manufacturers beware: are your products in - rims handouts/rims 15/icm006/2015 rims... ·...
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Manufacturers Beware: Are Your Products in Process and Transit Adequately Covered? ICM 006
Speakers: Lester Brown, Partner, Perkins Coie LLP Todd Marumoto, Risk Manager, Mattel Inc. David Cole, Cargo Practice Leader, Allianz Global Corporate & Specialty Tom Pfister, Vice President Director Aon Risk Services
What Is Cargo Insurance?
The cargo is covered from the warehouse at point of origin to the warehouse at point of destination
Coverage extends to all intermediate transit by rail or truck Domestic and/or foreign inland transit can be insured Covers Marine, War Risk and includes Terrorism in transit Worldwide Coverage Subject to the Office of Foreign Assets Control (OFAC)
Covers physical loss and/or damage to goods during the ‘ordinary course of transit’
Terms of Average – covers all risks of physical loss or damage from any external cause unless specifically excluded.
Additional Coverages Deliberate Damage – U.S. Customs Service Import Duty Fraudulent bills of lading Concealed damage Contingency insurance for unpaid vendor Contingency insurance for Assured as consignee Difference in conditions/ increased value/ guarantee
of collectability Brands and Trademarks, Labels, or Cartons Refused shipments Shortage from intermodal containers
Ocean Cargo Policies Key Clauses
Inland Transit Policy
Ocean Cargo Policy Inland Transit Policy
Local Property Policy
Suppliers Insurance?
Warehouse/DC Facilities Final Destination
Final Destination
Local Property
Policy
Export
Domestic Local Property Policy
Suppliers Insurance?
Typical Coverage “Maze” for Movable Assets
Cargo Stock Thru-Put Introduction • What is Stock Through Put Policy
• Origin of Policy – mid- 1970’s
• What is covered?
Definition: Transportation programs which include sold and un-sold finished product, raw materials and work in process at:
owned locations distribution hubs suppliers
processors
Installations un-named locations options for retail distribution sites.
Cargo Stock Thru-Put Programs
Coverage Terms of Cargo Stock Thru-Put Policy
• Goods in transit worldwide
• Stock – finished, work in process (WIP) and raw materials
• All locations – including at Insured’s locations, sub-contractors, consolidators, warehousemen
• Also can include miscellaneous property, including business personal property
Departure of Raw
Materials
Port of Loading
Port of Des6na6on
Arrival of Raw
Materials at
Processing Warehouse
Departure of Finished Goods
2nd Port of Loading
2nd Port of Des6na6on
Warehouse Facility/
Distribu6on Center
Retail Loca6on/ Final
Des6na6on
Cargo Stock Thru-Put Flowchart
Import Export Exposure required Satisfactory COPE information on locations No cover for Real Property or Furniture Fixtures etc. Stock location limits “primary” under STP excess layered
into property program. Earthquake, Flood, Wind sub-limits or Policy Annual
Aggregates in CAT prone areas. Schedule locations above $ dollar threshold Un-scheduled location limits provided below threshold
Cargo STP “General” Underwriting Guidelines
Cargo STP Rating Information • Transit Values – Annual Turnover
• Stock Values – List of Locations with COPE
• Annual Sales
• Three Year Losses for transit and stock
GEOGRAPHICAL LIMITS: Covers at and from ports and/or places in the world to, and at, ports and/or places in the world, including transshipments by land, air, water, or otherwise, unless prohibited by U.S. law or Governmental decree. U.S. ECONOMIC AND TRADE SANCTIONS CLAUSE Whenever coverage provided by this Policy would be in violation of any U.S. economic or trade sanctions such as, sanctions administered and enforced by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC"), such coverage shall be null and void. ·
Stock Thru-Put Cargo Key Clauses
APPLICATION OF WAREHOUSE TO WAREHOUSE AND MARINE EXTENSION CLAUSE:
Regardless of terms of purchase, sale, bill(s) of lading or other documentation, provided the Insured is obligated to insure the primary transit, this insurance covers from warehouse to Warehouse in accordance with the clauses contained in this policy. LOADING/UNLOADING: Covers…during the loading process prior to dispatch (including, Into containers, trailers and rail cars) continues while awaiting transit and after arrival destination, until unloaded (from containers, trailers and rail cars) throughout unloading process. INTERRUPTION OF TRANSIT: Extended to cover goods and/or merchandise and/or property insured under this policy whenever same are stopped in transit, anywhere in the world, short of final destination. ·
Stock Thru-Put Cargo Key Clauses
London Policy Key Clauses Voyage Clause …attaches from the time the subject-matter becomes at the Assured’s risk or the Assured assumes interest and continues whilst the subject-matter is in transit and/or in store, or elsewhere including whilst held as stock (whether at warehouse, retail outlet or elsewhere) whether or not in the course of transit and including any interest held for the purpose of consolidation and until Assured’s risk and /or interest finally ceases at final destination… Further including the risks of loading prior to dispatch and unloading after arrival at Assured’s or consignee’s premises. Insurable Interest With respect to the coverages provided in this policy whether they be contingent, extended, or otherwise, the insurable interest of the Assured is admitted at all times.
Storage / Inventory / Processing Covers: raw stock, materials, goods in process, finished goods, and packaging materials or goods of others which Insured is liable. Worldwide, except in countries, which are the subject of trade or economic embargoes Insured against, all risks of physical loss or damage from any external cause, subject to policy exclusions Valued, in accordance with the VALUATION CLAUSE contained in this Policy, plus the actual amount of import duty paid or payable. Limits of Liability and Scheduled Locations, as per schedule of locations and statement of values on file
Storage / Inventory / Processing Catastrophe Perils - ANNUAL AGGREGATE LIMITS To the following CATASTROPHE perils; a. Earthquake b. Named Windstorm c. Flood AN AGGREGATE LIMIT IS APPLIED. Separate Towers for each peril can be arranged. The most Insurers would pay for all losses caused by a CATASTROPHE peril at all NAMED LOCATIONS during the policy period is the "AGGREGATE LIMIT".
Target Customers:
• Manufacturers
• Wholesalers
• Importers and exporters
• Contractors with shipping needs to Project sites
• Suppliers
• Processors
• Distributors
• Retailers
Cargo Stock Thru-Put Programs
Coordination of Logistics and Distribution of Product worldwide
under one policy. Continuity of Valuation for sold and unsold product anywhere in
the world. (Selling price or other agreed value options) Local Admitted Policies Property and Marine where required In the end, it’s up to the broker to advise client
Cargo Stock Thru-Put Programs Client Perspective
Selling Points: Stock Throughput Policy
Eliminates Coverage Gaps • Stock covered under one policy anywhere in
the world • Can include coverage in retail stores and
during processing Broader Coverage
• The exclusions on a Stock Throughput Policy are few versus pages of exclusions on a typical package policy
CAT Coverage Available • Earthquake, Wind and Flood coverage
available with flexible limits • CAT deductibles starting at a flat amounts per
occurrence versus a large percentage on a typical package policy
Advantages of Cargo Stock Thru-Put • Seamless coverage – “cradle to grave”
• Broad manuscript marine forms
• Coverage for earthquake, flood, and windstorm includes stock at fixed locations.
• Combined with property policy to obtain lower deductibles and increased capacity
• Broader terms and possible premium savings over property markets
• Combining Marine and Property to provide greater account capacity – with Marine limits up to $500 million with quota share and excess placements.
Disadvantages of Stock Thru-Put • No standard forms
• Possible application of two deductibles between marine and property programs
• Must coordinate underwriting between property and marine underwriters. Market Marine first.
• Premium credit under property policy may not be sufficient to “off-set” price of STP policy
Examples of Programs
• Combining Transit and Stock may include retail locations
• Cargo Stock Thru-Put as primary, Property as excess
• Overall Higher Earthquake, Flood, and Windstorm Coverages in layered program
• Lower Stock and Transit Deductibles
• Possible Premium Savings in layered programs
• Quota share participation in Marine common to create capacity.
Markets • Allianz, AIG, ACE, XL, Zurich, Starr, – most USA domestic
underwriters
• London/European underwriters
Market Capacity
London Allianz AIG Starr Zurich ACE XL Travelers CNA Endurance Markel Chubb Hartford Navigators
$10 Million
$20 Million
$30 Million
$75 Million
$150 million
Market CAT Capacity
London Allianz AIG Starr Zurich ACE XL Travelers CNA Endurance Markel Chubb Hartford Navigators
$10 Million
$20 Million
$30 Million
$75 Million
$150 million
Business is global so are the risks
Indirect Supplier
Power Supplier
Direct customer
Indirect customer
Indirect and direct Supplier
Insured location 5
Insured location 2
Insured location 3
Insured location 4
Insured location 1 (HQ)
An admitted policy is a policy issued or coverage provided by
an insurer to a policyholder domiciled in a territory where
that insurer is licensed.
Local insurance law (more than 200 different laws) mandates that a policy is issued
or coverage provided only by an insurer licensed in the country where the risk is located.
Admitted
Non- Admitted
A Non-admitted policy is a policy issued or coverage
provided by an insurer to a policyholder domiciled in a
territory where that insurer is not licensed.
The Question of “Admitted” versus “Non-Admitted”
Need Global Risk and Insurance Strategy
Expanding business and global footprint
Global supply chain
integration
International legal & cultural environment
Global customer
needs Insured (HQ)
Insured faces: § need for an integrated
approach to risk and insurance management, combining central co-ordination with effective local delivery
§ Degree of insurance responsibility at corporate vs. local level.
§ Integration of arrangements for Marine and Property
Potential Legal Issues Is Stock Thru- Put Marine Insurance?
If so, special rules apply that are Less Favorable to the policyholder and need to be understood before any application is completed. Marine Insurance Policies require the application of an ancient English doctrine called uberrimae fidei , or utmost good faith. The applicant has a Duty to reveal all facts within his/her knowledge that are material to the calculation of the risk. This Duty is imposed whether or not the Underwriter asks for the information. Materiality includes any information that would have an effect on whether the Underwriter would write the risk, how he/she would write it or whether the Underwriter would write it at all.
Potential Legal Issues Utmost Good Faith
Even an unintentional misrepresentation of a “material fact” can result in lost coverage The penalty of a failure of Utmost good faith is no coverage and a recession of the policy with the return of the premium. Generally courts will apply Federal Common law and state law regarding the rules for Marine insurance. Recent trend is to question the severity of the application of this rule in modern society where extensive information is available from multiple sources about the risk including the internet. Exemplar Case: Certain Underwriters at Lloyds, London v. Inlet Fisheries Corp., 518 F. 3d 937 (9th Cir. 2008)(“Inlet Fisheries”) Requirement may be modified by EXPLICIT WRITTEN WORDING in the Policy. See New Hampshire Ins. Co. v C’est Moi, Inc. 519 F.3d 937 (9th Cir. 2008)
Possible Legal Issues • CHOICE OF FORUM AND LAW
London New York Other Locations
• ARBITRATION v LAW SUIT
ENGLISH/BERMUDA Restricted Discovery and High Expense
AMERICAN More Open Discovery and Lower Expense
Potential Legal Issues OTHER ISSUES
• IN TRANSIT Dairy Am. Inc. v New York Marine & Gen. Ins. Co., 2009 WL 2184547 (9th Cir. Dec. 16, 2010)
• INSURABLE INTEREST
• CAUSATION
• SUE AND LABOR
Potential Legal Issues OTHER ISSUES: PHYSICAL DAMAGE If the STP policy only responds to Physical Damage what happens if the cargo/stock is not damaged but cannot be accessed and thus its value is diminished?
POSSIBLE SOLUTIONS: ACCESS TO PROPERTY ENDORSEMENT Should a civil authority deny Assured access to cargo/stock as a result of damage to a building and/or structure and/or conveyance from an insured peril, such cargo/stock which cannot be retrieved, shall be considered a total loss under the terms of this policy. INGRESS/EGRESS ENDORSEMENT This policy is extended to cover the “actual loss sustained” during the period of time when, in connection with or following a peril insured against, access to or egress from real or personal property is impaired. Subject to a 30 day maximum period.
Learning Objectives Key learning objectives and takeaways
• Cargo Stock Thru-Put combines goods in transit worldwide with stock
coverage at locations, subcontractors and other third party logistics
providers.
• Capacity and Creativity found in the Marine Market
• Coordination with Property Underwriters Key
• Local Admitted Insurance important for Global STP Programs
• Utmost Good Faith representations required in Marine submissions
• Potential legal issues require review and special knowledge
• Property clauses crossing over to Marine may have issues.
Lester Brown Partner, Insurance Recovery Perkins Coie LLP
Les Brown, a partner in Perkins Coie's Insurance Coverage Li:ga:on prac:ce, has extensive experience in complex commercial li:ga:on in federal and state courts throughout the country, with an emphasis on represen:ng policyholders in high-‐stakes insurance coverage disputes. He has represented electric and gas u:li:es, high-‐technology, telephone, chemical and oil companies, as well as manufacturers, landlords and municipali:es facing cyber, media, cargo, environmental, product liability, first-‐party property, adver:sing liability, directors and officers liability and terrorism claims. Mr. Brown represents clients with interests throughout the world. His accomplishments include obtaining one of the largest awards ever secured against London Insurers in an arbitra:on for a public u:lity; moving a first-‐party coverage maIer brought by Lloyd's of London from the High Court in London to the client's home country and seIling the maIer for the full amount of the loss; assis:ng an energy company client in obtaining a nine-‐figure seIlement of a terrorism loss aJer a successful trial; and helping a client facing a major securi:es class ac:on case to seIle with tens of millions of dollars provided by his insurance companies. Mr. Brown has assisted clients for over 25 years in recovering hundreds of millions of dollars from their insurance companies. He has represented clients in federal and state courts in over 17 jurisdic:ons, and assisted in the prosecu:on of claims in courts in the Caribbean and in England. Mr. Brown is a Fellow of The American College of Coverage and Extracontractual Counsel, and has been honored by the Daily Journal’s California Law Business list of rainmakers for over seven years and by Los Angeles magazine as one of Southern California’s top “Super Lawyers.”
Phone: 310.788.3203 Email: [email protected]
Todd Marumoto Director of Risk Management MaIel, Inc.
Phone: 310.252.3208 Email: [email protected]
Todd Marumoto is the Director of Risk Management for MaIel, Inc. and the Director Risk Management and Vice President and Board member of Far West Insurance Company, a wholly owned Cap:ve subsidiary owned by MaIel. Responsibili:es include management of worldwide risk and insurance programs, casualty and property loss control, business con:nuity and management of MaIel’s insurance cap:ve Far West. The MaIel family of companies (Nasdaq: MAT) is the worldwide leader in the design, manufacture and marke:ng of toys and family products. MaIel’s poreolio of best-‐selling brands includes Barbie®, the most popular fashion doll ever produced, Hot Wheels®, Monster High®, American Girl®, Thomas & Friends® and Fisher-‐Price® brands, including LiIle People® and Power Wheels®, MEGA® Brands, including MEGA BLOKS® and RoseArt®, as well as a wide array of entertainment-‐inspired toy lines. Todd is a graduate of CSULB – Business degree, UCLA – Accoun:ng, Associate in Risk Management (ARM), RIMS Fellow Designa:on (RF), member of Risk and Insurance Society (RIMS), Former Board member of LA Chapter of RIMS, Former CommiIee member, Vice Chair and Chair of Member Chapter Services CommiIee for the Society of RIMS. He is a California licensed Insurance Broker.
David R. Cole, CPCU AMIM Western Region Cargo Prac:ce Leader AGCS Marine Insurance Company
David Cole currently serves as the Western Region Cargo Practice Leader – Allianz Global Corporate and Specialty, responsible for service teams located in Seattle, San Francisco, Los Angeles and Denver. Prior to AGCS, David was at the Fireman’s Fund McGee Marine Underwriters where he held several positions. From 1999-2003 he was the Southwest Region Marine Executive responsible for four Underwriting offices handling Inland Marine, Ocean Marine and Hull & Marine Liability lines in Southern California, Arizona, Nevada, New Mexico, and Colorado. From 1983 – 1999 he was Marine Branch Manager in Irvine California responsible for Cargo and Hull & Marine Liability underwriting in Southern California, Arizona, Nevada, New Mexico, Colorado and Yacht Underwriting in Washington, Oregon, California, Arizona, Nevada, New Mexico and Colorado. From 1976 – 1983 He served as a Branch Manager, Ocean Marine Lines in Dallas, Texas , Senior Underwriter, in San Francisco California, Underwriter, Los Angeles California. David has a Bachelor of Science Degree, Economics and Business Administration from the University of Redlands, Redlands, California
Phone: 213.861.7300 (Ext: 394-‐3) Email: [email protected]
Tom Pfister Director, Marine Aon Risk Insurance Services West, Inc.
Tom started his Insurance Career working for the Insurance Company of North America as a Marine and Avia:on underwriter. Moving to San Francisco in February 1972, he worked in the California market un:l April 1978 moving on to Atlanta as the Commercial Hull and P&I Manager. Tom then accepted a posi:on with the Atlan:c Mutual Insurance Company back in San Francisco and was responsible for all lines of Marine Insurance for the West Coast. He then accepted a posi:on with AIG and was their Cargo Manager for the West Coast un:l January 1994 when he accepted a posi:on at Alexander & Alexander (A&A)as a Marine Broker and handled all Marine lines of business for clients. Tom now works for Aon, who acquired A&A in 1999 as their Director of Marine Insurance for the West Coast. Tom is experienced in all lines of both Ocean and Inland Marine Insurance, has his CPCU and AMIM designa:ons and also taught various Insurance Courses for the Insurance Educa:onal Ins:tute, including Property, Marine and Ethics and has taught classes on Marine Insurance in China.
Phone: 415.486.7274 Email: [email protected]