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Qatar and the restrictions imposed upon it (note – we do not use the word ‘sanctions’!) by several members of the Arab League have caused a lot of distress at the UK P&I and Defence Club in the past few weeks. It turns out that a key difficulty was distinguishing between the wording of the restrictions themselves and how they were actually implemented in practice.
The most recent example we have seen of this was a non-Qatari flagged ship sailing from Jebel Ali, United Arab Emirates to Qatar. The ship loaded cargo in Jebel Ali, was due to load more cargo at Qatar and then discharge the whole cargo elsewhere. The ship was not to discharge any of the cargo loaded at Jebel Ali in Qatar.
The official restrictions imposed by the United Arab Emirates in the form of government legislation stated that a ship of any flag will be affected by the restrictions:
It was confirmed to us that there was no flexibility in the restrictions – government agencies had to apply them as they were worded. So, applying the above facts, do you think the above mentioned ship and intended voyage would fall within the applicable restrictions?
Yes, we had thought so, too. The ship was not in breach of the second or third restriction. However, the ship – regardless of flag – was going to perform a voyage from Jebel Ali to Qatar. It should fall within the first restriction and not be permitted to perform the voyage.
However, it turned out that the port authorities in Jebel Ali had issued outward clearance for the ship to sail to Qatar. In other words, the port authorities themselves had expressly given permission for the ship to perform the voyage in breach of the clearly worded restrictions. It was not as if there is a matter of interpretation – the intended voyage seemed to be clearly in breach of the first restriction.
As you can imagine, this caused the owner an issue when the charterer asked them to perform the voyage; after all, declaring a voyage instruction to be illegitimate and / or terminating a charterparty on the basis of a repeated illegitimate voyage instruction can bring severe consequences, even more so when it is done unlawfully or incorrectly. Here, how can an owner say it is not allowed to perform a voyage which has been expressly permitted by the same state that is seeking to prohibit it? A rather difficult position to be in, especially when trying to envisage a potential future decision of an arbitration Tribunal somewhere.
A commercial solution was reached in the end which doesn’t necessarily help set a precedent going forward. But, the point of this post is to make you aware that these restrictions, in theory, may not be applicable as they are worded in practice. Rather peculiarly, we are advising that government implemented legislation should not be taken at face value and requires further scrutiny and analysis before action is taken...