US Supreme Court Rules- Warranty of Safety in Charterparties is an Absolute Obligation (Citgo Asphalt Refining Co v. Frescati Shipping Co Ltd)

The tanker, Athos I, was directed to a berth by her charterers at a terminal in Philadelphia in 2004. As the vessel was approaching the berth, she struck a submerged anchor. As a result, the vessel’s hull was damaged and some 263,000 gallons of crude oil spilled into the Delaware River. The cost of the clean-up operations was around US$180m.

The owners of the Athos I brought an action against the voyage charterer contenting that the charterer was in breach of its warranty to provide a safe port/safe berth for the ship to discharge the cargo and was therefore liable to reimburse the ship owner for the costs of the clean-up paid by them. The relevant provision in the charterparty provided:

‘…the vessel shall load and discharge at any safe place or wharf… which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer….’

safeport

The district court gave the judgment against the owners of the Athos I on the basis that the obligation of the charterer under the charterparty was to exercise due diligence in providing a safe berth/safe port and that was satisfied in the case. On appeal, the US Court of Appeals for the Third Circuit reversed the district court’s decision. In doing so, the Third Circuit aligned itself with the Second Circuit ignoring a case decided in 1990 by the Fifth Circuit (whereby it was held that a due diligence standard should be read into a charterer’s warranty of a safe berth/safe port).

The US Supreme Court (7-2) came to the conclusion that such a form clause commonly used in the industry must be construed as an express warranty of safety and imposes on the charterer an absolute duty to select and provide safe berth. The majority emphasized that the safe berth clause in the charterparty was clear and unambiguous.

The majority (an opinion delivered by Justice Sotomayor) rejected charterer’s that the safe berth clause imposes simply a duty to exercise due diligence. In their view, such a due diligence standard resonates more in tort, rather than contract. The parties could have adopted a due diligence standard explicitly in the safe berth clause, as they did elsewhere in the contract. The absence of similar language in the safe berth clause provides further evidence that the parties did not seek to imply such a limitation on the duty of the charterer.

The Supreme Court’s decision follows the traditional approach adopted by the English law with regard to warranty of safety of a port/berth (The Eastern City [1958] 2 Lloyd’s Rep 127) and will certainly be welcomed by the industry (i.e. shipowners) and, their hull underwriters who in most cases will end up pursuing charterers when a chartered vessel is damaged in a port/berth which turns out to be unsafe. It is worth to note that the judgment does not prevent this obligation from being watered down by a due diligence standard in a charterparty as long as clear and apposite wording is employed to this end.

Another Nail in the Coffin? Rotterdam Rules One for the Shelves?

When introduced more than a decade ago, the Rotterdam Rules were welcomed with great enthusiasm and many were optimistic that the Rules, which introduce a modern carriage regime suitable for the new century, would soon replace the old-fashioned Hague-Visby regime.

Not many believe that this is a genuine prospect any more. As of today only 4 countries have ratified the Rotterdam Convention, namely Cameroon, Congo, Spain and Togo and the Netherlands have recently taken the first steps towards ratification and implementation of the Rotterdam Rules by submitting two draft bills to Dutch Parliament. However, there seems to be no urgency amongst the trading nations to ratify the Rotterdam Rules. For example, the current administration in the US does not seem to be interested. The same is true for UK government which is at the moment consumed with BREXIT and its implications. Norway has appointed a law commission to review the Rotterdam Rules and its possible ratification, and the commission was in principle in favour of incorporating the Rotterdam Rules, but recommends that Norway does not ratify the convention before the US or any larger EU states do. Germany and Belgium expressed strong objections to the Rules. And China seems to be watching the developments at this stage showing no interest in ratifying the Convention but instead engaged in a review of its Maritime Code which will possibly introduce some aspects of the Rules into its national law.

But life goes on! And the news that Malaysian law makers decided to implement the Hague- Visby Rules into Malaysian domestic law is a very interesting one indeed. The Carriage of Goods by Sea (Amendment) Bill 2019 is expected to come into force in 2020. The amending bill does not set out the provisions of the Hague-Visby Rules but states that the Minister is entitled to amend the Schedule to the Act by order published in the Gazette (the Schedule presently sets out the provisions of the Hague-Visby Rules). So, the Rules will become part of Malaysian law after the Act comes into force and the Minister issues an order. The process might seem complicated for those who are not familiar with the constitution and public law of Malaysia but the step is important as it is a clear indication that emerging trading nations are now working under the assumption that no fundamental change will happen in this field and Hague Visby Rules will continue to dominate international carriage. There is no doubt that Rotterdam Rules introduce several sensible solutions to modern problems, i.e. electronic documents, which can be utilised when reforming national legal systems (and it is believed that China will do that) and some of its aspects might be introduced by contractual agreement into a carriage contracts, but it is also becoming clear that the Rules will probably not become part of international legal system.

For a legal analysis of Rotterdam Rules, you can read an article that the author wrote together with late Dr Theodora Nikaki:

A New International Regime for Carriage of Goods by Sea: Contemporary, Certain, Inclusive, and Efficient or Just Another One for the Shelves?’ (2012) 30 Berkeley Journal of International Law pp 303-348

Dr-Theodora-Nikaki

Dr Nikaki talking about Rotterdam Rules at IISTL’s 10th International Colloquium

Exceptions to the Running of Laytime- “Wording” is the Key (Bad Weather?)- London Arbitration 21/19

Ship1

In commercial contracts, exclusion clauses are often construed narrowly. In the context of voyage charterparties, this could create significant difficulties for charterers who attempt to rely on an exclusion clause to stop the running of laytime or demurrage.

In the contract in question, it was expressly stipulated that … if … loading… [was] … suspended: [a] due to bad weather (including… storms, high winds…) or [b] for other reasons not attributable to charterers or their shippers/receivers, laytime and demurrage would not count.

At the port of loading, the laytime period started on 25 August. A tropical storm was approaching to the loading port but loading continued and the terminal indicated at 13.00 hours on 26 August that there was no present intention to shut-down due to the fact that the approaching hurricane’s land fall remained uncertain. However, at 15.30 hours on the same day, the terminal stopped loading and the vessel was advised to leave for anchorage. The terminal informed the vessel that they had no alternative but to vacate the vessel as weather conditions would make anchorages scarce and they had to consider the safety of their docks, fleet and terminal. The port remained closed for the next few days and on 29 August the vessel re-berthed and completed loading. The main legal issue was whether laytime stopped when the vessel was ordered off the berth.

It was held that the laytime was not suspended when the vessel left the berth on 26 August as for laytime to be suspended under a clause of this nature it was necessary to show that time was lost due to bad weather. The tribunal observed that it was impossible to calibrate the imminence and nature of bad weather when the vessel sailed away on 26 August but was adamant that the facts did not suggest that loading as suspended due to bad weather. What led tribunal to this conclusion was the fact that the hurricane was still at least 2 days away and there was no immediate danger to shipping. The terminal’s decision to close the facility was based on its desire to ensure the safety of its barges and there was also concern that vessels would find it difficult to find anchorages if they stayed any longer in the terminal.

However, the charterers managed to convince the tribunal that the running of laytime was suspended for “reasons not attributable to charterers or their shippers/receivers”. They got the decision of the tribunal in their favour on this point as they successfully argued that they had no connection with the terminal so the actions of the terminal were not attributable to them. It was stressed by the tribunal that shippers and the terminal were separate legal entities with no agency relationship.

The first part of the decision is in line with the precedent set in a number of authorities most notably Compania Crystal de Vapores v. Herman [1958] 2 QB 196 where the chartered vessel ordered from the berth by harbour master due to threat of bad weather. There, it was held that time lost as a result of measures taken for safety of the ship as a result of bad weather does not count. It is vital that bad weather should potentially prevent the loading/discharge. Therefore, to suspend the running of laytime in a case like this, charterers would need to show that the relevant clause refers not only to “bad weather” but also to “steps taken due to bad weather”. The finding on the second part of the clause was fact based and the decision went in favour of the charterer as the owner failed to show that there was any organic relationship between the charterers/shippers and the terminal. However, it is evident that the wording adopted makes this a very broad exception and could potentially provide relief to charters in most instances.

A Further Clarification on Cyber Risk Cover by the Lloyd’s Market Association

cyber-risk

Although cyber risks insurance in the London market is fast growing, more clarity is needed as various types of clauses drafted by different insurers are in use creating an enormous degree of confusion for assureds as to the scope of the cover on offer. With the objective of providing added clarity, from 1 January 2020, Lloyd’s underwriters will be required to clarify whether first-party property damage policies affirm or exclude cyber cover.

This is certainly a positive development and with the aim to assisting in this process, the Lloyd’s Market Association (LMA) has recently published a number of new clauses for the property and marine markets that can be used with traditional lines of business, e.g. hull & machinery policies, war risks insurance policies for vessels and other offshore structure. It should be noted that clauses published by LMA are designed to act as “models” and are distributed for the guidance of its members, who are free to agree to different conditions or amend as they see fit.

The new clauses published by the LMA comprise a cyber endorsement (LMA5400) and exclusion clause for Property D&F (LMA5401) and a cyber endorsement (LMA5403) and exclusion clause for Marine (LMA5402). All clauses explicitly supersede or replace conflicting policy wording related to cyber loss and data.

Both the property endorsement and exclusion clauses exclude coverage for any cyber loss, as well as any costs related to the use or replacement of data. The endorsement does, however, affirm coverage for physical loss or damage to property caused by fire or explosion that results directly from a cyber incident, as well as coverage for physical damage related to data processing media owned by a policyholder.

The marine clauses, meanwhile, rule out coverage for any loss or expense related to the “failure, error or malfunction of any computer, computer system, computer software programme, code, or process or any other electronic system.” Similarly, they exclude coverage for “the use or operation, as a means for inflicting harm, of any computer, computer system, computer software programme, malicious code, computer virus or process or any other electronic system.” However, marine cyber endorsement clause makes it clear that if the clause is used with policies covering risks of war, civil war, revolution, rebellion, insurrection, or civil strife arising  therefrom, or any hostile act by or against a belligerent power, or terrorism or any person acting from a political motive, the cover will be available for losses arising from the use of any computer, computer system or computer software programme or any other electronic system in the launch and/or guidance system and/or firing mechanism of any weapon or missile.

It should be noted that liability and treaty reinsurance policies will also be required to clarify whether they affirm or exclude cyber cover and these requirements will come into effect in two phases during 2020 and 2021.

The Future of Commercial Law (Cryptoassets and Smart Contracts) under Consideration

 

The UK Jurisdiction Taskforce (UKJT), one of the six taskforces of the LawTech Delivery Panel, published its findings on 18 November 2019 on the issues of legal uncertainty regarding the status of cryptoassests and smart contracts under English law in a document entitled “Legal Statement on Cryptoassets and Smart Contracts”.

On the status of cryptoassets, the UKJT concluded that such assets, as a matter of English legal principle, to be treated as a “property”. In reaching this conclusion, the UKJT stressed that crypto assets meet the following characteristics of “property”:

  • They are definable and certain;
  • They are exclusive and capable of being controlled;
  • They are capable of being owned and transferred (through the use of the private key);
  • They have some degree of permanence and stability.

Considering the current legal rules and principles and scope of various statutes, the UKJT expressed the following views on cryptoassets:

i) They are not documents of title (so that they do not enable the person holding them to deal with the property described as if they were the owner);

ii) They are not negotiable (so a good faith purchaser cannot acquire good title);

iii) They are limited in terms of what security can be granted over them (as such they cannot be the object of “pledge” or “lien”);

iv) They are not “goods” for the purposes of the Sale of Goods Act 1979; and

v) However, they are “property” for the purposes of the Insolvency Act 1986.

The UKJT indicated that the intervention from legislators would be necessary to solve two aspects of cryptoassets. It has been stressed that problems are likely to arise if no governing law has been chosen. In that scenario, new law, ideally at international level, is required to answer this question. It is also clear that without new law, a distributed ledger cannot be an official register of title like the Land Register.

On the legal position of smart contracts, the findings of the UKJT are more straightforward. Accordingly, smart contracts are capable of satisfying the English law requirements on contract formation. A court would interpret a smart contract in the same way as any other contract. On the issue of whether one can have a contract with anonymous or pseudonymous parties (given that users within a smart contract chain tend to transact in relative anonymity), it has been stressed that there is no requirement to know a party’s true identity. Also, it is the view of the UKTJ that a statutory signature requirement is highly likely capable of being met by means of a private key. Lastly, it has been stressed that statutory “in writing” requirement is likely to be met in the case of source code and, to the extent it is in readable format, object code.

The legal position of crypto assets has already been judicially aired in a number of cases (Liam David Robertson v. Persons Unknown [2019] not yet reported and B2C2 v. Quoine Pty (2019) SGHC(I)03 (Singapore International Court)). There are also reports that over $1.5 billion worth of cryptocurrency was stolen last year by hackers. It is obvious that courts in near future will be occupied dealing with matters concerning cryptoassets. Although it is not binding authority, there is no doubt that the Legal Statement will very useful when such issues are brought before the English/Welsh courts. The author believes that common law’s ability to adapt to different situations will be a key asset in resolving most of the legal issues emerging. However, it is also clear from the Legal Statement that there is an urgent need to consider developing appropriate legislation and regulation to deal with some of the issues that will emerge in particular: choice of law issues and the legal status of a distributed ledger. So, the ball is now in court of the Law Commission!

The potential for smart contracts in global financial markets is huge. Once they take off, one can see an increased use of them in shipping, aviation and energy sectors as they have the capability to provide immutable data! This can, of course, enhance certainty by reducing the scope of potential disputes between various parties to such contracts.

In summary, the way we do business is changing as a result of technology and this will undoubtedly test the ability of English common law to deliver against the expectations of global businessmen. There is an urgent need to engage in a serious debate to determine how we can address the complex range of legal issues thrown up by the massive accumulation of big data, on-chain smart contracts and other aspects of artificial intelligence.

“The Brillante Virtuoso Was Scuttled by Those Operating under the Instructions of the Owner” is the View of the Commercial Court

On 21 February 2019, a piece was published on this blog posing the question: “What really happened to the Brillante Virtuoso”? A meticulously drafted judgment of Teare, J ([2019] EWHC 2599 (Comm)) provides an answer to that burning question.

Now briefly the facts!  On 5 July 2011, on route to China with a cargo of fuel oil, the Brillante Virtuoso was boarded by pirates off Gulf of Aden. The pirates directed the vessel to Somalia but when the engine stopped and could not be re-started, they allegedly placed a detonator in the engine room causing huge damage to the vessel. The vessel was insured for $US 55 million with an additional $US 22 million increased cover with ten Lloyd’s underwriters. The underwriters refused to indemnify the assured (Suez Fortune Investments Ltd). The assured and its bank (Pireus Bank AE) as a co-assured under a composite policy brought a claim against the insurers.

Image result for the brillante virtuoso

In the first stage of the trial, the claimants were successful and Flaux, J, (as he then was) held that the vessel was a constructive total loss under s. 60(2)(i) of the Marine Insurance Act 1906 as she was damaged by an insured peril and the cost of repairs would exceed the insured value of the ship when repaired [2015] EWHC 42 (Comm).  In 2015, war risk underwriters alleged wilful misconduct. As the case proceeded the owner of the vessel, Mr Marios Iliopoulos, declined to provide electronic documents related to the case to his own counsel or to the counsel of underwriters, raising questions for the court. In 2016, the owner’s claim was struck out for a failure to comply with disclosure obligations and Flaux, J, was adamant that Mr Iliopoulos had invented a false story in an attempt to explain his failure to make disclosure. The claim was then pursued by the bank alone. The underwriters resisted the claim put forward by the bank alleging that the loss was caused deliberately by the assured and hence was not covered by the policy.  

The case does not alter established legal principles in any significant manner. The burden of proving wilful misconduct or scuttling, on balance of probabilities, lies upon the insurers and as stressed by Neill, LJ, in The Captain Panagos DP [1989] 1 Lloyd’s Reports 33 at p. 43, “an inference of the owner’s guilt can properly be drawn if the probabilities point clearly and irresistibly towards his complicity.” On that premise, Teare, J, was convinced that the cause of loss was on balance of probability was “wilful miscounduct” of the assured. He pointed out to several inconsistencies in the owners’ account of the attack. For example, the incident occurred within Yemeni waters off Aden, a location where Somali pirates had never attempted a boarding before (and have not since). In VDR recordings, the attackers identified themselves as “security,” suggesting that if they were pirates, they would have had to have known that the vessel was awaiting a security detail. They brought with them an incendiary device. The master allowed them to come aboard, even though they were masked and armed and the ship was awaiting an unarmed security team. When directed to steer towards Somalia, the master selected a very different course, but the attackers did not detect this or correct it!

Accordingly, it was held that the supposed attack by pirates was a “fake attack”, and that in reality it was a charade orchestrated by the owner of the vessel, Mr Iliopoulos. It was also held that the vessel’s master and chief engineer were complicit in the scheme, alongside local Aden-based salvors, Poseidon Salvage, and current or former members of the Yemeni coast guard or navy.

An interesting point was raised by the bank in its submissions. On the assumption that the bank is insured under the policy as a composite co-assured, was it possible to argue that in the popular or business sense the owner of the vessel was a pirate, since they carried out the attack on a vessel (or instructed that the attack was to be carried out) with a motive of personal gain/to satisfy personal senses of vengeance/hatred? Teare, J was quick to dismiss this argument indicating that the violence to the vessel and the threat of violence to the crew would not qualify as piracy if carried out by the owners (or the conspirators) with the intention to defraud the insurers. This might seem an obvious point to some but is another clarification on the meaning of “piracy” for the purposes of marine insurance law. The bank’s attempt to argue that the loss was caused by “persons acting maliciously” also failed. Teare, J, quoting from the Supreme Court judgment in The B Atlantic [2018] UKSC 26 stressed that this peril involves an element of “spite or ill-will or the like in relation to the property insured or at least to other property or perhaps even a person” but he rightly indicated that those who were permitted to board the vessel did not act out of “spite or ill-will or the like” in relation to the vessel but did so on the request of the owner in order to assist him in his fraudulent plan to deceive the underwriters. Put differently, here the owner sought to damage his own property and the armed men sought to assist the owner, not to harm him.

The finding of the trial judge on the “wilful misconduct” point was adequate to decide the case in favour of the war risk underwriters insurers but it was briefly stated in the judgment that underwriters were also successful on a number of subsidiary and alternative defences such as the insured vessel being outside the geographical limits of policy (the so called “Aden agreement” point) at the time of the alleged loss and breach of a warranty that required compliance with advice and recommendations of an IMO Circular concerning planning and operational practices for ship operators and masters of ships transiting the Gulf of Aden and the Arabian Sea.

The case does not necessarily establish novel legal points but a 52 day trial and a very lengthy judgment is a good illustration of the work that needs to be carried out by lawyers and judges in cases where insurers raise “fraud” as a defence to a claim under the policy.     

Much Ado About Nothing! A Marine Insurance Case That Promised A Lot But Delivered Very Little

McKeever v. Northernreef Insurance CO SA (22 May 2019)(LM-2018-000044) 

The owner of a sailing yacht named CREOLA, Mrs McKeever, brought an action against Northernreef Insurance CO SA, a Uruguayan insurance company, under a yacht policy providing against the usual range of marine risks, including perils of the seas, piracy, malicious acts and theft.

On 19 March 2014, the insured yacht grounded on a reef in the Sulu Sea. The assured and her friend’s attempts to re-float her were unsuccessful and they had to abandon the yacht as the waves were becoming stronger. Having secured and padlocked the hatches, they were picked up by a fishing vessel which responded to their mayday signal. The next day, they returned to the yacht with the coastguard to find out that the windows had been broken and she had been looted. Various valuable items including electronic navigation aids had been stolen. The assured engaged a firm to guard the yacht and also a salvage company to move the yacht to a place of safety. The salvage company found flooding to a depth of six inches in the portside midsection. On 7 April 2014, the salvage company managed to re-float the yacht and tow her to the Penuwasa boatyard.

The assured’s numerous attempts to claim from the insurer failed. The current proceedings were issued against the insurer in the UK and served on its UK agent. The insurer failed to engage with any of the litigation process save for filing a defence and did not attend trial.

The assured’s claim included:

  1. Damage to the yacht;
  2. Indemnity for the items stolen;
  3. Recovery of the sums paid for guarding the yacht and sums paid for re-floating and towing the yacht (as sue and labour expenses)

Miss Julia Dias QC sitting as the Deputy High Court Judge awarded the assured the diminution in the market value of the yacht owing to the totality of the damage suffered, the value of the stolen items, and her sue and labour expenses.

Grounding Damage

The trial judge was convinced that the initial damage of the hull was caused by “perils of the seas” as the grounding itself was fortuitous. The defendant insurer’s counter arguments that i) the maintenance warranty was breached; ii) the yacht was unseaworthy owing to out-dated charts; and iii) the grounding was caused by the assured’s negligence, had no prospect of success as no evidence was presented by the insurer to maintain these points. There was also no doubt that damage caused by the ingress of water was also recoverable as a loss caused by perils of the seas. In this context, discussion was carried out whether damage caused by ingress of water could be attributable to “piracy” or “theft” or “malicious acts” of third parties given that the looters broke the windows and left hatches open enabling the entry of seawater. The observations of the judge on these points are interesting. On the point of piracy, she indicated that piracy in English law can be defined as “forcible robbery at sea” (The Andreas Lemos [1983] 1 QB 647, at 796-7). She then, relying on s. 8(1) of the Theft Act 1968 reached the conclusion that robbery requires there to be a threat of violence or use of force directed at some person and it was, accordingly, not adequate that violence was directed at the property. This conclusion is not free from criticism. Most would find it strange that assistance is sought from a national legislation, e.g. the Theft Act 1968, in ascertaining the meaning of a marine peril which invariably occurs at high seas, i.e. outside the jurisdiction of any national state. More fundamentally, however, in relevant authorities (especially Republic of Bolivia v. Indemnity Mutual Marine Assurance Co [1909] 1 KB 785, at 796-7) emphasis has been made to the fact that piracy was in essence indiscriminate plunder for personal benefit carried out at sea and with force. There is nothing in that case stressing that violence must be directed to people and violence directed at property would not suffice for the purposes of defining the boundaries of piracy. 

The judge acknowledged that violence directed at property was adequate to bring an action under the peril of the “theft”, she held that while the water ingress can be regarded as having resulted in a general sense from the theft, its proximate cause was the forcible entry rather than the theft of the machinery and it is only the latter which is insured under the policy. This is a curious reasoning, to say the least, considering that the efficient cause of the loss here seems to be breaking of the windows to facilitate theft of various items on board the yacht.

It was relatively easy to rule out “malicious acts” as a cause of the loss on the premise that the looters here were motivated by self-interest (i.e. their actions were motivated for the purpose of facilitating theft).

Indemnity for items stolen

The insurers themselves had conceded that indemnity for the items stolen was recoverable under the peril of the “theft” as there was clear evidence of violence against the property.

Sue and Labour Expenses

The trial judge had no doubt that expenses incurred, i.e. engaging a firm to protect the insured yacht and engaging the salvage company to remove her from the reef and tow to Penuwasa boat yard were properly and reasonably incurred for the purpose of taking reasonable measures to avert or minimise a loss

Conclusion

The case leaves so many points unanswered. The conclusion about the essential elements of “piracy” in the context of a marine insurance policy is debatable. Also, the judge’s findings on issue of identifying “proximate cause” of the loss are questionable. The case also presented an opportunity to deliberate to what extent a clause excluding claims from negligence of an assured is valid in the context of a policy that is taken by an individual. No doubt, these issues would have been evaluated further had the insurer appeared before the Court. As it stands, the judgment does not add much to the development of marine insurance law. 

Supreme Court Clarifies the Law on CTL Calculation in Marine Insurance

The Swedish Club v Connect Shipping (The MV Renos) [2019] UKSC 29

Under s. 60(2)(ii) of the Marine Insurance Act (MIA) 1906, there is constructive total loss (CTL) when the insured ship is damaged by a peril it’s insured against and the cost of repairing said damage would exceed the insured value of the ship when repaired. In estimating the cost of repairs for the purposes of this provision, it has been held by Knowles, J, [2016] EWHC 1580 (Comm) that i) the costs incurred prior to the date of notice of abandonment and ii) the costs of salvage operations performed before the notice of abandonment, including sums payable under the SCOPIC clause, should be taken into account.

The underwriters’ appeal to the Court of Appeal on these points was rejected unanimously [2018] EWCA Civ 230 (per Hamblen, LJ, with whom Simon, LJ and Sir Geoffrey Vos C agreed). In a previous case note, the author was critical of the Court of Appeal’s reasoning, especially with regard to the second point, i.e. taking into account SCOPIC expenses incurred before the notice of abandonment in estimating the cost of repairs.

The Supreme Court (composed of Lords Sumption, Reed, Hodge, Kitchin and Lloyd Jones) allowed the appeal on this ground holding that SCOPIC charges cannot be considered as part of the “cost of repairing the damage” under s. 60(2)(ii) of the MIA 1906 (or the “cost of recovery and/or repair” under clause 19.2 of the Institute Hull Clauses). The Supreme Court stressed that the primary purpose of SCOPIC expenditure is to protect owners’ potential liability for environmental pollution not to enable the ship to be repaired. Hence, such expenditure is not connected with the damage to the hull or its hypothetical reinstatement and the mere fact that a prudent uninsured owner would have contracted with the same contractors for both prevention of environmental pollution and protection of the property does not make them indivisible. The author believes that the Supreme Court’s decision on this issue is intuitive and makes sense.   

On the issue of whether expenses incurred prior to the notice of abandonment should count towards the calculation of a CTL under s. 60(2)(ii) of the MIA 1906, the Supreme Court rejecting the submission of the underwriters, affirmed the findings of the lower courts. The Supreme Court approached the matter with reference to basic principles of insurance law indicating that several older judgements on the matter (in particular Hall v. Hayman (1912) 17 Comm Cases 81 and The Medina Princess [1965] 1 Lloyd’s Rep 361) lacked reasoning and legal argument. Taking into account the objective character of the factual enquiry of whether a vessel is a CTL and the fact that in marine insurance context the loss is suffered at the time of the casualty, the Supreme Court was adamant that the reference to “damage” in s. 60(2)(ii) was in fact reference to the entire damage arising from the casualty from the moment that it happened. Therefore, it cannot make any difference when costs are incurred, i.e. pre or post notice of abandonment. On that premise, the Supreme Court evaluated whether this principle might be affected by the legal requirement for a notice of abandonment but reached the conclusion that it is not.                   

At the commencement of litigation, it was agreed by the parties that, to be declared a CTL under s. 60 of the MIA 1906, the repair costs needed to be in excess of US$ 8 million. The matter in the light of the Supreme Court judgment will be remitted to the trial judge to determine whether the vessel had been a CTL and what financial consequences would follow from that. 

Waiver of Further Disclosure- The First Case Under the Insurance Act 2015

The Insurance Act (IA) 2015, which came into force on 12 August 2016, applies in England and Wales, Scotland and Northern Ireland (s. 23 of the IA 2015). It fell to the Court of Session (Outer House) in Scotland to deliver the first judgment under the Act in Young v. Royal and Sun Alliance plc [2019] CSOH 32.

The co-assureds (Mr Young and Kaim Park Investments Ltd, a company of which Mr Young was a director) brought a claim of £ 7.2 million for extensive fire damage to commercial premises insured. The insurer, Royal and Sun Alliance plc, rejected the claim on the basis that the assured failed to disclose material information (a commercial assured is under a duty of fair presentation under the IA 2015).

The policy had been entered through an insurance broker. The assured was requested by the insurance broker to fill in a proposal form which was prepared using the broker’s software. One part of the proposal form required the proposer to select from various options in a drop-down menu. The instruction read: “Select any of the following that apply to any proposer, director or partner of the Trade or Business or its Subsidiary Companies if they have ever, either personally or in any business capacity: …” The drop-down menu that followed this instruction included an option that any of the persons identified had been declared bankrupt or insolvent. Neither Mr Young nor Kaim Park Investments had been declared bankrupt or insolvent, however, Mr Young had previously been a director of four other companies which had entered into insolvency. The option which was selected on the proposal form was “None”. Accordingly, the proposal forwarded to the insurer showed the option selected, i.e. “None”, and the list of persons to which the declaration related. Once receiving the presentation, the insurer sent an e-mail to the brokers providing a quote for cover and a list of conditions. The conditions, inter alia, included: “Insured has never been declared bankrupt or insolvent.

In the present case, the assured’s argument was that the insurer’s e-mail response amounted to a waiver by the insurer of its right to receive the undisclosed information regarding the four insolvent companies.

The 2015 Act introduces no fundamental change on the law on waiver (a point which both parties agreed). By virtue of s. 3(5) (e) of the Act, the assured is not required to disclose a circumstance “if it is something as to which the insurer waives information.”

The judge, Lady Wolffe, reviewing the case law under the Marine Insurance Act (MIA) 1906 reiterated that waiver in this context can typically arise in one of two ways:

  • Where the insured had submitted information that would prompt a reasonably careful insurer to make further enquiries but the insurer had failed to do so (WISE (Underwriting Agency) Ltd v Grupo Nacional Provincial SA [2004] 2 All ER (Comm) 613); and
  • Where the insurer had asked a “limiting question” such that the insured could reasonably infer that the insurer had no interest in knowing information falling outwith the scope of the question (Doheny v New India Assurance Co [2005] 1 All ER (Comm) 382). The classic example is where the proposal form asks about convictions within the last 5 years and which can instruct waiver of information about convictions more than 5 years ago.

It was decided by Lady Wolffe that only the second of these forms of waiver could be relevant in the present case. Therefore, the key issue was whether it could be inferred from the e-mail of the insurer to the broker stating that the “assured has never been declared bankrupt or insolvent” that the insurer waived information regarding the involvement of Mr Young in other companies which had entered insolvency.

Reviewing the case law on the point, Lady Wolffe stressed that in determining whether the insurer’s email response amounted to waiver, the key consideration was whether a reasonable person in the position of the assured would be justified in thinking that the insurer had restricted its right to receive all material information. It needs to be borne in mind that when presenting the risk to the insurer, the broker utilized its own form rather than the insurer’s proposal form. The relevant part of the proposal form required the proposer to select from various options in a drop-down menu. The instruction read: “Select any of the following that apply to any proposer, director or partner of the Trade or Business or its Subsidiary Companies if they have ever, either personally or in any business capacity: …” The choices that followed this instruction included an option that any of the persons identified had been declared bankrupt or insolvent, but when assessing the risk, the insurer had only seen the selected option of “None” in the presentation. They had not seen the full list of options which the assured had selected from (which the judge referred to as matters concerning “Moral Hazards”). Therefore, the insurer’s email response intended to clarify that unknown matter. The insurer had done this by listing in the email the various hazards that required to be included. As a result, it was held that the reference in the email response to “the Insured” was not intended to limit the scope of the information being provided but had simply been used as shorthand for the group of persons identified in the presentation. Accordingly, there was no waiver on the part of the insurer with regard to the information not fully disclosed (i.e. the involvement of Mr Young in four insolvent companies).

Even though the case is the first one considered under the Insurance Act 2015, it does not shed any light on any of the novel concepts introduced by the Act. The decision was concerned with the preliminary question of waivers and was decided in light of authorities on the subject which have already existed for some time. Essentially, the fact that the broker’s own proposal form was used meant that the scope of information provided had been controlled by the assured and that it was impossible to be found as a waiver.

The Saga Continues- What Really Happened to the Brillante Virtuoso?

The Brillante Virtuoso was sailing from Ukraine to China with a cargo of fuel oil when she was boarded by pirates off Gulf of Aden on 5 July 2011. The pirates directed the vessel to Somalia but when the engine stopped and could not be re-started, they allegedly placed a detonator in the engine room causing a huge damage to the vessel. The vessel was insured for $US 55 million with an additional $US 22 million increased cover with ten Lloyd’s underwriters. The underwriters refused to indemnify the assured (Suez Fortune Investments Ltd). The assured and its bank (Pireus Bank AE) brought a claim against the insurers. In the first stage of the trial, the claimants were successful and Flaux, J, (as he then was) held that the vessel was a constructive total loss under s. 60(2)(i) of the Marine Insurance Act 1906 as she was damaged by an insured peril and the cost of repairs would exceed the insured value of the ship when repaired [2015] EWHC 42 (Comm). The insurers argued unsuccessfully that in taking into account the repair value of the damage, the cost of repairs at China should be taken into account. The claimants, on the other hand, argued that the repairs were completed in Dubai and the cost incurred at Dubai should be taken into account even though the cost of repairs in Dubai was 17.5 % more than the cost of repairs in China. Flaux, J, held that that the appropriate location for repairs will depend on the individual circumstances of the case. In this case, he was of the view that Dubai was the most appropriate place for repairs taking into account i) risks that will be associated with further towage to China; ii) cost of insurance for the tow; iii) loss of income for additional period of time; and iv) reputation of yards (not only with regard to the quality of workmanship but also accuracy of cost estimates and the risk of delay).                        

The Brillante Virtuoso after the incident!

The second stage of the trial which will determine the issues of liability of the insurers commenced on 18 February 2019. Parties have different views of what happened to the Brillante Virtuoso in July 2011. The owners argue that the attack was carried out by the pirates who were or used to be members of the Yemeni navy or coast guard. The insurers, on the other hand, put forward the view that the attack was staged by the owners of the ship so this is a case of “wilful misconduct” of the assured. The insurers also rely on other defences, such as breach of various warranties in the policy. It is expected that this will be a lengthy trial but hopefully we shall finally find out what really happened to The Brillante Virtuoso.