Executive Insights is a series by Shipping and Freight Resource that provides insights and thoughtful analysis about the industry..
This series features selected individuals from the industry and is aimed at enriching the knowledge of the readers with what is happening in the shipping, freight, maritime, logistics, and supply chain industry..
Executive Insights also gives you a chance to pick the brains of these industry veterans, leaders, and enablers..
In this edition of Executive Insights, we caught up with Philip Teoh – Lawyer and Maritime Arbitrator, on aspects of International Convention of Carriages and other maritime matters..
SFR : Can you share some professional information about yourself and what were some of the motivating factors for you to become a Lawyer and Arbitrator in the maritime space..??
PT : Maritime Law attracted me because within its area, it contained several other interlocking and connected areas eg Carriage, International Sales, Insurance, Banking and International Laws. Malaysia and Singapore [where I studied] prospered by International Trade.
I was also inspired by the great lecturers I had in the National University of Singapore Law School, Professor Reynolds on secondment from Oxford taught Shipping Law, Professor Tan Yock Lin taught Conflict of Laws, normally a difficult technical subject, in an easily understood manner and Professor EP Ellinger made Banking and International Financial Law alive.
These great teachers pointed me a good path to become a Shipping Lawyer.
I was particularly pleased that some of these appointments came from my former opponents.
One significant development in my career as a Maritime Lawyer is when I started writing key Practitioner Texts in Maritime Law.
I noticed that Malaysia did not have the range of Practitioners Texts and convinced Butterworths to let me write the equivalent Malaysian texts in the area.
I have since written the original volumes of Halsbury’s Laws of Malaysia on Conflict of Laws, Equity, Sales of Goods and the Shipping Titles as well as the Annotated Merchant Shipping Laws of Malaysia.
The Malaysian Lawyers use my precedent agreements from Forms and Precedents on Shipping and I contributed the Chapter of Carriage of Goods by Sea in Bullen Leake Jacob Malaysia on Precedents of Pleadings which contained pleadings on Charterparty and Carriage Disputes in Litigation, Admiralty and Arbitration.
My involvement in Maritime Law is supplemented by the related areas in Insurance – Marine Insurance and P&I, International Trade and Arbitration areas of my Practice.
Over the years I have gathered a good variety of experiences handling cases for different parties in the Maritime Ecosystem and learnt about the Industry. This was an invaluable learning process.
In a speech at the House of Lords in 1997, the great English Judge Lord Mustill said of the Practice of Maritime Law:
“There can surely be no other branch of commerce where the practical people know, and need to know, so much of the law; and where professionals know, and need to know, so much of the practice”.
SFR : Do we require so many Conventions in terms of Contracts of Carriage..?? SFR : Isn’t it time to retire a few..?? If you have to retire one of the conventions, which one would it be and why..??
PT : If we were to trace the origins of the Contracts of Carriage eg Harter Act, Hague Rules, Hague Visby, Hamburg, Rotterdam we can see that they came about in different conventions, with adoption in different countries.
The conventions only become law if the member countries implement laws adopting its terms.
And in terms of retiring a few, it does not work that way. The Conventions once in force will remain. It is up to Countries to adopt and later choose whether to migrate out of the Convention eg UK and Singapore originally adopted the Hague Rules then later migrated to the Hague Visby Rules when the later Visby Rules came into force. Malaysia still adopts the Hague Rules.
SFR : Why is there not a COGSA that all countries around the world agree to considering that shipping is global and globally the trade operates more or less in the same way..??
PT : Each Country has its own carriage of goods by sea legislation, many of which adopts one of the International Conventions. To ask the different countries to adopt one carriage law is like asking Hong Kong, UK, Malaysia, Nigeria and their citizens to adopt Indian law.
It is important to realize that these carriage laws affect different parties. The cargo exporters and importers do not normally deal with the Shipping lines directly but often through freight forwarders.
When problems arise in the shipment or their collection the freight forwarders are sometimes brought into disputes with the Shipping lines.
This is a perennial problem exacerbated due to the disruptions caused by the Pandemic. This was the subject of a study by ABLM the Legal Subcommittee of FIATA which I am a member.
I want to highlight that in the findings we realise the diversity of laws and that different approaches needed to be adopted due to the different legal systems of each country.
SFR : How important is it for people to read and understand the Terms and Conditions of the bill of lading and in your opinion, at what stage should it be read and understood..??
PT : The parties who do not read the terms will still be bound nonetheless. It is less costly to read or to engage lawyers for advice than to engage lawyers when sued.
If parties read the terms and are unclear about the effects, they can seek clarification and amendment, this can be by discussion and mutual amendment.
If claims already arise both parties will seek to argue their different interpretations before the Judge or Arbitrator, a costly process.
One illustration from marine cargo insurance is that the policies with standard exclusions can be extended by removing some of these exclusions. This will involve paying additional premium but this will extend the cover and provide certainty.
SFR : How do you see the global trading scenario changing with digitalisation and how will it affect the legal and claim aspects of carriages and trade..
PT : What the Pandemic and 2020 taught us is that digitalisation is inevitable, and that the Pandemic speeded up the process.
The digitalisation has facilitated trade and shipping but the Pandemic has caused untold misery and disruption including closure of businesses and suspension of operations. These disruptions have caused disputes in breach of contracts, demurrage, attempts to raise force majeure.
As 2020 is fairly fresh, the effects are just developing into disputes
SFR : Do you think global organisations like the IMO, ICS, ITF, UNCTAD are all achieving what they have been set up to achieve..??
I believe that these organisations are doing their best to cope with what the Pandemic has wrought. The Pandemic and disruptions the past year was totally unexpected.
SFR : What is your take on the spate of maritime disasters like containers falling off ships, ships running aground and sinking etc. that seem to continue..
PT : These incidents are perils which arise in the maritime endeavour, 2020 is just another year. But these incidents certainly raise the benefits of having good insurance cover.