West P&I Club head of claims Americas Emily McCulloch reports that more and more shipowners have been forced to weigh the immediate needs of the crew against compliance with contracts of carriage which provide little flexibility for such unique circumstances – often resulting in legal challenges from unsympathetic charterers.
The International Group of P&I Clubs and BIMCO have produced a clause for timecharters that ensures charterers understand the responsibilities owed to crew by giving shipowners the right to deviate to land crew where crew changes are not possible in the ports contemplated for the voyage.
BIMCO commented, “If shipowners are unable to make crew changes at the ports where the ship visits, they should not be penalised if they must carry out the crew change elsewhere. The ability of a ship to continue operating safely depends on regular crew changes to avoid fatigue. In the exceptional circumstances created by the pandemic, agreement is needed that crew changes are a common benefit and that those hiring the ships should be willing to contribute to the process.”
The BIMCO Covid-19 Crew Change Clause for Time Charter Parties 2020:
(a) In addition to any other right to deviate under this contract, the Vessel shall have liberty to deviate for crew changes if Covid-19-related restrictions prevent crew changes from being conducted at the ports or places to which the Vessel has been ordered or within the scheduled period of call. Any deviation under this clause shall not be deemed to be an infringement or breach of this contract, and Owners shall not be liable for any loss or damage resulting therefrom.
(b) Owners shall exercise the right under subclause (a) above with due regard to Charterers’ interests and shall notify Charterers in writing as soon as reasonably possible of any intended deviation for crew changes purposes.
(c) Charterers shall procure that subclause (a) shall be incorporated into any and all sub-charter parties, bills of lading, waybills or other documents evidencing contracts of carriage issued pursuant to this Charter Party.
(d) During the period of such deviation the Vessel shall:
(i)* remain on hire, but at a reduced rate of hire of US$ ……….. per day. In the absence of an agreed amount, 50% of the hire rate shall apply. The cost of bunkers consumed shall be shared equally between Owners and Charterers.
(ii)* be off-hire and the cost of bunkers consumed shall be for the Owners’ account.
(e) While the Vessel is at the port of deviation all port charges, pilotage and other expenses arising out of such crew changes shall be for the Owners’ account.
*(d)(i) and (d)(ii) are alternatives. Delete whichever is not applicable. In the absence of deletions alternative (d)(i) shall apply.
As can be seen, the clause allows for the emergence of hub crew change ports and includes a provision to include the clause into any sub-charterparties and bills of lading. Ms McCulloch points out that members should contact their P&I Club in advance of undertaking deviation when the vessel is laden.