Вступление в силу с 1 января 2012 года Директивы ЕС 2009/20/ЕС, касающейся обязательного P&I страхования (ответственности), вызывает много вопросов. Что же содержится в этой Директиве и стоит ли судовладельцам, менеджерам и их P&I страховщикам волноваться? Автор заостряет особое внимание на позиции P&I страховщиков, не принадлежащих к International Group of P&I Clubs.
A. How it all started
1. The Erika
Erika was a 1975 built tanker, chartered by Total-Fina-Elf (today Total). She sailed out of Dunkirk (France) bound for Livorno with a full cargo of around 30,000 tons of heavy fuel oil. As she entered the Bay of Biscay, the Erika ran into a heavy storm. On December 12, 1999, she broke in two and sank, releasing thousands of tons of oil into the sea, killing marine life and polluting shores around Brittany, France. It is considered the greatest environmental disaster to have ever hit France.
On January 16, 2008, Total SA(the Charterers), the Shipowner, the Manager and Rina (the Classification Society) were sentenced in solidum to pay indemnities of EUR 192 million (USD 280 million), plus individual penalties. The judgementi, while recognizing the risks inherent to oceangoing vessels, reckons Total SA was «guilty of imprudence», from the fact that Total SA did not take into account «the age of the ship» (nearly 25 years) and «the discontinuity of its technical handling and maintenance». On March 30,2010, the Paris appeals court confirmed the conviction to pay the indemnity of EUR 192 million plus a fine of EUR 375,000 (USD 500,000). This accident has shocked the great public, and has triggered new EU-legislation as regard to transport by sea.
2. IMO resolution A.898(21) dd.
25 November 1999 — GUIDELINES ON SHIPOWNERS’ RESPONSIBILITIES IN RESPECT OF MARITIME CLAIMS:
The preamble to this Resolution is very clear:
RECOGNIZING that shipowners generally enjoy the right to limit their liability for many maritime claims,
BELIEVING that the right to limited liability must be balanced by a duty for the shipowner to take proper steps to ensure that legitimate claims are met, in particular by taking out effective insurance cover (own emphasis), CONSIDERING that there is therefore a need to recommend minimum international standards for the responsibilities of shipowners in respect of maritime claims, CONSIDERING FURTHER that these guidelines represent a valuable contribution to the Organization’s objective of discouraging the operation of sub-standard and inadequately insured ships (own emphasis),
CONCERNED that, if shipowners do not have effective insurance cover, or another effective form of financial security, eligible claimants may not obtain prompt and adequate compensation Therefore, States were invited to urge shipowners to be properly insured.
It is interesting to note the definition of insurance given by this Resolution: «Insurance means insurance with or without deductibles, and comprises, for example, indemnity insurance of the type currently provided by members of the International Group of P&I Clubs, and other effective forms of insurance (including self-insurance) and financial security offering similar conditions of cover» (own emphasis). We will find exactly the same definition in EU Directive 2009/20 some 10 years later.
3. Directive 2005/35/EC dd. 7 September 2005 on ship source pollution
The preamble to this Directive is also very clear:
…The material standards in all Member States for discharges of polluting substances from ships are based upon the Marpol 73/78 Convention; however these rules are being ignored on a daily basis by a very large number of ships sailing in Community waters, without corrective action being taken, (own emphasis) Article 1: Purpose The purpose of this Directive is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are subject to adequate penalties as referred to in Article 8, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships.
4. Statement of Member states dd. 9 October 2008
This statement contains a unanimous recognition of the importance of the application of the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims. As an example:
The limit of liability for property claims for ships not exceeding 2,000 gross tonnage is 1 million SDR (Special Drawing Rights)
For larger ships, the following additional amounts are used in calculating the limitation amount: For each ton from 2,001 to 30,000 tons: 400 SDR
For each ton from 30,001 to 70,000 tons: 300 SDR
For each ton in excess of 70,000: 200 SDR
1. the awareness was growing in the EU Parliament & Commission that making insurance compulsory will give better protection to victims and help eliminating substandard ships and make it possible to re-establish competition between operators.
2. both in the EU Directives and IMO Resolutions «inadequately» insured ships are assimilated with substandard ships!
B. EU Directive 2009/20/EC
What is the legal force of a EU I )i-rective?
EU Directives lay down certain end results that must be achieved in every Member State, but leave it to the National authorities of each Member State to adapt their laws to meet these goals. Member States are therefore free to decide how to do it as long as it fits with the requirements of the Directive. Each Directive specifies the date by which the national laws must be adapted. In this case, Article 9 states that «Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before January 1, 2012.»
This is the difference with EU Regulations, which, as soon as they are passed by the EU Parliament, have binding legal force throughout every Member State. National Governments do not have to take action themselves to implement EU Regulations.
Analysis of the Directive 2009/20/EC Article 1 Subject matter This Directive lays down rules applicable to certain aspects of the obligations on shipowners as regards their insurance for maritime claims. Article 2 Scope
This Directive shall apply to ships of 300 gross tonnage or more. Article 3 Definitions «insurance» means insurance with or without deductibles, and comprises, for example, indemnity insurance of the type currently provided by members of the International Group of P & I Clubs, and other effective forms of insurance (including proved self insurance) and financial security offering similar conditions of cover» (Cfr IMO Resolution A.898)
Article 4 Insurance for maritime claims
1. Each Member State shall require that shipowners of ships flying its flag have insurance covering such ships.
2. Each Member State shall require shipowners of ships flying a flag other than its own to have insurance in place when such ships enter a port (or operate in the territorial waters) under the Member State’s jurisdiction.
3. The insurance referred to in paragraphs 1 and 2 shall cover maritime claims subject to limitation under the 1996 Convention. The amount of the insurance for each and every ship per incident shall be equal to the relevant maximum amount for the limitation of liability as laid down in the 1996 Convention.
Article 5 Inspections, compliance, expulsion from ports and denial of access to ports
1. Each Member State shall ensure that any inspection of a ship in a port under its jurisdiction in accordance with Directive 2009/16/EC (Port State Control), includes verification that a certificate referred to in Article 6 is carried on board.
2. If the certificate referred to in Article 6 is not carried on board, and without prejudice to Directive 2009/16/EC providing for detention of ships when safety issues are at stake, the competent authority may issue an expulsion order to the ship which shall be notified to the Commission, the other Member States and the flag State concerned. As a result of the issuing of such an expulsion order, every Member State shall refuse entry of this ship into any of its ports until the shipowner notifies the certificate referred to in Article 6.
Article 6 Insurance certificates
1. The existence of the insurance referred to in Article 4 shall be proved by one or more certificates issued by its provider and carried on board the ship.
2. The certificates issued by the insurance provider shall include the following information:
(a) name of ship, its IMO number, and port of registry;
(b) shipowner’s name and principal place of business;
(c) type and duration of the insurance;
(d) name and principal place of business of the provider of the insurance and, where appropriate, the place of business where the insurance is established.
3. If the language used in the certificates is neither English nor French nor Spanish, the text shall include a translation into one of these languages.
Article 7 Penalties
For the purposes of Article 4(1), Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, pro-portionata and dissuasive, (own emphasis).
Article 8 Reports
Every three years, and for the first time before 1 January 2015, the Commission shall present a report to the European Parliament and to the Council on the application of this Directive.
Article 9 Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 2012. They shall forthwith inform the Commission thereof.
Article 10 Entry into force
This Directive shall enter into force on the day following its publication in the Official Journal of the European Union (Official Journal L 131,28/05/2009 P. 0128 — 0131)
Comments on the Directive
This Directive only concerns Liability Insurance (P&I), not H&M insurance.
Member States have till January 01, 2012 to bring their national law into conformity with the contents of this Directive. It is left open to the Member States to decide how they will implement the contents of these Directives, as long as it fits with the requirements of the Directive.
E.g. Belgium will almost literally take over the wording of the Directive. France has simply stated in its national law that as from January 1, 2012, ships should have insurance according to the provisions of the EU Directive. But both countries will leave absolute contractual freedom between Underwriters and Shipowners regarding terms, conditions, premium, deductibles etc., as long as the requirements of Article 4 (limits of cover) are met. There will be no model policy or compulsory policy from issued by the EU or the Member States.
Article 3 (b) refers to: «indemnity insurance of the type currently provided by members of the International Group of P&I Clubs, and other effective forms of insurance …» (own emphasis).
The question therefore arose: will Insurance Certificates provided by Russian P&I Underwriters (Non-IG) be acceptable as «other effective form of insurance»? The answer to this question has to be viewed together with the obligations mentioned under Article 6. This Article 6 mentions the details to which these Insurance Certificates will need to respond. One important item concerns the «… (d) name and principal place of business of the provider of the insurance and, where appropriate, the place of business where the insurance is established.» (own emphasis).
Therefore, at the end, the question is whether the national competent authorities of the various European Countries (e.g. the Belgian Maritime Authorities) will accept to have to serve their claim documents (e.g. in case of an oil spill or wreck removal operation) in Russian language in Russia (through the complete channel of Belgian and Russian Ministries of Foreign Affairs), and what’s more: how will they get their money out of Russia to settle the claim (especially as there is no treaty on the enforcement of judicial decisions between the EU and e.g. the Russian Federation? After discussions with the Belgian Ministry of Transport, we managed to convince them that being the Official Belgian (European) Correspondents for e.g. In-gosstrakh, Rosgosstrakh, VSK, Reso-Garantia, Allianz Ru, Alfas-trakhovanie, their insurance certificates, although non-IG P&I Underwriters, will be acceptable because the Belgian Authorities can serve all official documents with us in Belgium without need to officially translate and serve them in Russia.
Also, the full claims handling towards the national authorities (in our example Belgian) can be done through the local correspondents. It is therefore VERY IMPORTANT to have together with the required insurance certificate, also the updated List of Correspondents on board of each vessel! Remember, the consequences of a failure to have the proper / effective insurance certificate on board will result in following sanctions:
- the detention of ships in case of absence of certificates which have to be on board
- possibility of expelling a ship which does not carry a certificate of insurance
- refuse entry of this ship into any EU port until the shipowner notifies the certificate of Insurance required as per Article 6
- penalties : they shall be effective, proportionate and dissuasive!
About the author:
Jean-Pierre Vanhooff Lie. Jur., LLM. London, CNI.
Having graduated from Antwerp University Law School in 1980 and having obtained his Master of Laws Degree at London University College in 1982 — both with specialisation in maritime Law and Marine Insurance -, he has ever since been working as Marine Claims handler with P & I Club Correspondents, Marine Insurance brokers, Traders and Salvors.
He started Transport Claims Consultants Network cvba in November 1998 where he is Senior Partner Adjuster and Director. In 2001 he created Africa Marine Surveys, a specialized network of qualified surveyors (Cargo, P&I and H&M) in Africa, but controlled out of Antwerp. Author and co-author of various articles and books on Maritime Law and Marine Insurance, he also regularly gives lectures and workshops on these subjects and acts as Guest Professor at the Antwerp University for a Post Graduate course on International Transport and Maritime Management.
He is a Member of the Belgian Association of Average Adjusters, of the Belgian Study Group for Marine Insurance, and of the Nautical Institute, Belgian Branch. He is mainly dealing with F.D.&D. cases, stevedoring and chartering contracts, Salvage and General Average cases, and with Crisis Control interventions.
Источник: Морское страхование. — 2012. — № 1. — С. 64 — 67.