BILA CONFERENCE 09 June Welcome

Transcription

1 BILA CONFERENCE 09 June 2009 Welcome

2 BILA 9 June 2009 : ROGUES & ROTTERS

3 Introduction by your chair: Rt Hon Lord Justice Rix

4 Captain John L David Marine Professionals

5 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

6 Panel discussion speakers are: Mark Templeman QC Simon Beale Rhys Clift

7 Some Legal Aspects of Piracy and Terrorism Mark Templeman Q.C.

8 Piracy, riot and terrorism Piracy: forcible robbery (or attempted robbery) at sea, committed by marauders from outside the ship or by mariners or passengers within it, for their own private gain and not for public or political ends. The Andreas Lemos [1983] QB 647; Republic of Bolivia v. Indemnity Mutual [1909] 1 KB 785. Riot: 12 or more persons present together use or threaten violence for a common purpose, and their conduct is such as would cause a person of reasonable firmness to fear for his safety. Public Order Act 1986, s. 1; London and Lancs Fire Ins Co v. Bolands [1924] AC 836. Terrorism: (i) the use or threat of an act involving serious violence against a person, serious damage to property, endangering the life of someone other than the actor, which creates a serious risk to public health or safety, or is designed seriously to interfere with or disrupt an electronic system, (ii) which is designed to influence a government or international governmental organization or intimidate the public or a section of the public, and (iii) which is made to advance a political, religious or ideological cause. Terrorism Act, 2000, s.1.

9 Why does the distinction matter? Piracy and riot Institute hull, freight and cargo clauses (A): piracy covered, riots excluded. Institute war and strikes clauses (hull and freight): riots covered, piracy excluded but this exclusion does not affect cover for riots. Institute strikes clauses (cargo): riots covered, no exclusion for piracy Piracy and riot may overlap. Nesbitt v Lushington (1792) 4 TR 783 Joint Hull/War Committee clauses, October 2005: violent theft, piracy and barratry excluded from marine cover and put under war and strikes. Terrorism: Terrorism exclusions: Institute hull, freight and cargo clauses, International Hull Clauses. Terrorism cover: Institute war and strikes clauses (hull and freight), Institute strikes clauses (cargo). Piracy and terrorism are less likely to overlap. Republic of Bolivia v. Indemnity Marine [1909] 1 KB 785

10 Piracy: nature of the loss Actual total loss: where the subject-matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrievably deprived thereof. s. 57 (1) of the MIA, Roux v. Salvador (1836) 3 Bing NC 266: if the subject-matter is in the hands of strangers not under the control of the assured if it be placed, by reason of the perils against which he insures, in such a position, that it is wholly out of the power of the assured or the underwriter to procure its arrival. Dean v. Hornby (1854) 3 El & Bl 180. KAC v. KIC [1996] 1 Lloyd s Rep. 664, at p. 687.

11 Piracy: nature of the loss Constructive total loss: where the assured is deprived of possession of ship or goods by a peril insured against, and (a) it is unlikely that he can recover the ship or goods, or (b) the cost of recovery of ship or goods would exceed their value when recovered. s. 60 (2) (i) of the MIA, within a reasonable time implicit. Different considerations may apply to hull and cargo: the loss of adventure doctrine applies only to the latter (NB: the Institute War Clauses (Cargo) exclude any claim based on frustration or loss of adventure).

12 Piracy: nature of the loss Hull and cargo policies: claim for physical damage only. Institute cargo clauses: exclusion for loss or damage caused by delay, even though delay caused by an insured peril.

13 Payment of ransom Piracy: payment of ransom generally assumed to be legal as a matter of English law. Prize Act, Naval Prize Acts Repeal Act, Supreme Court Act, 1981, s. 152 (4): repeal of obsolete or unnecessary provisions. Royal Boskalis v. Mountain [1999] QB 674, at p Illegality under law of the policy, forum or flag? Terrorism: a person who provides money or other property and knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism commits an offence. Terrorism Act, 2000, s. 15 (3).

14 Sue and labour; general average Sue and labour: a ransom payment is generally assumed to amount to a sue and labour expense, subject to any public policy point or illegality. General average: a ransom payment is generally assumed to amount to a general average expenditure, but: subject to any public policy point or illegality; subject to any argument that life does not contribute to GA.

15 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

16 Piracy & Terrorism: Legal & Practical Aspects Simon Beale 9th June 2009

17 Agenda Coverage Implications for underwriters Issues for marine industry

18 Coverage Piracy vs Terrorism? Robbery with violence carried out at sea (not rivers or inland waters) Does not matter whether the vessel is in international or territorial waters see the Andreas Lemos (1983) Use of or threat of force is key if perpetrators only use force to make good their escape, they are not pirates Probably confined to acts committed for private gain and not political motive - see Republic of Bolivia v Indemnity Mutual (1909)

19 Cover under the various hull conditions Hull American hull form Piracy excluded at line 245, but assailing thieves covered at line 71 Norwegian plan Piracy excluded at para 2.9(d) If dominant cause cannot be determined between marine hull and war, apportionment German conditions DTV clause 16.1 excludes war and tools of war Hull War Cargo & Cargo War P&I K&R

20 Coverage under the ITC Institute clauses Made a war peril in 1937 (in response to Spanish civil war) until put back into marine hull in justified by the cross over with violent theft inclusion as a marine hull peril Issues Piracy was a small crime it was a theft on board vessels the magnitude of piracy acts today is very different Personal gain v political cause piracy v terrorism hull v war Under ITC Hulls (01/10/83), assured to demonstrate loss by piracy and then burden on Underwriters to demonstrate operation of war peril in order to bring within exclusions JHC/JWC produced optional hull exclusions and war extensions in October 2005 in respect of piracy violent theft barratry

21 Implications for Underwriters Ransoms / Release / Sue & Labour / General Average Ransom payments not specifically covered but not illegal since the repeal of the 1782 Ransom Act however, need to be cognisant of the international legal implications and public order offences Ransom / Release Payments / Sue & Labour / General Average Ransom payments to pirates (marine hull) or terrorists (war) May qualify as GA expenditure under English law (issue for Cargo u/wrs) Or may qualify as sue and labour expenditure In principle, ransom payments can be recovered as sue and labour - see Royal Boskalis Westminster v Mountain (1999) Property Damage Hull / Cargo Loss of Hire Third Party Damage loss of life / pollution

22 Implications for Marine Industry Cost of ransoms escalating downward spiral single minded pursuit of money - leads to greater problem Already highly organised / armed Very lucrative business justifies improvement of the infrastructure Encourages Copy Cats not just Somalia, but also increasing problems in Nigeria Increasing potential for large property / TPL claims / significant loss of life Potential for complete drain / paralysis on owner s management time if hijacking occurs Significant & increasing danger in transiting Gulf of Aden increasing costs Increased inspections (Best Management Practices Suez Canal) Increasing cost for transit (mitigation measures & insurance) Increase cost for potential rerouting voyages via cape all to be paid by consumer

23 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

24 Piracy (terrorism at sea): State force and private force, a brief overview By Rhys Clift, Partner Hill Dickinson LLP

25 Context Piracy off Somalia of global concern According to Chatham House (ex. Royal Institute for International Affairs): Navies of 17 States now patrolling Somalia s seas But: 79 ships attacked in 2009 (as at 17/4) 19 ships taken hostage (as at 17/4) Why is this still happening?

26 Introduction Touch on a few themes State and private force: International Legal Framework/ legal powers to use State force do States/navies have sufficient powers to deal with the problems off Somalia? Is there sufficient practical guidance to ships? The use of guards and armed guards (wise/effective? views of States?) A few words on coverage Conclusions

27 International Legal Framework UNCLOS: UN Convention on Law of the Sea 1982 (1994):- Art 100: all States shall cooperate to the fullest possible extent in the repression of piracy on the High Seas (duty?) Art 101 et seq: definition of piracy and supplementary provisions Art 105:..every State may seize a pirate ship or a ship..taken by piracy and under the control of pirates, and arrest the persons..on board (but note only on the High Seas) Art 110 confers the right to warships to board vessels engaged in piracy on the High Seas. (Appropriate force can be used).

28 International Legal Framework SUA: Convention for the Suppression of Unlawful Acts against Safety of Maritime Navigation 1988 (and SUA for Offshore structures) 1988 Convention created to deal general criminality, inc piracy (after Achille Lauro ) (widely supported 150/140 States) 2005 Protocols focussed on terrorism (after 9/11) (NYIF) Legal basis for action against person (pirates/terrorists) Main purpose: to ensure that anyone committing unlawful acts against the safety of navigation will not be given shelter in any country but will be either prosecuted or extradited to stand trial.. Provide for extradition, mutual assistance, cooperation, information sharing

29 International Legal Framework SUA is intended to complement practical security measures previously adopted by IMO including: SOLAS (Intl Convention for Safety of Life at Sea), and ISPS (International Ship and Port Facility Security Code), developed in response to the 9/11 attacks in the US (applies to the 148 Governments who are parties to SOLAS)

30 UN Resolutions UN has been active. Security Council Resolutions (the anti piracy mission ):1816 (6 /2008), 1838 (10/2008),1846 (11/2008), 1851 (12/2008). Many detailed provisions (major focus has been protection of WFP). Nutshell: these gives war ships of the cooperating States right to pursue and capture pirates in Somali waters (cf. UNCLOS High Seas), and in the case of 1851 to pursue on land in Somalia Also encourage the use of ship-riders, law enforcement personnel with view to processing pirates through the criminal justice system (somewhere)

31 Detention and Arrest Per Chatham House : Detention by military has its weaknesses. For example: Some nations have to release pirates unless their actions threaten national interests or citizens (Germany, Denmark) ( catch and release, a cause of frustration) Detention of pirates by the military is governed by ECHR (for those States that are party) (!) BUT at least not a breach of ECHR for military to hold pirates (before arrest by criminal authorities)

32 Jurisdiction to Prosecute Universal under UNCLOS, but may be permissive not compulsory (so say some States) Preference is to prosecute locally, if possible for example under understandings (bilateral US/UK/NAVFOR) with Kenya, now a key focus for criminal process (but: backlog, inadequate resources etc) Prosecutions burdensome and (in reality) unwelcome for both: Navies and Shipowners (time, witnesses, translators, crew, officers, due process, operational priorities) So though some States favour prosecution, some favour concentration on prevention and disruption only

33 Detention, Arrest, Prosecution Sad reality: - majority are detained, disarmed but released (August 08/May 09: 320 pirates captured, 175 released) - majority will never face trial (lack of evidence/legal hurdles) - will therefore return to the trade - dangers of piracy and risk of capture massively outweighed by prospects and rewards of success

34 So is the legal framework weak? There is a perception in the Shipping industry that navies are weak and able to do little to combat piracy. Is this the impetus for use of guards/armed guards? Chatham House nonetheless observes (22/4): navies have sufficient powers under international law to combat piracy and they are permitted to use reasonable force against pirates. It is important that this fact is well publicised Too complacent?

35 Practical Guidance (the Military terms) EUNAVFOR: coordinating body that operates MSCHOA MSCHOA: Maritime Security Centre Horn of Africa: set up as part of European Security Defence Policy to combat piracy in Horn of Africa EU NAVCO: Sept 2008 Coordinating Cell operated in Brussels to coordinate naval forces operating in the area EU NAVFOR ATALANTA: Nov 2008 EU naval mission to prevent and deter piracy and safeguard merchant ships UKMTO : UK Maritime Trade Operation in Dubai. Point of contact between the merchant trade and the military (Combined Military Forces); operates voluntary reporting by ships, tracks ships, provides security information direct to ships

36 Practical Guidance: lots! IMO Maritime Safety Committee MSC Circ 623/Rev.3: Piracy and Armed Robbery Against Ships (2002) Provides guidance to shipowners, masters, crews to prevent or suppress pirate attacks. Detailed (very) recommendations on cash, ship plans, routing, anchoring, watch keeping, lighting, secure areas, alarms, flares, manoeuvring, water hoses...carrying and use of firearms for personal protection or protection of a ship is strongly discouraged IMO MSC met in London 27/5 to 5/6 and possible revisions to MSC Circ 623 on the agenda

37 Practical Guidance Best Maritime Practice, issued February 2009 Supported by Intertanko, ICS, OCIMF, BIMCO, SIGTTO, Intercargo, IGP&I, CLIA, IUMI, JWC, IMB Complements IMO Circ 623 Interesting read. Sets out detailed military style planning/recommendations (see above terms). Shows not all ships are equal. Those at greatest threat: Low speed, Low freeboard, Inadequate planning and procedures, Visibly low state of alert, Evident slow response Few successful attacks at night; dawn and dusk greatest risk; few successful attacks over 15 knots.

38 Practical Guidance Best Maritime Practice :. Sets out coordination through UKMTO and MSCHOA Recommends (among other things): Use of water cannon, razor wire, dummies, passive defence equipment Use of Internationally Recommended Transit Corridor If boarded offer no resistance; keep calm and cooperate with pirates...use of private security guards.. discretion[ary].. But the use of armed guards not recommended

39 Guards and armed guards The UK position: Opposed to the use of armed guards; Requires adherence to MSC-Circ 623/Rev.3 (2002) Firearms Act 1968, prohibits Firearms (Amendment) Acts 1997, requires handing in of weapons or disposal by 1/2/1998 MCGA Notice MSN (re Firearms Acts) MGN ; detailed recommendations, very much like MSC 623 (above) in form and content Nutshell: rely on navies for protection; no arms/ armed guards

40 Guards and armed guards General views of States: No consensus, but is the tide turning in favour of armed guards? A selection: Those who favour use of arms or (armed) guards:, USA, Belgium Those who may tolerate use of arms: Liberia, Marshall Islands, Bahamas (licence, none yet), Greece Those who (currently) oppose use/discourage of arms: Cyprus, Malta, St Vincent & Grenadines UK (remains strongly opposed), Italy, Denmark

41 Guards and armed guards difficult issues with armed guards Probable escalation of violence (one mother ship found with plastic explosive per BIMCO) Risk of major maritime casualty; grounding, pollution, explosion, fire, deaths and personal injury Who is authorised/suitable to be an armed guard?. No vetting system Who decides what armed guards will or will not do? Erosion of the Masters ultimate discretion/control? (breach of SOLAS) When are armed guards permitted to use them, to threaten or to kill?

42 A few words on Coverage What issues might arise where owner decides to use armed guards for the Gulf of Aden/ Horn of Africa? If crew carry arms or if armed guards are carried as supplementary crew, is the coverage at risk? Plainly wise to inform all insurers (Hull, War, P&I,(K&R?)) Potential problems of disclosure (for new policies). Increased hazard, material fact?

43 Coverage Possible illegality arguments where Flag State prohibits carrying/use of arms? Section 41 MIA 1906 There is an implied warranty that the adventure insured is a lawful one, and that, so far as the assured can control the matter, the adventure shall be carried out in a lawful manner

44 Coverage Protection & Indemnity cover no exclusion of armed guards, no prohibition but most Club Rules exclude losses arising out of or consequent upon.. performing any voyage or being employed in any trade which in the opinion of the Directors in imprudent, unsafe, unduly hazardous or improper

45 Conclusions A long list of relevant laws, regulations, Conventions, Resolutions permit disruption and prevention of piracy by States Huge cooperative naval venture underway off Somalia Little progress thus far with prosecutions and convictions; catch and release is cause of frustration Use of (lethal) military force risks enflaming situation Use of private force likewise; widely discouraged officially Use of arms or armed guards may lead to coverage difficulties

46 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

47 There will now be a 15 minute Refreshment Break

48 Panel discussion speakers are: John Hughes Erik Stenberg Judith Epps Adam Barker David Greene

49 Madoff: Claims, Liabilities & Coverage John Hughes 49

50 How many cases? 153 Madoff related cases as of 3/30/09 (Advisen) 74 filed against non-us companies 6,700 investors have filed claims with SIPC 4,800 direct investors with Madoff 50

51 In addition to Madoff ($60B) and Stanford ($8B): fellow alleged Ponzi artists: Nicholas Cosmo/Agape: $370M Arthur Nadel/Scoop Management: $168M Westgate Capital: $150M George Hudgins: $71M Millennium Bank: $68M Edward Stein/Gemini Fund: $55M Anthony Vassallo/Equity Investment Management: $40M Daren Palmer/Trigon Group $40M 51

52 Who has been sued? Investment Advisers: Austin Capital Management; Maxam Capital Management Hedge funds/feeder funds: Fairfield Sentry; Tremont Group; Ascot Partners; Gabriel Capital Accountants: BDO Seidman; Ernst & Young; Pricewaterhouse Coopers; KPMG; Friehling & Horowitz Custodians: HSBC; Fiserv Fund Administrators: Citgo Madoff investors: Ezra Merkin; Jeffrey Picower Ex-spouses: Laura Blank (Stephen Simkin) 52

53 What types of claims? Investment Advisers: Fraud Negligent misrepresentation Breach of fiduciary duty Hedge Funds/Feeder Funds: Fraud Negligent misrepresentation Breach of fiduciary duty Securities Act Accountants: Negligence Negligent misrepresentation 53

54 Custodians: Negligence Negligent misrepresentation Fund Administrators: Negligence Negligent misrepresentation Madoff investors: Negligence Negligent misrepresentation 54

55 Coverages implicated? E&O Fiduciary D&O 55

56 Madoff & Co: A European Perspective Erik Stenberg Rogues and Rotters Conference London, 9 June 2009 Erik Stenberg

57 Madoff Victims on the Continent Switzerland France Austria Spain Benelux Others Settlement Offers June 2009 Erik Stenberg

58 Madoff Targets In Europe Custodians Investment funds Fund managers Universal banks Private banks Asset managers External auditors June 2009 Erik Stenberg

59 Selected Liability Issues Compliance with duty to inform Adequate diversification of portfolio Due diligence in investment selection Existence of actual hands-on reviews Dual management and custodial role Probability of consistent performance Market practice: fee structure etc. Justifiable reliance on third parties Periodic negative press reports Damages / causation: market loss June 2009 Erik Stenberg

60 Madoff and Stanford Notifications to the Lloyd s Market Judith Epps Xchanging 2009, no part of this document may be circulated, quoted or reproduced without prior written approval of Xchanging.

61 Stanford Notifications to the Lloyd s Market As at 31 May 2009 Class of Business Open Closed Directors and Officers 2 - Professional Indemnity 6 3 Political Risks 1 - Grand Total Xchanging 2009, no part of this document may be circulated, quoted or reproduced without prior written approval of Xchanging.

62 Madoff Notifications to the Lloyd s Market As at 31 May 2009 Class of Business Open Closed Bankers Blanket Bond 17 5 Directors & Officers 29 2 Errors and Omissions - Legal 18 0 Errors and Omissions - Accountants 6 - Errors and Omissions - Misc Professional 5 - Professional Indemnity Excess of Loss 31 - Grand Total Xchanging 2009, no part of this document may be circulated, quoted or reproduced without prior written approval of Xchanging.

63 Analysis of the Madoff Notifications Direct Book 66 individual Insured s noticed claims to the Lloyd s Market Jurisdictions affected: England & Wales Switzerland Offshore domiciles U.S Rest of Europe South America South Africa The Middle East 63 Xchanging 2009, no part of this document may be circulated, quoted or reproduced without prior written approval of Xchanging.

64 Analysis of the Madoff Notifications Cont.d The matters currently noticed to the Lloyd s Market can be broken down as follows: 28% - claims presented by third parties 20% - in litigation 52% - notice of a circumstance only 64 Xchanging 2009, no part of this document may be circulated, quoted or reproduced without prior written approval of Xchanging.

65 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

66 Steven Gee QC Stone Chambers

67 Worldwide Freezing Orders and Subrogation Notes will follow on the website

68 BILA CONFERENCE 09 June 2009 ANY QUESTIONS?

69 BILA would like to thank all of our speakers today

70 BILA CONFRENCE 09 June 2009 Drinks will be served in the outer court at Lincolns Inn 6pm