INSIGHTS
Under no circumstances should any
communication be sent that admits or infers an acceptance of liability. To do so may severely jeopardise a client’s ability to recover under their insurance policy.
• Instructing the crew to refuse permission for anyone to board the vessel without proper clearance. Ideally, that permission line should be managed via the shore-based management/ownership. A collision of this nature is likely to attract interest from many quarters. There may be attempts by third parties to access the vessel in order to gather evidence in support of their own claims. A crew member will need to be placed on watch to monitor who
Q3 2017
comes and goes. Ideally, any authorised third party should be accompanied by an appropriate crew member at all times and given access only to parts of the ship that are approved in advance by lawyers and management. They should not be allowed to talk to crew members or seek to arrange ad-hoc interviews while aboard.
Of course, some of these proactive measures can be implemented by the client in advance of instruction of a lawyer.
GUARANTEES/LETTERS OF UNDERTAKING
On the basis of our example, it is clear that, once the investigations by the local authorities have been concluded, our client will be in a position to remove their vessel for repair and continue with the voyage much earlier than the opponent containership. One of our primary considerations will be to ensure that the assured has adequate security from the containership interests to cover their losses arising from the collision, regardless of how the apportionment of liability will ultimately play out. It would be sensible to try and obtain the security before the opponent vessel departs for repairs and/ or continuation of voyage. This is simply because, if the opponent will not offer security, one of the options available to the assured would be to “arrest” an asset belonging to them. The easiest asset to arrest at that moment in time is the other vessel, and the simple knowledge by each side that this could happen usually provides enough encouragement to find a means to provide the appropriate security. As a brief note of caution, an arrest should be a last resort strategy. There are consequences for initiating an arrest that is ultimately proven to be “wrongful”. Again, this is a complex legal area where the lawyer should advise further.
In our scenario, the method by which opponents provide security will depend on where the containership owners have insured their vessel for collision liabilities. If it is placed with a hull insurer then our client is likely to see an offer of security on the basis of a letter from the opponent’s hull insurers confirming they will provide coverage under their collision liability insurance for the assured’s losses, subject to proving their claim in terms of quantum and liability. If the hull insurer is unable to offer a letter directly, they may utilise the services of a surety company to provide a collision security on their behalf.
If the containership’s collision liabilities are placed with a protection and indemnity (P&I) club, then the assured should expect the security will be provided in the form of a club “letter of undertaking”, which will do much the same thing as a guarantee from a hull insurer.
It is not necessary to provide the owners of the containership with a precise value of our client’s claim. Indeed, at such an early stage it is unlikely that either side will have a clear idea of their total global recoverable losses.
4
The Report • September 2017 • Issue 81 | 61
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84
