EU Advance Cargo Declaration Clause for Voyage Charter Parties 2012

BIMCO EU Advance Cargo Declaration Clause for Voyage Charter Parties 2012

(a) If the Vessel loads cargo in any EU port or place destined for a port or place outside the EU (“Exported”) or loads cargo outside the EU destined  for an EU port or place or passing through EU ports or places in transit (“Imported”) the Owners and the Charterers shall for the purposes of this Clause comply with the requirements of the EU Advance Cargo Declaration Regulations (the Security Amendment to the Community Customs Code , Regulations 648/2005; 1875/2006; and 312/2009) or any subsequent amendments thereto.

(b) The Owners shall, in their own name, and in their time and at their expense:

(i) Have in place an EORI number (Economic Operator Registration and Identification);

(ii) Where the cargo is being Imported: Submit, or arrange for the submission of, an entry summary declaration. Unless otherwise permitted by the relevant customs authorities, such declarations shall be submitted to them electronically;

(iii) Assume liability for and indemnify, defend and hold harmless the Charterers against any loss and/or damage and/or any expenses, fines, penalties and all other claims of whatsoever nature, including but not limited to legal costs, arising from the Owners’ failure to comply with any of the provisions of this sub-clause (b). Should such failure result in any delay then, notwithstanding any provision in this Charter Party to the contrary, all time used or lost shall not count as laytime or, if the Vessel is already on demurrage, time on demurrage.

(c) The Charterers shall, in their time and at their expense:

(i) Provide all necessary information to the Owners and/or their agents to enable the Owners to submit a timely and accurate cargo declaration. Information to be provided no later than three (3) working days prior to loading of the cargo;

(ii) Where the cargo is being Exported: Submit, or arrange for the submission of, a customs declaration for export, or, if a customs declaration or a re-export notification is not required, an exit summary declaration. Unless otherwise permitted by the relevant customs authorities, such declarations shall be submitted to them electronically;

(iii) Assume liability for and indemnify, defend and hold harmless the Owners against any loss and/or damage and/or any expenses, fines, penalties and all other claims of whatsoever nature, including but not limited to legal costs, arising from the Charterers’ failure to comply with any of the provisions of this sub-clause (c). Should such failure result in any delay then, notwithstanding any provision in this Charter Party to the contrary, all time used or lost shall count as laytime or, if the Vessel is already on demurrage, time on demurrage. 

Explanatory notes

BIMCO has revised its EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties first issued in 2011.

Background

The EU Advance Cargo Declaration Clauses were drafted to meet the requirements of the new European Union customs legislation that came into force on 1 January 2011 – the EU Advance Cargo Declaration Regulations.

During the past year BIMCO has received some useful feedback from users, based on their own experiences on how the Clauses might be improved. Furthermore, the export procedure which was unclear at the time of drafting has now been refined. BIMCO therefore decided to undertake an early revision of these Clauses and the result is the attached EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties 2012.

The objective of the Clauses remain unchanged, namely to assist owners and charterers in meeting the EU customs legislation requirements of submitting advance cargo declarations for import and export cargoes as well as cargoes passing through EU ports or places in transit.

Explanatory Notes

The following notes highlight and explain the differences between the revised EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties and the original version of the Clauses:

Transit Cargoes
Shortly after the entry into force of the EU Advance Cargo Declaration Scheme it became clear that the Rules also applied to cargoes entering the EU in transit. BIMCO promptly developed an additional recommended wording to take transit cargoes into account and this wording has now been incorporated into the Clauses.

The “carrier”
The Clauses previously obliged the charterers (for time charter parties) and the owners (for voyage charter parties) to undertake the role of carrier for the purposes of the EU Advance Cargo Declaration Regulations. The EU Regulations, however, do not refer to “carrier” in the same way as the US AMS requirements, but refer instead to “Economic Operator”. Rather than introducing a new term, the Clauses have been amended to require the parties to comply with the Regulations for the purposes of the Clause.

As a consequence of the above amendment, the sub-clauses distinguishing between “the role of carrier” under the Clause and “carrier under any bill of lading, other contract, law or regulation” are no longer relevant. They have been deleted.

Cargo Procedures
Provisions relating to export cargoes have been drafted. It should be noted that the export procedure is not the mirror of the import procedure and only in some circumstances can a summary declaration for export be submitted. The legislation requires all customs related documents to be posted electronically but also allows individual customs authorities to permit the use of paper documents.

In the context of the time charter party clause, it is the charterers’ responsibility to fulfil the necessary regulatory and administrative requirements. Charterers must provide owners with a copy of declarations submitted to customs authorities.

The voyage charter party version of the Clause has been completely restructured with owners’ and charterers’ separate liabilities and obligations set out respectively at sub-clauses (b) and (c). Owners are responsible for import (which includes transit cargo) declarations. However, given that charterers must comply with procedures and complete the necessary documentation for export cargoes and are therefore in the best position to pass information in the appropriate format to the relevant authorities, responsibility for export declarations now rests with charterers.

Consequential Loss and/or Damage
The liability provisions have been amended to exclude consequential loss and/or damage. This is because the consequences of including liability for consequential damage were considered to be disproportionate to what could be the result of a very minor occurrence, such as a clerk forgetting to file the relevant papers.

Originally published in BIMCO Special Circular No. 3, 24 July 2012 - EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties 2012

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