NATIONAL CONTINGENCY PLAN FOR MARINE POLLUTION FROM SHIPPING AND OFFSHORE INSTALLATIONS [ Previous ] [ Contents ] [ Next ] APPENDIX N COST RECOVERY AND RECORD KEEPING N.2 It is essential that during any counter pollution or salvage operation all those involved keep records of what they did, when and why they did it and what resources they used. There is pressure, frequently severe, to deal with new issues and problems and to relegate record keeping to a lesser priority. However, the importance of contemporary records cannot be over emphasised. It is simply not realistic to rely on memory to reconstruct events in a fast moving and possibly lengthy incident. Responders must therefore arrange to keep adequate contemporary records. These records extend from minutes of decision-making fora to beachmaster records of the number of personnel, plant and materials used on a particular beach on a particular day and who provided them. The compilation of a photographic library, with all photographs date and time stamped would be of great assistance as proof of activities. It is also important to log all messages which might serve to change the pre-arranged response. N.3 The MCA’s experience in dealing with shipowners’ solicitors and/or the IOPC Fund suggests the following items of best practice:
Record keeping N.5 It is not possible to specify the precise form of records, this varies with the circumstances. However, there are two principal points to keep in mind:
N.6 The record should clearly show information received, decisions taken, orders given, and action taken. For example, responders may use aircraft for reconnaissance. In this case, there should be a record not only of when they called the aircraft out but of take-off times, landing times, details of any oil found, the area searched, who was on board the aircraft, who received the information and when. Records should distinguish between activities undertaken to assist the clean up operation and any general environmental monitoring or longer-term impact studies. For dispersant spraying operations, records should specify the area of operations and indicate the duration of spraying, the amount, type, age, and efficacy of dispersant used, and the results obtained. N.7 As a further indication of the level of records required for the hiring-in of an item of equipment, the MCA would seek to clarify the following items:
N.8 Local authorities inevitably find that this level of record keeping requires a heavy commitment in terms of minute clerks, message takers, procurement clerks and financial record keepers. There are specialist firms that offer tracking and recording services for clean up operations. The appointment of such a firm may be justifiable following a major spill from an oil tanker. In such a case it might be possible to recover the cost of using such firms, or temporary agency staff, from the P&I Club and the IOPC Fund. However, this depends on the particular circumstances, and it is prudent to check before employing the services of such a firm. N.9 Where the decisions involve or affect others, it is important to record their reaction at the time. It is important to record every party’s reaction and the conversation covered by all parties in addition to what was agreed or points of disagreement. This applies equally to ITOPF. They report to ship owners, P&I Clubs and the IOPC Fund and are likely to offer advice to all parties involved in the response on counter pollution operations likely to be considered reasonable. It applies also to others such as cargo owners, local authorities and the Environment Group. The records should show whether they agree or express no opinion. If they disagree, the records should identify the reasons, if possible. Records should distinguish criticism made at the time of an incident from criticism made with the benefit of hindsight. N.10 Like any operation involving the expenditure of large sums of money, the usual rules of proprietary, accountability and the need for an audit trail apply. Time limits for claims arising from pollution from tankers N.12 Wherever possible, claimants should seek to have their claims settled by negotiation within these periods. If this is not possible, claimants may protect their claims by taking legal action against the tanker owner, the owner’s insurer and the IOPC Fund. Should this be necessary, claimants should seek legal advice. N.13 Formal legal action to enforce a claim is usually the last resort. In most cases, informal negotiations result in a settlement. Given the time limits for legal enforcement of claims, it is in everybody’s interest for claimants to submit claims as soon as possible after the incident. Often, considerable time is required to compile a claim and all the substantiating evidence. If claimants anticipate delays, they should notify the tanker owner’s insurers and the IOPC Fund at an early date of the intention to submit a claim at a later stage. Claims arising from pollution from tankers N.15 The P&I Clubs do not publish formal guidance on their requirements for submitting claims, but the guidance in this appendix and the IOPC Fund’s claims manual should generally be appropriate. Submitting a claim to the IOPC Fund N.17 The IOPC Fund co-operates closely with the relevant P&I Club in investigating incidents, and in assessing and settling claims. Claimants should submit full supporting documentation to the tanker owner, the P&I Club or the IOPC Fund. Claimants who do not submit their claims to the Fund should notify it of any claim submitted to the tanker owner or P&I Club. N.18 In some cases, claimants should submit claims through the office of a designated local surveyor, for forwarding to the P&I Club and the IOPC Fund for decision. Occasionally, when an incident gives rise to a large number of claims, the P&I Club and the IOPC Fund may jointly set up a local claims office to process claims more easily. Claimants should then submit their claims to that office. The local press should carry details of how to submit claims. In all cases, the designated surveyor and the joint claims office refer claims to the P&I Club and to the IOPC Fund for decisions on their admissibility. N.19 Claims should be in writing and must contain the following particulars:
N.20 Supporting documentation must link the expenses for clean up operations (including disposal) to the actions taken at specific sites. The IOPC Fund produces a claims manual that provides helpful guidance on how such claims should be itemised. This guidance is just as relevant for claims submitted to a P&I Club under the 1992 Civil Liability Convention. N.21 The following extract comes from the edition of the claims manual dated April 2005. Claimants should check whether a later edition is available. Presentation of Claims Spreadsheets offer a particularly useful way of summarising some of the key information required in support of a claim. Each response organisation or contractor should maintain a daily log of activities, including details of the number of personnel involved, the type and quantity of equipment and materials used and the type and length of shoreline cleaned. If response vessels are used to combat oil at sea, extracts from their deck logs covering their period of deployment provide a useful source of information. Specific information should be itemised as follows:
Claims for the costs of treatment of oiled wildlife should essentially follow a similar pattern to that set out above for clean up costs. Details of the number of animals treated and the number successfully released back into the wild should be provided. If the specialist groups undertaking the work mounted campaigns to raise public funds for the purpose of maintaining field operations for a specific incident, details should be provided, including the costs of the campaigns, the amounts raised and how the money was used. Procedure in other cases – non tankers Financial Security N.24 This financial security can take several forms but in most cases is a Protection and Indemnity (P&I) insurer’s Letter of Undertaking (LOU). The wording of this Letter needs to be amended according to the type of charter / ownership of the vessel and legal advice should be sought if necessary. This document makes the MCA’s position clear to the insurers and shipowner. If the MCA are not provided with financial security during the incident further legal action is taken to underwrite the financial exposure by arrest of the casualty or freezing of the hull assets, but these actions are a last resort. N.25 Both a Letter of Undertaking and a Bank Draft require an amount of money to be included in the document. The MCA Financial Controller estimates a figure based on experienced gained in previous incidents, estimated length of response and a figure for refurbishment and return of the equipment to the appropriate storage site. Generally, at this stage an uplift is included in the level of financial security requested from the P&I for unforeseen costs. Most P&I representatives are experienced personnel and are well aware that the estimation of costs at this stage is not an exact science but it helps later negotiations on the claim if the figure given here is as close as possible to the quantum of the final claim. N.26 This procedure is followed as a matter of routine for MCA personnel for incidents not involving oil tankers as they are adequately covered by International Conventions (see Appendix M). The MCA are only prepared to accept this type of security from P&I insurers that are members of the International Group. For smaller, not so well known organisations, the preferred form of security would be a bank draft. N.27 The LOU also clarifies the legal jurisdiction for any subsequent legal action to recover costs, and the MCA’s preference for any such action would be the UK. N.28 When the Logistics and Finance Team return to MCA headquarters it is necessary, to back up the financial security provided, by forwarding a letter to the owners of the casualty, with a copy to the P&I, informing them that a claim under the Merchant Shipping Act will follow in due course. Claims arising from Oil Pollution from Offshore Installations and Pipelines |
