Ulgener

-Prof.Dr.M. Fehmi Ülgener

The SHIPMAN standard ship management agreement, one of BIMCO’s most widely used forms, was adopted at the documentation committee meeting held in Hamburg in March and made available to the world maritime community. The form in question, the previous version of which was dated 2009, was revised and finalized by appointing a sub-committee, as is practiced in other BIMCO forms, in order to adapt to the innovations encountered in practice and to eliminate the drawbacks arising as a result of court decisions in the intervening period.

As might be expected, the significant changes in the new form are mostly directed at the issues that are predominantly on the maritime agenda today. The regulation of emission volumes to prevent environmental pollution, the ever-increasing importance of sanctions and their impact on trade life, and cybersecurity clauses are among the most noteworthy issues in the new form.

One of the changes introduced in the SHIPMAN 24 form is the possibility for the manager to use its affiliated companies in the execution of the relevant agreement.

The new form SHIPMAN retains the order of the old forms, covers commercial management, crew management, technical management, and insurance issues as usual, and sets out the obligations of the manager in clause 8 and of the owner in clause 9.

The first important amendment of the SHIPMAN 24 form is found in Section 3, Article 10. This clause, named "Emission Trading Scheme Allowances", as mentioned above, is directly related to the regulation of emission volumes, which has been at the forefront in recent years. In summary, this clause regulates the following issues:

"Emission limit" refers to the maximum amount of greenhouse gas emissions that can be made by a vessel within the limits set / permitted / limited by the legislation on Emissions.

"Responsible entity" means the party responsible for ensuring compliance by law or regulation with the emission legislation applicable to the vessel.

If the responsible party is the owner, he shall, at his own expense, comply with or procure compliance with the Emission Scheme(s) applicable to the vessel throughout the period of this Agreement. In addition, the manager shall provide the owner with Emission Data in a timely manner or at regular intervals to be agreed between the parties. Such Emission Data shall be verified by an accredited verifier, where applicable, and if required by the owner audited by an independent party approved by him, at the owners’ expense.

If the responsible party is the manager, he shall provide the Emission Data to the owner together with the calculation of the Emission Allowances required, monitor the Emission Data in accordance with the Emission Scheme(s) applicable to the Vessel and report to the administering authority, prepare and present in writing to the owner every month estimates of the Vessel’s Emission Allowances for the ensuing month, prepare and present, in writing, to the owner estimates of the Emission Allowances due for the Vessel for the final month or part thereof no later than fourteen days before the termination of this agreement.

In both forms, the fourth section is devoted to insurance and financial issues. Similarly, the fifth section regulates legal issues, general matters, and the duration of the agreement.

Although clause 17 of the fifth section, as in clause 16 of the SHIPMAN 2009 form, provides the transfer of the obligations arising from this agreement by the manager to another legal entity through a subcontract is subject to the consent of the owner, as mentioned above, an important exception is made in this regard and the companies affiliated to the manager (“managers affiliates”) are excluded from the consent of the owner.

There are some minor changes in the force majeure clause in the same section; for example, with the Covid experience, the term pandemic has been added next to epidemic. In addition, nuclear, chemical, and biological contamination are also included in the new form.

SHIPMAN 24 The article titled "responsibilities" regulates the liability of the manager towards the owner in subparagraph "b". There is no significant change in this article compared to the previous form; the manager is still liable for negligence, gross negligence or willful default and this liability can never exceed 10 times the management fee.

In the "Indemnity" and "Himalaya" clauses in this section, no difference was observed between the two forms.

Article 21 of the SHIPMAN 24 form stipulates that the manager shall provide information about the vessel to the owner through the digital information platform. This is not included in the SHIPMAN 2009 form.

In Article 25 of the form examined, there is a clause that refers to the MLC in terms of maritime labour law and makes a regulation in parallel.

Article 26 of the form covers "Personal data protection" and shows the obligations of both parties to the agreement.

Article 27 sets out the responsibilities of the parties with respect to cyber security in line with the developments in recent years.

Article 28 contains the sanction clause. This clause is written in parallel with the BIMCO 22 Sanctions Clause, (but in a shorter form) as only the relevant issues are included.

SHIPMAN 24 Clause 29 regulates "anti- corruption".

Clauses 25, 26, 27, 28 and 29 mentioned briefly above are not included in the SHIPMAN 2009 form.

Although the "termination" clause is almost the same in both forms, there are some (detailed) differences between them. We recommend that interested readers review these clauses.

While SHIPMAN 2009 contains the clause named "Bimco Dispute Resolution Clause" in terms of disputes between the parties, the SHIPMAN 24 form contains the clauses named "Bimco Law and Arbitration Clause 2020" and "Bimco Mediation / Alternative Dispute Resolution Clause 2021" right after it.

In the closing section of SHIPMAN 24, unlike the other form, it includes the clauses "waiver", "warranty of authority" and Bimco Electronic Signature Clause 2021".