2021-01-27
764 Transparency and Dialogue between Owners and Charterers Key to Crew Change Challenge
网络示意图
Overview简介
World trade has to flow - we get that. Charterers have contractual obligations under short term spot charters that sometimes leave little room for delays - we get that too. Owners are responsible for managing and relieving their crews - that's not in doubt either. But what we don't accept is that a minority of charterers may simply be looking the other way when they are presented with a ship that also happens to be in need of a crew change. We don't expect charterers to foot the bill and we recognise that hiring ships is a matter of commercial negotiation - but we see no reason why charterers and owners should not have an open and honest dialogue to try to find a solution for much needed crew changes.
全球贸易必须往来——这我们知道。承租人在即期短租下承担的合同义务鲜有延迟的空间——这我们也知道。我们还知道，出租人有义务管理、更换船员。但我们不能接受的是，少数承租人在船舶交付时故意无视船员换班的需求：并不是说承租人需要全部买单，毕竟租船行为本质是商务谈判，但不代表承租人和船东不该进行开诚布公的对话，就船员换班的需求寻求合适的解决方案。
Shipping is essentially a marriage between the commercial interests of charterers who hire ships to transport cargoes, and shipowners who operate ships for commercial gain. The relationship between owners and charterers is governed by freedom of contract – the ability to freely negotiate contractual terms based on each parties’ respective commercial bargaining power. Charterers cannot easily force onerous terms on unwilling owners, but they can clearly state what ships they will not consider hiring even before negotiations begin. It is this aspect of charterers setting pre-contractual “requirements” that BIMCO has seen in relation to the crew change crisis.
航运的本质是双方的“配对”——承租人通过租船运货、船东通过船舶运营从而分别获求商业利润。双方关系受合同自由的约束，也即双方可以根据自身谈判力，对合同条款自由协商。出租人不能轻易将繁苛的条款施加于“说不”的船东，但他们可以在开始协商前明确说明不予考虑的船舶类型。而BIMCO所关注的船员换班危机，正是承租人订约前的要求有所关联。
Feedback from our members indicates that in certain trades – notably dry cargo – some charterers are pushing back on ships that have had or will have a crew change within 14 days of the proposed date for delivery, or whose owners are planning a crew change during the voyage. Without condoning this practice, these restrictions seem to be mainly applied to spot charters – single voyages usually of fairly short duration where the owners will generally know in advance the intended ports of call. A COVID-19 related delay on such a short voyage may have a significant impact on the commercial and contractual obligations of the charterers.
从我们的会员反馈中，我们获悉在部分贸易板块，尤其是干散货领域，一些承租人拒绝接受在约定交付时间的14天内已经或需要进行船员换班的船舶，或者船东有意在航程中更换船员的船舶。先不论对错，此类问题主要发生在即期租船的情况下，因为单航次通常为期较短，而且船东一般会提前知晓船舶的挂靠港。在如此短的租期中，COVID-19导致的相关延迟会对承租人的商业和法律上的双重义务造成严重后果。
Longer term “period” time charters lasting many months or even over a year and where the ports of call are broadly encompassed by “worldwide trading” require a more pragmatic approach by charterers. BIMCO’s COVID-19 Crew Change Clause was developed specifically for such longer-term time charters. It encourages a sensible cooperative approach between owners and charterers to find a solution to the crew change issue. That solution may include charterers agreeing that owners can direct the ship to a place where the crew change can be done, if crew changes are prevented at the intended ports of call.
而承租人面对更为长期（比如数月或数年）的期租，且挂靠港口的范围只能笼统概括为全世界的范围内，需要采取更实际的措施。BIMCO的COVID-19船员换班条款就特别适用于此类长期租船合同，以鼓励双方就该问题合理寻求解决方案，可能包括在意定的挂靠港不支持船员换班的情况下，承租人同意船东指定船舶前往另一地。
Clause prompts dialogue
船员换班条款促进双方商谈
But even if agreeing to deviate the ship is not possible, the Crew Change Clause still has an important role to play in getting owners and charterers to start a dialogue about essential crew changes under difficult circumstances. Let’s not forget that the crew change crisis is a humanitarian issue caused by the travel restrictions imposed as a result of the pandemic – there is no room for political posturing by countries using COVID-19 as economic leverage.
但即使双方无法同意让船舶进行绕航，船员换班条款仍可发挥重要作用，促使船东和承租人在困境中就船员换班这一重要问题展开对话。我们要牢记，船员换班问题是由于疫情和旅游限制所造成的人道主义问题，不该沦为各国政府利用疫情作为经济杠杆的政治工具。
There is no one-size fits all contractual solution that will fix the crew change crisis. The BIMCO Clause will help in some situations where the contracts are for prolonged periods of time and where ports of call are not known at the time of fixing. Even where owners and charterers can’t agree on including the clause in their contracts, the process of negotiation will start an important conversation that will hopefully lead to a solution.
目前，业内并没有针对船员换班的万灵药。BIMCO条款将适用于合同租期延长和合同订立之初挂靠港未知的情况。即使双方不同意并入该条款，协商本身也有可能成为寻找方案的良好开端。
We cannot emphasis enough the importance of good dialogue. Owners should clearly explain to charterers their crew change plans and procedures and being open about any possible risk of delays. Charterers should respect that owners have been put in this situation by circumstances way beyond their control. It is only by working together with charterers that owners will be able to continue to provide the sustainable transportation services on which charterers are wholly reliant.
双方的有效沟通实在是重中之重。船东应明确向出租人解释换班计划、过程，并坦诚可能导致的延误。承租人也应认清局势并非船东所能控制。只有双方合作，船东才能倚赖承租人并提供可持续运输服务。
来源：BIMCO上海
