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Alert on Ukrainian martial law

5 декабря : en 53 декабря : en 430 ноября : en 2 всего: 2230.11.18

What happened?

Martial law was imposed in Ukraine for 30 days as president of Ukraine Petro Poroshenko warned of the “extremely serious” threat of a Russian land invasion. The parliament voted in favour of the measure on Monday night in response to the capture of three Ukrainian navy vessels and twenty-three crew members by Russian ships near the Kerch Strait. Russia’s actions were also condemned at emergency meeting of the United Nations Security Council, where US representative Nikki Haley described the incident as an “outrageous violation of sovereign Ukrainian territory.”

Statement by the Ministry of Foreign Affairs of Ukraine in connection with another act of aggression against Ukraine

The Ministry of Foreign Affairs of Ukraine expresses its strong protest to the Russian Federation in connection with the armed attack and capture of the Ukrainian navy ships «Berdyansk», «Nikopol» and the tug boat «Yana Kapu», as well as the wounding and capturing of members of their crews.

The attack on Ukrainian ships that was carried out during a sea crossing from the port of Odessa to the port of Mariupol, in accordance with the provisions of all effective multilateral and bilateral international treaties and navigation rules, is nothing but another act of armed aggression of the Russian Federation against Ukraine, as defined, in particular, in Article 2 of the Charter of the United Nations and the provisions of UN General Assembly Resolution 29/3314 of 14 December 1974 on the definition of aggression. Russia has de facto expanded its military aggression against Ukraine to the sea.

Kremlin’s criminal regime has today once again demonstrated that it won’t stop its aggressive policy and is ready for any acts of aggression against the Ukrainian state.

Ukraine demands to provide urgent medical assistance to the wounded and to ensure their immediate safe return home. Ukraine also demands to return the captured navy ships and to compensate for the damage caused.

It is Kremlin’s regime who bears full responsibility for further aggravation of the situation in the Azov and Black Seas and for undermining the peaceful settlement of the Russian-Ukrainian armed conflict.

Ukraine urges its allies and partners to take all necessary measures to deter the aggressor, i.a. by applying new and strengthening existing sanctions, as well as by providing Ukraine with military assistance to protect its territorial integrity and sovereignty within the internationally recognized borders.

Ukrainian Sea Ports Authority statement

As of 12:00 of November 26, 2018, the ports and terminals of Ukraine, which are located in the marine environment of the Azov Sea, still operate in normal mode.

According to the Head of the analytical department of Zernovoz.in.ua, Alexander Glushchenko, the seaports of Mariupol and Berdyansk operate in normal mode. The Ukrainian harbors of the Azov Sea already took the required measures to strengthen the security and access control procedures for long in advance. He said that the following development situation is the extremely difficult issue. Nobody knows what will happen. The actions of the Russian Federation are unpredictable, and passing of the Kerch-Yenikale Canal can be blocked for entrance and departure of vessels towards / from the seaports of Mariupol and Berdyansk. The railway shipments will likely become the priority for military-grade cargoes, and there is a high probability that the accumulation processes of batches in the ports for commercial vessels will completely stop.

<Ed Note: on 29 November Ukraine’s infrastructure minister, Volodymyr Omelyan, stated theat two Ukrainian Azov Sea ports, Berdyansk and Mariupol, are effectively under blockade by Russia as vessels are being barred from leaving and entering.>

Voice of business

According to the Head of the terminal Agria, Yuri Rovitsky, the situation is intensely, but stable. He said that the stevedoring company Agria and other ports are working as normal. If the martial law becomes invoked, there is an issue how the commercial activities to be realized and whether it to be realized at all, because it is not known what restrictions the authorities will impose.

The Head of the external communications department of SE Ukrainian Sea Ports Authority (USPA), Maxim Streletsky noted that to date, the Ukrainian ports of the Azov Sea are operating under normal conditions. The vessels, which previously passed the Kerch-Yenikale Canal continued loading/ unloading operations. According to the recent morning information, the movement of vessels through the Canal was restored.

According to the Director on business operations at UkrTransAgro LLC, Andriy Leonidov, as of November 26 the company’s grain transshipment complex is operating normally. The company continued accepting agricultural products, as well as loading two vessels with pelleted and non-pelleted meal from two berths. The vessels that go to the ports of Mariupol and Berdyansk are waiting for checkout at the entrance to the Kerch-Yenikale Canal by the Border Service of Russia.

Legal recommendations for shipping companies

Since most Charter Parties concluded in the Black Sea/Sea of Azov Region are governed by the English law, the current situation facilitates some additional risks for parties to the contract, including for consignors and carriers.

  1. We recommend our clients to check Charter Parties for War Risk Clauses. They usually provide an option for cancelling or terminating the contract in case of military actions either between the countries stated therein or with the vessel flag state engaged. Depending on engagement of EU, US or other countries in such case, the chances for applying such clauses as grounds for cancelling the Charter Party increase much.
  2. Shipowners will face the question: whether the vessel should call at the port of region which is or may become the war risk/military action zone. Therefore, assessment of the risk of military actions and/or threat thereof for the vessel call at the sea port will depend on actual circumstances. Under the present situation, we recommend incorporating into certain clauses of the Charter Party a specified port within range of ports or a substitute port.
  3. We also recommend stipulating in the Charter Party distribution of risks and additional expenses which may arise due to the port blockade and the necessity in cargo carriage to another port. it facilitates freedom for both parties to cancel the contract without frustration (i.e. cancellation due to impossibility to achieve its commercial goal).
  4. You should know also that in such case neither party will rely on force majeure – a contractual clause under the English law. Thus, the parties may rely on force majeure as on the grounds for their release from responsibility only if the Charter Party sets forth a relevant clause. Therefore, we recommend including the appropriate circumstances into Force Majeure Clause (such as military actions, port blockade, threat of military actions, governmental prohibition to call at/leave the port etc.)

Published at http://forwarderlaw.com/

Author: Arthur Nitsevych