Boviatsis M
University of Piraeus, Department of Maritime Studies, Greece.
Mar Policy. 2022 Oct;144:105206. doi: 10.1016/j.marpol.2022.105206. Epub 2022 Jul 22.
The impact of the Covid-19 pandemic on the shipping industry is still severe, ranging from vessels being denied entrance to ports to crews on board ships being trapped for many months. To counter and regulate those emerging issues, the shipping industry presently incorporated into the charter parties the BIMCO's Disease Clause originated from the 2015 Ebola outbreak, the so-called BIMCO's Infectious or Contagious Diseases (IOCD) Clauses. While proved successful during the Ebola outbreak, those Clauses were inadequate to regulate a global pandemic such as Covid-19 effectively. Specifically, the IOCD Clauses, while they successfully establish the concepts of 'Disease' and 'Affected Area', fail with the allocation of liability, especially when the crew on board is affected by Covid-19 and the ship needs to deviate from course to change the crew. In that instance, the shipowner, provided that he exercised due diligence in proactively avoiding the infection of his crew, is excluded from liability. In contrast, it is deemed that the liability between shipowner and charterer should be at least shared. For voyage charter parties BIMCO's Infectious or Contagious Diseases Clause 2015, applied both to the Ebola and the Covid-19 outbreak, allocates the right of termination and the liability for deviations and excessive costs strictly to charterers. In contrast, for the time charter parties, BIMCO has imposed the 'BIMCO Infectious or Contagious Diseases Clause for Time Charter Parties 2022' amended presently. According to those regulations, the liability can and should be shared between charterers and ship owners. As a result, the shipowner is forced to exercise due diligence more effectively, especially when he is initially liable for the excessive costs.
新冠疫情对航运业的影响仍然严重，从船只被拒绝进入港口到船上船员被困数月不等。为应对和规范这些新出现的问题，航运业目前已将源自2015年埃博拉疫情的BIMCO疾病条款纳入租船合同，即所谓的BIMCO传染病条款。虽然这些条款在埃博拉疫情期间被证明是成功的，但不足以有效规范像新冠疫情这样的全球大流行。具体而言，传染病条款虽然成功确立了“疾病”和“受影响地区”的概念，但在责任分配方面存在不足，特别是当船上船员感染新冠病毒且船舶需要改变航线以更换船员时。在这种情况下，船东只要已尽合理谨慎义务积极避免船员感染，就可免除责任。相比之下，船东和承租人之间的责任至少应分担。对于航次租船合同，BIMCO 2015年传染病条款，既适用于埃博拉疫情也适用于新冠疫情，将终止权以及绕航和额外费用的责任严格分配给承租人。相比之下，对于定期租船合同，BIMCO目前实施了经修订的“2022年BIMCO定期租船合同传染病条款”。根据这些规定，责任可以而且应该由承租人和船东分担。因此，船东被迫更有效地履行合理谨慎义务，特别是当他最初对额外费用负有责任时。
