Last month, the English High Court ruled that in June, the SALDANHA, a 38,000 dwt Panamax bulk carrier that was captured by pirates in the Gulf of Aden, remained on-hire for the subsequent period of detention.
According to the UK Defence Club, this was the first English Court judgment that specifically addressed the charterparty implications of piracy and provided guidance on an “issue of great relevance to owners and charterers alike.”
The Saldanha, on a standard New York Produce Exchange charter, was en route from Indonesia to Kope, Slovenia with a cargo of coal when it was seized by pirates on 22 February 2009. The ship was taken to a location close to Eyl, Somalia and released two months later, on April 25th.
The charterer did not pay hire during the detention, claiming that the ship was off-hire since its seizure, referring to clause 15 of the NYPE charter to support its argument: “… in the event of the loss of time from default and/or deficiency of men including strike of officers and/or crew or deficiency of stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost."
The charterer argued that the seizure by pirates amounted to a “default and/ or deficiency of men” or “detention by average accident”, and further claimed that the words “any other cause” could include an external event such as the actions of pirates.
The UK Defence Club supported its owner member in his claim against the charterer, and a London arbitration tribunal found the ship had remained on-hire throughout its detention. The charterer appealed the tribunal’s decision in the English High Court, where Mr. Justice Gross found that the appeal failed on all counts.
In terms of “default or deficiency of men”, the judge agreed with the tribunal that this related to the owner’s failure to supply enough crew or a refusal by a crew to perform their duties, and not to the negligent act or inadvertent performance of their duties.
Nor did seizure by pirates amount to “detention by average accident”. This would have required some damage to the ship and an element of fortuity, neither of which was present.
Further, the words “any other cause” in the NYPE off-hire clause could only refer to some sort of deficiency or detention of the vessel or crew, and not to some completely external influence.
The judge concluded that if parties wished to treat seizure by pirates as an off-hire event under a time charterparty, there should be specific wording to that effect. He suggested that if the off-hire clause had been amended to refer to “any other cause whatsoever”, then this might have made a difference, but this was not certain.
The charterer has since been refused leave to appeal to the Court of Appeal.
UK Defence Club manager Daniel Evans commented: “The judgment is a very important one with wide ranging implications for the shipping industry, as pirate attacks remain prevalent. Unless there is clear wording to the contrary, this ruling means that a ship chartered on unamended NYPE terms will remain on-hire if seized by pirates. It is very much a landmark ruling.”
Seychelles Supreme Court Slams 10-Year Jail Term On Somali Pirates
The Seychelles Supreme Court has convicted and sentenced 11 accused Somali pirates. Eight accused were convicted for the offence of committing an act of piracy, and 3 others for aiding and abetting an act of piracy. There are 29 other suspected and accused Somali pirates who are still awaiting trial in Seychelles or transfer from the Republic of Seychelles to Somalia. The 11 who were sentenced last week were each given sentences of 10 years of imprisonment.
The offences took place in the Seychelles EEZ between December 5 and 6, 2009 when TOPAZ was attacked with automatic weapons by the pirates in two different skiffs. The aiders and abettors were found in a mother skiff not very far from the attack. Evidence has revealed that the mother skiff had provided ammunitions and firearms to the two attack skiffs before they effected the attack.
The convicts days spent on remand are to be subtracted on the totality of the sentence and the juvenile offenders have been ordered to be detained separately from the adult convicts.
Their conviction is a historical milestone as it is the first time that a piracy trial is successfully prosecuted in the Seychelles.
Moreover, these convicts will assist in the building of confidence of the countries and institutions supporting Seychelles in efforts in the region, and also serve as a deterrent from prospective Somali pirates who would otherwise have thought that they would have come into Seychelles waters with impunity.
…As 11 Set For Trials In the USA
Eleven Somali nationals accused in separate attacks on two U.S. Navy ships are due in Norfolk federal court for arraignment on piracy and other charges.
The defendants are scheduled to appear before judges in separate federal courtrooms to enter pleas on the piracy charges and other counts contained in a superseding indictment handed up earlier this month.
Six of the men are accused in the April 10 attack on the Ashland, a Little Creek-based amphibious dock landing ship. Five are charged with an alleged April 1 attack on the Norfolk-based frigate Nicholas. The ships were patrolling pirate-infested waters off Africa.
The piracy charge carries a mandatory life term. All entered not guilty pleas at their previous arraignment.
SHIPTALK
A GLOSSARY OF SHIPPING AND MARITIME TERMS
APRON: The area immediately in front of or behind a wharf shed on which cargo is lifted. On the "front apron," cargo is unloaded from or loaded onto a ship. Behind the shed, cargo moves over the "rear apron" into and out of railroad cars.
BERTH: (verb) To bring a ship to a berth. (noun) The wharf space at which a ship docks. A wharf may have two or three berths, depending on the length of incoming ships
COMMON CARRIER: Trucking, railroad or barge lines that are licensed to transport goods or people nationwide are called common carriers.
CONFERENCE RATE: Rates arrived at by conference of carriers applicable to water transportation.
WHARF: The place at which ships tie up to unload and load cargo. The wharf typically has front and rear loading docks (aprons), a transit shed, open (unshedded) storage areas, truck bays and rail tracks.
WHARFAGE FEE: A charge assessed by a pier or wharf owner for handling incoming or outgoing cargo.
CONSIGNOR – The person named in the bill of lading as the one from whom the goods have been received for shipment.
CONSOLIDATOR: The person or firm that consolidates (combines) cargo from a number of shippers into a container that will deliver the goods to several buyers.
DECKHAND – Seaman who works on the deck of a ship and remains in the wheelhouse attending to the orders of the duty officers during navigation and manoeuvring.
DECK LOG – Also called Captain’s Log. It is a full nautical record of a ship’s voyage, written up at the end of each watch by the deck officer on watch. The principal entries are: courses steered; distance run; compass variations, sea and weather conditions; ship’s position, principal headlands passed; names of lookouts, and any unusual position, principal headlands passed; names of lookouts, and any unusual happenings such as fire, collision, and the like.
DECK OFFICER – As distinguished from engineer officer, refers to all officers who assist the master in navigating the vessel when at sea, and supervise the handling of cargo when in port.
SAFETY 2
SHIPS HELD BY SOMALI PIRATES
Here is a list of ships that are still under the control of Somali pirates
* SOCOTRA 1: Seized on Dec. 25, 2009. The Yemeni-owned ship was captured in the Gulf of Aden after it left the port of Alshahr in Yemen. There were six Yemeni crew on board.
* AL NISR AL SAUDI: Seized on March 1, 2010. The Saudi-owned 5,136 dwt tanker was on its way from Japan to Jeddah with one Greek and 13 Sri Lankan crew members.
* ICEBERG 1: Seized on March 29. Pirates boarded the roll-on roll-off vessel 10 miles outside Aden Port in the Gulf of Aden. The ship carried 24 crew.
* AL-BARARI: Seized on March 31. The small Indian trade boat was captured after it left Mogadishu port, having unloaded food and medicine there. It carried a crew of 11.
* SAMHO DREAM: Seized on April 4. The 319,000 dwt Samho Dream was en route to the United States from Iraq when it was hijacked 970 miles east of the Somali coast. The Marshall Islands-registered ship is South Korean-owned, had a crew of five South Koreans and 19 Filipinos and carried 2 million barrels of crude oil. On April 21, Somali pirates threatened to blow up the supertanker unless a $20 million ransom was paid.
* RAK AFRIKANA: Seized on April 11. The St Vincent and the Grenadines-flagged 7,561 dwt cargo ship was hijacked about 280 nautical miles west of the Seychelles. The ship is owned by Seychelles’ Rak Afrikana Shipping Ltd.
* PRANTALAY 11, 12 and 14: The three Thai fishing vessels were hijacked on April 17-18 with a total of 77 crew.
* VOC DAISY: Seized on April 21. The Panama-flagged bulk ship with its crew of 21 Filipinos, was captured 190 miles southeast of the Omani port of Salalah.
* AL-DHAFIR: Seized on May 7. The Yemeni fishing boat was seized off the coast of Yemen with a crew of seven fisherman.
* MARIDA MARGUERITE: Seized on May 8. The chemical tanker en route from Kandla in Gujarat to Antwerp in Belgium was hijacked some 150 miles south of Salalah off the Gulf of Aden with crew aboard of 22 — 19 Indians, two Bangladeshis and one Ukrainian.
* PANEGA: Seized on May 11. The Bulgarian-flagged ship, with 15 crew and a deadweight of 5,848 tonnes, was seized about 100 miles east of the Yemeni port of Aden.
* ELENI P: Seized on May 12. The Liberia-flagged and Greek-owned ship, carrying iron and sailing from Ukraine to China via Singapore was seized in the Gulf of Aden. Of the 24 people on board, two were Greeks and the rest Filipinos.
* GOLDEN BLESSING: Seized on June 28. The 2010-built, 14,445 dwt Singapore-registered chemical tanker was seized on its way from Saudi Arabia to India when it was boarded off East Africa. The ship had 19 Chinese sailors onboard.
* MOTIVATOR: Seized on July 4. A 13,065 deadweight tonnes tanker, hijacked in the Red Sea, was manned by 18 Filipino crew and carrying lubricating oil. It is Marshall Islands-flagged.
IMO Group Recommends Efficiency Index for Ships
An International Maritime Organisation working group on energy efficiency has suggested that all new ships above 400 tonnes should be required to have an Energy Efficiency Design Index (EEDI).
Other ship types, including the various categories of Ro-Ro ship would not be covered in the first tranche. Ships that have diesel-electric propulsion, turbine propulsion or hybrid propulsion systems are also to be excluded from the draft regulations until an appropriate reference line (previously known as the “baseline”) for ships with these propulsion systems has been established.
The main technical issues remaining are the lower size limits for the required EEDI levels and future emission reduction rates for the various ship types. The decision on the instrument to be used to make the EEDI mandatory is expected to be subject to heated debate due to the political sensitivities involved.
Delegates attended the working group from 30 member states and 22 IGO and NGO organisations to further develop the text for mandatory requirements of the Energy Efficiency Design Index (EEDI) and Ship Energy Efficiency Management Plan (SEMP).
This working group may well be the final opportunity to address any concerns or misgivings that are held over any aspects of the IMO approach to greenhouse gas reductions.
Aftermath Of Fire Aboard MV Charlotte, Maersk Line Bans Disinfectants On Ships
Following the fire on board the container ship CHARLOTTE MAERSK earlier in July, Maersk Line has placed an immediate ban on the carrying of the disinfectant calcium hypochlorite, which is considered the main suspect for having caused the fire which raged for nearly two weeks earlier in July.
Calcium hypochlorite is used as a household disinfectant and is more commonly found in swimming pool cleaners (pool chlorine), which needs to be kept separate from other organic material and in a cool dry place. It is capable of self-heating and rapid decomposition, with the release of toxic chlorine gas.
According to the Containerisation International publication, Maersk has advised Chinese and Hong Kong shippers that containers with calcium hypochlorite will be refused shipment, in order to “ensure a safe voyage for our vessels”. Consignments that have already been loaded will however be carried.
“Maersk Line is investigating the cause of the fire, but there is absolutely no indication that it was caused by an explosive device,” said Marie- Louise Moller, a spokesperson for AP Moller-Maersk said earlier in Copenhagen.
Meanwhile the 6,600-TEU Charlotte Maersk, with its fire finally extinguished has berthed in Tanjung Pelepas to discharge its cargo. The ship and cargo was made subject to a General Average declaration following the fire.
Four Months After: Pirates Release Turkish MV Frigia
Somali pirates last week Thursday released a Turkish-owned cargo ship and its crew of 21 people nearly four months after seizing the vessel, a company lawyer told AFP.
“The pirates abandoned the ship, the Frigia, at 7:25 am (0425 GMT) this morning. It has since been under the captain’s control,” said Nilgun Yamaner, who represents the ship’s owners, the Istanbul-based Kayra shipping company.
The ship’s crew of 19 Turks and two Ukranians were in good health, she added.
“We have talked to the captain. They are all very excited and happy,” Yamaner added.
The Maltese-flagged vessel was seized by pirates on March 23 in the Indian Ocean about a day after passing through the warship-patrolled transit corridor in the Gulf of Aden, which commercial vessels are encouraged to use.
The 35,000-tonne ship had been sailing from Israel to Thailand with a load of fertilizer when it was kidnapped.
The lawyer said the ship’s release had been secured through negotiations but would not say if a ransom had been paid.
“We made some material and immaterial sacrifices,” she added.
After its release, the Frigia left the shores of Somalia to meet the Turkish frigate Gelibolu, which serves as part of a NATO anti-piracy force in the region, Yamaner said.
“We expect the two vessels to meet up in two or three hours,” she said.
Yamaner added that the ship’s owners would meet on Thursday to determine a port where the vessel would dock and change crew.
“The current crew will be sent home after their ordeal. The vessel will continue on to Thailand with a new crew to deliver its load,” she added.
Turkey’s maritime undersecretariat also confirmed that the vessel had been released and said it was now sailing towards Oman, in a statement carried by the Anatolia news agency.
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