The Maritime Advocate online–Issue 502

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Palestine for the IMO?

IN THIS ISSUE

1. The Supreme Court Adopts a Purposive Approach to the Construction of a Commercial Contract
2. QBE Sues Former British Marine P&I Staff
3. New York Liability Waiver Decision
4. Developments in Dubai
5. Palestine for the IMO?
6. People and Places

Broadly Boats News

Firetrench Directory

Update on FOB Network

Many interesting people are joining FOB . To name a few:-

The Sailors’ Society’s Jenny Boland
Dutch maritime journalist Janny Kok
Heavy Wet specialist Rudy Whitcomb
Paris-based marine claims man Nic Nisson
Maritime lawyer Richard.Lovell at Ince+Co
Prof. Dr. Ralph De Wit of Brussels and Antwerp University
Mexican maritime lawyer Pablo Ochoa

You can see who is joining FOB by country and by occupation by using the search windows on the People page, the most popular page on the site, which does bear a passing resemblance to another well known and much more generalist networking site.

FOB is growing nicely and has over 2100 members. It offers a unmuddled approach to networking in the maritime, transport and risk areas, with small general subject groups. We moderate the site, but there have been very few cases where we have had to ask a member to give order. The FOB news page, together with the Maritime Advocate and its sister publication Bow Wave helps our members’ news to go viral.

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Registration is gratis for individuals. Businesses can take out a page for a small supporting contribution and we welcome firms prepared to sponsor Group pages or advertise with us. This helps to keep FOB a going concern and puts a smile on the face of our programmers and accountants..

FOB is a project designed to adapt the new ways of using the internet for the sorts of people who read The Maritime Advocate.

You are welcome to join

http://www.fobnetworking.com

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This space is available to advertisers and those with job vacancies. The Maritime Advocate goes out to readers in over 120 countries in the world. It is the largest publication of its kind. Ask us for a reader breakdown and let us quote you terms. We will help your messages and news to go viral.

contactus@afterofficehours.com

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1. The Supreme Court Adopts a Purposive Approach to the Construction of a Commercial Contract

In Rainy Sky S.A. and others v Kookmin Bank [2011] UKSC 50 in a judgment handed down on Wednesday 2ns November 2011, the Supreme Court unanimously held that where there are two different constructions of a contractual provision, the construction which is consistent with the commercial purpose of the contract is to be preferred. The case is noted by Paul Herring and Jamila Khan of Ince & Co who acted for the successful buyers in the case which dealt with questions relating to the construction of contractual provisions in bonds guaranteeing the refund of pre-delivery instalments under shipbuilding contracts.The decision of the Supreme Court in this case, they note, has a wide application, extending beyond the interpretation of refund guarantees and advance payment bonds to the construction of commercial agreements generally.

Read the note here:-

http://tinyurl.com/contractconstruction

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2. QBE Sues Former British Marine P&I Staff

Market rumours that QBE is claiming damages from former staff who left to start up a new operation have reached the light of day in the Insurance Times. The company has issued proceedings against Charles Dymoke, John Hearn and Steven Kirk who all worked for British Marine, part of of QBE European Operation’s marine, energy and aviation division. QBE, which bought British Marine in 2005, is complaining of breach of covenants in relation to poaching of staff and also seeking injunctive relief.

The marriage of the corporate QBE with British Marine, which had its origins in the small ship mutual P&I world was always going to be a tricky exercise, demanding good management and an understanding of the rather specialised traditions and habits of this corner of marine insurance. The Insurance Times reports that a large number of staff have decamped.

They have gone to a fledgling fixed premium facility formerly known as ‘Phoenix’ but now, it is said, to be known as ‘Lodestar’ based in the former BML balliwick of Walsingham House. Some resting on oars may be expected as the legal waters swirl. The new operation was, it is said, timed to open in September to prepare for the 20th of February renewals season. .

One wonders how badly QBE in particular and London Market in general would like to know how enforcable are the restrictions and convenants typical in insurance employment contracts.

http://www.insurancetimes.co.uk/story.aspx?source=itNewsBreakingNow&storycode=1393530

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3. New York Liability Waiver Decision

James Mercante of the New York firm of Rubin, Fiorella & Friedman has passed us a copy of his article which has appeared in the New York Law Journal of 24th October, 2011. He reports on the decision of the Western District Court of New York in the case of Broznya v. Niagara Gorge Jetboarding issued by Judge John J. Curtin 10-cv-00602, 2011 WL 4553100 (WDNY Spet.29,2011). The case involved a passenger aboard a jet boat in the Niagara River who was injured during a whitewater excursion through rapids, in navigable waters known as “The Whirlpool” and “Devil’s Hole”. Each passenger was required to sign a “Participation Agreement” which held the excursion company harmless from liability. The decision, on whether state or federal law applied to the passenger’s claim, reviewed the laws applicable and resulted in the summary disposal of the case. “The decision”, writes Mercante, “represents another step forward in entrenching uniformity in admiralty law”.

A copy of the article in full is lodged on the news page on FOB. Readers can download it by clicking on the blue filelink at the end of the item at:-

http://www.fobnetworking.com

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4. Developments in Dubai

Jasamine Fichte writes:-

The foundation of the independent Courts of the Dubai International Financial Centre (DIFC) has been re-defined by largely widening its jurisdiction. The new law amending existing Dubai Law No. 12 of 2004 has been signed by HH Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai.

The DIFC Courts may now hear every civil or commercial law suit of businesses from the GCC and the wider Middle Eastern region, provided that all parties to the dispute have opted clearly and concisely in writing to refer their dispute to the DIFC Courts. It does not matter whether such agreement is reached before or after the dispute has arisen.

This new gateway into the jurisdiction of the DIFC Courts means that from now on a specific link to the DIFC such as that either party is established in the DIFC or that the contract was wholly or partly performed within the DIFC is no longer necessarily required. The move marks the culmination point of an evolutionary change elevating the status of the DIFC Courts from a special Court for the DIFC and its establishments to a new standard litigation forum for all international businesses in the region.

The advantages for the Middle Eastern and International business community are overwhelming.

Many if not most commercial contracts in the region are concluded in English. English is furthermore the pre-dominant language used in business correspondences and communications. But, all court systems in the region function exclusively on the basis of the Arabic language, except for the DIFC Courts. Many regional business leaders, especially in the cosmopolitan metropolis Dubai do not speak or understand Arabic. For them the possibility of using English speaking courts in the DIFC means easier access to justice and more transparency in the judicial process.

Documents, agreements and correspondences will not have to be translated into Arabic, with all the dangers and intricacies of legal meanings getting lost in translation as well as added costs and time in the process. Proceedings and court documents will be original in English and as such instantly understandable and transparent for the non-Arabic speaking seeker of justice. The in practice so common but difficult system of dual legal representation through international legal consultant and local advocate will not be necessary, reducing costs further.

Another important aspect that may even lead to Arabic speaking business men to consider the DIFC Courts as a preferred choice of judicial forum, is the fact that under the DIFC Court Rules the winning party can claim back its reasonable legal costs, including a reasonable part of its lawyers fees. In any other court in the UAE lawyers’ fees cannot be recovered as a matter of principle.

No doubt the move will enhance the motivation of international businesses to invest into the Middle East, knowing that in case of dispute they can rely on the DIFC Courts as a world-class and English speaking judicial forum.

jasamin.fichte@fichtelegal.com

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5. Palestine for the IMO?

A recent positing to the always interesting international law blog IntLawGrrls suggests that Palestine may seek to join other UN Specialised Agencies:-

Having secured, by a vote of 107 aye-14 nay-52 abstain, an invitation to become a member state of UNESCO, the Paris-based U.N. Educational, Scientific, and Cultural Organization, Palestine may seek similar recognition in as many as 16 other international bodies.

Possible choices from among the global alphabet soup of treaty-based regimes include lots of “world” groups: the World Bank; WIPO, the World Intellectual Property Organization; WHO, the World Health Organization; and WTO, the World Trade Organization. Further mentioned: ICAO, the International Civil Aviation Organization; and IAEA, the International Atomic Energy Agency.

Another possible is the International Criminal Court. As with UNESCO, its charter, the Rome Statute of the ICC, permits joinder by “States,” without requiring that those states be members of the United Nations. Article 125(3) provides:

This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Indeed, ICC accession would seem to be easier. UNESCO joinder, which will take effect only after Palestine signs and ratifies the UNESCO Constitution, required an affirmative 2/3 vote of UNESCO’s members.
In contrast, as our colleague Bill Schabas posted, Article 125 of the Rome Statute does not require approval of the accession by the Assembly of States Parties or any other ICC group or official. All that’s required is deposit with the U.N. Secretariat, and as Bill discussed, Ban Ki-moon would seem hard put to explain refusal to accept deposit.

Among the 107 countries that voted to admit Palestine to UNESCO were 3 of the 5 permanent members of the U.N. Security Council — China, France, and the Russian Federation — as well as 6 of the Council’s 10 temporary members — Brazil, India, South Africa, Lebanon, Gabon, and Nigeria. A 4th permanent Council member — Britain — abstained along with 3 temporary members — Bosnia, Colombia, and Portugal That left the United States the lone outlier among the P-5. Among the temporary Council members, only Germany joined the United States and voted no. The fact that cannot rest well as the Council continues to grapple with Palestine’s request for full U.N. membership, and the U.S. pledge to veto any such resolution.

http://intlawgrrls.blogspot.com/

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6. People and Places

British Marine Limited (BML) has appointed underwriter Andrew Hearne who was formerly engaged at the Britannia Club. Claims men Dan Thomas (formerly of Steamship Mutual) and Francesca Santoro (formerly of the TT Club) have also joined.

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Seven new directors have joined the UK P&I Club board, following the Club’s AGM in Athens on the 27th October:-

Ibrahim Güngen – Chief Executive Officer of Güngen Maritime & Trading A/S,, Ankara, Turkey.
Grahaeme Henderson – Vice President Shipping, Shell International Trading and Shipping Company Limited, London, UK.
Datuk Nasarudin bin Mohd Idris – President and Chief Executive Officer of MISC Berhad, Kuala Lumpur, Malaysia.
Ng Yat Chung – Executive Director of Neptune Orient Lines Limited, Singapore.
Paul Pathy – Co-Chief Executive Officer and President of Fednav Limited, Montreal, Canada.
Eamonn Rothwell – Chief Executive Officer of Irish Continental Group, plc, Dublin, Ireland.
Nikolaus Schues – Chief Executive Officer of Reederei F. Laeisz GmbH, Hamburg. Germany.

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The Afghan Footballer

The Liverpool manager flies to Kabul to watch a young Afghani play football. He is suitably impressed and arranges for the player to come over.

Two weeks later Liverpool are 4-0 down to Chelsea with only 20 minutes left. The manager gives the young Afghani striker the nod, and on he goes.

The lad is a sensation. He scores 5 goals in 20 minutes and wins the game for Liverpool . The fans are delighted, the players and the coach are delighted and the media love the new star.

When the player comes off the pitch he phones his mum to tell her about his first day in English football.

‘Hello mum, guess what?’ he says ‘I played for 20 minutes today, we were 4-0 down but I scored 5 and we won. Everybody loves me, the fans, the media, they all love me.’

‘Wonderful,’ says his mum, ‘Let me tell you about my day …

Your father got shot in the street, your sister and I were ambushed and assaulted, your brother has joined a gang of looters and all while you tell me that you were having a great time.’

The young lad is very upset. ‘What can I say mum, but I’m really sorry.’

‘Sorry?!!! Sorry?!!!’ says his mum, ‘It’s your fault we came to Liverpool in the first place!’

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160 Skydragons

As the night draws in, folk in these latitudes like to mark the season by letting off fireworks and lighting bonfires. Randy Cassingham’s JumboJoke contains a long and rather funny story which might even have its origins in fact:-

Read the story here:-

http://www.jumbojoke.com/160_skydragons.html?awt_l=D.o9N&awt_m=K2_WipvnBdOnkr

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