AKD recruits two first-tier shipping specialists

ROTTERDAM-based law firm AKD has further strengthened its pre-eminent position in the shipping and offshore sectors with the arrival of two senior executives.

Pieter den Haan, a specialist in handling maritime casualties, with particular expertise in major collision cases as well as in salvage and wreck removal and insurance disputes, joins from Van Traa as a partner in AKD’s Transport & Energy team with effect from 1 July, 2015. Pieter also advises shipyards, shipowners and private clients in connection with shipbuilding and repair contracts, as well as dealing with the enforcement of claims against ships and ship arrests. He says, “I am very pleased to be joining AKD’s robust transport & energy team as it provides the support which is needed to deal with marine matters at the highest level.”

Vivian van der Kuil, meanwhile, will join AKD’s Transport and Energy team from Van Traa as a senior associate. Vivian specialises in transport law, with a particular focus on maritime law, and has extensive experience of dealing with maritime casualties, as well as limitation of liability, assistance and wreck removal cases. Her expertise also extends to ship arrests and other procedures related to maritime law. Vivian has worked as a judge at the Rotterdam Court, dealing with transport law cases, among others. She has also undergone officer training at the Netherlands Royal Institute for the Navy and worked as an officer of the Maritime Service with the Royal Navy on board several ships. Vivian says, “I am looking forward to the challenge of working with the highly experienced team at AKD.”

Haco van der Houven van Oordt, lead partner of AKD’s shipping and offshore practice, says, “We are delighted to have recruited two people of the quality and experience of Pieter and Vivian. Both are first-class marine lawyers who are highly regarded in the industry. Maritime disputes are becoming increasingly more international and legally complex in their nature, and it is therefore imperative to strengthen the team to deal with the challenges that our clients face worldwide.

“The recruitment of Pieter and Vivian will enhance still further AKD’s proven ability to provide innovative solutions to often complex legal problems.”

AKD’s Transport & Energy team provides a full range of legal services. AKD is a full-service firm with over 250 lawyers. www.akd.nl

Dutch Court of Appeal cheers up bankers

ROTTERDAM-based law firm AKD says a recent decision in the Dutch Court of Appeal substantially extends the jurisdiction of Dutch courts following a ship arrest. In the case of the Hero (HSH Nordbank vs Hero Shipping) the court ruled that the 1952 Arrest Convention applies to all vessels, irrespective of flag and owner. The court also broke new ground by agreeing that a bank did not need to provide security for its claim because it had sufficient financial strength.

Carel van Lynden, a partner with the shipping and offshore team at AKD in Rotterdam, says, “This is a good decision for mortgage banks. This case was for the repayment of a loan, secured by a mortgage. The courts decided that jurisdiction by Dutch courts is created simply by the arrest by the mortgage bank, regardless of the flag and nationality of the owner. It gives banks quick access to the very favourable auction system in The Netherlands.”
 

The applicability of the Arrest Convention and its ability to create jurisdiction varies across different countries. Where it does not automatically create jurisdiction it may offer protection to owners of vessels from or vessels flying flags of nations not contracting to the convention. This decision in The Netherlands lifts that protection.
 

Says Van Lynden, “This is also a remarkable decision because for the first time a claimant has not had to provide security in a case involving owners registered in an EU country. The summary judgment sought by the bank against the owners is a provisional measure under European law and until now has only ever been granted if security for the claim was posted by the claimant. In this case the court accepted that the bank was sufficiently financially strong and also sufficiently likely to repay the claim if it later failed so no security was required.”
 

 AKD’s shipping and offshore team provides a full range of legal services to the shipping and offshore industry. The team is ranked top tier in both Chambers and Legal 500. AKD is a full-service firm with over 250 lawyers. www.akd.nl

 

AKD expects creditors to pursue ARA vessel arrests as bankruptcies escalate

ROTTERDAM based law firm AKD says that creditors of ailing shipping groups such as STX Pan Ocean of South Korea, and TMT of Taiwan, could seek to take advantage of prevailing bankruptcy laws to enforce vessel arrests and other attachments in the Amsterdam-Rotterdam-Antwerp (ARA) region.

Haco van der Houven van Oordt, a partner with the shipping and offshore team at AKD in Rotterdam, says, “The recent reports of bankruptcies and voluntary liquidation proceedings involving shipping companies have now reached levels which exceed any in recent memory. STX Pan Ocean, South Korea’s largest dry bulk operator, has reportedly obtained bankruptcy protection and is now seeking recognition of protection orders in various international jurisdictions after creditors moved to arrest a significant part of its fleet operating around the world.

“Creditors are looking to protect their assets and limit their losses in the most efficient way possible. And because shipping is such an international industry, those creditors are becoming increasingly keen to understand the legal approach to bankruptcy adopted in different parts of the world. For example, bankruptcy protection does not enjoy worldwide currency. It works in those countries - including the US and the UK - which adopt a universal approach to cross-border insolvencies. But there are a few exceptions to this rule.  

“It is reported that several of STX Pan Ocean’s creditors have already arrested vessels in China, and we expect creditors also to turn to the Netherlands,  which adopts a territorial approach to bankruptcy. This means that creditors can still take action against the assets of STX Pan Ocean in the Netherlands despite the existence of bankruptcy proceedings and protection orders.”

In addition to its territorial approach to the law of bankruptcy, the Netherlands is widely recognised as a haven for those looking to attach ships and/or to arrange for their swift judicial auction. There are very few legal hurdles to pass in order to obtain leave for attachment. And it is not just ships calling at Rotterdam and Amsterdam which are subject to attachment in the Dutch courts. All ships proceeding to Antwerp and Ghent have to transit the River Scheldt, where they are also subject to Netherlands jurisdiction.

Haco van der Houven van Oordt concludes, “It would be surprising if we did not see creditors looking increasingly to the ARA region in the wake of the continuing fall-out from the bankruptcies of major shipping groups.”

Note to editors

AKD’s shipping and offshore team provides a full range of legal services to the shipping and offshore industry. The team is ranked top tier in both Chambers and Legal 500. AKD is a full-service firm with over 250 lawyers. www.akd.nl

Persistence pays off for shipbroker in recovering charter party commission

International Transport Intermediaries Club (ITIC) has illustrated how persistence can pay off for shipping intermediaries looking to pursue legitimate claims in today’s difficult financial climate.

In the latest issue of its Claims Review, ITIC recounts the case of a shipbroker owed outstanding commission by time-charterers who were widely thought to be in financial difficulties. The charter party provided that the time-charterers were obliged to deduct the broker’s commission from the hire and pay this directly to the broker. The charterers had deducted commission of Euros 50,514 from the hire, but had only paid Euros 20,000 to the broker. Thereafter, payments had suddenly ceased without explanation. ITIC wrote to the time charterers on behalf of its shipbroker client on two occasions and was advised that payment was to follow. But no money was ever received.

The charterer was then warned that ITIC would consider a ship arrest should the next instalment not be promptly received. This prompted the payment of a further Euros10,000 - leaving Euros 20,514 still owing. Payments ceased again. ITIC was advised that it was not possible to arrest the ship against which the commission had been incurred because the debtors were only the time-charterers. However, the charterers had their own fleet of ships, one of which was due to arrive in a jurisdiction where it could be arrested for shipbrokers’ commission. An arrest order was obtained, and this produced another payment of Euros 10,000.

Unfortunately, no further payments were received and it became apparent that the ship on which the arrest order had been obtained was held up at the previous port, so the arrest order could not be served. An arrest order was therefore obtained to arrest another of the charterer’s fleet. This arrest was effective and the charterer paid the balance owed. The legal costs were paid by ITIC.

“Persistence pays,” says ITIC.

Copies of the ITIC Claims Review can be requested from: chris@merlinco.com

ITIC is managed by Thomas Miller. More details about the club and the services it offers can be found on ITIC’s website at www.itic-insure.com 

For more information:                   

Charlotte Kirk                                  

ITIC                                                 

Tel. +44 (0)20 7338 0150                          

Fax. +44 (0)20 7338 0151                         

charlotte.kirk@thomasmiller.com             

AKD says Chapter 11 protection is not enforceable in The Netherlands

Netherlands law firm AKD says that, while beleaguered shipowners may be looking increasingly to Chapter 11 filings in the United States to protect their financial interests, the fact is that Chapter 11 does not enjoy the force of law throughout the world, and certainly not in The Netherlands.

Haco van der Houven van Oordt, head of the shipping & offshore team at AKD’s headquarters in Rotterdam, says, “Nobody – and that includes the banks - wants to see shipping companies forced out of business. On the other hand, one cannot expect the banks to forgo the opportunity to ring-fence their losses in cases where they deem this to be the most propitious course of action.

“Some observers have predicted an increase by owners in the use of bankruptcy protection filings, and evidence from the banks suggests that a number of owners have indeed threatened to take such steps absent an agreement to restructure their debt.

“In this respect it is worth noting that Chapter 11 or similar protection does not enjoy worldwide currency. It works in those countries – including the US, the UK and in fact many others – which adopt a universal approach to cross-border insolvencies. But there are other countries, most notably The Netherlands, which adopt a territorial approach to bankruptcy.

“Banks can take action against the assets of a debtor in The Netherlands, even if the debtor is in liquidation or subject to similar proceedings. Under Dutch law, it is possible to act for banks and to auction vessels in The Netherlands, despite insolvency and/or liquidation proceedings being in place in other countries. Such proceedings do not prevent a bank from enforcing a mortgage in The Netherlands.”

The Netherlands is also a jurisdiction in which very few claims enjoy priority over mortgage claims. Moreover, it is widely recognised as a haven for those looking to attach ships and/or to arrange for their swift judicial auction, and counter-security is seldom required. There are very few legal hurdles to pass in order to obtain leave for attachment and, in addition, there is no obligation for the claimant to pursue its claim in the courts of The Netherlands following the attachment.

Haco van der Houven van Oordt adds, “While most mortgages are enforced in Rotterdam, a significant number are also dealt with in Amsterdam. All ships proceeding to Antwerp have to transit the River Scheldt, where they are also subject to Netherlands jurisdiction. And so it is that a number of mortgagees are known to have taken active steps in the past to direct vessels to ports in the Amsterdam – Rotterdam – Antwerp range for the specific purpose of bringing themselves within the jurisdiction of the Dutch courts.

“In the light of recent events, many observers are predicting a rush on the part of shipowners to seek Chapter 11 protection. But The Netherlands is a place where creditors can still pursue the attachment of assets despite a Chapter 11 filing.”

Notes to editors
AKD’s transport law division provides a full range of legal services to the maritime and transport industry. AKD is a full-service firm with over 250 lawyers. AKD is in the top tier of Legal 500’s Netherlands shipping, aviation and transport section.
www.akd.nl