Author: nlnnpc-mashinaki

The International Group recently became a member of the Maritime Research Institute Netherlands (MARIN) Top Tier project. The project was set up to investigate and assess the causes of the loss of containers at sea on board container ships of various sizes, with a specific focus on ultra-large ships. The project is supported by partners from the shipping industry, academia and government.

MARIN will in due course prepare a report of its findings, including recommendations, which should ultimately lead to operational and technical improvements to mitigate the risk of losing containers at sea.

The International Group has meanwhile received an interim notice on parametric roles, which will be of immediate interest to shipowners, captains and crews of container ships. The notice is intended for use by seafarers and company operational personnel.

Click Here to access the MARIN notice

We wish to draw our members’ attention to a significant increase in administrative fines for oil pollution incidents which was recently announced by Turkish authorities.

In the event of pollution in Turkish waters a vessel is liable to receive an administrative fine as determined by Turkish Environmental Code no.2872. The amounts of the administrative fines are revised on annual basis and have now been increased for 2022 by 36.20% (compared to 2021).

The amount of the administrative fine will depend on the type of pollution and the gross tonnage (GT) of the Vessel. For a detailed overview of the amounts per pollution type we refer to the circular of Turkish P&I correspondents Atlas P&I, accessible through following link.

When pollution has been detected, the Vessel will likely be detained until the administrative fine is paid or security is provided. In some cases a Club LoU may be accepted otherwise a bank security may need to be posted. In the event of a repeat offence the fines are doubled and may be tripled if the new violation occur within three years of a previous fine.

A fine may be reduced if the Vessel took appropriate action to limit the impact and ensure that steps were taken to clean up. A reduction may also be applied if a fine is paid immediately.

Members must be aware that they are entitled to appeal against an administrative fine by applying to the Administrative Court within 30 days. Members should also take into consideration that payment of the fine is not necessarily to be considered as an admission of liability and it is usually possible to appeal the fine even after it has been paid.

For sake of good order this administrative fine is in addition to any liability for the direct costs of oil pollution including clean-up costs or possible criminal liability. Whether the fines are covered under the Owners P&I insurance will need to be assessed on the facts and circumstances of each individual incident.

We request our Members to report any incident giving rise to pollution to claims@nnpc.nl in which case we will assist in mitigating our Members’ exposure together with local correspondents.

 As part of the Netherlands COVID-19 Vaccination Program for seafarers the Arbo Unie will start providing booster vaccinations for seafarers on 11 January 2022.

This will take place in the Dutch seaport regions but are not yet available at Amsterdam Airport Schiphol. The booster vaccinations will be administered to seafarers who have already been previously vaccinated. The Dutch government has made 25,000 vaccines from Pfizer Biontech (mRNA type Comirnaty) available for this purpose.

For further we refer you to the KVNR website www.kvnr.nl/vaccines4seafarers.

In recent months we have seen a significant increase in the number of stowaways, especially on vessels enroute to the United Kingdom. We would like to inform our members of the risks and provide advice based on recent incidents.

The frequency with which stowaways attempt to reach the UK has increased significantly this year, especially from ports along the western European coast. At the same time, the UK immigration policy has become significantly more restrictive making it more difficult to disembark or repatriate stowaways in the United Kingdom.

Based on recent incidents it appears that in many cases the stowaways come on board in larger groups and in a manner which is both coordinated and well organized with UK bound vessels being specifically targeted. Given the fact that these vessels usually reach their destination within a day or two, stowaways are often not found until the vessel has arrived in the destination making a return to the original port impossible. In light of the more restrictive policies of the UK immigration authorities it is then often difficult to disembark stevedores which causes additional delays and costs for the shipowner.

We recommend that when sailing to the UK shipowners:

• Provide information and guidance to the crew well in advance on the risks and to make them aware of the measures that can be taken.
• Limit access to the vessel in port as much as possible, register visitors and shore personnel and check that all visitors have actually been disembarked before departure. Keep access points, storage and living areas locked whenever possible.
• Always have sufficient lighting on deck and possible access routes. The use of cameras is also recommended, taking into account privacy regulations which may apply.
• As far as possible, in particular in the case of potentially sensitive cargo such as containers, project cargo, nacelles and windmill blades, check that there are no stowaways hidden in the cargo, even if the cargo is sealed. We also advise contacting the charterer in advance about the measures they are taking themselves and to coordinate this as much as possible.
• Before departure, carry out the necessary searches of all rooms and areas where stowaways may have hidden and record the results in the logbook.

We would also recommend incorporating an appropriate clause, such as the “Bimco Stowaways Clause”, into all charter parties. This assigns the risks and responsibilities and risks and often allows owners to recover any delays or costs which may arise when stowaways are able to access the vessel through no fault of the vessel.

We also refer to our stowaway related publications, such as the “Stowaway Questionnaire” and First Response form. We recommend that Members always contact the Club as soon as possible if they discover stowaways.

With current COVID cases across Europe again on the rise, and with COVID cases on board continuing to present operational problems for shipowners, we would like to alert our Members to the fact that a number of countries offer vaccination programmes for seafarers regardless of nationality.

While we appreciate that in most cases Members will have their crewmembers already vaccinated, the availability of vaccins might be useful in particular where crew have to be replaced on short notice, with vaccination of replacement crew on site, or where unvaccinated crew have to be disembarked and/or repatriated, requiring local authorities’ permission for offboarding and/or onward travelling.

Members must be aware of the legal implications of vaccinating their crew. In this respect the International Chamber of Shipping has prepared a very useful guide titled: “COVID-19: Legal, Liability and Insurance Issues arising from Vaccination of Seafarers in consultation with various industry bodies including the International Group of P&I Clubs” which can be downloaded by following the link below:

https://www.ics-shipping.org/publication/coronavirus-covid-19-legal-liability-and-insurance-issues-arising-from-vaccination-of-seafarers/

Members who would like to make use of existing programmes, and require information on availability in a particular port of call, are invited to contact us at claims@nnpc.nl.

For many members, the market has been difficult over the past 10 years. We have seen that, as a result, Charterparty terms were increasingly fixed in favor of the charterers. This was also noticeable during the early stages of the COVID-19 pandemic. Fortunately, the market has picked up significantly in the recent months. There is currently a lot of demand for cargo capacity and freight and hire rates are increasing as a result. This positive development in the market gives the members of the NNPC a better position when negotiating new contracts.

When concluding new contracts parties will however often use old contracts which will often date from before the improvements in the market. It is important to remember that in addition to higher hire or freight rates one should also reconsider the other terms and conditions of the contract. Important matters such as who is responsible for the cargo operations, demurrage and the issuance of bills of lading are issued that have often been fixed in favor of the charterer in past years, but as a result of the improving market are once again open for negotiation. In addition, there are many “minor” items which should be considered, including but not limited to:

• Laytime and demurrage
• Stevedore damages
• Guarantees regarding cargo quantities and deadfreight
• Payment conditions and the right of lien
• Sanctions
• Applicable law and choice of forum
• Time-barsch

In the past we have designed two “cheatsheets” (“Check before Fixing” and “Fixing Voyage Charters) that can be used when concluding new charterparties to check the most important terms and conditions. One is specifically designed for voyage charters and the other for time-charters. Please feel free to contact us to obtain a copy or to obtain legal advice on specific terms of clauses.

[vc_row][vc_column][vc_column_text]The board has, pursuant to changes to the International Group Agreement and the reinsurance program, decided that in accordance with Article 14.2 of the Regulations the following amendments will be made to the Insured Risks, Class 1:

Amendment Rule 28: Fines

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Existing Rule

Class 1, Rule 28: Fines

• A.   Fines imposed on the member or upon any other person or party whom the member is legally liable to indemnify for:
  • 1.   Short or over-delivery of cargo;
  • 2.   Breach of any customs or immigration law or regulation;
  • 3.   An accidental escape or discharge of any substance, provided that the pollution and the event giving rise thereto are covered pursuant to the Rules of the Association.
  • 4.   Any other fine to the extent that:
    • a.   the Board of Directors is satisfied that the member took reasonable steps to avoid the events giving rise to the fine; and
    • b.   the Board of Directors decides that the member may recover, for which no reasons need be given.
• B.   Subject to the discretion of the Board pursuant to Rule 28 A.4, there shall be no recovery under this Rule in respect of fines or penalties arising out of:
  • 1.   Overloading of the insured vessel;
  • 2.   Illegal fishing;
  • 3.   Personal act or default on the part of the member;
  • 4.   Wilful misconduct on the part of any person unless the member is compelled by law to pay the fine.
  • 5.   An infringement of MARPOL regulations, including but not limited to cases where the insured vessel’s oily water separator or similar pollution prevention device has been bypassed or rendered inoperable;

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Amended Rule

Class 1, Rule 28: Fines 

• A. Fines imposed on the member or upon any other person or party whom the member is legally liable to indemnify for:
  • 1. Short or over-delivery of cargo;
  • 2. Breach of any customs or immigration law or regulation;
  • 3. An accidental escape or discharge of any substance, provided that the pollution and the event giving rise thereto are covered pursuant to the Rules of the Association.
  • 4. Any other fine to the extent that:
    • a. the Board of Directors is satisfied that the member took reasonable steps to avoid the events giving rise to the fine; and
    • b. the Board of Directors decides that the member may recover, for which no reasons need be given.
• B. Subject to the discretion of the Board pursuant to Rule 28 A.4, there shall be no recovery under this Rule in respect of fines or penalties arising out of:
  • 1. Overloading of the insured vessel;
  • 2. Illegal fishing;
  • 3. Personal act or default on the part of the member;
  • 4. Wilful misconduct on the part of any person unless the member is compelled by law to pay the fine.
  • 5. An infringement of MARPOL regulations, including but not limited to cases where the insured vessel’s oily water separator or similar pollution prevention device has been bypassed or rendered inoperable;
  • 6. Fines or penalties arising from the smuggling of goods or cargo or any attempt thereat.

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Amendment to Rule 54: Obligations of the member in respect of excluded risks

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Huidig Reglement

Class 1, Rule 54: Obligations of the member in respect of excluded risks

• 54.1   Where, notwithstanding the exclusions in Rules 33, 34 and/or 35, liabilities, costs and expenses of a Member are discharged by the Association pursuant to a demand made under:
  • 1.   guarantee or other undertaking given by the Association to the Federal Maritime Commission under Section 2 of US Public Law 89-777; or
  • 2.   a certificate issued by the Association in compliance with Article VII of the International Conventions on Civil Liability for Oil Pollution Damage 1969 and 1992 or any amendments thereof; or
  • 3.   an undertaking given by the Association to the International Oil Pollution Compensation Fund 1992 in connection with STOPIA; or
  • 4.   a certificate issued by the Association in compliance with Article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001; or
  • 5.   a certificate issued by the Association in compliance with Article 4bis of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea 2002; or
  • 6.   a certificate issued by the Association in compliance with Article 12 of the Nairobi International Convention on the Removal of Wrecks 2007; or
  • 7.   any other guarantee, certificate or undertaking issued or given by the Association pursuant to any statute, convention, treaty or law,

the member shall indemnify the Association to the extent that any payment under any such guarantee, undertaking or certificate in discharge of the said liabilities, costs and expenses is or would have been recoverable in whole or in part under a standard P&I war risks policy had the member complied with the terms and conditions thereof, whether or not the member as actually taken out P&I war risks cover.[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]

Amended Rule

Class 1, Rule 54: Obligations of the member in respect of excluded risks

• 54.1   Where, notwithstanding the exclusions in Rules 33, 34 and/or 35, liabilities, costs and expenses of a Member are discharged by the Association pursuant to a demand made under:
  • 1.   guarantee or other undertaking given by the Association to the Federal Maritime Commission under Section 2 of US Public Law 89-777; or
  • 2.   a certificate issued by the Association in compliance with Article VII of the International Conventions on Civil Liability for Oil Pollution Damage 1969 and 1992 or any amendments thereof; or
  • 3.   an undertaking given by the Association to the International Oil Pollution Compensation Fund 1992 in connection with STOPIA; or
  • 4.   a certificate issued by the Association in compliance with Article 7 of the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001; or
  • 5.   a certificate issued by the Association in compliance with Article 4bis of the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea 2002; or
  • 6.   a certificate issued by the Association in compliance with Article 12 of the Nairobi International Convention on the Removal of Wrecks 2007; or
  • 7.   any other guarantee, certificate or undertaking issued or given by the Association pursuant to any statute, convention, treaty or law,

the member shall indemnify the Association to the extent that any payment under any such guarantee, undertaking or certificate in discharge of the said liabilities, costs and expenses is or would have been recoverable in whole or in part under a standard P&I war risks policy had the member entered into such policy and complied with the terms and conditions thereof, whether or not the member as actually taken out P&I war risks cover.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]These amendments will come into immediate effect and shall be put to the members at the next General Meeting for definitive approval.[/vc_column_text][/vc_column][/vc_row]

When taking delivery of a newbuild vessel, you are likely to assume that it complies with the specifications of the newbuilding contract. Nevertheless, we are regularly involved in disputes between the buyer and the contractor about the technical condition of the vessel after the buyer has taken delivery. There are a number of steps you can take to avoid such problems which we set out in more detail below.

A newbuild contract under Dutch law legally is considered to be an agreement for the acceptance of work. This is relevant because it means that the legal rules that apply to such contracts also apply to a newbuild contract, unless the parties have agreed differently.

Under the law, the buyer must inspect the vessel within a reasonable time after the contractor has indicated that the vessel is ready for delivery. Often general conditions are declared applicable to a newbuild contracts and these usually contain additional rules regarding the delivery of the vessel. For example, the VNSI conditions stipulate that once the ship leaves the yard, the ship is considered to have been delivered. They also state that any defects must be reported immediately upon delivery and confirmed in writing within 48 hours.

In order to safeguard your rights there are a number of measures you can take when concluding the contract and subsequently upon delivery to limit your risks. In this context, drawing on recent cases we have dealt with, we recommend that buyers:

• Properly review the terms and conditions and any general conditions when entering into a newbuild contract to ensure that they are acceptable to you and to get a good idea of the contractor’s rights and obligations when it comes to the condition in which the vessel must be delivered and your right to check their fulfilment of the contract;
• Ensure that the inspection and delivery of the vessel is carried out in accordance with the newbuild contract and record the condition of the vessel in a delivery report;
• To conduct a joint trial and thorough inspection with the builder prior to delivery;
• Appoint an independent expert to conduct the inspection on your behalf recording any defects submitting these to contractor. Arrangements should be made for the rectification of any defects; and
• Verify that the vessel is delivered with all necessary certificates and documents required by law or otherwise necessary for the operation of the vessel.

By taking these steps, you can avoid common pitfalls and reduce the risk of litigation. If you have any questions about the legal options when drafting an agreement or at the time of delivery, please feel free to contact us.