The general perception is that a maritime lawyer is someone that does something that involves ships.
By and large this perception is right, but the ambit of maritime law and a maritime lawyer extends beyond the ships and well onto the shore.
A day in the life of a maritime lawyer can be a bit like a multi-headed monster at times: daunting to take on, but very interesting to contemplate..
So says Andrew Pike, the author of this guest post whose day as a Maritime Lawyer is covered here..
I suppose that the logical way to analyze the potential day of a maritime lawyer is to start by looking at some of the potential interest groups within the industry.
Without setting out an exhaustive list, these would include:
- Cargo interests, i.e. importers and exporters of cargo, whether as originators or traders of that cargo
- Land transport operators carrying goods to and from ports (road, rail and pipelines)
- The import and export bulk, break bulk and container terminals, including the owners and operators of those terminals
- Clearing and forwarding agents
- Customs authorities
- Container depots, warehouse operators, tank farm operators and stockpile managers
- Ships agents
- Ship Owners
- Officers and crew of ships
- Charterers of ships
- The Port Authority
- South African Maritime Safety Authority (SAMSA – or its equivalent in other countries)
- Passengers on cruise liners
- Regulatory authorities such as the Ports Regulator of South Africa.
Having identified some of the stakeholders, it will be apparent that at some level a connection can be made between all of them. More importantly, there are particular relationships between some of them which may have knock-on effects for others.
For instance, a cargo exporter will have relationships potentially with his clearing and forwarding agents, Customs authorities, terminal operators, a ship owner or a charterer and the Port Authority, to say nothing of those responsible for land transport of his goods to the ship side. Every relationship between one industry stakeholder and another will be evidenced by some sort of contract.
Sometimes contracts are written and sometimes they are oral, but in every instance a formal relationship will be evidenced by a contract or agreement. One of the roles of the maritime lawyer is to facilitate those relationships by writing practical and fair contracts.
The lot of the maritime lawyer is not only to draft agreements, but where the lawyer is not a party to the drafting, also to interpret the agreement and help resolve disputes arising out of each agreement.
Examples of the typical written agreements or contracts one would expect to see within the industry include:
- Contracts of carriage for the cargo from (or to) its land side origin to (or from) the harbour, a depot, place of storage and so on
- Storage agreements e.g. for the storage of dry or liquid bulk, storage of containers and warehousing of breakbulk
- Terminal throughput agreements
- Standard Trading Conditions for most service providers
- Charter parties between ship owners and charterers
- Consignment notes between shippers and charterers
- Bills of Lading
- Terminal regulations
- Port regulations
The maritime lawyer will also often be involved in the international sale of goods aspect, meaning that he will be required to review the sale contracts in respect of goods purchased or sold and give advice on letters of credit and other trade finance issues.
Although most maritime lawyers will at some stage be required to draft and review the above documents, inevitably disputes arise between the parties who are in relationship with each other. The contractual documents define the parameters of the relationship and when disputes arise the documents are usually the primary point of reference for courts and arbitration tribunals to resolve those disputes.
Some of the typical disputes which arise can center around things such as:
- Damage to cargo
- Short landing of cargo
- Contamination of cargo by loading terminals or indeed by the ship itself
- Throughput disputes between terminal owners and users in terms of speed of throughput, demurrage claims and volumes
- Charter party disputes in respect of the speed and consumption performance of a vessel, payment of hire or freight, demurrage, despatch and the like
- Disputes with Port authorities concerning their decision making or application of tariffs
- Customs disputes
- Bad debts of service providers
All of the above is what maritime lawyers colloquially call “dry work”, i.e. work which relates to disputes which are generally unrelated to shipping casualties.
The so called “wet work” almost always involves causalities in some form or another. Hence, maritime lawyers can find themselves investigating and dealing with the fall-out from:
- Oil spills
- Fires on board ships
All of the above from a single incident.
The wet work is always exciting, requiring immediate investigation, thoughtful and quick decision-making and of course advice to all of the interested stakeholders. For instance, in a particular casualty, the various stakeholders can include the ship owner, the ship manager, master and crew, cargo owners, charterers, cargo insurers, hull insurers, salvors, the environment (and all those involved with the environment), governments and the like.
All of these may require legal representation in order to resolve the issues that arise, so when there is a major casualty maritime lawyers are at a premium.
As far as Court work is concerned, all maritime disputes can end up in court or arbitration and maritime lawyers of course need to be able to apply maritime legal principles to the facts at hand and what they know of maritime matters. Very often this means bringing in expert witnesses, e.g. fire experts, coal experts, master mariners, marine engineers, architects and so on into cases as consultants and advisers.
The so called ‘bread and butter’ work of the average South African maritime lawyer is ship arrests, particularly having regard to associated ships. The purpose of arresting a ship is so that the legal proceedings can commence in South Africa. However, a ship arrest can also provide security for a claimant who is not sure that he will be paid if he gets a court order or arbitration award in his favour.
South Africa is a well-known arrest jurisdiction which is able to arrest ships in order to obtain security for proceedings anywhere in the world. In addition, South African maritime law is unique in the sense that it permits the arrest of “associated ships”, which are ships not necessarily in the same ownership as the “guilty ship”, but which are commonly controlled.
Hence South African maritime law allows one to look past the corporate veil to discover who is behind a particular fleet of ships. This offers huge advantages to those seeking security, especially when the original “guilty ship” has been lost or sold.
In short, there is very rarely a dull moment in the day of a maritime lawyer.
Andrew Pike is an Executive and Life Coach, Attorney and Blogger at “THE TALKING STICK: EXPLORING LIFE’S POSSIBILITIES“, author of “PEOPLE RISKS: A PEOPLE-BASED STRATEGY FOR BUSINESS SUCCESS” and also a Partner at Bowman Gilfillan..
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