Insurance Law: P&I and H&M - Coursework Example

?Insurance Law Question 1A: P&I and H&M Protection and indemnity (P&I) together with hull and machinery (H&M) are the two main types of marine insurance coverage.1 H&M is for the most part property cover in that its purpose is to insure the vessel’s actual value or any cost incurred relative to repairing or replacing the vessel. The hull refers to the ship itself and includes the ship’s engine. The hull also refers to the ship’s bunkers or fuel.2 In other words, H&M provides protection of the “shipowner’s investment”.3 P&I covers third party liabilities which are not a part of the H&M cover and as such compliments H&M insurance cover. Additional complimentary features arise out of cargo claims coverage. A shipowner’s liability relative to claims arising out of cargo risks will typically be provided for by virtue of P&I insurance. However, shipowners are not usually covered in regards to claims attacked to failure to deliver, deviations and goods that incur damages before loading under a “clean bill of lading”.4 P&I Clubs are the main providers of P&I insurance and approximately 90% of the world’s vessels carry P&I Clubs.5 H&M typically covers perils at sea including sinking, stranding and bad weather conditions as well as liability for shipowner’s collision relative to other ships or damages at ports. Liability coverage is typically limited to 75% with the remaining 25% typically covered by P&I Clubs.6 The primary complimentary aspect of the P&I insurance coverage relative to H&M insurance coverage is the fact that P&I provides coverage over risks relative to third parties and will typically cover risks that are not provided for under H&M coverage.7 According to Pagonis, “the P&I Clubs provide collective self-insurance to their members (mutuality).”8 To this end, P&I Clubs consist of “a group of shipowners with common interests” who cull their risks together so that they can take out insurance coverage “at cost”.9 In this regard, P&I clubs are characterised as non-profit “mutual organizations, owned by their insureds”.10 Thus P&I Clubs do not own shares that are issued and they are not required to realize profits or to make dividend payments.11 Each year P&I Clubs plan and prepare their respective budgets pursuant to which shares are proportioned among members to provide coverage of the management’s expenses and contemplated claims that will likely arise. Pagonis explains: In theory, the clubs pass back to the shipowners the benefit of a good underwriting year through reduced or returned premiums. In practice, the shipowners are usually asked to pay “back calls” in order to cover expenses and claims that were not foreseen in the budget.12 The primary purpose of P&I Clubs is to provide indemnity insurance as opposed to liability insurance. Even so, shipowners join P&I Clubs primarily to provide insurance in a variety of risks that are not provided for by virtue of H&M insurance policies.13 Shipowners join P&I clubs based on the “principle of mutuality – the joint, shared or reciprocal protection against losses.”14 Since P&I Clubs are by their nature not conventional insurance providers, but rather indemnity and protection organizations, there is some doubt as to whether or not maritime insurance actions can be applied against P&I Clubs. In The Alloborgia, the House of Lords ruled that P&I Clubs can be applied to the Third Parties Act but could only be applied in terms of indemnity relative to risks covered.15 P&I Clubs function under their own regulatory framework which governs the members’ relationships and the relationship between the club and the members and are generally viewed as a core part of the applicable insurance policy. For this reason, direct actions against P&I Clubs are prescribed by reference to specific statutory terms.16 Moreover, direct action against P&I Clubs are subject to the tortfeasor’s “status” as “member of the Club” and the Club’s rules as well as the clauses contained in the insurance policy.17 P&I Clubs will typically attempt to limit the scope and range of their liability relative to their own operations by providing exclusion from liability clauses within the text of contracts. When third parties initiate claims, the insurer will typically fall back on defences available to marine policies. However, as Tomljenovic explains: Since these defences are based on the terms of the insurance contract concluded between the insured and the insurer, it is always very debatable whether and to what degree contractual (escape) clauses affect the third party claim, especially when the primary claim is tort in nature.18 Exclusion from liability relative to the insurer in a contract is constructed around whether or not the applicable statute pertaining to direct actions are compulsory. Otherwise, a “no action clause” contained in the text of a contract for insurance permits the parties to the insurance contract to limit liability to third parties in respect of “direct action against the insurer.”19 Moreover, a claim by a third party relative to direct action against an insurer will be truncated by P&I Club rules that “make it a precondition of any indemnity that the assured shall have first settled the claim or satisfied any judgment itself”.20 P&I Clubs usually provide coverage for legal expenses as well as defence or freight defence and demurrage coverage. Charterers also take out these kinds of coverage. In this regard, the ship is covered with respect to damages or losses (H&M) insurance cover. However, should the ship traverse in a hostile area, H&M coverage will terminate and a war risks insurance cover will necessarily have to be taken out.21 The significance of the complimentary nature of P&I and H&M insurances and the ability of P&I Clubs to accommodate casualties generating substantial liabilities is manifested by the vulnerability of shipowners and charterparties to excessive claims. As Baughen explains, claims can be initiated either “contractually or non-contractually in negligence, bailment, conversion or deceit.”22 P&I Clubs are typically subject to contract for two main reasons. First, the likelihood of several national courts sharing jurisdiction over a single clause can lead to multiple actions against one party. Thus a contract containing a choice of law clause will eliminate the problems implicit in multiple jurisdictions. Secondly, economic loss claims are unrestricted in contracts that have “limited the scope of the action in negligence”.23 Shipowners and charterparties face a number of risks and can incur a variety of claims in a number of jurisdictions. H&M coverage together with P&I coverage under P&I Clubs are entirely important for providing shipowners and charterparties with the means to satisfy legitimate claims and to defend against illegitimate claims. Moreover, from the perspective of individual parties transporting goods via vessels, insurance coverage under P&I insurance policies is important for mitigating against any damages or loss of value or actual loss of the goods transported. H&M together with P&I provide complimentary safeguards for the carriage of goods and people by sea and provides all parties involved with a degree of reassurance that the risks that necessarily accompany the movement of people and goods at sea and the damages suffered at sea, will be covered regardless of the shipowners or the charterparty’s inability to satisfy any resulting claims. Question 1B i. The Fanti and Padre Island In a number of liability insurance policies, particularly the P&I insurance covers, an insured item is the satisfaction by the assured to a third party. This is commonly covered by the inclusion of a “pay to be paid clause” in the insurance contract or the P&I Club manual.24 This rule is based on the presumption that in English law, the property insurer is under a duty to provide compensation to the insured in respect of losses incurred as opposed to prevent the insured accruing a loss.25 The pay to be paid clause or other similar clauses are designed to prevent direct actions against P&I Clubs and typically provides a way by which the insurer may avoid the application of the Third Parties (Rights Against Insurers) Act 1930 (now repealed by the Third Parties (Rights Against Insurers) Act 2010). By virtue of Section 1(3) of the Third Parties (Rights Against Insurers) Act 1930 any insurance contract relative to liability for third parties purports “to avoid the contract or to alter the rights of the parties” or in the event of insolvency, shall render the contract of “no effect”.26 The effect of Section 1(3) of the 1930 Act on such a clause seeking to avoid the contract relative to third parties was considered by the House of Lords in the conjoined cases of the Fanti and the Padre Island.27 In the Fanti’s hearing at first instance, the court ruled that the pay to be paid rule contravened Section 1(3) of the 1930 because it purported to indirectly modify the parties’ rights upon insolvency and as such the clause would not have effect.28 In the Padre Island’s trial at first instance, it was held that the insured was not at liberty to be indemnified by the Club and therefore the third party could not as it would place the third party in a position superior to that of the insured in terms of the transfer by virtue of statute. It was also ruled that the insured had a conditional right for reimbursement once the third party was paid off and that right was not affected by insolvency relative to the insure. As a result the pay to be paid Rule was not in contravention of Section 1(3) of the 1930 Act.29 Thus both the Fanti and the Padre Island resulted in conflicting rulings based on the same legal issue in the context of rules which attempted to circumvent the consequences of Section 1(3) of the 1930 Act. Nevertheless the two cases were conjoined on appeal before the Court of Appeal.30 The Court of Appeal ruled that the third party’s previous payment was not possible to pay and as a result it should not have effect. However, the Court of Appeal ruled that Section 1(3) of the 1930 Act did not render the pay to be paid rule null and void. The rule did not in effect alter the parties’ rights when the insured became insolvent. The winding-up impacted the insured’s ability to pay the third party. Therefore the rights were not impacted except to the extent that the rights were transferred to the third party.31 Upon appeal to the House of Lords, it was held that based upon the ordinary meaning of the pay to be paid Rule, it was a contingency relative to the right of recovery for members of the P&I Club. The House of Lords acknowledge that it could on equitable principles make an order for the insure to pay either the third party or the insured. However, the pay to paid Rule was unambiguous and as a result the equitable principle would not overrule the pay to paid Rule. Moreover, the pay to be paid rule did not propose to render the contract void or to alter the parties’ rights should they become insolvent. The rule does not only arise when an insured is insolvent. It apples prior to and after an order of insolvency is made. While the pay to be paid rule will be harder to discharge after insolvency, it does not affect the legal rights of the parties.32 The House of Lords also ruled that the insured could not have transferred to the third party superior rights under the insurance contract. Therefore, if the insured had not discharged the contingency relative to a right to recover, neither the insured nor the third party may recover following a statutory transfer.33 The House of Lords Ruling was vastly similar to the ruling by the Court of Appeal in that when clauses like the pay to be paid rule do not alter the rights of the parties under the contract of insurance, the pay to be paid rule did not contravene Section 3(1) of the 1930 Act. Ultimately, the 1930 Act was intended to transfer the rights of the insured to third parties with the express purpose of putting the third party in the position that the insured would be in relative to insurance coverage.34 Thus as demonstrated by Fanti and Padre Island if the insured is bound by the pay to be paid rule, so is the third party. ii. Third Party(Right against Insurers)ACT 2010 and the Pay to Paid Rule in Marine Insurance Contracts Section 9(5) of the Third Party (Right against Insurers) Act 2010 impacts the pay to be paid rule in that it provides that when rights are transferred from the insured to a third party it is not necessary for the insured to have discharged any condition precedent relative to liability in respect of third parties.35 However, Section 9(6) of the 2010 Act provides that the exception contained in Section 9(5) only applicable in marine insurance contracts when the insured’s liability is connected to death or personal injury.36 Section 9(6) of the 2010 Act follows from recommendations made by the Law Commission and the Scottish Law Commission Report 2001. The recommendations advocated for reforming the pay to paid rule particularly since P&I Clubs frequently made payments in respect of claims directly to third parties and legislation would be necessary for protecting third parties in the event of death or personal injury cases. In such cases the P&I Club’s practices in which they did not rely on the pay to be paid Rule would not provide adequate third party protection.37 The Commission acknowledge that those who were against reform argued that the pay to be paid Rule was important for the functioning of P&I Clubs and that abrogation of the rule would be detrimental to the existence and operations of P&I Clubs in the UK. Moreover, since the rule was operable on an international level, it would not be of any use to have it abolished in the UK. Ultimately, the Commission recommended the abrogation of the pay to paid defence but did not permit the abrogation to be extended to marine insurance because it would conflict with international practices and regulations. Nevertheless, concerned with the insufficient protection accorded third parties in cases of personal injury and death claims, the Commission recommended that Clubs should not be permitted to rely on the pay to paid rule when claims are initiated by third parties.38 The Commission quoted the Court of Appeal in the Fanti and Padre Island case in which Bingham LJ stated that: The clubs’ obligation to the member was to pay, but to pay only, a member who had suffered actual loss (by payment to the third party). Upon transfer, the club’s obligation would still be to pay, and to pay only, a third party who had suffered actual loss (although not in this instance by payment out.39 It therefore follows that with the implementation of the 2010 Act, marine insurances are required to interpret the pay to be paid rule as satisfied in the event of a personal injury or death claim. Payment in this regard is to be interpreted as having the right to be indemnified for losses that are not necessarily measured in terms of cash. Question 2: The Back to Back Presumption It is generally presumed that where there are two contracts of insurance reflecting the same terms, although they may be governed by different laws, the contracts are to be interpreted consistently and in a back to back manner. If need be, the meaning attributed to the wording in the reinsurance contract will be construed by reference to the meaning inferred by the applicable law to the first insurance contract as opposed to the law applicable to the reinsurance policy.40 In Forsikringsaktieselskapet Vesta v Butcher the House of Lords interpreted and incorporated a warranty appearing in a direct policy under the law of Norway into a reinsurance contract to which English law applied. Under the law of Norway, a breach of a warranty is ineffective if it is not connected to the loss. Under English law, any breach of warranty would have discharged the reinsure of liability. The idea was to prevent a situation in which the reinsurers and not the reinsured would have been able to avoid liability based on the construction of same term.41 As Burling and Lazarus explain: Although this decision appears to deprive the reinsurers of the benefit of the applicable law, it was almost certainly influenced by the consideration that the objective intentions of the parties were to provide back to back coverage and that the fact that different laws were applicable to the two contracts was more or less an oversight.42 Nevertheless, the House of Lords in Wasa International Insurance Co. v Lexington Insurance Co. modified the ruling in Forsikringsaktieselskapet Vesta v Butcher.43 In Wasa International Insurance Co. v Lexington Insurance Co. the House of Lords ruled that the ruling in the Vesta case would only apply to situations in which the two contracts had a choice of law clause at the beginning, and when the applicable law relative to the direct insurance contract is not known when the contract is made, the reinsurers are at liberty to use the law that is applicable to the reinsurance contract.44 On the fact of the Wasa case, Lexington insured Alcoa in respect of property loss and damage for a period from 1July 1977 to 1 July 1980. AGF and Wasa provided reinsurance to Lexington for 36 months commending 1 July 1977. Sometime during the 1990s, Alcoa was the subject of an order to rectify pollution damages sustained at its sites and sought to recover the cost from its insurers. Alcoa therefore initiated proceedings in the US against a number of insurers including Lexington which was settled in 2003.45 After settling with Alcoa, Lexington attempted to receive indemnification from AGF and Wasa pursuant to the reinsurance contract. The parties agreed that the applicable law as English. However, AGF and Wasa argued that they were not liable for indemnity because the pollution damages occurred outside of the period stipulated for in the contract. The Commercial Court Agreed with AGF and Wasa.46 However, on appeal the Court of Appeal reversed the Commercial Court’s ruling and ruled that although the contracts had different applicable laws, the back to back presumption was applicable with the result that they each had the same meaning in the construction of equivalent terms. The term in question was the policy’s period of coverage. Following the decisions in Forsikringsaktieselskapet Vesta and Groupama v Catatumbo47 in which both cases held that specific terms under the direct insurance policy was to be construed pursuant to the law applicable to that contract of insurance and not the law of the reinsurance contract.48 Upon appeal to the House of Lords, the Court of Appeal’s ruling was reversed altogether.49 The House of Lords acknowledged that the back to back presumption was important for a number of reasons, but it was not so overreaching as to substantially modify an important point of the applicable law such as the duration of the period of coverage under the policy of insurance. Referring to the rulings in Forsikringsaktieselskapet Vesta and Groupama v Catatumbo Collins LJ ruled that when the reinsurance policy was contracted it was decidedly: No identifiable system of law applicable to the insurance contract which could have provided a basis for construing the contract of the reinsurance in a manner different from its ordinary meaning in the London insurance market.50 It would obviously be unconscionable to bind the reinsurers to the direct contract if the actual meaning and terms were unidentifiable at the time of entering into the insurance contract. Obviously, at the time the reinsurers would not have known that the policy period of coverage would have had an entirely different meaning and implication than that which they intended it to mean when they agreed to the coverage. Some of the claims in the US were found to have been dated back to 1945 and the English reinsurers had only agreed to coverage for three years commencing in 1977.51 The reinsurers chose the law of England to govern the reinsurance contract with the understanding that they were bound to the terms specified in the contract pursuant to English law. In fact, Brown LJ stated: Under English law nothing could be clearer that a contract providing cover could not be construed as covering in addition damage occurring before (or for that matter after) that three-year period.52 For the most part the House of Lords directed attention to the interpretation of the reinsurance contract as a distinct contract from the direct insurance policy. In taking this approach, the House of Lords stressed that when an insurer attempts to obtain coverage by virtue of a contract of reinsurance, the insure is not only required to illustrate that it is liable pursuant to the contract of insurance, but it must also demonstrate that it is entitled to be indemnified “under the terms of the reinsurance” contract.53In other words, the back to back presumption does not work only in favour of the direct insurance policy. It must also be used for the purpose of interpreting the parties’ intentions and obligations collectively. Moreover, the House of Lords ruled that where there is more than one applicable law, the issue of assumption of risk under two insurance contracts is subject to interpretation.54 The implications flowing from the House of Lords decision in Wasa suggests that unless reinsurance and direct insurance contracts fall to be subject to the same law, there could be complications in terms of obtaining indemnity via a reinsurance contract where the laws relative to interpretation conflict. Obviously, the reinsured deriving a benefit under the applicable law can expect to receive that benefit in terms of fundamental issues of law such as the period for which the policy coverage applies. Whether or not this is fair or not will depend on the circumstances of each case. Clearly in Wasa, it does not appear to be fair to permit the direct insurers to obtain a benefit that was clearly not intended by the reinsured. The reinsured obviously only intended to provide indemnity reinsurance coverage for a specific period: 3 years beginning in 1977. The actual claim submitted by the direct insurers included periods of coverage that went far beyond and three year period contemplated by the reinsured upon agreeing to provide reinsurance. The House of Lords specifically stated however that Wasa was “an unusual” case “where the express and entirely usual terms of the reinsurance are clear.”55 In other words there was no ambiguity relative to the intentions of the parties. There was no need to interpret the term of coverage as anything other than what it clearly stated: three years coverage from 1 July 1977. Even so, the House of Lords decision in Wasa was decidedly on restricted grounds. For instance, the House of Lords did not go into the issue of whether or not the reinsurers were liable for the actual liability incurred by the insurer as opposed to primary risks. Moreover there was no reference to market practices. It can therefore be assumed that courts may not be required to take into account a number of issues relative to back to back presumptions in terms of reinsurance policies. The US judgment effectively meant that Lexington was liable for pollution damages clean-up during the three year coverage regardless of whether or not the damages had began before the policy was implemented. Thus the House of Lords was left to determine whether or not coverage by virtue of a proportional facultative reinsurance contract must mirror the coverage under the direct insurance contract.56 The House of Lords took the position that the right place to begin in terms of examining the remit of the reinsurance policy was by reference to the proportional facultative reinsurance which is usually back to back with the direct insurance policy. In other words, the nature of the direct insurance is usually mirrored by the reinsurance policy. The reinsure assumes a proportion of the premium and accepts a risk that mirrors the direct insurers’ losses. From an economic perspective, the intention of the parties relative to proportional facultative reinsurance is so that the insurer reinsures a proportion of the risk and as such it therefore follows that the terms and conditions of the reinsurance ought to be interpreted so that they correspond with the direct insurance.57 However, according to the House of Lords, the analysis does not end there. In giving effect to the back to back presumption in English law in that the terms and conditions of the reinsurance contract should correspond with those of the direct insurance, the question for consideration was what was reasonably contemplated by the parties at the time of entering into the contract of insurance in terms of what was the applicable law. The fact that the US court ruled that the applicable law was US law had to be looked in light of the fact that the US court was dealing with a number of claims and issues that were incidental to the Lexington contract.58 When the direct insurance policy was taken out, there was no system of law or applicable law contemplated by the parties and none was identified.59 This was clearly different from the circumstances in both Forsikringsaktieselskapet Vesta and Groupama Navigation cases in which the applicable laws were Norway and Venezuela respectively. When both the insurance and reinsurance contracts were entered into, the applicable law of the direct insurance contracts were immediately identifiable. Thus, the reinsurers were in a position to interpret the terms and conditions of their respective reinsurance policy contracts and identify their obligations accordingly. With the reinsurance contract governed by the law of England, the reinsurance contract did not have the same meaning that the direct insurance contract had in terms of the coverage period. Under English law, the reinsurance contract only covered the period of damages and losses sustained during the period of coverage and not before or after that period. According to Lord Collins, given this understanding, holding that the reinsurers could be liable now for periods that exceed the reinsurance policy’s terms is “wholly uncommercial and outside any reasonable commercial expectation of either party.”60 In this regard it would appear that Lexington was held liable for a period that it too had not contemplated and thus was compelled to settle the matter for coverage that far exceeded its commitment to the insured. However, that does not mean that the insured can transfer that excessive liability to the reinsurers who were at liberty to deny that much liability or that that much liability would have arisen under the terms of the reinsurance contract that they bound themselves to.61 The House of Lords emphasized that the extent of the liability accepted by the reinsured pursuant to the direct insurance contract was unquestionably for a three year period which was specifically dated and formed a part of both the direct insurance contract and the reinsurance contract. In other words, according to the House of Lords in Wasa, the contract of insurance provided for a clear period of time which was in fact mirrored in the reinsurance contract. The fact that a foreign court applied a foreign law to the main insurance policy which effectively altered the period for which the main insurance policy would cover, could not have the effect of altering the terms and conditions of the reinsurance contract. The House of Lords was convinced that Lexington had not negotiated or accepted coverage for any period beyond 1977 and 1980.62 Had Lexington contemplated coverage to go beyond this time period, they would not have implemented a policy covering this specific period. It makes no sense to issue a policy for a specific period and to expect that the applicable period would be something else. In this regard, the House of Lord’s interpretation of the back to back presumption did not alter the rule. Arguably, the House of Lords applied the rule so that the terms and conditions of the direct policy which were mirrored in the reinsurance policy were consistent with one another. The fact that the terms and conditions of the main policy were subsequently altered by a foreign court by the application of a foreign law could not negate the fact that the reinsurance policy contract did in fact mirror the direct insurance policy contract. It can be argued that what the US court did was to vary the terms of the direct contract of insurance. Since Lexington was not party to this variation, and clearly did not agree to its new terms and conditions, Lexington therefore cannot be bound by it. Mance LJ made an important observation and suggestion. Mance LJ suggested that in order to circumvent the kind of outcome experienced by the parties in the Wasa case, it may be wise for insurance and reinsurance contracts engage in these contracts with a view to sharing the same applicable law. At the very least, an applicable law should be identified prior to the implementation of a reinsurance contract so the parties to the contract can be informed in advance how to interpret the terms and conditions of the contract and to be in a position to make an informed decision relative to whether or not to take on the reinsurance contract.63 In such a case it would be virtually impossible to rebut the back to back presumption. The Wasa decision obviously favours the reinsured in terms of the extent to which it will allow the back to back presumption to be altered after the reinsured has selected a contract of insurance on a reasonable presumption that they are bound to indemnify the insurance policy for a specific time period. At the very least, the House of Lords’ ruling in the Wasa informs reinsurers and insurers that they not only select the applicable law from the outset, but that they ensure that the terms and conditions of the policy are identifiable and predictable. Ultimately, the parties are bound by the contract at the time of entering the agreement. The parties will not be bound by a subsequent alteration of the terms and conditions of the contract of insurance. Bibliography Baughen, S. (2009). Shipping Law. Abingdon, Oxon: Routledge-Cavendish. Burling, J. and Lazarus, K. (2011). Research Handbook on International Insurance Law and Regulation. Cheltenham, Glos.: Edward Elgar Publishing Limited. 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Ronnerberg, N.J., Jr. (Winter 1990/1991). “An Introduction to the Protection & Indemnity Clubs and the Marine Insurance They Provide.” University of San Francisco Maritime Law Journal, Vol. 3: 1-20. Socony Mobil Oil Co. Inc. and Others v West of England Ship Owners Manual Insurance Association Ltd. (The Padre Island) (No. 2) [1987] 2 Lloyd’s Rep. 529. The Alloborgia [1979] 1 Lloyd’s LR 190. Third Parties (Rights Against Insurers) Act 1930. Third Parties (Rights Against Insurers) Act 2010. Tomljenovic, V. (2006). “Direct Actions and Conflict of Laws in Maritime Disputes.” In Sarcevic, P. (Ed). Universalism, Tradition and the Individual. Munchen: European Law Publishers GmbH, 135-170. Wasa International Insurance Co. v Lexington Insurance Co.[2009] UKHL40. Read More