Heavy weather, ice and shallow waters

Cl. 16-7, sub-clause 2, was simplified in the 2003 version and is now identical to Cl. 12-18 in respect of hull insurance. Heavy weather damage encountered during a voyage between two ports shall be considered one casualty. The reason for this rule is that it is difficult to assess and separate each and all of the heavy weather damage sustained during the same voyage. This clause is of less importance under a loss of hire insurance than under a hull insurance for the same reasons as explained above under 6.2.

The previous second sentence in Cl. 16-7, sub-clause 2, deals with heavy weather damage when the insurance period expires while the vessel is on a voyage between two ports. This sentence was not carried forward as the revision committee wanted the language of Cl. 16-7, sub-clause 2 to be identical with Cl. 12-18 which does not have any language to this effect. However, the 2003 Commentary expressly states that adjustment practice should continue as before, so, for all practical purposes, the amendments made to Cl. 16-7, sub-clause 2 should not have any substantive consequences.

The meaning of the now deleted provision is best explained by the following example from the Commentary to Cl. 16-7 (dates reflect the fact that the example originates from the 1997 version):

On a voyage which lasts from 20 December 1995 to 10 January 1996, the ship sails in heavy weather for six days before and three days after the new year, resulting in a total loss of time of 60 days. The 1995 insurance contract has a 30-day deductible and covers 180 days per casualty, while the 1996 insurance contract has a 15-day deductible and covers 90 days per casualty. The 1995 insurance contract thus covers 6/9 of the 60 days of lost time, i.e. 40 days, subject to a deduction of 2/3 of the deductible period of 30 days, i.e. 20 days; hence 20 days of loss of time is recoverable. The 1996 insurer covers 1/3 of the loss of time, i.e. 20 days, subject to a deduction of 1/3 of the 1996 deductible period, i.e. five days; hence 15 days are recoverable. The maximum number of recoverable days under the 1995 insurance contract is 2/3 of 180 days, i.e. 120 days, and under the 1996 insurance contract 1/3 of 90 days, i.e. 30 days. Thus, in our example limits would have no relevance.

Sub-clause 2 of Cl. 16-7 expressly applies also to damage caused by ice during one voyage, so that all ice damage occurring during the voyage between the departure and arrival ports shall be deemed as one casualty. Prior to the 2003 revision, this was provided for in sub-clause 3 of 16-7. The above example relating to apportionment between two insurance periods is equally relevant for ice damage.

The pre-2003 sub-clause 3 of Cl. 16-7 also expressly provided that the then sub-clause 2 should apply correspondingly to damage caused by navigation in shallow waters. For the reasons explained above, the current Cl. 16-7, sub-clause 2 does not refer to how damage due to navigation in shallow waters shall be treated in connection with deductible periods. There is still every reason to treat this type of damage as equal to heavy weather and ice damage. The 2003 Commentary to Cl. 16-7 therefore expressly emphasises that damage occurring during one voyage due to navigating in shallow waters shall also continue to be treated as one casualty. In addition, the apportionment between two insurance periods shall be treated the same way as for heavy weather and ice damage.[14]

[14] In hindsight one may query whether there really was any benefit in making § 16-7, sub-clause 2 identical with § 12-18 and thereby deleting relevant express provisions which accurately provided for solutions the revision committee wished to maintain. Instead of getting the solutions directly from the text, users of the Plan must now read the Commentary very carefully in order to find out that what may seem from the outset as important substantive amendments are, in reality, not intended to entail any amendment at all. In the writer’s opinion, such legislative technique is not commendable.