Charterers Liability. Risk Review, Risk Transfer and Insurance. Gavin Ritchie Underwriter

Transcription

1 Charterers Liability Risk Review, Risk Transfer and Insurance Gavin Ritchie Underwriter

2 A Practical Demonstration

3 Who needs liability insurance? Simplistic view of the principal If you operate ships commercially you seek to employ the vessel to ensure maximum efficiency of voyages, cargoes and profit and you are exposed to both a head and sub-charter which often have very different terms. If you are an exporter selling CIF or CFR or an importer buying FOB you agree a charter party in which its likely you are exposed to shipping risk.

4 What are the underlying risks? Both as a time charter operator and as a voyage charterer The charterparty is a complex contract under which you give representations and warranties with regard to: The nature of the cargo to be carried The ports and/or berths at which the ship might call You are at risk of serious claims, including loss of the ship, wreck removal and death or injury that may arise from: Spontaneous combustion eg a fire Failure of the port or berth operator to ensure safety of the port or a berth» Negligence of the pilot» Underwater obstruction at berth

5 It s not just a theoretical risk Ocean Victory - sank within port limits at Kashima, Japan charterers were in the first instance found liable for sending the vessel to an unsafe port US$138 million claim against the Charterer for breach of safe port warranty final appeal pending Smart sank outside the port of Richards Bay, South Africa having loaded coal owners allege port was unsafe claim US$150 million. Athos 1 unsafe berth claim in the US damage and pollution caused by an obstructed berth claim circa US$130 million. NASCO Diamond sank at sea having loaded a cargo of Nickel Ore in Indonesia.

6 Stepping into a Contractual Minefield The Charterer has little or no effective practical control over operations, but still takes responsibility for the actions of others eg: the Port fails to maintain safe working systems Shore based handling facilities collapse the Shipper mis-declares a dangerous cargo the Terminal operator is negligent The Charterer is responsible! Responsible not through actual fault but contractually under the terms of the charterparty entered into

7 Let s play what if? The permutations are endless each case is unique The particular set of circumstances surrounding any serious casualty are only revealed with hindsight No set of procedures or charterparty is ever perfect The reliability of your counterparty and others on whom you rely is critical Operational standards Risk Management Credit worthy Fully insured with reputable underwriters

8 Operator v Voyage Charterer Its taken for granted that operators or those that charter on period or TCT have a requirement for P&I Cover, yet some still don t have cover. About half of our very large claims ie exceeding USD 2 million are under voyage contracts; our second largest paid claim USD 7 million Gencon C/P unsafe port. When considered its only a matter of different degrees of risk when you review the types of exposure.

9 The Clauses - Hull NYPE Gencon The Vessel shall be employed in such lawful trades between safe ports and safe places..as the Charterer shall direct. One safe berth one safe port xxx where the vessel can always lie safely afloat.

10 The Clauses - Cargo NYPE Cl 8. The Charterer shall perform all cargo handling, including but, not limited to loading, stowing, trimming, lashing, securing, unlashing, discharging.. at their risk and expense. Cl 27 Cargo claims.. will be settled between the Owners and Charterers in accordance with the Interclub agreement. Gencon Cl 2 - The owners are to be responsible for loss of or damage of the goods only in case the loss, damage or delay has been caused by the want of due diligence on the part of the owners. to make the vessel seaworthy And the owners are not responsible for loss, damage or delay from any other cause whatsoever..

11 Shipping Market Clauses BIMCO act as a powerful and effective representative body for shipowners: Political lobbying loss prevention, maritime safety BIMCO Contractual framework Many examples of Market Clauses that determine risk Stevedore damage Cargo Claims Shortage claims Review each clause very carefully;

12 A Complicated Business Seller Long-term contract to supply dry bulk cargo over 2 yrs Buyer Ship-owner charters vessels to service the COA 2 year COA Ship-owner Shipment based charter Barge owner for lighter operations Individual sales contract Local buyers in domestic market Charters vessels

13 Blueprint for Effective Risk Management Understand the implication and effectiveness of key charterparty clauses Identify the risks you are assuming and ensure that are you comfortable bearing that risk Are clauses that protect you or you might seek to rely on watertight? Counterparty risk - up and down the chain and all parties for whom you are responsible Contractual Operational/Reputational Financial due diligence Adequacy and evidence of insurance arrangements

14 Blueprint for Effective Risk Transfer What steps can you take to minimise or transfer the risk that you are taking? Pro-active management of problems Insure with a secure and reputable underwriter that can help you manage your risk. Scope of Cover Expertise First Class Security Well resourced Give advisory services

15 Commercial Risk Issue of a bill of lading that doesn t reflect the cargo condition or where the cargo is carried (eg on deck) Release of cargo against a letter of indemnity as opposed to the bill of lading Specific indemnities that transfer risk: eg Charterers are responsible for all cargo claims at discharge port, howsoever caused, and will be responsible for the provision of security.

16 Subrogation Subrogation is the right for an insurer to pursue a third party that caused an insurance loss to the insured. This is done as a means of recovering the amount of the claim paid to the insured for the loss. Our largest claims over the last 10 years have all been subrogated claims where the party pursuing our client is a subrogated Hull, Cargo or P&I Underwriter. Trap for the unwary: Notify you insurers; Get contemporaneous evidence

17 Charterers Liability What influences price and conditions Type of charter party forms used Bill of Lading issued as carrier Areas traded to Cargoes carried Whether you sub-charter Number of vessels chartered Age, type and size of vessels Limit required Claims Record

18 A Changing Market BIMCO and IG Clauses transferring actual and commercial risk Wreck removal now compulsory in many jurisdictions More parties aware of their rights Less due diligence in what is going into charter contracts Lack of understanding of what risk is accepted

19 Questions Set up in 1986 and we were the first specialist Club dedicated to insuring charterers Largest team dedicated exclusively to handling charterers interests: Security of our polices rated AA- (S&P) Offices in London, Dubai and Shanghai: 3 hubs, 1 team gritchie@else.co.uk