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2021 Edition of Lexology Getting the Deal Through: Shipping 2021 Shipping 2021 Contributing editors Kevin Cooper and Kirsten Jackson © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Shipping [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editors Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Kevin Cooper and Kirsten Jackson The information provided in this publication MFB Solicitors is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the thirteenth edition of Shipping, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. June and July 2020. Be advised that this is Throughout this edition, and following the unique Lexology Getting The Deal Through format, a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes new chapters on Angola, Ecuador, Mozambique, Portugal, Russia © Law Business Research Ltd 2020 and United Arab Emirates. No photocopying without a CLA licence. Lexology Getting The Deal Through titles are published annually in print. Please ensure you First published 2008 are referring to the latest edition or to the online version at www.lexology.com/gtdt. Thirteenth edition Every effort has been made to cover all matters of concern to readers. However, specific ISBN 978-1-83862-405-7 legal advice should always be sought from experienced local advisers. Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu- Printed and distributed by tors to this volume, who were chosen for their recognised expertise. We also extend special Encompass Print Solutions thanks to the contributing editors, Kevin Cooper and Kirsten Jackson of MFB Solicitors, for their Tel: 0844 2480 112 continued assistance with this volume. London July 2020 Reproduced with permission from Law Business Research Ltd This article was first published in October 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Global overview 5 Hong Kong 117 Kevin Cooper and Kirsten Jackson Andrew Rigden Green, Elizabeth Sloane and Evangeline Quek MFB Solicitors Stephenson Harwood LLP Angola 7 Italy 128 João Afonso Fialho, Filipe Rocha Vieira, José Miguel Oliveira and Filippo Pellerano and Francesco Gasparini Ivo Calueio Mahumane Studio Legale Mordiglia VdA Japan 138 Australia 16 Shuji Yamaguchi Geoff Farnsworth and Nathan Cecil Okabe & Yamaguchi Holding Redlich Malaysia 146 Brazil 25 Siva Kumar Kanagasabai and Trishelea Ann Sandosam Camila Mendes Vianna Cardoso, Godofredo Mendes Vianna and SKRINE Lucas Leite Marques Kincaid | Mendes Vianna Advogados Malta 156 Kevin F Dingli and Suzanne Shaw Chile 36 Dingli & Dingli Law Firm Max Morgan and Ricardo Rozas Jorquiera & Rozas Abogados Marshall Islands 169 Klaus Dimigen China 49 Ehlermann Rindfleisch Gadow Li Chenbiao Zhong Lun Law Firm Mozambique 176 João Afonso Fialho, Filipe Rocha Vieira, José Miguel Oliveira and Colombia 62 Ivo Calueio Mahumane Javier Franco VdA Franco & Abogados Asociados Netherlands 185 Cyprus 69 Arnold van Steenderen and Charlotte van Steenderen Michael McBride and Yiannis Christodoulou Van Steenderen MainportLawyers Chrysses Demetriades & Co LLC New Zealand 202 Ecuador 77 Simon Cartwright and Zoe Pajot Leonidas Villagran Hesketh Henry Villagran Lara Attorneys Nigeria 211 Egypt 86 Chisa Uba and Funke Agbor Hamdy Madkour and Mohamed Farid ACAS-LAW Eldib Advocates Norway 221 France 94 Anne Dahl Frisak, Geir Gustavsson, Per Aksel Hammer Krog and Christine Ezcutari Sondre Vegheim Norton Rose Fulbright Advokatfirmaet BAHR AS Ghana 106 Peru 235 Augustine Kidisil, Kimathi Kuenyehia, Sr and Paa Kwame Larbi Asare Francisco Arca Patiño and Carla Paoli Consigliere Kimathi & Partners Corporate Attorneys Estudio Arca & Paoli, Abogados 2 Shipping 2021 © Law Business Research 2020 Contents Portugal 243 Turkey 287 Ana Cristina Pimentel Çağlar Coşkunsu Ana Cristina Pimentel & Associados Sociedade de Advogados Cavus & Coskunsu Law Firm Russia 251 United Arab Emirates 297 Alexander Mednikov Bashir Ahmed, Chatura Randeniya and Mevan Bandara Jurinflot International Law Office Afridi & Angell Singapore 258 United Kingdom 305 Ajaib Haridass, Augustine Liew, Thomas Tan and V Hariharan Kevin Cooper and Kirsten Jackson Haridass Ho & Partners MFB Solicitors South Korea 271 United States 322 Sung Keuk Cho and Thomas Lee Bruce G Paulsen and Brian P Maloney Cho & Lee Seward & Kissel LLP Taiwan 279 Daniel T H Tsai Lee and Li Attorneys at Law www.lexology.com/gtdt 3 © Law Business Research 2020 United States Bruce G Paulsen and Brian P Maloney Seward & Kissel LLP NEWBUILDING CONTRACTS third party by a defective product placed into the stream of commerce, and are largely irrelevant to warranty claims. Transfer of title 1 When does title in the ship pass from the shipbuilder to the SHIP REGISTRATION AND MORTGAGES shipowner? Can the parties agree to change when title will pass? Eligibility for registration 5 What vessels are eligible for registration under the flag Title in the vessel typically passes when the shipbuilder delivers the of your country? Is it possible to register vessels under ship and the shipowner accepts delivery, depending on the terms of the construction under the flag of your country? contract and the law of the state where the vessel is being constructed. Construction contracts are state law contracts. The parties can nego- As defined in section 3 of Title 1 of the US Code, the word ‘vessel’ tiate when title transfers to the buyer, and contracts may reflect title in a includes ‘every description of watercraft or other artificial contrivance partially constructed vessel passing to the buyer based on construction used, or capable of being used, as a means of transportation on water’. milestones. In some jurisdictions, title insurance may also be obtained Recent interpretations of that expression by the United States Supreme based on construction milestones. Court have injected an element of uncertainty into what legal practi- tioners once thought was a well-settled area of law, but the prevailing Refund guarantee view is that, for these purposes, the definition includes offshore drilling 2 What formalities need to be complied with for the refund rigs and mobile offshore drilling units. guarantee to be valid? Any vessel of at least five net tons not documented under the laws of a foreign country is eligible for registration with the National Vessel Shipbuilding contracts are not maritime contracts and are governed Documentation Center (NVDC), provided it is owned by a citizen of the by state law. Refund guarantees are, similarly, state law contracts and United States. Federal documentation of a vessel allows the vessel to typically issued by the builder’s bank, parent or some other guarantor. fly the US flag and makes it eligible to become subject to a ‘preferred Formalities will vary according to state law, and are simply a matter of mortgage’, which is generally considered to entitle the mortgagee to contract and state law. superior treatment compared with state-titled vessels. One can apply for documentation while a vessel is under construc- Court-ordered delivery tion in order to pre-obtain the official number, but a permanent, full-term 3 Are there any remedies available in local courts to compel certificate of documentation cannot be issued until completion. delivery of the vessel when the yard refuses to do so? 6 Who may apply to register a ship in your jurisdiction? Again, because shipbuilding contracts are not maritime contracts and are subject to state law (including the Uniform Commercial Code (UCC) A US-flagged vessel must be owned by a US citizen to be documented applicable in all states except Louisiana), remedies would depend on with the NVDC. However, there are different levels of citizenship with the contract’s choice of law provision, or the law of the state where the respect to certain entities and for certain trades (eg, a corporation contract is performed. A buyer may have a right to seek the equitable seeking to register a vessel must be formed under the laws of the relief of specific performance of the contract if the vessel is unique or United States or a state thereof, its chief executive officer must be a US has been identified to the contract under the UCC. citizen, no more of its directors may be non-citizens than a minority of the number needed to constitute a quorum of the board, but the share- Defects holders need not be US citizens). If the vessel is intended to be used in 4 Where the vessel is defective and damage results, would the US coastwise trade (or the American fisheries trade), the corpora- a claim lie in contract or under product liability against the tion must be at least 75 per cent owned by US citizens. The complete shipbuilder at the suit of the shipowner; a purchaser from rules and procedures for determining when an entity (as opposed to an the original shipowner; or a third party that has sustained individual) is a US citizen are voluminous and the foregoing is a mere damage? example. A full analysis is beyond the scope of this summary and each case must be looked at thoroughly and independently. Claims for defects in vessel construction are typically state law claims brought under the UCC or the construction contract’s warranty provi- sions, or both.
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