Explanatory notes

Background

The shipping industry fully supports international efforts to eradicate bribery and corruption. Bribery, such as a payment to obtain a contract or other commercial advantage, must never be condoned. However, the position is more difficult where “facilitation payments” are demanded by officials and others before they will undertake or complete a service which they are legally or contractually bound to provide, such as ship clearance, Port State Control or hold inspections. Such payments are treated as bribery in the national legislation of an increasing number of jurisdictions and, if paid, may lead to the imposition of criminal sanctions.

At the same time, corporate governance requirements and the need to demonstrate a commitment to combatting corruption has resulted in company policies setting out standards and procedures to be followed by their counter parties and suppliers. This, in turn, has seen the emergence of contractual anti-corruption clauses developed by charterers. However, such clauses can be one-sided, imposing strict and far-reaching consequences on owners.

National legislation is increasingly moving towards blanket bans on all forms of corruption. Thus, any payment or gift, no matter how small, is illegal. In some instances, there might be a defence of duress, but this is likely to be available only in the worst instances where there is a very real risk of physical violence or imprisonment. Low level intimidation or threats to create difficulties or delay to the ship, although unnerving, are unlikely to be considered as duress.

As a result, owners can be trapped between the increasing risk of criminal sanctions and loss of a contract if they make a payment but are uncompensated for time lost when resisting demands for unlawful payments.

Objective

The new BIMCO clause addresses the situation by providing market users with a regime for responding to unlawful demands for gifts in cash or kind, such as cigarettes or alcohol. The clause, designed for use in both voyage and time charters, sets out a series of steps with the contracting parties working together to resist such demands  but if this fails, owners’ rights to hire or uninterrupted laytime and demurrage are protected. Termination, by either party, is the ultimate sanction but a high threshold has been set so that it cannot be easily used as an exit from an inconvenient charter.

The clause is for optional use. According to party needs and circumstances, it could be put forward during fixing negotiations as an alternative to a more one-sided provision suggested by the other party.

Commentary

Sub-clause (a)
This sets out the scope of the clause. It applies as between the contracting owners and charterers and this extends to include their respective employees and agents. The provisions are effective in all jurisdictions where the parties are operating and ports and places visited.

It is important to note that the clause addresses criminal law issues and is therefore distinct from the governing law of the charter party. By way of example, the United Kingdom Bribery Act applies to any party based in or with a “close connection to” the United Kingdom. However, if parties that do not fall within the scope of the United Kingdom Bribery Act elect to apply English law as the governing law of the charter party, the United Kingdom Bribery Act will not be applicable. They will, nevertheless, be subject to provisions imposed under their own or other applicable national legislation.

Sub-paragraph (i) requires the parties to comply with “all applicable anti-corruption legislation”. Since the clause is designed for worldwide trading and is not linked to any specific legal system, this provision aims to encompass any laws or regulations to which the parties are subject under their own national legislation or legislation in the country or jurisdiction where they are operating.

Each party must have in place procedures to ensure that their commercial dealings with counter-parties and cargo interests are designed to prevent any offence being committed by their employees or agents. This is likely to be based on a company’s internal anti-corruption rules and guidance published by industry organisations. While there is no expectation that such procedures will be effective in every case, a certain and high threshold is set and parties should ensure they have robust systems in place for making appropriate background checks and undertaking due diligence in the appointment of agents and other third parties. Company procedures must also set, and enforce, high standards of conduct.

Sub-paragraph (ii) makes an express provision for record keeping that reflects customary company practice and statutory obligations for keeping and maintaining accounting information. Proper recording of any payments made or gifts provided, along with the circumstances in which they were made or provided, is an essential part of a company’s procedures with regards to unwarranted facilitation payments.

Sub-clause (b) the substance of the clause is triggered when a request is received by the owners or the Master, for payment or goods or other items of value (defined in the clause as a “Demand”) from any official, contractor or sub-contractor either engaged by the owners or charterers (such as towage contractors, pilots, hold inspectors) or acting on behalf of any third party (such as port or customs officers). If the Demand is viewed as an illegal payment, the Master or owners must notify the charterers and the two parties are to cooperate in taking reasonable steps to resist the Demand.

This procedure recognises that the Demand is a function of the port call and is a direct result of charterers’ orders for the employment of the vessel. It therefore follows that the parties have a mutual interest in resolving the issue as quickly as possible while avoiding any breach of their legal obligations. Parties should, therefore, use whatever influence they can bring to bear. Owners are likely to seek assistance through their local agents or other representatives in the port and, where appropriate, might consider seeking consular assistance. Charterers, particularly where they have a permanent presence in the port or area, might be able to bring pressure through their commercial contacts (such as the shippers, terminal owners, surveyors’ organisations, head or regional offices) or the local or national administration.

Sub-clause (c) takes the process to the next stage if the “reasonable steps” in subclause (b) have failed to resolve the position. At this point, the Master or owner may issue a letter of protest. Under normal circumstances, a letter of protest setting out a complaint will be addressed to local interests at the port in question. However, this might not be appropriate where the illegal Demand is being made by a service provider or where it is suspected that the letter or details will be passed on leading to further difficulties for the parties, the Master and crew. It is therefore left to the Master or owners to decide whether, and if so to whom, the letter of protest should be directed. Nevertheless, in all cases, the letter of protest must be sent or copied to the Charterers.

The letter of protest is significant as it will provide evidence that the vessel is being delayed because of the continuing, and as yet unresolved, Demand. In accordance with the logic that the port of call has been nominated by the charterers, it follows that they should bear the cost of any delay attributable to a Demand. Accordingly, once the letter of protest has been issued, the vessel remains on hire or there is no interruption to laytime or demurrage.

Sub-clause (d) provides mutual indemnities whereby a party that has breached anticorruption legislation to which it is subject, must indemnify the other party against any loss or damage suffered as a result by the latter. This provision is likely to be of assistance in response to incidents of non-compliance where the termination provision in sub-clause (e) cannot be or is not invoked. 

Sub-clause (e) sets out the criteria for termination. The provision cannot be invoked simply as an excuse to exit an inconvenient charter or used where the actions of the party seeking to rely on it have previously compromised the position of the other party.

Termination can be invoked either by owners or charterers but only where the other party has breached applicable legislation in connection with the charter; and that  breach has put the other, non-breaching, party in breach of anti-corruption legislation to which it is subject.

The following points should be noted:

(i) use of the provision is optional and any breach committed by one party can be disregarded by the other party;

(ii) the commission of a breach is limited to the actions of those directly employed by the breaching party and not those of agents or contractors engaged to act on their behalf. If, for example, the owners’ port agent seeks an inducement from charterers to expedite, or not delay, administrative processes, the port agent’s actions would not put the owner in breach;

(iii) it is expressly provided that termination must be exercised “without delay”. This is to prevent a party using a prior incident as an excuse to bring the charter to an end possibly weeks or months later. The interpretation of “undue delay” will depend on case sensitive facts and circumstances; and

(iv) termination is expressly “without prejudice” to any other rights under the charter.

Sub-clause (f) in contrast to the foregoing provisions which respond to issues of corruption during performance of the charter, this sub-clause provides a self-standing regime warranting that the contract has not been procured by corrupt means. If  breached, the innocent party may terminate the contract. 

Originally published in BIMCO Special Circular No. 7, 7 December 2015 - Anti-Corruption Clause for Charter Parties