The threshold for invoking BIMCO’s Infectious or Contagious Diseases (IOCD) Clauses is necessarily set at a high level to avoid misuse. The two clauses, one for time and the other for voyage charters, are designed to respond to extreme outbreaks of diseases and not just “everyday” illnesses.
BIMCO recommends the incorporation into voyage and time charter parties of the Infectious or Contagious Diseases Clauses.
The threshold for invoking BIMCO’s Infectious or Contagious Diseases (IOCD) Clauses is necessarily set at a high level to avoid misuse. The two clauses, one for time and the other for voyage charters, are designed to respond to extreme outbreaks of diseases and not just “everyday” illnesses. They were written at the time of the Ebola outbreak in 2014/15 but drafted in deliberately general terms with the intention that they could be used for outbreaks of other virulent diseases in the future.
But how “serious” does an outbreak of a contagious disease like COVID-19 need to be in order to invoke the clause? It is important to note that there are two interdependent definitions needed to trigger the clause. If the outbreak results in a declaration by a public health authority of a public health emergency, BIMCO would consider the outbreak serious enough to trigger the definition of “Diseases”.
The second trigger relates to the definition of “Affected Area” – that will be a matter of fact on a case by case basis. The Affected Area means not only a place where the ship calls where a risk of crew infection exists, but also subsequent ports of call away from the infection risk area which may quarantine or otherwise restrict the ship simply because it has called at a port in a particular country. This implies that a public health authority has declared a port as an infection risk area or that a port authority has placed arrival restrictions on ships coming from certain countries.
The COVID-19 coronavirus outbreak was declared a Public Health Emergency of International Concern (PHEIC) by the World Health Organisation (WHO) on 30 January 2020. A total of six PHEICs have been declared by the WHO since the swine flu (H1N1) pandemic in 2009, including the Ebola outbreak in West Africa in 2014 and now COVID-19.
The WHO defines a PHEIC as “an extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated international response”. This means a situation that is serious, sudden, unusual or unexpected; carries implications for public health beyond the affected State’s national border; and which may require immediate international action.