Essentially, the division of liability is that if spillage takes place "whilst the Marine Fuels" are being put into or taken out of the vessel's bunker manifold, the seller is liable - unless the buyer is at fault. On the other hand, if the fuel has passed into the buyer's vessel and a spillage occurs, the buyers are at an obligation to indemnify the seller - unless the seller is at fault.

Clause 5 governs regulatory aspects (certificates, and whose responsibility they are) as well as notice requirements. Clause 5 (d) imposes an obligation on the buyer to make the necessary connections between the bunker manifold and the delivery hose. Clause 5 (e) i requires the buyers to inform the seller about the maximum permissible pumping rate, communication protocols and about emergency shut down procedures. Clause 5 (e) ii goes further and broadly requires the buyer to inform the seller about, inter alia, any "peculiarities".

I am not so sure about the clarity and precision of this clause.

For illustration, in practice, the buyer will generally - upon arriving in port - send out a request for bunker. Then, local suppliers will contact the buyer and describe the capabilities of their bunker tankers. The buyer then finds a seller they want to contract with. The contract is agreed upon and the boxes on the face of the BIMCO form are filled in, one of which requires the seller to provide the minimum hourly pumping rate. However, the buyer must inform the seller about the maximum allowable pumping rate merely "prior to delivery" (Cl. 5 (e) i), so it follows that the contract believes it is proper to fix a minimum hourly pumping rate (Box 12) before the seller is informed about the maximum allowable pumping rate by the buyer. Since it seems reasonable to clarify pumping rate issues at the first stage of the negotiations, it stands to reason that Cl. 5 (e) i merely exists as a safeguard. If the buyer's vessel is, for whatever reason, suddenly subject to security and safety problems if a given rate is exceeded, the buyer has an obligation to tell this to the seller. The clause ought to make it more clear that this is the purpose.

Any delay caused by a failure to reach the contractual pumping rate (Box 12) on account of the security and safety limitations of the buyer's vessel would surely be the fault of the buyer. But it would nonetheless appear prudent to clarify the receiving vessel's maximum permissible pumping rate (in writing!) prior to filling in Box 12. This is especially so because Clause 9 c ii appears to create relatively strict liability to the detriment of the seller for failure to achieve the minimum hourly pumping rate. There appears to be some potential for conflict here.

Hopefully forthcoming BIMCO explanatory notes can provide some guidance on this issue.

Box 6 and 9 (c) are also important. The prior sets forth an estimated time of arrival of the bunker vessel, 9 (c) sets forth the price for delay in the event of the bunker vessel not arrival at the stipulated time, failure to provide notices or failure to achieve the agreed pumping rate.