Oil tanker attacks threaten commercial navigation and the security of global energy supplies which have notable ramifications on the insurance side...
Tanker attacks have a long history indicating that it could be a powerful weapon in international conflict, which can significantly destabilize an economy. During the Iraq-Iran War in the 1980s, oil terminals and tankers were under severe attacks, which directly affected the economies of both nations, in addition to the safety of maritime traffic.
Very recently, on 13 June 2019, two oil tankers, Marshal Islands-flagged Front Altair and the Panama-flagged Kokuka Courageous were attacked in the Gulf of Oman. Whilst there were no serious casualties, the crew of both vessels was evacuated. This incident once again highlights the need for maritime safety.
Just a few weeks before the June attacks, on 12 May 2019, four oil tankers were hit by a series of co-ordinated attacks at Fujairah.
Such attacks have a significant impact on the shipping industry. Oil tanker attacks threaten commercial navigation and the security of global energy supplies which have notable ramifications on the insurance side.
Reportedly insurance premiums for vessels passing through the region have significantly gone up by about 10%. War risk premiums for vessels sailing within the region have now surged to around USD 200,000 for VLCCs according to industry reports. The premiums were close to USD 50,000 after the attacks in May. As a result of the attacks, both ship owners and charterers, had halted bookings in order to reassess risks. Who will suffer the most, Cargo interest? Ship owners? or the Charterers?
Annual war-risk is one of several forms of insurance a vessel obtains while sailing into high-risk regions. Recently, it has been reported that the London insurance market's Joint War Committee extended the list of waters deemed high risk to include Oman, the United Arab Emirates and the Gulf after the attacks in May. Therefore, any vessels calling for bunkering in these ports will suffer high premiums.
War Risks clauses have evolved over time in order to evaluate as to when an Owner has the liberty to deviate or repudiate a charterparty upon the happening of certain specified War Risks perils such as acts of war, piracy, terrorism, sabotage and blockades. In CONWARTIME 1993 the presence of a War Risk lies in the "reasonable judgment of the Master and / or Owners" so that a vessel is not required to proceed through any area where, in the reasonable judgment, it appears that the vessel, the crew or the cargo on board "may be", or are "likely to be" exposed to War Risks.
A ship owner trading in high-risk waters will need to pay additional War Risk premium. Whether it's the ship owner's obligation or the charterer's obligation to bear this additional expense, will largely depend on the terms of the charterparty. For fixtures yet to be finalized, it will be a matter for negotiation. For instance, under the CONWARTIME 1993, war risks insurance premiums are stipulated for the ship owner's account.
A question which may now arise is that whether or not the parties will have a right to repudiate the fixture for the mere fact that it has become uneconomical as a result of the increase in premiums. The "doctrine of frustration" permits a party to a contract to not perform his part if there is a change in circumstances for doing so. However, it is unlikely that the courts will consider a change in the economic burden as a situation or a reason for a party to not perform his part of the contract.
Nevertheless, "frustration" may occur if ports critical to performance of the charterparty become inaccessible by reason of war or blockade.
Having regard to the current situation in respect of war and terrorism, the contracting parties should pay particular attention to these clauses which may have considerable commercial consequences depending on the interpretation.
Eventually everything gets passed down to the cargo interest. In addition to insurance premium, freights for vessels sailing into the Middle Eastern waters have also gone up considerably. As per industry reports, freights are as high as USD 13,000 per day from about USD 11,000.
Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.
Ravi P Jawani
Partner, Fichte & Co
Ravi Jawani is Partner and Head of Shipping Litigation. He holds a LLM in Maritime Law from University of Southampton. Ravi has invaluable experience in the highly specialised practice areas of marine insurance, carriage of goods by sea and international trade law as he belongs to a family of international traders. Prior to joining Fichte & Co, Ravi was leading the insurance department of one of the top off-shore construction companies in Abu Dhabi and has extensive experience in contentious matters having worked with leading international litigation law firms in Mumbai. Ravi has facilitated the diversifying and strengthening of the shipping department with his expertise in handling international arbitrations, both contentious and non–contentious cases, within the UAE and GCC countries. He represents corporate and individual clients in high profile multifaceted shipping, trade, commercial, commodities and business disputes in UAE, international arbitration as well as in alternative dispute resolution forums. His experience and expertise includes handling disputes and claims relating to all types of charter parties, insurance, bills of lading and international trade. Ravi is involved in high profile multi-jurisdictional cases pertaining to UAE and GCC countries. Ravi is a member of the Institute of Chartered Brokers, London and a Post Graduate from Narottam Morarjee Institute of Shipping, Mumbai. He is also a member of the Bar Council of Maharashtra & Goa and the English Law Society.
Associate, Fichte & Co
Keshav is an associate in the firm’s shipping and dispute resolution department. His practice is predominantly focused on dispute resolution, encompassing both, litigation, and arbitration, under various institutional rules such as DIAC, ICC, LMAA to name a few. He has advised and acted for ship owners, charterers, commodity traders and high net worth individuals. He also acts for clients on non-shipping disputes and general commercial contracts. His recent experiences include an enforcement of a Singapore seated arbitration award for USD 500 million before the Delhi High Court on behalf of a prominent Japanese pharmaceutical company, acting for a Canadian telecom equipment supplier against a prominent telecom service provider in India, and advising the former Managing Director of Leeds United Football Club in a USD 6 million claim before the DIFC Courts initiated by the Dubai arm of a Bahraini Islamic Investment Bank. Keshav speaks multiple languages and is able to effectively with communicate with clients and co-ordinate multi-jurisdictional proceedings.