Don’t sign away your rights!


Mark Brattman is a Director and Legal Advisor of ITIC, one of the leading mutual insurers of marine surveyors.


Mark is a solicitor and joined ITIC in 2004. He qualified at Shaw and Croft (now part of Gately LLP) in 2000 and then spent three years at Beaumont and Son (now part of Clyde & Co LLP).


ITIC has assisted the marine surveyors it insures by renegotiating onerous indemnities they are asked to sign before joining a vessel.


When a surveyor is appointed to attend a vessel, whether by a P&I Club on behalf of owners or by charterers, cargo interests or insurers, they are invariably asked to sign a waiver and indemnity by the master of the vessel before they are given approval to board.


The waiver and indemnity provided by the master of the vessel will no doubt be detrimental to the surveyor.


It will usually state that


the surveyor will waive all their rights to make a claim against the owner and the vessel should the surveyor suffer any personal injury or should they suffer loss or damage to their equipment, even if these events are caused by the owner. They will conversely state that that the surveyor must indemnify the owner if any of the vessel’s crew is killed or suffers from a personal injury or if there is any damage to the vessel itself or its equipment. Occasionally the indemnity will even extend as far as to claims made against the owner by third parties.


BY MARK BRATTMAN


These waivers and indemnities are usually presented to the surveyor as they are climbing aboard the vessel, often after a long journey has been made. Therefore, they do not have any realistic opportunity to read the document, let alone negotiate a better wording. Often, it is simply signed without it even being read as the surveyor feels they have no choice but to sign if they want access to the vessel to perform their job.


ITIC has seen a number of such wordings over the years and they are always unfavourable to the surveyor. A good example of when a particularly one sided waiver and indemnity was presented to surveyors was following a fire on a containership.


ITIC received calls


from numerous surveyor members who were concerned about what they were being asked to sign. The indemnity stated that the surveyor would hold harmless and indemnify the owner “in respect of all claims against them arising from any injury, death, loss or damage for whatever reason, including the owner’s wrongful acts or omission, breach of contract or breach of any express or implied warranties suffered by the surveyor or any person arsing as a result, direct or indirect, of the survey or the attendance of the vessel”.


It is easy


to see why a surveyor would be wary, as their potential liability to the owner is extremely wide.


On behalf of ITIC’s surveying membership, we made contact with the Admiralty Solicitors Group (ASG) who already had their own surveyor’s indemnity wording – the ASG 10. This was a better document than most surveyors were being handed directly by owners, but both ITIC and the ASG felt that it could be further improved as far as the surveyor was concerned. As a result, ITIC and the ASG agreed a new wording which is currently referred to as the “ASG/ITIC 10”.


The premise behind the new wording is that the owner will have the usual responsibilities of an occupier to visitors, unless the vessel is considered “unsafe to board”.


If the vessel is “unsafe


to board” the surveyor will acknowledge that the master cannot guarantee the safety of visitors, and the owner’s liability will be restricted to where the loss is specifically caused by or contributed to by the causative negligence, recklessness or wilful misconduct of the owner. Whether or not the vessel is “unsafe to board” is defined in the ASG/ITIC 10 notes that accompany the form. Whether the vessel is “unsafe to board” can be discussed after the event, if it is not agreed at the time. The new “ASG/ITIC 10” allows the surveyor to avoid having to negotiate on the gang way of the vessel.


The Report • June 2017 • Issue 80 | 45


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