The main aims of the Transport Code are to create a growth environment for digitalisation and promote transport business by deregulation. Due to the code's broad scope, its preparation has been divided into three stages. Provisions relating to the code's third stage were recently opened for comment by the Ministry of Transport and Communications. The majority of comments received before the June deadline highlighted data protection issues.
The 2nd Section of the Superior Court of Justice has unified the court's understanding of the applicable time bar for a subrogated insurer to pursue a claim for damages which occurred during maritime transport. This is a highly important precedent, as it has resolved a long-standing divergence between the Brazilian courts.
The Federal Court of Justice recently ruled on two risk exclusion clauses in transport insurance policies that are especially relevant for the export and import industries. While the decision has resolved some of the legal uncertainty surrounding transport insurance, it will likely apply to all types of insurance. As far as risk exclusion clauses are concerned, the court has made it clear that exclusion clauses should be interpreted restrictively.
A manufacturer of wind turbine equipment instigated court proceedings before the Maritime and Commercial Court against a port terminal for damage to wind turbine blades. It follows from the judgment that a contract for the performance of stevedore work, including storage, can be deemed to exist irrespective of the fact that no written instructions or booking from a principal has been issued or received.
Survey reports are an essential part of any claims handling process and an important factor in court proceedings. The Code on Civil Procedure provides for numerous clauses of admissible means of evidence. However, party assertions are not listed among these means of evidence. A recent Federal Supreme Court decision suggests that survey reports, at least if prepared by one party alone, could be considered as mere party assertions, thus rendering them useless in court.
Following the collapse of OW Bunkers, physical bunker suppliers worldwide have had to rethink their business model with respect to the potential debt exposures that they face when conducting business through bunker traders. The matter is further complicated due to the fact that in many cases, there is not just one bunker trader involved, but rather a series of intermediaries, brokers and intermediary traders.
The promulgation of the Companies Act 2008 saw the introduction of a company rehabilitation process termed 'business rescue'. As in many other jurisdictions, a company under business rescue enjoys a temporary moratorium on the prosecution of claims with a view to allowing the distressed company breathing space to reverse its financial difficulties and avoid full-scale liquidation. Against this background, admiralty matters have enjoyed special treatment in the context of claims against insolvent companies.
Can seafarers recover punitive damages from non-employer third parties under the general maritime law? Short answer: it depends on where you are. A recent Circuit Court of the City of Chesapeake, Virginia case is the latest example of inconsistent rulings on the availability of punitive damages under the general maritime law.
In a recent case filed in its admiralty jurisdiction, the Supreme Court of Cyprus had to consider whether accidents which take place in the Cyprus exclusive economic zone (EEZ) give jurisdiction to the Cyprus courts. The court decided that it has jurisdiction to hear disputes regarding accidents which occur within its territory, including the Cyprus EEZ, provided that the accident concerns the prospection or exploitation of Cyprus's natural resources.
Cyprus recently ratified the International Convention for the Control and Management of Ships' Ballast Water and Sediments. Its objective is to prevent, reduce and control pollution of the marine environment – especially the spread of harmful aquatic organisms from one region to another – and the consequential damage to health and natural resources. To meet this objective, the convention establishes standards and procedures for the management and control of ships' ballast water and sediments.
A recent decision of the Genoa Court of Appeal dealt with two interesting issues arising under the London International Convention on Salvage 1989: whether, for the purposes of fixing a salvage reward, the judge should consider not only the value of the salved vessel, but also that of the cargo on board; and the apportionment of a salvage reward between co-salvors where only one salvor brought proceedings for its remuneration.
The chief of naval staff has claimed that the recently promulgated Harmonised Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria's Maritime Environment 2016 (HSOPs) will provide consolidated guidance for the harmonious management of the arrest, detention and prosecution of vessels and suspects, as well as seizure and forfeiture. However, despite the fanfare that accompanied their launch, the HSOPs have no legal potency or operational clarity.
Since 2009, the Central Bank has carried out semi-annual market surveys of Cyprus residents who provide ship management services to ship-owning companies registered in Cyprus and abroad. The surveys collect data on financial transactions (revenues and expenses) between resident ship management companies and non-residents of Cyprus. The most recent survey, which covers the second half of 2017, was published on April 27 2018.
The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.
The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.
The Transport Code (formally the Act on Transport Services) is one of the government's key initiatives. The code's main purpose is to create a growth environment for business digitalisation and promote transport business by deregulation. The code will reform the regulation of all transport modes, so that the regulation itself will not become an obstacle to digitalisation, automation and new innovations.
Under general maritime law, a vessel owner is entitled to the reasonable cost of repair of the vessel, unless this cost exceeds the pre-incident value of the vessel. But can the vessel owner also recover the post-repair loss of market value associated with so-called 'stigma' damages simply because the vessel was repaired following a maritime collision? The court in a recent case answered this question in the negative.
The Deputy Ministry of Shipping recently announced that from January 1 2020, all masters, chief officers and officers in charge of a navigational watch serving on board Cyprus-flagged vessels operating in polar waters must hold the appropriate certificate of proficiency in training, as required by the International Maritime Organisation's International Code for Ships Operating in Polar Waters.
Various questions can arise regarding the service of processes in admiralty proceedings. For example, what happens if a ship (X) is named as the first defendant in a writ of summons, along with a second defendant which is merely referred to as the "owner of X"? Does the action cease to be one in rem? Further, where X is a foreign ship, is leave of court required to effect service on the second defendant? Although a recent Court of Appeal decision is instructive in this regard, it was arguably reached per incuriam.
Law 21,066 recently came into force and amended the Navigation Law in connection with the extraction of sunk or stranded vessels and harmful materials contained therein. The changes strengthen marine environment preservation and navigation safety, and the new faculties granted to the Maritime Authority in respect of ships or craft whose condition poses a risk or danger represent a positive change.