QUARTERLY NEWSLETTER JULY 2014 ENERGY &MARINE FOCUS ON: OPERATING IN THE SAHEL AND NORTH AFRICA LPL Marine Team expansion LPL have strengthened our Marine Team by the addition of six individuals joining from Besso Limited. 19 Atlantic Named Windstorm Forecasts Oil production in the Sahara and North Africa has experienced considerable turmoil since the Arab Spring. In many territories oil production has fallen, international oil companies have made a loss and traders and off-takers have left empty-handed. 23 This year’s activity is predicted to spawn below the long term average number of hurricanes and intense hurricanes 20 CONTENTS We are pleased to provide our existing, and potential clients with our 3rd Quarterly Newsletter of 2014. JULY 2014 In this Edition, which is our 39th quarterly edition since the formation of Lloyd & Partners in January 2005, we have adopted a redesigned format in line with our revised corporate branding. You will notice a new look and feel to this publication but will find the same tried and tested formula in terms of content. In addition to our regular features, in this edition we have a focus on Operating in the Sahel and North Africa. We hope that readers will find this newsletter interesting and informative and would welcome any feedback you may have, positive or negative, which you can email to: [email protected] or pass on to any of your usual LPL contacts. If you are reading this in hard copy or have been forwarded it electronically, and would like to be added to our electronic mailing list or you wish to unsubscribe from our electronic mailing list, please email [email protected]. 05 20 07 23 19 01 General State of the Market Overview 05 Recent Quotes 06 Market Moves/ People in the News 07 What’s New? New products and market developments 07 Briefly News snippets 10 Update on Losses 12 Security Ratings Update 14 Legal Roundup 19 LPL Marine Team expansion 20 Atlantic Named Windstorm Forecasts 21 Oil Insurance Limited (OIL) Update 23 FOCUS ON: OPERATING IN THE SAHEL AND NORTH AFRICA Despite the obstacles, the region has an abundance of oil wealth, much of it light and sweet, making it valuable and easy to access. 26 26 “Focus On” Special Articles Archive 28 About Lloyd & Partners 01 GENERAL STATE OF THE MARKET OVERVIEW General Backdrop The market is a nexus point where greed and fear meet. The second quarter of 2014 saw the animal spirits definitely vanquish the meek as the corporate (i.e. C-Suite) top-down order for “profitable growth” burst the chains of market discipline held in place since 2002. The over capitalization of the energy insurance sector became very evident post March as the pace of reductions doubled in quantum. Placements that last year were difficult to complete due to say poor loss records, high catastrophe exposure, offshore drilling exposure or bad engineering, all got easily completed this year and often suffered significant signing issues (where brokers over place a risk and sign back insurers offered lines). The tsunami of risk capital that they have created is forcing insurers to re-evaluate their core ethos. Some are partially abandoning their pens to the brokers in the hope they can profitably slipstream the distribution systems of the intermediaries. Talk of market trackers to justify this behaviour has become fashionable as if the volatile energy sector behaves just like the retail automobile class. Ironically, many of these new delegators of selecting risks had a long history of rigid control as to what they accepted into their portfolio. The second half of the year will likely see more capital preparing to deploy as new entrants continue to appear and reinsurance pricing weakens still further under the onslaught of alternative capital. The success of some policies now including full property cyber risk coverage on major refinery and petrochemical plants is perhaps the apex example of how insurers are being forced to completely give ground on serious issues that only a few years ago would have been impossible to cover. For now clients can enjoy the collateral dividend of “zero bound” interest rates, being a bountiful bloom of competent and secure capital with a greedy appetite for energy risks. For those with long memories 2014 is not quite 1999 (where insurers famously completely lost their bearings) but it certainly has the potential to begin imitating the excesses of that pre-Millennium year. 02 Upstream Energy The second 90 days of the year have seen the weakest pricing power position of upstream insurers since 2000. The Lloyd’s 2005-2013 Net Combined Ratio for the Energy sector bar chart below clearly demonstrates why the market continues softening with a significant profitability gap below the break-even line for the past five years. Low signings, especially on drilling contractors, sparked fierce clashes between the markets and the intermediaries. Steep declines in Gulf of Mexico windstorm rates were de rigueur. Insurance Linked Securities made no impact in the wind sector and only served to verify the excellent offers and “low touch” client friendly service supplied by the conventional facultative market. Insurers’ ability to control risks within placements by suggesting engineering solutions (i.e. third party reviews, intrusive risk data gathering etc.) has definitively continued to wane, and clients have pleasingly therefore garnered a less frictional and better product. Energy Casualty Offshore construction has also seen some of the lowest rates since 1999 (especially on the more major projects). However, the good news is that rises, if any, are minimal and then only with increased exposures. Focus on maintaining physical damage income will invariably create some opportunities to obtain cheaper terms by leveraging cross-class participation. There has also been some evidence of a trend for Insureds that do not need big limits to achieve premium reductions of as much as 40% with a complete remarket and leader changes. Upstream is now the buying sweet spot if you are a procurer of capacity today. Lloyd’s Energy Net Combined Ratios 180 160 140 120 100 80 60 40 20 0 2005 2006 2007 2008 2009 2010 2011 2012 2013 The significant increase in property capacity has not been replicated in the casualty arena. Whilst limited capacity increases have occurred there is insufficient additional capacity to alter the firm rating environment. 03 Midstream/Downstream Energy As the 1st Half 2014 closes and with most of the heavy lifting done for the year market losses to date have been light and conditions have predictably continued to soften. The rate and quantum of reductions accelerated in the 2nd Quarter and as we move into the 3rd Quarter period we expect that position to stabilise at the prevailing levels. A number of insurers have been obliged to reappraise their 2014 budgetary expectations downwards after taking robust positions previously. Importantly from an insurer standpoint, although retention levels have come under pressure from time to time, buyers have been content to take the rate credits and other coverage enhancements on offer. The current stability of retention levels and absence of meaningful losses have provided some relief to insurers but should this change it will likely be a game changer for some. In the meantime the continued abundance of capacity means smaller providers continue to work very hard to achieve new business share and maintain signings on renewals. We expect buyers however to continue to enjoy an excellent environment throughout 2014. Regionalisation remains a factor with London now becoming one of the keenest competitors as the battle for market share continues. Interestingly, U.S. domestic insurers who typically adjust their rating to edge out London have shown some reticence to do so over this last period and as such we have seen increased orders to London. Conversely the Middle Eastern/North African and Southeast Asian markets remain aggressive and proprietorial within territory. The CL380 (Cyber Attack) exclusion remains topical and the reality is that interested clients are holding back on commitment as solutions are worked through the market. Some bespoke solutions have been offered but this in a number of instances has been undermined by unrealistic pricing expectations from insurers and the driving through of All Risk programs with the CL380 omitted. Whilst treaty solutions are found within the All Risk portfolio and there remains a lack of tangible catastrophic physical damage loss of assets linked to cyber-attack, it is unlikely that bespoke solutions will find meaningful traction. 04 Power The Power market continues to soften as the year goes on, albeit not as dramatically as the general Property market. Some markets look set to try to see how they manage books/budgets by cutting back and declining some accounts and standing their ground. However, the fact that a few are doing this on some accounts is not leading to brokers scrambling for capacity. At the moment there is enough capacity to be able to place most accounts comfortably, even if some markets prefer to walk away. The end result still tends to be in many cases, that those markets that do participate are unhappy with reduced signings post placement. This surplus capacity is allowing for this continued downwards rating trend to progress with some markets claiming they are suffering “death by a thousand cuts”. More than ever we are seeing underwriters request their long standing clients to “bear with them” through this market, explaining that they too have to try to make money, so discounts have to be controlled/reasonable. It is still possible for clients to build longer term relationships with the Power market and this can help both the buyer and the underwriter to smooth out to some extent the increases and decreases of the market cycles. However, the fact is that the new capacity being offered is in most cases also well-rated, recognised and well established, so it is difficult for clients not to consider it. In order to offset more dramatic premium reductions, these markets will often offer improved coverages or policy enhancements. Many clients appreciate this option as an alternative and therefore vows are renewed for another 12 (or 18) months. Marine Rate suppression continues to be prevalent within the London hull market. Competition between underwriters remains strong, and this seems likely to continue as the market deals with apparent over-supply of capacity on most marine classes. Some underwriters are reacting by becoming more selective in their commitment to particular classes, with bluewater hull being the arena within which appetite is most obviously declining. Other classes continue to receive good support, dependent upon claims performance and deductibles. 05 RECENT QUOTES The following are ‘sound bites’ taken from speeches, statements or articles by prominent market figures about the insurance market and whilst we have tried not to take their words out of context, the excerpt may not be the entire speech or article. Denis Kessler, Chairman and Chief Executive of Scor The London insurance/ reinsurance market must demonstrate its expertise if it is to fend off the threat posed by hedge funds and other sources of alternative capital. Advances in risk modelling have enabled alternative capital to compete with traditional insurers and reinsurers by transforming capital investors into underwriters who can assess risks and probabilities without needing to be part of an insurance or reinsurance company to do so. This has had a disruptive effect on the traditional reinsurance market – it brings new capacity, unsettling traditional markets and affecting prices in certain geographies and for certain lines of business. The extent to which the traditional reinsurance will face competition from alternative capital will depend on the progress made by models. In response, insurers and reinsurers will need to outsmart those models and prove the added value of the industry’s human capital. Technology will help new entrants with new tools to penetrate our industry. Ultimately, technology is going to lower barriers to entry. Technology, for instance, is reducing the ‘information asymmetry’ between insurers and insureds, reducing costs as well as contracting timescales and distance. The production side of insurance and “ reinsurance services is evolving rapidly, modifying our organisations, changing competitive forces, creating new business opportunities and so on. In a nutshell, the micro-foundations of the insurance and reinsurance industry are going through an unprecedented series of technology-driven changes. Despite these advancements there is future for a ‘physical’ London insurance market. Technology has made clusters such as Silicon Valley, Route 128 and the Silicon Roundabout here in the city [London] more relevant than before, not less. A knowledge-based industry such as the insurance industry needs an ecosystem of talent where people can share ideas and emulate each other. The human capital dimension of our industry will be reinforced by its digital transformation. It’s also an industry where relationships matter a great deal. It’s an industry based on a deep and extensive culture of risks. It’s an industry that rests on best practices drawn up over centuries.” Warren Buffett, Chairman and Chief Executive of Berkshire Hathaway In the United States we have almost eliminated our catastrophe insurance business. The rates came down dramatically, and we do not regard the exposure as having come down dramatically.” “ Peter Hancock, AIG Property and Casualty Chief Executive Officer Pure underwriting capacity is increasingly [becoming] a commodity. Certain risks should be redistributed to the capital markets. It’s an important supplement to traditional reinsurance.” “ Mathew Shaw, Ace Global Markets President and Active Underwriter of Ace’s Lloyd’s Syndicate 2488 There is no doubt about the unprecedented level of capital that is currently entering the market. There is not enough business to feed that capital. This will inevitably lead to a certain amount of pressure on pricing. We will have to be absolutely focused and disciplined as to how we underwrite through the cycle.” “ 06 MARKET MOVES/PEOPLE IN THE NEWS Louise Bellamy is leaving Amlin to join ANV syndicate’s Energy Casualty Team. Michelle Shaw has left QBE to join Ascot’s Casualty team. David Fitzpatrick, Head of International Casualty at QBE has resigned to join Ascot. Mark Johnson has resigned from Ascot’s Onshore Energy team to join the Hardy Syndicate. Elizabeth Mitchell, previously of Argenta and GCube has joined Munich Re’s London Energy team. previously with U.S. insurer Tower Group and is joined by former Tower Group colleague Christian Platusich. Mark Fielding is leaving Zurich London’s Energy team to join IGI London’s Energy team. Michael Dawson who is the active underwriter of Chaucer’s nuclear syndicate 1176 has been appointed as Head of the Energy Practice of Chaucer Syndicate 1084 replacing Chris White who left to join the Barbican syndicate. Raoul Carlos has left Swiss Re’s Downstream Energy to join Arch. Robin Waller has joined Advent syndicate from Liberty International Singapore, to lead their Energy business. Tom Clifton, currently a power underwriter at Inter Hannover has resigned to join Liberty. Tom Davis has resigned from Markel to join Aspen to underwrite their Energy Casualty book. Ian Picton (currently at Marsh) has been hired by XL to write an Energy book in Singapore. Dermot O’Donohoe is stepping down as chief executive of Torus and will be replaced by Enstar’s joint chief operating officer, Nick Packer. Demian Smith has been appointed Chief Executive of Torus’s international business segment, which includes Torus’s Lloyd’s, London market and European operations. David Message has been appointed Chief Underwriting Officer of Torus’s international business unit. Anne Plumb is joining Novae as head of international property. She was previously class underwriter for international and corporate property at Mitsui Sumitomo Insurance Group. Neil Baldwin has resigned from the Hardy syndicate to pursue opportunities outside of the Insurance industry. Tom Guarnera has joined Talbot Underwriting’s New York office, as Vice President of Marine and Energy Underwriting. Guarnera was John Henderson has now officially joined Liberty (starting 1 July) to underwrite their Energy Casualty book. Martin Reith (ex Ascot founding CEO) is to join ILS fund manager Securis as an Advisory Director. Bernt Hellman (former Skuld Syndicate underwriter), has been hired by DUAL (Hyperion’s managing general agency arm) to build up its Global Marine and Energy business. 07 Briefly Lloyd’s has announced a profit of £3.2 bn for 2013 (£2.8 bn in 2012). Gross written premium income increased to a new high of £26.1 bn, with a combined ratio of 86.8% and a pre-tax return on capital of 16.2%. In a press release Lloyd’s stated that 2013 was a benign year for insured catastrophes, with major claims to Lloyd’s totalling £873 mm. Despite this, total net incurred claims were £9.6 bn in 2013, down from £10.1 bn the previous year. Investment income was £839 mm (2012: £1,311 mm) and prior year reserve surplus releases were £1,575 mm (2012: £1,351 mm). Energy & Marine classes fared as follows: Energy: combined ratio 83% (from 76% in 2013), Gross Written Premiums £1.67bn (down by 3.4% on 2012), reserve releases equivalent to 11.3% of net earned premiums (down from 19.1% in 2013). what’s New? New Products aNd Market develoPMeNts Trident Marine Managers in Houston are now underwriting a book of Upstream Energy business on-behalf of Partner Re. Worldwide Facilities in Houston have announced the formation of a strategic partnership with Canopius and Beazley to provide a new underwriting platform for landbased oil and gas lease operators. They will offer OEE policies with limits up to USD25mm and have employed John Jones, formerly of Navigators and Scott Fuqua formerly of Zurich Houston. Marine: combined ratio 95.4% (from 99.9% in 2013), Gross Written Premiums £2.12bn (up by 5% on 2012), reserve releases equivalent to 7.4% of net earned premiums. Marine claims statistics provided by the International Union of Marine Insurance (IUMI)’s show that total hull losses hit a record low in 2013. The report, published early April, stated that the frequency of total losses had continually decreased over the last 15 years. In 2013, the annual incidence of total losses dropped to a record low of 0.13% in terms of numbers, and 0.05% in terms of tonnage. Weather remained the primary cause of total losses, accounting for almost 50% of claims between 2009 and 2013, while grounding represented 25%. The full report can be downloaded from www.IUMI.com. 08 Fitch Ratings has published a “Dashboard Report on Property/Casualty (Re)Insurers’ Asbestos Liability” which highlights industry asbestos reserves. Fitch estimates industry asbestos reserves to be deficient by USD 2 bn – USD 9 bn at year-end 2013, based on estimated ultimate industry losses of USD 85 bn, total paid losses of USD53 bn and current reserves totalling USD 23 bn. Fitch anticipates that asbestosrelated losses will continue to impact insurers’ earnings, but will not generate severe capital shocks that provoke negative rating actions. Cyber Attack research carried out by BAE Systems on behalf of the Aegis Syndicate at Lloyd’s which focused on power stations in the U.K., Europe, the U.S. and Canada found that an overwhelming majority of respondents, as well as specialists and vendors who work with energy companies and utilities, believe it is not a matter of “if” – but “when” – there will be a cyber-attack of major significance and impact on critical operational infrastructure such as the electric grid. The U.S. Terrorism Insurance Act (TRIA) bill passed by the U.S. House of Representatives to extend the current legislation for seven years, has now seen an alternative bill introduced in the same House, which originally looked for a three year extension, but now for a five year extension and has a significant increase in the threshold for damage caused by Terrorism before the Act is triggered (to USD 500 mm from USD 100 mm) and increases the co-insurance amount the insurance market retains from 15% to 20%. However full congress agreement to an extension of TRIA became another step closer following the U.S. Senate Banking Committee unanimously voting to approve the Terrorism Risk Insurance Program Reauthorization Act of 2014. This will now go to a full Senate vote. Lloyd’s Reports Lloyd’s have recently issued the following reports: “Autonomous Vehicles, Handing Over Control: Opportunities and Risks for Insurance” This report looks at two major categories of autonomous and unmanned vehicles: autonomous cars and unmanned aerial systems (UAS). It examines the role of insurance in the development and adoption of this new technology and highlights the opportunities and risks autonomous cars and unmanned aerial systems offer to insurance. The report finds that: • Existing autonomous and unmanned technology is already sophisticated and will continue to develop incrementally. • Widespread adoption of the technology will rely on welldefined legal and regulatory frameworks and broad public trust on issues of safety and security. • The question of where liability rests in the event of an accident caused by an autonomous vehicle will be important to insurers. • Insurers will have a significant role in assisting the development of sound risk management practices for autonomous and unmanned vehicles. The full report can be downloaded from www.lloyds.com/the-market/tools-and-resources/ research/exposure-management/emerging-risks/ emerging-risk-reports 09 “Catastrophe Modelling & Climate Change” This report explains how the insurance industry increasingly relies on computerised “probabilistic” catastrophe models from different providers to manage their catastrophe risk exposures. This report reviews the latest findings in climate change science and its effect on extreme weather events. It then outlines what catastrophe modelling is and how it came to be developed. Finally it examines whether and how catastrophes models account for climate change through a series of case studies provided by a range of model providers, including AIR, RMS and EQECAT. The report highlights: • Scientific research points conclusively to the existence of climate change driven by human activity. • Changes in the climate and weather patterns have the potential to affect extreme weather events. • Climate change trends may be implicitly built into catastrophe models, given the heavy use of historical data in constructing them; however these trends are not necessarily explicitly incorporated into the modelling output. • The approximately 20 centimetres of sea-level rise at the southern tip of Manhattan Island increased Superstorm Sandy’s surge losses by 30% in New York alone. The full report can be downloaded from http://www.lloyds.com/the-market/tools-and-resources/ research/exposure-management/emerging-risks/ emerging-risk-reports/climate/catastrophe-modelling-andclimate-change 10 UPDATE ON LOSSES 2014 Energy losses of USD 10mm or more that we are aware of at the time of writing are as follows. We also show the total of all claims under USD 10 mm (with a minimum claim USD 1 mm) to give an overall total for the year so far. 2014 Major Upstream Energy Losses (in excess of USD 10 mm Ground-Up) January Mooring Line damage Gulf of Mexico Spar Blowout Benin Offshore Oil Well Blowout Gulf of Mexico Jack-up drilling over a producing platform Fire Semi-Sub Offshore Nigeria Fire Jack-up Offshore Mexico April Mechanical Failure Peruvian Onshore production facility USD 15,500,000 To Date Total under USD 10,000,000 (Minimum of USD 1 mm) USD 44,000,000 March Total (known) for year (excess of USD 1 mm) USD 14,000,000 (est) USD 20,000,000 * USD 20,000,000 (est) USD 50,000,00 (est) USD 163,500,000 Source: Willis Energy Loss Database/LPL market knowledge (as of 9 June 2014) Figures shown as “(est)” are estimates from various press or market sources. Figures do not take into account the effect of any self-insured retention, deductible or policy limit and therefore losses are not necessarily those which insurance markets have actually suffered but give a rough guide to the overall magnitude of industry loss. * Reports would suggest in excess of USD 10 mm. 11 2014 Major Downstream Energy Losses (in excess of USD 10 mm Ground-Up) January February March To Date Fire & Explosion Libyan Tank Farm/Terminal USD 16,000,000 Fire Saudi Petrochem Plant USD 65,000,000 Fire Russian Refinery USD 13,206,140 Fire & Explosion Russian Petrochem Plant USD 83,000,000 Collapse Israeli Chemical Plant USD 14,000,000 Fire & Explosion Swedish Refinery USD 68,905,000 Total under USD 10,000,000 (Minimum of USD 1 mm) USD 30,700,000 Total (known) for year (excess of USD 1 mm) USD 290,811,410 Source: Willis Energy Loss Database/LPL market knowledge (as of 9 June2014) Figures shown as “(est)” are estimates from various press or market sources. Figures do not take into account the effect of any self-insured retention, deductible or policy limit and therefore losses are not necessarily those which insurance markets have actually suffered but give a rough guide to the overall magnitude of industry loss. * Reports would suggest in excess of USD 10mm 2014 Major Power Losses (in excess of USD 10 mm Ground-Up) January Damage U.K. Power Station USD 12,000,000 February Mechanical Failure U.K. Bio-Mass Power Plant USD 12,000,000 March Fire Singapore Solar project USD 10,000,000 April Mechanical Indonesian Geothermal Power Plant USD 10,000,000 To Date Total under USD 10,000,000 (Minimum of USD 1 mm) USD 86,874,000 Total (known) for year (excess of USD 1 mm) USD 130,874,000 Source: Willis Energy Loss Database/LPL market knowledge (as of 9 June 2014) Figures shown as “(est)” are estimates from various press or market sources. Figures do not take into account the effect of any self-insured retention, deductible or policy limit and therefore losses are not necessarily those which insurance markets have actually suffered but give a rough guide to the overall magnitude of industry loss. * Reports would suggest in excess of USD 10 mm. 12 security ratiNg chaNges The following rating changes affecting Insurers writing Energy & Marine business have occurred in the past three months or so. Insurers Name Previous Rating Ace AM Best A+ Ace S&P AA- Infrassure AM Best A- Mapfre S&P A- Lloyd’s Fitch A+ Upgrade/Downgrade ▲ ▲ ▼ ▲ ▲ New Rating Effective Date AM Best A++ 2 May 2014 S&P AA 19 May 2014 AM Best BBB+ 9 May 2014 S&P A 2 June 2014 Fitch AA- 10 June 2014 Note: The above are rating moves we thought warrant mention but are not necessarily all rating changes that have occurred in the past three months affecting Insurers that write Energy and Marine business and do not include changes in individual Lloyd’s syndicate’s rating (as Lloyd’s as a whole continues to be rated as an overall entity). 13 14 legal rouNduP Commercial Court decides actions of Pirates not an “in-transit loss” The case of Trafigura Beheer BV v Navigazione Montanari Spa involved a claim by Charterers against Owners for “in-transit loss” of part of a cargo of premium motor oil. Upon arrival at port in Lagos the vessel was instructed by Charterers to proceed to a position south-west of the port. Whilst awaiting further orders, the vessel was attacked by armed pirates who took control of the vessel and arranged for a ship-toship transfer of approximately 5,300MT of the cargo before releasing the vessel. The charterparty contained an in-transit loss clause (ITL Clause) which stated that Owners would be responsible for the full amount of any in-transit loss exceeding 0.5%. The charterparty defined in-transit loss as “the difference between net vessel volumes after loading at the loading port and before unloading at the discharge port”. Charterers claimed damages of USD 5 mm from Owners for the lost cargo. The Court had to decide whether the pirates’ removal of the cargo constituted “in-transit loss” under the ITL Clause. Charterers argued that because there was a clear and obvious difference between the net vessel volume after loading and the net vessel volume before unloading at the discharge port, there had been in-transit loss under the ITL Clause for which Owners should be responsible. Owners responded that in-transit loss in an ITL Clause of this nature only covered loss occurring as a direct result of the transit, and for reasons internal to the transit, during the course of a routine, ordinary voyage. The Court held that the ITL Clause did not provide an exhaustive definition of what constituted in-transit loss but merely defined how the amount of any in-transit loss was to be determined. The Court acknowledged that this created uncertainty. However, as the ITL Clause did not specify the types of loss covered by the phrase “in-transit loss”, the Court would give the expression its natural business meaning, which was loss incidental to the carriage of oil products (for example short delivery caused by quantity calculation errors, remnants of cargo left on board or loss through evaporation) rather than any loss that arose because of the actions of pirates. The Court acknowledged that it would be difficult in certain cases to ascertain whether particular losses fell within the expression “in-transit loss” but maintained that loss from the pirates’ activities was plainly not covered by the expression. 15 The United States Court of Appeals rules that an insurer who makes voluntary payments under LHWCA to an injured employee on behalf of the employer is entitled to recover these payments from the employee’s settlement of a Jones Act claim. A worker was injured as a result of a fall while working as a crane operator on a deck barge. The employer’s insurer voluntarily paid the injured worker in indemnity and medical benefits under the Longshore and Harbor Workers Compensation Act (LHWCA). The injured worker then filed suit against his employer alleging seaman status and seeking damages under the Jones Act. As a result, the insurer stopped the LHWCA payments and filed a motion to intervene in the Jones Act suit. The worker and employer eventually agreed upon a settlement and the Court denied the LHWCA insurer’s motion to intervene holding that they had no right to subrogation as to the settlement proceeds, and therefore, no interest in the property. On appeal, the Appeals Court held that an insurer acquires a subrogation right on an employee’s Jones Act recovery for the amount of the LHWCA benefits paid, and reversed the original decision, stating that a worker who succeeds in a Jones Act claim is necessarily a seaman, and therefore not entitled to LHWCA benefits and as such it would be particularly unfair to deny the insurer the right to recover the benefits it has paid in such a situation. 16 Court of Appeal decision in the Atlantic Confidence case (see our January 2014 newsletter) A vessel owners’ P&I Club had sought to constitute a limitation fund in England by providing a Club Letter of Undertaking (LOU), rather than paying the required amount into court, as is usually done. While expressing some understanding of the owners’ and the Club’s position, the High Court judge held that, as a matter of English law, a limitation fund could not be constituted by way of a guarantee. The only means of constituting a limitation fund was cash payment into court of the limitation amount. By a unanimous decision, the Court of Appeal held that English law does allow a limitation fund to be constituted by way of a guarantee, including a P&I Club LOU. The Appeal Court commented: The issue is one of considerable importance to the shipping industry, including P&I Clubs and others who provide insurance and reinsurance in respect of maritime claims. Because of concerns that had arisen in shipping circles about the consequences of the judgment, this court was provided with a helpful letter from the International Group of “ P&I Clubs. This letter explained the financial and practical benefits both for P&I Clubs, and for those who need to constitute limitation funds, of the use of guarantees, as opposed to cash deposits paid into court. The letter also informed the court that numerous countries throughout the world, including states which are parties to the 1976 Convention, and states which are not, readily accept Club LOUs as an acceptable method of constituting limitation funds.” The Appeal Court further commented that the error in the original court’s analysis was to take as a starting point the proposition that they would have expected to find clear wording permitting the provision of a guarantee, rather than focusing on the meaning and effect of Article 11.2 of the limitation Convention. Whereas the correct starting point of the analysis was the construction of Article 11.2 – as incorporated into United Kingdom law by the 1995 Act – in its proper context and specifically to ask whether the Convention itself contains any wording or provision for a fund to be constituted by a guarantee, rather than to ask if there is any express provision in English law which allows this. The Court of Appeal stated that the Convention was not drafted by English draftsmen, with English law in mind, instead, it was a convention drafted with input from different interested state parties, with the purpose of having international application, and intended to be applicable in a uniform way across legal boundaries. Therefore, it was important to adopt a broad, purposive, interpretation of its terms. The task of the court was to construe the Convention as it stands without any English law preconceptions. Looked at in this way, the Appeal Court found that the provisions of Article 11.2 were clear. There was an “either/or” option as between payment into court or provision of a guarantee to constitute the limitation fund. The only restrictions as concerned provisions of a guarantee were that it had to be acceptable under the legislation of the State Party and considered to be adequate by the Court. A P&I Club LOU offered by a member of the International Group would arguably be both acceptable and adequate, but it would be for the Court in the case at hand to consider. 17 The U.S. Supreme Court rules on “What is a Vessel” The U.S. Supreme Court has ruled (in Lozman v. City of Riviera Beach, Florida) that a permanently moored houseboat was not a vessel because “a reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water”. A maritime lien was sought against the houseboat for unpaid dockage fees and the legal issue presented was whether the houseboat was a “vessel” subject to federal maritime law. Prior to this decision, U.S. federal appeals courts had applied different tests to determine “what is a vessel”, ranging from looking at the intent of the owner of the watercraft to a more literal “anything that floats” approach. The Court determined that the statutory phrase “capable of being used ... as a means of transportation on water” meant that in order to be a “vessel”, the watercraft had to have “practical possibilities” of transportation on water, and not merely “theoretical ones”. This decision could have a far-reaching impact, particularly for the offshore industry, as, disputes or casualties that involve barges, work platforms, offshore drilling/production units and floating casinos/restaurants etc. may now hinge on whether they are “vessels”. Of particular significance is that limitation of liability under maritime conventions is only applicable to vessels. Also under the Oil Pollution Act of 1990 (OPA 90) limitation of liability for a vessel is based on a “dollars per ton” formula (but no less than USD 23,496,000), whereas the limitation amount for nonvessels is USD 75 mm. Equally, whether a claimant seeking recovery of damages for personal injuries sustained on board a floating structure qualifies as a “Jones Act” seaman also requires that the watercraft be a “vessel”. Since this case early last year, the U.S. courts have held that: a tension leg platform in the Gulf of Mexico did not qualify as a vessel, nor did a floating club-house, neither therefore being subject to the Jones Act; a floating production facility moored approximately 65 miles offshore Louisiana in a production field was not a vessel and therefore no in rem claim could be made against it; and a floating dry-dock was not a vessel and therefore not under admiralty jurisdiction; all using the Lozman test of “a reasonable observer, looking to the physical characteristics and activities”. ‘En banc’ hearing decision on whether punitive damages can be recovered by a seaman in respect of an unseaworthy vessel In our April newsletter we reported on the U.S. Fifth Circuit’ sitting ‘en banc’ on the issue of whether seamen can recover punitive damages for their vessel owner/employer’s wilful and wanton breach of its general maritime law duty to provide a seaworthy vessel (‘en banc’ being the entire fifth circuit bench rather than a panel selected from the circuit). At the original trial the rig owner/ employer moved to dismiss the claims for punitive damages by arguing that punitive damages were not an available remedy for unseaworthiness or Jones Act negligence. The Magistrate Judge agreed and dismissed all claims for punitive damages. The rig crewmembers contended that punitive damages remain available as a remedy for the general maritime law cause of action for unseaworthiness because, like maintenance and cure, unseaworthiness was established as a cause of action before Congress passed the Jones Act. 18 The Fifth Circuit Appeal Court selected panel concluded that punitive damages did remain available to seamen as a remedy for the general maritime law claims of unseaworthiness. The rig owners successfully petitioned for an en banc hearing, at which arguments were made that the Jones Act was not intended to preclude preexisting remedies such as punitive damages for unseaworthiness caused by the wilful and wanton conduct of the vessel owner. The rig owner’s counsel argued that previous U.S. Supreme Court jurisprudence, namely, Miles v. Apex Marine Corp., 498 U.S. 19 (1990) specifically limited the types of remedies that are recoverable to only pecuniary damages under the Jones Act and precluded non-pecuniary damages such as punitive damages. Expanded ‘occurrence’ definition did not include improper workmanship The terms of an owner-controlled construction insurance policy defined ‘occurrence’ as “an accident, event, or happening, including continuous or repeated exposure to substantially the same general harmful conditions”. A New York appellate court held that this arguably expanded definition was still not sufficiently broad to encompass deficiencies and improper workmanship. The appellate court (in the case of National Union Fire Ins. Co. v. Turner Construction), decided that the addition of ‘happening’ or ‘event’ to the definition of ‘occurrence’ does not change the fact that fortuity is still an essential consideration when determining whether there is coverage under such a policy for faulty workmanship that does not involve fortuity. The court also declined to follow case law in other jurisdictions that has supported a broader scope of insurance coverage. Construing the policy under New Jersey law (per the contract), the court refused to expand the definition of occurrence to cover what by the court’s account was a failure to perform the work as designed. 19 LPL MARINE TEAM EXPANSION LPL have strengthened our Marine Team by the addition of six individuals joining from Besso Limited. The combined team, led by David Smith, is now twelve strong and has the knowledge and experience to handle all types of Marine business and in particular: • Hull & Machinery and Hull interests including War risks and Port risks • Loss of Hire/Earnings • Protection and Indemnity (Mutual or Fixed premium) • General Marine Liabilities • Charterers Liability • Ship repairers, Stevedores Liabilities • Builders and Conversion risks • Specialty Salvage and Wreck Removal Operations. • Terminals, Ports and other Marine installations • Specialist Marine risks (e.g. Mortgagees Interest, Refund Guarantees, Drug Seize). • Tows • Underwater equipment/remotely operated vehicles For further details of our Marine capabilities please contact your usual LPL Account Executive or David Smith ([email protected]) 20 atlaNtic wiNdstorM seasoN uPdate This year’s Atlantic Named Windstorm season activity is predicted to spawn below the long term average number of hurricanes and intense hurricanes (Category 3 and above). Colorado State University have stated that it appears quite likely that an El Niño of at least moderate strength will develop and in addition, the tropical Atlantic has anomalously cooled over the past few months, meaning they anticipate a below-average probability for major hurricanes making landfall along the United States coastline and in the Caribbean. Whilst predictions of lower numbers of storms can be a useful guide the potential for significant damage to offshore oil and gas infrastructure in the Gulf of Mexico, it is worth noting that 1992 was a year of very low tropical storm activity, producing only six named storms, however, one of those storms was Hurricane Andrew which caused devastation as a Category 5 hurricane. El Niño causes stronger wind shear, which reduces the number and intensity of tropical storms and hurricanes. El Niño can also strengthen the trade winds and increase the atmospheric stability across the tropical Atlantic, making it more difficult for cloud systems developing off of Africa to intensify into tropical storms. Historical data indicates fewer storms form in these conditions. The latest forecasts from both Colorado State University and Tropical Storm Risk, plotted against the 64 year average and actual activity to date are shown in the following graph. 12 Number of Storms Tropical Storm Risk (TSR) point to the July-September trade wind speed over the Caribbean and tropical North Atlantic, and the forecast August-September 2014 sea surface temperatures in the tropical North Atlantic. The former influences cyclonic vorticity (the spinning up of storms) in the main hurricane track region, while the latter provides heat and moisture to power incipient storms in the main track region. At present, TSR anticipates both predictors to have a moderate supressing effect on activity. 2014 Atlantic Hurricane Season 11 10 11 10 Tropical Storms 6 6 6 5 4 4 Hurricanes 2 2 Intense Hurricanes Tropical Storm Risk 3 33 1 Colorado University 64 Year Norm 21 oil iNsuraNce liMited (oil) uPdate Oil Insurance Limited (OIL) has surveyed their membership so their Board and management can establish the demand for a higher limit offering from OIL. OIL currently offers one of the largest single blocks of capacity offered by any insurer worldwide at USD 300 mm per member (with a per event limitation over all members of USD 900 mm), but have recognised that many members still have the need to purchase excess limits from the commercial market, and as such there may be interest from members in the possibility of OIL increasing their limit. Members were asked whether they were likely to want to purchase higher limits from OIL if they were offered a range of different limits up to a maximum of USD 500 mm (with the per event limit being equal to three times the occurrence limit). About OIL OIL is a Bermuda based Energy Industry Mutual who insures over USD 2 trn global energy assets for more than fifty members with property limits up to USD 300 mm totalling more than USD 11 bn in total A- rated property capacity. Members are medium to large sized public and private energy companies with at least USD 1 bn in physical property assets and an investment grade rating or equivalent. Products offered include Property (Physical Damage), Windstorm, Non Gradual Pollution, Control of Well, Terrorism, Construction and Cargo. The industry sectors that OIL protects include Offshore and Onshore Exploration & Production, Refining and Marketing, Petrochemicals, Mining, Pipelines, Electric Utilities and other related energy business sectors. 22 23 focus oN oPeratiNg iN the sahal aNd North africa Oil production in the Sahara and North Africa has experienced considerable turmoil since the Arab Spring. In many territories oil production has fallen, international oil companies have made a loss and traders and off-takers have left empty-handed. Despite the obstacles, the region has an abundance of oil wealth, much of it light and sweet, making it valuable and easy to access. The principal challenge faced by these oil-producing countries is the absence of strong and capable governments to carry out the political and economic reforms necessary in a postrevolutionary era and to effectively create a business climate receptive to foreign investment. Weak institutions, rampant corruption and lack of fixed and coherent legislation can limit the operational appetite of international oil companies, including service providers. Even in circumstances where significant political upheaval does not lead to the destruction of infrastructure assets, the resumption of oil exports can be complicated by political factors. The Libyan oil and gas sector is the victim of a progressive campaign aimed at halting exports by shutting down terminals. In October 2013, the Western Mellitah export terminal and the Sahara oil field which it serves were crippled by protest movements 24 organised by non-Arab minority groups demanding cultural and linguistic rights. The Es Sider, Ras Lanuf and Zeuitina oil terminals in the East under militia control for nearly six months, leading to a fall in export volumes of over 50%. The impact is severe with the government drawing down on USD 13 bn in reserves to meet the shortfalls in revenue caused by the stoppages. In contrast, Algeria’s oil output has remained relatively stable as the government staved off demands for political reform through the granting of economic and social concessions. However in October of 2013 Algeria’s oil production fell to 1.12 million barrels a day, the lowest level since 2003, as security concerns following the In Amenas attack in January, (made possible because members of Al-Mulathameen, who perpetrated the siege, travelled to Algeria via Libya’s now porous borders), corruption probes and delays in granting exploration licenses constrained its operational capacity and potential. Perhaps one of the principal reasons why conflict is so prevalent in the region is that many of the combating factions at play have a greater interest in sustaining the climate of conflict than putting an end to it. ‘Winning’ is therefore no longer the ultimate political objective because these factions seek to reap the benefits of a situation defined by lawlessness and impunity. Often this involves looting civilian areas, informal ‘taxing’, protection rackets and concentrating guerrilla operations in resource-abundant areas that are easily extractable. Insecurity and the high cost of doing business also encourage actors to seek quick returns from activities that demand minimal investment, such as taxing trade and controlling the flow of certain primary commodities. Despite regional political disruption, opportunities remain and now could ironically be the ideal time for international oil companies (IOC) to move in. Many governments in the region are still young, weak and politically fragmented and may offer concession agreements that are more favourable to IOC’s in order to kick-start the economy. Chinese and Russian oil companies have proven particularly effective in thriving in these challenging business environments where they have fewer constraints than their Western counterparts in paying officials or turning a blind eye when it comes to issues of transparency and accountability. The Chinese presence in Sudan, Libya (now accounting for 10% of Libya’s oil output) and more recently Niger demonstrates the importance of these players within the hydrocarbon market. The China National Petroleum 25 Corporation (CNPC) has signed an agreement valued at USD 5 bn to extract oil at the Agadem Block in the Niger region. The agreement includes the construction of a 2,000-kilometer pipeline and a refinery capable of processing 20,000 barrels per day. North Africa and the Sahel have considerable scope for growth across the petroleum sector, with much of the oil reserves there having yet to be uncovered, and the supporting infrastructure. New licenses for offshore and onshore exploration and production zones are being drafted as new governments in the region attempt to solidify their hold on power and the subsequent colossal oil industry that comes with it. Risks in the petroleum sector that cannot be managed can often be insured and investments are being given a boost by the willingness of the credit & Political Risk market to underwrite some risks. Capacity in this class of business increased during every year of the financial crisis and the Arab Spring, with claims paid during this further reinforcing confidence in the effectiveness of the product. With the market offering greater capacity than ever before, support for wellstructured investments in these territories is available. This article was written by the Credit & Political Risk Advisory team of JLT Specialty Limited for the Petroleum Review Magazine April 2014 As one of the world’s strongest and most successful credit and political risk insurance brokers, JLT handle insurance capacity for their clients of approximately USD 60 bn at any one time. Through a relationship driven, consultative approach they use a systematic methodology to quantify, prioritise and minimise your company’s political risk and trade credit exposures. 26 FOCUS ON SPECIAL ARTICLES ARCHIVE The following is a list of ‘Focus on’ and selected Special Articles since the formation of LPL in 2005. If you would like any back copies please visit our website www.lloydandpartners.com/publications or email [email protected] April 2014 iCargo/Floating Moring Assessments/OIL Update January 2014 ‘Focus on’ Insurance Linked Securities/OIL Update October 2013 ‘Focus on’ Renewable Energy Projects in South Africa/Political Risks in East Africa/OIL Update July 2013` ‘Focus on’ Political Risk Facing Oil & Gas Companies/Will subsea Technology render platforms a thing of the past/OIL Update April 2013 ‘Focus on’ Nordic Marine Insurance Plan of 2013/OIL Update January 2013 ‘Focus on’ Expropriation Risk for Foreign Investors October 2012 ‘Focus on’ Bermuda Casualty market/Political Risks – Water Scarcity: the Real Liquidity Crisis July 2012` ‘Focus on Marine Hull Values – Big Ships, Even Bigger Problems?/Political Risks – Post Conflict Countries (Iraq and Kurdistan) April 2012 ‘Focus on’ Oil Insurance Limited/Political Risks in Latin America January 2012 ‘Focus on’ Managing Risks in Conflict and Post-Conflict Countries October 2011 ‘Focus on’ Lloyd’s 2012 Energy Liability Business Plans/Political Risks – The ‘Arab Spring’ July 2011` ‘Focus on’ Managing Political Risks April 2011 ‘Focus on’ Well Examination and Assurance/US Oil Spill Legislation update January 2011 ‘Focus on’ 2010 Atlantic Hurricane Season Review/2011 Forecast October 2010 ‘Focus on’ Directors and Offices Insurance for Energy Companies/Oil Spill Legislation update July 2010` ‘Focus on’ “The New Asbestos?”/London Market Joint Liability Committee Update April 2010 ‘Focus on’ Lloyd’s Three Year Plan/Capital market Developments January 2010 ‘Focus on’ How the Cargo market can add valued to an Energy Insured October 2009 ‘Focus on’ The American Clean Energy and Security Act/OIL Update 27 July 2009 ‘Focus on’: Lloyd's/P&I Clubs Piracy update April 2009 ‘Focus on’: Captive Insurance Developments/New Lloyd’s Gulf of Mexico reporting requirements/EU ‘Solvency II’ directive/ Capital Market Solutions/Catastrophe Modelling January 2009 ‘Focus on’: Capital Market Solutions/update on piracy October 2008 ‘Focus on’: Piracy/Bunkers Convention/Lloyd’s Open Form Salvage Contract/Piper Alpha Disaster 20 Year Anniversary July 2008 ‘Focus on’: IUMI Statistics/‘E Policies’ April 2008 ‘Focus on’: Biofuels as an Alternative Energy source/London Market Reform Update/Revised Offshore Gulf of Mexico Regulations January 2008 ‘Focus on’: The Mining Industry Insurance market/US Terrorism Insurance update/World Risk Review/European Commission inquiry into Business Insurance October 2007 ‘Focus on’: New Marine Builders Risk Clauses/London market Reform July 2007 ‘Focus on’: 2007 Atlantic Hurricane Season/U.K. Insurance Law Reform April 2007 ‘Focus on’: Kidnap & Ransom Insurance/U.K. Insurance Law Reform/Marine Policy Valuations January 2007 ‘Focus on’: Avoiding Insurance disputes/Marine Insurance Act reaches 100 years of age/U.K. Law Commission review of Insurance laws October 2006 ‘Focus on’: Control of Well Insurance July 2006 ‘Focus on’: Alternative solutions to replace or complement the commercial market insurance product/Climate Change – what risks does it pose to the Insurance market? April 2006 ‘Focus on’: World Economic Forum 2006/Contract Certainty at Inception/Under Insurance – the enemy within January 2006 ‘Focus on’: Cyber Security and the Energy/Power Industry October 2005 ‘Focus on’: Oil Spill incidents update July 2005 ‘Focus on’: The benefits of appointing an independent claims consultant/New Standard Loss of Production wording April 2005 ‘Focus on’: Structured Insurance solutions for Energy companies January 2005 ‘Focus on’: Renewable Energy 28 aBout LLOYD & PARTNERS STRUCTURE & SCALE The Lloyd & Partners Group was established in 2005. Developing and sustaining market leadership in our core sectors, we rapidly grew to become one of the largest wholesale insurance brokers of our kind in the world. We place in excess of USD 1.75 bn of premium into the international insurance and reinsurance markets. Our clients benefit from our scale, our collaborative approach and our specialist knowledge. These are the key features of the service we offer, and it’s these features that make us a formidable force in the placement of global wholesale accounts. We provide wholesale services for JLT-owned operations and benefit from being part of the JLT Group which provides us with access to wider skills and products, including the JLT International Network. OUR VALUES We love to win. Some say we’re tough. We’re certainly a force to be reckoned with. One thing’s for certain: we’re dedicated to succeeding together. We are collaborative. We’re determined to succeed together. We share a unified focus, a collegial way of working, and an unrelenting determination. We believe that a truly great team can realise even the most ambitious vision. Our clients benefit from our scale, our collaborative approach and our specialist knowledge. These are the key features of the service we offer, and it's these features that make us a formidable force in the placement of global wholesale accounts. Our ‘Client First' approach means we act in your best interests and bring the best of our capabilities to our clients. These are our values. Tenacity & Intelligence Unity & Focus Strength & Determination We find challenge irresistible. Where others see obstacles, we see opportunity. We are curious. Innovative. Clever. We always find the best solution. We are focused. We work collaboratively, as a unified force. We have discipline. Dexterity. A hunger to win. We are collegial. We are a great team. We push harder – for ourselves and for our clients. We are resolved to go further, work smarter, do whatever it takes. In short, we have an unrelenting commitment to achieving success. Positivity | Energy | Dynamism Clarity | Collegial | Collaboration Dedication | Commitment | Drive 29 SECTORS & TEAMS Our teams deliver market-leading solutions across all the sectors we work within. We achieve this with deep specialist knowledge, a unified focus and our strongly collegial approach. We operate in the following sectors offering in-depth expertise and an extensive range of insurance solutions: • Energy & Marine • Property • Cargo, Specie & Fine Art • Programmes • Healthcare • Professional Lines • International Casualty A TRULY GREAT TEAM CAN REALISE EVEN THE MOST AMBITIOUS VISION. LIKE ALL TRULY GREAT TEAMS, WE FIND CHALLENGE IRRESISTIBLE. LLOYD & PARTNERS IS A LEADING GLOBAL PROVIDER OF SPECIALIST INSURANCE SERVICES. PUT SIMPLY, WE ARE A FORCE TO BE RECKONED WITH – AND WE ARE ON YOUR SIDE. WELCOME TO LLOYD & PARTNERS. WE HAVE AN UNRIVALLED TENACITY AND AN UNRELENTING COMMITMENT TO ACHIEVING SUCCESS. This newsletter is compiled and published for the benefit of clients of Lloyd & Partners Limited. It is intended only to highlight general issues relating to the subject matter which may be of interest and does not necessarily deal with every important topic nor cover every aspect of the topics with which it deals. It is not designed to provide specific advice on the subject matter. Views and opinions expressed in this newsletter are those of Lloyd & Partners Limited unless specifically stated otherwise. Whilst every effort has been made to ensure the accuracy of the content of this newsletter, neither Lloyd & Partners Limited nor its parent or affiliated or subsidiary companies accept any responsibility for any error, omission or Registered Office: The St Botolph Building, 138 Houndsditch, London, EC3A 7AW Tel: +44 (0) 20 7466 6500 Fax: +44 (0) 20 7466 6565 Registered in England No. 02005745 VAT No. 244 2321 96 www.lloydandpartners.com A Jardine Lloyd Thompson Group company. Lloyd’s Broker. A company incorporated with liability limited by shares. Authorised and regulated by the Financial Conduct Authority. © Juy 2014 Lloyd & Partners Limited. All rights reserved. 268395 YOU ARE OUR FOCUS AND WE ARE YOUR TEAM. deficiency. If you intend to take any action or make any decision on the basis of the content of this newsletter, you should first seek specific professional advice and verify its content. If you are interested in utilising the services LPL provide you may be required by your local regulatory requirements to obtain the services of a local insurance intermediary in your territory to export insurance and (re)insurance to us unless you have an exemption and should take advice in this regard. Please refer to our website for all recent publications: http://www.lloydandpartners.com/publications/
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