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”). 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. “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. Inter-Club New York Produce Exchange Agreement 1996 (91 KB) The new “security provision” is contained in Clause 9 of this 2011 agreement. “P-I Club/Cargo Ansprich ” … Responsibility for cargo claims between charterers and owners will be distributed and settled in accordance with Interclub New York Produce`s 1996 exchange agreement and subsequent amendments. As the new agreement will come into effect on September 1, 2011, we recommend that you include it in all NYPE and Asbatime charter lots. 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. Flawless Liability under the Inter-Club Agreement (“ICA”) The objective of the ICA is to avoid lengthy and costly liability and distribution disputes, and instead to ensure a “gross and finite” distribution of liability between the parties. Clubs recommend that their members accept the agreement for the allocation of liability for cargo claims that arise in the context, initially or in connection with all parties to the charter on Form NYPE 1946 or asbatime Form 1981, whether or not that agreement was included in these charter parties. Unless the ICA is expressly included in the charter part, it cannot be applicable.
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 Tribunal found that prior to the introduction of Term 9 in 2011, section 35 would have covered the interests of both parties. 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.