Legal issues arising from the Japanese earthquake

I have had numerous friends in the business approach me for my views on the effect the earthquake, and resulting tsunami, has had on the ports and coastlines of Japan. While I cannot imagine the human cost of this disaster and the impact to the Japanese economy, I would imagine that there was and will be, widespread repercussions for the shipping industry. Some of these I see briefly are as follows:

Safe port issues

Shipowners may be reluctant to call at particular Japanese ports in case they have become unsafe. This will require a review of the relevant charter party terms before deciding on which course of action to take. Where a charterparty has a safe port warranty, the warranty will be prospective. In other words, at the time of nomination, the port should be prospectively safe to approach, use and depart from for the period of the ship's likely visit to that port. In the case of time charters containing a safe port warranty, where the Japanese port was nominated prior to the earthquake but the port is likely to have become unsafe by the time the ship is due to load or discharge there, the time charterer may be obliged to give new voyage orders, so long as the ship can effectively comply with those new orders. In the case of a voyage charter, the position is less clear and a detailed review of the terms of the charter party will need to be undertaken before reaching any conclusions.

Frustration/force majeure

In the case of supervening events, the charter party may contain a provision that allocates such risk. Where there is such a provision but it does not expressly cover the earthquake/tsunami situation, then one or other of the parties might seek to rely on frustration of the contract.

Depending on the choice of law provision, it may be difficult to prove that the contract has been frustrated. Under English law, for example, the party alleging frustration will have the burden to prove that circumstances have changed to such a radical extent since the contract was concluded that the contractual obligation in question can  no longer be performed or if performed, would be very different to the obligation originally contracted for.

If looking at force majeure, an exception such as "Act of God" would arguably apply. However again, the relevant provision and circumstances would have to be analyzed before concluding whether or not there was a force majeure event.

Deviation

The charter party will need to be consulted to see whether it contains a liberty clause which allows the ship to deviate to a different port. The shipowner does have an implied right to deviate in order to avoid danger to the ship, cargo or those on board. Thus, where radiation is the concern, such risk will have to be analyzed based on the facts faced by the shipowner at the time the decision is to be taken.

Delay

The congestion at Japanese ports that will have resulted from the disaster means that any ships already at Japanese ports, or due to call there, are likely to experience delays in loading or discharging their cargoes. Time charterers may seek to argue that the ship is off hire in such circumstances but, generally speaking, hire will continue to run unless the charter party is frustrated or the ship is ordered to an alternative port pursuant to any relevant charter party terms. However, the wording of the off hire clause in the charter party will need to be reviewed carefully.

This is an extremely short overview of the type of legal issues that may arise as a result of the Japanese earthquake. This is not legal advice. If you have any questions regarding this issue or any other involving shipping, you may reach me at miamipandi@comcast.net or through LinkedIn at http://www.linkedin.com/in/michelleoterovaldes.

Cruise ship discovery order comes out in Southern District 1/25/11

SCHULTE v. NCL (Bahamas) Ltd., 22 Fla. L. Weekly Fed. D574a (S.D. Fla. Jan. 25, 2011) (M.J. Simonton).

Torts -- Negligence -- Cruise ship -- Slip and fall -- Discovery -- Video taken aboard cruise ship at time of plaintiff's slip and fall accident and prior to anticipation of litigation does not constitute work product, and must be produced to plaintiff prior to plaintiff's deposition -- Video is not work product because it was made as part of normal course of surveillance videos made by defendant and was not prepared in anticipation of litigation -- Act of preserving video, in anticipation of litigation and at the behest of counsel, does not convert tape into work product protected from disclosure -- It is appropriate to require production of video prior to plaintiff's deposition to refresh her recollection where defendant failed point to any aspect of video, and/or any action by plaintiff, that would cause court to find that disclosure of video would lead plaintiff to improperly tailor her testimony, or would result in any prejudice to defendant -- It is appropriate to permit plaintiff to have second shipboard inspection of accident area where plaintiff misidentified location of incident by approximately twelve feet -- Second inspection would permit plaintiff's expert to examine and test relevant area where plaintiff actually fell, rather have expert render an opinion on area that may not be relevant to just resolution of matter -- Any additional costs associated with second inspection should be borne by plaintiff, given that she has already had one opportunity for inspection, and it was her obligation to ensure that she had all information necessary to ensure appropriate inspection

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Eleventh Circuit Rules on Contract Rescission March 31, 2011

ODYSSEY MARINE EXPLORATION, INC., et al., v. THE UNIDENTIFIED, SHIPWRECKED VESSEL OR VESSELS, 22 Fla. L. Weekly Fed. C1938a (11th Cir. Mar. 31, 2011):

Admiralty -- Property lost at sea -- Sunken vessel -- Contracts -- Rescission -- Researcher of sunken vessels seeks rescission of written contract in which deep sea exploration and recovery corporation agreed to pay plaintiff cash sum as “payment in full” for his research file concerning location of potentially highly valuable sunken Spanish cargo vessel -- Jurisdiction -- Error to dismiss plaintiff's claim for contract rescission based on lack of subject matter jurisdiction -- Claim is properly cognizable under federal admiralty jurisdiction -- Contracts to provide specific research to assist in locating and recovering a sunken vessel are maritime in nature -- Admiralty jurisdiction is proper where parties are litigating their rights to treasure found on sunken vessel

If you need more details on this case or the full opinion, please reach me at miamipandi@comcast.net or view my profile and send me a message on LinkedIn at http://www.linkedin.com/profile/view?id=34474138&trk=tab_pro.