On 15 October 2015, a new version of the popular NYPE charter form was issued jointly by ASBA, BIMCO and SMF.
The “NYPE 2015” form is officially dated 3 June 2015. It is substantially longer than previous editions, running to 57 typed clauses across 32 pages, together with a four-page form requiring a detailed description of the chartered vessel. Whilst parts of it will be familiar to those in the shipping industry, the new form has some surprises in store for owners and charterers.
Though hot off the press, the following changes have already caught our eye:
- A key change is the introduction of a right to damages in the event of a withdrawal for non-payment of hire. During the consultation phase for the new form, the authors’ stated intention was to make clear that payment of hire is a condition of the contract. But Clause 11 of NYPE 2015 does not say this explicitly. There may be some debate as to whether Clause 11 provides an owner with an adequate remedy where a vessel is withdrawn under a profitable charter in the absence of a renunciation by the charterer.
- A new right to suspend performance under the charter has been introduced at Clause 11. It is not explicitly stated under NYPE 2015 whether an owner must first gave an ‘anti-technicality notice’ before exercising its right to suspend performance.
- NYPE 2015 contains bunkers provisions at Clause 9 running to two and a half pages. Owners and charterers will need to consider these new provisions carefully when concluding a fixture on the new form.
- There are detailed changes to the speed and performance regime at Clause 12. Charterers can now rely on a performance analysis conducted by their chosen weather routing company. Clause 12 provides that speed and performance disputes are to be settled by “an independent expert or alternative weather service selected by mutual agreement” though, as a matter of English law, that provision would be meaningless where the parties fail to agree on the identity of an expert or weather service. In such a case, the dispute presumably would still need to be referred to arbitration. Clause 12 also allows an off-setting of costs saved against time lost and vice versa.
Whilst NYPE 2015 might look and feel familiar at first glance, in many ways it presents a radical departure from previous editions of the NYPE form, including the popular NYPE 1946. Owners and charterers will want to carefully consider the revised form before they choose to use it.