COVID породил необычайные проблемы для всех, и не в последнюю очередь – для судовладельцев и менеджеров судов, которым приходится предпринимать попытки смены экипажа судна, из-за самоизоляции, карантина и ограничения полетов. BIMCO опубликовал оговорку о смене экипажа COVID19 для сторон тайм-чартера, которая предоставляет судовладельцам право отклоняться от контрактного рейса в целях смены экипажа. Для смягчения рисков фрахтователям целесообразно рассмотреть включение в коносаменты или суб-чартеры этой оговорки (приводится ниже).
The COVID world has produced extraordinary challenges for all of us, not least for owners and managers who have to attempt crew changes amongst lockdown, quarantine and flight restrictions.
In response BIMCO have introduced their COVID19 Crew Change Clause for Time Charter Parties that gives owners the liberty to deviate from a contracted voyage for the purposes of crew change.
The clause attempts to deal with liberty and deviation; two concepts that have major repercussions under a bill of lading.
Once contracted, a voyage needs to be completed as efficiently as possible using direct routes; the bill of lading terms in conjunction with the charterparty may give the owner liberty to deviate from the contracted route. In the absence of this liberty a deviation may occur and the impact of this is that the owner or contractual carrier may lose limitation rights under the bill of lading ; limitation can significantly reduce the size of cargo claims which otherwise might have to be settled at full cargo value. In an effort to mitigate this risk, the Clause requires charterers to procure its incorporation into bills of lading and/or sub charters.
The Clause
The BIMCO Clause is not offensive, they have quoted the COVID extraordinary circumstances in their slightly presumptuous wording at sub clause d) giving the option for charterers to share the cost of the time and bunkers taken to change crew but this might be something that charterers with a multi-year charter might consider.
Sub clause b) could be improved to give charterers the right to agree to the deviation, for example if the vessel is on a short trip time charter party, charterers commercial considerations may be impacted by a deviation.
Sub clause b) could be amended as follows:
- b) Owners right under subclause (a) above will be subject to Charterers’ consent, such consent not to be unreasonably withheld or delayed. Owners shall notify Charterers in writing as soon as reasonably possible of any intended deviation for crew changes purposes for Charterers’ consideration and approval.
The unamended clause reads as follows:
BIMCO COVID-19 Crew Change Clause for Time Charter Parties 2020
(a) In addition to any other right to deviate under this contract, the Vessel shall have liberty to deviate for crew changes if COVID-19-related restrictions prevent crew changes from being conducted at the ports or places to which the Vessel has been ordered or within the scheduled period of call. Any deviation under this clause shall not be deemed to be an infringement or breach of this contract, and Owners shall not be liable for any loss or damage resulting therefrom.
(b) Owners shall exercise the right under subclause (a) above with due regard to Charterers’ interests and shall notify Charterers in writing as soon as reasonably possible of any intended deviation for crew changes purposes.
(c) Charterers shall procure that subclause (a) shall be incorporated into any and all sub-charter parties, bills of lading, waybills or other documents evidencing contracts of carriage issued pursuant to this Charter Party.
(d) During the period of such deviation the Vessel shall:
(i)* remain on hire, but at a reduced rate of hire of USD ……….. per day. In the absence of an agreed amount, fifty per cent (50%) of the hire rate shall apply. The cost of bunkers consumed shall be shared equally between Owners and Charterers.
(ii)* be off-hire and the cost of bunkers consumed shall be for Owners’ account.
(e) While the Vessel is at the port of deviation all port charges, pilotage and other expenses arising out of such crew changes shall be for the Owners’ account.
*(d)(i) and (d)(ii) are alternatives. Delete whichever is not applicable. In the absence of deletions alternative (d)(i) shall apply.
Download COVID 2019 – BIMCO Crew Change Clause for Time Charters
Авторы: MECO Group
Источник: https://www.themecogroup.co.uk/charterers-liability-insurance/publication/covid-2019-bimco-crew-change-clause-for-time-charters/