Inter-Club New York
Produce Exchange Agreement (1996)
This Agreement is made on 1
September 1996 between the P&I Clubs being members of The International
Group of P&I Associations (hereafter referred to as "the Clubs").
This Agreement replaces the
Inter-Club Agreement 1984 in respect of all charterparties specified in
Clause (1) hereof and shall continue in force until varied or terminated.
Any variation to be effective must be approved in writing by all the Clubs
but it is open to any Club to withdraw from the Agreement on giving to
all the other Clubs not less than three months' written notice thereof,
such withdrawal to take effect at the expiration of that period. After
the expiry of such notice, the Agreement shall nevertheless continue as
between all the Clubs, other than the Club giving such notice who shall
remain bound by and be entitled to the benefit of this Agreement in respect
of all cargo claims arising out of charterparties commenced prior to the
expiration of such notice.
The Clubs will recommend to
their Members without qualification that their Members adopt this Agreement
for the purpose of apportioning liability for claims in respect of cargo
which arise under, out of or in connection with all charterparties on the
New York Produce Exchange Form 1946 or 1993 or Asbatime Form 1981 (or any
subsequent amendment of such forms), whether or not this Agreement has
been incorporated into such charterparties.
Scope of application
(1) This Agreement applies to
any charterparty which is entered into after the date hereof on the New
York Produce Exchange Form 1946 or 1993 or Asbatime Form 1981 (or any subsequent
amendment of such forms).
(2) The terms of this Agreement
shall apply notwithstanding anything to the contrary in any other provision
of the charterparty; in particular the provisions of Clause (6) (time bar)
shall apply notwithstanding any provision of the charterparty or rule of
law to the contrary.
(3) For the purposes of this
Agreement, cargo claim(s) mean claims for loss, damage, shortage (including
slackage, ullage or pilferage), overcarriage of or delay to cargo including
customs dues or fines in respect of such loss, damage, shortage, overcarriage
or delay and include:
(a) any legal costs
claimed by the original person making any such claim;
(b) any interest claimed by
the original person making any such claim;
(c) all legal, Club correspondents'
and experts' costs reasonably incurred in the defence of or in the settlement
of the claim made by the original person, but shall not include any costs
of whatsoever nature incurred in making a claim under this Agreement or
in seeking an indemnity under the charterparty.
(4) Apportionment under this Agreement
shall only be applied to cargo claims where:
(a) the claim was made
under a contract of carriage, whatever its form,
(i) which was authorised
under the charterparty;
or
(ii) which would have
been authorised under the charterparty but for the inclusion in that contract
of carriage of Through Transport or Combined Transport provisions, provided
that
(iii) in the case of
contracts of carriage containing Through Transport or Combined Transport
provisions (whether falling within (i) or (ii) above) the loss, damage,
shortage, overcarriage or delay occurred after commencement of the loading
of the cargo onto the chartered vessel and prior to completion of its discharge
from that vessel (the burden of proof being on the Charterer to establish
that the loss, damage, shortage, overcarriage or delay did or did not so
occur); and
(iv) the contract of carriage
(or that part of the transit that comprised carriage on the chartered vessel)
incorporated terms no less favourable to the carrier than the Hague or
Hague Visby Rules, or, when compulsorily applicable by operation of law
to the contract of carriage, the Hamburg Rules or any national law giving
effect thereto; and
(b) the cargo responsibility clauses
in the charterparty have not been materially amended. A material amendment
is one which makes the liability, as between owners and charterers, for
cargo claims clear. In particular, it is agreed solely for the purposes
of this Agreement:
(i) that the addition
of the words "and responsibility" in Clause 8 of the New York Produce Exchange
Form 1946 or 1993 or Clause 8 of the Asbatime Form 1981, or any similar
amendment of the charterparty making the Master responsible for cargo handling,
is not a material amendment; and
(ii) that if the words "cargo
claims" are added to the second sentence of Clause 26 of the New York Produce
Exchange Form 1946 or 1993 or Clause 25 of the Asbatime Form 1981, apportionment
under this Agreement shall not be applied under any circumstances even
if the charterparty is made subject to the terms of this Agreement; and
(c) the claim has been
properly settled or compromised and paid.
(5) This Agreement applies regardless
of legal forum or place of arbitration specified in the charterparty and
regardless of any incorporation of the Hague, Hague Visby Rules or Hamburg
Rules therein.
Time Bar
(6) Recovery under this Agreement
by an Owner or Charterer shall be deemed to be waived and absolutely barred
unless written notification of the cargo claim has been given to the other
party to the charterparty within 24 months of the date of delivery of the
cargo or the date the cargo should have been delivered, save that, where
the Hamburg Rules or any national legislation giving effect thereto are
compulsorily applicable by operation of law to the contract of carriage
or to that part of the transit that comprised carriage on the chartered
vessel, the period shall be 36 months. Such notification shall if possible
include details of the contract of carriage, the nature of the claim and
the amount claimed.
The apportionment
(7) The amount of any cargo
claim to be apportioned under this Agreement shall be the amount in fact
borne by the party to the charterparty seeking apportionment, regardless
of whether that claim may be or has been apportioned by application of
this Agreement to another charterparty.
(8) Cargo claims shall be apportioned
as follows:
(a) Claims in fact
arising out of unseaworthiness and/or error or fault in navigation or management
of the vessel:
100% Owners
save where the Owner
proves that the unseaworthiness was caused by the loading, stowage, lashing,
discharge or other handling of the cargo, in which case the claim shall
be apportioned under sub-Clause (b).
(b) Claims in fact arising out
of the loading, stowage, lashing, discharge, storage or other handling
of cargo:
100% Charterers
unless the words "and
responsibility" are added in Clause 8 or there is a similar amendment making
the Master responsible for cargo handling in which case:
50% Charterers
50% Owners
save where the Charterer
proves that the failure properly to load, stow, lash, discharge or handle
the cargo was caused by the unseaworthiness of the vessel in which case:
100% Owners
(c) Subject to (a)
and (b) above, claims for shortage or overcarriage:
50% Charterers
50% Owners
unless there is clear
and irrefutable evidence that the claim arose out of pilferage or act or
neglect by one or the other (including their servants or sub-contractors)
in which case that party shall then bear 100% of the claim.
(d) All other cargo
claims whatsoever (including claims for delay to cargo):
50% Charterers
50% Owners
unless there is clear
and irrefutable evidence that the claim arose out of the act or neglect
of the one or the other (including their servants or sub-contractors) in
which case that party shall then bear 100% of the claim.
Governing Law
(9) This Agreement shall be
subject to English Law and Jurisdiction, unless it is incorporated into
the charterparty (or the settlement of claims in respect of cargo under
the charterparty is made subject to this Agreement), in which case it shall
be subject to the law and jurisdiction provisions governing the charterparty. |