Ship sales: first considerations on the new BIMCO SHIPSALE 2022
By ASLA – Associazione degli Studi Legali Associatidi Marco Cottone*
Milan – On April 21, 2022, the prestigious international maritime association BIMCO adopted and published its first form for the purchase and sale of ships: the "SHIPSALE 2022".
The publication of this contractual model is an ambitious attempt to act as a valid alternative to the forms most widely adopted in international practice, namely the NOVERGIAN SALEFORM 2012 (NSF 2012) and, for the Asian markets, the NIPPONSALE and the Singapore Ship Sale Form 2011.
Although the new model recalls the structure of the NSF 2012, thus respecting the consolidated tradition of contractual practices in the sector, the same does not fail to propose useful innovations that will certainly facilitate the negotiation between the parties by making them faster and leaner.
Starting from the contract format, it is interesting to highlight how the BIMCO standards already known in other contractual models are respected; in fact the contract is divided into two parts, namely: a first part, where the parties can enter the details of the transaction (e.g. name and data of the ship, indication of the parties, price, gate date, etc.), while, in the second part, the terms and conditions of the contract will be contained.
Still on the format level, there are some innovations, which aim to facilitate the negotiation and drafting of the text with respect to the changes that the parties agree to insert; in particular, it involves the insertion of an attachment, which can thus be more easily modified by the parties, containing the list of documentation to be produced by each party at least two days before the date of signature.
An important novelty concerns the introduction of a specific box for the guarantors, both on the buyer side and on the seller side. This aspect was often the subject of additional regulation compared to the 2012 NSF provisions, precisely because, on the buyer side, there is often a company set up ad hoc for the purchase of that particular ship, therefore without any other assets or assets to be attacked. In case of non-fulfillment of the obligations of the sale. SHIPSALE 22, on the other hand, provides in Part I a dedicated field for the signature and the relative indications of each guarantor.
In the new standard, the so-called "Subject clause" (clause 3 part II), widely referred to in the negotiation practice, with the aim of providing conditions precedent consisting in the approval of the transaction, within a given period, by certain subjects indicated by the parties.
Another noteworthy change, which should overcome some ambiguities of the older forms, concerns the provision on the deposit, given that a grace period of two bank days is granted in cases of delay in the payment of the sums intended for the deposit for reasons not attributable to the negligence of the purchaser, but deriving from a so-called Disruptive Banking Event which, subject to verification and confirmation by the beneficiary, would not expose the obliged party to default and the consequent claim for compensation promoted by the buyer.
Clause 6, Part II, of SHIPSALE 22, deals with the subject of inspections with an interesting novelty: compared to the NSF 12 model, which provides for two types of inspection, the new standard introduces a third hypothesis, namely the possibility, the buyer, to purchase the ship without carrying out inspections and, therefore, to subject the entire sale to the terms of the MOA only. If, on the other hand, the buyer decides to make the purchase subject to the inspection of the ship, the latter will be required to notify the seller of the positive outcome of the inspection within five days from
(i) its completion or
(ii) from last day of the date range indicated in box 8, whichever is nearest.
If the buyer does not communicate acceptance within this period, the sum intended for the deposit, together with the accrued interest, is returned to the buyer and, consequently, the MOA loses its effect. It should be noted that in SNF 12 there is a similar forecast, but the times for the communication of the ship's acceptance are equal to seventy-two hours.
Last but not least, it was insea clause relating to sanctions and an anti-corruption clause, the violation of which represents a just cause for termination of the contract and allows the non-defaulting party to request compensation for any damage resulting from such violation.
In conclusion, the purpose of the new standard adopted by BIMCO has the following objective: on the one hand, to "crystallize" in contractual provisions some practices widely recognized in international practice and, on the other hand, to facilitate the work of operators above all in the drafting phase, thus avoiding the need to change the standard provisions by adding specific attachments.
However, it should be considered that, in the last decade, industry operators have developed a consolidated familiarity with the most well-known and older NSF 2012 and / or NIPPONSAL forms, adapting the texts to their respective needs. It will therefore be interesting to see how long and with what changes the new SHIPSALE 22 will establish itself on the market as a reference standard form.
*Managing associate, Legance Avvocati Associati
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