Informes contables y gerenciales del sistema de costos por procesos

As in all commercial negotiations, each side will endeavour to secure the contract on their own terms and conditions, and repair yards generally have their own contracts. Some of the points to bear in mind are set out below. Using common contractual terminology, the repair yard is referred to as the contractor and the owner/vessel as the company.

1. Clarity of wording

The wording of contractual clauses must be entirely clear. If the meaning is not clear, a clause will be construed against the party seeking to rely upon it. This is particularly important in relation to a clause which seeks to restrict liability.

If in doubt, always ask for clarification: 'I understand this clause to mean . . ., it that your understanding too?' orjust 'What does this mean in practical terms?' can save a lot of grief later; and do remember to keep notes of any meeting.

2. Incorporation of clauses

If 'standard terms and conditions' are referred t6, it is vital that they are seen and understood before they are accepted and that they are properly incorporated in the contract. If particular additional clauses are negotiated, not only must they be properly incorporated but they must be consistent with the standard terms or it must be made clear which provision takes precedence. 3. Unfair terms

Under English law, and it is important to know what law regulates the contract, it is not possible, by reference to any contract term, to exclude or even restrict liability for death or personal injury resulting from negligence. Furthermore, liability for any other type of loss or damage resulting from negligence may not be excluded or restricted unless the provision is 'reasonable'. The same applies both to any liability as a result of breach of any provision in a set of standard terms and conditions and to a provision restricting the time during which a claim may be made. Whether a term is 'reasonable' will depend on the circumstances. It is vital that clauses satisfy the

'reasonableness' test; if they do not, the entire clause will be ineffective. A clause which seeks to restrict liability to an unreasonable extent will therefore leave an exposure to unlimited liability. Whilst English law is frequently written into contracts, these factors do not have full impact where the only connection with English is the choice of law. It may, therefore, be prudent to seek advice through head office to check if there are any peculiarities in the law of the country in question, ahead of the negotiation. However, the best approach to negotiating a repair contractand to most contracts-is that of good commercial common sense tempered with reasonableness.

4. Availability

Are there any subjects or escape clauses which could, for example, delay the drydock stem or the progress of work (if the contractor saw a more lucrative emergency repair coming over the

horizon)? Labour may be drawn off, but this becomes more critical if your repair is dependent upon an item of specialist yard equipment.

It is common to see clauses limiting liability for ‘consequential' or 'indirect' loss. Such clauses may be particularly important in the context of pollution or loss of profits incurred due to delays or negligent work. The vast majority of such clauses as currently worded do not have their

intended effect. Very precise wording is required if liability for consequential or indirect losses are successfully to be excluded or restricted.

6. Time and liability for loss of hire

Is the time quoted in running days, weeks-days or working days? What are the working shifts and the overtime rates? Claims for loss of hire can be substantial and the contractor will endeavour to protect itself. However, the usual clause excluding liability for 'consequential loss'. will not

generally be enough to protect a contractor from such a claim. If the company is covered by loss of hire insurance, that may well be the company's first recourse and it is the insurer that will then seek redress from the contractor. Nevertheless, the master and the notes which he kept relating to the contractual negotiations and the facts at the time will form a prime part of the insurer's evidence (see subrogation, chapter seven).

7. Change orders and additional work

These will inevitably occur and it is vital that they are carefully controlled and properly

authorised. The contract must state clearly how additional work is to be authorised and charged and how the work will, or from the compatly's point of view should not, affect the overall

contractual repair time. The regular daily meeting is a good time and place to clarify and agree extra work requirements, but there should be enough flexibility in the system for the night duty officer to agree minor amendment on the spot if necessary to maintain the flow of the work. 8. Subcontractors

The terms and conditions under which the company's own subcontractors can undertake work need to be clarified. The contractor will require them to comply with the contractor's health and safety policy and the master/chief engineer have a responsibility to ensure that their

subcontractors are aware of this. Similar considerations are relevant if the crew are to be allowed to carry out maintenance or repair work. The contractor's subcontractors are the responsibility of the contractor and they must operate within the terms and conditions of the main contract. If the contractor owns or subcontracts tugs, the tugowner may be able to limit liability to a much

greater extent than envisaged under the repair contract-which is where the company should be able to turn for redress in the event of damage.

9.Costs and conditions of payment.

It is important to ascertain the exchange rate which the yard is using if quoting in a non-national currency and the relationship of that currency to your operating or budget currency. Check whether -certain sub-contractors will expect payment in a different currency. Credit of up to 90 days can often be negotiated for part of the payment -e.g., 40% on completion; 30% after 45 days; 30% after 90 days.

This has the dual benefit of providing an element of guarantee for the work done. The availability of credit will, to a great extent, reflect the perceived status or known payment record of the company. In any case the starting point is very much that he who does not ask, will not receive (note, however, the comments in chapter 12 regarding the repairers' right to a lien).

Ensure that you understand how any dispute is to be handled. Since disputes are likely to be of a technical nature, it might be sensible to opt for arbitration rather than recourse to the Courts. However, some arbitration procedures are painfully slow and it might be wise to seek advice.

10. Domestic facilities

The cost and availability of all domestic facilities, ranging from shore electric supply to garbage removal, should be clarified at an early stage and included as part of the contract.

11. Health and safety

It is the responsibility of the contractor to have an effective safety organisation. It is also the responsibility of the company to ensure that all their staff (and subcontractors) are aware of it and comply with it.

Make contact with the contractor's safety manager, find out how the emergency services

operate and ensure that the crew and all visitors are aware of the particular dangers of a vessel under repair and are wearing appropriate clothing.

12. Cancellation

Stems for drydocking are, by the nature of a vessel's operation, initially made on a provisional basis. A good understanding of the terms and conditions relating to the firming of the contract and, if necessary, of cancellation procedures is important.

13. Reinstatement and regulations/responsibilities

After any work, it should be the contractor's responsibility to ensure reinstatement to previous conditions within the requirements of class and relevant statutory regulations.

14. Trials

Especially if major engine repairs are scheduled, the organisation, costs and requirements for seatrials must be clearly agreed.

15. Guarantees

Usually difficult to secure, the best guarantee is frequently the deferred portion of the payment. 16.lnsurance

Ensure that the contractor has adequate insurance in place and ascertain what it covers and, more importantly, what it does not cover. Advise, through your company, your hull

underwriters, with a brief description of the work to be done and any gaps in contractor's insurance which you consider significant.

These points are by no means exhaustive but are intended to put the master in the right frame of mind for a successful contractual negotiation with a supplier. Keep copies of contracts for future reference and endeavour to secure the contractor's contractual terms as early as possible before commencing the negotiation,