Circular No. 2/97 - Expiration of TOVALOP - Charter Party Amendments
To: All Tanker-Owning Members of the Association
February 11, 1997
Dear Member; Circular No. 2/97
Expiration of TOVALOP - Charter Party Amendments
Exxon has proposed the following amendments to EXXONVOY 90 to take effect upon the expiration of TOVALOP on February 20, 1997.
1. Notwithstanding anything to the contrary in this Charter, there shall be no obligation upon the Owner or the Vessel to be a participant in the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution dated January 7, 1969 as amended ("TOVALOP"). Owner, however, warrants that it is a Member of the International Tanker Owners Pollution Federation ("ITOPF") and that Owner will retain such membership during the entire period of the services of the Vessel under this Charter.
2. The following changes are incorporated into EXXONVOY 90 Part II printed form upon the termination of TOVALOP.
a) Clause 4(c) line 72 - Delete "(including TOVALOP obligations)"
b) Clause 33(b) shall be deemed deleted in its entirety.
c) Clause 27(b)(iii) lines 537 through 640 - The language quoted in (i) below shall be deleted and be replaced with the language quoted in (ii) below.
(i) "(except that any payment made by Carrier to Charterer pursuant to Clause 33(b) or to a Government or others to "remove" oil or a "threat of oil pollution" as defined in TOVALOP, as well as any other payments, with respect to Vessel or Owner*s liability for Oil Pollution damages, shall not be deemed to be General Average sacrifices or expenditures)."
(ii) "(except that any payment made by Carrier to Charterer or to a Government or others for "pollution damage" and/or "preventive measures" as defined in the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage and any amendment thereto, as well as any other payments, with respect to Vessel or Owners liability for Oil Pollution damages, shall not be deemed to be General Average sacrifices or expenditures)."
The International Group of P&I Clubs (through its Pollution Sub-Committee) has reviewed the proposed changes and found them unobjectionable except for the proposed change to Clause 27(b)(iii). It is recommended that tanker owners using EXXONVOY 90 seek to amend Clause 27(b)(iii) either by:
1) providing that General Average shall be adjusted in accordance with York-Antwerp Rules 1994 and deleting the above material in parenthesis in Clause 27(b)(iii); or
2) making the following revisions to the proposed Clause:
General Average shall be adjusted, stated and settled according to York/Antwerp Rules 1974, as amended 1990, and, as to matters not provided for by those Rules, according to the law and usage at the port of New York (except that any payment made by carrier to charterer or to a Government or others for "pollution damage" and/or "preventive measures" as defined in Clause 6(a) of the 1992 Protocol to the International Convention on Civil Liability Convention for Oil Pollution Damage and any amendment thereto, as well as any other payments, with respect to Vessel or Owners liability for Oil Pollution damages, shall not be deemed to be General Average sacrifices and/or expenditures). If a General Average statement is required, it shall be prepared at such port by an Adjuster from the port of New York appointed by the Carrier and approved by Charterer of Vessel. Such adjuster shall attend to the settlement and the collection of the General Average, subject to customary charges. General Average Agreements and/or security shall be furnished by Carrier and/or Charterer, and/or owners and/or consignee of cargo, if requested. Any cash deposit being made as security to pay General Average and/or salvage shall be remitted to the Average Adjuster and shall be held by the Adjuster at the Adjuster*s risk in a special account in a duly authorized and licensed bank at the place where the General Average statement is prepared.
These comments accord with the Group's position expressed when the York-Antwerp Rules were last amended that measures taken to prevent the escape of oil or other pollutants should be included in General Average.
Apart from the difference of opinion over General Average, the changes proposed by Exxon to its charter party form could be taken as a guide to the changes which need to be made to most forms.
Shipowners Claims Bureau, Inc., Manager
for THE AMERICAN CLUB
Joseph E.M. Hughes
Chairman & CEO