Refer to the latest newsletter by the Charterers P&I Club, there had Special Circular issued by BIMCO in January 2010 introduces the Stowaways Clause for Time Charter Parties 2009(referred to below as the “2009 Clause”) to revised its 1993 version.
The 2009 Clause aims to the problem on recently increasing in stowaway related cases.

Compare the 2009 Clause with the 1993 Clause, whilst the 2009 Clause is more simplified than the 1993 Clause and re-divides responsibility between owners and charters, but in which the apportionment of liabilities lead more towards to the Charterers than before. This turns out that it is much easier for owners to pursue recourse actions against charterers, whom are now strictly accountable to owners for all losses, liabilities, damages and expenses when the problem occur.

The 2009 Clause mentions more responsibility on the duty of preventing the stowaways to the Charterers. The due diligence requirement is now substituted by a strict liability/fault, which contrasts with the 1993 Clause when face to same question, whether it well exercised by the Charterers or not. The original wording placed responsibility on the charterers only in circumstances where stowaways had gained access to the vessel by concealing themselves in the cargo (including containers).

The Charterers P&I Club provided a suggested clause as set out below, such context may achieve a better balance on commercial negotiations between parties.

STOWAWAYS CLAUSE FOR TIME CHARTERS

1.  (i) The Charterers shall exercise due care and diligence in preventing stowaways from gaining access to the Vessel by means of secreting away in the goods and/or containers shipped by the Charterers.
(ii) If the Owners are able to establish that through the lack of due care and due diligence by the Charterers stowaways have gained access to the Vessel by means of secreting away in the goods and/or containers shipped by the Charterers, this shall amount to a breach of charter for which the Charterers shall be liable and hold the Owners harmless and keep them indemnified against all claims, costs (including victualling costs for stowaways whilst on board and repatriation), losses (but excluding consequential loss, damages, expense or delay), fines or penalties which may arise and be made against them. The Vessel shall remain on hire for any time lost as a result of such breach.

2.  If stowaways have gained access to the Vessel by means other than those referred to in sub-clause a) above, all costs (including victual-ling costs for stowaways whilst on board and repatriation), expenses, fines or penalties shall be for the account of the Owners who shall hold the Charterers harmless and keep them indemnified against all claims, costs, losses (but excluding consequential loss, damages, expense or delay), fines or penalties which may arise and be made against them. The Vessel shall remain off hire for any time lost.

3.  Notwithstanding the contents of sub-clauses a) and b) above, should the Vessel be arrested as a result of stowaways having gained access to the Vessel, the Owners shall take all reasonable steps to secure her immediate release by putting up bail or other acceptable security.

Although the 2009 Clause seem to be replace the weight between owner and charterer, but both the 2009 Clause and the suggested clause above still need be reviewed by actual practice. Before the new clause well-accepted by the market, we do recommend the charterers may remain to apply 1993 clause when dealing with owners or require securing a fixture if the 2009 Clause include.

In the event that an Assured is compelled to accept the 2009 Clause; then until further notice it is hereby agreed that the reference to the 1993 Clause under Clause 11 Section 14 (Stowaways) of the Charterers P&I Club 2010 Terms and Conditions is deemed to include the revised 2009 Clause i.e. cover remains in force as per the Terms and Conditions.

We will provide the latest information on its development.

Thank you.