Insuring the Air Transport Industry Against Aviation War and Terrorism Risks and Allied Perils: Issues and Options in a Post-September 11, 2001 Environment

339 Pages·2013·2.35 MB·English

by  Yaw Otu Mankata Nyampong (auth.)

Insuring the Air Transport Industry Against
Aviation War and Terrorism Risks and Allied Perils
.
Yaw Otu Mankata Nyampong
Insuring the Air Transport
Industry Against Aviation
War and Terrorism Risks and
Allied Perils
Issues and Options in a Post-September 11,
2001 Environment
YawOtuMankataNyampong
FacultyofLaw
McGillUniversity
Montreal
Que´bec
Canada
ISBN978-3-642-32432-1 ISBN978-3-642-32433-8(eBook)
DOI10.1007/978-3-642-32433-8
SpringerHeidelbergNewYorkDordrechtLondon
LibraryofCongressControlNumber:2012954862
#Springer-VerlagBerlinHeidelberg2013
Thisworkissubjecttocopyright.AllrightsarereservedbythePublisher,whetherthewholeorpart
of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,
recitation,broadcasting,reproductiononmicrofilmsorinanyotherphysicalway,andtransmissionor
informationstorageandretrieval,electronicadaptation,computersoftware,orbysimilarordissimilar
methodologynowknownorhereafterdeveloped.Exemptedfromthislegalreservationarebriefexcerpts
inconnectionwithreviewsorscholarlyanalysisormaterialsuppliedspecificallyforthepurposeofbeing
enteredandexecutedonacomputersystem,forexclusiveusebythepurchaserofthework.Duplication
ofthispublicationorpartsthereofispermittedonlyundertheprovisionsoftheCopyrightLawofthe
Publisher’s location, in its current version, and permission for use must always be obtained from
Springer.PermissionsforusemaybeobtainedthroughRightsLinkattheCopyrightClearanceCenter.
ViolationsareliabletoprosecutionundertherespectiveCopyrightLaw.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publicationdoesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexempt
fromtherelevantprotectivelawsandregulationsandthereforefreeforgeneraluse.
While the advice and information in this book are believed to be true and accurate at the date of
publication,neithertheauthorsnortheeditorsnorthepublishercanacceptanylegalresponsibilityfor
anyerrorsoromissionsthatmaybemade.Thepublishermakesnowarranty,expressorimplied,with
respecttothematerialcontainedherein.
Printedonacid-freepaper
SpringerispartofSpringerScience+BusinessMedia(www.springer.com)
Foreword
IampleasedtowelcomethepublicationofthisworkbyDr.Nyampong,acolleague
attheInstituteofAirandSpaceLawatMcGillUniversityinMontreal.
Thisworkprovidesacarefulanddetailedanalysisoftheinsuranceimplications
of the tragic events of September 11, 2001, involving the terrorist attack on the
World Trade Center in New York. It includes discussion of the history, structure
and workings of the international insurance market which provides cover against
the risks ofaviationwar and terrorism,the impact ofthe events of September 11,
2001onthe aviation warandterrorisminsurance market,andtheresponseonthe
partoftheinsurersofsaidriskstoSeptember11,includingtheformsandlimitsof
coveragecurrentlyavailableinthemarketinrespectofsuchrisks.
September 11, 2001 brought to light certain fundamental problems inherent in
the insurance of aviation war and terrorism risks. In the 11 years that have since
elapsed, many initiatives have been proposed (some even implemented) at the
national,regionalandinternationallevelstoaddresstheseproblems.Unfortunately,
however,apermanentandsustainablesolutiontotheproblemhasnotbeenfoundas
yet,anditisfearedthatthecommercialaviationinsurancemarket(whichcontinues
to provide primary insurance coverage for such risks) may not have the requisite
capacity to bear the financial consequences of another large terrorist attack that
involvestheairtransportsystem.
This work makes a significant contribution to the search for a permanent and
sustainable solution to the problem by carefully analyzing and exploring the root
causesthereoffromamultidisciplinaryperspective.Insodoing,thebooktracesthe
rationale underlying the historical exclusion of war and terrorism risks from
property/casualty and marine insurance contracts, and examines the manner in
which these exclusionary practices were subsequently extended to, and have
since evolved in, the aviation insurance market. Aside from insurance, this work
alsoanalyzesotherdifferenttraditionalandinnovativemechanismsofrisktransfer
andriskmanagementtodeterminewhethertheyareperhapsbettersuitedtoprovide
permanentandsustainablecoverageforaviationwarandterrorismrisks.Thework
concludes by identifying and proffering a number of recommendations on how to
achievepermanentandsustainablecoverageofaviationwarandterrorismrisks.
v
vi Foreword
I commend this book to all who have a practical, legal or academic interest in
aviation insurance, including particularly those with an interest or involvement in
theinsuranceaspectsofaviationwarandterrorismrisks.
LosAngeles RodMargo
September2012
Preface
The saying that the terrorist events of September 11, 2001, changed the world
forever is true not only in respect of how it changed the conduct of international
relations between states but also in respect of the manner in which it affected the
provisionofinsurancecoverageforaviationwarandterrorismrisks.Althoughthe
quantumoflossandcompensationthatinsurershadtopayasaresultoftheevents
ofSeptember11,2001,wasunprecedented,eventsofsuchnaturewerenotentirely
newtotheinsurancemarketparticularlytheLondonaviationmarketwherecover-
ageofaviationwarandterrorismriskswascommonlyprovided.Indeed,the1968
IsraeliattackonBeirutairportisonrecordasthefirstmajoreventofthatnaturethat
targeted the international air transport system. This marked the beginning of the
exclusion of war and allied risks from aviation insurance policies issued in the
Londonmarket,apracticethatwassuccessivelyexpandedanddevelopedasmany
more such events occurred over time. A few days after the fateful events of
September 11, 2001, however, it became abundantly clear to everyone who had
something to do with the air transport industry that the business-as-usual era in
whichairlinescouldobtainfromcommercialinsurersasmuchinsurancecoverage
foraviationwarandterrorismrisksastheydesiredwasoverandthatthetimehad
come to begin the difficult process of finding other reliable risk transfer
mechanismstoserveasalternativesand/orcomplementstotraditionalinsurance.
A review of the literature at the time indicated that the question of how to
provideorensuretheprovisionofsustainableinsurance(orotherfinancial)cover-
ageforaviationwarandterrorismriskshadnotbeenaddressedinacomprehensive
manner by academicians, insurance practitioners, and government policymakers.
Whatreallycomplicatedtheissueisthefactthat,inmostcountries,thelawrequires
an air transport operator to maintain adequate insurance coverage (including cov-
erageforwarandterrorismrisks)asaconditionfortheinitialgrantandcontinuing
validity of an air operator’s certificate. There being no mechanism to ensure that
what the law requires as minimum insurance requirements would be available
commercially or otherwise to airlines, events such as those of September 11,
2001, almost brought the global air transport industry to a halt. Proposals of all
kindandmannerwereadvanced,drivenbytheurgentdesiretofindasolutiontothe
vii
viii Preface
problem and the tendency to transpose solutions that have been successfully
implementedinotherareasofeconomicendeavor.Unfortunately,verylittleeffort
wasdirectedtowarddeterminingwhattherootcause(s)oftheproblemwere.Asa
result,mostofthesolutionsthatwereimplementedhaveeitherfailedorremained
stillborn.
Inlightoftheforegoing,therationaleunderlyingmyresearchandultimatelythis
bookwas totakeastep back andlook criticallyat theproblemofhow toprovide
sustainableinsurancecoverageforaviationwarandterrorismrisks,notonlyfroma
legal perspective but also taking into account various other nonlegal phenomena
thatcouldhelpdelineatetheexactboundariesoftheproblembeforeprescribingany
solutions.Inordertodoso,itwasimportantasafirststeptoprovidereaderswithan
overviewofaviationinsuranceaspracticedintheLondonmarket(and,subjectto
some marked differences in a few places, throughout the wider Common Law
world). This is followed by a specific focus on how the commercial insurance
market has addressed marine and subsequently aviation war and terrorism risks
over the years. The book then analyzes the behavior of the commercial insurance
marketstoextremeeventssuchasSeptember11,2001,byresortingtoanumberof
concepts and models propounded by eminent scholars in the fields of law and
economicsas well as behavioral law and economics.One ofthe major findings is
that as a means of risk management, insurance works best under circumstances
where the law of large numbers applies—large population size characterized by
highfrequencyofoccurrenceoftheriskconcernedbutasignificantlylowfinancial
impact on each occurrence. Aviation war and terrorism risks on the other hand
belongtotheclass ofrisks thatare typicallylowfrequency/highfinancial impact.
Assuch,insurerappetiteforthosetypesofrisksdecreasesasthesizeofthelatest
occurrence(payout)increases.
Clearly,ifthecommercialinsurancemarketsalonecannotbeexpectedtoinsure
these risks at societally desirable levels and in a sustainable fashion, then it is
imperative that alternatives and complementary solutions be found. The book
therefore considers the extent to which capital markets, governments, and the
international community of states (three of the many proposed solutions) may
provide alternative or complementary mechanisms to the coverage of aviation
warandterrorismrisksbycommercialinsurers.Eachoftheseraisespeculiarissues
which are discussed from a multidisciplinary perspective. Thus government-run
insurance and guarantee schemes for air transport operators in a number of
countries are analyzed along with the numerous issues associated therewith. For
instance,ithasbeenallegedthatadomesticwarandterrorisminsurancemarketfor
air transport operations has not been able to develop due mainly to the federal
government’s continued provision of premium war riskinsurance coverage toUS
airlines. At the international level, most states consider that aviation war and
terrorismrisks areadirectmanifestation ofeachstate’sforeignpolicy. Assuch it
has been difficult to develop an international mechanism that will address the
insuranceandfinancialaspects ofsuch riskstothesatisfactionofall(orat leasta
majority of) states. Capital market solutions on the other hand offer unique
opportunitiesanddeepercapitalreservesfortheinsuranceofsuchrisks.However,
Preface ix
itisimportanttotreadwithcautionandtolearnlessonsfromtherecenteconomic
crisis.
It is my hope that this exposition will enable policymakers, decision makers,
governmentregulators,airtransportoperators,airlines,andtheirinsurerstohavea
broaderview ofwhataviationwarandterrorismriskinsurancereallyentails.Itis
intended to encourage and facilitate discussion and reflection about the way
forward.
Montreal,QC,Canada YawOtuMankataNyampong