Background

Explanatory Notes

Structure

Clause 1. Owners, Charterers, Vessel

Clause 2. Charterers’ Loading Port(s), Cargo

Clause 3. Discharging Port(s)

Clause 4. Freight

Clause 5. Loading and Discharging

Clause 6. Laydays, Cancelling

Clause 7. Vessel’s Positions, Notice

Clause 8. Laytime

Clause 9. Demurrage, Despatch Money

Clause 10. Seaworthy Trim

Clause 11. Fumigation

Clause 12. Lights and Gear

Clause 13. Agencies

Clause 14. Extra Insurance

Clause 15. Brokerage

Clause 16. Address Commission

Clause 17. ISM Clause

Clause 18. Bills of Lading

Clause 19. Relet

Clause 20. Deviation

Clause 21. Lien and Cesser Clause

Clause 22. Penalties and/or Damages

Clause 23. Responsibilities and Immunities

Clause 24. General Ice Clause

Clause 25. Amended Centrocon Strike Clause

Clause 26. General Average and New Jason Clause

Clause 27. Both-to-Blame Collission Clause

Clause 28. War Risks (“VOYWAR 2013”)

Clause 29. Additional Clauses

Clause 30. Sanctions

Clause 31. BIMCO Anti-Corruption Clause for Charter Parties 2015

Clause 32. Arbitration

Copyright and availability

 

 

Background

In March 2022, BIMCO was requested by copyright holders SYNACOMEX and Armateurs de France to approve a revised version of the SYNACOMEX Continent Grain Charter Party. The revised version of the form, which was last updated in 2000, had been developed by the copyright holders to reflect changes in the geopolitical landscape following events including the COVID-19 pandemic and the war in Ukraine.

The first SYNACOMEX charter party was introduced in 1957 and previous editions of the form have also been approved by BIMCO. The form is widely used by grain traders in areas including the Baltics, the East Coast of South America and the Black Sea. BIMCO has previously approved the 1990 and 2000 versions of the form and has once again been pleased to work with the copyright holders to review and approve this latest version of the form.

When approving third-party forms, BIMCO’s approach is differentiated in the sense that it is not involved in the drafting as such. In order to assist the Documentary Committee when considering the revised form, a review committee was established composed of representatives of the industry who are frequent users of the SYNACOMEX form. Based on the review committee’s deliberations, further discussions took place with the copyright holders and a number of changes were made to the draft form.

BIMCO would like to thank the review committee for their commitment to the project and their considerable time and efforts in considering the revised SYNACOMEX charter party:

Claire Weustenraed, Pacific Basin

Rasmus Saltofte and Camilla Engedal, NORDEN

Emilien Aubey, Ifchor/Nova Marine Carriers

Sammy Smallbone, Gard Japan

 

BIMCO secretariat support was provided by Christian Hoppe, General Counsel, and Zehra Göknaz Engin, Project Manager, Contracts & Clauses.

Explanatory Notes

These explanatory notes are intended to guide users by providing background to the main clauses of SYNACOMEX 2023 and the reasoning for the revisions as compared with SYNACOMEX 2000.This document is a living document and, if and when BIMCO receives questions on some of the clauses, we will expand the notes and consultation with the copyright holders.

Structure

SYNACOMEX 2023 consists of 32 clauses. As compared with the 2000 edition, there is no box layout in the form as the feedback from users was that the box layout was not being used.

As there is no longer a box layout, there are no signature boxes for the parties to sign the charter party. The parties should therefore make sure to sign the charter party at the end of the contract (in the appropriate section below Clause 32).

Clause 1. Owners, Charterers, Vessel

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the date and place of the charter party; the second brackets should include the name and place of business of the owners; the third brackets should include the name of the vessel; the fourth brackets should include the NT/GT; the fifth brackets should include the flag/year of build/class; the sixth brackets should include the DWT; the seventh brackets should include the present position/expected ready to load date; the seventh bracket should include the name and place of business of the charterers.

Clause 2. Charterers’ Loading Port(s), Cargo

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the name of the loading port; the second and third brackets have been included as a free text option for the parties to enter other types of cargoes. The 5% tolerance in SYNACOMEX 2000 has been replaced by a free text option for owners and charterers to agree. The fourth brackets should include the percentage of bags of the cargo to be supplied by the charterers for stowage purposes; the fifth brackets should specify whether this percentage should be in owners’ or charterers’ option.

Parties should make sure to indicate whether the vessel should be always afloat or safely aground. If no choice is made, the vessel should be always afloat.

Clause 3. Discharging Port(s)

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The brackets should include the name of the discharge port.

Parties should make sure to indicate whether the vessel should be always afloat or safely aground. If no choice is made, the vessel should be always afloat.

Clause 4. Freight

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the freight rate per metric ton; the second brackets should include the particulars relating to the payment of the freight rate, i.e. the currency and method of payment, the beneficiary and bank account.

The reference in SYNACOMEX 2000 to charges and dues levied on the vessel “howsoever assessed” has been removed. The purpose of this addition in the 2000 edition of the charter party was to broaden the basis of the taxes which may be levied on the ship at port but it is considered superfluous in so far as all charges and dues levied on the vessel are on owners’ account without any distinction and all charges and dues levied on the cargo are for charterers account without any distinction.

Clause 5. Loading and Discharging

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the loading rate; the second brackets should include the discharging rate.

The paragraph dealing with stowage has been amended to state that stowage shall be under the master’s direction but not, as was the case in SYNACOMEX 2000, under the master’s responsibility. The reason for this is that loading and discharging operations under the clause are being performed for the risk and expenses of the cargo interests and/or charterers.

Clause 6. Laydays, Cancelling

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the first layday date; the second brackets should include the cancelling date.

As a novel feature for SYNACOMEX, the clause incorporates parts of the BIMCO Cancelling Clause 2002 setting out a fair and balanced process to be followed in circumstances where it is clear that the vessel is running late and will miss its cancelling date. The purpose of such an interpellation provision is that the vessel shall not have to proceed on a long ballast voyage towards the loading port not knowing whether or not the charterers will accept the vessel once it has arrived. When the owners have informed the charterers that the cancelling date will be missed and provided a new date for the vessel’s expected readiness to load, the charterers have 48 hours to accept. If they do not exercise their option of cancelling, the third day after the new readiness is considered to be the new cancelling date.

Clause 7. Vessel’s Positions, Notice

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the name and contact details of the party to receive advance notices of the vessel’s expected readiness to load; the second brackets should include the name and contact details of parties who should receive information about substantial changes in the vessel’s ETA at loading and discharging ports. To avoid uncertainty about the relevant parties to be contacted, the brackets should be carefully filled in with all relevant information, including company name, contact name, email address, etc.

Clause 8. Laytime

The reference to notice of readiness being tendered “by any means of telecommunication” has been updated to “via email”.

If notice of readiness has been rejected and this is undisputed or confirmed by surveyor, laytime will only start to count after the vessel has validly tendered again when ready and any stevedores’ standby time charges incurred thereby will be for the owners’ account. The clause now specifies that owners will be liable for maximum one shift.

The laytime exceptions have been extended to also cover strong wind, swell, rain and snow, and cases of force majeure only qualify if they are confirmed by port authorities. It has been specified that these periods will be included in the statement of facts (SOF) which is to be considered in force in the charter party for the laytime calculation. Parties should be aware that this wording is open to interpretation as to whether the reference to “strong” qualifies all of the listed conditions or merely wind. Also, the reference to the SOF being “in force” may prevent owners from subsequently challenging the weather periods.

Clause 9. Demurrage, Despatch Money

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The first brackets should include the rate of demurrage payable by the charterers; the second brackets should include the amount of despatch money payable by the owners.

Clause 10. Seaworthy Trim

This clause is unamended as compared with SYNACOMEX 2000.

Clause 11. Fumigation

In view of the significant risks associated with fumigation of the cargo, this clause now includes a reference to fumigation always having to be performed in accordance with all applicable IMO Recommendations.

According to SYNACOMEX 2000, the charterers should pay “all necessary expenses” incurred because of fumigation. The reference to “necessary” expenses opens up for disputes about the costs incurred by the owners and the wording has therefore been amended to “all expenses” which is also in line with the first sentence stating that fumigation is at the charterers’ risk and expense.

It has been specified that when the cargo has been fumigated, the master should not clause bills of lading “solely” as a result of insects having been detected in the cargo prior to the fumigation. If other abnormalities with the cargo are observed, such issues should be addressed between the parties in accordance with normal practice.

Clause 12. Lights and Gear

To align the clause with other provisions in the form, it has been clarified that shore hands shall be used at the risk and expense of shippers/charterers/receivers.

It has been specified that time shall count in case of breakdown of vessel’s gear caused by shore hands and that any stevedore standby time incurred thereby shall only be for owners’ account for a maximum of one shift.

Clause 13. Agencies

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The brackets should include the name and place of business of the agents at the loading and discharging port, respectively.

Clause 14. Extra Insurance

This clause has been amended to clarify that any extra insurance shall be for the owners’ account and that charterers should provide a copy of the invoice and proof of payment of such insurance in order to be able to deduct it from the settlement of freight.

Clause 15. Brokerage

This clause has been amended to reflect that SYNACOMEX 2023 does not include a box layout. The parties should agree on the brokerage commission and to who it is payable in the two brackets. The brokerage commission shall be deductible from the freight payment, unless otherwise stipulated.

Clause 16. Address Commission

Contrary to SYNACOMEX 2000, where the amount of the address commission was left open to negotiation and the parties could specify it in a box, this clause now specifies a standard address commission of 2,5%. The address commission will vary and the parties should therefore make sure to discuss and agree a percentage in case they wish to depart from the standard.

Clause 17. ISM Clause

This clause is unamended as compared with SYNACOMEX 2000.

Clause 18. Bills of Lading

This clause is unamended as compared with SYNACOMEX 2000, except that the reference to telex has been replaced by a reference to SWIFT as this is considered the document which confirms that the transfer has been made irrevocably. 

Clause 19. Relet

This clause is unamended as compared with SYNACOMEX 2000.

Clause 20. Deviation

This clause is unamended as compared with SYNACOMEX 2000.

Clause 21. Lien and Cesser Clause

This clause reintroduces the ‘cesser’ part of Clause 21 (Lien and Cesser Clause) of SYNACOMEX 1990.  Originally deleted in SYNACOMEX 2000, regular users of the form have found that the cesser part of Clause 21, at charterers’ request, has typically been reinserted into SYNACOMEX 2000. The clause provides that the charterers’ liability ends on cargo being shipped, except for payment of freight, deadfreight and demurrage as well as any other matters provided for in the charter party where charterers’ responsibility is specified. The original deletion was made on the basis that the cesser had limited legal effect but it was felt that its reinsertion helped to clarify charterers’ legal liability.

Notwithstanding the cesser of liability in the second paragraph of the clause, owners retain their right of lien per the first paragraph and, of course, charterers retain liability for any other matters expressed to be with them under the terms of the form.

Clause 22. Penalties and/or Damages

This clause reintroduces Clause 22 (Penalties) of SYNACOMEX 1990. In SYNACOMEX 2000, the clause was removed as it was thought to be incompatible with English law principles on unenforceability of penalty clauses. Specifically, as a matter of English law, clauses that are deemed to penalise a party without reference to an actual loss or damage suffered have been held to be unenforceable.   Mindful also that the SYNACOMEX charter party is governed by French law, Clause 22 has been  reintroduced because it was felt that the clause did not unfairly penalise parties and that the calculation of any ‘penalty’ was reasoned, justifiable and ultimately pegged/limited to the “proved damages” of the injured party. The title of the clause has been amended to “Penalties and/or damages” to reflect this

Clause 23. Responsibilities and Immunities

This clause reintroduces the text of Clause 23 from SYNACOMEX 1990 and clarifies that the Hague or Hague-Visby Rules, as applicable, will apply in any case to the charter party and to bills of lading that are issued in accordance with the charter party.

The 2000 version of the form (Clause 22) was amended to provide that the Hague or Hague-Visby Rules, as applicable, would apply “except as otherwise provided and stipulated in this Charter Party”, but it was felt that this had introduced a degree of ambiguity to the applicable terms and that by removing the “except...” wording it allowed for greater clarity/simplicity. In addition, it has been acknowledged that the deletion of this wording, and reversion to the original 1990 clause, does not affect the enforceability of the obligations on charterers in Clause 5 in connection with loading, trimming, stowing, and discharging, i.e. that the responsibility of charterers as set out in Clause 5 is sufficiently clear so as to take precedence over the opposite provision at Article 3.2 of the Hague/Hague-Visby Rules.

It is important to note that in the case of a fixture concerning one of the countries that adhere to the Hamburg Rules, many of whom are active in the grain trade, charterers should be aware of  the risk that the owners may claim an indemnity from charterers for any liability owners may have to the bill of lading holder by virtue of the Hamburg Rules (which would not be the case under the Hague/Hague-Visby Rules – in consequence of a nautical error of the Master, as an example of the best known difference between both Conventions).

Such a risk is probably rare but cannot be ignored. That risk must be assumed knowingly or must be insured against if it cannot be negotiated with the owners. Some owners may accept it after they have agreed, for instance, to carry a cargo destined to Egypt, Lebanon, Morocco, or Tunisia, all signatories of the Hamburg Rules.

Clause 24. General Ice Clause

This clause has been amended by specifying that, in case the vessel is prevented from reaching the port of discharge due to ice, the options available to the receivers are equally available to the charterers. It has been clarified that any waiting time beyond 48 hours after the master or owners have given notice to the charterers that the vessel is prevented from reaching the port of discharge will count as laytime or time on demurrage.

Clause 25. Amended Centrocon Strike Clause

This clause is unamended as compared with SYNACOMEX 2000.

Clause 26. General Average and New Jason Clause

This clause now refers to the latest version of the York-Antwerp Rules 2016 which have also been endorsed by BIMCO. To avoid any misinterpretation relating to whether future versions of the YAR might be considered as modifications or amendments of the YAR 2016, the clause no longer refers to “any subsequent modification thereof” which is also in line with BIMCO’s position.

Clause 27. Both-to-Blame Collission Clause

This clause is unamended as compared with SYNACOMEX 2000.

Clause 28. War Risks (“VOYWAR 2013”)

The War Risks Clause for Voyage Chartering 2013 (VOYWAR 1993) has been replaced by the War Risks Clause for Voyage Chartering 2013 (VOYWAR 2013). Explanatory notes for this clause can be found here.

Clause 29. Additional Clauses

This clause was included in SYNACOMEX 1990 and has been introduced as it is considered useful for users to be able to make specific reference to the rider clauses attached to the charter party.

Clause 30. Sanctions

This is an adapted version of the BIMCO Sanctions Clause for Time Charter Parties 2020. The only adaptation as compared with the BIMCO clause is that subclause (e)(i) includes a mutual right for the owners and charterers, in cases where performance of the charter party involves a sanctioned part or a sanctioned activity, to cancel the charter party in cases where loading has not commenced. Explanatory notes for the original BIMCO clause can be found here.

Clause 31. BIMCO Anti-Corruption Clause for Charter Parties 2015

This is the BIMCO Anti-Corruption Clause for Time Charter Parties 2015. The explanatory notes for this clause can be found here.

Clause 32. Arbitration

This clause is unamended as compared with SYNACOMEX 2000.

Copyright and availability

Copyright in SYNACOMEX 2023 is held by SYNACOMEX and Armateurs de France.