POOLCON B

POOLCON B

Overview

POOLCON B is designed for use by tramp pools operating in the dry and liquid bulk trades under contracts of affreightment, spot or time charters to third parties. It governs the relationship between owners entering their ships into the pool and the pool managers and regulates administrative and procedural matters covering pool operations together with the allocation of respective party liabilities and obligations. As an agency agreement, there is no time charter relationship between participants and pool managers. The latest edition of this contract is POOLCON B, issued in 2014.

Copyright in POOLCON B is held by BIMCO.

Supporting documents

Background

Pooling agreements, as a means of achieving efficiencies for shipowners with the benefits being passed on to their customers, are a feature of tramp markets. In October 2012, BIMCO published POOLCON (now renamed POOLCON A) as the first of two specialist documents setting out the basis for contractual arrangements between owners participating in a pool and the pool managers. Under POOLCON A, the pool is constituted as a self-standing entity where owners time charter their vessel(s) to the pool and the pool contracts in its own name with third parties.

However, this is not the only model. Owners’ commercial needs, together with administrative and practical considerations, have resulted in the widespread use of agency-based arrangements where pool managers act on behalf of participants with participants as principal in any contract for the use of a vessel or carriage of goods.

In response to this need, work was put in hand to develop a second document to address the special requirements of agency-based arrangements. The outcome, POOLCON B, was adopted at the Documentary Committee’s meeting in Copenhagen in November 2013. BIMCO is grateful to the following members for their work in the development process:

Mr Francis Sarre (Chairman) CMB (Owner)
Mr Stathes Kulukundis R&K (Owner)
Mr Georg Scheel Nordisk (Club Member)
and special adviser
Ms Marjorie Holmes (Reed Smith) (Lawyer)

Competition law is often modelled on the European regime. As with POOLCON A, the importance of avoiding creating restrictions on trade has been at the forefront of the Working Group’s consideration of the issues. Full account has therefore been taken of EC Guidelines on horizontal cooperation agreements (2011/C11/01), together with similar regulatory implications in jurisdictions around the world. However, the issues are often complex and users are urged to make appropriate inquiries to ensure that their contractual arrangements are consistent with local competition legislation.

Explanatory notes

The following notes are intended to provide guidance on the provisions set out in POOLCON B. Defined terms are identified in the contract by use of capital letters and, in order to assist readers, the same approach is taken in this summary.

Key Features

POOLCON B is designed for use by tramp pools operating tonnage in dry and liquid bulk trades under contracts of affreightment, spot and time charters with third parties. It governs the relationship between owners (Participants) entering a Vessel (or vessels) into the pool and the Pool Managers and regulates administrative and procedural matters covering pool operations together with the allocation of respective party liabilities and obligations. The regime for operating pool vessels is set out in an annexed “Reference Charter” which is not a charter party but an underlying document covering the technical and commercial relationship between Participants and Pool Managers for trading the Vessel(s). As an agency agreement, there is no time charter relationship between Participants and Pool Managers. Nevertheless, in order to calculate Participants’ entitlement to any share of pool profits, the Reference Charter must set out the basis for determining when the vessel is deemed to be on hire and periods such as breakdown, maintenance or repairs when no notional hire accrues. Pool Managers undertake marketing and fixing arrangements but all contracts (including individual charters pursuant to a contract of affreightment) for employment are concluded by Pool Managers “on behalf of and acting as agents for” Participants. However, Additional Tonnage chartered in or chartered out to meet or supplement pool commitments, is fixed in the Pool Managers’ own name. As agents, Pool Managers should not be exposed to charterers’ claims. However, to guard against the possible risk of a “misdirected arrow”, Participants are required to name Pool Managers as co-assured on their insurance policies, if possible without liability for calls in the event of owners’ failure to make payments due.

Introduction

POOLCON B follows BIMCO’s traditional style. Part I contains a box layout for variable information to be inserted by the parties; Part II sets out terms and conditions; four supporting annexes are for Pool specific arrangements; and a fifth annex, an Accession Agreement, is designed to facilitate procedures for bringing New Participants into the Pool.

Part I

Particular attention is drawn to Box 5 Reference Charter which should be attached to Annex B. As noted elsewhere, this is not a time charter but an underlying document setting out and apportioning operational and technical responsibility between Participant and Pool Managers for trading the Vessel. The Reference Charter is likely to be based on a standard document such as BALTIME, GENTIME, NYPE 46, NYPE 96 or SHELLTIME 4 amended to reflect POOLCON B 3 provisions for payment of Pool profits, delivery and redelivery of the vessel for Pool services and other general or trade specific provisions as appropriate. Inside Cover Note Attention is drawn to the complexity of competition law and variations between jurisdictions. Whether a pool is consistent with local legislation will depend on a range of factors including market share, market concentration, market structure and turnover together with other regulatory provisions in the country of destination and, possibly, origin. The Working Group is of the opinion that POOLCON B, as a generic agreement, will not restrict competition on price and market share and is therefore unlikely to expose users to the risk of action for anti-competitive behaviour. Nevertheless, use of POOLCON B does not in itself confer compliance and users are urged to take appropriate advice to ensure that a planned venture is consistent with relevant competition laws.

Part II

Clause 1 (Definitions)

Terms used throughout the Pool Agreement are set out. Words and phrases are defined for ease of reference for the purposes of the contract but are not legal definitions.

The term “Participants” means Owners entering vessels into the Pool. Attention is drawn to the distinction between a “Reference Charter” which, as explained, forms the basis of the trading arrangements between a Participant and Pool Managers as operators; and a “Transportation Contract” which is any contract for the use of a Vessel or for carriage of goods and will include a contract of affreightment, spot charter or time charter.

Clause 2 (Pool Agreement)

The Pool Agreement is made between each Participant and between the Participants and the Pool Mangers. Vessels are under the commercial management of, and are traded by, Pool Managers in accordance with the Reference Charter (annex B). All third party Transportation Contracts are entered into by the Pool Managers “on behalf of and acting as agents” for individual Participants who are, therefore, principals in the transaction with counterparty charterers. In the event of, for example, differences between periods of deemed off-hire under the Reference Charter and off-hire or time lost for voyage delays under a Transportation Contract, the terms of the Reference Charter prevail for calculating a Participant’s entitlement to Pool earnings.

Clause 3 (No Partnership)

Construction of the Pool Agreement as a partnership between Participants and the Pool Managers or any of them, is expressly excluded. Participants’ obligations are owed only to the Pool Managers save in relation to the specific provisions set out in clause 4 (Indemnity, Liability and Security), clause 25 (Confidentiality) and clause 28 (Dispute Resolution).

Clause 4 (Indemnity, Liability and Security)

Each Participant is liable only for its own performance; there is no joint and several liability with any other Participant. This provision therefore protects a Participant from action by a third party to secure a claim against another Participant or the Pool Managers. In the event of such action, the Participant whose dispute affects another pool member (or the Pool Managers), must indemnify the innocent party for all costs and losses and provide security to lift or discharge any arrest of property.

Clause 5 (Objective of the Pool Agreement)

This is a mission statement explaining the commercial efficiencies to be gained from using the Pool Agreement and the ultimate benefits to consumers. It reflects European Commission Guidelines on the application of competition legislation.

Clause 6 (Contracting on behalf of the Pool)

This clause, which should be read together with clause 9, Pool Managers’ Authority, sets out Pool Managers’ mandate to enter Transportation Contracts on behalf of Participants. Pool Managers may also enter Contracts of Affreightment in their own name but as agents for performance by individual Participants who will be named principals in Transportation Contracts issued pursuant to the Contract of Affreightment. Pool Managers may, in their own name, charter in and charter out Additional Tonnage (vessels owned and operated by owners outside the pooling arrangements).

Clause 7 (Pool Vessels)

Sub-clause (a) states that technical management of a vessel, including insurance and manning, is the sole responsibility of the Participant in accordance with the Reference Charter.

Sub-clause (b) provides that, where necessary, Pool Managers may charter-in vessels (Additional Tonnage) to supplement resources to fulfil commitments or for improved efficiency.

Clause 8 (Pool Management)

A comprehensive list of duties to be undertaken by Pool Managers is set out. It includes vessel operating, administering contracts, accounting, maintaining financial records, marketing and all other functions in support of the Pool’s commercial activities. It is expressly provided that the Pool Manager shall not discriminate between Participants.

The Pool Manager can sue and be sued in relation to any dispute under the Pool Agreement. Nevertheless, liability to Participants for loss or damage is expressly excluded unless (as with ship managers’ liability under SHIPMAN) shown to have resulted from Pool Managers’ negligence, gross negligence or wilful default.

Clause 9 (Pool Managers’ Authority)

The maximum period for which Pool Managers are authorised to enter into Transportation Contracts is limited by agreement between the parties. Under sub-clause (a), in default of a stated time, the maximum is six (6) months or (for example under a Contract of Affreightment) by reference to the equivalent number of voyages provided such voyages are scheduled to be performed within a stated time or, in the absence of agreement, twelve (12) months. In accordance with sub-clause (b), Pool Managers’ authority to charter-in Additional Tonnage can also be limited by agreement or, in the absence of a stated period, to a maximum of six (6) months.

Under sub-clause (c), Pool Managers are authorised to sign Accession Agreements (Annex E) to bring new Participants into the Pool following approval at a Participants’ meeting (see clause 12(f)(iii)).

Clause 10 (Pool Committee)

The Pool Committee supervises and monitors the Pool Managers. Membership is drawn from among the Participants. Decisions are made by ordinary majority of those present at a meeting. A Member may be represented by a proxy with full voting rights.

Clause 11 (Pool Committee Authority)

This sets out the scope of the Pool Committee’s authority. It includes making arrangements for Participants’ Meetings (see clause 12), approving new and Substitute Vessels from Participants, approving Transportation Contracts for periods in excess of the Pool Managers’ authority, agreeing to Pool Managers’ use of currency and hedging instruments for periods of not more than twelve (12) months and such other functions as may be delegated by the Participants’ Meeting.

Clause 12 (Participants’ Meeting)

An ordinary meeting, with not less than 21 days’ notice, must be held at least once a year. An extraordinary meeting may be called by an agreed proportion of Participants giving 14 days’ notice. A meeting will be required in the event of the Pool Managers giving notice of termination (see clause 20). A Participant may be represented by a proxy with full voting rights.

The Participants’ Meeting is the Pool’s ultimate decision-making forum. Voting requirements ensure that decisions balance individual interests and cannot be unduly influenced or blocked by a larger or smaller Participant able to exercise a veto over a particular course of action.

Under sub-clause (d), accounting and budgets, together with other matters not subject to an enhanced majority, are to be resolved by ordinary majority. This is determined by reference to the number of Pool Vessels owned or controlled by a Participant, with each vessel giving one vote.

A two thirds majority, again on the basis of numbers of vessels, is required under sub-clause (e) for matters relating to Pool Points, Transportation Contracts in excess of the Pool Committee’s authority and other listed activities in support of, or ancillary to, the Pool’s objectives. In order to reduce the likelihood of stalemate, or decisions being held up by a minority, a proposal to wind-up the Pool or appoint new Pool Managers is also subject to a two thirds majority.

A unanimous decision of those present or represented at a Participants’ Meeting is required under sub-clause (f) to approve certain joint venture agreements, admission of new Participants and expulsion of a Participant (although the Participant under consideration for expulsion cannot vote on the issue).

Under sub-clause (g), proposed changes to the Pool Agreement require Participant unanimity and the Pool Managers’ consent. The need for agreement by each and every Participant will protect the interests of those unable to attend, or be represented at, a meeting to determine a proposal. 

Clause 13 (Calculation of Pool Gross Revenue, Pool Net Revenue and Pool Expenses)

This clause gives further meaning to the definitions in clause 1 to address the calculation of income receivable while the determination of Pool Points is set out at clause 16 and in annex D. The two concepts have been dealt with separately to avoid a single, but complex, provision.

Sub-clause (a) identifies elements comprising Pool Gross Revenue. This includes each Vessel’s monthly actual and estimated voyage income and charter hire from Transportation Contracts, income from Additional Tonnage, receipts from ancillary activities and insurance money together with any indemnities or damages received arising from the Pool’s operations.

Sub-clause (b) deals with Pool Expenses covering all aspects of voyage and related costs, liabilities and expenses under the Reference Charter which are for the account of the Pool and not the Participant, costs of chartering-in Additional Tonnage, outgoings connected with Pool operations, Pool Managers’ remuneration and Pool Managers’ insurance premia (see clause 19(b) and (c)). Liabilities or damages payable are Pool Expenses unless (as in SHIPMAN) arising solely from the negligence, gross negligence or wilful misconduct of the Pool Managers who, in such event, will themselves be liable.
If expenses exceed income, Participants will be required to cover the shortfall in accordance with sub-clause (d) of clause 15 (Distributions).

Clause 14 (Pool Managers’ Accounts)

Pool Managers are required to keep true and correct accounts by reference to the International Financial Reporting Standards (IFRS) or other agreed arrangements, exercise budget monitoring and controls and meet audit standards. The provision also outlines procedures for reimbursing Participants’ recoverable Pool Expenses.

Clause 15 (Distributions)

The system for paying profits to Participants is central to the objectives of a pooling arrangement. Under an agency agreement where vessels are not on time charter to the pool, Participants’ remuneration cannot properly be described as “hire”. Payments due have, therefore, been termed “Distributions”. Distributions are determined on a monthly basis (in accordance with the revenue and expenditure calculations in clause 13) based on each vessel’s allocated Pool Points and deemed periods on hire under the principles in the Reference Charter. The formula for calculating payments due is set out in sub-clause (a).

Provisions for the distribution of payments, limiting or holding back payments in the event of insufficient funds and Participants’ obligations to make a contribution if a calculation results in a negative sum, are set out at sub-clause (b). Sub-clause (d) covers Participants’ obligations to contribute to Working Capital and operational losses.

Clause 16 (Pool Points)

Every pool will have its own individual characteristics according to trading activities and/or the type and mix of tonnage. In order to avoid the inclusion of a potentially complex formula within the text, a flexible approach has been followed. A cross reference to annex D (Pool Points Formula) suggests factors likely to be taken into consideration when assessing points for a vessel joining the Pool. Under sub-clause (b), the Participants’ Meeting will confirm the number of points, taking account of any recommendations made by the Pool Managers.

Sub-clause (c) requires Pool Managers to review voyage results and vessel performances on 1st January and 1st July to ensure that allocated points continue to fairly reflect each vessel’s relative earning capacity. Illustrative factors likely to affect the position, and which should be kept under review, are set out and include a change of trading pattern, changes in bunker costs, introduction of new regulations and vessel modifications. Pool Managers’ recommendations for amending individual Pool Points or the Pool Points Formula are referred to the next Participants’ Meeting. If necessary, and in accordance with sub-clause (d), revisions can be conducted at shorter intervals.

Clause 17 (Withdrawal)

This clause seeks to balance owners’ needs to be able to move in and out of trades and activities with Pool Managers’ needs for certainty of supply to fulfil their commitments under Transportation Contracts. It distinguishes between withdrawal of a Vessel and withdrawal of a Participant.

Under sub-clause (a), a Pool Vessel may be withdrawn if sold or committed to a time or demise charter for longer than a pre-agreed period. Notice of withdrawal is required but, in defined circumstances, provision of a Substitute Vessel will fulfil a Participant’s outstanding obligations.

Sub-clause (b) sets out the notice requirements for a withdrawing Participant and arrangements for individual vessels to be taken out of the Pool. If the value of outstanding Transportation Contracts is below the market rate, the withdrawing Participant will be required to make a financial contribution pro rata to the number of vessels being withdrawn. No compensation is payable to the withdrawing Participant where the value of outstanding Transportation contracts exceeds the market rate. Disputed valuations are to be determined by reference to chartering brokers.

Nevertheless, if one or more vessels due to be withdrawn is or are determined by Pool Managers to be essential to the performance of existing contractual obligations, sub-clause (c) provides that the Participant must supply a Substitute Vessel or pay compensation to cover the cost of chartering-in suitable tonnage.

Special provisions apply in the event of a constructive or total loss (sub-clause (f)).

The clause also sets out procedures for redelivery of vessels and repayment of Working Capital.

Clause 18 (Non-compete)

This clause might be viewed as imposing a restriction on owners’ freedom to trade. However, without it, a Participant would be free to compete against the Pool, possibly with the benefit of price or other sensitive information. This would be inconsistent with restrictions on exchanges of information between competitors.

The clause has therefore been inserted to address this conflict. However, in order to clarify the intended scope, the statement “not entitled to operate in the same trades” should be interpreted in line with the industry’s understanding that this means the same geographic trades, commodities and type(s) of vessel.

Clause 19 (Insurance Policies)

Sub-clause (a), based on the insurance provisions in SHIPMAN 2009, sets out Participants’ responsibility for hull and machinery cover, protection and indemnity risks and war risks. Optional insurances may also be agreed and, although not specifically identified in the text, depending on trading requirements parties might decide to agree to add maritime kidnap and ransom (K&R) cover.
Transportation Contracts are arranged by Pool Managers as agents for Participants who are, therefore, principals in the transaction. Nevertheless, in order to protect Pool Managers against a third party claimant’s “misdirected arrow”, sub-clause (b) requires Participants to name Pool Managers as joint assureds with full cover. However, the benefit of joint assured status in many cases imposes liability on the joint assured for a defaulting Participant’s premium payments or calls. Participants are therefore required, if obtainable at no extra cost, to procure cover without such obligation and for Pool Managers to be released from all liabilities on the Participant’s withdrawal from, or on the winding up of, the Pool.

Sub-clause (c) requires Pool Managers to take out professional liability insurance, charterers’ liability insurance for Additional Tonnage and FD&D cover.

Clause 20 (Termination by the Pool Managers)

Pool Managers may give six (6) months’ notice to terminate their role. A Participants’ Meeting, convened in accordance with clause 12, must decide whether to appoint replacement managers. In the absence of a two thirds majority in support of a proposal, it will be necessary to proceed to the winding-up arrangements in clause 21.

Clause 21 (Winding up of Pool)

Sub-clause (a) provides a mechanism for winding-up the Pool by a two thirds majority vote at a Participants’ Meeting or where, following Pool Managers’ resignation (clause 20), there is no agreement to make a new appointment.

Sub-clause (b) details arrangements for withdrawing vessels from the Pool and releasing Participants from their contractual obligations during the winding-up period.

Clause 22 (Default)

This sets out the events and circumstances which may result in a Participant’s expulsion if so resolved at a Participant’s Meeting. Nevertheless, expulsion is without prejudice to the Pool Managers’ right to claim damages in accordance with clause 23. 

Clause 23 (Rights on Termination and Withdrawal)

It is expressly provided that a Participant’s withdrawal whether voluntarily, by expulsion or in the event of total loss, does not affect any rights or obligations incurred up to the effective date of withdrawal or beyond in the case of rights and obligations that survive termination of the Agreement.

Clause 24 (Hardship and Force Majeure)

Parties are encouraged, under sub-clause (a), to try to reach an amicable solution if the Agreement does not work as intended or expected.
Sub-clause (b), sets out mutual exclusions from liability as between Participants and Pool Managers under the Pool Agreement. Exclusions from liability between Participants and third parties will be determined in accordance with the relevant Transportation Contract.

Clause 25 (Confidentiality)

Competition legislation restricts the exchange of market or price sensitive information between competitors. It is, therefore, important that Participants observe and comply with this clause and its prohibition on disclosure, other than in accordance with legal process, or outside exploitation of information gained within the Pool.

Clause 26 (Assignment)

This requires all Participants to agree before a member may assign or transfer rights under the Pool Agreement, other than assignment to an affiliate or financiers.

Clause 27 (Notices)

This is the standard BIMCO provision.

Clause 28 (Dispute Resolution Clause)

The provision incorporates the Singapore forum together with other amendments made to the London and New York options, introduced in the updated 2013 version of the BIMCO Standard Clause. However, as disputes under pooling agreements might involve multiple parties, additional wording in each named forum provides a mechanism for appointing arbitrators in circumstances where there are more than two parties in the dispute. The modifications mean that the clause is no longer the standard version and “BIMCO” has therefore been removed from the heading.

Clause 29 (Severability)

This is a standard clause. It seeks to avoid a situation where the entire agreement is held to be invalid because a particular provision is deemed by an arbitrator or other competent authority to be illegal, invalid or unenforceable.

Annexes

Annexes A to D should be completed with details of all Pool Participants, the underlying Reference Charter, Pool Vessels and their Allocated Pool Points and the Pool Points Formula. The Accession Agreement in Annex E sets out wording to facilitate the administrative mechanism for bringing a New Participant into the Pool.

 

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