United Nations World Food Programme Voyage Charter Party Code Name: "WORLDFOOD 99"
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(Printed in Bimco Bulletin No. 5, 1999)
The original WORLDFOOD Voyage Charter Party was BIMCO's first jointly-developed document with a United Nations agency and is considered a milestone in the history of the organisation's documentary work. The WORLDFOOD Voyage Charter Party has served the World Food Programme (WFP) of the United Nations for over thirteen years and has become the primary transportation document used by the Agency for the shipment of many millions of tonnes of valuable aid cargoes.
In 1997, the WFP approached BIMCO to request the organisation's assistance with the revision of WORLDFOOD in line with recent changes in commercial practice and developments in maritime law.
During the revision BIMCO enjoyed the same excellent spirit of co-operation with the WFP that marked the development of the original document. Despite WORLDFOOD being a document that is rarely a subject of disputes, a number of areas were identified that would benefit from greater clarity of wording or from modernisation. The revised document incorporates a large number of BIMCO standard clauses which greatly improve the Charter Party. The accompanying Non-Negotiable Cargo Receipt WORLDFOODRECEIPT 99 has also been updated to reflect the amendments to WORLDFOOD, such as the addition of BIMCO's Standard General Clause Paramount. The BIMCO Sub-committee involved in the revision of WORLDFOOD was drawn from experts representing owners, brokers and insurance interests, familiar with the WFP documents.
The revised WORLDFOOD Voyage Charter Party, code named WORLDFOOD 99, consists of three parts: Part I (Box Layout); Schedule A (Vessel Description); and Part II (Main Clauses). The standard clauses found in Part II should, preferably, be left unamended as they are the result of carefully balancing the interests of the Owners and the Charterers.
Any amendments to these clauses are likely to distort the overall balance of the Charter Party.
The revised WORLDFOOD Charter Party incorporates a simplified Part I Box Layout where the variable information should be entered. The Vessel Description, previously found in Boxes 5 to 22 of WORLDFOOD has been consolidated into Box 9 with reference made to a new Schedule A to the Charter Party.
It should be noted that "Schedule A" in its entirety does not form part of the terms and conditions of the Charter Party and that the WORLDFOOD 99 Charter Party is performed subject to the conditions found in Part I and Part II only. However, the description of the Vessel is expressly incorporated by way of Box 9 and Clause 1
Schedule A requires that the registered owners of the vessel be identified if they are an entity other than the party entering into the agreement. The WFP recognises that under certain circumstances where, for example, the registered owner is a bank or financial institution with no operational interest in the vessel, this information may be of little value. However, it is the WFP's policy to at least attempt to determine the identity of the head owner of the vessel as a means of quality control in their chartering procedure.
Clause 1 - Vessel
This clause provides a comprehensive "quality shipping" clause with wording consistent with similar clauses currently being used by many charterers. The provisions of Clause 1 cover the Owners' requirement to comply with all relevant international safety regulations necessary for the unhindered performance of the voyage as well as matters relating to insurance and class.
The most important change to Clause 1 from the original WORLDFOOD is that the reference to the responsibilities and immunities of the Hague/Hague-Visby Rules has now been removed. The WORLDFOOD 99 Charter Party is governed by a General Clause Paramount (which is discussed under Clause 28 of these Notes).
Other than the above, the only amendment of note to this clause is that reference is made to the vessel's insurance and class details as contained in Schedule A.
Clause 2 - Voyage
This clause remains unchanged from the original WORLDFOOD. If the Charterers have been given the right to order the Vessel to load and/or discharge at one or more ports out of several named ports or within a specific range, the Charterers shall declare the actual port or ports within a certain number of days, as may be agreed in each individual case.
For this reason, it is important to ensure that the actual number of days within which the Charterers are to declare the port or ports are stated in Boxes 6 and/or 7, as appropriate.
Clause 3 - Cargo
The WORLDFOOD 99 Charter Party is based upon the presumption that the agreement is for a full and complete cargo, unless otherwise agreed. Details of the cargo should be inserted in Box 8.
However, if part cargo is agreed, attention is drawn to the provisions found in sub-clause 3(c) referring to the nature of any additional cargo carried by the Vessel. It should also be noted that Box 8 in Part I should clearly indicate "Part Cargo" under such circumstances.
Clause 4 - Laydays Date and Present Position
This clause is unchanged from the original Charter and is self-explanatory.
Clause 5 - Cancelling
Sub-clause 5(a) contains the usual provisions according to which the Charterers have the option of cancelling the Charter Party if the Vessel has not tendered notice of readiness on or before 17.00 hours on the cancelling date. The wording of the "interpellation" provisions of sub-clause 5(b) has been slightly amended to require the Owners, in the event of an anticipated delay, to advise the Charterers of the actual date of sailing or expected date of sailing from the Vessel's last discharge port and her expected new arrival date at the first load port.
If the Charterers elect to cancel the agreement, then the Owners may save considerable costs in not bringing the Vessel to the loading port and may be able to fix the Vessel on another charter. However, to ensure that the right to interpellate does not induce some Owners to take advantage of a more lucrative fixture, rather than doing their utmost to reach the loading port within the laycan, the interpellation provision applies only once. As per sub-clause 5(c), in the event of the Vessel being further delayed, the Charterers are entitled to cancel the agreement in accordance with the provisions of sub-clause 5(a).
Clause 6 - Advance Notices (Loading)
Clause 7 - Advance Notices (Discharging)
It is of great importance to Charterers that the advance notice requirements for both loading and discharging ports, as well as the notification requirements during the Vessel's voyage, as specified in Clauses 6 and 7, be strictly adhered to. Clauses 6 and 7 are largely unchanged from those found in the original form, with the exception that it was felt to be more practical for the Owners to send, or to arrange to be sent, the initial notices. This provision should serve to reduce the potential for a conflict between notices sent by the Owners and those sent by the Master.
It should also be noted that sub-clauses 6(a) and 7(a) now contain a penalty provision that should the Owners fail to give 24 hours notice of the Vessel's arrival at the first load port, laytime will not commence until 48 hours after the Vessel's arrival.
Clause 8 - Notice of Readiness (Loading and Discharging)
This clause is unchanged from the original form (except for the removal of the term "Shippers" in 8(b)) and contains clear provisions in regard to tendering of notice of readiness for both loading and discharging and the provisions in sub-clause (b) regarding the condition of the Vessel's cargo holds before tendering of notice of readiness should be duly observed. Sub-clause (c) gives suitable "waiting for berth" provisions (Lines 133 to 137) and also contains provisions to cover the situation if a delay in proceeding to the berth, due to the Vessel's inefficiency, weather, etc., should occur (Lines 138 to 142).
Clause 9 - Time Counting (Loading & Discharging)
Clause 9 represents a comprehensive set of provisions relating to time counting which have been carefully worded to assist in eliminating, or at least minimising, the potential for disputes in respect of laytime calculations. The breakdown of the clause into separate sub-clauses should assist in easily identifying individual problems.
Attention is drawn to the amendment made to sub-clause 9(e) which now provides that the Charterers should appoint and pay for an independent surveyor to inspect the Vessel's holds as soon as possible after arrival. In practical terms the provisions of this sub-clause with respect to time counting have not changed - only actual time lost between the Vessel being found not to be ready to load/discharge until the Vessel is again ready to load/discharge is not to count as laytime (or demurrage if the Vessel is already on demurrage). The provisions relating to the appointment of a surveyor have been agreed as a protective measure for the Charterers to minimise the risk of a Vessel arriving at the berth and it then transpiring that she is not clean, despite the Master having tendered NOR at an earlier date.
Sub-clause 9(h) has been restructured and reworded to clarify excepted periods in Islamic and non-Islamic countries.
Clause 10 - Loading and Discharging
Clause 10 remains unchanged from the original form. Loading, spout-trimming or stowing and discharging shall be arranged by the Charterers at their expense. Sub-clause 10(a) is divided into two parts, dealing with "Bulk Cargo" (Lines 196 to 200) and "Other than Bulk Cargo" (Lines 201 to 205).
Special attention is drawn to the provisions in sub-clause 10(d) "Cargo Handling". As the majority of cargoes carried for the WFP are grain products for human consumption, careful supervision of the cargo during loading and discharging operations is required. Owners are recommended to instruct the Master to strictly comply with the provisions of sub-clause 10 (d) to ensure proper cargo handling in order to avoid claims for damage to cargo and also in order not to prejudice the Owners' rights under Clause 18 (Stevedore Damage). It should be noted, however, that although the cargo is loaded, stowed and discharged under the Master's supervision, the actual responsibility for such cargo operations remains firmly with the Charterers.
Clause 11 - Demurrage/Despatch Money
A new sub-clause 11(d) has been added containing a provision designed to reduce the risk of disputes in respect of laytime counting if the Vessel is loading or discharging at two or more ports. Experience has shown that, in the absence of such clear provisions of this nature, disputes frequently arise. Sub-clause 11(d) is derived from the provisions of sub-clause 9(i) found in the original WORLDFOOD.
Clause 12 - Shifting and Warping
This clause is divided into three sub-sections, i.e., Shifting, Warping and Seaworthy Trim and gives clear rules in respect of these matters. The latter provision relating to Seaworthy Trim has be amended to clarify that the provision applies between loading berths/ports and between discharging berths/ports and that any associated expenses are for the Charterers' account. It is also made clear that any time used is to count as laytime.
Clause 13 - Dunnage/Separation
Clause 13 (Dunnage and Cargo Battens) and Clause 14 (Separation) of the original form have been combined into a new Clause 13 (Dunnage/ Separation).
Under the amended provisions all reference to cargo battens has been removed.
The provisions of the Charter Party now permit only natural separation of the cargo should parcels of different qualities or for different receivers be shipped.
Clause 14 - Opening and Closing of Hatches
This clause is unchanged from the original form. It should be noted that the clause provides that if the crew is not permitted by local authorities or local union regulations to open/close hatches, then shore labour (stevedores) shall be provided and paid for by Charterers.
Clause 15 - Vessel's Cargo Gear
Sub-clause 15(c) has been amended to make it clear that cranemen/winchmen, whether crew or shore-based personnel, act at the risk and responsibility of the Charterers, despite being under the supervision of the Master.
Clause 16 - Light
This clause is self-explanatory and is unchanged from WORLD-FOOD.
Clause 17 - Loading/Stowing/Trimming and Discharging
This clause combines the former WORLD-FOOD clauses 18 (Grab Discharge) and 19 (Bulk Carrier and Wing Spaces, Securing, etc.). The clause is divided into two distinct provisions relating to "bulk cargo" (sub-clauses 17(a) and 17(b)) and "bagged, cartoned and palletised cargo" (sub-clause 17(c)). The latter provisions relating to non-bulk cargo are new to the Charter Party and users should note that, while all eventualities cannot be catered for, any spaces used to stow such cargo must be accessible to "customary" loading and discharging equipment.
Clause 18 - Stevedore Damage
The Stevedore Damage provisions of WORLDFOOD have been amended to incorporate the comprehensive standard wording for voyage charter parties used in a number of BIMCO forms, such as GENCON, 1994 edition.
WORLDFOOD 99 now firmly establishes the principle of the stevedores being the servants of the Charterers.
It should be noted that the Stevedore Damage provisions of WORLDFOOD 99 require the Owners to notify the Charterers of any damage latest on sailing from the final discharge port, failing which the Charterers' responsibility ceases.
Recognising the often limited repair facilities available at some of the ports used by WFP, Clause 19 contains a mechanism whereby the parties can mutually agree on an alternative place for repairs on completion of the voyage.
Clause 19 - Overtime
Sub-clause (b) of the Overtime provisions has been amended to provide that when the Charterers have ordered overtime during excepted periods, half the actual time used shall count as laytime. Previously, time did not count during such occasions.
Clause 20 - Cargo Receipt
Formerly Clause 30 of WORLDFOOD, the wording of this provision remains unchanged. As a consequence of WPF's unusual position as Charterers responsible for the transportation of predominantly donated aid cargoes, it is very seldom that a bill of lading is required, simply because no on-sale of cargo during transit is contemplated. Because of this it has been found that a simple non-negotiable cargo receipt meets WFP's requirements in the majority of cases. As a result, the WORLDFOODRECEIPT 99 Non-Negotiable Cargo Receipt was developed for use in connection with shipments under the WORLDFOOD Charter and appears, in an amended form, as "World-foodreceipt 99" (to be used in conjunction with WORLDFOOD 99).
Clause 21 - Tally
It should be noted that the joint tally to be conducted in accordance with this clause, which is binding on both parties, is conditional upon such tally being kept during the loading and discharging of the Vessel.
The special provisions formerly included in sub-clause (d) to cover the situation when a vessel is loading at Canadian and/or relevant ports in the USA have now been amended to require the Owners and the Charterers to accept standard loading terminal procedures for weighing, control/checking and tally of cargo at all loading ports.
Clause 22 - Freight Payment
As a United Nations agency, WFP requires special freight payment procedures. Owners are strongly recommended to adhere strictly to the provisions contained in Clause 22 to ensure a smooth settlement of freight, particularly as far as settlement of balance of freight is concerned.
As follows from sub-clause 22(b), 90 per cent. of the freight is due and Payable by the Charterers within 5 working days after release of signed Cargo Receipt.
Payment of demurrage now becomes due, at the Owners request, 14 days after the Vessel has gone on demurrage (Sub-clause 22(c)). This contrasts with the 28 days wait after going on demurrage under the original WORLDFOOD form.
Special attention is called to the provisions in sub-clause 22(e) from which it follows that deductions under this provision are conditional upon claims against the Owners for loss of or damage to the cargo being duly particularized and only insofar as the Owners' P&I Club shall have failed to provide a Letter of Undertaking. Consequently, if the claim is duly particularized and a Club Letter of Undertaking is given, the Charterers cannot make deductions from the balance freight for cargo claims.
Clause 23 - Dues, Taxes and Charges
This clause provides a clear delineation of responsibilities for dues, taxes and charges between the parties.
The special provisions relating to PDR Yemen, Somalia and Ethiopia found in the original form have now been removed as inapplicable.
Clause 24 - Extra Insurance
The clause gives the parties the possibility of agreeing a specific maximum amount but failing such agreement the extra insurance, if any, is limited to the lowest extra premium which would be charged on the London insurance market. This provision is unchanged from the original WORLDFOOD.
Clause 25 - Lien
This clause is unchanged and is self-explanatory.
Clause 26 - Liberty
The Liberty Clause is of the normal pattern and should be construed in a restricted manner. The exercise of liberty must be limited to deviation for reasonable purposes.
Clause 27- United Nations Emergency Clause
This clause is required by WFP because of their unique role as Charterers responsible for the transportation and allocation of food aid cargoes to countries where disaster strikes and gives the Charterers the right to change the vessel's destination in case of an emergency situation.
Suitable provisions are included which allow for adjustment of the freight rate in consequence of such a change of destination.
Clause 28 - General Clause Paramount
Previously referred to as the "Exception Clause", the new General Clause Paramount takes its wording from BIMCO's Standard General Clause Paramount (see BIMCO Bulletin 6/97).
The clause takes into account that the Hague-Visby Rules shall, in most circumstances, be the recognised liability regime covering the particular contract of carriage.
Clause 29 - P&I Charter Party Pollution Clause
WORLDFOOD 99 incorporates the latest standard P&I Charter Party Pollution Clause wording.
Clause 30 - ISM Clause
This is BIMCO's widely used Standard ISM Clause for Voyage and Time Charter Parties. The ISM Clause contains the following key elements:
- Reference to compliance with the Code by the Vessel and shore management throughout the currency of the Charter Party.
- A requirement for Owners to provide Charterers with copies of the relevant DOC and SMC, upon request.
- Primacy to be given to the liability provisions of the Charter Party over those provided in the ISM Clause in order to maintain the balance of the Charter Party.
- A remedy for loss, damage, expense or delay caused by failure of "the Company" to comply with the Code where there is a causative connection between failure of "the Company" to comply with the ISM Code and the loss or damage caused. For more background information on this clause please see BIMCO Bulletin 1/98).
Clause 31 - Both to Blame Collision Clause
Clause 32 - General Average and New Jason Clause
These are both standard clauses and are unchanged from the original form other than the deletion of the preamble to the Both to Blame Collision Clause (to make it consistent with the wording used in other BIMCO forms) and the reference to the York-Antwerp Rules updated to the1994 version.
Clause 33 - Strike
The revised WORLDFOOD now contains BIMCO's comprehensive General Standard Strike Clause as used in GENCON, 1994 edition.
Clause 34 - Ice
This is a standard clause also found in other modern charter parties and covers, in detail, the various problems which may be encountered when ice risks occur.
Clause 35 - War Risks
The multitude of different war situations with which the world has been confronted during recent years has shown that some war clauses, notably those found in older charter parties have serious short-comings and do not explicitly cover all the various situations which may arise nowadays as a result of war or warlike operations. The lack of a proper war clause may, therefore, have serious consequences for both parties in case of sudden outbreak of war or when warlike situations may arise.
The WORLDFOOD 99 Charter Party includes an up-to-date and comprehensive war clause, namely BIMCO's Standard War Risks Clause for Voyage Chartering - VOYWAR1993. This clause is found in a number of modern charter parties published by BIMC0 during recent years and has time and again stood the test whenever a war situation has arisen, making it necessary to take a quick decision.
Clause 36 - War Risk Premium
This clause is new to the Charter Party and has been introduced by WFP. The clause is self-explanatory.
Clause 37 - Agency
The Agency provisions of WORLDFOOD have been amended to provide that the Owners, in most circumstances, are to appoint the Charterers' nominated agent or agents in ports of loading and discharging.
Clause 38 - Brokerage
This clause follows the usual pattern and the provisions included in the second paragraph cover the Brokers in the event of non-execution of the charter. It should be noted that brokerage commission is now also charged on demurrage, in addition to freight and dead-freight.
Clause 39 - Force Majeure
This is a new provision to the Charter Party introduced by WFP. The clause is self-explanatory and the wording follows the familiar pattern of this type of clause.
Clause 40 - Carriage of Unlawful Substances or Merchandise
Another new provision to the WORLDFOOD Charter Party, the Carriage of Unlawful Substances or Merchandise Clause, incorporates standard drugs and alcohol provisions that have been adopted in other modern BIMCO charter parties.The smuggling of narcotic drugs and other illegal substances is a problem that continues to plague the shipping industry.
The wording of the clause is largely based on the BIMCO US Anti-Drug Abuse Act, 1986 Clause for Time Charters but has been amended for WORLDFOOD 99 to reflect the fact that under a voyage charter it is solely the Owners who remain responsible for the vessel's trading pattern and can take an active role in minimising the risk of unman-ifested narcotic drugs finding their way on board. Particular attention is drawn to the important provisions of sub-clause 40(d) which entitle the Charterers to cancel the Charter Party if the Vessel is detained for more than seventy-two running hours as a result of illegal narcotic substances or unlawful merchandise being found on board prior to loading.
Clause 41 - Title to Cargo Clause
This clause remains unchanged from the original form. The Title to Cargo Clause is unique to the WORLDFOOD Charter Party and its revision and is required by WFP because of their unusual position as Charterers responsible for the transportation of predominantly donated aid cargoes.
In such capacity, WFP would have no title to cargo since they are not the Owners of the cargo which has been given to them by someone and which they, in turn, pass over to someone else.
In the absence of a Title to Cargo Clause, they would have no legal right to claim and receive damages for any damage to or loss of cargo and, there again, without the use of the phrase "substantial and not merely nominal damages" (Lines 767-768), the only damages which WFP would be able to prove would be "nominal damages".
Clause 42 - Fumigation
This new clause gives the Charterers the right to fumigate the cargo on board, but at their own time, risk and expense.
Where local regulations require the crew to be removed from the Vessel during fumigation, the Charterers must meet the cost of their accommodation ashore.
Clause 43 - Law and Arbitration
The clause incorporates the most recently revised BIMCO Standard Law and Arbitration Clause.
The revised English law/London arbitration clause was developed in close consultation with the London Maritime Arbitrators Association (LMAA) and takes into account the English Arbitration Act 1996 and the LMAA terms currently in force.
For more detailed comments on the new BIMCO Law and Arbitration Clause, please refer to BIMCO Bulletin 4/98.
Copyright in WORLDFOOD 99 is held by the World Food Programme, Rome.