Over the course of 2011, piracy, particularly off the seas of Somalia, has refused to die down and continues to cause disruption to international trade and all enterprises involved in it.

In the nine months to September 2011, there were 352 actual and attempted attacks with 138 vessels boarded and 35 hijacked. More worryingly, 619 crew have been taken hostage and there have been eight deaths reported so far this year.

In 2011, there has been a marked increase in additional security measures, such as armed guards, razor wire, citadels and improved crew training. This is arguably having a positive effect on the ratio of successful hijackings but there has also been a noticeable change in the level of aggression and daring from the pirates.

The release of BMP 4 (Best Management Practices for Protection against Somali Based Piracy Version 4) in 2011 has also sought to help ship owners and operators safeguard their vessels, cargo and crew.

And recently, the UK announced that it would license armed guards on board UK vessels. The reaction of this in the UK has been mixed, but the general response has been a cautioned welcome.

Generally speaking, it remains the case that lower premiums from the War and Kidnap & Ransom (K&R) markets are available where vessels have increased security on board vessels.

Whilst there are no radical changes, this being a progression from BMP3, there are some important new amendments. The major change is the reclassification of the previous ‘recommendations’ to the ‘3 Fundamental Requirements of BMP’ they are:

• Registering with MSCHOA (Maritime Security Centre Horn Of Africa)
• Reporting to UKMTO
• Implementing Self Protection Measures

The purpose of the Best Management Practices guides are intended to provide shipowners with advice on procedures and protection which can be put in place for the safety of the crew, vessel and cargo when transiting high risk areas.

The measures can, when implemented in conjunction with an appropriate policy structure and insurer, provide premium savings for War and Kidnap & Ransom insurance policies to owners and charterers.

Please contact us if you would like any additional information.

Cefor has sought to clarify the relationship between the NMIP and the International Group P&I cover, specifically in relation to piracy risks under Chapter 15.

Clauses 15-20 make it clear that the war cover provided by Chapter 15 is seamless in relation to the war exclusion clauses used by the International Group of P&I Clubs.

Furthermore, Clauses 15-22 make it clear that the cover provided by P&I clubs is always subsidiary to the war cover provided by Chapter 15.

As Cefor has stated, this is important in relation to piracy, which is a war peril under the Plan but a marine peril under International Group P&I Cover, and means that all piracy-related losses will be covered by the Chapter 15 Insurer.

P&I Club cover is now per Gard’s Rules, not Skuld’s, in the event that the owner has cover with a non-International Group Club.

Collision cover under the NMIP no longer includes liability for damage to coral reefs, which the NMIP clarifies is more traditionally a P&I risk.

We anticipate that the NMIP 2010 will become standard for each renewal or new business led by the Norwegian market currently on NMIP 2007 terms.

Thank you to Cefor for the explanatory notes – further information can be obtained from your usual contact at FP Marine Risks.

The maritime news continues to be filled with articles about pirate attacks in the Gulf of Aden, while piracy also continues less reported in several other key areas such as Nigeria, the Philippines and Brazil. There has been some discussion, and perhaps confusion, about what support is available to shipowners in the event of a pirate attack.

To mitigate the risk, some shipowners are avoiding the area but at substantial additional expense, and others are using organised convoys or employing security staff for the vessel.

Marine Kidnap and Ransom insurance can play a key part in any shipowner’s risk management strategy because it covers the specific costs associated with piracy attacks, however there has been some misunderstanding regarding the detail of the cover.

Andrew Brooker, director at marine insurance brokers FP Marine Risks, says: “We are often asked what insurance protection is available to shipowners in light of the increased risk of piracy. Marine Kidnap and Ransom needs to be seen as a service that shipowners can draw upon that isn’t catered for by traditional hull insurance.”

Traditional hull insurance only protects the shipowner from loss or damage to the vessel as a result of piracy and is only designed to work in a reactive manner once the claim is made after the event.

In the absence of physical loss or damage, the ransom and associated costs would be considered a General Average expense and settled by all parties against their respective values. However, the legitimacy of these costs being claimed in GA has never been tested and could be disputed by the cargo parties’ insurers.

Given the amount of shipping traffic that transits areas such as the Gulf of Aden, statistically the risk of a pirate attack is quite low. However, when it does happen, shipowners are faced with a challenging range of issues they are unlikely to have encountered before.

Brooker explains: “Shipowners suddenly find themselves with a host of questions about how to move forward – how do they find the necessary help from specialist negotiators; how do they enter into effective communications with hijackers; how do they deal with threats to their crew, vessel and cargo; how do they raise and deliver the ransom?”

Marine Kidnap and Ransom insurance is designed to specifically meet the needs of shipowners in dealing with these issues. It also provides the security of having an insurance in place that ensures the shipowner receives priority treatment from kidnap negotiators and other personnel involved. It covers all the necessary related costs that are needed to secure the safe and quick release of the vessel, crew and cargo, including the ransom and its delivery.

Furthermore, if a shipowner were to declare General Average in an attempt to raise the ransom, it could jeopardise their commercial relationships.

Brooker says: “There is generally no deductible with Kidnap and Ransom insurance, so owners are not exposed to additional costs after the premium and our cover ensures the Kidnap and Ransom insurers do not seek to recover any aspect of the costs from cargo or charterer interests, thereby preserving those commercial relationships. It also has the effect of protecting the owner’s existing Hull & Machinery or War cover from a loss which exposes them to an increase in rating for the following year – in effect, Kidnap and Ransom insurance has no memory and will not seek to recover claims through increases in premium.”

Uniquely, there was no longer a vessel or cargo being held for ransom.   The captain was now the only hostage, but within a standard (UK or American Institute or Norwegian Plan) Hull and Machinery policy there is no specific cover for ransom payments made specifically for the crew. This is also the case for P&I policies.

A ransom is only covered by existing H&M policies in a General Average claim if the pirates do not specify the amounts for the separate release of the crew, cargo and vessel. This usually does not present a problem because the pirates tend to take the crew hostage as part of the vessel hijacking and effectively hold all parties to ransom for a single amount.

However, in this instance, the pirates’ demand for a ransom was only tied to the holding of the captain on the drifting lifeboat. It would therefore be difficult for a shipowner to recover an insurance claim for the ransom, when the hostage was being held away from the vessel itself. If the ransom was paid, the owner would have to submit the claim to their P&I Club, likely under the discretion afforded by the Omnibus Rule.

On this occasion, the US navy launched a successful operation and rescued the captain so we do not know how the situation may have unfolded had the shipowner entered into ransom negotiation talks.

Moreover, the recent attacks on the American-flagged Maersk Alabama and the two French yachts have seen the respective navies taking military action against the pirates to secure the release of the hostages, whereas previously ransoms were paid.

According to mainstream media, the immediate effect of this action appears to be retaliatory. From an insurance perspective, we are likely to see an increase in premiums for vessels transiting the area as the risk of violence escalates even further.

Unless the shipowner had specific Kidnap and Ransom insurance, any claim made to cover the ransom for the crew would only be at the discretion of the P&I Clubs’ board and only then if it was an International Group Club.

If any party is interested in learning more about what is covered under their existing Hull policies and what additional services Kidnap and Ransom insurance provides, please do not hesitate to contact any one of our shipping team to discuss further.

As we wrote in our opinion piece Piracy – How Covered are You?, the methods and style of piracy have moved on from its “traditional” routes where pirates would board ships and steal cash and equipment. This didn’t present any particular problems for insurers. The new method sees Somali pirates only interested in the ransom, demands for which have run into the millions of dollars, and it is the settlement of these ransoms that are likely to push premiums higher.

There are further fears that the Somali methods of hijacking will spread to other regions, including South East Asia and Latin America. Whilst this is possible, current circumstances suggest the need for a specific set of geo-political characteristics to make this work, i.e. a sea lane near land in calm waters without any issues as to sovereignty, a passive government or legislature, a lack of concern of that government of outside pressure to take action, and an inability of external governments to take action.

However, if other hot spots were to occur, then we would likely see a quicker shift of Piracy from the Hull to the War policies. Whilst there is the increase in premium to contend with, there is also the question as to who is going to pay for it.

It means owners and charterers should be paying increased attention to their War clauses and obligations under the charterparty, and account for the increases accordingly, irrespective of the anticipated trading pattern.

Minimising the Risks for Charterers
Avoiding the area entirely will limit a vessel’s exposure to the risk of piracy although, as in the high profile case of the Sirius Star, it is not always successful.  Sirius Star had chosen to sail via the Cape of Good Hope, but was still captured by Somali pirates over 450 nautical miles off the coast of Kenya.

Moreover, significant deviations are a costly and time consuming alternative for Charterers, who pay hire costs for the additional time taken to sail past the Cape.

In the event of a hijacking, the vessel could remain on hire for the duration of the detention with any off-hire likely to lead to a dispute.  The average period for vessels to be detained is six to seven weeks, so the Charterers’ exposure to hire charges whilst the vessel is detained is significant.

Charterer’s Piracy Trade Disruption Insurance ensures that if a vessel is captured and the Charterer remains liable for the hire, the Charterer is covered for that payment whilst the vessel is seized.

The Cover
Importantly, the cover is available on both a single breach and annual basis.  This allows Charterers to declare vessels for the specific period, whilst transiting or calling at ports in high risk areas.

The premium is based upon the limit of liability required, the number of calls or transits and voyages contemplated and is fully supported by ‘A’ rated London insurers with a proven track record in specialist marine insurance.

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The above information is intended solely as a summary of the cover – for full details regarding the conditions of cover, exclusions and definitions, please email or telephone your usual FP Marine Risks contact or call the Hong Kong office on +852 2544 3410, the London office on +44 (0) 207 397 4920 or email info@fp‐marine.com

International security efforts have increased, but their presence is having minimal impact on what is unquestionably a lucrative crime.

Somali pirates are making ransom demands of up to USD10million, threatening the crew and warning the shipowners that they will ground the ship if their demands are not met.

Understandably, the safety of the crew and the release of the vessel take priority. However, whilst the affected shipowner does what is necessary to secure the release of the crew and vessel, cargo owners can be significantly affected.

The cargo is often more valuable than the vessel itself, yet in the event of a hijacking, cargo owners may not be alerted to the situation and are unlikely to be involved in the subsequent negotiations and ransom payment.

Recent hijackings have lasted between seven and 100 days; 58 days is the average duration of a hijack in Somali waters. Cargo owners can see disastrous delays particularly affecting any seasonal or other time-critical cargo, and in the worst case, deterioration or material damage to the cargo itself.

We are also witnessing an increasing number of shipowners attempting (some successfully) to recoup a share of the paid ransom from cargo interests in General Average.

Given the cargo is more often of significantly greater value than the vessel it is being carried on, ship owners will seek to recover the significant majority of the ransom payment and any other general average charges from them.

Irrespective of the ultimate position, shipowners are likely to have a prima facie right to demand general average security and we would expect owners to exercise their lien over the cargo in order to obtain that security where they consider it necessary to do so. Unsurprisingly, we are also aware that cargo interests are attempting to resist the claim in General Average.

What action can Cargo Interests take to protect themselves?

It would appear critical to establish a protocol for communications with shipowners in the event of an incident.

In addition, we suggest cargo interest obtain confirmation from shipowners regarding adequate Hull and Machinery, P&I, and War Risks insurance for the voyage in question.

There is specialist Marine Kidnap and Ransom Insurance available which provides not only cover for the ransom payment but, arguably more importantly, access to specialist security consultants who will assist in negotiations for any ransom payment. We recommend that cargo interests check with the shipowners to see if they have purchased this cover.

We are also witnessing collaboration between the parties involved in the voyage (charterers, owners and cargo interests) to purchase this cover for all interests.

Please see our separate news article on Marine Kidnap and Ransom Insurance for details or contact us to discuss your requirements further.

To keep up to date with reported piracy incidents and to learn more about prone areas, please visit http://www.icc-ccs.org/prc/piracyreport.php

Whilst attacks in the Malacca Strait and Indonesia have dropped by over 50% in the same time, the Somali coast and Gulf of Aden have seen a drastic rise from only 2 incidents in 2004 to 44 in 2007.

The data available for 2008 shows that between January and September there were 50 attacks off the coast of Somalia, 32 hijack incidents and over 260 crew members held hostage.

The pirates have hijacked vessels from over 20 countries, including Germany, Japan, Malaysia and France, and members of the crew are predominantly from the Philippines and Malaysia.

The pirates targeting vessels near the Gulf of Aden and Somali waters are predominantly local fishermen and disaffected youth from Puntland, a semi-autonomous region in the north east of Somalia.

They threaten to kill the crew and run the ship aground from the outset, and make ransom demands of between USD2m to USD10m for which they leave little room for negotiation.

Ten countries have sent in military forces to the waters surrounding Somalia and the Gulf of Aden to try and prevent further attacks, but with little success.

It is argued that as long as the issues internal to Somalia remain unresolved, piracy in the area will continue.

Avoiding the area entirely will limit a shipowners exposure to the risk of piracy, but it is also a costly and time consuming alternative.

Marine Kidnap and Ransom Insurance, on the other hand, ensures that if a vessel is captured and a ransom demanded, the shipowner is able to respond quickly and with the support of experienced crisis-handling professionals to ensure the safety of the crew and expedient release of the vessel.

The Cover

In summary, the Marine Kidnap and Ransom Insurance covers the following:

1. The ransom that has been paid

2. The loss in transit of the ransom

3. The fees and expenses of security experts who specialize in advising clients on how to handle crises such as kidnap-for-ransom

4. Additional expenses including those for an independent negotiator; a public relations consultant or interpreter; reasonable costs of travel and accommodation of the assured; plus all other reasonable expenses incurred subject to the insurer’s approval.

5. Legal Liability to cover settlements or awards, fees and judgments imposed upon and paid by the assured as a result of an action for damages brought by or on behalf of any insured person, or his / their legal representative or shareholders, as a result of the kidnap. Defence costs incurred by the underwriters are payable in addition to the limit for legal liability.

What would you do without insurance cover?

Without the necessary Kidnap and Ransom insurance, shipowners understandably find themselves unsure about how to proceed in the event of a hi-jacking.

They need to consider how to enter into effective communications, how to handle the demands and threats made by heavily-armed pirates, how to advise family members of the situation and how to raise and deliver the necessary ransom to guarantee a swift and successful release.

Most, if not all, owners would consider it an unprecedented strain on finances, resources and expertise to manage the crisis effectively.

However, with adequate Marine Kidnap and Ransom Insurance you have the necessary support from experienced professionals as soon as you need it.

They have the ability and know-how to advise you through every stage of the negotiations and release, their costs being covered by the insurance.

In addition, the insurance also covers the ransom itself along with a wide range of ancillary, but necessary, expenses that may be incurred either during and/or after the successful release of the crew and vessel.

The above information is intended solely as a summary of the cover – for full details regarding the conditions of cover, exclusions and definitions, please email or telephone your usual FP Marine Risks contact or call the Hong Kong office on +852 2544 3410, the London office on +44 (0) 207 397 4920 or email info@fp-marine.com

With growing trade volumes, vessel sizes and government legislation, supply chain managers face increasing risks and liabilities in their industry. Insurance is an important risk management tool, but one that has yet to be fully utilised in Asia. For an effective insurance purchasing strategy, supply chain managers should be aware of the changing risk exposures, the breadth of cover available and the long-term benefits that insurance provides by protecting profitability.

Supply chain management, by the diverse nature of the business, is exposed to constantly changing and, in most cases, increasing risks and liabilities. Depending upon the geographical spread of the business, those risks are likely to range from political risks to business interruption and the more specific threats of piracy or theft.

The insurance market has always been keen to respond to these varying and changing risks, not only with more sophisticated products, but also greater expertise and knowledge. In the increasingly competitive environment that the trade insurance market has become, differentiation is a key driver for insurance solutions that can dovetail with existing covers and/or risk management devices already in place.

What remains constant and critical is for supply chain managers to be able to identify the risks and react to them positively. That requires a high degree of both understanding of the exposures as well as the resources required to implement the required risk management procedures. As part of that process, the involvement of the insurance market and its knowledge base can be invaluable not only to determine the possible solutions available, but as a cost-efficient external resource.

Changing Exposures

Supply chain managers have become more risk averse in recent times due in part to the falling cost of insurance, but also due to an increase in the understanding of risk and the constantly evolving legislative environment.

A gradual, but steady, improvement in the understanding of the liabilities of service providers and the courts’ willingness to find new areas of liability or affirm previously held views has focused more attention on the involvement of insurance as a risk management tool. But, is there sufficient focus or understanding on this area?

There can be no doubt that it is difficult to maintain adequate knowledge of new risks and the evolution of existing risks. As the size and demands of the industry continue to develop, both in Asia and globally, so too does the list of potential losses that might arise.

One such example is the risk of accumulation brought about by the increased volume of trade. Accumulation arises where a series of shipments are in the same place at the same time, whether that be a warehouse, vessel or other conveyance.

For supply chain managers, this is a difficult exposure to monitor on an ongoing basis, yet can give rise to a significant underlying exposure in the event of just one single incident. Whereas this used to be predominantly the preserve of static risk insurers, due to the progress of, specifically, the shipping sector of the industry, it now has a broader effect across the supply chain.

As the size of vessels increase to meet the cost efficiency demands of global trade, so does the possibility of an accumulation of risk on those very vessels. The capacity of the ‘Emma Maersk’ and her 11,000 twenty-foot equivalent units (TEUs) is a forebearer of things to come. It is perhaps noteworthy to compare her with the recent losses incurred by cargo interests alone on the ‘Hyundai Fortune’ of potentially USD75m and the ‘MSC Napoli’ in the region of USD66m, both of which were unavoidable losses from the point of view of the supply chain managers unlucky enough to be involved.

But the issues of accumulation do not stop once the cargo is discharged from the overseas vessel. As trade volumes continue to rise, specifically to and from China, so consolidation and deconsolidation points become more congested and/or capacity increases.

If we add to the equation the risks of port congestion either through natural or man-made causes such as the recent strike in the US Pacific Northwest, those exposures can result from a number of causes making them difficult to predict.

Being able to calculate these exposures, with a degree of accuracy, requires a high level of risk management capability, which may not be viable within certain areas of the supply chain. It is, of course, difficult enough to manage risk successfully where all the information is available; where that information is not available, it becomes a considerable challenge.

The result of this is that there is only a limited level of protection for even the most sophisticated risk manager. Offsetting risk in the form of insurance should, therefore, play a pivotal role in the overall risk management strategy.

Insurance in Asia

To this end, the insurance market in Asia continues to grow as more and more insurers enter the arena, either as additional offices to bases in London or the US, or Asian headquartered and capitalised. The London and Lloyd’s market is and will remain the epicentre for the complex risks that the supply chain management industry requires, but there is significant shift in knowledge as insurers place expertise on the doorstep of the risks they write.

Indeed, Lloyd’s itself now has hubs in Singapore and Shanghai, allowing Lloyd’s markets to utilise their capital based in London to set up at minimal additional cost in Asia. While the spread of insurance placements is often global, insurers are seeing a real benefit to a presence geographically alongside the risks they are writing.

This provides insurance buyers in the supply chain sector with the services and knowledge base that, all too often, remains under-utilised. While the insurance market is keen to provide this support, generally speaking it has not been considered a traditional option for the supply chain industry. This, though, needs to change if the supply chain sector is to benefit from all the available tools, including insurance, and meet the risk management challenges that Asia will continue to present.

Regulatory and Legislative Environments

The concern, however, has to be that Asia’s trade volume is increasing at a pace considerably in excess of other markets, while regulation and legislation in many of the region’s countries remain in their  infancy. However, this has not dampened the expectation of clients of the supply chain industry in the region, who demand the highest levels of service.

Given the current pace of growth in countries such as China and India and the relative lack of focus on ensuring that the regulatory environment keeps pace with that growth, the protection of that exposure becomes ever more difficult. The changes in regulatory practice will take some time to gain traction and is, perhaps in part, contrary to the desire of those who wish to reap the benefits of the regional growth in trade.

This is likely to continue to have a negative effect on the ability of the supply chain industry to manage their exposures in the developing economies for some time to come.

However, the news is not all bad as insurers have an equal desire to be involved in trade to those regions and, to do that, they want and need to understand the risks involved. This is, in part, the reason for the increase in focused expertise being brought in or propagated in the region by insurers.

To properly understand the environment, they want to be accessible to their assureds and to the risks they face. Whether this proximity will give rise to a consequent increase of insurers’ involvement in the risk management strategies of the supply chain industry remains to be seen.

At present, there remains a relatively low penetration of insurance purchasing in Asia but a change is unlikely to be driven by the regulatory bodies, even with the full support of the supply chain management sector.

Ultimately, an effective risk management strategy needs to be seen as an asset to any company before the costs involved will be accepted. That will require a fundamental change in thinking in some sectors regardless of the regulatory environment.

Premium versus Risk Management

An effective risk management strategy that is able to react to new risks and control existing ones can expect to have a long-term beneficial effect on the insurance costs.

When this is compared to the falling cost of insurance even as trade levels continue to climb to some of the highest levels ever achieved, the actual costs of risk management can be eroded, in some cases, to a large degree.

This also gives rise to more specific options within the insurance programmes to create greater premium efficiencies as the risk management strategy provides more predictable results. Increases in self-retention of risk, for example, can mean a beneficial reduction in premium.

Other, significantly more sophisticated, products start to be made available as the risk management strategy becomes a key aspect of the profile of the insurance buyer. The equation between a reduction in claims experience and a reduction in premium becomes weighted in favour of the insurance buyer with a history of successful risk management.

The Impact of Unused Risk Management Tools on the Balance Sheet

Experience shows that, even where a strong risk management structure is in place the understanding and knowledge may not be filtering across to operational levels. This will reduce the ability of companies to extract the most from their risk management strategy and, ultimately, will have a negative effect on profitability. Put in insurance terms, opportunities to recover losses from insurers are simply not identified on an all too often basis. This can be either due to a lack of knowledge of the breadth of cover available or, perhaps, a perception that making insurance claims will increase premiums in the future.

With an otherwise effective risk management strategy in place, it becomes even more important. The reimbursements not only provide financial recompense, but provide the insurer with valuable knowledge of the operational or commercial risks that are occurring. More importantly, it tests the insurance to ensure that it responds as it should do when it is required. The cost benefit to the assured is clear, but the long-term risk management benefits of stressing the insurance purchasing strategy are perhaps not as obvious, until a significant loss arises.

If the vessel is lost or damaged whilst in the hands of ‘pirates’, then the assured can make a claim to cover their loss. However, the motivations of modern day ‘pirates’ can be unclear, particularly if they are not made explicitly, and it is only by proving their motivations that the assured can be certain of seeing their claim settled.

The reason for this is that currently, “piracy” is included in the Institute Time Clauses – Hulls (1.10.83).  On the other hand, “any terrorist or any person acting maliciously or from a political motive” is addressed by the Institute War and Strikes Clauses.  These policies will usually be underwritten by different insurers.

The line between pirates, terrorists, and those acting maliciously or from a political motive sometimes blurs, so knowing which policy to claim under is becoming increasingly difficult.

Keith Michel, Solicitor at Holman Fenwick and Willan, writes: “The difficulty is the … ability to assess whether an attack leading to damage or the taking of hostages by assailants armed with modern weapons is an act of ‘pirates’ seeking ‘personal gain’ or ‘terrorists’ seeking a political or religious end.  Who is to say that the demand for a cash ransom to be paid to release a ship and her crew is made by a local warlord, a criminal syndicate or the local cell of a terrorist organisation?”*

In not knowing the motive, or being unable to provide sufficient proof, the assured could be caught between policies. Whilst it is unfair for the shipowner to be penalised for their lack of proof, it is impossible for the courts to force underwriters to settle a claim without sufficient evidence.

FP Marine Risks believes that the perils should all be included as part of the War and Strikes Clauses.  The change to the nature of piracy should be better reflected in the cover that is offered to shipowners even though this is unlikely to result in lower premiums.

However, this would ensure shipowners benefited from clarity of cover – the assured would not need to distinguish between piracy, terrorism, and acts of malicious or political intent when making a claim for loss or damage caused by the actions of so called ‘pirates’.

Whilst wordings have been published by the Joint Hull and War Committees of the London Market as a response to recent events, the market needs to move faster in making them commonplace if we are to provide fairer protection for shipowners.

*Keith Michel, War, Piracy and Terror: the High Seas in the 21st Century, The Journal of International Maritime Law, Lawtext Publishing Limited, 2006.