Newly published clause tackles issues of hull fouling

Time:2013-06-25 Browse:52 Author:RISINGSUN
With ships spending an increasing amount of time lying idle in ports and at anchor, the consequences of hull fouling on the performance of the vessel and the responsibility for cleaning under a time charter party has become a contentious issue. At common law and under most standard forms of time charter party an owner is responsible for maintaining the vessel in a thoroughly efficient state throughout the charter period. This includes a requirement to keep the vessel`s hull and other underwater parts free from fouling.


If the owners fail to maintain the vessel and, as a result, the vessel`s performance is affected, they may be exposed to claims by the charterers for underperformance. While this position is acceptable under normal trading conditions, many owners feel that they should not bear the burden of hull cleaning if their vessel has become fouled as a result of lying idle for an extended period on the orders of a time charterer.


BIMCO has tackled this issue with a new Hull Fouling Clause which comprehensively sets out the physical circumstances and the point in time when the responsibility for hull fouling passes from the owners to the charterers. The clause distinguishes between idling in Tropical Zone waters, where the rate of growth is generally highest, and idling outside this zone. The parties are free to agree the number of days idling to apply in each area before the clause takes effect. If they cannot agree then 15 days applies by default.


Once the agreed number of days has lapsed, the vessel`s performance warranties are suspended until such time as the hull can be inspected and, if necessary, cleaned. It may well be that inspection and cleaning is not possible or permitted at the vessel`s current port of call - and the clause deals with this situation. If the hull is fouled then it is to be cleaned by the charterers at their cost and in their time - but in accordance with the paint manufacturers` recommendations and under the supervision of the Master. This recognises that hull coatings are very expensive, easily damaged and become less effective the more often they are cleaned.


If it is not possible to carry out inspection and cleaning at the vessel`s current port of call the warranties will remain suspended until cleaning has been completed.
In the event that the owners should refuse to give their permission for cleaning to be carried out then the speed and consumption warranties will be reinstated from the time of the owners` refusal.


If it is not possible to get the hull cleaned before redelivery of the clause provides for the owners to be compensated for the costs they will incur when eventually cleaning the hull.


Finally, the charterers may avoid responsibility for hull cleaning if they can show that the vessel is performing in accordance with charter party speed and consumption warranties.


The Clause, along with a short explanatory note, has now been issued through Special Circular No. 3 of 24 June 2013 and is available to download free of charge from the BIMCO website.