有鉴于船舶通过印度洋及亚丁湾面临的高海盗风险，越来越多的船东通过购买海盗赎金险及租期损失险来实现他们的风险管理。然而，租约的标准条款中，并未特别约定有关保险的事项，实践中往往有关于保费分配的争议产生。
实践中，很多船东都希望并入类似BIMCO海盗条款（在期租下，将保费实质上分配给租家支付）的标准条款，来确定保费的分配。
然而，即使BIMCO海盗条款并入到了租约中，仍然有关于保费分配的争议产生。租家常常会依据BIMCO在2009年12月公布的公告，抗辩海盗赎金险及租期损失险的保费不是由租家承担，因为公告本身说明，将海盗赎金险囊括到条款中规定的租家需支付的”额外保险”的费用，”从来不是起草组的原意”。
BIMCO海盗条款是在2009年起草的，自此之后的两年中，海盗风险急剧变化。随着袭击数量的增加，索要赎金的高额化以及扩大的地理攻击范围，海盗风险已经达到了史上最高的水平。由于形势上的变化，BIMCO海盗条款不能再单纯地以公告中所述的理解。
BIMCO的公告本身已经说明了将海盗赎金险排除的原因是因为海盗风险会在船壳险及战争险下承保。然而，随着联合战争委员会在2010年12月16日，由于印度洋及红海南部不断增长的海盗风险，决定将这些地区列为战区之后，形势发生了很大的变化，因为海盗袭击不再意味着单纯地抢劫，而更多的会以索要大额赎金终结。因此，一旦船舶被劫持，承保海盗风险的船壳险或战争险保险人将会面临通过共同海损分摊而向其追索赎金的潜在大额索赔。战争险保险人就会征收高额的额外保费以此反映他们所承担的风险。这也是为什么在购买了海盗赎金险后，战争险的额外保费将会有大的折扣。
“海盗赎金险更多的是一种附加的保险，而不是一种传统上船东会购买的的保险”，BIMCO公告中所述的内容跟现有的实践已经不相适宜。由于战争险保险人在购买海盗赎金险之后会调整其费率，海盗赎金险已经不能被看做是一种”附加的”保险，而是一种本质上与战争险并行的保险，并跟战争险一样重要。
为了避免任何潜在的关于保费分配的争议产生，我们高度建议船东如果并入BIMCO海盗条款，应在租约中明确规定额外保险包括哪些部分，而这本质上将是船东与租家之间商业谈判的结果。
如有任何问题，欢迎与我们联系。
The costs of K&R and piracy Loss of Hire insurance, should these be borne by owners or charterers
As the high piracy risks exposed to shipowners of transiting Indian Ocean and Gulf of Aden, more and more shipowners are purchasing K&R and piracy Loss of Hire insurance to achieve their risks management. However, as standard form charterparties typically do not address the issue, there are always disputes arising from the allocation of the insurance premium.
In practice, many shipowners would like to incorporate standard clauses, like the BIMCO Piracy Clause which essentially allocate the costs to charterers in a time-charter context, to firm the allocation of the insurance premium.
However, we still have seen disputes in respect of the allocation of the insurance premium arising when BIMCO Piracy Clause is incorporated. Charterers may refer to the bulletin published by BIMCO in December, 2009 to argue that the premium for K&R and piracy Loss of Hire insurance is not on charterer’s account as it is stated “this was never the intention of the drafting group” to include K&R insurance packages into the “additional insurance” which is provided should be on charterer’s account.
BIMCO Piracy Clause is drafted in 2009 and since then the piracy risks have been changed dramatically in these two years. With the increased number of attacks, higher ransom demands and expansion of the geographical scope of attacks, the piracy risks have been put to record high in these days. Due to the changing situation, the BIMCO Piracy Clause can not simply be interpreted as per the contents in the bulletin any more.
The bulletin prepared by BIMCO itself has illustrated that the reasons to exclude K&R is that piracy risks will be covered under its H&M and War Risks Insurance. However, with the Joint War Committee has listed Indian Ocean and Southern Red Sea as breach areas of War Zone on 16th December 2010 as a result of the increasing piracy risks in that area, the situation changed a lot whereby a pirate attack would no longer mean a common robbery but would necessarily amount to substantial ransom monies being demanded. Accordingly once the vessel is seized by pirates the Hull and War Underwriters who may insure the piracy risks are exposed to a large potential claim for ship’s proportion of General Average contribution in respect of the ransom monies. And War Underwriters will charge a higher Additional Premium for transiting such areas to reflect their risks exposed. That is also the reason the War AP would have a great discount when K&R cover is placed.
“K&R insurance is felt to be a supplementary insurance and not part of the conventional insurances normally taken out by a ship owner” in stated BIMCO Bulletin is not consistent with current practice. As War Underwriter has already adjusted their rate considering the placement of K&R, K&R insurance would not be considered as a “supplementary” insurance but more in the nature of a type of insurance collateral to the War Risks insurance and as important as the war risks insurance.
In order to avoid any potential disputes in respect of the allocation of premiums, we highly suggest owners to expressly provide in the C/P for what additional insurances include when they incorporate BIMCO Piracy Clause which is in essence a matter of commercial negotiation between owners and charterers.
Should you have any further query, please feel free to contact us.
