BIMCO：不可抗力条項2022

2022年初め、BIMCO（ボルチック国際海運協議会）は独立型の不可抗力条項を発行しました。世界で極端な出来事や事例が増加する中、契約違反による係争回避のため、包括的な不可抗力条項の必要性が高まっています。

Earlier this year, BIMCO issued a standalone Force Majeure Clause. With the increase in incidents of extreme events worldwide, parties have an increasing need for a well drafted comprehensive force majeure clause to provide a mechanism for avoiding breach of contract disputes. The BIMCO clause encourages parties to collaborate and to cooperate in finding alternative ways to deal with whatever unexpected events that are encountered. Termination of the contract should be a last resort.

Sub-clause (b) (Force Majeure Events) sets out a detailed list of what is regarded as Force Majeure Events under the clause. Para (b)(x), "any other similar event or circumstance unless caused by negligence of the Affected Party", seeks to capture other events similar to those listed in the clause but which were not in the minds of the parties at the time of negotiating the contract. 

The BIMCO clause is a model clause. This means the clause should not simply be inserted into a contract without first carefully reviewing it in the context of the other clauses in the contract. An example given in BIMCO's explanatory notes is, "if the contract already includes a clause specifically dealing with piracy, the parties should consider deleting piracy from the list of Force Majeure Events in the BIMCO clause before the clause is inserted".

BIMCO additionally urges caution when including the clause in a period time charter party with a broad trading area, the reason being "that the charterers under a time charter party are entitled and obliged to provide orders for the ship's employment. If the charterers order a ship to a place where a force majeure event occurs, the charterers will normally be able to resolve the force majeure by finding alternative employment for the ship".  

The BIMCO Force Majeure Clause 2022 is now available to download on BIMCO's website.