Namely, Joanna Meadows, Vice President, Claims, Solicitor at Skuld Club, notes that operators many times have a little time for making a claim, in case the bunkers are not of the agreed quantity or quality.
But many times, when the purchaser finds out, it is too late to bring a claim. Specifically, often the terms and conditions state that the sample produced by the bunker supplier is the binding sample as between the bunker supplier and the purchaser of the bunkers. This is different to the position that was adopted between the owners and charterers under a charterparty. There it is generally accepted that a sample of fuel taken by a continuous drip sample taken at the ship's bunker manifold, according to the guidelines under MARPOL ANNEX VI is the representative fuel sample.
The purchaser of the bunkers may discover that he/she is not in a back to back position and must test different samples for different contracts.
In order to mitigate some of these issues, BIMCO established a Committee to produce fair and harmonised standard terms and conditions. The Committee included owners, charterers, bunker suppliers including World Fuels, Peninsular and Dan Bunkering, and a representative of the IBIA. These members made the terms and conditions widely accepted by the bunker industry.
However, since the BIMCO Bunker Terms came about, Skuld informs that there were incidents where bunker terms appear to be the BIMCO bunker terms, but the supplier has taken the BIMCO Bunker Terms as their base terms, left in the clauses which favour them, and removed the clauses which favour the bunker purchaser. As a result, they removed the fair balance which the BIMCO terms, when used as a whole, achieve.
Under this aspect, Ms. Meadows examines few key term pf BIMCO's Standard Bunker Terms.
The main reason for the bunker industry approving the BIMCO Bunker Terms, was the inclusion of Clause 15 (b) which states that:
Notwithstanding any other provision... the liability of either Party...shall... not exceed the invoice value of the Marine Fuels or USD 500,000, whichever is the higher figure...
Thus, the liability of the bunker supplier is capped. The buyer will not be liable to the bunker purchaser for anything more than either the value of the bunkers, or USD 500,000, whichever is higher amount.
The trade off for the bunker supplier being allowed to cap his/her liability is Clause 9. This clause enables the purchaser of the bunkers to have much longer periods to give notice that he has a claim regarding the fuel.
It also states that in relation to a quantity dispute, a claim must be presented within 14 days. Regarding quality dispute, clause 9(b)(i) states that:
If the Buyers do not notify the Sellers of any such claim within thirty (30) days of the date of delivery
As a result, the purchaser of the fuel has 30 days to give notice of a claim, a much longer time limit than is found in many terms and conditions.
Another beneficial clause to the bunker purchaser is Clause 4, which states that:
During bunkering a primary sample shall be drawn at a point... closest to the Vessel's bunker manifold and otherwise in accordance with the procedures set out in IMO Resolution MEPC.182(59) Guidelines for the Sampling of Fuel Oil for Determination of Compliance with MARPOL 73/78 Annex VI
A sample taken at the ship's manifold will be the representative sample as between the purchaser and the seller of the bunkers. This means that the buyer of the fuel no longer will find himself out of a back to back position regarding what is the representative sample.