Volume 39 April 2008 Number 3 the Presi
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______________________________________________________________________________ VOLUME 39 APRIL 2008 NUMBER 3 INDEX TO THIS ISSUE days of lively, interactive sessions were again superbly chaired by Professor Weiss PRESIDENT’S CORNER…………...….....……….Page 1 and the SMA’s Austin Dooley, PhD. THE HIDDEN TRUTH……………………...….….Page 2 Also in February, NYMAR put on a D.G.HARMONY DECISION……….……….……..Page 3 vivid afternoon lecture/discussion by simu- ANDREW J. BARBERI DECISION……………….Page 5 lating the COSCO BUSAN accident (alli- sion with a bridge in San Francisco Bay and THE APPLICATION OF COGSA TIME BAR IN NEW YORK ARBITRATION………..….Page 7 subsequent oil spill) as having taken place in A COMMERCIAL MAN……...…………….……..Page 9 New York harbor: How prepared would New York be? The US Coast Guard CLEAN SHIPS…………………………...………..Page 12 (USCG) representatives from the New York HALL STREET V. MATTEL – EXPANDED JUDICIAL REVIEW…………………….…..Page 16 and New Jersey environmental agencies (EPA), spill responders, P&I Club, port au- SMA LUNCHEON SPEECHES…………......……Page 16 thority, pilot association, Owner and Char- OIL SPILL RESPONSE UPDATE..…………..…..Page 17 terer’s representatives all made this frighten- SMA WORKSHOP REPORT……….…….………Page 19 ingly real, but demonstrating that New York PUBLISH WE DO!...................................................Page 20 would be prepared to deal with such a mess, (MORE ON) SMA AWARDS……..………………Page 21 literally speaking. Further details on both BOOK REVIEW………………………..………….Page 21 events are provided in this issue. PEOPLE AND PLACES……………….………….Page 21 Then in March the whole shipping SOME PERSONAL NOTES………………………Page 23 world, at least so it seemed, came together in Stamford for CMA’s Shipping 2008 Confer- IN MEMORIAM – Neil J. Carey..…………...……Page 23 ence. And let us not forget the many visiting firemen (an expression for lawyers, barris- THE PRESIDENT’S CORNER ters, arbitrators and/or other shipping digni- taries from abroad or far away) to keep our Easter has come and gone and so has lunch tabs running. Spring, even if only as a calendar date, it is What’s ahead: first of all, we are barely April and events have been and are planning a fancy birthday party for our- th keeping up a fast pace. selves. It is the SMA’s 45 anniversary and The fourth annual SMA seminar on we aim to celebrate in style. The date is “Maritime Arbitration in New York under September 24 and the venue is the Union SMA Rules” in February had a majority of League Club. More details will follow. foreign attendees, including London, Nige- Then there is Maritime Americas Week ria, Venezuela and Mexico (we had two last 2008 in Miami in May (an annual event, but minute cancellations – isn’t it ever so frus- apparently this being the first), at which trating when business gets in the way). Two SMA members will participate in a Mock 2 THE ARBITRATOR APRIL 2008 Arbitration in conjunction with Petro- the England manager took a lot of stick for spot/IBIA’s Bunker Arbitration Experience, that umbrella. He let the fuss die down for a dealing with bunker related dispute issues. couple of months before then ruining every- We also hear that the busy people thing by claiming that he had only used the running NYMAR are working on another umbrella to keep his notebook dry. Reckon. afternoon seminar sometime between now All sorts of people are susceptible to and June. Finally, keep planning on attend- this foot-in-mouth syndrome. A barrister ing ICMA XVII in Hamburg, October 2009. who should have known better once told an I encourage the membership to par- ICMA meeting that it was not a good idea ticipate in these interesting events. Watch for London maritime arbitrators to publish our website and stay tuned, but in the mean- their awards because this would lead to “a time enjoy the spring, if and when it actually proliferation of citations of authority.” You shows up. try proliferating nothing. Then he com- pounded it by saying that publication had to Klaus Mordhorst be in a user-friendly format. Fat chance. The only vaguely comparable gaffe is that committed by a soldier in the British THE HIDDEN TRUTH armed forces who, some years ago, was by Chris Hewer court-martialed for coming back to barracks after lights-out, climbing in through his hut Roughly 95 per cent of people in window, and falling into bed in a drunken the world claim that they have never told a stupor with a lit cigarette still in his mouth, lie. That figure is official: 95 per cent, mind. thereby setting fire to the bed and to the en- But it depends on your definition of a lie. Do tire hut. His subsequent plea in court was, you favour “gross falsification or misrepre- “Not guilty, m’lud. The bed was already on sentation of the facts, with constant repeti- fire when I got into it.” tion and embellishment to lend credibility?” Obfuscation (let us call it that, for Or do you prefer the old English maxim, want of a better word, although heaven “Liar, liar, pants on fire?” knows there must be thousands) has reached American author Steven Covey once new heights of sophistication in the elec- said, “When you make a mistake, admit it, tronic age. At this very moment there is correct it, and learn from it – immediately.” somebody trying to hawk an “enterprise- Easier said than done. wide application for metadata removal and There is a fine line between telling a metadata management in law firms which lie and just giving voice to what you hope is uses sophisticated technologies to remove the truth and then not knowing when to stop. visible metadata and clean the hidden or dif- Take the former manager of the England ficult-to-reach file elements.” football team (nobody else has snapped him Oh, that old metadata chestnut, you up yet), who last year stood on the touchline are probably thinking. And you’d be right. protecting his lovingly created hairstyle un- For those who did not know, metadata is der a huge umbrella while watching his side data about data. The word ‘meta’ comes being eliminated from the European Cham- from the Greek, where it means ‘after’ or pionships. ‘beyond’. In epistemology, the prefix ‘meta’ Real football managers don’t stand is used to mean ‘about’, which just happens under umbrellas. They wear cheesecutters, to be a word that causes more trouble in and stand out in the rain. Not surprisingly, 3 THE ARBITRATOR APRIL 2008 shipping disputes than any other, and is by COGSA LIABILITY / no means exclusive to the Greeks. DG HARMONY But enough of that. The product on offer allows law firms the luxury of not hav- The following case summary ap- ing to “worry about file formats leaving peared in the Blank Rome March 2008 their electronic walls.” That’s a relief. And newsletter. it has an “email integration capability to prevent the inadvertent release of confiden- Second Circuit Decision Affects COGSA tial information.” The product can “require Liability for Shipment of Dangerous users to clean all documents sent outside the Cargo firm as part of a non-invasive automated On March 3, 2008, the United States workflow process.” Tidy. Court of Appeals for the Second Circuit, in If we are reading this right, lawyers In re M/V DG HARMONY, 2008 U.S. App. are being offered an electronic means of, at LEXIS 4483, No. 05-6116-cv (2d Cir. best, keeping secrets, and, at worst, covering March 3, 2008), issued an important deci- up their mistakes. The days of dumping a sion which clarifies the standard used to de- job lot of lever-arch files in the East River termine the liability of shippers and carriers are clearly long gone. The environment ex- transporting hazardous cargo under the Car- hales. But does it help us choose the right riage of Goods by Sea Act (“COGSA”), 46 lawyer? U.S.C. § 30701 note. Just the other day, an American law- Under the holding of this case, a yer sent out a press release telling the world shipper will not be held strictly liable for what to look for when hiring an attorney. damage caused by hazardous goods if both Among other things, this cautioned, “It is the shipper and the carrier had pre-shipment important to meet the lawyer, if possible, in knowledge of the dangerous nature of the the office. The client should see where the cargo, even if the carrier lacked information lawyer works. Observe the feel of the office about the precise characteristics of the cargo to see if it will be a good fit. There are no and its hazards. Instead, in such a case the secrets or surprises here.” And, oh yes, shipper’s liability will be determined on “Handshakes and a wink are not accept- negligence principles. In particular, where able.” the carrier alleges that the shipper failed This is all good advice, even though adequately to warn the carrier about the many of us grew up believing – and still be- characteristics of the particular shipment, the lieve – that handshakes, at least, are per- carrier must show (1) that the shipper had a fectly acceptable. A wink, meanwhile, is as duty to warn because the cargo presented good as a nod to a blind horse. But as for ‘no dangers of which the carrier could not rea- secrets and surprises’, what about those de- sonably have been expected to be aware, (2) leted files? What lies behind those electronic that the shipper failed to provide the ade- walls? What about the non-invasive auto- quate warning, and (3) that this failure mated workflow process? What about the caused the damage complained of.