Following the extremely costly cyber attacks on the Maersk, Clarkson and COSCO operations this year the Baltic and International Maritime Council (BIMCO) has gathered together some heavy hitting stakeholders from the legal and logistics sectors to help in drafting its first ever cyber security clause for the benefit of ship owners and other related freight and shipping interests.
Inga Froysa of chartering specialist Klaveness, Oslo is leading a team which includes Navig8 ship management, marine insurance experts the UK P&I Club and international lawyers HFW. The aim is to produce a clause able to deal with cyber security risks and incidents that might affect the ability of one of the parties to perform their contractual obligations. It will necessitate the parties having plans and procedures in place capable of protecting computer systems and data and of responding immediately to any cyber intrusions.
An affected party will have to inform others immediately to enable them to take counter-measures and it will be drafted to cover a range of stakeholders, not just ship operators but inclusive of a range of third-party service providers, such as brokers and agents. The liability of the parties to each other for claims is limited to an amount agreed during negotiations. A sum of $100,000 will apply if no other amount is inserted.
The range of the clause is twofold, firstly it is aimed at raising the awareness of cyber risks among owners, charterers and brokers. Its main purpose is to ensure contracted parties are prepared for a cyber-incident, have suitable protective and reactive measures and can mitigate any damage swiftly. The new clause is due to be published in May 2019.
In the early stages of development, the drafting team discussed if the clause should also address payment fraud. It was concluded that the risk of this increasingly common fraud is probably best dealt with at a procedural level by companies tightening up their internal payment procedures to require verification of any changes to payment details.
The HFW legal team working on the clause is led by senior associate William MacLachlan and also includes partners Elinor Dautlich and Toby Stephens and associate Henry Clack. William MacLachlan observed:
“As the shipping industry wrestles with how to respond to the cyber threat, this clause aims to lay down a benchmark for cyber security measures and explicitly address the question of liability for a cyber security incident. We are pleased to have been able to support BIMCO, the other members of the drafting sub-committee and the shipping community generally on this important and topical point, and look forward to seeing how it is taken up and implemented by the industry.”
Source: Handy Shipping Guide