Sub-clause 3 (c) was amended in the 2013 Plan.
The definition in sub-clause (a) concerns losses which according to their nature are insurable under a hull insurance according to Part II of the Plan, or Part IV, Chapter 17, Sections 1 to 5, or other insurances for ocean-going ships in Part III of the Plan. The provision establishes a strictly complementary delimitation between the liability insurance and the above mentioned insurances. It is irrelevant whether the insurance in question has in actual fact been effected or whether it is limited quantitatively so that the assured will not get full cover, cf. “according to their nature”. This applies both in relation to limitations which follow from the actual standard conditions, and limitations which follow from individually agreed deductions or deductibles. However, an important exception to this rule concerns collision liability, cf. below.
Furthermore, the cover provided under Plan provisions is of decisive importance. If the assured has taken out insurance on conditions which afford a cover inferior to that of the Plan’s provisions, this will accordingly not result in any extension of the scope of cover of liability.
Overlapping between hull cover and liability cover occurs, partly where the liability insurer covers damage to or loss of the assured’s effects, and partly where the hull insurance covers the assured’s liability, see further Brækhus/Rein: Handbook of P&I Insurance, pp. 248 et seq. The most frequently occurring overlapping situation concerns collision liability, where the hull insurer according to Cl. 13-1, cf. Cl. 17-16, covers liability in connection with a “collision” caused by the vessel with accessories, equipment and cargo, or tug used by the vessel. However, this cover is subject to a whole series of limitations, cf. Cl. 13-1, sub-clause 2, Cl. 17-16, sub-clause 2, and Cl. 17-17, where the liability insurer comes in (with the exception of Cl. 13-1, sub-clause 2 (a), cf. below). In addition, the liability insurer covers liability which is not covered by the rule in Cl. 13-1, cf. Cl. 17-16. Reference is made here to the Commentary on Cl. 13-1 and Cl. 17-16, and to Brækhus/Rein 1.c. pp. 250 et seq.
According to sub-clause 1 (b), first sentence, the liability insurer does not cover losses as mentioned in Cl. 13-1, sub-clause 2 (a), i.e. liability which arises while the vessel is engaged in towage, or which is caused by the towage, unless it is a salvage operation. The reason for this exclusion Cl. is the increase in the collision risk which arises when the insured vessel engages in towage. The second sentence, however, modifies this exclusion as regards liability incurred during towage of a vessel belonging to the same fishing team.
Sub-clause 1 (c) concerns losses as mentioned in Cl. 4-16 and contains a delimitation in relation to fire insurance, cargo insurance or other general insurance. According to Cl. 4-16, the liability insurer will in certain cases be liable for damage to the assured’s own property. However, also on this point, the liability insurer’s liability is strictly complementary to general insurance. Losses which according to their nature are insurable under the said general insurances fall outside the scope of the liability insurance. The provision means that the assured normally may not claim compensation for damage to his own cargo according to Cl. 17-35. Such damage could have been covered by cargo insurance.
Sub-clause 2 represents an important exception to the principle that liability insurance is complementary to hull insurance. The liability insurer covers collision liability which exceeds the amount which the assured may claim under a hull insurance with a sum insured which is equivalent to the full value of the vessel. The liability insurance here provides a complementary excess cover of the assured’s collision liability.
The excess cover concerns liability in excess of “the amount which according to Cl. 13-3 is recoverable under a hull insurance with a sum insured that covers the full value of the vessel”. The “full value” of the vessel means the value (normally the market value) at the time the casualty occurs, not the insurable value in relation to the hull insurance, which is the full value of the interest at the inception of the insurance, cf. Cl. 2-2. However, the agreed hull value will be relevant as an element in the assessment of the real value. If the vessel is undervalued, the excess cover does not apply to the amount between the agreed hull value and the “full value” of the vessel.
Sub-clause 2, second sentence, provides a separate rule regarding collision liability for collision with the assured’s own vessel, cf. Cl. 4-16. For excess collision liability for sister ships, a deduction will be made for amounts which could have been covered under insurances as mentioned in sub-clauses (a) and (c). On this point the cover is thus subsidiary also in relation to insurances mentioned in sub-clause (c).
Sub-clause 3 makes the liability insurance partly subsidiary, partly complementary, in relation to benefits from the Norwegian National Insurance scheme, pension schemes, the Occupational Injuries Insurance and other personal insurance benefits funded by the liable employer. The provision comes in addition to the protection against liability for personal injury which the assured, and hence the liability insurer, already have under Norwegian law pursuant to Section 3-1, third sub-clause, and Section 3-7 of the Norwegian Compensatory Damages Act (NCDA), and which entails that a deduction shall be made in the claims settlement (on an exact amount basis or on a discretionary basis) for the relevant benefits, at the same time as the assured will normally not have any liability to the party who makes the payments. However, the delimitation in sub-clause 3 goes further than the rules of the NCDA.
The provision applies to any type of personal injury, regardless of who the injured party is, and therefore covers any liability for personal injury covered under Cl. 17-34. In addition, it applies to the liability for social benefits for the crew, cf. Cl. 17-44.
According to sub-clause 3 (a), the cover has been made subsidiary to national insurance benefits and benefits from employee or occupational pension schemes. The deciding factor here is the actual amount which the injured party receives from the said schemes. The provision applies only to “employee or occupational” pension schemes. Private pension insurance agreements that the injured party might have therefore fall outside the scope of cover.
As regards benefits covered by insurance agreements which are mandatory under collective wage agreements and which are funded by the liable employer, the cover of liability has, however, been made complementary, cf. sub-clause 3 (b). The provision is relevant where the assured becomes liable for persons of whom he is the employer, i.e. the vessel’s crew and any other employees who might be injured in connection with the running of the vessel. If the assured in his capacity of employer has neglected to take out the mandatory insurance, defaulted on payments of premium, etc., and therefore does not obtain a deduction for these benefits in accordance with Section 3-1, third sub-clause, of the NCDA, the assured must cover this part of the liability himself.
Sub-clause 3 (c) makes the cover of liability complementary to the occupational injury insurance. The 1996 Plan referred to the Norwegian Occupational Injuries Insurance Act of 16 June 1989 no. 65. The Nordic 2013 Plan refers to the relevant industrial injuries insurance legislation instead.
According to Section 3 of the Norwegian Occupational Injury Insurance Act, an employer is obliged to take out insurance to cover industrial injuries and industrial diseases for his employees. Losses which according to their nature are covered under this insurance are removed from the liability cover. This applies both in relation to the assured’s own employees, to persons whom the assured uses in the service of the vessel, but of whom the assured is not an employer, and for total outsiders, e.g. an injured party on an oncoming vessel in connection with a collision. As regards the industrial injuries insurance, the assured therefore bears the risk that other employers have in actual fact fulfilled their obligation to take out insurance. In practice, the injury will be covered by a pool arrangement if no industrial injuries insurance has been taken out. In view of the fact that the insurance companies involved have recourse against both the employer and the party causing the injury (the assured), cf. Sections 7 and 8 of the Norwegian Occupational Injury Insurance Act, cover under the assured’s liability insurance may give the industrial injuries insurance company a motive for a recourse claim against him. However, such injuries should remain with the employer or with the industrial injuries insurance companies jointly.