BIMCO updates Hull Fouling Clause
Hull fouling disputes are common place. In 2013 Bimco first developed a clause to transfer responsibility for cleaning onto a charterer in certain situations. It has now published an updated version.
The 2019 Clause has been revised to address feedback on use of the clause and set out more clearly the circumstances where the responsibility for hull cleaning passes from owners to charterers.
The most significant are to subclause (a) and (d).
(a) If, in accordance with Charterers’ orders, the Vessel remains at or shifts within or between waiting areas, ports, places, anchorages and/or berths, and does not in the interim undertake a sea passage with speed and duration sufficient to remove the marine growth from the Vessel’s underwater parts resulting from the Vessel’s waiting there, for an aggregated period exceeding:
(i) a period as the parties may agree in writing in a Tropical Zone or Seasonal Tropical Zone*; or
(ii) a period as the parties may agree in writing outside such Zones*
any warranties concerning speed and consumption shall be suspended pending inspection of the Vessel’s underwater parts including, but not limited to, the hull, sea chests, rudder and propeller.
*If no such periods are agreed the default periods shall be 15 days.
Subclause (a) has been amended with the addition of words to clarify that the ship could also remain at any place, including “waiting areas,” outside port limits. Further, the revised wording excludes any shifting of the vessel during the waiting period that is not of sufficient speed and duration to impact on fouling that may have developed.
The amendments to subclause (a) are to deal with two issues that often arise:
- in the circumstance where vessel is instructed to drift at waiting areas outside port limits, but not within a port or alongside a berth; and
- whether shifting with slow speed within port or neighboring ports can reset the clock.
It has been common for charterers to argue that a vessel waiting outside of the port limit, does not fall within the extent of BIMCO Hull Fouling clause 2013. The new version precludes such argument and makes it clear that BIMCO Hull Fouling clause 2019 also applies to the circumstance where the vessel is drifting at waiting areas outside port limits.
Further, the amended wording also precludes charterers’ attempts to stop the clock counting by ordering an anchored vessel to steam for couple of hours around the port at a reduced speed.
However, the amended wordings are still open to debate. What is a sea passage of sufficient duration and speed?
As per “The Pamphilos” (2002),
“Self polishing anti fouling paints…operated to protect the hull by reason of the fact that the marine organisms which attached to the paint during the first 12 days of static conditions and which are killed by its biocide qualities remained attached to the paint until the vessel begins to move, whereupon they are polished off by the movement through the water…”
Although fouling can be polished off by the movement through the water, it is not possible to have a “one size fits all” answer as to what is sufficient speed and duration to remove fouling. It will be necessary to consider the condition and age of the vessel’s marine coating and degree of fouling.
Disputes may also arise if the vessel is calling at two close by ports. For example, assume the default period of 15 days applies. If a vessel is at port A for 10 days and then sails to neighbouring port B where it stays another 10 days, there would be argument whether the BIMCO Hull Fouling Clause 2019 is triggered. It is arguable whether the short sea passage from Port A to Port B will be considered of sufficient speed and duration to stop the clock.
(d) Inspection and/or cleaning in accordance with this clause shall always be carried out prior to redelivery. If, nevertheless, Charterers are prevented from inspecting and/or cleaning, the parties shall, prior to but latest on redelivery, agree a lump sum payment in full and final settlement in lieu of inspecting and/or cleaning.
Subclause (b) and (c) remain unchanged, an underwater inspection can be required by either party and arranged jointly. After inspection, if either party requires underwater cleaning, this must be done by charterers at their risk, cost and time in consultation with owners, under the master’s supervision and in accordance with the hull paint manufacturers’ guidelines.
Subclause (d) has been amended to refer to “inspecting and cleaning” instead of just “cleaning” as both are part of the process. The inspection and/or cleaning must take place before redelivery. If, however, charterers are prevented from doing so, the parties will agree a lump sum in respect of the cost to owners of doing so.
If the parties fail to reach an agreement on inspection, does that affect owners’ rights to bring a claim in damages against charterers?
In a London Arbitration decision, (London Arbitration 15/19), the Tribunal held, in circumstances where the parties acknowledged that conditions did not permit an inspection to take place, arranging a diver’s inspection at Hazira prior to redelivery was not a strict pre-condition to Owners’ recovery from the Charterers.
The BIMCO Hull Fouling clause 2019 is a far less balanced clause for charterers. Although the amendments may seem minor, they significantly extend the scope were the clause will be triggered.
Assureds should be wary if fixing a Charterparty with neighbouring loading/discharge ports, as there are risks that if the neighbouring ports are close enough, then the short sea passage may not be able to “stop the clock counting” on the number of agreed idling days.
Our Assureds are advised to adopt the BIMCO hull fouling clause 2013 with suitable amendments in accordance with Club’s Circular dated 25 September 2013 Bimco Hull Fouling Clause 2013.
If the revised BIMCO Hull Fouling Clause 2019 has to be agreed to, we strongly suggest that Charterers seek to agree to an aggregated idling period that is as long as possible.