Subject: Bimco’s N ew NAABSA Charterparty Clau
Circular to Assureds (no 002 2012)对的英语
Background
By a Special Circular no.6 of 22 December 2011 BIMCO has published an updated recommended wording and commentary on NAABSA (not always afloat but safely aground) provisions in charterparties.
Assureds will of cour be familiar with the usage of NAABSA provisions in trades where it is customary for a vesl to touch ground during a loading or discharge operation; for example as found in Clau 6 of the NYPE (1946) charterparty which provides:
“That the cargo or cargoes be laden and/or discharged in any dock or at any wharf or place that Charte
rers or their Agents may direct, provided the vesl can safely lie always afloat at any time of tide, except at such places where it is customary for similar size vesls to safely lie aground.”
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BIMCO's new wording and circular is aimed at addressing a lacuna that has previously been prent in the standard charterparty wordings by their failing either to address or identify what steps a charterer has taken in order to verify that the intended position is free of obstructions, or obstacles, which could result in damage to a vesl while laying aground.
信服的反义词Once again the BIMCO recommended wording is an "owner friendly" provision eking to provide additional protection to owners, while at the same time placing additional obligations upon charterers.
Incorporation of the provision
Whilst on occasion certain provisions in the additional terms of charterparties have provided for bespoke NAABSA regimes, generally the provision is not found in a free standing clau but forms part of the overall berthing provisions and requirements in charterparties. The current BIMCO recommended NAABSA wording was adopted by BIMCO's documentary committee during its Copenhagen meeting in 2011 and is as follows:
"Always subject to the Owners' approval, which is not to be unreasonably withheld, the Vesl during loading and/or discharging may lie safely aground at any safe berth or safe place where it is customary for Vesls of similar size, construction and type to lie, if so requested by the Charterers, provided always
that the Charterers have confirmed in writing that Vesls using the berth or place will lie on a soft bed and can do so without suffering damage.
野山鸡
The Charterers shall indemnify the Owners for any loss, damage, costs, expens, or loss of time, including any underwater inspection required by Class, caud as a conquence of the Vesl lying aground at the Charterers request".
BIMCO Commentary
BIMCO have advid its members that while the first paragraph of the NAABSA wording t out above gives a charterer a right to request that a vesl lie safely aground for the purpos of loading and/or discharge operations, this is always subject to owners approval and bad on customary practice for the berth, or place in question, in terms of the vesl's size, construction and the established and accepted procedures for laying aground at that position.
The final part of the BIMCO suggested wording in the first paragraph adds a condition in relation to the scope of own ers’ approval. In order to address owners concerns about accepting at face value a report of, or charterers indication as to, the condition of the a bed adjacent to the safe berth or place and that this is free from obstructions, there is now a new obligation upon charterers to confirm in writing that vesls using the particular berth or place will lie on a soft bed, safely aground, without suffering damages. This is an additional provision to the existing and accepted industry wording "customary for vesls of similar size, construction and type". The new wording obliges charterers to (always) confirm in writing to owners that they have carried out a proper investigation as to the safety of the position where the vesl will be lying aground.
The cond paragraph of the provision places an additional burden upon charterers that they are to indemnify owners for any loss, damage, costs, expens or loss of time that may occur as a result of the owners agreeing that the vesl can lie safely aground at the particular berth or place. The indemnity expressly includes the charterers’responsibility for the costs and time of an underwater survey to check for damage, if required by owners’ classification society.
Club’s comments and recommendation
小学英语单词大全
Assureds should wherever possible avoid accepting the new BIMCO wording. It is the Club’s view that it is both impractical and unreasonable for a charterer to confirm in writing that a vesl using a berth or place which applies to a NAABSA provision will effectively be guaranteed to be laying on a soft bed with no risk of damage. This goes considerably further than the previous industry accepted reference to safe berths or safe places where it is customary for vesls of similar size, construction and type to lay.
As to the indemnity contained in the cond paragraph of the BIMCO clau, Assureds will be aware of the vere conquences and exposure they face by providing an additional express contractual indemnity to owners which covers any loss, damage, cost, expens, or loss of time. Moreover, BIMCO themlves say their recommended
泡椒牛蛙的做法clau is a wording to be added to the existing berthing provisions already contained in the charterparty and yet they have chon to add an indemnity provision as well. It is the Club’s firm recommendation that Assureds reject owners’ attempts at trying to incorporate such or similar indemnities into their charterparties with Assureds. Further, while the BIMCO recommended wording appears to limit the requirement to indemnify the costs for any underwater survey to tho required by Class, this in itlf is a potential considerable exposure to charterers, especially in circu
mstances where it is likely that owners will ek to expand upon the indemnity to include all underwater survey requests and requirements, whether initiated by Class or not. In any event it should be noted that while BIMCO state it is not their intention that owners should be able to pass on the costs of all underwater inspections to charterers solely as a result of charterers request that their vesl lay safely aground during a loading and discharging operation, but only where this is a requirement of Class, it is likely that owners will have some considerable influence with their Classification Societies in asking them to request such survey's. Assureds are recommended to direct owners to the standard safe port and berth warranties in their charterparties as providing owners with adequate protection without the need for any additional wording such as that envisaged by BIMCO. Should it become necessary to include a NAABSA term and provided it is appropriate to do so, then in addition to the existing berthing provisions in the charterparty with their owners, Assured’s may consider using an amended (less onerous) version of the BIMCO clau as follows:
“If so requested by Charterers, the Vesl during loading and/or discharging may lie safely aground at any safe berth or safe place where it is customary for Vesls of similar size, construction and type to lie.”
网络修复Club Cover
Clau 11 of the Class 2 liability cover of the Club’s Terms and Conditions provides under Section 1 cover for liability in respect of physical damage to an Insured Ship. Cover under this Section operates whether or not the relevant terms of the charterparty in respect of which the liability is sought contains a NAABSA provision. However in circumstances where an Assured voluntarily or otherwi agrees to incorporate the new BIMCO recommended wording and in doing so provides a written confirmation as to the safety of a particular berth or place by reference to the ability of a vesl to be able to lie on a soft bed during loading and/or discharge operations, free of obstacles and without risk of damage, where in fact such written confirmation is provided without the Assured having taken independent steps to verify the safety of the berth/place such that the confirmation may be defective, incomplete or fal, Club cover may be compromid. Where an Assured provides a confirmation in circumstances where no such confirmation could reasonably be provided, or with disregard for the validity of such confirmation, then the particular carriage, trade or voyage in which the Insured Ship was engaged may be deemed imprudent, unsafe or improper withi n the meaning of Clau 13(I) of the Club’s Terms and Conditions and there will be no cover.
In circumstances where an Assured voluntarily agrees to pay for the costs of underwater inspections with no prior consultation with the Club, whether required by Class or otherwi, the cost of such inspections will fall outside the scope of cover.
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Further information and assistance in relation to the application of NAABSA type provisions and the BIMCO clau can be obtained by Assureds from their usual contacts in the Club’s London or Shanghai claims department.
Michael El and Company Limited, as Managers E. & O.E. Dated London 21 February 2012
