Economic Sanctions - Compliance Guidance
In recent years, sanctions legislation has become increasingly more complex and has had a significant effect upon the shipping industry. Sanctions have had a major impact not only on shipping operations but also through financial institutions and insurance companies serving the shipping industry, including on P&I clubs worldwide.
I. Compliance by American Club Members
The American Club as well as its Members must comply with all economic sanctions laws and regulations applicable to them.
As Members know, the P&I and FD&D insurances provided by the American Club exclude coverage for unlawful trade. Additionally, under the American Club's rules, whenever coverage under an American Club policy would be in violation of any US economic or trade sanctions including, but not limited to, those sanctions administered and enforced by the U.S. Department of the Treasury, Office of Foreign Assets Control ("OFAC"), such coverage shall be null, void and of no effect. In sum, there is no coverage where coverage would be prohibited. Consequently, although, in certain cases, economic sanctions may not prohibit a Member from engaging in the activity of transportation in question (for example the Member is not a US person), US sanctions may nevertheless impact and affect the scope and/or extent of insurance coverage afforded to the Member (by the American Club, a US person) for such transportation.
Members must comply with the various sanctions laws applicable to them which, if violated, may subject them to both criminal and/or civil penalties and other adverse action.
Generally, both the sanctions laws of the US and EU (or other countries), to one degree or another, prohibit:
II. Sanctions Indicators/Information Elements
Sanctions prohibitions may be implicated based on the main elements of information related to maritime transportation and a particular cargo shipment transaction. These elements traditionally include the following:
As part of their internal sanctions compliance program, Members should investigate all of these elements when considering or contemplating a proposed transaction or voyage to better assess any potential sanctions issues.
III. Awareness of Applicable Prohibitions and Screening Information
Sanctions laws apply to the transportation activities of Members, as well as, but separately to, the insurance activities of the American Club. Members should be aware of the sanctions laws and regulations that are generally applicable to them such as EU sanctions laws or the laws of the state in which they are domiciled, and what these laws prohibit (prohibited countries, prohibited persons, prohibited exports or supply, prohibited support), and screen the above-mentioned information elements of their voyages and other transactions to ensure that they do not engage in sanctions violations. See Section IX below for relevant links to EU, UK and IG resources.
Members also need to be aware of the US sanctions laws applicable to the American Club and to other US persons. The United States currently maintains economic sanctions against Iran, Syria, Sudan, Cuba, the Crimea region of Ukraine and, to a lesser extent, North Korea and Myanmar. See Section VIII and IX below.
The United States also maintains sanctions against certain persons or entities whose names appear on OFAC's list of Blocked Persons and Specially Designated Nationals ("SDNs") on OFAC's SDN List, including but not limited to, SDNs in Cuba, Iran, Syria, Sudan, North Korea and other countries (such as the Russian Federation, Yemen), certain designated vessels, certain persons designated as terrorists or drug traffickers, and, as it relates to the Russian Federation only certain Russian entities. http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx
The American Club and all other US persons, and transactions with a US nexus (such as payments through the US banking system) must comply with the prohibitions of US sanctions.
Economic sanctions programs administered by states are different and no two sanctions programs are alike, and different states (countries) have different sanctions programs. For example, US sanctions may prohibit the American Club from providing cover even though the trade or voyage by the Member is not prohibited by sanctions laws applicable to that Member. The various laws apply differently to various persons, activities, and transactions.
IV. Screening by Members - Two, Three or Sometimes Four Step Due Diligence
In light of the fact that Members and the American Club may be simultaneously subject to the sanctions laws of different states, Members need to conduct a two-pronged and sometimes three or even four-pronged due diligence inquiry/test to ensure that they do not engage in sanctions violations, and that they have permissible American Club coverage for their vessels.
First, if, for example, a Member is generally or primarily subject to EU sanctions laws, the Member must determine whether EU sanctions laws prohibit the transportation or trade in question. Members should screen the information elements above against the list of countries against which the EU maintains sanctions, the list of EU-prohibited activities and persons (see Section IX below), and the array of EU-prohibited cargoes, trade and activities. Most potential sanctions violations can be detected and prevented by country or transaction party screening. A comprehensive transaction party screening should be performed against the EU sanctioned parties listing (see Section IX).
Second, if, for example, EU laws do not prohibit the transportation or trade in question but the trade has elements which may implicate US sanctions prohibitions applicable to the American Club, the Member will need to know whether cover for the voyage in question is available from the American Club. The Member should disclose the above sanctions indicators/information elements to the American Club and seek confirmation, on a case-by-case basis, as to whether coverage is available. See Section V below.
Third, if, for example, EU laws do not prohibit the transportation in question but the trade has elements or related transactions which may implicate US prohibitions applicable to US persons other than the American Club such as, in the payment context, US banks, the Member must ensure that the payments through the US financial system do not implicate US prohibitions or that they do not cause violations.
Fourth, as was in the case of the past US nuclear-related sanctions against Iran, US as well as, for example, EU laws could have impacted the underlying transportation in question, in which case, Members should have conducted and in similar cases should conduct screening of information under EU as well as US law (US sanctions) applicable to them. If neither US nor EU law prohibits the Member's underlying trade, to confirm the availability of cover from the American Club for Iran voyages, the Member should disclose the above sanctions indicators/information elements to the American Club and seek confirmation, on a case-by-case basis, as to whether coverage is available under US law applicable to the American Club.
Again, the American Club is prohibited and precluded from providing insurance for any underlying voyage that is prohibited by laws applicable to the Member or to its entered vessel.
V. Consult Legal Counsel
In concert with an internal sanctions compliance program, Members are encouraged to consult legal counsel whenever a potential transaction indicates elements that might implicate sanctions related concerns or issues. Should Members need any references to legal counsel to assist with questions regarding US, EU or other sanctions, they should contact the American Club's Compliance Center.
VI. Contact the American Club's Compliance Center
After conducting the due diligence screening described in Section IV, the Member should contact the American Club's Compliance Center ([email protected]) to address any sanctions related insurance coverage issues.
When making such an inquiry to the Compliance Center, the Member should provide the following required information as far in advance as possible to allow for sufficient time for consideration of and response to the inquiry:
Members should give ample advance notice to the American Club when seeking confirmation of coverage in the sanctions context. Once reviewed, the American Club's managers will assess the inquiry and may consult with its OFAC/EU counsel for advice and guidance. The American Club will endeavor to respond as promptly as possible under the circumstances and its response will be limited to the specific question of whether coverage is available and the interplay between the American Club's Rules and the contemplated transaction/voyage. It should be noted that the American Club's reply does not constitute and should not be construed as legal advice with respect to the Member's contemplated activity. It will be limited as to the permissibility and availability of cover from the American Club. The Compliance Center's response should not be used, viewed or otherwise considered as a substitute for the Member's own due diligence investigation.
In summary, Members should:
VIII. Country specific links to relevant American Club Circulars, and related documents
IX. Useful Sanctions Related Web Links
U.S. Formally Reimposes Secondary Sanctions Against Iran: Club Circular No. 28/18
U.S. Withdraws from JCPOA and Reimposes Secondary Sanctions Against Iran: Club Circular No. 15/18
US Economic Sanctions - Expansion of Iranian Sanctions Targets: Member Alert - 07/19/17
US Enacts New Law Requiring the Imposition of Additional Economic Sanctions with Respect to North Korea, Iran and Russia: August 03, 2017: Club Circular No. 23/17
Iran: Additional US Sanctions: February 06, 2017: Club Circular No. 07/17
US Office of Foreign Assets Control Imposes Sanctions on Iranian Port Operator, Tidewater Middle East Co.: Member Alert - 07/05/11
Continuing EU and US Sanctions – Syria: May 13, 2016: Club Circular No. 19/16
Additional EU Economic Sanctions - Iran and Syria: October 22, 2012: Club Circular No. 28/12
Additional US Economic Sanctions: Iran and Syria: May 07, 2012: Club Circular No. 12/12
Developments: (1) EU Ban on the Importation and Transport of Iranian Oil, Petroleum and Petrochemical Products: (2) Proposed US 180 Day Ban of Vessels Trading to Iran, North Korea and Syria: January 26, 2012: Club Circular No. 07/12
US Economic Sanctions in Regard to Syria: December 13, 2011: Club Circular No. 37/11
EU Economic Sanctions in Regard to Syria: September 12, 2011: Club Circular No. 25/11
The US Embargo of Cuba: Further Guidance - 180 Day Prohibition Waiver Club Circular No. 36/16
The US Embargo in Regard to Cuba: Further Guidance: January 08, 2016 Club Circular No. 02/16
US Economic Sanctions - Sudan: January 17, 2017: Club Circular No. 02/17
Ukraine (Crimea) & Russia
The United States Imposes Sanctions Against Additional Russian Entities and Individuals: March 13, 2018: Club Circular No. 13/18
US Enacts New Law Requiring the Imposition of Additional Economic Sanctions with Respect to North Korea, Iran and Russia: August 03, 2017: Club Circular No. 23/17
Additional Individuals and Entities Targeted in Relation to Ukraine/Russia: August 04, 2015: Club Circular No. 34/15
Ukraine/Russia Related Economic Sanctions: Crimea Region of Ukraine: February 11, 2015: Club Circular No. 11/15
PEME Program Update: Effect of Sanctions on PEME Clinics in the Crimea - Sevastopol and Kerch: February 10, 2015: Club Circular No. 10/15
Additional US Economic Sanctions Against Russia/Russian Entities: December 23, 2014: Club Circular No. 38/14
Additional US Sanctions - Russian Entities: September 17, 2014: Club Circular No. 26/14
Imports of Goods from Crimea and Sevastopol: August 12, 2014: Club Circular No. 24/14
Additional US Sanctions - Russian Entities: July 30, 2014: Club Circular No. 22/14
New US Sectoral Sanctions Against Certain Russian Entities: July 17, 2014: Club Circular No. 20/14
EU Sanctions in Respect of Crimea and Sevastopol: July 16, 2014: Club Circular No. 19/14
The Ukraine and Crimea: US Sanctions Against Russian Individuals and Entities: Member Alert - 03/24/14
U.S. economic sanctions against North Korea prohibit the American Club from, among other things, providing cover for members and their vessels trading with North Korea. The American Club does not provide cover for voyages to and from North Korea or otherwise or engage in transactions involving North Korea. The U.S. North Korean economic sanctions have recently been strengthened and they prohibit a wide range of activities and transactions that have both a North Korean and U.S. nexus.
Our Circulars of January 6, 2016, February 26, 2016, March 18, 2016, December 19, 2016, and August 3, 2017 summarize comprehensive U.S. economic sanctions against North Korea, which continue in force:
On August 5, 2017, the UN Security Council unanimously adopted Resolution 2371 (2017) strengthening existing economic sanctions against North Korea in response to North Korea’s recent intercontinental ballistic missile tests. Resolution 2371 is a further step in the intensification of economic sanctions against North Korea. Previously, the Security Council adopted Resolution 2270 which targeted North Korea’s military as well as its economic sectors in an effort to stop North Korea’s nuclear and missile activities.
Our Circulars of March 4, 2016 and August 9, 2017 summarize U.N. economic sanctions against North Korea, which member states of the U.N. are obligated to implement and enforce:
Other (Burma/Myanmar, Ivory Coast, etc.)
US Economic Sanction Against Burma Terminated: October 12, 2016: Club Circular No. 35/16
US Economic Sanctions: Certain Persons (Individuals) in Venezuela: March 12, 2015: Club Circular No. 14/15
United States Sanctions Against Certain Persons (Entities and Individuals) in Yemen: November 16, 2012: Club Circular No. 30/12
Relaxation of US Sanctions Against Burma (Myanmar): October 03, 2012: Club Circular No. 25/12
Economic Sanctions Update: US Libya Sanctions Lifted: Member Alert – 12/21/11
Circulars and Member Alerts are published by The American Club as a service to Members. While the information is believed to be correct, it is not complete and The American Club does not assume responsibility for completeness or accuracy.
The United States Office of Foreign Assets Control (OFAC):
Office of Foreign Assets Control / US Department of the Treasury (Information on US sanctions) http://www.treasury.gov/resource-center/sanctions/Pages/default.aspx
Overview of US sanctions http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx
OFAC Specially Designated Nationals and Blocked Persons List Search http://sdnsearch.ofac.treas.gov/Default.aspx
The United Kingdom Treasury (HMT): http://hmt-sanctions.s3.amazonaws.com/sanctionsconlist.pdf
https://www.gov.uk/government/publications/financial-sanctions-iran-nuclear-proliferation is the UK government website dealing with EU and UK sanctions in respect of Iran.
https://www.gov.uk/government/publications/financial-sanctions-consolidated-list-of-targets is the list of sanctioned targets held by the UK and includes individuals and entities listed as targets by the European Union.
United Kingdom (UK) Department for Business, Innovation and Skills (Information on UK, EU and UN sanctions) https://www.gov.uk/sanctions-embargoes-and-restrictions/
European Union / Restrictive measures (sanctions):
The International Group’s website IGP&I News provides access to various useful links including to the European Union Foreign Affairs Council regulations on US sanctions.
FAQs on legislation published by the International Group of P&I Clubs, June 2013 Iran Sanctions - U.S Legislation - Updated FAQs
This brief economic sanctions compliance guidance has been prepared by the American Club to assist Members in complying with sanctions laws applicable to them and to the American Club. This guidance does not constitute and should not be construed as legal advice or a determination by the American Club as to the availability of cover for any specific case. The American Club urges Members to obtain independent legal advice regarding the applicability of sanctions laws to them and with respect to their compliance obligations under such laws.
United States Imposes New Financial Sanctions Against the Government of Venezula Including PdVSA: August 31, 2017: Club Circular No. 26/17