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Davies Johnson is delighted to announce the launch of its Swiss office, based in Geneva.

The expansion into Switzerland is a natural progression for Davies Johnson, building on its core shipping, international trade and commercial team in the UK.

We welcome on board two lawyers who bring with them a wealth of varied experience, and add a new dimension to what the firm can offer the shipping, trading, commodity and insurance sectors.

Bob McCunn
Bob was admitted in 1986 and worked with two leading London shipping and international trade firms, including a period in Greece. He has vast experience in marine insurance, reinsurance and general shipping, and has specialised further in oil and commodity trading, fraud and asset tracing. He has represented international commercial clients in several high-profile matters, including recovering for the insurers of Brinks Mat following the infamous Heathrow robbery, and secondment to a major Kuwaiti oil and tanker company following the Iraqi invasion in 1990. A non-executive Director of various major trading companies, Bob has been based in Geneva since 2008.

Cyrus Siassi
Cyrus is admitted in England and Switzerland, and has over twenty years’ experience of representing major insurance, financial and institutional clients in complex and high-profile matters. Cyrus handles litigation, arbitration, mediation and other dispute resolution work in England and Switzerland, specialising in cross-border transactional matters, shipping, international trade, aviation, construction, finance, insolvency, fraud and debt-collection. He has particular experience in the metals, energy and commodities sectors, and is an authority on international sanctions and embargoes. Cyrus also advises clients on regulatory, compliance and criminal liability, white collar crime, judicial investigations in Switzerland and anti- money-laundering and terrorist financing worldwide.

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Kashima’s long wavelengths and severe northerly winds combined in the loss of OCEAN VICTORY (Photo copyright: MS3866 at http://forum.shipspotting.com)

 

The Supreme Court has given its long-awaited judgment in this US$170 million case concerning the total loss of a capesize bulk carrier in 2006. This note focusses on the circumstances in which weather and similar temporary hazards may amount to a characteristic of a port and the meaning of “abnormal occurrence” within the classic definition of safety set out in the EASTERN CITY[1].

The vessel was discharging its cargo of iron ore at berth in the modern and purpose built port of Kashima in October 2006. The quay in use was vulnerable to a meteorological condition known as long waves which can make it difficult for a vessel to remain at berth. The port was also prone to severe northerly winds, which can make it difficult for a vessel to navigate the relatively narrow entrance channel. These conditions operate independently of one another; however, on the date in question, both occurred simultaneously. The vessel sought to leave port due to the adverse effect of long waves, but was unable to navigate the entrance channel due to the severe northerly winds and she grounded on a breakwater, becoming a total loss.

Owners claimed a breach of the safe port warranty. It was common ground that the test was whether damage was caused by an “abnormal occurrence”.

At first instance[2], Charterers were found to be in breach of the safe port warranty. Teare J ruled that long waves and northerly storms were each characteristics of the port and the concurrence of those two conditions, although rare, could not be said to be an “abnormal occurrence”.

The Court of Appeal[3], however, disagreed. The question was whether the critical combination of long waves and northerly gales was an abnormal occurrence or a normal characteristic of the port. This requires an evidential evaluation of the particular event giving rise to the damage and the relevant history of the port. No vessel in the port’s history had been dangerously trapped at the quay at the same time the entrance channel was not navigable due to gale force winds (it was also relevant that the storm was of exceptional severity) and the combination was therefore “abnormal”.

The Supreme Court unanimously upheld the Court of Appeal decision. Lord Clarke, giving the leading judgment, began by reinforcing that the date of the safe port promise is the date of nomination and is a prediction about the safety of the port when the ship arrives in the future. “Abnormal occurrence” should be given its ordinary meaning, namely something which is rare and unexpected, out of the ordinary course, well removed from the normal and which a notional charterer would not have in mind. One should ask whether the particular event was sufficiently likely to occur to have become an attribute of the port. The evidence in this case established that the conditions were an abnormal occurrence and there had accordingly been no breach of the safe port warranty.

From an operational perspective, the judgment reinforces the importance of considering the likelihood of the vessel being exposed to danger during its visit and, if so, whether the set-up of the port adequately deals with such hazards. Temporary events such as weather conditions may be considered characteristics of a port if they are sufficiently regular or sufficiently foreseeable in the historical context of the port.  If more than one event is concerned, it is the likelihood of the combination of those occurrences which is to be considered.

Author: Nico Saunders

+44 (0)7771 335 196

+44 (0)1752 226020

nico.saunders@daviesjohnson.com

[1] Leeds Shipping Company Ltd. v. Société Française Bunge [1958] 2 Lloyd’s Rep. 127

[2] [2014] 1 Lloyd’s Rep. 59

[3] [2015] 1 Lloyd’s Rep. 381

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Davies Johnson’s Danella Wilmshurst has been recognised by legal peers and industry experts as a leader in the field of Shipping & Maritime Law.

Danella, a Director of the firm, was recently named in Best Lawyers Australia for her work in this area.

Best Lawyers’ methodology is based entirely on peer review and is designed to capture the consensus of opinion among leading lawyers, about the professional abilities of their colleagues within the same geographical and legal practice areas.

If that was not enough, Danella was also listed in “Who’s Who Legal: Transport 2017”. Unlike Best Lawyers, the Who’s Who listing is based on extensive research into the opinions of law firm clients and transport experts.

For Danella to receive this recognition from both her peers and the industry as a whole, is a fantastic achievement.

Danella has been advising the shipping and insurance industry on maritime and transport law for over twenty years, having been a partner at two of Australia’s leading maritime and transport firms. An expert on wet and dry shipping, freight forwarding and logistics, transport contracts and transactional work, Danella is a Director of the Maritime Law Association of Australia and New Zealand and a Member of the Australian Federation of International Forwarders. She has taken several complex cases through litigation or arbitration, ranging from charter party disputes to oil pollution, and has an international reputation for her expertise and sound guidance to the industry.

Danella Wilmshurst, Principal Lawyer
danella.wilmshurst@daviesjohnson.com
+61 (0)438 012733

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Davies Johnson is delighted to announce that its specialist maritime and logistics legal services will now be available to clients throughout Australia, New Zealand and the region.

The unveiling of the firm’s Australian venture was hailed by Davies Johnson CEO, Peter Jackson, as a turning point in marine legal services in the region. “Australia’s marine and logistics sectors are still growing strongly despite the commodities dip, New Zealand’s ports are performing well, and new infrastructure projects are in the pipeline all over the region. These sectors deserve the same commercial approach and cost-effective structure we have in place with Davies Johnson in the UK, and we’re going to provide that with some of the best talent in the regional market.”

Read more »

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Davies Johnson’s Danella Wilmshurst, Principal Lawyer in the firm’s Sydney office, addressed  the ‘Container Transport Alliance Australia’  conference in Brisbane in August 2016.

The seminar and discussions centred around the present commercial, operational and regulatory environment in Australia, and its effects on the Australian transport and logistics industry.

Danella’ s speech was well received by an audience of  recognised industry experts.

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tmCrew on vessels sailing to offshore installations, for
example, outside the 12 miles zone do not need UK
work permits

A recent case, where a vessel was at risk of detention by Border Force UK, has thrown up some
interesting questions concerning work permits, visas, immigration and manning rules, according to
UK-headquartered marine solicitors Thomas Miller.  Read more »