Introduction

The relevance of the topic of the work is that the vessel charter agreement (including the time charter directly considered in the work) is not distinguished as an independent agreement in civil law.

Modern Russian maritime law and the practice of its application have developed in such a way that currently we have a discrepancy economic significance the concept of “freight agreement” to its legal definition.

From an economic point of view, we can call a ship charter agreement both an agreement for the carriage of goods, passengers, and luggage, if it is concluded with the condition that the entire ship or individual ship premises be provided for transportation, and a lease agreement for a vessel with or without a crew. In both cases, the parties can be called the same - “charterer (shipowner)” and “charterer”, the subject of the contract - the movement of certain agreed objects (cargo, passengers, luggage) - can be the same.

At the same time, Russian law applies the concept of “chartering agreement” exclusively to the transportation of goods, passengers, and luggage. All other forms of vessel operation are a lease agreement for the vessel as a vehicle.

The purpose of the work is to characterize time charter as a type of contractual relationship. In accordance with the goal, the work tasks include:

1. determination of the legal nature of a time charter

2. characteristics of time charter as a contractual relationship

3. delimitation of time charter from related legal relations.

Features of a sea vessel charter agreement

Types of charter agreement

Voyage charter. The most common way of operating a sea vessel is to transport cargo. The types of maritime transportation contracts are established by the Merchant Shipping Code of the USSR, which is valid on the territory of Russia to the extent that does not contradict the current legislation of Russia, and, in particular, the Civil Code. According to Article 120 of the Commodity Code, a contract for the carriage of goods by sea may be concluded with the condition that the entire ship, part of it, or certain ship premises are provided for transportation, or without such a condition. In the first case, the contract of carriage by sea is also called a charter. Currently, the concept of a charter agreement in Russian law corresponds to charter transportation in KTM and is determined by Article 787 of Part 2 of the Civil Code Russian Federation, which came into force on March 1, 1996. According to this article, under a charter agreement (charter), one party (charterer) undertakes to provide the other party (charterer) for a fee with all or part of the capacity of one or more vehicles for one or more voyages for the transportation of goods, passengers and luggage. At the same time, the Civil Code establishes that the procedure and form for concluding a charter agreement are provided for by transport charters and codes.

In practice, a contract for the carriage of goods by sea without providing the entire ship or the ship's cargo spaces is concluded by accepting the cargo for transportation, in confirmation of which a transportation document is issued - a bill of lading, which contains the main terms of the contract of carriage. Thus, the bill of lading performs several functions at once: it is evidence of the existence of a contract for the carriage of goods by sea, a document confirming the fact of acceptance of the goods for transportation, as well as a document of title.

The charter agreement is concluded by signing the relevant document - the charter - by the parties. Compared to a bill of lading, a charter party is a much more detailed document containing various conditions and regulating the rights and obligations of each party. However, signing a charter does not preclude the issuance of a bill of lading; moreover, some pro forma charters expressly stipulate the use of a specific pro forma bill of lading. In this case, the bill of lading plays the role of a receipt for acceptance of the cargo for transportation, and the relationship between the parties is regulated by the charter. It should, however, be taken into account that if there is a conflict between the charter and the bill of lading, the conditions contained in the charter usually prevail. Commentary on the Merchant Shipping Code of the Russian Federation / Ed. G. G. Ivanova. ? M., 2000 - P.167. contract charter time charter

A charter can be concluded for one flight, or for several consecutive flights, or for a round trip flight (several consecutive round trip flights). To distinguish it from other charter agreements, in practice it is customary to call it a contract for the carriage of goods with the condition of providing the entire vessel or part of it.

The parties concluding a voyage charter are the shipowner (charterer), who has the right of ownership of the ship or the right of use and possession under a lease agreement (time charter, bareboat charter), as well as the charterer. The charterer of the vessel can independently perform the functions of a shipper, or hire a freight forwarder for this purpose. The sender's name appears on the bill of lading.

In a voyage charter, unlike lease agreements, the vessel is described in less detail, since the shipowner knows its seaworthiness and condition, and the charterer does not intend to operate the vessel himself and is not interested in obtaining such data. Thus, when concluding a voyage charter, as a rule, it is enough to indicate the name of the vessel, its carrying capacity and registered tonnage, as well as the possibility of replacement with a substitute.

Time charter. The concept of “time charter” was first encountered in domestic maritime law in Article 178 of the USSR Code of Labor Code, which defines time charter as a contract for chartering a vessel with a crew for the time being (this definition was also adopted by the Russian Code of Labor Code). The new Civil Code introduced the concept of a lease agreement for a vehicle with a crew. According to Article 632 of the Civil Code of the Russian Federation, under a lease agreement (chartering for a time) of a vehicle with a crew, the lessor provides the lessee with a vehicle for a fee for temporary possession and use and provides its own services for its management and technical operation.

At the same time, a time charter is not a vessel rental agreement in pure form. Under this agreement, as under any other lease agreement, the charterer acquires the right to use the vessel for a period stipulated by the agreement for certain purposes. However, since the ship is chartered with a crew, the use of the ship is actually carried out by the charterer not on his own, but by the shipowner. If previously a time charter was an agreement that combined elements of hiring property with the simultaneous hiring of services, now the legislator has identified time chartering as a separate type of contract.

The legislator establishes the distribution of responsibilities between the parties in Civil Code and in the KTM, which is valid to the extent that does not contradict the current legislation of Russia. Thus, the shipowner, according to Articles 634 and 635 of the Civil Code of the Russian Federation, is obliged to maintain the proper condition of the vehicle, including carrying out routine and major repairs and providing the necessary accessories, ensure normal and safe technical operation of the vehicle, form a crew and bear the costs of paying for crew services and the costs of its maintenance. The costs associated with the commercial operation of the vehicle, including the cost of paying for fuel, other materials consumed during operation and paying fees, are borne by the charterer. At the same time, these rules are dispositive in nature and are applied in cases where the agreement does not provide for a different distribution of costs between the parties. In the same way, the issue of insuring a vessel for the time charter period is resolved. Commentary on the Merchant Shipping Code of the Russian Federation / Ed. G. G. Ivanova. ? M., 2000 - P.169.

When concluding a time charter, it is necessary to keep in mind that Article 638 of the Civil Code of the Russian Federation establishes the right of the charterer to sublease the vessel without the consent of the shipowner, unless otherwise provided by the agreement. This means that if, when concluding the contract, the parties did not stipulate the possibility of subleasing the vessel, the charterer has such a right by force of law.

The charterer, as part of the commercial operation of the vessel, has the right, without the consent of the shipowner, to conclude transportation agreements and other agreements with third parties, not contrary to goals chartering, and if the purposes are not specified - the purpose of the vessel.

The Civil Code makes the shipowner liable for damage caused to third parties by the ship, its mechanisms, devices, and equipment. The shipowner has the right to submit a recourse claim to the charterer for compensation of amounts paid to third parties if he proves that the damage arose through the fault of the charterer. The provisions of this article are mandatory and cannot be changed by agreement of the parties. Thus, even if the parties include in the contract a provision regarding the charterer’s liability to third parties, it will not be valid.

Bareboat charter and demise charter. In the Civil Code of the Russian Federation, articles 642-649 are devoted to renting a vehicle without providing management and technical operation services. The contents of a bareboat charter are very to a large extent determined by agreement of the parties. This agreement is characterized by complete or almost complete liberation the shipowner from the obligation to maintain the ship, supply and equip it during the validity of the contract. In most cases, the charterer is responsible for insuring the vessel, and sometimes the risk of accidental loss or damage to the vessel is transferred to the charterer. A type of bareboat charter is a demise charter, according to which the vessel is handed over to the charterer with a crew, but the captain and crew go into service with the charterer. The shipowner sometimes reserves the right to control the selection of candidates for the position of captain and chief engineer when replacing them. Thus, when concluding a contract, the parties will be forced to resolve the issue of returning the crew at the end of the contract. Otherwise legal consequences bareboat charter and demise charter are the same Comments on Part II of the Civil Code of the Russian Federation (clause-by-clause) / ed. O. N. Sadikova. M.: INFRA-M, 2002 - P.189.

A bareboat charter, as a rule, gives the charterer the right to operate the ship on his own behalf and rename it in agreement with the shipowner. A vessel delivered under bareboat charter may be registered by the charterer in the appropriate register of the Maritime Port Administration. All this ensures free technical and commercial operation of the vessel by the charterer. It should be noted that the legislator regulated the issue of the possibility of subletting in a similar way to a time charter. Responsibility for damage caused to third parties lies directly with the charterer.

Bareboat charter is often used for the purpose of purchasing vessels. In this case, the freight rate is set such that at the end of the lease period the cost of the vessel would be paid almost in full. At the end of the lease period, the agreement on the purchase and sale of the vessel comes into force and the charterer becomes the owner of the vessel Egiazarov V.A. Transport contracts and their legal regulation. // Law and Economics, 2004, No. 8, p. 36.

Contract for chartering a vessel for a time (time charter)

In this chapter we will look at a contract for chartering a vessel for a time, which is also called a time charter. Chapter 10 of the RF MCC is devoted to time charter.

Under a vessel charter agreement for a time (time charter) of vessels, the owner undertakes, for a specified fee (freight), to provide the charterer with the vessel and the services of the vessel's crew members for use for a certain period of time for the transportation of goods, passengers or for other purposes of merchant shipping. (Art. 198 KTM of the Russian Federation)

A vessel charter agreement for a time is one of the types of a property lease (lease) agreement - the lease of a vehicle with a crew. Therefore, relations arising from such an agreement are regulated by the rules contained in Section 1, Paragraph 3, Chapter 34 of the Civil Code. In addition, the specifics of renting a vehicle such as a sea vessel with a crew are reflected in the rules of Chapter 10 of the KTM.

In the definition of a contract, first of all, its parties are named - the bearers of powers and subjective obligations. The parties to the agreement are the shipowner and the charterer. According to Art. 8 of the KTM, a shipowner is recognized as the owner of a ship or another person operating it on another legal basis, in particular, a shipowner, in addition to the owner, is any person operating a ship under the right of lease, economic management, operational management, trust management, etc. d.

The shipowner, on his own behalf, charters the vessel for a period of time to another person - the charterer. The latter needs a ship and therefore, on its own behalf, charters it for a certain period for the purposes of merchant shipping.

The use in this article of such concepts characteristic of maritime law as “shipowner”, “charterer”, in contrast to the general civil terms “lessor” and “tenant”, indicates that a ship charter agreement for a time cannot be equated to a general civil - to the property lease agreement.

The first responsibility of the shipowner is to provide the vessel to the charterer. In this case, provision is understood primarily as the transfer to the charterer of the right to use, the right to commercially operate the vessel on its own behalf.

The vessel is provided to the charterer temporarily, that is, for a specified period, after which the charterer is obliged to return it to the shipowner. This period can be expressed in a calendar period from several months to several years (sometimes up to 10 - 15 years) or in the time required to complete one or several flights.

Time chartered vessels can be used to transport cargo. Therefore, standard time charter proformas are built taking into account the fact that a certain cargo will be transported on the vessel.

Along with the transportation of cargo, this article also mentions the transportation of passengers and “other purposes of merchant shipping,” which means the fishing of aquatic biological resources associated with the use of vessels, exploration and development of mineral and other non-living resources of the seabed and its subsoil, pilotage and icebreaker assistance, etc.

The ability to charter a vessel for purposes other than transportation of merchant shipping is one of the differences between a time charter and an agreement for the carriage of goods by sea and, in particular, from an agreement for chartering a vessel for a charter voyage.

The operation of a vessel chartered for a time may only be carried out for the purposes of merchant shipping. Under this agreement, the vessel cannot be used as a hotel, warehouse, or restaurant. This is what distinguishes a vessel charter agreement for a time from a property lease agreement.

Although the article refers to the provision of the vessel for the use of the charterer, it should be recognized that the latter also temporarily has the right to own the vessel. In matters of commercial operation, the ship's crew is subordinate to him. But in this case the ship does not leave the possession of the shipowner. Crew members remain his employees; his orders relating to the management of the ship are binding on all crew members. Therefore, there is every reason to talk about temporary dual ownership (or co-ownership) of the vessel.

The second responsibility of the shipowner is to provide the charterer with services for managing the ship and its technical operation. The strictly formal provision of such services goes beyond the scope of the lease and brings time charter closer to contracts for the provision of services, the results of which do not have a material form. However, in the Civil Code, contracts for the lease of vehicles with the provision of management and technical operation services are classified as one of the types of lease agreements. Thus, the legislation has finally resolved the issue of the legal nature of time charter, which was previously controversial.

The definition of a time charter establishes the charterer's obligation to pay freight, since the vessel is provided to him for a specified fee. The contract, therefore, is of a compensatory nature. The amount of freight does not depend on the quantity of cargo carried or the efficiency of the vessel's operation in any other way. Commentary on the Code of Merchant Shipping of the Russian Federation / ed. G.G. Ivanova. - M.: Spark, 2000. - 734 p.

An analysis of the definition of a time charter shows that each of the parties to this agreement has powers and bears legal obligations. A time charter is recognized as concluded from the moment the counterparties reach an agreement on all its essential terms. Finally, a time charter is a paid obligation. Consequently, a time charter is a bilaterally binding, consensual and compensated agreement.

The terms of a time charter are determined primarily by agreement of the parties. Consequently, the provisions of the agreement take precedence over the provisions of Chapter X of the KTM. Thus, the rules contained in Chapter X of the MLC (with the exception of Article 198) are dispositive in nature. This means that they are subject to application if they do not contradict the agreement between the parties, or regulate relations that are not resolved or not fully resolved in such an agreement.

The time charter must indicate the names of the parties, the name of the vessel, its technical and operational data (carrying capacity, cargo capacity, speed, etc.), navigation area, purpose of chartering, time, place of transfer and return of the vessel, freight rate, period of validity of the time -charter. (Article 200 of the Code of Labor and Trade of the Russian Federation “Content of a time charter”)

Article 200 of the Code of Labor Code provides a list of data indicated in the time charter. This list is not exhaustive; Contract proformas contain a wider range of data included in the contract.

Absence in the contract of any data specified in Art. 200 KTM does not entail the invalidity of the contract, but may reduce the evidentiary value of the document formalizing the obligation.

The contract specifies the names of the parties - the shipowner and the charterer, and their addresses. The exact name is required for their subsequent notification in all necessary cases, as well as to distinguish them from agents (attorneys) who sign the agreement on behalf of their principals, but do not enter into any legal relations under the agreement.

The name of the vessel serves as a way of individualizing it. If the ship is named, the shipowner can replace it only if there is a corresponding replacement clause (substitution) in the contract or the charterer’s consent to such a replacement. In the event that there is no corresponding clause in the contract and the charterer does not agree to replace the vessel, the death of the latter before it is provided to the charterer or during the period of his use of the vessel means termination of the contract. The charterer cannot be required to accept another vessel, even if it matches the previous one in terms of its characteristics and parameters.

Since under a time charter the commercial operation of the vessel is carried out by the charterer, he is interested, in comparison with the carrier under a contract for the carriage of goods by sea, in a wider range of indicators that characterize the vessel and can influence the level of operating costs. Thus, to determine the carrying capacity of the vessel and calculate operating costs, the contract specifies: deadweight of the vessel, including reserves of bunker, other materials and water for boilers, capacity of its cargo and bunker spaces, registered capacity, speed in good weather and calm seas, class , year of construction, engine power, fuel consumption and type. When chartering a vessel for the purpose of using it to transport cargo, data on the number of holds, tanks, tween-decks, decks, the size of hatches, the presence of cranes, booms and other cargo mechanisms, draft with cargo and in ballast acquires considerable importance. From a political and commercial point of view, it is also important for the charterer which flag the ship flies, since at certain times (for example, during war) the safety of the ship or the ability of the charterer to carry out trade operations depends on this.

The discrepancy between the data about the vessel recorded in the contract and its actual condition may have negative consequences for the ship owner.

In the international practice of chartering ships for a time, the charterer can cancel the contract and recover losses incurred by him due to an incorrect description of the ship if one of three conditions is met:

1) an incorrect description of the vessel affects the essence of the contract and leads to a significant deprivation of the charterer’s profit;

2) the shipowner cannot fulfill the requirement for the suitability or readiness of the vessel by the clearance date and thereby eliminate the discrepancy between the description of the vessel and its actual condition;

3) the shipowner cannot bring the ship into a condition that meets its description under the contract, or refuses to do so.

If there are no grounds to cancel the contract, the charterer may recover losses incurred by him as a result of an incorrect description of the vessel in the contract.

The agreement usually specifies the geographical area in which the charterer can operate the vessel (clause 2 of the Baltime time charter, lines 27-31 of the New York Produce time charter). When determining the boundaries of this Area, both the technical and operational parameters and characteristics of the vessel, as well as the commercial and political interests of the parties, are taken into account. The area of ​​the world's oceans in which a vessel is allowed to navigate is usually determined by establishing a ban on operating the vessel in high latitudes or areas dangerous for navigation, or entering the ports of a certain coastal strip or of a particular state (states). This condition of the contract means that the ship can be sent to any geographical area with exceptions agreed upon by the parties and established in the contract. Commentary on the Code of Merchant Shipping of the Russian Federation / ed. G.G. Ivanova. - M.: Spark, 2000. - 734 p.

The purpose of chartering can be indicated in a time charter with varying degrees of certainty and detail. The contract, for example, may only indicate the type of activity: “for the transportation of legal goods”, “for the extraction of mineral resources”. When using a ship to transport cargo, the contract may specify the type of cargo that is not accepted on the ship due to its properties that pose a danger from a technological or commercial point of view (for example, live livestock, harmful flammable or dangerous goods, weapons and military equipment , smuggling, etc.). The parties can also agree on transportation certain type cargo, such as grain, ore, timber, or the extraction of certain minerals. The agreement may determine the type of marine fishing or scientific research activity in cases where it is intended to use the vessel for these purposes.

The time charter specifies the time of transfer of the chartered vessel by the shipowner to the charterer and the time of its return (release from the lease). This time is often indicated by indicating the period in which the ship must be transferred or returned (“from... to..."). Sometimes, along with the dates, the contract specifies the hours at which the transfer or return should be made (“between 9 a.m. and 6 p.m....”). Typically, the return of the vessel should at least approximately coincide with the end of the period for which the time charter was concluded.

The contract usually does not indicate a specific port in which the ship must be handed over to the charterer, but a segment coastal strip, within which the charterer has the right to choose the port of acceptance and return of the vessel, i.e. range.

The shipowner is obliged to transfer the vessel for use to the charterer at an accessible berth or dock (clause 1 of the Baltime proforma, line 20 of the New York Produce proforma). The contract, as a rule, includes a condition that the vessel be in a safe condition at the berth or dock and always be afloat (clause 1 of the Baltime proforma, line 20 of the New York Produce proforma). The terms of the contract also sometimes require that the delivery port be ice-free.

The charterer is obliged to nominate the port and berth, giving the shipowner a notice to this effect a few days before the delivery of the vessel. In the event that the berth was not nominated or turned out to be inaccessible to the vessel, for example due to a congestion of ships, the shipowner has the right to receive the agreed freight for the entire waiting period.

The amount of freight under a time charter is determined based on the daily rate for the vessel as a whole or the monthly rate for each ton of deadweight. The level of freight rates is determined taking into account the conditions on the global freight market. The freight rate is influenced by information about the vessel, the area of ​​its operation and other terms of the contract.

The period for which the contract is concluded can be specified in the form of a period (usually from 2 to 10 years) or the time required to complete one or several voyages for the transportation of cargo, towing or rescue operations, etc. (trip -charter). The calculation of the period begins from the moment the vessel is provided for use by the charterer.

In this chapter we should look at Article 201 “Form of Time Charter”:

A time charter must be in writing.

A time charter must be in writing. By virtue of paragraph 1 of Art. 609 of the Civil Code, a lease agreement must be concluded in writing only when it is concluded for a period of more than a year or when at least one of the parties to this agreement is a legal entity. But as an exception to this rule in Art. 633 Civil Code and Art. 201 of the KTM, the requirement to comply with a simple written form in relation to the rental of vehicles with a crew, in particular time charter, is put forward regardless of the duration of the contract and its subject composition. Marine vessels, as well as inland navigation vessels are classified as real estate. However, the rule on state registration of real estate lease agreements (clause 2 of Article 609 of the Civil Code) does not apply to the rental of vehicles with a crew (Article 633 of the Civil Code).

In practice, a time charter is concluded on the basis of printed proformas (standard forms) of time charters, which set out the most commonly used conditions of these agreements. The use of proformas speeds up and facilitates the process of developing and agreeing on the content of the contract and makes it possible to concentrate on agreeing on the conditions that individualize the contract. In addition, the use of proformas to a certain extent contributes to the unified regulation of relations arising on the basis of the contract.

When concluding a time charter, the universal proforma time charter “Baltime” was widely used. This proforma was developed by BIMCO in 1939, and in 1950 it was modified and supplemented by the Documentation Council of the British Chamber of Shipping. Shipowners and charterers in Germany widely use the Deutzeit time charter proforma, while French shipowners and cargo owners use the Francotime proforma. For the transportation of goods from the ports of the American continent, the New York Produce proforma, developed in 1913 and last time revised 1946

Temporary chartering of tankers is often carried out on the basis of the proforma “Tanker Time Charter Party” (code name “STB TIME”). In 1968, BIMCO developed the “Linertime” proforma for the operation of temporarily chartered vessels in line traffic. Time chartering of vessels intended for the carriage of passengers is often carried out on the basis of the Incharpass pro forma developed by the Institute of Brokers in the UK.

According to paragraph 2 of Art. 162 of the Civil Code, failure to comply with the form required by law entails the invalidity of the transaction only in cases expressly specified in the law or in the agreement of the parties. Article 633 of the Civil Code, while requiring the conclusion of a rental agreement for a vehicle with a crew in writing, does not provide for the recognition of the agreement as invalid due to failure to comply with the written form. Therefore, violation of the requirements of the law regarding the simple written form of the contract is associated with procedural and legal consequences: the fact of concluding the contract and its content in the event of a dispute can be proven by other written evidence (letters, telegrams, radiograms, telexes, faxes, etc.). d.) and any other evidence, except for testimony.

According to Art. 209 of the Code of Labor Code of the Russian Federation “Destruction of a vessel and payment of freight”, the death of a vessel automatically, i.e., without any agreement of the parties or expression of the will of one of them, terminates the time charter. Termination of the contract entails the termination of payment of freight.

The loss of a ship means not only its physical destruction, for example as a result of a fire, but also going missing. The destruction of a vessel is also considered to be its structural destruction, in which it cannot be used as a vessel.

The charterer is obliged to pay freight on the day of the ship's destruction or on the day of receiving the last news about it. The obligation to pay freight on the day of sinking of the vessel is also stated in the Baltime proforma (clause 16, line 119). As for the missing vessel, according to the condition of the Baltime pro forma (clause 16, line 120), in the case where the day of loss cannot be determined, the freight is paid in half from the date of receipt of the last message about the vessel until the estimated date of arrival ship to the port of destination.

4.5.1. Basic provisions of chartering

Chartering is an agreement between the charterer and the shipowner (charterer) to hire a ship to perform specific voyages or hire it (lease) for a period of time for an agreed fee.

In the first case, the charterer needs to transport a certain volume of cargo in a certain direction and hires a ship for this purpose; organization and execution of the voyage, operational management of the vessel, crew management, most of the costs and risks of the maritime enterprise remain with the shipowner. Payment is made in the form of freight for the transported amount of cargo. These forms of chartering include: voyage charter, charter for successive voyages, general contract.

When chartering on time ship transferred under operational management to the charterer for a certain period. The charterer uses it for sea transportation at his own discretion, within the limits provided for in the contract; he also assumes the main travel expenses and commercial risks associated with the transportation of goods. Payment for the vessel is made in the form of rent for the period of use of the vessel, regardless of the results of its work. This group includes time charter and bareboat charter.

Chartering a vessel (fleet) for a time is divided into chartering under a time charter, bareboat charter and demise charter.

Long-term chartering practice has developed commonly used charter conditions, and this subsequently led to the development of standard charter forms (proformas). Currently, more than 400 proforma charters are known. They were developed under the auspices of the oldest and most authoritative organizations of the English Chamber of Shipping, founded in 1877, and the Baltic International Maritime Conference (BIMCO), founded in 1905.

There are proforma charters available for the carriage of coal, coke, grain, rice, peanuts, salt, fruits and fertilizers. For some cargoes, several charters have been developed depending on the direction of cargo flows. Transportation of cargo for which there are no special forms is, as a rule, carried out on the basis of a Jencon charter.

The advantage of proforma charters is that they take into account the interests of charterers and shipowners. Most of these charters are compromises of sorts, worked out after lengthy negotiations.

The use of proforma charters greatly facilitates the technique of chartering ships. In practice, charter conditions can be agreed upon by telephone, telex, or fax.

When chartering, the parties agree on the standard proforma of the charter and the changes to be made. Typed text in a charter form takes precedence over printed text. Often all changes and additions are summarized in the so-called addendum attached to the charter form (from the English addendum - appendix, addition).

Basic conditions of the charter. The range of conditions contained in the charter is quite wide. Let us limit ourselves to considering the most important of them.

1. Substitute - the right of the shipowner to replace the named vessel with another. This vessel does not have to be of the same type, but must have similar performance characteristics in order to ensure the transportation of the specified amount of cargo.

2. Seaworthiness. This means that the vessel must be waterproof, durable and strong and in all respects equipped for the voyage (tight, staunch and strong and in all respects fitted for the voyage).

3. Safe port. In cases where the charter does not specify a port or ports, a clause is made that the port must be safe. There is, first of all, the safety of the port due to natural conditions. However, if any political events (uprising, civil strife) or military operations occur in the port, then it is not considered safe.

4. As close as the ship can safely get (as near as she can safely get). This condition is indicated in cases where the ship, for some reason, cannot approach directly to the place of cargo operations.

5. Always afloat. The vessel is under no circumstances obliged to carry out cargo operations if there is not a sufficient supply of water under the keel.

6. Laydays. The charter specifies the rules for applying cargo work standards, methods for calculating lay time, etc.

7. Demurrage - payment for demurrage. If the vessel is idle in excess of the norm, the shipowner must be reimbursed for its costs of maintaining the vessel during the stay.

8.Super-contrast steel (detention). Typically, charters provide for the right of the charterer to keep the vessel idle for only 5-10 days, after which it switches to super-stay. In this case, the charterer is obliged to pay not only the shipowner's expenses for maintaining the ship, but also losses that may arise due to possible delays, entailing, in particular, failure to fulfill obligations in relation to another charterer.

9. Dispatch. If the ship is loaded or unloaded earlier than the time stipulated by the contract, the charterer has the right to compensation for his efforts to complete cargo operations ahead of schedule. Usually the dispatch is equal to half of the demurrage.

10. Reversible. This term occurs in cases where downtime and dispatch during loading or unloading are mutually counted.

11. Cancelling is the right of the charterer to terminate the contract of sea carriage if the ship does not arrive at the port of loading by a certain date.

12. Notice of readiness of the vessel. Having arrived at the designated port, the captain must declare the vessel's readiness for cargo operations. In accordance with established practice, a ship is considered to have arrived if:

a) the ship is located not only in the port, but also in the place where it should be chartered;

b) the vessel is ready for cargo operations;

c) the vessel notified the charterer (or his representatives) of its arrival and readiness for cargo operations.

13. Termination of liability (cesser clause). This clause releases the charterer from liability from the moment the ship is loaded. The essence of this clause is that from this moment the shipowner must turn to the cargo owner, and not the charterer, with possible property claims. Typically this clause is combined with a lien clause.

4.5.2 Voyage charter

Chartering of ships under a voyage charter is divided into chartering for a voyage, a round trip, for successive voyages and under a contract (general charter contract).

Voyage charter- the most common form of tonnage charter agreement in international maritime transport. Under a voyage charter, the shipowner (charterer) undertakes to transport a certain cargo between specified ports on an agreed vessel or part thereof. The charterer must pay the shipowner freight at the agreed rates.

The charter stipulates in detail all the conditions of the upcoming voyage, the rights and obligations of the parties. The main parameters of the voyage are determined by the requirements of the charterer; he selects a vessel on the charter market the right type and size, establishes loading and unloading ports, time of delivery of the vessel for loading, name and quantity of cargo, etc. Many conditions of transportation are determined by the sales contract and cannot be changed upon conclusion of the charter.

Both parties, the shipowner and the charterer, are interested in the successful and speedy completion of the voyage, however, in particular, their interests do not coincide and may even be directly opposite (for example, in terms of the amount and timing of freight payment), in this regard, each charter condition is a kind of compromise , to one degree or another, balancing the interests of the parties, leaving a certain freedom for each party to fulfill its obligations, and at the same time providing sufficient certainty for voyage planning, cost calculation and freight rates.

Chartering for the flight implemented as a transaction in which a specific vessel is chartered to transport a specific cargo (legal for that vessel) between two or more ports. Having completed such transportation and received the agreed amount of freight, the commercial relationship of the shipowner with the charterer is terminated.

When chartering on round trip The charterer ensures that the vessel is loaded directly and reverse direction. Essentially, these are two independent freight transactions, but they are concluded simultaneously, involving one vessel performing two sequentially connected voyages to transport usually unequal cargo between different ports.

Chartering on consecutive flights fundamentally different from chartering a flight in that the deal is concluded for two or more similar flights. In such an agreement, a special clause appears on how many voyages the ship must perform, and the right of the shipowner to charter the ship in the associated ballast direction for another cargo is agreed upon and fixed, fulfilling the main transaction. Such freight transactions are practiced in cases where the shipper needs to transport a certain mass of cargo in several shipments and the time parameters of the round trip satisfy the dispatch time of each shipment.

Special character carries the chartering of ships under a contract (general charter contract). In this case, the shipowner is hired with his own or rented tonnage. The shipowner undertakes to transport a certain mass of cargo in several steamship parties during a specific period of time.

Specialized proforma charters with their blank conditions reflect the specifics of the cargo being transported and the peculiarities of the operation of vessels in the region or direction. They are differentiated based on these characteristics.

The table shows proformas for voyage dry cargo charters.

The most common proforma contract in maritime shipping is the “Universal Time Charter”, codenamed “Baltime”.

Standard forms voyage charters contain 45 or more points.

Basic proformas for voyage charters.

Code name	Construction structure (last)	Area of ​​application
Universal proformas
"Genkon" "Newvoy"	Two-piece box	Anyone Too
Ore and phosphate proforms
"Sovorkon"	Boxing	Export of ore from domestic ports in any direction
C/0/7	Traditional	Removal of ore from ports Mediterranean Sea, India, Brazil
"Sovetor"	Traditional	Export of ore from the ports of CIS countries in any direction
"Murmapatit"	Boxing	Export of apatite and concentrate from Murmansk
"Afrikanfos"	Traditional	Removal of phosphates from ports North Africa
Coal proformas
"Sovkol"	Traditional	Removal of coal, coke, sand

4. 5. 3 Time charter

Under a ship charter agreement for a time (time charter), the shipowner undertakes, for a specified fee (freight), to provide the charterer with the ship and the services of the ship's crew members for use for a certain period of time for the transportation of goods, passengers or for other purposes of merchant shipping.

The time charter must indicate the names of the parties, the name of the vessel, its technical and operational data (carrying capacity, cargo capacity, speed, etc.), navigation area, purpose of chartering, time, place of transfer and return of the vessel, freight rate, validity period of the time charter . A time charter must be concluded in writing.

When registering a time charter, the following must be indicated:

The exact names of the parties and their location;

Deadline for placing the vessel under time charter;

Place and procedure for transferring the vessel to the charterer;

Data that individualizes the vessel and, in particular, the power of the ship’s engines, the speed of the vessel, and register capacity.

The time charter must also indicate the vessel's navigation area.

The time charter provides for the place where the vessel will be returned to the shipowner. Usually there is a specific port specified in the contract, or a geographical area is established within which this port must be located.

The shipowner is also obliged to maintain the ship in good condition throughout the entire time charter period.

The shipowner provides routine services to the crew. This duty is provided for in almost all forms of time charter. Thus, in Article 9 of the Baltime proforma it is stated: the captain carries out all flights at the highest speed and with the usual crew services. These services include routine cleaning of holds during a voyage, provision of ship winches for cargo operations, etc.

The primary responsibility of the charterer under a time charter is the timely payment of the appropriate fees for the use of the vessel.

The charterer must operate the vessel in accordance with the terms of the time charter. He has no right to use the vessel for purposes not provided for by the time charter, or in a navigation area not stipulated by the contract. The charterer is limited in the ability to transport goods if the time charter contains certain restrictions in this regard. The charterer also does not have the right, unless this was specifically stipulated in the time charter, to contribute design changes in the design of a vessel for loading and transporting special cargo.

One of the features of a time charter is the condition that, although the ship is transferred to the charterer for use, the captain remains shipowner's employees. All orders of the shipowner are transmitted only to the captain, and he is responsible for their failure to comply. The captain is obliged to obey the orders of the shipowner in matters of navigation, technical and navigational operation of the vessel, crewing, internal regulations, etc.

The charterer disposes only of the commercial operation of the vessel. He has the right to independently enter into contracts for the carriage of goods and act as a carrier in these contracts. In this regard, he can sign charters, bills of lading, distribute travel tickets and so on.

Another feature of the time charter agreement is the distribution of salvage fees in equal shares between the shipowner and the charterer. In this case, the time spent on rescue is not excluded from the time charter period. The charterer is not exempt from paying fees during this time. The remuneration due to the ship for rescue or assistance, after deducting from it all losses incurred by the shipowner in connection with salvage operations, as well as the shares due to the ship's crew, are distributed among.

4. 5. 4 Bareboat charter

Under a contract for chartering a vessel without a crew (bareboat charter), the shipowner undertakes, for a specified fee (freight), to provide the charterer with the use and possession for a certain period of time of an unmanned and unequipped vessel for the transportation of goods, passengers or for other purposes of merchant shipping.

The bareboat charter must indicate the names of the parties, the name of the vessel, its class, flag, technical and operational data (carrying capacity, cargo capacity, speed and others), the amount of fuel it consumes, the navigation area, the purpose of chartering, the time, place of transfer and return of the vessel , freight rate, duration of bareboat charter. A bareboat charter must be concluded in writing.

The subject of a bareboat charter is the transfer of a vessel to the charterer for temporary use without the provision of crew services.

In maritime law, a bareboat charter is understood as an agreement under which the shipowner undertakes, for a specified fee (freight), to provide the charterer with the use and possession for a certain period of time of an unmanned and unequipped vessel for the transportation of goods, passengers or for other purposes of merchant shipping. Unlike a time charter, under a bareboat charter the vessel is provided to the charterer for a certain period not only for use, but also for possession, since the crew is subordinate to him in all respects, and an unmanned and unequipped vessel is transferred to the charterer. In this case, the charterer must staff the vessel with a crew and equip it after handing over the vessel to the shipowner.

The charterer's primary responsibility is to pay the shipowner's freight in advance, usually at the monthly rate agreed upon by the parties. In case of delay in payment of freight, the shipowner has the right to withdraw the ship from the charterer without warning and recover from him the losses caused by the delay. In this case, the charterer is exempt from paying freight and expenses for the vessel for the time during which it was unfit for operation due to unseaworthiness, except in cases where the unfitness was due to the fault of the charterer himself or the ship's crew members.

The vessel's crew is staffed by the charterer. He has the right to staff it with persons who have not previously served on this ship, or, in accordance with the terms of the contract, to accept into service the previous crew or part of it. Once crewed, the captain and other crew members become employees of the charterer and are completely subordinate to him in all respects.

The responsibility of the charterer under a bareboat charter is to maintain the crew, pay expenses for the vessel, including its insurance. The charterer is obliged to maintain the ship in seaworthy condition during the term of the contract, however, eliminating hidden defects of the ship is the responsibility of the shipowner. The bareboat charter charterer bears losses caused by the salvage, damage or loss of the vessel if they were caused through his fault or the fault of the ship's crew members. At the end of the contract, the charterer is obliged to return the vessel to the shipowner in the condition in which he received it, excluding normal wear and tear.

The main responsibility of the shipowner is to hand over the vessel to the charterer. In this case, the shipowner is obliged to bring the vessel into a seaworthy condition by the time of its transfer, i.e. take measures to ensure the suitability of the vessel for the purposes provided for in the contract.

In the practice of merchant shipping, it is often common to transfer a vessel to a bareboat charter with the condition of its subsequent redemption. Under such a bareboat charter, the ship becomes the property of the charterer upon expiration of the contract if the charterer fulfills his obligations and makes the final payment of the freight. At the same time, various forms of bareboat charters with the condition of redemption of the vessel by the charterer provide various conditions, rights and obligations of the parties to such an agreement.

Currently, from a civil legal point of view, a bareboat charter can be characterized as a type of vehicle rental agreement without the provision of crew services, as provided for by the Civil Code of the Russian Federation. At the same time, due to the peculiarities of merchant shipping, this agreement, like a time charter, is an independent and special agreement of maritime law, which has a unique legal nature.

The main differences between a contract for the carriage of goods by sea and a charter agreement.

1. The purposes of contracts are different. The purpose of the contract for the carriage of goods by sea is to provide services for moving cargo from the port of departure to the port of destination, while the purpose of the charter agreement is to provide a vessel for temporary use.

2. The subject of the contract for the carriage of goods by sea is the activity of moving goods by sea. The subject of a charter agreement, as a type of lease agreement, is a vessel and crew services under a time charter agreement and a vessel without the provision of crew services under a bareboat charter agreement.

3. The right to use and own a ship belongs to the shipowner under a contract for the carriage of goods by sea. Under the terms of a time charter, the charterer has the right to use the vessel, and under a bareboat charter, the right to own the vessel.

4.The intended use of the vessel is different. Under a charter agreement, it is possible to charter a vessel for purposes other than transportation of cargo for merchant shipping (for transportation of passengers, water resources, pilotage and icebreaker assistance, etc.).

5. The captain and crew members of the ship on issues related to the management of the ship, the internal regulations on the ship and the composition of the crew, as well as on issues of commercial operation of the ship under a contract for the carriage of goods by sea, are subordinate to the shipowner. Under a time charter agreement, the charterer's orders regarding the commercial operation of the vessel become mandatory for the captain and other crew members, and under a bareboat charter agreement, the charterer's orders on all issues become mandatory.

6.Rent (freight) under a vessel charter agreement does not depend on the presence of cargo on the vessel, its quantity, or the efficiency of operation of the vessel. Under a contract for the carriage of goods by sea, the amount of payments is determined depending on the weight or volume of the cargo transported, taking into account its specific properties, as well as the number of additional ports of call.

7. The risk of damage and loss of the vessel under a contract for the carriage of goods by sea in any case is borne by the shipowner; under a time charter agreement, the charterer bears the risk of damage and loss of the vessel that occurred in connection with its commercial operation, whereas, under the terms of a bareboat charter, the risk of damage and the loss of the vessel lies entirely with the charterer.

8. The carrier’s obligation under a contract for the carriage of goods by sea to make the vessel seaworthy is to prepare the vessel for transportation of a certain cargo in a separate geographical area.

A vessel chartered under time or bareboat charter must be seaworthy at the beginning of the period for which it is chartered. The shipowner is not obliged to renew the holds or other cargo spaces of the ship every time in a condition that meets the characteristics of each specific transportation carried out during the period of validity of these contracts.

Comparative characteristics of the contract for the carriage of goods by sea and the charter contract are given in Table 1.

Our comparative analysis of two types of contracts: sea transportation of goods and chartering clearly indicates the different legal nature of these contracts.

Vessel charter agreement, represented by two types - time charter and bareboat charter, belongs to the group property lease agreements. In terms of providing crew services under time charter, it goes beyond the scope of “pure” rental. However, taking into account the main purpose of the contract (use and ownership of property) and omitting the secondary purpose (services of the ship's crew members), it should be stated: a contract for chartering a ship for a time is vehicle rental agreement.

The rules governing the relationship between the parties when chartering a vessel for a time (time charter) are contained in Chapter X of the IMC. In practice, the provisions of this chapter are used relatively rarely, since in maritime shipping there are various proformas developed by BIMCO or other organizations. Thus, such proformas as “Baltime”, “New York Produce” (universal charters), also proformas “STB TIME”, “BPTIME” (for tankers), “Incharpas” (for passenger ships), linear time- charter "Linertime", time charter for refrigerated cargo "Reeftime" and some others. At the same time, according to Art. 199 MKM, the rules established by Chapter X apply unless otherwise established by agreement of the parties, i.e. These rules are dispositive in nature.

When analyzing Chapter X of the MCC, as well as other relevant chapters, it should be borne in mind that, according to Art. 1 KTM property relations arising from merchant shipping are regulated by the KTM in accordance with the Civil Code of the Russian Federation. The Civil Code (Chapter 34 “Rent”) includes for the first time provisions on the rental of vehicles, including the rental of a vehicle with the provision of management and technical operation services (Articles 632 - 641). According to Art. 641 of the Civil Code, transport charters and codes may establish lease features other than those provided for in § 3 of Chapter 34 individual species vehicles with the provision of management and technical operation services. Thus, issues of the time charter agreement that are not regulated in Chapter X of the KTM are regulated by the rules of the Civil Code, and primarily contained in § 3 of Chapter 34.

As established by Art. 201 KTM, a time charter must be concluded in writing. The same provision is contained in Art. 633 of the Civil Code - with the addition that the written form is applied regardless of the term of the contract. The point is that Art. 609 of the Civil Code (clause 1) requires the conclusion of a lease agreement in writing if the agreement is concluded for a period of more than a year (if one of the parties to the agreement is a legal entity - regardless of the term). Therefore, in all cases it must be in writing.

Another important clarification, missing in the MCM, is contained in Art. 633 of the Civil Code: provisions on state registration real estate lease agreements provided for in paragraph 2 of Art. 609 of the Civil Code (in one of the cases considered by the MAC, the defendant referred to the lack of state registration as a basis for the invalidity of the time charter agreement).

Finally, the rules regarding the renewal of a lease agreement do not apply to this agreement. indefinite term and on the tenant’s pre-emptive right to conclude a lease agreement for a new term, provided for in Art. 621 Civil Code.

The definition of a time charter agreement is contained in Art. 198 KTM, according to which, under a contract for chartering a vessel for a time (time charter), the shipowner undertakes, for a specified fee (freight), to provide the charterer with the vessel and the services of the vessel’s crew members for use for a certain period of time for the transportation of goods, passengers or for other purposes of merchant shipping.

This definition basically corresponds to the definition of a lease (time charter) contained in Art. 632 of the Civil Code, however, there are certain clarifications. Firstly, in Art. 632 we're talking about on the rental of a vehicle, regardless of the purposes for which it will be used, while in Art. 198 MKM specifies that the ship is provided for use for merchant shipping purposes. Secondly, in Art. 632 we are talking about temporary possession and use (and not just use), which more precisely defines the powers of the charterer (when determining the party to the time charter agreement, the legislator uses the same term as in Article 787 of the Civil Code in relation to the party to the contract for the carriage of goods).

In contrast to the 1968 MLC, in which the definition of a time charter agreement did not mention the services of ship crew members as separate conditions, since it was understood that we were talking about leasing a fully equipped and crewed ship, in the definitions contained in Art. . 632 Civil Code and Art. 198 KTM, talks about two obligations of the shipowner - to provide the ship and to provide the services of crew members. Without discussing the advisability of dividing the shipowner’s single obligation to provide a time charter with a equipped and manned vessel into two independent obligations, it should only be suggested that this was caused by the need to more clearly distinguish the lease agreement for a vehicle with a crew from the same agreement, but without a crew.

The time charter must indicate the names of the parties, the name of the vessel, its technical and operational data (carrying capacity, cargo capacity, speed, etc.), navigation area, purpose of chartering, time, place of transfer and return of the vessel, freight rate, period of validity of the time charter (Article 200 KTM).

The parties themselves determine the content of the time charter. There is data that is primarily of interest to the charterer - about the vessel being leased, and data that is of interest to the shipowner: the purpose of chartering, the area of ​​navigation, etc. Of course, both parties are interested in establishing the time and place of transfer and return of the vessel, the rental period, the rate freight, etc.

As already noted, the relevant conditions are elaborated in numerous pro forma charters. For example, according to the Baltime charter proforma, the name of the vessel, its gross and net tonnage, class, engine power, deadweight, type of bunker used, and speed are indicated. The location of the vessel, the port in which the vessel is to be leased, the time and place where the vessel will be returned to the shipowner are also indicated. With regard to the area of ​​navigation and the type of cargo transported, the pro forma provides for the possibility of the vessel sailing between any safe ports and transporting any legal cargo, with the exception of dangerous goods. These general provisions subject to clarification in additional articles. It is known that it is specifically stipulated that the vessel will not be used to transport goods to and from the ports of states subject to international sanctions, or states whose port entry is associated with a subsequent boycott of these vessels in the ports of other countries.

Usually the vessel is put on time charter for a certain date calendar months in the port specified in the charter, and is returned to the shipowner in the specified port on the specified day (from 9 am to 6 pm). Since the vessel is usually on a voyage at the end of the contract, the parties stipulate the possibility of completing it, and the return of the vessel from the lease does not always coincide with the date specified in the contract. Of course, the charterer, when sending the ship on such a voyage, must take into account the expiration date of the contract and not allow it to be unreasonably exceeded. If the market freight rate turns out to be higher than the rate established in the contract, the charterer is obliged to pay freight at the market rate for a time exceeding the contract period.

According to Art. 202 of the Code of Labor Code, unless otherwise provided by the time charter, the charterer, within the limits of the rights granted by the time charter, may conclude on its own behalf contracts for the charter of a vessel for a time with third parties for the entire period of validity of the time charter or for part of such period (subtime charter ). The conclusion of a subtime charter does not relieve the charterer from fulfilling the time charter concluded with the shipowner. This norm mainly reflects the provision of paragraph 1 of Art. 638 of the Civil Code, in which, in derogation from the general rule enshrined in paragraph 2 of Art. 615 of the Civil Code, establishes the right to sublease a vehicle without the consent of the lessor (unless otherwise provided by the lease agreement). This provision follows commercial practice. Thus, according to clause 20 of the Baltime charter, charterers have the right to sub-charter the vessel, duly notifying the shipowner of this, while remaining responsible to him for the implementation of the time charter. Since in Art. 202 of the Code of Labor Code does not say anything about the charterer’s obligation to notify the shipowner about the conclusion of a subtime charter agreement with third parties; it should be assumed that such an obligation may arise for him if it is provided for in the agreement.

The subtime charter agreement is concluded by the charterer within the limits of the rights granted by the time charter, i.e. The charterer does not have the right to stipulate other operating conditions for the vessel than those under which it was leased by himself. First of all, this concerns navigation areas, transported goods, safe ports, etc. Of course, the terms of a subtime charter may be more favorable to a third party. For example, the freight rate may be lower than the freight rate stipulated in the time charter. Despite this, the charterer is fully responsible to the shipowner for the performance of the time charter. Since the main contract is subject to the rules of Chapter X of the CTM, and the charterer, concluding a subtime charter, acts within the limits determined by this agreement, the rules of Chapter X apply to the subtime charter.

In accordance with Art. 203 the shipowner is obliged to bring the ship into a seaworthy condition at the time of its transfer to the charterer: to take measures to ensure the suitability of the ship (its hull, engine and equipment) for the purposes of chartering provided for by the time charter, to man the ship and to properly equip the ship. The shipowner is not liable if he proves that the unseaworthiness of the ship is caused by defects that could not have been detected by due diligence (hidden defects). The shipowner is also obliged, during the term of the time charter, to maintain the ship in seaworthy condition, to pay the costs of insuring the ship and its liability, as well as for the maintenance of the ship's crew members.

The provisions of this article differ only slightly from the rule formulated in Art. 124 KTM, regarding the carrier’s obligation to make the vessel seaworthy. IN general view The lessor's obligation to maintain the vehicle is also enshrined in Art. 634 of the Civil Code, according to which the lessor, throughout the entire term of the lease agreement for a vehicle with crew, is obliged to maintain the proper condition of the leased vehicle, including carrying out routine and major repairs and providing the necessary accessories. It should be noted that the MLC 1968 (Article 181) avoided using the terminology inherent in a contract for the carriage of goods in relation to the obligations of the shipowner under time charter. This was also consistent with commercial practice (see, in particular, paragraph 3 of the Baltime pro forma). Although the names of Articles 124 and 203 of the MLC are identical (“Seaworthiness of the vessel”) and their content largely coincides, there is one thing between them fundamental difference: if transportation is carried out on the basis of a bill of lading, the agreement of the parties, contrary to Art. 124 KTM, is void, while the rules of Art. 203 CTM are dispositive in nature.

If the ship is leased for the carriage of goods, the shipowner’s obligations to bring the ship into a seaworthy condition will not differ significantly from those established by Art. 124 KTM. Since in most cases, during the term of a time charter, the charterer can transport any cargo (with the exception of cargo, the carriage of which is not expressly permitted under the terms of the contract), when the vessel is leased, it must be brought into a condition suitable for the carriage of goods, usually transported on ships of this type.

Responsibilities between the shipowner and the charterer under a time charter are usually divided in the following way.

The shipowner ensures normal and safe operation of the vessel in accordance with the contract. Crew members are employees of the shipowner, and, therefore, the captain and other crew members of the ship are subject to the orders of the shipowner related to the management of the ship, including navigation, internal regulations on the ship and the composition of the ship’s crew (clause 1 of article 206 of the KTM). Under normal circumstances, the charterer himself is not interested in interfering with technical processes operation of the vessel. However, pro forma contracts provide for this possibility. For example, according to clause 9 of the Baltime proforma, if the charterer has reason to be dissatisfied with the actions of the captain, his assistants or mechanics, then the shipowner, upon receipt of the charterer's complaint, is obliged to urgently investigate it and, if necessary and appropriate, replace the relevant crew members.

The charterer is obliged to use the vessel and crew services in accordance with the purposes and conditions of their provision, defined by the time charter (Clause 1, Article 204 of the Code), and his orders regarding the commercial operation of the vessel are binding on the captain and other members of the vessel’s crew. However, these orders, firstly, must be given within the framework of the contract (operation of the vessel for the purposes specified in the time charter; transportation of specified cargo and in specified areas; provision of calls at safe ports, etc.); secondly, they should not affect the safety of navigation. The master is not entitled to carry out such instructions from the charterer, even if they relate to commercial operation.

According to paragraph 1 of Art. 204 KTM, the charterer pays the cost of the bunker and other costs and fees associated with the commercial operation of the vessel, i.e. costs and fees that are variable and the availability of which depends entirely on the operation of the vessel. In the KTM, only bunker costs are directly mentioned, while in pro forma contracts this provision is disclosed in some detail. Thus, according to clause 45 of the Baltime proforma, charterers are required to pay, in addition to fuel, port dues, canal, dock, municipal and other fees, costs of loading and unloading cargo, the cost of fumigation and disinfection, etc. At the same time, all income received as a result of the use of the chartered vessel and the services of crew members are the property of the charterer (with the exception of remuneration for the provision of rescue services). As defined in Art. 210 KTM, the remuneration due to the ship for salvage services provided before the end of the time charter is distributed in equal shares between the shipowner and the charterer, minus the cost of salvage and the share of remuneration due to the crew of the ships. Salvage services are outside the scope of the time charter agreement, however, since they are provided by members of the crew of the vessel under lease, i.e. at the disposal of the charterer, they are distributed equally between the latter and the shipowner. The amount remaining after deducting all salvage expenses, including freight paid under the charter for the period spent on salvage, the cost of fuel consumed, repairs, etc., is distributed.

At the end of the time charter period, the charterer is obliged to return the vessel to the shipowner in the condition in which it was received by him, taking into account normal wear and tear (clause 2 of article 204 of the KTM; clause 7 of the Baltime proforma). Typically, the contract provides that the charterer is required to give the shipowner notice (for example, at least 10 days in advance) indicating the port and date of return of the ship from the time charter.

As already noted, the charterer has the right to transfer the vessel to a subtime charter without the consent of the shipowner. Along with this, the charterer, as part of commercial operation, may, without the consent of the shipowner, if the ship is provided to the charterer for the carriage of cargo, enter into contracts for the carriage of cargo on its own behalf, sign charters, issue bills of lading, sea waybills and other shipping documents. Thus, the charterer becomes the carrier in the sense of Art. 115 KTM and bears the responsibility established for the carrier to the shipper, i.e. in accordance with Art. Art. 166 - 176 KTM. For example, if the charterer transports cargo on the basis of a charter, his responsibilities (bringing the vessel into a seaworthy condition, period of liability), the amount of liability and its limitation, etc. will be determined by the relevant provisions Chapter VIII CTM, which in this case are of a dispositive nature. Where carriage is carried out on the basis of a bill of lading, or where the bill of lading issued in connection with carriage under a charter party governs the relationship between the charterer-carrier and the recipient who is not a party to the contract for the carriage of the goods, the charterer's liability for the goods will be determined taking into account mandatory norms Chapter VIII. For example, if the charter of a vessel is carried out on pro forma "Baltime" terms, the shipowner is liable to the charterer for loss or damage to cargo on board the vessel if the vessel was not made seaworthy and prepared for the voyage due to the fault of the shipowner or his manager or as a result of other actions or inaction of the shipowner himself or his manager (clause 13). Consequently, if the failure of the cargo or the delay occurred for other reasons, the charterer-carrier, having compensated for the damage to the recipient of the cargo transported under the bill of lading, does not have the right to fully recover it from the shipowner by way of recourse.

Otherwise, the issue of the charterer's liability for losses caused to the shipowner has been resolved. As a general rule contained in Art. 639 of the Civil Code, in the event of death or damage to a rented vehicle, the lessee is obliged to compensate the lessor for losses incurred if the latter proves that the death or damage to the vehicle occurred due to circumstances for which the lessee is responsible in accordance with the law or the lease agreement. Thus, in contrast to the principle of presumed guilt in force in the civil legislation of the Russian Federation, when renting a vehicle, the burden of proving the tenant’s guilt rests with the lessor. This reversal of the burden of proof is quite justified, since technical operation the vehicle is carried out by the lessor's employees and the occurrence of damage in many cases is associated with the actions (inaction) of these persons.

It should be noted that in the pro forma contracts the conditions of liability of the shipowner and the charterer do not completely coincide. As noted above, the shipowner is liable for losses if they are caused own actions or inaction of the shipowner or his manager. The charterer is liable for loss or damage resulting from the cargo being loaded in breach of the terms of the charter, improper or negligent loading, stowage, unloading and other negligent or improper acts on the part of both the charterer and his servants.

According to Art. 207 KTM, the charterer is not liable for losses caused by the salvage, loss or damage of the chartered vessel, unless it is proven that the losses were caused by the fault of the charterer. It is not difficult to notice that, keeping general approach contained in Art. 639 of the Civil Code, KTM supplements the list of circumstances with a reference to rescue operations, which is also quite logical, since the rescue operation begins by decision of the shipowner and is carried out by his employees.

As for liability for damage caused to third parties by a ship under time charter, it is determined in accordance with Art. 640 GK. According to this article, liability for damage caused vehicle, its mechanisms, devices, equipment, is borne by the lessor in accordance with the rules provided for by Chapter 59 of the Civil Code, i.e. regardless of guilt - as the owner of a source of increased danger. The shipowner can be released from liability only in cases force majeure or the intent of the victim (clause 1 of Article 1079 of the Civil Code). If damage is caused to a third party through the fault of the charterer, the shipowner has the right to make a recourse claim against him for compensation of amounts paid to third parties, but the burden of proving that the damage arose through the fault of the charterer rests with the shipowner.

Freight rates, terms and procedures for its payment are specified in detail in the charter forms. Thus, according to clause 6 of the Baltime charter, the rent is paid every 30 days in advance. If the freight is not paid, the shipowner has the right to withdraw the ship from service from the charterer, without taking into account his objections and without resorting to compulsory procedures. At the same time, the charterer has the right not to pay freight if the vessel is docked or undergoing repairs, if it is not staffed with a crew or with the necessary supplies, and in other cases that delay the normal operation of the vessel for more than 24 hours. The amount paid in advance is subject to return or is taken into account in further calculations. Shipowners have a lien on cargo and subfreight due to the charterer during commercial operation in respect of amounts due to the shipowner. In turn, the charterer has a lien on the vessel to secure the amounts paid in advance.

If the parties have not settled the issues of freight payment in the contract, the provisions of Art. 208 KTM. According to this article, the charterer is exempt from paying freight and expenses for the ship for the time during which the ship was not suitable for operation due to its unseaworthiness. If the ship becomes unfit for operation due to the fault of the charterer, the shipowner has the right to freight provided for in the time charter, regardless of compensation by the charterer for losses caused to the shipowner.

If the charterer delays payment of freight by more than fourteen calendar days the shipowner has the right to withdraw the ship from the charterer without warning and recover from him the losses caused by such delay. Compared to the conditions of clause 6 of the Baltime charter, Art. 208 KTM provides the charterer additional term to pay for freight, only after the expiration of which does the shipowner have the right to repossess the ship.

Unless the parties agree otherwise, the loss of the vessel entails the termination of payment of freight. Thus, according to clause 16 of the Baltime pro forma, if the ship is lost or missing, the rent is not paid from the date of the ship's death. If the date of death cannot be established, then the rent is paid in half from the date of receipt last message about the ship before the estimated date of arrival at the port of destination. In the MLC (Article 209), the issue of payment of freight in the event of the death of a vessel is resolved as follows: in the event of the death of a vessel, freight is payable from the day provided for by the time charter to the day of the death of the vessel or, if this day cannot be determined, to the day of receipt of the last news of ship

Form for concluding a charter agreement.

In accordance with current legislation, a charter agreement is concluded in simple written form. An agreement in writing can be concluded by drawing up a single document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement.

The preparation of a single document requires the greatest attention. The terms and conditions included by the parties in the contract should exclude as much as possible the possibility of ambiguity of interpretation. The document stipulates

The contract for chartering a sea vessel is one of the oldest in international law. In addition, given the constant demand for services provided by shipowners and other carriers, charter agreements are concluded very often. At the same time, the specifics of the vessel and its operation at sea do not allow us to limit ourselves summary basic terms of the contract, the parties are forced to regulate in detail many nuances. The result of long-term developments was the creation of standard proformas for charters of all types. Proformas have been developed, recommended or approved by such authoritative non-governmental international organizations in the field of shipping as the Baltic and International Maritime Conference (BIMCO), British Chamber of Shipping, IMO, etc.

Most often, charter forms consist of two parts - the first part, the so-called “box”, and the second part, containing the actual text. Proforma charters are used by signing the full text of the proforma with changes made by the parties, by filling out and signing the box part, by “filling out” the boxes with the terms agreed upon by the parties as a result of correspondence. In addition, when concluding various contracts related to the operation of the vessel, the parties may refer to a specific pro forma. In this case, from the point of view of Russian legislation, the pro forma charter will represent approximate terms of the contract, a reference to which is contained in the contract.

The commercial results of the flight, as well as minimizing the possibility of claims, largely depend on the knowledge of the terms of the main charter forms by the participants in the transport process, their competent and correct application.

For ease of use, all recommended proformas have line numbering, which remains unchanged regardless of the edition of the proforma and the language in which it is published. Thus, the parties have the opportunity, by signing an addendum or by correspondence, to agree on specific terms, exclude certain provisions from the pro forma or supplement it.

If the parties only refer to the proforma, it must be remembered that some proformas have the same name, but a different wording. Therefore, the year in which the required revision was approved should be indicated.

When adjusting the text of the pro forma, the parties must take into account that changing some conditions may change the legal nature of the contract and when interpreting the contract taking into account the rules of substantive law, regardless of the name of the contract, it will be necessary to be guided by the rules of law governing the actual relations of the parties.

When concluding a charter agreement with a specific counterparty for the first time, as, indeed, with any agreement, it is necessary to establish whether the charterer has the right to enter into such an agreement. Ideally, you should request copies of the constituent documents (Charter and certificate of registration), which will remain attached to your copy of the agreement until the end of settlements under it. If this is technically impossible (for example, the contract is concluded by correspondence, etc.), the charterer indicates the details of the constituent documents.

Often, when there is a need to contact the charterer during the execution of contracts, difficulties arise; therefore, the contract must specify the actual and postal address, as well as all other means of communication. The contract may include a condition obliging the charterer to promptly notify of a change of address, failing which all notifications from the shipowner will be considered received upon receipt at the address specified in the contract.

An important point is to establish the solvency of the charterer. Currently, vessels are often rented for specific transportation and fishing purposes with the condition that freight is paid from the income received from the operation of the vessel. Firstly, even a conscientious charterer in Russian conditions and taking into account the peculiarities of work at sea is not able to reliably predict whether income will be received and in what amount. The best way to protect the interests of the shipowner is to prepay the freight. In cases where this is not possible, it makes sense to use other methods provided by law to ensure the fulfillment of obligations. Open list they are contained in Article 329 of the Civil Code of the Russian Federation, in particular, the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract.

Particular attention should be paid to the authority of the person signing the charter agreement. Most often, statutory documents provide the authority to act without a power of attorney on behalf of legal entity the general director or another, usually one, person. Thus, all other representatives act only under a power of attorney duly issued on behalf of the legal entity by its head. The power of attorney must be drawn up indicating the necessary powers, signed by the first manager and certified by a seal. A power of attorney issued without indicating the date of execution is void. The person to whom the power of attorney has been issued has the right to transfer powers to another person if this is stipulated in the power of attorney. A power of attorney issued by way of delegation must be notarized. According to Art. 183 of the Civil Code of the Russian Federation, in the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be completed on behalf and in the interests of the person who completed it, unless another person (represented) subsequently directly approves this transaction. To avoid misunderstandings, the shipowner should keep the original or a certified copy of the power of attorney of the charterer's representative during the term of the charter agreement.

3.2. Legality of the conclusion of the contract.

Article 168 of the Civil Code of the Russian Federation provides that a transaction that does not comply with the requirements of the law or other legal acts is void. Thus, when concluding a charter agreement, like any other, you should keep in mind whether the powers of the parties are limited by any regulations. Restrictions when concluding a charter agreement may mainly relate to the need in some cases to obtain the preliminary consent of the competent authorities (Roskomrybolovstvo, Department of Maritime Transport, etc.) to conclude a vessel lease agreement on bareboat charter terms. In addition, restrictions may relate to the availability of the necessary licenses and permits by the shipowner. If there is a dispute, any interested party may indicate that the transaction is void and demand judicial procedure application of the consequences of its invalidity. The same consequences are entailed by the inclusion in the contract of conditions that violate the current legislation on currency regulation, environmental protection, and the like. The application in court of the consequences of the invalidity of a transaction most often negatively affects the interests of the shipowner, who has already fulfilled his obligations under the contract to the charterer. That is why shipowners should check transactions with particular care to ensure compliance with current legislation, especially when the contract is concluded for a significant amount and for a long period. Non-compliance with the legislation of the vessel charter agreement on bareboat charter terms also entails refusal to register the vessel with the Maritime Administration in cases where this is necessary.

3.3. Rental rate, payment procedure and terms, penalties, set-off, possibility of applying the right of lien on cargo.

The legislation does not strictly regulate the procedure and conditions for making payments under a charter agreement. If the parties use standard proformas when concluding a charter agreement, it is often sufficient to simply indicate the freight rate for the period or for the quantity of cargo transported in the appropriate column. The terms and conditions will therefore be determined in accordance with those set out in the pro forma. The parties may also provide for a different procedure for calculating freight. In this case, it is necessary to indicate in the contract the freight rate (the amount to be paid), the payment procedure, that is, where and how the money is deposited, and the terms of payment. Failure to include any of these conditions in the contract may lead to disagreements in the interpretation of the contract, and, consequently. Difficulties in carrying out mutual settlements. The parties also have the right to provide for penalties for late payments in the charter agreement. Typically, it is set as a percentage of the outstanding amount per day. However, the fine rate can be set at a fixed amount.

In some cases, charterers arbitrarily withhold from the amount of freight due to the shipowner various expenses incurred by the charterers. From the point of view of civil law, such deductions (offsets) are possible only with the consent of the shipowner or if this is expressly stipulated in the contract. In any other case, the freight must be transferred in full, and all other mutual settlements are made additionally by the parties. The same applies to the application of the right of pledge on cargo: the shipowner has the right to apply the right of pledge on cargo only if this is expressly provided for in the contract. The difficulty is that, according to Russian civil law, foreclosure on the subject of pledge (for example, cargo) can only be carried out in court by selling the subject of pledge through bailiffs and paying out the amounts due to the shipowner from the sale. It is clear that it is practically impossible to foreclose on perishable cargo. In addition, agreements on the pledge of certain types of property are subject to special requirements, such as the need for notarization or registration with special authorities. Otherwise, the contract or pledge condition is invalid and cannot be applied.

In this regard, a more convenient form of ensuring the fulfillment of the obligation to pay freight may be withholding. According to Article 359 of the Civil Code of the Russian Federation, a creditor who has a thing to be transferred to the debtor or a person specified by the debtor, has the right, in the event of failure by the debtor to fulfill obligations on time to compensate the creditor for costs and other losses associated with it, to retain it until the corresponding obligation will not be fulfilled. Retention by force of law is applied and no provision is required to be included in the contract. Satisfaction of claims at the expense of retained property is carried out in court.