COMPULSORY P&l INSURANCE IN EUROPE AS FROM JANUARY 1,2012

27 Апр

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:

Whereas:

…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

CONCLUSION:

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.