SALEFORM 2012 CLAUSE 4
(a)*The Buyers have inspected and accepted the Vessel's classification records. The Buyers have also inspected the Vessel at/in [ ] ( state place) on [ ] (state date) and have accepted the Vessel following this inspection and the sale is outright and definite, subject only to the terms and conditions of this Agreement.
(b) *The Buyers shall have the right to inspect the Vessel's classification records and declare whether same are accepted or not within [ ] (state date/period).
The Sellers shall make the Vessel available for inspection at/in [ ] (state place/range) within [ ] ( state date/period).
The Buyers shall undertake the inspection without undue delay to the Vessel. Should the Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred.
The Buyers shall inspect the Vessel without opening up and without cost to the Sellers.
During the inspection, the Vessel's deck and engine log books shall be made available for examination by the Buyers.
The sale shall become outright and definite, subject only to the terms and conditions of this Agreement, provided that the Sellers receive written notice of acceptance of the Vessel from the Buyers within seventy two (72) hours after completion of such inspection or after the date/last day of the period stated in Line 59, whichever is earlier.
Should the Buyers fail to undertake the inspection as scheduled and/or notice of acceptance of the Vessel's classification records and/or of the Vessel not be received by the Sellers as aforesaid, the Deposit together with interest earned, if any, shall be released immediately to the Buyers, whereafter this Agreement shall be null and void.
*4(a) and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 4(a) shall apply.
Clause 4(a) and (b) of Saleform 2012 offer two alternatives (as in Saleform 1993) in relation to inspections, one of which should be deleted by the parties. If the parties fail to delete one of the alternatives, they will be deemed to have chosen the first alternative at clause 4(a).
For the sake of completeness, it is worth mentioning that there is a third alternative, namely no inspection at all. If there is to be no clause 4(a) or (b) inspection, the parties should delete all of clause 4 (to avoid clause 4(a) applying by default), insert wording that the sale is outright and definite subject only to the terms and conditions of the contract and replace “the inspection” references in clause 11 with suitably worded references to the date of the Saleform contract.
5.20.2 First alternative – clause 4(a): outright sale
The first alternative (in lines 52–55) covers the outright sale situation, in which the buyer has inspected and accepted the ship and her classification records during negotiations and before signing the contract.
In line 52 the buyer confirms that it has inspected and accepted the ship's classification records. This inspection will usually take place at the offices of the relevant Classification Society.
In line 53 the parties record the place where the pre-contract inspection of the ship took place and the date when it was held. In lines 54 and 55 it is then provided that the “Buyers have accepted the ship following this inspection and the sale is outright and definite, subject only to the terms and conditions of this Agreement”.
5.20.3 Second alternative – clause 4(b): sale subject to inspection
The second alternative (at clause 4(b)) contemplates inspections being carried out after contract signing. In its unamended form, clause 4(b) of Saleform 2012 provides for three different inspections:
Buyer's inspection of the ship's classification records (lines 56 and 57);
Buyer's superficial inspection of the ship without opening up (line 62); and
an inspection of the ship's deck and engine log books (lines 63–64).
Saleform 2012 imposes an obligation on the seller to “make the Vessel available” (lines 58–59) at a stated place and date/period. This language is clearer than that used in Saleform 1993 (where the seller has to provide for inspection of the vessel “at/in”) but the sense has not changed.
5.20.4 Clause 4(b) – inspection of class records
By lines 56 and 57 of clause 4(b), the buyer has the right to inspect the ship's classification records and, within a pre-agreed period, to declare whether or not it accepts such records. Often the buyer will commission an independent surveyor to inspect and report upon the ship's classification records.
5.20.5 Clause 4(b) – superficial inspection of the ship
By lines 58–59 in clause 4(b), the seller is obliged to make the ship available for a superficial physical inspection at a pre-agreed place and time. Failure by the seller to provide proper facilities for the inspection will be a breach of the sale contract.
Unless the buyer is already familiar with the condition of the ship, it may seek to amend the printed terms of clause 4 so as to entitle it to make a more detailed inspection of the ship involving, say, the opening up and demonstrating or testing of the ship's engines and machinery, and in some cases a programme of specified sea trials.
The commercial balance between the parties (and therefore the extent to which a prospective buyer may be able to modify market practice in this regard) will be dictated on a case-by-case basis by factors such as the state of the market for ships of the type in question and any factors putting the parties under pressure to sell or, as the case may be, buy the ship in question. But, in practice, the seller will often be unwilling to allow the buyer the opportunity to make anything other than a superficial inspection.
As with the inspection of classification records, the buyer will often commission independent surveyors to carry out (and report upon) the afloat inspection of the ship and such surveyors will normally be asked to make a detailed written and photographic report recording the parts inspected and the results of the inspection.
Saleform 2012 (like Saleform 1993) leaves open the possibility of the physical inspection being carried out while the ship is in drydock.
By lines 60–61 in clause 4, the buyer is obliged to inspect the ship without undue delay to the ship. If it breaches this obligation, the buyer will be liable to compensate the seller for any losses caused by the delay. In practice, the buyer may negotiate for the deletion or amendment of this provision.
5.20.6 Clause 4(b) – inspection of deck and engine log books
At the same time as the seller makes the ship available for a superficial physical inspection, it is obliged to make the ship's log books available for inspection. The scope of inspection can be amended if agreed between the parties.
5.20.7 Buyer's discretion under clause 4(b)
The effect of clause 4(b) is that the buyer's acceptance of the ship and of her classification records are conditions precedent to the buyer's obligation to purchase the ship. Further, in its unamended form clause 4 of Saleform 2012 gives the buyer an absolutely unfettered discretion either to accept or to refuse the ship following inspection or even if the buyer fails to carry out the inspection. Thus, if as a result of a fall in the market between the time when the contract is signed and the time when the afloat inspection is made, the buyer concludes that it has made a bad bargain, it would be entitled to refuse the ship and recover its deposit and accrued interest.
For this reason the seller may seek to amend the printed terms of clause 4(b) so as to tie the buyer's right of refusal to matters actually connected with its inspection of the ship and her records.69 However, the buyer will often counter by insisting that any such provision must contain a subjective test in its favour and, in the absence of an objective standard against which the buyer is to judge the ship and her records, it is difficult to see how a tie-in provision would assist the seller in circumstances where the buyer goes through the motions of making a diligent inspection and then refuses the ship for reasons said to be connected with the inspection.
5.20.8 Clause 4(b) – acceptance
In lines 66–68 in clause 4(b), the buyer must confirm its acceptance (or rejection) of the ship within 72 hours following completion of the inspection or within 72 hours after the date/last day of the period stated in line 59 (date or period agreed for inspection) whichever is earlier.
5.20.9 Clause 4(b) – failure to confirm acceptance
If the buyer should fail either to undertake the inspection as scheduled, or to confirm acceptance of the ship and her classification records in the manner and within the time stipulated in lines 67–68, clause 4 provides that the deposit and interest accrued (if any) shall be immediately released to the buyer and the contract shall thereafter be null and void.
5.20.10 Clause 4(a) and (b) – effect of acceptance
The effect of acceptance of the ship and of her classification records under clause 4(a) and (b) is the same; namely that the sale becomes outright and definite, subject only to the other terms and conditions of the contract.
While there are a number of terms and conditions in Saleform 2012 which affect the “outright and definite” nature of the sale (for example, the seller's documentary obligations under clause 8), the crucial provisions relating to the ship's physical condition are contained in clause 11.
The starting point with clause 11 – as far as the ship's physical condition is concerned – is that the ship “shall be delivered and taken over as she was at the time of inspection, fair wear and tear excepted”. Lines 311–313 make clear that the “inspection” being referred to in clause 11 is the inspection carried out under clause 4(a) or (b) as the case may be.
Clause 11 provides that the ship will be delivered “with her class maintained without condition/recommendation…”. Therefore, if at the time of the buyer's inspection of the classification records any conditions or recommendations were recorded against the ship (and the seller intends that they shall remain at the time of delivery), the seller will need to amend the printed terms of clause 11 to provide that the ship shall be free of conditions and recommendations save for those existing at the time of the inspection of the classification records. If this amendment is not made the seller would be required to take such action as might be necessary to ensure that the relevant class conditions or recommendations are removed before delivery.
5.20.11 Other inspections
In addition to the inspection regime set out in clause 4 of Saleform 2012, there is the possibility of a pre-delivery drydock inspection or divers' inspection under clause 6.
If its bargaining position permits it to do so, the buyer will often seek the right to make a formal inspection immediately before delivery in order to compare the condition of the ship at that time with the condition found at the time of the earlier inspection, the objective being to identify any deterioration between these times that exceeds the “fair wear and tear” allowance provided for in clause 11.
Such a right would be particularly valuable for the buyer where there is a significant time lag between contract signing and delivery (which might be the case where the ship is working off an existing contract of affreightment or charter commitment) but there are obvious risks for the seller. If the balance of negotiating power is such that the seller feels compelled to accept such a proposal, it could seek to minimise the risks by insisting that both inspections are to be carried out (and documented) by a jointly appointed independent surveyor. Such an arrangement could hold advantages for both sides because it would give the buyer an additional inspection right which they do not have under the printed terms of Saleform, and, providing that the independent surveyor is not improperly influenced by the buyer, it could help to protect the seller against “condition” claims from the buyer's side which are not genuine.
If the buyer wishes to have the right to arrange for a condition survey to be made by insurance or bank surveyors, and to reject the ship and withdraw from the contract without liability on their part in the event of the ship failing to pass such a survey, the buyer should negotiate for an appropriate amendment to the printed terms of clause 4 of Saleform 2012.
5.21 NOTES ON NIPPONSALE 1999
Boxes 9 and 10 of Nipponsale 1999 call for the dates and places where the buyer made its pre-contractual superficial inspection of the ship and her class records. Nipponsale 1999 assumes that the buyer have made these inspections, and accepted the ship and her class records, before the sale agreement is signed. This is in contrast with the position under Saleform 2012 and SSF2011, each of which (at clause 4(b) and 3(b), respectively) contains an optional arrangement under which the buyer may make such inspections after the sale contract has been signed.
5.22 NOTES ON SSF2011
Clause 3 of SSF2011 closely follows the approach taken in clause 4 of Saleform 2012 and its predecessor. As with Saleform, the printed terms offer two alternatives for inspection, one of which is to be deleted by the parties.
Clause 3(a) of SSF2011 applies where the buyer has inspected the ship and its classification records prior to signing the contract and the sale is expressed to be outright subject only to the terms and conditions of the contract. The place and date of the ship inspection is to be inserted in Box 9(i).
Clause 3(b) of SSF2011 applies where the inspection is to take place sometime in the future. The port and date of this ship inspection are to be inserted in Box 9(i) (as in the case of the clause 3(a) inspection) but in this case the parties may negotiate a geographical and temporal range. Again, the approach follows that adopted in clause 4 of Saleform 2012.
There is a guidance note to clause 3(b) of SSF2011 which seeks to define the manner and scope of the inspection. This includes a confirmation that while photographs may be taken the inspection shall be carried out without opening up and at seller's cost.
The guidance note also specifies that the inspection shall include inspection of the ship's classification records, deck and engine log books and available ballast spaces. While this list gives the buyer comfort as to its minimum inspection rights, it can be argued that it may give the seller the opportunity to refuse access to areas which are not so specified. Accordingly, if a buyer wishes to inspect particular areas of the ship, it should negotiate to include an amendment to the printed terms.
As with Saleform if the buyer fails to positively accept the ship by giving notice to that effect within 72 hours following completion of the inspection, the buyer becomes immediately entitled to the return of its deposit (and any interest) and the contract is thereafter null and void.
(a). *买方已经检查并接受船舶的船级记录。买方也已经在[ ]（载明地点）在[ ]（标明时间）内对船舶进行了检查，并且在该检查之后已经接受了该船舶，那么，船舶买卖关系，仅根据本协议的条款和条件，彻底无条件地和明确肯定地宣告成立。
(b). *买方应该有权检查该船舶的船级记录，并在[ ]（标明的日期/期限）内宣布是否接受船舶现状买卖。
卖方应该在[ ]（载明地点/地区范围）在[ ]（标明时间/期限）内为买方安排船舶以供检查。
* 4(a) 和4(b)二者选一；删除不适用条款。如果未作删除，则视为选择(a)适用。
5.20.2 第一种选择：第4(a)条款 彻底无条件出售
5.20.3 第二种选择：第4(b)条款 以检查后为条件出售
(4) Saleform 2012格式，强加给卖方的义务是在规定的地点和日期/期间‘提供船舶以备检查’（第58-59行）。这种措辞，比Saleform 1993格式中使用的语言（卖方必须提供船舶以备在＿＿＿（时间）＿＿＿地点进行检查）更清晰，但意义并没有改变。
魏长庚船长出生于河南商丘睢县，1996-2000 年在大连海事大学学习，获得航海技术专业学士学位。具有16年海上船舶航行经验，做过7条船(包括20多万吨的Cape size船舶)远洋船长，目前任职于华洋海事中心。魏长庚船长一直热爱海商法（重点是英国海商法）的学习，并致力海商法的翻译工作，包括Informa出版的Bill of Lading（提单），Laytime and Demurrage《装卸时间与滞期费》（中英文对照--第7版）等书籍。