В аналитическом материале суммируется практика страхования рисков, связанных с морским пиратством, которая сложилась по состоянию на июнь 2011 г.
Piracy in the Indian Ocean and elsewhere
continues to be a major ongoing concern to the
shipping industry. Although the human cost
to seafarers and the strain on their families
is impossible to calculate, Geopolicity, the
international management consultancy group, has
estimated that the total annual monetary cost of
piracy to the international community is between
US$4.9 and US$8.3 billion.
Ince & Co, the international law firm that monitors
developments closely, estimates that ransoms of about US$75
to US$85 million were paid in 2010 to secure the release of 21
ships. It understands that average ransom payments by March
2011 had reached about US$4 million, double the figure in
January 2010.
Ince & Co also tracks the length of time that ships are held
captive referencing the six most recently released ships. By
the end of February 2011 the rolling average had reached 214
days, up from 205 days at the end of 2010 and up from 93 days
for the same period in 2010. Since March, and in line with the
pirates stated intention to free up space at their anchorages,
the average has dropped back to 109 days.
This paper summarises the insurance experience as it relates to
piracy. It is intended as a practical guide to shipping companies
based on the situation in June 2011. It will consider:
Loss of or damage to the ship following
an act of piracy – the insurance market
position
In our view this is best addressed by a properly
structured war risks insurance policy covering the ship.
We will explain why.
Ransom to secure the release of seized
ships, crew and cargo – who pays?
We would normally expect the cost of ransoms for ships
to be reimbursable under either the ship’s hull and
machinery (H&M) marine risks or war risks insurance
policy. A marine kidnap and ransom (K&R) insurance
policy also covers ransom.
Issues relating to the payment of ransoms
Ransom payments are prohibited in some jurisdictions.
Care must be taken to avoid acting illegally.
Issues to consider relating to marine K&R
insurance
The arguments whether or not to buy marine K&R
insurance are not straightforward and if it is purchased
other points will need to be addressed. We consider the
various issues.
The market for war risks insurance and
marine K&R insurance
We briefly consider the insurance market for both war
risks and marine K&R at the time of writing and the
factors that determine premium levels.
Loss of hire following an act of piracy
We set out the loss of hire position if the ship is
damaged by pirates and separately explore the options
available relating to hire payments while the ship is
seized.
The protection and indemnity (P&I)
position
The P&I clubs have made it clear that they do not cover
ransom payments. However, if a ship owner incurs a
legal liability following an act of piracy, the clubs are
likely to become involved. The clubs are also very useful
sources for advice both when a ship owner considers
how to deal with the threat of piracy and after a ship
has been seized.
The implications of employing guards to
protect shipping
The employment of an armed security team can result
in reduced war risks and marine K&R premium, but it
does raise other questions. While we are not qualified
to comment on points of law, we are pleased to refer
the reader to a paper addressing this issue that has
been prepared by Ince & Co.
Loss of or damage to the
ship following an act of
piracy – the insurance
market position
The insurance industry debate
as to whether loss of or damage
to a ship as a result of an act of
piracy should be covered under
the ship’s H&M marine risks or
war risks policy has been largely
resolved. Today the great majority
of ships are insured against piracy
under their war risks insurance.
Marsh considers this to be the
desirable outcome for a variety of
reasons, not least because it avoids
potential disputes in the event of
a claim relating to whether the
pirates were acting from political or
economic motives.
There are other practical
advantages to including piracy as a
war risk. Deductibles are typically
not applied to claims to war risks
insurance policies, but are applied
to claims on marine risks policies.
It also protects the ship owner’s
marine risks claims record in the
event of a claim.
Including piracy as a war risk also
introduces a mechanism where
insurers can charge an additional
premium if a ship trades in pirate
infested seas. The war risks
additional premium areas are well
understood by shipping companies
and extending that practice to risks
of piracy enables cover to be paid
for by those that bring the risk
exposure. In practical terms, this
enables the cost to be passed on to
the charterer or customer.
In the comparatively rare cases
where the risk of piracy is still
covered under a ship’s H&M marine
risk insurance policy there will
normally be no additional premium
charged if the ship operates in
waters with a high risk of piracy,
because there is no mechanism
to set an additional premium.
However, a significant piracy claim
on the H&M marine risks insurance
policy is likely to result in higher
premium. The impact of a claim on
H&M war risks insurance premium
would be much less.
Ransom to secure the
release of seized ships,
crew and cargo – who
pays?
Both H&M marine risks insurers
and war risks insurers have
reimbursed ransom payments on
policies that include the risk of
piracy. Reimbursement has been
forthcoming because underwriters
accept that payment of ransom to
secure the release of a ship seized
by pirates is justified as a general
average (GA) expense, although in
practice, in most if not all cases,
claims have been settled without
GA having been formally declared.
General average can usually only
be declared where parties other
than the owner of the ship, such
as cargo owner or charterer, have
a financial interest in the safe
conclusion of the voyage. Therefore
it might not be possible to declare
GA if the ship was seized while
unchartered and on a ballast
voyage. In these circumstances we
would expect ransom payments
to be reimbursed as a “sue and
labour” expense. Under policy
forms in use today covering both
H&M marine risks and war risks, a
ship owner that has been deprived
of use of the insured ship can
ultimately claim a constructive
total loss. Payment of a ransom to
avoid the prospect of a constructive
total loss would certainly appear to
be justified as sue and labour, but
this is less tested in practice.
While ransom payments have been
reimbursed by both H&M marine
risks and war risks insurers, the
conventional kidnap and ransom
insurance market has responded
to the escalation of piracy by
developing specialist marine K&R
products intended to provide
certainty of cover. These policies
are designed to reimburse ransom
payments up to a pre-agreed limit.
Conventional K&R insurance covers
ransoms paid to free living persons
from kidnap. In the maritime
context, a marine K&R policy
covers ransoms paid to release
crewmembers and others on board
the ship.
Recognising that in reality Somali
pirates have usually sought
payment of a single ransom to
release the ship, its crew and
the cargo on board, marine K&R
policies are typically extended to
include ransoms paid to secure the
release of seized property.
On occasion, as was seen with the
boarding of the m/v Leopard in
January 2011, pirates have abducted
the crew but abandoned the ship.
In these circumstances, because
they have no financial interest
in the wellbeing of the crew, we
believe it unlikely that the ship’s
H&M marine risks or war risks
insurers will readily participate in
the reimbursement of a ransom to
free crew alone.
It is possible that the underwriters
covering a ship owner’s liabilities to
crew might be asked to contribute
to a ransom to secure the release
of crew members. This could
be the ship owner’s P&I insurer
or alternatively an underwriter
that covers crew P&I war risks.
Typically this will be the ship’s war
risks insurers who customarily
also cover P&I war risks on the
ship. However, a requirement
to reimburse ransom payments
follows legal liability and it is
unlikely that the ship owner will
have a legal liability to pay a
ransom. Indeed, the P&I clubs have
made it clear that they do not
cover ransom payments – a stance
considered in greater detail later in
this report.
To conclude this section, we
expect ransoms paid to free a ship
to be reimbursed by the ship’s
H&M marine risks or war risks
underwriter. A marine K&R policy
is appropriate cover for ransom
to free the crew alone and can
also provide an additional layer of
protection for the ship.
Issues relating to the
payment of ransoms
Many countries including the
United States and the members of
the European Union specifically
prohibit any payment of funds that
could be used to fund terrorism.
Any suggestion that ransoms were
being diverted to terrorists could
result in both ship owners and
underwriters finding themselves at
risk of prosecution.
Legal advice should be sought
and taken into account when
formulating a strategy to deal with
the piracy risk to ensure that ship
owners remain within the law.
Issues to consider relating
to marine K&R insurance
While virtually all ships will be
covered for the risk of piracy
under either the H&M marine
risks or war risks policy, not all
ship owners purchase marine K&R
coverage. Clearly there is overlap
and this has led some ship owners
to conclude that K&R coverage is
an unnecessary expense. We now
address the benefits or otherwise
of purchasing a separate marine
K&R policy.
Marine K&R underwriters will
argue that their product brings
certainty of coverage (within the
terms of cover and to the policy
limits), that it provides additional
cover not always given elsewhere,
will result in the involvement
of the most capable specialist
support at the time a crisis is being
faced and will bring the speediest
settlement of claims.
A marine K&R policy does provide
certain benefits that may not
automatically be covered under
the H&M marine risks or war risks
policy. These include insurance for
the ransom while in transit and
a variety of additional expenses
including fees charged by a public
relations consultant, interpreter
and independent negotiator,
medical and psychiatric fees and
the travel costs for the insured and
the victims’ families.
K&R insurers have established
close working partnerships with
professional response consultants
with considerable experience
negotiating with pirates and
in some cases have retained
their services exclusively. While
we would expect the ship’s
H&M marine risks or war risks
underwriters to pay for the services
of a specialist response consultant,
there is finite expertise and these
underwriters may find their first
choice consultant is exclusively
committed elsewhere.
The marine K&R market is
evolving and underwriters are
looking at how they can achieve a
competitive advantage. A number
of consultancy organisations
(separate from the response
consultants) provide pre-voyage
audits and generally assist ship
owners improve their piracy threat
response plans. The services of
these consultants are generally
available to ship owners, but some
K&R underwriters have negotiated
with these organisations to provide
the service on favourable terms
alongside a marine K&R policy.
Coverage issues to be aware of
Covering ransom payments under
either the H&M marine risks or war
risks policy and the marine K&R
policy opens up the possibility of
double insurance, which should
be handled carefully at policy
inception.
Beyond the risk of double
insurance, if a ship owner
purchases K&R coverage in addition
to the conventional insurances
covering the ship, it is essential to
ensure that the policies dovetail
properly and that in the event of
an incident the claims response is
coordinated. For example, marine
K&R insurance will be subject to
a policy limit. H&M marine risks
and war risks insurance will also
be subject to a limit, but this will
be the ship’s insured value and
is likely to be much higher. If the
ransom exceeds the limit under
K&R, it is important to make sure
the H&M marine risks or war
risks policy (as applicable) will
contribute above that limit.
K&R policies include a requirement
that they are kept confidential. If
a ship is seized by pirates the best
outcome will only be achieved if
all parties with an interest in the
ship, its crew and cargo are able to
work together. The K&R insurer’s
requirement for confidentiality
will prevent this, so it is therefore
important that the requirement is
waived to the extent necessary to
achieve full cooperation. Ideally
K&R underwriters will agree
to waive confidentiality from
inception to the extent that it
applies to other insurers that may
have an interest. At a minimum,
confidentiality must be waived as
soon as possible after a ship has
been seized.
In practice war risks underwriters
will often reduce additional
premium where the owner has
purchased a separate K&R policy,
which is a clear benefit. However,
in these circumstances the war
risks underwriters will need to be
made aware of the existence of the
K&R policy as a matter of course
and the ship owner must obtain
the K&R underwriter’s agreement
to disclosure.
To avoid coverage disputes in the
event of a claim, the K&R policy
should either name the charterer
and the cargo owner as insureds or
note that cover has been procured
on behalf of all charterers and
cargo owners “for their respective
rights and interests”.
Источник: http://documents.marsh.com/documents/piracywhitepaper07-11-11.pdf