BIMCO's Special Circular No. 3, which focuses around hull coatings, was released earlier this week.

The reasoning behind the clause was to “transfer hull cleaning obligations to charterers where, as a result of their trading requirements and employment orders, a vessel is subject to a prolonged period of idling in port or at anchorage that results in fouling of the hull and underwater parts to an extent that may affect vessel performance,” the Circular explained.

Previously, hull cleaning responsibilities were solely that of the owner of the vessel; however, these regulations were devised prior to the advent of global overtonnage and slow-steaming, and were not designed to take into account these market conditions.

Many hull coatings – especially biocidial release coatings – depend on an optimum speed in order to be effective. However, if this optimum speed is not reached, or if the vessel is in fact docked and idle for long periods of time by the operator who sees it is more profitable to operate on a reduced service, significant biofouling can occur.

“While hull fouling itself is not a new issue, what we are facing at present is an apparent increase in the amount of time ships are lying idle in ports and anchorages on the orders of time charterers. While the responsibility for maintaining the good order and condition of a vessel naturally lies with the shipowners, there comes a point when this excessive ilding time in port may result in marine growth on the hull and underwater parts of the vessel that will have an impact on the vessel’s speed and fuel consumption,” said Grant Hunter, Chief Officer Legal and Contractual Affairs at BIMCO, speaking exclusively to Fathom.

The owner would then have been in a position in which, due to the decisions and economic pressures of the operator, he or she would have to clean the hull more often, which is expensive in both the short and long term.

Whilst hull cleaning has immediate cost saving benefits and mitigates the owner's obligation to the operator to offset the additional biofouling-related fuel consumption, each time the hull is cleaned it carries risks to the integrity of the paint surface, thereby possibly leading to future biofouling and an eventual re-painting of the hull (for which presumably, the owner would have to bear the costs).

“If [biofouling during long periods of idleness] occurs, then the normal position under most time charters is that the charterers can make a claim for underperformance. We see this as unfair as the root cause of the marine growth affecting performance is compliance with the charterers’ orders which have led to the long period of idelness,” Hunter explained.

To even out the disadvantage that contemporary shipping conditions unintentionally pose to ship owners, BIMCO's new requirements differentiate between the types of waters in which the vessel will be operating, whether tropical and seasonal tropical waters (which are generally more aggressive) or outside of those areas.

However, although BIMCO recognises the difference between the two areas, there is no actual differentiation from a regulatory standpoint – regardless of the location, BIMCO stipulates that “the parties are free to agree the number of days idling to apply in each area before the clause takes effect. If the parties fail to agree then 15 days will apply by default.

BIMCO advises that when deciding the time period, to take into account “the quality and type of paint used on the vessel in question and number of days that the paint manufacturer will guarantee in respect of hull fouling; the vessel’s intended trading area and the climate at that time of the year; and the fact that frequent and excessive cleaning is likely to reduce the effectiveness of the protective coating that prevents fouling.”

During that agreed time period, liability for the state of the hull stays with the owner. After that period however, liability now switches to the operator, who will then be responsible for covering hull inspection and cleaning expenses which should be completed prior to redelivery to the owner.

If the owners refuse to give their permission for cleaning to be carried out after the docking period however, then the speed and consumption warranties will be reinstated from the time of the owners’ refusal.

The amendments are “a fair and balanced division of responsibilities and we are confident that use of our clause will help reduce the number of disputes on this issue,” Hunter asserted.