With a broad commercial shipping practice, Kevin’s clients include major international shipowners and builders, charterers, cargo owners, salvors and shipyards, and their respective insurers. After Oxford University, Kevin served in the British Navy for 10 years. Having previously worked at another firm in its London, Shanghai and Monaco offices, he joined MFB in June 2018, where he continues to have a broad shipping and marine insurance practice.
Kevin’s admiralty practice involves high-value multi-jurisdictional cases such as the collision between the container vessel MSC Joanna and the hopper dredger W D Fairway in Tianjin in 2007, the grounding and subsequent collision of the Khalijia 3 in Mumbai in 2010, the Altantik Confidence sinking in 2013 and the Norman Atlantic ferry fire in 2014. He also handles a wide range of charter party, cargo claim and shipbuilding matters.
Kevin’s earlier experience as a criminal court advocate in the navy is now employed acting as an advocate in arbitration and mediation proceedings. He also advises on corporate ethics, crime and regulatory matters, especially anti-corruption policies and procedures.
Kevin is dual-qualified as a solicitor and a barrister, regularly chairs and speaks at shipping sector events and has particular industry contacts in the passenger vessel sector and, regionally, in Norway, Italy, Spain, Portugal and the Americas. He speaks French, German, Swedish and Mandarin Chinese.
“The GDPR changed the way shipping industry handles data as shipping companies, like businesses in other commercial sectors, must account for their handling of personal data.”
Regulatory and compliance regimes
A key global trend across all business sectors in recent years has been the increasingly stringent regulatory and compliance landscape with which they have to comply, both domestically and internationally, and the shipping sector is no exception. This trend reflects the increasing global shift towards, among other things, tackling corrupt practices in business; addressing climate change; and taking proactive measures against states that breach international law, sponsor global terrorism and possess weapons of mass destruction.
The impact of international sanctions on the global maritime industry has remained a hot topic into 2018. Most prominently, the contrasting stances between the UN, EU and the US towards the international sanctions against Iran under the Joint Comprehensive Plan of Action (JCPOA) have had a considerable impact on the shipping market. In January 2016, the UN and EU lifted certain sanctions against Iran, which allowed EU entities to recommence trading with Iran. On the flip side, with its recent decision to withdraw from the JCPOA, the Trump administration has reinstated the US’ former hard-line attitude towards Iran. Consequently, larger container lines have announced their intention to ‘wind down’ their operations in Iran.
Other countries that have been subject to international economic and trade sanctions in recent years include Syria, Russia and North Korea. Economic and trade sanctions have had a significant impact on the amount of business done in the shipping market, and indeed the way in which business is done, because they place serious restrictions on the scope of transactions that can take place with sanctioned countries or entities, even limiting business that is indirectly related to them. The impact has been felt by shipowners and charterers, as well as the marine insurance market and financial institutions. The recent thawing of relations between North Korea and the international community, however, may see an easing of sanctions over time.
Recent years have also seen a global initiative to tackle economic crimes, corruption and bribery, with many countries implementing legislation directed at eliminating corruption, bribery, money laundering and other types of fraud. At a global level, the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention 1997 (1997 Convention) established legally binding standards to criminalise bribery of foreign public officials in international business transactions. The 35 OECD countries, as well as eight non-OECD countries, have adopted the 1997 Convention. The OECD also has a Working Group on Bribery in International Business Transactions that monitors the implementation and enforcement of the 1997 Convention.
Even before the 1997 Convention, however, the US Foreign Corrupt Practices Act 1977 led the way in tackling corporate liability, responsibility for third parties, including agents, consultants and distributors, and extraterritoriality for corruption offences. The UK’s Bribery Act, which came into force in 2011, is another notable example of domestic anti-corruption legislation that has extraterritorial reach. Other countries that have been proactive in introducing anti-corruption and anti-bribery legislation, and actively pursuing investigations into incidents of high-level corruption, include China, Brazil, Switzerland, France and Germany. Shipping companies must ensure that they have adequate procedures in place so that they do not fall foul of either domestic or foreign anti-corruption laws that may apply to them when doing business internationally. The risk is particularly significant when third parties abroad are instructed to act on a company’s behalf as local agents or intermediaries, and also when business is done in jurisdictions with different standards of acceptable activities.
Data protection laws and cybersecurity practices have also gained prominence in recent years, most notably with the General Data Protection Regulation (GDPR), which came into force in May 2018. The GDPR changed the way shipping industry handles data as shipping companies, like businesses in other commercial sectors, must account for their handling of personal data, have data protection policies, data protection impact assessments and appropriate policies as to how data is processed. This means that they must consider the locations in which they do business, the types of data they gather and store, how it can be accessed, and by whom, and how they use that data.
The increased digitalisation of systems has also meant that businesses face an increasing risk of cyberattacks that can lead to business disruption and financial loss. The importance of ensuring cybersecurity is reflected in both laws being enacted (eg, the EU Network and Information Security Directive), as well as guidelines from various industry bodies (eg, the Baltic and International Maritime Council and the UK Chamber of Shipping) on how to protect against cyberattacks.
Global climate change concern has also had implications for the shipping industry, with various international, EU and domestic legislation aimed at reducing ship emissions and other pollution generated by ships and the shipping industry. Specifically, the International Maritime Organization (IMO) has set a global sulphur cap for 2020, reaffirmed at the IMO Conference in April 2018. The cap requires all ships to use fuels with a maximum of 0.5 per cent sulphur content as of 1 January 2020. Despite concerns over implementation issues such as transitional costs and sufficient availability of compliant fuels, taking the preparatory steps to ensure compliance has become a core focus for many shipping operators and oil refiners. Indeed, a recent survey reported that approximately 60 per cent of the shipping industry have said that compliance with emissions regulations such as the 2020 Sulphur Cap is a high priority for their business; this rose to 88 per cent among operators and 90 per cent among owners.
Among other notable areas of international legislation is the IMO’s Ship Recycling Convention, which has not yet come into force but is aimed at ensuring that ships, when being recycled after reaching the end of their operational lives, do not pose any unnecessary risks to human health, safety or the environment. The early implementation of its principles by the EU has thrown up a number of practical issues that are still being resolved, such as the availability of suitable recycling yards.
Challenging market conditions
The financial crash in 2008 has had a long-term effect on the health of the global economy and the shipping market has seen its share of the fallout. There has been a significant increase in the number of shipping contract defaults and the inability of charterers to pay hire punctually, leading to a knock-on effect for shipowners and other parties in the contractual chain. The shipping market has witnessed a number of high-profile insolvencies, whose consequences have reverberated across the global industry. Some of these insolvencies have led to domestic rehabilitation proceedings, for example, in Korea, and have raised various cross-border insolvency issues. These include difficulties that relate to enforcement of court judgments and arbitration awards against the insolvent party, which have had to be considered by the courts.
Challenging market conditions have also been cited, along with a surplus in market capacity and the insolvencies referred to above, as one of the factors that has led to market consolidation in the container liner service sector.
The trend towards globalisation, which has dominated economics and trade for decades, has arguably peaked. Major political shifts, including Brexit and President Trump’s declared nationalistic policies, suggest that there may be a gradual future unwinding of globalisation, with more countries and states looking inwards, embracing protectionism and, notably, secession. Last year saw the Catalan independence vote, but similar issues of autonomy remain possibly unresolved in Scotland, Iraqi Kurdistan and elsewhere.
President Trump’s aggressive import tariff policies on major trading partners such as China, Canada and the EU, and the UK leaving Europe’s single market will both have consequences for global trade, which fuels the shipping market. Elections in other large economies such as the recent rise to power of populist parties in the Italian government may accelerate the trend. Time will tell whether this apparent backlash against globalisation will continue apace and, if it does, what long-term impact it will have.
One thing is without doubt: the coming years will not be boring for the shipping industry.