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News Notes No. 7 |
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Marineliens.com
sends our e-newsletter each month to approximately 380,000
marine industry professionals.
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Passive vs Aggressive approach to
collecting overdue maritime debt � An analysis � Part
2 of 3
Last month we addressed the Repetitive Dunning,
also knows as the �Begging Method�, of bill collecting
which all of us use to some degree. When the receivable
goes delinquent beyond 90 days, it becomes evident that
the invoice will not be paid using the �Begging Method�.
A more aggressive approach may be in order to motivate
the debtor to pay the bill or come to the negotiating
table. If the debtor is having financial problems or
has a perceived problem with the workmanship he must
be forced to the negotiating table.
If the work or supplies to the vessel are maritime in
nature, a lien is created and attaches to the vessel.
The contractor/supplier needs to assess the options
available to determine how to proceed. The first step
is to post the claim of lien in a public place for others
to see and be aware. A posted lien in itself does nothing
until the vessel owner needs additional work or supplies,
or tries to sell or finance. The contractor/supplier
always has the option of having the vessel arrested
and sold to satisfy the outstanding invoice. Any savvy
buyer or lender understands that the lien would come
ahead of his or her interest and decline any further
negotiations until the claim of lien is resolved. Likewise
any downstream contractor/supplier would need to know
of claims of liens on a vessel prior to contracting
with it, to be sure their potential claim is not dominated
by an existing claim. Buyers, lenders and downstream
contractors/suppliers are all forces that will force
the settlement of a claim of lien against a vessel.
It needs to be pointed out that a lien does not need
to be posted with a government office or private online
service such as Marineliens.com for it to be a valid
lien. But if logic prevails and the contractor/supplier
wants payment he/it must make it known.
The next issue will deal with the final method of settling.
Legal history of Indonesian Archipelago
� Part 2
By Pandji R. Hadinoto, Attorney at Law, Jakarta,
Indonesia
The term of Indonesia,
historically is compounded by Indo
(Latin word for India or Hindus) and Nesia
(= nesos, a Greek word for island);
Before 1820, this Indonesian
Archipelago was expressed as India beyond the Gangges
or Ultra Gangetic India and further East India;
Archipelago (English) or Arcipelagus (Italia) is compounded
by �arci� means important and �pelagus� means ocean.
This term of Arcipelagus was used at the first time
in the Agreement between Republic of Venezia and King
Micael Palaeologus, 1268. In this agreement, Arcipelagus
is �aigaius-pelagus� (Greek word, Aigaion-pelagos or
Aigaia Sea). Further, Archipelago means a body of water
with islands within) and now known as �islands world�;
John Crawfurd, a scientist from Edinburg, used �Indian
Archipelago� to express �Dvipantara� in his book, History
of the Indian Archipelago, 1820. This term was reinforced
further in Notice of the Indian Archipelago and Adjacent
Countries by J. H. Moore, Singapore, 1837, and in The
Indian Archipelago, Its History and Present State by
Horace St. John, London, 1853. A. R. Wallace preferred
to use Malayan Archipelago in 1869 and DR Prichard,
a French scientist, used Malaysian Archipelago in his
Physical History of Mankind. The other French scientists
use �Oceania et Malasia�;
George Samuel Windsor Earl, a jurist born in London,
is known as the pioneer of using Indu-nesians
or Malayu-nesians to express the inhabitants of the
�Indian Archipelago� or �Malayan Archipelago� as written
in The Journal of Indien Archipelago and Eastern Asia,
1850;
James Richardson Logan, a jurist born in Scotland, is
known as the inventor of Indonesia
when writing The Ethnology of the Indian Archipelago
: Embracing enquiries into the Continental relations
of the Indo Pacific Islanders, 1850, which expressed
�The name Indian Archipelago is too long to admit of
being used in an adjective or in an ethnographical form.
Mr Earl suggests the ethnographical term Indu-nesians
but rejects it in favour of Melayu-nesians. For reasons
which will be obvious on reading a subsequent note,
I prefer the purely geographical term Indonesia,
which is merely a shorter synonym of Indian Islands
or the Indian Archipelago. We thus get Indonesian for
Indian Archipelagian or Archipelagic, and Indonesians
for Indian Archipelagians or Indian Islanders,��
Multatuli used Insulinde
in his book Max Havelar, 1859, compounded by �inseln�
means islands and �indie� from Indus = India. There
were also Malay Archipelago or Le Grand Archipel Malais
or Nusantara Malayu Raya (Nusantara Raya) that extended
to use;
Prof Adolf Bastian, University of Berlin, popularized
the name of Indonesia through his book Indonesien
oder die Inseln des Malayichen Archipels, 1884-1894;
The first political party named as Indische
Partij in 1913 which then renamed as
Partai
Insulinde referred to Max Havelar;
University of Leiden then developed division of Indology
in 1922, organized by Prof Cornelis van Vollenhoven;
His valuable contribution is recoqnized todate when
describing the Indonesian Customary Law into 19 subsystems
of indigenous legal environmental as written in his
Het Adatrecht van Nederlandsch Indie (1901-1931);
Indische
Vereeniging in the Netherland then renamed as Indonesische
Vereeniging or Perhimpoenan Indonesia
(one of the founder was DR Moh Hatta, who later became the
first vice president of Republic of Indonesia); Partai
Nasional Indonesia
(National Party of Indonesia) in Bandoeng, founded in
1927 by DR Ir Soekarno, who later became the first president
of Republic of Indonesia;
Soempah Pemoeda (Declaration on Oath by Young Generations)
confessed one father-land, one nation and one language
of Indonesia
(Jakarta, 1928);
Gabungan Partai Indonesia
abbreviated as GAPI (Union of Indonesian Parties) was
formed in 1939;
The Independence of Republic of Indonesia
was proclaimed in 1945.
The perspective of nationality itself, recoqnized since
the imperium state of SRIWIJAYA (7th C to 14th C), imporium
state of MAJAPAHIT (14th C to 15th C), Aliance of Great
Nusantara by states of SAMUDERA PASAI, DEMAK and TERNATE
in 15th C prior to the state of the Republic of Indonesia
today.
The Indonesian�s Sea Territory firstly governed by �Territoriale
Zee En Maritime Kringen Ordonantie of year 1939� which
determined 3 miles distance from the coast of each islands,
and measuring a jurisdiction area of 2 millions sqkm.
The Declaration of Djuanda (former Prime Minister of
the Republic of Indonesia) stated that the Indonesian
Geography is an Archipelago State of united islands
and seas as one jurisdiction area. This declaration
then continued by a Legislative Act no. 4/Prp, 1960
concerning the Jurisdiction of Indonesian Sea, and measuring
a jurisdiction area of 5 millions sqkm where occupies
60%
of the total jurisdiction area of the Republic of Indonesia.
Therefore, Indonesia is really a Maritime State and
the only unique one in the world.
Internationally, the above national policy was discussed
in the Conference of Sea Law by the United Nations in
1958, in 1960 then in 1982 where the Principle of Archipelago
State is accepted as such and stating it in the UNCLOS�82
(United Nations Convention on the Law of the Sea).
The Indonesian Legislative Act no. 17, 1985 is issued
to ratify that UNCLOS�82.
Further, the Indonesian People General Assembly Decree
No.IV/MPR/1978 governs the National Outlook named as
Wawasan Nusantara as the basic pattern and platform
of the National Development, later the Decree No.II/MPR/1993
governs Wawasan Nusantara as the legal certainty of
the people of Indonesia. Nusantara means also today
as the Crossroad of Asia.
Maritime collections -- finding an
attorney to get your money
Marine businesses, like all businesses, are
faced with the fact that sometimes people don't pay.
This a special problem in the marine industry, where
most companies are relatively small and often family-owned.
Why? First, small businesses don't have the resources
of a large corporation, resources like in-house counsel
or a contract with an outside law firm. Second, there
are relatively few lawyers that have the expertise to
collect debts or understand the claims that relate to
boats. Finally, for smaller businesses, one unpaid debt
can sometimes mean the difference between a profit and
a loss.
If the time comes that your business needs to take legal
action to collect a bill, here are the things that you
should consider in hiring an attorney. First, find someone
who is knowledgeable about boats and maritime law. Consider
doing an initial search on quality websites like lawyers.com.
Check your local phone book to see who is listed as
doing maritime or admiralty law. Also ask for references
from other marine professionals, they may have already
done the same search, and have direct experience to
relay. Lawyers that concentrate on maritime law will
be better able to understand your claim, will understand
the special tools that are available to collect maritime
liens, and will probably be more interested in your
case as well. Second, look for an attorney that has
a regular practice collecting debts. Some attorneys
will take relatively small collections cases that arise
in consumer transactions, but many focus on the larger
issues that arise in commercial shipping. Finally, choose
someone that is available on the telephone when you
have a question. Lawyers that are too busy to return
your telephone calls are probably too busy to handle
your matter with the attention that it deserves.
Once you are in contact with an attorney, you will need
to come to some terms for payment of the fee. In the
United States, the typical choices are to pay hourly
for the attorneys' time, or to have the attorney take
a percentage of whatever is recovered-- a contingent
fee. If you are strapped for cash, a contingent fee
arrangement may be the best alternative. In this country,
the typical contingent fee is around 33 percent of whatever
is recovered. Often the percentage rate is tied to how
much effort is required to collect the debt -- it is
not unusual for a contingent fee to be 40% of the recovery
if a trial is required. You should consider paying on
an hourly basis if you have the resources, the amount
owed is relatively large, and the debtor has assets.
For example, if you have a $50,000 recovery, a 33% contingent
fee will be $16,500. If you had paid on an hourly basis,
the total fee might be significantly lower. When you
are discussing fees, be sure to discuss the payment
of costs (such as experts' fees, filing fees, skip tracing,
etc) -- in most collection cases, costs are usually
paid by the client in advance, but this may be negotiable
depending on the specific lawyer and the specific matter
at hand.
J. Dirk Schwenk
Lochner and Schwenk, LLC
30C West Street
Annapolis, MD 21403
410 263 4464
www.boatinglaw.com
Use
several tools to find liens says lawyer
A web-based system to search for maritime
liens is a good concept says admiralty attorney Thomas
A. Russell of Russell & Associates in Newport Beach,
CA. It is one of several tools a diligent buyer or lender
should consider in investigating the possibility of
maritime liens against a vessel. Maritime liens are
typically secret and unrecorded. They can come ahead
of the interests of boat buyers and marine lenders.
Anyone buying or financing a boat should take precautions
to ensure there are no liens on a vessel before making
an investment. Russell, who heads the Maritime Law Association's
Recreational Boating Committee, suggests three primary
ways to double-check on liens:
-- The first line of defense against liens is to know
the history of the boat. This is usually learned through
the owners and operators of the vessel. If they are
in difficult circumstances, liens may exist for unpaid
goods and services supplied to the boat.
-- The second line of defense is to check public records.
Maritime liens do not need to be recorded, but a notice
of claim of lien may be filed with the Coast Guard for
some federally documented vessels. Still, there is no
governmental record a boat buyer or marine lender can
rely upon to completely rule out maritime liens.
-- Insurance may be a defense. Hull and machinery insurance,
and protection and indemnity coverage, may offer protection
from some types of maritime liens. In addition, a few
insurance companies now offer boat title insurance.
A web-based service allows maritime lien claimants to
give notice of their claims on the Internet and merely
indicates that someone decided at one time to state
a claim publicly. Those who use such a service should
bear in mind that recorded claims of maritime liens
may or may not be valid, Russell points out. Knowing
that, boat buyers and marine lenders should not rely
solely upon any one service in exercising diligence
to rule out maritime liens against a vessel. In larger
transactions, the opinion of competent legal counsel
should be obtained.
For more information, contact Russell at 562/495-6000;
[email protected]
Onboard Basic Safety Training Program
Intended for use
by commercial marine industry and seagoing recreational
vessels, this training program is based on requirements
set forth in Table VI of the STCW Code, as amended in
1995. Basic Fire Fighting
Provides Shipboard Training
Resource
There is no more terrifying hazard that confronts commercial
seamen and commercial ships than fire at sea. To prevent
this catastrophic emergency, every seaman is trained
in Basic Fire Fighting. Each is expected to pay constant
attention to fire prevention, and to be capable of serving
as an effective member of a fire response team.
These realities are reflected in the Standards of Training,
Certification and Watch keeping for Seafarers (STCW)
that have been adopted by the International Maritime
Organization (IMO) and its member nations. Competence
in Basic Fire Fighting is one of four core elements
of the Basic Safety Training that all ships are now
required to provide, and all seamen are obligated to
achieve.
Created to assist ship owners in preparing their crewmembers
to cope with the hazard represented by fire at sea,
Basic Fire Fighting relies on dramatic audio-visual
media depicting live fire fighting operations.
In a July, 2002 letter, the U.S. Coast Guard�s National
Maritime Center stated that it "would approve the use
of the tapes in any Basic Safety Training courses or
program." This program is one of five modules that comprise
the Onboard Basic Safety Training Program. Other modules
include Onboard First Aid: Immediate Actions, Personal
Survival, Personal Safety & Social Responsibility and
the Interactive Training, Drilling & Assessment Compact
Disk.
Using this Product
Intended for use by commercial marine industry and seagoing
recreational vessels, this training program is based
on requirements set forth in Table VI of the STCW Code,
as amended in 1995.
Consisting of three Training cassettes, the Test cassette
and the Workbook, the product offers training, testing
and assessment features that facilitate compliance with
the International Safety Management (ISM) and STCW codes.
Content is organized into three segments:
Part 1
How to Use This Program
Shipboard Fire Fighting Organization
Escape Routes Periodic Fire Drills
The Elements of Fire & Explosion
Fuel, Heat, Oxygen
Types & Sources of Ignition
The Three Methods of Fire Spread
Classes of Fire
Part 2
Extinguishing Agents
Discovery of Fire
Immediate Actions
Fight & Extinguish Fires
Fire Fighter's Outfit
Personal Equipment
Fire Fighting Equipment & Appliances
Part 3
Portable Fire Extinguishers
Self Contained Breathing Apparatus
Fire Fighting Methods
Certification
Crew members should be assigned to watch Basic Fire
Fighting, Parts 1, 2 and 3 then view the Test cassette
while recording their answers to the test questions.
Answer sheets and Certificates of Completion should
be signed by each crewmember, his or her supervisor
and by the captain, and maintained with crew records.
Crewmembers are encouraged to keep copies of the Certificate
of Completion with their personal records as well.
Photocopy master versions of the answer sheet and Certificate
of Completion can be found in the back of this Workbook.
Remove these pages and create as many copies as you
require. You also have the option of removing the answer
sheet at the back of the Workbook before it is issued
to crew personnel.
The Onboard Basic Safety Training Program has been written
and produced by John Sabella & Associates, Inc. of Seattle,
Washington. It is distributed by Walport USA of South
Toms River, N.J. For further information, contact the
Basic Safety Training Joint Venture at 1-800-438-9872
or [email protected].
Contact: Bob Negron or John Saez
Phone: 732-818-9883
Fax: 732-818-9884
Email: [email protected]
World Wide Web: www.walportusa.com
Supreme Court to rule on prop guard
case
The U.S. Supreme Court on Tuesday considered
a product liability case that could have serious consequences
for the marine industry. A decision is not expected
until sometime next spring.
The case, Sprietsma vs. Mercury Marine, involves a wrongful
death suit originally filed in Cook County, Ill. Rex
Sprietsma of Downers Grove, Ill., filed the suit on
behalf of his wife, Jeanne, who died in 1995 of prop
injuries from a Mercury engine.
The circuit court, a state appellate court and the Illinois
Supreme Court all have ruled for Mercury, stating that
federal statutes pre-empt state law in boating safety
matters. They have said that because federal boating
rules don�t require prop guards, Sprietsma can�t claim
that a boat without prop guards is defective and seek
damages under Illinois� wrongful death laws.
Monita Fontaine, vice president of government relations
for the National Marine Manufacturers Association, attended
yesterday�s hearing with representatives from the National
Association of Manufacturers. Both groups submitted
friend of the court briefs in support of the Fond du
Lac, Wis., engine maker.
As reported by Soundings Trade Only online publication
Importance of success stressed as
diplomatic conference gets underway
International Conference on the revision
of the Athens Convention Relating to the Carriage of
Passengers and their Luggage by Sea, 1974: 21 October
to 1 November 2002
IMO Secretary-General William O'Neil stressed the crucial
importance of a successful outcome to the Diplomatic
Conference meeting this week and next at IMO to amend
the liability regime relating to damage suffered by
passengers on international voyages.
In his opening remarks to the Conference, which has
been convened to consider the adoption of a protocol
to amend the Athens Convention Relating to the Carriage
of Passengers and their Luggage by Sea, 1974, Mr O'Neil
said today that the successful adoption of the protocol
would ensure that all those likely to be affected by
a shipping incident will receive prompt and adequate
compensation based on internationally accepted criteria.
At its opening session, the Conference elected His Excellency
Dr. Ra Jong-Yil, Ambassador Extraordinary and Plenipotentiary
from the Republic of Korea, as its President. Dr Ra
Jong-Yil told the Conference that there was an understanding
in the international maritime community that this is
the right time to amend the Athens Convention, and stressed
that the Conference faced a heavy responsibility in
ensuring that its work resulted in a positive outcome.
The Convention has been in force since 1987. At present,
28 States are party to it.
International Maritime Organization
(IMO) will consider proposed amendments to expand the
scope and effectiveness
of regulations concerning the prosecution
and extradition of those engaged in the perpetration
of unlawful acts at sea during the 85th session of the
Organization's Legal Committee. The Committee will review
the text of draft proposed amendments to the 1988 Convention
for the Suppression of Unlawful Acts(SUA) Against the
Safety of Maritime Navigation (SUA Convention) and its
related Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf, 1988.
The review of the SUA Convention and its related Protocol
followed the unanimous adoption in November 2001 by
the IMO Assembly of resolution A.924(22) calling for
a review of measures and procedures to prevent acts
of terrorism which threaten the security of passengers
and crews and the safety of ships.
The main purpose of the SUA
convention and its related protocol is to ensure that
appropriate action is taken against persons committing
unlawful acts against ships.
In the present Convention, these acts include the seizure
of ships by force; acts of violence against persons
on board ships; and the placing of devices on board
a ship which are likely to destroy or damage it. The
proposed amendments would significantly broaden the
range of offences and make it more relevant to modern
conditions.
The Convention obliges Contracting Governments either
to extradite or prosecute alleged offenders thereby
ensuring that those responsible for perpetrating acts
of violence against or on board ships, will be brought
to justice, wherever in the world they seek to hide.
The SUA Convention has been ratified by 73 States, representing
75.4 per cent of world merchant shipping tonnage and
the SUA Protocol has been ratified by 66 States, representing
75.1 per cent of world merchant shipping tonnage.
Wreck removal
The Committee is expected to consider the text of the
draft wreck removal convention (WRC), with a view to
making a recommendation to the IMO Assembly as to the
holding of a diplomatic conference to adopt it.
The WRC is intended to provide international rules on
the rights and obligations of States and ship owners
in dealing with wrecks and drifting or sunken cargo
which may pose a hazard to navigation and/or pose a
threat to the marine environment. The draft Convention
currently being considered by the Legal Committee is
intended to clarify rights and obligations regarding
the identification, reporting, locating and removal
of hazardous wrecks, in particular those found beyond
territorial waters.
The current session is expected to address some fundamental
issues such as the definitions of "wreck" and "hazard",
the "convention area", the "State whose interests are
most directly threatened by the wreck" and issues concerning
liability, compensation and financial security. The
Committee will also receive an oral report of the fourth
session of the Joint IMO/ILO Ad Hoc Expert Working Group
on Liability and Compensation regarding Claims for Death,
Personal Injury and Abandonment of Seafarers, which
developed proposed questionnaires to be distributed
in order to monitor implementation of previous Assembly
resolutions and guidelines on these issues.
Sewage rules for ships to enter into
force following breakthrough ratification
Regulations for the prevention of pollution
by sewage from ships are set to enter into force in
September 2003 following the ratification by Norway
of Annex IV of MARPOL 73/78 Convention on marine pollution.
Norway's ratification means the entry-into-force criteria
for the Annex, set at 15 States whose combined merchant
fleets constitute not less than 50 per cent of the world's
merchant fleet by tonnage, have now been met.
Norway deposited its instrument of acceptance for MARPOL
Annex IV on 26 September 2002. This brought the total
number of countries that have accepted Annex IV to 88
and their tonnage accounts for 51 per cent of the world's
total. In accordance with MARPOL Article 15(2), Annex
IV will now enter into force on 27 September 2003.
The Annex sets out in detail how sewage should be treated
or held aboard ship and the circumstances in which discharge
into the sea may be allowed. It requires Parties to
the Convention to provide adequate reception facilities
for sewage and contains a model International Sewage
Pollution Prevention Certificate to be issued by national
shipping administrations to ships under their jurisdiction.
The Annex will apply to ships engaged in international
voyages. On entry into force it will have immediate
effect on all new ships of 400 gross tonnage and above
and new ships of less than 400 gross tonnage which are
certified to carry more than 15 persons. It will apply
to existing ships of 400 gross tonnage and above and
of less than 400 gross tonnage and above but certified
to carry more than 15 persons five years after the date
of entry into force.
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