Should the Owners participate in a recognised fuel testing programme one of the samples retained by the Owners shall be forwarded for such testing. The cost of same shall be borne by the Owners and if the results of the testing show the fuel not to be in compliance with ISO 8217:2010, or any subsequent amendment thereof, or such other specification as may be agreed, the Owners shall notify the Charterers and provide a copy of the report as soon as reasonably possible.
In the event the Charterers call into question the results of the testing, a fuel sample drawn in accordance with IMO Resolution MEPC.182(59) Guidelines for the Sampling of Fuel Oil for Determination of Compliance with the Revised MARPOL 73/78 Annex VI or any subsequent amendments thereof, shall be sent to a mutually agreed, qualified and independent laboratory whose analysis as regards the characteristics of the fuel shall be binding on the parties concerning the characteristics tested for. If the fuel sample is found not to be in compliance with the specification as agreed in the paragraph above, the charterers shall meet the cost of this analysis, otherwise same shall be for the Owners’ account.
In October 2009 BIMCO initiated a project to develop a suite of standard bunker clauses for use in time charter parties. The rationale behind developing the suite is simply to address the ever increasing importance of bunker issues in time charter parties and the need to ensure that the risk of bunker disputes is minimised by clearly worded clauses that reflect legislative developments. The Suite of Clauses was adopted by BIMCO’s Documentary Committee at its meeting in Vancouver in June 2011.
The Suite provides clauses covering matters relating to delivery/redelivery bunkers; bunkering operations; sampling; fuel testing programmes; and ECA trading, all of which are matters that are frequently absent from or insufficient in many standard time charter parties. Many older time charter forms contain bunker clauses covering the fundamental principles under the charter, but simply do not contemplate today’s situation where vessels are required to carry and use several grades of fuel and where sampling and testing regimes are an integral part of the process.
It is not the intention that BIMCO’s Suite of Bunker Clauses should be a direct replacement for the existing bunker clauses in a time charter - there is, for example, no intention to deal with the actual pricing or quantities of bunkers, as this will already be dealt with. What the Suite offers is a means of supplementing standard time charters with bunker provisions that are missing or poorly worded. Each clause within the Suite is designed to be self-standing and independent of the other clauses in the Suite. As always, users should be careful when incorporating any additional clauses so that the new clauses do not conflict with existing provisions.
The suite of standard bunker clauses for use in time charter parties consists of:
The following explanatory notes provide some background to the thinking behind the Fuel Testing Programme clause.
There is no strict obligation on owners to participate in fuel testing programmes, although BIMCO believes it to be a good and prudent practice. However, if owners do participate in such programmes then they may wish to incorporate this Clause into their time charters.
The Clause has been kept deliberately brief to address simply the chief principle that if the owners have the fuel tested (at their expense) and it is found not to comply with the agreed specification then the charterers have the right to seek a “second opinion” from another testing laboratory, mutually agreed by the parties. If the second laboratory confirms the sample of fuel to be off-spec then the charterers are to pay for the analysis, otherwise the owners must foot the bill. It should be noted that the owners and charterers will have mutually accepted the choice of laboratory for the “second opinion” and it is therefore assumed that they will agree to be bound by its findings.
Originally published in BIMCO Special Circular No. 4, 4 November 2011 (Updated 25 June 2014) - BIMCO Suite of Bunker Clauses for Time Charter Parties
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