2.4       Role of Superintendent in Agreeing Cause of Damage

a)         Technically Straight Forward Claims

Example of this are contact, collision, heavy weather etc., i.e. where it is clear what caused the damage and that damage was clearly accidental.
 

The Superintendent should agree the cause with the attending Surveyor at the time of the survey in order to save time. Basic evidence should also drawn to the Surveyor’s attention such as logbook and Master’s or Chief Engineer’s reports.

b)         Complicate Claims

If the evidence is at all unclear or the damage is a complicated machinery claim, it is advisable not to make an allegation to the attending Surveyor until the matter has been researched and discussed with Average Adjusters. If in doubt, please discuss with us first! It is important to stress that if you are unsure about the cause, there is no obligation on you to make an allegation. The approach with the Underwriters’ Surveyor is that you are unsure about cause and wish to discuss the matter further with your technical department. The Insurers’ Surveyor will accept this approach.

In talking to the Surveyor, terms such as “latent defect” should be avoided in view of their precise meaning and the limited cover they may offer. An attempt to get the real story from the crew also must be made despite any defensiveness they may have.

C)         Burden of proof

The Shipowners must show that the cause is covered by the policy conditions. It is not for the Underwriters’ Surveyor to show that it is not, i.e. the Underwriter’ Surveyor need make no suggestion on the cause of damage.

2.5       Wear and Tear

Wear and tear does not automatically rule out an insurance claim. In the following circumstances, a claim is possible:

1. If wear and tear is not ordinary but rather extra-ordinary wear and tear. However, the cause of it would require investigation.

2. Even though damage may come about through wear, the crew may have been negligent in filling to mitigate the effects of such wear and tear.

3. If wear and tear leads to an accident under the Additional Perils Cause, the consequential damage is covered policy.

4. If wear and tear produced an existing defect in the hull or machinery but the loss would not have occurred had not an insured peril been present, e.g. damage to shell plating in heavy weather.

5. Scandinavian condition – The Norwegian Plan and Swedish conditions are less understanding about wear and tear and therefore it is advisable where possible to rule out wear and tear in your investigations.

2.6      Due Diligence

a)Policy Conditions

The Institute Time Clause (Hulls) 1.10.83 Clause 6 (2) and the Additional Perils Clause are subject to the due diligence proviso which states that the insurances cover a loss provided such “loss or damage has not resulted from want of due diligence by the Assured, Owners or Managers”.

2. whose Duty
    

This duty is a personal one of the Assured, Owners or Managers. In a large company, the Technical/Operations Manager would be deemed to be the alter ego of the company who should perform this duty.

An example would be a 1ub oil contamination claim that is attributed to crew negligence but later it was found that the result of repeated oil analyses which indicated problems existed had not been acted on or alternately that no such analyses had taken place.

3. Burden of proof
    

Strictly the Owners should show that this clause has been complied with rather than the Insurers having to show that the Owners have failed in this respect

4. 1.1195 Clauses- Extension of the Due Diligence proviso
    

Under the newer clauses, the due diligence proviso has been extended to include “Assured, Owners, Managers, Superintendents or any of their onshore management” .The significance of this extension is considerable and you will note that superintendents are singled out. Our understanding is that at least part of the intention of the new wording is to exclude progressive damage claims sustained over a period of time, e g 1ub oil or boiler feed water contamination, and also other claims attributable to lack of maintenance. However, this clause goes rather further because an isolated or momentary error by onshore management could also defeat a claim otherwise covered by one of the perils in 6.2.

We think that in modern shipping conditions, where superintendents and onshore management have a considerable involvement in the day-to-day operation of the ship, this clause will have a major impact.