TY - JOUR
AB - Cedric Barclay died in April 1989. He was one of the giants of the field of arbitration. In his memory the editors republish, with the kind permission of Arbitration, the journal of the Chartered Institute of Arbitrators, three of his characteristic contributions to the lore of arbitration. The first two deal with general topics and the third with his great vocation – maritime arbitration. We believe they show not only why Cedric Barclay was listened to, but also why he was so well liked. THE EDITORS International Arbitration (1981) Comments on development far from congratulating ourselves and then reclining in benign complacency, we should be looking at the present situation in International Arbitration, with despondency and considerable alarm. It is true that the number of arbitrations has increased almost exponentially, but this is due to the expansion in the volume of trade. In the meantime arbitration has suffered from a measure of downgrading in public opinion, since it is no longer held to be achieving its goal. Basic principles have been eroded. Severely eroded. Commercial arbitration was intended to be a quick and inexpensive system for the resolution of differences. Traders, merchants, professional men, expect speedy final answers to the problems which arise in commerce. Their queries would be resolved in the form of simple awards indicating who was right in argument, and who was to pay what to whom. That implied prompt awards immediately and unequivocally understood by those concerned and capable of easy enforcement with a minimum of delay. And what do we find? In International Arbitration the hearing and the award have been prostituted. No longer is clarity, simplicity or conciseness sought and displayed, but arbitrators have also abandoned any direct statement of their decision, preferring to indulge more and more in drafting what is tantamount to an obtruse legal thesis worthy of the Oracle of Delphi and in a display of puerile jurisprudence, jurisprudence imperfectly understood and often quoted out of context. Why is this so? The blame rests entirely with the spread of the Continental folly of producing reasoned awards of such length and complexity that the object of the arbitration is flooded, drowned and lost in a torrent of words, quotations and citations, most of which are completely irrelevant and only lead to confusion. Truly, as Gladstone said of Disraeli, some arbitrators are inebriated by the exuberance of their own verbosity. Even in simple commercial arbitrations, Continental awards may run to 60 or 70 pages. They are not intended for the disputants. They are written solely for the courts in the countries where enforcement will be sought. Arbitrators quiver under the shadow of the courts; courts which most of the time are jealous of their prerogatives, fearful and apprehensive of the popularity and the spread of commercial arbitration. Hail, Macauley who predicted this some 250 years ago. The result of this neurosis is that the wording, the format, the set-up of the award are intended for the judge in a foreign court, a judge who forgetful or ignorant of the purpose and ambit of the New York Convention of 1958, will try to find fault with the arbitrators' decision. He will be nobly aided and inspired by lawyers of doubtful integrity, whose sole aim will be to upset a decision reached laboriously and honestly, after the painstaking exercise of the Hearing. One starts therefore with the premise that awards are not made to be honoured. That arbitration is only the inevitable preliminary step in resolving a dispute, and that whatever the outcome of the arbitration, the decision is to be challenged. The challenge is to take place before a court, a court which has scant knowledge of the dispute, and has not heard the evidence, which even if it had, it would probably not have understood, because it, the court, may lack acquaintance with the law of the contract, and with trade usages in the field of dissension. It follows that compulsorily the award must recite in detail, minute or aggregate, every aspect of the dispute; it must quote the contract, must name the actors and the cast, describe their past and present occupations, dissect their former achievements, whether glorious or infamous, before proceeding to list the facts, recount the evidence, quote sheafs of the more irrelevant correspondence and inconsequential exchanges, while attempting to tailor precedent or contemporary jurisprudence to the needs of the case under review. Much later, and skilfully hidden somewhere towards the middle of the last half dozen pages, there will be an attempt at justifying the reasons for a decision. This in most cases will provide no arithmetical conclusion and precious little information regarding final liability. Precision will be absent. The claim is or is not ‘receivable’ – that's the vocabulary, but you are left to guess how much. Perhaps the length of these awards stems from attempts at delegating draftsmanship. Many of the Continental arbitrators are men prominent in law, who because they are so busy, off-load the work as an exercise for assistant junior lawyers or their postgraduate students. The latter, imbued with enthusiasm and possessed of infinite time, embark upon the task of composition and in attempts at surpassing their masters. Hence the 70 or 80 pages of the final presentation. Also in demonstrating the theorem under Parkinson's second law – work expands according to the time available to do it. In Arbitration Tribunals in Switzerland, it is customary for the Arbitrators to engage a clerk. The clerk is usually a skilled young advocate or solicitor who quite laudably and commendably, tries to impress his employers with a display of knowledge and a demonstration of his latent skill. He argues the case in writing, much in the way he would present a thesis for a Doctor's degree before a panel of Professors. His development of ideas will follow the rationale of the course which he has recently been taught at University or Law School and which unavoidably and atavistically constitute his guidelines. Since he will be paid by the parties, who shoulder this burden in addition to the Arbitrator's fees, and since time is never of the essence, it is the volume of words rather than weight of argument which becomes his criterion. But in any event the composition, or the essay, will be of the highest standard, with words each carefully chosen leading to literary connotations elegantly blended in the facade. That therefore is the form of the Continental Award. In engaging in mild criticism I am only reviewing a set of 50 or 60 decisions in International Commercial cases, in some six languages, which I have had an opportunity of studying recently. They are indeed works of linguistic merit, of historical value, of legal consequence, but they are not of any great assistance to the disputants. The service has been to the cause, but not to the litigants. Those concerned in the outcome are left in the dark. Their advisers have to interpret and explain the masterpiece. I recollect an Arbitration involving a boat builder in North West Spain in dispute with a Consortium of tuna fishermen. Whereas the issue, inter alia was whether rowlocks should have been provided on the ten foot dories precariously fitted with outboard engines of unpredictable behaviour, the parties were treated to a 50 page discourse on the vagaries of Swiss Cantonal Law since William Tell had weathered the legendary storm in the waters of the Vier Wald Stater See. Doubtless the Award of the three learned Professors was a model of its kind. It would never fail the scrutiny of the Judge in Coruna or El Ferrol, or even the International Court at the Hague, but all that Pedro Alonso wished to learn, was whether he had to pay Jesus Antonio Garcia and his mates, 122,000 Pesetas by way of damages, or supply six more sets of wooden oars. Is there a better way of discouraging people from resorting to International Arbitration? The Contract had the appropriate Arbitration Clause, and this clause spoke of the most aristocratic Tribunal ... in Lucerne. Such folly is now latent with our own new Arbitration Act. I do not know who persuaded our legislators that the International Community would flock to London if only English Awards were to disclose the Arbitrators' reasons. Someone must have done a great job of publicity. I suspect the hand of Members of GAFTA, who in Belgium, Holland or in Germany, may have found the courts occasionally reluctant to enforce English Awards, under the excuse that non-motivated Awards were against public order. It might have been easier to have insisted on the stricter application of the New York Convention. This has been ratified by the Low Countries. The reluctance was with the losing party. Public order was the euphemism for refusal to pay. We have had no trouble in France, none in the U.S.A., and the Eastern Bloc has never challenged an English Award. Why yield to Antwerp or Amsterdam? Anyway, during the few months since August 1979, the Motivated Award has not brought more business to English Arbitration. It has given rise to more appeals and incidentally to increased costs and delays. We have just added two more steps to the procedure – and we need more Judges. Lengthy recitals and endless attempts at justifying the decision in an Award, are unnecessary. The parties know what their case is about, and who pleaded it. They will have read and heard the arguments several times. Repetition is unnecessary. All that will happen is that the Award will be written up for people unconcerned with the dispute, and its contents will almost solely be directed for the benefit of the court to which an Appeal will be made. One expects the Appeal. It is indicative of the developing mentality that if an Award goes against you, then you will not honour it, and you will fight it in the court. To fight it in the court, you need ammunition – what better ammunition than Reasons in an Award. You can always pick holes in an argument. Procrastination for those who have sinned. Bonanza for the lawyers. Arbitrators do not have to imitate the courts. Commercial Justice can be dispensed without the turn of phrase and the logic which is expected from the Court of Appeal. The AAA and the Commonwealth Associations have survived without the giving of reasons. The short and concise decisions which we have given hitherto were much superior to the essays in jurisprudence which the ICC and others, deem appropriate. Our function was to decide, not to teach. It is a fallacy that the publication of Awards will teach others something. More often it leads to confusion and equivocation. Look at this bundle of 1500 Reasoned Awards. How many have we learnt from? It is not the motivation which one abhors, but the endless expositions and padding which we find infiltrating our system. Brevity is the essence of wit; justice needs no adornment. This country boasts of having eradicated rabies by virtue of the Animal Protection Act. Entry of domestic pets is subject to quarantine. Would that our legislators had applied the same wisdom in restricting adoption of the Continental Motivated Award. Lord Diplock, Lord Hacking, give us back our 1950 Arbitration Act. All will be forgotten. Perhaps on a different tack this time, why are there relatively few English Arbitrators called upon to join International Tribunals in Europe? Although English is now the language of commerce, not everyone in Europe speaks English sufficiently well to risk embarking on an Arbitration in English. Furthermore, the more popular Arbitration Centres in Europe have French or German as the local tongue. Arbitration Geneva or Paris implies French; Zurich is Schwitzer Deutsch. Mittel Europe, with Hunary, Austria, Poland or Czechoslovakia, has lawyers who are fluent in German. Unavoidably the Arbitrators think along the lines of their early teachings in those languages. There is more formalism, the law is statute, the flexibility of the Common Law is frowned upon. There is much more rigid thinking and the rules of the game, or of the Hearing, are more strict. We are not trained that way. English Case Law not infrequently presents lacunae from which the Continental Codes are free. Their systematic form and the willingness of their authors have foreseen contingencies of a hypothetical nature. Furthermore, the conclusive authority of precedent under Common Law leaves open to doubt if its authorities are beyond challenge by Higher Courts. Remember that the Continental lawyer is less concerned with history and more with die ratio legis. In Europe there is no sense of rivalry between traditional Common Law and the Law laid down by the legislature. In England we think of statute law as an invasion of the territory of the Common Law. Our thinking does therefore clash with that of the Continental Arbitrator, the more forcibly when, opposed to the direct legalistic approach of the Continental lawyer advocate, we offer the pragmatism and practical viewpoint of the English or Scottish architect, engineer or business man. Furthermore, the International Arbitration Tribunals hear testimony and may converse without interpreters in three or four languages in succession, adding interjections in a further two or three, where necessary for emphasis or ebullience. You cannot gain the confidence of foreign litigants if you make it difficult for them to express themselves freely, and if you do not understand them you cannot appreciate and fathom their remarks. Too many ostriches in sandy deserts. The aloofness of some of our Arbitrators, caused perhaps by their difficulty in understanding some Europeans, does not create confidence. The sphinxlike pose, the Lord Justice Jeffries attitude, may inspire terror or respect, but this token of impartiality is often deemed a confession of ignorance and of lack of understanding. A little more humanity would not be amiss, but beyond smiling pleasantly, how shall we show this when we do not understand. Are our standards too low? The ICCA Conference in Moscow thought so, but then the field was wider and our competence in technical matters was acknowledged. Yet there was some doubt left in the mind of the Eastern participants: Had the Europeans and the Japanese not caught up, nay overtaken us? Were our island boundaries a deterrent? They are, in some International Arbitration tribunals; and while one does not demand fluency in Khirquiz or in Sami, a broader knowledge of history, customs, and even of geography, would be beneficial to some of our Arbitrators. This Institute can help achieve such excellency over a period of years. Perhaps our Education Committee should consider recommending standards for Arbitrators wishing to practice in the International Commercial field. The Chartered Institute has already achieved much. A little more effort and guidance would keep us at the top of the profession – and consolidate the leadership we hold to-day. The Pathology of Arbitration (1984) Chapter 1. Genesis the most successful arbitration is the one that never takes place. I hate to rebel against the pundits and the Gurus who legislate for conflict and confrontation and shun any whisper which sounds even remotely like ‘conciliation’. If you have studied history, the history of the Sumerians, the Babylonians, the Egyptians and the Hittites, you will remember that before any head-on collision was contemplated, the parties had to attempt reconciliation. This became the custom within the Oriental World. In modern times China, the USSR, the Eastern Bloc and many South American countries have legislated accordingly. Here, we cannot impose conciliation as the first step. Punch-up must take place, peremptorily. There is no room for shuttle diplomacy. Sometime in 1951 Mr Justice McNair, at the beginning of one of his outstanding judgments, emphasised that the arbitrators' duty should be to assist disputants to settle conflicts amicably and to refrain from fanning the flames of discord. In its present state English law does not provide a mechanism for the settlement of commercial disputes. However, when the parties make themselves available for discussion, it is not impossible to coax them into agreement. In many ICC disputes and in a number of cases under English law, if the principals appear in person at a preliminary meeting, a cessation of hostilities can be achieved. The difficulty arises when diligent solicitors are instructed and appear on behalf of their clients. Their enthusiasm may carry the embittered parties into battle. One remembers a case of some complexity where the arbitrator had had the advantage of perusing the papers for the purpose of drafting Terms of Reference. These had not been agreed in their entirety. There had been long exchanges of telex messages, later confirmed by letters, somewhat inflated by fresh submissions. One's first task was to persuade the parties to agree, both being adamant that their arguments should be included in full in the initial documents. Under ICC Rules these have to be as slim as Twiggy. The arbitrator invited the parties to a meeting in his office. They turned up in due course, and for the sake of preserving anonymity, let us say that some came from Finland and others from Spain. The morning witnessed a torrent of epithets and an exchange of views regarding their respective genealogy. They smoked the arbitrator's best Canary cigars, munched his croissants, criticised his coffee, and thus suitably comforted, renewed their skirmishes. As customary, drinks were served at 12.30 pm. At 1 pm, all went to lunch with the arbitrator. The food was interesting. The caviar was black but fortunately the bread was white. Wine followed in the colours of the rainbow. After a dram of single malt, one could see signs of flagging. There was a thaw setting in in the relationship between the parties. Tea was taken in the office at the resumption but indigestion and fatigue had set in by then and the morning bellicosity had subsided. All they wanted to do was to go back to their hotels and sleep. A few suggestions were then made by the arbitrator and a second meeting was unanimously convened for some 30 days later. That second meeting started with a suggestion for compromise. Bargaining was the key word. Here was the escape route. The expression ‘without prejudice’ was repeated ad nauseam although no one took any notice. Aggressiveness had been swept away. After more drinks and another luncheon celebration at which gluttony did not take place, by half past three the parties had tired of repeating their arguments, but they had agreed on the time table and agenda for the final hearing. They had also promised to consider fresh suggestions from the arbitrator. They undertook to confer with their business partners and offered to let the arbitrator know within a fortnight (15 days to the Americans) if settlement could be achieved. Of course meanwhile they had been reminded of the cost of the hearing and of the discretionary powers of the arbitrator, verging on the arbitrary. Both reverted on the 14th day, to ask for extra time. This was granted. A month after the second luncheon had taken place, they telexed that they had settled. They had settled all issues save liability for costs, which they would leave to the good sense and fair judgment of the arbitrator. Here was an example where the softening process had led to conciliation. It is not possible to conciliate every quarrel and it becomes very difficult to do so when the disputants have no authority to bind their parties. It is impossible to conciliate when one of the disputants is a state or a state-managed organisation. The horses may already have been harnessed to the tumbrils in anticipation of defeat or of a pyrrhic victory. Furthermore, it is impossible to attempt conciliation when there is a tribunal of three. One cannot use the direct approach; it is not easy to convene a meeting and the tribunal is sure to be divided. A division not only of degree but fuelled by the prospect of a dissenting opinion leading to a sterner tug of war before the Bench. Chapter II: Delays ‘Never do to-day what you can put off till to-morrow.’ The reluctant respondents are assisted by the law; they have its weight behind them. Behind, does not mean that it is there to propel them forward. No, alas! It is there for them to rest upon. While the claimant invites physical exhaustion trying to demolish the brick wall of the law, there are countless subterfuges which the experienced respondents or their solicitors will apply to delay action. Here is what I have been told by a grizzly and wizened solicitor: Peremptory orders are best ignored. They have no momentum as they have no substance. Respondents should always wait a fortnight before doing anything in compliance. Respondents should always request further and better particulars, especially when postponements are convenient to one's Easter, Whitsun, Summer vacations and Christmas holidays. A week after any deadline, respondents should always seek an extension of time to comply. The courts will always grant a delay and the claimants know this well. Refusal would be an injustice – and who would dare commit one. Nothing should ever be an admission. Insist upon the other side proving every document. This is good practice in the United States. The claimants cannot avoid hypertension and may succumb on medical grounds – eg stroke, apoplexia. A respondent must always lose his papers. When asked to produce documents for inspection, he must deny their existence. Either the ship has sunk with everything on board and in her, or the cargo manifests have been impounded by Customs. As to the log books they have been deposited with the local Registry Office which will not release them. Claimants will have to find copies, or do their best without them. However, when it suits the respondents, documents which are favourable to their defence can be safely re-discovered in, or unearthed among, the brokers’ archives in the suburbs, preferably on the second or third day of the hearing. Never before! (6) The respondents should give notice that they will have to bring their main witness from Kuala Lumpur. This will delay the hearing for months. A fresh date will have to be fixed for this evidence. The date is usually four months ahead as the witness has or is about to have a coronary and may not leave his bed until three physicians have certified that he is fit to be cross-examined (gently). Invariably this will create anxiety. The claimant cannot remember why there should be a witness from Kuala Lumpur. Has he or his solicitors omitted something? He is shaken by the fear that if he were to lose, he would have to pay for a first-class return from Malaysia. (7) Lastly, the respondents must apply for the case to be dismissed for lack of prosecution and procrastination, Bremer Vulkan and Splendid Sun notwithstanding. One day these decisions might be reversed. Chapter III: The Hearing ‘If I could but spot a conclusion, I should race to it.’ Nash Ogden. Some think that hearings should start at 9 am, others that 11 is early enough. In London the problem hardly arises. Many are those who live beyond the Green Belt. Logistics hamper an early start. Furthermore, meetings between solicitors and clients, discussions with counsel and with experts, have to be held before resumption. Much may have developed since last night; fresh information has come in, telexes have been received, nocturnal arithmetic has been performed and the fruits of the Xerox machine have to be distributed. It is true the Commercial Court manages 10.30 am but communications are swifter in the Strand and involve little more than the normal hazards of crossing the street from the Temple, under the watchful eye of the local policeman. How does the arbitrator create the relaxed atmosphere for which he is praised in the text books! Should the arbitrator upon entering the room shake hands all around and greet counsel like long lost friends, making sure of enquiring about the wife's and the baby's health! In October, the questions should be about last summer's holiday in the South of France. Such harmless chit-chat impresses the clients who are led to believe that their solicitors’ choice of counsel was a wise one: the arbitrator is an old friend of their champion. The next step is that of dispensing refreshments or preferably a hot drink. This relieves the hypothermia caused by the long and frustrating rail journey to Waterloo. Everyone should be served with watery coffee. A biscuit or two would not come amiss. The arbitrator must abandon the formality of the courts. Invite the attendance to take off jackets; on a warm day, to undo their collar stud. Heresy! – why not allow smoking in spite of the Government health warnings! A habitual smoker risks withdrawal symptoms under such prohibition. As a good host, ensure that there are plenty of ashtrays on the table. I would not go as far as providing spitoons. West of Mandalay, these are no longer in fashion. A jug of iced water is not a luxury, but do provide sufficient tumblers, not just one beaker with a chipped rim. When parties are to spend a week or more at a hearing, they must be made comfortable. Do not condemn them to vegetate on the austere oaken benches found in the Criminal Courts. Seating must be comfortable. It is better to hire armchairs. Give credit to our Chartered Institute. Recently it has given us most luxurious accommodation. Avoid high back chairs with head restraints which only provoke idle thoughts. These must be reserved for the arbitrators. How else could they lean back after lunch and enjoy 40 winks, eyes shut in expectation of the celestial guidance which they have invoked. Good tactics for counsel is to keep an eye on the clock and at all cost avoid making his bull points between two and three pm. Between these hours barristers become unmitigated bores. The audience and the arbitrators would rather prefer the magic of siesta. How wonderful if one could resume hearings at 4 pm after giving all contestants a chance to reflect – stretched horizontally. Chapter IV: The Prophets – Counsel Young barristers should never forget the words of Charles I: ‘Never make a defence or apology before you are accused.’ The monotone of counsel induces sleep. Histrionics are wasted when hearings stretch over a few days. The hesitant advocate, however, is often successful. Some arbitrators believe that if counsel is fluent, the stream of words only serves to blur the issues and to hide some frightful machinations. A stumbling advocate may create an illusion of honesty, by trying to avoid words which might mislead – in fact, counsel may be searching for inspiration while dissimulating partial mental atrophy. Unnecessary examination-in-chief or cross-examination is a direct cause of the increased cost of hearings and of their duration. Extensive examination is often a waste of time and may have an adverse effect. A statement from a witness does not compel a line-by-line interrogation in-chief. Only what should be stressed deserves any emphasis. The Continental Tribunals can give us a lead. There, it is the arbitrator who raises questions on the statement. Counsel intervenes only briefly after the witness has been suitably grilled. Present custom in cross-examination seems to consist of repeating the previous line of questioning and by adopting a more menacing tone of enquiry, to seek re-affirmation of what has already been answered. This procedure is time-consuming, and should be halted. It does not make for progress, although progress may be the wrong word. Havelock Ellis once said: ‘Progress is the exchange of one nuisance for another.’ and he may have referred to successive counsel. The inflections of the cross-examiner's voice showing stupefaction or incredulity at the replies of a witness, do not really tip the balance. Arbitrator A will think counsel is doing well, while arbitrator B will say that the witness was bullied. The third arbitrator will be left undecided. Yet the advocate's belief still is that nothing said in-chief should go unchallenged. Fishing for inconsistency in the evidence is seldom rewarding; the fish may not bite. Again, the belaboured identification of a witness is a formality with which we could dispense. Very often he happens to be known to those attending. Many of the questions put by counsel, relating to his occupation and skills, are to give time to think out strategy. When counsel knows of something shaky in the testimony, he will deal with it expeditiously, and with appropriate assurance. A witness is not necessarily discredited because he may have made an error or retracted one statement. The rest of his testimony may be entirely valid. Underlying an answer may lie the truth, in a different perspective. Perspective does allow for parallax. I am reminded of a case quoted by a friend spectating at a hearing in America. The witness had said that someone had been wearing a blue shirt. The witness later referred to it as a grey shirt. Under severe cross-examination by counsel, relentlessly attempting to demonstrate the witness's unreliability the tortured victim finally conceded that the shirt was bluish grey. Chapter V: Habakkuk But how much store do you set by a witness's reply? One should not generalise, but after the passage of a year or two, a witness of fact adopts his callers' viewpoint. The expert witness always does. He who pays the piper calls the tune. Is it not better to rely on one or more experts selected by the tribunal? They should have no bias towards one or other of the parties. Correction! They would have less bias, not having had time to let bias develop. We find more to criticise in the behaviour of parties. The ebullient character of some is difficult to curb. They may have to be restrained by the tribunal. How else maintain the dignity of the occasion? Restraint should be gentle. It may be addressed directly to the person or persons concerned. How pedantic to tell counsel: ‘please restrain your party’. A judge in court may ask the marshal or the policeman to do that, but such is not the custom at hearings. All you will achieve is to be called ‘stuffy’. A respondent may feel he is not getting value for money until his counsel has left no stone unturned. Swift examination may disappoint the principal in attendance; he wants to play an active part. You will find him whispering continually to his lawyers, covering the table with notes, suggesting questions to be put and argument to be presented and finally leaving counsel perplexed and frustrated, gasping for breath under the accumulated debris. Arbitrators should watch for signs that the cross-examination concerns matters at issue. The tribunal is bored listening to aimless, rambling questions which have no bearing on the dispute. Some arbitrators loathe the: ‘Am I right in saying that …’ It may be all right to start that way on a television quiz but it is evident, immediately, that the questioner is unsure of his ground and seeks reassurance. Short of distributing Mars Bars of the larger variety, there is little that the arbitrator can do to stop a filibuster. Every party has the right to conduct its case as it thinks fit, even if the tribunal thinks the interrogation is leading nowhere. Never criticise counsel for being long-winded. Patience is a virtue, never exercised better than in gaol or in arbitration. If evidence can be demolished, a few questions will suffice. Too many have a boomerang effect and may redress the situation. The effect of repetition may be lost on the arbitrators. They may not be listening. It is important to ease the pressure on a witness and none should remain in the dock for longer than an hour. As a rule, witnesses are anxious and apprehensive. This provokes salivation and allied diuretic disturbances. The Tribunal of its own volition should rise every time the clock chimes. Arbitrators, too, may be geriatrics or old-age pensioners. Testimony extracted under stress is not always accurate and spontaneity is affected by physical discomfort. Let the witness smoke if it soothes his nerves. Encourage him to relax; let him be the first to have his cup of tea and let him drink it before it gets cold. Then top it up. But do not ogle his shoes; that is disconcerting. Who was it who said that if you stare at the feet of any newcomer into a room, he is bound to stumble as he attempts to follow your gaze? After the testimony, remember to thank the witness. Find something nice to say. If he comes from Merseyside, praise Liverpool FC. Some caution may be required: he may support Everton. Ask counsel if the witness may be released after crucifixion. Wish him a safe journey home. Chapter VI: Arbitrators Certain active arbitrators attempt to steal the show by duelling with counsel. This is risky. Counsel can parry attack by quoting chapter if not verse. The arbitrator should avoid pronouncements; most of these are founded on his recollection of mediaeval folklore. Counsel is younger and has better knowledge of recent events. In ad hoc arbitration, the arbitrators may give guidance on procedure. There is also latitude in the sequence of conflicting testimony. The claimant need not make the last speech. In difficult technical cases, letting the knowledgeable arbitrators run examination on the statement has now become a practice which shortens the hearing considerably. In confrontation between opposing experts, it may be beneficial to exile them from the hearing and tell them not to return until after they have agreed figures. After the speeches have been made, the tribunal should ask counsel if they are satisfied with the way the case has been heard. If foreign principals are in the room, ask them if they have unburdened their hearts. The answer is usually: ‘Yes, thank you’ but on occasions we have had impassioned speeches in Bulgar and German, commenting upon the arguments. This is a risk which one has to run. If your knowledge of Slav or Teutonic is non-existent, nothing will have been achieved, but the catharism, like confession, will relieve the disputant. Lest I forget, do not overlook the tea ceremony. Some arbitrators distribute sweets, mints and chocolate éclairs. No one has ever been heard to complain. Lastly, which sort of tribunal do you prefer? There are arbitrators who interrupt frequently to seek elucidation or enlightenment. There are others who freeze into silence like the proverbial sphinx. Probably the arbitrator is not sure of himself and is terrified of making the wrong remark. Perhaps he follows the old Spanish aphorism: ‘The donkey's silence often passes for wisdom.’ The behaviour of international arbitrators has never been the subject of comparative studies. It is well known in multi-national disputes that all arbitrators are impartial, imbued with a strong sense of justice and never make an award in favour of enemies of the State to which they belong. Arbitrators regard humour in court as something to be used sparingly and preferably by themselves. To ingratiate themselves, the skilful disputant must devise openings into which the arbitrator will rush with the punch line. The disputant must resist completing the sally himself. Chapter VII: The Feast of Balthazar/Luncheon A matter of debate and of much controversy is whether the parties should lunch with the arbitrators. At most maritime arbitrations held in London, the arbitrators, counsel, the solicitors, the witnesses and the camp followers take luncheon together in a spirit of friendship, bonhomie and cigarette smoke. This has become almost traditional. This may be a side effect of the democratic system in which the shipping industry has developed. The maritime arbitrators are plebeian. After all we are all equal in a life raft. We have no class barriers and the most senior arbitrator is happy to rub shoulders with counsels' pupils, even those who gatecrash the hearings at a quarter to one just before lunch. This fraternisation has helped to knit close ties of personal amity and respect between London arbitrators and the legal profession. Our judges were once young barristers who in years of austerity shared the cheese and pickles of the arbitrators. The conversation may be chit-chat, gossip or philosophical discussion. Variety creates the atmosphere of mutual trust. If at lunch you should sit next to a witness you may discover a great deal about his character. His drinking habits, where he went on holiday, his hobbies, may help sum up the man. Invariably he will boast of his prowess in certain fields and that may prove his Achilles Heel. Of course no mention is ever made of the dispute in which you are all involved. The Continentals deprecate such behaviour. There, class barriers are rigid. Hierarchy must be respected. Across the Channel, Monsieur le President will not sit next to, or condescend to exchange chit-chat with, Mlle la Secretaire – at least not in public. I am told that in disputes in the architectural profession, fraternisation is taboo. GAFTA is somewhat different. The parties do not appear at the hearing and bachanalians are for the arbitrators alone. Yet at a number of international arbitrations held in the USA, Spain and behind the Iron Curtain, the English club atmosphere has permeated, and the parties have not complained; they have enjoyed it. As a lay preacher of sybaritic living, may I claim some success with my proselytism. What should the fare be? The menu must be good. Enough is not as good as a feast; select with care. Sandwiches, dog biscuits, Russian salad and tepid tea are an insult to your guests. It is true a good repast will cost much, but then those that can afford the luxury of arbitration should also afford the cost of a proper meal. Do dispense liquids in abundance. In Vino Veritas. One glass of wine of doubtful origin is false economy. You should persuade your foreign guests that London, to-day, can offer culinary delights of the highest quality. Be original in your selection of menus but be discriminating. Keep off delicatessen and species of shell fish. Sheep's eyes – however delicious – are less delectable to the ancient Briton from Cumbria. No struggle can be fought, properly, unless and until the combatants have been fed and watered adequately. You will find that libations soften attitudes. People are more amenable to compromise and to settlement when resentment has been diluted by alcoholic derivatives. Many of their less momentous tactical diversions are foresaken. In fact much procedural deadwood is cast away and disputants are glad to be rid of their own worthless arguments. One of our most distinguished and respected vice-presidents has accused me of encouraging alcoholism. I once wrote a paper for the ICC and thereafter was criticised, mercilessly, for sponsoring or stimulating one of the seven sins. As a teetotaller I am immune from temptation. Nonetheless, I cannot refrain from quoting the most famous of English diarists. Here plagarism is unnecessary. Machiavelli could do no better. Three hundred and thirty years ago, Samuel Pepys had said: ‘Strange to see how a good dinner and feasting reconciles everybody.’ This is my philosophy and that of the great God Buddha. Chapter VIII: The Apocalypse/The Award Autopsy of the award is outside my present Terms of Reference. At this late stage, the conduct of a hearing cannot affect the burial service. On a humanitarian note, do try when giving your REASONS to name all active participants to the affray and do say something nice about the vanquished. Praise their more meritorious expostulations to show that you have been attentive to the sniping. Extol the skill of their expert witnesses. Admire the impeccable presentation of the statements from the witnesses of fact, notwithstanding that these statements were sworn a week before the hearing, and six years after the event. All this hardly matters, of course, since the award favours the opponents, but balsam is as good for the soul as it is for the skin. But be cautious about revealing the frailty of arbitration, and in the temerity of disclosure, never remind the disputants that: ‘It is one thing to get an order for costs and another to collect them.’ Practical Experience in Maritime Arbitration (1983) Why this sudden aura and glamour which enshrouds Maritime Arbitration today? Once upon a time our little ones hoped and prayed that when they grew up, they would join the fire brigade, become locomotive drivers, fly Concorde, or more recently, develop into bionic spacemen; now their older brothers (and sisters) all want to be maritime arbitrators. Letters reach us every week describing their ambitions. Budding solicitors or barristers, shunning the greater honours to which they may be destined, want to become … maritime arbitrators. There must be reasons for this madness. Does this last bastion of masculinity promise fame, glory and immeasureable rewards, with entitlement, one day, to some abbreviated mention, buried in the preface of Lloyd's Law Reports, carrying one's name in miniscule lettering to proclaim that the arbitrator's award has been upheld … or remitted? Are we at the start of a new era when, henceforth, the Flamingo Hilton or Caesar's Palace will feature as new stars of stage and screen, Clifford alongside Tom Jones, or Donald paired with Sammy Davis Jr.? There is little doubt that in shipping disputes, arbitrators do not adhere too closely to the orthodox classical procedures described in text books and discussed interminably at some congresses. Because so many maritime contracts do develop into disputes and are referred to arbitration, the system has become almost a way of life. Most, if not all, charter parties provide arbitration clauses. Perhaps the industry is one which offers greater diversity and its activities are less restricted. Perhaps too, maritime arbitrators having the advantage of their commercial background, as shipbuilders, shipowners or charterers, do courageously take a more pragmatic view of human frailties and do not conform so strictly to the rules laid down in the formal ‘blue serge’ suit Hearings at which our lawyer friends do so brilliantly distinguish themselves. The confrontations are certainly not tailored along the rigid lines which many international bodies wish to impose. It is not that discipline is lacking or that the level of discussion is not of the highest order, but the fact is that maritime arbitrators are much more of the dashing swashbuckling type, terribly realistic and well aware, through bitter experience, that we do not live in a perfect world. Furthermore, they are used to working at all hours. This may be a reflection of life at sea when you stand watch round the clock and do not cast anchor at weekends and holidays. You also wait patiently at the quayside and in pouring rain, for ships which may arrive or sail from their berths at wholly unsocial hours. It is true to say that if a shipping dispute has to be resolved speedily and at short notice, you will find, in London at any rate, arbitrators prepared to sit at Hearings on Saturdays, Sundays, Easter and Royal Wedding days. They will also start at six a.m. and, if so required, rise well after midnight … and they will not charge more for giving such service. The experiences of some of these paragons of virtue must make exciting reading. While their prowess is not strictly comparable with the feats of a certain Mr. James Bond, and even less so with his successful amorous encounters, the fact remains that because of the international nature of shipping disputes, there is nothing remarkable about sitting in Copenhagen one day, in Genoa the next, in Delhi or in Djakarta during the weeks which follow. Arbitration Paris is not restricted to the area bounded by the Boulevard Peripherique. But this may not be all, because in addition to the diversity of venue or of climate, there is a problem of environment and of ergonomics. We do not always sit in comfortable chairs around a large table, dazzled by its white cloth, crowded with bottles of iced refreshment. I say not always, as there are exceptions and sybaritic comfort is something arbitrators enjoy, but we have carried out Hearings on ‘the hoof’, leaning against the windlass, or resting on suitcases in airport lounges, arguing on board airplanes (on documents) and in a ship's galley. This last venue being used during a very wintry night at Zeebrugge when the outside temperature was −10°C and the boilers being under repair, the only warm spot in a dead ship was in the cookhouse. The evening meal had already been cleared and the place had shut down but there remained a simmering saucepan with something akin to a sludge of Mexican jumping beans. After sounding the bottom with a wooden ladle the arbitrators and the two witnesses, comforted themselves with the occasional scoop. Contrast this austerity with a late sitting in Gijon where the tribunal rose at two a.m. to partake of a truly princely meal at an adjoining luxury nightclub, with arbitrators, witnesses, experts and disputants sharing the same table and joyfully relaxing in an atmosphere of gracious benignity and with expressions of love and endearment all around. There is little acrimony in Maritime disputes. Arbitration is a mode of life. It is a daily occurrence. Many major firms and even state enterprises may start a case every other day. It is easier to refer differences to experienced arbitrators, rather than to exchange lengthy arguments by correspondence. Certainly, the tanker operators and their charterers have learnt this lesson, and resolutions are swift and generally painless. Perhaps tanker disputes are often of a simple nature, but the sums of money are invariably large. One is dealing with the well-heeled wealthy crowd. The Arbitrator as a Wandering Expert ‘If the mountain will not go to Mohammed, let Mohammed go to the mountain.’ Rationalisation could take arbitration a step further. Why wait two to three years for the list of shortcomings and the giant repairs which are deferred or outstanding? Why draft endless schedules, costed by the leading European yard and contradicted by the efficient little workshop employing two men and a boy in a back alley in Piraeus? The suggestion has borne fruit. The ore carrier had been re-engined and work had been done to the holds and on deck. She was going out on acceptance trials, but some novel features required monitoring for the first few days. Why not embark the arbitrator at the start of the trip and drop him off on the way south? He climbed on board near Ushant and was landed off Setubal. In the interval, all complaints were examined seriatim in the presence of the owners' superintendent and the shipyard's guarantee engineer. This was hardly a confrontation. Excursions were made to the holds and to the engine room. The evidence was there for all to see. There was no room for argument. The cost of putting matters right was estimated and readily agreed. Off Berlengas Island, the arbitrator had totalled the liability. It came to some $35,000. The yard had done a good job. The re-engining was a success. We reckoned that, had the matter been dealt with pedantic formality ashore, the Hearing alone could have cost twice as much. The dispute would still have been in progress and Points of Claim could be expected by next Christmas. For new (ship)-buildings and conversions, why not invite the arbitrator on board when the work is finished? It would save reams of paper and much acrimonious letter writing. He can see what is meant by a distorted frame. It could be a nick in the flange, or a bulb angle wrenched away from the shell plating. Words may be descriptive, but they are also disconcerting. Vision leaves little to the imagination. Shipbuilding Contracts and Arbitration There is a clause often found in shipbuilding contracts that disputes should be referred to the Principal Surveyor of Lloyd's Register of Shipping. This is a well inspired clause, but it does create problems. First, the Principal Surveyor is one of the world's busiest and most able men. Because he is so actively employed he would have to delegate his function to someone else, but the wording of the clause does not provide for delegation of powers to others. Secondly, construction disputes take much time to resolve and it is very doubtful if the Chief Surveyor could be spared by Lloyd's Register for the purpose of sitting for several weeks as a judge in a private squabble. Thirdly, although he may be, and probably is, the best authority to rule on materials and workmanship, and on the intepretation of specifications, is he to act as judicator concerning the meaning of obscure contractual clauses, which baffle the best advocates and are often exercises in semantics? Parties and their legal advisers should take greater care when drafting their arbitration clauses to make certain that the nature of the dispute does rule the choice of the arbitrator. The snag is that the legal advisers who are customarily so brilliant, are seldom men with any technical knowledge or acquaintanceship with practice in shipyards and therefore notoriously unable to envisage the difficulties which will arise. Perhaps clients should seek only the advice of truly experienced maritime lawyers, and thus avoid hazy phraseology such as the reference of all disputes to the Principal Surveyor. One must speak in defence of people in this high office, who are unnecessarily disturbed by incessant brawling between builders and buyers. There has been much cause for conflict over such references and this has led to much nefarious delay. Shipbrokers and Geography A subject which requires deeper knowledge than is available to school leavers, is geography. No one can become a shipowner or shipbroker without greater understanding of the geography of the world. Shipping is an international exercise and it demands an unusually agile mind. When a fixture goes sour, one has to think of alternative business; freights, routes and facilities at the various ports, and one has to think quickly. An arbitrator's task is considerably eased when he retains a picture of the world in mind and is able to switch from area to area, knowing the distances to be traversed and the weather to be met on the way, thus, to decide if parties have attempted to mitigate losses adequately, as is their duty. This is where training as a shipbroker is particularly useful. In this connection, the work of the Chartered Institute of Shipbrokers is to be commended. Its syllabus for the examination of Associates, and for Fellows, aims at a high standard. Maritime arbitrators without the equivalent brokering qualifications are handicapped and I would venture to say, hardly to be recommended as good all-rounders. There are certain basic requirements in their general education which are not always met by prospective budding arbitrators. It is encouraging to note now that most of our successful arbitrators are men with long experience of fixing ships, of negotiating contracts, and as well as acting as water clerks or managing liners, of drafting additonal clauses to charter parties to satisfy the exigencies of a demanding clientele engaged in particular trades. Most shipowners do reach these standards, often through years of bitter experience. There, again, charterers may be less knowledgeable because their shipping requirements occur less frequently and they lack brokering practice. Of course there are exceptions, and it is wise to employ well qualified chartering clerks in merchants' offices, so as not to have to rely entirely on local brokers who, in the smaller ports, may be part time specialists through force of circumstances. How well informed or experienced are maritime arbitrators in order to meet the criteria? This takes us back to the old chestnut of ‘horses for courses’. Choose your arbitrator for his knowledge and experience, not because he has been recommended by a friend, or is on a Panel of an Institute, or even because he has obtained degrees in philosophy and commercial studies from some back state university. Sound practical knowledge should be accorded greater weight than theory. Sustained reading of the more popular legal text books only leaves one with restricted side vision. Arbitrators can soon spot those advocates who are ignorant of ships. Lawyers may have been rehearsed by their experts, but it is disappointing to observe with some frequency how little they understand of the functions of ships and characteristics of their equipment. A few months at sea, or at the quay side, would help them immensely. Some assistance can be obtained by dispensing with the usual wall hung Mercator projection and standing alongside our office table a large terrestrial globe, two drawing pins and a length of string. How much more helpful this would be in correctly proportioning those lands located away from the Equator and in tracing Great Circle Routes. Trading limits can prove deceptive, take for instance ‘not West of Panama’, which would exclude the US Gulf, because the longitude of the Canal cuts in between Jacksonville and Charleston. Unless you negotiate extending the range you may as well forget about Phosphates from Tampa or Maize from the Mississippi. Bless the judge who accepted evidence of custom from Baltic brokers and thereafter set us back on course for Brownsville. Vera Cruz is 20° west of Cristobal. Accepted the evidence? of Baltic brokers? What range is described by UK/Continent? The answer depends where your allegiance lies. Does it encompass Hamburg/Ushant or Brunsbuttel/Bordeaux or Skagen to Gibraltar. Where does Europe end? Where does Africa begin? Are you aware that since World War I, while Dublin is outside the UK/Continent, Belfast and Derry are not. Early on I came to admire the wisdom of our oldest surviving maritime arbitrator. He had to rule upon the calendar limits of ‘Baltic in Season’. He is a man of great modesty and commendable discretion, so he still refuses to tell me exactly what he did decide, but the grapevine whispers are that he found ‘Baltic in Season’ was to be understood as seasonable for going to the Baltic. Only yesterday, counsel argued fiercely that Galati was not in Europe. To him, or to his client, it was in the Black Sea. One shudders to think how our Romanian friends might react to exclusion from the Continent. Could such hereticism lead to an uprising within Navlomar? Galati not in Europe? Then where else could it possibly be? The answer was readily provided by my friend Themistocles, to whom I turned for advice. He shrugged his shoulders and said it was always worthwhile trying out fresh defences. One never knew, but you might persuade the umpire, or the third arbitrator, whose schooling in cartography stopped at the boundaries of the Hellespont. Should the Arbitrator be an Expert in his Field? It was a week of scorching hot days in Scandinavia. The might of the State Electricity Technical Board was deployed by the claimants in an arbitration. A T2 tanker had been chartered as a floating power station to assist the National Generating Authority to meet peak demand during the course of a severe winter. Unfortunately the ship failed to ‘generate’ as expected and in effect, abstracted power from the grid. The ship's alternator had been designed for 60 cycles. When limited to 3,000 RPM, it behaved as an inductive generator providing a leading current, causing the power factor of the entire system to drop below 0.75. A frequency changer had not been fitted, none was available. This resulted in the grid supplying the ship. The engineers on board felt uneasy about opening up the steam stop valve, the boilers having seen better days during some heroic wartime service, and being suspected of potential failure if run at the maximum evaporative output corresponding to 3,600 RPM, of the turbine. Most of the two-day Hearing was spent opposite a blackboard, listening to impassioned exchanges between the two arbitrators, who wielding coloured chalk, tried persuasion by vectorial representation interspersed with occasional invective and threats of involving the square of minus one. In the end the solution was found in the wording of the contract and provided further demonstration of the power of semantic legal gobbledygook over the precision of cyclic phase synchronism. The charter party had been drafted by international shipbrokers whose knowledge of electricity proved to be inferior to that of Faraday before birth. Such lack of foresight helped not at all, but what distinguished the Hearing was the spontaneous direct confrontation between two arbitrators, who being truly knowledgable in their speciality, could waive aside the many consultants arraigned as field reserves on the touch lines. That is not arbitration one might say. Why not let counsel argue the point? Why not indeed, save that it would have occupied a month, with the specialists attempting to teach grandmothers to suck eggs. Do you have to hire an expert if the judge himself is competent? Do we need a broker to tell a director of the Baltic Exchange how rates fluctuated after the closure of the Suez Canal? Does a second engineer have to describe procedure for starting up a turbine, to an arbitrator who grew up with Parsons on the Tyne, or with de Laval? This is one of the disadvantages of the adversarial system. Where the consultant is appointed by the tribunal, a proper choice of an expert can often be made. The judges will seek advice from someone who knows more than they do. Where the parties bring along their specialists, the latters' relative incompetence or partisanship may soon become apparent, yet they have to be heard, if only for the benefit of interrogating counsel. On a recent occasion the procedure for rapid warming up HP casing was considered in detail. There were four expert consultants. In examination-in-chief and in turn, they were asked what they would do. Then they were cross-examined and then they were re-examined. The operation was thus described twelve times. It could have been quoted with greater clarity from the makers' instruction manual. Furthermore, the arbitrator himself had relinquished starting up turbines on his retirement some twenty-five years ago, perhaps before the first interrogating counsel had ever been conceived. Was that not a waste of time? Who was it who was being educated? Why should the parties have had to pay for training the lawyers concerned? But our Court of Appeal does not think so. If the arbitrator relies on general export knowledge, there is no need for him to disclose it, but when he relies on knowledge of special facts relevant to the particular case, he is duty bound to disclose them before obtaining support for his award. In effect, he should not give evidence to himself or act on his own private opinion, without signalling his intention to the parties. But what is general expert knowledge? Admitting steam to the glands? Is that general expert knowledge, or is it part of his knowledge of the idiosyncrasies of a particular machine? The court had said ‘There were some arbitrations in which the arbitrator was expected to act on his own knowledge and form his own opinion without recourse to evidence, such as an arbitrator deciding whether goods were up to sample. In other, such as arbitrations on shipping and building contracts, the arbitrator was expected to receive evidence and the submissions of advocates and be guided by them in reaching his conclusion … he should not use his knowledge to derogate from the evidence of his plaintiff's experts, without putting his knowledge to them and giving them a chance of answering it and showing that his own view was wrong.’ The court is right, but it sets the arbitrator against counsel if the case is mildly defended. The argument is developed in public. It may leave bitterness if the arbitrator is proved wrong, or if counsel has to bow to his superior knowledge. Anticipating Trouble Curiously, for many years a bone of contention and the subject of many debates, has been the watertightness of metallic hatch covers. It would be idle to suggest a return to timber and tarpaulins. Ships have grown in size and their cavernous holds require special closures. Cargoes may suffer in westbound North Atlantic winter voyages. Infiltrations occur when structures hog and sag at the mercy of weather. To quote Mr. Justice Donaldson (as he then was), even newly fitted hatch covers may fail to keep the seas in their proper places. Since steel products are damaged easily by humidity and since any seasonal interruption of the house building boom in Florida may create anxiety about marketability of rods, sheets, joists and reinforcing bars there are shippers who will insist on hatch surveys taking place before loading. Inspections carried out in light condition are only indicative of a condition which may not occur again on the voyage when the ship has increased her draught. The static hose test is invariably bungled by directing the jet against the foreman's strategically located heavy boot and the results are not conclusive. Application is then made to the local Tribunal of Commerce, who sympathetically will order an investigation. Meanwhile the ship is placed off hire. The owner claims arbitration and tells the court not to meddle, whereupon, the local police, in their attractive truncated caps, climb on board to protect the bailiff. An impasse is reached. Something or someone has to give way. The owner orders gaskets to be renewed, missing wedges to be replaced, turnbuckle threads to be eased and graphited. The cost exceeds US $200,000. Who is to pay? Did the work have to be done then and there? One is reminded of the Preveza (1971) Lloyd's Reports ‘immediately is not to be construed as instantaneously’. What is ‘immediately’ is a question of fact for the arbitrators. Our judgement will be relied upon. Why wait two years for the award? You could call the arbitrator before the situation gets sour. Doggedness ‘I silently laugh at my own Cenotaph And out of the Caverns of Rain Like a child from the womb, like a ghost from the tomb I arise and unbuild it again.’ (with apologies to Percy Shelley). It was in 1968 that the number of casualties increased dramatically. About that time, the many hundreds of Liberty ships had aged irremediably. They were not worth repairing. Many had become moribund. The Gulf of Kutch became their cemetery. From Aden, ships would cross the Indian Ocean, under overcast skies and with inoperative D/F, yet make their landfalls with an accuracy of within three miles. But then in sight of harbour, haven or port, they would strand on the nearest beach. Why indeed? Was it due to exhaustion or to over excitement? There ensued a spate of arbitrations, the facts hardly differed. Had it not been for their special cargoes, history would have remained silent, but in years of famine, ammonia and its sulphates were valuable and unseaworthiness formed the accusation. Unseaworthy! Yes, some were indeed so, but one admired the skill of masters and crew who sailed these colanders through the summer monsoon. Endurance Arbitrators too, can be led astray, but the consequences may turn to their advantage. One evening the phone rang to enquire if the arbitrator could manage a quick Hearing. At most it might occupy 14 days. He said yes, and was assured he would be acting as a Sole. Yet two weeks later he was downgraded to one of three, and on the eve of the Hearing the indications were that 28 days would suffice. In fact the case occupied 134 days, and ran for two and a half years. It was fascinating, exciting and instructive, and it bore some semblance to a Royal Garden Party. Almost every professor of note in Western Europe, and in the U.S.A., filed before the arbitrators; every boffin within Classification Societies was called upon to testify. There were 14 days of projections of x-ray slides of 2,000 allegedly suspect welds. Close curtaining and obscurity in the room left the arbitrators cross-eyed with loss of their night vision. It also instilled a latent fear that every ship in which they might henceforth sail would undoubtedly split at the seams and present several divided sections, fully ready for jumboising or lobotomy. The Hearing became a matter of survival. Not as regards lifeboats, of which there were many. Large tankers are notoriously reluctant to sink swiftly, if they have a chance of polluting adjacent holiday beaches, but it was the arbitrators, whose total of years exceeded 215, and who had to be insured. After all, Hearings costing $50 per minute, might prove inordinately expensive if aborted by disease, disappearance or death. On second thoughts, was life insurance the solution? Had no one thought of kidnapping a member of the tribunal and holding the claimants to ransom for the costs incurred in the action. Are Arbitrators exposed to Danger? The risk does exist. Trips by private airliner brought the three worthies to the shipyard to be lifted 180 feet on to the deck of a ULCC before a descent into the entrails of non-inerted tanks. A wooden cage was built and fitted with two bench type seats and the assembly gently raised by a dockside crane winding a 22 mm. runner wire. Did prudence ordain that the strands should have been examined for fraying before starting on such perilous journeys? Fortunately, the weather was kind. Force four on the Beaufort Scale. Two weeks later, at an adjoining berth, Aeolus twisted the 500 ton overhead gantry – was it his revenge? This leads one to suspect that maritime arbitrations are fraught with danger, and are only for the lion-hearted. Three weeks were spent discussing the end clearance adjustment of an LP Rotor. Class had given its blessing before the transfer of ownership, but two nights out of dock, one evening after some hasty warming up, expensive noises were heard. The testimony included a tale of such severe vibration that the third engineer's golden Rolex Oyster had been wrested off his forearm while he attempted to shut the steam stop valve. That should have made good advertising copy for the watchmakers, had it not been for the timepiece vanishing in the blackest of bilge sludge on its way to an overboard discharge. The buyers claimed no deal, and asked a refund of the cost of the ship. They endured an award against them, but promptly next morning declared to all and sundry that they had vowed to murder the arbitrator within the next seven running days S.H.I.N.C. Such threats are not to be taken lightly. It is so easy to trip a man off the quay at lowtide, or while the ship may be ranging at Barons Wharf, and it is also only accidental and unpremeditated to hold his hand against a superheated steam pipe, whose lagging has peeled off at a convenient elbow. One had to proceed home with caution that night, but the threat was repeated, and in self preservation, the arbitrator then suggested, diplomatically via friends, that an appeal to the courts should be tried, before murder was committed. Ultimately, tempers cooled off and perhaps after re-blading the offending turbine rotor was treated with greater circumspection and more love. Affection and Cosmetics For ships like good women, do respond to love. Satan does not always inhabit them. They are feminine. They should be treated humanely. Too much care and they will grow defiant. Too little, and they feel unwanted. Remember the old wartime song – ‘She may be weary, women do get weary, wearing the same shabby dress’. They like to please. Pain is like cosmetics. It hides blemishes, and it looks good from a distance. The more so on the older bottoms (no pun intended). Owners fearing an accusation of neglecting their vessels have been known to commission fashion photographers to take pictures of their ships emerging from dry dock. Clean decks, black coamings and white topsides, do impress arbitrators. Of course the wise charterer, if he ever gets near the ship, could adopt the same ruse. Summon Kodak or Agfa on board and use a fish eye lens to distort perspective and enhance the defective geometry of the bulwark, of the forecastle, the years of general neglect and the ugly swelling of the prominent stem piece, while the ship is in ballast and trimming well aft. Do not forget to snap the anchor dropping straight on to the bulbous bow. So much the better if it produces a spark. Such artifices score marks with those who have read Scrutton, Carver, Rodière or Cheuveau from cover to cover, but who have never been to sea. A fair enprint is worth two good consultants. The cost is a thousand pieces less. A skilled photographer is worth his weight in gold. Amiable Stevedores Do not use hooks. Indeed says the Temple, stop discharge if you spot stevedores pricking the bags. Yes of course, you must not encourage spillage. Do not puncture the sacks. But try it yourself, just go down and tell your wiry, sun-tanned and sinewed labourer to shift 75 kilos by using only his fingernails. The risk is that you might end up with the hook embedded in your navel. ‘Sir, it was only an accident, Sir, I swung round, it slipped my hand and landed on the mate's belly button’. Why do we not send our clerics into the Tweens when dust obscures vision and the bags are so tightly stacked that to dislodge them will require more than gentle oral persuasion. Admonition from the Family Division, counsels of perfection indeed, collecting the sweepings will show only minor losses and anyway, for what are we paying the P&I? Our deductible is moderately scaled and I have a wife and dependent children at home. It is the human problem which makes shipping so exciting and exasperating. Masters will die on Sundays, mates have marital trouble, chief engineers develop lumbago, and firemen, greasers or motormen jump ship an hour before high tide. Are we masochists? Perhaps. Variety is the Spice of Life A South American company had purchased the matrix disc of popular American tunes for dubbing in Spanish. It refused to pay the Royalties which became due. The excuse given was that its new lyrics were far superior to the Hollywood ‘Moon, swoon and croon’. The improvement had changed the nature of the music. The appointment of an arbitrator coincided with a lecture tour to Mexico City. The sole reason for choosing the writer to adjudicate, probably was that some of the songs were sea shanties: ‘Si non e vero e ben trovato.’ War Risks At three thirty p.m. on a Saturday afternoon during one of the rare bouts of warm weather in London, our arbitrator was asleep in his chair, still fascinated by reminiscences of his last interim award. The phone rang – ‘This is Tirana on the line, can you help us?’ It was soon obvious that the caller was not fluent in English. After unsuccessful attempts at finding a common language, a link was established in broken Macedonian. The vocabulary used would have severely shocked any eavesdropping bishop, but a long conversation ensued about the difficulty of pumping phosphoric acid residues into disused oil barges. The purpose was served and after two interruptions, the talk ended on a cheerful note. The telephone exchange rang within five minutes, and probably with tongue in cheek, someone chided the arbitrator for conversing with Tirana. Was he aware he could face a long-term imprisonment for consorting with the enemy? There had been no peace treaty signed with Albania, and since the Corfu channel incident in 1946 we had remained at war. Withdrawal In 1976 there was a sharp rise in freight rates and owners whose ships were fixed on long-period time charter did strive desperately to withdraw their vessels, so that they could use them in more lucrative business. A delay of two minutes in receipt of payment was sufficient excuse for a withdrawal under English Law. Abroad it was not so, and we therefore lived with two systems of law. In London, one watched the clock in St. Mary Axe and if advice of the remittance of hire had not arrived by 3.01 pm notice of withdrawal was served by owners at 3.02 and their bank was told to return funds received thereafter. That the dice is heavily biased towards owners, is clear. However slight the delay whenever time charterers are late, they stand to lose the ship – the charter is at an end (the Laconia), but the owner, lucky fellow, has a ‘reasonable time’ to decide if he will accept payment and continue on hire, or will withdraw his ship. Meanwhile if ‘reasonable time’ should coincide with scaling of holds in preparation for loading a grain cargo which is already lodged in the elevator, some fortunate owner will one day skillfully phase withdrawal of his ship so that she is cleaned and made ready in charterers' time and at his expense. The law says the owner must be given time to reflect. Reflect on how to grab the cargo for himself? ‘The Dwarf sees farther than the Giant when he has the Giant's shoulders to mount on’ The arbitrators cannot indicate to disputants that they may be getting the wrong advice from some of their expert consultants. One can hint at themes which might be usefully developed, but then under the adversarial system arbitrators can only assist at the end of the examination of witnesses by discreet prodding with the right questions. There was a claim of $15 million by shipbuilders against the defaulting purchaser of two Product tankers. The refusal to accept the vessels was pleaded on technical grounds, but that was a cover-up for the freight market having collapsed. The buyer's excuse was that the tank coatings had pinholes and that bulkheads had been stretched when assembly had shown some misalignment. Fairing had been less than perfect, but had been corrected and was within Classification Society norms. The imperfections were in the area coinciding with that of the neutral axis of the ship. Under the most severe bending moments, developing stresses would have been minimal. The theory was mooted and demonstrated by a very competent stress analyst, but the prospective shipowners who had engaged as adviser an uncertificated second engineer, whose sole merit was to have sailed with Archimedes in paddle streamers and who knew nothing of Young's Modulus, or of Poisson's ratio, greeted the explanation with chuckles and guffaws. Obviously they had never heard of finite element analysis, neither had their Counsel. To them King Darius's wooden galleys had always sheltered in the lee of the Dodecanese, whenever the storms broke. Yet the shipyard conceded victory before the final speeches, and paid buyers some $2 million in damages. The arbitrator's Award would have been in favour of the yard, with $10 million going the other way. Is it our duty to provide warm wool blankets to guard litigants against getting cold feet? The trouble with many maritime arbitrators is that they model their behaviour on that of the Sphinx. They leave the parties in total ignorance of the direction the wind is blowing. Inscrutability gives them an air of wisdom and mystery. Undoubtedly a miscarriage of justice had occurred, mainly because of the poker-faced countenance of the Members of the Tribunal. Had all three been commercial men, it is certain that skillful questioning could have kept matters on track. Fortunately, or unfortunately, the Tribunal was chaired by a highly respected lawyer. Not only did he understand little or nothing of the technical presentation, but as a man of some solemnity, he insisted on the two arbitrators maintaining deadly silence and restricting their curiosity to general enquiries about the late arrival of the coffee urn or tea caddy. Uncertainty ‘Enfin Malesherbes vint’ will say our French friends, and to the problems of the Angelos Lusis to the President Brand in the sixties, we can now add the Laura Prima. Ordered to write this paper almost a year before its publication, I am unable to forecast what the House of Lords will rule on berth congestion. At this moment the matter is sub judice, and I have no desire to spend the winter in a dungeon in the Tower of London. I shall therefore refrain from comment. Are we nearer to achieving finality? The issue is of importance. Will the Lords back the charterers, or will they champion the shipowners? ‘Qui vivra verra.’ Meanwhile, you may exhaust your patience waiting at anchor for the oil jetty to be freed. But then why should my tanker, after completing at 2.00 am have to wait until breakfast because quislings at the refinery office cannot turn out to stamp clearance documents at unsocial hours? What is reasonable waiting time? Again it is a matter of geography … or ambient temperature. An hour at Antwerp, but six in some Mediterranean island. We have had several decisions on ‘arrive ships’ and we still do not always know when the ship has got to her destination. There was Nelson v. Dahl (1879), Tharsis Sulphur Co. v. Morel (1891), North River Freighters v. President of India (1956), the Vastric (1966), the Timna (1971), and the Johanna Oldendorff (1973). It was one's good fortune to be present when the Johanna was heard. The discussion occupied less than two hours in arbitration, but during its passage through the courts, and as it assumed greater importance, its duration increased in geometrical progression. Gallons of Quink have since been consumed and Wibon, Wipon clause have had to be invented. How much easier it would have been to have adopted the relevant article from the Scandinavia Code and given short shrift to the obscure theological arguments which have occupied the English Courts for a century. Common law or the Commercial Codes. The choice is yours. Conundrums I hesitate to quote more than one, but there are many. The Gencon said: Freight payable at the rate of 65/- FIOS per cubic metre of unbarked logs. Time was spent seeking an explanation of what was meant by an unbarked log. Was this like an unshelled peanut? Did it mean a large Okume log with its rough edges intact? Would it carry knots, blisters, branches and other outgrowing vegetation to disturb orderly stowage in the too shallow 'tween decks? Three years later when the Hearing took place, the fixing broker from Geila in the toe of Italy was summoned to give evidence of the negotiations. He was peeved and irate. What was the matter with counsel and the English arbitrators, had they never learnt to calculate freight for the tree trunks that went on board? Unbarked was ‘unbarcarto’ and that surely meant embarked. The Gulf Fashion decreed that 1980 should be the year of war risks disputes. Who should pay the premiums levied for blocking and trapping, when exorbitant rates leapt higher still for cover in the Gulf north of latitude 24° North. Increases in hull premiums for additional war risk cover for seven-day periods, were prohibitive. What indeed was the cover given? What was its scope and its limitations? Did basic market cover give the shipowners the same protection for loss following detention? Shippers and owners, charterers and insurers, spent much time looking for loopholes in the rules. Confusion ensued. We had five Awards referred to the courts. All the arbitrators were upheld, but their decisions varied, because the underlying clauses were worded differently. The meaning of common words was challenged, there was much work for all. How long are the thirty or forty vessels trapped in the Shatt el Arab, to remain there? Some have been abandoned. Others will need repair. Meanwhile the Karun bar has not been dredged and silting will make rescue or liberation hazardous. It will be years before the arbitration Hearings are over. ‘Rejoice with them that do rejoice and weep with them that weep.’ Container Ships We trotted off to Poole in company with one of our most popular judges, albeit before his elevation. On the way we broke the local 50 mph limit while breasting a hill in full sight of an attentive highway patrol, but all was well on board the Ro-Ro, provided the driver of the Magirus-Deutz tug held the tow on the hand brake, while sliding past adjacent rows of forty-foot trailers. Seventeen were parked on the vehicle deck. Would we slot in eighteen? It was a jigsaw puzzle, but it could be done. The owner had not misrepresented the ship. Charterers had no right to deduct hire. They had underpaid the owner. He was entitled to withdraw. The Hearing was held in the saloon bar of the local pub, or was it the Salvation Army Hostel? The evidence referred to the owners' painful experience and pressing need outside a comfort station after a long run on a busy and endless motorway. At the rest house, he had to queue for it, but then the phone booth was the first to empty and he got through to his office, to be told that the hire remained unpaid. He had to make up his mind quickly, a seat had just been vacated. He ordered the ship to be withdrawn. Rash decisions are to deprecated; he had overlooked a clause new to the charter calling for notice of 24 hours before the inevitable took place. Thus, withdrawal had been premature and the Commercial Court so ruled on appeal. The charterers' sinful behaviour during many months were overlooked. That 24 hours cost a million dollars and destroyed the company. There is a moral somewhere, but perhaps one should leave aphorisms to your imagination. The Warranty of Speed If the arbitrator must follow precedent, what is he to do when the courts choose to change the law, or to restate it in modified form? For many years the warranty of speed stood as the indication of what the ship was capable of achieving on the date of signing the Charter Party. In 1976 the court adopted the view that the description applied to entry into service. Continuity was not considered. We gained an eminently wise decision of great importance to charterers, but why now condemn arbitrators who had had to rely for 30 years on Lauritzen v. White, judgment which had but barely skimmed the problem. The Appollonius makes better sense. Commercial considerations demand that the description of the vessel's speed should apply at the date of delivery, and not at the date of the charter. But if delivery takes place at the port of loading and there occurs some heavy delay during which barnacles feast and house on the bottom paint, when does the voyage start? and if the first trip is a ballast voyage under slow steaming orders, what is the warranty? The codes are more pragmatic than the Commercial Court. There is need for progress. Praise the ecclesiastics of yesteryear who could balance a dozen angels on a pin head, but today they find difficulty with one. Hunger is the Best Sauce Our longest continuous Hearing ran for 18 hours. The steward produced stale sandwiches. We were allowed 15 minutes on deck, but we knew the location of the pantry. It had been padlocked and necessitated all the ingenuity that the superintendent and the arbitrator could muster, to pick the lock, push the slider, and release the door which led the way to some delicious chick peas. Had we then known, as we do now, that they required ten minutes extra stewing to destroy the deadly poison which they contained, we might have been less enthusiastic. Fortunately the potential sickness had not yet been diagnosed, perhaps not yet invented, nor had its news reached Esther Rantzen's That's Life. We felt none the worse for our gluttony next day. If the Mountain will not come to You My learned doctor friend and I ruled that the documentation which included six years of time charter accounts, could not be mailed or despatched to Geneva, safely. So Mahomet went to the mountain, and we left Gatwick for Bilbao at 3.00 pm landing at 5.00 pm and starting the Hearing immediately after the usual embraces. It was a Saturday; we looked forward to some relaxation that evening. At 2.00 am on the Sunday we were still busy checking deductions for off-hire and calculating time lost under the McMillean Rules. We rose at 3.00 am because the restaurant next door had threatened to close. Bed by 5.00 am and we hopped on the morning plane at 10.00. For some unfathomed reason, the learned doctor and I refused to fly back on the private jet we had been offered. We used the regular airline, but only because we had left our barouche in the long-term car park. We learnt next morning that the same private jet had crashed. Its crew had been killed but the records were saved. The arbitration could continue. And it did continue for another two years, by which time a halt had to be called. The kitty had been scoured, the bank overdraft had reached its limit and ‘le combat cessa faute de combattants’. In Statu Quo Ante In 1973 by the Court of Appeal's decision in the Lysland it became virtually impossible for an arbitrator to refuse to state a Special Case if so requested. The writer was the umpire and he remembers that at a Livery dinner that evening the MR in his usual friendly and delightful manner had whispered that he regretted thereby having had to spoil my plans for a Sunday picnic. I would have to draft the Special Case over the weekend. I did, and thereafter as before, was continually engaged in such exercises for a number of years. There was nothing difficult about the ‘Special’. In fact it was as easy, if not easier than a normal Award with non-incorporated Reasoning. You listed a few facts and chose for your decision whichever of the stated alternatives you happened to prefer. There was nothing alarming and if you missed out a relevant fact, the court would gently remit the Award and ask you to find it. I remember also lying in hospital on the eve of a major operation, scribbling additional findings relating to a Shatt el Arab case, for the most gallant of Her Majesty's Judges, while my ward companions kept a look out for the Staff Nurse who had issued a ukase that on no account was I to encourage acceleration of my pulse rate. I got through the work by midnight and satisfied the courts' curiosity while surviving the surgery. This is what I wrote: ‘The learned judge is wholly right. It is impossible for him to pass judgment when much useful information is missing from the findings. It is missing because it was not available to counsel or to the parties. It remains unavailable but I shall attempt to satisfy the requests in the belief that “half a loaf is better than no bread”. My answer to most of counsel's searching interrogatories is still “I do not know”.’ No doubt that, in another discipline, I would have been executed at daybreak, but in London the courts are human. They know I cannot invent facts, much as I can guess or suspect what happened. The matter is of some relevance because of the importance and weight now given to the Arbitrators' Awards. I quote Lord Diplock in the Nema: ‘I have already drawn attention to the fact that decisions of the English Courts on cases stated by arbitrators under the previous system (The Special Case) had made an important contribution in giving to English Commercial Law the comprehensiveness and certainty that makes it a favoured choice as the “proper law” of contracts in the classes listed, and London Arbitration as the favoured curial law for the resolution of disputes arising under them.’ Recognition has come, and perhaps not too tardily. Arbitrators are sufficiently rewarded by these words. They too have suffered frustration. The Travel Trade By 1970 the number of travel trade arbitrations had risen to record heights. Hitherto the cruise ships out in the Caribbean had escaped interference from the media, but with encouragement from the Sunday press, passengers began to assert their true or imaginary rights against the line: claims and complaints poured in. Since criticism spreads like bush fires, to avoid adverse publicity the shipping companies at first tried to ease matters by making swift concessions, offering rebates, refunding portions of the fare and handing over duty free goods. These gestures of goodwill should have sufficed; however it takes two to make a bargain and, just as there are awkward passengers, there are also unscrupulous owners. The first case concerned an allegation that the Senator's wife had contracted pneumonia because of tempestuous cabin air conditioning. The Points of Claim almost went as far as suggesting that the ventilator ducts had been peppered with germs. In her feverish hallucination the poor woman had later knocked her head against an upper bunk or some light fitting. Her husband rattled swords and claimed compensation. The ship would be arrested and 600 passengers waiting to embark on the next trip would be left stranded, on the beach literally. It took some time to pacify the Senator, perhaps I should say the member of the Senate, thus avoiding disclosure of his true identity. It emerged that late at night the lady Senator had been romanticising on deck, near or in a lifeboat, and had caught a chill. Accompanied by her Lothario, she had recovered in the bar, where there had been much transfer of brandy from bottle to breast. Later in her cabin, her condition had correctly been diagnosed as delirium, but of the kind better qualified by the adjective tremens. The gash across her forehead was evidence of a violent encounter with the porthole cover in an attempt at escape to the ocean. The difficulty arose in explaining matters to an irate husband. Chivalry is not yet dead, arbitrators can be discreet (at times) and urbane civility forbade mention of her antics in the ship's boats. Fortunately medical evidence prevailed. Pneumonia virus had not been pumped into the air diffusers by the chief engineer. Even if it had, its concentration would have been totally ineffective. An offer to join a cruise free of charge on a sister ship for the following year was made and accepted and there was thus no loss of face. Conciliation had prevailed, I presaged reconciliation later. On another occasion it took some time to discover why in the main restaurant, soup and hors d'oeuvres were consumed swiftly and in large quantities, while often the rest of meal was left untouched. The head cook took it as a special affront. There had already been a protest about short weight 14oz steaks. The union gave notice of a strike. Investigation by the company trouble shooter revealed that the parsimonious owner of the cruise ship had instructed the master to retract roll stabiliser fins, minutes after the start of each midday meal. Passengers would then abandon the restaurant, after the first course. Retreat to their bunks diminished consumption of best salmon and tender beef, but an undesirable side effect was congestion in the lift to the cabin decks with much spontaneous fouling of the gondola. It did not take long for our man to spot the source of trouble and the reason for the customers' transfiguration from fresh and healthy complexions when sipping pre-prandial aperitifs to the sallow and morose greenish tinge noticed on their way down. The deck log had imprudently timed and recorded every movement of the Denny-Browns. Of course passenger vessels provide ready-made exercises in applied psychology. The success of a line is directly related to the pliability of berth, bunk or bed, to the entertainment on board and to the state of the weather, albeit in reverse order. To avoid costly law suits, the enemy must be placated. Every passenger should receive a gift or reward for some outstanding feat of valour. Prizes for games, deck quoits, whist drives, knobbly knees and to the Youngest Grandmother for her abbreviated bikinis all help to create a joyful atmosphere. Curiously it is those of pseudo aristocratic demeanour who join more heartily in shipboard athletics than do the plebs and other habituees of seaside holiday camps. Perhaps the latter expect more for their money, at any rate they start nine out of every ten requests for arbitration. To Travel Hopefully is Better than to Arrive It is often said that the thrill of ocean racing can be likened to standing under an icy cold shower while tearing up bundles of fresh five pound notes. And so it came to pass that we went down to a naval base somewhere on the South Coast where, next to the ferocious black conning tower of a submarine, rode the glistening white cutter which a week later was to circumnavigate the globe. The builder had raised his price, money was short. The hull had been put under arrest. The court said I was to survey and determine if the increase the yard claimed was justified. Yachting is synonymous with luxury and ocean racing is ‘class’. I was picked up at the station in the latest Rolls. On opening the door to get in next to the driver, a brace of articles of exciting feminine underwear slid off the Connoly. These were promptly retrieved and stuffed into a pair of old wellies. We then proceeded to the berth; I felt slightly apprehensive of what I would be called upon to survey. Closer inspection simply revealed an alloy shell, poorly welded, and devoid of internal partitions of any shape or size. I wondered if the head consultant had designed the ship on the open space plan. There were no bulkheads, no tanks, no sanitation, but the Red Cross had gratuitously supplied a first aid kit, which at the time, lay against a keelson bathed in accumulated rain water. There were aspirins and also a few Kwells, but donations had not been over generous. Nonetheless, the boat got to her first destination … first and leading the field. Prudently I had given its skipper the address of my own repairers en route to Tenerife … some do rush in where angels fear to tread. Urbi et Orbi By tradition, in the early sixties, at the conclusion of the Hearing the umpire was host to the two arbitrators and counsel. The confrontations did not extend into the afternoon, and after a sustained visit to the Baltic Bar, lunch was a most pleasurable affair. We then went home at 4 pm to write up the Awards. The spirit of bonhomie prevailed. Much useful work was done and it was cheap. Things have changed. Alas! The younger generation is less sybaritic. ‘Ce n'est pas serieux’, my French friends will tell me. That cannot be the life of an arbitrator. There must be more decorum and dignity in dealing with the parties. True, perhaps, but to inspire respect you do not have to sport the beard of Charlemagne or that of Monsieur le President Falliere. Why object to disputants appearing in jeans or tee-shirts, when in fact that is what they wear on board. You may wish to dress to attend church on Sunday but should confession be disbelieved when made in a boiler suit? If garb is of importance, how about protective head gear and hard hats for arbitrators the day after their Awards are collected? Maritime arbitration is a challenge, it may suit only the adventurous, but to the arbitrator it is a medley of excitement and it is rewarding. Let me end by quoting Matthew Arnold: ‘Years hence, perhaps, may dawn on age More fortunate, alas, than we, Which without hardness will be sage, And gay without frivolity.’ ADDENDUM to the Paper: Specially produced for those readers who have the misfortune to live far from the sea. A. Technical Abbreviations: RPM – Engine Revolutions per Minute. HP Casing – The box which holds the High Pressure turbine rotor. D/F – Direction Finder (A radio scanner for navigation purposes). ULCC — Ultra Large Crude Carrier (ie Oil Tankers above 300,000 tons). SHINC – Sundays and Holidays included. P & I – Protection and Indemnity Mutual Insurance Associations (for ship owners). WIBON – (After arrival) whether the ship is in berth or not. WIPON – (After arrival) whether the ship is in port or not. GENCON – The most current form of maritime carriage contract (between a shipowner and a charterer). FIOS – Cargo is to be put into the ship, it is to be stowed, and it is to be taken out at no expense to the ship. (Free In and Out Stowed.) B. List of Technical Riddles: The hoof – Standing up like a bull in a field. Nick in the flange, bulb angle, shell plating – Indent in the frame of a ship. Chief Surveyor at Lloyd's – Chief Technical Supervisory Manager of Shipping. Water Clerk – Boy who runs around the ship taking the clearance papers and general husbandry. ‘Baltic in Season’ – Because part of the Baltic is icebound in winter, it is therefore not in season. T2 Tanker – War-time built American Tanker. Grid – Electricity supply linkage within a country. Alternator – Generates alternating current. Parsons – Sir Charles Parson is the inventor of the steam turbine on ships. Laval – Swedish Turbine Specialist. Admitting steam to the glands – You have to prevent steam escaping from a turbine, therefore ends have to be sealed. In light condition – Ship empty of cargo. Liberty ships – War-time built cargo ship of about 10,000 tons. Inoperative D/F – D/F is a Direction Finder. Boffin – Super intelligent man. LP Rotor – Low Pressure Turbine Rotor. Re-blading – Putting blades on turbine rotor. Black coamings – Side of ship painted black. White topsides – Deck house painted white. Temple – Barristers' Chambers in London. Youngs Modulus – Measure of the strength of steel under stress. Poisson's Ratio – The ratio between two elongations in different planes. Finite element analysis – A system for calculating stresses. Refinery Office – Head Office of Oil Refinery. Okume Log – African log of high density. Karun Bar – Bar at entrance to Shatt el Arab. Ro-Ro – Roll on Roll off – such as Car Ferries. Magirus-Deutz tug – The forward part of Articulated Truck. Deck Log – Book in which all events on board are recorded. Alloy Shell – The shell of a ship which is not made of steel or timber but of light weight alloy metals. C. List of Geographical Locations: Gijon – This is a busy port in the North of Spain, halfway between Santander and Coruna. Ushant – Is the western extremity of France, just off Brest. Berlengas Island – Is off the coast of Portugal, North of Lisbon. US Gulf – Also known as Gulf of Mexico, but refers to ports in the USA in the Gulf of Mexico. Cristobal – Is the northern end of the Panama Canal. Brunsbuttel – The western entrance to the Kiel Canal. Skagen – Also known as the Skaw – is the northernmost tip of Denmark. Galati – Galatz – Port on the Danube. A major shipbuilding centre. Gulf of Kutch – Is an Indian Fjord halfway between Bombay and Karachi. Gulf – Relates to Persian Gulf. Since the Iran/Iraqi War ships pay extra War Risk Insurance Premiums when they enter this area. 24° North is the latitude at which the extra War Risk Insurance Premium becomes payable. Shatt el Arab – Is the delta off the Euphrates and Tigris into the Iranian Gulf. It also forms the disputed boundary between Iraq and Iran. D. References to Case Law: No. 63 – The Laconi – Mardorf Peach & Co. Ltd. v. Attica Sea Carriers, Q. B. (Comm. Ct.) 1975. No. 70 – The Angelos Lusis – Sociedad Carga Oceanica SA v. Idolinoele Vertriebsgesellschaft GmbH, Q.B. (Comm. Ct.) 1964. No. 70 – The President Brand – Inca Compania Naviera SA and Commercial and Maritime Enterprises v. Mofinol Inc. Q. B. (Comm. Ct.) 1967. No. 70 – The Laura Prima – Nereide SpA de Navigazione v. Bulk Oil International Ltd. (C.A. – 1979). No. 78 – Lauritzen v. White Shipping Co. Ltd. (K.B. – 1942). No. 79 – The Appolonius – China National Foreign Trade Transportation Corporation v. Parnes Shipping Company SA (C.C. – 1978). No. 85 – The Lysland – Halfdan Greig & Co. A/S v. Sterling Coal Corporation (H.L. – 1981). No 86/87 – The Nema – B. T. P. Tioxide Ltd v. Pioneer Shipping Ltd. and Armada Marine SA (H. L. – 1981). © 1989 LCIA
TI - A Cedric Barclay Sampler
JF - Arbitration International
DO - 10.1093/arbitration/5.2.102
DA - 1989-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/a-cedric-barclay-sampler-UA7ccEW71K
SP - 102
EP - 136
VL - 5
IS - 2
DP - DeepDyve
ER -