As a result of the unfortunate war between Russia and Ukraine, problems arise regarding how the vessels in or about to enter the territorial waters of those countries should act. In this article, we would like to summarize the effects of this war on contracts and actual situations for you.
1. WHAT WILL BE THE STATUS OF THE VOYAGE CHARTERPARTY DURING WAR?
Firstly, the contractual provisions related to the subject voyages have great importance in this matter. Mostly, all the standard contracts of voyage charterparty contain War Risk and Force Majeure clauses. According to general norms accepted due to the standard contracts, the Carriers have the right not to sail to the ports located at the war territory.
In addition, it is stipulated in such contracts that the Carriers shall not be liable for the possible damages. Especially in the war clauses of Conwartime and Voywar, the Owner is entitled to take the security precautions and not to proceed to the voyage in case of war risk. The charter parties for tankers, such as Shelltime and Shellvoy, being more restricted regarding war risks, give the right not to proceed to the voyage.
2. WHAT WILL BE THE STATUS OF THE TIME CHARTERPARTY AND BAREBOAT CHARTERPARTY DURING WAR?
The provisions regulating legal relations between the parties should be reviewed in time charterparties and bareboat charterparties as reviewed in voyage charterparties. Firstly, the obligation of notification of the parties to each other has great importance. In this context, if the Carrier or the Master is of the view that the Ports are "unsafe" and has good reasons supporting that, the Carrier or the Master should notify the Charterer in due course ("unsafe port declaration"). As per the obligation of notification, the Carrier may request the Charterer to notify a "safe port" upon granting the Charterer with an extension of time. In the case of a dangerous delay, the Master has the right to sail the vessel into the nearest safe port.
The vessels sailing regularly between two ports should beware of their contracts considering the above-mentioned provisions and the subject contract may be terminated bilaterally or unilaterally if their provisions do not allow to appoint a safe port.
3. IS IT POSSIBLE TO CONSIDER THE PORTS OF UKRAINE AND RUSSIA AS SAFE PORTS? WHAT IS THE FINAL STATUS OF THE PORTS?
When the current situation is examined and we have reviewed it as per previous decisions rendered by the British and Turkish Courts, the view that Ukraine Ports cannot be regarded as safe ports is predominant. Considering Russia and Ukraine's declarations stating that their territorial waters in the Black Sea and the Sea of Azov are not safe ports, it seems hard to classify the ports of the subject countries as safe ports.
While issuing this newsletter, The Russian Ports are still operating, however, the Kerch Strait has been closed. After especially the ports in Azak Region; Mariapul, Berdiyansky, Odesa, and Chernomorsk Ports had been closed firstly, all Ukraine Ports has been closed. It is reasonable for the vessels already in those ports to depart.
4. IF THE VESSELS ARE STUCK IN ANY PORT OF UKRAINE OR RUSSIA DUE TO WAR, WHO/WHOM SHALL BE LIABLE FOR THE CONSEQUENCES OF IT?
In case the vessel is stuck in the port of Ukraine or Russia due to the war, the contracts signed between the charterer and carriers should be reviewed carefully. In this situation, force majeure and war clauses should be read carefully. If the situation of being stuck may be considered as force majeure, whether the required notifications have been rendered should be paid attention to. However, possibly, it is the major point to determine whether the vessel's being stuck in the said ports breaches the obligation of the vessel to sail between safe ports. If there is a breach of the obligation to sail between safe ports, the obligor (bareboat charterer, time charterer, the owner, commercial manager) shall be liable for the damages.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
