In 2006 a claim was filed pertaining to a traffic accident in which the claimant had fallen off a moped and suffered a severe brain injury. The insurer rejected the claim in 2007. In 2011 the claimant discovered that the brain injury had caused permanent incapacity and a new insurance claim was filed, which the insurer rejected. The Supreme Court recently had to consider whether the exacerbation of damage starts a new period for a claim if it has already become time barred.
The new Motor Liability Insurance Act recently entered into force. The previous act dated from 1959 and required complete reform and modernisation to respond to existing and future needs. The new act is structured to follow the typical chronology of the underwriting and claims handling process and aims to promote competition by giving the insurance industry the opportunity to develop new products. This appears to be succeeding, as insurers have already launched new products.
The validity of legal expenses insurance can be problematic when ending business activities. A pharmacist terminated his legal expenses insurance after he retired and ended his business activities. Some time later he received a workers' compensation claim from a former employee. The pharmacist believed that the insurance would cover the matter, but the insurer rejected the claim because the event had occurred after the validity of the insurance.
The Financial Ombudsman Bureau recently issued a number of recommendations pertaining to insurers' rights to terminate cancer insurance policies, following on from its 2014 recommendations pertaining to the amendment of cancer insurance premiums and conditions. The recommendations reiterate that insurers cannot amend insurance contracts or terminate unprofitable contracts unless they draft the conditions carefully at the outset and fulfil their duty to inform.
In a recent appeal case the claimant discovered that an accident had caused permanent incapacity after the claimant had filed an insurance claim, which had been rejected. The claimant hence filed a new claim, which was rejected on the basis that it was time barred. However, the court held that the right to compensation is not time barred and that the insurer had to handle the new claim because the accident's effects had manifested after its first decision.
The new Workers' Compensation Act has entered into force, covering occupational accidents and disease. The act's purpose is to update legislation to meet the requirements of today's working environment and to speed up insurance claims handling by shortening deadlines. It specifies which workers are insured and the circumstances under which accidents and occupational disease are covered.
The Insurance Court has ruled on numerous cases concerning a pension fund's right to debit extra premiums from its shareholders after it went into liquidation. The liquidator was obliged to implement an insurance portfolio transfer plan. The court confirmed that the fund was entitled to collect the premiums to restore solvency requirements. However, it found that the transfer of the insurance portfolio required the realisation of the fund's assets.
In a recent case the Insurance Complaints Board stated that pharmaceutical injury insurance is not in the public domain. The board's understanding was that an insured usually becomes aware of such insurance from a doctor after injury has occurred, and hence awareness must be judged on a case-by-case basis. The board found that the insurer was not entitled to rely on its insurance conditions and the claim was not time barred.
Finland has a collective guarantee system for occupational pension insurance, statutory accident insurance and patient insurance. Specific insurance legislation and supervision of insurers have been found to guarantee that insurers do not become insolvent and, if they do, that the policyholders and insureds still get their benefits.
In order to achieve the national implementation of Solvency II, a government bill was introduced in Finland in 2012. The bill implementing the rest of Solvency II has now passed the Finnish law-making process. The directive amends several acts in the insurance sector; while some of the amendments are only technical details, others will significantly affect business.
The Insurance Court has a significant backlog of cases and pressure for oral hearings continues to increase. Oral hearings are seldom arranged and, when they are, it is generally to bring further evidence and clarification to a case. In order to speed up the court's operations the government has issued a bill to amend the Insurance Court Act. According to the bill, the number of oral hearings must be increased.
The Insurance Complaints Board recently issued three recommended decisions about insurers' rights to amend the premiums and conditions of cancer insurance. The recommendations serve as a reminder that insurers cannot amend an insurance contract and should draft the conditions carefully from the beginning.
The Helsinki Appeal Court recently ruled on whether an insurer had given two insured employees incorrect or misleading information about their insurance cover. The judgment demonstrates that insurers must be careful when providing information and insureds must use common sense and read annual pension information clearly.
The Supreme Court recently held that an insurer was entitled to deny compensation in full after a company had tried through gross negligence to achieve a significant benefit. The company had claimed compensation of €300,000 for goods destroyed in a fire at its warehouse. The company knew that the purchase price of the goods was less than €50,000, but neglected to disclose this information to the insurer.
A recent Supreme Court judgment has emphasised how important it is to define the scope of insurance in the policy and to keep the policy updated regarding changes in a business environment. The case arose after twenty-seven vehicles were damaged in a flood at a port warehouse. The warehouse was not indicated in the insurance contract as a place of storage and the insurer did not know that the cars were stored there.
An insurer and a major Finnish public limited company had agreed in a directors' and officers' liability policy that a Finnish court had jurisdiction to settle any disputes arising from the insurance contract. The Supreme Court held that the provisions which derogate from the jurisdictional rules in insurance matters must be interpreted strictly. It stated that the insured's position was protected by mandatory jurisdiction rules.
The European Insurance and Occupational Pensions Authority has released guidelines on preparing for Solvency II, but the Finnish legislature has found the guidelines to be inadequate for patching up any deficiencies until Solvency II is implemented. For these reasons the Finnish insurance company-related legislation will be amended. The reform is expected to come into effect on January 1 2014.
The Supreme Court recently clarified from which point in time the limitation period commences and whether a claim for property damage also interrupts a claim for personal injury. The decision emphasises the importance of claiming in due time for all types of damage. The general statute of limitations can be interrupted by an informal notice, as long as the claim and the grounds of the claim are mentioned and the receipt of notice can be proved.
Following a traffic accident N sought to claim against the traffic insurer. The district court accepted the claim, but it was dismissed by the appeal court. N applied to the Supreme Court for annulment of the appeal court judgment. The question before the Supreme Court was whether the principle of res judicata of the first trial prevented N's new claim from being examined.
The Finnish courts recently had to consider the application of the EU Brussels 1 Regulation to a recourse claim between a Finnish and German insurer which arose from a traffic accident in Germany. The district court ruled that the German courts had jurisdiction; however, referring to principles set out in European Court of Justice case law, the Turku Appeal Court reversed.
The Supreme Court recently questioned whether a savings life insurance policy was attachable when at the time of the attachment proceedings the policy had been in force for over 10 years, while considering that a precautionary seizure of the policy had been enforced before the 10-year period had elapsed. The court held that attachment and precautionary measures are different instruments.
The Nordic marine insurance market recently became standardised when the Nordic Marine Insurance Plan 2013 entered into force. The plan 2013 includes amendments and new clauses whereby references to Norwegian legislation have been deleted and adjusted to work in accordance with Danish, Finnish and Swedish legislation. It is not mandatory for insurance contracts parties, but they can modify any part of it.
As part of broader reforms to improve adaptation to climate change, the slow and complex state compensation system for flood damages will be abolished. State funding will come to an end in regard to damages caused to buildings and movables, and will be replaced by flood insurance offered by insurance companies.
The Insurance Court recently ruled that in order to fulfil the requirements of equal treatment imposed under EU Regulation 1408/71, parental allowance must be calculated by taking into account the income of an individual who is similarly employed in Finland and with comparable experience and qualifications.
The rate of payment defaults has been increasing in the last few years. The Insurance Contract Act was amended in 2010 in order to prevent insurance applications being rejected solely on the basis of applicants' public credit records, which are available from the public data registry. Such a rejection is acceptable only if the insurer can objectively assess that the applicant is likely to default on its payments in future.
The insurance industry must comply with good insurance practice. Usually, disputes are decided directly under the law and applicable insurance conditions. However, in some cases which are open to interpretation, good insurance practice may be the decisive factor. The Insurance Complaints Board's practice demonstrates that good insurance practice can sometimes be worth money to the claimants.
During the past two years the Supreme Court has granted several leaves to appeal in occupational accident and disease-related matters. In these cases the Supreme Court has overruled decisions of the Insurance Court and ordered the insurers to indemnify, emphasising that causality in legal terms is different from causality in medical terms.
Under the Traffic Insurance Act, the right to indemnification requires that the damage was caused by a motor vehicle and that the damage derived from the use of the vehicle in traffic. The question of whether a motor vehicle was being used in traffic rarely causes problems. However, interesting questions occasionally arise in unusual cases. The Traffic Accident Board recently rendered a recommendation regarding damage caused to an aircraft by a de-icing vehicle at a major international airport.
After several years in the drafting, amendments to the Insurance Contracts Act have finally come into force. The reform work started in 2000 through an enquiry of the Ministry of Justice. The results of the enquiry showed that the five-year-old act works reasonably well, but that certain amendments were necessary because some paragraphs were unclear and certain insurance products have entered the market since the act was passed.
A recent Supreme Court decision is likely to have considerable consequences regarding the marketing of unit-linked pension insurance and other complex investment-related insurance arrangements. It appears that it is insufficient for the relevant information to be presented in brochures and other marketing material; rather, the policyholder must also understand this information.
The Insurance Ombudsman Bureau and the Insurance Complaints Board make up an integral part of Finland's advisory regime. The two bodies work together to provide recommendations which aim to resolve disputes involving insurance policies out of court. However, neither entity is competent to resolve disputes relating to policies which have been sold by companies with no branch or agency in Finland.
The banking crisis in the early 1990s resulted in many extensive liability trials, in which even ordinary people could suddenly be faced with multimillion-euro claims. Thereafter, no director could afford to remain uninformed on issues relating to liability and most sought insurance against the liability risks that corporate activity entails. Today, directors' and officers' coverage constitutes an important part of corporate governance.
Subrogation arises when an insurance company pays the insured under the provisions of an insurance policy so as to benefit from the insured's rights against a third party. A recent case highlighted the inadequacy of the provisions of the Insurance Contracts Act regaring the question of whether the provisions on subrogation are to be considered peremptory. The government is preparing a bill to clarify the situation.
The Eastern Finland Appeal Court recently assessed whether a statutory maritime lien over cargo also covers the costs associated with a general average that accrued as a result of confirming that general average and exercising the lien for a general average contribution. In deciding that these kinds of associated costs and expenses are not recoverable and secured by a maritime lien, the court made the exercise of a lien more difficult and less attractive to shipowners.
The main aims of the Transport Code are to create a growth environment for digitalisation and promote transport business by deregulation. Due to the code's broad scope, its preparation has been divided into three stages. Provisions relating to the code's third stage were recently opened for comment by the Ministry of Transport and Communications. The majority of comments received before the June deadline highlighted data protection issues.
The Transport Code (formally the Act on Transport Services) is one of the government's key initiatives. The code's main purpose is to create a growth environment for business digitalisation and promote transport business by deregulation. The code will reform the regulation of all transport modes, so that the regulation itself will not become an obstacle to digitalisation, automation and new innovations.
Fairway dues have been a much-discussed issue in Finland for years. The controversy began in 2000 when the Finnish authorities began suspecting that ships which regularly entered and departed Finnish waters did not fully comply with the technical requirements for vessels of the relevant ice class. The authorities subsequently began collecting fairway dues retroactively. This led shipping companies and their agents to file hundreds of appeals in the administrative courts.
Correct temperature is vital to maintaining the feasibility and effectiveness of pharmaceuticals throughout their lifecycle, including during carriage. Although various guidelines have been issued and express provisions have been included in transport agreements to maintain the cold chain, damage often occurs. The Helsinki Appeal Court recently considered whether the level of a carrier's liability should be agreed in advance and whether failure to maintain an agreed temperature should constitute gross negligence.
The Supreme Court recently issued a much-awaited decision and upheld a Court of Appeal decision involving Uber passenger rides. The Supreme Court ruled that to provide an Uber service a driver must have a taxi licence. It found a driver who had driven Uber passengers without such a licence guilty and imposed a €2,100 fine.
The Supreme Court recently found that the Maritime Code should have been applied in a personal injury case and that the Espoo District Court (as a general court) did not have subject-matter jurisdiction over the claim. The Supreme Court found that when determining which court has subject-matter jurisdiction, it is necessary to first investigate whether the provisions of the Maritime Code become applicable.
Following police investigations against Uber drivers in Helsinki, the district court fined an Uber driver for illegal taxi driving and ordered the driver to forfeit his earnings as criminal gain. The Helsinki Appeal Court passed a judgment and now an important precedent is pending before the Supreme Court. It is unlikely that the Supreme Court will disagree with the lower courts; nevertheless, the outcome will determine whether and how Uber can continue to operate in Finland.
In a recent case, the Supreme Administrative Court considered whether empty containers owned by those other than shipowners or charterers should be regarded as cargo in the meaning of Section 11 of the Fairway Dues Act, because 'cargo' is not defined in the act. In addition, the court considered the effect of the customs instructions in this matter.
The Transport Code is one of the government's chief initiatives. Its main purpose is to create a growth environment for business digitalisation and to promote transport business by deregulation. The code will reform the regulation of all transport modes, so that the regulation itself will not become an obstacle to digitalisation, automation and new innovations. Due to the code's broad scope, its preparation has been divided into three phases. The first phase focuses mainly on road transport.
According to the Fairway Dues Act, the amount of fairway dues will be reduced if a ship is not fully loaded according to the particular loading capacity utilisation rate, which is calculated by comparing the combined total of cargo imported into and exported out of Finland. The Supreme Administrative Court recently ruled that a ship with no cargo onboard is entitled to the loading capacity reduction.
Following pressure from the European Commission to implement EU cabotage rules fully, Parliament is dealing with a bill amending the Act on Commercial Transport of Goods on the Road. There was some parliamentary opposition to the bill, but in the second reading the controversial bill was approved. However, the commission has decided to refer Finland to the European Court of Justice for failing to apply the cabotage rules properly.
Finland implemented early the cabotage regulations set out in the EU legislative package on road transport. However, the Finnish cabotage restrictions were stricter than those of the regulation, and the European Commission asked Finland to amend its legislation to comply with EU law. The Finnish government has now proposed a bill amending the Act on Commercial Transport of Goods on the Road.
Traffic to the Russian ports on the Baltic Sea has increased greatly over the last few years; as a result, Russia's icebreaking capacity can no longer meet demand in severe winter conditions. In 2011 Russia proposed a treaty with Finland to promote cooperation in icebreaking assistance in the Baltic Sea, which finally came into force this year. Finnish icebreakers may now operate in Russian territorial waters and vice versa.
For several years the Transport Workers' Union (AKT) has claimed that the lashing and unlashing of bars on container ships in Finnish ports should be performed by its own stevedores. Most recently, AKT started directly boycotting selected shipping companies, insisting that they contract out their lashing work to port operators. The case came before the Labour Court, which found that AKT had violated the industrial peace.
The Fairway Dues Act has recently been amended. The act's scope of application has been updated to release icebreakers that provide services to the Finnish Transport Agency in Finnish territorial waters from the obligation to pay fairway dues. The act also includes a new section about the effect of the lack of ice-class certificates or outdated ice-class certificates.
In a recent case, a shipper stowed, loaded and sealed a container, but when it was opened at the final destination, it was observed that one-third of the declared goods had disappeared. Closed-circuit television footage was unable to show whether the container had been sealed at the loading port's gate. The appeal court found that the pilferage had taken place during the carrier's liability period.
In a recent case, two trawlers were moving against the recommended general direction and had not reported to the traffic centre. An approaching merchant vessel changed its course to avoid a collision but hit one of the trawlers. The prosecutor brought charges against the trawler masters. The Helsinki Maritime Court found that the trawlers had no duty to report to the traffic centre. The request to report was a recommendation only.
A recent case before the Supreme Administrative Court concerned whether a port had to pay value added tax on the supply of services and water when they were not charged directly from the shipping company. As the services and water were not used by the agent and the vessels were in commercial international traffic, the court found that extending the sales exemption did not conflict with the correct application of the law.
The Helsinki Appeal Court recently rendered a judgment regarding when a seafarer's employment contract can be made for a fixed term. Pursuant to the Seafarers' Employment Contracts Act, an employment contract is valid indefinitely unless it has been made for a specific fixed term for a justified reason. Contracts made for a fixed term on the employer's initiative without a justified reason will be considered valid indefinitely.
A gas producer and carrier entered into two standard form contracts of carriage for gas products. The gas supplier terminated the contracts due to several alleged contractual breaches. The courts found that the gas producer's allegations were unjustified and held that most of the alleged breaches were caused by the fact that the gas producer had not provided the drivers with the necessary training.
A vessel was suspected of leaking oil and the Border Guard imposed an oil discharge fee on the vessel owner. The owner appealed on the grounds that the fee was imposed on the wrong party, since the vessel was operated by the operator at that time. However, the owner had not raised this argument when the fee had been imposed and the Supreme Court dismissed the appeal.
Pursuant to the Maritime Code, maritime safety authorities can request a master on a foreign flagged vessel to give a maritime declaration, but the effect of this request can be challenged. It is unclear if the criminalisation stipulation in case of failure concerns a master on a foreign flagged vessel and if the authorities have the right to detain the vessel in order to encourage the master to give the maritime declaration.
The Helsinki Appeal Court recently overruled a judgment regarding an oil pollution payment. A vessel was suspected of leaking oil and the Border Guard had imposed an oil discharge fee on the vessel owner. The owner appealed on the grounds that the fee had been imposed on the wrong party, since the vessel had been operated by the operator at the time. The court accepted the appeal and annulled the discharge fee.
The Turku Appeal Court recently confirmed a Turku Maritime Court decision regarding the question of title to wreck and the right of salvage. The decision illustrates the criteria that must be fulfilled for the removal of a wreck to be regarded as salvage and will hopefully serve as a guideline to salvors in the future.
Amendments to the Municipal Act and other reforms are set to change the ownership structures of ports, with the aim of enhancing competition within and between ports. Under the new regime, a municipality must establish a corporation for all of its activities when it acts in competitive markets. Meanwhile, the much-debated fairway dues are also subject to possible revision.
A mail courier company distributed printed advertisements for a retailer based on an assessment of the number of households in different post codes. The retailer claimed that this assessment was incorrect, leading to a shortfall in some areas and a surplus in others. The Helsinki Appeal Court held that the advertisements constituted goods and their delivery constituted transport; the advertisements could not be regarded as mail.
In a recent case a driver was accused of neglecting to control the cargo security of a trailer that he had checked, but that had been sealed with the transport company's seal. The dispute concerned whether the commercial seal overruled the duty to carry out a cargo safety check. The district court found that as a 'seal' is not defined in the Road Traffic Act or its preparatory work, the definition also covers commercial seals.
The Supreme Court recently confirmed that a Convention on Contracts for the International Carriage of Goods by Road (CMR) carrier has a right to release itself from liability for the loading, stowage and securing of goods, and that the sender has no right to take direct action against the CMR sub-carrier. The decision is a reminder that it is important to have a clear and detailed agreement on such matters.
It is sometimes unclear whether a stevedore works for the vessel or the cargo. A longshoreman was injured while working onboard and the case was remitted to a competent maritime court. The court found that since the vessel had not ordered the stevedore's work, the injured longshoreman was not acting in the interest of the vessel.
The government's initiative to tackle the grey economy has focused on the transport sector – especially on the transportation of goods by road. Several amendments to the Act on Commercial Transport of Goods by Road recently came into force, one of which increases the onus on a procurer of haulage services to ensure that the transportation contract is not concluded before it has made certain checks.
The Finnish Port Operators Association has repeatedly turned down the Transport Workers Federation's (AKT) demand that the lashing and unlashing of containers - traditionally undertaken by the vessel's own crew - be carried out by stevedores. In a recent decision the Labour Court found the AKT's threat that stevedores would take over the lashing work from February 4 2013 to be an illegal industrial action. Negotiations to settle the dispute are ongoing.
A Finnish appeal court recently dismissed criminal charges against the master and first mate of a vessel who had been fined for failing to ensure that their ship was seaworthy prior to a voyage from Germany. While the vessel's cargo of explosives had not been transported in accordance with the applicable regulations, the appeal court found that this had caused no risk to life and thus did not constitute a criminal offence.
In 2011 Finland and Sweden entered into a bilateral convention to strengthen the organisation of winter navigation services. The arrangement has enabled icebreakers to operate effectively and economically, to the benefit of both parties. The success of this cooperation hinges on careful planning by the authorities.
The Finnish Seaman's Union (FSU) has long subjected foreign flagged vessels to harassment. If a foreign vessel that applies a collective bargaining agreement which the FSU dislikes calls at a Finnish port, the FSU tends to claim the right to negotiate a new collective bargaining agreement for the vessel. The FSU has almost never sought a mandate from the crew, but claims that it has a right to negotiate.
Despite efforts to encourage competition, Finland has remained one of the few EU countries where the goods transport network was operated by a single railway company. However, the first safety certificates were issued to private companies in 2011 and the Ministry of Transport and Communications recently issued a licence to Ratarahti, making it the first new official operator since the sector was opened to competition.
A shipping company which is subject to tax in Finland can choose between ordinary corporate income tax or tax under the Tonnage Tax Act. However, the shipping industry found the tonnage tax scheme unattractive and inflexible. Therefore, the government recently amended the act. It remains to be seen whether shipping companies will opt for tonnage tax in the future.
The new Water Act is welcome news for the shipping industry, as it clarifies the confusing and uncertain situation whereby, in certain circumstances, two conflicting legal regimes may determine a shipowner's non-contractual liability. The act has corrected this situation by eliminating a shipowner's strict liability. Since the beginning of the year, the legal basis for shipowners' liability has been unambiguous.
Pilots and their services are essential for safe navigation in Finnish fairways. Various cases have raised the issue of whether a pilot acted as a pilot or as a crew member when he or she steered the vessel due to insufficient watch crew on the bridge. To date, the courts have made no distinctions between piloting and when the pilot acts more or less as a crew member, but the state is contesting this view again in a pending case.
The Helsinki District Court recently rendered several judgments in a complicated and prolonged patent and utility model infringement dispute which involved several interesting IP right questions as well as shipping law problems. It remains to be seen whether the parties have the endurance to litigate before the appeal court and in the Supreme Court.
In February 2003 two cargo vessels were involved in a head-on collision. At the time of the collision the sea was frozen and the visibility was poor. In order to resolve the case the maritme courts had to establish the respective movements of the vessels and then decide whether, in such circumstances, vessels should navigate according to the fairway on the relevant chart or according to the ice channel in the relevant field.
The Supreme Court recently held that the requirement to observe good seamanship does not apply to the masters of non-merchant vessels. The maritime safety authorities are concerned that this precedent will result in the creation of two distinct categories of seafarer: one which must obey the Maritime Code and the International Regulation for Preventing Collision at Sea, and one which must obey only the water traffic rules.
Pursuant to Chapter 21, Section 1 of the Maritime Code, matters which are decided in accordance with the code must be tried by a competent maritime court. Furthermore, the act also stipulates that cases arising under the Seamen's Act with reference to the code must be determined before the relevant maritime court. However, certain aspects regarding the proper venue in which to handle maritime disputes remain ambiguous.
In a recent case the Supreme Administrative Court had to decide whether lower court decisions concerning fairway dues which were adjudicated in accordance with the Fairway Dues Act were to be reversed on the basis that they breached EU law. It remains to be seen whether this ruling puts an end to the controversy surrounding fairway dues.
The fairway dues collection system was traditionally based on a procedure whereby a foreign shipowner appointed a Finnish agent, and the agent and foreign shipowner were jointly and severally responsible for payment of the fairway dues imposed on the respective vessel. However, to comply with EU law, from January 1 2009 the shipowner alone is liable for paying fairway dues.
In 2003, in response to suspicions that some ships did not satisfy the technical requirements for their ice class, the Finnish Maritime Administration not only issued new ice class certificates, but also ordered owners of vessels whose ice class was reduced to pay retroactively any fairway dues that had been avoided as a result. The move caused widespread confusion, which is still being resolved.