Interview with DOCK Legal Experts: the legal side of P&I

Marcel Verhagen has spent his whole working career as a lawyer in maritime law. In 2002, he became a partner with Ton Jumelet, who began his career at Dutch P&I and then moved into law. Together, they specialize in transport law, not only inland navigation but also marine shipping and offshore.

How do you see your role as lawyers for NNPC?

“There are two parts to it,” says Marcel. “We handle questions for the members, if it’s about something in the Netherlands, and we also do work for NNPC itself, such as contractual work and screening policies.”

What kind of questions do you see?

“Changes in policy conditions, for instance,” says Ton. “Issues with the cover. There can then be a question of making sure things are seen in the correct context.”

“As well as when drawing up agreements or advice about certain claims, for example,” says Marcel. We can’t really be much more specific than that, I’m afraid – even if I gave you an example without naming names, it’s such a tight-knit little world that everyone would instantly know who it was about.”

Where is your expertise in the world of P&I?

“We have a general maritime practice,” says Marcel, “focusing on the carrier. You’ve been involved in that since 1990, haven’t you, Ton?”

“About then,” he agrees. “We handle all the transport disputes that turn up. You used to get a lot of cases involving damaged cargo. That’s gone down a lot over recent years, in Rotterdam in particular, because of the trend towards ‘containerization’. But there are also things like charter disputes resulting from the cargoes, sanctions checks, collision damage to the ships, injuries and environmental damage. Those are all aspects of P&I.”

Marcel adds, “Our office focuses strongly on the shipping company, the carrier. We handle all the problems that parties like those have to contend with. Not only in civil law, but also in disciplinary law and criminal law.”

“We never act for the people who have an interest in the cargo, really,” says Ton. “There’s a two-way split there, in the Netherlands at any rate.”

Can you explain that dichotomy – what causes it?

“It’s purely a question of strategy,” opines Ton. “We work for the vessels’ owners and for freight offices. If we were at the same time handling claims against them for landing damage, for instance… well, no maritime insurer is going to like that situation.”

“You do see some law firms nowadays who handle both sides of the spectrum,” adds Marcel, “but we’ve deliberately chosen not to do that.”

“And we find working for the shipping companies and charterers a lot nicer anyway,” says Ton.

Can you tell us anything about the liability risks for NNPC members?

“Sure, if you’ve got three hours,” says Marcel.

Ton continues: “What I think will be interesting for members reading this are the many regulatory amendments that are happening at the moment. Some are developments at the global scale; others are European. Take environmental legislation, for instance, where CO2 emissions are a hot topic. We’re giving a lot of advice about that at the moment, because it’s unfamiliar territory for a lot of people, with complex regulations.”

“Another big change is that transport issues were mostly handled as civil law cases in the past, between two peers in other words. But nowadays, governmental bodies are getting more and more involved by imposing rules. That’s something that carriers are having to deal with more and more.”

So the governments are becoming increasingly major stakeholders?

“Yes,” says Ton, “and what we’re also seeing is a shift in how cases are approached. In a bog-standard collision between two vessels in the past, say, it would be about little more than who had sailed incorrectly and what exactly the damage was. Nowadays, it’s almost standard that there’ll be a criminal investigation too. Not just pro forma either: I’ve seen cases where prosecutions have followed. It’s all getting much more complex.”

Do you have an opinion about that, as a lawyer?

Marcel light-heartedly responds “Can we answer that off the record?”

“I think it’s very tricky to put a value judgement on that,” says Ton. “What I’d say, though, is… suppose you have a collision. Nobody wants that, in civil law terms. If you’re the captain, chief officer or engineer, you may have to face a disciplinary tribunal. But immediately getting criminal proceedings in on the act when something accidentally goes wrong… It’s a development that has major consequences for mariners, and they are often long-drawn-out issues.”

“Shipping’s no different from other sectors,” says Marcel. When there’s an occupational accident involving stevedores or a production company, the Labour Inspectorate and even the police may take a look at it. What I do notice is that a lot depends on who attends on board. There are police officials who can relate to the captain’s position, who understand that he may have been on his feet for twelve hours solid. Being interrogated after an incident then has quite an impact. People sometimes forget that. Fortunately, I see that most of the cases are dealt with properly.”

“What I don’t think is so helpful is that the proceedings in cases are sometimes handled separately” says Ton. “One under disciplinary law, looking at what a crewman did, and another from the criminal law perspective. If proceedings are initiated in this way someone may potentially get punished twice.”

Marcel concurs. “There’s a general tendency in society of the legal system becoming more and involved in such matters, and to assign guilt and penalties.”

Do you have any specific tips for NNPC members?

“Better to call us too soon than too late,” says Marcel. “People can be reluctant to contact lawyers and try to handle things themselves instead. Sometimes we get landed with a case where we think we could have kept it under control if only we’d been called in a couple of days earlier.”

“NNPC has an excellent claims department of its own,” adds Ton, “so they’ll normally be the first point of contact.”

“I’d like to give the Captains another tip for when governmental officials come on board,” says Marcel. “Make sure you have discussed it with the NNPC first before you start talking to people. Not that I’m trying to stop those services from doing their job, but they do sometimes come in pretty hard and try to get you to talk straight away.”

“An example,” says Ton. “The guy taking the statement asks you, ‘Right – what do you think happened?’ And whatever you suspected goes down in their report and it’s very difficult to get anything changed later on. The scene has been set. It’s better to say something like, ‘I don’t know. The investigations will need to be completed.’ It happens when shipping company staff are called too. The same thing. My advice is to ask them to send their questions by e-mail and you can then respond to them in due course.”

“Discuss it briefly with NNPC or with us,” says Marcel. “Find out what your rights and obligations actually are. That makes a big difference.”

Finally: you’re currently on the lookout for people with legal skills for your office in Rotterdam. What criteria would a presumably ambitious and young lawyer need to meet to work with you?

Marcel says, “Whether you’re an experienced lawyer or just starting out, and looking for an exciting role in a young office – which we still think we are – that focuses on the transporters’ side of P&I, well… you’ve come to the right place. You can start working independently reasonably quickly and build up your own practice.”

“I think having an affinity with shipping is more important than straight A’s,” says Ton.

Marcel agrees. “You have to enjoy getting a phone call at eleven o’clock at night and being instructed to go straight on board to solve a problem. Or if you occasionally have to keep going all night. The flip side is that we’re a small office and there’s a lot of freedom in how you approach things.”