Volcanic ash is it insurable?

Transcription

1 Volcanic ash is it insurable? Airports Council International Insurance and Risk Management Conference Atlanta, Georgia 13 January 2011 Mark Meyer, London Partner (Head of Aviation and Space Group) e: t: +44 (0)

2 Closed most of Europe s airspace between April

3 The Economic Consequences Airlines IATA estimated the global loss to airlines at US$1.7 billion Compensation claims against UK airlines estimated at GBP250 million Airports UK airports reported to have lost GBP80 million Airport retailers (shops and restaurants at Heathrow estimated losses at GBP30 million). ATC CANSO estimated losses at GBP25 million per day Governments Lost millions of GBP in passenger duty 3

4 Hotels were mostly unable to offset their losses from cancelled business trips by extended stays, even at airport hotels Air Freight Higher costs as some cargo transported by road/sea to operational hubs 4

5 The EU Compensation Regime for Air Carriers EC Reg (261/2004) What is an air carrier? an air transport undertaking with a valid operating licence Scope Applies to: any passenger departing from an EU state passengers departing from an airport outside the EU to an airport situated in the EU, if the operating air carrier is a Community carrier passengers transported by motorised fixed wing aircraft 5

6 EC261/2004 Continued Cancellation Passenger to be offered: A. Care reimbursement within 7 days of the ticket price or sector cost (if only partly cancelled) re-routing free hotel accommodation of one or more nights as applicable free meals and refreshments free transfers two free telephone calls/faxes/ 6

7 EC261/2004 Continued B Compensation EUR 250 for intra-eu flights of 1500 km or less EUR 400 for flights of 1500 to 3500 km EUR 600 for all flights over 3500 km 50% reduction if deferred arrival is less than 2,3 or 4 hours respectively Compensation element not payable if carrier can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken 7

8 EC261/2004 Continued Delay Same care regime as for cancellation where delay is: 2 hours or more for flights of 1500 km or less 3 hours or more for flights between 1500 and 3500 km 4 hours or more for flights over 3500 km but compensation element not believed to be required until European Court of Justice decision of November 2009 in Sturgeon v Condor 8

9 EC261/2004 Continued Court held: Cancellation applies where the planning for the original flight is abandoned Where the delay results in passengers reaching their final destination 3 hours or more after the arrival time originally scheduled, compensation (as for cancellation) is payable a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of extraordinary circumstances unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. 9

10 The Montreal Convention Article 50: Insurance Requires airlines to maintain adequate insurance to cover all of their liability under the Convention Delay covered by Convention but not cancellation of a flight 10

11 EC261/2004/New Legislation Reforms Both airlines and regulators are seeking reforms which are expected later in 2011 Airport operators to be subject to fines/care obligations in the event that they do not operate other than by reason of the order of regulatory authority? It [new legislation] would give the regulator power to fine the airport where it does let passengers down and does not prepare properly for severe weather conditions. We want to make sure that airports are doing their very best to prepare for severe weather conditions. [Theresa Villiers, Aviation Minister, UK December 2010] 11

12 Business Interruption Insurance Is physical damage a necessity? 12

13 Business Interruption Insurance United Airlines v Insurance Company of the State of Pennsylvania Could United recover loss of profits for its inability to access Reagan National Airport between September 11 to October ? C. Business Interruption 1. Gross Earnings. This policy insures against loss resulting directly from the necessary interruption of business caused by damage to or destruction of the Insured Locations, resulting from terrorism This section is specifically extended to cover a situation when access to the Insured Locations is prohibited by order of a civil authority as a direct result of damage to adjacent premises 13

14 Business Interruption Continued Held: The Pentagon was not an adjacent or contiguous site; nor was the damage at the Pentagon the proximate cause of the closure of Reagan National 14

15 Business Interruption Continued US Airways v Commonwealth Insurance Company The policy provided coverage for: Interruption by Civil or Military Authority: This policy is extended to cover the loss sustained during the period of time when, as a direct result of a peril insured against, access to real or personal property is prohibited by order of a civil or military authority. The peril insured against was defined as all risk of direct physical loss of or damage to property described herein 15

16 Business Interruption Continued Held: Policy did not require actual damage or loss of property to invoke coverage; evidence was that there was a belief that Reagan National airport and/or the fuel dump near it were the intended target of the fourth aircraft. 16

17 Business Interruption Continued The Grey area claim by airport concession arising from the closure of a major UK airport under an all risks, terrorism policy due to volcanic ash Insuring clause provided: This insurance is extended to include loss resulting from interruption or interference with the Business in consequence of restriction of access to the Premises for a period of more than 12 consecutive hours arising directly from actions taken by a civil authority as a result of danger or a disturbance in the vicinity 17

18 Business Interruption Continued Assured claimed for policy limit of GBP2,500,000 at several locations, total loss in excess of GBP10 million Argued that trigger was either danger or a disturbance in the vicinity, ie danger need not be in the vicinity 18

19 Insurance Market Response A good deal of activity in early days but no specific product is available The Issues: Are insureds willing to pay a commercial premium? Coverage triggers: Not linked to physical damage or force majeure Can coverage be limited to natural atmospheric events or strikes, avian flu etc? Must airspace be closed or impaired by withdrawal of ATC services? 19

20 Insurance Market Response Scope of coverage Waiting period before cover is triggered. Is 48 hours (ISO standard) too long? Is a 7 day maximum period for coverage per occurrence too short? What is the maximum indemnity for a policy period? What else should be covered passenger care? agreeing a simple methodology for calculating the policy benefit and dispute resolution procedure 20

21 Captive Insurance Used successfully in other industries such as oil and gas exploration and extraction for catastrophe liability eg Gulf of Mexico hurricanes Benefits Retains the profit that may be made by traditional insurance within the captive as a surplus investment return on premium income earned by captive Capital payments are tax deductible and off-shore captives are tax efficient Generally broader terms of coverage tailored to the assureds coverage needs less likelihood of disputes can be used efficiently in conjunction with excess high

22 Captive Insurance Continued Potential concerns: Generally disliked by brokers Substantial start up costs Professional management costs Risk aggregation and therefore the need to scale policy benefits Potential mismatch between reinsurance or excess coverage terms and the captive s coverage in terms of scope, governing law Claims co-operation obligations to reinsurers Exhaustion of underlying insurance limits vis a vis recoverability of excess policy limits Same day payment obligation

23 Mark Meyer, London Partner (Head of Aviation and Space Group) e: t: +44 (0) Volcanic ash is it insurable? Airports Council International Insurance and Risk Management Conference Atlanta, Georgia 13 January 2011