Danger to life “not likely”

United States of America v Pedro Rivera

PEDRO Rivera was originally convicted of sending the Emily S to sea in an unseaworthy condition likely to endanger life, a ruling that has since been disputed. On the night of January 6, 1994, a barge carrying bunkers ran aground off Puerto Rico after a tow-wire from the tugboat Emily S parted. Rivera, the tugboat’s manager, had previously been warned of the tow-wire’s condition and; although a new wire was available, the voyage went ahead using a damaged wire. Rivera’s defence hinged on the argument that statute 10908 could only be used for a criminal conviction after an official finding of unseaworthiness, and there had been no such finding. But the court took a broader view describing the statute as simply a set of provisions on seaworthiness, with a criminal prosecution serving as an appropriately harsh penalty for individuals who knowingly put lives in jeopardy.

This interpretation could be seen as misguided. The purpose of chapter 109 is to correct unseaworthy vessels before they go to sea. Statute 10908 is intended only to provide seamen with the leverage to force a master to comply with the rules. The court was wrong to interpret statute 10908 as a punitive measure, rather than the corrective measure it was intended to be.

The conviction also failed on evidential grounds. There is ample evidence that Rivera had been told on numerous occasions that the vessel was unseaworthy. The tugboat’s engineer, Jaacov Eisac, testified that, prior to sailing, he had joked with Rivera, “We should get some bait and we can catch some fish with so many hooks what [sic] we were having on the wire.”

So the jury had enough evidence that Rivera knew the vessel was unseaworthy. What they failed to recognise, however, was that there was insufficient evidence tjiat Rivera knew the tug’s condition was “likely to endanger life”.

There are many examples of unseaworthy conditions that could lead to loss of life, such as a slippery deck. But the key word is likely. Even accepting one dramatic testimony, that someone on deck could be cut in half by a wire snapping back like a rubber band, this event cannot be deemed likely. Indeed, the prosecution failed to produce any instance of this actually occurring. On the contrary, Capt McMichaeFs testimony that the wire hit him, “knocking the wind out of me a little bit”, suggests the condition was not “likely to endanger life” at all.

Case № 12

Open all hours: nor valid when office day starts

Galaxy Energy Int Ltd Novorossiysk Shpg Co ("Petr Shmidt")

Appellant: Nicholas Hamblen QC (Stephenson Harwood).

Respondent: Charles Friday (Lawrence Graham).

DISMISSING the charterer’s appeal in The Petr Shmidt, the Court of Appeal has confirmed The Agamemnon (Fairplay. March 12) ruling as to premature notice of readiness (NOR) to load or discharge. The judges have set in it in the context of a more general ruling, including The Mexico I in 1990, which is the first definitive ruling on a fairly common issue whose financial significance is its effect on the start of laytime. In The Agamemnon, Mr Justice Thomas ruled as premature, and invalid, a NOR tendered when the vessel, though otherwise ready, was still 170 miles from its specified anchorage, Baton Rouge on the Mississippi.

In The Petr Shmidt, Mr Justice Longmore concluded that an accurate statement of readiness was not invalid merely because it was transmitted outside the agreed period, and that this decision did not conflict with The Agamemnon.

The important difference was that the Petr Shmidt was ready in every respect, including arrival at port, though the NOR was transmitted to the charterer some hours before the time stated in the charter. The judge said tender outside office hours did not invalidate the notice as being “non-contractual”. The Petr Shmidt’s owner, Novorossiysk Shipping Co. voyage chartered it to Galaxy Energy International on the Asbatankvoy form. The vessel was to load a cargo of gasoil at Tuapse in August 1994 for discharge at Trieste and Venice.

Asbatankvoy Charter. Clause 6. Notice of Readiness.

'’’’Upon arrival at customary anchorage at [loading or discharge] port the Master... shall give the Charterer... notices by letter, telegraph, wireless or telephone that the vessel is ready... berth or not berth, and laytime... shall commence... six hours after receipt of such notice...

Under a typed Clause 30:

Notice of readiness at loading and discharging port is to be tendered within 0600 and 1700 hours local time. ”

The master faxed or telexed NORs to Galaxy at the three ports, at 7 hours (Tuapse) and 18:00 hours (Trieste and Venice). In each case the Petr Shmidt had arrived at the appropriate place, and was (and remained) ready to load or discharge. No further notices were given, and in each case loading or discharge commenced next day. Galaxy challenged the validity of the notices as having been “tendered” outside the period specified, so laytime did not commence until loading or discharge began.

In May 19966 arbitrators Michael Mabbs, Mark Hamsher and Donald Davies decided the NORs were “transmitted and received” before the 0600 - 1700 period, that they were valid when passed to the charterer, and were “tendered” at 0600 hours” or “soon thereafter when the office was opened”.

Their award was upheld by the commercial judge in November 1996. The Court of Appeal agreed. Lord Justice Evans approved The Agamemnon judgement that laytime only commences “when the event stipulated in the charter occurs”.

This included giving the requisite valid notice, whose validity depended on the charter conditions being met. As in The Mexico I'm 1990, an inaccurate statement did not “ripen into a valid notice” when the vessel subsequently became ready.

The Petr Shmidt statements were true on dispatch and receipt. The “tender” validly took place when office hours began at 0600 on the morning after the messages were sent.

A notice “tendered” out of hours was non-contractual “and therefore “wrong” said Lord Justice Evans. However, these were given in writing, by means “equivalent to leaving them at the offices to be attended to at 0600 on the following day”.

Clause 30 did not say notice must be written, as well as tendered, in office hours. Whether the inevitable delay between dispatch and receipt was a few minutes or a few hours did not affect its validity, if the statement remained true.

His colleagues agreed. Lord Justice Peter Gibson adding that the commercial practice was to accept notices as having been given at the start of office hours on the next working day. “Realistically, the notice was received when there was someone in the charterer’s office to read and act upon it at the opening of office hours”; regardless of when it was sent.

Case № 13