SPANISH EXPERIENCE ON CLAIMS MANAGEMENT Mónica Mulero NOVEMBER 2011
Index 1 Where we were 2 Where we are 2.1 Before you start 2.2 Start a claim 2.3 Settling a claim
Where we were
PRESTIGE INCIDENT
NOT ONLY THE PRESTIGE Situation we had Tax payers paying the response Just claiming accid. covered by the IOPC Fund Shipowners dont response Salvage companies complaining What we wanted Polluter pays Claim in other incidents Encourage shipowners to assume the resolution We dont want to interfiere with private sector 2007-start claiming 2007-2011-Claiming on a regular basis
Where we are
2.1 Before you start
INCLUDE CM IN YOUR ORGANIZATION Designate a team. Continuity: after, during, after
CM TEAM IN SASEMAR Direction Legal advicers Legal advicer Strategic Planning Operational Finantial Telecomm. Human Resources Special Operations Prediction and Survei. Environmental MRCC Regional Bases Satell.Backtracking Samples Units Equipment
RESPONSE IN SPAIN NATIONAL RESPONSE COAST MINISTRY OF ENVIRONMENT REGIO.GOVER. SEA MINISTRY OF DEVELOPMENT LOCAL AUTHORITIES PORT/ INDUSTRY
STUDY YOUR LEGAL FRAMEWORK International Conventions in Spain International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969 & International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 1971 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 1996 International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 International Convention on Salvage, 1989 SALVAGE CONVENTION BUNKER CONVENTION NATIONAL LAW CLC: 0
STUDY YOUR LEGAL FRAMEWORK National law Art.90 Law 30/1992 Merchant Marine Law. When the Maritime Authority entruts Sasemar the response of a maritime incident, Sasemar will be entitle to claim the cost of the service. Art.98 law 30/1992 Administrative Procedure Law. Subsidiary Enforcement. If the administration does an activity that should be done by other party, cost will be claim to that party. 26/2007 Environmental Liability Law. Transposed from the Directive 2004/35/CE. Polluters Pay Art. 1902 Spanish Civil Code: Tort Liability (no contract between both parties). Any party in the distribution chain may potentially be held liable if he has incurred in willful misconduct or negligence.
STUDY YOUR LEGAL FRAMEWORK International Conventions in Spain Convention on Limitation of Liability for Maritime Claims (LLMC), 1976 EXCLUDED FROM BEING SUBJECT TO LIMITATION: (d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship; (e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;
DEFINE THE SERVICES YOU WILL CLAIM FOR NO YES SEARCH AND RESCUE MED-EVA SALVAGE OPERATIONS PREVEN. SPILL RESPONSE TRAFFIC CONTROL
CALCULATE THE COST OBJECTIVE To define your policy to claim: Units/personnel you will claim for Daily/hourly Half days? Stand by rates? How much?
CALCULATE THE COST GENERAL PRINCIPLES Recover the total cost Our rates shouldnt be much lower than commercial rates.
CALCULATE THE COST HOW WE STARTED ITOPF/IOPC Fund guidelines SCOPIC clauses OSRL Countries Comparison
CALCULATE THE COST DIFFICULTIES Cost vs commercial hire rates There was not a methodology already established. We didn t have in our agency any expert on model costs. I had to write chapter 8 of the European Claims Guidelines. Contract Ernst & Young.
CALCULATE THE COST METHODOLOGY PROPOSED CLAIM Aerial units Maritime units Personnel Equipment Miscellaneous Waste management Expert advice outsourcing Hire of specialized equ,etc. MS RESOURCES ACTUAL EXPEDITURE
CALCULATE THE COST METHODOLOGY PROPOSED EQUIPMENT MS RESOURCES UNITS FORMULA Storage, maintenance, exercises, etc. CLAIM PERSONNEL DAILY RATE: LIST VALUE * 2 LIFE EXPECTANCY x 0,5 ACTUAL EXPEDITURE INVOICES LIF.EX P TYPE EXAMPLE1 180 Mechanical equipment Powerpacks, pumps, skimmers 90 Heavy plastic equipment Off shore bms, temp. storage equip. 30 Plastic and rubber materi. In-shore booms +invoices/personnel TRANSP DEPLOYED TRANSP CLEANING REPAIR
CALCULATE THE COST METHODOLOGY PROPOSED EQUIPMENT FORMULA MS RESOURCES UNITS CLAIM ACTUAL EXPEDITURE: INVOICES PERSONNEL COST UNITS DIRECT: An expense that can be directly assigned to a unit. HELICOP. TUG PERSONNEL Construction fleet, hire, equip, fuel, crew, insurance Construction, fleet, fuel, crew, insurance Salaries INDIRECT: An expense related but that must be distributed. Maintenance personnel, MRCC; administrative, environmental department, etc. % NOT ASSIGNABLE MRCC, Participation in exhibitions, traffic control, ads, training to third parties, etc. TOTAL COST D+I D+I D+I HOURS/DAYS hours hour days RATE (in use/no sb) /hour /hour /day
CALCULATE THE COST RESULTS The model proposed is NOT THE ONLY ONE It is the one included in the European CM Guidelines.
2.2Start a claim
NOTIFY THE SHIPOWNER STANDARD LETTER We have written a standard letter in which we inform the shipowner that we will price our services, and we ask P&I clubs or shipowner to look for alternative ways to solve the problem by themselves (when possible) instead of using our services the less to be claimed, the better.
ASSURE THE REFUND Ask for guarantees Bank guarantees or deposit Importance of the calculation: foresee the emergency
DEFINE A STANDARD LETTER OF UNDERTAKING Representatives of P&I or shipowners ask for resources Months later, these requirements are questionned, so we have developed a standard letter of undertaking in which their requirements are written and signed by both parties.
FIND STRONG EVIDENCES From the source and at sea. Photos, satelite images, samples, press. At the first moment and during emer.
Filling in reports All decisions and requests in writing Include in the reports information about: what has done how the emergency is progressing: if there is pollution, or a risk of pollution Justify the movement of each unit: what is the objective of each movilization? Consistency data: try not to repeat data in different report: source of mistakes Avoid Subjective data Equilibrium in the information delivered Pictures and videos
COMPILING THE CLAIM Define a format previously Calculate costs during the emergency-do not wait to the end
COMPILING THE CLAIM
COMPILING THE CLAIM
COMPILING THE CLAIM
COMPILING THE CLAIM
COMPILING THE CLAIM Include: Invoices, daily reports of the units and the personnel Other important documentation: aerial surveillance reports, emails, Pictures and videos
COMPILING THE CLAIM Taking pictures Pictures of pollution (on a regular basis)
COMPILING THE CLAIM Taking pictures Include evidence of the source of the pollution (on a regular basis)
COMPILING THE CLAIM Taking pictures Evidence of the economic/tourist impact
COMPILING THE CLAIM Taking pictures Evidence of tasks done by our personnel. Identify your personnel
COMPILING THE CLAIM Taking pictures Evidence of results: eficiency of a boom
COMPILING THE CLAIM Taking pictures Evidence of results: eficiency of sorbent booms
COMPILING THE CLAIM Taking pictures Evidence of results: clean beaches
INFORM TO THIRD PARTIES Send an estimation on a regular basis to shipowners, lawyers and pandis. Meet with surveyors, agents
COMPILING THE CLAIM
2.3 Settling a claim
SEND THE CLAIM TO WHOM? : Send your claim to the shipowner and P&I WHEN?: The sooner the better - To present the claim and to manage it.
NEGOCIATION IDENTIFY PARTIES INVOLVED CREDITORS INTERMEDIARIES DEBTORS YOU LAWYERS LAWYERS AGENTS SURVE.-ITOPF SHIPOWNER- INDUSTRY MINISTRY OF ENVIRONMENT LAWYERS SURVEYORS H&M NEGOCIATION PORT AUTHORITY LAWYERS SURVEYORS P&I LOCAL AUTHOR. LAWYERS LAWYERS AGENTS SURVE.-ITOPF SHIPOWNER- INDUSTRY PRIVATE LAWYERS SURVEYORS H&M OTHER COUNTRIES SURVEYORS P&I
DEFENDING YOUR CLAIM Follow your claim Claims will be reviewed, prepare your answers in depth Try to reach an agreement directly with the insurance If the rope breaks go to court.
The secret. PROVE THE REASONABLENESS EXPLAINING Why DOCUMENTATING The response REPORTING Costs Origin
SETTLEMENT AGREEMENT Amicably settlement Settlement Agreement Invoice
Conclusions 1. The process starts before you have an incident 2. Remember the secret! Prove that the claim is reasonable: EXPLAINING DOCUMENTING INFORMING
Thank you very much for your attention Any question?