“seaworthy and in every way fit to be employed for the intended service,” because
everyone (or perhaps that should be “everyone”) knows that it means the same thing.
However, the antique language of the 1946 form is merely the tip of the iceberg in
relation to its anachronistic deficiencies. The 1946 version of the form is woefully
deficient in other respects, particularly when compared with its very comprehensive
2015 successor. As noted above, it makes no provision for any of the features of
modern shipping practice that are incorporated into the 2015 form. To take just one
timely example, the 1946 form imposes on the ship’s master the traditional obligation to “prosecute. . .voyages with the utmost despatch”.
37 It would be a breach of
that obligation for the master to accept orders from the time charterer to proceed at a
reduced speed in order to save on bunker consumption, or to arrive in port at a
specified time. Because it is increasingly common in practice for charterers to want
to give such orders, NYPE 2015 includes a slow steaming clause.
38 Without such a
clause, the charterer would not be able to give such an order, and the master would
not be able to follow it if given, because the ship might then be held liable to the
holders of bills of lading for failure to carry their cargo with the “utmost despatch”.
39
Similarly, and perhaps surprisingly, given that the 1946 form was issued just
1 year after the end of World War II, it contains no war risk clause. Modern war risk
clauses such as BIMCO’s Conwartime 2013 are elaborate affairs, including a
lengthy definition of “war risks” that includes many items, such as “acts of terrorists”, that do not qualify as “war” in the strict sense, and also making precise
provision for the respective rights and obligations of the parties in the event that
the vessel’s service is affected by the kind of hostile action that is all too common in
modern shipping practice. Unless the parties incorporate such a clause into their
NYPE 1946 by reference, any disputes about losses suffered as a result of war risks
must fall to be determined by reference to clauses not designed specifically for that
purpose.
It might be responded that it is easy to customize the NYPE 1946 form by
incorporating “stand alone” clauses such as Conwartime or others drafted by
BIMCO or (for tankers) Intertanko. That is true, but why would anyone put
themselves to the trouble of doing so, when it is not necessary? Would brokers
fixing a charter on the 1946 version of the form even be aware of all the modifications that need to be made to the form to make it ready for use in the twenty-first
century? To take a small but telling example, the 1946 form provides for general
average to be adjusted by the York-Antwerp Rules 1924. As noted below,
40 the
York-Antwerp Rules have been modified six times since 1924—good luck trying to
find an average adjuster who would now be able to follow the 1924 version of the
37 NYPE 1946, cl. 8.
38 NYPE 2015, cl. 38.
39 The “slow steaming” clause in NYPE 2015 includes an obligation on the charterer to incorporate
the clause into sub charters and contracts of carriage issued pursuant to the charter, and to indemnify
the owner against any consequences of its failure to do so: see NYPE 2015, cl. 38(f).
40 See Sect. 5 below.
160
M. Davies
everyone (or perhaps that should be “everyone”) knows that it means the same thing.
However, the antique language of the 1946 form is merely the tip of the iceberg in
relation to its anachronistic deficiencies. The 1946 version of the form is woefully
deficient in other respects, particularly when compared with its very comprehensive
2015 successor. As noted above, it makes no provision for any of the features of
modern shipping practice that are incorporated into the 2015 form. To take just one
timely example, the 1946 form imposes on the ship’s master the traditional obligation to “prosecute. . .voyages with the utmost despatch”.
37 It would be a breach of
that obligation for the master to accept orders from the time charterer to proceed at a
reduced speed in order to save on bunker consumption, or to arrive in port at a
specified time. Because it is increasingly common in practice for charterers to want
to give such orders, NYPE 2015 includes a slow steaming clause.
38 Without such a
clause, the charterer would not be able to give such an order, and the master would
not be able to follow it if given, because the ship might then be held liable to the
holders of bills of lading for failure to carry their cargo with the “utmost despatch”.
39
Similarly, and perhaps surprisingly, given that the 1946 form was issued just
1 year after the end of World War II, it contains no war risk clause. Modern war risk
clauses such as BIMCO’s Conwartime 2013 are elaborate affairs, including a
lengthy definition of “war risks” that includes many items, such as “acts of terrorists”, that do not qualify as “war” in the strict sense, and also making precise
provision for the respective rights and obligations of the parties in the event that
the vessel’s service is affected by the kind of hostile action that is all too common in
modern shipping practice. Unless the parties incorporate such a clause into their
NYPE 1946 by reference, any disputes about losses suffered as a result of war risks
must fall to be determined by reference to clauses not designed specifically for that
purpose.
It might be responded that it is easy to customize the NYPE 1946 form by
incorporating “stand alone” clauses such as Conwartime or others drafted by
BIMCO or (for tankers) Intertanko. That is true, but why would anyone put
themselves to the trouble of doing so, when it is not necessary? Would brokers
fixing a charter on the 1946 version of the form even be aware of all the modifications that need to be made to the form to make it ready for use in the twenty-first
century? To take a small but telling example, the 1946 form provides for general
average to be adjusted by the York-Antwerp Rules 1924. As noted below,
40 the
York-Antwerp Rules have been modified six times since 1924—good luck trying to
find an average adjuster who would now be able to follow the 1924 version of the
37 NYPE 1946, cl. 8.
38 NYPE 2015, cl. 38.
39 The “slow steaming” clause in NYPE 2015 includes an obligation on the charterer to incorporate
the clause into sub charters and contracts of carriage issued pursuant to the charter, and to indemnify
the owner against any consequences of its failure to do so: see NYPE 2015, cl. 38(f).
40 See Sect. 5 below.
160
M. Davies