Wikborg Rein updates
Imposing conditions to contractual consent – is it reasonable?
Wikborg Rein- Shipping & Transport
- United Kingdom
- 20 January 2021
The Commercial Court recently provided guidance on the interpretation of consent provisions in a transport and processing agreement where such consent was not to be "unreasonably withheld". The issue of withholding consent arises regularly under long and short-term shipping charterparties. A key takeaway from this judgment is that to establish whether consent may be withheld, the parties' bargain as a whole must be considered and not the consent provision in isolation.
Beefing up emission and fuel standards in the Arctic
Wikborg Rein- Shipping & Transport
- Norway
- 20 January 2021
The 75th session of the International Maritime Organisation Marine Environment Protection Committee recently approved a ban on the use and carriage of so-called 'heavy fuel oil' in the Arctic. The proposed amendments are expected to be formally adopted in June 2021. However, more stringent standards have already been proposed by the Norwegian government for the area surrounding Svalbard.
Arbitrator bias and duty of disclosure in shipping arbitration: Supreme Court adopts pragmatic approach
Wikborg Rein- Shipping & Transport
- United Kingdom
- 23 December 2020
The Supreme Court recently examined the requirement that an arbitrator must disclose related or linked appointments, which is a long-running debate, particularly in specialist fields (eg, maritime disputes), where there has traditionally been a limited pool of arbitrators. This decision is likely to fundamentally change the way in which shipowners, charterers and traders proceed with arbitrators in the future.
Maritime casualties in the High North
Wikborg Rein- Shipping & Transport
- Norway
- 23 December 2020
As noted in the white paper on Norway's Arctic policy, maritime activities in the High North are expected to increase due to improved accessibility resulting from melting sea ice, the high potential for increased commercial exploitation of marine and offshore resources and the successful marketing of the Arctic as a tourist destination. With increased activities comes an increased risk of accidents, and these additional risks must be taken into account by those operating in the area.
Benefits of NOMA versus ad hoc arbitration in shipping and offshore contracts
Wikborg Rein- Shipping & Transport
- Norway
- 02 September 2020
Arbitration is the most commonly used dispute resolution mechanism in shipping and offshore contracts. However, parties often tend to spend little or no effort reflecting on the type of arbitration solution chosen (ie, ad hoc versus institutional arbitration). This article highlights the benefits of agreeing to arbitration under the rules of the Nordic Offshore and Maritime Arbitration Association versus ad hoc arbitration.
Supreme Court clarifies time-bar rules applicable to direct actions against P&I insurers
Wikborg Rein- Shipping & Transport
- Norway
- 19 August 2020
A recent Supreme Court decision examined the mandatory scope of the Insurance Contract Act and the application of the general Time Bar Act in direct actions against protection and indemnity insurers under Norwegian law. The dispute arose out of an incident that took place in China in 2007, during which capesize vessel Mineral Libin made contact with another vessel and a buoy when berthing.
Shipyards' right of retention for non-payment
Wikborg Rein- Shipping & Transport
- Norway
- 12 August 2020
Under the Maritime Code, a shipyard which constructs or repairs a ship may retain physical possession of that ship until it has been paid by the relevant shipowner. The right of retention for non-payment is one of the key weapons in the arsenal of shipyards and enables them to exert a significant amount of pressure on both shipowners and other creditors to require prompt payment as and when it is due.
Court declines to dismiss claim against shipowner for death of shipyard worker following demolition sale
Wikborg Rein- Shipping & Transport
- United Kingdom
- 05 August 2020
Shipowners routinely give buyers in demolition sales complete freedom to deal with ships as they please following a sale, but do so at their peril. Shipowners are generators of waste under the Basel Convention and other laws and remain liable as such following a sale. Further, shipowners and those assisting them in such transactions may also incur liabilities in tort to third parties in connection with shipyard worker injuries and environmental damage occurring after a sale, as noted in a recent High Court judgment.
Passage planning – fail to prepare, prepare to fail
Wikborg Rein- Shipping & Transport
- United Kingdom
- 22 July 2020
The Court of Appeal recently endorsed a first-instance Admiralty Court decision that a failure to properly prepare a passage plan or properly mark up navigational charts to reflect navigational dangers may amount to a failure to exercise due diligence to make the vessel seaworthy, leading to an actionable fault defence for cargo interests who had refused to contribute to the general average.
Bareboat registration – new initiative to retain Norway's position as leading maritime nation
Wikborg Rein- Shipping & Transport
- Norway
- 15 July 2020
The Norwegian regulations on ship registration have been criticised for being complicated and outdated, thereby making the Norwegian ship registers unattractive compared with more flexible alternatives offered by the so-called 'flags of convenience'. In response to such criticism, Parliament recently passed a bill effecting certain amendments to the relevant legislation aimed at opening up and facilitating the parallel registration of ships (bareboat registration) both in and out of the Norwegian ship registers.
Limitation of liability – determining the meaning of 'operator' and 'manager'
Wikborg Rein- Shipping & Transport
- United Kingdom
- 24 June 2020
The Admiralty Court recently handed down a judgment which looked in detail at the scope and meaning of the Convention on Limitation of Liability for Maritime Claims – in particular, the meaning of the phrase "the operator of the ship" in Article 1(2). In determining the meaning of 'operator', it was also necessary for the court to examine the meaning of 'manager'. This is the first time that the English courts have been called on to consider this issue.
Notification is key: prevention principle, delay and extensions of time under shipbuilding contracts
Wikborg Rein- Shipping & Transport
- United Kingdom
- 20 May 2020
A recent High Court decision provides an in-depth analysis of how, if at all, the prevention principle applies to shipbuilding contracts and the importance of good contract management to notify and seek extensions for events of delay. The dispute arose in the context of 11 arbitrations between a seller and a buyer concerning a series of 14 bulk carriers which were to be designed and constructed by the seller in China.
COVID-19: legal challenges for shipping industry
Wikborg Rein- Shipping & Transport
- Norway
- 15 April 2020
The fast spread of COVID-19 worldwide and the actions taken by regulatory bodies have created challenges for the shipping industry in particular given its international character. Much information is available, but it is fragmented. This article set outs several issues of importance and gives basic information to help parties handle the situation at hand in the best possible manner.
How many attacks does it take to make Strait of Hormuz unsafe?
Wikborg Rein- Shipping & Transport
- United Kingdom
- 29 January 2020
Since May 2019, six oil tankers have been attacked in the Strait of Hormuz. However, despite these attacks, vessels are still taking orders to sail through the strait, albeit with higher war risk insurance rates and, most likely, heightened crew concerns. At what point under UK law can owners refuse such voyage orders on the basis that the strait is contractually unsafe?
Shipping project finance: new regulatory intricacies
Wikborg Rein- Shipping & Transport
- Norway
- 22 January 2020
Project financing has historically been a popular investment scheme and source of capital in Norway for shipping projects. However, the Norwegian regulatory authorities recently published guidelines regarding the application of the alternative investment fund (AIF) regime to project finance entities. Issuers, advisers, arrangers and investors in shipping projects must be aware of the pitfalls of being captured by the wide definition of an 'AIF' and the steps that they can take in order to adapt to the regulations.
High Court decision offers guidance on interpreting guarantees
Wikborg Rein- Shipping & Transport
- United Kingdom
- 22 January 2020
A recent High Court decision provided guidance on the rules of interpretation when construing guarantees that display characteristics of both on-demand and true guarantees. The case concerned a charterer guarantee, which was described as a parent company guarantee and had characteristics of both an on-demand guarantee and a true guarantee.
Shipbuilding – consequences of disruption by buyers
Wikborg Rein- Shipping & Transport
- Norway
- 15 January 2020
In the lead up to delivery under shipbuilding and offshore fabrication contracts where delivery is delayed, buyers may occasionally face claims that they have disrupted the contractor's progress in such a way that the contractor is entitled to an extension of the delivery date and/or damages for the additional costs incurred. A recent ruling from the Supreme Court involving land-based construction clarifies the requirements as to causation for such a claim to succeed.
Supreme Court issues important decision on CTL in Renos case
Wikborg Rein- Shipping & Transport
- United Kingdom
- 08 January 2020
The Supreme Court recently clarified that when determining whether a vessel is a constructive total loss under the Institute Time Clauses Hulls conditions, regard should be had to the costs incurred prior to the owner's notice of abandonment, but not to remuneration payable under a special compensation protection and indemnity clause. The decision is a landmark decision on marine insurance because of its financial and practical implications.
Norway prepares for ratification of Nairobi Wreck Removal Convention
Wikborg Rein- Shipping & Transport
- Norway
- 19 June 2019
Parliament recently decided that Norway will ratify the Nairobi Wreck Removal Convention and that the convention will be given effect not only in Norway's exclusive economic zone, but also in its territorial waters. Parliament also adopted legislation to implement the convention into Norwegian law once ratified. The legislation will introduce a dual system where the national rules on wreck removal will continue to be in effect and the convention rules will be introduced as a parallel set of rules.
Worldwide freezing orders upheld in multinational shipping fraud case
Wikborg Rein- Shipping & Transport
- United Kingdom
- 12 June 2019
The High Court recently upheld two worldwide freezing orders in a multinational shipping fraud case were upheld, rejecting the defendant's allegations of breaches of full and frank disclosure. Among other things, the judgment is a useful confirmation and strengthening of the standing of intermediary charterers to sue for the full value of the hire in circumstances where the claimant's ultimate loss may be substantially lower.
