Статья посвящена порядку страховой защиты банком своих интересов при финансировании купли-продажи судов. Особенное внимание посвящается авторами размещению банкирами своих рисков по закладным на английском и скандинавском страховых рынках. Исследуются также правовые конструкции, предусмотренные в mortgagee additional perils (pollution) insurance (MAPI) и American Oil Pollution Act 1990, которые позволяют третьим лицам заявлять требования о наложении морского залога на суда за загрязнение нефтью. Кроме того, рассматривается проформа Selaform (Меморандум Ассоциации норвежских судовых брокеров о соглашении на куплю-продажу судов) в редакциях 1993 и 2012 г.г. В заключение рекомендуется для уверенности банка в том, что его интересы защищены назначать своих страховых брокеров, независимо от назначения страховых брокеров судовладельцами — сторонами договора купли-продажи судна.
A bank financing the purchase of a vessel will normally obtain security for the loan by way of a mortgage in the vessel. However, the bank’s interests are exposed to a variety of risks that must be addressed by obtaining adequate insurance cover. Without adequate insurance protection, the bank’s mortgage will be of no value if, for example, the ship becomes a total loss or is subject to a maritime lien exceeding the ship’s value with priority ahead of the mortgage.
Therefore, the bank will always request to see copies of all of a shipowner’s marine insurance policies, including the hull and machinery, protection and indemnity and war risks insurances, and will have in-house experts consider the coverage and solidity of the underwriters. Even if the shipowner has adequate insurance protection, the bank will consider whether its rights as mortgagee are sufficiently protected by insurance.
The bank has several options to ensure that its interests are protected, depending on:
- whether the owner’s insurances are placed on English or Nordic conditions; and
- the degree of risk that is acceptable.
This update considers the most common options.
It is customary for banks, especially when the owner’s insurances are placed in the English market, to secure their mortgagee interests by requiring the owner to assign all rights under the insurances to the bank, and have the insurer issue a letter of undertaking to the bank and nominate the bank as the loss payee under the insurances. However, such assignment is not without pitfalls. The bank is placed in the same position as the owner under the insurances, and leaves it exposed to the same risks as the owner in relation to insurance claims being rejected by the insurer on the basis of the owner’s conduct being outside the control of the mortgagee – which, for example, might include:
- misrepresentation or non-disclosure of material circumstances in arranging the placement of the owner’s insurance;
- failure by the assured owner to establish, following a total loss claim rejected by its insurers, that the loss was caused by an insured event or peril under the policies;
- delays on the part of the owner in presenting a claim to the insurers;
- breach of any statutory provision, any express or implied warranty, such as in relation to seaworthiness or compliance with a classification society’s warranties; and
- deliberate or fraudulent damage or destruction of the vessel (eg, by way of arson or sinking (scuttling)).
The risk of the insurer refusing to cover a claim on the basis of such conduct by the shipowner may be reduced by a mortgagee interest insurance (MII). This is a separate insurance cover taken out by the mortgagee to cover the mortgagee’s economic interest independent of the owner’s hull insurance. The MII is often required by financing banks and is taken out at the shipowner’s expense as a pre-condition for the financing.
In the Nordic markets, the Nordic Marine Insurance Plan Chapter 7 provides for automatic protection of the mortgagee’s interest under the owner’s hull insurance. The mortgagee will obtain extended protection and a similar status as loss payee under an assignment of hull insurances, simply by notifying the insurer about the mortgage. However, with respect to conduct by the owner barring claims under the insurance, the position for the bank is similar under the Nordic Plan’s automatic co-insurance to that under an assignment of insurances. In order to obtain more comprehensive protection, the bank may take out an extended co-insurance under the plan.
The Nordic Plan Clause 8-4 provides for an extended co-insurance under the assured’s hull insurance which is independent from the assured’s hull insurance in the sense that the mortgagee does not lose its protection due to acts or omissions on the part of the owner. Under this cover, the insurer is prevented from invoking a breach of duty of disclosure on the part of the person effecting the insurance. Furthermore, if the ship is lost due to breaches of safety regulations for which the assured is to blame, the mortgagee will be covered. However, there are some limitations to the cover and some banks may prefer to arrange for an independent direct insurance (eg, MII).
A mortgagee might further require the owner to bear the costs of an additional cover, the mortgagee additional perils (pollution) insurance (MAPI). This type of cover evolved after the Exxon Valdez incident, following which the laws in some jurisdictions (including the American Oil Pollution Act 1990) allowed third-party claimants to acquire a priority maritime lien on a vessel held responsible for oil pollution. If the lien is enforced and the vessel is sold by way of forced sale, and the proceeds are insufficient to cover the mortgage, the bank will not recover anything under the mortgage and will have no security for the loan. In such situations MAPI will indemnify the mortgagee for any losses resulting thereof. All protection and indemnity clubs in the International Group provide cover for oil pollution up to $1 billion, so MAPI is more common and economically sensible in cases where the limit is not as high – for example, where the vessel is insured under a fixed premium protection and indemnity insurance or is insured by a protection and indemnity club which is not a member of the International Group.
Two other covers for mortgagee interests are available, but are less frequently used or necessary:
- Mortgage rights insurance covers the mortgagee from the risk of not being able to foreclose a mortgage on a vessel which is flagged or chartered into a jurisdiction with cross-border sovereign problems preventing the mortgagee from foreclosing.
- The mortgagee may take out a pre-existing liens insurance, which covers the mortgagee from any pre-existing liens that might follow the vessel in the event of a sale. In most jurisdictions, maritime liens rank ahead of mortgages. The standard sales agreements for secondhand vessels (the Norwegian Saleform 1993 and 2012) provide that the seller of a vessel takes full responsibility for and indemnifies the buyer against any maritime or statutory liens. Most sellers are single-purpose companies with only one vessel. In the absence of a parent guarantee, a bank may in certain transactions consider it necessary to require such additional insurance cover.
Financing banks should take great care to consider whether they have adequate insurance protection against the risks that their interests are exposed to. In order to ensure full disclosure and avoid conflict of interests with owners when placing insurances, it is generally recommended that the bank appoint their own brokers independent of the shipowner’s brokers.