The UK Supreme Court's recent landmark decision in the Renos case clarifies that when determining whether a vessel is a constructive total loss under the English Institute Time Clauses Hulls conditions, regard should be had to the costs incurred prior to the owner's notice of abandonment, but not to remuneration payable under a special compensation protection and indemnity clause. But what would the position be under the 2019 version of the Nordic Marine Insurance Plan 2013?
The Supreme Court recently clarified that when determining whether a vessel is a constructive total loss under the Institute Time Clauses Hulls conditions, regard should be had to the costs incurred prior to the owner's notice of abandonment, but not to remuneration payable under a special compensation protection and indemnity clause. The decision is a landmark decision on marine insurance because of its financial and practical implications.
Parliament recently decided that Norway will ratify the Nairobi Wreck Removal Convention and that the convention will be given effect not only in Norway's exclusive economic zone, but also in its territorial waters. Parliament also adopted legislation to implement the convention into Norwegian law once ratified. The legislation will introduce a dual system where the national rules on wreck removal will continue to be in effect and the convention rules will be introduced as a parallel set of rules.
Unmanned ships are on the horizon and the Norwegian maritime sector is uniquely positioned to take a leading role internationally in the development and commercialisation of this technology. Autonomous shipping may be Norway's maritime equivalent of Project Apollo, but is the legal framework keeping pace?
The 2019 version of the Nordic Marine Insurance Plan 2013 recently entered into force. Among other things, the revisions introduce an arbitration clause as an option for insurances with Nordic claims leaders. Making arbitration the default position when there is a non-Nordic claims leader aims to align the plan with market practice. However, the change has also been brought about by the looming consequences of Brexit.
In charterparties where no expected time of arrival or readiness to load at the loading port is stated, the question will be whether an equivalent can be identified which can be used as the basis for an absolute obligation requiring the owners to proceed to the loading port by a particular time. The Court of Appeal recently held that the itinerary for an intermediate voyage was such an equivalent.
In a landmark decision the Supreme Court has set aside a Court of Appeal decision which concluded that the Norwegian courts have jurisdiction under the Lugano Convention in a direct action concerning a ship collision in the Singapore Strait. The decision provides welcome clarification to liability insurers across Europe, as it sets out that the Lugano Convention is a self-contained and exclusive code governing matters relating to insurance.
A year and a half after the entry into force of the Nairobi International Convention on the Removal of Wrecks, the Ministry of Transport has completed a consultation process on a proposal to ratify the convention and implement it into Norwegian law. The ministry has suggested that the convention be implemented on a dual basis, alongside existing legislation.
Since arbitration requires agreement between the parties, a third party is not normally bound by, or entitled to invoke, an arbitration clause. However, there are exceptions to the rule. It is recommended, when drafting arbitration clauses, to take into account not only the position of the contractual parties, but also the position of possible third parties, since this may reduce or avoid the risk of difficult procedural questions that may arise if claims are later made by or against a third party.
In 2015 the Association of Ship Brokers and Agents, the Baltic and International Maritime Council and the Singapore Maritime Foundation published a revision of the 2015 New York Produce Exchange (NYPE) form – 27 years after the 1993 revision was issued. NYPE 2015 is more extensive than its predecessors and provides far greater standardisation of commonly used clauses.
In a dry bulk market where a charterer is not paying freight or hire, its counterparty is often left to consider whether it can lien the cargo on board the chartered vessel to obtain payment. When it comes to liening cargo under a Congenbill, English law will look first to the head voyage charterparty as the source of relevant terms to be incorporated into the Congenbill, unless another charter is expressly identified. This can lead to a less-than-obvious outcome.
If a time charterer redelivers a vessel before the end of the agreed charter period, the owner is faced with the choice of either accepting redelivery and claiming damages or maintaining the charterparty and continuing to claim hire. This decision has both commercial and legal implications. The owner's dilemma remains the same under a bareboat charterparty as under a time charterparty.
The general rule regarding set-off under Norwegian law is that a party which disputes a declaration of set-off must initiate legal proceedings in order to establish that there is no basis for set-off and that its claim shall be paid in full. But what happens in a case where the two claims are subject to different limitation periods – such as cargo claims and freight claims?
Amendments to the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims recently entered into force, significantly increasing the limits of shipowners' liability. The Norwegian Parliament has passed legislation to implement the new limits, so the increased limits now apply in all cases where the limitation of liability is invoked for property claims or claims for loss of life or personal injury before a Norwegian court.
The government recently proposed that the International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 be ratified and the Maritime Code be amended accordingly. The convention's liability and compensation regime will cover not only pollution damage from hazardous and noxious substances carried by ships, but also the risks of fire and explosion.
The Nairobi International Convention on the Removal of Wrecks will enter into force in April 2015. The convention provides the first set of uniform international rules aimed at ensuring the prompt and effective removal of wrecks. Owners will now be required to take out compulsory liability insurance and strict liability will be imposed on an owner for the costs of locating, marking and removing a wreck.
The unprecedented retreat of sea ice and changes to season lengths and weather patterns in the Arctic region have provided new opportunities and risks for the shipping industry. In particular, the reduction in journey time achievable by sailing through the Northern Sea Route is attracting increasing interest. This update concerns insurance cover under the Nordic Marine Insurance Plan in respect of navigation in the Northern Sea Route.
Cargo damage is sometimes caused by the packaging of the cargo being insufficient to prevent damage to the cargo during transportation. Whether the carrier is liable for such damage depends on the nature of the packaging and the care which is reasonably required to be exercised by the carrier.
A financing bank will usually secure a loan by obtaining a mortgage for a vessel and seek to protect its interests in the mortgaged vessel by way of insurance. The bank has several options to ensure that its interests are protected by insurance, depending on the conditions under which the owner's insurances are placed, the degree of risk that is acceptable and the costs of taking out various insurance covers.
A bank financing the purchase of a vessel will normally obtain security for the loan by way of a mortgage. However, the bank's interests are exposed to a variety of risks that must be addressed by obtaining adequate insurance cover. The bank has several options to ensure that its interests are protected, depending on whether the owner's insurances are placed on English or Nordic conditions and the acceptable degree of risk.
It is becoming increasingly common for charterers to place their own specific equipment on board the vessels that they charter. For example, in the offshore sector, seismic and pipe-laying equipment is often owned by charterers. As this kind of equipment is valuable, it is important for charterers to protect their legal rights to the equipment.
The Nordic Marine Insurance Plan 2013 recently entered into force. While the plan is largely based on its predecessor, some important changes have been introduced. These amendments will better facilitate use of the plan in other Nordic countries, as well as in the international market. The plan will no doubt provide greater certainty to both insurers and assureds as to the extent of insurance cover.
The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea still has not entered into force some 16 years since it was adopted. Eight countries have now signed the 2010 protocol, which was designed to overcome the practical problems that have prevented the convention from entering into force.
In May 2007 the International Maritime Organisation adopted the Nairobi International Convention on the Removal of Wrecks. The convention fills a gap in the existing international legal framework by providing the first set of uniform international rules aimed at ensuring the prompt and effective removal of wrecked ships. It is expected that sufficient states will ratify the convention for it to enter into force during the next two years.
In the event of a marine casualty the shipowner may be ordered to remove the shipwreck or to cover the costs of having the wreck removed. If the shipowner is unwilling or unable to remove the wreck or to cover the wreck removal costs, the question arises as to whether the government may bring a claim for the wreck removal costs directly against the relevant protection and indemnity club.
Existing international liability and compensation regimes covering oil spills do not include bunker oil spills from vessels other than tankers. This significant gap is set to be closed with the entry into force of the Bunkers Convention. Provisions in the Norwegian Maritime Code incorporating the convention will enter into force on the same day that the convention enters into force internationally.
Norway has recently acceded to the International Convention for the Control and Management of Ships' Ballast Water and Sediments. The convention was adopted by the International Maritime Organization in 2004 and introduces strict regulations on the control and management of ships' ballast water. Norway was among the first countries to join the convention.
An increasingly common trend among Norwegian shipyards is to build hulls in low-cost countries. The hull is then towed to the Norwegian yard. Financing banks usually require as security a mortgage on the vessel under construction. Problems may arise from the fact that a mortgage registered in the Shipbuilding Register is not effective until the hull is brought to the Norwegian yard's premises.
The York-Antwerp Rules represent the primary legal source for general average rules. The 1994 rules were revised by the International Maritime Committee in 2004, making them less favourable to shipowners. There is currently a debate in Norway as to whether the York-Antwerp Rules 2004 should be incorporated into the Norwegian Maritime Code.