By Marlysa Razak
Hi. I am Marlysa Razak, a young lawyer at MahWengKwai & Associates who aspires to venture and develop the area of Law of Carriage in Malaysia. “What is Law of Carriage?”, you might ask. Simply put, it is the laws of transportation which includes carriage of goods and passengers by sea, air, rail and road. In this series, I intend to take readers through my personal journey in learning and practicing law of the sea as part of this development and breakthrough.
When venturing into a new area of law, the first step to take is to understand their “lingo”. So, to kickstart this series, I would like to introduce to you the “lingo” usually used in the industry by practitioners, mariners, seafarers, shipowners and all other related individuals. “Lingo” or “Term” is “a word or phrase used to describe a thing or to express a concept, especially in a particular kind of language or branch of study”. As this area is very much a specialised area or industry, there are loads of terms which may not be commonly used beyond the industry.
Firstly, let’s introduce you to the most prominent subject matter in maritime law – the vessel. “Vessel” is technically anything that floats on water and capable to be used as a mode of transportation on water. This includes ships, boats, yachts and other watercrafts. It is important to note that the sense of navigation in maritime law differs from the normal left-right direction we commonly use. Briefly, the front of the vessel is called “bow” while the rear of the vessel is called “stern”. The left side of the vessel-facing forward is called “port” and the right side of the vessel-facing forward is called “starboard”. Why do we need these terms? According to history, mariners in older-days used to use the right-left term for navigation but it sometimes creates confusion between the port and the captain of the vessel. To obtain uniformity and unambiguous terms universally, these terms emerged. As for the vessel moving forward or backward, the universal terms used are “ahead” and “astern” respectively.
You now know some terms used in navigating a vessel. Next, let’s meet the crew. The Captain is a material figure on all vessels. His employment is, however, dependant on who he contracts with – either the shipowner or the charterer (we will discuss about relevant parties in the next series). The Captain commands all that are happening on and for the vessel. For example, the Captain decides whether to carry or refuse to carry a cargo, the navigation and the route as well as to dock at a suitable port. The Captain’s authority may be delegated to the 1st Officer (or Mate) and the 2nd Officer who are responsible for safety and security of the vessel and as Navigator of the vessel respectively. The engineers, on the other hand, are responsible for the maintenance and running of the machineries and vessel. Other mariners who are without rankings are called “ratings”. Their work focuses mainly on physical tasks on the vessel during the voyage such as handling of the ropes, cleaning and broken lines. The stevedores, on the other hand, are persons who deal with loading and unloading of cargo.
I have mentioned the word “cargo” a couple of times above. What is “cargo”? Cargo are merchandises or goods which are accepted for transportation. Nowadays, most ships sailing at sea are cargo vessels which carry their loads and materials mostly in containers and transport those goods from one port to the other. The cost for transporting these goods or materials is then called “seafreight”. This freight is borne by any contracting party based on the international trade agreements between relevant parties (CIF or FOB). Generally, the most material document in shipping is the bill of lading which acts as a prima facie document that establishes the terms of agreements between shipper and the transportation company, a document of title, a contract of carriage as well as receipt of goods. We will discuss more on this topic in the next series.
It is important to also note that a vessel shall be “seaworthy”. The test of “seaworthiness” is crucial in determining whether the vessel can sail at sea, meet the conditions of the sea and is able to carry materials and goods in its voyage. Seaworthiness do not only cover the conditions of the vessel, it includes the equipment and supplies on board, the crew, and its sustainability at sea. The responsibility to ensure seaworthiness of a vessel often be on either the shipowner or the charterer. However, this is again based on the terms agreed upon by the parties.
While at sea, the Captain needs to ensure that the vessel is able to meet the port window in time. “Window” is a term used for a slot or a space fixed or set aside for a particular vessel to dock at the port for a particular period of time. Should the vessel miss a window or encounter a delay in leaving the port, the charterer, the consignee or the shipper may face “demurrage” charges against them.
In situation where there is a maritime dispute between parties or outstanding freight due and payable, the aggrieved party ought to seek a remedy of arresting a ship. In line with its name, “arrest of ship” literally means obtaining a court order to restrain further dealing and/or movement of the vessel to secure a maritime claim. An application and granting of order to arrest a particular ship are often made in a prompt manner. In addition, the party seeking for an order shall have the onus to prove his claim. While parties are free to file a suit in civil court, most agreements provide an “arbitration clause” where parties are required to refer their maritime dispute to arbitration and not the civil court. However, the aggrieved party may still obtain an order to arrest a ship from the civil court.
The above are just little insight of the maritime world to readers. As mentioned, the maritime industry is a specialised industry with loads of specific terms and jargons which are not commonly used. Of course, the list of the above “lingos” are not exhaustive. Many more terms will be introduced in the future series along with recent or current legal positions in Malaysia and internationally. As you can see, the title of this article is Vessel #1 ; The “Lingo” of Shipping Law which will be part of series of write-ups related to Shipping Law. But as for now, I bid you adieu and hasta la vista!
I’m Marlysa Razak, called to the Malaysian Bar in 2016 and is a graduate of UiTM