Inter-Club Agreement Comparison

Inter-Club Agreement Comparison Between 1984 and 1996 Forms

The Inter-Club Agreement (ICA) was formulated in 1970 in order to promote amicable and equitable settlements for cargo claims under the New York Produce Exchange form of charterparty (NYPE). It is an agreement between the Clubs in the International Group of P&I Clubs, who undertake to recommend to their Members apportionment of cargo claims as between owners and charterers in accordance with its terms. From time to time the Agreement has been amended in order to keep it in line with legal developments. For the last 12 years the 1984 version (ICA 1984) has been in operation.

The ICA appears to have become somewhat standard in the trade, since it is now often expressly incorporated into charterparties in the NYPE form.1,2 However, when the Agreement was drafted it was not designed for incorporation into charterparties, so that various problems have arisen in practice. In 1992 one important decision of the English Commercial Court3 dealt with the application of the Agreement when expressly incorporated as a term of the charterparty, against the practical background of container operations and through and multimodal transport bills of lading.

The Agreement has now been amended once again in order to overcome some of the effects of the above-mentioned decision, as well as to adapt it to the carriage of containerised cargo, and to deal with other issues which have given rise to disputes over the years. The new version is also an attempt to arrange the Agreement in a more logically structured way, to make it more "user-friendly". The new version of the Agreement (ICA 1996) is in force as of 1st September 1996. The full text of the Agreement is printed on pages 17 and 18.

APPLICATIONMinor changes were introduced to the parts of the Agreement dealing with its application.

The 1984 form provided for application of the Agreement to "Charters on the New York Produce Exchange form". The new Agreement applies to "all charterparties on the New York Produce Exchange Form 1946 or 1993 or Asbatime Form 1981 (or any subsequent amendment of such Forms)". It should be noted that the so-called Asbatime Form 1981 is equivalent to the New York Produce Exchange Form (NYPE) 1981. The ICA 1996 does not contain the sentence "The Agreement is not binding on Members", which appeared in the 1984 version. However, these words are superfluous because the Agreement is between the Clubs, who do not have authority to bind their Members to it, so the Agreement is not binding on the Members in any event. Still, the omission of this sentence may serve to avoid confusion when the ICA is expressly incorporated into charterparties and thereby binding on charterers and owners. The new form also makes clear that the Clubs have a duty to recommend application of the Agreement to their Members whether or not the Agreement is incorporated into the relevant charterparty. (This was implied in the 1984 form).

The 1996 form makes clear that the Agreement applies between Clubs despite any provision to the contrary in the charterparty. In particular, the time bar in the Agreement (contained in Clause 6, which will be discussed in detail later) should prevail over any contractual or statutory time bar.

As a result, between Clubs, application of the Agreement to existing charterparty forms will be as set out in Table I.4

Table ICharter Party Form Applicable ICA Version

NYPE 1913 1984

NYPE 1921 1984

NYPE 1931 1984

NYPE 1946 entered into on or before 1st September 1996

1984

NYPE 1946 entered into after 1st September 1996

1996

NYPE 1981 (Asbatime 1981) entered into on or before 1st September 1996

1984

NYPE 1981 (Asbatime 1981) entered into after 1st September 1996

1996

NYPE 1993 entered into on or before 1st September 1996

1984

NYPE 1993 entered into after 1st September 1996

1996

Future amendments to the NYPE form 1996

DEFINITION OF CARGO CLAIMSIn "THE HOLSTENCRUISER"5 the court decided that under the terms of the 1984 version of the ICA the apportionment of short delivery claims did not apply to customs fines imposed in respect of short delivered cargo. This seemed to conflict with the intention behind the Agreement. Accordingly, it became necessary to introduce a clear definition of "cargo claims". These are now defined in the ICA 1996 as claims relating to the following:– loss of cargo;– damage to cargo;– shortage of cargo (including slackage, ullage or pilferage);– overcarriage of cargo;– delay to cargo;– customs dues or fines in respect of any of the above.

CostsAlthough the 1984 version of the ICA did not contain a definition of

cargo claims, it made clear that the apportionment should also apply to "legal costs incurred" on cargo claims. In "THE HOLSTENCRUISER" case, in interpreting the 1984 version of the ICA the court decided that where the 50 per cent/50 per cent apportionment applied, charterers were not entitled to recover 50 per cent of the legal costs in defending and settling the cargo owners’ claim, nor 50 per cent of the judicial survey fees. The Clubs’ general understanding was that these costs were intended to be allowed under the Agreement. Nevertheless, after "THE HOLSTENCRUISER" decision the legal position was such that under the ICA 1984 only legal costs paid to the original cargo claimant would be included in the apportionment. One of the purposes of the Clubs in drafting the ICA 1996 was to change that point.

The 1996 version continues to include "costs" in the apportionment, and clarifies that "costs" means the following:(1) any legal costs "claimed" by the original cargo claimant;6 (2) all legal, Club correspondents’ and experts’ costs7 reasonably incurred in the defence of or in the settlement of the original cargo claim.

The ICA 1996 expressly excludes from the apportionment costs incurred in making a claim under the Agreement or in seeking an indemnity under the charterparty.

InterestThe ICA 1996 expressly allows the apportionment of interest "claimed" by the original cargo claimant.8 It was not clear whether this should be allowed under the ICA 1984.

Accordingly, the above-mentioned items would be considered as set out in Table II.9

Table IIItem ICA 1984 ICA 1996

Loss of cargo; damage to cargo; shortage of cargo (incl. slackage, ullage or pilferage); overcarriage of cargo

Allowed Allowed

Delay to cargo Unclear Allowed

Customs dues or fines in respect of any of the above

Not allowed Allowed

Legal costs paid to the original cargo claimant

Allowed Allowed

Legal, Club correspondents’ and experts’ costs reasonably incurred in the defence of or in the settlement of the original cargo claim.

Not Allowed Allowed

Costs incurred in making a claim under the Agreement or in seeking an indemnity under the charterparty

Not Allowed Not Allowed

Interest Unclear Allowed

CONTRACTS OF CARRIAGE TO WHICH THE AGREEMENT APPLIESFor the 1984 version of the Agreement to apply the cargo had to be "carried" under a bill or bills of lading incorporating the Hague or Hague-Visby Rules or containing terms no less favourable. Although the wording is not clear in that respect, in "THE HOLSTENCRUISER" the court decided that the 1984 Agreement only applied to cargo claims brought under a bill or bills of lading (as opposed, for example, to cases where although the cargo was "carried" under a bill of lading, the cargo claim was brought under a charterparty).

Under the 1996 form the Agreement will continue to apply where the cargo claim is brought under a bill or bills of lading, and the wording has been amended to reflect the fact that the claim must be brought under such document(s). However, the 1996 Agreement will also apply where the claim is made under a document other than a bill of lading. Application has been extended to claims made under contracts of carriage of whatever form10, provided such contracts are authorised under the charterparty.

In addition, although the relevant contract of carriage must still incorporate the Hague or Hague-Visby Rules or terms no less favourable, the 1996 Agreement will also be applicable where the contract incorporates the Hamburg Rules or any national law giving effect thereto, where these Rules are compulsorily applicable by operation of law to the contract of carriage.

THROUGH OR COMBINED TRANSPORTThe ICA 1996 provides for one exception where it is applicable even though the underlying contract of carriage is not authorised under the charterparty. This involves cases in which the contract would have been authorised except for the inclusion of through or combined (multimodal) transport provisions. This means that the simple fact that the underlying contract of carriage is a contract for through or multimodal transport is not a reason in itself to avoid application of the Agreement, even if this type of contract is not authorised under the charterparty.

The background to this new provision is the decision in "THE HOLSTENCRUISER", mentioned above. In that case it was decided that the ICA would only apply where the relevant bill of lading had been issued in strict compliance with the terms of the charterparty in question.11 From the decision it appears that in the absence of a special provision in the charterparty allowing the issue of through or multimodal contracts of carriage, any through or multimodal transport document issued will not be in accordance with the terms of the NYPE charter, since it will also provide for carriage by means other than the chartered ship. Accordingly, claims settled under through or multimodal bills of lading will be outside the scope of the 1984 version of the Agreement, unless expressly allowed under the charterparty.

In "THE HOLSTENCRUISER" it was also decided that, even where through or multimodal bills were expressly allowed under the charterparty, application of the Agreement was limited to loss of or damage to cargo arising during the period for which the shipowners were responsible.

This latter part of the ratio in "THE HOLSTENCRUISER" decision is confirmed in the ICA 1996, which expressly provides that in the case of contracts of carriage containing through or multimodal transport provisions the application of the Agreement will be limited to cargo claims arising after commencement of the loading of the cargo onto the chartered vessel and prior to completion of its discharge from the vessel. It also makes clear the fact that the charterers have the burden of proving that the cargo claim did or did not so arise.

Accordingly, application of the two forms of the Agreement to claims brought under different types of documents will be as shown in Table

III.12

Table IIIType of Document ICA 1984 ICA 1996

Bills of Lading authorised under the charterparty and incorporating the Hague or Hague-Visby Rules or containing terms no less favourable

Applicable Applicable

Waybills authorised under the charterparty and incorporating the Hague or Hague-Visby Rules or containing terms no less favourable

Not applicable Applicable

Charterparties authorised under the charterparty and incorporating the Hague or Hague-Visby Rules or containing terms no less favourable


Any other document authorised under the charterparty incorporating the Hague or Hague-Visby Rules or containing terms no less favourable


Documents not authorised under the charterparty whether or not incorporating the Hague or Hague-Visby Rules or containing terms no less favourable

Not applicable Not applicable

Documents which would have been authorised under the charterparty except for the inclusion of through or combined (multimodal) transport provisions, incorporating the Hague or Hague-Visby Rules or containing terms no less favourable


Any form of document authorised under the charterparty or which would have been authorised under the charterparty except for the inclusion of through or combined (multimodal) transport provisions, incorporating the Hamburg Rules or any national law giving effect thereto, where these Rules are compulsorily applicable by operation of law to the contract of carriage


MATERIAL AMENDMENTS TO THE CHARTERPARTY WHICH RENDER THE AGREEMENT INOPERATIVEIt is quite common that, when negotiating a charterparty on the NYPE form, the parties make amendments to the standard form. Some of these amendments may introduce changes to the manner in which liability for cargo claims is apportioned between owners and charterers. For the

ICA 1984 and 1996 to apply, the cargo responsibility clauses in the NYPE must not be materially amended. A material amendment is defined in both forms as one which makes liability for cargo claims clear.

The ICA 1984 gives one example of such a material amendment: the addition of the words "and responsibility" in Clause 8 of the NYPE together with the addition of the words "cargo claims" in Clause 26, or the words "cargo claims" in Clause 26 only. Where these amendments are in place the ICA’s apportionment will not apply and owners will be responsible for cargo claims. The ICA 1984 then provides, in a quite contradictory manner, that the addition of the words "and responsibility" in Clause 8 is in itself a material amendment, but that this does not render the Agreement inoperative. Instead, an alternative apportionment formula is to be applied.

The ICA 1996 endeavours to remove the contradiction contained in the 1984 formula. In addition, it was thought that the provision of two apportionment formulae was quite confusing, so there were attempts to amalgamate them into one, without affecting the division of liability as established in the 1984 form. As a result, the new form says clearly that the addition of the words "and responsibility" in Clause 8 is not a material amendment (even though the inclusion of such words will affect the manner in which liability is apportioned - see comments to "Apportionments" below), but that the addition of the words "cargo claims" to Clause 26 renders the Agreement inoperative even if it is expressly incorporated into the charterparty. In practice the result should be the same as under the 1984 form.

APPLICATION REGARDLESS OF OTHER TERMS OF THE CHARTERPARTYLike its predecessor, the 1996 Agreement is to apply regardless of legal forum or place of arbitration specified in the charterparty and also regardless of any incorporation of the Hague or Hague-Visby Rules and (new for the 1996 Agreement) the Hamburg Rules. The reference to the Berth Standard of Average Clause (General Standard of Claim Clauses/Charterers' Contribution Clause 1971) has been dropped since this clause seems to have fallen into disuse.

CLAIMS TO BE PROPERLY SETTLEDThe 1984 Agreement provided that it was a condition precedent to apportionment under the ICA that the cargo claim should have been properly settled or compromised. It went on to provide that ex-gratia payments made for commercial or other reasons, where no legal liability existed, were to be borne by the party by whom the payment was made. The 1996 Agreement also provides that apportionment under the ICA may only be made if the claim has been properly settled or compromised. In addition, there is now a new requirement that the cargo claim must also be paid. However, the reference to ex-gratia payments has been dropped since it was considered that the words were superfluous. An ex-gratia payment made where no legal liability exists cannot be a claim properly settled or compromised.13

TIME BAROne will recall that the ICA 1984 provided that "claims should be notified to the other party in writing as soon as possible, but in any event within two years from the date of discharge, or the date when the goods should have been discharged". Under the 1996 Agreement, written notification of a claim must be given to the other party within 24 months of the date of delivery of the cargo or the date the cargo should have been delivered, except for where the Hamburg Rules are compulsorily applicable, in which case the time limit is 36 months from the date of delivery. The apparent more generous time bar for Hamburg Rules cases is necessary due to the fact that under the Hamburg Rules there is a two year limitation period14 compared to the one year under the Hague and Hague-Visby Rules.15 The requirement in the 1984 Agreement to notify as soon as possible has now been omitted since it was felt that these words were too vague to operate as an effective time bar and at most could only be viewed as aiming to promote the good practice of timely notification.

One will also note that "delivery" has been substituted for "discharge". This change brings the ICA into line with the terminology of the respective time bars set out in the Hague, Hague-Visby and

Hamburg Rules. In fact the change is more subtle than mere semantics. The Hague/Hague-Visby Rules distinguish between discharge and delivery.16 Delivery is when the goods are made available to the receiver and this may be before or after discharge. For example, if the bill of lading is on "free in out" terms and therefore receivers are to perform the function of discharge, "delivery" will take place when the hatches are opened and the cargo is then available to receivers, notwithstanding the fact that owners’ period of responsibility continues until discharge has been completed.17 Under the Hamburg Rules the owners' period of responsibility is port to port. The distinction between discharge and delivery may be of vital importance if discharge is completed several days after the hatches are opened. In cases of through or combined transport, "delivery" will be delivery by the relevant contractual carrier under the through bill of lading which may be some distance in time and place from the vessel. "Discharge" however, still remains significant under ICA 1996 in particular clause 4(a)(iii) in relation to through and combined transport

AMOUNT TO BE APPORTIONEDWhen making an apportionment under the ICA, one is to have regard only to the amounts claimed under that particular charterparty and the fact that there may be a chain of charterparties under which other apportionments are made is to be disregarded. This provision although worded differently gives the same effect as its counterpart in the 1984 Agreement.

APPORTIONMENTSThe ICA 1984 provided two apportionment formulae: One for claims where Clause 8 of the charterparty contained no material amendments and one for claims where the only material amendment was the inclusion of the words "and responsibility" or similar words, by which the Master was made responsible for cargo handling. Now under the 1996 Agreement the inclusion of the words "and responsibility" in Clause 8 is no longer regarded as a material amendment and there is just one apportionment formula. However, as we describe below, for claims arising from cargo handling the apportionment formula maintains a distinction between cases in which Clause 8 has been amended to include the words "and responsibility" or has otherwise been amended to make the Master responsible for cargo handling and those cases in which Clause 8 has no such amendment.

ERROR OR FAULT IN NAVIGATION OR MANAGEMENT OF THE VESSELThe 1996 Agreement introduces a new element in the apportionments, to reflect the fact that the Agreement now operates in respect of contracts of carriage to which the Hamburg Rules are compulsorily applicable. Claims in fact arising out of error or fault in navigation or management of the vessel, are to be apportioned 100 per cent to owners. The rationale behind this is that many charterparties incorporate the Hague or Hague-Visby Rules thus giving owners a complete defence to claims of this kind. However, if under such a charterparty, charterers have issued bills of lading to which the Hamburg Rules apply as a matter of law, there will be no defence to a claim for negligent navigation or management of the vessel under the bill of lading but charterers will be unable to pass on the claim to owners due to the negligent navigation or management of the vessel defence in the charterparty. Since charterers have no control over the navigation or management of the vessel, such a result would seem inequitable. The new apportionment provision should only be of relevance in cases where the Hamburg Rules are compulsorily applicable. In a claim to which Hague or Hague-Visby Rules apply, cargo claimants should be defeated by the contractual carrier under the contract of carriage, if the claim arises by virtue of negligent navigation or management and so there should be no claim to pass on under the ICA. If the contractual carrier pays the claim in any event, the claim will not have been properly settled and therefore no recovery can be made under the ICA.18

UNSEAWORTHINESSAs previously, claims arising out of unseaworthiness are apportioned 100 per cent to owners. However, this is now subject to the express proviso that where owners can prove that the unseaworthiness was caused by the loading, stowage etc. of the cargo, the claim will be dealt with under the cargo handling heading in Clause 8(b). Whilst the words of the proviso may be

new, it is believed that they merely state expressly what was implicit in the 1984 Agreement and therefore it is anticipated that, in practical terms, there will be no change in apportionment of claims under this heading.

LOADING/STOWAGE/HANDLINGAgain as previously, claims arising out of poor or incorrect loading, stowage, lashing, discharge, storage or other handling of the cargo are apportioned 100 per cent to charterers, unless "and responsibility" has been added to Clause 8 of the charterparty, in which case, claims will be apportioned 50 per cent charterers/50 per cent owners. However, this is subject to the proviso that where charterers can prove that the failure to properly load, stow or handle etc. was due to the unseaworthiness of the vessel, claims will be treated as unseaworthiness claims under Clause 8(a). As with the proviso in Clause 8(a), it is considered that the new words merely state expressly what was implicit in the 1984 Agreement.

Since the ICA 1996 extends to claims arising under through or combined transport bills of lading, a question arises as to how "stowage" should be interpreted in respect of containerised cargo: does it mean stowage of the cargo inside the container or stowage of the container on board the chartered vessel? It would seem that the phrase means stowage of the container on board the chartered vessel. As explained above, by virtue of Clause 4(a)(iii), the ICA only applies where charterers can show the loss, damage, shortage, overcarriage or delay occurred after commencement of the loading of the cargo onto the chartered vessel and prior to completion of discharge from that vessel. Since stowage of the cargo inside the container takes place ashore, the cause of the loss or damage will have taken place prior to the container being loaded onto the vessel and therefore any claim arising therefrom should fall outside the ambit of the ICA.

SHORTAGE OR OVERCARRIAGEAs under the 1984 Agreement, shortage or overcarriage claims are apportioned 50 per cent charterers/50 per cent owners, unless there is clear and irrefutable evidence that the claim arose out of pilferage or act or neglect by one party or the other, in which case that party shall be liable in full. However, in cases where owners are 100 per cent liable, this apportionment is no longer subject to a contribution by charterers under the Berth Standard of Average Clause/Charterers' Contribution Clause (1971). These clauses seem to have fallen into disuse and therefore it is believed that the minor change will be of little or no practical significance.

ALL OTHER CLAIMSThe 1996 Agreement introduces a new "catch-all" category, where claims arising from other circumstances e.g. delay will be apportioned 50 per cent owners/50 per cent charterers, unless there is clear and irrefutable evidence that the claim arose out of the act or neglect of one or other of the parties in which case the party at fault shall be 100 per cent liable.

CONDENSATIONReaders will note that, unlike its predecessor, the ICA 1996 makes no express mention of claims for condensation damage. Under the ICA 1984 such claims were dealt with in two ways. If the condensation damage resulted solely from improper ventilation, owners were 100 per cent liable. However, if condensation resulted otherwise than from improper ventilation, liability was apportioned equally between owners and charterers, unless the condensation arose from poor stowage. In such a case, the claim would be dealt with as a poor stowage/handling case and would be apportioned either 100 per cent charterers or 50 per cent charterers/50 per cent owners, depending on whether Clause 8 had been amended to include the words "and responsibility". Under the 1996 Agreement, it is envisaged that condensation claims will be dealt with as follows:

Liability for condensation arising out of improper ventilation will be apportioned 100 per cent to owners by one of two separate routes: either the improper ventilation arises by virtue of the vessel’s uncargoworthiness (an element of unseaworthiness) and therefore the claim falls within

Clause 8(a) or the improper ventilation arises by virtue of the crew’s failure during the voyage to take care of the cargo. This should fall into the catch-all provision of 8(d) and because the claim arose out of the act or neglect of owners the "100 per cent to the party at fault" apportionment will apply rather than the 50/50 split. Condensation cases caused otherwise than by improper ventilation will fall into the new catch-all provision in Clause 8(d) – 50 per cent owners/50 per cent charterers, unless owners are able to prove improper stowage/handling in which case the claim will be dealt with under Clause 8(b) (see previous comments). As can be seen, despite the absence of any express reference to condensation claims, it is believed that these claims will continue to be treated in the same way as before.

The apportionment of liability under the two versions of the ICA will be very similar, with some minor exceptions where no provision for apportionment existed in the 1984 version and the inclusion of the "catch-all" provision. Apportionment under each form should be as per Table IV, based on English law.

Table IVType/Cause of cargo claim Apportionment under

ICA 1984Apportionment under ICA 1996

Error or fault in navigation or management of the vessel

No provision for apportionment

100 per cent Owners

Unseaworthiness 100 per cent Owners 100 per cent Owners

Loading/Stowage/Handling where responsibility" have not been added to Clause 8

100 per cent Charterers 100 per cent Charterers

Loading/Stowage/Handling where the words "and responsibility" have been added to Clause 8

50 per cent Owners – 50 per cent Charterers


Shortage or Overcarriage, where there is not clear and irrefutable evidence that claim arose out of pilferage or act/neglect by one party or the other



Shortage or Overcarriage, where there is clear and irrefutable evidence that claim arose out of pilferage or act/neglect by Owners, Owners’ servants or sub-contractors

100 per cent Owners 100 per cent Owners

Shortage or Overcarriage, where there is clear and irrefutable evidence that claim


arose out of pilferage or act/neglect by Charterers, Charterers’ servants or sub-contractors

Condensation resulting solely from improper ventilation

100 per cent Owners 100 per cent Owners

Condensation resulting from bad stowage where the words "and responsibility" have been added to Clause 8



Condensation resulting from bad stowage where the words "and responsibility" have not been added to Clause 8


Condensation resulting from something other than improper ventilation or bad stowage unless there is irrefutable evidence that the claim arose out of the act or neglect of one party or the other (including that party’s servants or sub-contractors)



Condensation resulting from something other than improper ventilation or bad stowage where there is irrefutable evidence that the claim arose out of the act or neglect of Owners, their servants or sub-contractors


100 per cent Owners

Condensation resulting from something other than improper ventilation or bad stowage where there is not irrefutable evidence that the claim arose out of the act or neglect of Charterers, their servants or sub-contractors


100 per cent Charterers

All other claims whatsoever (including claims for delay to cargo) where there is not irrefutable evidence that the claim arose out of the act or neglect of one party or the other (including its servants or sub-contractors)

No provision for for apportionment


All other claims whatsoever No provision for 100 per cent Owners

(including claims for delay to cargo) where there is irrefutable evidence that the claim arose out of the act or negligence of Owners, their servants or sub-contractors

apportionment

All other claims whatsoever (including claims for delay to cargo) where there is irrefutable evidence that the claim arose out of the act or neglect of Charterers, their servants or sub-contractors

No provision for apportionment

100 per cent Charterers

DURATION OF THE AGREEMENTThe ICA 1996 declares that it replaces the ICA 1984 in respect of all charterparties specified in Clause 1 of the 1996 Agreement i.e. all contracts of carriage to which the ICA 1996 applies which are entered into after the coming into force of the 1996 Agreement. As stated above this was 1st September 1996. The ICA 1996, like the ICA 1984 provides that it will continue in force until varied or terminated. Any variation has to be approved in writing by all the parties, however, any Club is entitled to withdraw from the Agreement upon the expiry of three months’ written notice. It is understood that no Club has ever withdrawn from the ICA.

GOVERNING LAWAlso new in the ICA 1996 is the governing law clause, which provides that the Agreement itself as between the Clubs is subject to English law and jurisdiction.

However, in order to ensure that no conflict arises between the main body of the charterparty and the settlement of claims under the ICA, the law and jurisdiction of the charterparty under which an apportionment is sought shall apply in the following situations:(1) where the charterparty expressly incorporates the ICA;(2) where the charterparty does not technically "incorporate" the ICA, but it states that cargo claims will be settled in accordance with the ICA;(3) where the charterparty does not contain a clause in the terms of (1) or (2) above, but after a claim arises owners and charterers agree to settle cargo claims in accordance with the ICA. Since many charterparties are subject to English law and jurisdiction, it is likely that English law will be relevant in the majority of cases.

Footnotes1 The Standard wording of the 1993 NYPE form refers to cargo claims to be apportioned in accordance with the ICA.2 Where the Agreement is expressly incorporated into a charterparty it becomes a contractual term binding on owners and charterers, and has to be read in conjunction with the other terms of the contract.3 A/S Iverans Rederi v. KG MS Holstencruiser Seeschiffahrtsgesellschaft m.b.H. & Co. and Others "THE HOLSTEINCRUISER", (1992) 2 Lloyd’s Rep. 378. See article in Gard News 136 of December 1994.4 When the ICA is expressly incorporated into a contract, the parties are free to incorporate any of the ICA versions into any of the charterparty forms, as long as there is an express provision to that effect in the contract.5 "THE HOLSTENCRUISER", (1992) 2 Lloyd’s Rep. 378.6 The expression "claimed" should be interpreted to mean "properly claimed and properly settled or compromised and paid". See clause 4 (c) of the ICA 1996.7 We understand this expression includes surveyors’ fees.

8 The expression "claimed" should be interpreted to mean "properly claimed and properly settled or compromised and paid". See clause 4 (c) of the ICA 1996.9 Based on English law.10 These should include for instance sea waybills, voyage charterparties, combined transport documents etc.11 See article in Gard News 136 of December 1994.12 Based on English law.13 As under the ICA 1984, nuisance settlements made with a view to avoiding legal costs, where no liability exists, may be outside the scope of the 1996 Agreement. In such cases it is recommended that prior to settlement of a cargo claim the other party to the charterparty and its Club are asked to approve the settlement and confirm that they will contribute to it in accordance with the ICA.14 Hamburg Rules, Article 20.15 Hague/Hague-Visby Rules Article III, Rule 6.16 Compare Hague/Hague-Visby Rules Article I (c) and Article III Rule (6).17 See The "FILIKES" (1983) 1 Lloyd’s Rep. 9.18 See ICA 1996 Clause 4 (c).

Inter-Club Agreement Comparison

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