In order to encourage the application and integration of the 2011 agreement to all NYPE/Asbatime charter lots, the circular issued in May 2016 referred members to a recommended charter party clause, developed by the International Group of P-I Clubs. The principal owners have demanded that distributor owners grant a counter-guarantee in accordance with Article 9 of the ICA 2011, which they consider to be included in the charter party. Therefore, section 9 of the ICA 2011 does not apply to the charter part and charterers were not required to provide security. The decision does not affect the charterers` responsibility for the sharing and settlement of the right to cargo. The charterers, on the other hand, responded to offer them counter-security in accordance with the above conditions. The P-I Club for Charterers refused to oppose security, finding that the terms used in Article 35 of Article 35 of the charter were not sufficient to take into account the entire ICA 2011, in particular the security provisions of Clause 9. The new “security provision” is contained in Clause 9 of this 2011 agreement. Under this new provision, as soon as one of the parties to a charter party has established a guarantee for a right to freight, provided that the deadlines set out in Clause 6 of the agreement have been met, the right to guarantee is based on reciprocity. The Tribunal found that prior to the introduction of Term 9 in 2011, section 35 would have covered the interests of both parties. The recent London Arbitration Award 18/18 highlights the need to take into account the exact wording of the clauses used in the chartered lots to include the Inter-Club New York Produce Exchange Agreement 1996, as amended in September 2011 (“ICA 2011”). The owners submitted that the conditions were clearly intended to take into account the full conditions of the ICA 2011 with respect to liability for cargo claims. The charterers argued that the text of Article 35 did not contain the full text of the ICA 2011. The charterers invoked a restrictive interpretation of the terms “responsibility” and “division/settlement” of section 35, so that only the parts of the 2011 ICA relating to the allocation and settlement of claims were included in the Charter.
Security rules would not be included. “Freight claims between owners and charterers are fully regulated, secured, shared and paid in accordance with the provisions of the Inter-Club New York Produce Exchange Agreement 1996 (as amended in 2011) or subsequently amended or replaced. This clause prevails over all other clauses or clauses of this charter party that purport to include any other version of the Inter-Club New York Produce Exchange Agreement in this charter party.Â The court agreed with the charterers that the charter party included, strictly constructed, only the parts of the 2011 ICA regarding the allocation and processing of freight rights. The wording of section 35 was clearly restrictive and did not provide security for claims. In the absence of explicit wording containing the full provisions of the ICA, their full inclusion could not be accepted. As a result, the International Group amended the wording of the recommended Charter clause, adopted in 2016, to reflect this recent conclusion and to end the 2011 security requirement.