Transcript Soft Law Guidliness, Recommendations and Standards: The

Soft Law Guidelines,
Recommendations and
Standards:
The Issue of Armed Guards on
Board Vessels
DCFR, Unfair Terms
and Knock-for-Knock Liability
11-12 September 2014
Erasmus University Rotterdam
dr. sc. Mišo Mudrić
Faculty of Law
University of Zagreb
VIII European Colloquium on Maritime Law Research – Common core,
PECL and DCFR: could they change shipping law?
Bottom-Up Lawmaking
P(M)SC
B
P(M)SC
A
State B
P(M)SC
C
State
A
International
Code of
Conduct
State
C
Montreux
Document
Institutional
Harmonization
Private Maritime Security
Companies’ Code and/or
Standard of Conduct
Domestic
Law
Application
Stakeholders
Associations
International Code of
Conduct – Association
ICoC
The International
Association of Maritime
Security Professionals
(IAMSP)
The Security Association
for the Maritime Industry
(SAMI)
Standards
The American Security
Industry Society (ASIS) –
ANSI/ASIS PSC.4
International
Standardization
Organization – ISO/PAS
28007:2012
Regulation
International Maritime
Organization
Montreux Document
Domestic Law
Pending Issues
 Licensing of Firearms
 Personnel Vetting
 Floating Armories and Escort
Vessels
 Domestic Law – Monitoring
and Sanctions
 DCFR, VI. – 5:202: Selfdefence vs. Putative Selfdefence, Excessive Self-defence
Provision of Services
Obligation de moyens – Obligation of Means
BIMCO GUARDCON, Clause 6(a):
... using all reasonable skill and care
Best endeavours standard?
DCFR, IV. C. – 2:105: Obligation of skill and care
(2) If the service provider professes a higher standard of care and
skill the provider must exercise that care and skill
(3) If the service provider is, or purports to be, a member of a
group of professional service providers for which standards have
been set by a relevant authority or by that group itself, the service
provider must exercise the care and skill expressed in those
standards
Modern Professional Liability Standards
Contractual Exclusion of Liability
DCFR, Article VI. – 5:401: Contractual exclusion and
restriction of liability
… cannot be excluded or restricted: (a) in respect of personal
injury… or… if illegal or contrary to good faith and fair
dealing
BIMCO GUARDCON, Clause 15(b) – “Knock for Knock”
(i)... even if such loss, damage, injury or death is caused
wholly or partially by (i) the act, neglect or default of the
Owners’ Group/Contractors’ Group... agree and undertake
to hold harmless, defend, indemnify and waive all rights of
recourse against the Owners’ Group/Contractors’ Group...
DCFR comment: “… statutory rules… prohibition of the contractual
exclusion or restriction of liability for certain professional groups that are
subject to the duty to take out indemnity insurance and have arranged
such insurance”
Concerned Parties
Shipowners – Gulf of Aden Group Transits
(GoAGT)
Insurers – BIMCO GUARDCON, Clause 12(e):
… parties shall use reasonable endeavours to ensure that its
underwriters waive their rights of subrogation against the
other party
Cargo interest
Clause 15(b) – Cargo Exception, and, Clause 15 (c) –
Third Party Liability
BUT, Clause 15(e) – Exemption from liability
(i) any loss of profit... directly or indirectly... whether or
not... due to negligence or any other fault on the part of
either party, their servants or agents...
(ii) any consequential loss or damage for any reason
whatsoever, whether or not the same is due to any breach
of contract, negligence or any other fault on the part of
either party, their servants or agents
Unfair Terms (i)
II. – 9:403: Meaning of “unfair” in contracts between a
business and a consumer
… a term [which has not been individually negotiated] is
unfair… if it significantly disadvantages the consumer,
contrary to good faith and fair dealing
Article 3 Unfair Terms Directive 1993/13/EEC
II. – 9:405: Meaning of “unfair” in contracts between
businesses
… only if it is a term forming part of standard terms supplied
by one party and… its use grossly deviates from good
commercial practice, contrary to good faith and fair dealing
Article 3(3) of the Late Payment Directive
Standard terms
BIMCO GUARDCON: “… not an exclusion of
liability... [but] a contractual arrangement whereby
two parties agree to hold each other harmless…”
DCFR, II. – 1:109: Standard terms
DCFR, II. – 1:110: Terms “not individually negotiated”
DCFR, II. – 8:103: Interpretation against supplier of term
or dominant party
(1) Where there is doubt about the meaning of a term not
individually negotiated, an interpretation of the term against
the party who supplied it is to be preferred
Unfair Terms (ii)
DCFR, II. – 9:408: Effects of unfair terms
(1) A term which is unfair under this Section is not binding
on the party who did not supply it
DCFR, II. – 9:410: Terms which are presumed to be unfair
in contracts between a business and a consumer
(a) excludes or limits the liability of a business for death or
personal injury caused to a consumer through an act or
omission of that business
(b) inappropriately excludes or limits the remedies, including
any right to set-off, available to the consumer against the
business or a third party for non-performance by the business
of obligations under the contract
Employer’s Liability
“Supernumerary Status”
DCFR, VI. – 3:201: Accountability for damage caused by
employees and representatives
(1) … when the person employed or engaged:
(a) caused the damage in the course of the employment or
engagement
(b) caused the damage intentionally or negligently…
DCFR comment: “A contract for service (e.g. with a lawyer) can also suffice under
certain criteria, namely where a lawyer is retained for a concrete task with a precisely
specified line of approach and without room for personal discretion”
BIMCO GUARDCON, Clause 15(c) – “Third Party Liability”
DCFR, VI.–6:105(1) – Solidary liability
Solidary Liability and Right of Recourse – for death or personal
injury?
Thank You
for Attention
dr. sc. Mišo Mudrić
Faculty of Law
University of Zagreb