1 Best Practices for P&I Lawyers David Demirkan McInnes Cooper Halifax, Nova Scotia June 16-17, 2006 New Directions in Maritime Law 2006 Halifax, Nova Scotia
2 - 1 - INTRODUCTION The purpose of this paper is to collect some thoughts and ideas for consideration on the topic of best practices for P & I lawyers. This paper forms part of the Marine Insurance portion of the New Directions in Maritime Law Conference 2006, held in Halifax, Nova Scotia, Canada. While there are numerous substantive marine insurance references, it is much more difficult to locate practice-related continuing legal education materials related to marine insurance of the type that one would find at bar association seminars or continuing legal education conferences. It is hoped that this short paper will be a small step towards helping to fill in this perceived gap, and that it might prove to be a quick, practical reference or refresher as the case may be. In preparing this paper, the author spoke with a variety of highly experienced colleagues and clients from P & I Clubs and General Correspondent offices who generously shared their time and thoughts in the interest of continuing professional development for the admiralty bar. P & I rules, circulars, websites, and guides were reviewed. The author relied on personal lessons learned while working with Club Managers on a variety of P & I files. The author owes a real debt of gratitude to Wylie Spicer, QC and especially Tom Hart (with whom the author has had the opportunity of working extensively) for sharing their wealth of knowledge in this and other areas. While this is by no means an exhaustive listing of best practices, it is hoped that these tips will form a basis for discussion and dissemination of lessons learned. Most particularly, the input from experienced claims representatives currently working for P&I Clubs should prove beneficial to lawyers who act for P & I Clubs or others such as surveyors who work closely with P&I Clubs. These clients were asked for their pet peeves and suggestions regarding best practices from the client s perspective, and that important client feedback is contained throughout the paper. The author has not listed the
3 - 2 - individual sources of information in order to maintain their confidentiality, but the author gratefully acknowledges valuable input from a number of different Club managers who were consulted and offered freely of their time as part of this endeavor. Scope of P & I Coverage 1 Protection and Indemnity (P & I) insurance is a type of third party liability insurance for shipowners, charterers, or operators. The normal categories of P & I claims are as follows: Cargo claims Personal injury, illness, and death (passengers, crew, and others) Casualty and property claims (including groundings and collisions) Environmental and pollution claims Towage and wreck removal Other types of insurance that may be offered by the same P & I Clubs are: Freight, demurrage and defence (FD & D) War risks Hull and machinery Legal correspondents are sometimes retained with respect to those types of matters as well. 1 See generally Gold, Edgar, Gard Handbook on P&I Insurance, 5 th ed., (Arendal, Norway: Assuranceforeningen Gard-gjensidig, 2002)
4 - 3 - There is an international group of thirteen P & I Clubs 2 which insure the vast majority of the world s oceangoing tonnage. P & I Clubs are mutual indemnity associations which share liabilities among their members. The members are primarily shipowners. Liabilities are also pooled among the Clubs by agreement. The Rules applicable to the various P & I Clubs share a number of similarities, but there are also differences. 3 P & I Clubs rely on local correspondents around the world to act on their behalf when instructed to do so. Some of these correspondents are lawyers (legal correspondents), while others are surveyors, agents, subcontractors, or brokers. Most Clubs have lists of correspondents that are published and distributed to member companies and vessels, correspondents, and Club management. In most cases, these lists of correspondents can also be located via the internet on their Club websites. Some Clubs deal directly with correspondents, surveyors, and local counsel, while others have general correspondents 4 who are responsible for large territories such as North America. For example, a P & I lawyer s contact may be directly with the Club in Europe on some files, and with a general correspondent located in New York, on other files. P & I Clubs and General Correspondents as Clients P & I claims managers who work either directly for a P & I Club or act as general correspondents are highly specialized and sophisticated clients. They deal regularly with admiralty lawyers, claims surveyors, government officials, and others working in the maritime industry. In many cases, P & I Club personnel are lawyers themselves, or they 2 American Club, Gard, Skuld, Standard Club, Swedish Club, West of England Club, Steamship Mutual Club, Shipowners, North of England Club, London Club, Japan Club, Brittania Club, UK Club 3 Hudson, N. Geoffrey and Allen, Jeff, Marine Claims Handbook, 5 th ed., (New York: LLP Inc., 1996) at 51 4 For example, Trimar Defense Services, Inc. is Gard s general correspondent for North America. Anchor Marine Claims Services Inc. is Skuld s general correspondent for North America. Independent Maritime Consulting Ltd. is The Swedish Club s general P&I and H&M correspondent for North America.
5 - 4 - have years of maritime industry expertise as surveyors, brokers, agents or mariners. They deal on a constant basis with outside counsel and review many legal accounts from a large number of jurisdictions. Due to this industry expertise, P & I claims representatives are often more directly involved in cases than other types of clients. This provides an excellent opportunity for client contact and teamwork. Claims representatives have likely dealt with any given type of situation numerous times in different jurisdictions and they therefore bring valuable knowledge and expertise. The reality of P & I Clubs is that their adjusters cannot keep up to date with the intricacies of the law and procedural rules in all of the jurisdictions and Courts they deal with. Therefore, the legal correspondent working for a P & I Club provides a vital role by knowing the law and, perhaps more importantly, knowing how their courts (Federal Court, Superior Court and Provincial Courts) and government departments operate. The correspondent can also help with local knowledge when dealing with judges, sheriffs, marshals, investigators, government officials, and surveyors. While the P & I representative will have an excellent understanding of the different types of incidents that are covered, the P & I correspondent will be able to add important local knowledge and on-site appreciation of the situation and Court options. As a result, the relationship is cooperative and team-based, as opposed to a more traditional solicitor and client model. Availability of Correspondents It will not be news to anyone in this audience that shipping incidents and accidents frequently occur outside of normal working hours. For this reason, cellular telephones or personal digital assistants come in very handy. It is also not a bad idea to have a good pair of boots and a flashlight nearby.
6 - 5 - This level of availability is expected and appreciated, and can be reflected in the narrative of an account, i.e. attendance on board M/V early Sunday morning. This is one small way to demonstrate added value and effort. When a significant marine incident occurs, there is usually a fair amount of confusion at the beginning and the P & I correspondent has to be prepared to suddenly shift priorities to the marine incident, and sometimes to travel on fairly short notice. Initial Contact Regarding a New P & I File The initial contact may be a short telephone conversation, blurry fax, or cryptic e- mail message. In the fog of war, some of the things a P & I correspondent must consider initially are: What is the name of the ship? Where is the ship? Which Club or insurance company is the ship entered with? Is this a P & I matter? Who did I just speak with? What time is it? Who should be contacted at the Club? Are there any immediate steps to be taken? Is there a need to report anything (such as an oil spill)?
7 - 6 - The claims executives and general correspondents consulted indicated that a quick response is important. Also important is to bring the Club into the picture early, preferably before any third parties and surveyors are retained. Most if not all of the Clubs have after hours emergency contact numbers. In a case where a lawyer needs to attend on board a vessel immediately, there is sometimes scanty information to go on and there may be a number of lawyers, surveyors, class representatives, customs officials, and/or marine safety investigators milling about. In the initial stages, not all of these individuals will necessarily know exactly who they are representing and why they are there. It helps to have a copious number of business cards available for such attendances and to gather business cards for future reference. If retained as the lawyer representing the ship owner s P & I Club, it is important to gain access to the Master as soon as possible and to attend any meetings or interviews the Master is involved in thereafter. It is important to speak with the Club to provide an initial report even if the picture is incomplete. Whom do you represent? A legal correspondent is the insurer s representative. The master is in effect the owner s representative. Often, in larger matters, the owner may either have a senior representative involved from the owner s head office, or in some cases will send an executive or superintendent to attend on board. While this is often a cooperative relationship, the legal correspondent s instructions come from the P & I Club and the correspondent s updates and reports go to the P & I Club. Owners may try to persuade the correspondent to take a particular action, but this should be cleared through the Club before taking any action. The Club is in the best position to decide on how information should be disseminated. As the matter progresses, the lines of communication and reporting will be
8 - 7 - clarified, but at the outset it is important to clarify with the P & I Club, how the reporting should be done and to whom. If legal advice is provided directly to the client, but the legal correspondent has been working with a general correspondent, a suggested approach would be to discuss the proposed advice with the general correspondent before sending it to the Club. This ensures consistent advice and makes sure that the general correspondent does not feel that the local counsel is somehow making an end run around them, even if this is unintentional. Cooperation rather than tension is key to that relationship, and it should be noted that the general correspondent is exclusively, or nearly exclusively, with that Club. Their preferences are important and their knowledge of the way the Club operates is most helpful. Appointment of Marine Surveyors It is worthwhile to contact the Club before a surveyor is engaged. There are several reasons for this: The Club may not want to incur the expense of engaging a surveyor The claims adjuster often has knowledge of a wide range of surveyors operating in different jurisdictions and may wish to appoint a surveyor with relevant expertise from another jurisdiction The P & I Club representative may be aware of a surveyor who has recently done a survey on the same vessel The feedback received from P & I Club representatives was that they prefer to be involved regarding the question of whether a surveyor should be retained, and which surveyor should be retained.
9 - 8 - Like classification societies, P & I Clubs may have their own survey forms. The surveyors should be advised to follow the appropriate format as directed by the P & I Club. There may also be applicable standard appointment instructions for surveyors, and surveyors should familiarize themselves with the Club s appointment instructions if applicable. It is important that the surveyor understand who is retaining the surveyor, and how the report should be addressed (whether it is to legal counsel, the ship owner, or the Club). Most importantly, the surveyor needs to be informed as to the nature of the survey to be undertaken. The Club will be thinking ahead to eventual settlement or arbitration and the appropriate level of survey may not immediately be apparent of the surveyor without guidance from the legal correspondent or the Club. One area with the potential for a miscommunication between the Club, correspondent, and surveyor, is whether the surveyor should be expressing opinions or theories regarding issues such as causation, coverage, liability, or suggested improvements to procedures. It is important to clarify this beforehand so that the type of survey is appropriate to the circumstances. In some cases the Club will want only a factual survey dealing with the specifics of damage to the vessel, cargo damage, or the vessel s overall condition. In other cases, the Club will be requiring investigation and analysis into the likely causes of a particular incident. Communication on this issue at the outset is beneficial to all parties including the surveyor. If a legal correspondent is only asked to arrange for the services of a surveyor, the Club may expect the law firm not to bill for the time involved. This is something worth clarifying beforehand. Communication and Reports to the Club A common theme in discussions with different general correspondents and P & I representatives was communications. Club representatives are looking for regular
10 - 9 - reporting. They would usually like to be contacted as soon as practicable after the legal correspondent initially learns of the situation. If it is not a routine matter, the Clubs encourage 24/7 reporting so that they can become involved at an early stage. Claims executives have indicated that they do not want to learn the status of the case only from the narrative in the invoices. They prefer not to have to bother correspondents for reports. A good guideline is that within a couple of weeks of an incident, the claims representatives handling the case would like to have a comprehensive report. While can be efficient, some correspondents prefer that some of the updates be provided by telephone. One suggested best practice is to call the claims executive at the end of the day on a busy active matter in order to advise where things stand and to brainstorm on ideas. Another suggestion was that legal correspondents ask about the client s expectation for the frequency and method of reporting. It was mentioned that apparently, some firms may prefer that only partners deal with clients. However, if an associate is dealing with the day to day carriage of the file, some claims executives would prefer to hear directly from the person who has day to day carriage. This input was not specifically targeted at Canadian firms, but rather it was more of a general observation. Invoices P & I claims managers deal regularly with legal invoices from many different jurisdictions and many different firms. As a result, a number of the Clubs have standardized instructions as to how they want their invoices to be formatted. In some cases, invoices must be submitted electronically through a computer program such as Feesable. In other cases, only original accounts (and not faxes or s) can be paid due to accounting requirements in certain jurisdictions.
11 Different Clubs have instructions as to who should be billed and how the matter should be referred to on the actual account. The best practice would be to clarify the billing instructions at the outset on a new matter. This should help to avoid confusion and promote quicker payment. Generally, invoices should be addressed to the Member (or vessel) with a copy to the Club, sent to the attention of the appropriate claims manager. Sending a bill a year or more after the matter has settled is not considered a best practice. Nor is sending a very small bill, e.g. $2.49. As an aside, one claims manager recounted a story of a lawyer who went out of their way to set up a business development visit with a client, and then followed the visit up with a bill. That would not be on the list of best practices. General comments received from claims managers are that many of the bills they receive are done incorrectly (not according to the Club s prescribed format), and there has not always been enough attention to detail. Details such as missing VAT numbers, could lead to delays in bills being processed. One claims representative recommended that law firms consider putting their full banking details on their P & I Club invoices, as payment by wire transfer is widespread among Clubs. Research Before engaging in significant legal research, it would be worthwhile to speak with the claims manager to ensure the research is approved. One manager indicated that it could strain the relationship if a firm did a lot of research at an early stage without authorization. The Club could raise this issue with the general correspondent and put them in the awkward position of defending potentially unnecessary research by a legal correspondent. Therefore, unless asked for a legal opinion obviously requiring significant research, it would be worthwhile for correspondents to ensure research is approved beforehand.
12 Personal Contact While , fax, and telephone will likely remain the most common methods of communication for some time to come, P & I Club representatives appreciate visits and personal contact with the lawyers working on their files. This provides a good opportunity to strengthen their relationship. It also provides a chance for the local correspondent to get a better understanding of the scope of a Club s or general correspondent s operations. Legal Updates As noted above, P & I Clubs deal with many different jurisdictions and it is therefore impossible to keep up to date on all of the pertinent legal developments in each jurisdiction. Periodic updates on relevant developments in the law in your jurisdiction are appreciated, as long as they are not so frequent that it becomes overkill. Brief, pertinent updates are a good way to remind the client of your firm s expertise in a particular area, and they also help this sophisticated client to remain abreast of important developments. Urgent Matters/Emergencies Generally, it appears from various Clubs correspondent guidelines and from discussions with Club representatives, that Clubs do not wish for local correspondents to refuse to assist a member in an emergency or urgent situation. The preferred method would generally be to assist the member and follow up with the Club as soon as possible. However, this should be confirmed by reference to each Club s materials and by speaking with Club representatives. Exceptions to this general rule of thumb include:
13 Situations where the vessel is not entered with the Club Situations where the matter is not covered by the Club, i.e. the P&I correspondent is contacted about a H&M matter Although there are different websites available to check which Club a vessel is entered with 5, the information provided to these web sites can sometimes be out of date, or a particular vessel may not be listed. Sometimes incorrect or erroneous information may be given regarding which Club a vessel is entered with. All this to say, it is possible that a correspondent will be contacted under the assumption that a vessel is entered with a particular Club, only to find out later that the vessel is entered with a different Club. In that case, it would be worthwhile to clarify the situation as soon as possible before proceeding any further. It is also possible that the correspondent may be contacted about a Hull and Machinery claim, for example. In cases such as that, the Club may not reimburse the correspondent for the time spent on behalf of the member. For these reasons it is important to consider these preliminary issues as soon as possible, before investing significant amounts of time. Reporting, Analysis and Case Evaluation In routine matters such as stowaway or deserters matters, or minor accidental spills that are not pursued by government officials, the matter may be over quickly and all that may be required are a few reports by telephone and/or . In larger cases, where legal action is likely, it is worthwhile to clarify the preference of the Club in terms of case evaluation, budgeting, and reporting. At least two members of the International Group of 5 For example:
14 P & I Clubs have published standard guidelines to counsel 6. Not unlike other insurers, these Clubs require estimates of fees and disbursements for the purposes of establishing a reserve. They also seek an evaluation of the strengths and weaknesses of the matter and a listing of the anticipated procedural steps to be taken. Correspondents who have not been in a significant file with a particular Club may find it useful to confirm with the Club if they have any standard instructions for the preparation of a litigation plan and budget, or any standard reporting requirements. Even in minor ongoing matters, claims representatives generally appreciate concise status reports once or twice per year. Conclusion It is hoped that this attempt to assemble some best practices for P & I legal correspondents and other lawyers acting on behalf of P & I Clubs, is of some use to the reader. The primary lesson to take away from this paper is that communication between the legal correspondent and the claims representative is key to a successful relationship. Another observation is that it is important for legal correspondents and their staff to become familiar with the billing and reporting protocols for each Club. A good dialogue between correspondent and Club will ensure that the correspondent is taking the appropriate measures while still remaining within the scope of the correspondent s authority at any given stage of the case. David Demirkan Tel: +1 (902) Fax: +1 (902) (907496) 6 Circular 4/05 dated February 11, 2005 at