Charterparties

7 Апр

В продолжении (часть 2) публикации, посвященной фрахтованию судов, детально рассматриваются вопросы, связанные с фрахтованием судов на время. В частности, исследуются договора бербоут- и тайм-чартера.

In our previous article we took a brief look at some of the fundamental commercial and economic distinctions between voyage, time and bareboat charterers and how these differences heavily impinge on the various legal aspects of the law relating to charterparties; especially that as to the critical issue of allocation risk as between owner and charterer.

We now turn to look in a little more detail at time and demise charterparties.

Demise charters

In a demise (bareboat) charter the charterer takes possession of the ship and any cargo carried therein and provides her master and crew and all stores. As such the ship is ‘his’ and he, and not the owner, is responsible for damage caused by the ship to third parties (e.g. other ships or port facilities) as well as damage to any of her cargo. The role of the owner is perforce extremely limited. Many such charters are in the form of the BIMCO BARECON 2001 form with appropriate amendments to suit the circumstances of the case.

In practice some demise charters are, in effect, finance arrangements of the lease/purchase (i.e. HP) type in which the charterer is, the borrower and the owner no more than a bank or other lender. Such arrangements often contemplate that the charterer will acquire the ship at the end of the lease by a final capital payment, or at least have the option to do so.

On other cases the owners may sometimes be a group of investors looking for a return on capital through operation of a ship without the risks of operating the ship or as a route by an owner to eventual outright disposal of the ship. Yet other forms of bareboat charter equate more to an ordinary commercial charter arrangement. The demise charter is often linked in either case to a ship management agreement between the same or related parties and may often also be associated with a new building or a sale and purchase transaction.

The charterer will invariably be responsible for routine repairs and maintenance but an important aspect of the terms of the charter may be the issue of who bears responsibility for the cost of more drastic structural changes, upgrading through new equipment and other improvements (as may be required by class, or otherwise thought desirable) from time to time necessary in the course of the charter and who may authorise such work.

Another critical provision of any demise charter is that as to in whose name or names, and at whose expense and by whom, hull, war and P&I insurances will be effected.

The necessary element of possession afforded to the charterer gives him the possibility of claiming relief against forfeiture in an appropriate case but on the whole the typical form of demise charter rarely in practice gives rise to many legal disputes. That this is so must be because almost the almost the entire risk of the charter is assumed by the charterer and there is little room for any difference, as there often is with time charters, as to whom as between the two parties to the charter should bear any particular liability, cost or expense.

It is also a reflection of the fact that the owner, in contrast to his position under a time charter, is generally not much exposed directly in any event to claims from third parties through the trading of his ship by his demise charterer. Yet further in a demise charter the owner will typically exclude most, if not all of his liability for defects in respect to the condition of the ship. At most perhaps his liability will be expressed to be restricted to assuming responsibility for latent defects notified within the first 12 months of the charter.

Time charters

By contrast with demise charterers the question of ultimate allocation of risk between the two parties in any particular scenario in a time charter is a perennial source of dispute between owner and charterer; especially as the owner will have possession of the cargo and as such be exposed to direct cargo claims as a bailee; quite irrespective of whether in fact his charterer is in fact the contracting carrier under any bill of lading. In fact of course, as we have seen from previous articles, in many cases there may be real doubt as to who, on a proper construction of the bill of lading, as between owner and charterer, the contracting bill of lading carrier.

Time charters also create certain legal difficulties in that there is always an inherent and potential for conflict between the role of the master, with his overriding responsibility for the navigation and safe passage of the ship and her crew and cargo, and the role of the charterers in not only finding the cargo or cargoes for the vessel, but also arranging their loading and stowage discharge and giving orders as to the employment and routing of the vessel. The extreme volatility of the time charter market with very marked fluctuations in hire rates is also a ready recipe for legal disputes.

The number of different standard forms of time charter in common use tends to be rather more restricted than is the case with voyage charters; where the different forms in use are multifarious. For the deep sea bulk trades the New York Produce Exchange NYPE 1946 and 1993 forms have long commanded very wide acceptance.

In the bulk oil trade the SHELLTIME 4 form is widely used and the BIMCO BALTIME 1939 form commands some acceptance in the short sea trades. In practice the forms, of whatever type, are often very heavily amended by numerous superimposed bespoke clauses negotiated between the parties shipbrokers in any individual transaction. These are often poorly or inaptly drafted or even contradictory and in many cases serve to introduce a good deal of complexity and uncertainty into what would otherwise be on the standard form alone a fairly clearly drawn (albeit perhaps not equable) charter.

A typical time charter will follow a well recognised pattern starting with a description of the vessel by reference in particular to her name, class, deadweight and hold capacity, service speed and bunker consumption and any other particular features in which the charterer has a special interest, such as her cargo handling gear or any special attributes.

Given that the charterer will be responsible for paying for all bunkers consumed by the vessel during the period of the charterparty and will pay for use of the vessel on the basis of a daily hire rate it is self-evident that attainment of any warranted rate of bunker consumption is a critical factor; as is the ability of the vessel to maintain, weather and sea conditions permitting, her warranted service speed.

It may be necessary to carefully examine the terms of any warranties given by the owner in this connection to ascertain whether it is one as to the vessel’s performance or bunker consumption only on delivery at the outset of the charterparty or is rather one rather to be construed as properly applicable throughout the term of the charterparty and to what extent any warranties are qualified by use of the term ‘about’ and if so what is meant by such term. There is no fixed meaning to this term and its construction is all a matter of context.

The place and time of delivery and redelivery, along with the duration of the charter will also be very important provisions in the charter and many disputes over the years have turned on the issue as to whether the charterer is entitled to make an early or late redelivery as the case may be (or give final orders for a voyage likely to extend beyond the redelivery date) without being in breach of contract and if not so what damages on the part of the owner flow from such a breach.

Generally speaking where an excessively early or late delivery (underlap or overlap as it is sometimes referred to) amounts to a breach of contract the charterer will only be liable for any losses incurred by the owner in this respect by reference to the difference between the charter rates and the market rates; rather by reference to any special arrangements entered into by him with any third-party; at least where these were not made known to the charterer at the outset of the charter in the course of negotiations.

The charterparty will usually confer an express right of cancellation on the charterer should delivery not be made with within a certain period from the stipulated delivery date.

The charterparty will typically impose limits on the type of cargo that may be carried and impose at least some geographical trading limits on the vessel’s employment. It will also usually make provision as to in whose name bills of lading shall be issued and on what terms and impose a duty on the charterers to arrange and pay for all cargo handling and all port and dock dues and ship agency fees.

The owner will be remunerated primarily, or in most case solely, through payment of hire though he may, especially in times when the market is strong, bargain for a ballast bonus in addition to the hire to allow for the cost of any positioning or post-positioning voyage in those cases where the port of delivery or redelivery is out of trade.

A right to withdraw the ship may be conferred on the owner for non-payment of hire in circumstances where otherwise the owner would not be entitled to terminate the contract for repudiated breach on the part of the charterer. This right may however in turn be expressly made subject to an anti-technicality clause restricting withdrawal except in accordance with certain procedures so as give the opportunity to the charterer to remedy any non-payment.

As a matter of general law (in contrast with the common law position as to payment of freight under a bill of lading or voyage charter) a time charterer is entitled to make deductions from hire payable by him in respect of any claim which is so closely connected with the claim for hire so as to give rise to an equitable set-off. However the terms of the charterparty itself may be found in many cases to expressly restrict such common law rights of set-off or in some cases indeed expressly expand or clarify such rights by e.g. expressly permitting certain types of deduction but at the same time prohibiting other types.

Clearly no charterer will wish to pay for a vessel which is not capable of fully performing the required service, through e.g. breakdown of her main engine at sea or her cargo handling gear in port, and the time charter will therefore invariably include an off-hire clause; although the exact extent and effect of such clause in any case may require careful consideration. An off-hire clause is not usually dependent upon proof by the charterer of any breach on the part of the owner though a breach on his part may also often be engaged. The causal effect of the linkage between the off-hire event and the loss of partial or complete ability to work the vessel in port or sea may be an important consideration.

In a time charter the master will be generally under the charterers’ instructions and orders as to the cargo is to be loaded throughout the duration of the charter and the route to be followed by the vessel subject always to the master’s right to decline such orders on the grounds of good seamanship. The corollary of this right is that the charterers may have to indemnify the owner against any liabilities incurred in his complying with such orders and it will often be a nice question as to whether any liability incurred by the owner is considered to arise out of the orders, and therefore to be ultimately borne by the charterers; or is rather one within the owner’s sphere of risk.

Both the owner and charterer may be exposed to cargo claims; especially where the bills of lading issued are owner’s bills. Such claims may arise in some cases through bad stowage or other forms usually attributable to the charterer but in other cases the claim may arise through some lack of seaworthiness on the part of the vessel or some default by the master and crew in the navigation of the ship or in the care of the cargo or in yet other cases through the fault of no one; e.g. inherent vice.

The standard forms of charterparty often do not deal with these issues comprehensively and the widely applied NYPE Interclub Agreement has been in use for many years to fill this gap by setting out a scheme for apportionment of these liabilities (on a fairly rough and ready “knock for knock” basis) in those cases where the charter is on the NYPE or BIMCO ASBATIME form.

Typically the charter will provide that the bill of lading freights will be collected by the charters but that the owners will have a so-called lien on such freights in the case of non-payment of hire.

Most demise and time charters contain an arbitration clause; in contra-distinction to the position with bills of lading where such a clause is only rarely to be found; unless that is the bill of lading is one issued under a charterparty and expressly incorporates the charterparty and its arbitration clause.