(As noted in Issue 122 the Editor of this column would visit ITC-Hulls 1/10/83 with the assistance of the one “ITC HULLS 1.10.83” which was written by Mr. D. John Wilson who kindly allowed the Editor copyright on his book for any future editions.)
Almost every accident to a ship results in the Ship-owner or Manager encountering considerable extra work and, for instance, in the case of a serious stranding, this might include arranging for
- Entry into a port of refuge,
- Towage to another port for repairs,
- Temporary and/or permanent repairs,
- The obtaining of spare parts and forwarding to the port of repair,
- Superintendence of the repairs,
- Settlement of repair accounts,
- Salvage security,
- All General Average formalities, etc.
Actual out-of-pocket expenses incurred in making these various arrangements have always been claimable from Underwriters, but it has also been an established practice that the Owner (repeat, Owner) of a ship was not entitled to claim any remuneration for his own time and trouble on such affairs, whether as general or particular average.
The Association of Average Adjusters have a Rule of Practice No. A3 on the subject dating from 1906 and reading as follows:
AGENCY COMMISSION AND AGENCY
That, in practice, neither commission (excepting bank commission) nor any charge by way of agency or remuneration for trouble is allowed to the shipowner in average, except in respect of services rendered on behalf of cargo when such services are not involved in the contract of affreightment.
Over the years, however, and for various reasons, many ship-owners have formed separate companies to manage their ships for them – or have employed specialist ship managers – and these management companies have often put forward a separate fee for the extra work to which they were put in attending to the average matters listed earlier, plus their work of collecting the necessary documents and presenting them for adjustment purposes. Whether such fees were permissible under the management contract is not known, but they were often claimed from and paid by hull underwriters.
Thus, over many years a practice has grown of allowing an agent or manager acting on the Assured’s behalf to charge a fee for the work involved in compiling the Assured’s claim for the Assured to recover this as part of the claim on policies of insurance on hull and machinery which is subject to English law and practice. There is probably no parallel in any other branch of insurance. However, as noted earlier, a ship-owner who manages his own ships and presents his own claims, cannot enjoy the privilege. This produces a result which can be termed anomalous and this anomaly is even more marked where the difference between the management company and the ship owning company is little more than a technicality.
At one time it was considered whether the charges should not be allowed to any management or agency company which was a subsidiary or in any way affiliated to the ship-owning company. In 1970, a Special Committee of the Association of Average Adjusters, which included representatives of Underwriters and Ship-owners, was appointed to consider the above-mentioned Rule of Practice in the light of modern conditions and make such recommendations as might be thought fit regarding its revision. After considerable consideration, a Report was issued on 22nd January 1971 wherein “it was unanimously agreed that the present Rule of Practice should remain unaltered and the Underwriters’ Representatives would consult their principals for agreement that the present practice of allowing agency fees where these had been incurred in connection with the average be continued but reserving the right to question the quantum of such fees if considered unreasonable.” Evidently, in practice Underwriters have continued to pay for the fees charged by vessel Owners’ managers for the time spent handling damage claims, dealing with brokers, surveyors, lawyers, adjusters and others, if they appear to be reasonable.
A further point which needs stating is that it was often the management company which appointed the average adjuster and, human nature being what it is, it was sometimes difficult for the average adjuster to contain the fees proposed by the management company within reasonable bounds. Thus, allowance of large agency fees was not uncommon.
In 1983 the London market introduced a completely new set of Institute Clauses for the insurance of the hull and machinery of ocean-going (blue water) vessels to be used in conjunction with the new Marine Policy Form. Obviously, Underwriters seized the opportunity to exclude liability for remuneration in connection with a claim altogether, whether to a ship-owner or to a managing company. The wording they have chosen as follows (Clause 17 of ITC-83) does not seem to reflect their intention:
17 AGENCY COMMISSION
In no case shall any sum be allowed under this insurance either by way of remuneration of the Assured for time and trouble taken to obtain and supply information or documents or in respect of the commission or charges of an manager, agent, managing or agency company or the like, appointed by or on behalf of the Assured to perform such services.
A straight construction of these words means that fees payable to a management company for those services listed earlier in these comments may still continue to be claimed and paid. Indeed, by inference, perhaps, even a ship-owner operating his own ships should now be entitled to claim similar remuneration?
In practice, however, Underwriters have made it clear that their intention was to exclude all claims for remuneration by the Assured, their managers or agents for time and trouble incurred on any aspect of a claim. Accordingly, ship’s proportion of agency fee allowable in general average would need to be deducted from the claim on policy of insurance subject to ITC – Hulls 1/10/83.
For the record, whilst it was blindingly obvious, without any form of explanation, that agency charges included in a port agent’s general account covering expenses incurred in respect of the vessel thereat are not excluded by the terms of this Clause, to avoid the risk of having the settlement under the adjustment delayed, at one time, the following explanatory note, or similar, would appear in the adjustment:
The fee charged in the above account represent charges of port agents for handling operations connected with the vessel at the port. Allowance therefor is not excluded by the terms of Clause 17 of the Institute Time Clauses – Hulls 1/10/83.”
It is noted that the wording of Clause 17 of the ITC – Hulls 1/10/83 is the same as Clause 19 of the International Hull Clauses (01/11/03).
Understandably, it is not uncommon to see Ship-owners special clauses incorporated in the hull and machinery policies of insurance subject to ITC – Hulls 1/10/83 specifically delete the Clause 17, thus enabling the Assured to enjoy the pre-1983 practice mentioned earlier.
No equivalent provisions are to be found in the American Institute Hull Clauses but it is noted that in practice Underwriters in the American Market would not pay for any agency charge which was made by the Assured himself. For Underwriters to entertain payment, the charge would necessarily have to be made to the Assured – Owner by a managing agent or company.
Section 69 (3) of the Marine Insurance Act 1906 provides that :
“Where the ship has not been repaired, and has not been sold in her damaged state during the risk, the assured is entitled to be indemnified for the reasonable depreciation arising from the unrepaired damage, but not exceeding the reasonable cost of repairing such damage”.
Until about 1950 there was a well-established practice in the London market for negotiating any claim for unrepaired damage. It was generally on the following lines:
- Where the ship was sold, to endeavour to find out what price the purchaser of the vessel would have paid for her if the damage did not exist, subtract the actual price paid, and claim from Underwriters in respect of the difference – (always assuming that this difference was less than the cost of repairing the damage!)
- Where the ship was not sold, to take the basic cost of repairs as estimated by Underwriters surveyor, generally to ignore dry-docking and other incidental charges, and to offer the Assured a figure less than this sum, the amount depending on the likelihood of whether or not the damage would eventually be repaired.
That is to say, prior to 1950 the settlement of claims for unrepaired damage was based on what the market considered to be the pure principle of Marine insurance, i.e. to INDEMNIFY the Assured for the actual amount he had lost – or was likely to lose – by reason of the unrepaired damage, and with the settlement based solely on the estimated cost of repairs and ignoring the insured value (other than as a limit on the amount payable).
There then followed a series of law cases in England and the U. S. A., including Elcock v.Thomson (1949), Irvin v. Hine (1949), the “Armar” (1954), and Delta Supply Co. v. Liberty Mutual (1963),
and these cases introduced the Insured Value of the vessel into the calculation. Although never challenged by Underwriters in the Courts (e. g. see the “Medina Princess” – 1965), they regarded the introduction of the Insured Value into the calculation as something of an irrelevance, in the sense that any claim for repairs actually carried out was payable in full, regardless of whether the real value of the ship was over – or under – insured.
The position under the legal cases is best demonstrated by an extreme example where an elderly
ship with a sound market value not much more than her scrap value sustains a serious damage, e. g.:
The Courts decided that this 40% Depreciation was to be applied to the Insured Value of the vessel and the legal claim on underwriters to be either:
- a) The resultant figure, or
- b) The estimated cost of repairs,
whichever was the less. For example:
It will be appreciated that the real loss sustained by the assured as the result of the accident is only the difference between the sound and damaged values, – i.e. 200,000 – but as most ships tend to be insured for more than their real value, the general effect of the legal cases was to produce a much larger claim for the assured, i.e.:
The London market introduced a new clause in 1983 dealing with the vexed question of unrepaired damage; Clause 18 of the ITC-Hulls 1/10/83 reads as follows:
- UNREPAIRED DAMAGE
18.1 The measure of indemnity in respect of claims for unrepaired damage shall be the reasonable depreciation in the market value of the Vessel at the time this insurance terminates arising from such unrepaired damage, but not exceeding the reasonable cost of repairs.
18.2 In no case shall the Underwriters be liable for unrepaired damage in the event of a subsequent total loss (whether or not covered under this insurance) sustained during the period covered by this insurance or any extension thereof.
18.3 The Underwriters shall not be liable in respect of unrepaired damage for more than the insured value at the time this insurance terminates.
Clause 18.1 overrides the effect of the legal cases and, to a large extent, re-introduces the pre-1950 practice mentioned earlier. The Insured Value will be ignored, other than as a limit on the amount of the claim.
Clause 18.2 is a restatement of the position under English as codified by Section 77(2) of the Marine Insurance Act 1906, which provides that :
“Where, under the same policy, a partial loss, which has not been repaired or otherwise made good, is followed by a total loss, the assured can only recover in respect of the total loss”
The purpose of a marine insurance policy is to indemnify the Assured for losses which he sustains as the result of perils insured against and, in general, a ship-owner does not sustain any loss until he repairs the damage and incurs the cost of those repairs. It follows, therefore, that if the vessel becomes a total loss before an earlier damage has been repaired, the Assured loses nothing by reason of that earlier accident.
English law applies the principle that “the greater absorbs the lesser”, and the subsequent total loss overrides and/or absorbs the earlier damage.
Even if the subsequent total loss is the result of some peril excluded – or not covered – by the policy, the same rule of “the greater absorbing the lesser” still applies, and there is no claim for the earlier partial loss left unrepaired – see the legal cases of Livie v. Janson (1810) and Wilson Shipping Co., Ltd. v. British and Foreign Marine Insurance Co., Ltd. (1919).
It should be noted that the above remarks apply only to situations where both the earlier partial loss and the subsequent total loss occur on the same policy.
As soon as a policy expires, the Assured has a legal right to claim from his Underwriters in respect of any damage sustained during the currency of that policy and which is presently unrepaired. The agreed insured value in the succeeding policy is assumed to take account of the fact that the vessel was then in a damaged condition (even though the matter was probably not considered by Ship-owners or Underwriters at the time) and in the event of a total loss occurring on that following policy, the full insured value will be paid, while a claim for supposed depreciation will be paid on the earlier policy.
This point was covered in the interesting case of Lidgett v. Secretan (1871), where a vessel sustained damage during the currency of one policy and, while repairs were being carried out – but during the currency of a following policy – the vessel caught fire and was totally lost, The Underwriters of the first policy were held liable to pay the cost of the repairs actually completed at the time of the fire, plus a claim in respect of the unrepaired damage, while the Underwriters of the second policy were liable for a total loss and the full insured value. A very complete indemnity!
Clause 18.3, limiting claims to the insured value, was introduced to the ITC Hulls only in 1983 and relates to the equally new provisions in Clause 1.3 where the original insured value of the vessel may be reduced to some lower figure if the vessel sails for the purpose of being broken up.
Lines 117/119 of the American Institute Hull Clauses (June 2, 1977) reads as follows:
No claim for unrepaired damages shall be allowed, except to the extent that the aggregate damage caused by perils insured against during the period of the Policy and left unrepaired at the expiration of the Policy shall be demonstrated by the Assured to have diminished the actual market value of the Vessel on that date if undamaged by such perils.
The wording is quite different from the ITC Hull clause, but the effect of both is identical in that the judgements of the British and American courts have been set aside as commercial irrelevancies. To support a claim, the Assured must demonstrate that the damage left unrepaired when the policy expired has actually brought about a depreciation in the vessel’s value. The AIHC do not state that the indemnity cannot exceed the estimated reasonable cost of repairs as do the ITC Hulls, but, of course, that is also the position in the American market.
The following self-explanatory wording is commonly seen under the Ship-owners Special Clauses incorporated in hull and machinery policies of insurance:
“Underwriters’ liability in respect of unrepaired damage will be the estimated cost of repairs at the first reasonable opportunity including estimated dry-dock and services, tank cleaning, superintendence and removal, if necessary.”
It is an amazing surprise that the Institute Time Clauses – Hulls 1/10/83 (ITC-83) remain widely used after some 34 years in hull and machinery insurance policies!
There were indeed attempts to modernize hull insurance cover, through a 1995 version of the ITC wording and the International Hull Clauses (IHC) 2003, but both failed to attract much market support. In early April this year, it was reported that leading London underwriters would review the ITC-83 to see how they could be improved to meet current ship-owners and underwriters needs.
Understandably, Assureds likely believe the devil they know is better than the devil they do not know. However, it is very common to see hull and machinery policies incorporating ITC-83 but adding on ship-owners’ special clauses with favourable wording either tailor-made or extracted from IHC and/or other hull forms.
For the next few issues of Seaview, the Editor of this column will revisit ITC-83 with an emphasis on claims-related clauses, identifying the major differences with the American Hull Form (which is being used by a few large fleets in Hong Kong). There are plenty of analyses of the ITC-83 by English local market experts; the Editor would however comment with the assistance of the one “ITC HULLS 1 10 83” which was written by Mr. D. John Wilson, a well-respected average adjuster.
The Editor wrote in 1988 the following Forward for the Chinese version of the “ITC HULLS 1 10 83”, which was published in Taiwan:
I knew Mr. D. John Wilson by name in 1969 through the book he wrote on the ”One Hundred Year of The Association of Average Adjusters 1869-1969”. I met John in London in 1973 when, in conjunction with the present Lord Donaldson, Master of the Rolls, and Lord Justice Staughton, he was editing the current tenth edition of the British Shipping Laws, Vol.7 – the Law of General Average and the York-Antwerp Rules.
For years John has enjoyed the somewhat daunting and unending task of helping the juniors of the Richards Hogg Group progress with their studies and average adjusting work. He was indeed the man I had to satisfy before being put forward to sit for the examination of the Association of Average Adjusters (AAA).
We had the opportunity of working together in Hong Kong for a couple of years. Apparently, he gained the impression that I was an interested person so that when I was visiting Tokyo where he was resident in August 1984, he granted me the privilege of reading his more or less final draft on the ITC HULLS – 1.10.83. When I had read it from cover to cover, I was fully convinced that it would be the best (and perhaps the first) analysis and comparison of some of the clauses issued by the Institute of London Underwriters covering Hull, Freight, Disbursements and Excess Liabilities etc. plus the American Institute Hull Clauses. I immediately asked John if he would allow the book to be translated into Chinese. He gave his consent without hesitation but in return I had to make him a chop for his Chinese name.
Whilst I was deliberating how I should proceed with the translation, my colleague in Taipei, Edmund Chen, completely out of the blue, told me enthusiastically on the phone that he and Ms. Christine Wang would take up this formidable task. Having now read the Chinese version, I believe that the joint vigorous effort of Christine and Edmund is going to be of great value to any Chinese practitioners and students in the field of shipping and/or insurance. My heart-felt congratulations on their success.
As the Chairman of the AAA 1987/1988 John wrote an extremely valuable booklet on “The Insurance of Average Disbursements and other Subsidiary Interests following a Marine Casualty” which was published by the Association in May 1988. John, I understand, is now working on the new edition of the British Shipping Laws, Vol.7 – the Law of General Average and the York-Antwerp Rules.
The Editor understands that John’s Analysis of the 83 Clauses was largely prepared for the Japanese market and the leading insurers there did all the printing, a copy was given to the Editor personally by John who kindly allowed him (the Editor) copy right on this book for any future editions.
It is worth reminding readers that the ITC-83 state that the insurance is subject to English law and practice, meaning that, subject to any overriding provision in the policy, the Marine Insurance Act 1906 and the UK Insurance Act 2015 will apply.
CONSTRUCTIVE TOTAL LOSS
A Constructive Total Loss is defined by section 60 of the Marine Insurance Act 1906, which is subject to any express provision in the policy. In ascertaining whether a ship is a constructive (or commercial) total loss and not worth repairing, a prudent uninsured owner would have regard to three main factors:
- The estimated cost of repairing the ship,
- The estimated value of the “wreck” as scrap, and
- The estimated value of the ship when repaired.
As a general rule, if 1 + 2 is greater than 3, then the vessel is a C.T.L.
It will be noted that each of these three factors depends on an estimate, always a somewhat flexible or “elastic” figure.
An uninsured owner has only himself to consider when evaluating these estimates and making his decision whether to repair or scrap the vessel, but the position is totally different when the vessel is insured. Each estimate will then provide a fruitful source for argument between the parties, more particularly when it is recognized that so much money used to be at stake under the particular conditions of an old fashioned policy of marine insurance subject only to the provisions of the Marine Insurance Act.
If the ship-owner under such a policy was able to demonstrate that the vessel was a constructive total loss and not worth repairing, on an estimated sound value of the ship when repaired of, e.g 500,000 he was entitled to recover the full insured value of the vessel – whatever that might be, e.g.1,000,000 plus his subsidiary insurances, if any, on Freight & Increased Value, etc. of a further, say 250,000, will equal 1,250,000.
In addition (and although this does not concern the ship-owner himself), many reinsurances of the ship on Total Loss Only conditions would be affected by the decision of the original hull underwriters as to whether or not the vessel was a constructive total loss.
Clause 19 of ITC-83 does contain an express provision, which reads as follows:
19. CONSTRUCTIVE TOTAL LOSS
19.1 In ascertaining whether the Vessel is a constructive total loss, the insured value shall be taken as the repaired value and nothing in respect of the damaged or break-up value of the Vessel or wreck shall be taken into account.
19.2 No claim for constructive total loss based upon the cost of recovery and/or repair of the Vessel shall be recoverable hereunder unless such cost would exceed the insured value. In making this determination, only the cost relating to a single accident or sequence of damages arising from the same accident shall be taken into account.
To reduce the areas of possible dispute between ship-owners and underwriters in ascertaining whether the vessel is a constructive total loss, this clause provides that:
The insured value shall be taken as the repaired value, and Nothing in respect of the damaged or break-up value of the vessel or wreck shall be taken into account.
There is thus only one factor left within the realms of estimate – (the likely cost of repairing the ship) – and, further, that estimated repair cost must be compared with the insured value of the ship instead of her market value. In practice, most ships tend to be insured for more than their market value and it becomes more difficult, therefore, for the assured to demonstrate a constructive total loss and thereby enable him to recover the insured value of his vessel, plus any sums insured on subsidiary insurances such as Freight & Increased Value.
The first sentence of Clause 19.2 sets out in greater detail and reiterates what is already implied in the first section of the clause, i. e. that
“No claim for constructive total loss based upon the cost of recovery and/or repair of the Vessel shall be recoverable hereunder unless such cost would exceed the insured value.”
The second sentence of Clause 19.2 was largely borrowed from the American Institute Hull Clauses ( June 2, 1997 ). The clause provides that only the costs relating to a single accident may be taken into account in determining whether the vessel is a constructive total loss. This resolves a problem which had been discussed for many years and which was mentioned in the case of the “Medina Princess” (1965) and also in his address to the Association of Average Adjusters in 1982 by Lord Justice Donaldson, later Master of the Rolls.
For example, a vessel insured for 1,000,000 might sustain damage by grounding, repairs to which were deferred, but which would cost……………………………………………………………………………………….. 400,000
Subsequently, the vessel is involved in a collision or some other accident, repairs to
which would cost ………………………………………………… …………………………..…….…. 650,000
Clearly, the vessel is a constructive total loss within the terms of Clause 19.1, but should the assured be entitled to claim the insured value of the vessel, plus the sums insured on his subsidiary insurances, – and that without the application of any policy deductibles (under Clause 12.1 )? Or should his claim be limited to one for Unrepaired Damage (under Clause 18 ) and be subjected to the application of the policy deductibles?
As already stated, this problem has now been resolved and a claim for constructive total loss can only be based on the costs relating to a single accident.
- Costs of recovery &/or repair of the Vessel which may be included in computing a C.T.L.
- Repairs to hull and machinery of the vessel, including spare parts
- (Add) 10% for contingencies – as recommended by the “Renos” 2016
- Air freight on spares
- Cost of dry-docking and general services
- Superintendent’s fees and expenses
- Towage to repair port (including crew wages and maintenance, bunkers, etc.)
- Cost of discharging cargo necessary to enable repairs be effected
- Cost of Class survey
- Port charges, pilots, towage, etc.
- General Average contributions payable by ship (cargo sacrifice)
- Cost of salvage of the vessel
- SCOPIC liability – as upheld by the Court of Appeal in the “Renos” 2018
Lines 134/139 of the American Institute Hull Clauses (June 2, 1977) reads as follows:
In ascertaining whether the Vessel is a constructive Total Loss the Agreed Value shall be taken as the repaired value and nothing in respect of the damaged or break-up value of the Vessel or wreck shall be taken into account.
There shall be no recovery for a constructive Total Loss hereunder unless the expense of recovering and repairing the Vessel would exceed the Agreed Value. In making this determination, only expenses incurred or to be incurred by reason of a single accident or a sequence of damages arising from the same accident shall be taken into account, but expenses incurred prior to tender of notice of abandonment shall not be considered if such are to be claimed separately under the Sue and Labour clause.
The provision is largely of identical effect to their counterparts in the ITC-83, the difference being that the American Hull form specifically state that “expenses incurred prior to tender of notice of abandonment” and “are to be claimed separately under the Sue and Labour clause” cannot be ranked when calculating the cost of recovery and repairs of the vessel.
Ship-owners Special Clauses
The following self-explanatory wording is commonly seen under the Ship-owners Special Clauses incorporated in the hull and machinery policies of insurance (the wording being the same as Clause 21 of the IHC 2003):
21. CONSTRUCTIVE TOTAL LOSS
21.1 In ascertaining whether the Vessel is a constructive total loss, 80% of the insured value shall be taken as the repaired value and nothing in respect of the damaged or break-up value of the Vessel or wreck shall be taken into account.
21.2 No claim for constructive total loss based upon the cost of recovery and/or repair of the Vessel shall be recoverable hereunder unless such cost would exceed 80% of the insured value. In making this determination, only the cost relating to a single accident or sequence of damages arising from the same accident shall be taken into account.
Furthermore, there are other clauses amended to the effect that it would be necessary to show costs up to 80% of the Insured Value or Market Value at the Assured’s option (or whichever is lower).
Raymond T C Wong
“…, the law cannot be decided by what is understood among writers and practitioners in the relevant field … Experience shows that in many areas of practical and professional endeavour generally accepted points of principle and practice, when tested in court, sometimes turn out to be unsustainable. I accept that it may be right for a court to have regard to practices which have developed and principles which have been adopted by practitioners, but they cannot determine the outcome when the issue is ultimately one of Law.”
Lord Neuberger in “The Longchamp” 
Included in Issue No.118 is “An Adjusters’ Note on Substituted Expenses and Ransom Payments” contributed by Richards Hogg Lindley following the Commercial Court judgment on “The Longchamp” case having been reversed by the Court of Appeal, highlighting that the position under English law with regards to Rule F of the York-Antwerp Rules reverted to the position being in line with the views of the majority on the Advisory Committee of the British Association of Average Adjusters.
The Editor, however, did mention in this column that “Readers are reminded that the “Longchamp” case where the Court of Appeal has reversed the 2014 High Court judgment is coming up for trial in the Supreme Court.”
The Supreme Court, on 25th October 2017, allowed the Appeal, thus overruling the decision at the Court of Appeal.
The case has been widely reported but for sake of completeness and easy reference, the Editor would repeat briefly summary of the factual backgrounds and decisions.
On 29 January 2009 the chemical carrier MV Longchamp (“the vessel”) was transiting the Gulf of Aden on a voyage from Rafnes, Norway, to Go Dau, Vietnam, laden with a cargo of 2,728.732 metric tons of Vinyl Chloride Monomer in bulk (“the cargo”). The cargo was carried under a bill of lading dated 6 January 2009 which stated on its face that “General Average, if any, shall be settled in accordance with the York-Antwerp Rules 1974”.
At 06.40, seven heavily armed pirates boarded the vessel. The pirates commanded the master to alter course towards the bay of Eyl, Somalia, where she arrived and dropped anchor at 10.36 on 31 January 2009. At 14.05 on 30 January 2009 a negotiator for the pirates boarded the vessel and demanded a ransom of US$6m. The vessel’s owners (“the owners”) had meanwhile formed a crisis management team who had set a target settlement figure of US$1.5m. On 2 February 2009 an initial offer of US$373,000 was put to the pirates. Negotiations between the pirates’ negotiators and the owners’ crisis management team continued over the following seven weeks with various offers and counter-offers being made.
Eventually on 22 March 2009, after a negotiation period of 51 days, a ransom was agreed in the amount of US$1.85m. On 27 March 2009 the ransom sum was delivered by being dropped at sea. At 07.36 on 28 March 2009 the pirates disembarked and at 08.00 that day the vessel continued her voyage.
It is worth noting that the cargo was subsequently valued at destination at US$787,186 and the value of the ship was assessed at US$3,947,096. That is to say, the total value of the property at risk amounts to US$4,734,282 which sum is less than the ransom of US$6m initially demanded.
The relevant York-Antwerp Rules
Rule of Interpretation
In the adjustment of general average the following lettered and numbered Rules shall apply to the exclusion of any Law and Practice inconsistent therewith.
Except as provided by the numbered Rules, general average shall be adjusted according to the lettered Rules.
There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.
Only such losses, damages or expenses which are the direct consequence of the general average act shall be allowed as general average.
Loss or damage sustained by the ship or cargo through delay, whether on the voyage or subsequently, such as demurrage, and any indirect loss whatsoever, such as loss of market, shall not be admitted as general average.
The onus of proof is upon the party claiming in general average to show that the loss or expense claimed is properly allowable as general average.
Any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided.
Adjustment dated 31 August 2011
The Adjusters allowed in general average the following expenses incurred during the negotiation period, which the cargo disagrees:
Commercial Court decision 
The Court found that:
- the expenses ii) – v) incurred during the negotiation period were allowable in general average under Rule F as “substituted expenses” (in lieu of US$4.15m saving);
- the expenses i) and vi) were allowable in general average under Rule A;
- payment of the original ransom demand of US$6m without negotiation would have been reasonable.
Court of Appeal decision 
The cargo appealed challenging to the judgment on expenses i) – v) and the Court agreed that:
- payment of the original ransom demand of US$6m without negotiation would have been reasonable;
- the media response costs, i) are allowable in general average under Rule A;
- consumption of bunkers is treated as an expense for the purpose of Rule F;
but found that:
- the negotiation period expenses, ii) – v), did not fall within Rule F holding that negotiating a reduced ransom of US$1.85m (and the saving of US$4.15m) was not “an alternative course of action” to the payment of the original sum demanded – merely a variant (which decision apparently followed the reasoning supported by the leading textbooks and was in line with the conclusion made by the majority of the majority of the Advisory Committee of the British Association of Average Adjusters, reflecting the almost universal practice not to allow these items under Rule F in the circumstances).
Supreme Court decision 
The owners appealed to the Supreme Court submitting that the negotiation period expenses, ii) – v) amounting to US$160,213.95, fell within the expression “expense incurred” by them within Rule F and those expenses were incurred “in place of another expense”, i.e. the saving of US$4.15m resulting from the negotiations. Since the negotiation period expenses were less than the “general average expense avoided”, they were accordingly allowable in general average under Rule F.
The Supreme Court (by a majority of 4 to 1) reversed the Court of Appeal decision, allowing the negotiation period expenses, ii) – v), in general average under Rule F and finding that:
- the language of Rule F did not require that the expenses were incurred following an alternative course;
- it was not necessary to consider whether the initial ransom demand was reasonable under Rule A;
It is worth noting the issues considered by the Supreme Court, which are highlighted as follows:
- The Court found that it would not be necessary, and it would be wrong to assume that it would be necessary, to establish that it would have been reasonable to accept the initial ransom demand in order to justify the contention that the negotiation period expenses were allowable under Rule F. Such assumption would mean that, “if a ship-owner incurs an expense to avoid paying a reasonable sum, he can in principle recover under Rule F, whereas if he incurs expense to avoid paying an unreasonable sum (i.e. a larger sum), he cannot recover. The more obvious his duty to mitigate, and the greater the likely benefits of such mitigation, the less likely he would be to be able to recover.”
- The Court considered that the words in Rule F “another expense which would have been allowable as general average” were a reference to an expense of a nature/type which would have been allowable (rather than its’ quantum) under Rule A, under which a ransom would be allowable in general average.
- Lord Neuberger favoured the interpretation of Rule F which “produces an entirely rational outcome: whenever an expense is incurred to avoid a sum of a type which would be allowable, that expense would be allowable, but only to the extent that it does not exceed the sum avoided.” Accordingly, the negotiation period expenses in the amount of US$160,213.95 fell under Rule F as they were incurred to avoid paying US$6m, resulting in a saving of US$4.14m.
- The Court found that Rule C only applies to loss consequential on a general average act defined by Rule A. It does not apply to expenses covered by Rule F, which is concerned with sums expended in avoiding expense otherwise allowable as general average.
- The Court disagreed to the payment of a reduced ransom being not “an alternative course of action” to paying the original ransom demand but merely a “variant”. The Court found that incurring the negotiation period expenses was an alternative to paying a higher ransom; “the former involved incurring vessel-operating expenses whereas the latter involved paying a ransom”.
- The Court saw no reason for restrictively interpreting the word “extra” so as to require an expense to be of a nature which would not normally have been incurred in response to the peril threatening the adventure. The Court was of the opinion that the natural contextual meaning of “extra expense” was “simply an expense which would not otherwise have been incurred (but for the saving of the “other expense”)”.
The following comments made by the Supreme Court in the judgment are well worth noting:
- The York-Antwerp Rules are an international agreed sets of rules. In para 29 of the judgment, Lord Neuberger states: “Given that the Rules represent an international arrangement, it is particularly inappropriate to adopt an approach to their interpretation which involved reading in any words or qualification. As already mentioned, it appears to me that, as a matter of ordinary language, Rule F applies to the negotiation period expenses for the reasons given in para 26 above. To imply some qualification such as the requirement that those expenses must have been incurred so as to achieve an “alternative course of action” appears to me to be very dangerous. In the same way as an international convention or treaty, the Rules should be interpreted by a United Kingdom court “unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation” …. “it is the unadorned language of the article to which attention must be directed”.”
- Lord Neuberger is not convinced that, as a matter of language, the passages in the leading textbooks support the conclusion that Rule F can only be invoked when the claimant has taken an “alternative course of action”, and he states in para 25 of the judgment: “… the law cannot be decided by what is understood among writers and practitioners in the relevant field … Experience shows that in many areas of practical and professional endeavour generally accepted points of principle and practice, when tested in court, sometimes turn out to be unsustainable. I accept that it may be right for a court to have regard to practices which have developed and principles which have been adopted by practitioners, but they cannot determine the outcome when the issue is ultimately one of Law.” (The obvious precedents are the The Makis  and The Alpha ).
The English Supreme Court judgment is in contrast with the current practice of most average adjusters to disallow such negotiation period expenses and will no doubt affect the future English general average adjustments of substituted expenses under the York-Antwerp Rules. It will be interested to see if the market would, like what it had done following “The Makis” case, seek to revert to the long accepted practice.
Triple Collision: Claim under the Collision Liability Clause
Old law cases
The report on a case recently handed down by the Hong Kong Admiralty Court concerning two collisions involving three ships, has prompted the Editor to refer to the notes he made on a couple of interesting triple collision cases he studied whilst preparing for the examination of the British Association of Average Adjusters in late 1970’s. They are:
France (William) Fenwick v. Merchants’ Marine Insurance 1915
Whilst proceeding up the Seine, in an attempt to pass the “Rouen”, the “Cornwood collided with the “Rouen” which then struck and seriously damaged the “Galatee” which was coming down the river at the time. The Owners of the “Cornwood” having been held liable for the damage to both the “Rouen” and the “Galatee”, submitted claim against the Underwriters on the Policy under the Running Down Clause (now commonly known as the Collision Liability Clause). The Underwriters contended that the collision of the “Rouen” with the “Galatee” was not such a “consequence” of the collision between the “Cornwood” and the “Rouen” as to make them liable in terms of the policy.
The Court found for the plaintiffs, the Owners of the “Cornwood”, the judge saying: “I think it sufficient to find that the forces put into operation by the negligent navigation of the “Cornwood” did in fact, not only cause a collision between herself and the “Rouen” but afterwards sent the “Rouen” into the “Galatee”. Of course there must be a collision and in my judgment the collision between the “Rouen” and the “Galatee” was such a consequence of the collision between the “Cornwood” and the “Rouen” as makes the Underwriters liabile.”
The case went to appeal which was dismissed, the Court holding that the collision between the “Rouen” and the “Galatee” was brought about by the collision between the “Cornwood” and the “Rouen”.
Abadesa & Miraflores (Collision Liability) 1967
It was reported that the tanker “George Livanos” was following the tanker “Miraflores”, both being inward bound in the River Scheldt. The other tanker “Abadesa” was outward bound. The “Miraflores” reduced speed to avoid a small coaster. As a result the “George Livanos” closed to about half a mile astern. The “Miraflores” increased speed but a cross- current forced her towards mid-channel across the “Abadesa”. Putting her engine full astern and letting her starboard anchor go, she sounded 2 of 4 short blasts of a local signal meaning: “Keep out of my way, I cannot manoeuvre.”. The “Abadesa” put her engine full astern and let go her port anchor, but the 2 vessels collided. The “George Livanos” grounded while manoeuvring to avoid the “Miraflores”.
It was submitted that “The liability of each vessel involved must be assessed by comparison of her fault with the fault of each of the other vessels involved individually, separately, and in no way conjunctively.” The apportionment of fault was as follows.
“Abadesa” 2/3rds to blame
“Miraflores” 1/3rd to blame
“Abadesa” 40% to blame
“Miraflores” 20% to blame
“George Livanos” 20% to blame
It was reported that the Underwriters on the “Abadesa” agreed to pay 3/4ths of the liability of the “Abadesa” to the “George Livanos”, thereby accepting that such damage was a consequence of the collision on the facts presented.
Collision Liability Clause (previously known as the Running Down Clause)
The 3/4ths Collision Liability Clause under the Institute Time Clauses – Hulls 1/10/83 commonly incorporated in the policies of insurances on ship provides that:
8.1 The Underwriters agree to indemnify the Assured for three-fourths of any sum or sums paid by the Assured to any other person or persons by reasons of the Assured becoming legally liable by way of damages for
8.1.1 loss of or damage to any other vessel or property on any other vessel
8.1.2 delay to or loss of use of any such other vessel or property thereon
8.1.3 general average of, salvage of, or salvage under contract of, any such other vessel or property thereon, where such payment by the Assured is in consequence of the Vessel hereby insured coming into collision with any other vessel.
8.2 The indemnity provided by this Clause 8 shall be in addition to the indemnity provided by the other terms and conditions of this insurance and shall be subject to the following provisions:
8.2.1 Where the insured Vessel is in collision with another vessel and both vessels are to blame then, unless the liability of one or both vessels becomes limited by law, the indemnity under this Clause 8 shall be calculated on the principle of cross-liabilities as if the respective Owners had been compelled to pay to each other such proportion of each other’s damages as may have been properly allowed in ascertaining the balance or sum payable by or to the Assured in consequence of the collision.
8.2.2 In no case shall the Underwriters’ total liability under Clauses 8.1 and 8.2 exceed their proportionate part of three-fourths of the insured value of the Vessel hereby insured in respect of any one collision.
8.3 The Underwriters will also pay three-fourths of the legal costs incurred by the Assured or which the Assured may be compelled to pay in contesting liability or taking proceedings to limit liability, with the prior written consent of the Underwriters.
8.4 Provided always that this Clause 8 shall in no case extend to any sum which the Assured shall pay for or in respect of
8.4.1 removal or disposal of obstructions, wrecks, cargoes or any other thing whatsoever
8.4.2 any real or personal property or thing whatsoever except other vessels or property on other vessels
8.4.3 the cargo or other property on, or the engagements of, the insured Vessel
8.4.4 loss of life, personal injury or illness
8.4.5 pollution or contamination of any real or personal property or thing whatsoever (except other vessels with which the insured Vessel is in collision or property on such other vessels).
In practice, the remaining 1/4th of any sum or sums paid by the Assured within the terms of the clause is invariably covered by the vessel’s entry in a Protection and Indemnity Association (commonly called P&I Club). Furthermore, the exclusions under the Clause 8.4 are liabilities customarily covered by the P&I Club.
It is however worth noting the construction of the following wording:
- “indemnify … paid” – Underwriters are only liable when the Assured has paid.
- “legally liable by way of damages” – Liability must arise by way of tort and not by way of contract or statute, i.e. breach of duty (other than under contract) leading to liability for damages.
- “in consequence … coming into collision … another vessel” – There must be actual contact with another vessel.
- “indemnity … in addition” – Claims arising under the clause are in addition to anything else recoverable even though the total amount payable exceeds the insured value.
- “Where … both vessels are to blame … unless the liability … limited by law … indemnity … shall be calculated on the principle of cross liabilities” – The principle of cross liabilities is the method used for calculating the claim on the policy of insurance, there being however an important limitation, namely, when the liability of one or both vessels is limited by law.
(By modifying a question suggested by Mr. D. John Wilson, a most distinguished average adjuster.)
Vessel “A” was (a) insured on Hull & Machinery, etc. for $1,000,000 so valued, subject to the Institute Time Clauses – Hulls 1/10/83 with Deductible $30,000 and (b) entered on full conditions with an P&I Club. She was entering port when she collided in dense fog with the outward bound vessel “B”. Both vessels sustained damages. Vessel “A” veered off “B” and struck and sank the barge “X” and the buoy moored thereto, and finally grounded causing damage to a submarine cable.
The liability for the collision and resulting damages was eventually determined on the basis of vessel “A” being 75% to blame and vessel “B” 25%, the damages amounting to a total of $1,200,000 being agreed as follows:
YORK-ANTWERP RULES 2016
Readers may have by now noted that the words underlined below under Rule 17 of the York-Antwerp Rules 1994 were omitted from the published text of the York-Antwerp Rules 2016 adopted in New York in May 2016.
CAUSE AND TIMING OF DAMAGES
Which Policies Pay?
The Institute of Seatransport participated in the IFSPA 2017 (International Forum on Shipping, Ports and Airports), conducting an Industrial Session at PolyU on Wednesday afternoon, 24th May 2017 when the day started with yellow rain at 0615, followed by red at 0930 and black at 1130 before returning to yellow at 1230. It was most encouraging to see the majority of those enrolled turn up on time.
The session began at 1330 and finished at 1800 with (a) the Editor presenting a 2.5-hour workshop on practical aspects of marine hull insurance claims with emphasis on General Average, Particular Average and Constructive Total Loss, and (b) Mr. C H Wong, a well-known logistics & projects consultant and director of Five Oceans Marine Ltd., presenting on the role of Hong Kong as an international maritime centre under BRI. A couple of interesting issues on the hull insurance claims were discussed, which the Editor would like to share with readers.
One of the case studies involved a container carrier on liner service trading between Far East/American ports which lost steering control on 1st December 2012, necessitating towage to a port of refuge where underwater inspection revealed that the vessel’s rudderstock had a fracture which appeared to be beyond repair. All laden containers were discharged (to enable repairs to be effected in dry-dock) and forwarded to destinations by a sister-ship.
The vessel was insured on hull and machinery, etc., for 12 months commencing from 1st April 2012, subject to Institute Time Clauses – Hulls 1/10/83 [referred to “ITC” here] and Institute Additional Perils Clauses – Hulls 1/10/83 [referred to “IAPC” here]. The insurance is subject to English law and practice and the relevant insurance conditions applicable to claim for the damage to the rudderstock are:
- Clause 6.2 of the ITC which provides that “This insurance covers loss of or damage to the subject-matter insured caused by …. 6.2.2 …. any latent defect in the machinery or hull…”
- IAPC which extends the insurance to cover
1.1 the cost of repairing or replacing ….
1.1.2 any defective part which has caused loss or damage to the Vessel covered by Clause 6.2.2 of the Institute Time Clauses – Hulls 1/10/83
1.2 loss of or damage to the Vessel caused by any accident or by negligence, incompetence or error of judgment of any person whatsoever
Both ITC Clause 6.2 and the IAPC are subject to due diligence proviso: “Provided such loss or damage has not resulted from want of due diligence by the Assured Owners or Managers.”
Particular Average is a partial loss of the subject-matter insured caused by peril insured against, which is not a general average loss (as defined by section 64(1) of the Marine Insurance Act, 1906).
The effect of the wording, “This insurance covers loss of or damage to the subject-matter insured caused by” is that the Policy which will respond for a claim for Particular Average will be the Policy current at the time when the loss occurred or the damage was sustained. The incorporation of the IAPC in addition to the ITC allows exception for latent defect cover (IAPC Clause 1.1.2), let alone that the extension (in particular, “any accident” cover) affords the less weighty burden of proof.
It is worth noting that whilst IAPC Clause 1.1.2 only uses the words “defective part”, the link to ITC Clause 6.2.2 must mean that the word “latently” is implied. Furthermore, a “latent defect in the machinery or hull” is not only confined to a flaw in material but can include wrongly assembled parts provided that they satisfy the usual test of latency – “defect which could not be discovered by a person of competent skill and using ordinary care” , definition given by Carver approved in the “Dimitrios N. Rallias” (1922).
Taking into the familiar “Nukila” test (1997), it is suggested that, for processing Particular Average claim, the following questions should be borne in mind:
- What is the cause of damage under the policy?
- When did the damage occur – which policy pays?
- How many accidents and deductibles are involved?
- What can be claimed – the reasonable cost of repairs?
We are considering the first two questions herein.
Onus of proof
Burden of proof is on the Assured to show on a balance of probability that the loss was caused in the way alleged. The degree of proof required is to show a balance in favour of an accidental loss by peril(s) insured against. If, as in the “Popi M” (1985) case where an old vessel sailing in calm seas with fair weather developed a fracture allowing seawater to enter and sank, the occurrence of the event, collision with a submarine, as alleged, is extremely improbable, on basis of common sense, the true cause being in doubt, the Assured has failed to prove.
In practice, most accidents are straight forward having known causes, and the claim for loss or damage would then be based on that known cause, e.g. fire, collision, contact, grounding, etc. However, machinery damages often require technical investigations on both cause and timing, necessitating, on occasions, metallurgical and/or other special tests.
Cause of damage to the rudderstock
There is suggestion that fatigue failure of a rudderstock is not an event that can be expected in the normal operation of the vessel, hence the rudderstock damage would not be a result of normal wear and tear and the damage being “accidental” in nature would fall within the wide cover by IAPC. However, in practice, Underwriters would expect that the words “any accident” (which probably cover event without apparent cause) are likely to be used only when the cause of loss or damage is obscure or unexplained. Furthermore, whilst one can insist that the Assured have proved prima facie that the damage was caused by a peril insured against, he would probably be expected to demonstrate that the whole damage occurred during the currency of the policy in force, since it is not uncommon that the fatigue fracture would be of a progressive nature, i.e. damage occurs and develops, without becoming apparent, over a period of time that spans more than one policy.
It is also believed that for other good reasons, e.g. loss prevention, it would be advisable for a prudent Ship-owners to be aware of the cause of damage.
Results of the investigations
- The nature of the crack suggested that it had developed over a period of time until the rudderstock was finally unable to resist the forces put on it.
- The vessel was last previously in dry-dock during July 2010 when the rudder and underwater parts were surveyed;
- The attending Surveyors agree that:
- the damage arose from loss of a retainer ring (forming a latent defect in machinery) allowing displacement of the lower pintle bush, causing cyclic stress to be set up which led to fracturing of the rudderstock due to fatigue;
- the rudderstock retaining rings were either not fitted at all or were incorrectly fitted by the Repairers in July 2010 (constituting negligence of Repairers);
- the initiation of the fracture probably occurred some 3 to 6 months after the loss of the retaining rings which would probably have occurred in July 2010 or sometime thereafter;
- the rudderstock would have been condemned well before April 2012;
- there was an equal chance of the rudderstock becoming condemnable prior to and after April 2011.
Which policies pay?
During the material time covered in this case study, there was a policy change on 1st April and accordingly the claims arising therein would involve 3 policies, namely: (a) 2010/11 Policy (1st April 2010/31st March 2011), (b) 2011/12 Policy (1st April 2011/31st March 2012) and (c) 2012/13 Policy (1st April 2012/31st March 2013).
There was negligence of repairers in July 2010 (2010/11 Policy) resulting in a latent defect causing damage to the rudderstock culminating in a breakdown in December 2012 (2012/13 Policy). On the agreed fact that, if the true facts had been known, the rudderstock was already damaged beyond repairs, would have been condemnable, and was worth only scrap before 1st April 2012, i.e. prior to the inception of the 2012/13 Policy, no claim in respect of the cost of replacement of the rudderstock can lie against this policy year, since the rudderstock was incapable of being damaged any further. The damage to the rudderstock would be treated as progressive over the 2010/11 and 2011/2012 policy periods, being reasonably split 50/50 in the circumstances (as agreed by the Surveyors).
The ITC Clause 11.4 provides that “No claim under this Clause 11 shall in any case be allowed where the loss was not incurred to avoid or in connection with the avoidance of a peril insured against.” It is the peril which is operating or which will operate which determines the matter. Hence, the claim for general average falling on the vessel arising from the loss of steering control on 1st December 2012 would fall on the 2012/13 Policy insuring the vessel when the peril was operative.
All claims, General Average and Particular Average, arising out of the same accident are subject to one Deductible in terms of ITC Clause 12. The Deductible is divided between the three policies over the respective claims attaching thereto.
2010/11 Policy pays 50% of the reasonable cost of replacing the rudderstock less 50% of its scrap value (if any) and proportion of Deductible;
2011/12 Policy pays 50% of the reasonable cost of replacing the rudderstock less 50% of its scrap value (if any) and proportion of Deductible;
2012/13 Policy pays the general average claim falling on the vessel less proportion of Deductible.
It is advisable to pay proper attention to (a) the plain sense of the policy wording, which may all require a different approach to the same set of facts and (b) the facts of each case. “In practice, average adjusters are required to produce equitable and practical solutions based on the facts of individual claims and the theoretical difficulties endemic in the topic are generally settled by agreement with underwriters.” (Mr. Donald O’May)
Readers are reminded that the “Longchamp” case where the Court of Appeal has reversed the 2014 High Court judgment is coming up for trial in the Supreme Court.
(Editor: Raymond T C Wong Average Adjuster)
Hong Kong Maritime Awareness Week, 12th-18th November 2016, was jointly organized by the Hong Kong Shipowners Association and the Hong Kong Maritime Museum, arranging various activities and functions with a view to introducing and promoting the development of the HK maritime industry to the younger generation. A few members of the Institute of Seatransport (IST), including Ms. Karen Cheung, Mr. Thomas Cheung and the Editor of this AA Talk column (here below referred to as “I” and “me”), gave talk to secondary school students on maritime careers (shipping lawyer, insurance broker and average adjuster respectively).
Hong Kong Maritime Industry Week (HKMIW 2016), 20th-27th November 2016, was organized by the Hong Kong Maritime and Port Board to “propel Hong Kong” as a renowned international maritime centre. The objectives were to make Hong Kong a preferred based for operating maritime business, and to foster interest and professionalism in various port and maritime services.
During the HKMIW 2016, to celebrate Hong Kong as an international maritime centre that provides superb maritime and port facilities and services, international and local industry luminaries and practitioners came together for a myriad of diversified and fun-filled activities ranging from industry briefings, seminars and conferences, corporate functions, maritime- themed sports to networking events.
The IST was joint organizer of the “Maritime Law Seminar” and “An Interactive Workshop on Marine Insurance and Average”.
Maritime Law Seminar – On Monday evening, 21st November 2016, Ms. Rosita Lau, who was awarded the individual prize at the Lloyd’s List Asia Awards winning the Asia Maritime Lawyer of the Year Award, gave a superb bilingual presentation to over 80 participants at the venue in the China Taiping Tower, highlighting the effect of three recent judgments, namely:
The “Res Cogitans” (2016)
Grand China Logistics Holding (Group) v. Spar Shipping (2016)
Volcafe Ltd. & Others v. Compania Sud Americana De Vapores (2016).
Hopefully the commentary on these law cases will be published in future issue(s) of “SEAVIEW”.
An Interactive Workshop on Marine Insurance and Average – On Friday evening, 25th November 2016, a panel consisting of Messrs. Jon Zinke, Rohan Bray, Stephen Cheng, Thomas Cheung, Richard Oakley and I presented to an audience of exactly 80 at the same venue provided by China Taiping Insurance Co., Ltd. (a) Game Plan for Procurement of Marine Insurance and (b) a hypothetical collision between a container vessel and tanker off the China coast; various aspects were examined, including liability, salvage, pollution, limitation, jurisdiction, cargo claims and general average; also the scope of shipowners’ needs and the interplay between hull and P&I underwriters were discussed.
Readers are requested to visit http://www.hkmiw.hk/english/index.html for more information about the HKMIW 2016.
50 Years in Average Adjusting
I joined the profession of Average Adjusting in November 1966. It was excitingly co-incidental that I was spending my 50th anniversary during the Hong Kong Maritime Industry Week.
On the 9th November I received unexpectedly an email from Mr. D John Wilson, the popular Editor of the 10th, 11th & 12th editions of Lowndes and Rudolf on the Law of General Average and The York Antwerp Rules, advising that his old friend and partner is now 88 years of age! The email reminded me of having burnt the midnight oil for 5 evenings in Tokyo in 1984 reading carefully the draft analysis prepared by John Wilson (who was then based in Tokyo) on the ITC HULLS 1.10.83. The book was for internal use of Richards Hogg International, the world leading average adjusting firm and has never been published to the public though arrangements were made to have the book translated into Chinese and published in Taiwan in 1988. John kindly granted me the copy right to produce the second edition to which I did not pay much attention since I never imagined that after 30+ years, the ITC-Hulls 1/10/83 remains being the most popular standard clauses!
Another prominent average adjuster, Mr. Christopher J Barstow who spent some 8 years working in Hong Kong, 1975/82, visited Hong Kong during November and a small get together lunch with few old colleagues and clients (with large complicated claims) was full of joy and laughter – those were the days!
A question was raised – What is the most interesting case I have ever had?
In 1984, a 2-year old tanker whilst proceeding in ballast under a time charter in the Arabian Gulf to load cargo for the Far East, was hit by a missile in the accommodation, followed by fire.
The crew failing to fight the fire abandoned the ship and was picked up by Royal Saudi Navy ships with the injured ones being sent to hospital. The fire was subsequently extinguished and the vessel towed to a safe place in Bahrain waters by salvage tugs under LOF. Inspection revealed severe damage to the vessel’s wheelhouse/ accommodation. Specification for repairs was drawn up and tenders for repairs invited from shipyards. The quotations ranged from US$2.45m requiring 100 days (Dubai) to US$4.50m requiring 60 days (Singapore) whilst a shipyard in Japan quoted US$3.40m requiring 45 days. The Shipowners decided to tow the damaged vessel from Bahrain waters to Japan for repairs!
The professionals assisting the Shipowners included mainly the Insurance Brokers, the Solicitors (for the salvage proceedings and possible legal action against the time charterers) and the Average Adjusters. We attended frequent meetings in the early stages to follow up closely on the progress of the casualty. We did not have mobile phones and we had to standby at home after the office. Over the very first weekend, these professionals arranged to standby together playing mahjong at my home, which was quite relaxing though, as anticipated, intermittently.
The most interesting and exciting adjusting aspect in this case was to consider the choice of repair yard which was most material in determining the “reasonable cost of repairs” in terms of the policy of insurance. The investigations on this topic involved considerable correspondence and meetings with various parties concerned, also third parties (other independent ship- owners, technical consultants, etc.) focusing on quality of repair work, war risk, the Dubai Dockyard and time on repairs. After giving due consideration to the outcome of the investigations, I set out a comparison of the overall financial position had repairs been effected at Dubai as against Japan taking into account repairs etc. necessary for towage, towage cost and insurance premiums, tender price for repairs, cost of repairs additional to the original specification, spares used on additional repairs, superintendence on permanent repairs, additional insurance premiums on war risks, loss of hire and the likely effect on the ship’s value, resulting in it being in favour of the Shipowners’ choice. Obviously the last two items are conjectural and are taken in to account to test the Shipowners’ argument that on commercial grounds alone repair at a Japanese yard was to them the prudent choice.
The test that seems to be closest to what the Courts have held is “What would the prudent uninsured owner have done?” It was believed that in this case two paramount considerations led to the Shipowners avoiding the use of the Dubai Dockyard, namely its geographical position, unhealthily close to the war zone, and its then unproven ability to repair the particular type of damage in a satisfactory and timely manner.
The claim on policy of insurance was satisfactorily approved and settled by London Underwriters. I would stress that the claim was successful only under the prevailing circumstances in 1984.
Before November 2016 ended, I received an excellent gift to mark my 50- year average adjusting career, which was an extract from a message of a Lloyd’s syndicate to an Insurance Broker:
“…we are hopeful that the assured will take on board the helpful comments and observations from TCW in their draft adjustment as well as the various adjusting scenarios that TCW has presented. The figures presented by TCW in the draft adjustment represent the professional assessment of a respected and very experienced average adjuster who has reviewed the presented sue & labour claim on a completely impartial basis. The TCW adjustment carries considerable weight and is a credible assessment of those costs which would be considered reasonable in all the circumstances.”
(Mr. Raymond T C Wong: Average Adjuster)
Major changes from the York-Antwerp Rules 1994
As anticipated, at the CMI Conference in New York on 6th May 2016 the York-Antwerp Rules 2016 were adopted, which seem to largely reflect the York-Antwerp Rules 1994 which has been widely incorporated into contracts of carriage; while a more recent 2004 revision has remained largely redundant, being considered less favorable to ship-owners.
The Assembly of the CMI also adopted the “CMI Guidelines relating to General Average”. The relevant documents can be downloaded from the CMI website: www.cmi2016newyork.org/session-1
It is noted that BIMCO, the world’s largest international shipping association, has already agreed that their standard documents will be amended to reflect the new rules, YAR 2016. Accordingly, we consider it advisable to highlight the major changes from the YAR 1994, noting that the minor changes include an amended numbering system and greater consistency in the terms being used.
YAR 2016 provides a clearer requirement for the “disconnection” to be a general average act in the tug and tow cases, as noted in paragraph 2:
2. If the vessels are in common peril and one is disconnected either to increase the disconnecting vessel’s safety alone, or the safety of all vessels in the common maritime adventure, the disconnection will be a general average act.
Paragraph 3 provides a brief introduction concerning port of refuge expenses. It is submitted that if the tug and tow are detained at a port of refuge whilst repairs to the tow which are necessary for the safe prosecution of the voyage are effected, the port charges, crew wages, maintenance and fuel and store referable to the tug will be allowed in general average. Equally, if the detention is on account of repair to the tug, the port charges during the period of detention (and the crew wages and maintenance of the crew if she has one) referable to the tow will be allowed in general average.
Rule E of YAR 1994 allows the parties to give notice of a claim in general average within 12 months, measured from the date of the termination of the common maritime adventure, or request from the adjuster, and provides for the average adjuster’s liberty to make an estimate of allowances or contributory values upon expiry of the 12 months of his requesting for such evidence and particulars. The adjuster’s estimate may be challenged only on grounds that it is manifestly incorrect.
Rule E of YAR 2016 provides a clearer time-line for the provision of documents and evidence with the intention to help speed up the adjusting process, and paragraph 3 allows:
(a) For notification and particulars in support a claim – 12 months from the termination of the common maritime adventure or payment of the expense;
(b) For particulars of value – 12 months from the termination of the common maritime adventure.
The parties are allowed to challenge the adjuster’s estimates within 2 months of receipt of same.
Paragraph 4 of YAR 2016 is a new provision that any party pursuing a recovery from a third party shall advise the average adjuster and supply full particulars within 2 months upon receipt of the recovery achieved. The adjuster should take note ensuring that any allowable credit to the general average is made in the appropriate manner.
Additional words are added in the last paragraph of Rule G:
4. The proportion attaching to cargo of the allowances made in general average by reason of applying the third paragraph of this Rule shall be limited to the cost which would have been borne by the owners of cargo if the cargo had been forwarded at their expense. This limit shall not apply to any allowances made under Rule F.
It will help resolve an area of uncertainty and differences in average adjusting. The following example illustrates the working of the “cap”:
- Vessel with cargo on board sustains propeller damage and is towed into Port of Refuge A;
- In order to do repairs necessary for the safe prosecution of the voyage, it would be necessary to discharge, store and reload cargo;
- Instead, cargo is discharged and then forwarded to destination;
- Vessel is towed to Port of Refuge B (where there are the necessary repair facilities) and effects permanent repairs;
- Ship and Cargo are 20/80% respectively of total values;
- It would have cost Cargo US$350,000 to have arranged for its own carriage to destination.
It is worth noting that the unrecoverable part of Rule G paragraph 3, (i.e. US$400,000 – US$350,000 = US$50,000) is recoverable under English law per “Abt Rasha” (2000) from H&M Underwriters. The position under other jurisdictions is less clear.
RULE VI. SALVAGE REMUNERATION
The wording of Rule VI paragraph b) is new to the YAR 2016:
b) Notwithstanding (a) above, where the parties to the adventure have separate contractual or legal liability to salvors, salvage shall only be allowed should any of the following arise:
(i) there is a subsequent accident or other circumstances resulting in loss or damage to property during the voyage that results in significant differences between salved and contributory values,
(ii) there are significant general average sacrifices,
(iii) salved values are manifestly incorrect and there is a significantly incorrect apportionment of salvage expenses,
(iv) any of the parties to the salvage has paid a significant proportion of salvage due from another party,
(v) a significant proportion of the parties have satisfied the salvage claim on substantially different terms, no regard being had to interest, currency correction or legal costs of either the salvor or the contributing interest.
We quote below extract from the CMI Guidelines:
“The wording of Rule VI paragraph (b) is new to the York Antwerp Rules 2016. It arises from concerns that, if the ship and cargo have already paid salvage separately (for example under Lloyd’s Open Form) based on salved values (at termination of the salvors’ services), allowing salvage as general average and re-apportioning it over contributory values (at destination) may give rise to additional cost and delays, while making no significant difference to the proportion payable by each party.
A variety of measures to meet these concerns have been considered, ranging from complete exclusion of salvage to using a fixed percentage mechanism. Such measures were found, during extensive CMI discussions to produce inequitable results or were impossible to apply across the range of cases encountered in practice.
It was pointed out that many leading adjusters will, when appropriate, propose to the parties that if re-apportionment of salvage as general average will not produce a meaningful change in the figures or will be disproportionately costly, the salvage should be omitted from the adjustment; it is then up to the parties to decide whether it should be included or not. However, it was considered that a means should be found to make this practice more universal and to set out express criteria that would help to ensure that the allowance and re-apportionment of salvage as general average (where already paid separately by ship and cargo etc.) would only occur in cases where there was a sound equitable or financial basis for doing so.
The average adjusters will still be required to exercise their professional judgment in applying paragraph (b) because several of the criteria (i-v) that are listed require a view to be taken as to what should be deemed to be “significant” in the context of a particular case. Because of the wide range of cases that the York-Antwerp Rules apply to, it was not considered desirable to offer a fixed definition of how “significant” should be construed, other than to note that the objective of the new clause was to reduce the time and cost of the adjustment process where it is possible to do so.
When assessing whether there is a significant difference between settlements and awards for the purposes of Rule VI(b)(v) the adjuster should have regard only to the basic award or settlement against all salved interests before currency adjustment, interest, cost of collecting security and all parties’ legal costs.”
RULE XI. WAGES AND MAINTENANCE OF CREW AND OTHER EXPENSES PUTTING IN TO AND AT A PORT OF REFUGE, ETC.
New words “entry or detention” are added to paragraph (b)(i) to specify that allowances at a port of refuge are only made possible either when the ship and cargo remain in peril after arrival at the port of refuge or when repairs necessary for the safe prosecution of the voyage are being effected:
(b) (i) When a ship shall have entered or been detained in any port or place in consequence of accident, sacrifice or other extra-ordinary circumstances which render that entry or detention necessary for the common safety, or to enable damage to the ship caused by sacrifice or accident to be repaired, if the repairs were necessary for the safe prosecution of the voyage, the wages and maintenance of the master, officers and crew reasonably incurred during the extra period of detention in such port or place until the ship shall or should have been made ready to proceed upon her voyage, shall be allowed in general average.
The definition of “port charges” is newly added under paragraph (c) (ii) in view of the comments made in the “Trade Green” (2000), which are contrary to the established practice and intentions of successive versions of the York-Antwerp Rules:
(c) (ii) For the purpose of these Rules, port charges shall include all customary or additional expenses incurred for the common safety or to enable a vessel to enter or remain at a port of refuge or call in the circumstances outlined in Rule XI(b)(i).
Also, additional words are added to paragraph (d) (iv) to correct an apparent anomaly:
(d) (iv) necessarily in connection with the handling on board, discharging, storing or reloading of cargo, fuel or stores whenever the cost of those operations is allowable as general average.
RULE XIII. DEDUCTIONS FROM COST OF REPAIRS
Paragraph (c) provides that the costs of cleaning, painting or coating of bottom shall not be allowed in general average unless the bottom has been painted or coated within the 24 months (against 12 months as specified in YAR 1994) preceding the date of the general average act in which case one half of such costs shall be allowed.
RULE XVI. AMOUNT TO BE ALLOWED FOR CARGO LOST OR DAMAGED BY SACRIFICE
Wording is added in paragraph (a) (i) to deal with issue arising from place of final delivery not being port of discharge, giving express sanction to the long-established adjusting practice:
(a) (i) The amount to be allowed as general average for damage to or loss of cargo sacrificed shall be the loss which has been sustained thereby based on the value at the time of discharge, ascertained from the commercial invoice rendered to the receiver or if there is no such invoice from the shipped value. Such commercial invoice may be deemed by the average adjuster to reflect the value at the time of discharge irrespective of the place of final delivery under the contract of carriage.
RULE XVII. CONTRIBUTORY VALUES
Recognition of the adjusting practice that low value cargo may be excluded from contributing to general average is now expressed in paragraph (a) (ii):
(a) (ii) The value of the cargo shall include the cost of insurance and freight unless and insofar as such freight is at the risk of interests other than the cargo, deducting therefrom any loss or damage suffered by the cargo prior to or at the time of discharge. Any cargo may be excluded from contributing to general average should the average adjuster consider that the cost of including it in the adjustment would be likely to be disproportionate to its eventual contribution.
Furthermore, salvage payment which is not included in general average under the terms of Rule VI (b) would form “an extra charge incurred in respect thereof subsequently to the general average act” and a deduction in order to establish the contributory value of the property. Additional wording in paragraph (b) makes it clear that the deduction in this respect is limited to the actual salvage payment made including interest and salvor’s costs:
(b) To these values shall be added the amount allowed as general average for property sacrificed, if not already included, deduction being made from the freight and passage money at risk of such charges and crew’s wages as would not have been incurred in earning the freight had the ship and cargo been totally lost at the date of the general average act and have not been allowed as general average; deduction being also made from the value of the property of all extra charges incurred in respect thereof subsequently to the general average act, except such charges as are allowed in general average. Where payment for salvage services has not been allowed as general average by reason of paragraph (b) of Rule VI, deductions in respect of payment for salvage services shall be limited to the amount paid to the salvors including interest and salvors’ costs.
The insertion of the word “accompanied” in paragraph (e) is to make it clear that unaccompanied personal effects, such as a container full of house-hold goods being moved to another country are liable to contribute to general average:
(e) Mails, passengers’ luggage and accompanied personal effects and accompanied private motor vehicles shall not contribute to general average.
RULE XIX. UNDECLARED OR WRONGFULLY DECLARED CARGO
The wording of the second paragraph is amended merely for clarity purposes:
(b) Where goods have been wrongfully declared at the time of shipment at a value which is lower than their real value, any general average loss or damage shall be allowed on the basis of their declared value, but such goods shall contribute on the basis of their actual value.
RULE XX. PROVISION OF FUNDS
There is no provision for Commission at 2% to be allowed on general average disbursements.
RULE XXI. INTEREST ON LOSSES ALLOWED IN GENERAL AVERAGE
Under the YAR 2016, interest will be fixed annually at ICE LIBOR on the first banking day of each year in the currency of the adjustment plus 4%. For interest, it is noted that for a US$ adjustment that would produce a rate of 5.17% for 2016 as opposed to 7% under YAR 1994.
(b) The rate for calculating interest accruing during each calendar year shall be the 12- month ICE LIBOR for the currency in which the adjustment is prepared, as announced on the first banking day of that calendar year, increased by four percentage points. If the adjustment is prepared in a currency for which no ICE LIBOR is announced, the rate shall be the 12-month US Dollar ICE LIBOR, increased by four percentage points.
RULE XXII. TREATMENT OF CASH DEPOSITS
A significant change is made to the treatment of cash deposits. Removing the joint account requirement, the new rule sets out more clearly how the average adjuster should handle such funds:
(a) Where cash deposits have been collected in respect of general average, salvage or special charges, such sums shall be remitted forthwith to the average adjuster who shall deposit the sums into a special account, earning interest where possible, in the name of the average adjuster.
(b) The special account shall be constituted in accordance with the law regarding client or third party funds applicable in the domicile of the average adjuster. The account shall be held separately from the average adjuster’s own funds, in trust or in compliance with similar rules of law providing for the administration of the funds of third parties.
(c) The sums so deposited, together with accrued interest, if any, shall be held as security for payment to the parties entitled thereto, of the general average, salvage or special charges in respect of which the deposits have been collected. Payments on account or refunds of deposits may only be made when such payments are certified in writing by the average adjuster and notified to the depositor requesting their approval. Upon the receipt of the depositor’s approval, or in the absence of such approval within a period of 90 days, the average adjuster may deduct the amount of the payment on account or the final contribution from the deposit.
(d) All deposits and payments or refunds shall be without prejudice to the ultimate liability of the parties.
We quote below extract from the CMI Guidelines:
“Under Rule XXII(b) the adjuster is required to hold deposits in a special account constituted in accordance with the law regarding holding client or third party funds that applies in the domicile of the appointed average adjuster. Unless otherwise provided for by the applicable law, CMI recommends that any special account should have the following features:
- Funds should be held separately from the normal operating accounts of the adjuster.
- Funds should be protected in the event of liquidation or the cessation of the average adjuster’s business.
- The holding bank should provide regular statements that show all transactions clearly.”
RULE XXIII. TIME BAR FOR CONTRIBUTING TO GENERAL AVERAGE
The YAR 1994 does not include this time bar rule:
(a) Subject always to any mandatory rule on time limitation contained in any applicable law:
(i) Any rights to general average contribution including any rights to claim under general average bonds and guarantees, shall be extinguished unless an action is brought by the party claiming such contribution within a period of one year after the date upon which the general average adjustment is issued. However, in no case shall such an action be brought after six years from the date of termination of the common maritime adventure.
(ii) These periods may be extended if the parties so agree after the termination of the common maritime adventure.
(b) This rule shall not apply as between the parties to the general average and their respective insurers.
A vessel with bulk cargo on board under one bill of lading grounded and tugs were engaged to refloat her but then the limited information available would be sufficient to substantiate that the vessel and the cargo were in position of peril and it was suggested that the vessel could have been refloated under her own power after a period of time. What would you suggest I (the Ship-owners) can do to protect my interests?
For the expenditure to be considered as general average all the properties in the adventure must be at risk and not merely one interest. It does not appear that the facts as known at that time were sufficient to help make a judgment as to whether the expenditure would fall to be general average (to be shared by all the properties in the adventure) or sue and labour charges (to be paid by Hull & Machinery Underwriters subject to the cover). It is certainly a border-line case. I would suggest that firstly check the terms and cover of the insurance on the ship to see if there is a General Average Absorption Clause that may adequately cover the expenditure involved. In absence of such cover and if time allows, you should approach the Hull & Machinery Underwriters (through Brokers) with a view to persuading the Underwriters to accept liability for the relevant costs on the basis of them being Sue & Labour. The last resort would be to proceed with the collection of general average security from the concerned in cargo in view of the fact that only one bill of lading is involved – preferably with the agreement of Hull Underwriters in the circumstances to bear the cost of collecting security (which would unlikely be much) if at the end of the day when the full facts of the casualty proves that this is a case of Sue & Labour.
What obligations as to seaworthiness does a ship-owner have under a time policy on ship subject to Institute of Time Clauses – Hulls 1/10/83?
The ITC-Hulls 1/10/83 (which specifies that the insurance is subject to English law and practice) do not mention the word “seaworthiness” / unseaworthiness and Section 39(5) provides as follows:
“In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.”
So, the law does not imply that the vessel, at any particular time, shall be seaworthy. However, where the vessel was unseaworthy, and the unseaworthiness contributed to the loss/damage, and the Assured was aware of the unseaworthiness, the Underwriters are not responsible for the loss/damage.
Hence, if the vessel was unseaworthy and the Assured was aware of that unseaworthiness which did not contribute to the loss/damage caused by a peril insured, the Underwriters still have to pay the claim. On the other hand, if the seaworthiness contributed to the loss/damage proximately caused by a peril insured but the Assured was not aware of that unseaworhiness, the Underwriters again will have to pay the claim.
“Privy” means that the Assured must know or should have known the defect and such knowledge includes so-called “turning a blind eye” and it is submitted that this will extend to the Assured being required to ask questions, keep a good record of maintenance and inspection. The burden of proving unseaworthiness rests with the Underwriters but the Assured will have to first of all prove a loss proximately caused by a peril insured against.
Damage to main engine bearings, etc., attributed to negligence of crew was repaired at Port A early last year but after 12 months damage to main engine idle gears became apparent at sea and the vessel had to put into Port B where permanent repairs were effected. The repairs involved re-metalling bearings and was agreed to have been resulted from negligence of the repairers in re-metalling of the bearings at Port A last year.
The vessel was insured subject to Institute of Time Clauses – Hulls 1/10/83. The Assured has put forward the claim for the Port B repairs as being a supplementary claim for the Port A repairs, i.e. same crew negligence claim applying one single deductible for both. Underwriters however contend that the second repair is a separate claim attributable to negligence of the repairers at Port A on the first occasion and is subject to a separate deductible in terms of Clause 12 of the ITC-Hulls 1/10/83. Whose contention is correct?
Section 69 of the Marine Insurance Act 1906 provides for the measure of indemnity being the reasonable cost of repairs. What is reasonable is a question of fact. Section 88 of the MIA specifically states that this is so as regards reasonable time, reasonable premium and reasonable diligence and it would seem logical to apply the same principle to reasonable cost and reasonable repairs. Understandably, the Assured, having acted reasonably and bona fide in carrying out the reinstatement of his loss he is entitled to call these repairs the reasonable repairs and cost incurred the reasonable cost of repairs. However, it is submitted that there is a clear distinction between the situation where repairs, effected and in good faith considered to be permanent, subsequently transpired to have been insufficient and the situation where repairs would have been entirely satisfactory but for the negligence of repairers in the effecting of the repairs (whether the negligence results in a duplication of the original damage or not). The facts of this case seem to suggest that the latter situation exists. We would agree with the Underwriters that the damage repaired at Port B is a result of an entirely new and separate accident, negligence of repairers at Port A.
The Editor would share with readers the following old notes by his former partner, who was an outstanding average adjuster:
- Underwriters are liable for reasonable cost of repairs but are not guarantors to Assured for workmanship of repairers.
- If repairs are entrusted to repairers of repute with appropriate facilities the cost of that work normally represents reasonable cost of repairs.
- If such repairers do a bad job and damage results, the damage is a separate claim for repairers’ negligence if covered.
- If such repairers do a bad job, whether damage is sustained or not, the cost of re-doing properly the work which had been done badly, is not part of the reasonable cost of repairs either of the original damage, or of the new damage.
- If, with general agreement, a calculated risk is taken with a method of repair which might succeed or not (e.g. metal locking, or welding on propeller blade tips) and it fails in ordinary service, I would allow the cost of that work, and the cost of the new bedplate etc. or propeller, as part of the reasonable cost of repairing the original damage.
Clause 10.4 of Clause 10 – Notice of Claim and Tenders of the ITC-Hulls 1/10/83 states: “In the event of failure to comply with the conditions of this Clause 10 a deduction of 15% shall be made from the amount of the ascertained claim. Does “ascertained claim” refer to the gross claim?
There used to be argument that the “ascertained claim” refers to the gross claim, i.e. before the application of the policy deductible. However, in practice, we often saw adjusters apply the 15% penalty to “net” claim, i.e. after applying the deductible. In their book on the Institute Time Clauses, Messrs. N.G. Hudson and J.C. Allen, both former chairmen of the Association of Average Adjusters write: “There is a fixed penalty for non-compliance with the conditions of this clause and this is specified as a 15 per cent deduction from the ascertained claim (the ascertained claim being the net claim after the policy deductible).”
(Do you have a specific problem on a marine insurance claim? Then, write to “AA Talk” – email: email@example.com)
In adjusting general averages, to make allowances for sacrifice or expenditures incurred for the common safety, one would have to consider if the vessel and her cargo were in peril in the circumstances following an accident.
Rule A of the York-Antwerp Rules, an internationally accepted code of rules for the adjustment of general average, defines a general average act as follows:
“There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.”
The starting point for any discussion as to whether a vessel was in peril is the summary of the legal position given in the leading case of Vlassopoulos v. British & Foreign Marine Insurance Co. (1929), which the Editor quotes below:
“It is not necessary that the ship should be actually in the grip or even nearly in the grip of the disaster that may arise from a danger. It would be a very bad thing if shipmasters had to wait until that state of things arose in order to justify them doing an act which would be a general average act.
That is all, I think which need be said with regard to that matter, unless I add this: that “peril” which means the same thing as “danger” is the word used in the general rule (A) ( of the York / Antwerp Rules 1924 ) just as it is the word used in the Marine Insurance Act, Sect. 66. The word is not “Immediate peril or danger.” It is sufficient to say that the ship must be in danger, or that the act must be done in order to preserve her from peril. It means, of course, that the peril must be real and not imaginary. It means that it must be substantial and not merely slight or nugatory. It must be a danger. This is a matter of fact.”
The Judge made four points:
- The peril need not be immediate.
- The peril must be real and not imaginary.
- It must be substantial and not merely slight or nugatory.
- It is a question of fact in each case.
It is believed that the test as stated above has been adopted in all cases since 1929 on the question of peril.
Where vessel aground – in peril or not
The editor, when he was a trainee adjuster, was advised by an experienced technical consultant of a general proposition that:- “It is my contention that any ocean going vessel, particularly one with cargo on board, which goes aground in a position where she is not meant to go aground may be considered to be in a position of peril”. Although it seems to be likely true very much more often than not, the editor suggests that each case be treated on its own merits.
There are indeed decided cases on the question of peril whilst aground, including the Rodney (1904), Charter Shipping v. Bowring Jones (1930) and Daniolos v. Bunge (1937), where some guidance can be adduced.
An average adjuster studies the circumstances of each case in conjunction with his technical consultant to help him/her be satisfied if the vessel aground with cargo on board is in a position of peril or not. It is suggested that the following questions be raised and considered:
- Was the position in which the vessel grounded a sheltered one, or was it exposed and open to strong winds, etc.?
- Was the bottom even and of soft mud, or were there rocks beneath on which the vessel might sustain damage?
- Is there any great range of tide?
- Could it have been predicted when the water level might rise sufficiently for the vessel to refloat without assistance?
- If a storm or hurricane were to occur, could this cause damage to the vessel or would it first raise the level of the water sufficient for the vessel to float off?
- What would have happened to the vessel and cargo if nothing had been done about the condition which gave rise to the course adopted, or what alternative existed to the course adopted?
Where vessel hijacked by pirates
The editor quotes below for readers’ interest adjusters’ notes extracted from 2 adjustments he has studied respectively, the contents of which are self-explanatory:
Case A – Vessel with cargo of phosphoric acid was hijacked by pirates off Somalia.
“The ship and cargo were in peril as a consequence of being taken over by pirates, and costs incurred to secure their release were for the common safety and give rise to a General Average claim in terms of Rule A of York-Antwerp Rules 1994.”
Case B – Vessel with a cargo of “seized coal” was seized by pirates off the coast of Somalia.
“The circumstances of this case are fortunately relatively unusual. We believe that whilst the ship and cargo were under the control of the pirates they were in a position of common peril. The immediate threat was to the safety of the crew but there were also threats to “break” the ship. In the circumstances these are considered to be a real threat. By threatening the crew, the operation of the ship was compromised and safety of ship and cargo was imperiled. It may be that the peril was not immediate but we consider that the ship and cargo were in the grip of real peril.
Furthermore there was an additional element to the peril in that during this period the cargo of coal began to heat and give off methane gas. The reason for this was the voyage was longer than anticipated but more particularly the vessel was moored in the lee of the coast with ambient temperatures being much hotter than would have been experienced to the vessel that was proceeding normally on its voyage. It was very difficult to ventilate the cargo to reduce the temperature. We have not investigated this aspect but it is possible there was threat of extraordinary heating / fire and / or explosion white the vessel was under the control of the pirates affected ship and cargo.
The General Average act involved in this case was that of paying a ransom to the pirates in order to get the crew, ship and cargo released together with the ancillary costs involved. The allowance falls under York-Antwerp Rule A of the 1994 York-Antwerp Rules. This reads “there is a General Average Act when, and only when any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure”. The payment of the ransom was intentionally and voluntarily paid and we consider it is recoverable under the wording of Rule A and any consequential and ancillary payments under Rules A and C of York-Antwerp Rules.”
The editor would suggest that it is advisable for the adjuster to enlarge his explanation as the adjuster did in Case B.
EVENING IMP WORKSHOPS
The series of workshops with a theme of “Inter-disciplinary Maritime Practice” (IMP) was the brainchild of three institutions in Hong Kong, namely, The Institute of Sea Transport (IST), The Hong Kong Logistics Management Staff Association (HKLMSA) and The C.Y. Tung International Centre for Maritime Studies, PolyU (ICMS) with a view to providing a platform for some movers and shakers from the Hong Kong Maritime Industry to unreservedly share their views and valuable experiences with those whose careers and professions are in the shipping fraternity of Greater China Region. The IMP Program was structured to cover the entire life-span of a ship, from the decision to purchase to its final loss or scrapping. The mode of workshops was based upon a case-study format, with guest-speakers being invited to share their view and valuable experience, be it good or bitter, in specific issues. It was intended to be a very proactive educational workshop. We are pleased to report that IMP managed to have successfully delivered 12 workshops for the period 9th January 2014/3rd December 2015, with following topics:
- Decision Making in Ship Acquisition
- Financial Options for Ship Acquisition
- Sale & Purchase and Newbuilding of Ships
- Ship Types, Machineries & Equipment
- 5) Management of Ships & Ship Managers
- 6) Professional Services in Maritime Practice
- Ship Employment, Chartering, & Administration
- Ship Operations, Crewing, Technical Maintenance & Agency
- Marine Insurance (Part I) – H & M and P & I
- Marine Insurance (Part II) – Disputes & Casualty Management (Legal & Commercial)
The feedback from the attendees being encouragingly positive, the IMP Workshop Organizing Committee derives great satisfaction in seeing how the IMP Workshop Series has contributed to the shipping fraternity of the Greater China Region and is in the process of considering the feasibility of repeating the project during the course of 2016.
Clause 17 of the Institute Time Clauses – Hulls 1/10/83, which reads as follows:
“In no case shall any sum be allowed under this insurance either by way or remuneration of the Assured for time and trouble taken to obtain and supply information or documents or in respect of the commission or charges of any manager, agent, managing or agency company or the like, appointed by or on behalf of the Assured to perform such services.”
An Underwriter has recently challenged the allowance in an adjustment for (repair) port agents’ fees on the grounds that these were excluded by the Clause.
We are surprised to see an underwriters’ attitude some 32 years after the introduction of the Clause, the wording of which was recognized as being not ideal. Briefly, for background information, it had been established practice that Owners of a ship was not entitled to claim on policies of insurance on ship any remuneration for his own time and trouble in processing the claim. However, during the late 1970’s and early 1980’s, the amount of agency fees charged by agency or management company set up by the shipowner which finances itself thereon, had become unreasonably high, prompting the Underwriters in the leading insurance market, London to introduce the above-mentioned Clause 17 when the ITC were revised. From the memory of the editor, similar problem as raised by the reader arose in the London market but after discussions, Underwriters agreed that port agents remuneration could be allowed provided a suitable note was inserted in the adjustment explaining the nature of the charge. Accordingly, to avoid confusion and as recommended by Underwriters, the following Adjuster’s Note, or something similar, was made under the agency charges included in a port agent’s general account covering expenses incurred in respect of the vessel at the repair port:
The fees charged in the above account represent charges of port agents for handling operations connected with the vessel at the port. Allowance therefor is not excluded by the terms of Clause 17 of the Institute Time Clauses – Hulls 1/10/83.”
After this had become a well known practice and recognition, the above adjusters’ note had become unnecessary since early 1990’s. Reference can be made to the authoritative commentary made about the Clause in the text books like “The Institute Clauses” wherein Messrs. N. Geoffrey Hudson and J. C. Allen write, “… it should be mentioned that this clause does not exclude the fees and charges of an agent at a port of call, which can still be recoverable under certain circumstances with the other port charges as part of the cost of repairs.”