伊朗制裁更新及IG协会在保赔险承保范围上遇到的困难

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现今国际上，美国、欧盟及联合国都就伊朗制裁问题实施各自的法律法规。原油提炼是他们最为关注的焦点问题之一。本文旨在介绍制裁中有关原油、石油及相关产品运输方面的最新进展，并尝试说明船东或租家在进行伊朗相关运输时，在保赔险下较常见的理赔困难和实务。

美国
美国实施的制裁制度较为繁重，适用于美国公民和企业，并通过 Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 法案（以下简称CISADA法案），将制裁范围扩展到非美国海事保险公司及船东。根据CISADA法案施加的制裁，可能构成对伊朗的二次制裁。若任何一方向伊朗提供精炼石油产品(RPP)，促进伊朗在精炼石油产品上的进出口能力及对伊朗石油进行投资，均可触发CISADA法案下的强制制裁。美国公民不能进行伊朗原油或精炼石油产品的贸易，也不能为该种贸易提供资金或支持。同样地，美国公民不能提供有利于伊朗原油产业的服务，包括金融服务、货物供应或技术支援等。

欧盟
欧盟第961/2010号条例已被废除，并由欧盟第267/2012号条例所取代。该新条例对涉及伊朗原油、石油产品和石化产品的运输、保险及再保险做了新的规定。条例适用于原产于伊朗的货物，如果在伊朗境外转运伊朗原油仍会受到制裁约束。制裁也适用于全球范围的运输，即运输范围并不限于欧盟。根据欧盟第267/2012号条例第11-14条的规定，除某些特定的例外情況之外，由欧盟公司拥有或经营的船舶及其业务，以及在欧盟范围内从事以上业务的非欧盟成员国的一方，将不能再向欧盟进口、购买或运输伊朗原油、石油产品及/或石化产品。

船东及租家需要注意如果在条例规定的禁止运输原油、石油产品或石化产品的日期前已签订合同，那么会员至少在执行合同20日以前需通知公司成立地的欧盟成员国主管当局。

另外，The Iran, North Korea, and Syria Nonproliferation Reform and Modernization Act of 2011 (HR 2105) 法案试图修改the Ports and Waterways Safety Act (33 USC 1221 et seq.) 法案，并提出议案称如果船只在前180日内挂靠过伊朗、叙利亚或朝鲜港口，则禁止船只挂靠美国港口。

联合国
联合国亦对伊朗实施了一系列的制裁决议，而联合国Security Council regulation no. 1929 (2010) 是最新有关伊朗核产业的立法。在某种程度上，美国和欧盟施加的制裁比联合国更为繁重，因此建议会员（受保人）确保自己遵守欧盟/美国最新制裁条例。

船东/租家可能会遇到的困难
实际上，IG协会承保船东及租家与伊朗的合法贸易。但是，在所有现存制裁制度下，对金融机构施加制裁的威胁，将使得发生保赔险索赔后，协会很难帮助船东及租家处理该索赔。船东及租家亦得不到以往在协会所能得到的协助，并且可能会在自行处理索赔的过程中遇到一定的困难。其中一个显而易见的原因是许多大的国际银行拒绝与伊朗进行贸易及禁止美元流入伊朗。

会员在进行伊朗相关运输时很可能遇到以下困难：

无法收到来自伊朗的资金(如租金、运费及货物的价格)
无法向伊朗付款(如代理费、海关费用等)
无论运输是否合法，协会将很可能无法处理涉及伊朗索赔人的索赔
无论运输是否合法，协会将不能解决涉及伊朗索赔人的索赔或向伊朗索赔人提供担保
无论运输是否合法，会员不能解决涉及伊朗索赔人的索赔，并且船舶可能会被扣押以解决该索赔案。

鉴于这些可预见的困难，在可能的情况下，很多船东会选择不从事与伊朗相关的运输，以避免触及具有广泛影响力的制裁。从船东的立场来看，可考虑在租约中附加制裁条款，将潜在的风险和责任转移到租家身上，从而保护船东的利益。而从租家的立场来看，在签订租约合同时应避免附加以下条款或对以下条款作相应的修改。以下附加条款仅供参考。

An update on Iran Sanctions and some difficulties with the P&I cover with IG Clubs

Nowadays on an international level, 3 regimes coexist imposing their respective laws and regulations on the Iran sanctions, inter alia, the United States (US), the European Union (EU) and United Nations (UN). The refining of crude oil is one of the most concerned areas under these 3 regimes. This circular aims to give an introductory update on the sanctions with regard to the trading of the crude oil, petroleum and the related goods and enhance the awareness of those not uncommon difficulties shipowner/charterers will expect to encounter in the course of conducting any trading with Iran arising out of or in connection with the sanctions regimes.

United States Sanctions (US)

The US operates an onerous sanctions regime that applies to US nationals and companies and, through its Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 (CISADA), this has been extended to non-US marine insurers and ship owners. Sanctions that may be imposed under CISADA would constitute a secondary boycott of Iran. Supplying Iran with refined petroleum products (RPP), facilitating Iran’s ability to import and produce RPP and investing in Iran’s petroleum sector could trigger the imposition of sanctions under CISADA. US people may not trade in Iranian oil or petroleum products refined in Iran, and they may not finance or support such trading. Similarly, US people may not perform services, including financing services, or supply goods or technology that would benefit the Iranian oil industry.

European Union Sanctions (EU)

The previous Council Regulation No. 961/2010 has been revoked and replaced by Council Regulation No. 267/2012. It introduces new provisions targeting the transportation, insurance and reinsurance of Iranian crude oil, petroleum products and petrochemicals. These provisions apply to cargoes originating in Iran, for example transshipment of Iranian crude outside Iran would still be subject to sanctions. Sanctions also apply for carriage on a worldwide basis i.e. carriage does not have to be to or from the EU. According to the Article 11-14 of Regulation 267/2012, subject to certain limited exceptions, Vessels owned or operated by EU companies, businesses or non EU parties conducting such business from within the EU may no longer import into the EU, purchase or transport Iranian crude oil, petroleum products and / or petrochemicals.

Shipowners/charterers should be aware that if they are contracted to transport crude oil, petroleum products or petrochemicals, before such transport is prohibited by the Regulation, then they will be required to inform the competent authority of the EU Member state in which the company is established at least 20 days in advance of execution of the contract.

The Iran, North Korea, and Syria Nonproliferation Reform and Modernization Act of 2011 (H.R. 2105), a bill which seeks to amend the Ports and Waterways Safety Act (33 U.S.C. 1221 et seq.), has proposed a ban on vessels from US ports if the vessel has called at a port in Iran, Syria or North Korea within the previous 180 days.

United Nations Sanctions (UN)

The UN also operates a series of resolution in respect of sanctions on the trading with Iran, and UN Security Council regulation no. 1929 is the latest one concerning Iran’s nuclear industry. To some extents, EU and US impose more onerous sanctions than the UN and it is recommended that the Members are to ensure the compliance with EU/US latest regulations on sanctions.

Difficulties shipowners/charterers may encounter

To all intents and purposes shipowners/charterers engaged in legal trading to Iran are held covered, but the threat of sanctions imposed on financial institutions under all the existing sanctions regimes will make it very difficult for all the IG Clubs to assist with their Owners Members when a claim comes up. Shipowners/Charterers will not have full access to the claims handling service from Clubs than they used to have. They may also encounter difficulties in dealing with claims on their side. One of the obvious reasons can be many large international banks refuse to trade with Iran and the ban on US dollars being transferred into Iran.

There are some difficulties Members are very likely to encounter when trading in or to Iran:

Unable to receive funds originating in Iran (e.g. hire, freight and the price of the goods)
Unable to pay money into Iran (in respect of agency fees, customs dues etc)
Regardless of the legality of such trading, the IG Clubs will be likely unable to handle claims involving an Iranian claimant
Regardless of the legality of such trading, the IG Clubs will not be able to settle claims involving an Iranian claimant or provide security to an Iranian claimant
Regardless of the legality of such trading, the Members may find that it is unable to settle claims of an Iranian claimant and their vessels may therefore be arrested to settle the claim.

In view of these foreseeable difficulties, many Owners are choosing not to trade with Iran if possible and avoid the wide-reaching sanctions implications; in some occasions, the addition of a sanctions clause into any charterparties may however improve the Owners’ position by shifting potential risks and liabilities on to the Charterers. However, Charterers should try to avoid the clause or to make suitable amendment to the clause when negotiating a charterparty.

Sanctions Clause for Time Charter Parties

The Owners shall not be obliged to comply with any orders for the employment of the Vessel in any carriage, trade or on a voyage which, in the reasonable judgement of the Owners, will expose the Vessel, Owners, managers, crew, the Vessel’s insurers, or their re-insurers, to any sanction or prohibition imposed by any State, Supranational or International Governmental Organisation.
If the Vessel is already performing an employment to which such sanction or prohibition is subsequently applied, the Owners shall have the right to refuse to proceed with the employment and the Charterers shall be obliged to issue alternative voyage orders within 48 hours of receipt of Owners’ notification of their refusal to proceed. If the Charterers do not issue such alternative voyage orders the Owners may discharge any cargo already loaded at any safe port (including the port of loading). The Vessel to remain on hire pending completion of Charterers’ alternative voyage orders or delivery of cargo by the Owners and Charterers to remain responsible for all additional costs and expenses incurred in connection with such orders/delivery of cargo. If in compliance with this Sub-clause (b) anything is done or not done, such shall not be deemed a deviation.
The Charterers shall indemnify the Owners against any and all claims whatsoever brought by the owners of the cargo and/or the holders of Bills of Lading and/or sub-charterers against the Owners by reason of the Owners’ compliance with such alternative voyage orders or delivery of the cargo in accordance with Sub-clause (b).
The Charterers shall procure that this Clause shall be incorporated into all sub-charters and Bills of Lading issued pursuant to this Charter Party.

(https://www.bimco.org/Chartering/Clauses/Sanctions_Clause.aspx)

In addition to the above discussion, some public-accessible websites are available in case of need for the industry news update in relation to the above-mentioned regimes and we trust this is of interest for reading.

http://www.hm-treasury.gov.uk/fin_sanctions_iran.htm (for UK and UN sanctions)
http://www.treasury.gov/resocurce-center/sanctions/SDN-List/Pages/default.aspx (for US sanction list)
http://www.hm-treasury.gov.uk/d/iranhuman.htm
http://www.hm-treasury.gov.uk/d/irannuclear.htm (for EU sanction list)