Explanatory notes

Background

The safety implications of loading bulk cargoes that may be subject to liquefaction or dynamic separation under the International Maritime Solid Bulk Cargoes (IMSBC) Code have been well publicised. Carriage of iron ore fines, nickel ore and bauxite has been a matter of particular concern. In many cases, and sometimes under extreme pressure or intimidation, shipowners and their representatives have been denied the opportunity to sample cargoes for moisture content prior to loading. In order to respond to this unsatisfactory situation, the International Group of P&I Clubs initiated a proposal for BIMCO to produce a charter party provision to address the issues. BIMCO and the International Group subsequently worked together and have developed an industry standard clause. BIMCO recommends the incorporation of the standard clause into time charter parties that allow for the carriage of solid bulk cargoes that may liquefy or dynamically separate and in voyage charter parties fixed for such cargoes.

Summary of main features

The key issue is that if solid bulk cargoes prone to liquefaction or dynamic separation are to be loaded then, in accordance with the IMSBC Code and sufficiently in advance of loading, charterers must provide owners with shippers’ written evidence that the moisture content does not exceed the Transportable Moisture Limit (TML). The clause further provides a regime for owners to take and test samples prior to loading and gives the Master rights to require cargo to be made safe, offloaded and replaced or refuse to sail if he considers it to be hazardous to the vessel and crew. Charterers are responsible for all costs and claims arising out of their failure to comply with their obligations.

Detailed provisions

Sub-clause (a) sets out charterers’ overriding obligation to ensure that all solid bulk cargoes presented for carriage are in compliance with all applicable international regulations, including the IMSBC Code.

Sub-clause (b) addresses the specific issue of solid bulk cargoes that might liquefy or dynamically separate. Prior to the commencement of loading, charterers must provide the Master (or his representative) with documented information in accordance with the IMSBC Code. This includes a certificate of the Transportable Moisture Limit (TML) and declaration of the moisture content. Under the IMSBC Code, moisture samples must have been taken no more than seven days in advance of loading but in the event of any change (for example heavy rain) within that period, re-certification will be necessary.

BIMCO recommends the parties to consider, if relevant to the cargo, adding “or dynamically separate” after “liquefy” in order to cover Amendment 06-21 to the IMSBC Code incorporating this phenomenon of dynamic separation.

Sub-clause (c) the first paragraph gives owners the right to take cargo samples before loading commences, if requested acting jointly with the charterers, for testing at an independent laboratory nominated by owners. The costs and time used are for charterers’ account. Difficulties have occurred where a Master or agent has been denied access to cargo stockpiles ostensibly on health and safety grounds. The final sentence expressly provides that a Master or representative shall be permitted unrestricted and unimpeded access to cargo for sampling purposes. In practice, this may mean that cargo samples are provided from the shippers’ conveyor belt.

The second paragraph sets out the options, by reference to the Master’s “sole discretion using reasonable judgement”, if he considers that there is any risk, not only due to liquefaction, or dynamic separation, if applicable, to the vessel, crew or cargo. In such circumstances he may refuse to accept or load cargo or sail and may call for replacement cargo.

Sub-clause (d) sets out liability and indemnity provisions holding charterers responsible for all losses, costs, expenses and liabilities arising from their instructions or failure to comply with their obligations.

Sub-clause (e) is a clear statement that the clause does not affect charterers’ obligations under the charter party and that the Master’s or owners’ compliance with any of the provisions in the clause is not a waiver of owners’ rights.

Originally published in BIMCO Special Circular No. 4, 25 July 2012 - BIMCO Solid Bulk Cargoes that can Liquefy Clause for Charter Parties. These Explanatory Notes were updated on 7 June 2023.