The International Transport Intermediaries Club (ITIC) has warned its surveyor members, wherever possible, not to sign indemnities or waivers before they have been authorized by the shipowner to board a vessel. And, in the event that this proves to be impossible, they should sign only a wording authorized by ITIC.
Writing in the latest edition of its annual publication, The Intermediary, ITIC warns that the surveyor may be asked to sign a disclaimer or waiver of all his rights to claim or sue against the shipowner and its servants and agents should he have any cause to do so. In that event, says ITIC, the surveyor should remember that, under English law (The Unfair Contract Terms Act 1977), parties cannot exclude or limit their liability for death or personal injury. Therefore, if a surveyor is injured or killed while on board, the owners will be liable irrespective of whether the surveyor signed the release.
ITIC notes, “For all non-personal injury claims, the surveyor should only waive his rights to claim for such losses if the loss or damage suffered was caused by his own negligence or wilful misconduct. Therefore, if the owner, or its servant or agent, breaks the surveyor's laptop, for example, the surveyor should not be barred from issuing a claim for the loss he has suffered. However, if the surveyor placed his laptop on a surface known to be hot, and the laptop melted, this loss would have resulted from his own negligence and, therefore, it would be unfair to hold the owner responsible.”
Surveyors may also be asked to sign an indemnity to the shipowner and its servants and agents for any loss or damage suffered howsoever caused. In such cases, says ITIC, “Surveyors should only agree to indemnify the owner for losses suffered as a result of the surveyor's negligence or wilful misconduct. Therefore, if the surveyor left his laptop on a hot part of the engine and it melted, causing damage to the engine, it is reasonable for the owner to be entitled to claim back from the surveyor the loss suffered.
ITIC concludes that, if asked to sign any indemnity or waiver prior to boarding a vessel, “Ideally, nothing at all should be signed.” If this is impossible, however, a wording approved by ITIC should be used.