Transfer of title
When does title in the ship pass from the shipbuilder to the shipowner? Can the parties agree to change when title will pass?
The shipbuilding contract will contain detailed provisions dealing with when title in the ship will pass. The parties are, in principle, free to agree whatever they like. However, title normally passes on delivery. In most shipbuilding contracts, payment is by instalments and payment of the final instalment and delivery are simultaneous. This is often marked by a formal closing meeting.
It sometimes happens that, for whatever reason, the shipbuilder is not able to provide a refund guarantee (to secure the return of any pre-delivery instalments in the event of non-delivery). In such cases, the contract might provide for the progressive transfer of title as the construction progresses.
What formalities need to be complied with for the refund guarantee to be valid?
Under section 4 of the Statute of Frauds 1677, a contract of guarantee is unenforceable unless it is made in writing, or is evidenced in a written note or memorandum and must be signed by the guarantor or by its agent. The note or memorandum must acknowledge the existence of the agreement and include the material terms of that agreement. There have been some interesting decisions on the validity of guarantees in the English courts. In one case, the Court of Appeal held that a guarantee could be found in a chain of emails for the purposes of the Statute of Frauds, even though no hard copy of the final form of guarantee had been signed. The Court of Appeal also held that an email salutation by a broker authorised to act on behalf of the guarantor was sufficient to constitute a signature for the purposes of the Statute of Frauds, irrespective of the intention with which the broker signed, and it was irrelevant whether or not the broker thought he or she was signing a guarantee. In another case, the Commercial Court considered the validity of a guarantee issued and sent by SWIFT (a secure international messaging service used by financial institutions). The guarantor bank’s name appeared in the header that was automatically inserted into the SWIFT message and the court’s conclusion was that this constituted sufficient signature for the purposes of the Statute of Frauds.
Are there any remedies available in local courts to compel delivery of the vessel when the yard refuses to do so?
An order for specific performance of a contract is a discretionary remedy. Such an order is not normally granted if compliance with it would require detailed judicial supervision. Thus, an order for specific performance of a shipbuilding contract compelling the builder to complete and deliver the vessel is unlikely to be granted. The situation may be different where the vessel is complete, it is possible for the yard to deliver it and damages are not an adequate remedy.
Where the vessel is defective and damage results, would a claim lie in contract or under product liability against the shipbuilder at the suit of the shipowner; a purchaser from the original shipowner; or a third party that has sustained damage?
The Consumer Protection Act 1987 (CPA) imposes a measure of strict liability for damage caused by a defective product. The person liable is the ‘producer’ of the product and, since the definition of a product in the CPA expressly includes ‘ship’, the possibility arises, in theory at least, of anyone being able to make a claim against the shipbuilder under the CPA. However, damage to the product itself is expressly excluded under the CPA. Similarly, as to loss of or damage to property, the CPA only applies in respect of damage to property ordinarily intended for the private use or consumption of the person who suffers the damage. In short, therefore, the CPA is unlikely to apply to loss of or damage to commercial property, for example to cargo on the ship or to other vessels, although there is a possible exception where the vessel is used privately. Where the CPA does not apply, any remedy will depend upon the application of the usual principles of contract and tort.
Where the vessel is defective because of defects in workmanship or materials, the purchaser’s right to reject the vessel will depend on the terms of the contract and also on whether the defects are material and whether the shipbuilder is in repudiatory breach of contract. In practice, if the shipbuilder can, and is willing to, rectify the defects within the agreed delivery time, there will be no repudiatory breach of contract. Where the defects are minor and do not deprive the purchaser of substantially the whole benefit of the contract, there will be no right of rejection and the purchaser will be limited to a claim in damages. More usually, the purchaser will require the shipbuilder to remedy the defects at its own cost. Once the vessel has been accepted for delivery after sea trials, it is usually stated in the contract that such acceptance is final and binding such that the builder is not liable for pre-delivery defects. Contracts will, however, often also contain contractual warranties whereby the builder agrees to remedy defects discovered after delivery, subject to specific time limits within which claims can be made. They may also contain terms seeking to limit or exclude liability on grounds other than time. For example, statutory implied terms as to compliance with description, satisfactory quality and fitness for purpose are often excluded, as is liability for consequential losses. However, in England and Wales there are statutory provisions in place that, where applicable, affect a contracting party’s freedom. Where the Unfair Contract Terms Act 1977 applies, liability for death or personal injury caused by negligence cannot be excluded. Those who enter into shipbuilding contracts as consumers, rather than businesses, have further statutory rights and protections under the Consumer Rights Act 2015, most of which cannot be contracted out of.
It may be that a purchaser from the original shipowner or other third party will be able to rely upon the Contracts (Rights of Third Parties) Act 1999 to bring a claim against the shipbuilder. Commercial contracts usually, however, contain an express clause excluding the operation of that Act. Purchasers from the original shipowner may take an assignment of any guarantee in the shipbuilding contract and this may well be enforceable through the original buyer, even if there is a prohibition against assignment in the shipbuilding contract.
Nevertheless, a claim will lie at the suit of a third party if he or she can demonstrate a negligent breach by the shipbuilder of a duty of care under the principles established in Donoghue v Stevenson  AC 562.
Ship registration and mortgages
Eligibility for registration
What vessels are eligible for registration under the flag of your country? Is it possible to register vessels under construction under the flag of your country?
For a vessel to be registered as a British ship under the Merchant Shipping Act 1995 (MSA 1995) it must be ‘a vessel used in navigation’ and it must be owned by persons qualified to own a British ship. Vessels eligible for registration in the Register of British Ships mirror the four parts of the register:
- Part I: British ships that are not fishing vessels or small ships (ie, merchant or pleasure vessels that are over 24 metres in length, are owned by a company or are (or will be) subject to a mortgage);
- Part II: fishing vessels;
- Part III: small ships under 24 metres in length owned by individuals who require simple registration that is not a registration of title; and
- Part IV: bareboat charter ships (ships that are registered in another jurisdiction but are bareboat chartered to persons qualified to own British ships).
A ship cannot be registered on more than one part of the register simultaneously.
Vessels operated by the Royal Navy are not able to register on the British Ship Register, but Royal Fleet Auxiliary vessels are.
The Merchant Shipping (Registration of Ships) Regulations 1993 provides that a ship shall be entitled to be registered if a majority interest (ie, 33 per cent) in the ship is owned by one or more persons qualified to be owners of ships. Each of the shares to be counted in the majority interest must be wholly owned by such qualified people. In the MSA 1995, ‘ship’ is defined as any vessel used in navigation, but this is likely to be interpreted more widely to include units capable of movement at sea, whether self-propelled or not. The Department of Trade has indicated that it considers submersibles and jack-up rigs as ships capable of being registered under the MSA 1995. The Registrar of Shipping and Seamen should be consulted if eligibility for registration is not clear.
It is not possible to register vessels under construction under the UK flag.
Who may apply to register a ship in your jurisdiction?
The persons qualified to be owners of ships entered on the UK register are set out in the Merchant Shipping (Registration of Ships) Regulations 1993 and include:
- British citizens;
- British Overseas Territories citizens;
- British Overseas citizens;
- Commonwealth citizens;
- citizens of a country listed in Schedule 6; and
- non-United Kingdom nationals who are settled in the United Kingdom.
If none of the above criteria can be met, a representative may be appointed. The representative must be either an individual resident in the UK or a body corporate incorporated in a member state and having a place of business in the United Kingdom.
A maximum of five persons or companies may be registered as owners of a British ship.
All applications for registration are to be made to the Registrar at the Registry of Shipping and Seamen. This can be done in person or by post (provision is also made for acceptance of certain application documents electronically) and must be supported by a declaration of eligibility in the approved form, which is to include a declaration of British connection, a declaration of ownership by every owner setting out their qualification to own a British ship, and a statement of the number of shares in the ship and their ownership.
What are the documentary requirements for registration?
The following documents will generally need to be submitted to register:
- application to register;
- declaration of eligibility;
- bill of sale (for an existing vessel);
- copy of the certificate of incorporation or equivalent document;
- for fishing vessels, the maximum continuous engine power must be declared and, if the vessel is 12 metres in length or over, a UK fishing vessel safety certificate must be produced;
- certificate of survey for tonnage and measurement;
- international tonnage certificate (for vessels greater than 500 gross tonnage);
- builder’s certificate (for a new-build vessel);
- deletion certificate or transcript from the current register or an undertaking to provide one within six weeks;
- copy of ship’s current continuous synopsis record (for vessels greater than 500 gross tonnage); and
- mortgage registration forms (if appropriate).
The above list is a minimum and further documents and information may be required in relation to, for example, safe manning, certificates of equivalent competency, maritime security (ISPS Code), radio communications, ISM Code, seafarer employment agreements, accommodation, Maritime Labour Crew Convention, survey, stability and civil liability certification.
Once the documentation is received, a Carving and Marking Note will be issued to the attending surveyor. Once signed and returned, the Certificate of Registry can be issued.
Often, a limited company is incorporated in Britain for the purpose of being the registered owner of a vessel on the Register. The basic requirements to incorporate a company under the Companies Act 2006 (CA 2006) are as follows:
- Memorandum of association: the memorandum simply states that the subscribers:
- wish to form a company under the CA 2006;
- have agreed to become members (subscribers) of the company; and
- where the company is to have share capital, have agreed to take at least one share each (or one share for a single subscriber).
- Articles of association: the internal arrangements of a company are governed by its articles of association. A company may adopt its own articles or adopt one of the model articles of association prescribed for companies by the CA 2006, either with or without modification. The relevant model articles applicable to the type of company in question will apply by default to newly incorporated companies unless they choose to vary or exclude those articles.
- Shareholders: whether the incorporated company is a public limited company or a private limited company limited by shares, only one shareholder is required, irrespective of that shareholder’s nationality or place of residence.
- Directors: a private limited company may have only one director, if permitted in its articles, while a public limited company must have at least two directors. At least one director must be a natural person, but a director’s nationality or place of residence is irrelevant for legal purposes.
- Company secretary: a private limited company does not need to have a company secretary unless required to do so by its articles of association; a public limited company must have a formally qualified secretary.
- Filing: the memorandum of association and articles of association (if not adopting the relevant model articles), together with the payment of the requisite fee, must be filed at Companies House with form IN01 (application for registration), which discloses certain details to Companies House, including the proposed registered address and accounting reference date of the company and details of its proposed directors.
Is dual registration and flagging out possible and what is the procedure?
The dual registry system allows a charterer, leasing a ship registered in one country, to benefit from the advantages offered by another registry. It also allows the shipowner to maintain the original registration, which is merely suspended during the dual registration but regains its effectiveness upon the termination of the charter.
The UK only expressly allows dual charter registration under a bareboat charter and has introduced a system for bareboat charter out, so that ships can temporarily reflag for the period of a charter before returning to the UK flag when that agreement ends. Ships can be bareboat chartered into the UK register from any other registry provided that the eligibility requirements for both vessel and charterer are met. As with owned ships, a representative person or managing charterer must be appointed. Once the initial paperwork is submitted, the chosen name and port will be confirmed and an official number issued. Once these details have been marked on the ship, the certificate of registry will be issued and will last for five years or the duration of the bareboat charter agreement, whichever is shorter. Registration may be renewed on presentation of a fresh declaration of eligibility and a certificate of bareboat charter.
Who maintains the register of mortgages and what information does it contain?
The Registrar General of Shipping and Seamen maintains the mortgage register of a merchant ship or fishing vessel on the British register. The register contains:
- type of mortgage;
- date of creation;
- date and time of registration;
- name and address of the mortgagee;
- number of shares mortgaged; and
- where relevant, the original principal amount secured.
English law does not permit mortgages in favour of a bearer, so the mortgagee must be named. The amount is secured and the repayments are not recorded. If the mortgage is discharged, this is endorsed on the reverse side of the mortgage and registered.
Limitation of liability
What limitation regime applies? What claims can be limited? Which parties can limit their liability?
The UK is party to the 1976 Convention on Limitation of Liability for Maritime Claims (the 1976 Convention), as amended by the 1996 Protocol. Amendments to the 1996 Protocol were announced by the International Maritime Organization (IMO) in April 2012, introducing new liability limits that came into force on 8 June 2015 and that resulted in a 51 per cent increase on the previous limits. These limits came into force in the UK on 30 November 2016.
Under the 1976 Convention, the persons entitled to limit their liability include shipowners, charterers (including slot charterers, according to a decision of the English Court), managers, operators and salvors, as well as any person for whose act, neglect or default those parties are responsible, and the liability insurers of any of those parties. The English courts have held that the 1976 Convention also entitles the charterers to limit for claims brought against them by shipowners although, in those circumstances, charterers can only limit their liability for claims in respect of which limitation is available under article 2 of the 1976 Convention. By way of example, charterers can limit their liability in respect of an indemnity claim for any cargo claims brought against the shipowners, but they cannot limit their liability in respect of a claim for an indemnity for salvage costs or in respect of general average.
The 1976 Convention applies to seagoing ships, but the implementing legislation in the Merchant Shipping Act 1995 (MSA 1995) extends the right to limit to non-seagoing ships, as well as to hovercraft. The UK maintains a reservation in respect of article 2(1)(d) of the 1976 Convention with the result that liability for the cost of wreck removal is unlimited. That said, there are arguments that it is still possible to limit liability in respect of the recourse claims relating to wreck removal expenses.
Section 191 of the MSA 1995 also extends the right of limitation to harbour authorities, conservancy authorities and owners of docks and canals. The claims that can be limited are set out in the 1976 Convention. The UK excludes claims for ‘loss of life or personal injury’ suffered by passengers on seagoing ships from the list of claims subject to limitation. All such claims are subject to the Athens Convention 1974 and its 2002 Protocol, which entered into force on 23 April 2014 (and has the force of law in England and Wales pursuant to sub-sections 183 and 184 of the Merchant Shipping Act 1995). Since 31 December 2012, the key provisions of the Athens Convention 1974 and the 2002 Protocol have been implemented in the EU and the EEA by the EU Passenger Liability Regulation, Regulation 392/2009 (the Athens Regulation), which largely imports the provisions of the amended Athens Convention (in Annex I), but with some additional features. As was the case prior to Brexit, the Athens Convention will continue to apply where the Athens Regulation does not: see Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012 (SI 2012/3152). Since Brexit, the Athens Regulation continues to apply in the UK, as provided for in the Merchant Shipping (Miscellaneous Provisions) (Amendments etc) (EU Exit) Regulations 2018 (SI 2018/1221).
Under section 22 of the Pilotage Act 1987, pilots and pilotage authorities may limit their liability to £1,000 plus the pilotage fee for individual liability of the pilot and to £1,000 multiplied by the number of pilots employed by the pilotage authority in cases where the latter is liable for the acts of its pilots.
What is the procedure for establishing limitation?
Rule 61.11 of the Civil Procedure Rules stipulates that a limitation action must be started in the Admiralty Court by issuing a claim form. At least one defendant must be named in the claim form, but other defendants may be described generically. If the action is successful and a limitation decree granted, the limiting party will be entitled to limit liability against any and all claims. It is possible to invoke limitation of liability without setting up a fund when commencing an action. However, in some circumstances there may be advantages in so doing, for example, to protect against later increases in the fund or to make use of the rights contained in article 13 of the 1976 Convention; principally, freedom from ship arrest in states that are party to the Convention. The prior initiation of legal proceedings under the 1976 Convention is not a condition precedent for an application to constitute a limitation fund.
One issue that has come before the English courts is whether a limitation fund can be set up by way of a protection and indemnity (P&I) club letter of undertaking. The English Court of Appeal has clarified that it is possible (subject to certain requirements) to constitute a tonnage limitation fund in England with a guarantee, including a P&I club letter of undertaking.
Limitation may also be pleaded by way of defence. Success with that defence, however, will only establish the right to limit liability to the claimant in that particular action, and not liability to any other claimants. It is not necessary to set up a limitation fund where limitation is pleaded by way of defence.
The limits are calculated based on the tonnage of the relevant vessel.
Break of limitation
In what circumstances can the limit be broken? Has limitation been broken in your jurisdiction?
Article 4 of the 1976 Convention provides that a person shall not be entitled to limit his or her liability if it is proved that the loss resulted from his or her personal act or omission, committed with the intent to cause such loss, or recklessly and with the knowledge that such loss would probably result. The cases demonstrate that it is extremely difficult to break this limit.
In what was described as a landmark judgment in the English Admiralty Court in 2016, in Kairos Shipping v ENKA & CO LLC (Atlantik Confidence)  EWHC 2412 (Admlty), however, cargo interests successfully broke limitation in the UK for the first time since the 1976 Convention came into force, having demonstrated that the vessel was intentionally sunk.
It has not been decided by the courts what will happen to any fund that has been established if and when limitation is broken.
Passenger and luggage claims
What limitation regime applies in your jurisdiction in respect of passenger and luggage claims?
The Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention) has been in force in the UK, by virtue of section 183 of the MSA 1995, since June 1996.
The Protocol to the Athens Convention was adopted in 2002 and came into force on 23 April 2014 and, as of May 2021, is in force in 31 states: Albania, Belgium, Belize, Bulgaria, Croatia, Denmark, Finland, France, Georgia, Greece, Ireland, Latvia, Lithuania, Madagascar, Malta, Marshall Islands, Montenegro, the Netherlands, Norway, Palau, Panama, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Syrian Arab Republic and the UK.
The 2002 Protocol has replaced fault-based liability with strict liability. The carrier is liable unless it can show that the incident resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible nature or, alternatively, that the incident was wholly caused by any act or omission of a third party with the intent to cause the incident.
The 2002 Protocol raises the liability limits for the death of or personal injury to a passenger, from 46,666 SDR to 250,000 SDR. Where losses exceed this new limit and are caused by fault or neglect on the part of the carrier, there is an overall increased limit of liability of 400,000 SDR per passenger. Carriers cannot limit liability where they acted with intent to cause such damage or recklessly and in the knowledge that their actions would probably cause damage. Under the protocol, member states have an opt-out provision, allowing them to retain or introduce higher limits of liability, or indeed unlimited liability, for personal injury and death claims under their national law.
For loss of or damage to luggage, the limit varies:
- the carrier’s liability for the loss of or damage to cabin luggage is limited to 2,250 SDR per passenger, per carriage;
- the carrier’s liability for the loss of or damage to vehicles including all luggage carried in or on the vehicle, is limited to 12,700 SDR per vehicle, per carriage; and
- the carrier’s liability for the loss of or damage to other luggage is limited to 3,375 SDR per passenger, per carriage.
The 2002 Protocol also states that compulsory insurance is required to cover passengers on ships. Third-party claimants are now entitled to bring a direct claim resulting from a shipping-related incident against the liability insurer, up to the strict liability limit of 250,000 SDR per passenger for each distinct occasion.
The 2002 Protocol applies to all international carriage where a ship is registered in the UK, the contract of carriage has been made in the UK, or the place of departure or destination is in the UK. However, the 2002 Protocol does not apply to vessels registered to carry a maximum of 12 passengers.
Port state control
Which body is the port state control agency? Under what authority does it operate?
The port state control agency in the UK is the Maritime and Coastguard Agency, which is an executive agency of the Department of Transport. Under an EU directive on port state control, the agency can inspect foreign-flagged ships calling at UK ports and anchorages. The MCA’s Regulation 2011 SI No. 2601, The Merchant Shipping (Port State Control) Regulations 2011 and Merchant Shipping Notice MSN 1832 explain how the directive is incorporated into UK law.
What sanctions may the port state control inspector impose?
The PSC Directive imposes a risk-based system of targeting ships for inspection. Provisions of the directive that apply to shipowners, operators, agents, masters, crew, pilots and port authorities are incorporated into English law by the Merchant Shipping (Port State Control) Regulations 2011 (MSR 2011). Each ship in the database is allocated a risk profile out of the three possible risk profiles: high risk, standard risk or low risk. When determining a ship’s risk profile, the following criteria are considered:
- the type of the ship;
- the age of the ship;
- the flag of registry;
- performance of the relevant ‘recognised organisation’ (an organisation, usually a classification society, which is authorised by a member state to carry out surveys and issue certificates on its behalf);
- the ship’s ISM company performance; and
- the number of deficiencies and the number of detentions within the previous 36 months.
Calculators for ship risk profiles and company performance based on information entered by the user are provided on the Paris MoU website.
Company performance is a recent criterion and is based on the company’s performance in the Paris MoU region with respect to the number of deficiencies per inspection and number of detentions in the preceding three-year period.
The frequency of periodic inspection will depend on the risk profile of the ship. Ships with a high, standard or low-risk profile will be inspected six, 12 or 36 months, respectively, after the previous inspection in the Paris MoU region. Ships with ‘overriding factors’, as described in Annex I part II 2A of the PSC Directive, will be inspected regardless of the time since their last inspection. Inspections may take place before they are due at the discretion of inspectors five, 10 or 24 months after the previous inspection for a ship with a high, standard or low-risk profile, respectively. A ship with ‘unexpected factors’, as described in Annex I part II 2B, may be inspected according to the inspector’s professional judgement. The interval until the next inspection restarts after each inspection. Ships other than those described above will not, generally, be selected for inspection.
Usually, inspections are unannounced. All inspections begin with an initial inspection. The port state control officer (PSCO) will, as a minimum, check relevant certificates and documents listed in Annex IV, confirm that deficiencies outstanding from the previous inspection in the Paris MoU region have been rectified, and look at the overall condition of the ship, including the engine room, accommodation and conditions of hygiene on board. Where there are ‘clear grounds’ for believing that the condition of a ship, its equipment or crew does not meet the relevant Convention standards, a more detailed inspection may be undertaken.
The following sanctions may be imposed:
- a prohibition notice;
- a detention notice; and
- an access refusal notice.
A prohibition notice requires that a particular activity cease.
A detention notice prevents the vessel from leaving port until the PSCO is satisfied that the deficiencies have been properly rectified and the detention notice has been lifted. The vessel is only permitted to be moved from the place of detention if repairs cannot be made at that place, or if there are overriding safety reasons. Unauthorised departure from the port of detention may incur liability to a fine or imprisonment.
An access refusal notice, which is applicable to all ship types registered with a black or grey-listed flag on the Paris MoU white, grey and blacklists (where the individual flag state administrations are ranked according to how their ships have performed in relation to port state control within a period of three years: the ‘black list’ shows the flag states that have significantly more detentions than the average number within the Paris MoU countries; the ‘grey list’ shows the flag states that have a number of detentions corresponding to the average and the ‘white list’ represents high-quality flags with a consistently low detention record). Banning is based on the number of detentions a ship has had within a specified period. A ship that flies a black-listed flag will be banned if it has been detained more than twice in the preceding 36 months. A grey-listed flag ship will be banned if it has been detained more than twice in the preceding 24 months. Minimum ban times are three months for the first ban and 12 months for the second ban. A ship that is detained in a port or anchorage within the European Union or the United Kingdom after the third refusal of access notice has been issued in respect of it must not enter any port or anchorage in the United Kingdom.
What is the appeal process against detention orders or fines?
Regulations 14 to 16 of the Merchant Shipping (Port State Control) Regulations 2011 provide owners and masters with rights of appeal and compensation in respect of a detention notice or access refusal notice. An independent arbitrator, appointed by agreement between the parties, decides the appeal. The notice of reference form must be sent to the PSCO within 21 days of receipt of the detention or access refusal notice. A notice of appeal should also be sent to the Maritime and Coastguard Agency office that issued the order.
Detention will not be suspended by issuing a notice of reference. The burden of satisfying the arbitrator that there were no reasonable grounds for the detention lies with the shipowner. If the arbitrator decides that there was no valid basis for the detention, he or she must cancel the detention. Alternatively, the arbitrator may confirm the detention or issue a modified detention order. The arbitrator may also order that the owner be compensated for any loss suffered as a result of the detention, including lost freight, port expenses and legal costs.
Appeal against the arbitrator’s decision is only possible on a question of law or serious irregularity. In the only case for a century dealing with the legality of the detention of a vessel under the UK merchant shipping legislation, the disponent owners of a cruise ship sought to challenge the validity of two notices of detention issued by the Maritime and Coastguard Agency but did not appeal the notices within the 21-day period stipulated by the relevant Regulations. The court, asked to decide a number of preliminary issues, held that some technical defects in the two notices of detention that had been issued did not invalidate them.
Approved classification societies
Which are the approved classification societies?
The six classification societies that are authorised as UK Recognised Organisations are:
- American Bureau of Shipping (ABS);
- Bureau Veritas SA (BV);
- Nippon Kaiji Kyokai (ClassNK);
- DNV GL AS;
- Lloyd’s Register (LR); and
- RINA Services SpA (RINA).
In what circumstances can a classification society be held liable, if at all?
Classification societies usually exclude their liability by contract. However, it is theoretically possible for a classification society to incur liability in tort if the claimant can establish that the classification society owed a duty of care, that that duty of care was breached and that such breach resulted in loss or damage to the claimant. Although the landmark decision of the House of Lords (as it then was) in Marc Rich & Co v Bishop Rock Marine (The Nicholas H)  2 Lloyd’s Rep. 299 established that classification societies do not owe a duty of care towards third parties in respect of their classification and certification duties, international developments concerning the liability of classification societies may lead the UK Supreme Court to decide differently should a new case come before it.
The International Association of Classification Societies, which has 12 full members, has introduced a level of self-regulation among its members, including the formation of uniform standards for technical safety rules. In addition, the Erika III package, which seeks to prevent accidents at sea and to improve regulations available to manage the consequences of accidents if they do happen, came into force on 17 June 2009. It includes Directive 2009/15/EC and Regulation (EC) No. 391/2009 on common rules and standards for ship inspection and survey organisations. In summary, these enactments provide for classification societies to achieve the status of ‘recognised organisations’ on behalf of member states in certain circumstances, whereupon they will be subject to the uniform rules and standards and minimum criteria laid down for such recognised organisations. The directive also contains provisions concerning the financial liability of recognised organisations in the case of a wilful act or omission, or gross negligence. The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 amend Regulation (EC) 391/2009 on common rules and standards for ship inspection and survey organisations, and subordinate legislation made under it (referred to as ‘retained EU law’), to ensure that the retained EU law is operable following the UK’s withdrawal from the European Union.
Collision, salvage, wreck removal and pollution
Wreck removal orders
Can the state or local authority order wreck removal?
Under the Merchant Shipping Act (MSA) 1995, a harbour or conservancy authority has the power to remove, destroy, take possession of or mark a wreck where, in the opinion of the authority, the wreck is an obstruction or danger. The authority may sell the removed vessel and reimburse its expenses from the proceeds. The authority may contract with a third party for the removal or salvage of a wreck. Liability for the costs of wreck removal lies with the owner (such liability is unlimited), notwithstanding that a third party may be ultimately liable, for example where there has been a collision as a result of the negligence of another vessel.
Where there is no harbour or conservancy authority with the power to remove a wreck, the General Lighthouse Authority has the same powers to remove a wreck in its area.
Under the MSA 1995, as modified by the Wreck Removal Convention Act 2011, the Secretary of State, after determining that a wreck poses a hazard, must take all reasonable steps to issue a wreck removal notice to an owner, stating:
- a reasonable deadline by which the wreck must be removed and that evidence of insurance or other security must be provided;
- that, if the deadline is not complied with, the wreck may be removed by the state at the owner’s expense; and
- that the state may intervene in the removal if the hazard becomes particularly severe.
Failure to comply with such a notice may result in a fine.
The Nairobi International Convention on the Removal of Wrecks 2007 (the Wreck Removal Convention) entered into force on 14 April 2015. As of May 2021, the Wreck Removal Convention is in force in 55 countries. In the UK, the Wreck Removal Convention has been implemented by the Wreck Removal Convention Act 2011, which modified the wording of the MSA 1995. The UK’s ‘Convention Area’ covers both its territorial waters and its Exclusive Economic Zone.
The convention sets out uniform international rules that aim to ensure that wrecks are removed promptly and effectively. An order can be given if the wreck is likely to be a hazard to navigation or a threat to the environment. It also places a positive obligation on the master of a wrecked vessel to report it to the concerned state.
Which international conventions or protocols are in force in relation to collision, wreck removal, salvage and pollution?
The Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (Collision Convention 1910) forms part of English law.
The Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) (as amended) are in force by virtue of MSA 1995 and apply to all British ships wherever they may be, and to all foreign ships within UK waters.
The International Convention on Salvage 1989 applies in England and Wales.
The International Convention for the Prevention of Pollution from Ships 1973 as amended by the 1978 Protocol (MARPOL 73/78) and subsequently amended by the 1997 Protocol, is also in force.
The following agreements are also applicable:
- the International Convention on Civil Liability for Oil Pollution Damage 1969 (the CLC Convention);
- the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (the Bunker Convention);
- the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 (the Oil Pollution Fund Convention); and
- the Supplementary Fund Protocol 2003.
Is there a mandatory local form of salvage agreement or is Lloyd’s standard form of salvage agreement acceptable? Who may carry out salvage operations?
There is no mandatory form of salvage agreement. Lloyd’s Open Form (LOF) is commonly used and indeed that is the most common form of salvage agreement in the world. The LOF is governed by English law and provides for arbitration by the Lloyd’s Salvage Arbitration Branch in London. However, the LOF does not have to be used and parties can agree to their own terms and conditions. Usually, salvage operations are undertaken by professional salvage contractors, but anyone can carry out salvage operations and then bring a claim for contractual or common law salvage.
Given the wide usage of the LOF worldwide, Lloyd’s publish updated versions at appropriate intervals. The most recent edition of the LOF is LOF 2020, which has been effective since 1 January 2020. In addition, Lloyd’s Salvage and Arbitration (LSSA) Clauses, Procedural Rules and Fixed Cost Arbitration Procedure have been combined into a single document, the Lloyd’s Salvage Arbitration Clauses 2020 (LSAC).
Some of the key changes to the LOF include:
- Important Notice No. 4 expressly requires that ‘[a] copy of any other agreement that amends or varies the provisions or terms of this Agreement must also be provided to the Council’ and thereby formalises the position in relation to side letters and any other form of agreement that seeks to circumvent the usual mechanics for determining salvage remuneration due to the Contractors under the contract;
- Clause 4.5 which specifies the form and format of security that should be provided by a salved property interest now provides for security to be provided ‘by person firms or corporations acceptable to the Council or acceptable to the Contractors’; and
- Clause 5 now provides that the arbitrator or the appeal arbitrator are entitled to ‘satisfactory security for his reasonable fees and expenses’.
Which international convention regarding the arrest of ships is in force in your jurisdiction?
The UK is a party to the Convention Relating to the Arrest of Seagoing Ships, Brussels, 1952 (Arrest Convention 1952).
The UK has not, as yet, ratified the International Convention on the Arrest of Ships 1999 (Arrest Convention 1999). The Convention entered into force on 14 September 2011 among its 10 acceding states and, as of May 2021, had 12 state parties. Other states, for example, Russia and Colombia, have incorporated elements of the Arrest Convention 1999 into domestic law. Among the changes that the Arrest Convention 1999 introduced to the Arrest Convention 1952 regime is the addition of new categories of maritime claims, including:
- claims for special compensation under article 14 of the Salvage Convention 1989;
- environmental claims;
- wreck removal claims;
- claims for insurance premiums (including mutual insurance calls) in respect of the ship;
- claims for commissions, brokerages or agency fees payable in respect of the ship; and
- claims arising out of a contract for the sale of the ship.
In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?
Section 20(2) of the Senior Courts Act 1981 lists 19 types of maritime claim within the admiralty jurisdiction of the High Court and in respect of which a vessel may be arrested. These include:
- claims relating to the possession or ownership of, or mortgage on a ship;
- claims for damage done by or to a ship;
- claims for loss of life or personal injury due to a defect in a ship;
- claims for loss of or damage to goods carried in a ship;
- other claims relating to the carriage of goods in a ship;
- claims relating to the use or hire of a ship;
- claims for salvage, towage and pilotage;
- claims for goods or materials supplied to a ship for her operation or maintenance;
- claims in respect of the construction or repair of a ship;
- claims by the master or crew for wages;
- claims arising out of a general average act; and
- claims arising out of bottomry and collisions.
Notable exceptions to this list, where an arrest is not possible, include claims for insurance premiums and for legal costs.
English law treats both English and foreign-flagged vessels equally and it does not distinguish between ‘convention’ and ‘non-convention’ vessels.
It is possible to arrest sister ships, but not associated ships. Sister ships are vessels that at the time when action is brought are owned by the same person who was the legal owner or demise charterer of the ship in connection with which the claim arose, at the time when the cause of action arose.
A bareboat (demise) chartered vessel can be arrested for a claim against the bareboat charterer but a time chartered vessel can only be arrested for a claim against a time charterer if that claim that has given rise to a maritime lien.
Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?
Yes. The claims that give rise to maritime liens are:
- damage done by a ship;
- crew’s wages and emoluments;
- master’s wages and disbursements; and
- bottomry and respondentia (largely redundant).
It has been suggested that the following two claims give rise to maritime liens by implication out of statutory provisions:
- fees and expenses of the receiver of the wreck; and
- damage sustained by the owner or occupier of lands by means of which assistance is rendered to a wreck.
What is the test for wrongful arrest?
A claim for wrongful arrest usually requires demonstration of bad faith or gross negligence (The Evangelismos (1858) 12 Moo PC 352 (PC) / The Kommunar (No. 3)  1 Lloyd’s Rep 22)).
An example of a case where the Evangelismos/Kommunar test was met is Gulf of Azov v Idisi  EWCA Civ 505;  1 Lloyd’s Rep 727. This case involved the detention of both the ship and her crew in Nigeria by the owners of cargo shipped on board. The cargo owners rejected a reasonable offer of security from the relevant P&I club, insisting on what was found to be an extortionate amount of security. The English Court of Appeal held that, as there were no reasonable grounds for the amount of security demanded by the arresting party, a wrongful arrest was established.
Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?
Under English law, a bunker supplier can only proceed against the party with whom that supplier has contracted and cannot arrest a vessel if it did not contract directly with the owner or demise charterer. Furthermore, even if the bunker supply contract with the charterer contains an express term giving the supplier a lien on the vessel under the law governing that contract, this would have no effect under English law because the owners are not a party to that contract. The majority decision of the Privy Council in The Halcyon Isle  2 LLR 325 held that the lex fori alone governs the recognition and ranking of foreign maritime liens under English law and this majority view has subsequently had a considerable persuasive effect in cases decided in a number of jurisdictions. The bunker supplier may have a claim against the shipowner for conversion of the bunkers (and thereby be entitled to arrest the vessel) where the bunker supply contract contains a retention of title clause, provided that the property in the bunkers does not pass from the supplier until payment for them has been made (see The Saetta  2 Lloyd’s Rep. 268). However, in those circumstances, the shipowner may be able to rely on section 25(1) of the Sale of Goods Act 1979 (SGA) as a buyer of the bunkers from the charterer in good faith and without notice of any adverse right of the bunker supplier (see The Fesco Angara  EWHC 619). Where the requirements of section 25(1) of the SGA are met, the owner will acquire clean title to the goods.
In 2016, the English Supreme Court ruled in PST Energy 7 Shipping LLC v OW Bunker Malta Ltd and another (Res Cogitans)  UKSC 23 that bunker suppliers that are unable to transfer property in bunkers supplied to a ship were nonetheless entitled to the price of the bunkers from the shipowners. The bunker supply contract in question provided for a credit period and incorporated a retention of title clause. The Supreme Court concluded that it was not a contract of sale within the scope of the SGA. Therefore, the implied term under section 12(1) of the SGA that provides that it is an implied condition of a contract for the sale of goods that the seller has the right to sell the goods or will have such right at the time when the property is to pass, did not apply. Section 49(1) of the SGA, which requires that property in the goods has passed to the buyer if the seller is to maintain a claim for the price, also did not apply. As a result, when the intermediate bunker supplier went bankrupt, the shipowners were liable to the physical bunker supplier for the agreed price of the bunkers, which was held to be a straightforward claim in debt. This decision had important consequences for those entering regularly into bunker supply contracts, who have had to consider whether standard bunker industry forms needed to be amended in order to protect the position of those purchasing bunkers from bunker traders in the future.
Will the arresting party have to provide security and in what form and amount?
The Court of Appeal most recently confirmed, in The MV Alkyon  EWCA Civ 2760 that it is not necessary under English law for the arresting party to provide counter-security. However, a personal undertaking is required from the arresting party to the Admiralty Marshal to pay all costs of arrest, care and custody, upon the demand of the Admiralty Marshal. This is often provided by means of a solicitor’s undertaking.
How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently? In what form must the security be provided? Can the amount of security exceed the value of the ship?
The amount of security to be provided must be reasonable but the assessment may be based on an approximation. ‘Reasonable’ in this context will generally mean the claimant’s best arguable case, plus interest and costs. Clearly there is scope for negotiation as to what the claimant’s best arguable case is. Only if such negotiations are unsuccessful will the court determine the amount and form of the security to be provided. The Arrest Convention 1952 does not limit the value of the security to the value of the ship, instead stating that security should be ‘sufficient’ (article 5), and this is interpreted as being sufficient to cover the arresting party’s best arguable case, including interest and costs. In practice, the court may limit the security to either the value of the ship or to the statutory limit of liability with interest and costs. By contrast, the Arrest Convention 1999 explicitly states in article 4(2) that: ‘in the absence of agreement otherwise between the parties, total security cannot exceed the value of the ship’ although the UK is not a signatory.
As to the form of security, this is not prescribed and is a matter for negotiation between the parties. If the court is forced to intervene, then it will look to the financial standing of any guarantor being proposed (whether that guarantor is the shipowner, its P&I club or another entity). It is not necessarily the case that the security must be provided by an independent financial institution in order for it to be considered adequate.
What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?
There are no formalities required for appointing a lawyer to make the arrest application to the Admiralty Court: a power of attorney is not required. To arrest a ship, documents in support of the claim should be filed with the claim form, together with details of the ship’s location and port of registration. All original court documents (warrant of arrest and claim form) must be filed with the court before the arrest. A declaration must also be provided regarding the ownership of the ship, the level of security sought and providing confirmation that the claim has not been satisfied. This declaration must be verified by a statement of truth.
The documents do not need to be notarised or apostilled. However, where documents are in need of translation, translations must be certified by a notary. Where possible, original documentation should be provided, although the court may order an arrest even though some original documentation is not available. Documents can be filed electronically and the procedure for organising an arrest is in most cases straightforward and can be completed in a matter of hours. Before the ship is arrested, the arresting party must check to ensure that no caution (caveat) against arrest has been lodged with the court. Furthermore, the arresting party’s solicitor must undertake to pay the Admiralty Marshal’s fees and any expenses incurred by him or her in respect of the arrest of the ship, the care and custody of it while under arrest and eventual release from arrest.
Who is responsible for the maintenance of the vessel while under arrest?
The costs of arrest, care and custody are reimbursed to the Admiralty Marshal by the arresting party, but the arresting party is likely to be able to recover the costs from the defendant when the ship is sold because the Admiralty Marshal’s costs and expenses rank first in priority of claims against the proceeds of the sale of the vessel.
Proceedings on the merits
Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere?
Article 7 of the 1952 Arrest Convention, to which the UK is a party, specifies the circumstances in which the arresting court has jurisdiction to hear the claim on the merits. In England, the right to arrest is co-extensive with a right to hear the claim on its merits. This jurisdiction is not exclusive and, at least in theory, the claimant could arrest in England for security only and then pursue his or her claim in a different jurisdiction. More typically, however, the claimant will both arrest the vessel in England and seek to pursue the claim here and the defendant may seek to stay the English court proceedings in reliance on a foreign jurisdiction clause or by asserting forum non conveniens. If the English court grants a stay in favour of proceedings elsewhere, it has jurisdiction to maintain the security pending the outcome of the foreign proceedings.
Injunctions and other forms of attachment
Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?
The main English law interim remedy is the freezing injunction (formerly known as a Mareva injunction). A freezing injunction is an interim order prohibiting the respondent from dealing with or disposing of its assets. It is used to preserve those assets with a view to enforcing a judgment against them. Such an injunction is not, of itself, a form of security. It does not grant any kind of priority over the assets, for example, but it does oblige the injuncted party to either comply with the terms of the order or to be held in contempt of court. The injunction normally obliges the injuncted party to disclose details of their assets and, where the injunction includes assets held by a third party on behalf of the injuncted party, for example, a bank, the injunction will be served on that third party, who will also be required to comply with the terms of the injunction. A breach of the injunction may amount to a contempt of court, which is punishable by a fine, imprisonment or seizure of assets. The threat of the injunction (or its effect once obtained) may, however, be sufficient to persuade the target party to provide security voluntarily.
A freezing order will generally be capped at the amount of the claim, but it is possible to obtain orders that do not have a cap or that relate to a specific asset or assets. In circumstances where some or all of the respondent’s assets are outside the jurisdiction, the court may grant a worldwide freezing order.
There are six general conditions for the granting of a freezing injunction:
- the applicant must have an underlying cause of action;
- the English court must have jurisdiction (this may be its jurisdiction in support of foreign proceedings);
- the applicant must have a good arguable case;
- there must be evidence that the respondent has assets against which a judgment could be executed;
- there must be a risk that any judgment would not otherwise be satisfied; and
- the applicant must provide an undertaking in damages.
Delivery up and preservation orders
Are orders for delivery up or preservation of evidence or property available?
Orders for the delivery up of property are available under the Torts (Interference with Goods) Act 1977 (the Act), but not more generally. Among other things, the Act provides remedies for the wrongful interference with goods, such as the torts of trespass to goods and conversion. The availability of an order for delivery up as an interim remedy may result in a claim being brought in tort, even if a claim would also lie in contract. An example of a claim for conversion in respect of which an order for delivery up under the Act might be sought is a claim for wrongful retention of cargo.
In a wider context, interim orders are available for the detention, custody, preservation or inspection of relevant property. In particular cases, the court may also make orders allowing samples to be taken or experiments to be conducted on relevant property. The court may also, in certain circumstances, order the sale of goods (generally perishable goods).
Bunker arrest and attachment
Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?
Arresting bunkers is not possible under English law, although bunkers could still be the subject of freezing injunctions.
Judicial sale of vessels
Who can apply for judicial sale of an arrested vessel?
The arresting party can apply for judicial sale of the vessel where it has not received security for its claim from the defendant shipowner.
In addition, the defendant shipowner can also apply for appraisement and sale pendente lite, for example, where a private sale being negotiated by the shipowner falls through.
If the arresting party obtains an order for judicial sale but then receives adequate security for their claim then, in normal circumstances, the arresting party would consent to the vessel’s release from arrest and would also consent to the order for sale being vacated. However, if other maritime claimants have filed caveats against the vessel’s release from arrest, then they would be notified and would be given a short window of opportunity to arrest the vessel themselves and restore the order for the vessel’s sale.
What is the procedure for initiating and conducting judicial sale of a vessel? How long on average does it take for the judicial sale to be concluded following an application for sale? What are the court costs associated with the judicial sale? How are these costs calculated?
A judicial sale normally takes place under the supervision and control of the court. The Admiralty Marshal is responsible for administering the formalities of the judicial sale, in accordance with the order of the Admiralty Court. There is a standard Admiralty Court order for the sale of a ship, which can be varied as necessary. The usual order made either on judgment or pendente lite is that the property be appraised and sold by the Admiralty Marshal. An order for sale can usually be obtained within about a month of the arrest. The court will usually make such an order based on the grounds that the vessel is a wasting asset. The vessel will then be appraised, advertised for sale and sold by sealed tender. To maximise the sale price, the vessel will be advertised worldwide in appropriate shipping publications and prospective buyers are given a reasonable opportunity to inspect and submit tenders.
A sale will normally take place about four or five weeks after the order for sale is made. Unless the net proceeds of the sale are sufficient to meet all the claims against the vessel, or all the parties reach an agreement as to the distribution of the fund, it will be necessary for the court to determine how the fund is to be divided among the various claimants, and whether any particular claimant is to be given priority over any other claimant. Any party that has obtained or obtains a judgment against the vessel or the proceeds of the sale of the vessel may then apply to the court for the determination of the order of priorities of the various claims against the proceeds of the sale of the vessel. The determination of priorities may only be made by the Admiralty Judge unless otherwise ordered by him or her.
It normally takes between three and five months for the whole process to be completed, namely: arresting the vessel, obtaining an order for sale, completing the sale, determining the priorities and making payment.
The court costs for judicial sale are 1 per cent of the first £100,000 and 0.5 per cent of the balance of the sale proceeds.
As an alternative to sale by public auction, the vessel may, in appropriate cases, be sold by private treaty. In such a case, the Admiralty Court exercises its discretion to order that the vessel be sold to a named buyer at a specified price. This has become known as the ‘fast track’, or the ‘private court sale’, procedure. Such orders are normally made if the court is satisfied that the specified price is unlikely to be bettered using the traditional public tender procedure and that the interests of other claimants against the vessel are not prejudiced. To satisfy the court of this, the claimant seeking a fast-track sale (usually a bank with a mortgage over the vessel) is usually required to present three independent ship valuations to the court and details of the proposed sale. The proposed buyer will be expected to pay a price reflecting the highest valuation. On completion of the sale, the gross proceeds of the sale are paid into court. An Admiralty Court decision in 2013, however, cast doubt on this practice. In that case, the Admiralty Court held that, as a general principle, such an order should not be made, notwithstanding that the proposed price appears to be at or about the market value of the vessel because there remains a risk that the vessel would not be sold at the best possible price. In the judge’s view, the traditional method of sale, whereby the Admiralty Marshal advertises the sale and invites offers to buy the vessel, is designed to enable the vessel to be sold at the best possible price.
What is the order of priority of claims against the proceeds of sale?
The order of priority of claims against an arrested vessel or the proceeds of sale depends on the category of the claim. In brief:
- maritime liens (concerning damage done by ships; salvage; crew wages and emoluments; master’s wages and disbursements; fees and expenses incurred by a receiver of a wreck; bottomry and respondentia) rank first in priority. There are rules governing the priority of the various maritime liens among themselves and the respective dates on which the competing claims arose may be relevant;
- mortgages and similar charges rank second. Registered mortgages rank in order of registration and ahead of unregistered mortgages; and
- all other claims in rem rank pari passu, such as claims for necessaries, claims arising under charter parties and bills of lading and claims for ship repairs.
However, there are various other claims that must be paid out of the fund before it is divided among maritime claimants. These include the costs and expenses of arrest, custody and sale; court commission on the sale price and sums due to other parties who at the time the sale order was made, had a common law possessory lien over, or a statutory right to detain the vessel (eg, for port charges).
What are the legal effects or consequences of judicial sale of a vessel?
The judicial sale of a vessel gives the purchaser clean title free of all maritime liens and other charges or encumbrances. After the sale, all claims or demands against the vessel can only be enforced against the proceeds of sale.
Will judicial sale of a vessel in a foreign jurisdiction be recognised?
Where a foreign court has ordered the sale of a vessel, the English court will recognise that sale unless it can be shown to be a sham.
Is your country a signatory to the International Convention on Maritime Liens and Mortgages 1993?
Carriage of goods by sea and bills of lading
Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?
The Hague-Visby Rules were enacted into domestic legislation by the Carriage of Goods by Sea Act 1971, to which the rules are attached in full as a schedule and, by section 1(2), are given the force of law. Under article I(e) of the Hague-Visby Rules, carriage by sea covers the period from the time when the goods are loaded on board the ship to the time they are discharged from the ship. However, as confirmed by the decision in Pyrene v Scindia Navigation  2 QB 402, the parties are free to agree on the role each is to play in the loading and the extent to which loading and discharging are brought within the carrier’s obligations is left to the parties themselves to decide. A UK Supreme Court decision (Volcafe Ltd v Cia Sud Americana de Vapores SA  UKSC 61) addressed the burden of proof under the Hague/Hague-Visby Rules, and the interaction between the carrier’s duty to care for cargo under article III.2 and the defences available under article IV.2. The Court held that where a shipowner fails to deliver the cargo in the same good order and condition as when shipped, the legal burden rests upon it to prove either that the damage occurred without a breach of its duty of care under article III.2, or that such damage was caused by an excepted peril. Where a shipowner intends to rely on an excepted peril, it must also prove that the damage was not caused by its negligence. This decision has, however, been narrowly interpreted in subsequent decisions of the Admiralty Court and Court of Appeal.
The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) will enter into force one year after 20 states have ratified the Rotterdam Rules. As of April 2021, there were 25 signatories to the Rotterdam Rules but only four ratifications (Spain, Togo, Congo and Cameroon). At present, it is not clear if and when the UK will ratify the Rotterdam Rules. However, a formal consultation process, including an impact assessment, will take place before the UK government takes a decision.
Are there conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multimodal bill of lading?
The Convention on the International Carriage of Goods by Road 1956 (CMR) has been implemented into English law by the Carriage of Goods by Road Act 1965. The provisions of the CMR apply to the international road leg of a carriage that comes before or after another mode of transport, including transport by sea.
The Convention for the Unification of Certain Rules for International Carriage by Air 1999 (the Montreal Convention), which replaces the Warsaw Convention in respect of international carriage by air, has been implemented into English law by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002. Article 38 of the Montreal Convention provides that in the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of the Convention shall only apply to the carriage by air.
The UK is also a signatory to the Convention Concerning the International Carriage of Goods by Rail 1980 (COTIF) and to the Protocol of Vilnius (Protocol of 3 June 1999) for the modification of the Convention, which is given force in English law by virtue of the Railways and Transport Safety Act 2003 and the Railways (Convention on International Carriage by Rail) Regulations 2005. COTIF 1980, as modified by the Protocol of 1999, applies to passengers, their luggage and goods under international transport documents made out for a journey over the territories of at least two member states, provided that carriage takes place exclusively over railway lines registered under the Convention.
Title to sue
Who has title to sue on a bill of lading?
Anyone who is a ‘lawful holder’ of a bill of lading has rights of suit under the contract of carriage as if they had been an original party to that contract. The ‘lawful holder’ is identified in the Carriage of Goods by Sea Act 1992, section 5(2) as:
- a person with possession of the bill who, by virtue of being the person identified in the bill, is the consignee of the goods to which the bill relates;
- a person with possession of the bill as a result of the completion, by delivery of the bill, of any endorsement of the bill or, in the case of a bearer bill, of any other transfer of the bill; or
- a person with possession of the bill as a result of any transaction by virtue of which he or she would have become a holder falling within (1) or (2) above had the transaction not been effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods to which the bill relates.
Once it is established that a person is the ‘lawful holder’, the next requirement for acquisition of rights is that the person must be regarded as having become the lawful holder in ‘good faith’. However, the concept of good faith is not defined in the 1992 Act.
To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?
The extent to which the terms of a particular charter party will be incorporated into a bill of lading depends upon the proper construction of the bill of lading incorporation clause.
Where the words used in the clause refer by name or number to a specific clause or clauses in the charter party, then those will be incorporated. Where the words in the bill of lading incorporation clause are general, for example, ‘all terms, conditions and exceptions of the charter party’, then only such terms as are appropriate to the carriage and delivery of the goods will be incorporated, and not terms collateral to those matters.
A charter party jurisdiction or arbitration clause is a collateral clause and will not be incorporated into a bill of lading unless it is specifically referred to in the incorporation clause, for example, ‘all terms, conditions and exceptions, including the arbitration clause in the charter party’.
A jurisdiction or arbitration clause in a charter party that is validly incorporated into a bill of lading is binding on a third party ‘lawful holder’ of the bill.
Demise and identity of carrier clauses
Is the ‘demise’ clause or identity of carrier clause recognised and binding?
Normally the bill of lading will be signed by or on behalf of the master and a bill so signed is prima facie an ‘owners’ bill’, imposing on the shipowner responsibility for performing the contract of carriage. This will be the case even though the bill might be issued on the charterers’ (or sub-charterers’) form when it is signed by the master.
An ‘identity of carrier’ clause in a bill of lading is a clause that provides that the contract contained in or evidenced by the bill is to be between the shipper and the shipowner. ‘Demise clauses’ are, in principle, valid and effective, but they are not conclusive and may be overridden if the bill of lading has been signed in such a way, and contains terms and conditions that indicate that it is a charterers’ bill rather than an owners’ bill and the responsibility for the carriage lies with the charterer. The bill of lading as a whole will be considered and the relevant question is how the bill is likely to be regarded by a reasonable person acquainted with the shipping trade.
Shipowner liability and defences
Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?
Where the bill of lading is a charterer’s bill but the carrier in fact is the shipowner, he or she may be liable in tort for damage to the cargo. However, this can raise complex questions relating to the ownership of the cargo at the time of the loss or damage, and whether the shipowner, as the actual carrier, can rely on the bill of lading terms, particularly the Hague or the Hague-Visby Rules. The general principle is that the actual carrier can do so only in exceptional circumstances, such as where there is a Himalaya clause that extends the protections in the bill to third parties. There is also authority that, in appropriate circumstances, a ‘bailment on terms’ arises such that when the shipowner (the actual carrier) takes physical possession of the cargo they do so on the terms of the bill of lading.
Deviation from route
What is the effect of deviation from a vessel’s route on contractual defences?
Deviation has been defined as an intentional and unreasonable change in the geographical route of the voyage as contracted. The key words are ‘as contracted’: there is a right at common law to depart from the normal route in order to avoid danger to the ship or cargo or to save human life. Similarly, article IV (4) of the Hague or Hague-Visby Rules specifically provides that any deviation in saving or attempting to save life or property at sea, or any reasonable deviation, should not be considered to be a breach of the rules or of the contract of carriage. Departure from the normal route in these circumstances will not be a deviation. Also, there may be an express ‘liberty clause’ in the contract of carriage.
However, when there is a deviation, this will be a breach of contract rendering the carrier liable for losses caused by the deviation and, if the loss arises while the vessel is deviating, the carrier will only escape liability if it can prove that the loss would have happened anyway. Furthermore, a deviating carrier may lose the benefit of clauses in the contract of carriage that are to its advantage and so be disentitled from relying on clauses exempting it from liability. In a decision (Dera Commercial Estate v Derya Inc ‘The Sur’  EWHC 1673 (Comm)), the Commercial Court decided ‘that a geographical deviation precluded a carrier from relying on the one-year time bar created by article III Rule 6 of the Hague Rules if the other party to the contract of carriage elected to terminate the contract’.
The issue of justifiable deviation has been much discussed in the context of piracy, namely whether a master or shipowner is justified in deviating from the vessel’s route to avoid capture of the ship. There is also much debate over specific deviation clauses in charter parties and whether they excuse the payment of hire in the event the vessel departs from the agreed route owing to the risk of being hijacked. This debate has led to the formulation of specific piracy clauses, including by the Baltic and International Maritime Council and the International Association of Independent Tanker Owners, with the intention of providing protection to shipowners. In addition, the marine insurance industry has developed loss of hire cover that can be purchased as a separate insurance or as an extension to the kidnap and ransom policy.
What liens can be exercised?
In the context of a discussion of carriage of goods by sea and bills of lading, relevant liens include the following.
The shipowner’s lien on the cargo
A lien on the cargo will normally be exercised either by refusing to discharge the cargo or warehousing it ashore pending payment of sums due. These are ‘possessory’ liens, which means that they are entirely dependent upon possession and will be lost if possession is relinquished. Liens in respect of freight arise in common law. Depending upon its terms, a contractual lien may include other amounts payable to the shipowner under the contract of carriage.
The shipowner’s lien on sub-freight or sub-hire
This type of lien will only arise if the contract of carriage is subject to the terms of a validly incorporated charter party containing a relevant lien clause. It can therefore only arise as a matter of contract. The property that is subject to the lien is the charterer’s right to be paid sub-freight or sub-hire under a sub-charter of the vessel, and the lien is exercised by the shipowner effectively intercepting the sub-freight or sub-hire and directing that it be paid to him or her instead of to the charterers. The English Commercial Court has clarified the nature of charter party liens and has held that a lien on sub-freight or sub-hire creates an assignment by way of a charge. A significant consequence of this decision is that, as a security interest, an equitable charge may require registration in certain jurisdictions.
Liens on the ship
This type of lien is not dependent upon possession and is exercisable by an action in rem commenced by arresting the vessel. A small number of claims within the admiralty jurisdiction (principally, those involving damage done by ships, salvage and in relation to seamen’s and master’s wages) will give rise to a maritime lien. Such a lien operates effectively as a charge on the ship that will follow the ship, notwithstanding a change of ownership other than by judicial sale. Other types of maritime claim, while they do not give rise to a maritime lien, are enforceable by an action in rem and arrest of the vessel and are commonly referred to as giving rise to statutory liens. The right to arrest in respect of such claims is lost if there is a change of ownership of the vessel but the right will be protected if court proceedings are commenced prior to the change of ownership.
Delivery without bill of lading
What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?
In the absence of an express term in the bill of lading, delivery of cargo without production of the original negotiable bill of lading is a breach of contract that will render the carrier liable for the value of the cargo to the ‘lawful holder’ of the bill entitled to immediate possession of the cargo. The position regarding non-negotiable bills of lading is not so clear, especially where the person seeking delivery of the goods is the consignee named on the bill of lading. There is no decision directly on the point, but the view has been expressed that goods should not be surrendered without the presentation of the original bill.
Notwithstanding the above, it is, in practice, not always possible for the original bills to reach a receiver prior to the arrival of the vessel at the discharge port. Accordingly, it is common for charter parties to include a clause requiring delivery against a letter of indemnity (LOI) or bank guarantee. Delivery against such a document will enable liability to be passed on to the indemnifier or guarantor. However, great care must be taken when drafting the LOI or bank guarantee so as to stipulate the party to whom delivery should be made. In one case, where owners delivered the cargo to someone other than the receiver named in the LOI without production of the bills of lading, the charterers’ undertaking in the LOI to provide security was held not to be engaged.
In 2012, the English Court of Appeal confirmed previous case law that the provisions of an LOI issued by receivers to voyage charterers requesting delivery of the cargo without the presentation of bills of lading may extend to owners in their capacity as charterers’ agents for the purpose of delivering the cargo, such that owners were entitled to enforce the LOI in their own name pursuant to section 1(1) of the Contracts (Rights of Third Parties) Act 1999 where the LOI provided an indemnity in favour of charterers’ ‘servants and agents’.
It remains unclear whether the one-year time limit under article III(6) of the Hague-Visby Rules applies to claims for loss or damage brought pursuant to an LOI issued to allow delivery of cargo without presentation of original bills of lading.
Shipper responsibilities and liabilities
What are the responsibilities and liabilities of the shipper?
Under article III(5) of the Hague-Visby Rules, the shipper is deemed to have guaranteed to the carrier the accuracy at the time of shipment of the information furnished by him or her as to the marks, number, quantity and weight of the cargo, and is obliged to indemnify the carrier for loss, damage or expenses resulting from any inaccuracies. Similarly, articles IV(2)(n) and (o) exempt the carrier from liability for loss of or damage to the cargo arising or resulting from insufficiency of packing and insufficiency or inadequacy of marks.
Other than its obvious duties in the light of the above provisions to ensure that the cargo is properly identified and packed, the only positive obligation on the shipper is the duty, which arises at common law, not to ship ‘dangerous’ goods without the consent of the carrier. This can include not only goods that are likely to cause physical loss of or harm to the ship, but also goods that might lead to the detention of the ship.
This duty is amplified and extended in article IV(6) of the Hague-Visby Rules and has been interpreted extremely widely to include just about any cargo that directly or indirectly causes or threatens to cause loss of life, damage to the ship or other cargo, delay or expenses to the carrier. One interesting decision considered the issue of whether the presence of rats in a cargo of soya bean meal pellets rendered the cargo dangerous. In that case, it was held that a cargo ‘loaded with a rat’ was not a dangerous cargo.
Emission control areas
Is there an emission control area (ECA) in force in your domestic territorial waters?
Yes. The North Sea (and the English Channel) ECA came into force in May 2005 and has been in effect since 22 November 2007, pursuant to Annex VI of the International Maritime Organization’s (IMO) MARPOL. Annex VI to MARPOL provides that the sulphur content in fuel oil in ECAs should not exceed 0.10 per cent m/m on and after 1 January 2015. ECAs differ in terms of what they limit (eg, the North Sea ECA limits sulphur oxide, as opposed to nitrogen oxides and particulate matter).
What is the cap on the sulphur content of fuel oil used in your domestic territorial waters? How do the authorities enforce the regulatory requirements relating to low-sulphur fuel? What sanctions are available for non-compliance?
The revised Annex VI to MARPOL (and the associated NOx Technical Code 2008) came into force on 1 July 2010 and imposed more stringent limits on sulphur content in fuel. In particular, the revisions provided for a reduction in the sulphur content of any fuel oil used on board ships outside the ECAs, to 3.5 per cent (from the previous 4.5 per cent) from 1 January 2012, followed by a further reduction to 0.5 per cent from 1 January 2020. A further amendment adopted by the IMO entered into force on 1 March 2020 and prohibits the carriage of non-compliant fuel oil for combustion purposes for propulsion or operation on board a ship (unless it is fitted with a scrubber). The sulphur limits applicable in ECAs were reduced to 1 per cent as of 1 July 2010 (from the previous 1.5 per cent), with a further reduction to 0.1 per cent from 1 January 2015. It is left to member states to ensure compliance with these requirements and to impose the appropriate penalties. In the UK, the authorities may detain or fine a vessel, irrespective of flag, for non-compliance.
To bring sulphur limits applicable within the EU in line with IMO-imposed levels, Directive (EU) 2016/802 came into force on 10 June 2016. The Directive was implemented into domestic law by the Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 (as amended) and the Merchant Shipping (Prevention of Air Pollution from Ships) and Motor Fuel (Composition and Content) (Amendment) Regulations 2014. Following the UK’s withdrawal from the EU, the UK enacted the Merchant Shipping and Other Transport (Environmental Protection) (Amendment) (EU Exit) Regulations 2019 to retain the existing requirements under the Directive.
Article 18 of the Directive states that it is left to member states to determine the applicable penalties for breaches, subject to the requirement that they must be effective, proportionate and dissuasive. In the UK, the authorities may detain a vessel, impose a fine or both, in the event of non-compliance with the Directive.
However, the ongoing disruption caused by the covid-19 pandemic has impacted efforts to ensure that compliance with the sulphur limits is enforced. The UK Maritime Coastguard Agency, for example, suspended routine port state control inspections last March 2020 with the focus shifting to containing the transmission of the pandemic.
Regulation and facilities
What domestic or international ship recycling regulations apply in your jurisdiction? Are there any ship recycling facilities in your jurisdiction?
International standards as to ship recycling are addressed in the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships 2009 (HKC). Although the HKC is not yet in force, the EU incorporated elements of the HKC regime into EU law through Regulation (EU) No. 1257/2013 (the 2013 Regulation) on 30 December 2013.
The 2013 Regulation remains applicable to the UK as of 1 January 2021, following the end of the transitional period in respect of the UK’s withdrawal from the EU, by the Ship Recycling (Facilities and Requirements for Hazardous Materials on Ships) (Amendment) (EU Exit) Regulations 2019 (the UK Ship Recycling Regulation).
The United Kingdom Maritime and Coastguard Agency (MCA) issued a guidance note on 5 February 2021, providing clarification on the relationship between the 2013 Regulation and the UK Ship Recycling Regulation.
Prior to 1 January 2021, UK ships (and EU flagged ships) of over 500 gross tonnage could, under the 2013 Regulation, only be recycled at approved facilities set out in the EU list, which included ship recycling facilities located in the UK as well as in EU member states (and also further afield).
As of 1 January 2021, UK ships over 500 gross tonnage can only be recycled at approved facilities set out in a list set out by the UK. The MCA has now provided a list of 44 approved ship recycling facilities, including those on the EU list, plus some additional ones. It is expected that the lists between the EU and the UK will diverge further over time.
Jurisdiction and dispute resolution
Which courts exercise jurisdiction over maritime disputes?
If the amount involved is more than £100,000, the claim can be brought in the High Court in London. Smaller claims are decided by the County Courts. The majority of maritime disputes are heard by the Commercial Court or Admiralty Court, which are specialist divisions of the High Court.
The following proceedings must be started in the Admiralty Court:
- proceedings in rem commenced in order to arrest a vessel;
- collision claims;
- limitation actions; and
- salvage claims.
Any other Admiralty claim, as defined in section 20 of the Senior Courts Act 1981, can be started in the Admiralty Court.
Service of proceedings
In brief, what rules govern service of court proceedings on a defendant located out of the jurisdiction?
The applicable rules governing service of court proceedings outside the jurisdiction are set out in Part 6 of the Civil Procedure Rules (CPR).
Broadly speaking, proceedings could be served on a defendant outside the jurisdiction without permission if the English court had jurisdiction under any of the instruments comprising of the European regime, in particular the Recast Regulation, which broadly determines jurisdiction where the defendant is domiciled in a member state (subject to some important exceptions). The significance of this is that, if the English court had jurisdiction over the claim under the European regime proceedings could be served outside the jurisdiction without obtaining the court’s permission and service could be, and had to be, effected under the EU Service Regulation (OJ 2008 L331/21).
As of 1 January 2021, after the transition period for the UK’s withdrawal from the EU ended, the EU rules governing the service of documents ceased to apply between the EU and UK. Service in certain EU member states is still possible via the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (Hague 1965) (which has 78 state contracting parties), although it is likely to be slower.
However, an amendment to Part 6 of CPR was made on 6 April 2021, to include a new wide-ranging provision, no longer requiring the court’s permission to serve proceedings out of jurisdiction where there is a contractual choice of English courts (including non-exclusive as well as asymmetric jurisdiction clauses in favour of the English court). This has a wider scope than the European regime as it means that, assuming that there is a valid jurisdiction agreement, permission is not required to serve out on defendants in jurisdictions outside of the European countries covered by the previous EU linked regimes, such as defendants in the former Soviet Union, the Caribbean and European offshore jurisdictions, Middle East and so forth.
Otherwise, the permission of the court is required. The claimant needs to establish that the claim has a reasonable prospect of success and that England and Wales is a proper place in which to bring the claim. There are a number of grounds listed in the Practice Direction to Part 6 that may qualify the claim as being suitable for service out of the jurisdiction.
Specific rules apply to service on a foreign state. However, no person is authorised or required to do something that is contrary to the law of the country where the claim or other document is to be served.
Is there a domestic arbitral institution with a panel of maritime arbitrators specialising in maritime arbitration?
The London Maritime Arbitrators Association (LMAA) specialises in maritime dispute resolution. As of April 2021, it has a panel of 37 full members. There are also supporting members who are available to accept appointments as arbitrators. The LMAA has four sets of rules:
- for small claims;
- fast and low-cost arbitration;
- intermediate claims and larger cases; and
- mediation terms.
The most recent set of LMAA rules (the Terms) came into effect on 1 May 2021 and apply to any arbitrations commenced from that date onwards.
The new terms have been amended with a view to addressing the evolving changes of the commercial and legal environment, especially in light of the recent challenges posed by covid-19. The most significant amendments reflect the increased usage of teleconferencing and e-signatures, the new witness evidence rules of the English Court and the need for gender equality.
According to the LMAA website, in 2020, LMAA arbitrators received a total of 3,010 arbitration appointments (2019: 2,952).
Foreign judgments and arbitral awards
What rules govern recognition and enforcement of foreign judgments and arbitral awards?
A foreign judgment is not automatically enforceable in England and Wales. There are a number of regimes for the recognition and enforcement of foreign judgments depending, in broad terms, on whether they are judgments of courts in Europe (broadly speaking, for the purposes of this response, member states of the EU and the European Free Trade Association), in Commonwealth countries or elsewhere in the world.
Prior to Brexit, the UK was subject to the Brussels Convention/Brussels I Regulation, recast in 2012 (the Recast Regulation) on the recognition and enforcement of judgments from the member states of the EU.
In general, the Recast Regulation provides a common basis for deciding where parties are to sue and be sued and for courts to decide whether they should accept or reject jurisdiction. It also has rules on related actions (lis alibi pendens) and a common basis for recognising and enforcing judgments.
Under the Recast Regulation, primacy is given to the chosen EU court and the non-chosen court must stay its proceedings unless and until the chosen court declares that it does not have jurisdiction.
Following the withdrawal of the UK from the EU, the rules under the Recast Regulation have ceased to apply between the EU and the UK for any proceedings commencing on or after 1 January 2021. To replace this, the UK applied on 8 April 2020 to accede to the 2007 Lugano Convention.
The Lugano Convention is a treaty that provides a streamlined enforcement process with most, but not all, of the benefits of the Recast Regulation and is currently between the EU and Iceland, Norway and Switzerland.
In order for the UK to accede to the Lugano Convention, the unanimous approval of the Contracting States (including the EU) is required and is, at the time of writing, still pending. However, UK’s accession has been placed under serious doubt following the EU Commission’s recent (non-binding) recommendation to the European Parliament and the Council of the European Union on 4 May 2021, advising the EU to reject the proposed accession.
Until the UK becomes a party to the Lugano Convention (if at all), the Hague Convention on Choice of Court Agreements, 2005 may apply. It has been in force in the UK since 1 October 2015, when the EU acceded to it. However, following Brexit, the UK has acceded to the Hague Convention in its own right (effective from 1 January 2021). The Hague Convention, to which all EU member states are a party, requires the court designated in an exclusive jurisdiction agreement to hear the case and generally prevents courts of other contracting states from hearing parallel proceedings.
The Hague Convention is, however, narrower in scope than the Recast Regulation and the Lugano Convention. It only applies to exclusive jurisdiction clauses.
There is also some uncertainty about whether courts of EU member states will consider the UK as being a ‘contracting state’ under the Hague Convention when considering exclusive jurisdiction clauses agreed between 1 October 2015 and 1 January 2021. It certainly applies since the beginning of this year but only the UK has passed legislation providing that it does apply during that earlier period and the European Commission’s position is that it does not. One way to address this potential issue may be to renew any contracts entered into before 1 January of this year that contain exclusive jurisdiction clauses.
If the Hague Convention does not apply, within the EU, the UK only has pre-existing bilateral treaties with Austria, Belgium, France, Germany, Italy, the Netherlands and Norway. However, these have long been disused because of the Recast Regulation, and they are only applicable to money judgments. They require registration of the judgment in the enforcing state and there is greater scope for challenge than under the Recast Regulation.
The English common law has an established set of rules that previously applied to countries in the rest of the world and so, if the UK does not become a state party to Lugano, where Hague 2005 and the bilateral treaties do not apply, those rules will apply to EU states (they will likely require registration under the Foreign Proceedings (Reciprocal Enforcement) Act 1933, rather than being enforced under the common law).
The Commonwealth and other statutory regimes
The Administration of Justice Act 1920 governs the recognition and enforcement of judgments from Commonwealth and other countries and the Foreign Judgments (Reciprocal Enforcement) Act 1933 governs the recognition and enforcement of judgments from a further 11 countries. Broadly, under these acts, a foreign judgment may be registered for enforcement in England and Wales. The procedure for registration is relatively straightforward. The requirements for registration to take place include the judgment must not have been obtained by fraud or be contrary to English public policy and the court that issued the judgment must have had jurisdiction. Once registered, the judgment takes effect as if it were an English judgment.
Recognition and enforcement of judgments from the courts of countries that do not come within the statutory regimes are subject to common law rules. In very brief terms, these require the commencement of a new action on the judgment. The underlying claim will not be examined on the merits and, provided that the original court had jurisdiction according to English conflict of law rules, that the judgment is for a debt or a definite sum of money (not being a tax, fine or penalty), is final and conclusive and its enforcement would not be contrary to public policy, then the person seeking enforcement will be entitled to judgment in England for the amount due under the foreign judgment.
As of March 2021, the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) has 168 contracting states. The majority of arbitration awards can, therefore, be enforced under the New York Convention, to which the UK is a party. Provisions for the enforcement of arbitral awards are set out in section 66 of the Arbitration Act 1996. Enforcement of non-New York Convention awards will be governed by section 66 of the Arbitration Act and by common law, the requirements are that the arbitration agreement must be valid under its governing law and the award must be final. The award will not be enforced if the arbitrators had no jurisdiction, the award was obtained by fraud, the proceedings were contrary to natural justice or where its enforcement would be contrary to public policy. The recognition and enforcement of foreign arbitral awards are unaffected by Brexit.
Are asymmetric jurisdiction and arbitration agreements valid and enforceable in your jurisdiction?
Asymmetric jurisdiction clauses, which allow one party to sue in any jurisdiction while restricting the other party to only one jurisdiction, have been common in commercial contracts, and especially financial agreements, since the 1960s. Such clauses have been held by the English courts to be valid and exclusive under the Recast Regulation. However, as of 1 January 2021, the rules under the Recast Regulation no longer apply to the UK.
Further, the validity of such clauses under EU law was called into question in 2012 when the French Court of Cassation appeared to hold that they were ineffective under the Recast Regulation.
Whether such clauses are enforceable under the Hague Convention 2005 is not certain. Whilst this issue is yet to be decided by an English court, the Court of Appeal has recently suggested in obiter comments in Etihad Airways PJSC v Lucas Flöther  EWCA Civ 1707 that the provisions of the Hague Convention are unlikely to extend to asymmetric jurisdiction clauses.
Lenders may therefore wish to include mutual exclusive English court jurisdiction clauses in any facility agreements (under English law) with EU borrowers, rather than asymmetric jurisdiction clauses, to ensure any resulting dispute, and English court judgment arising from it will be within the scope of the Hague Convention.
Breach of jurisdiction clause
What remedies are available if the claimants, in breach of a jurisdiction clause, issue proceedings elsewhere?
A party may seek an anti-suit injunction, which is a permanent injunction restraining a party from commencing or continuing proceedings in a foreign court in breach of an exclusive jurisdiction clause or an arbitration agreement. Breach of the injunction will be a contempt of court and any judgment obtained will not be recognised or enforced in England.
In a recent decision, Enka v Chubb  UKSC 38, the Supreme Court upheld the Court of Appeal’s decision to reverse a decision of the first instance judge and grant an anti-suit injunction in restraint of proceedings brought in Russia in breach of a clause that submitted disputes to ICC arbitration, ‘seated’ in London. The Supreme Court‘s judgment confirmed that in choosing England as the seat of the arbitration, parties choose to submit to the supervisory jurisdiction of the English court. This, therefore, includes the English court’s powers to grant injunctive relief to restrain a party from commencing or pursuing competing court proceedings, in breach of obligations under the arbitration agreement.
However, in 2009, the European Court of Justice (ECJ) held that the courts of the countries in which the Brussels Convention or Brussels Regulation and Lugano Convention apply could not issue anti-suit injunctions to restrain proceedings in another state where the particular Convention applies. Pursuant to these Conventions, where proceedings are commenced in more than one member state and those proceedings relate to the same cause of action between the same parties, the member state court to which the dispute is later referred must stay its proceedings in favour of the other court. It is for the court to which the dispute was first referred to decide whether it has jurisdiction.
Furthermore, while the Brussels Regulation was expressly stated not to apply to arbitration, the ECJ held that courts of an EU member state could not issue anti-suit injunctions to restrain court proceedings in another EU member state where proceedings have been commenced in breach of an arbitration agreement. The ECJ found that court proceedings and judgments relating to arbitration, including whether the arbitration agreement is valid, fall within the scope of the Brussels Regulation.
Anti-suit injunctions continue to be available in England to restrain breaches of English jurisdiction and clauses subjecting disputes to arbitration in England and Wales where court proceedings have been commenced outside the EU. The English Commercial Court has also ruled that an English arbitral tribunal can award damages or an indemnity for breach of a contractual obligation to arbitrate, including where that breach is by way of commencement of proceedings in another EU member state court pursuant to the Brussels Regulation. Furthermore, the ECJ has held that it is not incompatible with the Brussels Regulation for a member state court to recognise an arbitration award that contains an anti-suit injunction. The Regulation does not prevent a court in an EU member state from recognising and enforcing (or from refusing to recognise and enforce) such an award, either pursuant to its national law or the New York Convention.
The European Court’s interference with arbitration (especially as arbitration is expressly excluded from the Brussels Regulation) led to calls for reform of the Brussels Regulation. As a result, revisions to the Brussels Regulation came into force in member states on 10 January 2015. The UK chose to opt into the ‘recast’ regulation (the Recast Regulation). Among other things, the Recast Regulation provides that, where parties have conferred exclusive jurisdiction in their agreement on a member state court, any other member state court shall stay proceedings brought before it until the court provided for in the jurisdiction agreement rules on its own jurisdiction. This is so irrespective of in which court proceedings are commenced first. The Recast Regulation also clarifies the scope of the arbitration exception and confirms that the New York Convention takes precedence over the Brussels Regulation and, therefore, member state courts are permitted to recognise and enforce an arbitral award even if it is inconsistent with another member state court’s judgment. The Recast Regulation further confirms that a member state court can decide on the validity of an arbitration agreement even where the matter has been referred to another member state court first and also that the regulation does not apply to any court proceedings relating to or in support of arbitration. The Recast Regulation does not, however, expressly deal with the legitimacy of court-ordered anti-suit injunctions within the EU.
As of 1 January 2021, however, the Recast Regulation no longer applies to the UK. While EU member states will still not be able to restrain parties from wrongfully commencing proceedings in a member state court, English courts are now free to give effect to the English seat of arbitration or jurisdiction agreement between the parties and to prevent proceedings being brought (or continued) in any EU member state in breach of that agreement.
But this may be lost if the UK is allowed to accede to the Lugano Convention and it is arguably contrary to Hague 2005. It remains to be seen if they would be recognised in other courts (though the main effect tends to be on the other party and the risks of ignoring the English court’s order and being in contempt of court).
What remedies are there for the defendant to stop domestic proceedings that breach a clause providing for a foreign court or arbitral tribunal to have jurisdiction?
The English courts have powers to stay proceedings started in England on the grounds that there is an exclusive jurisdiction or arbitration clause or on the grounds of forum non conveniens, that is: if the defendant demonstrates that there is a more appropriate forum for trial of the action. The court will take into account such factors as any foreign proceedings currently under way, rules as to costs of proceedings in the foreign forum or if the alternative forum has little experience of handling complex commercial disputes.
Limitation periods for liability
What time limits apply to claims? Is it possible to extend the time limit by agreement?
Under the Limitation Act 1980, the ordinary time limit for actions founded on tort or contract, except for personal injury claims, is six years from the date on which the cause of action accrued. Where the loss or damage is latent and was not known about prior to the expiry of the limitation period, the claimant has three years from either the date of knowledge of loss or the date when it ought reasonably to have known of the loss. This applies to claims in both contract and tort but, except in actions involving personal injury, there is an overriding time limit of 15 years.
Where the claim is for death or personal injury the limitation period will expire three years from the date of the act or omission that caused the death or personal injury, or knowledge if later.
Where the action is ‘upon a speciality’, which would be the case in relation to a contract made by deed, the period is 12 years.
Various international conventions prescribe limitation periods for certain specific claims. For example:
- one year for cargo claims under the Hague or Hague-Visby Rules;
- two years for collision claims under the Collision Convention 1910; and
- two years for salvage claims under the International Convention on Salvage 1989.
Time limits can be extended by agreement. In practice, an agreement must be reached before the time limit has expired. If, by virtue of the application of English conflict of laws principles, a foreign law applies to the claim, then the applicable time limit may be that of the foreign law, not English law, and the ability or otherwise to extend that time limit by the agreement will be a matter of that foreign law.
May courts or arbitral tribunals extend the time limits?
The expiry of a limitation period under the Limitation Act 1980 or any other Act of Parliament usually provides the defendant with a complete defence to the claim made against him or her, as it is contrary to public policy for potential defendants to be indefinitely exposed to litigation. Under section 33 of the Limitation Act 1980, the court has a discretionary power to extend a time limit in certain circumstances, but only in respect of actions for personal injuries or death.
The court has the power to extend most procedural time limits, for example by granting the claimant an extension of time to serve proceedings on the defendant in certain circumstances.
English arbitral tribunals have the power to extend time limits for commencing arbitral proceedings. Once any available arbitral process for extending time to begin arbitration proceedings has been exhausted, the court has the power under section 12 of the Arbitration Act 1996 to extend the time limit for commencement of arbitral proceedings in restricted circumstances.
Maritime Labour Convention
How does the Maritime Labour Convention apply in your jurisdiction and to vessels flying the flag of your jurisdiction?
The Maritime Labour Convention (MLC) entered into force internationally on 20 August 2013. As of April 2021, 97 countries, including the UK, had ratified it. Each country that ratifies the MLC is under an obligation to apply its standards in its domestic law. Six ‘red ensign’ states (Isle of Man, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands (Malvinas) and Gibraltar) have ratified (by extension) the MLC and the rest are expected to follow suit.
The MLC came into force in the UK on 7 August 2014. Shipowners must ensure that vessels flying the UK flag comply with its requirements. Subject to certain exceptions, the MLC applies to vessels of all tonnages, whether publicly or privately owned, that are ordinarily engaged in commercial activities. As a general rule, vessels of 500 gross tonnage or over must obtain certification from the Maritime and Coastguard Agency (UK flag state control), which the vessel must carry on board. The certification documents – the Declaration of Maritime Labour Compliance and the Maritime Labour Certificate – are evidence that the vessel is prima facie compliant for the purposes of port state control in other state parties. Carrying the certification should avoid the need for port state control to carry out a physical inspection of the vessel.
UK port state control will inspect vessels for MLC compliance when they call at a UK port. In the case of a vessel flying the flag of a state party, the vessel should be able to present certificates issued by the relevant flag state authority or appointed recognised organisation evidencing that the vessel is compliant. The principle of ‘no more favourable treatment’ contained in the MLC will additionally require UK port state control to inspect vessels flying flags of non-ratifying countries for compliance with the MLC. In that case, a physical inspection of the vessel will need to be carried out by port state control to verify that the vessel complies with the MLC’s 14 minimum requirements regarding seafarers’ working and living conditions. This may be a slower process than the submission of certification by vessels whose flag state is a party to the MLC. If the vessel does not comply with those minimum conditions, it may be subject to delays in port, and possibly detention.
Relief from contractual obligations
Is it possible to seek relief from the strict enforcement of the legal rights and liabilities of the parties to a shipping contract where economic conditions have made contractual obligations more onerous to perform?
The English courts robustly enforce the provisions of freely negotiated commercial contracts between parties of similar bargaining power. The exception to this is legislation aimed at protecting consumers. Attempts to argue that a contract has been frustrated, for example, because economic conditions have made it more onerous to perform, are usually unsuccessful. Furthermore, there is no concept of force majeure in English common law similar to the civil law concept. Force majeure will therefore only apply to English law contracts where the parties have expressly incorporated a force majeure clause. Commercial parties who wish to protect themselves from extreme economic and financial movements should, therefore, consider incorporating suitable provisions into their contracts, such as price escalation clauses, material adverse change clauses and force majeure clauses. This advice has become more relevant in light of the economic effects of the coronavirus pandemic.
Other noteworthy points
Are there any other noteworthy points relating to shipping in your jurisdiction not covered by any of the above?
A new approach to witness statements in the UK Business and Property Courts (which includes the Admiralty Court) was recently approved by the Civil Procedure Rule Committee and is expected to have a significant impact on how trial statements are produced and the form they will take. New rules now apply under Practice Direction 57AC to the Civil Procedure Rules for trial witness statements signed on or after 6 April 2021 (save for certain exceptions, such as insolvency proceedings).
The reason for the change is concern that witness statements were becoming too long and over-lawyered. The stated purpose of the new rules is to promote and enforce best practices in the preparation of witness statements. The new requirements include:
- the witness is to list any documents referred to in the statement;
- the preparation should involve as few drafts as possible;
- an enhanced statement of truth, which now includes more detailed wording effectively confirming the witness’ compliance;
- legal representatives serving the witness statement must also endorse the statement with a signed certificate of compliance with the rules; and
- more stringent sanctions for non-compliance, including court orders striking out of part or all of a trial witness statement, the statement to be re-drafted, the witness to give some or all of their evidence in chief orally and adverse costs orders.
Update and trends
Key developments of the past year
Are there any emerging trends or hot topics that may affect shipping law and regulation in your jurisdiction in the foreseeable future?
For the past year, the UK, and indeed the world, has faced what is probably the most disruptive event of our generation in the form of covid-19. Whilst the rollout of the vaccine programme appears to be increasingly effective in restricting the transmission of the disease, the implications of covid-19 on the maritime industry will continue to be felt over the coming months and, most likely, years.
Alongside covid-19, Brexit is the other major topic that has dominated the headlines in the maritime industry. Of particular note is the sanctions regime. Prior to the UK’s withdrawal from the EU, the UK’s sanctions regime derived from that of the EU, through EU regulations that had a direct effect on member states. As of 1 January 2021, the EU sanctions regime is no longer applicable to the UK. The UK now has its own autonomous sanctions and export control regime, which is principally regulated by the Sanctions and Anti-Monetary Laundering Act 2018 (the Sanctions Act). These UK sanctions apply to the conduct of all UK persons, wherever they are in the world, including branches of UK companies based overseas.
The UK sanctions broadly mirror the existing EU sanctions but there are some key differences, with the UK sanctions being more detailed than their EU counterparts in some areas. For example, there are new, more comprehensive prohibitions that apply to Russia and Syria in relation to energy-related products and crude oil and petroleum-related products respectively.
It is expected that the sanctions regimes between the EU and the UK will likely diverge over time.
In December 2020, the UK government announced plans for reforms to the country’s tonnage tax regime but, at the time of writing, details are yet to be published.
What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?
In March 2020, the UK fast-tracked the Coronavirus Act 2020 through parliament, introducing emergency powers in order to enable public bodies to respond to the covid-19 pandemic.
One of the powers enables the Home Secretary to require that port and airport operators temporarily close or suspend operations if there are Border Force staff shortages and to redirect arrivals at UK borders to key locations where there will be sufficient Border Force officers to process them.
Over the past year, the UK government and the UK Maritime and Coastguard Agency (MCA) have also published information and guidance notes for seafarers, ports and shipping organisations to adopt best practices in the battle against the covid-19 pandemic. As a recent example, the MCA issued the Marine Information Notice (MIN) 656 in March 2021, providing detailed guidance for ship owners and managers to boost understanding of the long-term impacts of covid-19 on the wellbeing of their crew and adopt mitigating strategies.
The covid-19 pandemic has also presented (and will continue to present) a number of legal issues for shipping operators, especially in the context of shipping contracts. Against the backdrop of covid-19 severely disrupting the supply chains and causing delays and difficulties in contractual performance, ship operators are having to evaluate their contractual positions. Of key importance is recognising the governing law provision because this will determine, by way of example, how force majeure and frustration and termination provisions are interpreted. Unlike in many other legal systems, force majeure, for example, is not a free-standing concept recognised by English law. There are new standard clauses being introduced for charter parties to address the effect of the virus on crew changes.
Last May 2020, the UK government issued a document ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the covid-19 emergency’. While this guidance has no legal effect, it encourages contract parties to act ‘fairly’ and ‘reasonably’ towards each other with regard to the performance and enforcement of contracts.
While the global situation with regard to the pandemic continues to evolve rapidly, it is advisable that shipping companies, in the context of charters, consider seeking legal advice in relation to reviewing the terms and conditions of existing charter parties to manage any exposure, and ensuring that the implications of covid-19 are addressed in so far as possible when negotiating new charter parties.
Law stated date
Give the date on which the information above is accurate.
21 May 2020.