May - ASBA

THE
NEWSLETTER
OF
THE
A S S O C I AT I O N
OF
SHIP
BROKERS
AND
AGENTS
(USA)
INC
M AY
2013
ASK PAT V. MARTIN
MEDIATION
While much has been written about arbitration as the most
common type of ADR, this article looks at a related method. Mediation
has become the new catchword in dispute resolution and has gained
popularity, especially in court proceedings where great reliance
is placed on mediation as an important tool for settling disputes.
Although there are some similarities to court cases and arbitration,
mediation is substantially different. It is primarily a voluntary process,
and any party to mediation is free to walk out at any time. There is a
caveat to the foregoing. Many courts require good faith mediation
in an attempt to settle cases before being allowed to go to trial. This
article focuses on commercial situations where parties to a dispute
would like to get rid of an irksome case.
Mediation commences when one party requests the other to
submit a claim to mediation (typically, there is no mediation clause
in the contract). If the other party agrees, they will then discuss the
appointment of a mediator. The mediator must be independent,
neutral and without bias or prejudice. The mediator has no authority
to issue an award binding on the parties, but only facilitates a written
settlement.
In due course after appointment, the mediator will schedule a
mediation session. Before the mediation session is held, each party
generally will be required to provide some form of submission to assist
the mediator in understanding the case. Often, the parties will submit
a written position paper together with documents. Depending on
the parties’ agreement, submissions can be exchanged or submitted
confidentially to the mediator only. Mediation contemplates no
procedural discovery of documents or depositions of witnesses
although evidence developed at arbitration hearings or in pretrial
discovery may be used freely. The mediator most likely will insist that
each party bring along to the sessions a person with authority to settle
the dispute.
It must be emphasized that mediations are held in the strictest
confidence, and no part of any submission can be divulged or used in
any other proceeding, regardless of whether a settlement is reached in
the mediation.
At the mediation session the primary role and aim of the mediator
is to achieve a settlement. The mediator should not express any
opinion on which party is “right” or on the merits of the claim or
defense. The mediator is a “facilitator” and not an “adjudicator.” While a
mediator may conduct the session in any manner he deems suitable, a
typical pattern is as follows.
There is an initial plenary meeting, or roundtable, with each side
attending to present an opening statement of position. While this
is often done by an attorney, in some cases it is better done by the
principal. From the opening statement or any papers submitted earlier,
the mediator may form an initial impression of the matter; so it is
important that the opening statement be well prepared and forcefully
stated. In court and arbitration the arguments are addressed to the
court. In mediation the arguments are sometimes addressed right
across the table in somewhat of a venting manner.
Assuming no settlement is agreed after this first attempt, the
mediator will conduct a series of private discussions. He separates the
parties by assigning them to different rooms. He will then go to the
claimants in private to seek a figure that may be acceptable. He will
explain that anything said to him in private will not be told to the other
side without authority. Thus, the claimant may say “I want 100%, but
will accept 90%; but only tell the other side about my 100% demand.”
Likewise, the other side may want to settle for 80%, but will counter
with 70%. This negotiation will go on, with the mediator going back
A S S O C I AT I O N
OF
SHIP
BROKERS
&
AGENTS
(USA)
and forth, until there is an agreed figure. During the process, the
mediator may point out to each side the weaknesses in its case and the
strength in its opponent’s arguments, but will never venture which is
correct and who is right or wrong. The mediation may be concluded
in one session, but sometimes can continue for several days until
an agreement is reached or the mediator declares further efforts at
mediation would be fruitless.
Once a figure is agreed by both sides, it has to be reduced to
writing and signed by both parties. This signed agreement is final
and binding on the parties and may, if agreed, be made a judgment
of the court. Until the agreement is signed, however, either side may
withdraw because, as suggested above, mediation is conducted on a
“without prejudice basis”.
The above is a short synopsis of a sometimes contentious and
involved process. Mediation is only successful when each party
approaches the process in good faith with the intent of reaching a
settlement, and the successful mediator will know how to skillfully
bring them to that point.
There are organizations which offer mediation services such as the
Society of Maritime Arbitrators, the American Arbitration Association,
JAMS and similar organizations.
TANKER BROKER LUNCH
Member Tanker Broker sponsors
who included: Conway Marine,
Dietze & Associates, Eastport
Maritime, L&R Midland, MCA
Associates, McQulling Partners,
MJLF & Associates, Odin Marine
Group and Poten & Partners,
hosted a “Lunch with Guest
Speaker”, Jack Buono – President,
SeaRiver Maritime, in Houston
on April 30th. This was the
second event of this type and
exceeded all expectations, with
100 members and their guests
in attendance. Members were
delighted at the turnout which
Jack Buono - President, SeaRiver Maritime included the majority of the major
tanker charterers and owner/operators. Jack Buono did not disappoint. He
is an excellent speaker and everyone very much enjoyed his presentation,
“The Outlook for Energy: A View to 2040”. Chris Young, Tanker Committee
Chairman, promises that this will become a regular event, at least every
couple of years.
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ASBA NEWS
ASBA NEWS
MAY 2013
ASBA & BALTIC RECEPTION
MARCH 18, 2013 at Butterfield8, Stamford, CT
Mike Ogle, Svend Groth, Nils Anderson, Juan Charris, Lutz Lange & Nick Haskell
John Nee, Bob Wolff
& Marygrace Collins
YSBA LUNCH WITH SPEAKER
GOLF OUTING
April 26, 2013 at Butterfield8, Stamford, CT
Brendan Collins, Teo Tsagaris, Gil Landy & Rob Lesneth
The YSBA Committee, chaired
by Teo Tsgaris, hosted another
successful “Lunch with Guest
Speaker”, Gil Landy of Pasternak,
Baum & Co., Inc.
Gil shared his love of the
industry and ship brokerage
with close to 50 YSBA members.
His thoughts on “how to enjoy
success as a ship broker” delivered
using his keen sense of humor
were very well received. This
would be no surprise to the
“older” generation who know and
work with Gil.
MAY 2013
May 9, 2013 - New York Country Club, New Hempstead, NY
First Place Team
Ignacio Cardona, Van Alexander, Bryan Cardona
& Frank Moran
Michael Halbro & Tim Mahr
Kevin Whelan, Peter Briante, Gary Molstad & Gary Lawrence
Harvey Dohn & Dave Fekishazy
Nicolai Molin, Endre Buljo, Steve Pomeroy,
Jesper Bo Mogensen, Claus Bjarnested, Ryan Jurewics
& Mike Ring
Gabe Slutsky
Motohito Mukai, Tomoki Morishita & Brian Rudolph
Second Place Team
J.H. Kim, Jeong Hun Lee, Chris Gannon & Dang Yi
Michael Cammaratta, Mike Martino, Bartley Wilkins,
Robin van Wyngaarden & Charles Goodrich
Pedro Bravo, Nick Tangney
& Axel Ditlev-Simonsen
Joe Maranzani, Brian Rudolph
& Dustin Berthelot
MESSAGE FROM JEANNE
As you can see by the breath of events highlighted in this edition of ASBA News, what
a beginning of 2013 it has been!
Chris Young, Larry Cosgriff, Susanne Ogle,
Brian Lane, & Marco Vela
Bill Osmer, Eddie Brister
& Ralph Silverman
Where to begin? The 2013/2014 ASBA Year Book was shipped to all members in early
April. I realize that these are indeed difficult market times for many, that said, we
are even more grateful to the members who supported the Year Book by placing an
advert. We have additional copies available, just drop us an email if interested.
Our social calendar has been nonstop since the middle of March, kicked off by the
ASBA/Baltic Cocktail Party. We had 150 in attendance despite the prediction of snow,
that did arrive just in time to make for a long and difficult drive home for many. The
good news - we had many out-of-town members in attendance and snow wasn’t
as much of an issue if staying in Stamford. Next up was our Dinner Cruise around
Manhattan - 3 hours of socializing, good food and great views!
The Tanker Member Lunch, Agency Affairs Meeting and the ASBA/WGMA Lunch took
me to Houston. In hind sight the schedule for me and our agent members was a bit
hectic, however, all events were deemed a success.
Brendan Dillon, William Armstrong
& Dave Gilmartin
Rishi Nyati, Daniel Uzcategui,
Jennifer Montgomery, Tim McShane & Frank Moran
CIANAM, the Americas Committee of FONASBA, hosted their Annual Meeting in
Montevideo, Uruguay in April. Mike Ogle, past president of ASBA, and I were in
attendance. CIANAM is working to increase their presence and recognition in the
region. There is much work to be done and our new president, Javier Dulce of
Argentina, is commited to achieving these goals. In early May, I hosted the spring
meeting of the National Association of Maritime Organizations in Washington, D.C.
We were joined by guests from Customs & Border Protection, National Oceanic &
Atmospheric Administration, Environmental Protection Agency, US Coast Guard
and Transportation Security Adminstration. Some of the NAMO members paid
a visit to the office of the Co-Chairs, Cedric Richmond and Michael Grimm, of the
Congressional Maritime Caucus whose goal is educate, inform and promote the value
and importance of the maritime industry and Congress. We look forward to working
with them in the future.
You may be thinking what’s next? Cargo Conference, of course! Members have found
that a difficult market is the best time to meet their colleagues at the Conference. The
Committee is busy working on the program and securing speakers - our website has
the most up-to-date listing of speakers and sponsors. Registration is now open.
Bartley Wilkins, Tom Lowndes, Shannon Lemoine, Robin Hastings, Tony Steiner & Charles Worledge
Enjoy your summer!
Third Place Team
John Hahn, Claus Bjarnested, Michael Madsen
& Endre Buljo
ASBA & WGMA
May 2, 2013 at Kim Son, Houston, TX
Dave Fluty, CBP & Niels Aalund, WGMA
Darren Shelton, Rob LeClair & Bob Lain
ASBA was delighted to partner with the West Gulf
Maritime Association to host a member lunch event in
Houston. Dave Fluty, Customs & Border Protection Port
Director in Houston was our guest speaker.
Ralf Knickrehm, Hans Knickrehm,
Jorgen Jorgensen & Robert Hawn
ASBA NEWS
MAY 2013
DINNER CRUISE
CONGRATULATION STUDENTS!
Home Study Course
APRIL 18, 2013 aboard the “Lexington” NYC
William Dagher
Robert F. Kenney
Mike Ogle, Philipp Bau
& Soren Winger
ASBA DIPLOMA SERIES
Combine ASBA’s distance learning courses and live seminars
to expand your maritime knowledge via a concentration
of course work in Chartering or Ship Agency. Students
who successfully complete the Chartering or Ship Agency
curriculum will be awarded the ASBA DIPLOMA.
Ed Lundin, Detlef Joerss,
Thomas Zaidman, Ray Hornosky,
Karl Munson & Andrea Schoenfelder
Concentration in Chartering
1. Basic Principles of Chartering (Home Study) or
Shipbroking & Chartered Vessel Operations (Online)
2. Maritime Law for Ship Brokers & Agents (Online)
3. Commercial Trade Transactions (Online)
4. One of the following Live Seminars:
-Business of Shipping I
-Business of Shipping II
Connie Athanasiou
& Milind Trilokekar
Concentration in Ship Agency
1. Basic Principles of Chartering (Home Study) or Shipbroking & Chartered Vessel Operations (Online)
2. Agency (Live Seminar or Webinar)
3. Commercial Trade Transactions (Online)
4. One of the following:
-Business of Shipping I (Live Seminar)
-Business of Shipping II (Live Seminar)
-Maritime Law for Ship Brokers & Agents (Online)
IN MEMORIAM
CALENDAR OF EVENTS
James Alexander McQuilling
Feb. 5, 1928 to April 26, 2013
OCTOBER 2 - 4, 2013
ANNUAL CARGO CONFERENCE
EDEN ROC, MIAMI BEACH, FL
NOVEMBER 18, 2013
HOLIDAY SOCIAL - WINDFALL, NYC
JANUARY 23, 2014
AGENCY LUNCH & ANNUAL MEETING
HARVARD CLUB, NYC
JANUARY 25, 2014
80 YEARS OF SERVICE - DINNER DANCE
MARITIME PARC - NJ (HOTEL - SOHO GRAND- NY)
WELCOME NEW
COMPANY MEMBER
Gulfstream Tanker Chartering LLC
351 S. US Highway 1, Suite 106
Jupiter, FL 33477
Tel:
561-222-2522
Fax:
561-222-2521
Email: [email protected]
Website: www.gtcbrokers.com
EMPLOYMENT OPPORTUNITY
MEMBER ON THE MOVE
OLDENDORFF CARRIERS Looking to strengthen the Operations team in
Stamford with a Junior Operator. Responsibilities include, Voyage planning,
including bunker and cargo intake calculations; Optimize voyage results in
close cooperation with the chartering department; Issuing voyage instructions
and agency appointments; Ensure compliance with time and voyage charter
party terms; Checking and release of Bills of Lading; Safeguard correct freight
collection & hire payments in cooperation with the Marine Acctg. Dept.; Checking
of proforma d/a’s and request advance payments from the D/A desk; Handling
of off-hire, underperformance, stevedore damage and other claims with support
from our in-house claims desk; Ensure smooth cooperation with clients and
shipowners; the position involves occasional domestic and international travel.
Your Profile, 1 to 3 yrs work experience in drybulk operations/postfixture for an
owner/operator or shipbroker; Seafaring background; Experience with Softmar;
Aptitude to negotiate; Excellent written and verbal communication skills; Driven
and open to new challenges; Hard working, able to think on your feet and be
flexible; and enjoy working in a team environment.
Contact: Lutz Lange
Oldendorff Carriers USA Inc.
Telephone: 203 487 7313
1 Landmark Square, 17th Floor
E-Mail: [email protected]
Stamford, CT 06901
Website: www.oldendorff.com
A S S O C I AT I O N
OF
SHIP
BROKERS
&
AGENTS
(USA)
A.R. Savage & Son, LLC
202 South Rome Avenue, Suite 200
Tampa, FL 33606
Tel:
813-247-4550
Fax:
813-247-5420
Email: [email protected]
Website: www.arsavage.com
CONTACT ASBA
The Association of Ship Brokers & Agents (USA) Inc.
510 Sylvan Avenue, Suite 201
Englewood Cliffs, NJ 07632
201.569.2882 • Fax 201.569.9082
[email protected] • www.asba.org
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