REGULATIONS

Key Subchapter M Compliance Deadline Nears

In what will be a gentle reminder to some towing vessel owners, and likely a jarring wake-up call to others, a post on the Coast Guard Maritime Commons blog notes that the July 19, 2021, deadline is approaching for 75% fleet-wide compliance with Subchapter M requirements.

Following is from the text of the Coast Guard post:

“In accordance with 46 CFR 136.202, owners and managing operators (OMO) are responsible for ensuring that 75% of their respective fleets receive a Certificate of Inspection (COI) before July 19, 2021. Failure to meet the regulatory phase-in schedule could result in vessel delays, civil penalties, or additional enforcement actions. In order to operate after July 19, 2021, all Subchapter M towing vessels must have a valid COI.

“Companies with vessels that have not been issued a COI within the phase-in period may be issued a deficiency on a Coast Guard Form CG-835V for non-compliance. Third Party Organizations (TPOs) are authorized to issue non-conformities to companies if they are aware that a vessel or company is not compliant with the Certificate of Inspection phase-in period set by 46 CFR 136.202.

“Initial certification should be scheduled with the local Officer in Charge, Marine Inspection (OCMI) at least three months in advance of the desired inspection date. Therefore, towing vessel OMOs should schedule vessel inspections as soon as possible to ensure the COI is received before the end of the third year phase-in period. When submitting the completed CG-Form 3752, “Application for Inspection of a U.S. Vessel,” to the OCMI, OMOs should indicate if the Coast Guard or Towing Safety Management System (TSMS) option will be used.”

MARPOL Amendments Will Mean Charter Party Rethink

New measures likely to be adopted at the next meeting of IMO’s Marine Environmental Protection Committee (MEPC) will need to be addressed by shipowners’ legal teams as well as their technical departments.

An impact study by BIMCO and several key stakeholders identifies “a raft of contractual challenges” in impending IMO carbon regulations. In response, BIMCO’s documentary experts have begun preparing charter party clauses to help owners and charterers comply with the new regime.

Charter parties that extend beyond 2023 are already being negotiated and agreed, so this task has been given top priority by the organization.

MARPOL Amendments

The main driver for this initiative, says BIMCO is the amendments to chapter 4 of MARPOL Annex VI, due to come into force in 2023, that will tightly regulate the energy efficiency and carbon intensity of ships.

The future regulatory framework may require shipowners to reduce engine power and speed to comply with the Energy Efficiency Existing Ship Index (EEXI). The carbon intensity index (CII) requirements may also see shipowners having to reduce cargo intake in addition to taking routing and slow speeding measures.

Compliance with the new regime may mean that shipowners are at risk of being in breach of their obligations in performing the voyage under standard charter party terms.

“An essential part of this process is bringing owners and charterers together to find practical and commercial solutions to issues that are fair to both parties,” says BIMCO, noting that its impact study indicates that the commercial implications of CII will be as equally challenging as the contractual issues.

Compliance Will Involve Cost

“Compliance will involve cost,” says BIMCO. “This may take the form of capital costs installing new equipment to make the ship more efficient; or it may be costs related to cargo shutout and longer voyage durations. A fair allocation of costs and responsibilities will be at the heart of the new BIMCO clauses to ensure that neither party is unduly disadvantaged by the carbon regulations.”

BIMCO will also look closely at emission trading schemes currently under discussion and how they be dealt with in charter parties. Although carbon levies could be considered a “tax” for the purposes of charter parties and therefore covered by existing clauses in standard forms, it may be that a more prescriptive approach is called for.

“As with the industry’s transition to low sulfur fuels in 2020, the carbon clauses will require owners and charterers to closely cooperate on technical and operational activities,” notes BIMCO, adding that it has been encouraged by the willingness of several dry cargo and wet charterers to work together with shipowners and BIMCO to find contractual solutions.