U.S. Automated Manifest System (AMS) Regulations - Charterparty Clauses

April 2004

In February 2004 the Club issued Circular B.400 informing Members of the new US AMS Regulations (the Regulations). 

The United States Bureau of Customs and Border Protection (CBP) has declined to provide a general ruling as to the identity of the Carrier who will be required to comply with the Regulations where a ship is on time or voyage charter. The Club's supplemental circular Circular B.402 - Identity of 'Carrier' summarises the information currently available as to CBP's view of who may be considered to be the Carrier in relation to such ships.

Shortly after the CBP position became apparent BIMCO had prepared clauses designed to allocate responsibility between owner and charterer in relation to the Regulations. While the BIMCO U.S. Customs Advance Notification/AMS Clauses for Time and Voyage Charterparties take a sensible approach they are based on the assumption that: 

• in time charterparties the charterer, as the party responsible for the employment of the vessel, should arrange for compliance with the regulations
• in voyage charterparties, the owner maintains control of the vessel and should ensure compliance.

However, the CBP's case by case approach to the Carrier issue has made it difficult to draft set clauses for time and voyage charterparties. Determining who should take on the role of Carrier under the Regulations, and therefore ensure compliance, will depend on the nature of the trade, the identity and particular circumstances of the parties concerned and the parties' intentions. Contrary to the BIMCO approach, certain charterers fixing on voyage terms may prefer to use their own Standard Carrier Alpha Code (SCAC) numbers and, having the relevant facilities in place, may be willing to take care of the AMS filing themselves. Conversely, many charterers fixing on a time basis may be unwilling to take on the Carrier role. 

Whilst the BIMCO standard clauses provide a useful starting point, there are likely to be many situations in which they may require adapting to a greater or lesser extent, or may be completely unsuitable. 

It is recommended that Members contact the Club for further advice if they have any concerns about the suitability of any clause designed to address this issue.