Due to the fact that standard charterparties do not contain clauses specifically drafted to deal with Ebola-affected ports, fever and epidemic clauses can be drafted. However, where they are absent from a charterparty there are a number of issues that can arise, according to UK think-tank Gray Page.
“The general rule is that the Master is obliged to follow charterers’ orders – and a charterer is to pay hire continuously through the charter period. Whilst the Safe Port warranty generally relates to the safety of the vessel and cargo, an unacceptable risk to crew may render the port unsafe. Nevertheless, the presence locally of Ebola may not render a port unsafe per se, particularly if there is to be no direct physical contact between the crew and persons at the port,” the think tank explained.
As a result, charterers’ primary obligation is to nominate a port which is prospectively safe. If the port becomes unsafe after nomination, owners and charterers may wish to check whether the charterparty has a Liberty clause which may be invoked.
Speaking of potential delays at both Ebola-affected ports and for vessels arriving at other ports after calling at Ebola-affected ports, the think-tank said that there is a risk that a vessel could be placed off hire if it is quarantined prior to being allowed entry to a port.
“Therefore, Quarantine and Free Pratique clauses should be examined as they may affect both the commencement of Laytime and the giving of Notices of Readiness.”
Contingency Planning
As stressed by Gray Page, it is essential for any owner, operator or manager with vessels trading to ports in Ebola-affected countries (or even passing by them), to have a plan of action for certain contingencies:
- A crew member presents with symptoms indicative of Ebola while at sea after a port call in an Ebola-affected country – or while alongside in an Ebola-affected country.
- A supernumerary presents with symptoms indicative of Ebola while at sea after a port call in an Ebola-affected country – or while alongside in an Ebola-affected country.
- A vessel needs to deviate to a port in an Ebola-affected country in emergency circumstances (Port of Refuge, major medical incident not Ebola-related).
- A vessel is quarantined at a port following a previous call at port in an Ebola-affected country because one or more crew suspected of having contracted Ebola.
Plans should identify the roles, and delineate the responsibilities of, those responding to any such eventualities, as well as establishing:
- Points of contact for relevant national/local authorities (health, port, diplomatic, law enforcement)
- Identification of correspondents, enablers and subject matter experts (locally and internationally)
- Priorities for allocating resources and applying them
Gray Page forecasts that the shipping industry should expect Ebola outbreak in West Africa to be having an impact on operations deep into 2015.
“Fortunately, the risks to crews of contracting Ebola are extremely small if common sense precautions are taken. Unfortunately, contractual disputes between owners, charterers, shippers and receivers are an almost inevitable consequence of the growing restrictions on ships trading to and from ports in Ebola-affected countries,” the organization concluded.
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