Maritime law has evolved over the years into a specialist legal discipline. Any lawyer who specialises in maritime law will be aware of the complex legal environment in which shipping operates. Maritime claims normally crossjurisdictional boundaries, as ships move from port to port. Today's modern fleets are often owned by a holding company in a convenient offshore jurisdiction, chartered to a separate company and possibly sub chartered, either on voyage or time charterers, to various other entities. The crew operating a vessel will be drawn from all over the world. Cargo will be loaded at various ports and bills of lading may be negotiated while the vessel is still at sea. All of this creates a truly multi jurisdictional environment and maritime claims are seldom confined to one jurisdiction only. In addition, commercial owners and operators of vessels need to make money. Shipping is, after all, a business. Every day that a ship spends idly at anchor or in port (or worse, under arrest) will mean a significant amount of lost revenue for the owners, operators, managers and receivers of cargo.
A good maritime lawyer will have strong experience of maritime law in the region with knowledge of both local and international laws and practice and has the ability to handle matters fully from the very start and thereafter throughout the litigation up to the Supreme Court, and until the end of the execution proceedings. It is imperative for any maritime lawyer to aggressively defend the clients' interests, and to be conscious of the legal and commercial issues that concern the international maritime community and the problems that they face in the region.
For example, an issue, which was in a major cause of concern for ship-owners and their P&I clubs in Yemen, was personal injury claims. In the past the Courts in Yemen awarded compensation to any stevedore who was injured while working on a vessel without determining whether or not the injury resulted through the fault of the vessel. The matter was litigated and I am aware of at least one case, which was taken to the Highest Court in Yemen on this point. The Supreme Court held that it is necessary to establish the fault that caused the harm. This has changed the whole practice of the Courts in Yemen and following this decision the Yemeni Courts now require claimants to prove fault on the part of the owners of the vessels in personal injury and fatal injury claims.
A good shipping lawyer should also have his client's commercial interests at heart and, if necessary, be able to successfully negotiate settlements when this is in the interest of his client. Not all matters proceed to litigation and very often it is in the best interest of all parties to settle the matter out of court. Having skilled bilingual shipping lawyers who have the requisite negotiation skills and full knowledge of the case may very often successfully resolve contentious matters and reach a favourable settlement for their clients without going to Court.
Another fundamental requirement for any good shipping lawyer is to have an indepth understanding and interpretation of the laws and legal principles that relate to his area of expertise. It is important to have comprehensive knowledge of local laws, be able to interpret them and apply them to the facts of each particular case. Each case needs to be dealt with on its own merits. For example, I was involved in a recent case in Yemen, where we acted on behalf of the owner of a vessel through their P&I correspondent. Briefly, the facts were as follows: -
The owners of a vessel discharged a cargo of steel at Aden. A bank guarantee was issued to the cargo claimants for US$ 150,000.00 to obtain the release of the vessel. The First Instance Commercial Court in Aden awarded the cargo receivers US$ 94,639.00, "inclusive" of interest and costs. However, when the cargo receivers applied to execute the judgment, they requested to be awarded costs exceeding 10% of the judgment amount. Subsequently, the sum of US$ 105,827.03 was paid to the cargo claimants under the bank guarantee. An appeal was filed on behalf of the vessel's owners to the Aden Court of Appeal in respect of the additional costs awarded. The Court of Appeal accepted the owners' appeal and cancelled the initial Enforcement Order in respect of the costs. The cargo receivers then appealed this judgment to the Supreme Court in Sana'a, maintaining that the Court of Appeal ought to have awarded the costs separately as claimed by them. Towards the end of 2004 the Supreme Court dismissed the receivers' appeal. This case established for the first time that, under Yemeni law, costs may be included in the sum awarded to the consignee against his claim without the costs being separately stated.
Another example is a complicated case regarding the prescription period for a cargo claim in which the ship-owners argued that the claim was time barred. Acting on behalf of the consignee we succeeded in obtaining a judgment from the Supreme Court in Yemen which, for the first time, established in principle that if there is an exchange of correspondence between the parties then, in such an event, the one year time limit for filing a cargo claim starts from the date when the communication ended.
To summarise, a good maritime lawyer should have the ability to handle complex legal principles and be in a position to give proper legal advice to clients and, where necessary, be able to aggressively defend or initiate claims in Court. As very often happens in practice, foreign shipowners and their P&I clubs may be faced with claims in a foreign and unfamiliar jurisdiction. When this happens, it is of paramount importance to appoint local lawyers who understand the needs of the foreign defendant and also have full knowledge of the applicable laws, procedure and practice. There are many complex issues that may arise in shipping litigation, such as "title to sue", "identity of the carrier" and "limitation of liability". A thorough understanding of the legal principles that guide shipping and their application in the region will give the shipping lawyer the strength and ability to fully defend his client's interests.
Reem Tariq Abdullah
© Al Tamimi & Company 2005
