Предмет рассмотрения в настоящей публикации – иски против российских страховщиков – тема насколько болезненная, настолько и полезная. Поскольку известно, что именно взгляд со стороны позволяет, исправляя ошибки, совершенствовать себя и отрасль в целом. Автор с оптимизмом смотрит в будущее российского морского страхования, ведь ключевые моменты, необходимые для успеха, – высокое качество услуг и стабильность, уже стали главными его характеристиками.
| In many ways, Hull and Machinery Insurance is just like any other business. The ship owner purchases the right to be compensated for his loss in the event of a loss arising from an agreed type of risk. Marine insurers and ship owners are business partners in the same venture and each depends on the other. In Russia, the partnership between marine insurers and ship owners works well, most of the time. However, from my perspective as a maritime lawyer involved in numerous claims between Russian marine insurers and non-Russian flagged ship owners, I have often seen problems arise in this partnership which might be easily resolved if both sides took a few simple steps. |
Law and Jurisdiction of the Policy
Most ship owners and brokers as well as Russian marine insurers are comfortable with English law and jurisdiction, and this has a long tradition in the international maritime industry. As a consequence of this long tradition, judges sitting on the High Court of England have much experience to rely on when it comes to deciding issues of marine insurance. But how useful is this when the marine insurer is a Russian company?
When the policy is governed by English law, lawyers acting for both the marine insurer and the ship owner can refer to a history of over 400 years of decided cases to help understand a question under the policy. This long history, combined with a highly developed and stable legal system, usually results in more certainty and clarity between the parties, and often means that any dispute can more easily be resolved amicably. If both sides know what the English Court will decide before they go to court, it is much more likely they will settle the matter before the dispute gets that far. This is one of the most important advantages of choosing English law to govern the policy of marine insurance – the parties are more likely to know the answer before they get to court.
Though English law has its advantages, what about English jurisdiction? Is it really in the interests of the foreign flagged ship owners and the Russian marine insurer to choose English jurisdiction to resolve disputes under the policy?
The long and expensive road to Russia
One practical problem with English jurisdiction is that before proceedings in the English High Court can be commenced, some Russian marine insurers will insist that they be “served” with the claim documents at their offices in Russia in accordance with “the Hague Convention” the full name of which in Russian is the “Конвенция о вручении за границей судебных и внесудебных документов по гражданским или торговым делам, подписанная в Гааге 15 ноября 1965 года”. It is not a mandatory requirement that the documents be served in this way. A Russian marine insurer could appoint lawyers in England to accept service, or they could agree to be served by post, email or fax.
The practical consequence of a Russian marine insurer insisting they be served in accordance with the Hague Convention is that under circumstances where 1 ) both parties have chosen English law and Jurisdiction to decide any legal question, 2) all documentation is in English including the policy itself, and 3) everyone dealing with the claim understands English very well; all documents related to the claim must, in accordance with the Hague Convention, be translated into Russian and certified by a Russian translator. This can take months to arrange, is expensive, and serves no purpose other than to create delay and expense for the claimant.
Special permission from the English Court must be obtained to serve outside of England, and all documents related to the request for permission to serve outside of England must also be translated. These are then handed over to the Foreign Process Section of the High Court of England and Wales which will, in its own time, transmit the documents to the Russian Foreign Ministry.
Once this file of documents reaches the Russian Foreign Ministry, it eventually finds its way to the regional court in the district where the insurance company is registered, and then to the local court. A kind of hearing is held, and eventually, the documents will be served by a Court bailiff. A “receipt” for service then finds its way back to England by the same path, and at this stage, between 5-24 months later, the ship owner will have officially started the litigation process in England.
Such delay and expense could be easily avoided if the parties agreed to incorporate an English address for service of any claim, directly into the policy. If the parties are prepared to agree English law and jurisdiction, then they should also be prepared to agree that in the event of a claim, any legal document may be served on the other party in England, at a particular specified address. This can be any address nominated by the parties and might be for example, the address of brokers, lawyers, or a special company which specialises in receiving documents.
Specifying an address for service in England would have advantageous to both parties. For the ship owners, the advantages are obvious. Any claim could be commenced without the cost and delay of translating all the documents into Russian and waiting up to two years for service to be effected via the Hague Convention procedure. But there are also advantages for the Russian marine insurer. Any disputes might be resolved more quickly since many cases are settled amicably after proceedings have been commenced and the parties understand the cost consequences of losing a claim in England. When disputes are resolved quickly, they are less expensive both in terms of legal costs and interest payable.
Co-insurance
Another area where foreign flagged ship owners and Russian marine insurers sometimes face problems, is with respect to co-insurance. This is the practice whereby a group of insurers operating in the international market agree to share a risk, and in return, each marine insurer receives a share of the premium, in proportion to the risk taken by that insurer.
No ship owner in his right mind would agree to this, if it meant that he would need to fight his claim against each marine insurer separately. That is why this type of policy often will include a “follow the leader clause”.
One such clause was considered in the High Court in London in PT Buana v Marine Mutual Insurance [2012] Lloyd’s Rep. IR 52; it read:
“It is agreed to follow AXA HK in respect of all decisions, surveys and settlements regarding claims within the terms of the policy, unless these settlements are to be made on an ex gratia or without prejudice basis”.
The Court held that the co-insurer was obliged to follow the leader’s decision whether or not there had been a breach of warranty. In another High Court decision, Roar Marine v. Bimeh Iran [1998] 1 LLR 423, it was held that the words “it is agreed with or without previous notice to follow leading british underwriters in regard to …settlements in respect of claims…” meant that not only did the following Iranian co-insurer have to follow the lead’s settlement but that the clause was not even subject to an implied condition that the settlement should be “proper and businesslike”. These “follow the leader” clauses will always be interpreted according to their wording so it is important to ensure that they say exactly what the parties mean but, properly drafted, such clauses will oblige the following co-insurer to follow the leader’s settlements in most circumstances.
Non payment of disputed claims by the followers
Some Russian marine insurers, with good reason, feel uncomfortable following a leader that has less risk than they do. Other Russian marine insurers consider that, despite the “follow the leader” clause, they are entitled not to make payment if they do not agree that the claim should be paid. Unfortunately, both of these views are very often incorrect and not part of the bargain they signed up for when the accepted the premium. Usually, except in cases where there is fraud, marine insurers must follow the decision of the leader, irrespective of whether or not they agree with the leader, and it is simply not relevant, as a matter of English law, how much risk the leader is exposed to.
The solution to this problem is simple if any Russian marine insurer does not feel comfortable giving up their right to consider the merits of the claim, then they must stay away from underwriting marine coinsurance where they are not the leader.
Non payment of undisputed claims by the follower
Another problem with co-insurance is that there are often different standards of evidence required by different Russian marine insurers before agreeing to follow the leader. It is common practice in the international marine market for the “leader” to send an email confirming they agree to pay and this is enough to require the “followers” to pay their share.
In contrast to this market standard practice, some Russian marine insurers will often ask for all sorts of documents, in their original form, from the lead marine insurer, surveyor and ship owners before paying their fair portion of their claim. This is costly, inefficient, and often unnecessary. The reality is that many of these documents are requested out of an abundance of caution on behalf of Russian marine insurer, and their accounting and legal departments. Are they really necessary?
There are two possible solutions to this problem. First, Russian marine insurers could agree specific procedures and documents necessary in the event of a claim, with their legal and accounting departments and work with their regulators to make the requirements more specific and clear. Second, once those requirements are clear, they should be specified in the co insurance policy so that the international brokers, co insurers and ship owners all know what documents need to be produced, before the claim arises. Unfortunately just a few Russian marine insurers do this.
Self regulation of substandard underwriters
Ship owners around the world have mixed views of Russian Marine Insurance. On the one hand, the highly skilled personnel involved in the claims and underwriting process are well recognised. Also well recognised is the good record of most Russian marine insurers in paying good claims and acting as a supportive partner in the ship owners’ business.
On the other hand, there have been, in recent years, a few “bad apples” which might spoil the reputation of the whole bunch. These substandard Russian marine insurers at first pay out claims , usually small claims, in order to build trust and confidence in the market, and then after collecting healthy premiums, suddenly start to reject almost every claim, good and bad, including those claims where they are required to “follow the leader”. These substandard marine insurers have the effect of bringing down all of the Russian marine insurance market, and thereby reducing premium income for both good and bad underwriters. Despite the fact that some Russian marine insurers have been around for a long time and are well established, I am told that many in the international marine insurance market still regard Russian marine insurance as an emerging market. As a result, it is almost always judged collectively, not as individual companies. That means that substandard marine insurers have a disproportionately bad effect on responsible marine insurers’ ability to earn premium income.
We live in an age where the international maritime community is working to eliminate substandard shipping. As marine insurers are essential partners in the ship owners business, similar efforts could be made by the Russian marine insurance industry to eliminate substandard marine insurers. In my opinion, it would not be correct to look only to the Russian government to solve this problem. The industry itself can take more responsibility for regulating itself. For example, the Russian Union of Marine Insurers have starting taking a more proactive role in this direction and their efforts could be supported by other shipping unions in Russia.
Russian marine insurance has a bright future because of its highly skilled underwriters and claims handlers. There are Russian marine insurers who are stable, prudent and who provide highly valued services to ship owners around the world. If steps can be taken that will facilitate the resolution of claims and eliminate substandard underwriters who
continue to operate in the Russian marine insurance market, it will be to the benefit of the Russian marine insurance market as a whole.
Автор:
George LAMBROU,
a London based Partner at Thomas Cooper
Источник: Морское страхование. – 2013. – № 1. – С. 42 – 45.