AN AGREEMENT dated 20 the February 1985 BETWEEN THE SEVERAL PARTIES whose names and addresses are set out in Schedule 1.
(1) The parties to this Agreement are mutual, non-profit-making insurance associations of shipowners engaged in the insurance of marine risks, commonly described as "protection and indemnity" risks.
(2) Since in a mutual, non-profit making insurance association any under-contribution by one insured must be made good by over-contribution by the other insured, it is desirable to ensure that the Members of each association contribute equitably to its expenses and losses.
(3) Owing to the "long tail" nature of "protection and indemnity" risk is fair assessment of each Member's contribution can best be made over a period of years, and an association in which a Member has been entered for some years is in the best position to estimate fairly the risk that he represents.
(4) It is therefore to the benefit of Members generally that the membership should remain relatively stable and that the premium rates applied to a Member who changes from one association to another should be based on full access to the Member's record; but it is also in the interests of each individual Member that he should not be unduly restricted from moving from one association to another.
(5) The associations recognise that a balance has to be struck between continuity and freedom of movement and that subject to the overriding principle that all rates must be reasonable, it is appropriate in seeking to achieve this balance to differentiate between on the one hand cases in which a member is prepared to undertake a binding commitment to move from one association to another substantially in advance of the annual renewal date, and on the other hand cases in which the member is not prepared to enter into such a commitment and that it is normally appropriate for any restriction on premium rates to apply for only one year.
(6) The parties hereto are also parties to or have the benefit of a Pooling Agreement dated 18th September 1975 ( which Agreement, as amended, is herein called "the Pool" ) for the purpose of dividing and sharing amongst themselves certain layers of liabilities arising out of the protection and indemnity risks which they respectively insure.
(7) The Pool provides substantial benefits at minimum costs for the Members of the participating association, and it is in the interests of all such Members to maintain those benefits.
(8) The operation of the Pool depends upon the maintenance of goodwill between the associations.
(9) The equitable relationship between Members within an association and the goodwill between associations would alike be jeopardised unless there were a measure of restraint on the attraction of new Members by the offer of reduced premiums and the restraints imposed by this Agreement are the minimum necessary to avoid such jeopardy.
(10) The special risks attaching to Tankers, the pattern of claims the associated high cost of reinsurance and the characteristics of the market in relation to Tankers make it advisable to pool the expertise of the Clubs in order to arrive at appropriate premium rates for Tankers.
NOW IT IS HEREBY AGREED as follows :-
1. (1) In this Agreement, unless the context otherwise requires, words importing the singular number include the plural and vice versa and the words or expressions set out below have or include the meanings, set out opposite them :
agreed rate has the meaning attributed to it by Clause 2(1).
attachment date has the meaning attributed to it by Clause 2(1)
basis of quotation means in relation to any premium quotation the terms and conditions upon and subject to which a vessel will be insured if the quotation is accepted.
Club means any association which is or becomes a party to this Agreement.
commitment date means, in relation to an attachment date of 20th February, the previous 30 th September, and in relation to any other attachment date, the date 20 weeks before that attachment date.
the Committee means the Committee established by Clause 6.
company includes any legal or natural person and any body of persons, whether incorporated or not.
financial inducement includes the provision, offer, holding out or promise (whether legally binding or not) of any present or future benefit or advantage, the effect of which is, or is expected to be, to offset or reduce, directly or indirectly, the cost of insurance against P and I risks or enhance its benefits, including, but not limited to, the provision or offer of insurance against any other risks without charge or at reduced rates.
firm commitment has the meaning attributed to it by Clause (1).
fleet means any two or more vessels which are operated as a fleet by virtue of common ownership, control or management.
the General Excess means the contract for the reinsurance of oil Loss Contract pollution risks and other P and I risks entered into pursuant to the Pool and any renewal, extension or replacement of that contract.
Holding Club (a) in relation to a vessel which is for the time being insured with any of the Clubs, means the Club by which it is insured ( or, if its is insured by more than one, each of them); (b) in relation to a New Vessel, is to be construed in accordance with Clause 4.
Holding Club's Rate has the meaning attributed to it by Clause 3(7) and (8).
insure means insure against P and I risks, and "insured" and "insurance" are to be construed accordingly.
the International Groups means the International Group of Protection and Indemnity Associations, comprising the parties to this Agreement.
month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, or, if none, the first day in the month following that next calendar month, save that where any period would otherwise start or end on a non-working day, it shall start or end on the next working day.
New Club means in relation to any vessel any Club which is not a Holding Club.
New Vessel means a new or newly - acquired vessel or a vessel which is not currently insured by any Club.
Operator means the company by which a vessel is, or is proposed or intended to be, operated; and where other vessels in the same fleet are, or are proposed or intended to be, operated by different companies, all such companies.
Overspill Liability means any liability covered by the Pool in excess of the amount for the time being reinsured under the General Excess Loss Contract.
P and I risks means protection risks, indemnity risks or any risks in either or both categories.
the Pool has the meaning attributed to it by recital (6).
premium means the estimated total net amount receivable by a Club from an insured for a period of insurance after deducting any brokerage or commission payable or allowable by the Club to the insured or his broker or any other third party.
rate means a rate of premium.
record means in relation to an Operator all matters which might materially affect an underwriter's assessment of the risk of insuring that Operator's vessels and the appropriate premium and basis of quotation.
Reduced Pooling Facility has the meaning stated in Clause 9(1).
the Secretary means the Secretary for the time being of the International Group or any assistant or deputy secretary thereof or other person appointed by the said Group to perform any of the duties of secretary.
Tanker means any vessel designed and constructed or adapted for carrying hydrocarbon mineral oil in bulk as cargo, whether or not it is actually so carrying such oil .
Vessel means any ship, craft, boat or other description of vessel or hover vehicle or structure (whether completed or under construction) used or intended to be used for any purpose whatsoever in navigation or otherwise on, under, over or in water, or any part thereof or any proportion of the tonnage or any share therein.
working day means a week-day which is not a Saturday or a Bank or Public Holiday in England.
written in writing include communication by telex or facsimile transmission.
(2) References to Clauses and Schedules are to be Clauses of and Schedules to this Agreement, and references within a Clause to sub-clauses or within a sub-clause to paragraphs without further identification are references to sub-clauses of that Clause or paragraphs of that sub-clause, as the case may be.
QUOTATIONS FOR VESSELS ALREADY INSURED :
FIRM COMMITMENTS BY THE COMMITMENT DATE
2. (1) A new Club wishing to insure a vessel which is currently insured with any of the Clubs may do so, subject to compliance with this Clause, at any premium that is not unreasonably low if a firm commitment is entered into with respect thereto not later than 12 noon GMT on the commitment date. By "firm commitment" is meant a written agreement whereby the Operator is legally bound to enter the vessel and the New Club is legally bound to insure it for the policy year beginning on the next 20th February or on such other date on which insurance customarily attaches ( "the attachment date" ) at a stated rate of premium ( "the agreed rate") but subject to adjustment to reflect :-
(a) any general increase or reduction in premiums that may be applied by the New Club to policies commencing on the attachment date; and
(b) any change in the limit of claims retained in accordance with the Pool ; and
(c) any variation in the cost of the General Excess Loss Contract.
(2) The New Club shall, before quoting a premium, first request the Holding Club, or each of them if more than one :
(a) to supply the record of the Operator; and
(b) to state the Holding Club's current premium for the vessel.
(3) The New Club shall state in its request :
(a) that it is considering entering into a firm commitment on or before the commitment date ;
(b) the basis on which it wishes to quote ; and
(c) whether it proposes to quote for all the vessels insured with the Holding Club by the same Operator, and, if not, for which of them.
(4) As quickly as practicable in Holding Club shall seek the consent of the Operator to its complying with the New Club is request ( unless such consent has already been obtained in writing by the New Club) and, subject to such consent being a or having been obtained, as quickly as practicable and in any event within 10 working days of receipt by the Holding Club of the New Club's request, the Holding Club shall supply to the New Club the Operator's record and a statement of the current premium for the vessel in question, specifying whether that premium was fixed on the same basis as the basis of quotation stated in the New Club's request and, if not, on what basis it was fixed. If requested to do so by the Operator, the Holding Club shall also supply to the Operator a copy of his record as supplied by the Holding Club to the New Club. If the New Club has stated that it wishes to quote for only one or some of the vessels in a fleet entered in the Holding Club and the Holding Club applies a fleet rate it may in lieu of the actual premium state the premium that it would have required for the current year to insure that or those vessels alone, and in that case shall state it is doing so.
(5) If the Operator withholds consent, the New Club may not accept the vessel for insurance.
(6) The New Club may change its basis of quotation or the vessels insured with the Holding Club for which it proposes to quote, but it must inform the Holding Club not less than five working days before it quotes on that basis or for those vessels.
(7) The New Club shall notify the Holding Club in writing of the agreed rate not later than the third working day after a firm commitment is entered into.
(8) The New Club shall determine the amount of any adjustment to the agreed rate and shall notify the Holding Club in writing of the adjusted rate (or, as the case may be, that no adjustment is necessary) not later than 14 working days before the attachment date.
(9) The Holding Club may apply to the Committee :-
(a) within 30 days after receipt of notification of the agreed rate to determine whether the agreed rate is unreasonably low ;
(b) within two working days after receipt of notification of the adjusted rate to determine whether the adjustment fairly reflects the items specified in sub-clause (1) ;
(c) within two working days after receipt of notification that the agreed rate is not to be adjusted, to determine whether an adjustment ought to have been made in order fairly to reflect those items.
QUOTATIONS FOR VESSELS ALREADY INSURED : NO FIRM COMMITMENT BY THE COMMITMENT DATE
3. (1) Where no firm commitment is entered into by the time specified in Clause 2 (1), the provisions of this Clause shall apply to the insurance by a New Club of a vessel that is currently insured with any of the Clubs.
(2) The New Club shall, before quoting a premium, first request the Holding Club, or each of them is more than one, to supply the record of the Operator and the premium that the Holding Club, would quote for the proposed periods of insurance on the proposed basis of quotation (which must be specified in the request). The request must also state whether the New Club proposes to quote for all the vessels in the same fleet that are insured with the Holding Club, and, if not, for which of them.
(3) The New Club may request a Holding Club to state a premium on more than one basis of quotation, either in its initial request or by means of a subsequent request, but a quotation shall not be given to an Operator on a basis of quotation which has not been specified in a request previously made of each Holding Club with respect to the vessel or vessels in question.
(4) Subject as mentioned below a Holding Club shall as quickly as practicable seek the consent of the Operator to its complying with the New Club's request (unless such consent has already been obtained in writing by the New Club) and, subject to such consent being or having been obtained, as quickly as practicable and in any event within 10 working days of receipt by the Holding Club of the New Club's request, the Holding Club shall :
(a) supply the Operator's record to the New Club and
(b) state its premium in conformity with the New Club's request or advise the New Club that it would not quote a premium for the vessel in question on the basis proposed by the New Club or that it would not quote a premium for that vessel at all.
Nevertheless a Holding Club shall not be bound to comply with the above requirements more than 3 months before the intended attachment date, which, unless otherwise specified in the New Club's request, shall be presumed to be the next annual renewal date of the Holding Club.
(5) If the Operator withholds consent the New Club may not accept the vessel for insurance.
(6) The New Club shall be entitled only to a Reduced Pooling Facility in respect of the vessel if it insures it at a rate which is lower than the Holding Club's Rate ( as defined below ) unless the New Club notifies the Holding Club in writing of the premium for such insurance not later than the third working day after the New Club and the Operator have entered into a firm commitment at that rate and either :-
(a) neither the Holding Club nor the New Club refers the matter to the Committee before the end of the second working day after receipt of such notification ; or
(b) the matter having been so referred the Committee finds the Holding Club's Rate unreasonably high.
(7) The "Holding Club's Rate" is the rate stated by the Holding Club in response to a request from the New Club specifying the same basis of quotation as that actually adopted for insurance by the New Club. If the Holding Club subsequently reduces its quotation (without any change in its basis) it must forthwith inform the New Club and :
(a) for the purpose of determining whether the rate of the Holding Club is unreasonably high, the rate first stated by the Holding Club on a particular basis of quotation in response to a request from the New Club shall be the Holding Club's Rate, unless the New Club's request was made more than 3 months before inception of the proposed insurance, in which event the first or only rate quoted by the Holding Club within that period of 3 months and notified to the New Club shall be substituted as the Holding Club's Rate; and
(b) the lowest of the Holding Club's reduced rates shall nevertheless be treated as the Holding Club's Rate for the purpose of determining whether the New Club's rate is lower than that of the Holding Club.
(8) Where there is more than one Holding Club, sub-clause (7) shall apply to each of them separately and the lower or lowest of the resulting rates shall be the Holding Club's Rate.
QUOTATIONS FOR NEW VESSELS
4.(1) First entry :
Where a New Vessel is about to become part of fleet, the provisions of sub-clause (2) to (8) of Clause 3 shall apply, with the following modifications, on the first entry of that vessel in a New Club during the course of a policy year :
(a) if the whole of the fleet is insured in one Club, is the New Vessel's Holding Club;
(b) if the fleet is split between two or more Clubs for insurance, each of them is (subject to paragraph (c) a Holding Club of the New Vessel and may quote for that vessel without observing the requirements of Clause 3 but may nevertheless request any other Holding Club to supply the record of the Operator so far as concerns such Holding Club's part of the fleet, and if it does so the provisions of sub-clause (4) of that Clause relating to the supplying of records shall apply ;
(c) if the part of a split fleet insured by a Holding Club consists solely of vessels which it has first insured after the beginning of its last complete policy year, that Club may not quote for the New Vessel without observing the requirements of Clause 3 or, if paragraph (d) applies, those requirements as modified by that paragraph ;
(d) if the Operator has, within the time specified in Clause 2(1), entered into a firm commitment with respect to one or more vessels of the fleet, any Club with which a firm commitment has been made as aforesaid may insure the New Vessel at any premium that is not unreasonably low. In such a case the Club in question shall notify the Holding Club (and each of them if more than one) not less that five working days before the date of commencement of the insurance of the premium to be charged, and the Holding Club may within three working days of receipt of the notification apply to the Committee to determine whether that premium is unreasonably low.
(2) First renewal :
On the first renewal by a New Club of a vessel that was entered with it as a New Vessel, the following provisions shall have effect unless sub-clause 1 (d) applied to the original entry :
(a) the New Club shall notify the former Holding Club (and each of them if more than one) in writing of the first renewal premium for that vessel not later than 14 working days before the renewal date;
(b) any former Holding Club may within two working days after receipt of that notification apply to the Committee to determine whether that rate is unreasonably low.
COMPARISON OF RATES OF PREMIUM
5. For the purpose of determining whether one premium or premium quotation is higher or lower than or equal to another, the amount or value of any financial inducement offered or proposed by the Club by which the premium is quoted or charged shall be taken into account.
REFERENCES TO THE COMMITTEE
6. (1) A Committee is hereby established for the purpose of determining and deciding certain matters as specified herein. The composition, powers and procedure of the Committee are set out in Schedule 2.
(2) In determining whether a rate is unreasonably high or unreasonably low (as the case may be) the committee shall take into account all relevant matters including (without prejudice to the generality of the foregoing words)
(a) whether the rate includes fair and reasonable provision for each of the following :
(i) claims within the insuring Club's retention ;
(ii) contributions to Pool claims ;
(iii) cost of the General Excess Loss Contract ;
(iv) administration costs ;
(b) where a New Club's rate is under consideration, the information supplied to it by the Holding Club ; and
(c) where a Holding Club's Rate is under consideration, the information available to the Holding Club at the date when that rate was communicated by it to the New Club.
(3) In addition to references with respect to rates either a New Club or a Holding Club may refer to the Committee any question or dispute between Clubs as to:
(a) whether one premium is lower than another or a financial inducement has been offered or proposed; or
(b) whether either of them has duly complied with its obligations under Clauses 2 to 4 or 7.
A reference under paragraph (a) must be made no later than the end of the period of insurance in respect of which the premium is charged or the expiration of six months from the commencement of that period, whichever is later. A reference under paragraph (b) must be made no later than the end of the period of which insurance is granted without ( or allegedly without ) complying as aforesaid or the expiration of six months from the commencement of that period, whichever is later.
(4) In addition to references with respect to the foregoing matters, when an Operator transfers any vessel to a New Club and a release call is demanded, the Operator may request the Committee to determine, in relation to that release call, the matters set out in Clause 8 (1) (b).
(5) Any determination or decision of the Committee on any matter referred to it by or under the provisions of this Agreement shall be final and binding.
DIVERGENT POLICY YEARS
7. Clauses 2 to 4 are written on the basis that insurance will attach at the beginning of a policy year and that the policy years of the New Club and each Holding Club are the same. Where this is not the case the provisions of those Clauses shall apply with any necessary modifications and in case of dispute the decision of the Committee as to what modifications are necessary shall be final and binding unless the contrary is agreed by all the parties to this Agreement.
8.(1) When an Operator transfers any vessel to a New Club and a release call is demanded the Holding Club shall :
(a) if the Operator so requests accept in lieu of a release call a guarantee given or confirmed by a bank acceptable to the Holding Club for the Operator's liability to pay future calls provided that the Operator shall not be required to provide a guarantee for an amount that exceeds the amount of the release call demand.
(b) allow the Operator, within 20 working days of the amount of the release call being notified to the Operator or his representative, to request the Committee to determine :-
(i) whether the release call demand is in accordance with the rate or formula, if any, fixed by the Board of Directors or Committee of the Holding Club and applicable to all members of the Holding Club similar circumstances ; and
(ii) if no rate or formula has been so fixed or the release call demanded is not in accordance therewith, whether or not the release call is reasonable and, if not, what would be a reasonable release call for the Holding Club to demand.
PROVIDED THAT the Operator shall agree to make his request in the form of a reference to arbitration incorporating in his agreement the provisions of Schedule 2.
(2) If the Holding Club so requires, it shall be a condition of the Operator's right to request a determination under sub-clause (b) that the Operator deposits in escrow the amount of the release call demanded by the Holding Club or provides a bank guarantee as aforesaid for that amount. If the Committee determines under sub-clause (1) (b) (ii) that a reasonable release call would be less than the amount demanded by the Holding club, as soon as practicable after the Holding Club is notified of the determination of the Committee, it shall arrange for the deposit or guarantee to be refunded or released to the extent of the difference, together ( in the case of a deposit ) with interest earned on the principal sum released.
REDUCED POOLING FACILITY
9. (1) A "Reduced Pooling Facility" means that the Club in question :
(a) shall not be entitled to any contribution or indemnity from the Pool to or against any relevant loss save to the extent to which such loss falls to be apportioned under the Pool as an Overspill Liability ; and
(b) shall be entitled to indemnity under the General Excess Loss Contract only to the extent of the amount by which any relevant loss insured thereby exceeds US$150 million or such other amount as the Clubs may from time to time determine to be the maximum for reinsurance of P and I risks can reasonably by expected to be obtainable by a Club in the insurance market.
A determination under paragraph (b) shall not reduce the indemnity remaining available in respect of vessel which at the time of the determination is the subject of a Reduced Pooling Facility as defined above, but otherwise shall take effect on 20th February after it is made.
(2) Subject to sub-clause (5), for a period of two years a New club shall be entitled only to a Reduced Pooling Facility in respect of a vessel which it is found by the Committee, on a reference by the Holding Club, to have accepted for insurance without having first obtained the Operator's record from the Holding Club, by reason of the Operator's not having consented to its disclosure or for any other reason except a breach of the Holding Club's obligations under this Agreement.
(3) Subject to sub-clause (4) and (5), for a period of two years a New Club shall be entitled only to a Reduced Pooling Facility in respect of a vessel which
(a) it accepts for insurance without having complied with its obligations under Clauses 2 to 4 or 7 [ Clause 6 (3) (b) ] ; or
(b) it enters into a firm commitment by the time specified in Clause 2(1) to insure at a rate which is found by the Committee to be unreasonably low [ Clause 2 (9) (a); or
(c) it accepts for insurance after entering into a firm commitment before the time so specified and is found by the Committee not to have adjusted the agreed rate so as to reflect fairly the items specified in Clause 2(1) [Clause 2 (9) (b) or (c)]; (PROVIDED THAT this sub-clause shall not apply if the Committee finds that an increased or unadjusted rate should have been reduced or that a reduced rate should have been reduced to a greater extent); or
(d) not having entered into a firm commitment before the time specified in Clause 2(1) it accepts for insurance at a premium lower than the Holding Club's Rate [ Clause 3(6) ] ; or
(e) it enters as a New Vessel at a premium lower than is permitted by Clause 4(1) [Clause 4(1)]; or
(f) it first renews (having previously insured it as a New Vessel) at a rate which is found by the Committee to be unreasonably low [ Clause 4 (2)].
The cross-references in square brackets in this sub-clause are to the principal provisions pursuant to which references may be made to the Committee with respect to the matters dealt with in each paragraph.
(4) Paragraphs (d) and (e) of sub-clause (3) shall not apply if:
(a) the Holding Club is found by the Committee to have failed to comply within the prescribed time with the requirements of Clauses 3(4) and, if applicable, 4 ; or
(b) the Holding Club advised the New Club that it would not quote a premium for the vessel in question on the basis adopted by the New Club or that it would not quote a premium for that vessel at all; or
(c) the Holding Club's Rate is found by the Committee to be unreasonably high.
(5) Neither of sub-clauses (1) and (2) shall apply in any case in which the Committee decides that the Holding Club has not provided with reasonable promptness any information which the Committee considers necessary for the purpose of its decision.
(6) For a period of two years a Holding Club shall be entitled only to a Reduced Pooling Facility in respect of a vessel which it is found by the Committee, on a reference by the New Club, to have accepted or renewed, without informing the New Club as required by Clause 3(7), at a premium which is lower than that which it has stated for the period in question in response to the New Club's relevant request.
(7) The said period of two years shall run from noon GMT on the sixteenth working day after the New Club or the Holding Club, as the case may be, is notified of the relevant decision of the Committee.
(8) While a Club insures a vessel in respect of which it is entitled only to a Reduced Pooling Facility by virtue of this Clause :
(a) in addition to that Club, any other Club which was the vessel's Holding Club immediately before the inception of that insurance shall be treated as continuing to be a Holding Club of that vessel (an "additional Holding Club"); and
(b) any rate of premium stated by the insuring Club in response to a request by a New Club under Clause 3(2) shall not be the Holding club's Rate for the purposes of this Agreement (and there shall be substituted therefore the lowest rate stated by any additional Holding Club) unless no additional Holding Club states a rate of premium in response to a request in the same terms.
10. The provisions of this Agreement shall apply mutatis mutandis to the reinsurance of P and I risks insured with an insurer other than the Clubs, subject as follows :
(a) for the purpose of applying Clauses 2 and 3, a Club is a Holding Club of a vessel which it currently reinsures against P and I risks ;
(b) for the purpose of applying Clause 4, account shall be taken of any Club or Clubs which reinsure a fleet or part thereof against P and I risks and not of the primary insurers ;
(c) the record to be requested and supplied pursuant to Clause 2, 3 or 4 shall be that of the primary insurer insofar only as it relates to the Operator of the reinsured vessels.
11. Nothing in Clauses 2 to 10 applies to the insurance or reinsurance of charterers' P and I risks in the case of a vessel on time or voyage charter unless the Operator of such chartered vessel is also the Operator of a vessel which is insured against owners' P and I risks with any of the Clubs. For this purpose "owners" P and I risks, include any and all P and I risks except those of charterers under time or voyage charters.
12.(1) Every premium quoted for a Tanker shall make fair and adequate provision for each of the four elements of total cost specified in Clause 6(2) (a).
(2) The Clubs shall recommend annually through the International Group reasonable minimum provision to be made for Pool claims in rating Tankers.
(3) The Clubs shall circulate to each other through the International Group such statistical information with respect to Tanker claims as the Group may from time to time decide.
(4) If a Club accepts or renews insurance of a Tanker at a premium which (after taking into account the value of any financial inducement offered or provided) the Committee finds, on a reference by any Club, to be lower than the minimum rate necessary to comply with sub-clause (1), such accepting or renewing Club shall be entitled only to a Reduced Pooling Facility in respect to that Tanker for a period of one year from noon GMT on the sixteenth working day after it is notified of the Committee's decision.
13. This Agreement sets out the entire agreement and understanding between the parties with respect to the subject matter hereof.
APPLICABLE LAW - JURISDICTION
14. This Agreement shall be read and construed in accordance with the laws of England and, save as provided herein, the Courts of England and Wales shall have exclusive jurisdiction over any question, claim or dispute in connection herewith.
15. The English languages shall be used for all communications pursuant to this Agreement.
COMMENCEMENT - CANCELLATION OF PRIOR AGREEMENT
16. This Agreement shall come into force at 12 noon GMT on the day following that on which particulars hereof are furnished to the Office of Fair Trading pursuant to the Restrictive Trade Practices Act 1976 and upon coming into force shall cancel and supersede the Agreement entitled "International Group Agreement 1984" made between the same parties and dated 27th July 1984, but without prejudice to rights and obligations already acquired thereunder before such cancellation.
CAPTIONS AND CROSS-REFERENCES
17. The captions herein and the cross-references in Clause 9(3) are for convenience only and shall be disregarded in construing this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties the day and year first before written.
The Britannia Steam Ship Insurance Association Limited.
Address: Southwark Towers
32 London Bridge Street,
London SE 1.
The London Steam Ship Owners' Mutual Insurance Association Limited.
Address: 17 Crosswall,
The Newcastle Protection and Indemnity Association.
Address: Centro House
3 Cloth Market,
The North of England Protecting and Indemnity Association Limited.
Address: Douglas House,
4 Neville Street,
The Standard Steamship Owners' Protection and Indemnity Association Limited.
Address: International House,
World Trade Centre,
1 St. Katharine's Way,
London E1 9UN.
The Standard Steamship Owners' Protection and Indemnity Association (Bermuda) Limited.
Address: Burnaby Building,
The Steamship Mutual Underwriting Association Limited.
Address: Aquatical House,
The Steamship Mutual Underwriting Association (Bermuda) Limited.
Address: Clarendon House,
Church Street West,
The Sunderland Steamship Protecting and Indemnity Association.
Address: Tavistock House,
The United Kingdom Mutual Steamship Assurance Association (Bermuda) Limited.
Address: Mercury House,
The West of England Ship Owner's Mutual Protection and Indemnity Association (Luxermbourg).
Address: 33 Boulevard Prince Henri,
Assuranceforeningen Gard (Gjensidig).
Address: P.O. Box 1563, Myrene,
Assuranceforeningen Skuld (Gjensidig).
Address: Stortingst, 18,
The Japan Ship Owners' Mutual Protection and Indemnity Association.
Address: Yanagiya Building,
The Liverpool and London Steamship Protection and Indemnity Association Limited.
Address: Equity & Law House,
47 Castle Street,
Sveriges Angfartys Assurans Forening.
Address: Barlastagatan 2,
S-400 40 Goteborg,
The Shipowners' Mutual Protection and Indemnity Association (Luxembourg).
Address: 33 Boulevard Prince Henri,
1. The Secretary shall maintain two lists (to be known as Lists A and B) of individuals from which the Committee may be drawn. List A shall comprise one or more directors, employees or partners of each Club or its Managers, nominated by that Club. List B shall comprise other individuals (not being directors, employees or partners of any Club or its Managers), each nominated by not less than three Clubs as independent persons qualified by their experience to act as members of the Committee. A person shall not be disqualified from appointment to List B by having previously been a director, employee or partner as aforesaid.
2. A reference to the Committee shall be initiated by written notice of reference to the Secretary setting out the matter to be determined by the Committee, naming the other party or parties to the reference and appointing one person from List A to serve on the Committee. A party giving a notice of reference shall serve a copy of its in writing on any other party to the reference on the same day on which the notice is sent to the Secretary.
3. A second member of the Committee shall be appointed from List A by written notice served by the other party within three working days after the service upon it of a copy of the notice of reference (and where there is more than one other party the first appointment made by any of them shall prevail), failing which a second member may be appointed by the Secretary from List A or B on the application of the party which gave the Notice of Reference.
4. A person on List A may not be appointed to the Committee by the Club which nominated him to that List or by a Club which reinsures or is reinsured by that Club and where an Operator is a party to a reference he may not appoint a person who was nominated to List A by his New Club or by a Club which reinsures or is reinsured by that New Club. Any such purported appointment shall be void.
5. The two members appointed under paragraphs 2 and 3 above shall jointly appoint a third from List B, but if they cannot agree within three working days the appointment shall be made by the Secretary.
6. A person on List B may not be appointed to serve on the Committee on a reference if he has at any time been a director, employee or partner of a Club which :-
(a) is party to the reference ; or
(b) is the New Club of an Operator who is party to the reference; or
(c) reinsures or is reinsured by a club within (a) or (b);
or of the Managers of any such Club.
7. The persons appointed pursuant to Paragraph 2, 3 and 5 above shall constitute the Committee for the purposes of the reference in question.
8. The Committee shall act as arbitrators pursuant to the English Arbitration Acts 1950 and 1979 and any statutory amendment or re-enactment thereof.
9. The parties hereto agree to exclude :-
(a) the right of appeal under Section 1 of the Arbitration Act 1979 in relation to any determination, decision or finding of the Committee appointed hereunder , and
(b) the right to apply to the High Court under Section 2 of the Arbitration Act 1979 for the determination of any question of law arising in the course of any reference to the Committee appointed hereunder.
10. Neither the Committee nor any member thereof nor the Secretary shall be liable to any party for any act, omission or error in connection with any reference conducted pursuant to the rules and procedures set out in this Schedule, save that any member of the Committee shall be liable for the consequences of any conscious and deliberate wrong-doing on his own part.
11. After any decision, determination or finding has been made (and any accidental mistake or omission corrected) the Committee (or any member thereof) shall be under no obligation to make any statement to any person about any matter concerning the reference, nor shall any party seek to make him a witness in any legal proceedings arising therefrom.
12. The Committee shall have the following powers :-
(a) to order any party to furnish to it through the Secretary, details in writing and further details of its case, in fact or in law as it may require;
(b) to proceed with the reference notwithstanding the failure or refusal of any party to comply with the requirements of this Schedule or with any orders or directions of the Committee to attend any meeting or hearing, but only after giving that party written notice that the Committee intends to do so;
(c) to receive and take into account such written or oral evidence as the Committee shall determine to be relevant, whether or not strictly admissible in law;
(d) to hold meetings and hearings and make determinations, decisions and findings in any part of the world;
(e) to correct any accidental mistake or omission in the Committee's determinations, decisions or findings;
(f) to allow any party, upon such terms as the Committee shall determine, to amend details of their case or reply;
(g) to extend or abbreviate any time limits imposed by the Committee;
(h) to rely on the Committee's own expert knowledge or experience in any field or to appoint one or more advisers or experts on any matter (including law) to assist them in the conduct of the reference and in either of those events to limit or exclude the right of any party to bring expert evidence before the Committee;
(i) to direct the parties to submit the Secretary, for subsequent exchange, written statements whether or not verified by oath or affirmation, of the evidence of any witnesses;
(j) to determine what witnesses (if any) are to attend before the Committee, and the order and manner in which and by whom they are to be orally examined ;
(k) to conduct such enquiries as may appear to the Committee to be necessary or expedients;
(l) to order the parties to produce to the Committee and to each other through the Secretary for inspection, and to supply copies of, any documents or classes of documents in their possession or power which touch or concern the matters in issue or which the Committee determines to be relevant.
In addition, the Committee shall have such further jurisdiction and powers as may be allowed to them by the Arbitration Acts 1950 and 1979 or at Common law.
13. No party shall have the right to be represented before the Committee by counsel or solicitor without the consent of the Committee.
14. The Committee shall give its decision in writing stating its reasons, and the Secretary shall keep copies thereof which shall be open to inspection on reasonable notice by persons authorised by the Clubs. The Committee may act by majority, but all decisions, whether unanimous or not, shall be given as decision of the Committee, and the opinions of individuals shall not be recorded or divulged.
15. Documents sent by post to the last known address used by the addressee for communication between the Clubs shall be deemed to have been served on the second working day after posting if posted in the United Kingdom to an address in the United Kingdom, and on the fifth working day after posting in any other case.
16. Section 12(1), (2) and (3) of the Arbitration Act 1950 shall not apply to any reference nor is it within the contemplation of the parties that any applications pursuant to Section 12(5) and (6)(a)-(h) of the Arbitration Act 1950 be made in connection with any reference.
17(1) The jurisdiction and powers of the Committee are:
(a) to determine any matter or question which may be referred to it in accordance with the following provisions of this Agreement; viz;
(i) Clause 2(9), Clause 3(6) (as it applies to vessels already insured and as extended to New Vessels by Clause 4(1), Clause 4(20, Clause 6(3), Clause 6(4), Clause 7, Clause 8(1), Clause 9(2), Clause 9(6);
(ii) any of the provisions listed in sub-paragraph (i) above as extended by Clauses 10 and 11 ; and
(iii) Clause 12(4); and
(b) to determine any question that may arise in the course of such a reference with respect to any of the matters mentioned in the proviso to Clause 9(3)(c), Clause 9(4)(a) and Clause 9(5).
(2) Within the framework of the jurisdiction and powers of the Committee given in the Agreement and by the foregoing provisions of this paragraph, the Committee shall have the power to determine its own jurisdiction and procedure.