REPORT OF THE THIRTY-SIXTH ANNUAL
MEETING
OF THE Association of Average Adjusters of Canada
Held on13th June 2002 in Montreal
2002
OFFICERS OF THE
Association of Average Adjusters
of Canada
(Founded in 1967)
1967 - 2002
CHAIRMAN
Peter Boucher
EXECUTIVE COMMITTEE
Ron Eldridge, Chairman
A. E. Brain, D. Holden
RULES OF PRACTICE COMMITTEE
N. Dennis, Chairman
J. Sanders, W. Kyle
MEMBERSHIP COMMITTEE
I. Fraser, Chairman
T. Stradling, M. Gesner
ADVISORY COMMITTEE
J.A. Cantello, N. Dennis, I. Fraser
SECRETARY
Tina Dennis
214 Hampshire Road,
Beaconsfield, Quebec,
H9W 3N7
MEMBERS OF THE
Association of Average Adjusters
of Canada
* Present at Annual Meeting
FULL MEMBERS
NAME
Barritt, W. (1985) London
* Boucher, P. (1983) Vancouver
* Brain, A.E. (1983) Montreal
Brotherton, C.H. (1977) Sydney, B.C.
Cantello, J.A (1967) Montreal
Coates, W.G. (1967) Vancouver
Dean, K.R. (1967) Vancouver
* Dennis, N.J. (1984) Montreal
Eldridge, R.K. (1984) Toronto
* Fraser, I. (1986) Toronto
Fuller, B.F. (1977) New York
* Gesner, M.S. (1985) Vancouver
Holden, D. (1973) Vancouver
Jones, W.J. (1967) Vancouver
* Kyle, J.W. (1967) Halifax
Stradling, T.G. (1971) Poway, Washington
ASSOCIATE MEMBERS
Erwin L. (1988) Toronto
RESIDENT ASSOCIATE MEMBERS
* Andal, R. (2001) Toronto
Angus, W.D. (1968) Montreal
* Baranski, R. (1982) Montreal
Barker, S.P. (2001) Vancouver
Batten, J.R. (1972) Montreal
Baudry, E. (1979) Montreal
Baxter, B.J. (1982). Toronto
Berrington, C. (1997) Vancouver
Bickers, R.S. (1985) Toronto
* Bilodeau, J.F. (1998) Montreal
* Bishop, T.H. (1968) Montreal
Bodkin, P. (1993) Toronto
* Bolger, P.J. (1991) Montreal
Buna, A. (1973) Toronto
Cameron, I. (1982) St. Catherines
* Cathcart, P.G., Q.C. (2001) Toronto
Clément, J. (1994) Quebec City
Coric, I. (2001) Kirkland, Quebec
Crompton, P (2002). Montreal
Crozier, K. (1995) Toronto
* Cullen, P.J. (1988) Montreal
Davidson, P.W. (1992) Montreal
Davey, E.F. (1987) Toronto
De Man, M. (1978) Montreal
DeMarco, V. (1990) Montreal
* Demers, M. (2000) Quebec City
Deslage, C. (1992) Montreal
* Dong, Li (1992) Montreal
* Dow, R. (2001) Greenfield Park, Quebec
Down, P.M. (1973) Toronto
Douris, M. (1991) Toronto
Duggan, R. (2002) Halifax
Eggar, D. (1988) Vancouver
* Fernandes, R.M. (1985) Toronto
Fogden, C.H. (1992) Toronto
Fortier, L. (1990) Montreal
Frawley, N.H. (1981) Toronto
* Gaudreau, R. (1987) Quebec City
Gibbons, G. (1995) Toronto
* Gordon, A. (1980) Montreal
Gregoire, J. (1986) Quebec City
Grenning, M.C. (2001) St. John’s
Hamilton, D.A. (1993) Halifax
* Harrington, S.J. (1973) Montreal
Harvey, C. (2001) Vancouver
* Hawkins, T. (2002) Vancouver
Hayes, R.L. (1976) Montreal
* Hearn, G. (1994) Toronto
Holden, M. (2001) Mississauga
Hollings, R. (2000) Mt. Pearl, Nfld.
Howden, F.A. (1977) Montreal
Huneault, P. (2001) Montreal
* Iyer, N. (1998) Toronto
Jaques, M. (1976) Montreal
Jette, M.R. (2001) Saint John
Johnson, T.V. (2001) Bedford, N.S.
Kochath, V. (2000) Mississauga, Ont.
Kowan, S.A. (1983) Vancouver
Lobo, P. (1996) Toronto
* Loiseau, A.J. (1992) Montreal
Lonergan, R.M. (2001) Vancouver
* Luca, B. (1991) Montreal
MacDonald, M.E. (1990) Halifax
MacLeod, D.A. (1998) Dartmouth
Maione, L. (2001) Toronto
* Major, G.P. (2001) Montreal
Malczewska, C. (1981) Toronto
* Marchington, K. (1989) Toronto
Margellis, T. (2002) Toronto
* Marler, D.F.H. (1975) Montreal
Martin, W. (1985) Montreal
Matheson, I.M. (1991) Toronto
Maybee, W. (2000) St. John’s
Melkonian, L. (1973) Montreal
McRae, D.S. Jr. (1986) Montreal
* Metcalf, F., Q.C. (1984) Halifax
Montpetit, R. (1975) Montreal
Morgan, S. (2001) Dartmouth, N.S.
* Nicolopoulos, T. (2001) Montreal
* O’Brien, G.J. (2001) Montreal
* O’Connor, J. (1987) Quebec City
* Oland, A.B. (1991) Vancouver
Painter, R. (1976) Montreal
* Pamel, P.G. (1992) Montreal
* Parfett, C.H. (1968) Montreal
Park, W.K. (2001) Mississauga
Payne, A. (2001) Toronto
Pilotte, A. (1987) Montreal
* Pollack, G.J. (1987) Montreal
* Prager, V. (1976) Montreal
Price, L. (2001) Toronto
Provis, W.A. (2001) Toronto
Reinhold, C. (1988) Vancouver
Rolland, A.W.R. (1991) Montreal
* Rossi, M.J. (1982) Montreal
Royer, F. (1996) Quebec City
* Rozum, P. (1984) Montreal
Rudolph, B.E. (2000) Dartmouth, N.S.
Ruthven, A. (2001) Westmount, Que.
Ryan, M.S. (2001) Halifax
Rysanek, J.J. (1983) Ottawa
Saldanha, J.E. (1986) Montreal
Sanders, J. (1994) Toronto
Sharpe, Wm. M. (1995) Toronto
* Shaw, R.D. (2002) Vancouver
Shelton, P.S. (1972) Halifax
Simmons, C. (2000) St. John’s
* Southcott, R. (1996) Halifax
Spicer, J. (1997) Toronto
Spicer, W., Q.C. (2001) Halifax
Spillane, N.J. (1990) Montreal
Sproule, J.K. (1983) Montreal
St. Martin, L. (2001) Toronto
* Steedman, D. (2002) Montreal
Stoll, K.E. (2002) Toronto
* Strathy, G.R. (1985) Toronto
Struhanyk, M. (1997) Toronto
Tabib, M.A. (2001) Montreal
Taylor, P.J. (2001) Keswick, Ont.
Templeton, K.A. (2001) St. John’s
* Tetley, W., Q.C. (1968) Montreal
Thomson, J.P. (1998) Toronto
Tourigny, P. (1975) Montreal
Trout, R. (1976) Toronto
Vaillancourt, G. (1981) Quebec City
* Vanderby, M. (1976) Montreal
* Walker, G. (2002) Vancouver
* Verconnich, C. (1994) Toronto
* Weale, J. (2000) Montreal
* Wyld, P. (1998) Montreal
Yiokaris, D. (2002) Toronto
Youden, J. (1996) Halifax
FOREIGN ASSOCIATE MEMBERS
Aggersbury, R. (1996) London
Aquilla, P.J. (1982) Bay Village, Ohio
Barnes, P.G. (2001) New York
Bulsara, S. (1998) San Francisco
Burke, T.M. (1984) New York
Bycroft, G. (1982) London
Cathro, A. (2000) Friendswood, Texas
* Deere, G.H. (1979) Penarth, U.K.
Distefano, T.E. (1975) New York
Dreyfuss, H. (1975) New York
Fordham, H. (1972) Antwerp
Ginter, G. (1990) New York
Gran, P. (1987) New York
Hayden, R.M. (1987) Miami
Haefner, L.O. (1984) San Francisco
Hudson, N.G. (1973) London
* Jackson, G. (2000) London
Jani, A.M. (1999) Bombay
Keller, D. (1985) New York
Knudsen, J. (2001) New York
Lau, S.O. (1988) Sacramento
* Madge, T. (2001) London
* McCormack, H.M. (1998) New York
* McGarry, S.M. (1972) New Jersey
McDonald, J.B. (1994) New York
Miles, B.J. (1994) Detroit
Miles, R.G. (1983) Jersey City
Moseley, J. (1998) Jacksonville
Myerson, H.L. (1968) New York
Nakanishi, M. (1995) Tokyo
Nocon, R. (1998) Oakley, California
Okada, T. (1998) Tokyo
Parathyras, H.C. (1983) New York
Pietropola, F. (1990) Philadelphia
Rahn, M.L. (1989) New York
Reilly, J. J. (1985) New York
Rockman, S. (2001) New York
* Spencer, J.S. (1985) New York
Sprake, T.P. (1970) Miami
Treacy, I. (1996) London
Van Hemmen, H. (1999) New Jersey
Ward, D.L. (1981) New York
Wozniak, S. (2000) Friendswood, Texas
Yamaoka, S. (1999) Tokyo
HONORARY MEMBERS
Atkinson, M.A. (1967) Vancouver
Fitzgerald, D.C. (1967) Toronto
Golding, H. (1967) Montreal
Hext, K.W. (1967) Vancouver
* Hyndman, A.S. (1968) Montreal
Robson, R.A. (1971) Toronto
SECRETARIES
Coates, W.G. 1967-1972
Stradling, T.G. 1972-1974
Golding, H. 1974-1987
Fraser, I. 1987-1997
* Dennis, C.L. 1997-2002
Marler, D.F.H. 2002-
CHAIRMEN
Mann, J.C. 1967-1968
Mowat, J.T. 1968-1969
Lyons, R.A. 1969-1970
Nicolson, C. 1970-1971
Cantello, J.A. 1971-1972
Platt, A.H. 1972-1973
Fitzgerald, D.C. 1973-1974
Hyndman, A.S. 1974-1975
Atkinson, M.A. 1975-1976
McRae, D., Sr. 1976-1977
Kyle, J.W. 1977-1978
Chauvin, R.J. 1978-1979
Coates, W.G. 1979-1980
-- Brisset, J. 1980-1981
Dean, K.R. 1981-1982
Angus, W.D. 1982-1983
Hext, K.W. 1983-1984
Beard, D.L.D. 1984-1985
Robson, R. 1985-1986
Tetley, Prof. W. 1986-1987
Belle, H.L. 1987-1988
Deere, Capt. G.H. 1988-1989
Cantello, J.A. 1989-1990
Simpson, R. 1990-1991
Stradling, T.G. 1991-1992
Jaques, M. 1992-1993
Holden, D. 1993-1994
Strathy, G.R. 1994-1995
Dennis, N.J. 1995-1996
Harrington, S.J. 1996-1997
Fuller, B.F. 1997-1998
Metcalf, F.E., Q.C. 1998-1999
Brain, A.E. 1999-2000
Marler, D.F.H. 2000-2001
Boucher, P. 2001-2002
REPORT OF THE THIRTY-SIXTH ANNUAL MEETING OF THE ASSOCIATION OF AVERAGE
ADJUSTERS OF CANADA HELD AT THE ST. JAMES’S CLUB, MONTREAL, 13TH JUNE
2002
The Chairman, Peter Boucher
Good morning distinguished guests, ladies and gentlemen. Welcome
to the 36th annual meeting of the Association of Average Adjusters of
Canada.
This year as in the past we are fortunate that our Association is able
to attract so many distinguished guests to its annual meeting. I
would like to identify our distinguished guests by name and as I do so
I would ask them to stand and be recognized. (Please keep your
applause until the end.)
Tim Madge: Chairman, Association of Average Adjusters of the
United Kingdom
Howard McCormack: Chairman, United States Association of Average
Adjusters, also appearing on behalf of the President of the United
States Maritime Law Association
Hidde Lahaise: President, European Association of Average
Adjusters
Ikuya Fujii: Chairman, Association of Average Adjusters of Japan
James Gould: President, Canadian Maritime Law Association
Claudio Verconich: Vice President, Canadian Board of Marine Underwriters
John Weale: President, Association of Maritime Arbitrators of
Canada
Mario Rossi: Salvage Association. Canada
Manon Campbell: Port of Montreal
(Applause)
We would also like to recognize Graham Deere and Graham Jackson who
have traveled from the United Kingdom and also Steve McGarry and
Jonathan Spencer from the United States.
(Applause)
At our dinner last night David Marler recognized the contribution made
by Tina Dennis. Tina Dennis has been the Association’s Secretary
for over five years. She has faithfully kept us all advised,
chased us for our dues, arranged hotel bookings and kept confused
Chairmen such as myself in line. I would ask her to stand and be
recognized by the membership present here today as well as our guests.
(Applause)
Usually your Chairman would stand before you and comment on the
functions he was able to attend on your behalf. When I accepted
this office my working life was busy but I believed predictable.
I thought I had reached that point in my career where I could enjoy the
opportunity offered by the Chairmanship to its fullest. The
Marine Insurance Market was hardening and optimism was high that this
would lead to a sustained return to profitability.
However, 2001/2002 has not turned out to be one of my more relaxing
years. Quite the contrary, I still wonder whether I will survive
it. The events of September 11th, 2001 have made significant
changes to the insurance world. Our company suffered grievous
losses, as did many of our clients and neighbors in the World Trade
Center. I speak for all the members of this Association when I
say that our best wishes go to all of the families that suffered a
loss.
Although I was precluded from attending the functions which your
Chairman usually attends; including the U.K. Association meeting, the
U.S. Association meeting, the U.S.M.L.A. meetings, and, most recently
the C.B.M.U. meeting, I am indebted to David Marler for graciously
stepping into the breach and ably representing the membership at each
of these meetings. David on behalf of the membership and myself
thank you again.
(Applause)
At the business meeting yesterday this Association passed measures,
which will amend the bylaws which govern the acceptance of Members.
These measures allow for qualification as an Average Adjuster being
achieved through a course of study. I was personally pleased that
the exact nature of the requirements was not set out but rather we will
encourage persons with a wide range of qualifications to apply and the
Membership Committee will work with the candidate to personalize each
training program. Through this openness it is hoped we will
succeed in broadening the membership skills of the Association. I
would like to thank David Marler who chaired the committee which
produced the consensus that resulted in these amendments.
Moving now to the business of this meeting, the first item is the
adoption of the Minutes of the last Annual Meeting that was held in
Montreal on June 14, 2001. I would therefore propose the
following motion: "that in accordance with the Bylaws, the Minutes of
the last Annual Meeting, having been examined and certified correct by
the Executive Committee, that same now be confirmed". And I would
move that Motion. May I have a seconder? Mr. Bill Kyle. Thank you. All
in favour. Carried.
We move now to the next item on the Agenda which is the subject of my
address. The topic of my speech today is "The Association of
Average Adjusters A Bright Future".
THE ASSOCIATION OF AVERAGE
ADJUSTERS A BRIGHT FUTURE
I am sure that previous Chairmen have stood before such an august body
as this with some trepidation. I must confess to having agonized
over this speech at some length myself. Indeed the original
speech was entitled "Offshore Oil and Gas, a Canadian
Perspective". Some of you may wish I had stuck to my original
plan. In the end I decided something should be said about the
changes we are making to our membership and what we are trying to
achieve as I think our objectives are important.
There are no legal qualifications in Canada required for the adjustment
of marine claims. The existence of our Association is dependent
upon those who pursue a career in the marine industry wanting to
participate in this organization. Our Association, perhaps more
than its sister associations around the world, possesses an eclectic
membership. Nevertheless, despite our broader scope our membership has
also been declining.
Tony Brain in his address at the 34th annual meeting commented that "we
are not a dying profession", rather technological changes in the
shipping industry and our own offices have reduced the jobs
available. I agree with these observations when they are related
to the traditional role of the average adjuster who earned his daily
bread from Hull and Machinery adjustments and his jam from General
Average.
Any organization’s size and vitality is dependent on its ability to
attract and retain members. The cost of entry is not necessarily
an impediment to growth so long as the price of entry is less than the
perceived rewards offered its members. Ours has been a very
exclusive club, which required the dedication of no less than five
years to gain entry as a full member.
I am reminded of the indenture agreement I signed when entering this
profession. Drafted many years earlier but still in use, its
requirements were by today’s standards draconian. Yet not long
before I came on the scene prospective adjusters had been prepared to
pay for the privilege of their education. I would submit that the
reason was that once qualified, the profession offered very high
rewards both financially and in terms of social status within the
business community.
While none of us are starving, the profession of average adjusting is
not perceived to be one of the higher paying positions within the
marine industry today. Furthermore, while its members are
respected they do not enjoy the stature within the marine community
they once did. I would suggest, therefore, that the profession
will continue to fail to attract the volume of well-educated applicants
it needs to build a strong future. A substantial increase in
membership will not occur until there is a change in the perceived
value that membership brings. I am in favour of improving the
opportunity for people to enter the profession and our entry
requirements should evolve but I believe there has of necessity been
too much focus on this procedural issue and too little focus on the
future of adjusting and the role the association should play. The
profession of Average Adjuster must offer greater career value.
We must ask ourselves the following questions:
* What career value does membership offer? I would submit that
the career value of membership has been declining. The demand for
our services as Adjusters is declining and consequently the rewards are
not as great as they once were.
* What career paths in the marine industry could gain significant
enhancement from membership? We have failed to expand our
horizons and to identify opportunities to promote the value of our
Association in new areas of the global marine economy.
* What areas within the maritime industry have seen little penetration
by our membership but offer excellent prospects? I believe that there
are very many areas where the knowledge and skill that the profession
of Average Adjusting has to offer has been undervalued or not
identified.
* Is the Adjustment of Average an essential component of membership? I
would submit that our Association has already considered this question
and reached the conclusion that it is not. Although I use the
skills learned as an Average Adjuster every day and am frequently
involved in claims related issues I rarely author a traditional
Adjustment.
This audience consists largely of persons in the marine industry who
are not average adjusters and I would like to offer some suggestions as
to what the profession and a revitalized Association can offer.
There are two recent court decisions which I would like to share with
you. The first comments on the value that we as average adjusters
have to offer. I think it also identifies a core worth that I
believe we have underestimated and failed to adequately promote.
To the Attorney
In a recent British Columbia case Fiddler Enterprises Ltd. v Allied
Shipbuilders Ltd., Prothonotary Hargrave commented:
"While an average adjuster’s report has no legal force, per se,
such statements are rarely questioned by the courts: indeed, courts
generally look upon average statements as prima facie evidence of the
details, of the computations contained and of the allocation of
average. This is because the profession of average adjusting is
both old and honourable, with established rules of practice which are
of great assistance in determining how claims ought to be determined.
Further an average adjuster’s report is neutral, for unlike a lawyer,
an average adjuster is not, or ought not, to be an advocate. To
achieve this an average adjuster must and invariably does, like an
arbitrator, strive to be impartial."
I would like to repeat "courts generally look upon average statements
as prima facie evidence of the details, of the computations contained
and of the allocation of average". An average adjustment can be a
powerful tool in influencing a court. As an impartial party the
Adjuster prepares an adjustment that will be difficult to challenge by
council without evidence being lead that establishes it is in
error. The Average Adjusters report thus offers a substantial
opportunity for streamlining the court process.
I would ask the attorneys how often they struggle with issues of
quantum and how many hours do they spend in compiling quantum-related
documents. I have seen trial preparations where literally
hundreds of invoices are tagged, referenced and noted so that the
attorney is in a position to defend them. How much simpler could
matters be if the quantum were supported by an independent adjustment.
To the Court System
The courts are hard pressed to keep up with the demands of commercial
concerns for resolution of their grievances. The time it takes to
try a case is simply too long. In an effort to reduce this
workload there has been a movement toward arbitration, alternative
dispute resolution and mediation. I would submit that an average
adjuster has much to offer to enhance the settlement of maritime
disputes particularly as an adjunct to alternative dispute resolution.
To the Full Members of the Association
Prothonotary Hargrave also reminds us that ethical considerations must
be paramount in the conduct of our membership. We must ensure
that our members strive to be impartial and apply the highest standards
in all of their work. I am reminded that expert witness testimony
was once held in unquestionable regard by the courts and certainly many
experts testify honestly and impartially; but not all have done so and
the fall from grace of the few has tainted the reputation of the expert
witness. We must be vigilant that the same does not occur in our
profession.
I believe that ethics should form part of the curriculum for the course
of study that is required for membership and that the Advisory and Rule
of Practice Committees are both strong and easily accessible by
clients. Through these committees we can regulate the quality of
our members work but we must also be willing to discipline members
should the need arise if the quality of their practice risks bringing
the reputation of the membership as a whole into question.
Self-discipline must be the key to maintaining our reputation
particularly as our membership expands.
The Insurer
The second case I would like to bring to your attention is that of
Whiten v. Pilot Insurance Co., recently decided in the Supreme Court of
Canada. The Supreme Court confirmed the largest award for
punitive damages in the history of Canadian insurance jurisprudence.
Fortunately this appears to be an isolated case and not typical of the
conduct of persons involved in the settlement of insurance claims in
Canada particularly in the claims department of marine insurers.
Nevertheless, I believe the Association has much to offer a marine
insurer in the selection of senior claims personnel. The
principle of utmost good faith requires an insurer to exercise the very
highest standards in recruiting, training and supervising claims staff.
When adjusting a claim within an insurance company, the principle of
good faith demands that the claim be considered solely on its merits
and in an impartial manner. Who better than a qualified average
adjuster to apply these principles and to provide direction to the
claims personnel within a company. In the interim while each
insurer is recruiting an average adjuster, perhaps consideration should
be given to submitting contentious claims to an independent average
adjuster as a matter of policy. His impartial adjustment is
likely to carry substantial weight should the claim finally come before
the courts.
I would submit that the present practice of insurers submitting claims
to an attorney when they are in dispute is inconsistent with the
discharge of the principle of good faith. An attorney’s approach
is to be adversarial and to review the facts for the purpose of
identifying the possible grounds for denial. I recognize that the
best attorney, and we are blessed in the marine arena with some of the
best available, will protect their client insurer by recommending
settlement unless successful denial carries a high probability but on
too many occasions claims which appear before the courts are lost by
insurers on fact patterns which were poorly analysed.
The insurer should not be too concerned that the member of our
Association is an employee. Prothonotary Hargrave made his
complimentary comments about one of our full members, notwithstanding
he was in the employ of an insurance agent who also represented the
insured. Apparently, in the absence of evidence of wrongdoing,
the courts are willing to accept that an adjuster’s professional
commitment to fair and independent analysis can transcend a potential
conflict.
I hope at this point I have convinced every insurer they should have an
average adjuster on staff and every attorney that an average adjustment
is an essential report to have for presentation in any marine court
case involving issues of insurance.
The Marine Industry
Ultimately the client, the marine industry, pays our salaries.
There is a perception that with bigger vessels the work available to an
adjuster is declining. Does an analysis of the client base
support that we should be in decline?
The work should be there. The fundamental underlying our industry
is world trade. International trade generates our
opportunities. One of the most important developments in the last
fifty years is the enormous increase in world trade. The world’s
economy has changed; the way the world does business has changed.
Vertical specialization on a global scale has driven a sustained and
unprecedented expansion in world trade. At the turn of the last
century U.K. coal made U.K. steel which in turn became U.K. machinery,
some of which was exported. Today ‘globalization’ has
fundamentally changed this paradigm. Notably it is this change in
the way the economy functions that is driving the move to lower tariff
barriers and not the other way around. Raw material and
semi-finished goods are shipped in huge quantities all over the world.
Today coal from British Columbia goes to Japan where it makes steel,
which is sent to Mexico where it is stamped and becomes automotive
parts, which are in turn re-exported and become vehicles sold into
various world markets.
My own personal experience is that there is no shortage of claims
related work but the emphasis has shifted. An honest independent
analysis is still much in demand and the skills and training of an
average adjuster provide a well-founded basis for a career as a
professional. The average adjuster as a consultant is very much
in demand. His scope must be broad based as clients are more
focused on avoiding loss than adjusting claims.
The challenge for the average adjuster is to become an expert in all
aspects of this new trading pattern, new technologies and new
industries. As Prothonotary Hargrave suggested, our Rules of
Practice are valuable, practical commercial guides. I would
suggest there should be an expansion to our Rules. While they
should be well considered, they shouldn’t take years to form. The
industry needs them now. If they need amendment this should be
quick and effective. The marine industry wants solutions to
today’s problems, solutions that will be seen as fair and equitable but
solutions which will be quickly available. While there are
occasions when the marine industry can wait for a trial and Appeal and
Supreme Court decisions, every day there are issues which beg for
speedier solutions.
Appealing to such a diverse group as the global international trade
industry is difficult but I would like to concentrate, in the balance
of my speech, on the Marine Industry generally and specifically to one
industry that should in my opinion be in the mind of every young
Canadian in the insurance industry, namely oil and gas.
The Adjuster’s Roles in Offshore Oil.
If there is an industry that a Canadian adjuster should be following, I
would suggest it is the offshore energy sector. We are living in
historic times; Canada is embarking on a huge growth in its energy
sector particularly in offshore oil and gas production. This
industry represents an exciting opportunity for those who are
considering Full Membership in our Association to get in at the
beginning and to grow with the exciting opportunities offered.
The completed platform was towed to the Hibernia oil field and
positioned on the ocean floor in June of 1997 and began producing oil
on November 17, 1999. On the 24th January 2002 Terra Nova field
production commenced. This year the FPSO comes online. Once
oil moves from the reservoir into the FPSO and has been processed, the
oil will be stored within the vessel's 14 storage tanks. These tanks
have a capacity ranging from over 50,000 barrels to nearly 78,000
barrels each. The FPSO's storage tanks can store up to 960,000 barrels
of persistent oil. On March 28, 2002 Husky Energy, with
joint-venturer Petro-Canada, announced their decision to proceed with
the White Rose Oilfield Development which is estimated to contain
200-250 million barrels of recoverable oil. On Monday I had some
discussions with a client over issues relating to the McKenzie Delta,
applicable legislation and contract terms. This discussion is a
confirmation of new activity and interest in this long dormant sector.
Of course everyone in Canada must be aware of the debate on the West
Coast regarding the development of offshore oil and gas
resources. In a speech last year Gordon Campbell stated,
"We want to continue to move down that path of bold action and
aggressive growth in the oil and gas industry". On May 2nd, 2002
a governmental review panel concluded, "there is no scientific
justification for continuing a 30 year long moratorium on offshore oil
and gas exploration in B.C. waters". Reserves of oil and gas are
believed to lie under the ocean floor of the Queen Charlotte Basin and
the Hecate Strait.
Growth in the offshore energy sector may be expected to increase
traditional adjusting, particularly with respect to Hull and Machinery
claims for offshore supply vessels. However, it will be necessary
for adjusters to become knowledgeable about practices and contracting
in the offshore sector. Inevitably discussions about offshore
energy production turn to the issue of oil pollution. I will take
this opportunity to discuss the Canadian perspective and the role an
average adjuster may play.
Canadian Law
Canadian Law comprises the following components, many aspects of which
are uniquely Canadian:
Statute Law, which includes Federal and Provincial Statutes, include
the following:
Federal Statutes
* Canada Shipping Act - Part XV and Part XVI
* Marine Liability Act Part 6
* Canadian Environmental Protection Act, 1999
* Transportation of Dangerous Goods Act
* Fisheries Act
* Arctic Waters Pollution Prevention Act
* Migratory Birds Convention Act
Provincial Statutes
* B.C. Waste Management Act
* Ontario Water Resources Act
* Ontario Environmental Protection Act
* Similar Provincial Acts in other Provinces
Underpinning statute law is the Common Law which may allow claims to be
advanced upon the following principles:
* Nuisance
* Trespass
* Negligence
A review of the subject is beyond anything short of a weeklong seminar
so I will comment on the issues from the perspective of the various
parties involved in a loss and the role an average adjuster may play,
with reference to the Canadian issues.
Vessel Owner
Canada is a signatory to the 1992 Civil Liability Convention and
therefore a tanker owner is strictly liable for pollution emanating
from a vessel. I do not propose to discuss this topic any further
as I am sure you are all familiar with the working of this
regime. I will borrow though from the experience of our friends
in the south and particularly the Water Quality Insurance Syndicate for
which I have the greatest regard. In a recent paper WQIS
commented on the practical operating of the Unified Command System and
Oil Spill clean-up. Although these comments relate to OPA 90 they
are no less relevant here. "The failure to consider the insurer
interest in the ICS/UCS may result in a delayed, inefficient or even
paralyzed response."
It should be said that in a major spill situation, for example the
"Erika", it is likely the P&I Club and the IOPC Fund would
establish a joint office to assist with the response and claims.
However, as WQIS comments "the insurance for a vessel can include many
separate policies with different underwriters covering the cargo,
….hull, P&I and excess liability". WQIS comments that each
underwriter should have a ‘seat at the table’ as a stakeholder but also
comments "the emergency response phase of a pollution incident does not
lend itself to slow analysis, deliberation and negotiations by
Underwriters".
The responsibility firmly rests with the shipowner and I believe the
assistance of an average adjuster, who is knowledgeable with respect to
the legislation and policies of insurance in place and who can provide
independent impartial advice, could go a long way to alleviating the
shipowner’s anxiety. Furthermore the average adjuster is likely
to enhance the prospects of a recovery as he will be able to identify
the important issues that must be documented to sustain a later claim
if coverage is denied.
Governmental Authority
The principle response organization from the government of Canada’s
perspective is likely to be the Canadian Coast Guard. Although
the Canada Marine Act gives authority to the Port Authorities to manage
a pollution response within their own jurisdiction, in practice they
have memoranda of understanding with the Coast Guard that requires
Coast Guard to assume responsibility for all but the smallest of
spills. Although legislation requires the shipowner to respond,
and the oil company is likely to respond too, there is no doubt that
considerable expense will be incurred by the Federal Government in a
major spill. Recovery of such costs has frequently been
problematical.
As commented upon, the documentation required is substantial. I
believe the government could be greatly assisted by the services of an
independent average adjuster in assisting with the recovery task.
Our profession has developed practices and relationships with the
insurance industry and the P&I Clubs over several hundred
years. This knowledge base should enable the accurate budgeting
of recovery costs, identification in advance of the type of cost that
would be recoverable and the supporting evidence required.
Third Party Claimant
A third party such as a fisher or hotelier would not be familiar with
the process of making a claim against the vessel’s interest, IOPC Fund
or Ship Source Pollution Fund. It must be said that the IOPC Fund
has done much to inform in this regard, including the publication of
the International Oil Pollution Compensation Fund 1992 Claims Manual
(June 1998). Also IPIECA (International Petroleum Industry
Environmental Conservation Association) and ITOPF (International Tanker
Owners Pollution Federation Limited) have produced a power point
presentation and Guide to the International Conventions on Liability
and Compensation for Oil Pollution Damage which do an excellent job of
explaining the admissibility of claims and the documentation
required. Nevertheless it is a daunting task to commence a claim
when the third party or his trusted legal advisor are unfamiliar with
the process. Average adjuster can provide considerable support
for this process particularly when they are engaged at the beginning of
the loss and cooperate with the third party interest throughout.
The Oil Company
The oil company faces the most difficult task. The history of
large pollution losses have shown that despite the responsible party
being the vessel, the oil company has nevertheless been substantially
involved financially.
The responsibility on the board and shareholders and the requirements
of recovery dictate that an oil company, which spends funds following
an oil pollution incident, understands why the money is spent and to
what degree it may be recoverable. As has been shown by the
"Erika" and other incidents, oil companies are vulnerable to adverse
publicity or may face liability from other sources and they may
therefore feel under an obligation to pay damages.
An average adjuster can play an important role in supporting an oil
company’s crisis management team by providing an impartial and reasoned
analysis of the responsibilities of each party and the impediments to
cost recovery. The average adjuster will work with the oil
company’s team, including its legal advisors, to enhance the management
of the post spill situation. Some of the considerations, which
have arisen during exercises, have included:
* Does the company face liability under Canadian law. Particular
attention was paid to a review of the common law of nuisance. It
is notable that the Federal Government advanced a claim against the
owner’s of the "Irving Whale" on the basis of nuisance and that such a
claim could be advanced against the owner of the oil. The concept
of strict liability for environmental damage is now well
established. It is a short step to widen the scope of
responsibility by extending it to cargo owners even though they were
not at fault after all, in many cases the shipowner is not at
fault but he is liable by statute. Through ‘nuisance’, the no
fault concept could be advanced against the cargo owner without the
need for legislative intervention.
* What are the potential recovery prospects against those the oil owner
contracts with, such as the vessel under the charterparty?
* What recourse claims may there be by the shipowners against the
charterers? The most notable case in this regard was that of the
"Aegean Sea".
* Should an oil company advance funds for the cost of the oil spill
clean up as Totalfina did in the "Erika" incident?
* Every major pollution incident, including the "Irving Whale",
has involved a boycott of the oil company’s product. In these
circumstances may such losses be a foreseeable result of the
shipowner’s negligence and may a claim by the oil company survive a
test of ‘remoteness’? Could costs incurred to prevent or minimize
a boycott form part of a claim against the vessel?
* A response scenario entailing the theoretical release of heavy oil in
hot temperatures resulted in noxious fumes affecting nearby
homes. An evacuation of up to 10,000 people was
contemplated. Would such an evacuation fall within the definition
of pollution damage? Could the residents advance a claim for
economic loss?
* General average is frequently an issue, particularly in complex
salvage operations and some consideration has been given to the
situation which may arise in connection with an FPSO.
* If an FPSO has to put into a Port of Refuge how should such expenses
be treated?
Many of the above issues are legal questions and I am not suggesting
the average adjuster would replace the function of legal counsel.
In the case of an oil spill the average adjuster forms only one member
of a team and the expertise he provides relates to the coverage
afforded under policies of insurance and the practical aspects of
adjustment and apportionment of loss. These are areas where legal
counsel can usually benefit substantially from impartial support and
advice.
In closing I would like to urge our Association to embrace change and
encourage a diversity of knowledge within a broader based
association. To potential members of this Association, I
recommend the community of fellowship and the shared knowledge within
the practice. To those who use our services or who could use our
services, I urge you to consider the cost effective advice and support
which our members have to offer.
Thank you for your patience.
(Applause)
The floor is now open for comments. If there are any questions or
responses from the floor we would be glad to hear them.
Mr. Howard M. McCormack, Chairman of
the United States Association of Average Adjusters and on behalf of the
President of the United States Maritime Law Association:
Thank you very much Mr. Chairman. First of all I am here in two
guises as you have mentioned. Raymond Hayden, the President of
our Maritime Law Association, was unable to attend and he asked me as a
Past President (every now and then a Past President does get to do
something on behalf of the Association) to extend to you and your
members our thanks for your gracious invitation to your Annual
Meeting. On behalf of the American Association of Average
Adjusters, which is my other hat, I want to extend to you my personal
thanks for your hospitality, extended to my wife, Patti, and myself
yesterday at last night’s dinner.
I also want to thank you for a very thoughtful presentation. I
would like to share it, hopefully, with the members of our Marine
Insurance Committee of the Maritime Law Association as well as the
members of our Average Adjusters Association because I think it is very
topical. I have not yet chosen a topic for my paper. I am
sure the Secretary of the Association will be after me shortly since
the Notice of the Meeting will be coming out. But also on behalf
of both of the U.S. Associations, at least the Average Adjusters, I
would extend to your new Chairman, whoever that may be, I assume he’s
somewhere in this room, an invitation to attend our Chairman’s dinner
on October 2nd in New York and the Annual Meeting and the Annual Dinner
on October 3rd. And speaking as a former average adjuster,
I am delighted to know that the adjusting community and associations
and things that adjusters can do are still viable. I can assure
you that on behalf of the Association of Average Adjusters of the
United States of America, we will give your presentation very detailed
consideration. Thank you again for an outstanding talk.
The Chairman, Peter Boucher:
Thank you Howard.
(Applause)
Mr. Tim Madge, Chairman of the
Association of Average Adjusters of the United Kingdom:
First I’d like to bring you greetings and best wishes from my
colleagues of the British Association. I would also like to
congratulate you on a very interesting and I think encouraging
address. There are times when we adjusters tend to think that we
are going to become an unknown species, a forgotten species. I
agree with you, we have a very important role to play and I feel in the
London market that underwriters are beginning to recognize that we’re
not just another cost on the end of a claim. We do have a very
useful role to play. The example you gave, with pollution, is a
good one. It is something, particularly with the 1974
York-Antwerp Rules, in which there was some widening in terms of
allowances for pollution, where we can be useful persuading the
parties, be they hull underwriters or liability underwriters, to pay
pollution costs without resorting to long legal bargainings. But
I agree with you that the important thing is impartiality. If the
underwriters and the markets on the whole do not recognize that we are
impartial then we have lost it. It is very important, I think,
that we keep that. And also it’s interesting to note you
touched on utmost good faith. This was a subject that I recently
organized as a seminar in London because certain law cases in Britain
suggested to underwriters that they were losing the battle on utmost
good faith. I think that’s not the case but it is important
enough that utmost good faith is upheld by all parties, not just by the
shipowners but by the underwriters and everybody. Finally I’d
like to thank you very much for inviting myself and my wife to a very
enjoyable dinner and I hope that your new Chairman is able to join me
and my colleagues in London for our general meeting in May and also the
dinner at the Savoy. Thank you very much.
The Chairman, Peter Boucher:
Thank you Tim.
(Applause)
Mr. John Weale, President of the
Association of Maritime Arbitrators of Canada:
On behalf of the Association of Maritime Arbitrators, I’d like to
congratulate you on your excellent address. Noting the number of
lawyers in the audience, I detected a certain excitement when you
mentioned the words good faith. This is a very important
thing. What makes the average adjusters distinct is impartiality
and good faith is very closely linked with that. What Tim Madge
says is right but we have to remember that the insurance industry in
England is the only place where good faith surfaces at all, possibly
outside of the church. (laughter). The English lawyers find that
the whole concept is impossible to police. Your Association
polices your members, we don’t. Policing our Association is a bit
like trying to herd geese. So I’m full of admiration in that
respect. And all joking apart I think your talk is a good one and
is very timely. Thank you very much.
The Chairman, Peter Boucher:
Thank you.
(Applause)
Mr. Jim Gould, President of the
Canadian Maritime Law Association:
Mr. Chairman, I want to thank you too for your hospitality extended to
my wife and me and an excellent dinner. I congratulate you
on a thoughtful and encouraging address here this morning. We
wish you well. We wish your new chairman well and we hope to see
you tomorrow at the CMLA meeting. I bring regrets from John
Cantello, our Secretary-Treasurer, who is also a member of your
Association. He can’t be here today and I think it’s the first
meeting he missed since the reign of Richard II. On behalf of
John and all the members of our Association, I congratulate you and
thank you.
The Chairman, Peter Boucher:
Thank you.
(Applause)
Mr. Ikuya Fujii, Chairman of the
Association of Average Adjusters of Japan:
My name is Ikuya Fujii and I am the 45th Chairman of the Japanese
Association of Average Adjusters and the second lawyer to be Chairman
of my Association. Taking this opportunity I’d like to
express on behalf of my Association my deepest thanks to all of you
present in this place and to acknowledge the enlightenment and
assistance we have received from you over the past 45 years. And
I’d like to say how enlightened I was to hear of the recent case from
British Columbia relating to the important role of average
adjusters. And when I convey your speech of this morning, I
believe my members, regular members in Japan, will be highly encouraged.
From age twenty-two, for four years, I had employment with an insurance
company, one of the leading insurance companies in Japan. I was a young
claims man in a small branch in Hiroshima, which is a port town on the
inland sea of Japan. In those days, if and when we had a foggy
morning, I read in the newspapers of four or five vessel
strandings. So in those days claims people and adjusters were
very active and vivant - but over the last forty years, my observation
is that time has changed everything. For at least the last ten
years our average adjusters have been in a kind of gloomy mood.
That’s why I intend, as precisely as possible, to convey this morning’s
speech to the members of the Japanese Association.
I must add how excited I am by meeting Professor William Tetley who is
so well known as a Canadian writer of Maritime Law. I have one
more important thing to say. This coming 23rd of October, a
Wednesday, during the week of the meetings of the Japanese Association,
will be the Chairman’s Dinner, followed on the 24th by the Annual
General Meeting of the Association in Tokyo to which I invite all of
your members. I look forward hopefully to seeing you in Tokyo
this coming October.
The Chairman, Peter Boucher:
Thank you very much, Mr. Fujii.
(Applause)
Mr. Hidde Lahaise, President of the
European Association of Average Adjusters:
Mr Chairman, thank you for a very inspiring speech this morning and
very relevant as well. We should all take it to heart and
not just take it to heart, I think, we should all work hard at it to
demonstrate our usefulness as average adjusters to the market. So
in that respect my congratulations.
I extend greetings from the European Association of Average Adjusters
to the Canadian Association and I hope to extend an invitation to your
successor to join us in Amsterdam, but unfortunately only in 2003,
which is a bit of a long way away. But I shall work at it to make
sure that the relationship between our two Associations is
strengthened, that we know what we are doing by keeping in touch one
with the other. As a matter of fact, our Association is revising
its constitution to allow overseas practising average adjusters from
outside Europe to join our Association. This is important so as
to further the goals you described this morning and that we get
together internationally to make sure that our Associations learn from
each other where ever we are in the world.
It was very exciting for me to come to Canada last night. It is
my first trip to Canada and I was anxious to visit the country and
thrilled to experience your splendid weather having left Amsterdam in a
heavy downpour. I understand from the forecasters on television
this morning that the Dutch weather is on a slow boat following me and
that you will have the downpours by this weekend.
(Laughter) Secondly, it was very interesting because my
surname is Lahaise and in Holland anybody in the phone book with that
name is a member of my family. I know them all. However,
whenever I am in a foreign hotel, in France particularly, I look in the
directory to see whether there are any Lahaises. It sounds so
French but I’ve never ever found one. Now yesterday, the first
thing I did, having checked into the hotel and put down my bags in my
room, was look in the Montreal phonebook for listings of Lahaise.
I found no less than fifteen Lahaises. I wondered for a moment if
I should call them all up (laughter) but certainly I felt
immediately at home. Thirdly, I felt very much at home at your
excellent Chairman’s Dinner last night. Thank you very much for
your kind invitation and I enjoyed very much seeing old and new
faces - a most splendid occasion. I have spoken too
long. I wish all the best to the Association of Average Adjusters
of Canada. Thank you.
The Chairman, Peter Boucher:
Thank you Mr. Lahaise
(Applause)
Mr. Claudio Verconich, Vice-President
of the Canadian Board of Marine Underwriters:
Mr. Chairman, thank you very much for a very good speech. I give
you the greetings and salutations of my colleagues in the Canadian
Board of Marine Underwriters as well as the regrets of Mike Wills, our
President, who was unable to join us here today. You outlined
some changes in your Association’s bylaws and expressed not only your
concerns but your optimism for the future. The Canadian Board of
Marine Underwriters has pretty much had the same kind of soul searching
in the last little while. Those who joined us at our semi-annual
meeting in Quebec City a month ago, will have noticed quite a change in
the format of that meeting. Our meeting commenced with a
well-attended panel discussion which included David Marler representing
your Association. David’s participation, enthusiastic as always,
underlined the reasons for us to be optimistic in our related fields of
endeavour. Certainly one of the things that we have discovered in
the process of our soul-searching is that the aims of the CBMU are as
valid today as they first were in 1917. I believe that the
average adjuster is of core importance to marine insurance and the CBMU
is confident that your future endeavours will be as successful as they
have been over the period of your existence. Thank you.
(Applause)
The Chairman, Peter Boucher:
Thank you, Claudio, and I thank all of you for your kind comments.
Professor William Tetley:
Mr. Chairman, first of all I really want to thank you for your lecture
which I would have truly liked you to deliver at McGill. I will
certainly cite it and I hope that it will be published. It’s an
interesting and useful lecture. I liked the part about utmost
good faith and John Weale has stolen my joke by pointing out the
lawyer’s part of professional utmost good faith. Nor is there a
judgment of Hargrave or anybody else, incidentally, Hargrave is a
prothonotary, quite a remarkable guy, there is no judgment of Hargrave
on the important role of lawyers I might say, unfortunately.
(Laughter) I’ll write him about it. However, there is no
judgment of punitive damages of the Supreme Court against lawyers that
I know of. A client of mine always used to say, in
referring to lawyers, "Always get the best, the best is none too
good". (Laughter)
However, I received your bill and am glad to have been a member of this
Association, and I am very glad to have been President, and I’ve
enjoyed it, and I’ve learned something from it and I intend to continue
to be a member. At the same time I, with the utmost good faith,
sent you a notice in the writing of a motion which you have kindly put
in to my great pleasure and surprise, or not surprise, but great
pleasure. It is my view that this Association must lead in a
number of fields. Now, I know that the Executive has apparently
said that you won’t be lobbyists. Let me remind you, when we
adopted the 1993 Marine Insurance Act for Canada, one of the subjects
we discussed was pay to be paid in direct action and John Cantello and
various other supporting people came down hard against what would have
been proper for Canada, although fortunately we have it in Quebec, but
it should be something that at least that should be discussed.
Now the CMLA and the CMI are going to discuss marine insurance.
Should the 1906 Act be amended, who should lead us in this, not as
lobbyists, but as instructors and we should have open discussions on
this question. I think our Association, the Average Adjusters,
should not meet only once a year.
In the same context, the York-Antwerp Rules, I was very pleased that
there was reference now made to pollution being considered in the
Rules. Of the group that opposed it, three out of five were
average adjusters. So whether you were lobbying or not, you were
doing a pretty good job of making your point clear, which was that
nothing very much should be done. I think the Rules are
important. I don’t think they can be abolished under law, I think
they’re very important, and I think they can be improved. And I
think this, although it resulted in a dead body, a number of people in
Sydney when they added pollution, including, I always forget his name,
the Chairman of the British Association, with a moustache (supplied by
certain members of the audience, Mr. Geoffrey Hudson) he was standing
up there, he loved it, he said "I’m only here to help you". Well,
the government says that too. (Laughter)
Anyhow, Geoffrey got everything he wanted and opposed everything he
didn’t. I’m not sure, but he sounded very much like a lobbyist to
me. In any event, this is a suggestion I make. I think we
should have open meetings. Otherwise, and I can tell you I know a
lawyer who recommended to the Canadian government that in all their
contracts they exclude the York-Antwerp Rules and exclude general
average except for a few minor things. And that’s going to
be the way of it and I just don’t think we can, average adjusters and
CMLA, this time, now that they’ve come to the table again at CMI, let
it pass and just say we’re against reform and I think you people with
your knowledge can instruct us and help us and help the
Americans. I noticed the Past President suggested that we work on
it, that’s my suggestion and I would volunteer to assist on any
committee which might be appointed.
(Applause)
Chairman, Mr. Peter Boucher:
Thank you Bill.
Mr. Sean Harrington:
I might just briefly comment, again as another past-president of this
Association. First of all Bill, I know of one case in the Federal Court
in which a solicitor was condemned personally to pay the other side’s
costs on a solicitor-client basis. A lawyer, now deceased, who
apparently recommended to his client that he arrest a British warship
(laughter).
I was looking around the room to see who was in Sydney dealing with the
York-Antwerp Rules. I see our friend Jonathan Spencer who was
part of the U.S. Association delegation and I chaired the CMLA’s
subsection at that time. We had worked very hard on the
York-Antwerp Rules, and Bill was part of the group, as were many
average adjusters. There were compromises of course in
Sydney. We were addressing what we considered to be some
unfortunate decisions that had come out dealing with what might or
might not go on in terms of repairs and ports of refuge. We ended
up with the Clause Paramount. We dealt with pollution. I
ended up as part of Geoffrey Hudson’s drafting committee on the final
version. So I declare a definite bias in favour of the
York-Antwerp Rules. All of these Rules can be improved as our
experience changes but I think if we do review these Rules it would be
more a question of what were the changes in 1994, how have adjustments
varied compared to what would have happened under the 1974 Rules, to
really see if these 1994 Rules have made an improvement. Rather
than having a review at large, I would suggest that any review of this
Association’s or the CMLA’s subsection be a little more focussed.
Thank you.
Mr. David Marler:
If I could make one brief comment on the good faith thing we are
hoping that a judgment of the Federal Court of Appeal will be given
leave to go to the Supreme Court. It is a judgment, I won’t go
into details, but I would be happy to share it with any of you at
another time, of great concern to me, in which the Federal Court of
Appeal upheld a pay-to-be-paid rule in a general market policy of
insurance. The Court of Appeal recognized the injustice implicit
in its judgment but said the clause containing the pay-to-be-paid rule
was "simply a matter of construction".
The Chairman, Peter Boucher:
Thank you.
I’d like to move now to the report of the Nominating Committee.
Ron Eldridge, the Chair of that Committee, is not here so I’m going to
ask Ian Fraser if he would kindly deal with the next item which is the
election of our committee members.
Ian Fraser:
Thank you Mr. Chairman.
Good Morning Ladies and Gentlemen. On behalf of the Chairman of
the Nominating Committee, Ron Eldridge tenders his apologies for not
being here this morning. I would like to announce the election of
the incoming Chairman and the members of the new standing committees.
Chairman: Rui Fernandes (Applause)
Executive Committee:
Chairman: Tony Brain
David Holden
Neil Dennis
Rules of Practice Committee:
Chairman: Bill Kyle
Ian Fraser
Jean Sanders
Membership Committee:
Chairman: Tim Stradling
Maurice Gesner
Ron Eldridge
Advisory Committee: Neil Dennis
Ian Fraser
John Cantello
Secretary/Treasurer: David Marler
(Applause)
The Chairman, Peter Boucher:
Thank you Ian. The next item on our agenda is the announcement of
matters of interest that were dealt with at our business meeting
yesterday.
There was a discussion regarding a request we had received from Howard
McCormack to involve the Association in the debate over the proposed
amendments to the York-Antwerp Rules. We also received a similar
request from Professor William Tetley regarding these changes and also
certain proposed amendments to the Marine Insurance Act. There
was a lively discussion in this regard at the business meeting
yesterday and a formal response will be addressed to those persons from
Ian Fraser. Nevertheless, I am asked to comment on the general
consensus reached. The full members present were of the opinion
that active lobbying for any legislation is in conflict with our
independent status as average adjusters. Our task is the
interpretation of law, not the making of it. However, we
recognize that we may have a role in assisting those who draft such
laws in terms of what our interpretation would be so as to improve the
clarity of the final wording. In this regard we intend to
continue to support the committees of the CMLA and its educational
initiatives.
The next item is the announcement of the election of new members and I
call upon Ian Fraser, again.
Mr. Ian Fraser:
The new Resident Associate Members put forth and approved at our
business meeting yesterday were:
Mr. Paul Crompton Eastern Marine Underwriters, Montreal
Mr. Robert Dugan Halifax
Mr. Thomas Hawkins Vancouver
Mrs. Tina Margelis Toronto
Mr. Daniel Steedman Eastern Marine Underwriters, Montreal
Mrs. Kim Stoll Toronto
Mr. Dimitrius Yiokaris Toronto
Mrs. Lucie Chevrette Montreal
The total membership of the Association including the members elected
above is as follows: Honourary Members: 6; Full
Members: 16; Junior Members: 1; Resident Associate Members:
132; Foreign Associate Members: 43; for the grand total of
198. We’d like to take this opportunity to express our thanks to
all those full members who have introduced new members to the
Association over the past year and also thank Tim Stradling and Morris
Gesner who are my colleagues on the Committee.
Thank you.
(Applause)
Mr. David Marler:
Mr. Chairman, if I may would it be out of order to nominate two
further Associate Members at this time?
Chairman:
Resident Associates?
David Marler: Resident
Associates.
Chairman:
Yes, I think that would be fine.
David Marler: Sean,
would you like to propose and I will second
Sean Harrington:
Yes, I have two of my Vancouver partners here, Bob Shaw and Graham
Walker, with Borden Ladner Gervais. They are very keen to join
this Association if you see fit.
David Marler: And I
second those nominations.
Chairman: Can
we have a show of hands from the Full Members. Thank you. I
declare the nominees accepted.
Next I would like to call on Neil Dennis to provide you with the report
on the Committee of Rules and Practice.
Mr. Neil Dennis:
Ladies and gentlemen: good morning. At last year’s Annual
General Meeting we submitted a revised Rule of Practice No. 7 dealing
with airfreight charges. This Rule was put forward and adopted as
a probationary rule in accordance with the bylaws of the Association
for a period of one year. Following circulation of our
membership, we have found nobody who has had any problem interpreting
these rules or received any adverse feedback from the market in
general. Accordingly, this particular probationary rule is now up
for adoption and will be made a permanent rule following this
meeting. However prior to being able to do that, I would like to
know if there are any comments on the wording of this rule from the
floor and a copy of this rule has been made available.
I note that there are no comments. I will, in any case, read out
the particular Rule itself so we’re all clear.
"The cost of ordinary airfreight on repair parts shall be allowed as
part of the reasonable cost of repairs.
The cost of any extraordinary shipments by air, such as chartered
aircraft or similar means, shall be dealt with by the adjuster
considering:
1) the reasons for such shipment, and/or
2) the savings resulting therefrom.
The adjuster shall insert a note in the average statement in
explanation of the allowances or charges made."
I would now ask for a show of hands from the Full Members to confirm
their agreement that this probationary rule now becomes adopted as a
permanent rule.
And so done.
Ladies and gentleman, thank you very much on behalf of the Rules of
Practice Committee which also included, this year, Jean Sanders and
Bill Kyle.
Assumption of office by the new Chairman:
Chairman, Mr. Peter Boucher:
If there is no further discussion, I would like at this time to
introduce Rui Fernandes as the new Chairman of our
Association. As I mentioned in the beginning, this confused
Chairman has had to rely for all things upon our Secretary but I forgot
to ask her to get me a copy of Rui’s resumé. Well, if we
don’t have it, and I don’t know Rui well enough, maybe Rui, you could
outline yourself what I am sure are your considerable credentials.
(Laughter) I’m sure being a lawyer you will be extremely modest.
Mr. Rui Fernandes:
Thank you Peter. Well, my first words are to thank you all very
much for this great honour. I am not an average adjuster. I
am a lawyer. We’ve had three past presidents speak, and they’re
all lawyers. Can’t avoid them. I’ve never done any average
adjusting although I’ve had occasion as part of my work to review,
question and occasionally take issue with certain adjustments but never
the adjuster. Our Canadian members are all admirable individuals
and I’m honoured and privileged to represent them and this
Association. I also view this as an opportunity to pursue the
work of my predecessors, to assist in making this Association more
visible, more open and stronger and in continuing its fine tradition.
I would like to thank Peter and the Executive and all the committees
for the great work done this year. On behalf of the Association
I’d also like to thank our Secretary, Tina Dennis, for her excellent
job over the years. Tina, I’m sure I’ll be calling you
remember, you can run, but you can’t hide. I’d also like to thank
everyone for attending today. It’s your support that makes this
organization viable.
Finally, the Executive Committee yesterday decided, and so everyone can
start making plans, that next year’s Annual Meeting will be held in
Toronto.
Is there any other business today? If there isn’t, I therefore
declare the meeting adjourned.
Thank you.
(Applause)
And the meeting was then adjourned.
Moved by Ian Fraser, seconded by Neil
Dennis.
(Applause)