Updated BIMCO contracts for towage and barge hire
BIMCO has recently published new editions of the widely used TOWHIRE, TOWCON and BARGEHIRE contract forms, which were last revised in 2008. The amendments are intended to improve legal clarity and bring the contracts more in line with current commercial practice.
TOWHIRE is the industry standard ocean towage agreement with remuneration calculated on a daily hire basis and TOWCON is its twin where remuneration is calculated on a lump sum basis. BARGEHIRE is the industry standard bareboat charterparty specifically designed for unmanned, non-self-propelled seagoing barges.
TOWHIRE 2021 and TOWCON 2021
Both towage contracts have undergone revisions with the aim of making the contracts more user friendly, including rearranging the layout as well as amending certain of the principle terms as described below. TOWHIRE has also been more closely aligned with TOWCON to the extent possible.
The knock-for-knock liability regime has been amended and now includes SUPPLYTIME-style definitions of “Hirer’s Group” and “Tugowner’s Group”.
Responsibility for any salvage costs has been allocated to the party whose property needs to be salved, in an approach which is consistent with the knock-for-knock regime.
To address cases where the tow is located inside a port area which may take several hours to reach, the forms now include a new definition of “Place of Connection”.
The clauses dealing with the hirer’s responsibility to pay for repair or replacement of damaged or lost towing gear have been amended to the benefit of the hirer – it is only towing gear that the tug has provided specifically for the services that the hirer should pay for, and the compensation shall be calculated with due consideration of fair wear and tear of the towing gear damaged or lost.
Pursuant to the new clauses, the parties are now obliged to warrant that the tug and the tow are insured, with P&I insurance equivalent to cover provided by the IG clubs as the benchmark.
Clauses on daily reporting have also been included.
Clauses modelled on existing BIMCO standards have also been included, addressing infectious diseases, piracy, anti-corruption and sanctions, thus reducing the need for rider clauses.
One amendment made to the TOWCON form only is the free time and delay payments, where a provision has been made for bunkering of the tug mid-voyage. To reduce the risk of disputes surrounding the calculation of compensation to the tugowner to cover delays due to slow steaming and deviation, there is now a box for the tugowner to state the “estimated average towage speed” which can be used as basis for calculating the compensation for extra time.
In an attempt to make BARGEHIRE 2021 easier to understand and more user-friendly, the clauses have been rearranged and some commonly found BIMCO clauses have been introduced.
The clauses dealing with survey, repair and redelivery have been given particular attention.
Other changes include a new and combined clause on ballasting operations and a default obligation on the charterers to take out P&I insurance.
Whilst the uptake of new contract forms by the industry is often somewhat slow, in all likelihood, in time, the 2021 editions of these contracts will become the new market standards.