Shipping Offshore Update – December 2023
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FuelEU Maritime Pooling – A new commercial opportunity for shipping companies?
The FuelEU Maritime Regulation introduces a voluntary pooling mechanism. If shipping companies choose to use the pooling mechanism, they may effectively use the over-performance of one ship to compensate for the under-performance of another ship. This could present new commercial opportunities for shipping companies.
Clarification on responsible entity under EU ETS (the "shipping company")
The inclusion of the shipping industry in the EU Emission Trading System as per Directive 2003/87/EC ("the EU ETS") from 1 January 2024 is now fast approaching. According to Article 3 in the said directive, it is the "shipping company" that is responsible for compliance with the EU ETS-obligations, hereunder to surrender emission allowances.
The Hong Kong Convention finally set to enter into force – a gamechanger?
With the recent accessions by Liberia and Bangladesh, the Hong Kong Convention on ship recycling, which was adopted in 2009, will finally enter into force on 26 June 2025. On 30 November 2023 there was a further breakthrough by Pakistan’s accession, which means that all major recycling states have now committed to the Convention. What will be the practical implications? How will the Convention mesh with the existing regulations?
BIMCO Ship Sales Further Trading Clause 2023 – protecting the seller against unlawful recycling
On 11 October 2023 BIMCO adopted the Ship Sales Further Trading Clause 2023, which is designed to be included in memoranda of agreement for the sale and purchase of vessels, such as BIMCO’s Saleform and Shipsale standard form contracts. The clause is intended to provide protection for the seller against the buyer’s subsequent disposal of the vessel in contravention of any regulations related to ship recycling. It seeks to achieve this by imposing an obligation on the buyer to continue to trade the vessel within an agreed post-sale period. The clause is particularly relevant for the sale of older tonnage.
Protection of private parties’ interests in investigations by the Norwegian Safety Investigation Authority
The Norwegian Safety Investigation Authority is tasked with conducting safety investigations into maritime accidents if they either involve Norwegian flagged ships, take place in Norwegian waters or involve significant Norwegian interests. Its reports may be important evidence in civil and criminal proceedings arising out of the casualty. The ability of private parties to protect their interests in respect of civil claims and criminal liability may therefore depend on the extent to which their interests are protected in connection with the investigation.
Limitation of liability in light of the MSC Flaminia (No. 2) appeal decision.
The Court of Appeal in London has given further guidance on charterers’ ability to limit liability following the High Court decision in the MSC Flaminia (No. 2) reported in our December 2022 edition, giving some important clarification to the types of limitation claims charterers can make.
Suppose you went to arbitration and the opponent did not come?
In arbitration, you have to prove your case even if the opponent does not show up. The no-show creates some pitfalls to avoid.