Circular 14/09 (December 2009) Special General Meeting - Proposed amendments to Club Rules


  • Date: 18/12/2009

OUTLINE

  • Papers are enclosed for the Special General Meeting in Bermuda to consider amending the Rules.


ACTION

  • Completed proxy forms should arrive at the Secretary at least 12 hours before the meeting on 19th January 2010.


TO THE MEMBERS
Dear Sirs
SPECIAL GENERAL MEETING -
PROPOSED AMENDMENTS TO CLUB RULES
Please find enclosed papers for a Special General Meeting to be held on 19th January 2010 in Bermuda, for the purpose of considering amendments to the Rules of the Club.
A Proxy Form and Schedule of Votes are enclosed in respect of the resolutions contained in the Notice of Meeting. Please note that the completed form must reach the Secretary by mail or fax (+1 441 292 3694) or email david.hunter@thomasmiller.com at the latest 12 hours before the Meeting.
Yours faithfully
THOMAS MILLER (BERMUDA) LTD.
CONTACT

  • Members requiring further information should contact Dr. Chao Wu (chao.wu@thomasmiller.com or telephone +44 20 7204 2157).
  • Download a pdf of Circular here.


NOTICE
Notice of a Special General Meeting of The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited.
Notice is hereby given that a Special General Meeting of the Members of the Association will be held at 10.00 am on Tuesday, 19th January 2010 at the offices of Thomas Miller (Bermuda) Ltd, Chevron
House, 11 Church Street, Bermuda, for the purpose of considering and, if thought fit, passing the resolutions set out below:
Resolution to propose:
"That with effect from 12 noon Greenwich Mean Time on 20th February 2010, the amendments to the Rules contained in the Appendix, be and are hereby adopted"
By Order of the President
D W R Hunter
Secretary
19th December 2009
Notes:
1 A Member entitled to attend and vote at this Special General Meeting is entitled to appoint a proxy to attend and, on a poll, to vote in his place. A Form of Proxy is enclosed.
2 The Form of Proxy may be returned by mail or by fax to the Secretary at the postal or fax address shown on the Form of Proxy, but to be valid must be received no later than 12 hours prior to the
Meeting.
APPENDIX
AMENDMENTS TO THE RULES

AMENDMENTS TO RULESEXPLANATORY NOTES
Rule 2, Section 1(C), proviso e – liability to pay damages or compensation to passengers
Amend proviso e to Section 1(C) of Rule 2 by addition of the words in bold type below:
e For the purpose of this paragraph (C), 'casualty' means 'an incident involving either: (i) collision, stranding, explosion, fire, or any other cause affecting the physical condition of the entered ship so as to render it incapable of safe navigation to its intended destination; or (ii) a threat to the life, health or safety of passengers in general.
Rule 2, Section 1(C), proviso e – liability to pay damages or compensation to passengers
Section 1(C) of Rule 2 provides cover for compensation payable to passengers on board an entered ship which has suffered a casualty. The concept of a casualty is defined for these purposes, in proviso (e). The second limb of the definition is intended to admit circumstances which may not prevent the completion of the voyage, but which nevertheless constitute a threat to the life, health or safety of passengers. The proposed amendment is to make clear that there is only a casualty to the ship in these circumstances if the threat is to the passengers in general, and not where, for example, the health of a single individual is affected by an illness or injury, with no threat to anyone else.
Rule 2, Section 17(B) – cargo liabilities – disposing of damaged cargo
Amend Section 17(B) of Rule 2 by addition of the words in bold type below:
B Disposing of damaged cargo or sound cargo from a damaged ship
The additional costs (over and above those which would have been incurred by him if the cargo or the entered ship had not been damaged) incurred by the Owner in discharging or disposing of damaged cargo or sound cargo following damage to an entered ship, but only if and to the extent that the Owner has no recourse to recover those costs from any other party.
Rule 2, Section 17(B) – cargo liabilities – disposing of damaged cargo
The Club has traditionally provided cover for additional expenses incurred by the Owner (over and above those that would have been incurred anyway) in discharging or disposing of damaged cargo, although only if and to the extent that the Owner has no recourse to recover those costs from any other party. The Club has not, traditionally, sought to provide similar cover for additional costs of discharging sound cargo from a damaged ship, but this amendment will improve the protection enjoyed by Members by including this risk, from 2010, within the Association’s normal terms of cover.
Rule 2, Section 22(F) – fines
Amend paragraph F of Section 22 of Rule 2 by deletion of words as indicated below:
A Fines as set out in paragraphs (B) to (F) below when and to the extent that they are imposed in respect of an entered ship by any court, tribunal or authority and are imposed:
i upon the Owner, or
ii upon any person whom the Owner may be legally liable to reimburse (other than under the terms of a contract or indemnity) or reasonably reimburses with the approval of the Managers, or
iii upon any person whom the Owner may be legally liable to reimburse under the terms of a contract or indemnity, but only if and to the extent that such terms have previously been approved by the Managers in writing.
B Fines for short or overlanding or over delivery of cargo, or for failure to comply with regulations relating to declaration of goods or to documentation of the entered ship in respect of her cargo;
C Fines for smuggling or for any infringement of any customs law or customs regulation relating to the construction, adaptation, alteration or fitment of the entered ship;
D Fines for contravention of any law or regulation relating to immigration;
E Fines in respect of an accidental discharge or escape of oil or other substance, or the threat thereof;
PROVIDED ALWAYS that:
There shall be no recovery from the Association in respect of fines arising out of
a the overloading of an entered ship or
b infringements or violations of or non-compliance with the provisions regarding construction, adaptation and equipment of ships contained in the International Convention for the Prevention of Pollution from Ships, 1973, as modified or amended by the Protocol of 1978 and any subsequent Protocol, or such of those aforesaid provisions as are contained in the laws of any State giving effect to that Convention or to such Protocol.
F Any fine <s>(other than those specified in paragraphs B - E above)</s> to the extent that (i) the Owner has satisfied the Directors that he took such steps as appear to the Directors to be reasonable to avoid the event giving rise to such fine and (ii) the Directors in their discretion and without having to give any reasons for their decision, decide that the Owner should recover.
Rule 2, Section 22(F) – fines
The purpose of the amendment is to widen the discretionary cover under section 22, paragraph F to include fines which are not recoverable as of right under paragraphs B to E as a result of overloading or infringement of MARPOL.
Appendix B to Rule 2 - Deductibles
Amend Appendix B to Rule 2 by deletion, and by addition of the words in bold type, as indicated below: Unless otherwise agreed between the Owners and the Managers as part of the terms upon which the ship is entered in the Association, the Owner's recovery from the Association for liabilities, losses, costs and expenses shall be subject to <s>the following</s> such deductibles<s>:</s> as the Directors shall decide before each policy year commences.
  • <s>i Crew illness and related expenses</s>
    <s>Claims under Section 3 of this Rule relating to illness of crew shall be limited to the excess of US$2,000 in any one port each time the ship calls at that port, unless claims at two or more ports arise out of the same illness in which case the deductible will only be applied once to the aggregate of those claims.</s>
    <s>ii Cargo claims and cargo’s proportion of general average</s>
    <s>Claims under Sections 17 and 19 of this Rule shall be limited to the excess of US$5,000 each single voyage, the deductible being applied to the aggregate of the claims under Sections 17 and 19 on that voyage.</s>
    <s>iii Fines</s>
    <s>Claims under Section 22 of this Rule shall be limited to the excess of US$2,000 any one event in the case of fines for pollution and each port (each time the ship calls at that port) in the case of all other fines.</s>
Appendix B to Rule 2 - Deductibles
The purpose of this change is to allow deductibles to be reviewed and determined by the Directors every year as necessary and published via circulars. The amendment also makes it clear that costs and expenses will be included in the relevant deductibles in the same way as the principal liability and losses.
Rule 40 – Disputes
Add a new paragraph E to Rule 40 as indicated in bold type below:
E If any difference or dispute shall arise between an Owner or any other person and the Managers or their servants or agents (collectively the Managers’ Group), out of or in connection with these Rules or any contract between the Owner and the Association or as to the rights or obligations of anyone of the Managers’ Group or the Owner in any other way in connection therewith, such difference or dispute shall be referred to arbitration in London of two Arbitrators (one to be appointed by the Managers’ Group and the other by such Owner or other person) and an Umpire to be appointed by the Arbitrators, and the submission to arbitration and all the proceedings therein shall be subject to the provisions of the English Arbitration Act, 1996, and any statutory modification or re-enactment thereof.
Rule 40 – Disputes
Rule 40 provides for disputes between a Member and the Club to be resolved, by means of adjudication of the Directors in the first instance, and by use of arbitration in London if the decision of the Directors is not accepted. If an action is directed against the Managers or their subsidiary companies, there is currently nothing to prevent such action proceeding in different jurisdictions, causing a considerable waste of time and expense. The inclusion of the new paragraph will help to ensure that in the rare event of a dispute, there is no incentive to pursue the Managers as a means of circumventing the Association’s dispute procedures.
Rule 41 - Notices
Amend paragraphs B and C of Rule 41 by the deletion, and the addition of words as indicated in bold, below:
B A notice or other document required under these Rules to be served on an Owner may be served by sending it by courier or through the post in a prepaid letter or by sending it by telegram, cable, radio telegraph, <s>or </s>facsimile transmission (fax) or electronic transmission (e-mail) addressed to such Owner:
i at the address which shall have been expressly furnished by him to the Association as the address at which notices from the Association may be served upon him, or,
ii if no such address shall have been furnished, at his address as appearing in the Register of Members, or,
iii if such Owner is not and was not a Member at the address which is his last known address to the knowledge of the Managers.
In the case of Joint Owners all such notices or other documents shall be served upon the Joint Owner whose address has been furnished in accordance with sub-paragraph (i) above, or, if no such address has been furnished, upon the senior of the Joint Owners and such service shall be sufficient service on all the Joint Owners. For this purpose seniority as between Joint Owners shall be determined by the order in which the names stand as Joint Owners in the Register of Members.
C Any such notice or other document if served by courier or by post shall be deemed to have been served on the day following the day on which the letter containing the same was handed to the courier or put into the post, and in proving such service it shall be sufficient to prove that the letter containing the notice or document was properly addressed and handed to the courier or put into the post as a prepaid letter. Any such notice or other document if served by telegram, cable, radio telegraph, telex, <s>or</s> facsimile transmission (fax) or electronic transmission (e-mail) shall be deemed to have been served on the day on which it was handed in to the telegraph, cable or radio telegraph office or, in the case of telex, <s>or</s> facsimile transmission (fax), or electronic transmission (e-mail), despatched, and in proving such service it shall be sufficient to prove that such telegram, cable or radio telegraph was duly handed in or, in the case of telex, <s>or</s> facsimile transmission (fax), or electronic transmission (e-mail) that the notice or other document was duly despatched.
Rule 41 - Notices
The purpose of the amendment is to include e-mail in the mechanisms by which the Association may give formal notices to Members. As the use of e-mail is now ubiquitous, it seems appropriate that it be included as an additional mechanism by which notices may be transmitted.

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