Revision of TOWCON
The Sub-committee held its third meeting on the revision of BIMCO’s International Ocean Towage Agreements TOWCON and TOWHIRE on 15 May at the offices of ITC (International Transport Contractors Management BV) in Heemstede, The Netherlands.
The main change agreed during this meeting was the re-structuring of the Cancellation and Withdrawal Clause. This has now been split into three clauses and the terminology has been slightly changed. Consequently, one clause now deals with the termination by the hirer against a termination fee, another clause deals with the termination and withdrawal by the tugowner and a third clause now provides for the cancelling of the contract by the hirer if the tug fails to arrive by the agreed cancelling date (which includes the interpellation provision allowing the parties to the agree on a new cancelling date where the tug is declared as running late).
Under the Necessary Deviation and Slow Steaming Clause a cross-reference was made to the clause covering Additional Charges and Extra Costs in order to clarify the calculation of the additional compensation from the hirer to the tugowner – primarily in respect of ports costs related to deviation.
The sub-committee also reviewed the Liability Clause of TOWCON which provides for the knock-for-knock allocation of liability between the parties. This is a clause which has been tried, tested and upheld by the courts and has thus stood the test of time. While it is undoubtedly a rather lengthy and sometimes repetitive clause which could probably be more elegantly worded without disturbing the basic principles, the sub-committee recognises the merit in maintaining the familiar wording. At its next meeting the sub-committee will review the knock for knock liability clauses found in SUPPLYTIME 2005 and HEAVYCON 2007 and consider whether it would be prudent to bring consistency to these offshore forms by having the same wording for the liability clauses or whether the status quo should be preserved with the existing clause.
Furthermore, the War and Other Difficulties Clause was replaced by the BIMCO VOYWAR Clause 2004, and the Law and Jurisdiction Clause by the BIMCO Dispute Resolution Clause (which contains a mediation provision). Finally, it was agreed to consider adding the BIMCO ISPS/MTSA Clause to cover security requirements, if applicable.
The revision will continue during the Summer with the next meeting taking place at the end of June. Once the revision of TOWCON is complete, work will begin on bringing TOWHIRE up to date to reflect the parallel changes between the forms. It is hoped to finalise the revision work in time to put the forms up for adoption at the DC-meeting in May 2009.
Contact: documentary@bimco.org