He asked me if I was sure of that.
1. They asked us, "Can you supply some more cotton?" 2. We asked him, "Do you claim for dead freight?" 3. She asked them, "Is he willing to pay overtime?" 4. He asked us, "Is the work being done in your interest?" 5. The captain asked him, "Do they allege that they supplied the full quantity?"
Model 2: They asked him, "Did you repudiate our claim?"
They asked him if he had repudiated their claim.
1. She asked me, "Did you explain to them how the things were?" 2. He
199
asked us, "Was that my fault?" 3. They asked him, "Was there any misunderstanding?" 4. He asked the agent, "Did you deny that fact?" 5. She asked them, "Did you settle that dispute?"
III. Listen to the short dialogues, repeat each sentence during the pauses and learn the dialogues by heart:
"That can't possibly be so. It contradicts common sense."
"Well, but they deny that it was their fault. They say that this clause exempts them from liability."
***
"The responsibility for the accident rests with you. We have to demand compensation."
"We understand your attitude, but still we must repudiate your claim." "Then I see no alternative but to bring an action against you."
IV. Listen to each of the long dialogues again and retell briefly their contents from the point of view of: (a) one speaker, (b) the other speaker, (c) an onlooker.
Make your partner ask you about some details which you missed.
V. Write the dictation:
Claims may arise when one party violates some laws or some terms of contract. Claims are settled in different ways. The best way to do so is to agree on an amicable settlement. The parties usually come to a mutual understanding and agreement through exchange of letters or by personal contacts. If the parties cannot agree on some questions, they refer their dispute to arbitration. Arbitration is a method of settling commercial disputes without applying to a court of law. When the parties see no way to agreement they go to law.
In marine practice, claims may arise in connection with short delivery of
200
cargo, damage to cargo, non-payment of money or non-fulfilment of some clauses of contracts, marine insurance, and so on. The Soviet Maritime Arbitration Commission has been established at All-Union Chamber of Commerce & Industry. It settles disputes with regard to charter parties, contracts of carriage and marine insurance, arbitration agreements for cases of collisions and salvage contracts.
General average is a loss which is divided among the shippers, the receivers and the shipowners. This loss results from a voluntary and deliberate sacrifice of the parties goods in order to save the rest of the cargo and the ship.
Particular average is borne by one party only.
VI. Practise In pairs enacting the following situations. You act as the shipmaster, your partner — as the agent. Then you change your parts:
(a) You are discussing with your agent the Shippers' refusal to pay dead freight. You refer to the clause of the Charter party which reads: "Charterers need not supply full cargo, but in this case they shall pay dead freight". The agent doubts whether they shall pay dead freight, so far as under loading was not through their fault. Still you insist that you have to make a claim against the charterers and ask the agent to hand them over your official letter to this end.
(b) During your voyage you encountered heavy weather and you fear that some damage might have been caused to the cargo. In this connection you want to lodge a sea protest at a local notary office and you ask your agent to help you. You are discussing with him which official documents might substantiate the facts (entries in the log book, in the cargo book, etc.). Finally you ask the agent to call in a surveyor to hold on a Survey before breaking bulk.
(c) During the storm your ship got such a heavy list that you had to jettison part of the deck cargo. The average adjuster defined this case as general average. You are discussing with your agent the circumstances of this case and you ask him to inform the consignees that they will have to sign appropriate average bonds.
201
VII. Translate into English:
Грузоотправители не представили полного груза. Нам придется предъявить к ним претензию за мертвый фрахт. Что касается сверхурочных, то здесь какое-то недоразумение. По условиям чартера сверхурочные оплачиваются грузополучателями. Об этом имеется отдельное примечание в чартере. Вы говорите, что они отклонили вашу претензию. Они отрицают, что должны платить эту сумму? Ну что же, тогда нам придется передать наш спор на арбитраж. Если они не согласны на арбитраж, мы возбудим дело через суд.
Теперь относительно ущерба, который был причинен нам местным катером. Владельцы катера согласны заплатить за эти повреждения? Вы говорите, что они не согласны. Вы понимаете, насколько необоснованно они поступают? Что бы они ни говорили, как бы они ни отрицали свою вину, ведь ущерб судну причинен. Мы имеем законное право потребовать компенсацию за повреждения. Я не вижу никакого другого выхода, кроме как обратиться в суд.
Есть еще один вопрос, который мне хотелось бы обсудить с вами. Я хочу заявить морской протест. Я опасаюсь возможного ущерба грузу вследствие подвижки груза. Я составил проект морского протеста и хочу, чтобы вы просмотрели его. Мы можем подкрепить все факты выписками из судового журнала. Все выписки переведены на английский язык. Не могли бы вы отдать эти выписки, чтобы их перепечатали на машинке? Нам нужно будет также вызвать сюрвейера для осмотра трюмов. Я думаю, что вы тоже примете участие в этом осмотре. Между прочим, возможно, что получатели захотят прислать также своего сюрвейера. Вы тоже так думаете? В таком случае сообщите им, пожалуйста, о дате осмотра.
202
LESSON 17
CLAIMS ON COLLISIONS
Words and Word Combinations
accident несчастный случай, авария
to occur происходить, случаться, иметь место inevitable неизбежный beyond вне, сверх, выше occasion случай, возможность, обстоятельство, событие lack of недостаток, отсутствие чего-л.
negligence небрежность, халатность disregard невнимание, игнорирование neglect пренебрежение
and the like и тому подобное
disastrous бедственный, катастрофический to seek искать, разыскивать
guilty виновный, виноватый
to sue преследовать судебным порядком, возбуждать, предъявлять иск to sheer отклоняться от курса, рыскать
to run against столкнуться, натолкнуться
to cross-examine подвергать перекрестному допросу to inquire наводить справки, расследовать
on behalf of от имени (кого-л.)
statutes for (he merchant ships уставы для торговых судов thoroughly тщательно
to apply применять, прилагать
to obey подчиняться, выполнять (приказ) to prescribe предписывать
irrespective of безотносительно, независимо (от чего-л.)
203
to Interpret; interpretation переводить, толковать; толкование proceedings судопроизводство, ведение дела hirer наниматель to compensate for возмещать, компенсировать
to crumple мять, комкать to choose выбирать
to rely (upon) полагаться, доверять demand требование, просьба
at all совсем, вообще minor второстепенный to miss пропустить, упустить, проглядеть basis основание, исходный пункт
rumours слухи
wrong неправильный, неверный lawyer адвокат, юрист
solicitor поверенный, адвокат, юрисконсульт to cope with справиться
to adduce представлять, приводить (в качестве свидетелей,
доказательства)
to be domiciled иметь постоянное жительство summons судебная повестка
Expressions
to bear responsibility нести ответственность to be at fault быть виновным
to hear the case слушать дело
to collect evidence собирать свидетельские показания
to pass a decision выносить решение opposing party противная сторона
(юр.)
to bring the action against to bring the suit to the court возбудить
судебное дело
204
in ample time заблаговременно, вовремя
that's worthy of praise это заслуживает похвалы
the more so тем более, что the bags got soaked мешки подмокли
He is an old hand at this business. Он знаток этого дела.
to lodge a Sea Protest оформить морской протест (у нотариуса)
to spot a vessel on the radar screen обнаружить судно на экране локатора
TEXT
The sailing oа ships is not always smooth and undisturbed. Accidents, though comparatively rare, may sometimes occur to ships. Apart from some inevitable accidents beyond the control of man, there are some occasions when lack of experience, negligence, violation or disregard of the Rules of the Road or of the ordinary practice of seamen, neglect of necessary precautions and the like may lead to disastrous results.
When, as a result of an accident, a ship has sustained or caused some material damage, it is natural to seek a guilty party and make this party bear responsibility for the damage. Under laws of many countries a vessel or her owners may be sued for damages due to fault in collision.
If the damage is insignificant, and it is absolutely evident which of the two ships is at fault (as for instance, when a ship mooring or unmooring next to your berth accidentally sheers and runs against your vessel), then the captains of both ships may come to an amicable settlement as to the repairs to be made and the money to be paid by the guilty party. Sometimes, in such cases a recourse to the harbour master's authority may be very helpful to settle the dispute quicker.
In more embarrassing cases, when there is uncertainty as to which of the vessels is guilty of collision or the damage is too great, the case is brought before the court. The court calls in the witnesses, hears, examines and cross-examines them, inquires into the ship's log book, collects evidence and passes a decision.
In most cases the action against the opposing party is brought by the
205
shipowner or by their representatives on behalf of the owners. In both cases the captain of a ship is to report at once to his owners of the accident. Sometimes, when the circumstances are imperative, the captain himself is obliged to bring the suit to court.
It goes without saying that the majority of accidents at sea result from the fact that inexperienced deck officers sometimes violate, disregard or neglect the Rules of the Road or the official statutes for the merchant ships. Consequently, to minimize the risk of collisions, the young officers should thoroughly study and perfectly understand not only the letter but also the spirit of these Rules. They should be able to apply intelligently these Rules to a given situation. It should be also borne in mind that the efficiency of actions prescribed by these Rules depends to a large extent upon a very essential factor which is often overlooked by young officers. The actions should be taken in ample time to provide for perfect security and safety.
A sound knowledge of these rules is also very important for another reason! Inasmuch as the Rules of the Road are universally adopted and must be obeyed by all ships irrespective of flag, ownership, size and service this knowledge will help a mariner to prove at any court that his actions were quite correct and reasonable. It will also help him to show fault on the part of the other vessel should he be involved in the collision predicament.
An intelligent seaman should also know how these Rules are interpreted at the court, so to say, from the juridical point of view. He should acquaint himself with the court interpretation of such terms as "inevitable accident", "moderate speed", "efficient whistle", "flareup light", "proper lookout", "special circumstances", "immediate danger", "ordinary practice of seamen", "risk of collision", etc., as this will greatly assist him in understanding the court proceedings and procedure better.
206
DIALOGUES
1
AGENT. Good afternoon, sir. Please meet the captain of a Russian ship, Pobeda, Mr Petrov. We've come here in connection with an unfortunate accident that has occurred today.
CAPTAIN OF A FOREIGN SHIP. Glad lo know you, sir. My name is Wilson. You are welcome. Will you take a seat, please?
PETROV. Thank you, Mr Wilson. I am extremely sorry for the accident. Unfortunately, we have been the unintentional cause of damage to your ship.
WILSON. Yes, I know that. The chief officer reported to me about that. I was out at that time. How did it happen?
PETROV. You see, the port tug was bringing us alongside to get moored next to your berth. The wind was inshore and pretty strung at that time. Just at the moment when our stern was abreast of your bow the tug's hawser parted and the wind pressed my ship against your ship's side.
WILSON. Do you mean that was the tug's fault?
PETROV. Well, fault or no fault, but the hirer has to pay for the damage, as the law says.
WILSON. Oh, you know the law pretty well, that's worthy of praise, especially with such a young person as you are. Am I to understand that you are willing to compensate for the damage?
PETROV. Certainly, we are. We have to. That's why we have come here to arrange that business with you.
WILSON. I'm very glad, indeed. It'll save me a lot of trouble. Would you like to see for yourself the scope of the damage?
PETROV. Yes, let's go. Was there much damage caused?
WILSON. They say the impact was rather heavy. Five port-lights were broken. The starboard gangway was crumpled. The jib boom was badly bent, part of bulwark crushed and two dents caused in the plating, to say nothing of the
207
painting which was bruised.
PETROV. Sad case! How shall we arrange about repairs? Am I to ask our agent, Mr Petterson, to send an engineer from the repair shop aboard your ship?
WILSON. If you don't mind, I would rather have an engineer from Messrs Starland & Co., with whom we've been connected for many years.
PETROV. Why not. It's up to you to choose the firm you rely upon. WILSON. Then, that's settled. I'll let you know beforehand when their
engineer is to come, so that you might fix with him about the costs of repairs and the payment of the bill.
PETROV. All right, let's do it that way, if it suits you. Oh, here we've come to the spot. Yes, the damage is exactly as you say. I'm really sorry to have caused you so much trouble, although it wasn't our fault altogether.
WILSON. Well, as the saying goes, "What's done can't be undone".
2
JOHNSON. Let me introduce myself, sir. I am the captain of the m/v Hamstead. Johnson is my name. I suppose you guess the reason of my visit.
MIKHAILOV. Pleased to meet you, Mr Johnson. Come in. I think I won't be wrong, if I say that you have come in connection with the collision.
JOHNSON. That's it. The fact is that we are very sorry for the morning accident. I've brought an engineer from the local shipyard to see how the damages can be repaired. It goes without saying that we shall pay all the expenses.
MIKHAILOV. Very well, sir. Shall we call in an official surveyor to draw up the list of damages?
JOHNSON. Well, I don't know whether this formality is necessary at all. As to me, I don't care for any official document, and I presume, we can manage all the business ourselves. Anyhow, this depends upon you; you are to decide the question.
MIKHAILOV. If you don't mind, I think we had better call in a surveyor; it will save us both a lot of trouble and misunderstanding. The more so, I expect a
208
surveyor to come shortly here in connection with other business matters. Our agent has arranged with him to come by 12 o'clock today. So, if you can spare half an hour more, let us wait for them.
3
JOHNSON. So, we may now all go and see on the spot what should be done. MIKHAILOV. Certainly, let us waste no time, I am sorry to have kept you
both this half an hour. Come along.
JOHNSON. Well, it's clear both to the engineer and to me what's to be done. What are your demands?
MIKHAILOV. First of all, we want these sheets of plating replaced and welded. They should be then coated and painted. All the three dents in the plating should be straightened and coated and painted too. The deformed parts of stringers must be either straightened or cut out and replaced by new ones. And what's the surveyor's opinion?
SURVEYOR. My opinion is the same as yours. Besides, I have put down here some minor repairs to be done. I want all of you, gentlemen, to look through this official statement and sign your names.
MIKHAILOV (having looked through the statement). To my mind, you have not missed anything. Thank you very much. Where am I to sign my name? Oh, here? Yes, I see. Thanks a lot. Will you, Mr Johnson, see this statement and state your opinion, too?
JOHNSON. I have no objection either. Shall we take the surveyor's statement as a basis for all the repairs to be done?
MIKHAILOV. I think, we shall.
JOHNSON. Then, everything is settled and, as they say, "both parties have come to a mutual understanding and agreement". I am glad we are through with this business.
209
4
CAPTAIN. Well, Mr Dickson, as you have probably heard, we collided with a British ship, the m/v Oarsman, on the way here and sustained heavy loss. I reported at once to my owners and they instructed me to bring an action against that ship. As there is no Soviet Consulate here, I expect you to help me with the formalities.
AGENT. Of course. I'll do my utmost to help you. To tell you the truth, I've heard some rumours in the Port Office, but they are all rather contradictory. How did it happen?
CAPTAIN. To be short, it was like this. We were caught in a very thick fog near the Pentret Point. Naturally, we reduced speed at once "to slow speed" and started to give fog signals before we entered the fog area, as prescribed in the Rules of the Road. The radar was switched on, and in a while we spotted an oncoming vessel. She was proceeding at high speed, violating the Rules. Soon, because of a wrong manoeuvre, she ran against our ship. That's how it happened.
AGENT. I see. Has the cargo been damaged?
CAPTAIN. Yes, the water penetrated through the rent into Hold No. 3 and, I suppose, a number of bags of rice got soaked.
AGENT. Then the first thing to do is to note a sea protest. After that I'll take you to a lawyer, Mr Swanson. He is an old hand at this business and I think he will be willing to act as your solicitor. There is a lot of clerical work to be done which neither you nor I could cope with. By the way, have you entered all the circumstances of the collision in your log book?
CAPTAIN. Certainly, we have. It's our duty to do so.
AGENT. That's very good. Now, are you prepared to go there right away? We must see the lawyer before the working day is over.
CAPTAIN. Yes, I can be ready in 10 minutes. What shall I take to show the lawyer?
AGENT. Well, first of all, take your log book. Don't fail to take your engine-room log book too. Then I would advise you to make a list of witnesses whom you
210
are going to adduce. State their names, age, and the places where they are domiciled. The lawyer will need all these data to get from the court formal summons to the witnesses.
CAPTAIN. Is that all that I should take along?
AGENT. I think that's about all. Oh, yes, I have quite forgotten. Take the statement of the sea protest, we'll drop in on the way to Mr Swanson at the Notary Office to have it lodged.
5
CAPTAIN. Let us settle this dispute in an amicable way. You don't deny that your boat came too close to my ship and broke the ladder.
SKIPPER. No, we don't deny that.
CAPTAIN. You don't deny that you have caused us the damage.
SKIPPER. No, we don't. But that was through no fault of ours. You know the gust of wind pressed our ship against yours and we couldn't help it. It was absolutely unexpected.
CAPTAIN. At all events you had to keep at a safe distance from my ship, wind or no wind. Thus the responsibility for this accident rests with you. I think you understand how unreasonable you are. The damage- was done and I have to demand compensation for the loss. If you are not willing to pay for the damage, I shall have to go to law.
SKIPPER. I understand your attitude, sir, but still I must repudiate your
claim.
CAPTAIN. I am sorry, I see no alternative but to bring an action against your company.
6
CAPTAIN. You are welcome, Mr Dobson, come in please. I understand that you represent the local branch of the P. & I. Club, don't you?
MR DOBSON. Yes, sir, that's right. Our Manager, Mr Charles, had had a
211
telephone talk with you. He told me that you wanted my assistance.
CAPTAIN. Yes, Mr Charles told me that you could be very helpful. We have to settle the trouble we faced here quite unexpectedly.
MR DOBSON. I suppose you mean the damage caused to the quay while you were getting moored. Am I right?
CAPTAIN. Yes, you are. I just meant that. You see, it isn't just the fact of damage itself. The point is that the port authorities require too big an amount to cover that damage.
MR DOBSON. Do they give any reason for that? CAPTAIN. No, they just say that we have to pay. MR DOBSON. How did it happen?
CAPTAIN. We were nearing the quay keeping at some angle to it. The weather was windy and the gust of wind pressed our ship against the quay's robbing piece. The timbers were evidently rotten and they broke at once. Now they say they have to replace the wooden robbing pieces all along the quay.
MR DOBSON. I see. Have you called for a surveyor?
CAPTAIN. No, we haven't yet. We are the first time in your port and we don't know anybody here.
MR DOBSON. Well, I think I'll do it myself. As soon as we get the surveyor's report I'll contact people in the port office. I hope we shall be able to manage that business.
LABORATORY EXERCISES
I. Listen to the text of the lesson again and answer the following questions:
1. Do accidents often occur at sea? 2. What may a ship sustain in collision?
3. What responsibility do we make the guilty party bear? 4. What do the captains do when the damage is insignificant? 5. What do they do in more embarrassing cases? 6. What is the usual court procedure? 7. Whom is the captain to report to of
212
the accident? 8. Who brings an action against the opposing party? 9. What do the majority of accidents at sea result from? 10. What should the young officers thoroughly study to minimize the risk of collisions? 11. What should they perfectly understand? 12. Why should the actions prescribed by the Rules be taken in ample time? 13. Are the Rules of the Road adopted only in some parts of the world? 14. What ships should obey these Rules? 15. What may the knowledge of these Rules help a mariner to do? 16. What should an intelligent seaman know about these Rules from the juridical point of view?