3.4 The Use of War Risks Clauses with Respect to Crimean
Ports
It is quite common that Charter parties include specific provisions relating to the
outbreak of war or warlike situations. Such clauses generally provide that the
contract should be cancelled/terminated in the event of “war/hostilities/warlike
operations” breaking out, either between “two or more” in a list of specified nations
(often including Russia and “any country in the EU”), or involving the flag state of
the vessel. To cite a commonly used war risk clause, such risks include: “...act of
war, civil war or hostilities; ...warlike operations; ...blockades (whether imposed
against all vessels or imposed selectively against vessels of certain flags or ownership...) by any person... or the government of any state...”.
65
Just like the question of port safety, determining a state of war (including
“hostilities/warlike operations”) for the purposes of war clauses is a question of
fact. The meaning of “hostilities/warlike operations” is wider in scope than “war”.
However, it is still an open question whether the situation at the Crimean peninsula is
legally tantamount to a war or “hostilities or warlike operations”, as probably
comparable to parts of the eastern Ukrainian mainland. Incidents like the
25 November 2018 seizing of Ukrainian navy vessels could be utilized to argue in
favour of the existence of “hostilities or warlike operations”. On the other hand, the
incident did “only” affect State vessels of the two neighbouring nations and the
temporary closing of the Kerch Strait by Russian authorities did only last for less
than 24 h.
66 Under a charter party perspective, it seems difficult to argue in favour of
the existence of “hostilities or warlike operations”, in particular, if the parties did not
explicitly include Ukraine in the list of specified nations and if they did not
specifically exclude the Black Sea, the Kerch Strait and the Sea of Azov from the
legitimate trading areas.
Denying the existence of a “war” or “hostilities/warlike operations”, one could
still try to argue that war risks clauses are currently of a practical relevance for
Crimean ports if the sanctions regimes of the EU and the US and the Ukrainian
closure Directive amounts to a “blockade”—in the sense as used in war risks clause
as quoted above. However, from a practical point of view the Lloyd’s List Intelligence data—as referred to above and evidencing for 2014–2016 a “ballooning of
port calls”
67 —does not support the existence of a “blockade”. Even if the wording of
the war risk clause “...blockades (. . . imposed against all vessels ...) by ... the
government of any state...” would support the existence of a blockade from a purely
legal point of view, it seems extremely difficult to argue, given the effective control
exercised by Russia, that a full-scale blockade in the Kerch Strait or in the Sea of
Azov actually exists. As a result, the actual practical relevance of war risks clauses in
65 BIMCO War Risk Clause for Voyage Chartering (VOYWAR 2013).
66 “Russia reopens Kerch Strait to shipping after vessels seized”, Lloyd’s List (online edition) of
26 November 2018.
67 Supra, notes 9 and 38.
Sanctions Compliance Risks in International Shipping: Closure of Five. . .
305
Ports
It is quite common that Charter parties include specific provisions relating to the
outbreak of war or warlike situations. Such clauses generally provide that the
contract should be cancelled/terminated in the event of “war/hostilities/warlike
operations” breaking out, either between “two or more” in a list of specified nations
(often including Russia and “any country in the EU”), or involving the flag state of
the vessel. To cite a commonly used war risk clause, such risks include: “...act of
war, civil war or hostilities; ...warlike operations; ...blockades (whether imposed
against all vessels or imposed selectively against vessels of certain flags or ownership...) by any person... or the government of any state...”.
65
Just like the question of port safety, determining a state of war (including
“hostilities/warlike operations”) for the purposes of war clauses is a question of
fact. The meaning of “hostilities/warlike operations” is wider in scope than “war”.
However, it is still an open question whether the situation at the Crimean peninsula is
legally tantamount to a war or “hostilities or warlike operations”, as probably
comparable to parts of the eastern Ukrainian mainland. Incidents like the
25 November 2018 seizing of Ukrainian navy vessels could be utilized to argue in
favour of the existence of “hostilities or warlike operations”. On the other hand, the
incident did “only” affect State vessels of the two neighbouring nations and the
temporary closing of the Kerch Strait by Russian authorities did only last for less
than 24 h.
66 Under a charter party perspective, it seems difficult to argue in favour of
the existence of “hostilities or warlike operations”, in particular, if the parties did not
explicitly include Ukraine in the list of specified nations and if they did not
specifically exclude the Black Sea, the Kerch Strait and the Sea of Azov from the
legitimate trading areas.
Denying the existence of a “war” or “hostilities/warlike operations”, one could
still try to argue that war risks clauses are currently of a practical relevance for
Crimean ports if the sanctions regimes of the EU and the US and the Ukrainian
closure Directive amounts to a “blockade”—in the sense as used in war risks clause
as quoted above. However, from a practical point of view the Lloyd’s List Intelligence data—as referred to above and evidencing for 2014–2016 a “ballooning of
port calls”
67 —does not support the existence of a “blockade”. Even if the wording of
the war risk clause “...blockades (. . . imposed against all vessels ...) by ... the
government of any state...” would support the existence of a blockade from a purely
legal point of view, it seems extremely difficult to argue, given the effective control
exercised by Russia, that a full-scale blockade in the Kerch Strait or in the Sea of
Azov actually exists. As a result, the actual practical relevance of war risks clauses in
65 BIMCO War Risk Clause for Voyage Chartering (VOYWAR 2013).
66 “Russia reopens Kerch Strait to shipping after vessels seized”, Lloyd’s List (online edition) of
26 November 2018.
67 Supra, notes 9 and 38.
Sanctions Compliance Risks in International Shipping: Closure of Five. . .
305