Судоводы - 9 семестр / Видищева Т.В., Монастырская О.И. - English in Maritime Business and Law (2014)

General average bonds and deposits

The average adjuster will, on his appointment, make an estimate of the loss or damage and the rate o f contribution required from each party to the common maritime adventure (e.g. 10% of the total arrived value of their property).

Each owner of cargo saved by the general average act must then sign a general average bond; in return for delivery to them or to their order of the goods noted in the bond, they agree to pay the proper proportion of any general average charges which may later be ascertained to be due from the goods. Receivers agree also to furnish particulars of the value of the goods and make a general average deposit of an amount certified by the adjuster to be due.

In return for the general average bond and deposit, the cargo is delivered to the receiver or to their order.

Cargo should never be delivered after general average act until a general average bond has been signed and the required deposit has been collected. As evidence o f their deposits, receivers are issued with a general average deposit receipt; these must never be issued in duplicate.

Abandonment

An owner of a damaged and salvaged ship will not usually spend more on repairs than the value of the ship after repair. (The ship may qualify as a constructive total loss). The owner is not obliged to claim a CTL; he may choose to claim a 100 % partial loss, make repairs and retain the ship. If he wishes to claim a CTL, the owner must abandon the property to the insurer.

After a valid abandonment, the insurer is entitled to take over the interest of the assured in whatever remains of the insured property, including all proprietary rights in it, e.g.

- the right any freight in the course of being earned when the casualty occurred;

-the right to take over the ship;

-the right to dispose o f the ship as he thinks fit and retain all the proceeds (even if more than the claim paid).

When a ship is badly damaged and the owner fears a CTL the owner gives notice o f abandonment to the underwriter.

Tenders are taken from salvers and repairers. It is ascertained whether expenditure will exceed the repaired value. Items taken into account in the calculation include estimated repair costs; the cost of future salvage operations; any general average contributions to which the ship would be liable if she were repaired. If the estimated total outlays exceed

repaired value, a CTL is shown and the underwriter will be liable fo r a total loss. The insurer pays the claim and takes over proprietary rights in the vessel if she is eventually recovered.1

1.When ca \ the York-Antwerp rules be applied?

2.What are theforms o f GA security?

3.What is the difference between GA bond and GA quarantee?

4.Who and in what situation gets a GA deposit receipt?

5.When must the owner abandon the property to the insurer?

6.What rights and obligations does the insurer obtain after abandonement?

7.Read the GA bond and GA guarantee in the annex. Compare them and explain different aspects o f their use.

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Exercise 5. State which of thefollowing terms are defined below

Actual total loss	cargo outturn report		Particular average
Insurance broker		General Average		maritime perils
Constructive total loss			underwriter	policy

1.A right claimed by the assured for the property lost, where recovery is unlikely:

2.One who agrees to compensate another person for loss from an insured peril in

consideration of payment of a premium:_____________ .

3.Kind of risk where the property has been completely destroyed, a missing ship for example:__________ .

4.A contract of insurance:_____________ .

5.A hazard or risk at sea:______________ .

6.An accidental loss to the ship or cargo or freight: ______________.

7. A voluntary sacrifice or extraordinary expenses for the common safety o f a maritime adventure:___________.

8.Report of the quantity of cargo discharged from a ship:___________ .

9.An intermediary who negotiates insurance contracts with the underwriters on behalf of the shipowner, i.e. the assured:_________ .

Exercise 6. Here is the simplified example of a GeneralAverage adjustment. Analyze the situation

-Assume that a vessel on a loaded voyage accidentally ran aground, was salvaged on a

Lloyd’s Open Form salvage agreement, and was towed to a port o f refuge for repairs. Cargo was discharged and stored ashore to allow drydocking, bottom survey and repairs. The ship’s crew was accommodated in a hotel during the drydocking.

- The bottom was found to be damaged by the grounding, while the propeller and tailshaft were found to have been damaged during the refloating operation.

- On completion o f repairs the vessel was undocked, reloaded her cargo and continued on her voyage.

-The salvors obtained security from the ship and cargo interests before the vessel left the port o f refuge, the salvage award being set some time later by the Lloyd’s Arbitration hearing.

-The shipowners paid the costs of entering the port, discharging and reloading cargo, the costs o f wages and maintenance o f the crew, fuel, stores, etc. whilst making for and staying at the port o f refuge.

(tailshaft - гребной вал, дейдвудньш вал)

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The adjustm ent o f general average was prepared as set out below:

		General Average
		Per York-Antwerp Rules
		u s $	US$
Salvage awarded against ship $ 1,850,000 & cargo $ 1,295,000		3.145.000
Allow per Rule YI		3,145,000
Port charges putting into and leaving port of refuge		165.000
Allow per Rule {(a)
Cost of repairs:		165,000
		185.000
Accidental bottom damage repairs (not allowed as GA)
Propeller, etc.repairs		65,000
Allow per Rule XYIII		65,000
Cost of drydocking		100.000
Allow 50%		50,000
Cost of discharging, storage and reloading of cargo		145.000
Allow per Rule X(b) and (c)		145,000
Wages and maintenance of crew, fuel and stores, etc		50,000
Allow per Rule XI		50,000
Interest at 7% per annum and 2% commission allowed on GA
Disbursements per Rules XX and XXI, say		510,000
		4,130,000
Ship’s contributory value per Rule XVII
Sound market value:	38,000,000
Deduct: Damage ($ 185.000 + $65.000+$ 100.0001	350.000
	37,650,000
Add: Made good ($65,000+$50,000)	110.000
Cargo’s contributory value per Rule XVII		37,760,000	3,239,485
Sound CIF market value at destination:	11,000,000
Deduct: Damage (found on arrival at destination)	620.000	10.380.000	890.515
		48.140.000	4.130.000

Ship and cargo both contribute to the general average equal proportions (in this case approx. 8.6%) of their respective contributory values. The ship’s proportion is $3,239,485 while the cargo’s proportion is $890,515.

Exercise 7. Translate into English

1. При общей аварии необходимо до выдачи груза в порту назначения получить от всех грузополучателей аварийные подписки, содержащие их обязательства, объявить стоимость груза и уплатить долю груза по диспаше.

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2. Если грузополучатель отказывается выдать аварийную подписку, капитан должен использовать залоговое право и не выдавать груз до получения аварийной подписки.

3. Если нет уверенности в платежеспособности грузополучателя, следует получить аварийную подписку с гарантийной надписью банка или страхового общества. Чаще всего используется гарантийная надпись страховщика груза. Если Вы сомневаетесь в солидности страховой компании, гарантийная надпись или гарантийное письмо должны быть выданы банком.

UNIT 25

MARINE CLAIMS.

HAGUE-VISBY RULES. HAMBURG RULES

Vocabulary

•Voucher - оправдательный документ

•Endorsement - подтверждение

•Class surveyor - инспектор классификационного общества

•Disbursement - расходы судовладельца во время пребывания судна в порту

•Agency fee - агентское вознаграждение

•Casualty - происшествие

•То lodge a claim - подать иск

•Тоforego defences - воздерживаться (отказываться) от защиты

•Concurrently - одновременно

• То pursue a claim - предъявлять иск

• То prejudice his right - наносить ущерб

• То disclaim liability - отрицать ответственность

• То uphold (identity) - подтвердить, идентифицировать

• То be in one s custody - быть под контролем, опекой, охраной

•Burden ofproof- бремя (обязанность) доказывания

•То evidence (a contract) - служить доказательством, доказывать

P a rti

Exercise 1. Read the text and answer the questions

Hull claims

Following any case of hull or machinery damage, e.g. due to collision or grounding, the shipowner/ manager’s insurance department will normally immediately inform, via the broker, the lead hull and machinery insurer. If abroad, Lloyd’s agent will normally be notified. Underwriters or their agent, e. g. Lloyd’s agent, will instruct a surveyor to ascertain the nature, cause and extent of damage. In major casualty cases, the surveyor appointed is likely to be a Salvage Association surveyor.

In the event o f a claim on a Lloyd’s policy the client must contact the broker concerned to initiate the claims process. The broker will inform the leading underwriter at Lloyd’s (who originally set the terms and conditions of the risk) and Lloyd’s Claims Office, which acts on behalf of following Lloyd’s underwriters. Once the validity of the claim has been checked and payment agreed, Lloyd’s central accounting system will ensure that the claim’s paid directly to the broker’s account and the accounts o f the underwriting syndicates are duly debited.

Documents and information requiredfrom the ship by the Claims Handler

In addition to copies o f the relevant insurance policies (which will be supplied by the owners), the documents and information listed below may be required to accompany a claim lodged by owners against underwriters. If an adjustment is prepared, the average adjuster will extract the required information from the documents and incorporate it in the

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adjustment, but underwriters are in any case entitled to see the original documents and vouchers if they wish.

Certain items forwarded will require the endorsement of the underwriters and surveyor as being fair and reasonable. The endorsement may be obtained either by the owner’s superintendent at the time of survey or repair, or later through correspondence between the average adjuster and the surveyor.

	General documents and information required include:
-	deck and engine room lo g b o o k s covering the casualty and the repair period;
-	master’s and/or Chief engineer’s detailed r e p o r t;
-	relevant le tte r s o f p r o te st;

-protests and extended protests;

-underwriters’ surveyor’s r e p o r t;

-class surveyor’s r e p o r t;

-owners’ superintendent’s r e p o r t;

- r e c e ip te d a c c o u n ts for repairs and/or any spare parts supplied by owners, in connection with repairs, endorsed by underwriter’s surveyor as being fair and reasonable

-a c c o u n ts covering any drydocking and general expenses relating to the repairs,

endorsed as above;

-a c c o u n ts for all incidental disbursements at the port of repair, e.g. for port charges,

watchmen, communication expenses, agency fees, etc.

- details of fuel and engine room stores consumed during the repair period (i.e. from the time of deviation to the port of refuge), together with the cost of replacement;

-	a c c o u n ts for owners’ repairs effected concurrently with damage repairs;
-	copies of fa x e s a n d te le x e s sent and details of long-distance calls made in

connection with the casualty, together with their costs;

-a n y a c c o u n ts rendered by surveyors, etc., with dates of payment where made.

Cargo claims

Most cargo claims arise as a result of alleged breaches by the carrier of contractual obligations properly to cany and care for the cargo while in his custody.

These contractual obligations are usually incurred under a contract of carriage with the shipper of the goods, usually a bill of lading. The B/L is governed by the law of a particular country, which will have enacted legislation governing the carriage of goods by sea which is then incorporated in the B/L.

W h e r e c a r g o lo ss o r d a m a g e is d is c o v e r e d	(u s u a lly b y th e r e c e iv e r o r c o n s ig n e e a t
th e d is c h a r g e p o r t	o f d e s tin a tio n )

A Delivery Note or Consignment Note will be claused with a note of the loss or damage. The cargo owner will immediately inform his insurer; if the loss or damage is found outside the UK, this is done through the local Lloyd’s Agent in the case of a Lloyd’s policy. Where the goods were sold “CEF” the relevant Lloyd’s Agent is noted on Certificate of Insurance, e.g. “Lloyd’s Agent at Hong Kong”, Hong Kong being the destination in this case.

If the loss or damage value is likely to exceed about $250, underwriters will normally ask for a Survey Report. This is arranged by Lloyd’s Agent, who can appoint surveyors and pay small claims locally.

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After the claim is quantified and documented, the underwriter settles the claim through Lloyd’s Agent. The underwriter then decides whether or not claim is worth pursuing against the carrier. If he decides to pursue the claim, he immediately makes a written claim on the carrier; failure to claim may prejudice his right o f recovery. The claim (including the surveyor’s fee) is settled by the carrier in the currency stated in the policy or in the Certificate of Insurance. The carrier, if a P&I club member, then claims on his club policy.

1.	Who is involved in the claims procedure? Name the parties.
2.	What are interrelations between the parties in the event o f the claim?
3.	Can an underwriter askfo r original documents? Who can endorse them?

4.What’s Lloyd’s strategy in casualty cases?

4.What s the role o f average adjuster?

5.What documents are necessary from the ship?

6.Who must complete and endorse the documents?

Exercise 2.Characterize different types of documents used in the claims procedure

Criteria

Logbook

Report

Account

Other documents

1.Who completes the documents?

2.What items are covered in the document?

Exercise 3. Here is a list ofparticipants in the claim procedure Surveyor; Superintendent, Underwriter; Agent, Broker, Watchman.

Match the definition and the term

Definition

Name of a participant

1.Someone who makes insurance contracts

2.Someone whose job is to examine the condition, to measure or to record the details of something

3.A person or a company that represents another person or company

4.Someone whose job is to guard the place

5.Someone who is officially in charge of a place, job, activity

6.Someone who buys and sells things in companies, arranges sales or business arrangements for other people

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Exercise 4. Translate into your native language. Use maritime dictionary

Evidence of cargo care

If cargo was not discharged in “apparent good order and condition” and there was a claim against the company, the following evidence might be useful in resisting the claim: bilge, ballast and bunker sounding and pumping records; cargo ventilation, humidity and temperature records; records of unusual weather conditions, routeing details, warnings and weather reports; records of hatch, access, hold and watertight checks; records of fire and safety equipment checks, including log entries and other records of training and safety exercises; records of cargo securing and lashing rounds and checks. Depending what the commodity was: records of cargo temperatures (heating or cooling) where appropriate; records of inert gas and venting operations; records of reefer defrosting and temperature control.

Part 2

Exercise 5. Read the text and answer the questions

THE HAGUE-VISBYRULES

define the carrier’s liabilities and rights with regard to the cargo carried in the vessel.

	Liabilities o f a CARRIER		The rights and defences o f a CARRIER
1. To make the ship properly man, equip		1.	T h e	car rier	is	n o t	lia b le	fo r	loss	o r
	and supply;		d am age to the			goods unless an action is
2.	To make the cargo holds, refrigerated		brought within 1 year from the date of
	spaces and any other parts of the ship		delivery of the goods;
	where cargo is intended to be carried fit	2.	T h e	car rier	is	n ot	liab le	fo r	loss	o r
	and safe for its carriage and		d am age arising			from the u n se a w o rth in e ss
	preservation;		of the vessel unless it was caused by the
3.	On demand of the shipper, to issue a		want of due .diligence on the part of the
	B/L describing the condition of the		carrier to make the shipper seaworthy and
	cargo, the number of pieces or packages		fit for the carriage of the cargo;
	or the quantity or weight, as stated by	3.	T he	ca rrier	is	n ot	liab le	fo r	loss	o r
	the shipper, and the leading marks on		d am age arising from neglect of the master
	the packages to assist in identifying the		and crew in the navigation or management
	goods;		of the ship; fromfire, perils o f the sea,							acts
B U T the shipper can’t demand a B/L with			of God, war, public enemies, quarantine
			restrictions, strikes or lockouts, riots, when
a wrong description of the goods when the			attempting to save life or property at sea,
situation doesn’t justify it. Indeed, if the			wastage of bulk goods or damage arising
master fails to show “the apparent order			from inherent defects, quality or vice of the
and condition of the goods” the shipowner			goods, nor for insufficiency of packing,
will forego any possible defences to a			inadequacy of marking and latent defects of
claim brought by a 3rd party. The clausing			the goods not discoverable due diligence,
of the B/L is not a choice but an			and finally from any other cause arising
obligation.			without the fault of the carrier.
		If the carrier receives a claim for damage to or
		loss of the goods while they were in his custody
		and wishes to use one or more of the above
		defences to disclaim liability, the burden of proof
		that the loss is covered by those defences is on
		him.								1

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THE HAM BU RG RU LES

In many respects the Rules cover the same subject matter as the Hague-Visby Rules, in that they are concerned with imposing a compulsory regime of liabilities and responsibilities on carriers of goods under contracts of carriage by sea.

T h e r e g im e is v e r y d if fe r e n t, a s a r e th e s itu a tio n s in w h ic h th e R u le s w ill a p p ly .

The Convention applies to sea carriage between different states under any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another (Articles 1 and 2). Where the carriage is both by sea and by some other means of transport, the Rules will generally apply only in so far as the carriage relates to the sea element. Coastal voyages are excluded.

U n lik e th e H a g u e - V is b y R u le s , u n d e r B s /L o r s im ila r d o c u m e n ts . T h e

th e r e fo r e , th e R u le s a p p ly to

r e g im e is n o t lim it e d t o c a r r ia g e C /P s .

If the Rules apply, the CARRIER will be responsible for the goods during the period when he is “in charge” of them; that is to say, from the time he takes them over at the port of loading until he delivers them at the port of discharge. This is a significant extension to the period of his responsibility, when compared with the Hague-Visby Rules regime.

Another point is how the CARRIER IS DEFINED. It’s not expressly addressed in the Hague-Visby Rules. For example, in England a B/L signed by the master will usually evidence a contract with the shipowner (rather than the charterer) and an identity o f carrier clause dealing with the point will usually be upheld. The same is not, however, true in many

continental jurisdictions. U n d e r	th e	H a m b u r g	R u le s , th e c a r r ie r	is d e f in e d a s t h e p e r s o n
b y w h o m o r in w h o s e n a m e	th e	c o n tr a c t	is c o n c lu d e d . The	name and the place of

business of the carrier must be set out in the bill. A bill signed by the master is deemed to have been signed on behalf of the carrier (i.e. not the registered owner unless he is also the carrier).

Under these rules, it is possible that where the contracting carrier is the charterer of a ship, the registered owner will be treated as an actual carrier for the purposes of the Convention.

In b r o a d te r m s , th e H a m b u r g R u le s r e g im e is m o r e f a v o u r a b le t o c a r g o in t e r e s ts th a n th e H a g u e - V is b y r e g im e . It should be noted that the time limit for commencing court or arbitration proceedings is extended from one or two years, and that this limit applies to claims both by and against the carrier. The carrier in the currency stated in the policy or in the Certificate of Insurance. The carrier, if a P&I club member, then claims on his club policy.

7.What s the subject o fHagueVisby Rules and Hamburg Rules?

2.What should be issued by a carrier on demand o f the shipper?

3.What must a shipowner do if the goods don't conform to the description in B/L?

4.In what cases a carrier bear no responsibility fo r loss or damage under Hague-Visby Rules?

5.How is a carrier defined under Hamburg Rules?

6.Why is Hamburg Rules regime more preferable fo r cargo interests, in your opinion?

Exercise 6. Put the following verbs in correct order to describe the usual claims procedure

Agree	instruct	start with	inform (2)	pay
insure at	initiate	act	check

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The usual claims procedure following hull damage to a ship

(1)__________________ Lloyd’s (2)_____________________ the assured contract his broker

to (3)___________________ the claims process. Therefore, the			shipowner’s or m anager’s
insurance	departm ent will	immediately (4)______________________the		com pany’s
broker, who will inform the lead underw riter at Lloyd’s.
The	lead underw riter	will (5)_____________________a	surveyor to	ascertain and

report the nature, cause and extent of damage. (In major cases the Salvage Association will usually be instructed).

The broker then ( 6 ) _______________________ the lead underw riter and Lloyd’s Claims Office, which (7)__________________ on behalf of the other “following” underwriters.

Once the validity of the claim has been (8) _________________ and payment

(9)______________, Lloyd’s central accounting system ensures that the claim is (10)____________directly to the broker’s account and the accounts of the underwriting syndicates are duly debited.

Exercise 7. Read a claim fo r demurrage money and answer the questions
Dear Sir,
This is to	inform you that	due	to your failure to provide the	cargo	o f linseed
expellers fo r	my vessel as fa st	as	she could receive, as per C/P	dated	03/01/2008,

laytime allowedfo r loading expired at 08.00 hours local time March 8,2008. From that time till completion o f loading, that is, 15.00 hours local time, today, M arch 10, 2008 the vessel was on demurrage o f which you had been duly warned in advance by my letter o f March 3, 2008. So, the time o f the vessel on demurrage is 2 days and 6 hours 30 minutes, which at the rate o f 500 US Dollars per 1 hour o f demurrage as per the C/P makes the total o f 10,750 US Dollars.

I hold you responsible fo r the above sum and kindly ask you to pay it before our departure.

Yoursfaithfully,

1.What’s the reason for loading expiring?

2.How many hours was the vessel on demurrage?

3.What total amount of money must be paid for demurrage and when?

4.Who usually bears responsibility for demurrage?

Exercise 8. Translate into your native language

Hague-Visby Rules are applied to all goods shipped under B/L terms except for: 1) live animals; and 2) cargo which is stated by the contract of carriage as being, and is actually carried on deck.

They apply to every B/L relating to the carriage of goods between ports in two different states if: 1) the B/L is issued in a contracting State; 2) the carriage is from a port in a contracting State; 3) the contract contained in or evidenced by the B/L provides that the Hague-Visby Rules or the legislation of any state giving effect to them. Many States have legislation incorporating the Hague-Visby Rules into national law. Where no such national

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