Laytime Definitions for Charter Parties 2013

15 Сен

Опубликован новый документ, который заменяет Правила истолкования сталии в рейсовом чартере (Voylayrules 1993). Этот документ разработан БИМКО, ФОНАСБА, ММК и Балтийской биржей.

Laytime Definitions for Charter Parties 2013
Introduction
Laytime and demurrage are fundamental to tramp shipping. Specialist terms which have evolved
over the years have been extensively analysed by legal commentators and frequently tested in the
courts. This has resulted in subtle distinctions where a choice of term or use of language can
advance or delay the commencement of laytime and mean the difference between demurrage
starting on Friday afternoon or the following Monday morning.
The Laytime Definitions for Charter Parties 2013 (Laytime Definitions), copy attached, have been
developed to provide practitioners with a set of meanings of commonly-used words and phrases.
The objective is to help reduce disputes about party intentions in a market where fixtures are
often concluded on the basis of a recap message and listed amendments, without the exchange or
return of draft contracts. The Laytime Definitions are available for incorporation into charter
parties or possibly used as an agreed reference for dispute resolution. In addition, they can be
used as an educational resource to assist industry entrants and others wishing to develop an
understanding of the contractual and legal complexities surrounding laytime and demurrage.
Background
In 1976, the Comité Maritime International (CMI), the private international organisation for
maritime legal interests, began work on a project to reduce charter party disputes by developing
definitions of commonly-used terms, starting with laytime provisions. A Working Group comprising
representatives from BIMCO, CMI, the UK Chamber of Shipping and FONASBA, developed the
Charter Party Laytime Definitions 1980. However, the Definitions failed to attract support and were
rarely incorporated into charter parties. In response to a highly critical report about contractual
arrangements in the shipping industry issued by the United Nations Commission on Trade and
Development (UNCTAD) in 1990, the Definitions were revised and issued as the Voyage Charter
Party Laytime Interpretation Rules (Voylayrules) 1993.
In the twenty years since the publication of Voylayrules, significant developments and changes
have taken place in case law and commercial practice. A review was therefore put in hand to
determine whether the content remained relevant together with the need for any changes,
including new or additional provisions, required to meet contemporary trading arrangements.
Detailed work was undertaken by representatives from the original sponsoring organisations
together with a participant from the Baltic Exchange:2
Mr Jean-Pierre Laffaye, BIMCO (Chairman)
Mrs Marygrace Collins, FONASBA
Mr Stig Gregersen, CMI
Mr Colm Nolan, Baltic Exchange
The resulting Laytime Definitions for Charter Parties 2013 were adopted by BIMCO at the
Documentary Committee in Paris in May 2013 and have been similarly endorsed by each of the
sponsoring organisations. Accordingly, the provisions are issued as a joint document.
Content
(a) Principles
The Laytime Definitions have been restored to the original 1980 concept and developed as
definitions. This is an important change from Voylayrules 1993 which were issued as a selfstanding code of rules and differed in a number of significant respects from generally accepted
principles and practice such as the decision to combine three variations of “Weather Working “ day
into a single Rule.
The sponsoring organisations agreed that the previous radical approach had been a factor
contributing to the limited use of Voylayrules and that a fresh approach was required in the
development of updated provisions which would be used in the markets. It was therefore agreed
to revert to definitions, setting out statements of meaning, and that the content should reflect
contemporary market needs based on the current state of English law. As a result substantive and
editorial amendments have been made to a number of the Voylayrules provisions, separate
explanations given once again to different forms of “Weather Working” day and new definitions
introduced including “Always Accessible” and “Whether in Port or Not”.
The term “Strike”, which was introduced in Voylayrules, has been deleted because the scope and
effects are often given their own meaning in the underlying charter party. The term “In Writing”
has been removed as unnecessary given that many, particularly BIMCO, charter parties include a
clause covering the issue.
The use of abbreviations has, for the most part, been avoided. In many cases, there is no
generally accepted meaning and while parties may understand their own exchanges, abbreviations
and acronyms can be capable of more than one interpretation. The Laytime Definitions use
abbreviations only in respect of Whether in Berth or Not (WIBON) and Whether in Port or Not
(WIPON) which are widely understood.
Commentary
The following notes comment on the updated provisions and highlight changes from or
amendments to Voylayrules 1993.
Preamble
The provisions relate only to laytime and demurrage issues and apply when any or all are
expressly incorporated into a charter party or other contract of affreightment. It is for parties to
determine the scope of application either limited to certain agreed and identified provisions or by
incorporation in extenso.
List of Definitions
1. PORT has been amended to reflect the wider concept of port area explained in The Johanna
Oldendorff (1973) with reference now made to “places outside the legal, fiscal or administrative area”.
The term “offshore facilities” has been added to the illustrative, but  non-exhaustive, list of cargo handling areas.
2. BERTH consistent with the amendment to PORT, the restrictive reference to “place within a
port” has been replaced by an open-ended list of cargo handling locations.
3. REACHABLE ON ARRIVAL this term has been the subject of considerable litigation over the
years. The revised text is based on the current position that delay due to bad weather or
congestion or both is a breach of charterers’ obligations. The potentially disputatious
qualification “in the absence of an abnormal occurrence”, included in Voylayrules, has been
deleted.
4. ALWAYS ACCESSIBLE the provision has been treated by the authorities as synonymous with
“Reachable on Arrival” in the context of getting into a berth but the position on departure
has been less clear. The term has therefore been set out separately with the second
sentence covering the position on departure requiring charterers to enable the vessel to
leave safely and without delay.
5. LAYTIME this is unchanged.
6. PER HATCH PER DAY and
7. PER WORKING HATCH PER DAY or PER WORKABLE HATCH PER DAY
Laytime counting by reference to hatch calculations continues to be used, albeit to a limited
extent, in some parts of the world. The provisions have been retained unchanged.
8. DAY in contrast to Definitions No 9 and 10, an unqualified DAY is now described as a period
of twenty-four consecutive hours.
9. CALENDAR DAY is new and covers a period of twenty-four consecutive hours running from
0000 to 2400 hours.
10. CONVENTIONAL DAY is new and has been included in recognition of the fact that a period of
twenty-four hours in relation to laytime counting is likely to start at any point during a
Calendar Day.
11. WORKING DAY the meaning has been brought into line with English law.
12. RUNNING DAYS or CONSECUTIVE DAYS the provision is unchanged.
13. RUNNING HOURS or CONSECUTIVE HOURS this is new and reflects practical usage,
particularly in tanker charter parties.
14. HOLIDAY this is the (unchanged) mirror image of Definition No 11 WORKING DAY.
15-18 WEATHER WORKING in contrast to the single provision in Voylayrules covering three
alternative forms of Weather Working provisions, separate meanings have been restored in
line with English law decisions.
15. WEATHER WORKING DAY deductions for bad weather are calculated by reference to the
length an interruption during a vessel’s normal (or notional if waiting on turn) working hours
bears to a period of 24 hours. Thus, a two hour stoppage during an eight hour working day is
pro-rated to six hours (or four hours in the case of a twelve hour working day) and the time 4
then added to the end of laytime. No deductions are made for rain occurring outside normal
working hours.
16. WEATHER WORKING DAY OF 24 CONSECUTIVE HOURS the actual duration of an interruption
for bad weather at any time on a working day during or outside normal working hours and
including periods on turn, is added to the end of laytime.
17. WEATHER WORKING DAY OF 24 HOURS this is an artificial day made up of twenty-four
working hours. An eight hour working day is equal to three calendar days’ laytime but with
laytime suspended for stoppages due to bad weather in working hours or in working hours
when work was contemplated.
18. (WORKING DAY) WEATHER PERMITTING this has the same meaning and interpretation as
Definition No 16 Weather Working Day of 24 Consecutive Hours.
19. EXCEPTED or EXCLUDED the content is unchanged
20. UNLESS SOONER COMMENCED has the effect of bringing forward the commencement of
laytime if work begins prior to the contractual start of laytime.
21. UNLESS SOONER COMMENCED, IN WHICH CASE ACTUAL TIME USED TO COUNT the
commencement of laytime remains in accordance with charter party provisions but time
actually used in any prior period will count against laytime.
22. UNLESS USED time used during excepted periods is set against laytime.
23. TO AVERAGE LAYTIME the provision is unchanged.
24. REVERSIBLE LAYTIME the provision is unchanged. Reversibility applies between loading ports
and discharging ports but not between loading ports or between discharging ports.
25. NOTICE OF READINESS this is unchanged.
26. TIME LOST WAITING FOR BERTH TO COUNT AS LOADING OR DISCHARGING TIME or AS
LAYTIME the basis is unchanged in principle, subject to minor editorial improvements. Where
a vessel is unable to berth but cannot tender Notice of Readiness at a waiting place, time lost
will count against laytime or, on expiry, as demurrage. Once a berth is available, laytime or
demurrage ceases to count until the vessel is at a place where Notice of Readiness can be
given and resumes in accordance with charter party provisions.
27. WHETHER IN BERTH OR NOT (WIBON) or BERTH OR NO BERTH relates to delays due to
congestion (but not on account of weather). A change has been made. Under Voylayrules,
laytime or demurrage ceased once a berth became available and would not resume until the
vessel was at the berth. This meant that the owner would have to bear the risk of any
intervening delay, even if not otherwise contractually responsible. An adjustment has
therefore been made so that time will always run in accordance with the underlying charter
party provisions.
28. WHETHER IN PORT OR NOT (WIPON) this is new. It will enable an owner to give Notice of
Readiness from any recognised waiting place “off the Port” if unable to proceed to the usual
waiting place.
29. VESSEL BEING IN FREE PRATIQUE has been amended to address the position
in Voylayrules potentially restricting time counting arrangements and possibly conflicting
with underlying charter party terms. The content has been streamlined with the reference to 5
Custom House entry removed as formalities vary considerably from one state to another.
The provision now relates only to compliance with port health requirements.
30. DEMURRAGE in order to avoid conflict with the position in many charter parties, the
Voylayrules provision that “Demurrage shall not be subject to laytime exceptions” has been
qualified by “unless specifically stated in the Charter Party”.
31. DESPATCH MONEY or DESPATCH this is unchanged.
32. DESPATCH ON ALL WORKING TIME SAVED or ON ALL LAYTIME SAVED this is unchanged.
33. DESPATCH ON ALL TIME SAVED this is unchanged.
Recommended methods of incorporation
As explained above, the provisions have been developed for incorporation into charter parties.
There are several possible means of achieving this objective depending on the type of contractual
arrangements (for example single or consecutive voyage charters or a contract of affreightment)
and whether the intention is to apply the provisions in full or only those selected by the parties.
While other methods might be equally effective, the following alternatives are suggested:
(i) clause for incorporation by reference:
“The Laytime Definitions for Charter Parties 2013 (Laytime Definitions) are incorporated into this
contract in full. In the event of any conflict between this contract and the Laytime Definitions, the
provisions of the Laytime Definitions shall prevail to the extent of such conflict.”
If it is agreed to incorporate only certain of the Definitions, the text can be modified to read:
“Definition Numbers [identify selected provisions] in the Laytime Definitions for Charter Parties
2013 (Laytime Definitions) are incorporated into this contract. In the event of any conflict
between this contract and the Laytime Definitions, the provisions of the Laytime Definitions shall
prevail to the extent of such conflict.”
(ii) incorporation using a “cut and paste” addendum setting out the full text of all or of those
selected Definitions which the parties have agreed to apply. The incorporation clause should
clearly state that the agreed Laytime Definitions prevail in the event of any conflict with the
underlying charter party provisions.
(iii) application to individual words or phrases in the body of the charter party where the intention
is to remove any doubt about the parties’ intended interpretation of one or more specific terms. In
such event, the text of the relevant Laytime Definition(s) can be inserted as the agreed meaning.
The full text of the Laytime Definitions for Charter Parties 2013 is available to download free of
charge from the Chartering/Clauses section of the BIMCO website (www.bimco.org) and is also set
out below:6
LAYTIME DEFINITIONS FOR CHARTER PARTIES 2013
PREAMBLE
Words, phrases, acronyms and abbreviations (“Words and Phrases”) used in a Charter Party shall
be defined, for the purposes of Laytime only, in accordance with the corresponding Words and
Phrases set out below, when any or all such definitions are expressly incorporated into the Charter
Party.
«Charter Party» shall include any form of contract of carriage or affreightment including contracts
evidenced by bills of lading.
Singular/Plural
The singular includes the plural and vice versa as the context admits or requires.
List of Definitions
1. PORT shall mean any area where vessels load or discharge cargo and shall include, but not
be limited to, berths, wharves, anchorages, buoys and offshore facilities as well as places
outside the legal, fiscal or administrative area where vessels are ordered to wait for their
turn no matter the distance from that area.
2. BERTH shall mean the specific place where the Vessel is to load or discharge and shall
include, but not be limited to, any wharf, anchorage, offshore facility or other location used
for that purpose.
3. REACHABLE ON ARRIVAL shall mean that the charterer undertakes that an available
loading or discharging Berth be provided to the Vessel on arrival at the Port which the
Vessel can reach safely without delay.
4. ALWAYS ACCESSIBLE shall mean that the charterer undertakes that an available loading or
discharging Berth be provided to the Vessel on arrival at the Port which the Vessel can
reach safely without delay. The charterer additionally undertakes that the Vessel will be
able to depart safely from the Berth and without delay at any time before, during or on
completion of loading or discharging.
5. LAYTIME shall mean the period of time agreed between the parties during which the owner
will make and keep the Vessel available for loading or discharging without payment
additional to the freight.
6. PER HATCH PER DAY shall mean that the Laytime is to be calculated by dividing the
quantity of cargo by the result of multiplying the agreed daily rate per hatch by the
number of the Vessel’s hatches. Thus:
Quantity of cargo
Laytime = ——————————————- = Days
Daily rate x Number of hatches
Each pair of parallel twin hatches shall count as one hatch. Nevertheless, a hatch that is
capable of being worked by two gangs simultaneously shall be counted as two hatches.7
7. PER WORKING HATCH PER DAY or PER WORKABLE HATCH PER DAY shall mean that the
Laytime is to be calculated by dividing the quantity of cargo in the hold with the largest
quantity by the result of multiplying the agreed daily rate per working or workable hatch
by the number of hatches serving that hold. Thus:
Largest quantity in one hold
Laytime = ———————————————————————————— = Days
Daily rate per hatch x Number of hatches serving that hold
Each pair of parallel twin hatches shall count as one hatch. Nevertheless, a hatch that is
capable of being worked by two gangs simultaneously shall be counted as two hatches.
8. DAY shall mean a period of twenty-four (24) consecutive hours. Any part of a Day shall be
counted pro rata.
9. CALENDAR DAY shall mean a period of twenty-four (24) consecutive hours running from
0000 hours to 2400 hours. Any part of a Calendar Day shall be counted pro rata.
10.CONVENTIONAL DAY shall mean a period of twenty-four (24) consecutive hours running
from any identified time. Any part of a Conventional Day shall be counted pro rata.
11. WORKING DAY shall mean a Day when by local law or practice work is normally carried
out.
12.RUNNING DAYS or CONSECUTIVE DAYS shall mean Days which follow one immediately
after the other.
13.RUNNING HOURS or CONSECUTIVE HOURS shall mean hours which follow one immediately
after the other.
14. HOLIDAY shall mean a Day other than the normal weekly Day(s) of rest, or part thereof,
when by local law or practice work during what would otherwise be ordinary working hours
is not normally carried out.
15. WEATHER WORKING DAY shall mean a Working Day or part of a Working Day during which
it is or, if the Vessel is still waiting for her turn, it would be possible to load/discharge the
cargo without interruption due to the weather. If such interruption occurs (or would have
occurred if work had been in progress), there shall be excluded from the Laytime a period
calculated by reference to the ratio which the duration of the interruption bears to the time
which would have or could have been worked but for the interruption.
16. WEATHER WORKING DAY OF 24 CONSECUTIVE HOURS shall mean a Working Day or part
of a Working Day of 24 consecutive hours during which it is or, if the vessel is still waiting
for her turn, it would be possible to load/discharge the cargo without interruption due to
the weather. If such interruption occurs (or would have occurred if work had been in
progress) there shall be excluded from the Laytime the period during which the weather
interrupted or would have interrupted work.
17. WEATHER WORKING DAY OF 24 HOURS shall mean a period of 24 hours made up of one or
more Working Days during which it is or, if the Vessel is still waiting for her turn, it would
be possible to load/discharge the cargo without interruption due to the weather. If such 8
interruption occurs (or would have occurred if work had been in progress), there shall be
excluded from Laytime the actual period of such interruption.
18.(WORKING DAY) WEATHER PERMITTING shall have the same meaning as WEATHER
WORKING DAY OF 24 CONSECUTIVE HOURS.
19. EXCEPTED or EXCLUDED shall mean that the Days specified do not count as Laytime even
if loading or discharging is carried out on them.
20. UNLESS SOONER COMMENCED shall mean that if turn-time has not expired but loading or
discharging is carried out, Laytime shall commence.
21. UNLESS SOONER COMMENCED, IN WHICH CASE ACTUAL TIME USED TO COUNT shall
mean that actual time used during turn-time shall count as Laytime.
22. UNLESS USED shall mean that if Laytime has commenced but loading or discharging is
carried out during excepted periods, actual time used shall count as Laytime.
23. TO AVERAGE LAYTIME shall mean that separate calculations are to be made for loading
and discharging and that any time saved in one operation is to be set off against any
excess time used in the other.
24.REVERSIBLE LAYTIME shall mean an option given to the charterer to add together the time
allowed for loading and discharging. Where the option is exercised the effect is the same
as a total time being specified to cover both operations.
25. NOTICE OF READINESS shall mean the notice to the charterer, shipper, receiver or other
person as required by the Charter Party that the Vessel has arrived at the Port or Berth, as
the case may be, and is ready to load or discharge.
26. TIME LOST WAITING FOR BERTH TO COUNT AS LOADING OR DISCHARGING TIME or AS
LAYTIME shall mean that if no loading or discharging Berth is available and the Vessel is
unable to tender Notice of Readiness at the waiting-place then any time lost to the Vessel
is counted as if Laytime were running, or as time on Demurrage if Laytime has expired.
Such time ceases to count once the Berth becomes available. When the Vessel reaches a
place where she is able to tender Notice of Readiness, Laytime or time on Demurrage
resumes after such tender and, in respect of Laytime, on expiry of any notice time
provided in the CharterParty.
27. WHETHER IN BERTH OR NOT (WIBON) or BERTH OR NO BERTH shall mean that if the
designated loading or discharging Berth is not available on arrival, the Vessel on reaching
any usual waiting place at the Port, shall be entitled to tender Notice of Readiness from it
and Laytime shall commence in accordance with the Charter Party.
28. WHETHER IN PORT OR NOT (WIPON) shall mean that if the designated loading or
discharging Berth and the usual waiting place at the Port are not available on arrival, the
Vessel shall be entitled to tender Notice of Readiness from any recognised waiting place off
the Port and Laytime shall commence in accordance with the Charter Party. 9
29.VESSEL BEING IN FREE PRATIQUE shall mean that the Vessel complies with port health
requirements.
30. DEMURRAGE shall mean an agreed amount payable to the owner in respect of delay to the
Vessel once the Laytime has expired, for which the owner is not responsible. Demurrage
shall not be subject to exceptions which apply to Laytime unless specifically stated in the
Charter Party.
31. DESPATCH MONEY or DESPATCH shall mean an agreed amount payable by the owner if the
Vessel completes loading or discharging before the Laytime has expired.
32. DESPATCH ON ALL WORKING TIME SAVED or ON ALL LAYTIME SAVED shall mean that
Despatch Money shall be payable for the time from the completion of loading or
discharging until the expiry of the Laytime excluding any periods excepted from the
Laytime.
33. DESPATCH ON ALL TIME SAVED shall mean that Despatch Money shall be payable for the
time from the completion of loading or discharging to the expiry of the Laytime including
periods excepted from the Laytime.
***********
Grant Hunter
Chief Officer for Legal and Contractual Affairs
BIMCO
10 September 2013
E-mail: documentary@bimco.org