INTERTANKO Athens October 11 th 2018 Documentary Committee Overview Anne Liversedge Associate General Counsel, TEEKAY Chairman INTERTANKO Documentary Committee Leading the way; Making a difference
Documentary Committee Members 2018 Ms Anne Liversedge, Teekay Corporation (Chair) Dr Peter Glover, Norton Rose Fulbright (Vice-Chairman), Mr Nicholas Adamopulos, Maran Tankers Mr Michael Brooks, Nordisk Mr David Chapman, GasLog Prof Martin Davies, Tulane Law School Mr Adam Goldschmidt Stolt Tankers Mr Michael Hope, North of England P & I Mr Jamie Kyle, Clarkson's Mr George Mathioudakis, Tsakos Columbia Mr Frank Riley, Skuld Capt Milan Samaddar, Mansel Oil Mr John Salmon, Sovcomflot Mr Wellington Koo, Valles Steamship Co Ltd plus Observers from Frontline and Stephenson Harwood
Tangible Output & Support Leading the way; Making a difference
Working Groups Working Groups INTERTANKO Commentary on BPVOY5 (published 2016) INTERTANKO Guide to Terminal Conditions of Use (InsCom/ISTEC) (Publication June 2018) INTERTANKO 2020 clause started out as dealing with 2020 but in discussion is now clause that can go in charters now and will deal with any future changes. Should be ready for November Council meeting. NB will be bolt on for transition to 2020 to make it practical :
Some Recent Clauses and Discussions Recent Clauses Worldscale Costs Clause (Worldscale and Markets March 2018) Demurrage Payment Clause (Publication July 2018) Interest on Late Payments Clause (Publication July 2018) River Ports Clause (Parcel Tankers) (Chemical Tankers)
Aim to deal with issues that of importance to the Membership Usable and practical 2020 clause started out as dealing with 2020 but in discussion is now clause that can go in charters now and will deal with any future changes. Should be ready for November Council meeting. NB will be bolt on for transition to 2020 to make it practical Longevity
Longevity: Sanctions Constantly changing but the main focus for all is Iran and Russia Primary sanctions No US person can do business with anyone on the SDN list Watch for sectoral sanctions on listed entities designated non SDN Secondary sanctions (Iran related following US stepping back from JPCOA) BUT If a non US person undertakes business with Iran that would be unlawful for a US person- that is also a breach of sanctions EU Blocking Legislation- it is unlawful for EU persons to give effect to US secondary sanctions
INTERTANKO Sanctions Clause Developed in 2010. Can be adapted for sanctions in all jurisdictions. INTERTANKO Sanctions Clause Any trade in which the vessel is employed under this Charterparty which could expose the vessel, its Owners, Managers, crew or insurers to a risk of sanctions imposed by a supranational governmental organisation or the United States, { insert other countries or EU} shall be deemed unlawful and Owners shall be entitled, at their absolute discretion, to refuse to carry out that trade. In the event that such risk arises in relation to a voyage the vessel is performing, the Owners shall be entitled to refuse further performance and the Charterers shall be obliged to provide alternative voyage orders.
Usable and practical INTERTANKO Worldscale Costs Clause If Charterers order the Vessel to a port/location ( port ) for which: (i) Worldscale makes no, or only partial, allowance for costs in the calculation of the Worldscale flat rate; or (ii) there are additional costs due only to size of the Vessel not accounted for by Worldscale; or (iii) there are additional costs due to revised tariffs not accounted for by Worldscale in: (a) the calculation of the flat rate: or (b) a fixed/variable differential: or (c) a Worldscale Circular, all such costs or additional costs at that port, including but not limited to port disbursements, agency, towage, pilotage, standby tugs, shall be for Charterers account and settled directly by them. Alternatively, if paid directly by Owners, such additional costs will be reimbursed to Owners against Owners invoice and supporting documents.
Leading the way; Making a difference
INTERTANKO Guide to Terminal Conditions of Use Contractual Issues Contract formation and terms as between Owner and Terminal Limitation of liability LLMC 76 Contractual exclusion of limit of liability CAPE BARI case Insurance Cover Protection & Indemnity Hull & Machinery Practical considerations Advice for Masters Advice for Owners Charterparty issues INTERTANKO Conditions of Use Clause
Contracts and the Master Contractual Issues Onerous provisions that: irrespective of fault, not only exonerate the Terminal from any liability for any damage caused to the vessel; but also require Owners to compensate the Terminal for any damage caused or injury suffered due to the negligence of the Terminal In addition, COUs usually endeavour to deprive Owners of their statutory right to limit liability Master s authority As Owner s agent express, implied or apparent. Signature or by conduct
Owner s Right to Limit Liability Statutory Limitation Regime: Convention on Limitation of Liability for Maritime Claims 1976 (LLMC) Entered into force 1 December 1986 Currently 54 States are party to the 1976 Convention Among claims subject to limitation (whatever the basis of liability) under the LLMC are: claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom
Development of Limitation of Liability Leading the way; Making a difference
Why is it important? P & I Cover P & I Cover for third party risks associated with a call at a port or terminal BUT Club cover is limited:.this liability may be determined and fixed by law including any laws pertaining to limitation of liability. The Association shall in no circumstances be liable for any sum in excess of such legal liability. (UK P & I Club) Which would not have arisen but for the terms of the contract or an indemnity entered into by or on behalf of the member, unless the contract or indemnity is approved by the Association. (Skuld) Owner may find himself exposed where he has lost the right to limit or has otherwise waived it contractually (subject to P & I Club discretion).
Practical Implications Following the CAPE BARI decision, Terminals, Pilots, bunker suppliers will now include express and unambiguous wording in contracts excluding the statutory right to limit. INTERTANKO Guide covers: Practical considerations Advice for Masters and Owners Master is Owners representative and therefore has actual and/or apparent authority review whatever he is asked to sign for receipt only without authority to bind clear SOPs for Master s guidance Master s Statement Leading the way; Making a difference
Charterparty Issues INTERTANKO Guide covers: Charterparty liability /risk allocation Only agree to levels of risk that they are able to insure within their standard P & I cover is to consider the allocation of risk under the terms of the charterparty. Advice on Indemnities How to make charterers responsible for the risk of any liability over and above the norm. INTERTANKO Conditions of Use Clause For use with both time and voyage charters For use with both crude and LNG trades Leading the way; Making a difference
Coming soon to a theatre near you Working Groups INTERTANKO Guide to LNG Chartering (Gas) Bunker Terms Project 2020 (Bunker Sub and ISTEC) INTERTANKO Commentary on Shelltime 4? Clauses under development Storage (Anti-fouling) Clause (Environmental) ECA Fuel Changeover Clause (ISTEC/Bunker) Mass Flow Meter Clause (Bunker) Issues under discussion Paper on pros and cons of Freight Payment Models INTERTANKO Model Clauses in public domain
And if you liked that you may also like: Issues under discussion Paper on pros and cons of Freight Payment Models INTERTANKO Model Clauses in public domain
Thank you on behalf of myself And my hardworking committee For more information, please visit: http://www.intertanko.com/topics/legal-and-documentary-/ or contact Michele.white@intertanko.com Leading the way; Making a difference