How could we have got it so wrong – again? A London performance of the simulated casualty and arbitration, first seen at the BIMCO General Meeting in Dubai earlier this year demonstrated some very polished acting, but an audience which once more failed to second-guess the arbitrators!

Double Jeopardy, which demonstrates how a marine accident can result in a trial by both media and law, is a surprisingly gripping combination of film and reality which encapsulates a whole range of lessons for anyone involved in the operation of ships. It held the attention of the audience throughout the performance, not least because the plot is so very believable from the moment the bleary-eyed owner representative John Tsatsas stumbles out of his bed at 3 a.m. to hear the news on the telephone that his ship Idle Star has grounded in a West Coast North American river port. Worse still, there is oil in the water from a ruptured bunker tank which (it will be revealed) will menace a threatened but much-loved bird.

Bad news travels at speed and it was just minutes later that the ship’s charterer Han van Blanken was being woken up, with the very last thing he wanted to hear. Soon P&I Club representatives, classification society and lawyers were becoming engaged in the drama that was to engulf the two parties, as their commercial relationship and the facts of the charter that had taken the ship on this unlucky venture was revealed, firstly before the world’s media (represented by Tradewind’s Julian Bray) and eventually in the cold, analytical light of a commercial arbitration.

The plot, narrated by its author Lindsay East, contained the ingredients for a whole range of important lessons for anyone involved in maritime adventures. Neither party, the owner of a small shipping company or the major charterer which had taken the ship, had availed themselves of media training, or had a media representative who could present the facts to the questing media. They were thus unprepared for the approaching storm. There was doubt about the meaning of a telephone call between the two as the navigational risks of the river passage became apparent to those on the spot.

Should the ship be lightened, as the river had uncertain depths which were poorly charted? Was the port actually the “safe” haven required by the terms of the charter party? Was the Master put under pressure by the charterer, anxious to get the ship discharged, to leave the safety of the deep water and proceed? Was the draught accurate and were the various allowances correct? Was there proper attention paid to the phenomenon of squat?

But pretty well all of these commercial and operational questions (which would be revealed in the subsequent arbitration) were set aside as the “public interest” in the grounding and the pollution being caused brought both protesters and the media into play. The owner was assailed by placard-waving environmental protesters as he left his office to go to lunch.

The telephones were soon ringing as both parties found the media anxious to put its own particular slant on the grounding. Soon, both found themselves in a TV studio being forced to defend themselves against a string of irrelevant charges by a fierce interrogator, before a live audience, focused upon the environmental damage and the plight of the threatened bird, the choice of the charterer and the supposed capability and credibility of a small owner of a middle-aged bulker. The differences between the two men, exposed in a few unwise remarks before a reporter, were magnified into a sort of personal vendetta. The charterer, provoked by the personal nature of the questioning and storming out of the TV studio, perhaps gave the wrong impression to an unsympathetic audience.

The “real” audience in the theatre, equipped with electronic voting machines, were asked on a number of occasions to consider the situation. Was the Master being placed under undue pressure? Had they ever over-ruled in a Master in such matters? Would they have required the ship to proceed? And crucially, was it the owner or charterer who should be deemed liable for the whole disaster?

After this trial by media, the action shifted to the rather calmer but no less tense atmosphere of the arbitration, with Chirag Karia and Nevil Philips, counsel respectively for owner and charterer, putting their very different perspectives on the case before the three arbitrators. Both owner and charterer found themselves in the witness chair, required to revisit the whole timeline of the fateful charter, their interpretation of the documents exchanged, their appreciation of the telephone communications between them picked over.

Relevant “safe port” cases, some over a century old, were disinterred for the light they could throw on this particular incident and what the law might reveal. Was the port unsafe? Did the charterer breach the agreement thus causing the loss? Did the action of the Master in some way contribute to the grounding?

The electronic counters ticked away during the afternoon, registering the audience’s view on the liability. By far, the majority were siding with the owner, perhaps warming to Mr. Tsatsas’ thespian skills or siding with the small owner against the big charterer. Nothing was revealed by the polite questions of the arbitrators to the respective counsel.

But when they eventually, after their recess and our tea break, returned to give their verdict, it was clear that the audience was barking up the wrong tree! As had been the case in Dubai, they judged the owner to be liable on account of the fatal mistake of the Master who had, in a fast flowing river, calculated the squat using the speed over the ground rather than the speed through the water, which effectively eliminated the clearance and guaranteed the grounding.

This production offered a panoply of important lessons for anyone engaged in a shipping transaction and the whole cast is to be congratulated for the convincing performance. Special accolades must go to the three “actors” John Tsatsas, Han van Blanken and Julian Bray, whose day jobs are rather different. As a method of teaching good practice, what to do (or not to do), the dangers of a less well-informed but powerful media and to understand how arbitrators unpick complex cases this was a memorable production. One might surmise that other maritime incidents might be usefully portrayed in such a dramatic fashion.

Source:  BIMCO