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Lizzie Wickham

New Unfair Contract Laws Explained

By | Insurance, Legal, News

Source: ‘Frankology’ Blog, By The Fold

The unfair contract laws* which start on 12 November 2016 will be a powerful tool for small businesses when negotiating contractual indemnities. Charmian Holmes explores why…

What is an unfair contract term?
An unfair contract term is a term which:
• causes significant unbalance to someone’s rights and obligations;
• would cause them detriment if it was relied on; and
• is not reasonably necessary to protect the legitimate interests of the party relying on it.

Until now, small business had no option but to sign an unfair contract – or miss out on the opportunity for that work.

Who’s protected?
There are 2 key criteria:
• you must be a small business (ie less than 20 employees); and
• (the upfront contract price must be <$300,000 (for contracts of 12 months or less) or <$1,000,000 (for contracts of > 12 months).

From 12 November 2016, small businesses can challenge any unfair contract term. The onus is on the big business (or government authority) to prove those terms are not unfair. If they are, the term is void and can’t be enforced against the small business.

This is a long awaited and hard won protection for small businesses which has the potential to significantly enhance their ability and willingness to provide services to big business. Let’s look at how it will apply to unbalanced indemnity clauses.

One-sided indemnity clauses
There are a number of ways in which indemnity clauses could be challenged as unfair contract terms – these include:
• Indemnities which transfer liability to the small business for losses or liability regardless of fault.
• Indemnities that require the small business to be liable for the other party’s negligence.
• Unlimited indemnities, eg where there is no financial limitation.
• Indemnities for consequential loss, or excessive liquidated damages.

What about contracting out of proportionate liability?
The proportionate liability laws enable contracting parties’ liabilities to be adjusted to the proportion to which they caused, or contributed to an event that caused a loss. Clauses which contract out of this and impede the small business’ ability to join the big business as a concurrent wrongdoer in litigation involving a third party are manifestly unfair!

This means that small businesses can challenge any indemnity clause that differs substantially from the smaller business’ liability in the absence of the contract. Especially if it would trigger a contractual liability exclusion in an insurance policy – as this would mean that the small business would

have no insurance coverage for the exposure.
Small businesses rarely have the financial resources to indemnify big business without recourse to their liability insurance. The irony in this situation is that the contract usually requires the small business to hold

those insurances for this very purpose.
Once the new laws commence, small businesses will have more ability to challenge these types of clauses as it will be illegal to include them in contracts with small businesses. This will reduce the current imbalance in negotiating power between small and large businesses and reduce exposure to uninsured losses.

What about contracts signed before 12 November 2016?
Big business can continue to use contracts with unfair terms until 12 November. If you feel like you’re being pressured to sign something now, this might be why!

If you sign a contract before 12 November 2016, it will be harder to challenge any unfair contract terms – but you should try.

If an existing contract continues after 12 November 2016, ask for changes now to redress the imbalance in the indemnity and other clauses. If that’s not possible, the new laws will only apply to the contract, when it is renewed, varied or extended after 12 November 2016.
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*Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015

Author: Charmian Holmes

Vandalism suspected as historic tall ship Defender sinks in Townsville

Vandalism Suspected as Historic Tall Ship Defender Sinks in Townsville

By | News

A 120-Year-Old Sailing Ship Has Sunk At Its Moorings In North Queensland.

People arriving to work in Townsville this morning were surprised to find the 35-metre tall ship Defender submerged at a wharf on Ross Creek in the city’s CBD.

The hull of the vessel was completely submerged, while its rigging remained above the water.

Maritime Safety Queensland has cordoned off the site.

Ship owner Les Dick, who is based in Tasmania, said it had been “gut wrenching” to hear the news this morning.

“We do suspect it’s been an act of vandalism or such leading to the sinking of the vessel,” Mr Dick said.

“We won’t know until we refloat the boat … but at the moment that’s what the people up there are saying.”

The Defender has been in Townsville for more than seven years after it was damaged in an engine room fire.

Mr Dick said he was going to travel to Townsville this week to inspect the damage.

“Our next attack will be to get some competent people around us and some pumps, sandbags, and at the low tide this week, when the deck’s exposed, we’ll simply pump the boat out and refloat it again,” he said.

“We hope it’s that simple … then it will be moved from that location to another.

“We’ve got a lot of support up there … so we’ll do whatever we can to save the old girl, but it’s heart wrenching that this [has] happened to a great old ship like that.”

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Defender The Last Ship Of Its Kind

The Defender was built in 1895 and used as a trading vessel between the colonies.

In 1923 the Defender entered the history books with a record-breaking crossing of Bass Strait, and in World War II it was used to transport troops and supplies.

Mr Dick bought the vessel in 1982, and it was restored to take part in the bicentenary re-enactment of the sailing of the First Fleet into Sydney Harbour in 1988, as well as the Bicentenary Tall Ships Race from Hobart to Sydney.

It was a charter boat in the Whitsundays for a number of years before it arrived in Townsville and fell into disrepair.

Mr Dick said the Defender was the last of the Bass Strait ketches.

“She’s the absolute last one. When she goes that’s the end of it all and that’s the end of an era,” he said.

“[It’s] a bloody beautiful boat, a beautiful boat and it was restored with a lot of love and care and a lot of Tasmanians helped, donated to get it going in 1988.

“I think it did Tasmania proud in the bicentenary and it’s been a representative for Tasmania wherever it’s gone in Australia.”

Mr Dick said the boat’s future looked grim.

“It’s been in the stage up there where I really should’ve moved it back to Tasmania, but things have stopped me from doing that,” he said.

“I’m in a state of confusion about the whole thing and I’m very upset about it. It will take me a day or two to settle down and get my mind around all this.

“The last thing we would want is for such an historic vessel to end up going to the tip. It would be an absolute tragedy.”

ABC North QLD – Tuesday 4th January 2016 – Article available here

Launch of Shipping Industry’s Cyber Security Guidelines

By | News

BIMCO has introduced guidelines to assist the global shipping industry prevent cyber security breaches onboard ships. These guidelines are the first of this nature for the shipping industry. These guidelines focus on detailing the cyber risks that may occur along with measures to prevent such risks. The guidelines also assist in how to deal with these risks should they unfortunately occur.

Download the Cyber Security Guidelines

*PRESS RELEASE*

4th January 2016

Cyber security guidelines for ships launched today.

BIMCO, together with other leading shipping organisations, has today launched a set of guidelines to help the global shipping industry prevent major safety, environmental and commercial issues that could result from a cyber incident onboard a ship.

The cyber guidelines launched today are a first for the shipping industry, developed by international shipping associations, comprising BIMCO, CLIA, ICS, INTERCARGO and INTERTANKO – and with support from a wide range of stakeholders. The Guidelines on Cyber Security Onboard Ships are free to download from the BIMCO website.

Angus Frew, Secretary General of BIMCO, said:

“BIMCO has led the way to identify potential cyber vulnerabilities for ships – and their implications – based on the latest expert research.”

“The aim is to provide the shipping industry with clear and comprehensive information on cyber security risks to ships enabling shipowners to take measures to protect against attacks and to deal with the eventuality of cyber incidents.”

Cyber threats are changing all the time – and BIMCO and the other industry associations will regularly update the cyber guidelines to ensure shipping companies have the latest information available.

Angus Frew added:

“The guidelines launched today should help companies take a risk-based approach to cyber security that is specific to their business and the ships they operate.”

ENDS

Further information can be found on the BIMCO website.

Oceanic Marine Risks

Ensuring a Safe Christmas on the Water

By | News, Uncategorized

The Christmas and New Year period is the perfect time to drag the boat out and hit the water to appreciate our beautiful sunny Queensland.

You certainly will not be the only boat owner to have this thought so please be mindful of all extra boats out on the water. Increased traffic means a higher number of incidents so we ask that you, your family and friends be extra cautious and alert this year.

Here are a few tips to help make your Christmas afloat a safe one:

  • Always ensure there is a charged mobile phone available
  • Have an EPIRB on-board if operating more than 2 nautical miles from land in open waters. Ensure this in date and registered.
  • If drinking, please ensure there is at least 1 designated driver onboard. Police periodically conduct random breath tests in our waters. The blood alcohol limits for recreational skippers is 0.05.
  • Always check the weather forecast before and during your trip. Be prepared for extreme conditions.

From everyone at Oceanic Marine Risks, we wish you all a wonderful festive season.

Enjoy your time on the water this Christmas!

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Hands Across the Blue for Prostate Cancer

By | News

On Saturday 29 August, just under 200 boats, united at the Shag Islet Cruising Yacht Club (SICYC) Rendezvous in Gloucester Passage to raise funds for the Prostate Cancer Foundation. Members who have come from around the country gathered in the
waters off Montes Reef Resort to form the spectacular ‘Hands Across the Blue’ in the shape of the Prostate Cancer of Australia
logo.

The aim is to increase awareness of the fatal cancer that takes so many Australians lives each year. Maria Dwyer & Lizzie Wickham from Oceanic Marine Risks presented the Shag Islet Cruising Yacht Club with a donation of $10,000, which assisted in the raising of $82,000 over the 3-day event.

Hands Across the Blue for Prostate Cancer
On Saturday 29 August, just under 200 boats, united at the Shag Islet Cruising Yacht Club (SICYC) Rendezvous in Gloucester Passage to raise funds for the Prostate Cancer Foundation. Members who have come from around the country gathered in the
waters off Montes Reef Resort to form the spectacular ‘Hands Across the Blue’ in the shape of the Prostate Cancer of Australia
logo. The aim is to increase awareness of the fatal cancer that takes so many Australians lives each year. Maria Dwyer & Lizzie Wickham from Oceanic Marine Risks presented the Shag Islet Cruising Yacht Club with a donation of $10,000, which assisted in the raising of $82,000 over the 3-day event.

SICYC News Picture (2)

700 members attended the event in a bid to raise money for the foundation with raffles, auctions and events taking place. Ken Thackeray, the founder of the SICYC said his goal is to spread the word throughout Australia and hopes that on the last Saturday of August each year other organizations will hold hands across the blue to raise the awareness of Prostate Cancer and the effect it has on many Australians and their families.

The Shag Islet Cruising Yacht club has over 4000 members worldwide with the crucial aim of raising much needed funds for the Prostate Foundation as well as creating a social network for the cruising yachties and members. Membership is $60, which includes the title of Vice Commodore in your specified area, SICYC polo shirt & membership card. To become a member of the SICYC visit www.sicyc.com.au