(a) For the purposes of this clause, ‘Conditions of Use’ (COU) shall mean any agreement, terms or document that the Owner, or the Master on behalf of the Owner, is required to sign or otherwise accept in order for the Vessel to call, access or otherwise make use of a port, berth, terminal and/or terminal facilities.
(b) The Owner shall comply with any COU.
(c) The Owner has the right to review, negotiate and, if an agreement can be reached, to amend any COU and to resist demands to agree to COU terms that according to the Owner:
(i) may prejudice the Owner’s right to limit liability for damage to the terminal, other property and/or loss of life and personal injury.
(ii) may expose the Vessel to unsafe terminal practices.
(iii) may impose extra contractual liabilities on the Owner for which the Owner would not otherwise be responsible.
(d) If the Master is required or compelled to sign or otherwise accept, on behalf of the Owner, a COU containing provisions referred to in sub-clause 3 above, he shall have the right to issue a Statement or Protest. Any Statement or Protest issued in accordance with this clause shall be copied to the Charterers immediately.
(e) (to apply to voyage charters)
All time lost as a result of a refusal by or on behalf of the Owner to agree or sign to any COU shall count as laytime or (if the Vessel already on demurrage) as time on demurrage. Any additional port costs arising from such delay shall be for Charterers’ account.
(to apply to time charters)
Delay as a result of a refusal by or on behalf of the Owner to agree or sign any COU shall not be considered as time lost for the purpose of any off-hire provision. Any additional port costs arising from such delay shall be for Charterers’ account.
(f) Notwithstanding any other provision of this Charterparty, all liability, delay, costs and expenses (including legal costs) arising out of or relating to the COU in excess of the limits of cover available from the Owner’s P&I Club or other insurer shall be for Charterers’ account. Charterers shall indemnify, defend and hold harmless the Owner against any loss and/or damage whatsoever (including consequential loss and/or damage) and all other claims of whatsoever nature, in excess of the limits of liability under the LLMC 1976 (and any amendment thereto), or any other limitation of liability regime whatsoever which might apply to the Owner, arising from the COU.
(g) If any term of the COU falls outside or prejudices the Owner’s standard P&I Club cover, the Owner shall be entitled to place such additional insurance cover as it requires, and any reasonable and documented additional premiums or costs of such cover shall be for Charterers’ account.
This clause is applicable to oil, gas, dry bulk and container trades.
There is an increasing trend by terminals around the world to impose onerous obligations on vessels using their facilities. This typically includes detention penalties for delay and “no fault” liability where owners are forced to surrender limitation rights even if the incident is the result of terminal employees’ or pilot negligence.
Owners’ refusal to agree such terms can result in a vessel being denied access to a berth. However, by accepting the conditions, owners might prejudice their P&I cover. Club advice to owners faced with this dilemma is to use “best endeavours” to try to secure better terms. In practice, the urgent need to berth, lack of time to engage in negotiations and terminals’ refusal to concede any points, mean that exchanges are often a formality without any realistic prospect of a successful outcome for owners.
This can lead to uncertainty with doubts about whether P&I cover will respond to an incident if owners have conceded any of their contractual or limitation rights. If cover is preserved, the cost of a claim under a voyage charter will be set against the owners’ P&I record. If, alternatively, owners purchase additional insurance outside their club cover, without clear charter party wording, the cost will be for owners’ account.
In order to address the practical issues and create contractual protection for owners, INTERTANKO has produced a “Terminals Conditions of Use Clause” for incorporation in voyage and time charter parties.
Far-reaching demands by terminals are not confined to oil trades. Similar issues arise in dry bulk shipping and the container trades and require the same response by owners to protect their interests. In order to avoid duplicating many of the points in a parallel provision, BIMCO has agreed with INTERTANKO that their clause will be made available for industry-wide use.
Sub-clause (a). Sets out in wide terms the different types of “Conditions of Use” (CoU) agreement within the scope of the clause;
Sub-clause (b). States owners’ obligation to comply with any CoU;
Sub-clause (c). Gives owners a “breathing space” to consider and try to negotiate, amend or resist unacceptable terms which might prejudice limitation rights, endanger the vessel or commit owners to additional liabilities;
Sub-clause (d). States that if forced to agree to unacceptable terms, the Master may issue a statement or letter of protest which is to be copied to charterers;
Sub-clause (e). Provides alternative arrangements whereby in the event of delay due to negotiations, time lost under a voyage charter will count as laytime or time on demurrage while under a time charter the vessel will not be considered off-hire. In either case, all resulting additional port costs will be for charterers’ account;
Sub-clause (f). Contains a wide-ranging indemnity by charterers in respect of all liabilities, costs and expenses beyond owners’ P&I cover and in excess of LLMC limitation rights; and
Sub-clause (g). Sets out owners’ express right to purchase additional insurance for any extra cover required with the premium payable by charterers.
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