. per metric ton. F.I.O.S.T. – LASHED/SECURED/ DUNNAGED..', and by Clause 17 that 'Shippers/Charterers/Receivers to put the cargo onboard, trim and discharge cargo free of expense to the vessel'. The Hague-Visby Rules were applicable to the shipment.
The cargo interests brought proceedings alleging that the cargo had been damaged by rough handling. A preliminary issue arose as to whether the agreement in the charterparty, evidenced by Clauses 3 and 17, which purported to transfer responsibility for loading, stowage and discharge from the owners to shippers, charterers and consignees, was invalidated by Article III r.8 of the Rules.
 The House of Lords dismissed the appeal. The applicable principle was that the whole contract of carriage would be subject to the Hague-Visby Rules, but the extent to which loading and discharging were brought within the carrier's obligations was left to the parties themselves to decide. Thus, if the carrier had agreed to load, stow or discharge the cargo, he would have had to do so properly and carefully, subject to any protection which he might enjoy under Article IV. The Rules, however, did not invalidate an agreement transferring the responsibility for those operations to the shipper, charterer or consignee.
The dictum of Devlin J in Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 All ER 158 at 163 and GH Renton & Co Ltd v Palmyra Trading Corp of Panama [1956] 3 All ER 957 was applied and the decision of the Court of Appeal [2003] 1 All ER (Comm) 747 was affirmed. The House of Lords was very much influenced by the fact that the rule in Renton had been consistently applied for 50 years without any criticism. Certainty in all mercantile transactions is important, more so, it seems than a literal reading of Article III r.2.
"THE RAFAELA S" [2005]
JI MacWilliam Co Inc v Mediterraneae Shipping Co SA [2005] UKHL 11
The House of Lords' decision on this case has been issued since the last edition of LP News in which we reported the Court of Appeal's decision. The issue before the House was whether a "straight" bill of lading, not made out to order or assigns or bearer, and so not transferable by endorsement, was "a bill of lading or any other similar document of title" within Article I(b) of the Hague-Visby Rules. The Court of Appeal had decided that it was.
The Carrier had issued a set of documents described as bills of lading in relation to the carriage of goods by sea. Subject to the fact that it could not be transferred by endorsement, the bills of lading contained the usual terms to be found in a bill of lading.
The goods were damaged and the respondent buyers' case was that the contract for the carriage of the goods was covered by "a bill of lading or any similar document of title" within the meaning of the Carriage of Goods by Sea Act 1971 s.1(4) and the Hague-Visby Rules Article 1(b), which were given the force of law in the UK by s.1(2) of the 1971 Act, so that the claim was governed by the more generous package limits prescribed in Article IV r.5 of the Hague-Visby Rules. The appellant Carrier had argued for the application of the US Carriage of Goods by Sea Act 1936 which provides for a lower limitation.
The House of Lords, upholding the Court of Appeal's decision, held that an expansive interpretation of the expression "a bill of lading or any similar document of title" in the Hague-Visby Rules Article I(b) was appropriate and was apt to cover the document issued in the instant case. There was no reason why it should have been intended to exclude straight bills from the scope of the Rules. The document was also a document of title given that on its express terms it had to be presented to obtain delivery of the goods.
The wording of Article I(b) aside, the House of Lord's was also influenced by the fact that the named consignee being a third party not involved in the negotiation of the carriage contract would otherwise have no rights and protection under the Hague-Visby Rules. CREW MATTERS
India – Mumbai
100,000th examinee for UK Club's PEME Programme
The UK P&I Club's Pre-Employment Medical Examination (PEME) Programme observed a key milestone in its expansion when its 100,000th seafarer passed through the doors of the scheme's accredited Blue Shield Medical Clinic in Mumbai, India, 28 December 2005.
Lobo, a 26-yearold general seaman, achieved the standards laid down by the world's most exacting regime of its kind. Mr Lobo is employed aboard Sanko Prelude by Executive Ship Management, which has been a member of the PEME Programme since March 2003. In that time, 918 of Executive Ship Management's crew and officer posts have been examined under PEME's auspices at two clinic locations in India.
Established in 1996, PEME's aim is to minimise shipowners' exposure to claims arising from crew medical conditions existing prior to employment and to provide seafarers with a clean bill of health before going to sea. Since then, the scheme has steadily increased its number of accredited clinics at key crewing centres around the world as well as the annual throughput of examinees.
Less than a decade on, PEME has become one of the UK Club's most successful loss prevention initiatives. Since its inception, the scheme has identified more than 4,400 crew as medically unfit for employment at sea. If all rejected candidates had incurred average claims costs of about US$7,000, the bill would have been around US$30 million. Clearly, not every rejected candidate would have gone on to make a claim but a substantial proportion would. At an average of US$82, examinations have cost just over US$8 million. Whilst it is impossible to be specific about savings, the management believe they amount to millions of dollars. | 
Padman Motchaiah Dr Belani, Medical Director of the Blue Shield Medical Clinic in Mumbai, congratulates general seaman Padman Motchaiah Lobo on being the 100,000th seafarer to undergo examination through the UK P&I Club's PEME Programme. |
The past year has seen particularly marked growth for PEME, with the addition of 15 new members, including three without ships in the UK Club and seven new clinics – three in Croatia, (two in Split and one in Rijeka), two in South Africa (Durban and Johannesburg) and one each in India (Goa) and Ukraine (Odessa). Further clinics are being considered according to members' needs.
Today, the needs of 43 owners of tankers, bulkers, passenger ships and other vessels, as well as crew management companies, are catered for by 32 accredited clinics around the world. Most fleets enjoy protection & indemnity cover from the UK P&I Club but a few have continued to support PEME while placing their ships with other clubs. As yet, no one has left the programme.
 There are now seven clinics each in the Philippines and India, four in South Africa, four in Croatia, two in Australia and one each in Indonesia, Hungary, Ireland, Spain, Thailand, Ukraine, the UK and the USA. Locations are Manila, New Delhi, Goa and Mumbai, Johannesburg, Cape Town and Durban, Rijeka, Split and Zagreb, Brisbane and Melbourne, Jakarta, Budapest, Dublin, Barcelona, Bangkok, Odessa, London and Las Vegas. The throughput at the seven Manila clinics accounts for more than half of the worldwide total, while that for Las Vegas as a source for cruise staff in gambling and entertainment is only 20 a year but expected to grow. Clinic selection is driven by the geographical requirements of supporting members.
The steady expansion in clinic facilities has meant a greatly increased workload in researching, assessing, interviewing and negotiating arrangements with new clinics; and an expanded role in monitoring and discussing performance of accredited clinics. Independent medical quality auditing takes place every three years for each clinic and involves comprehensive inspections of clinic facilities, thorough discussion with clinic staff and extensive audit questions.
Recommendations for enhanced facilities and best practice suggestions are sent to each clinic following the audit.
Seafarer candidates are given an extensive examination supplemented by advice on vaccinations and lifestyle changes as necessary. Successful candidates must embark within three months or their clearance is no longer valid. Each clinic is fully accountable for excluding examinees if there is any doubt about fitness.
The main reasons for rejection have consistently been hepatitis B, followed by hearing problems as seen in the following graph.
Having provided applicants with a free health check, clinics give advice on appropriate treatment for those found unfit. When they recover fully, they are eligible to resubmit themselves for examination.
A PEME brochure and updated details of the programme are available on the Club's website, with a range of other loss prevention material addressing shipboard safety and crew issues.
Worldwide
Immunization
The UK Club has recently dealt with several crew illness cases arising from diseases that are readily preventable. The average cost of medical treatment and repatriation in such cases is about US$10,000, but more serious cases can sometimes give rise to costs of ten times that amount. In addition, owners may incur the expenses of substitution of the sick crewmember and loss of hire if the vessel is delayed.
Two recent cases include a crewmember suffering from hepatitis and another suffering from typhoid fever. Both incidents occurred in the United States, resulting in expensive medical costs both at the discharge port and on return to their respective home countries. Both illnesses – together with polio, yellow fever, tetanus and tuberculosis – are readily preventable at relatively low cost
provided the crew have regular immunizations. Members are encouraged to ensure that the crews of their ships have all appropriate immunizations up to date before being assigned – particularly to ships trading to areas where such diseases are prevalent. Routine immunizations not only protect the individual crewmember but everyone else onboard as well. Many operators require current immunization for all their crewmembers. It is a prudent loss prevention/risk management strategy. According to information from the Club's PEME program, the cost of immunisations vary, but average around US$100, with some countries offering vaccines for free. Please contact the Club PEME department for further information on the costs of inoculations at the Club's PEME clinics around the world.
e-mail: peme.uk@thomasmiller.com
USA
Serious Marine Incident – alcohol and drug testing requirements
 Amendments to the US Coast Guard Marine Casualties and Investigations; Chemical Testing Following Serious Marine Incident regulations come into force 20 June 2006. The amendments to the regulations requiring testing for drug and alcohol use by persons involved in serious marine incidents (SMIs), requires that alcohol testing of people directly involved in the incident be conducted within 2 hours of its occurrence. This rule also requires most commercial vessels to have alcohol testing devices on board and authorises the testing of saliva as an acceptable specimen for alcohol testing. A 32-hour time limit for the collection of specimens for drug testing following a serious marine incident has also been included.
Coast Guard regulations currently require marine employers to take all practical steps after an SMI to have each individual engaged or employed on board a vessel in commercial service, who is directly involved in the incident, chemically tested for evidence of drug and alcohol use. The amendment now requires tests to be performed within two hours of the SMI but if the alcohol testing cannot be conducted within that timeframe because of safety concerns directly related to the casualty, alcohol testing is to be conducted as soon as the safety concerns have been adequately addressed to permit such testing, but no later than 8 hours after the incident occurs.
When a marine employer determines that a casualty or incident is, or is likely to become, an SMI, the marine employer must ensure that the following alcohol and drug testing is conducted:
Alcohol testing
Alcohol testing must be conducted on each individual engaged or employed on board the vessel who is directly involved in the SMI.
- The alcohol testing of each individual must be conducted within 2 hours of when the SMI occurred, unless precluded by safety concerns directly related to the incident.
- If safety concerns directly related to the SMI prevent the alcohol testing from being conducted within 2 hours of the occurrence of the incident, then alcohol testing must be completed as soon as the safety concerns are addressed.
- Alcohol testing is not required to be conducted more than 8 hours after the occurrence of the SMI. Alcohol-testing devices must be used according to the procedures specified by the manufacturer of the testing device and by this part.
If the alcohol testing required in the first two bullet points above is not conducted, the marine employer must document on form CG–2692B the reason why the testing was not conducted.
The marine employer may use alcohol testing results from tests conducted by Coast Guard or local law enforcement personnel to satisfy the alcohol testing requirements of this part only if the alcohol testing meets all of the requirements of this part.
Drug testing
Drug testing must be conducted on each individual engaged or employed on board the vessel who is directly involved in the SMI.
- The collection of drug-test specimens of each individual must be conducted within 32 hours of when the SMI occurred, unless precluded by safety concerns directly related to the incident.
- If safety concerns directly related to the SMI prevent the collection of drug-test specimens from being conducted within 32 hours of the occurrence of the incident, then the collection of drug-test specimens must be conducted as soon as the safety concerns are addressed.
If the drug-test specimens required in the first two bullet points of this section were not collected, the marine employer must document on form CG–2692B the reason why the specimens were not collected.
Marine employers are relieved of the requirement to carry alcohol testing devices on board if the trade of the vessel is such that it can receive testing from a shoreside testing facility within 2 hours of an SMI. Where alcohol testing devices are required, they must be of a type listed on the most current versions of either the NHTSA Conforming Products Lists of Evidential Breath Measurement Devices or the NHTSA Conforming Products List of Alcohol Screening Devices.
www.nhtsa.dot.gov/people/injury/alcohol/ ebtcpl040714FR.pdf
USA
Crew must take US visa restrictions very seriously
A warning about the need for total compliance with crew visa requirements in the United States has been issued by the UK P&I Club.
The US Customs and Border Service and the US Coast Guard have set up standard operating procedures to identify high risk crewmembers and ensure effective security measures are in place so they cannot leave the vessel once ordered detained.
 The following is a recent case illustrating how sensitive US agencies are over visa issues.
A foreign crewmember does not need a visa to sail to the US but he or she will not be able to leave the vessel without one. On arrival at Houston in a Club-covered general cargo vessel, none of the Thai crew had a visa. Consequently, the US Customs and Border Protection Officer cleared the vessel but ordered the crew detained onboard.
Shortly after, stores and provisions for the vessel were delivered to the dock alongside. As the stevedores were taking their lunch break, several crewmembers began loading the stores and provisions onto their ship while another hooked up the fresh water pipe from dock to vessel. All this took less than 30 minutes. The crew returned onboard and stayed there for the remainder of the ship's stay in the US. However, a Customs and Border Protection Officer had observed the loading from a nearby vessel. A Notice of Intention to Fine under the Immigration and Nationality Act was issued to the vessel's agent. It named the crewmembers and assessed a substantial penalty for failure to detain alien crew. Fortunately, the vessel had already sailed or security would have had to be deposited to allow departure.
A written defence on behalf of the ship owner and agent pointed out that the violation was inadvertent, that the actions taken concerned the immediate needs of the vessel and that there were no other incidents involving vessel and crew.
The Customs and Border Protection Service acknowledged the circumstances and the lack of specific intent to violate the law. They refused to withdraw the fine but reduced it substantially.
Aliens from 25 countries have been identified as warranting additional monitoring in the interest of US national security. Crewmembers from these countries may well be ordered detained onboard as high risk, requiring appropriate security. Extra measures should be taken by owners, operators, masters and agents to prevent crewmembers gaining entry illegally into the US, such as providing guards.
Early notification to the Club of a potential incident is essential to enable a detailed investigation by P&I attorneys and other experts carefully chosen according to individual case requirements.
Acknowledgements
Lessons to be learned from oil pollution prosecution: Iain M Butterworth, Solicitor, Andrew M Jackson, Solicitors, Hull, UK
Port state control inspections: Paris MOU, www.parismou.org
Ballast water requirements. Brazil: Carlos Augusto, Representacoes Proinde Ltda, Brazil
HNS Convention: International Tanker Owners Pollution Federation, www.itopf.com
Alumina, Western Australia: ACME Marine Services International Pty Ltd, Freemantle, through Cocks Macnish,
West Perth, Australia
Petcoke hold washings: Robert Hill, Steamship Maritime Co Ltd, Colchester, UK
Fluorspar cargoes: Minton, Treharne & Davies Ltd, UK
Thiourea dioxide: Chris Foster, Dr J H Burgoyne & Partners LLP
Bird flu: Nick Shaw, Partner, Shipping Group, Richards Butler, Solicitors, London UK
Fines for Health & Safety breaches in Scotland: Duncan MacLean, Partner, Brodies LLP
Befriending stowaways: Michael Heads, P&I Associates (Pty) Ltd, Durban, South Africa
Anomaly in collision liability: Bruce A Virgo, Special Counsel, Roberts Nehmer McKee, Brisbane, Queensland, Australia
Improper declaration of cargoes – Novorossiysk, Russia: Delavshok & Partners Limited, Maritime Lawyers, Novorossiysk, Russia
US alcohol and drug testing requirements: Freehill Hogan & Mahar, LLC, USA
Whilst the information given in this newsletter is believed to be correct, the publishers do not guarantee its completeness or accuracy.
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: peter.jackson@thomasmiller.com
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
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