ASBATANKVOY 2025 – rejuvenated after 48 years

ASBATANKVOY 1977 is well into middle-age and NYPE 46 is almost octogenarian, but they remain the most widely used charter parties of their kind. Over the years, case authorities have gathered around their turns of phrases, like barnacles to a hull, imbuing them with commercial certainty and a reassuring familiarity.

Their author, the Association of Ship Brokers and Agents (ASBA), has inherited a reputation for drafting charter parties that feel fair and are built to last. It was a correspondingly rare announcement when, earlier this year, ASBA declared that it had, in conjunction with BIMCO, revised the ASBATANKVOY form.

The new incarnation, ASBATANKVOY 2025, is the result of four years of collaborative work, over 60 meetings, and a spread of industry consultations. The updated form, we are told, aligns with today’s commercial practices, operational advancements, and the latest regulatory standards.

Comprising 28 clauses in total, ASBATANKVOY 2025 does not appear overly wordy compared to the 26 clauses of the original 1977 form. The structure is largely the same, including both Parts I and II, and the order and wording of clauses is very familiar.

So, what has changed?

Clause 2 has become a little clearer in stipulating that freight ‘shall be computed on the quantity shown in the Certificate of Quantity issued by an independent inspector or, if no such Certificate is issued, the Bill of Lading quantity’, rather than simply stating ‘on intake quantity’.

Charterers no longer have an automatic right of cancellation if the vessel is delivered late under ASBATANKVOY 2025. Rather, the cancellation provisions of clause 5 must be opted into at Part I(B)(iii) for this to apply. The default wording is therefore now more owner-friendly, with charterers’ only redress for late delivery taking the form of a claim for failing to proceed to the load port with ‘convenient despatch’. Such claims are often difficult to prove.

The renowned ‘reachable on arrival’ wording of clause 9 has been relocated to clause 6 of ASBATANKVOY 2025 and is now stated to apply ‘[i]f the loading or discharging berth is not designated or reachable on the Vessel’s arrival at or off the port or place in question (including due to congestion)’, whereas the original 1977 form stated ‘where delay is caused to Vessel getting into berth after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count’. This exception no longer exists in ASBATANKVOY 2025, meaning charterers are now on risk for all delays in accessing the designated berth, and not merely delays caused by congestion.

The clause 10 ‘Pumping in and Out’ provision now includes opt-in subclauses (b) and (d) respectively requiring owners to inert the cargo tanks and entitling charterers to order crude oil washing.

The General Exceptions Clause at clause 19 remains almost identical to the original form and continues to exempt both owners and charterers inter alia for loss or damage caused by ‘act of war’. However, ASBATANKVOY 2025 also incorporates the BIMCO War Risks Clause for Voyage Charter Parties 2025 (VOYWAR 2025), meaning owners now have the right to cancel the charter in the event of war breaking out before loading commences.

‘Issuance and Terms of Bills of Lading’

The clause 20 list of subclauses that are expressly incorporated into both the charter and the bills of lading includes some noteworthy changes.

The ASBATANKVOY 2025 Clause Paramount no longer applies US COGSA 1936 by default in trades where no version of the Hague or Hague-Visby Rules is compulsorily applicable. Owners will not, therefore, benefit from US COGSA’s generally more favourable limitation provisions for liquid cargoes, except for cargoes loaded in the United States. In fact, ASBATANKVOY 2025 does not apply any version of the Hague or Hague-Visby Rules by default for cargoes not loaded in a Hague or Hague-Visby state, meaning parties must take the initiative to expressly incorporate a version of the rules, or face the unsatisfactory outcome of an unregulated carriage.

There is now an in-transit loss clause. Clause 20(c) states that ‘[t]he Vessel, its Master, and Owner shall not be responsible for loss or shortage falling within the excepted 0.5% tolerance margin’. The clause further provides that, if there is no pumpable cargo on board, any shortage claims in excess of 0.5% of the total cargo shall be quantified by a mutually acceptable independent surveyor who will compare the ship’s figures at the load and discharge ports and whose ‘findings shall be final and binding’. Owners have no liability at all for shortage claims under 0.5% of the bill of lading quantity. While offering quick and efficient resolution, this clause has potentially far-reaching consequences in summarily determining a broad spread of cargo shortage claims, including potentially large claims, and differs somewhat from the typical unpumpable/in-transit loss rider clause parties might habitually tag on to the 1977 form.

ASBATANKVOY 2025 expressly permits the use of electronic bills of lading ‘[s]ubject to the Owner’s agreement’.

With regards to arbitration, the new form allows the parties to opt for either New York, London, Singapore or Hong Kong. Unlike the original 1977 form, which left parties all at sea as to the arbitration venue if they forgot to ‘strike out one’ at Part I(K), the new form will auto apply New York in these circumstances.

The rather wordy arbitration clause 24 appears, by inference, to provide that New York arbitration will be subject to US maritime law, whereas English arbitration will be subject to English law under the auspices of the LMAA, and Singapore arbitration will be conducted pursuant to ‘English/Singapore law’ etc. In seeking to deal with the possible application of four different governing laws depending on the parties’ choice of venue, clause 24 does not necessarily feel like a model of clarity. Parties using the new form may wish to strike out the governing law wordings irrelevant to their choice of arbitration venue, so their chosen governing law is beyond doubt.

Long live ASBATANKVOY

In keeping with its reputation for longevity, ASBA was apparently keen to ensure that ASBATANKVOY 2025 would not rapidly become obsolete. With this in mind, other than VOYWAR 2025, the new charter form does not include any current BIMCO pro forma clauses as standard. Users of the new form will, therefore, still need to incorporate a spread of rider clauses when negotiating their fixtures. In particular, there are no pro forma provisions dealing with Carbon Intensity Indicator, Emissions Trading Schemes, FuelEU maritime, or sanctions, meaning these statutory obligations will fall predominantly on owners by default if the parties do not insert specific riders.

The ASBATANKVOY 2025 revisions come across as carefully considered, while much has remained the same. The draftspersons have clearly had in mind that the original form has been a palpable success for good reason. Moreover, the new changes do not come across as overly one-sided. Owners have benefitted in some respects and charterers in others, while some changes simply clarify that which the 1977 form left to be inferred. It remains to be seen whether the market will embrace both charter forms or ‘strike out one’.