Maritime Liabilities in a Global and Regional Context

Cover
Half Title Page
Series Title Page
Title Page
Copyright Page
Contents
Preface
Table of Cases
Table of Statutes and Statutory Instruments
Authors’ biographies
Part I Maritime Liabilities:Boundaries and Limitation
	Chapter 1 A Future Liability Convention in the Offshore Sector - Could it be Inspired by the Tanker Oil Spill Regime?
		1.1 Introduction
		1.2 Consideration within the IMO
		1.3 Main elements of the CLC/Fund regime
		1.4 Examples of existing liability regimes in the offshore sector
			1.4.1 European Union
			1.4.2 OPOL
			1.4.3 Norway
			1.4.4 United States
		1.5 Main issues to be addressed in a prospective international liability regime in the offshore sector
			1.5.1 Scope of application
			1.5.2 Types of damage recoverable
			1.5.3 Subject(s) liable
			1.5.4 Basis of liability
			1.5.5 Limitation of liability
			1.5.6 Channelling of liability
			1.5.7 Insurance issues
			1.5.8 Time bar
			1.5.9 Jurisdiction and enforcement of judgments
			1.5.10 Second layer of compensation
		1.6 Concluding observations
	Chapter 2 International and National Oil Pollution Regimes:Their Coexistence in Continental Europe after the Erika and Prestige Incidents
		2.1 Introduction
		2.2 The applicability of the Convention on Civil Liability
			2.2.1 The logical inclusion of pure ecological loss within the scope of the CLC
			2.2.2 The undue exclusion of the captain’s recklessness outside of the scope of the CLC
		2.3 The application of the Convention on Civil Liability
			2.3.1 The hierarchy of the methods of interpretation
			2.3.2 The legitimate inclusion of classification societies amongst the beneficiaries of the channelling of Art.III.4(b)
		2.4 Conclusion
	Chapter 3 Compensation and Liabilities for Oil Spills from FPSOs and Similar Storage craft
		3.1 Context
		3.2 What is an FPSO?
		3.3 The Civil Liability Convention
		3.4 The United Kingdom
			3.4.1 The Merchant Shipping Act, s.154
			3.4.2 Negligence
			3.4.3 Rylands v Fletcher
			3.4.4 Private nuisance
			3.4.5 Public nuisance
			3.4.6 Limitation of liability
		3.5 The Oil Pollution Agreement
		3.6 Oil as waste – an EU dimension
	Chapter 4 Temporal Limits of the Athens Regime-Potential Conflicts between International and Domestic Legal Regimes
		4.1 Introduction
		4.2 Temporal scope of the Athens Convention
			4.2.1 Inherent limits of the Athens regime
			4.2.2  External limits of the Athens regime – contribution claims
		4.3 Conclusion
	Chapter 5 Smart Containers: The  Smarter, the more Scope for liability?
		5.1 Introduction
		5.2 How ‘smart’ is smart?
		5.3 Carrier liabilities
			5.3.1 Data-only containers
			5.3.2 Remotely-controlled containers
			5.3.3 Common issues
		5.4 Shipper liabilities
			5.4.1 Data-only containers
			5.4.2 Remotely-controlled containers
			5.4.3 Common issues
		5.5 Conclusion
	Chapter 6 Wreck Removal-Nairobi and Beyond
		6.1 Purposes of the Wreck Removal Convention
		6.2 Underlying principles
		6.3 Main provisions of the Convention
			6.3.1 Art.1 (Definitions)
			6.3.2 Art.2 (Objective and general principles)
			6.3.3 Art.3 (Scope of application)
			6.3.4 Reporting obligations
			6.3.5 Marking and warning obligations
			6.3.6 Arts.10 and 11 (Liability of the owner)
			6.3.7 Art.12 (Compulsory insurance or other financial security)
			6.3.8 Art.13 (Time limits)
		6.4 Conclusion
	Chapter 7 Safe and Environmentally Sound Ship Recycling-is there a case for Liability Claims?
		7.1 The applicable legal framework for liabilities in ship recycling
		7.2 The legal foundation for potential liability in ship recycling –modernized public law requirements
			7.2.1 The IHM and other certificates
			7.2.2 Approved and/or certified ship recycling facilities and ship recycling facility plans
			7.2.3 The ship-specific recycling plan
		7.3 The private law dimension: a new approach to liability in ship recycling?
			7.3.1 Liability issues under Clauses 17 and 18 RECYCLECON
			7.3.2 Private liability of former shipowners for personal injury?
		7.4 Conclusion
	Chapter 8 Cyber Risk,Liabilities and Insurance in the Marine Sector
		8.1 Introduction
		8.2 The nature of the cyber risk faced by the shipping industry
		8.3 The means of attack
		8.4 The source of the risk
		8.5 Industry and regulatory response
			8.5.1 IMO Guideline and the ISM Code
			8.5.2 UK Code of Practice
			8.5.3 Consequences of failing to implement adequate cyber safety system
			8.5.4 National standards
			8.5.5 GDPR
			8.5.6 NIS
		8.6 Insurance implications
			8.6.1 Underwriting
			8.6.2 Coverage
		8.7 Conclusion
	Chapter 9 Is It a Shop or Not? If Not -Then What?
		9.1 Introduction
		9.2 The idea of a “ship”
		9.3 Capacity to carry and navigability
		9.4 Scenarios
		9.5 Conclusion
	Chapter 10 Limitation of Liability: Recent Important Developments in the United Kingdom and other Common Law Jurisdictions
		10.1 Developments in the UK
			10.1.1 Increased limits
			10.1.2 The constitution of a limitation fund
			10.1.3 Can the right to limit liability be waived and, if so, what impact does that have on P&I cover for the claim?
			10.1.4 What is a “charterer” for the purposes of limitation?
		10.2 Developments in Hong Kong
			10.2.1 “Can claimants to a limitation fund object to the rights of other claimants to claim against the fund?” and “What is the relevant time limit for claims against the limitation fund?”
		10.3 Developments in Canada
			10.3.1 Even if a shipowner is entitled to limit his liability can his liability insurers still refuse to indemnify him?
	Chapter 11 The Law of Wrecks and Belgian Limitation
		11.1 Introduction
		11.2 The facts of the case
			11.2.1 The causes of the collision
			11.2.2 The Pilotage Service in Flanders, compulsory pilotage and the immunity of the Flemish Pilotage Service
			11.2.3 Collisions in Belgian territorial waters: inapplicability of the Nairobi Convention on wreck removal
			11.2.4 The first procedural steps: guarantees requested, and a limitation fund constituted by the Flinterstar
			11.2.5 Abandonment not accepted
			11.2.6 Removal of bunker oil
			11.2.7 Urgent procedural measures imposed by the President of the Commercial Court in Bruges on 8 December 2015
			11.2.8 Appeal to the Court of Appeal in Ghent/arguments submitted by the appellants to the Court of Appeal and additional demands by the government
			11.2.9 The decision by the Court of Appeal of Ghent of 22 February 2016
			11.2.10 Grounds of appeal to the Court of Cassation
			11.2.11 Submission by the Procureur du roi to the Court of Cassation
			11.2.12 Redress of the anomaly
		11.3 Conclusions
	Chapter 12 Direct Action Against Insurers and P&I Clubs
		12.1 Introduction
		12.2 Provisions in the policy requiring direct payment to the third party
		12.3 Contractual letters of undertaking or guarantee
		12.4 Contractual or voluntary assignments
		12.5 Statutory assignments or transfers
		12.6 Rights under international conventions
		12.7 Foreign direct action statutes
		12.8 Rights of contribution under the Civil Liability (Contribution) Act 1978
		12.9 Conclusion
Part II Enforcement of Maritime Liabilities and Related Issues
	Chapter 13 The Arrest Conventions: an Update Needed?
		13.1 Introduction
		13.2 History
		13.3 Three issues
			13.3.1 The security function of an arrest
			13.3.2 The geographical reach of an arrest order
			13.3.3 The effect of international insolvency law on arrest
		13.4 The future
	Chapter 14 Jurisdiction and Applicable Law After Brexit
		14.1 Brexit and English shipping law
		14.2 Jurisdiction and enforcement of judgments – the Brussels I Recast Regulation 1215/2012
			14.2.1 Back to the 1968 Brussels Convention?
			14.2.2 Ratify the 2007 Lugano Convention?
			14.2.3 Ratify the 2005 Hague Convention on Choice of Court Agreements?
			14.2.4 Revival of prior jurisdiction and enforcement treaties?
			14.2.5 Negotiate a new jurisdiction and judgments treaty with the EU and Denmark based on the Recast Regulation?
			14.2.6 Revert to the common law?
		14.3 Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I)
		14.4 Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II)
		14.5 Conclusion
	Chapter 15 International Arbitration and Maritime Cross-Border Insolvency:A Sensible Interaction
		15.1 Introductory remarks
		15.2 The intra–EU scenario: defining the law applicable to the effects of a cross-border insolvency
			15.2.1 Coordinating the lex fori concursus and lex arbitri under the Insolvency Regulation
			15.2.2 Divergent outcomes, based on legal characterization
		15.3 Is there a place for party autonomy?
		15.4 UNCITRAL ML scenario: International arbitration v. cross-border insolvency
			15.4.1 A lack of explicit provisions: margin of discretion to contracting States
			15.4.2 The use of the discretion: assimilation of foreign insolvency proceedings to the domestic ones
		15.5 Conclusions
Appendix 1 International Convention on Civil Liability for Oil Pollution Damage,1992
Appendix 2 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992
Appendix 3 The Nairobi International Convention on the Removal of Wrecks, 2007
Appendix 4 Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 2002 (consolidated text)
Appendix 5 Convention on limitation of Liability for Maritime Claims, 1976
Appendix 6 International Convention Relating to the Arrest of Sea-Going Ships,1952
Appendix 7 International Convention on Arrest of Ships, 1999
Index