Explanatory notes

BIMCO has revised its EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties first issued in 2011.

Background

The EU Advance Cargo Declaration Clauses were drafted to meet the requirements of the new European Union customs legislation that came into force on 1 January 2011 – the EU Advance Cargo Declaration Regulations.

During the past year BIMCO has received some useful feedback from users, based on their own experiences on how the Clauses might be improved. Furthermore, the export procedure which was unclear at the time of drafting has now been refined. BIMCO therefore decided to undertake an early revision of these Clauses and the result is the attached EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties 2012.

The objective of the Clauses remain unchanged, namely to assist owners and charterers in meeting the EU customs legislation requirements of submitting advance cargo declarations for import and export cargoes as well as cargoes passing through EU ports or places in transit.

Explanatory Notes

The following notes highlight and explain the differences between the revised EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties and the original version of the Clauses:

Transit Cargoes
Shortly after the entry into force of the EU Advance Cargo Declaration Scheme it became clear that the Rules also applied to cargoes entering the EU in transit. BIMCO promptly developed an additional recommended wording to take transit cargoes into account and this wording has now been incorporated into the Clauses.

The “carrier”
The Clauses previously obliged the charterers (for time charter parties) and the owners (for voyage charter parties) to undertake the role of carrier for the purposes of the EU Advance Cargo Declaration Regulations. The EU Regulations, however, do not refer to “carrier” in the same way as the US AMS requirements, but refer instead to “Economic Operator”. Rather than introducing a new term, the Clauses have been amended to require the parties to comply with the Regulations for the purposes of the Clause.

As a consequence of the above amendment, the sub-clauses distinguishing between “the role of carrier” under the Clause and “carrier under any bill of lading, other contract, law or regulation” are no longer relevant. They have been deleted.

Cargo Procedures
Provisions relating to export cargoes have been drafted. It should be noted that the export procedure is not the mirror of the import procedure and only in some circumstances can a summary declaration for export be submitted. The legislation requires all customs related documents to be posted electronically but also allows individual customs authorities to permit the use of paper documents.

In the context of the time charter party clause, it is the charterers’ responsibility to fulfil the necessary regulatory and administrative requirements. Charterers must provide owners with a copy of declarations submitted to customs authorities.

The voyage charter party version of the Clause has been completely restructured with owners’ and charterers’ separate liabilities and obligations set out respectively at sub-clauses (b) and (c). Owners are responsible for import (which includes transit cargo) declarations. However, given that charterers must comply with procedures and complete the necessary documentation for export cargoes and are therefore in the best position to pass information in the appropriate format to the relevant authorities, responsibility for export declarations now rests with charterers.

Consequential Loss and/or Damage
The liability provisions have been amended to exclude consequential loss and/or damage. This is because the consequences of including liability for consequential damage were considered to be disproportionate to what could be the result of a very minor occurrence, such as a clerk forgetting to file the relevant papers.

Originally published in BIMCO Special Circular No. 3, 24 July 2012 - EU Advance Cargo Declaration Clauses for Voyage and Time Charter Parties 2012