In addition, during the term of the contract, the charterer may be held liable to third parties for damages caused by him and his representatives and servants, both contractual and tortious (Petit Lavall Mª.V., 2015). Such risks are included in the coverage area of P&I insurance (Hazelwood and Semark, 2013), which is why it is probably the charterer who, as the party facing them, should take out and maintain this insurance. However, there are cases where, although the charterer owns the vessel, responsibility for the damage caused is attributed ex lege to the shipowner (García-Pita, 2005). This is the case, for example, in the case of damage caused by oil spills caused by oil tankers, which are also part of the risks that can be insured under the P&I policy. But even if the owner is prima facie liable for damage caused to third parties, he will bring an action against the person responsible for the loss, who in this case is usually the charterer, since he is responsible for the nautical management of the ship. Therefore, if the parties chose this criterion, it would make sense for the owner to be responsible for commissioning and maintaining H&M insurance, while the charterer would be obliged to offer P&I insurance (García-Pita, 2005; Rodríguez, 1984). Finally, with regard to the maintenance obligation, the new standard form contractually stipulates that the charterer is responsible for the maintenance and repair of the ship during the term of the contract. However, the charterer is not responsible for the payment of ship repairs if these are due to hidden defects, cracks and normal wear and tear or structural damage. With regard to the latter, in the previous standard forms, the costs resulting from structural changes and new equipment necessary for the operation of the ship due to class requirements or mandatory regulations had to be borne by both the owner and the charterer through an appropriate allocation. However, the “BARECON 2017” replaces the previous provision and establishes two alternatives. In one of them, paragraph 13(b)(i), which is configured as a general rule, the costs would be borne by the charterer. Alternatively, in paragraph 13(b)(ii), the parties set an amount in the contract; If the costs are less than this amount, the charterer must bear them, while if the costs are higher, a formula is established to divide them between the owner and the charterer. The above issue, namely the ability of the shipowner`s insurer to assert claims against the co-insured charterer, appears to have been resolved by the Supreme Court of the United Kingdom in Gard Marine and Energy Ltd & Anor v.

China National Chartering Company Ltd & Anor. In that case, on 8 June 2005, the registered owner, Ocean Victory Maritime Inc. (`LMO`), entered into a bareboat charter agreement with an affiliate, Ocean Line Holdings Ltd. (`OLH`), for the vessel Ocean Victory. This contract was based on the Barecon 89 model. OLH concluded on 2. In August 2006, it signed a temporary charter contract with China National Chartering Co Ltd. (`Sinochart`), which subsequently concluded another charter contract with Daiichi Chuo Kisen Kaisha (`Daiichi`) on 13 September 2006. All of the above-mentioned charter contracts contained the requirement that the ship could only enter “shelters”. With regard to subjects who conclude contracts with the charterer, for example a time charterer, the solution is necessarily different. Once the damage has been paid for the owner on behalf of the bareboat charterer, there should be no further obstacle for the insurer to enter the position of co-insured charterer and make claims against the sub-charterer, which is undoubtedly a “third party” with respect to H&M insurance.

However, it seems reasonable that if the co-insured death charterer decides to claim lost profits that are not covered by the all-risk insurance (Merkin et al., 2010), or if the insurance did not cover all the damages, his claim for additional damages against the charterer or another third party would likely prevail over the insurer`s assigned claim (Romero Matute, 2018). In the United States, there is an additional legal distinction regarding bareboat and rental charters or “skippered” charters. If people pool their finances to the bareboat, so that the qualified captain among them can be skipper for the group, although the captain is not superficially a paid skipper, he now assumes the legal responsibility of it. This can have profound consequences in the event of negative events at sea. At first instance, the judge found that the incident was caused by a violation of the “safe harbor” clause and therefore ordered the charterers to compensate Gard to the tune of $103.2 million. However, the Court of Appeal subsequently departed from the trial judge`s opinion. The Court of Appeal ruled that Kashima was a “safe haven,” meaning the charterers had not suffered a breach of contract. In addition, the Court held that OVM and OLH and, consequently, Gard, as an insurer, were not entitled to the amount covered by the maritime insurer. The insurance provisions are mainly contained in clause 17 “BARECON 2017”, which provides for two types of insurance of interest to the parties.

On the one hand, all-risk and machinery insurance (H&M) and on the other hand, protection and indemnity insurance (P&I). The Hull and Machinery Policy protects policyholders from damage or loss to the vessel, including its equipment, machinery, boilers, furniture and equipment. On the other hand, P&I insurance is a civil liability insurance that covers the liability of the shipowner or charterer both contractual and tort in the event of damage to third parties. P&I insurance is characterized by the fact that, in many cases, the insurers are the owners and charterers themselves, who are grouped together in a mutual called P&I Club. Fifthly, in bareboat charter contracts, it is provided for inspections on board the ship. This is called a “lease investigation” if it takes place at the time of delivery of the vessel, or a “non-rental survey” if it is carried out during the redelivery of the vessel. Through these inspections, the charterer or owner checks the condition of the vessel. These inspections are included in the BARECON forms.

However, the new form introduces a relevant novelty. The “BARECON 2017” allows underwater inspections to verify the good condition of the rudder, propeller, bottom and other underwater parts of the ship [kl. 7 (b)]. However, it does not seem to solve at least completely the problem of subrogation in contractual rights arising from the charter of misfortune itself. Although the liability of the charterer who caused the damage is not excluded in the underlying contract, the insurer would probably still be deprived of the right to deviate from the other two theories mentioned, namely the theory of scope of action and the theory of the clause implicit in the insurance contract. First, the insurer is in principle entitled to assert claims against the charterer who caused the damage in the subrogation ….