The big blue
1 December 2002
IF YOU paid attention during geography classes at school, you will know that almost three-quarters of the Earths surface is covered by water. So it is not really surprising to learn that the sea is subject to a list of laws longer than Neptunes trident and beard put together.
But as old Mother Nature cannot be tamed by legislation alone, shipping and maritime lawyers tend to be on call 24 hours a day, 365 days a year, to administer emergency legal aid if two tankers collide in the night. But as our dip into the world of maritime law reveals, you do not need sea legs to excel in this area but they might help. Sick bag, anybody?
Disaster at sea
If you fancy yourself as a bit of an amateur Columbo, then shipping law could be the specialist area for you, for as Richard Gunn, a partner in the shipping department at Richards Butler, says, shipping work can be very much like detective work.
I tend to do a lot of casualty work, so as soon as a ship sinks or catches fire, for example, I go out to the vessel to investigate the facts and speak to the witnesses, says Gunn, who spoke to Lawyer 2B from South Africa, where he was waiting for a tanker that had recently suffered a fire on board to be towed into port by a tug. It should be arriving any moment now, he adds. But if its much later, then Ill be helicoptered on board so I can start interviewing the crew.
Gunn says his 12 years of seafaring experience have been invaluable as a lawyer, as he can understand whats going on and can speak the same language as those involved in a case. Charles Hattersley, a partner in Foot Anstey Sargents shipping department, agrees that life as a casualty expert can be very dramatic.
You have to make an awful lot of on-the-hoof decisions about the sort of advice to give. You may have to get your client off the vessel by helicopter and get a doctor involved if necessary, says Hattersley, who spent 14 years on submarines before training as a lawyer. You may also have to be able to spot things such as the falsification of a logbook, so being a seafarer can have its advantages.
Wreck is defined as anything found in the sea or washed ashore by the tide within territorial waters; and under current UK law, anyone planning to raise an item from the deep is required to report it to the Receiver of Wreck, down at the Maritime & Coastguard Agency (MCA) in Southampton.
Finders who report their discoveries to the MCA have automatic salvage rights but, because all wrecked vessels are presumed to have an owner, would-be salvors must make every effort to trace them before they can go ahead and recover the property from its watery grave. If any rows arise, the Receiver of Wreck has the power to settle disputes over ownership. Sophia Exelby has been the Receiver of Wreck for three years, and even although she is not a lawyer she is required to administer and deal with complex legal issues on a daily basis.
Exelby, who trained as a marine archaeologist, liaises with specialist lawyers in the Department for the Environment, Food and Rural Affairs, as well as the MCAs squad of enforcement officers, to bring about prosecutions. The Receiver of Wreck is an old tradition, which has changed quite a lot, she says. A hundred years ago most wrecks would be washed ashore or become flotsam, but now we have to deal with salvage companies and sports divers. So we have to use the law to the best of our ability, even though it is designed for a very different set of circumstances.
At the moment there is no time limit between finding, say, a trunk of buried treasure and then reporting it to the Receiver of Wreck, but this is something Exelby thinks needs to change because it makes it so difficult to bring about prosecutions.
You cant say to them, You should have reported it within a month, because theyre only obliged to report it within a reasonable time at the moment, she says.
As a result of this and other ineffi- ciencies, Exelby is currently at work on a private members bill to reform some of the legislation in this area, which she hopes will make the legislation a little easier to work with. She adds: The principles are sound, but some of the details arent thought out enough.
Mike Stevens spent 12 years at sea before he joined shipping specialist firm Holman Fenwick & Willan as a lawyer in 1973.
More than 30 years ago, one or two partners here thought it would be a good idea to find seafarers and train them as lawyers rather than teaching lawyers how ships work or how to avoid collisions at sea, recalls Stevens, a master mariner, which means he is qualified to take command of a merchant ship. I never thought about being a lawyer before, Stevens admits. As a seafarer I had no idea that there were firms who specialised in shipping law. It was a wonderful eye opener.
Holmans shipping department is a mix of solicitors with sea legs and those without. As a result of their experience, the seafarers are usually sent out to cover wet work, such as collisions and total loss, while the non-mariners often deal with the dry work, such as disputes between shipowners and charterers or between ship and cargo owners. Stevens claims that shipping firms are still on the lookout for lawyers with seafaring experience, although the widely acknowledged decrease in shipping work means that positions are not as readily available as they used to be.
Part of the difficulty now is persuading good young people to go to sea, he adds. The programme now being promoted by Maritime London is trying to show that you dont have to go to sea for life. You can make a useful contribution to the shore side of the business after spending 12 years at sea.
So far as the laws concerned, theres no reason why people in other disciplines, such as engineers and farmers, shouldnt also move into law. Firms need lawyers who understand the technical aspects of their clients business.
Colin de la Rue, a shipping partner at Ince & Co, has specialised in oil spills ever since the Exxon Valdez ran aground off Alaska in 1989.
Strategic decisions have to be taken quickly in a situation like that, says de la Rue, whose office is now adorned with pictures of the many shipwrecked tankers that he has since been involved with. De la Rue, who nearly always acts for insurers or shipowners, says the aim is to avoid problems escalating as a result of public reaction to the incident.
After any oil spill, the media is awash with emotive images of blackened shorelines or distressed sea birds and lawyers often have to deal with demands for the detention of ships or boycotting of oil companies.
One of the main problems is public confidence and perception, de la Rue says. Scientists often agree that the best thing to do after a spill is to leave it to nature, rather than spraying it with chemicals. But politics and public pressure mean you have to be seen to be doing something about it. It can be a challenge to achieve this without spending millions on a clean-up operation just for PR reasons.
In situations like this, de la Rue says the aim is not necessarily to minimise claims and pay out as little as possible. We are usually more concerned with identifying proper claims and putting in place a system for paying them out quickly. A lot of information-gathering needs to be done.
He adds: As a lawyer, I have to make claimants aware of the compensation available to them , such as those in fishing or tourism. But there are always people who try to abuse the system.
High-profile disasters, such as the Erika in 1999, have prompted calls for changes to the current compensation system, but de la Rue says current practice is simple and efficient.
He adds: There are proposals for compensation to reflect the shipowners fault, as an incentive for higher quality shipping. But that would be a retrograde step. Sanctions of that kind are best kept for a separate legal regime.
Shipping has been exempt from competition law since the tail end of the 19th century, when shipowners were first allowed to get together in liner conferences to agree prices as part of an attempt to protect the business interests of all those involved in the industry.
This exemption was confirmed by a European regulation in 1987, but since then debates have raged over the liner industrys unique ability to set its own rates.
As Lawyer 2Bwent to press, the European Commission (EC) was about to set down a decision on an agreement involving the Transatlantic Conference, which Lovells partner John Pheasant thinks will be held up as a blueprint for the rest of the shipping world.
What were looking at really is the reregulation of a very traditional industry, which plays a very important role in world trade. This blueprint will clarify how the legislation should be interpreted from now on, says Pheasant, who has been involved in every major case in this area since 1987, when Regulation 4056 was first launched.
Interestingly, the EC has also said its planning to hold a longterm review to look at the benefits, or otherwise, of the system currently in place, he adds. This will either confirm that the current method is the best way of going forward or will suggest a new way to proceed.
The area has such a high profile that theres a lot of interest from different parties. I have to help my clients through the maze of whats happening, which is very challenging and, as a lawyer, very satisfying.
Sea captains have been warned to steer well clear of certain international shipping lanes because of a rise in the number of attacks by pirates.
Recent figures from the International Maritime Bureau (IMB) reveal that Indonesia currently has the most dangerous waters, with almost a third of the 171 reported piracy attacks taking place there during the first six months of this year.
Julian Gray, managing partner of Clyde & Cos Singapore office, has worked on a number of high-profile piracy cases in recent years. Piracy covers a multitude of sins, from a couple of guys in a dug-out canoe who climb up the side of a boat, to much larger-scale incidents involving the loss of a vessel and sometimes lives, he says.
Since September this year, the IMBs piracy centre has issued warnings that a pirate gang is preying on small, diesel-carrying tankers approaching the Malacca Straits. At the beginning of October, a 3,000- ton Malaysian tanker was boarded by a gang armed with guns and knives, which locked the crew in a cabin and pumped its cargo of diesel onto a waiting pirate vessel. During another attack in Indonesian waters, the crew members were tied up, blindfolded and forced to wade ashore onto a small remote island while their vessel was hijacked. IMB director Captain Pottengal Mukundan has called on captains to take extra care on the high seas. Were appealing to law enforcement agencies of the littoral states to keep a close watch on vessels in their own territorial waters, but particularly in local hot spots, he emphasises. The lack of an effective law enforcement presence encourages pirates to pursue their activities.
The next time you go paddling at Blackpool, spare a thought for the poor lawyers who spent nine long years drafting the United Nations Convention on the Law of the Sea, a treaty that has been described as the most significant legal instrument of this century and which is celebrating its 20th birthday this year.
The need for a treaty first emerged in 1945 when US president Harry Truman challenged the 17th century freedom of the seas doctrine by extending his countrys jurisdiction to include natural resources on the surrounding continental shelf. A flurry of nations followed suit and soon the world was awash with sovereignty claims and navigation disputes.
By 1973, around 160 states agreed that there was a need to legally regulate above and below the waves, and the UN convention was born. Now navigation through territorial sea is legally controlled, and landlocked countries have the right to access to and from the coast, while strict laws govern pollution, research and the exploitation of the sea beds natural resources.
The treaty is unique because of its inbuilt compulsory settlement procedures. So if direct talks between two parties fail, the UN convention gives them a choice of four procedures: submission to the International Tribunal for the Law of the Sea; adjudication by the International Court of Justice; submission to binding international arbitration procedures; or submission to special arbitration tribunals.