BIMCO制定美国贸易代表办公室301(USTR)行动措施相关标准条款

2025年7月22日

全球最大的航运协会波罗的海国际航运公会（BIMCO）的文件委员会通过了一项标准条款，旨在解决因美国贸易代表（USTR）行动通知对停靠美国港口的中国相关船舶征收费用而可能引起的合同不确定性。

由法律和商业专家组成的BIMCO小组委员会于6月初开始着手制定该条款，并优先考虑该条款的制定，因为美国贸易代表办公室（USTR）宣布将对停靠美国港口的中国建造或由中国船东或运营商运营的船舶征收费用。

BIMCO 副秘书长兼合同总监Stinne Taiger Ivø表示：“在短时间内制定该条款的过程中， 我们的首要任务是让代表不同行业领域的专家参与进来。USTR的行动将带来复杂的挑战，小组委员会已仔细讨论了如何才能达成最佳结果，帮助行业最大限度地减少争议。”

BIMCO文件委员会主席Nicholas Fell表示：“我们预计，围绕赋予USTR通知预期效力的授权条款的许多当前不确定性将在美国贸易代表办公室费用实施后的几个月内得到解决。随着经验的积累，审查该条款以确保其继续符合我们的高标准并满足行业需求将成为BIMCO持续合同工作的一部分。”

该行动措是美国贸易代表办公室“针对中国瞄准海运、物流和造船业主导地位的301调查”的一部分，并将导致所有在美国境外建造的汽车运输船被征收费用。 该行动措施将大幅提高往返美国的海运贸易成本，并加大航运业的监管挑战。

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BIMCO USTR Clause for Time Charter Parties 2025

“USTR Notice” means the ‘Notice of Action and Proposed Action in Section 301 Investigation of China’s Targeting the Maritime, Logistics, and Shipbuilding Sectors for Dominance, Request for Comments’ by the Office of the United States Trade Representative published on 23 April 2025 in the Federal Register, (90 FR 17114), any subsequent notices related thereto, and any enabling rules, regulations or guidance issued by a US federal agency (“US Agency”) in furtherance thereof.

“US Service Fee” means any taxes, fees, dues, levies, port entrance fees, or other charges imposed by any US Agency on the Vessel, the Vessel’s owners or operators pursuant to Annexes I and II of the USTR Notice.

(a) For the purpose of the USTR Notice, the parties agree at the date of this Charter Party that, if so requested by the Charterers, the Owners shall declare in writing to the Charterers whether:

(i) the registered owners, the bareboat charterers and/or the disponent owners (if applicable) or their managers are a Chinese vessel owner and/or if the vessel operator is a vessel operator of China, as defined in the USTR Notice; and/or

(ii) the Vessel is built in China.

The Owners shall also be obliged to notify the Charterers as soon as reasonably practicable of any changes or corrections to the requested information declared under subclauses (a)(i) and (a)(ii) above occurring at any time after the date of the Charter Party and during the duration of this Charter Party.

(b) Subject to subclauses (c) and (d) below, and notwithstanding any other provision of this Charter Party, if at any time the Vessel is ordered by the Charterers to call at any port or place in the US and a US Service Fee is incurred, the Charterers shall be solely responsible for such US Service Fee.

(c) The Charterers shall not be responsible for any US Service Fee incurred or any increase thereof if:

(i) the Owners’ declaration under subclauses (a)(i) and (a)(ii) to the Charterers is inaccurate and/or incomplete or the Owners failed to provide the declaration requested under subclause (a) above;

(ii) any US Service Fee or any such increases are directly incurred as a result of any change by the Owners of the registered owner, the bareboat charterer and/or disponent owner (if applicable) or their managers; or

(iii) any US Service Fee or any such increases are directly incurred as a result of any change by the Owners of the vessel operator as defined in the USTR Notice,

provided always that the Charterers will remain responsible if there is any reduction in the US Service Fee incurred and for any US Service Fee which would have been incurred regardless of the events in subclauses (c)(i), (c)(ii) and (c)(iii) above.

(d) The Charterers shall not be responsible for any US Service Fee incurred as a result of the Owners’ breach(es) of this Charter Party, any off-hire event, or any use of the Vessel outside of the Charterers’ instructions.

For the avoidance of doubt, nothing in this Clause shall affect any rights or obligations of the parties in respect of General Average.

(e) The Charterers, or the Owners if subclauses (c) or (d) are applicable, shall promptly remit such US Service Fee directly to the relevant US Agency. Such payment shall be effected in compliance with the US Agency’s payment instructions and such fee shall not be advanced or remitted through the local port agent appointed under this Charter Party.

(f) To the extent that the US Agency's payment instructions require payment other than by a responsible party under this clause, that party shall pay the US Service Fee directly and the responsible party shall reimburse the paying party promptly.

(g) Where the Charterers fail to make payment (or reimbursement) of the US Service Fee as required by this Clause:

(i) the Charterers shall take immediate steps to rectify such failure;

(ii) the Owners shall be entitled to suspend performance under this Charter Party without liability and the Vessel shall remain on hire;

(iii) any time lost, delays, detentions, costs, losses, fines, damages, or expenses whatsoever arising from such failure shall be for the Charterers’ account; and

(iv) the Charterers shall indemnify, defend and hold harmless the Owners and the Vessel against all consequences, claims, or demands howsoever arising from such failure

For the avoidance of doubt, the Owners’ right to suspend performance with the Vessel remaining on hire under subclause (g)(ii) shall prevail and apply notwithstanding any other provisions of this Charter Party, including any off-hire provisions.

(h) Where the Owners fail to make payment (or reimbursement) of the US Service Fee as required by this Clause:

(i) the Owners shall take immediate steps to rectify such failure;

(ii) any time lost, delays, detentions, costs, losses, fines, damages, or expenses whatsoever arising from such failure shall be for the Owners’ account; and

(iii) the Owners shall indemnify, defend and hold harmless the Charterers against all consequences, claims, or demands howsoever arising from such failure.

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Explanatory Notes

These explanatory notes are intended to provide an insight into the thinking behind the BIMCO USTR Clause for Time Charter Parties 2025. They also explain how the clause is intended to operate and the allocation of responsibilities and costs between the parties. If you have any questions about the clause, please contact us at contracts@bimco.org and we will be happy to assist.

Key Features of the Clause

The clause responds to fees incurred under Annexes I and II of the USTR Notice, i.e., vessels with a nexus to the People’s Republic of China, in a time charter context. Annex III, which targets non-US car carriers, has been excluded due to its different scope.

It is crucial for parties to discuss whether the vessel has a nexus to the People’s Republic of China during negotiations and to determine if Annexes I and II of the USTR Notice apply. The declaration requested under subclause (a) is intended to provide a snapshot of the vessel's status at the time of signing and should reflect information disclosed during negotiations.

The clause anticipates that, generally, charterers will bear the imposed fee. In assessing the potential fees the vessel will attract charterers will rely on declarations made under subclause (a), if requested. Where the actual fee imposed is greater than the fee reasonably anticipated under the declaration, and there is a causal link between the exceptions listed in subclauses (c)(ii) or (c)(iii) and the increased fees, the responsibility for the fee is split between charterers and owners with charterers being liable for the reasonably anticipated amount and owners liable for the additional exposure. However, if the fees are incurred as a result of owners’ actions, such as owners’ breach of contractual obligations, an off-hire event specified in the contract, or owners' voyage orders, owners will bear full responsibility for the fees under subclause (d).

This clause does not give parties the right to terminate the contract, a right to exercise a lien on cargo, or to automatic off-hire. The relevant terms of the contract, if any, continue to govern these remedies.

Subclause (a)

The subcommittee understands that for the purposes of the USTR Notice, the term “Vessel Operator” does not have its plain English meaning. At the time of drafting, the “Vessel Operator” is the party entered on CBP Form 1300 which in turn is presumed to be the party named on the vessel’s Certificate of Financial Responsibility. It is assumed that Owners are aware of the party named in the COFR.

Subclause (a) places an obligation on owners to declare, at charterers’ option, whether any entities associated with the vessel have a nexus with the People’s Republic of China in subclause (a)(i), or whether the vessel was built in China under subclause (a)(ii). This approach acknowledges that owners are best placed to know and verify this information, while also avoiding the need for owners to disclose personal details of individuals in their organisational structure.

The clause also requires owners to notify charterers of any changes in the information declared between the time of signing the contract and its conclusion. This allows owners to utilise their asset as they see fit throughout the charter, while providing charterers with certainty on their exposure to such fees at the outset.

While the place of build is generally a fixed fact, the subcommittee included it in owners’ continuing obligations because they understand that a major retrofit in the US or China might bring the vessel outside or within the scope of Annex II of the USTR Notice. Therefore, it is possible that the place of build, for USTR purposes, may change in the lifetime of a vessel. Hence, the extension of owners' obligation to notify charterers of any such change to information declared under subclause (a)(ii).

Subclause (b)

Under subclause (b), charterers are wholly responsible for all fees incurred as a result of the vessel calling into the US on charterers’ orders. It is anticipated that in most instances, charterers will be responsible for fees incurred.

Subclause (c)

Subclause (c) specifies the circumstances under which the burden to pay the fee shifts in part or in whole between owners and charterers. Charterers remain liable for the anticipated fee and, where the increment is a result of owners’ actions, the burden for the increment shifts to the owners, i.e., owners are liable for the uplift, the additional sum incurred.

It is noteworthy, that by increment, the subcommittee anticipates the vessel’s movement between Annex I and II and not within the annex.

Under subclause (c)(i), owners will be liable for additional sums incurred as a result of owners’ inaccurate and/or incomplete or failure to provide the declaration requested under subclause (a).

Example A

At the time of signing the contract, charterers request owners to provide an undertaking under subclause (a) and owners fail to provide this declaration. The responsibility to pay the fee shifts from charterers to owners.

Example B

At the time of signing the contract, charterers request owners to provide a declaration under subclause (a) and owners’ misdeclare leading charterers to wrongly assess whether the vessel will be incur fees under Annexes I or II of the USTR Notice.

Where charterers relying on the declaration have reasonably anticipated that no fee will be incurred and a fee is in fact incurred under Annex I or II, owners are liable for the fee incurred in whole.

Where charterers relying on the declaration have reasonably anticipated that a fee under Annex II will be incurred but a fee under the more onerous Annex I is incurred, owners will be liable for the uplift incurred, i.e., the difference between the fee in Annex I and II.

This clause does not anticipate owners to be liable for miscalculations within the respective annexes.

Under subclause (c)(ii) and (c)(iii), owners will be liable for fees incurred as a result of their changes to entities associated with the vessel subsequent to the declaration under subclause (a) notwithstanding that owners have notified charterers of such change under subclause (a).

The declaration at subclause (a) gives charterers an insight into whether Annexes I or II of the USTR apply. While the clause does not impose an obligation on owners to ensure that there are no changes to vessel’s nexus to the People’s Republic of China, should owners effect a change, owners are liable for the additional exposure incurred as a result. This approach allows owners to have flexibility to utilise their assets as they deem fit while providing charterers with certainty on their contractual obligations.

Example C

At the time of signing, owners declare that the vessel has no connection with the People’s Republic of China under subclauses (a)(i) and (a)(ii). The vessel is not anticipated to attract any USTR fee when it calls into the US. During the period of charter, owners enter into a leaseback agreement with a Chinese entity. Owners notify charterers of this change. Subsequently, during a call into the US, the vessel attracts fees under Annex II. Owners are now liable for the fee in whole under subclause (c)(ii).

Subclause (d)

This subclause specifies circumstances where owners are wholly liable for the fees incurred. Of crucial importance is causation. Where the fee is incurred as a result of the specified list of circumstances, the responsibility for the fee lies with owners.

Example D

The vessel is scheduled to call into the US on charterers’ orders and suffers a contractual off-hire event enroute. The off-hire event is not causal to the call into the US. In the event the call attracts a fee, charterers remain liable for the fee.

Example E

The vessel is not scheduled to call the US and suffers an engine breakdown enroute to destination. Owners direct the vessel to call into the US as a port of refuge. Should this call be subject to a fee as the vessel calls into the US on owners’ orders, owners are liable for any fee imposed.

Subclause (e)

This subclause obliges the responsible party (primarily charterers) to make prompt and direct payment to the relevant US agency.

The subcommittee was cautious about setting a strict time frame for payment, as this may vary from case to case. It is anticipated that failure to make payment is likely to impact port clearance and the vessel’s schedule. Delay is the vessel’s schedule is neither in charterers nor owners’ interests. Hence, the preferred term 'promptly' to emphasise the importance of timely payment.

The subcommittee considered it neatest for the responsible party to make direct payment of the fee to the relevant agency. At the time of drafting, it was unclear whether a charterer would be able to make direct payment to a US agency for what is essentially port fees on the current system. However, the subcommittee understood that revised system would allow online payment by various parties including charterers.

Given the significant sums in fees anticipated it would be unduly burdensome on local agents both administratively and commercially to direct payment through them. Hence, payments via local agents have been specifically excluded.

Subclause (f)

It is anticipated that when the USTR fees first come into effect that US Agencies may demand a party (likely owners) make payment in the first instance. This clause anticipates that the responsible party is primarily charterers. Hence, this subclause (f) allows the paying party to be reimbursed by the responsible party.

Again, the subcommittee was cautious about setting a strict time frame for payment, as this may vary from case to case. Hence, the preferred term 'promptly' to emphasise the importance of timely payment.

Subclauses (g)

This subclause specifies remedies for charterers failure to make prompt payment or reimbursement of the fees. Subclause (g)(i) requires charterers to take immediate steps to rectify the failure. The subcommittee decided against setting a time frame for rectification as this would vary from case to case. Parties may consider specifying a period by which charterers are to rectify their failure.

Subclause (g)(ii) allows for Owners to suspend performance where charterers have failed to make payment or reimbursement of the fees. In such instances, premiums for additional insurance cover, e.g., Shipowners’ Liability Cover, may be incurred. The term “damages” at subclause (g)(iii) is intended to allow recovery of such expenses.

Subclause (h)

While the clause allows charterers to recover time lost arising from owners’ failure to make payment under subclause (h)(ii), this is not intended to trigger automatic off-hire but rather a basis for charterers to recover financial compensation. The off-hire clause, if any will continue to govern off-hire events.

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https://www.bimco.org/news-insights/press-media/press-releases/2025/20250722-ustr/

https://www.bimco.org/contractual-affairs/bimco-clauses/current-clauses/ustr-clause/