Thursday, March 28, 2019

Is This Longshore….?


Since sundown today, I have had three emails “Is this Longshore….?”  In each case, the answer was probably no.  This was an above average evening for such emails, but there are not too many days where there is not at least one.  Whilst individual subjects vary, the result is the same.   When we offer our opinion that something is probably NOT Longshore why should anyone purchase the coverage (or why should any agent recommend the coverage)?

#1 Defense Costs
Unlike a GL policy, in the WC world, no coverage = no defense. Regardless of whether we think the employee falls under Longshore, they can bring that claim. It is easy to spend six figures on legal fees even when we win!
To add Longshore on an IF ANY basis to most WC policies costs less than $250 and that provides unlimited defense costs coverage! What a bargain!

#2 Rogue Verdict
Longshore is constantly expanding, and what we consider not Longshore today, might become so in 3 years when today’s injury goes to trial. Or worse, a judge that just wants to find someone to pay!

#3 Uninsured Longshore Subcontractor
Many risks who might be excluded themselves, such as Marinas or Municipalities, hire Contractors or Subcontractors who work for them who have Longshore exposure but do not buy the right coverage. Under the Longshore act, that passes directly back to the principal, even though the principal might be excluded themselves! They need Longshore coverage! Even more obscure is the subcontractor who used a PEO/Leasing company for their employees but neglects to “name” a subset of their employees.

#4 E&O prevention
No further words needed.

Even when a risk is probably not Longshore, if the exposure is borderline, it's just not worth the risk of not covering Longshore (or Admiralty).


Ian Greenway



Friday, February 15, 2019

CMIP and the National Alliance

“I’m Late, I’m Late for a Very Important Date” is one of my earliest memories – a quote from Lewis Carroll’s book Alice’s Adventures in Wonderland.   It was spoken by the White Rabbit now made famous by Disney.

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As I write this I feel very much like the White Rabbit in finally being able to formally release the two CMIP seminars for April 9th & 10th at our favorite Renaissance Hotel in International Plaza in Tampa. 

We will be offering two concurrent seminars:
                         
Insuring Vessels Owners & Operators and
CMIP Graduate Seminar

To register or for more information please go to http://iimis.org/Schedule/CMIPSeminarTampa

There is, what I trust you will agree, a good reason for the delay and that has been the now completed agreement with The National Alliance to take over the administration of CMIP for us.   We will be sending out a detailed announcement shortly, but this gives us an incredible opportunity to use their expertise in running top-class insurance seminars, along with the specialty knowledge of our faculty, to build on 12 years of CMIP and expand that further.  More on that later.

What it means for you is IF you are a CIC, CRM or CPRM you can earn your annual update credits for any of those designations at our CMIP seminars from now forward.

In addition, down the road, we will be introducing other methods of training.

More detail on these exciting developments for CMIP and CIC’s future will follow.


Ian Greenway

Monday, January 7, 2019

The Importance of On-Hire Surveys for Bareboat Charters

We cover a great number of risks where the Insured bareboat charters the vessel from the vessel owner.  Typically, most carriers require on and off hire surveys, but they make sense even when not required.

A bareboat charter, sometimes referred to as a demise charter, is a type of chartering or hiring of any kind of vessel, with no crew.  It is up to the company taking possession of the vessel to operate and care for the vessel.  It can be compared to renting a car from a rental agency, such as Hertz or Avis. It is up to the party in possession to properly operate and ensure the property being given to them is in good condition.


An on-hire survey does not need to be all that complicated. It can be as simple as walking around the vessel with the owner at the time of hand off, completing a checklist, and taking pictures of existing damage. A professional surveyor might be useful and helpful as the vessel value or complexity increases. 

It is also, very useful to have an off-hire survey when the charter is complete to document the condition the vessel is returned.  Having an on-hire and off-hire survey can simply show the difference in the condition that occurred for the duration of the charter.  With this, any disputes should be easily remedied as there will be an abundance of proof to justify or disprove any arguments in changes in condition.

The survey becomes most important when considering deductibles.  When there are six separate “dings” on the surface of a barge, was that six separate occurrences, therefore six different deductibles? Or was it a single occurrence and just a single deductible?  Having a clear plan when the vessel is hired is a great way to ease the issues when the claim comes.

Whether it is required or optional, it is always in the best interest of the Insured to have a clear document of the condition of the vessel at time of hire, so when the vessel is returned in the same condition, everyone is happy.



Author
Mark Greenway
Director of London Market and Special Placement


   

Tuesday, February 6, 2018

Do you have enough limit on your Luxury Yacht Policies?

An unnamed woman, who was sexually assaulted on a luxury yacht docked in Fort Lauderdale, was awarded nearly $70.6 million in damages after she sued the yacht’s owner.

The incident took place on board the Endless Summer, a 130-foot vessel, registered in the Marshall Islands, that was docked in Fort Lauderdale, on Feb. 25, 2015.

The woman worked as a stewardess for the company that owned the yacht, Island Girl Ltd.

Rafael Dowgwillowicz-Nowicki was charged with sexual battery.  In addition to the charge, the woman reported he entered her cabin drunk and threatened to kill her. He pleaded guilty in December 2016 and served a two-year sentence. By then he had already served most of his sentence. He was later deported.

The lawsuit alleged that Island Girl Ltd failed to provide proper security for the victim. The victim, the captain, and Dowgwillowicz-Nowicki were required to stay on board the Endless Summer overnight.  According to the lawsuit, the victim was not issued a walkie-talkie to alert anyone on board that something was wrong.

“She was screaming for her life at the top of her lungs,” said her lawyer, “…for over an hour before she escaped and got the captain’s attention.”

The jury awarded the woman $70,000 in lost wages, $4.2 million in lost future earnings and $66 million for pain and suffering. She was also awarded $290,050 in past and future medical expenses.

Monday, January 29, 2018

Is a Worker on an Island Longshore?

One of the most common questions we receive in our office is:

“Is a worker who works in a non-maritime job on an island and commutes by any form of boat eligible for Longshore benefits?”

First, we have to give the standard disclaimer that we are not attorneys, so what I am about to offer is not a legal opinion but an “insurance” opinion and that it assumes that the location is in “navigable” waters, i.e. not on a landlocked lake wholly within a single state (see the Longshore situs video if you need more information on that).

The first part of the answer has nothing to do with Longshore.  Any employees who operate a vessel, be it a 16ft. skiff, a 50ft ferry or acts as a crewman will typically leapfrog over Longshore straight into Jones Act and the other admiralty coverages and will require coverage in the form of Maritime Employers Liability (MEL) or the crew coverage provided by a Protection & Indemnity (P&I) policy, dependent on the details of the operation.

But, if the employee does not operate the vessel or act as a crewman, the good news is that I have never seen employees who simply “rides” the vessel as a passenger ever be held as either Longshore or Jones Act/Admiralty.  But, there are Two big HOWEVERS coming up here.

·                     If they load product or supplies aboard the vessel, they would be “loading or unloading” the vessel and thus Longshore.
·                     If they help catch a line or tie up the boat, they could be Longshore.

Even if they do neither of those, that does not stop a smart attorney from filing a Longshore claim, and no Longshore coverage also equals no Longshore defense.  Even if the employer wins, it can still cost them well into 6 figures to win in federal court.

It is unlikely an injured employee will bring an Admiralty or Longshore claim for a minor injury, but it will come from the major carrier end, probably soft tissue injury.   You should be able to add Longshore on an “If Anybasis or allocate a small amount of payroll for a small cost. Therefore, allowing you to obtain Longshore coverage and also an unlimited defense cost policy.  This not only protects the client properly but also provides the agent/broker with vital E&O protection.

The vessel P&I policy should also be extended to cover the liability for any employees aboard, including the crew if not already covered, or a MEL policy purchased again to provide necessary defense and E&O protection.


For more information on MEL policies and what they cover see 
MEL Myth or Mystery? and Protection & Indemnity.

Tuesday, January 2, 2018

P&I Club preparing for Brexit

The North Protection & Indemnity Club is preparing for post-Brexit possible fallout by creating a European Union subsidiary in Dublin, according to their press release at the end of November. 

The North fear that Britain may lose access to the EU single market after Brexit. As a result, they and many other British-based insurers, are making contingency plans in case they lose "passporting rights" that allow U.K. financial service firms to trade in Europe without the need for locally-regulated entities.

The North is one of the first to announce the location for an EU subsidiary and it is expected to start implementing its contingency plans in the first quarter of 2018, according to their release.

The firm said that due to "regulatory uncertainty and a realistic prospect," passporting rights could be lost as early as March 2019 upon the current two-year Article 50 expiration. Therefore, its board agreed that a subsidiary insurance company should be established in Ireland.

“The decision to locate the subsidiary in Ireland follows an extensive horizon-scanning exercise during which a number of possible locations were considered,” said The North. They cited the regulatory, legal and taxation framework, a mature regulatory system, a strong talent pool, easy travel connections and lack of language barriers as the motivation for their choice of Dublin.


Monday, October 23, 2017

Injuries sustained in suicide attempt can be compensable under Longshore

A federal appeals court ruled a man who shot himself due to anguish over injuries suffered on the job is entitled to compensation for the injuries he sustained during his suicide attempt.

William Kealoha was a ship laborer for Hawaii-based Leeward Marine Inc. when he fell between 25 and 50 feet from a barge to a dry dock   He suffered blunt trauma to his head, chest and abdomen, along with a fractured rib and shoulder blade, and knee and back pain. 

2 years later he shot himself in the head, causing severe head injuries, in a suicide attempt that he claimed was a result of his fall and litigation over that claim. A psychiatrist who testified on his behalf said Mr. Kealoha suffered from major depressive disorder due to multiple traumas and chronic pain from the fall and stress from the litigation, which caused depression, anger and anxiety, and worsened his already poor impulse control.  Mr. Kealoha sought workers comp benefits for the injuries he sustained during his suicide attempt.

In an unpublished decision issued by the 9th U.S. Circuit Court of Appeals in San Francisco., a three-judge panel of the appeals court ruled that the board correctly affirmed the administrative law judge’s decision to award benefits to Mr. Kealoha and denied the motion to review, saying recovery under the Longshore Act is appropriate.