zass strategic claims handling.ppt [kompatibilit tsmodus] strategic claims... · 2018-08-07 ·...

Strategic Claims HandlingBeyond Pure Legal Aspects- A Selection of 8 Strategies -

Strategic Claims Handling is…

© 2011 ZASS International GmbH.

Capt. Peter IrmingerZASS International GmbH

9-11 May 2011The THIRD INTERNATIONAL CONFERENCE ON

MARINE INSURANCE & TRANSPORTATIONRadison Blu Tala Bay Aqaba / Jordan

Strategic Claims Handling is…30% legal expertise and…70% strategy in combination with

fantasy and negotiation skills

The "Jolly Amaranto" got in distress 50 miles off Egypt in a storm on Dec 11, 2010. It had on board 21 crew, 16 of them Italians.

The ship has a list of 30-40 degrees. The ship came from Genova and was bound for Alexandria. 38

JOLLY AMARANTO


from Genova and was bound for Alexandria. 38 containers contain dangerous goods.

Vessel reported disabled in 35 15 N 27 11.5 E Dec 11, heavy roll. Master requested evacuation, expecting rescuers.

Jolly Amaranto IMO 7616365, dwt 10677, built 1977, flag Italy.

JOLLY AMARANTO


Claims in contract

Cargo claimsCharter disputesCrew claimsPassenger and luggage

Nature of claims

Claims in tort

Damages to the environment

Pollution claimsCollisions


Passenger and luggage claims

Bunker disputesShip yard and repair

claimsAgency disputesInsurance claims /

disputesetc.

CollisionsDamages to fixed and

floating objects etc.

Claims in contractCargo claims againstIgnazio Messina as B/L

carrier and ship ownerEmbassy Freight Services

as NVOC carrierPantainer Ltd. As NVOC

Nature of claimsJOLLY AMARANTO

Claims in tortPotential pollution claims

and other financial losses suffered by the Alexandria Port Authorities


Pantainer Ltd. As NVOC carrier

Byblos Transport Shipping as NVOC carrier

Uti Italy SRL ans NVOC carrier

Salvage claims against ship owner and cargo owners

1. You must be right

2. You must get right

The trinity of Justicia


2. You must get right

3. You must enforce right

First Actions


Appointment of surveyors / experts

Who?- Not the cheapest but the best!

Appoint the leader of the pack!

Strategy 1 – to properly collect evidence


How?- Give clear instructions!

not: “we have a problem, please do the needful”

Ask for a preliminary report!

Check the final report before disclosure to others!

Enforcement of adequate security

Why?- Fanti & Padre Island (House of Lords decisions)

When?

Strategy 2 – to safeguard a later enforcement


When? - medium to large claims > USD 50.000

How? - voluntarily: Club letter of undertaking = OK- by legal measures: Bank guarantee or cash deposit

Ship arrest or freezing of assets (bank/freight accounts, insurance proceeds etc.)

Enforcement of adequate security

Fleet Check: 13 TRUE sister shipsExtracts from the Ship Registry

Strategy 2 – JOLLY AMARANTO


H&M Cover: SIAT Genova

Extracts from the Companies Registry for Ignazio Messina and all NVOC’s

Owner’s P&I Cover: UK P&I Club

Forum selectionWhy?- Limitation of liability (package / kilo / global)- Defences of the carrier- Claim notification / Time barHow?

Strategy 3 – to safeguard the recognition of an award or court decision


How?- Contract / Convention / Law / Arrest / Agreement etc.Recognition? - UN Convention on the Recognition and Enforcement

of Foreign Arbitral Awards (New York, 10 June 1958)- Convention on Jurisdiction and the Enforcement of

Judgments in Civil and Commercial Matters (Lugano, 16 September 1988)

- Bi- or multi-lateral agreements / conventions (EU)

Forum selection

Ignazio Messina Bs/L: Italian CourtsEmbassy Freight Services Bs/L: Italian CourtsByblos Transport Shipping Bs/L: Lebanese CourtsPantainer Ltd.: Hong Kong Courts



Pantainer Ltd.: Hong Kong CourtsUti Italy SRL: Italian Courts

All Bs/L: Hamburg Rules: Lebanese Courts

Club LOU: Competent CourtsLimitation Proceedings: Italian CourtsSalvage LOF: London Arbitration

Duties of the assured

- Premium paid and occurrence covered?

- Notify changes of risks

Strategy 4 – to safeguard your insurance cover


- Notify changes of risks

- Notify claims and provide information

- Minimise losses

- Preserve recovery rights

CTL ?

THE BUNGA MELATI DUA – Court of Appeal

"piratical seizure in the circumstances of this case



"piratical seizure in the circumstances of this case where there was not only a chance, but a strong likelihood, that payment of a comparatively small sum, relative to the value of the vessel and cargo, would secure recovery of both, was not an actual total loss. It was not an irretrievable deprivation of property. It was a typical "wait and see" situation"


Another problem that arose in the JOLLY AMARANTO case was the provision of the salvage guarantee.

The salvors only accepted a


The salvors only accepted a Lloyd’s guarantee or a cash deposit, hence, in order to avoid having to make cash deposits we have secured an open cover with Lloyds to offer our clients the requested Lloyd’s guarantees.

Strategy 5 - Seaworthiness

Tetley‘s definition:Seaworthiness may be defined as the state of a

vessel in such a condition, with such equipment, and manned by such a master and crew, that normally the cargo will be loaded, carried, cared for and discharged properly and safely on the


for and discharged properly and safely on the contemplated voyage.

Australian High Court „The Bunga Seroja“:"Article III, r. 1 therefore effectively imposes an

obligation on the carrier to carry the goods in a ship which is adequate in terms of her structure, manning, equipment and facilities having regard to the voyage and the nature of the cargo."

Seaworthiness is not an absolute obligation but a relative one in respect to:

the size and kind of the shipthe intended voyage



the intended voyagethe intended cargoetc.


Due diligence to make the vessel seaworthy

The English Court of Appeal has held that the test of due diligence is whether the carrier, its servants, agents and independent contractors have


agents and independent contractors have exercised “all reasonable skill and care to ensure that the vessel was seaworthy at the commencement of its voyage, namely, reasonably fit to encounter the ordinary incidents of the voyage....”

Strategy 6 - Legal impacts of the ISM Code

Due diligence and seaworthiness

The scope of the ISM Code is such that it inevitably must have an effect on what constitutes seaworthiness and due diligence.

The Code requires each ship owner to implement a Safety Management System both on ship and ashore.


Management System both on ship and ashore. Safety matters cover items such as properly trained crew, good

communication on board and safe practices in ship operation.

It follows that if the System is deficient or these matters are not complied with, the ship owner is open to a strong accusation that he has not exercised due diligence to ensure the ship is seaworthy which may result in him being unable to rely on the known immunities.

Strategy 6 - Legal impacts of the ISM Code

Disclosure procedureMatters litigated under English law and jurisdiction

are subject to a strict obligation that both sides disclose all relevant documents in their possession, good or ill. Clearly the Manual will be


possession, good or ill. Clearly the Manual will be such a relevant document.

Strategy 7 – to avoid surprising lawyers’ bills

Strictly control your lawyers!

Give them single tasks for agreed budgets

Ask for monthly invoices


Ask for monthly invoices

Always remind them to endeavour an amicable solution

Best Case – Worst Case

When all arguments have been exchanged and start being repeated without any progress, then it is time...

Strategy 8 – let’s talk about money


... to talk about money

Best Case – Worst Case for the Claimant

Best Case for ClaimantA) Agreed probability 70/30 in favour of claimantB1) 1.000.000 x 70% = 700.000B2) Claim amount + 1.000.000

Own legal costs (1. Inst.) - 100.000Own legal costs (2. Inst.) - 100.000Recovered Costs ~2/3 + 120.000Total 920.000

C1) 920.000 x 70% = 644.000

Worst Case for ClaimantA) Agreed probability 70/30 in favour of claimant

B) Claim amount - 1.000.000Own legal costs (1. Inst.) - 100.000Own legal costs (2. Inst.) - 100.000Recovery claim ~2/3 - 120.000Total - 1.320.000

© 2011 ZASS International GmbH.27

C1) 920.000 x 70% = 644.000

C2)

+920.000 -1.320.000+248.000

30% 70%

C3) 920.000 x 70% = 644.000 -1.320.000 x 30% = -396.000

„split the difference“

+124.000

Best Case – Worst Casefor the Defendant

Best Case for DefendantA) Agreed probability 70/30 in favour of

claimantB) Claim amount (1.000.000)

Own legal costs (1. Inst.) - 100.000Own legal costs (2. Inst.) - 100.000Recovered Costs ~2/3 + 120.000Total -80.000

Worst Case for DefendantA) Agreed probability 70/30 in favour of

claimantB) Claim amount - 1.000.000

Own legal costs (1. Inst.) - 100.000Own legal costs (2. Inst.) - 100.000Recovery claim ~2/3 - 120.000Total - 1.320.000

C1)

© 2011 ZASS International GmbH.28

C1)

-80.000 -1.320.000-948.000

30%70%

C2) -80.000 x 30% = -24.000 -1.320.000 x 70% = -924.000

„split the difference“

-474.000

D1) Claimant‘s Case 248.000 vs. Defendant‘s Case -948.000 => 496.000D2) Claimant‘s Case 124.000 vs. Defendant‘s Case -474.000 => 299.000

Thank you very much for your kind attention!


Capt. Peter IrmingerZASS International GmbH

9-11 May 2011The THIRD INTERNATIONAL CONFERENCE ON

MARINE INSURANCE & TRANSPORTATIONRadison Blu Tala Bay Aqaba / Jordan

zass strategic claims handling.ppt [kompatibilit tsmodus] strategic claims... · 2018-08-07 ·...

Documents