The scheme of the clause works so that owners may refuse to call an Ebola-affected area
INTERTANKO was asked by a number of members to develop a standard Ebola charterparty clause, as the outbreak shows no signs of coming to an end.
There are a number of clauses in circulation, some of which have been poorly adapted from clauses designed to deal with other issues. INTERTANKO’s Documentary Committee has therefore developed bespoke clauses, which draw on members’ experiences thus far in dealing with the problems that Ebola presents.
The scheme of the clause works so that owners may first and foremost refuse to call an Ebola-affected area. For example, Clause 1 leaves the determination of the level of risk to the owners and Master, which is a common approach in other Ebola clauses.
INTERTANKO said that it considered this preferable to a reference to determination of risk by an outside body, eg the World Health Organisation (WHO), as they may not issue a clear cut decision on whether, or not there is a risk of exposure.
Members have been made aware of the possibility that sub-clause 1 may be interpreted as meaning that the right to refuse to proceed depends on a reasonable judgement that, if reasonable/normal precautions against Ebola are taken, there will still be an unacceptable level of risk
The clause then says that if the vessel does sail towards an Ebola-affected port, the Master can request fresh orders. If the vessel proceeds to the port, the cost of addressing the issues, which arise due to the Ebola risk, eg quarantine and any delay caused, will fall to the charterer.
For voyage charters, the clause addresses the situation where the charterers fail to provide alternative orders to give charterers the incentive to give the order. This is not necessary for the timecharter version where the vessel will simply remain on hire.
One issue that has troubled many members is that there may be consequences subsequent to the conclusion of the charterparty for a vessel that has called in an Ebola-affected port. As a result, a protection for the owner for a period of 30 days thereafter so that any delays or expense under a subsequent fixture will fall to the previous charterer, was built-in.
Similarly, there may be consequences between the owner and a bill of lading holder, eg if a vessel deviates from the original destination due to an Ebola outbreak. INTERTANKO said that it had therefore built in a provision requiring charterers to ensure the clause is incorporated into the bills of lading. This should entitle owners to an indemnity for any claims brought by bill of lading holders.
Finally, the clause has a voyage charter/timecharter option to ensure that the delay counts for laytime/demurrage purposes, or remains on hire.
INTERTANKO said that it will monitor developments and adapt the clause to any changes in circumstances. The clause is specific to Ebola – one of only three diseases declared by the WHO as being a Public Health Emergency of International Concern (PHEIC) – but it could be extended to other named diseases.
Source: INTERTANKO
