1. Soft Law Guidelines, Recommendations and Standards: The Issue of Armed Guards on Board Vessels VIII European Colloquium on Maritime Law Research – Common core, PECL and DCFR: could they change shipping law? dr. sc. Mišo Mudri ć Faculty of Law University of Zagreb 11-12 September 2014 Erasmus University Rotterdam DCFR, Unfair Terms and Knock-for-Knock Liability

2. Bottom-Up Lawmaking International Code of Conduct P(M)SC A P(M)SC B P(M)SC C Montreux Document State A State B State C Private Maritime Security Companies’ Code and/or Standard of Conduct Domestic Law Application Institutional Harmonization

3. Stakeholders Standards The American Security Industry Society (ASIS) – ANSI/ASIS PSC.4 International Standardization Organization – ISO/PAS 28007:2012 Regulation International Maritime Organization Montreux Document Domestic Law Associations International Code of Conduct – Association ICoC The International Association of Maritime Security Professionals (IAMSP) The Security Association for the Maritime Industry (SAMI)

4. Pending Issues  Licensing of Firearms  Personnel Vetting  Floating Armories and Escort Vessels  Domestic Law – Monitoring and Sanctions  DCFR, VI. – 5:202: Self- defence vs. Putative Self- defence, Excessive Self-defence

5. Provision of Services Obligation de moyens – Obligation of Means BIMCO GUARDCON, Clause 6(a):... using all reasonable skill and care Best endeavours standard? DCFR, IV. C. – 2:105: Obligation of skill and care (2) If the service provider professes a higher standard of care and skill the provider must exercise that care and skill (3) If the service provider is, or purports to be, a member of a group of professional service providers for which standards have been set by a relevant authority or by that group itself, the service provider must exercise the care and skill expressed in those standards Modern Professional Liability Standards

6. Contractual Exclusion of Liability DCFR, Article VI. – 5:401: Contractual exclusion and restriction of liability … cannot be excluded or restricted: (a) in respect of personal injury… or… if illegal or contrary to good faith and fair dealing BIMCO GUARDCON, Clause 15(b) – “Knock for Knock” (i)... even if such loss, damage, injury or death is caused wholly or partially by (i) the act, neglect or default of the Owners’ Group/Contractors’ Group... agree and undertake to hold harmless, defend, indemnify and waive all rights of recourse against the Owners’ Group/Contractors’ Group... DCFR comment: “ … statutory rules… prohibition of the contractual exclusion or restriction of liability for certain professional groups that are subject to the duty to take out indemnity insurance and have arranged such insurance ”

7. Concerned Parties Shipowners – Gulf of Aden Group Transits (GoAGT) Insurers – BIMCO GUARDCON, Clause 12(e): … parties shall use reasonable endeavours to ensure that its underwriters waive their rights of subrogation against the other party Cargo interest Clause 15(b) – Cargo Exception, and, Clause 15 (c) – Third Party Liability BUT, Clause 15(e) – Exemption from liability (i) any loss of profit... directly or indirectly... whether or not... due to negligence or any other fault on the part of either party, their servants or agents... (ii) any consequential loss or damage for any reason whatsoever, whether or not the same is due to any breach of contract, negligence or any other fault on the part of either party, their servants or agents

8. Unfair Terms (i) II. – 9:403: Meaning of “unfair” in contracts between a business and a consumer … a term [which has not been individually negotiated] is unfair… if it significantly disadvantages the consumer, contrary to good faith and fair dealing Article 3 Unfair Terms Directive 1993/13/EEC II. – 9:405: Meaning of “unfair” in contracts between businesses … only if it is a term forming part of standard terms supplied by one party and… its use grossly deviates from good commercial practice, contrary to good faith and fair dealing Article 3(3) of the Late Payment Directive

9. Standard terms BIMCO GUARDCON : “ … not an exclusion of liability... [but] a contractual arrangement whereby two parties agree to hold each other harmless… ” DCFR, II. – 1:109: Standard terms DCFR, II. – 1:110: Terms “not individually negotiated” DCFR, II. – 8:103: Interpretation against supplier of term or dominant party (1) Where there is doubt about the meaning of a term not individually negotiated, an interpretation of the term against the party who supplied it is to be preferred

10. Unfair Terms (ii) DCFR, II. – 9:408: Effects of unfair terms (1) A term which is unfair under this Section is not binding on the party who did not supply it DCFR, II. – 9:410: Terms which are presumed to be unfair in contracts between a business and a consumer (a) excludes or limits the liability of a business for death or personal injury caused to a consumer through an act or omission of that business (b) inappropriately excludes or limits the remedies, including any right to set-off, available to the consumer against the business or a third party for non-performance by the business of obligations under the contract

11. Employer’s Liability “Supernumerary Status” DCFR, VI. – 3:201: Accountability for damage caused by employees and representatives (1) … when the person employed or engaged: (a) caused the damage in the course of the employment or engagement (b) caused the damage intentionally or negligently… DCFR comment: “ A contract for service (e.g. with a lawyer) can also suffice under certain criteria, namely where a lawyer is retained for a concrete task with a precisely specified line of approach and without room for personal discretion ” BIMCO GUARDCON, Clause 15(c) – “Third Party Liability” DCFR, VI.–6:105(1) – Solidary liability Solidary Liability and Right of Recourse – for death or personal injury?

12. Thank You for Attention dr. sc. Mišo Mudri ć Faculty of Law University of Zagreb