Our shipping practice includes Protection & Indemnity (P&I) Settlements.
Brus Chambers shipping practice includes the entire gamut of dry and wet shipping, ship arrest or release, ship finance, ship buying or selling, international trade, personal injury and crew wages and entire gamut of P & I work within shipping and marine insurance. The firms practice also includes port projects and development, corporate advice, preparation and review of all contractual documentation required for any shipping related projects.
The shipping practice being a niche and specialized field, we, at Brus Chambers are well aware that there are very few law firms that cater to your shipping and related needs. We are dedicated to provide exactly the service that may be required by our clients and believe in investing time and our best efforts in providing solutions and consultancy services to our clients.
With our long history in shipping we are leading legal specialists in both hull and P&I insurance. We work all over the world with shipowners and their marine insurers. We can assist you on issues ranging from the drafting of terms of insurance cover and rules, to advising you on what the policy means, coverage issues and the collection of unpaid premiums and calls. Ships are large and expensive assets. They need specialist insurance to cover the risks they face. Hull and machinery insurance covers loss of and damage to the ship. Protection and indemnity insurance (P&I insurance) provides cover for the broader, uncertain risks faced by shipowners, including a host of third party liabilities.
We know that there are very few solicitor/ law firms in our country practicing admiralty, shipping and maritime more particularly protecting ship interest, claimant's interest, admiralty ship arrest or release, insurance claims.
Brus Chambers Shipping and Marine Insurance practice includes the entire gamut of Protection and Indemnity work and is actively involved with ship owners and P & I clubs to provide solutions and our legal expertise in matters relating to death and personal injury on board the vessel, repatriation of sick or injured crew and hospital expenses, loss of crew members personal effects, diversion expenses, life salvage, collision liability, loss of/ damage to cargo, loss/ damage to property other than cargo, pollution, towage contract liabilities, liabilities under contract and indemnities, wreckage liabilities, contribution to general average or salvage, expenses of salvors, fines, legal costs, and other matters that are covered under the insurance cover of the P & I clubs. Our work also includes hull and marine insurance and the cargo insurance generally available to the ship owners, that provides insurance against third party liability.
We advise the ship owners and their P & I clubs in various cases of such claims and their settlements and have successfully managed to dispose of a plethora of such claims by formulating successful settlements.
Our experience and long term involvement and national and international presence has helped us not only in sharpening our expertise, but also in establishing a reputation for deliverance in the national as well as international spheres.
In our services provided to the ship owners and P & I clubs, we seek to reduce the liability of our clients to the minimum extent reasonably possible and seek to settle the dispute at hand amicably and as expediently as possible.
Brus Chambers is an established Indian law firm, being one of the two leading law firms of the country practising shipping matters amongst other areas, a law firm which is highly recommended by Legal500, Lloyds (Informa) Group; Trade Winds; Chamber Practice, shiparrest.co.in, Euromoney Expert Guides and other independent credential bodies, for maritime, shipping and admiralty matters in India amongst other areas of work.
It may occur that a cargo arrives at a port of discharge in a damaged condition and that parties with an interest in the ship are held liable for this. At that stage we get involved in handling cargo claims and protecting the interests of Ship Owners, Charterers and/or their liability insurers: the P&I Clubs.
Within P&I we advise on variety of liability claims, such as cargo damage, environmental damage, personal injury, collision and grounding, freight, demurrage and defence, salvage and wreck removals.
Our legal advice falls into two parts, the overall issues of liability and details of particular claims. In both areas the Club using our service expects to assist the ship owner,
Our shipping practice includes the entire gamut of admiralty, shipping and maritime edicts advising owners, charterers, suppliers, repairers, cargo owners, insurers, banks, financial institutions, mortgagors, p&I clubs, hull and cargo insurers, defence clubs, salvage and tug companies, shipbuilders, ship breakers, ship chandlers, ship repair yard, marine engineering companies, ship and chartering brokers, oil companies, port authorities and Government agencies; also sectors from oil, gas, agriculture, engineering, mining and all other sectors advising and assisting on claims, including casualties, collision, limitation of liability, cargo, charterparty, jurisdiction, conflict of laws, bill of lading, carriage of goods, contract conditions, fire, liens, general average, containers, recoveries, subrogation, casualties, freight forwarders liabilities, multimodal and unimodal, insurance and reinsurance, commercial disputes and advise on financing international trade through letter of credit, bills of exchange and other methods, preparing standard conditions of sale and advise on trade in commodities of all kinds, advising on the terms of contracts, handling dispute resolution through litigation and arbitration proceedings.
Understanding Protection & Indemnity Insurance
In basic terms, Protection and Indemnity insurance, or P&I as it is usually called, is a shipowner's insurance cover for legal liabilities to third parties. Third parties are any person, apart from the shipowner himself, who may have a legal or contractual claim against the ship. P&I insurance is usually arranged by entering the ship in a mutual insurance association, usually referred to as a club. Shipowners are members of such clubs. Legal liability is decided in accordance with the laws of the country where an accident takes place. The P&I insurance cover for contractual liability is agreed at the time the owner requests insurance cover from the club and is usually in accordance with the owners responsibility under crew contracts or special terms relating to the trading pattern of the vessel.
The word protection simply means that the insurance also covers assistance when a ship is involved in an accident and the shipowner and his Master need help. Often the club's early intervention and assistance will help to head off problems and serve to protect the shipowner from inﬂated claims. P&I insurance is an indemnity type of insurance, which means the shipowner (or member of the club) must demonstrate his loss before the club will pay out (or indemnify him) under the terms of the insurance policy. It is important to bear in mind that the club never assumes the owner's liability, therefore technically the owner (or member) is always responsible for payments (the pay to be paid principle). In practice, the club takes over the business of handling claims and ensuring that payments are correctly made.
The P&I cover may include liability for collisions (RDC), for example when the member's ship is in collision with another ship, or when the entered ship strikes a ﬁxed object, i.e. a quay, dock or buoy (FFO). However, collision and striking liabilities are often included in the ship's hull and machinery cover, for instance under the Norwegian Insurance Plan. Therefore, it is important for a Master to ascertain whether his vessel's collision insurance (collision between ships) and striking insurance (i.e. when a ship strikes a ﬁxed or ﬂoating object which is not another ship) is covered under his P&I policy or under his hull and machinery policy. To be safe, it is always wise for a Master to inform the P&I club, or the club correspondent, if his vessel is in collision with another vessel or a ﬁxed object.
DEATH AND PERSONAL INJURY ON BOARD THE VESSEL
P&I insurance covers an owner's liability for all deaths, personal injuries and illnesses which occur on board, including death or injury to crew, passengers, stevedores, pilots and visitors to the ship.
REPATRIATION OF SICK OR INJURED CREW AND HOSPITAL EXPENSES
P&I insurance also covers a shipowner's liability to pay for the costs of repatriating crew members who become sick or are injured on board. The insurance also covers the crew's hospital bills and costs of sending replacement personnel to the ship if necessary.
LOSS OF CREW MEMBERS PERSONAL EFFECTS
P&I insurance also covers the owner's liability for loss of crew belongings in cases of shipwreck or ﬁ re on board. The cover only applies to items which are deemed to be reasonable for any crew member to have with him on board. A crew member travelling with unusually expensive items, such as laptop computers, gold watches etc should make sure that he has such items separately insured.
The shipowner may suffer losses through having to divert his ship in order to obtain treatment for an injured or sick person on board or for the purpose of landing stowaways. Although there is no liability here in the usual sense, the Clubs give cover to the shipowner in respect of the basic running expenses of his ship during the diversion, including port charges incurred solely for this purpose. Similarly, the cost of providing food and other necessities for stowaways may be reimbursed to the shipowner by his Club. Several Clubs extend the cover given in respect of stowaways to include the like expenses in respect of refugees who have been picked up by the ship.
A shipowner may become obliged to pay a life salvage award to a person who has saved or attempted to save the life of persons on board the salvaged vessel. Where property has also been saved, the usual practice is for the property salvage award to be "enhanced" by an unspecified amount in recognition of the life salvage service. The whole award is then payable by the property underwriters. But should the owner have to meet a claim for life salvage alone, this will be recovered from his Club.
COLLISION LIABILITY ("ONE-FOURTH")
The English form of hull policy requires the ship's hull underwriter to pay three-fourths only of the liability of the insured ship in respect of loss or damage to another ship or her cargo as a result of the collision. The remaining one-fourth of such liability is insured by the shipowners Club. This one-fourth usually makes the Club the largest single insurance interest, and in practice the managers of the Club will usually be asked by the hull underwriters to handle the issue of collision liability with the other ship and her cargo on behalf of all the underwriting interests. It is also usual for the Club concerned to give, on behalf of the insured shipowner, any necessary guarantees to the other ship and her cargo, the Club taking appropriate counter-security from the insured shipowner and also from the hull underwriters (or brokers) to the extent of their respective interests.
LOSS OF OR DAMAGE TO CARGO
One of the major functions of Protection and Indemnity insurance is to cover a shipowner, or the charterer of a ship, for liability for loss of, or damage to, cargo if there has been a breach of the contract of carriage. This breach of contract usually means that something has happened to the cargo while it was on board the ship or being loaded or discharged, and for which the owner or charterer can be held responsible, i.e. shortage or damage to the cargo. Therefore, if a Bill of Lading is signed and states that 10,000 sacks of potatoes are loaded and only 9,500 are discharged then the ship (the owner or charterer, or both) may be held liable for the loss. Usually, the cargo insurers will pay the person or company who owns the cargo (the receiver) for the costs of loss or damage to that cargo. The cargo underwriters will then seek to recover their losses from the shipowner or charterer. The P&I club will usually take over the handling of such claims on behalf of the assured. This is one of the reasons why evidence in the form of documentation, copies of the log book, surveys of damaged cargo, copies of tally books, dated photos of loading in the rain etc are very important in establishing the exact reason for the damage. There are certain defences open to the shipowner, such as being able to establish that the packaging of the cargo was not good enough to protect it during transportation.
A very important part of the cover provided by the Club is that which relates to the liability of the shipowner under his contract of carriage to pay for any loss of or damage to cargo. Unless prior arrangements are made with the Club managers, this cover will be given on the basis that the shipowner's contract with the owner of the cargo is on terms at least as favourable to the shipowner as the provisions of the Hague or Hague-Visby Rules, that is to say the Brussels Convention of 1924 and its Protocol of 1968.
The cover extends beyond the sea leg of the carriage and thus will protect the shipowner throughout a combined transport contract from an inland point to another inland point, provided only that the sea leg is performed by an entered ship.
Clubs' Rules impose restrictions on the cover in respect of deviation from the contract voyage (for example an unreasonable departure from the agreed itinerary or the shipment on deck of cargo with underdeck bills) and in respect of other departures from the proper carrying practice, such as the delivery of cargo without production to the master of the relevant bills of lading, or the issue of a "clean" bill of lading for cargo which is patently damaged..
LOSS OR DAMAGE TO PROPERTY OTHER THAN CARGO
The Clubs provide cover for damage caused by contact between the entered ship and property belonging to other persons, including docks, wharves, locks and so on. The shipowner will not need to insure with his Club for this risk where his hull policy accepts it, as is the case, for example, with the German and Scandinavian types of hull policy, although he may still wish to have Club cover for the excess above any limit imposed by the hull policy. The Club cover also extends to damage caused by the entered ship to other ships and their cargoes without any actual contact, as, for example, by causing damage to a moored vessel by passing her closely at excessive speed.
It is well known that there has in recent years been a huge increase in the exposure of shipowners to liability claims in respect of pollution caused by cargoes from their vessels, in particular cargoes of oil. Most such liabilities are imposed by international convention such as CLC, domestic statute such as OPA 90 or common law, but some have been voluntarily assumed by shipowners in accordance with schemes such as STOPIA. All these liabilities are insured by the Clubs, although with a limit in respect of oil pollution claims which presently stand at US$1bn each entered ship each accident or occurrence. This oil pollution limit does not apply only to claims that are made directly against the entered ship by those who suffer the oil pollution, but also embraces those which come indirectly, as, for example, those which form part of the collision claim of another vessel.
TOWAGE CONTRACT LIABILITIES
Clubs provide cover in respect of liabilities which may be incurred during ordinary harbour towage and may by special arrangement offer cover on appropriate terms for situations beyond harbour towage. They also give cover for liabilities under the terms of the usual contracts for towage by the entered ship or another ship or object.
LIABILITIES UNDER CONTRACTS AND INDEMNITIES
Shipowners are often required to give contractual indemnities in order to secure services required by their ship, for example in order to obtain the services of a floating crane. Cover in respect of any resulting liability can be obtained from the Clubs in most such situations.
The Clubs give cover for the liability which a shipowner may incur in respect of the raising, removal, destruction, lighting or marking of the wreck of his ship. From the cost of the operation will be deducted the value of the wreck or any part thereof that is recovered as a result of the removal operation.
CARGO'S PROPORTION OF GENERAL AVERAGE OR SALVAGE
As an extension of their cover for loss of or damage to cargo, the Clubs again go beyond the insurance of liabilities as such by agreeing to pay to the shipowner any contributions to general average, special charges or salvage which the shipowner would have been able to recover from cargo interests had he not disentitled himself from so recovering by committing some breach of his contract of carriage.
CERTAIN EXPENSES OF SALVORS
The Lloyd's Standard Form of Salvage Agreement provides that in certain circumstances the owner of an oil tanker may be required to reimburse a contractor who attempts to salve that tanker for his "reasonably incurred expenses". These expenses, in contrast with ordinary salvage awards made under the Lloyd's Form or under general maritime law, are not recoverable under hull insurance policies, and the Clubs have agreed to insure shipowners for them in an agreement known as SCOPIC, having in mind the interests of the Clubs in the avoidance of oil pollution incidents.
A variety of fines may have to be paid by a shipowner, either directly or because of an obligation to reimburse his seagoing employees in respect of fines levied on them. Most of these come within the cover of the Clubs.
The Clubs also pay for legal costs and similar expenses which a shipowner may incur in dealing with a liability insured by his Club. In practice, the defence to the claim against the shipowner is usually conducted by his Club's managers or correspondents, who engage any lawyers, surveyors and other experts who may be required and have them paid directly by the Club.
In recognition of the fact that the list of liabilities to which shipowners are subject is constantly increasing in unforeseen ways, the Rules of the Clubs give their Directors discretion to pass for payment certain claims that are not expressly covered by any of the heads of cover set out in their Rules, provided only that they are within the general scope of the Club cover and are not expressly excluded elsewhere within the Rules. This is a most unusual provision and is a reminder that the Clubs exist, not as profit making insurance companies, but as organisations for the benefit of the shipowners who are their Members. The Omnibus Rule gives the opportunity to the Directors to move rapidly in response to the needs of the Members, particularly where a new risk suddenly arises or when an exceptional case appears to fall outside the express provisions of the Rules.
OVERALL CONDITIONS OF COVER
The risks described above are insured under the Clubs' Rules only where the relevant liability arises out of the Member's interest in a ship entered by him in the Club and when it arises in connection with the operation of that ship by or on behalf of the Member.
It is also provided by Club Rules that it is a condition of the cover that the Member must have paid the liability claim against him before he can recover from the Club. However, the failure of a bankrupt Member to pay the third party claimant may not provide a good defence to his Club when the Club is sued directly by the third party under the Third Party (Rights Against Insurers) Act 1930.
EXCLUSION OF WAR RISKS
The Clubs' cover does not include liabilities arising from the war risks listed in the Lloyd's Free of Capture and Seizure Clause. Consequently it is usual for shipowners to attach to their war risks hull insurance policies a special clause giving cover for P&I risks to the extent that these may arise from such a risk and thus be excluded from the Club insurance.
SELECTION BY SHIPOWNERS OF PARTICULAR HEADS OF COVER AND OF DEDUCTIBLES
It should be particularly noted that a Member of a Club is not obliged to enter for all the risks set out above but may choose to take cover from his Club in respect only of certain risks which he perceives as most pressing from his point of view. Similarly, although some Clubs put in their Rules standard deductibles for the various risks, it is always open to a Member to negotiate specially large deductibles against a corresponding reduction in premium.
COVER FOR CHARTERERS
Although the above description of the Club cover speaks solely of shipowners, the cover is available also to charterers of ships, to the extent that they may incur any of the liabilities listed. Cover for charterers is usually subject to a provision that the charterer is deemed by the Club to have been entitled, as against the third party claimant, to any limitation rights that would have been available to a shipowner.
OTHER P&I COVERED RISKS
Other risks covered include liability for stowaways, liability for oil pollution and other types of pollution and legal liability for wreck removal if the ship sinks and is blocking free navigation for other vessels. In short, P&I insurance is a very comprehensive type of insurance cover which makes it easier for a shipowner or charterer to trade in international shipping transportation. P&I is as important to a prudent shipowner as his Hull and Machinery insurance cover.
P&I is a special type of marine insurance. It is a liability insurance that a prudent shipowner, manager or charterer needs, particularly if the ship is employed in international trade. P&I insurance covers a shipowner or charterer for liabilities and losses in direct connection with the operation of the ship. We often use the term third party insurance to explain P&I.