[转载]INTER-CLUB AGREEMENT 1996 (ICA 1996)
2011-08-15 08:03阅读：
This agreement is made on (date) between the P&I Clubs being
members of the International Group of P&I Associations listed
in the schedule hereto (hereafter referred to as “the
Clubs”).
This Agreement replaces the Inter Club Agreement 1984 in respect of
all charterparties specified in clause (1) hereof and shall
continue in force until varied or terminated. Any variation to be
effective must be approved in writing by all the Clubs but it is
open to any Club to withdraw from the Agreement on giving to all
the other Clubs not less than three months’ written notice thereof,
such withdrawal to take effect at the expiration of that period.
After the expiry of such notice the Agreement shall nevertheless
continue as between all the Clubs, other than the Club giving such
notice who shall remain bound by and be entitled to the benefit of
this Agreement in respect of all Cargo Claims arising out of
charterparties commenced prior to the expiration of su
ch notice.
The Clubs will recommend to their Members without qualification
that their Members adopt this Agreement for the purpose of
apportioning liability for claims in respect of cargo which arise
under, out of or in connection with all charterparties on the New
York Produce Exchange Form 1946 or 1993 or Asbatime Form 1981 (or
any subsequent amendment of such forms), whether or not this
Agreement has been incorporated into such charterparties.
Scope of Application
(1) This Agreement applies to any charterparty which is entered
into after the date hereof on the New York Produce Exchange Form
1946 or 1993 or Asbatime Form 1981 (or any subsequent amendment of
such Forms).
(2) The terms of this agreement shall apply notwithstanding
anything to the contrary in any other provision of the
charterparty; in particular the provisions of clause (6) (time bar)
shall apply notwithstanding any provision of the charterparty or
rule of law to the contrary.
(3) For the purposes of this Agreement, Cargo Claim(s) mean claims
for loss, damage, shortage, (including slackage, ullage or
pilferage), overcarriage of or delay to cargo including customs
dues or fines in respect of such loss, damage, shortage,
overcarriage or delay and include:
(a) any legal costs claimed by the original person making such
claim;
(b) any interest claimed by the original person making any such
claim;
(c) all legal, Club correspondents’ and experts’ costs reasonably
incurred in the defence of or in the settlement of the claim made
by the original person, but shall not include any costs of
whatsoever nature incurred in making a claim under this Agreement
or in seeking an indemnity under the charterparty.
(4) Apportionment under this Agreement shall only be applied to
Cargo Claims where;
(a) the claim was made under a contract of carriage, whatever its
form,
(i) which was authorized under the charterparty; or
(ii) which would have been authorized under the charterparty but
for the inclusion in that contract of carriage of Through Transport
or Combined Transport provisions,
provided that
(iii) in the case of contract of carriage containing Through
Transport or Combined Transport provisions (whether falling within
(i) or (ii) above) 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 its discharge from
that vessel (the burden of proof being on the Charterer to
establish that the loss, damage, shortage, overcarriage or delay
did or did not so occur); and
(iv) the contract of carriage (or that part of the transit that
comprise carriage on the chartered vessel) incorporated terms no
less favourable to the carrier than the Hague or Hague-Visby Rules,
or, when compulsorily applicable by operation of law to the
contract of carriage, the Hamburg Rules or any national law giving
effect thereto.
and
(b) the cargo responsibility clauses in the charterparty have not
been materially amended. A material amendment is one which makes
the liability, as between Owners and Charterers, for Cargo Claims
clear. In particular, it is agreed solely for the purposes of this
Agreement;
(i) that the addition of the words “and responsibility” in clause
8, or any similar amendment of the charterparty making the Master
responsible for cargo handling, is not a material amendment;
and
(ii) that if the words “cargo claims” are added to the second
sentence of clause 26 or clause 25 of the Asbatime Form
apportionment under this Agreement shall not be applied under any
circumstances even if the charterparty is made subject to the terms
of this Agreement;
and
(c) the claim has been properly settled or compromised and
paid.
(5) This agreement applies regardless of legal forum or place of
arbitration specified in the charterparty and regardless of any
incorporation of the Hague or Hague-Visby Rules or Hamburg Rules
therein.
Time Bar
(6) Recovery under this Agreement by an Owner or Charterer shall be
deemed to be waived and absolutely barred unless written
notification of the Cargo Claim has been given to the other party
to the charterparty within 24 months of the date of delivery of the
cargo or the date the cargo should have been delivered, save that,
where the Hamburg Rules or any national legislation giving effect
thereto are compulsorily applicable by operation of law to the
contract of carriage or to that part of the transit that comprised
carriage on the chartered vessel, the period shall be 36 months.
Such notification shall if possible include details of the contract
of carriage, the nature of the claim and the amount claimed.
The apportionment
(7) The amount of any Cargo Claim to be apportioned under this
Agreement shall be the amount in fact borne by the party to the
charterparty seeking apportionment regardless of whether that claim
may be or has been apportioned by the application of this Agreement
to another charterparty.
(8) Cargo claims shall be apportioned as follows:
(a) Claims in fact arising out of unseaworthiness and/or error or
fault in navigation or management of the vessel:
100% Owners
save where the Owner proves that the unseaworthiness was caused by
the loading, stowage, lashing, discharge or other handling of the
cargo, in which case the claim shall be apportioned under
sub-clause (b)
(b) Claims in fact arising out of the loading, stowage, lashing,
discharge, storage or other handling of cargo:
100% Charterers
unless the words “and responsibility” are added in clause 8 or
there is a similar amendment making the Master responsible for
cargo handling in which case:
50% Charterers
50% Owners
save where the Charterer proves that the failure properly to load,
stow, lash, discharge or handle the cargo was caused by the
unseaworthiness of the vessel in which case:
100% Owners
(c) Subject to (a) and (b) above, claims for shortage or
overcarriage:
50% Charterers
50% Owners
unless there is clear and irrefutable evidence that the claim arose
out of pilferage or act or neglect by one or the other (including
their servants or sub-contractors) in which case that party shall
then bear 100% of the claim.
(d) All other claims whatsoever (including claims for delay to
cargo):
50% Charterers
50% Owners
unless there is clear and irrefutable evidence that the claim arose
out of the act or neglect of one or the other (including their
servants or sub-contractors) in which case that party shall then
bear 100% of the claim.
Governing Law
(9) This Agreement shall be subject to
English Law and Jurisdiction, unless it is incorporated into the
charterparty (or the settlement of claims in respect of cargo under
the charterparty is made subject to this Agreement), in which case
it shall be subject to the law and jurisdiction provisions
governing the charterparty.
