BUSINESS MARKET VIEWS TRACK MONDAY, JUNE 12 10:55 A.M. 11:35 A.M. Midstream Supply Chain Responsibilities and Liabilities Terminal operators assume legal liability for customers goods and products while under their care, custody or control; however, Incidents can happen where there are extenuating circumstances, and liability (legal or contractual) is not clearly defined. Active insurance policies may not respond as intended resulting in no attachable insurance coverage, protracted coverage litigation, damage to brand and loss of revenue. Chris Alviggi of Alliant Insurance Services will examine types of coverage offered in terminal liability and pollution legal liability policies, identify policy gaps, and discuss how to fill these gaps using insurance and alternative risk transfer techniques. ABOUT THE SPEAKER Chris Alviggi is a Vice President with Alliant Insurance Group - Marine & Energy Division. He has extensive insurance experience designing customized environmental insurance programs aimed at protecting insureds against loss resulting from transport and storage of hazardous goods moving through global supply chains. Alviggi earned a Master of Business Administration and a Bachelor of Business Administration in Risk and Insurance from The College of Insurance, now known as the Tobin School of Risk Management at St. Johns University.
Midstream Supply Chain Responsibilities & Liabilities Chris Alviggi, Alliant Insurance Services
Today s Topics Key Terms Risk Counterparty Risk Loss Examples Direct Indirect Counterparty Risk Federal Statutes Overview Minimum Sentencing Guidelines Commercially Available Insurance Terminal Operators Commodity Interests Vessels & Barge Interests Railroad Operator Potential Gaps in Coverage Pollution Legal Liability Terminal Operators Liability Third Party Liability Directors & Officers/Cyber Commercial Auto/Trucking General Insurance Observations 1
Key Terms Risk - A probability or threat of damage, injury, liability, loss, or any other negative occurrence that is caused by external or internal vulnerabilities, and that may be avoided through preemptive action. www.businessdictionary.com/definition/risk.html Risk is often direct specific action or event. 2
Key Terms (continued) Counterparty Risk the risk to each party of a contract that the counterparty will not live up to its contractual obligations. Counterparty risk is a risk to both parties and should be considered when evaluating a contract. In most financial contracts, counterparty risk is also known as default risk. Google\Investopedia\terms\counterpartyrisk Counterparty Risk is often Indirect another s action or inaction. 3
Direct Losses First Party Insured Losses Damage to machinery & equipment -tankage Business Interruption & Extra Expense resulting from above Bodily Injury/death to employees (WC/USLH) Third Party Losses Damage or destruction of cargo replacement value (impacted) (direct insurance payment or subrogation) Third Party Liability tort liability Bodily injury or death to non employees Pollution Damages to the environment (Natural Resource Damages) Legal Defense 4
Indirect Losses Contractually assumed liability including legal defense (negligence standard) Future lost revenue/contango Extra Expense (delta) to procure new storage capacity Loss of market share/liquidated damages Contingent Business Interruption (other commodity interests not physically impacted by loss but product not physically accessible Joint & Several Liability for pollution losses (deep pocket) 5
Counterparty Risk Losses Single Purpose LLC (limited by assets) Indemnity Failure (can t or won t meet indemnity obligations) Gross Negligence of Commodity Interest Material Breach of terms Misclassification/Misdeclaration of Cargo Failure to satisfy minimum contractual insurance requirements Dilution of Limits Inferior coverage terms and conditions Validity of insurance Negligence of third parties Agents Surveyors Third Party Logistics Providers (bills of lading) 6
Federal Statutes Comprehensive Environmental Response, Compensation & Liability Act aka Superfund Joint & Several Liability Natural Resource Damages Damages to Environment Federal Clean Water Act amended by OPA 1990 Oil Pollution Act of 1990 Clean Water Act 7
Minimum Sentencing Guidelines Statute Civil Penalty Individual Civil Penalty Entity Criminal Penalty CERCLA $53,907/day $10,000 plus 3 years NRD Costs plus injuries from commencement to full recovery FCWA $250,000 $1mm 2 years < >30 years CWA $51,750/day $2,500 plus 1 year OPA $250,000/$500,000 max $1mm < 15 years 8
General Insurance Observations Geographical Restrictions are imposed in insurance contracts Insurance Recoveries are often complicated by jurisdictional complexities resulting from global supply chains Jurisdiction/Venue Coordination of Claims is complicated Interests of Impacted Party (ies) Contractually assumed obligations to defend & indemnify Severability of Interests 9
Observations (continued) Pollution Coverage attached to Insurance policies is not fluid, limited to specific conveyance with defined start & stop points Protection & Indemnity Terminal Operators Liability Pollution Liability Contingent Transportation Control of Damage Goods Disposal Liability Pollution (legal) Liability policies - misaligned with Risk of Loss assumed in INCO terms Legal Liability care, custody or control INCO Terms contractually assumed risk of loss Use of Electronic Bills of lading Cyber Risk/Hacking 10
Commercially Available Insurance Terminal Operators Commodity Interests Vessel or Barge Interests Railroad Operators 11
Terminal Operators General & Products Liability Insurance aka Marine General Liability or General Liability Primary Coverage Pollution Liability Sudden & Accidental (7 days discovery/28 days reporting to insurer) Pays on behalf or Indemnifies Insured for Losses resulting from: Toxic Tort Liability/third party bodily injury & property damage Legal defense expenses Remediation (Cleanup) and future monitoring costs at third party locations 12
Terminal Operators (continued) General & Products Liability Insurance aka Marine General Liability or General Liability Primary Coverage Other Coverages o General Liability slips and falls/products/blending o Protection & Indemnity o Collision Liability (Tower s Liability) o General Average & Salvage o Sue & Labor o Ship Repairers o Charterers Legal Liability o Wharfingers Liability and Safe Berth o Excess Liability Coverage (Bumpershoot) 13
Commodity Interests Marine Cargo (Stock Throughput) Damage or Loss to Cargo Control of Damaged Goods Marine General Liability Third Party Liability Bodily Injury o Agents/Contractors/Surveyors Blending/Products Liability General Average Sudden & Accidental Pollution 14
Vessels & Barge Interests Sudden & Accidental Pollution caused by an event (ship or cargo) Vessel owner (member) protection remediation, emergency response General Average and associated liabilities Third Party Liability Crew and others Third Party Property Damage cargo interests and loss of income Coverage for Natural Resource Damages & Biodiversity is available for member 15
Vessels & Barge Interests (continued) Interests of Vessel Owner are primary Liability ceases at flange Vessel owner has ability to limit indemnity based upon principals of Limitation Act and/or Hague Rules General Average Rules allow for the Ship Owner to recover the costs of emergency response/risk mitigation to prevent an environmental catastrophe 16
Railroad Operators Sudden & Accidental Pollution Coverage part of Third Party Liability Cover. Class I railroads purchase considerable limits of liability, Class 2 and 3 lesser amounts Responsible for its negligence including while goods are railroads care, custody and control; (exception for gross negligence of counterparty) Direct line of responsibility for loss of life, injuries, third party property damages, emergency response and remediation expenses 17
Potential Gaps in Coverage Pollution Legal Liability Terminal Operators Liability-Third Party Liability Directors & Officers/Cyber Risk Commercial Auto/Trucking 18
Pollution Legal Liability Insurance Specified Assets must be Schedule can be limited to specific tanks Contractual Liability NOT AUTOMATIC: Insured Contracts Schedule Scope Creep resulting from Spill: New v Legacy Pollution Conditions Choice of Counsel: NOT AUTOMATIC Waiver of Subrogation: NOT AUTOMATIC Transportation Liability o Contingent third party conveyance o Limited to or from a scheduled asset o Legal liability not contractually assumed INCO terms 19
Terminal Operators Liability et al. Losses must result from direct event (time certain) gradual pollution is not covered: Loss of System Control Environmental liability resulting from the negligence of third parties (contractors, agents, surveyors) is not automatic Time limitations (typically 72 hours) restrict insurance recoveries for goods, products held for shipments, transshipments, storage, customs, etc. Mischaracterization or Misdeclaration of Cargo Civil fines are not insurable 20
Directors & Officers/Cyber Risk Pollution Cover (legal defense): NOT AUTOMATIC Environmental Indemnities/Civil Fines and Penalties impact: Individuals (Side A) Entities (Side B) Retroactive Date (legacy pollution) Choice of Counsel: NOT AUTOMATIC Cyber policies pay first party/third damages resulting from breaches but do not provide toxic tort protection (bodily injury/property damage/remediation expense/natural resource damages) 21
Commercial Auto/Trucking MCS-90: Indemnity Not Insurance Broadened Pollution Coverage extends to third party bodily injury, property damage and remediation which results from: Upset Overturn Collision Coverage must be triggered by Governmental Entity. 22
Closing Thoughts Understand liabilities assumed/transferred in contracts (storage, loading/unloading, blending, etc) Understand your insurance program (direct v. indirect losses) Understand who is first line of defense? Maximize existing insurances Joint & Several Liability Deep Pockets A collaborative approach to risk is BEST: Because Everything Syncs Together 23
QUESTIONS?
References Transportation of Hazardous Materials: Exporters Liability by Mr. John J. Reilly, Squire Patton Boggs & Christopher Alviggi, Alliant Insurance Services, Inc. http://www.squirepattonboggs.com/en/insights/publications/2014/ 03/transportation-of-hazardous-materials-exporters- Using Environmental Insurance as a Tool to Close Transactions by Mr. Dennis M. Toft, Chiesa Shahinian & Giantomasi & Christopher Alviggi, Alliant Insurance Services, Inc. http://www.csglaw.com/news_events/727-using-environmentalinsurance-tool-close-transactions---dennis-toft 25