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Emergency Response Training with Stena LineSmart contracts: Press the button carefully
– there’s no going backImpact of the EU GDPR on the claims process
trito
nThe Swedish Club
No.1 | 2018
Theblockchainrevolution– what does it really mean for the marine insurance business?
The Swedish Club Triton is published three times a year and distributed free of charge. The Swedish Club Triton is an editoriallyindependent newsletter and opinions expressed by external contributors are not necessarily those of The Swedish Club. Articlesherein are not intended to provide legal advice and the Club does not accept responsibility for errors or omissions or theirconsequences. For further information regarding any issue raised herein, please contact our head office in Gothenburg.
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The Swedish Club
No.1 | 2018
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ContentsLeaderNo two days alike! ..................................................................................................................3
Loss PreventionCase study: Mixed messages lead to collision ................................................................4/5Auxiliary engine damage - part ignorance, part economics ............................................6/7Slewing bearing failures on turret cranes..............................................................................8The Swedish Club cooperates with DNV GL to test biodegradable lubricants ..................9Emergency Response Training with Stena Line............................................................10/13Tankers: How to avoid the blame game........................................................................14/15
InsuranceThe ICA and its operation – a success story for our time ..........................................16/17Claims for coral reef injury in three Pacific jurisdictions..............................................18/19
Interview The blockchain revolution ..............................................................................................20/21Smart contracts: Press the button carefully – there’s no going back ........................22/23
Legal/FD&DImpact of the EU GDPR on the claims process ............................................................24/25Cape Bonny: the case ....................................................................................................26/27Legal update ........................................................................................................................27DIY LOI ............................................................................................................................28/29Cautionary tales: Serving notice of arbitration..............................................................30/31
Meet our crewBack to the coffee shop ................................................................................................32/33The changing face of HR................................................................................................34/35
Maritime Resource ManagementTraining Provider focus: Azalea Maritime ..........................................................................36
Club InformationThe Club supports tanker safety forum ..............................................................................37Notice board....................................................................................................................38/39Out and about ......................................................................................................................40Staff news ............................................................................................................................42Calendar/Quiz ......................................................................................................................43
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When I started with the Club some 30years ago my boss told me that there arenever two days alike in this business.“You will never know in the morning whatwill happen in the afternoon,” he said. Iam now the first one to testify that hewas right. Working with the unknown, oruncertainty if you like, means that timingof events is beyond planning. What we doknow, is that the next incident is justaround the corner.
What we also know is the importance ofbeing prepared. The Swedish Club’sresponse team is always in ‘stand by’mode, always ready to go. I have learntthat the first hours of a casualty can beabsolutely critical for the whole case.This response readiness is of significantvalue. I have seen too many times whenthe ‘this will never happen to me’attitude has been regretted. TheEmergency Response Training initiativeprovides an excellent opportunity for usto be prepared together.
The Club delivered a good result lastyear with an underwriting performancejust above 100%. The result came toUSD 22.7 million or USD 18.6 millionafter the 4% premium discount given tomutual P&I members in August 2017.Underwriting is about deliveringsustainable results over time. We havenow produced a combined ratio of 98%over a nine years rolling period. OurBoard decided at the end of March tooffer another 5% premium discount tomutual P&I members. This should bewell received. Mutuality is a two waystreet.
‘Government intervention in marinecasualties’ is the theme of the paneldiscussion on Members’ Day formingpart of the AGM events in June 2018.We have speakers and panelists of highstanding providing their experience inthis field. There are not two cases alike,they are all unique on their own merits.Many cases however become political
where they arise, and requirementsfollow accordingly. How to manage?Only those attending our AGM will know.Don’t miss it!
Many interesting topics and socialevents are featured in this edition of theTriton. There are never two Tritons alike.Enjoy reading.
No two days alike!
Lars RhodinManaging Director
Dear members and associates
LEADER
CASE STUDY
A very large ore carrier, vessel A, wasapproaching port. The pilot had boardedand the tugs were lining up to connect tothe vessel. It was evening with clear skiesand a light wind. At the same time vesselB was outbound from the port without apilot as he had just disembarked.
Both vessels had all the requirednavigational equipment. The Master, ThirdOfficer, pilot and helmsman were on thebridge of vessel A.
The Master and pilot had carried out apilot exchange and the pilot had receiveda copy of the pilot card. Three tugs wouldassist the vessel during berthing.
The vessel was making about eight knotson a course of 300°, with both steeringpumps switched on.
The Master first saw vessel B both on theradar and visually when it was about 6 M
away and at 10° on the starboard bow.Vessel B was plotted on the AutomaticRadar Plotting Aid (ARPA) with a closestpoint of approach (CPA) of 0.5 M. Vessel Bwas shaping up to pass down thestarboard side of vessel A. The starboardgreen light and mast lights could be seen.
The pilot ordered the tugs to connect tothe vessel as they were approaching thebuoyed fairway. The pilot called vessel Bon the VHF and asked to pass green togreen which the Master on vessel Bagreed with. One tug was connectedforward, one on the stern and the thirdone was on standby.
About the same time the Vessel TrafficService (VTS) called vessel B andinformed it that vessel A was inbound.Vessel B’s Master acknowledged thatthey were aware of vessel A and that theywould pass green to green.
When vessel B was about 0.8 M off thestarboard bow it began to alter tostarboard and towards vessel A.
The pilot on vessel A was alarmed byvessel B and called on the VHF and yelled“green to green vessel B” and at the sametime ordered hard to port and slow ahead.
Someone on vessel B replied “too close topass port to port” and continued to alter tostarboard.
The pilot on vessel A ordered dead slowahead and then full astern but it was toolate. Vessel A collided with vessel B’s portside and ripped the shell plating from cargohold 2 to cargo hold 6.
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Each month the Club’s Loss Prevention department issues a new safetyscenario to assist members in their efforts to comply with internationalsafety regulations and to follow best practice. Visit Swedish ClubOnLine (SCOL) for more examples.
By Joakim Enström, Loss Prevention Officer
The Master and pilot hadcarried out a pilotexchange and the pilothad received a copy ofthe pilot card. Three tugswould assist the vesselduring berthing.
Mixed messages lead to collision
Safety scenario
LOSS PREVENTION
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The pilot on vessel A ordered dead slowahead and then full astern but it was too late.
LOSS PREVENTION
Discussion
When discussing this case, pleaseconsider that the actions taken at the timemust have made sense for all involved. Donot only judge, but also ask why you thinkthese actions were taken and could thishappen on your vessel.
1. What were the immediate causes of thisaccident?
2. Is there a risk that this kind of accidentcould happen on our vessel?
3. How could this accident have beenprevented?
4. What are our procedures regarding theuse of VHF for collision avoidance?
5. How do we ensure that we are aware ofthe traffic situation while we speak on theVHF?
6. Do we use all navigational equipment onthe bridge while sailing?
7. What sections of our SMS would havebeen breached if any?
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Issues to be considered
Discuss the following COLREGS rulesand also what other COLREGS ruleswould apply.
Rule 5 Every vessel shall at all times maintain aproper look-out by sight and hearing, aswell as by all available meansappropriate in the prevailingcircumstances and conditions so as tomake a full appraisal of the situation andof the risk of collision.
Rule 7 (a) Every vessel shall use all availablemeans appropriate to the prevailingcircumstances and conditions, todetermine if risk of collision exists. Ifthere is any doubt such risk shall bedeemed to exist.
(b) Proper use shall be made of radarequipment if fitted and operational,including long-range scanning to obtainearly warning of risk of collision andradar plotting or equivalent systematicobservation of detected objects.
(c) Assumptions shall not be made onthe basis of scanty information,especially scanty radar information.
Rule 8 (a) Any action taken to avoid collisionshall be taken in accordance with theRules of this Part and shall, if thecircumstances of the case admit, bepositive, made in ample time and withdue regard to the observance of goodseamanship.
Sloppy work, lack of checklists, a failureto follow procedures, lack of trainingand poor lubrication oil managementare all contributing to a high volume ofauxiliary engine damage cases, saysPeter Stålberg, Senior Technical Advisorat the Club.
“It was in response to this situation thatwe developed the Auxiliary EngineDamage report, which goes to the veryheart of the problem.”
Auxiliary engine damage claimsreceived by The Swedish Club accountfor 13% of the total machinery claimcost and 16% of the volume, with anaverage claim cost of USD 345,000.
When measured in terms of frequencyand cost, auxiliary engine damagecomes third after main engine andpropulsion claims, says Stålberg. “Thetrend has been steady for the past fewyears with no change in frequency – andthat is what triggered our study,”
“We went through all of our claimsreports in detail trying to pinpoint theexact root cause of these casualties,and we also analysed the running hoursbefore the damage. The correlation wasclear – 55% of auxiliary enginecasualties occurred more or lessimmediately after maintenance workhad been carried out.
“That is just like taking your car to thegarage and then breaking down on theway home. Overhaul and maintenancework means the engine should be better,it shouldn’t lead to it breaking downcompletely and catastrophically.”
Common causes ofdamage
Incorrect maintenance and wrongfulrepair are the most common causes ofdamage. Poor lubrication oilmanagement is also a majorcontributing factor towards auxiliaryengine breakdowns, the study showed.
“This study has been an eye-opener forus,” says Stålberg.
“This issue is all about how theoverhaul should be taken care of,”explains Peter Stålberg. “We are simplyseeing examples of complicatedmatters handed over to unqualifiedpersonnel; or of crew knowing whatthey should do, but not doing it properly;or of crew not following strictprocedures because they don’tunderstand their importance.”
Auxiliary engines run at high revolutionsand have a common lubrication systemfor both cylinder and crank caselubrication. They are not under the samestrict regime from the classificationsociety as the main engine, andmaintenance is often carried out by thevessel crew.
“Anyone can tighten a bolt. Buttightening a connecting rod assemblymust be carried out 100% correctly, orthere could be a catastrophe.
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Following detailed analysis of its claims records The Swedish Club has established that more than half ofall auxiliary engine damage on board vessels happens immediately after maintenance work has beencarried out – often with catastrophic results.
Auxiliary engine damage- part ignorance, part economics
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Sometimes crew don’t have the propertools available. There can be an elementof sloppiness - not following checklistsor failing to carry out daily maintenance,or replacing an oil filter and leaving a ragbehind.”
Call for specialistassistance
Some shipmanagers employ specialiststo come on board and carry out thework while at sea, but the cost andcomplexities of coordination andplanning can make this inefficient andnot viable, says Stålberg. Another
effective option is to have professionalsupervision in attendance to ensurethat crew are carrying out the workcorrectly.
“Our findings are related to partignorance, part economics. For example,many times we have seen an enginebeing run with poor lube oil with watercontamination, and nothing has beendone about it. Vessels should have reallygood lube oil management – regularsamples should be checked and properaction should be taken when somethingis detected in the analysis. Don’t try tosave money on lube oil – the resultantcosts can be huge.”
Where the responsibility lies
Ultimately, says Stålberg, theresponsibility is with the shipmanager.“They instruct the crew to carry out thisoverhaul and by doing that they mustensure they have the competence, time,training, tools and spare parts to handlethat, and to complete the task correctly.If those factors are missing, you can’tperform your work.”
The report analysed vessels insured forHull & Machinery (H&M) in 2010-2016and included only damages in excessof the deductible, an averageUS$105,000.
To read Auxiliary Engine Damage pleasevisit www.swedishclub.com /Publications / Loss Prevention and MRMbrochures
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Casualties % in relation to time between overhaul (TBO)recommended by manufacturers
60%
50%
40%
30%
20%
10%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 110%
% of running hours of TBO
Occu
renc
es, %
Note: In addition to TBO related occurrences there are several cases where a crew member has carried outregular maintenance shortly before the breakdown. Common mistakes include replacing the oil filter butleaving rags behind, or cleaning the oil cooler and damaging a packing. These types of cases have beenincorporated as TBO=0 in the analysis.
Claims by vessel specificsAuxiliary engine claims by vessel type, 2010-2016
70%
60%
50%
40%
30%
20%
10%
0%
0.025
0.020
0.015
0.010
0.005
0.000
Note: Container vessels have a significantly higher claims frequency due to the larger number of installedengines on these vessels. In addition, these engines have considerable output, hence the repair cost is greatercompared with other vessels.
Bulker
Contain
er
Dry Cargo
Offshore
Pass/F
erry
RoRo Tanker Other
Ensure you have the necessary•knowledge and experiencebefore commencing anyoverhaul work.If you have not received training•on the specific engine model,consider engaging an expertfrom the manufacturer.Always strictly follow•manufacturer’s instructions.During overhaul, check and•double check that stud bolts forconnection rods and bearingkeeps are tightened 100% inaccordance with manufacturer’sinstructions.Ensure that required tools are•available and calibrated asnecessary.Regularly monitor the quality of•your lubrication oil and takeprompt action whenirregularities are detected.
LOSS PREVENTIONESSENTIALS
Investigations into this type of failureoften reveal many contributing factors,such as poor maintenance, overloading,improper use, blocking of safety devicesand latent defects all which maycontribute to a slewing bearing failure.Sadly, several of the slewing bearingfailures we see could have been avoidedby following simple maintenance andinspection routines.
The safe working load (SWL) markingon a crane jib indicates the maximumpermissible load in the hook. The actualstress put on the crane has often verylittle to do with the SWL marking as it isinfluenced by the spectrum of differentloads in the hook. For example, duringoperations at sea the dynamic loadsinduced by the ship’s motions inresponse to wave conditions must beadded to calculations for SWLs.
When a general cargo crane operateswith a grab it will nearly always be withfull grab which means a load spectrumwith maximum load. A crane workingcargo from a barge in unshelteredconditions will be exposed to shockloads. These working conditions willgreatly reduce the lifetime of the slewingbearing and other critical componentsunless the SWL is adjusted accordingly.Detailed information about the designcriteria and load limitations for thecranes can always be found in themaker’s documentation – be sure youare on the safe side.
Greasing routines and tilting clearancemeasurements must always be followedstrictly in accordance with the maker’sinstructions. Beyond this we alsorecommend carrying out analysis of theused slewing bearing grease at regularintervals. When carried out in acontrolled manner, the used greaseanalysis is probably the most costeffective and reliable monitoring methodto show the condition of the slewingbearings.
Finally, ship cranes are importantmachinery vital for the commercial andsafe operation of the vessel. Sometimesthey are too complex to be maintainedby the vessel crew. Consider inviting anexpert from the manufacturer at regularintervals to carry out a health check.
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By Peter StålbergSenior Technical Advisor
Ensure you operate your crane•within design criteria andoperational limitations.Consider the dynamic loading•spectra in addition to SWLlimitations.Do not block or carry out•unauthorised adjustment onsafety devices.Grease the fittings around the•slewing bearing’scircumference at intervalsrecommended in theoperator’s manual.More is more – apply a•generous amount of greaseuntil you see old greasesqueezing out of the bearingseal. Inspect purged greaseand send samples forlaboratory analysis.Contamination with particlesor metal chips indicate aproblem.Check and record the tilting•clearance at regular intervals.Excessive movement of thestructure can indicate a wornslewing bearing.Be observant of grinding noise•and increased torque whenrotating the crane housing.Check and record bolt torques•on a regular basis and re-tighten the bolts tocompensate for any creepphenomena.Plan maintenance and act in a•timely manner. As with allbearings, a slewing bearingwill eventually become worn. Awell maintained bearing canbe overhauled and repaired ata fraction of the costcompared with a completereplacement.
Slewing bearing failureson turret cranes
LOSS PREVENTIONESSENTIALS
The Swedish Club sees a steady streamof crane accidents. Of particular concernis damage to slewing bearings – the mainstructural load-bearing device thatattaches the crane to the pedestal. Thisbearing is a potential source forcatastrophic failure. In the severest casereported to the Club, the crane housingdetached from the platform and the craneoperator fell from the cabin and lost hislife.
The investigation has been prompted byan increase in stern tube bearing failuresover the last few years. This coincideswith the increased uptake of EALs afterthe introduction of regulations requiring
their use in commercial vessels tradingin US waters in 2013, but also with theintroduction of new propulsion systemdesigns, such as single stern tubebearing installations and larger andheavier propellers operating at lowerRPM.
The first phase of testing will becompleted in the first quarter of 2018,with the results scheduled forpublication later in the year.
“Very few studies have been conductedto compare the lubrication performanceof EALs with that of traditional mineraloils in stern tube applications,’’ saysØystein Åsheim Alnes, Principalengineer at DNV GL. “With this newstudy we hope to gain a better
understanding of factors influencing thelubrication performance of EALs.”
The test programme will investigatesuch aspects as hydrodynamic oil filmformation, oil film thickness undervarying loads and temperatures, andpotential shear thinning effects at highshear rates. State-of-the-art non-invasiveultrasonic techniques developed by UoSwill be utilised to examine lubricant filmbehaviour in real-time.
“DNV GL supports solutions that canreduce the environmental impact of themaritime industry,” says Alnes. “Our aimin this study is to undertake a first-handassessment of the performance of EALsin order to guide the furtherdevelopment of the DNV GL Rules.”
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The Swedish Club cooperateswith DNV GL to testbiodegradable lubricantsThe Swedish Club is one of anumber of top insurers invited tojoin with classification societyDNV GL in testing the potentialinfluence of EnvironmentallyAcceptable Lubricants (EALs) on failures in stern tubebearings. DNV GL will overseedetailed laboratory testing ofEALs by Leonardo TestingServices Ltd. at the University ofSheffield (UoS), UK.
“Our aim in this study isto undertake a first-handassessment of theperformance of EALs inorder to guide the furtherdevelopment of the DNV GL Rules.”
LOSS PREVENTION
10 / Triton 1 2018
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The Swedish Club’sJoakim Enström talksabout reactions to theClub’s EmergencyResponse Training andhis experiences sincethe rollout of thisimportant initiative.
The Swedish Club’s EmergencyResponse Training (ERT) is verydifferent to the exercises hecarried out when working at seaor based in the office working inthe safety department, explainsJoakim. “We look at whathappens during a complicatedaccident - how to be prepared,what to expect, and whatexternal players are likely to beinvolved.
Magnus Gustafsson, Claims Manager,Marine, from Team Gothenburg, wasone of the exercise leaders. He said: “A key element of dealing with anyemergency is to make sure that you arenever taken totally unaware. A crisis isnot the time to be wondering what to donext and who to call for help. There areenough things that may be out of your
control without adding to the challengeby not having prepared, clear thinkingand a coordinated response.
“The Swedish Club is all about riskmitigation. This includes reducing therisk of an incident happening, as well asreducing the risk of an accident gettingworse if it does.”
Earlier this year The Swedish Club ran an Emergency ResponseTraining (ERT) emergency exercise with Stena Line. The exercise tookplace at the Swedish Sea Rescue Society headquarters and not onlytested how individuals respond to a casualty, but more importantlyhighlighted the need for information sharing and goodcommunications between the players involved in an incident.
Emergency ResponseTraining with Stena Line
For maximum reality the scenario called forparticipants from all authorities andorganisations that would be involved in aserious accident in the Gothenburgarchipelago. Players, besides Stena Line andThe Swedish Club, included DNV GL, JointResource Coordination Centre (JRCC)Gothenburg, the Swedish Coastguard, theSwedish Flag State Authority, the SwedishMaritime Administration, Port of Gothenburg,the Gothenburg Fire Brigade, the SwedishDefence Forces, the City of Gothenburg,Gothenburg Medical Services, the SwedishLifeboat Association, SOS Alarm (the 112 callcentre) and a local ferry operatorStyrsöbolaget – all important players in arescue operation of this size in this area.
Joakim Enström, Loss Prevention Officer
photos: Jonas Eklöf, JeNs Productions | www.jensproductions.se
“The scenarios we have created haveinvolved different accidents such as acollision, explosion, personal injury,grounding, engine breakdown,compliance issues, pollution, cargodamage and salvage.”
Joakim believes that The Swedish Club’sERT adds something special to the shipowners’ or managers’ emergencypreparedness, as it is very different to thenormal drills carried out each year as perthe company’s ISM and vessel’s SMS.
“During the session we discuss whathappens in complicated accidents andhighlight why it is imperative to be preparedand analyse your own emergencyorganisation,” he explains. “I remember thatwhen I was working at sea - and evenashore - I did not fully understand thecomplex issues that surround an accident,as the main focus was always on theemergency at hand. Whilst that is notnecessarily wrong, it does mean that thoseinvolved in an incident don’t have thecomplete overview which is needed to beable to deal with an emergency effectively.
“Our emergency response training helpswith understanding complicated issuesand gives a better understanding ofwhat happens during a major accident.”
The Swedish Club prides itself onoffering a full range of marine insuranceproducts to members, the Club’sparticipants are a combination of claimshandlers, technical experts, lossprevention agents and underwriters.This ensures that the scenario is dealtwith in the most realistic mannerpossible.
The Swedish Club has also carried out anumber of Stress Test drills which focuson the effects of an accident in realtime. “We ran a large stress test drill inNorway where we tested the company’semergency preparedness in dealing withthe media, fire on board, injuries,abandoning ship, next of kin and how toact when key personnel are missingfrom the emergency organisation,“ saidJoakim. “This was in cooperation withmedia crisis management experts,Navigate Response. The exercise was
carried out in real time and thecompany’s entire organisation wastested both in Norway and at theiroffices abroad.“
Joakim is keen to stress that the purposeof the training sessions is not aboutfinding who is at fault, but how theproblem can be solved most efficiently tosave lives and protect the environment.The purpose is to find areas which canbe improved and also allows the Club toshare its experience and knowledge indealing with large claims.
“The more we share the better we will beprepared,“ he says. “I was told by thecompany at a recent exercise that “Thiswas an excellent preparation for a worstcase which will hopefully never come.We will also use this report in ourorganisation for training purposes.” Ifind that encouraging.”
The Swedish Club ran more than 40exercises globally last year, and looksforward to continuing the good work in2018.
The scenarioIn the scenario the Stena Danica, a152m ferry carrying 230 vehicles andmore than 850 passengers and 60crew, collides with a container ship andthe vessel is holed. Its stability iscritical, and decisions must be made inthe face of worsening weatherconditions to work with the cast ofthird party support organisations toensure the safety of the passengersand crew, and to protect the integrity ofthe vessel.
The level of success in handling acasualty is as much about thedecisions that are made at key points asthe casualty unfolds and the quality ofthe communication established as it isabout environmental and proceduraldecisions.
Magnus explained : ”The Stena exerciseis an ideal example of how the Club’sERT training can lead to increasedawareness of who needs to be makingdecisions, when decisions need to be
made, and importantly, when thosedecisions, actions and updates need tobe communicated between the vastnumber of stakeholders involved in anemergency response.”
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“Training, training and training is everything in orderto be prepared for the unknown and the unexpected.”
The need for acommunication strategyMarina Smyth Samsjö, Manager,Marketing Communications, contributedto The Swedish Club Team. “One of thesalient facts many participants tookaway from the exercise was the
importance of a communicationstrategy,” she said. “Participants weresurprised when it was estimated thatover 500 land-based people fromvarious organisations could be involvedin responding almost immediately to anemergency. These include the shipowner, response centre staff, police,hospitals, coastguard, voluntaryresponders, ambulance and coachdrivers and passenger landing co-ordinators.
Why a table top exercise?A table top exercise is not as realistic asa full scale exercise out in the fairway,but it is also not as risky, explains MariaBoman a Search and Rescue MissionCoordinator at the JRCC of the SwedishMaritime Administration. Her role is tocoordinate search and rescue missions,and she has been involved in someserious incidents around the Swedishcoastline over the last 20 years.
She was also joint exercise leader, alongwith Magnus Gustafsson, in theexercise. “There are so many differentgovernment agencies such as police,
ambulance service, rescue services andother organisations that will be involved,it is good to have one dedicated body tocoordinate this,” she said. “These tabletop exercises are very useful as you getto see the different perspectives of theorganisations involved as well asgaining experience of what they mayneed to know and when.”
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Bjarne Koitrand, Technical Operations Director
Maria Boman, Search and Rescue Mission Coordinator atthe JRCC
The JRCC does carry out full scaleexercises but there is always theconcern about safety of everyoneinvolved. “In a round table exercise wecan discuss procedures and decisions ina way we cannot when we are out in thefield” said Boman.
“With a simulation like this, theparticipants get a much better view ofeveryone else’s activities andresponsibilities, they get to see directlyhow their own decisions affect theongoing operations, and importantly howcommunication needs to be maintained.”
Bjarne Koitrand, Technical OperationsDirector at Stena agreed. “Training,training and training is everything inorder to be prepared for the unknownand the unexpected.”
But he points out that training just once isnot enough. ”It is vital to know the rolesand responsibilities of your team andcolleagues. However real incidents haveshown us that it is equally important thatthe team is flexible and can deal with newand unforeseen tasks.”
Importance ofcommunication
His job is to be the communication linkbetween the emergency team dealingwith the incident and Stena Line; makingsure that they have the correct andsufficient resources to deal with thesituation.
An operator such as Stena has differentvessels in different jurisdictions where
emergency responses can vary. “Theemergency procedures involve theregional offices and the staff basedthere. The emergency procedures arecontinuously reviewed, updated anduploaded in our digital library ready to beprinted,” he said.
Boman, at the JRCC agrees that keepinga flow of information during anemergency is of critical importance
“The spread of information is veryimportant,” said Boman. “People need toknow when there is information, but theyalso need to know when there is nomore information. We need to know thelimits.”
She also explained that from a land-based response to an emergency it doestake time for the information to build up,but being able to make a start, even withlimited information is better than notbeing told anything.
Class emergencyresponse Incorporated into the emergencyresponse is the role of the classificationsociety. Sat at the table, representingDNV GL was Pierre Nordin, a principlesurveyor based in Gothenburg. After an
accident such as this, he explained, thevessel will be out of its statutory andclass conditions, but once the temporaryrepairs are made, the vessel may beissued with restricted class conditionsto allow it to make the single voyage tohave permanent repairs made.
“We had a real-life situation where avessel was involved in a collision inSweden,” he said. “The surveyor took thedecision, as a Recognised Organisation,representing the vessel’s flag, to allowthe vessel to sail one trip, underrestricted class to a Danish repair yard.
“We don’t tell owners what to do,”explained Nordin. “We support ownersand give them suggestions.”
DNV GL has two emergency responsecentres, one in Oslo, and one in Hamburg.Each has a team of experts that arepermanently on call, and it is their jobthen to reach out to other experts withinDNV GL as a situation develops.
“We have to be able to man thoseemergency response centres veryquickly,” said Nordin. “We practice up to70 times a year with different clients, butwe can have up to 55 incidents a yearfor real.” DNV GL has the plans for over4,000 vessels in its emergency responsedatabase.”
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“A key element of dealing with anyemergency is to make sure that youare never taken totally unaware.”
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Oil delivery shortfall? Cargo contaminated on arrival?It happens too often, according to Ian Hodges,Director of TMC Marine – and most of the time shipsunfairly get the blame.
Tankers: How to avoidthe blame game
It’s not difficult to load and dischargea ship correctly, as long as everyoneis doing their job properly on boardand ashore, says Ian Hodges.However, poor quality inspection,human error, and occasionallysimple corruption are just some ofthe factors that can lead to outturnloss or contamination.
As an experienced consultant in thefield, Hodges – a Master Marinerhimself –knows only too well whathappens in the real world. It’sunfortunate, he says, that as soonas a problem is suspected, thefinger is immediately pointed at theship. Based on his experiencestudying hundreds of cases over theyears, he would say the ship is toblame only 10% of the time.
“In reality, most losses, whether ofclean petroleum products (CPP) ordirty petroleum products (DPP) arein fact ‘paper losses’ – in otherwords, the cargo was never onboard in the first place,” he says.
“Those at fault are normally thesuppliers or the receivers or theirdelegates (the inspection company),and the loss is at times due tosloppy practice or corruption. Rarelyhas the ship caused the problem.”
He estimates about 70% of the timethe problem has been caused by the
suppliers, or sellers at the load port,and perhaps 20% can be attributedto the receivers, or buyers, at thedischarge port. The other 10% isdown to the ship, primarily due to itbeing unable for whatever reason, topump the whole cargo off,particularly with crudes which needheating or COWing (crude oilwashing).
Cross contamination within theship’s tanks can happen at any time,but when it does occur it is usuallyduring load or discharge, he says.“When this happens, 99% of the timethis is due to human error, whichcan be as simple as opening thewrong valve.”
Large losses on crude carriers areoften due to a significant increase inwater which was not detected at theload port. This is because afterloading, water is not given enoughtime to settle out, especially whenloading from an FPSO where the oilhas just come from the seabed.”
Three stagesThere are three basic stagesrequired to achieve any shipment ofoil, says Hodges.
1) the cargo is loaded from shoretanks to the ship’s tanks at the loadport.
2) the cargo is transported from oneport to another in the ship’s tanks.
3) the cargo is discharged from theship’s tanks to the shore tanks.
“Contamination or physical loss ofthe cargo can happen during any ofthese three stages, although (2) isthe least common,” he says.
Owners have no control over whathappens onshore, he points out. Butthere are steps that the Master cantake to avoid difficulties at port. “Hemust ensure he presents his ship‘ready in every respect to load thenominated cargo’, he says. “FollowISGOTT (International Safety Guidefor Oil Tankers & Terminals ) and ISM(International Safety ManagementCode) and the Master can do nomore.”
The role of inspectioncompaniesHow do inspectors fit into this chainof events? Hodges says inspectioncompanies are normally appointedjointly by buyers and sellers of thecargo, splitting the cost 50/50. “Atthe load port their primary role is toproduce a certificate of quality, anda certificate of quantity which formsthe basis of the bill of lading.”
Masters should be aware that theinspector has absolutely no
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LOSS PREVENTION
1: Suppliers sell a cargo to receivers.Quantity and quality (Q+Q) are agreedand deal terms defined.
2: The charterer gives voyage orders tothe Master, defining (amongst otherthings) the name and quantity of cargoto be loaded, and the load port.
3: Based on density and volume, theMaster plans stowage of the cargo,deciding which tanks to load. OnCPP trade, the compatibility of thelast cargo must be considered anddecisions made on what tankcleaning is needed, if any. It is up tothe Master to present his ship ‘fitand ready in every respect to load’.
4: Prior to loading the inspectormeasures and samples shore tanks,normally within 24 hours of loading.Lab tests on this batch usually formthe basis of the certificate of quality.
5: The ship’s tanks are inspected todetermine their suitability to load thecargo. An OBQ (on board quantity)survey is performed in order todetermine the amount of liquid leftfrom the last cargo. On CPP tradethis is normally zero.
6: The cargo is transferred fromshore tanks to ship’s tanks.
7: The inspector surveys shore andship’s tanks to determine thevolumes transferred and received, Hethen produces a certificate of
quantity. Then he draws three sets ofsamples from the ship’s tanks, onefor buyers, one for sellers and one forthe Master.
8: As long as there are no Q+Qissues, the ship proceeds to thedischarge port.
9: Just before the ship arrives at thedischarge port, the inspectormeasures shore tank quantities, andmay take samples.
10: The ship arrives and theinspector takes samples from theship’s tanks, which are often testedbefore commencing the discharge.Ship’s tanks are surveyed forquantity.
11: As long as Q+Q is the same as atthe load port, discharge begins. Oncethe ship has been permitted to startthe discharge, this is a good indicatorthere shouldn’t be any further issues.
12: At the end of the discharge, theinspector measures the amount ofcargo received onshore, which is theoutturn figure. He also surveys cargotanks to determine ROB (remain onboard). The overall ‘loss’ is thedifference between the bill of ladingand the outturn. The acceptableindustry loss is usually 0.3%.
13: If there are no Q+Q issues theship can depart for its next cargo.
contractual obligation to theowner or the ship. Sadly oilmajors and trading houses don’tpay inspection companies a lot.In recent years it seems that aninspection company would ratherhave long term steady businessfrom an oil major with low profitmargin, than unpredictable shortterm with higher margins. Forthis reason they often cutcorners. For example, they aresupposed to supply their owncalibrated and certifiedequipment, but usually they aredependent on the ship’s devices.Also, there are often delays whenwaiting for an inspector to arriveon board.
Advice and supportTMC Marine, a Bureau VeritasGroup Company, has been providingadvice and support to the marineindustry since 1979. In his role,Hodges works to identify what wentwrong, when and why. That shouldbe achievable when armed with allthe information and in particular thefull inspection report at load anddischarge, he says. “Sadly, you rarelyget the full picture, especially whenrepresenting owners, as theinspection companies do not haveto supply their reports to owners.Owners have to request the reportsfrom charterers, and charterers cansend what they like.”
The sequence of events:
“Those at fault arenormally the suppliersor the receivers ortheir delegates (theinspection company),and the loss is attimes due to sloppypractice or corruption.Rarely has the shipcaused the problem.”
The case The long held understanding as to howthe ICA is intended to operate hasrecently come under threat in the matterof the MV ‘Yangtze Xing Hua’ when theEnglish Court of Appeal handed downits decision in December 2017.
The claimants in the underlyingarbitration are members of The SwedishClub. As the owners of the above vessel,they had chartered it to the RespondentCharterers, Transgrain, for a time chartertrip carrying soya bean meal from SouthAmerica to Iran. The charterparty wasdated 3 August 2012 and was on theNYPE form. The vessel arrived off thedischarge port, BIK, Iran in December2012. Not having been paid for thecargo, the charterers ordered the vesselto wait off the discharge port for overfour months, during which period thecargo started to overheat.
When the vessel was brought alongsideand discharged in May 2013, damagewas found and a claim was madeagainst the vessel for some EUR 5million. After lengthy negotiationsinvolving the Club, the claim was settledin the sum of EUR 2,654,238. Theowners claimed that sum together withhire in the sum of USD 1,012,740 fromthe charterers. It was common ground
that liability was to be settled inaccordance with the ICA 1996, whichhad been incorporated into thecharterparty. Clause 8 sub-paragraph (d)provides as follows:
‘8(d) All other cargo claims whatsoever(including claims for delay to cargo):50% Charterers, 50% Owners
unless there is clear and irrefutableevidence that the claim arose out of theact or neglect of the one or the other(including their servants or sub-contractors) in which case that partyshall then bear 100% of the claim.’
Cause of thedamage
The charterers allegedthat the cause of thedamage was the owners’failure to properlymonitor the cargotemperatures. TheTribunal however foundthat the monitoring wasnot at fault and that thecause of the damage wasa combination of theinherent nature of the cargo(and its oil and moisturecontent) together with the
prolonged period at anchor at thedischarge port. All allegations againstthe owner and crew were rejected andthe owners were awarded their hire infull. In considering the application ofclause 8(d) the Tribunal held that ‘act’was to be distinguished from somethingsuggesting fault, breach or neglect andconcluded that the ICA must regardcharterers’ decisions, both in terms ofloading the cargo and their orders forthe vessel to wait off BIK, as an ‘act’falling within clause 8(d) such that theyshould bear 100% of the consequences.It is to be noted that it was acceptedthat the orders which charterers hadgiven, and which were the cause of theloss, were orders which they wereentitled to give.
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BackgroundIn 1970 the International Group of P&IAssociations, frustrated at the timeand expense which, even then, wasbeing spent in resolving cargo claimsbetween owners and charterers on theNew York Produce Exchange form,drew up an Inter-Club Agreement tofacilitate the settlement of suchclaims between the Clubs (the ‘ICA’).
During this time there have been anumber of amendments and the ICA,and its operation, has been aremarkable success, with its similarity
to the knock for knock principle inmotor insurance. Notwithstanding thatit was originally an agreementbetween the Clubs, the ICA has formany years now been itself expresslyincorporated into time charterpartiesand the ICA now routinely regulatesthe settlement of cargo claimsbetween owners and charterers.
It is undoubtedly this ‘mechanical’approach towards apportionment,combined with the fact that it is notnecessary to look for moral culpabilityor blame, which has contributed sogreatly to the success of the ICA.
The ICA and its operation
The ICA nowroutinely regulatesthe settlement ofcargo claimsbetween owners andcharterers.
AppealThe charterers sought and obtainedleave to appeal the Award and whichappeal was heard by Mr Justice Teareon the 23 November 2016. Chartererssubmitted, inter alia, that the word ‘act’means ‘culpable act’, that the phrase‘act or neglect’ compendiously means‘fault’ and that the Tribunal was wrongto hold that any act, whether culpableor not, was sufficient to constitute an‘act’ for the purposes of clause 8(d) ofthe ICA. Justice Teare rejected thecharterers’ appeal but gave leave forthe matter to be appealed to the Courtof Appeal, and the matter was heard on7 December 2017.
There, the charterers again submittedthat the first and second versions(1970 and 1984) of the ICA werepredicated on fault and that, had it beenintended to drop the concept of fault inthe 1996 version, that intention wouldhave been clearly expressed. However,as in the High Court, the court held thatthe ‘archaeology’ of the ICA was of noassistance, that there had beensubstantial changes between the 1984and 1996 versions (8(d) was an entirelynew provision sweep-up provision), andthat the effect of the changes wasclear.
It was also submitted that sub-clauses 8(a) and (b) in the 1996 version continued
to require fault and that it would beinconsistent with these provisions toconstrue ‘act’ in 8 (d) as not requiringfault. However, the Court of Appeal tookthe view that there was no requirementthat claims arising out ofunseaworthiness had to occur becausethe owner failed to exercise duediligence (to use the language or ArticleIII rule 1 of the Hague-Visby Rules), andthat an error or fault in the navigation ormanagement of the vessel mightencompass fault but did not require it.An error in navigation may produce acargo claim even in the absence of fault,as might an error in the management ofthe vessel. It was observed that thesame might be said with reference to‘failure properly to load, stow, lash,discharge or handle the cargo’ and whichdid not require negligence or fault either.
Concluding commentsRather than considerations of fault orculpability, the critical question inconsidering how cargo claims should beapportioned under clause 8 is that ofcausation. What is required is a factualinvestigation into the cause of theunderlying cargo claim and for the claimto be apportioned accordingly. Further,as counsel for owners submitted, thisrelatively simple question and thecorresponding mechanical operation ofthe ICA, would be made significantlymore complicated if claims handlers hadto further consider questions of faultand/or culpability in deciding uponapportionment, rather than the simplefactual scenario applicable. The Courtrejected suggestions that apportionmentbased on causation would be difficult to
apply in practice and that interpreting theword ‘act’ in clause 8(d) to mean any act,whether culpable or not, would lead tounacceptably wide liability on the part ofcharterers.
The Court of Appeal’s decision is to bewelcomed. It confirms thatapportionment is emphatically not ‘ablame game’. The mechanical processof apportionment under the ICA hasbeen very much successful, over what isnow approaching 50 years, in avoiding agood deal of expensive and timeconsuming litigation. The suggestionthat considerations of fault wererequired to be considered, not just underclause 8(d), but also in 8(a), (b) andindeed (c), had the potential to add asubstantial layer of complexity to anotherwise simple process. Theconfirmation that considerations of faultor culpability are not proper parts of theapportionment process further confirmsthat the claims handlers' task is arelatively simple one.
It must be noted that the importance ofthe factual review carried out as part ofthe apportionment process emphasisesthe paramount importance of collectingaccurate evidence at an early stage.
The charterer ended up required to paythe owners the unpaid hire and 100%toward the cargo claim the owners hadpaid plus costs and expenses.
The Swedish Club thanks Bruce Hung,former Senior Claims Manager, TeamAsia and Nicholas Nicholas Wilson ofBentleys, Stokes and Lowless whoassisted the shipowners on this caseand prepared this valuable article.
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– a success story for our timeRather thanconsiderations offault or culpability,the critical questionin considering howcargo claims shouldbe apportionedunder clause 8 isthat of causation.
Rather than considerations of fault orculpability, the critical question inconsidering how cargo claims shouldbe apportioned under clause 8 is thatof causation.
Who can claim In Hawaii, claims are brought jointly bythe federal and state government‘trustees’ represented by the federalDepartment of Justice and HawaiiDepartment of the Attorney General.Claims are made under the Oil PollutionAct 1990 (‘OPA’), upon the theory thatthe application of the OPA is triggered ifthe grounding involves any threat of anoil spill, no matter how remote orinconsequential such threat may be.Claims are brought informally and donot involve litigation, unless an impassein negotiation is reached.
In the FSM, the federal governmentowns reefs outside the island lagoons.The ownership of submerged landswithin island lagoons is governed by lawof member states. In all states exceptYap, submerged lands within the islandlagoons are owned by the stategovernment. In Yap, the entire lagoon,
including the submerged lands and thewater column, is privately owned byfamily clans (tabinaw).
In Yap, recovery will be sought undergeneral maritime law by class action bytraditional chiefs on behalf of all affectedresidents. No proof will be required as towhich specific tabinaw were involved andwhat part of the reef each of them owns.How any damages awarded will bedistributed by the chiefs has been held tobe no concern of the vessel owner whohas to pay such damages.
In the RMI, the national governmentowns all marine areas below theordinary high watermark.
Both in the RMI and the FSM (exceptYap), claims are asserted by the nationalor the state Attorney General by civilaction against the vessel in rem and itsowners, and sometimes also charterers,in personam, under maritime law, which
generally follows U.S. maritime law.Claims may also be asserted undernational or local pollution statutes forthings like toxic hull paint scraped of thevessel and stuck on the reef. Suchadditional claims have been minor andcommonly dropped along the way.
What damages arerecoverable
In Hawaii, the trustees will present aclaim derived from computer modellingof reef injury and recovery. Thesemodels are not constrained by thefederal rules of evidence, which do not
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Claims for coral reef injury in three Pacific jurisdictions
by Nenad Krek Nenad Krek is a partner with Adams,Miyashiro & Krek LLP in Honolulu, Hawaii. Hehas concentrated his practice in Honolulu onadmiralty, maritime and insurance law since1984, and has participated in maritimelitigation in the Republic of the MarshallIslands and the Federated States ofMicronesia since 1990.
As the world grows ever more interested in the protection of ourprecious coral reefs, we look at claims for coral injury arising fromthe physical impact of vessel groundings within three jurisdictionswhich cover a large swath of the North Pacific Ocean: the FederatedStates of Micronesia (‘FSM’), Republic of the Marshall Islands (‘RMI’)and Hawaii. Claims for oil spills or wreck removal are a story inthemselves, and so are not included in this article.
In Yap, courts haveawarded damages onthe basis of anarbitrary dollaramount per squaremetre of the affectedreef, determined onthe basis of pastjudgments andsettlements.
photo: Rusty Nall
apply to natural resource damageassessment under OPA. After that,negotiations will ensue. The owner ismotivated to settle by the knowledgethat if an impasse is reached, thetrustees will present their claim to theNational Oil Pollution Fund, which willpay it as presented, and will then seekrecovery from the owner in federal court.In such an action, the owner has theburden of proving that the Fund’sdetermination of damages was arbitraryand capricious. Claims are oftennegotiated on the basis of an agreedamount per square metre of injuredcoral. This requires overcoming disputesas to the area affected, and density andquality of coral within that area.Sometimes it is easier to negotiatesettlement on a lump-sum dollar basis.
The governments of the FSM statesother than Yap have been reticent todate in pursuing damages forgroundings. In Yap, courts have awardeddamages on the basis of an arbitrarydollar amount per square metre of theaffected reef, determined on the basis ofpast judgments and settlements. Inaddition, damages have been awardedfor the loss of subsistence by localresidents, on the theory that thedestruction of the reef resulted in theloss of fish which were supported by thereef ecosystem, and in introduction,present or future, of toxicdinoflagellates, which make reef fishunsafe to eat. Courts have alloweddamages for the loss of subsistence tobe established by expert testimony, andhave not closely scrutinized the experts’methodology or data upon which theiropinions relied.
The government of the RMI has recentlyfiled an action against a vessel involvedin a grounding, and the associatedinterests, alleging the same types ofdamages that are sought in classactions in Yap, and asserting that thenational government can seek relief for
and on behalf of its citizens. Nosubstantive or evidentiary rulings havebeen made yet. RMI courts havehistorically enforced RMI rules ofevidence, which are patterned upon U.S.federal rules, and have restricted experttestimony accordingly.
Reticent though the FSM may be topursue damages; if RMI courts were tohold that the national government canrun class actions on behalf of itsallegedly affected citizens, this mayresult in political pressure on other stategovernments within the FSM to do thesame.
Limitation of liabilityIn Hawaii, limitation of liability ispossible, but generally not practical, dueto the exacting burden of proof and highlimits under OPA. Limitation of liabilityhas, however, been asserted inconnection with groundings in the FSM,which, by federal law, follows theLimitation of Liability Convention 1976.RMI law likewise follows the Convention,as amended by the 1996 Protocol.
INSURANCE
In Hawaii, thetrustees will presenta claim derived fromcomputer modellingof reef injury andrecovery.
The governments ofthe FSM statesother than Yap havebeen reticent todate in pursuingdamages forgroundings.
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photos: Greg Challenger, Polaris Applied Sciences
photos: Greg Challenger, Polaris Applied Sciences
Blockchain. Everyone will tell you it’simportant, everyone talks about how itwill change the way we do business …and a very large percentage of thosesame people will secretly admit thatthey’re struggling to understand what itactually is.
The term ‘virtual ledger’ is often throwninto the conversation, as if that explainsit all. Beyond that, we all know thatthose who fail to embrace newtechnology are in danger of falling by thewayside.
So what’s in it for us? Jack Hatcher,Legal Director in Hill Dickinson’s marine,trade and energy team and a specialistin this area, lists speed, efficiency,transparency and reduced costs asbenefits.
And the drawbacks? Transparency canalso mean a loss of privacy – withpotential impact on commercialsensitivities. And, while blockchaintechnology could be welcomed forsaving us from some mundane orroutine tasks, could it also, in the rushfor speed, sacrifice something else thatis so treasured in the shipping industry?If ‘routine’ meetings are gone, what does
that mean for our valued personalrelationships, built up over time, withclients and colleagues?
What is blockchain?But first, to basics. There are a numberof different ways to describe theblockchain concept, says Hatcher, buthis preferred explanation uses thecomparison of a safe. “Imagine youhave a number of safes lined up; eachsafe has an identifying number andeach safe has a slot which allows youor others to drop money into it. Thesafes are transparent so I can seeinside – but no one can access yoursafe without the one particular numberyou have.
“The number can’t be manipulated orchanged. And once a transaction hastaken place, it is irreversible – no onecan go back and change the deal or theterms. That is an advantage and also adisadvantage; both parties areaccountable by the complete terms ofany agreement. That is why you have tomake sure the deals you do are correctand that you agree to the parametersbefore you enter into that.”
Transparency – friend or foe
Hatcher agrees that there are issuesabout the transparency of the system.“The parties are going to have to trusteach other more. But the benefits oftransparency and an open marketplace will far outweigh the privacyconcerns.”
In theory, if a party wants to keep anelement private they can drop out of theblockchain, he says: “But that wouldmake people suspicious and goesagainst the whole point of it. Blockchainshould give participants an increasedawareness and detailed history of thecounterparties they are dealing with –
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The blockchainrevolution Interview with Jack Hatcher,
Legal Director, Hill Dickinson
– what does it really mean for the marine insurance business?
“The parties are going to have to trust each other more. But the benefitsof transparency and an open market place will far outweigh the privacyconcerns.”
something which at present relies to alarge extent on due diligence, with anelement of risk. That in itself createsmore trust and puts pressure on partiesto act correctly or risk a blightedreputation.”
The benefits ofblockchainThe World Economic Forum has said a15% enhancement in world trade couldbe achieved if we remove the friction ofsharing information in the supply chain.That’s no surprise – the paperchase andassociated costs of so many supplychains have been well documented inrecent times.
However, this is certainly not a one-size-fits-all panacea. “It does seem with anyadvancement in technology there areonly certain processes or tasks thatneed to be automated, and until thetechnology is at the point where it doesreduce costs or make life easier, youcould ask yourself whether it is reallyworthwhile,” says Hatcher.
Blockchain and theshipping industryAt which point, it’s time to ask for anexample of the blockchain concept –one that can actually be understood inthe shipping context.
“If you are a Chief Engineer, there’s aproblem with the lube oil cooler and youneed a new gasket, you send an email tothe Master, he contacts the shipmanager (if he can), the managercontacts the supplier, and the supplierchecks what inventory they have andwhether the part needs ordering ormaking. And all that communicationgoes similarly all the way back along theline.
“Now take a blockchain solution. Themoment the Chief Engineer sends amessage on the blockchain softwarethat he needs a new gasket, the processbegins; a number of suppliers in theblockchain can compete to provide thatspare part. In other words, it is takingout the middle man process.”
The human elementWill blockchain ultimately removehumans altogether? “Certainlyoperational functions are most at risk ofautomation. Buying and selling? I am notso sure. It depends what you are buyingor selling and on the complexity.
“Where it is a commodity, yes, you coulduse blockchain for a sale and not needany humans at all. But if you are talkingabout a ship, you need to determine andcertify how old it is, assess the quality ofsteel and gear, and so on – you wouldstill need human interaction in theprocess.”
In short, humans will be needed for thenon-routine stuff.
Brokers, for example, acknowledge thatthey can spend up to 80% of their timeon administration, says Hatcher: “If youcan take some of that workload away,then the 20% of time that they have tothink about new business or identifyrisks has increased.”
Blockchain and insurancePersonal injury claims, perhapssomeone injured on a cruise, could besettled via a blockchain – with decisionsand payment made based on level ofinjury, loss of earnings and local costs.Low-value Bill of Lading cargo claimsmight be put into a blockchain. Evenmarine insurance could be processedvia a blockchain platform.
“Rather than see all this as a threat,intermediaries need to get in early andsee how they can benefit from andsupport this technology,” says Hatcher.“Yes, it will potentially make back officeactivities redundant, but it will also putmore emphasis on humans dealing withthe ‘softer’ side. We will still need peoplein the industry to sit down and decidewhat is going to be included in ablockchain’s parameters and associatedagreements. We will still need lawyersand other experts to make sure thesecontracts are legally watertight.
“Across the industry we are trying topredict what these developments willmean for us all. We are not going toprevent this advance of technology. Wemust all adapt to provide differentservices, identify new areas of work, seewhere we can add value. Change iscoming.”
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The World EconomicForum has said a 15%enhancement in worldtrade could be achievedif we remove thefriction of sharinginformation in thesupply chain.
“Rather than see all thisas a threat,intermediaries need toget in early and seehow they can benefitfrom and support thistechnology,”
Automatic, irrevocable: smart contractshave been rapidly gaining ground in thebanking and finance sectors.
The insurance industry may be a littlebehind the banking sector but,nevertheless, we can expect to seesmart contracts being developed at anincreasing pace over the next few years,says legal expert Nicholas Berry. Inparticular, smart contracts will find theirplace in areas of more simple risks,where there are clear parametersrelating to payment, the potential fordisputes is low and the claimsmanagement process is uncomplicatedor pre-determined.
Berry, a partner at Norton Rose Fulbrightuses the vending machine as acomparison, to help explain the concept.When the money is paid and theselection made, an irrevocable set ofactions is put in motion. The money iskept and the drink is supplied. Thetransaction cannot be stopped in mid-flow and the money cannot be returnedwhen the drink is supplied.
Translate that to an insurancesmart contract. A festival isorganised. It is cancelledbecause of rain. A smartcontract, based onsensors that detect therainfall in the GPS area,automatically paysout cancellationinsurance.
The insurance sector“It has been interesting to see howsmart contracts are starting to pop up inthe insurance sector; we are advising onplatform type arrangements usingblockchain technologies and we get thesense that whereas this time last yearpeople were at the proof-of-conceptstage, now they are really starting tofigure out what is going to work andwhat it is not,” says Berry.
What is a smart contract?A smart contract is defined as aninstance of coding and a softwareprogram that encodes performanceconditions and outcomes. It can bewritten purely in code, or digital form,but doesn’t have to be exclusively so. Itcan be a ‘hybrid’ - a cross between ‘oldfashioned’ and ‘smart’, so that, forexample, the ‘smart’ element deals withthe process fundamentals such aspayments, and a linked writtendocument deals with more complex orsensitive aspects.
“There are some in the tech communitythat think that a complex commercialcontract can be entirely encoded, but ifthat will be possible, it’s likely to besome way off. More realistically andpragmatically, a ‘hybrid’ contract modelis more likely in the short term,” he says.
Smart contracts effectively rely onpeople being able to trust a shared setof information and promises, and oftenthis is linked to the use of blockchains.However, Berry says: “Smart contractsdon’t need a blockchain to work,although they are ordinarily associatedwith a distributed ledger technologyenvironment.”
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“When the money is paidand the selection made,an irrevocable set ofactions is put in motion.”
Press thebuttoncarefully –there’s nogoing back
Smartcontracts:
Interview with Nicholas Berry,Partner, Norton Rose
The drive towardsautomation
There is a big drive to automate anddigitalise processes, and smart contractsare a part of that, he says. “My view isthat smart contracts are indeed great forautomatic processes – for example, ifthere is an obvious figure for an insurancepayout using a sensor or other triggersuch as an index. What you will see is amodular approach, starting with the ‘easywins’. The problem with smart contractsis they can’t currently deal with thecomplex elements within the insurancecontext. After all, there are a lot ofnuances around the drafting of contracts.
“So initially smart contracts will be usedin more simple ‘commoditised’ productsor aspects of products. As people getbetter at this, they can then move on toincreased complexity as the technologyis proven. And there may well be a higherpremium for people looking forsophisticated bespoke products ratherthan ‘smart’ and simple ones.”
There is evidence, says Berry, thatcustomers in the retail sector want suchproducts “Because of the sophisticationof underwriting and the use of big data,part of the direction of travel is thedevelopment of new products peopleactually want. Smart contracts couldactually support the development ofthese products.”
Finding a balanceIn more simple situations, automation ofclaims handling could also give betterconsistency, he says – but that still leavesopen the fact that any nuances could bepassed over. “Automatic claims settlementmight be based on external triggers butmight ignore the underlying losses of theinsured; it may also not take into accounthuman and commercial considerations.
“In the commercial world, with complexclaims, I expect you will still have humansdoing complex loss adjustment but aidedby technology, including smart contractprocesses especially in the marinespace.”
The futureAll of this raises questions about theskillsets of the future. “I think that codingexperts will be the key,” says Berry.“Businesses need to consider theirskillset going forward and whethercoding and digital needs to be part of it.
“Collaboration is at the core. Some people have technology expertise, some have insuranceexpertise, some have selling expertiseand some have regulatory expertise. For these things to work, you need to bring all the participants together.”
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“Automatic claims settlement would be based on external triggers butmight ignore the underlying losses of the insured; so it would makesense to embed dispute resolution as well.”
“The problem withsmart contracts isthey can’t currentlydeal with the complexelements within theinsurance context.After all, there are a lotof nuances around thedrafting of contracts.”
“Smart contractseffectively rely onpeople being able totrust a shared set ofinformation andpromises, and often thisis linked to the use ofblockchains.”
The EU GDPR (General Data ProtectionRegulations) will come into force on 25May 2018, at which point it will havedirect effect in the EU/EEA. As far as theClub/member relationship is concerned,the impact of GDPR will in particular befelt in claims relating to personal injuryand illness or other cases involving dataoriginating from natural persons, orindividuals. Data originating from a legalentity that does not contain personalinformation, or information otherwisenot related to natural persons isunaffected.
The aim of the GDPR is to protect theindividual in relation to the processing ofdata. The Regulation applies to thosebodies within the EU/EEA which mayhold such data, but also to those outsidethe EU/EEA which may offer goods orservices to those within that area, orsend personal data to organisationswithin the EU/EEA, or send personaldata to recipients within the EU/EEA.
Because the Club operates within theEU/EEA, the GDPR will apply to the Club.Similarly, GDPR will apply to members,and third-party service providersoperating within the EU/EEA or offeringgoods or services to individuals withinthat area, and to personal data heldwithin the EU/EEA belonging toindividuals who are outside the EU/EEA.
Data controllers, dataprocessors and datasubjects
According to the Regulation , a ‘data•controller’ is the natural or legalperson, public authority, agency orother body which, alone or jointlywith others, determines thepurposes and means of theprocessing of the relevant data.
According to the Regulation, a ‘data•processor’ is a natural or legalperson, public authority, agency orother body which processespersonal data on behalf of thecontroller.
For the purposes of GDPR, the Club actsas a controller. Further, where GDPRapplies, members, brokers and externalservice providers such as Clubcorrespondents, surveyors, and experts,will generally be controllers, since theyare each independently likely todetermine the purpose and means ofthe processing of the relevant data. If aprocessor determines ‘the purposes andmeans of processing, the processorshall be considered to be a controller inrespect of that processing’. This wouldbe relevant only where the matter in
issue, for example a personal injury oran illness claim, contains personal data.In that case, the relevant individual(s)bringing the claim would be the datasubject, benefiting from the rightsprovided in the GDPR.
Sensitive personal data Specific, stricter requirements apply tosensitive personal data. This includesdata such as race, ethnic background,religious and political affiliations, andhealth and medical information about adata subject.
Processing of sensitive personal data isprohibited unless specific conditionsapply, such as express consent or whereprocessing is a necessary consequenceof the establishment, exercise ordefence of legal claims, or wherevercourts are acting in their judicialcapacity. It is recommended howeverthat all members and their associatednamed assureds, brokers, agents, etc.consider including suitable GDPRwording in contracts, employmentcontracts, collective bargainingagreements, ticket conditions, etc. toallow the processing of sensitivepersonal data on a permitted basis.
Transfer of data to a third country
Unless there is a valid legal basis fortransferring data to a third party countryoutside the EU/EEA, then the transfer ofdata requires that either the EUCommission has decided that therelevant third party country has
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Impact of the EUGDPR on theclaims process
The aim of the GDPR is to protectthe individual in relation to theprocessing of data.
by Anders Leissner Director, Corporate Legal & FD&D
established adequate levels of protectionor that the controller or processor in thethird party country has established or willestablish appropriate levels of security.
Examples of this valid legal basis includewhere the transfer is necessary (due to alegal obligation) to bring an insuranceclaim, for example a personal injury claim.If a separate legal basis is required, the EUStandard Model Clauses can be used:
https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en
The Club recommends that members toseek independent advice from a lawyer ortheir local Data Protection Authorities witha view to ensuring compliance with theGDPR regulation.
This is an extract of a longer article on theClub’s website that can be found atwww.swedishclub.com / News/Circulars /Circulars / P&I Circulars / Circular No2632/2018
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LEGAL FD&D
Principles for processing personal dataThe principles for processing personal data can be summarised as follows:
Lawfulness– personal data should be processed only when there is a legal basis fordoing so, such as consent, by contract, or where there is a legalobligation, or where it is necessary in order to protect the vital interestsof the data subject, or where it is for the legitimate interests of thecontroller.
Fairness– those involved in processing personal data should provide the datasubject with sufficient information about the processing and the datasubject's rights.
Transparency– information should be provided in a concise and readilyunderstandable manner.
Purpose limitation– personal data should only be collected and processed for specified,explicit and legitimate purposes and it should not be processed forreasons unconnected with these purposes.
Data minimisation– personal data should be adequate, relevant and limited to what isnecessary for the purposes for which it has been collected andprocessed.
Accuracy– personal data should be accurate and up-to-date.
Storage limitation– personal data should be kept in a form permitting identification of datasubjects for no longer than is necessary.
Security– using appropriate measures, personal data should be secured toprotect against unauthorised or unlawful processing, accidental loss,destruction or damage.
On 14 July 2011, in the course of a ladenvoyage from Argentina to China, the oiltanker Cape Bonny suffered an enginebreakdown while trying to avoid atyphoon. The vessel was towed to aSouth Korean port for a ship-to-shiptransfer. General average was declared.The unfortunate vessel then had to bere-towed in order to avoid anothertyphoon. Cape Bonny was eventuallyreleased and berthed for repairs on 9August 2011.
In due course, an average adjustmentwas prepared which assessed cargo’scontribution to general average atapproximately US$2.1 million. Theowners brought a claim under theguarantee for this sum.
The defendant insurance companydenied any liability and refused to pay,based on Rule D of the York-AntwerpRules, alleging that the casualty wascaused by an actionable fault on thepart of the owners: their failure toexercise due diligence to make thevessel seaworthy before or at thebeginning of the voyage.
During an eight-day trial, Mr JusticeTeare heard evidence from sevenwitnesses of fact and four expertwitnesses who all dealt with technicalmatters. The owners conceded that thevessel was unseaworthy at thecommencement of the voyage, due tothe presence of metal particles in theluboil system. However, the burden layupon them to prove that they hadexercised due diligence to make thevessel seaworthy before or at the startof the voyage, pursuant to the Hague-Visby Rules, which had beenincorporated in the contract of carriage.
The owners argued that they coulddischarge that burden of proof becausethe main engine failure had been causedby sudden and catastrophic damage tothe no.1 main bearing caused by a latentdefect – a weld slag – dating back tothe build date. The judge dismissed theweld slag theory as ‘improbable’ andproceeded to consider the insurer’salternative theories regarding the causeof the casualty, including chain couplingbolts, spark erosion, improper cleaningof the filters and foreign particles in the
bearings. He determined that it waslikely that the cause of the damage tomain bearing no. 1 which resulted in themain engine breakdown, was thepresence of foreign particles in theluboil, which should have been removedbut were not.
Since the presence of wear, foreignparticles and damaged filters renderedthe vessel unseaworthy at thecommencement of the voyage, it wasdetermined that the owners failed toexercise due diligence to make thevessel, and particularly the filters,seaworthy. Although, his failure did notcause the engine breakdown, the courtconcluded that ‘a prudent engineer orsuperintendent’ should haverecognised and acted on theunexplained and significant differencein the crankshaft deflection readingstaken by the crew. Therefore, it wasaccepted that this failure to exercisedue diligence had been causative of thesubsequent engine breakdown and itfollowed that the cargo interests werenot liable to make a general averagecontribution.
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Cape Bonny: the case
Since the presence of wear, foreign particles anddamaged filters rendered the vessel unseaworthy atthe commencement of the voyage, it was determinedthat the owners failed to exercise due diligence tomake the vessel, and particularly the filters,seaworthy.
LEGAL FD&D
Stelios Magkanaris, Marine ClaimsAdjuster in Team Piraeus, considersthe implications of this ruling for shipoperators.
The approach to the matter of ‘duediligence’ adopted by Mr Justice Teareis very relevant to future cases.
Approximately 160 of the decision’s200 paragraphs make up a technicalsaga of arguments, counter argumentsand opinions from a variety of experts,from which the judge was obliged todiscover who was ‘in the right’.
The judge went into depth to weigh upthe opinions of various witnesses andreflect on the facts of the case. As aresult, Justice Teare’s judgment tookthe ‘due diligence’ requirement to newheights, going beyond consideringwhether the engineering crew and the
superintendent ashore failed to followa standard procedure, checklist, or aprocess which was standard commonknowledge in the industry,
In essence, he held the managersliable, not for failing to detect the worncondition of the main bearing but fortheir failure to check on its condition -despite non determinative surroundingparameters or readings.
This is important as the judgequestioned the technical competencyof the managers to evaluateinformation and take action.
Whether one agrees with his finaldecision or not, what matters is thethought process and the test appliedby the judge, which may be ofsignificance for the industry.
VIEWPOINTDoes the due diligence question climb to new heights?
In essence, the judgeheld the managers liable,not for failing to detectthe worn condition of themain bearing but for theirfailure to check on itscondition.
by Stelios MagkanarisMarine Claims Adjuster, Team Piraeus
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The Swedish Club has subscribedto a block membership agreementwith the International MaritimeBureau (IMB) in London whichgrants its Freight Demurrage andDefence (FD&D) members directaccess to the IMB CharteringExperience Programme.
The IMB is a non-profit makingorganisation, established in 1981 to actas a focal point in the fight against alltypes of maritime crime andmalpractice.
Under the terms of the membership,FD&D members wishing to check on thebackground of any particular charterercan contact the IMB directly with thedetails of the chartering companyrequesting whether the IMB has anyinformation related to that companywhich would be relevant whenconsidering whether or not to charter avessel to that company.
FD&D members are encouraged to takefull advantage of this service free ofcharge from the IMB, which it is hoped
will assist in reducing the risk of fixingto charterers who are likely to fail tohonour their charterparty obligations.
Notably, FD&D is an importantsupplement to the ship operator’sinsurances providing cover for costs upto USD 10 million in disputes arising inconnection with the owning andoperating of the entered vessel.Membership has increased significantlyduring the past years and the Clubcovers 1,046 vessels for FD&D risks.Join the Club!
Legal updateIMB membership for FD&D members
Members can be asked in theirday to day business to do thingsby their contractualcounterparties which riskprejudicing their P&I cover.Usually this is in exchange for aLetter of Indemnity (LOI) to beprovided by the party making therequest.
In some situations, the contractgoverning the relationship between themember and party making the requestalready will have made provision for this:a rider clause, for example, saying thatin a specific situation, owners agree toaccept an LOI signed by, say, charterersalone.
Where members agree, for commercialreasons, to carry out an action whichprejudices or is likely to prejudice theirP&I cover, it is not appropriate for theClub to offer advice on the LOI wording:the member is responsible for ensuringthat it is adequately protected by an LOIreplacing its lost P&I cover.
All too often, however, inappropriatelyworded LOIs cross our desks at theClub. While the commercial reality ofthese situations might mean that LOIsare honoured in the spirit in which theywere provided, there is no guaranteethat an LOI received, will not have to beenforced in the future.
Getting the wording rightIt is, therefore, better to get the wordingof the LOI correct from the outset. Thefollowing pointers may assist membersin drafting a ‘DIY LOI’:
Ensure the LOI is on the letterhead of1and signed by/ on behalf of the partyproviding it. Using the words‘Authorised signatory’ under thespace left for the signature, mayhelp.
Ensure the LOI is correctly2addressed to the party receiving it.
As with the International Group (IG)3wordings, ensure the vessel,voyage, cargo and bill(s) of ladinginvolved are correctly identified.
Accurately describe what has4happened and what the party beinggiven the LOI, has been requestedto do. In short, tell the story: e.g. thevessel has loaded a cargo of ‘x’ andis now being asked to load a cargoof ‘y’ on top. Or, the vessel has beenasked to continue to load the cargoof ‘z’ during periods of light rain.
Insert the operative words : ‘In5consideration of your complyingwith our above request, we herebyagree as follows:-’
Add the indemnity paragraphs. The6indemnity paragraphs can be basedon the IG ‘INT GROUP’ wordings.Make sure, however, that they refercorrectly to what the partyreceiving the LOI is actually beingasked to do. It ought to be obviousthat if the LOI is being given forissuing clean bills of lading, thenthe indemnity paragraphs shouldnot refer to delivering cargo withoutproduction of bills of lading - butthat is exactly the sort ofinconsistency seen.
Concentrate on point 4 above. Tell thefull story. Don’t make do with generalwords such as ‘carry out specialist
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by Martyn HughesSenior Claims Manager FD&D, Team Gothenburg
Focus on what theparty receiving theLOI is being requestedto do. Describe it insufficient detail.
DIYLOI
operations’ in the description of what isbeing requested.
If you have sufficiently described, firstly,what has happened and, secondly, whatis being asked of the party receiving theLOI, then the following generally wordedindemnity paragraphs ought to besufficient:
To indemnify you, your servants and1agents and to hold all of youharmless in respect of any liability,loss, damage or expense ofwhatsoever nature which you maysustain by reason of yourcomplying with our request.
In the event of any proceedings being2commenced against you or any ofyour servants or agents inconnection with your complying withour request as aforesaid, to provideyou or them on demand withsufficient funds to defend the same.
If, in connection with your3complying with our request asaforesaid, the ship, or any othership or property in the same orassociated ownership,management or control, should bearrested or detained or should thearrest or detention thereof bethreatened, or should there be anyinterference in the use or trading ofthe ship, or any other ship charteredby you (whether by virtue of acaveat being entered on the ship’sregistry or otherwise howsoever), toprovide on demand such bail or
other security as may be required toprevent such arrest or detention orto secure the release of such shipor property or to remove suchinterference and to indemnify you inrespect of any liability, loss, damageor expense caused by such arrestor detention or threatened arrest ordetention or such interference,whether or not such arrest ordetention or threatened arrest ordetention or such interference maybe justified.
The liability of each and every4person signing this indemnity shallbe joint and several and shall not beconditional upon your proceedingfirst against any person, whether ornot such person is party to or liableunder this indemnity.
This indemnity shall be governed by5and construed in accordance withEnglish law and each and everyperson liable under this indemnityshall at your request submit to thejurisdiction of the High Court ofJustice of England.
Attempts to limit theextent of the indemnity
Finally, the party making the request maytry to limit the extent of the indemnityprovided, arguing that the indemnityshould cover the consequences only ofwhat it is asking the member to do butshould not indemnify the member formistakes or
negligence of their own crew. The answerto that is that the member is being askedto do something which puts them in aposition where such a mistake mighthave serious consequences. The memberwould never have been in that positionbut for the counterparty’s request to dosomething which prejudices cover.
Take for example, a vessel with sevensegregations capable of loading sevendifferent grades of cargo into sevenpairs of tanks. Charterers ask the vesselto load 14 different grades using eachsegregation to load two separate gradesthrough the same lines. During theoperation, the crew in error allows twogrades to be loaded into the one tank.Charterers ought to be responsible forthat error since each separation is notdesigned to be used to load twoseparate grades, in the first place.
The serious nature of the LOI
LOIs are a commercial reality in theindustry. The Club does not turn a blindeye to them being used, but since theyinvariably concern prejudicing P&I cover,the Club cannot be expected to ‘conjureup’ their wording. Members must satisfythemselves that they are happy with,and happy to accept an LOI in exchangefor losing their P&I cover. Membersmust also bear in mind they might notbe able to legally enforce an LOI. It ishoped this article will help membersdraft LOIs for the situations not alreadycovered by the INT GROUP wordings
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LEGAL FD&D
All too often, inappropriatelyworded LOIs cross ourdesks at the Club. While thecommercial reality of thesesituations might mean thatLOIs are honoured in thespirit in which they wereprovided, there is noguarantee that an LOIreceived, will not have to beenforced in the future.
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LEGAL FD&D
Commencement of arbitration underEnglish law is relatively straightforward.
However, two recent English legaldecisions highlight the potential hazardsinvolved in serving a notice of arbitration.
Cautionary tales:Serving notice ofarbitration
by James BamforthHead of Claims – Claims Manager, Team Piraeus
Dana commenced proceedings againstSino under a Contract of Affreightment(‘COA’). The actual day-to-day operationof the COA was performed by anothercompany, BX, and Sino merely signedthe COA. All correspondence followingsignature of the COA was between Danaand a Mr Cai. Dana believed Mr Caiworked for Sino, but in fact he was anemployee of BX.
Disputes subsequently arose under theCOA, and Dana commenced arbitrationagainst Sino. Notice of arbitration wassent via broking channels. The brokersforwarded this and all furthercorrespondence to Mr Cai. No responsewas provided, and an award wasultimately given in Dana’s favour. Sinoclaimed the first they knew of theproceedings was when the award was
sent to their offices by post. Sinoapplied to have the award set aside, onthe basis that Mr Cai had not beenauthorised to act on their behalf.
Sino were successful at first instance.Dana challenged the decision of theCommercial Court.
The Court of Appeal looked at thecourse of dealings under the COA andfound that BX had implied actualauthority and ostensible authority to acton behalf of Sino, including in relation toaccepting a notice of arbitration.
However, the Court of Appeal acknow-ledged that it was in very rare cases thatsuch authority would be implied.
This case offers a reminder that brokersor other agents may also not beauthorised to accept service of anarbitration notice, and a partycommencing arbitration should alwaysgive careful consideration to exactlywho that notice is to be served upon. Itis good practice to ask any counterpartto expressly confirm that they areauthorised to accept a notice ofarbitration.
Disputes arose under a time charterparty of the Amity. Claimant owners sentvarious communications to an emailaccount of Mr Oosterman, an employeeof the charterers, Glencore. Thesecommunications included a notice ofarbitration. No response was received tothis notice, nor to any of the othermessages sent by the claimants and bythe sole arbitrator. Ultimately, an award
was issued in favour of the claimants,which was sent by post to Glencore.
Glencore said the award was the firsttime they had been made aware of theproceedings. They applied to theCommercial Court to set it aside on thebasis that the notice of arbitration hadnot been validly served by being sent toMr Oosterman’s personal email address.
The Court distinguished between theuse of a generic email address and thatof an individual employee. Service to ageneric email address where that emailaddress is held out by the company astheir only email address may well beeffective, because it gives rise tolegitimate expectation that service ofdocuments will be dealt withappropriately: see The Eastern Navigator[2005]. An email sent to an individual’s
email address is different, as whether itconstitutes good service depends on theparticular role and authority theindividual has.
Ultimately, the Court held that theservice upon Glencore was ineffective,as Mr Oosterman had neither actual norostensible authority to accept service onbehalf of Glencore. Accordingly,Glencore was granted relief underSection 72 of the Arbitration Act.
This decision serves as a reminder thatcaution should be taken when servingarbitration proceedings by email. If youdo not have confirmation that aparticular individual is authorised toaccept service, it is safer to use ageneric email address for the company,or, better still, to send the notice ofarbitration by fax and registered post.
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LEGAL FD&D
Glencore Agriculture BV v Conqueror Holdings Ltd(The ‘Amity’) [2017]
Sino Channel Asia Limited v Dana Shipping and TradingPTE Singapore [2017]
“If you do not haveconfirmation that a particularindividual is authorised toaccept service, it is safer touse a generic email addressfor the company, or, betterstill, to send the notice ofarbitration by fax andregistered post.”
“This case offers a reminder that brokers or other agents may alsonot be authorised to accept service of an arbitration notice, and aparty commencing arbitration should always give carefulconsideration to exactly who that notice is to be served upon.”
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Three hundred years later, gettingtogether over a coffee can be just asimportant, says Lars Nilsson, Managerof The Swedish Club’s London office. “Itis very important to have personalmeetings, particularly if you want todiscuss more complex and major dealsor contracts,” he says. “In common withothers, our sector is looking into digitalways of doing more repetitive andsimple business tasks – but the moreimportant things are done person toperson.”
MEET OUR CREW
Meet our crewBack to the coffee shopSometimes, a coffee is what’sneeded. Edward Lloyd knew itwhen he opened his famousLloyd’s Coffee House in the17th century; maritimeinsurers, brokers and traderswho patronised the facility inthe City of London obviouslyknew it too.
“London is the mostimportant insurancemarket in the worldand specifically themost importantmarine insurancemarket in the world.”
The Lloyd’s Collection
Ask him the main reasons for having aLondon office and he doesn’t hesitate:“London is the most importantinsurance market in the world andspecifically the most important marineinsurance market in the world.
“Almost all the major brokers have anoffice in London and, as marine insurers,this is still a people business. And, ofcourse, the International Group of P&IClubs is headquartered in London andwe participate in a number of IGcommittees and working groups. Forexample, I am on the reinsurancesubcommittee, which meets at leastonce a month.”
Lars and his colleague, underwriterKristoffer Lindqvist frequently meetmembers, brokers and reinsurers as partof their day-to-day work.
“There are always people to meet everyday. Funnily enough we still use coffeeshops and cafes. Short meetings overcoffee keep us involved in the market andwell informed on what's happening."
Apart from the UK itself, the Londonoffice focuses on business developmentin other European and overseas marketstoo. The team also supports colleaguesfrom the Club’s other offices: “We from
the London office are ready to assistwith services, issues and personalcontacts,” says Lars.
“Having a London office also enables usto attend important functions – just fiveminutes up the road rather than a flightfrom Gothenburg.”
Inevitably the ‘B’ word comes up in theconversation – Brexit, the UK’s exit fromthe European Union. So far it is unclearhow the status of the office will change,but options are being followed up. “Whatwill not change is this: it is important tobe in London and it is also important tobe seen to be in London.”
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MEET OUR CREW
Kristoffer Lindqvist, Underwriter, London Office
“In common withothers, our sector islooking into digital waysof doing more repetitiveand simple businesstasks – but the moreimportant things aredone person to person.”
“It is very important to have personal meetings,particularly if you want to discuss morecomplex and major deals or contracts.”
Lars Nilsson, Manager, London Office
34 / Triton 1 2018
Helena Wallerius DahlstenIn interviews, candidates are frequentlyquestioned by HR people on theirstrengths and weaknesses. So, we putthe question to Helena WalleriusDahlsten shortly before her officialretirement as The Swedish Club’s HRDirector.
“I have never been afraid and I do trustthat things will be OK. That has been bothmy weak point and also my strength,” shesaid. “I have always been calm and workon the assumption that things will be allright in the end.”
That attitude was helpful right from thestart of her career. After studyingmaritime and transport law, Helenajoined The Swedish Club on a summertraineeship in 1982.
“That summer never came to an end,” shesaid, “because I am still here! I was askedto stay on to cover for a colleague andthen I was offered a permanent job as aP&I claims handler.”
MEET OUR CREW
This year, change is in the air, as we wish a happy retirement to HelenaWallerius Dahlsten after 36 years with the Club, and we bid welcome to BrittaPatriksson, the Club’s new Director of HR.
The changing face of HR
“HR today is part of thestrategic planning forthe organisation andvital to a lot ofstructural issues. Thereneeds to beconsistency in anorganisation’sapproach to personnel.”
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MEET OUR CREW
From the outset, Helena was allowed todeal with many aspects of cases on herown, albeit with guidance from the teammanager. “I learned by handling casesand gradually took on moreresponsibility. Then one day themanager said to me: ‘Did you bring yourtoothbrush? You have to go toPhiladelphia.’
“We had a ship loaded with newsprintfrom Finland, and water had leaked inthrough the hatch covers and damagedthe reels in the hold. He felt it was a goodopportunity to go and see in real life howclaims were handled.”
Helena worked as a claims handler andsupervisor in various roles for 20 years,until a major reorganisation of the Club in2003.
“It was decided at that stage to set up anHR department. Until then, the FinanceDirector handled HR, basically beingresponsible for salaries and vacationdates – and the rest was the departmentmanagers’ responsibility. There was nocentralised process for recruitment ordevelopment of staff.”
Helena took on a joint role as HR andCorporate Legal Director, as well asSecretary of the Board.
“At that time I was ready for a newchallenge. I was curious and happy toenter a new arena. And although I had noHR knowledge as such, I think thatpeople were happy that HR was beingtaken on by someone who knew thecompany and the people.”
After seven years, HR and the legal sidewere split into two roles, and Helenabecame HR Director in 2010.
“HR today is part of the strategicplanning for the organisation and vital to a lot of structural issues,” shesaid. “There needs to be consistency inan organisation’s approach topersonnel.”
How would Helena sum up her prioritiesin HR? “Firstly look at the company’sperspective, and then look at how peoplecan help grow the company. You can onlydo this if people are happy, and then youwill deliver the result. I am there to deliverfrom the human perspective.
“My background in P&I has meant that Iunderstand what my colleagues do. Avery large part of my job has beensupporting the managers - the HR roleprovides the distance and objective view.”
Britta PatrikssonThe Swedish Club’s new HR Director isno stranger to the world of shipping – or,indeed, the world of P&I. BrittaPatriksson grew up in a shipping family;her father owned Transatlantic(previously B&N and now part of VikingSupply Ships) and he served on TheSwedish Club board for 30 years. Both ofher grandfathers were seafarers.
“I grew up with shipping; every summerthe whole family went to sea with myfather,” she says. “There were not somany regulations in those days and wewent ashore everywhere. I rememberwhen he decided to leave the sea, wewere crying because those fantastic tripswere over.”
Britta started her own career in the mid-1980s working for American Express,after studying finance and computers. As she puts it: “I worked there because itwas a company that had a computer!”
She went on to work in the marketingdepartment of SAS, eventually joiningTransatlantic as a marketing assistant in1993. At that time, the shipping companyhad 1,500 employees – the vast majorityat sea – and no HR structure.
After helping with HR and studying thesubject alongside her other work, Brittaserved as HR Director from 2001 until2016. From then, until joining TheSwedish Club, she worked as aconsultant.
“At its peak, Transatlantic had 1,300seafarers – but towards the end, it wasnearer 200,” she says. “We always hadour P&I cover with The Swedish Club, so Iwas a member. Now it is a lot of fun to beon the ‘other side’!”
What are Britta’s priorities as she joinsthe Club? “Of course I will continue whereHelena has left off,” she says. “Thatmeans continuing to focus on developingstaff and leadership. I am really lookingforward to working strategically and to berepresenting HR issues within themanagement team.”
“New challenges in HR are definitelyemerging. The ‘millennials’ want to beflexible. They want to know what valuethe job brings to their lives, as well ashow they can contribute. HR will becomeeven more important in the years tocome, as it must reflect and confirm whatthe company itself stands for.”
Outside work, Britta has a big interest infood – for the past five years she and herpartner have owned a French bistrorestaurant near Gothenburg.
However, it seems likely that shippingand HR will continue to dominate thefamily conversations. She has two sons– Patrick is a shipbroker and Hugo is aninsurance broker. And her daughter Elsa,aged 20, is studying HRadministration.
I will continue whereHelena has left off.That means continuingto focus on developingstaff and leadership. Iam really lookingforward to workingstrategically and to berepresenting HR issueswithin themanagement team.”
“New challenges in HRare definitely emerging.The ‘millennials’ wantto be flexible. Theywant to know whatvalue the job brings totheir lives, as well ashow they cancontribute.”
Azalea Maritime Training Centre hasbeen running Maritime ResourceManagement (MRM) training coursesfor eight years, and has taken on boardthe ethos of MRM to such an extent thatit now runs MRM courses which involveall members of the crew – bridge,engine and cargo team.
“One of the main goals of MRM trainingis to bring people together,” explains IgorOnisko, Operational Manager andTraining Coordinator at Azalea Maritime.“Integrating the various teams operatingon board a vessel has proven to be farmore effective than having these teamsin separate training sessions.”
Martin Hernqvist, Managing Director ofThe Swedish Club Academy, agrees:“Why separate people in training whowork together on board? We don’t thinkthat’s a good idea and this is in fact themain reason we moved from the ‘old’term Bridge Resource Management(BRM) to Maritime ResourceManagement (MRM)in the early days ofconcept development.”
Established more than twenty years ago,Azalea Maritime, based in Bijela,Montenegro, became a licenced MRMTraining provider in 2010. It alreadyoffered a broad range of mandatorytraining courses, and saw how influentialMRM could be in supporting learning bychanging attitudes in the workplace.
Igor Onisko explains that the MRMtraining conducted at the Azalea MaritimeTraining Centre focuses on case studybased workshop sessions. “This is tofoster a good learning environment wherethere is a fruitful exchange of ideasbetween the participants from differentbackgrounds,” he says.
“The feedback from those attending ourMRM training is always very positive andexceeds expectations compared withresource management courses found
elsewhere. Most delegates havepreviously attended resourcemanagement training, but have neverexperienced the levels of cooperation andcommon problem solving that can beachieved through this approach to MRMtraining.”
Onisko has found that having theopportunity to work together andapproach issues and problems, through ajoint effort offers a valuable opportunityto improve communication andteamwork. “The common goal,” he says,is to achieve ‘the highest Industrystandard of flawless vessel operation.”’
Martin Hernqvist adds: “The commitmentthat Azalea Maritime continues to putinto maritime training is indeed verypositive. I am delighted that AzaleaMaritime shares our passion for MRMtraining and the results that may beachieved through effective training inhuman and organisational factors.”
36 / Triton 1 2018
MRM
by Lorraine M. HagerStrategic Development Executive,The Swedish Club Academy
MRM Training Provider focus:
Azalea Maritime
“The feedback fromthose attending ourMRM training is alwaysvery positive andexceeds expectationscompared with resourcemanagement coursesfound elsewhere.
MRM training session at Azalea Maritime
The Swedish Club were proud to sponsorthe latest Informal Tanker Operators’Safety Forum (ITOSF) which took placeearlier this year in Athens at the GrandBretagne Hotel.
ITOSF is an exclusive group of 70 tankerowners which meets every four monthsto exchange safety information for thebenefit of the greater good. Participantsdo not discuss commercial matters andrigorously protect the confidentiality ofmembers and proceedings.
The Swedish Club was invited to share itsbroad knowledge of casualty handlingcoupled with its unique hands-onapproach. The Club stood up to thechallenge with a presentation fromStelios Magkanaris, Marine ClaimsAdjuster, Team Piraeus, entitled ‘Duediligence and seaworthiness … howconfident are you?’. This focused on thenew decision from the High Court ofJustice, London, regarding the ‘CapeBonny’ which is covered on page 26 ofthis issue.
The presentation was extremely wellreceived and sparked a livelydiscussion which continued duringbreaks, over lunch and also duringdinner. Delegates were particularlyconcerned about how the ‘non-shipping’ world, such as the legalprofession, seems to view the shipping
community - even those operatorsmaintaining the highest level ofstandards. As a result of the concerns arising from Magkanaris’presentation, several high profile oilcompanies have requested additional,tailor-made, presentations for theircompanies.
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CLUB INFORMATION
The Club supports tanker safety forum
MARS reportsThe Mariners'Alerting andReporting Scheme(MARS) is aconfidentialreporting systemrun by The NauticalInstitute to allowfull reporting ofaccidents (and nearmisses) withoutfear of identificationor litigation.
MARS reports regularly include alerts condensed fromofficial industry sources, so that issues resulting from recentincidents can be efficiently relayed to the mariner on board. With access to the internet from vessels becomingmore affordable, the MARS database is a valuable riskassessment, work planning and loss prevention tool and atraining aid for crew and management.
MARS reports are held in a publicly-accessible databaseand can be accessed from The Nautical Institute websiteand is also published at www.swedishclub.com/LossPrevention/Services/Cases/MARS reports.
Two new guidelines from CINSThe Cargo Incident Notification System working group(CINS), a shipping line initiative launched in September2011, has issued two new guidelines:
1. Guidelines for the carriage of metal scrap in containers.
2. Guidelines for the carriage of cocoa butter incontainers.
The guidelines are aimed at increasing safety in thecontainer supply trade by highlighting the risks involved inthe carriage of these cargoes and identifying the bestpractices in packing and carriage methods to avoidissues.
CINS aims to increase safety in the supply chain, reducethe number of cargo incidents on board ships and on land,and to highlight the risks caused by certain cargoesand/or packing failures.
Cyber security measures – 6 May 2018The EU Network andInformation SecurityDirective (NIS) wasadopted by the EuropeanParliament on 6 July 2016and became a directive inAugust 2016. EU MemberStates had 21 months totranspose the Directive into their national laws and sixmonths more to identify operators of essential services.
The NIS requires maritime transport and other essentialservices to demonstrate that they have implemented‘appropriate and proportionate’ cyber security measures.
The NIS will come into force on 6 May 2018. The largestport or harbour authorities and maritime transportcompanies headquartered in the EU will be directlyimpacted by these new provisions and there will inevitablybe a trickle-down effect on small companies that contractwith those organisations.
These measures will be in addition to the other new cyberlaws, such as the General Data Protection Regulation(GDPR), which are about to come into effect.
Implementation of the EU GDPR The EU General Data Protection Regulation (GDPR) willcome into force on 25 May 2018. It will have directeffect in the EU and the European Economic Area (EEA),which united the EU member states and the three EFTAstates Iceland, Liechtenstein and Norway.
A brief introduction to the GDPR as relevant to the Cluband its members can be found in the Club’s P&I CircularNo 2632/2018 dated 22 February 2018
The impact of the regulation will most often be felt inclaims relating to personal injury and illness or othercases involving data originating from individuals. This iscovered in more detail on page 24 of this issue ofTriton.
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Notice board
In response to the threats arising from the conflict inYemen, BIMCO, ICS and INTERTANKO have publishedinterim guidance on maritime security in the southernRed Sea and Bab al-Mandeb. Shipowners and operatorsshould be aware of new threat patterns in the area.
The European Union Naval Force (EUNAVFOR) and theCombined Maritime Forces (CMF) have advised that arange of threats other than piracy, such as sea mines andwater-borne improvised explosive devices (WBIEDs), arepotential risks in the area.
It is important that company security officers and shipMasters are informed of these new threats, as the threatpatterns and mitigating measures differ from the morefamiliar regional threat of piracy.
The guidance stresses the importance of using theMaritime Security Transit Corridor, registration withMaritime Security Centre Horn of Africa (MSCHOA) andreporting to United Kingdom Maritime Trade Operations(UKMTO), as well as reviewing and updating riskassessments and plans to include these new threats. Theguidance also includes advice specific to identified threattypes, including WBIEDs and similar.
The guidelines can be read in full on the BIMCO, ICS andINTERTANKO websites.
Nairobi InternationalConvention on the Removalof Wrecks.On 3 February 2018, the Nairobi InternationalConvention on the Removal of Wrecks was incorporatedinto Swedish national law, in the Swedish MaritimeCode, chapter 11a.
It requires Swedish flagged vessels to carry a certificatestating that the ship has an insurance (or other financialsecurity) covering the liability for removal of a wreck.
The Convention was adopted on 18 May 2007 andentered into force on 14 April 2015. It provides a soundlegal basis for coastal States to remove, or have removed,wrecks which pose a hazard to the safety of navigation orto the marine and coastal environments, or both. It makesshipowners financially liable and requires them to take outinsurance or provide other financial security to cover thecosts of wreck removal. It also provides States with aright of direct action against insurers.
The Convention aims to fill a gap in the existinginternational legal framework by providing the first setof uniform international rules aimed at ensuring theprompt and effective removal of wrecks located beyondthe territorial sea.
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BIMCO, ICS andINTERTANKO issue interimsecurity guidance onpassage through theSouthern Red Sea and theBab al-Mandeb strait
13-15 June 2018 Gothenburg
SAVETHEDATE
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The Swedish Club breakfast seminar in Oslo was held atTjuvholmen Sjømagasin on Tuesday 13 March. More than thirtybrokers, ship owners and adjusters attended the event, for whathas now become an annual tradition.
Area Manager Tore Forsmo was the first to speak, presenting hisviews on the business environment facing both the marineinsurance industry as well as the shipping segments that TeamNorway serve. If 2017 was dominated by wintery marketconditions in most markets, perhaps 2018 will be the year whenspring arrives?
The Swedish Club State of Affairs address was given byManaging Director Lars Rhodin highlighting solid performanceover the past few years. Peter Stålberg, Senior Technical Advisorat the Gothenburg head office was the morning’s quiz-masterwhen he also took the audience on a guided tour through enginedamage and claims with a particular emphasis on auxiliaryengines. All together a morning well received and appreciated byall those attending.
Breakfast Seminar in Oslo, 13 March
From left: Tom Jebsen, Arne Blystad AS, and Jeanine Krogh Borg, TrulsKvalnes and Thomas Eik Gabestad, Willis Towers Watson
From left: Bjørn Slaatten, Norwegian Official Average Adjuster, and HenrikMjaaland and Thomas Kjersem Jacobsen, Bergvall
Out and about
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Earlier this year, the World MaritimeUniversity (WMU) paid its annual visit toThe Swedish Club head office to enable itslatest cohort of students to gain an insightinto the marine insurance business. Thesevisits have become a valued traditionwhich began 19 years ago.
The students were given an introduction toimportant aspects of the marine industry,such as Loss Prevention, RiskAssessment and Marine Casualties, aswell as an introduction to P&I, FD&D andMarine insurance. A short presentation oncomputer fraud wrapped up the day.
The WMU is based in Malmö Sweden, andis a postgraduate maritime universityfounded by the International MaritimeOrganization (IMO). In addition to offering aunique postgraduate educational program,it undertakes wide-ranging research inmaritime and environmental studies.
The Swedish Club welcomes WMU students
Cefor visits the Club
This March The Swedish Club once again hosted new students of the Cefor Academy at its Gothenburg headquarters. Young professionals from all areas of the industry came together to complete the fifth module of the Nordic Marine InsuranceEducation Programme.
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Staff newsMalin Högberg awarded professional qualification in P&IMalin Högberg, Senior Claims Executive P&I andFD&D, Team Gothenburg, is the first employee ofThe Swedish Club to successfully complete theInternational Group of P&I Clubs prestigious P&IQualification (P&IQ).
First launched in 2010, P&IQ is a rigorousprogramme of education through which thoseworking in the industry can gain invaluableknowledge of P&I, including the structure of theshipping industry, the history and operation ofthe Clubs and the different types of liabilitiesinsured.
The P&IQ programme consists of sevenmodules covering the following topics:
• The shipping business• P&I insurance history, operation and practice• Underwriting, loss prevention and claims handling• People risks• Cargo risks• Collision, FFO & pollution• Towage, salvage, general average & wreck removal
Britta Patriksson Britta joined the Club as Human ResourceDirector on 1 February 2018. Shesucceeds Helena Wallerius Dahlsten whorecently retired on 1 March 2018. Brittahas a solid background in humanresources and extensive experience inmanagement and shipping. For fullinterview see p37.
Ellinor BorénEllinor joined Team Gothenburg inJanuary 2018 for a period of one year asAssistant Claims Executive. She holds aBSc in Nautical Science and an LL.M inMaritime Law. Ellinor has served asSecond Officer on roro and tankervessels.
Kleopatra GeorgantziKleopatra has accepted permanent employment as SeniorClaims Executive, P&I in TeamGothenburg.
Cheryl YuCheryl joined Team Asia in January2018 as Senior Claims Executive, FD&Dand P&I. Cheryl holds an LLB from theDalian Maritime University and an LL.M(with distinction) from the TulaneUniversity. She has previously workedwith leading international law firms forseveral years.
Kaare LangelandFrom 3 April 2018, Kaare will take upthe role of Senior Advisor in TeamAsia. He has returned to The SwedishClub having worked several years forWK Webster in the UK and after thatas Casualty Investigator at HolmanFenwick Willan in Hong Kong and inLondon.
Rafaela KonstantinouRafaela joined Team Gothenburg inMarch 2018 for a period of six monthsas Assistant Claims Executive.Rafaela holds a BSc and MSc inShipping Management from ALBAGraduate Business School in Athensplus a diploma in Maritime Law fromStockholm University.
Debra XieDebra joined Team Gothenburg inDecember 2017 for a period of oneyear as Assistant Underwriter. Shehas previously worked in Singapore asan Assistant Broker with EdgeInsurance Brokers and as TechnicalAssistant with Arthur J. Gallagher.
Linda WilénLinda joined the Club on a permanentbasis in September 2017. She holds adegree in Finance and Insurance andis working as Reinsurance Assistantin the Underwriting, Reinsurance &Risk Control department.
GOTHENBURG
HONG KONG
CLUB INFORMATION
1 – On board ship, what is housed in abinnacle? 1. Seafood X. Compass2. Charts
2 – Which of the following is not a typeof sailing vessel? 1. KetchX. Sloop2. Topper
3 – What does the Club’s acronym MICstand for?1. Maritime Insurance CertificateX. Marine Insurance Course 2. Maria, Irma and Charlotte (working with claims)
Mail your answer to [email protected] first correct answer pulled out of the hat will win a prize.
Winner of Club Quiz 3 – 2017
Congratulations to winner of Club Quiz No 3-2017, CaptJens Lindhe of Maran Gas Maritime Inc. Greece, who hasbeen awarded a Club giveaway.
The answers to Club Quiz No 3-2017 are:
X Average Freight Rate Assessment (What does afra stand for in an aframax oil tanker?)X 1869 (When did the official opening of the Suez Canal take place?)2 Harvey, Irma and Maria (What does the recently coined acronym HIM stand for?)
Club Quiz Club Calendar 2018
Club EveningBremen10 April
Club EveningHamburg11 April
Marine Insurance SeminarIstanbul25-26 April
Member LunchPiraeus25 April
Club DinnerIstanbul26 April
Marine Insurance CourseGothenburg14-18 May
Open HousePiraeus7 June
Board MeetingGothenburg13 June
AGM EventsGothenburg13-15 June
Board MeetingLondon6 December
Annual General MeetingGothenburg14 June
Board MeetingNew York4 October
For further upcoming events, please refer to www.swedishclub.com
SCOLSwedish Club OnLineGet 24 hour access to your:
Insurance documents•Claims•Records•Advanced frequency analysis•
The Swedish Club is a mutual marineinsurance company, owned and controlledby its members. The Club writes Protection& Indemnity, Freight, Demurrage & Defence,Charterers’ Liability, Hull & Machinery, WarRisks, Loss of Hire insurance and anyadditional insurance required byshipowners. The Club also writes Hull &Machinery, War Risks and Loss of Hire forMobile Offshore Units and FPSOs.
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Head Office GothenburgVisiting address: Gullbergs Strandgata 6, 411 04GothenburgPostal address: P.O. Box 171, SE-401 22 Gothenburg, SwedenTel: +46 31 638 400, Fax: +46 31 156 711E-mail: [email protected]: +46 31 151 328
Piraeus5th Floor, 87 Akti Miaouli, 185 38 Piraeus, GreeceTel: +30 211 120 8400, Fax: +30 210 452 5957E-mail: [email protected]: +30 6944 530 856
Hong KongSuite 6306, Central Plaza, 18 Harbour Road, Wanchai, Hong KongTel: +852 2598 6238, Fax: +852 2845 9203E-mail: [email protected]: +852 2598 6464
Tokyo2-14, 3 Chome, Oshima, Kawasaki-Ku Kawasaki,Kanagawa 210-0834, JapanTel: +81 44 222 0082, Fax: +81 44 222 0145E-mail: [email protected]: +81 44 222 0082
OsloDyna Brygge 9, Tjuvholmen N-0252 Oslo, NorwayTel: +47 9828 1822, Mobile: +47 9058 6725E-mail: [email protected]: +46 31 151 328
LondonNew London House, 6 London StreetLondon, EC3R 7LP, United KingdomTel: +46 31 638 400, Fax: +46 31 156 711E-mail: [email protected]: +46 31 151 328
Contacts
www.swedishclub.com
