Law firm Reed Smith on Thursday (26 September) shared comments of its transportation lawyers Han Deng and Alice Colarossi on the Baltimore bridge collision incident involving Singapore-registered vessel “Dali” in March:

Several claims have been filed against the owners and managers of the cargo ship in the aftermath of the incident, including (among others), on September 18, 2024, a USD 100 million claim by the U.S. Department of Justice, which alleged that the collapse was caused by the “outrageous, grossly negligent, willful, wanton, and reckless” conduct of the owners and operators, who they allege sent out an unseaworthy and poorly maintained vessel with a history of equipment failures to navigate a critical waterway.  

The government opposes the petition that was filed by the owners and managers of the vessel to limit their liability to approximately USD 44 million under the U.S. Limitation of Liability Act—a U.S. statute dating back to 1851 that allows ship owners to limit their total liability to the value of the vessel and pending freight after major incidents (while the Convention on Limitation of Liability for Maritime Claims does not apply in the United States).

The lawsuit raises a number of legal and factual issues, including as to the owners’ and managers’ knowledge of the condition of the vessel, and the circumstances and causes of the incident.

At the Port of Baltimore, ships are typically required to have a harbor pilot on board when navigating through the harbor and approaching or leaving the port. This is a common rule in many U.S. ports to ensure safe passage through waterways, such as crowded harbors or narrow canals. 

It requires tugs to assist ships in and out the port but does not mandatorily require extended escorts into the port’s channel or further into the bay. Tug escorts are only required in Baltimore for specific cargo types like oil or liquid natural gas, and for docking and undocking operations of larger ships with limited maneuverability. 

Harbor pilots or the ship’s operator can request extra tug services if and when they have safety concerns. Two harbor pilots were temporarily in charge of navigating the DALI on her exit from the Port of Baltimore.

Two tugboats also initially guided the ship out of the dock and then left the ship when she was safely inside the channel 20 minutes before the collapse. Minutes before hitting one of the bridge supports, the pilot called for tug assist, but it was too late.

The incident raises questions about safety measures for large ships passing under bridges, including whether additional tugboat escorts could prevent such accidents. Some have advocated for new regulations requiring tug escorts, changing protocols for tug escorts or standardizing escort rules across ports.

The rules currently vary depending on the port and state, and there are currently no harmonized tug escort requirements at the U.S. federal level, except in certain safety zones and for certain tankers. This could change. Note that there are no confirmed new regulations requiring towboat escorts for ships leaving the Port of Baltimore as a result of the collapse.

Implementing such new regulations could introduce complications, such as delays and additional costs.  Further insights may emerge from ongoing investigations, including a report from the National Transportation Safety Board, which could address the feasibility and potential benefits of towboat escorts in preventing similar incidents.

Related: FBI boards Singapore-flagged ship “Maersk Saltoro” in Baltimore
Related: US sues owner, operator of Singapore-registered “Dali” for Baltimore bridge crash
Related: NTSB report dismisses bunker fuel as cause of Singapore-registered “Dali” crashing into Baltimore bridge
Related: Baltimore bridge crash: Safety investigation to include contaminated bunker fuel as possible cause
Related: Baltimore bridge collapse: FuelTrust highlights bunkering activities of Singapore-registered “Dali”
Related: MPA: Singapore-registered ship in Baltimore bridge crash passed previous foreign port state inspections

Photo credit: Baltimore County Fire Department
Published: 27 September, 2024 

Bunker trading firms are part of the marine fuels supply chain. When a bunker trader starts representing their company, they usually gain access to privileged information and industry contacts as part of their line of work; this is especially so for senior staff.

Marine fuels publication Manifold Times is privileged to have Matthew Teo, Director, Head of Employment at multi-disciplinary law firm Helmsman LLC, answer questions relating to staff movement.

Employment law is one of Matthew’s areas of specialisation. He often advises on restrictive covenants, contentious terminations of employment and non-contentious aspects such as drafting employment contracts and disciplinary policies. Matthew also acts regularly in employment disputes in Singapore.

MT: How should employment contracts within bunkering firms be structured where privileged knowledge is kept within company walls even when a trader leaves?

Employers generally utilise a mix of contractual obligations placed on employees in order to protect confidential trade information. There are normally confidentiality clauses and restrictive covenants (e.g. non-competition and non-solicitation clauses). However, these are not a panacea. In reality, it is difficult to police and prove breaches of confidentiality clauses. Similarly, restrictive covenants are, by default, unenforceable unless they meet certain criteria.

For more effective protection, employers should consider segregation of confidential information within the company and ensure that only people with a “need to know” are granted access to such information. Employers can also implement data loss policies and measures to monitor and track unauthorised download of confidential information. For example, if a trader resigns, the employer should immediately cease the trader’s access to the company’s confidential information.

MT: Regarding non-compete clauses, what are employer’s and employee’s rights on enforceability of ex-traders joining competitors?

The default position is that as a matter of public policy, non-competition clauses are unenforceable unless they protect a legitimate proprietary interest of the employer and are reasonable.

In recent cases in 2024, the Singapore courts have taken a very strict approach towards analysing non-competition clauses and held that confidentiality clauses which are premised on the protection of confidential information or trade connections are unenforceable where the employment contracts also contain confidentiality and non-solicitation obligations. There has been some academic discussion as to whether this approach is correct but this remains the current status of the law until the Court of Appeal of Singapore decides otherwise.

This is not to say that non-competition clauses will always be deemed unenforceable. Much will depend on the extent of the particular circumstances of each case and the ambit of the clause.

MT: On the topic of non-solicitation, can a former employer stop ex-traders from trading with previous customers even when bunker trading is such a niche market?

Non-solicitation clauses generally restrict the solicitation of an ex-employer’s customers. In other words, it requires a positive act of solicitation. On that basis, if the non-solicitation clause is reasonable in terms of period of restraint, scope of restraint and geographical area of restraint, it is possible for such a clause to be upheld as enforceable.

On the other hand, clauses which purport to prevent a former employee from trading with a previous customer without any solicitation may not be enforceable.

MT: What is the difference between notice period and garden leave?

A notice period is the period of time between the date on which an employer or employee notifies the other party that it intends to terminate or cease employment. This is a statutory requirement and most employment contracts will stipulate the specific notice period (failing which the Employment Act provides for the minimum period which will apply). For example, if an employment contract has a notice period of 1 month, then if the employee resigns today, the employee will have to serve the employer for another month (i.e. the notice period) unless the employee pays the employer 1 month’s salary in lieu of notice.

Garden leave is different concept. It is a period of time during the notice period in which the employee may be asked to stay away from the workplace and not conduct any work. The purpose of this is to cease the employee’s access to other employees and trade connections, as well as confidential information, so that the employer can then take steps to build relationships with those trade connections or prevent employees from being influenced to leave the company. In order to place an employee on garden leave, the employer must have included a right to do so in the terms of employment.

MT: It is common for big bunker trading firms to impose non-competition clauses for up to a year which prevents traders from being bunker traders during the period. Who should be paying the trader in this period and what can be considered fair for an ex-trader to ‘comply’ when considering a 100%/50%/0% non-competition payment scheme?

There are various jurisdictions in the world which have specific legislation governing non-competition clauses and in some cases, the laws of these jurisdictions may require the employer to make payment of a percentage of the employee’s last drawn salary during the period of post-termination restraint. Singapore, however, does not have any legislation governing this issue. Nevertheless, some employers in Singapore have drawn inspiration from these jurisdictions and introduced the concept of payment of “salary” during the post-termination period of restraint in Singapore to compensate ex-employees for not competing.

In my view, if an employer wishes to restrain an employee from working in the industry and utilising his skill sets post-termination, and if the period of restraint is very long (e.g. a year), then the employer should consider compensating the employee. Otherwise, the employee may have no alternative but to find work in the industry and “compete” with the employer in order to earn a livelihood.

The quantum of payment during such period of post-termination restraint is also a difficult issue. Whilst an employer may think it is fair if it pays the employee 100% of the employee’s last drawn salary during the period of post-termination restraint, the employee’s perspective may be different because the employee will be out of the industry for a long period and there may be a negative impact of the employee’s future career development that is greater than the compensation received. In other words, there is no law or fixed rule as to what percentage of salary payment would satisfy an employee, but I would think that a former employee would find it more palatable to accept such a clause and abide by it if there is a bigger financial incentive.

MT: Can an ex-trader compensate the former employer if he/sure wishes to seek relief from the non-competition period? How can it be done?

There is no specific legislation or law in Singapore that governs this issue. As such, this will have to be a negotiation between the former employee and former employer. In reality, a former employee is likely to obtain legal advice on the enforceability of the non-competition clause. If such legal advice is favourable to the employee, the employee may decide to proceed as if there was no such clause and test the former employer’s appetite in pursuing legal action.

Note: Matthew can be contacted at [email protected] for further enquiries.

Photo credit: Helmsman LLC
Published: 24 July 2024

Law firm Reed Smith on Tuesday (23 July) shared comments by its lawyer Voirrey Davies on greenwashing claims in the shipping industry, relating to UK Advertising Standards Authority recently upholding a complaint about an ad by a cruise company in the digital edition of a national newspaper: 

Greenwashing has become a prominent issue, especially with the EU Taxonomy's possible extension to cover various segments of the transportation industry. While greenwashing is typically associated with the oil, gas, and finance sectors, the UK Advertising Standards Authority (ASA) is now focusing on misleading advertisements across all industries, including shipping.

Hurtigruten - the Norwegian expedition cruise company - released an advert saying that they were the “leaders in sustainable expeditions” and it was the use of the word “sustainable” that resulted in them falling foul of the ASA. What Hurtigruten meant is that their cruises have a relatively low impact when compared to other cruise lines, which is probably true, but there was nothing to indicate in the advert that this claim of sustainability did not include flights.

However, the ASA said that this was not specific enough as it gives the misleading impression that the entire holiday package was “sustainable” and the measures Hurtigruten had put in place to reduce their environmental impact were insufficient to support an absolute “sustainable” claim.

The ASA and other regulatory authorities are keen to ensure that the understanding by consumers of the meaning of words, such as ‘sustainable’ or “green energy’, is clear and are maintaining a sharp watch on any company making such claims, whether they be an energy company, a private equity fund or indeed a cruise line.

As regulatory bodies like the ASA tighten their scrutiny, it becomes crucial for companies across all sectors to ensure their sustainability claims are clear, accurate, and fully substantiated.

Note: ASA’s ruling on the complaint involving Hurtigruten UK Ltd can be read here.

Photo credit: CHUTTERSNAP on Unsplash
Published: 24 July 2024