Note: This wording to be added to the existing berthing provisions in charter parties
Always subject to the Owners’ approval, which is not to be unreasonably withheld, the Vessel during loading and/or discharging may lie safely aground at any safe berth or safe place where it is customary for vessels of similar size, construction and type to lie, if so requested by the Charterers, provided always that the Charterers have confirmed in writing that vessels using the berth or place will lie on a soft bed and can do so without suffering damage.
The Charterers shall indemnify the Owners for any loss, damage, costs, expenses or loss of time, including any underwater inspection required by class, caused as a consequence of the Vessel lying aground at the Charterers’ request.
The requirement for a vessel to lie safely aground is still a feature in a number of trades. What is often absent from charter party provisions permitting the vessel to be aground is any measure to verify that the bottom is clear of obstructions or any protection for the owner in terms of damage arising as a result of agreeing to lie aground. NAABSA is a risk assumed by owners and this standard wording is designed to be protective of their interests when agreeing to charterers’ requests to lie aground.
It is important to note that the Recommended NAABSA Wording is not a free-standing clause; it is additional wording to be added to berthing provisions in charter parties. The reason for this approach is simply that NAABSA wordings are more commonly found as an integral part of the berthing provisions of charter parties, rather than as a free-standing clause.
The NAABSA wording is meant to be a starting point for negotiations and should be used only when NAABSA has been agreed by the owners. Should the owners have any reservations as to where they would accept NAABSA, i.e., particular ports and places, they should ensure that such reservations are incorporated into their charter party.
The following explanatory notes provide some background to the thinking behind the NAABSA Wording:
The first paragraph of the NAABSA wording gives the charterers the right to request the vessel to lie safely aground for the purposes of loading and/or discharging operations. The request is subject to the owners’ approval and is based on customary practice for that berth or place in terms of vessels of a similar type, size and construction lying aground.
The final part of the first paragraph adds an important qualification in relation to the scope of the owners’ approval. To address owners’ concerns about accepting on face value reports of the condition of the seabed adjacent to the safe berth or safe place as being free of obstructions, an obligation has been put on the charterers to confirm in writing that vessels using that particular berth or place will lie on a soft bed and that vessels can lie safely aground, i.e. without suffering damage. This wording supplements the term ‘customary for vessels of similar size, construction and type’ and it is felt by BIMCO that if the above confirmation is obtained, this should be sufficient to satisfy the owners that the charterers have carried out proper investigations as to the safety of the vessel when lying aground at the berth or place.
In the second paragraph, if the owners agree that the vessel can lie safely aground at a particular berth or place, the charterers are required to indemnify them for any loss, damage, costs, expenses or loss of time that may occur as a result of lying aground. The indemnity expressly includes the charterers’ responsibility for costs and time of an underwater survey to check for damage, if so required by the owners’ classification society.
Most classification societies oblige shipowners as a matter of practice to inform class on each occasion when the vessel is expected to lie safely aground for the purposes of loading and/or discharging. It should be noted that the costs and time for underwater inspections are ONLY for the charterers’ account if the owners’ classification society has specifically requested such an inspection following an agreed grounding – it is not the intention that the owners should be able to pass on the costs of any underwater inspections solely on the basis that the vessel had laid aground at the charterers’ request. If owners wish to have this extra right of inspection then they will need to reach an agreement with the charterers when they fix the charter party.
Originally published in BIMCO Special Circular No. 6, 22 December 2011 - BIMCO Recommended wording for NAABSA
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