Maritime Legal Update – March 2026
The Carbon Compliance Paradox: Can Owners
Lawfully Slow Down?
CII, EU ETS
and FuelEU Maritime vs. the Duty of Utmost Despatch under English Law
(prepared
by Marek Czernis & Co. Law Office)
Firm note
Marek
Czernis & Co. Law Office has actively participated for many years in the
work of BIMCO on standard charterparty forms and clauses, including those
addressing slow steaming, IMO CII, EU ETS and FuelEU Maritime. The analysis
below reflects that involvement as well as extensive charterparty dispute and
transactional experience.
1. Why eco-measures matter more than ever
Three
regulatory regimes have converged, fundamentally reshaping vessel operations:
IMO CII, EU
ETS and FuelEU Maritime together create escalating pressure to reduce
emissions, often through speed reduction. From an owner’s perspective,
eco-measures protect asset value, reduce ETS exposure and support FuelEU
compliance. Yet these regimes ramp up in phases, intensifying year by year.
2. The contractual conflict: eco-measures vs.
utmost despatch
Under
English law, charterers control employment, including speed and route. Owners
retain responsibility for navigation, but navigation does not permit unilateral
eco-speed decisions.
In The Hill
Harmony [2001] 1 AC 638, the House of Lords confirmed that, absent safety
concerns, route and speed fall within employment. The duty of utmost despatch
requires the shortest and quickest usual route.
By analogy,
owners cannot unilaterally slow steam for carbon efficiency without breaching: utmost
despatch, employment orders, performance warranties.
3. Why carbon-era arguments fail under English
law
Arguments
based on CII, ETS costs or FuelEU obligations do not create an implied right to
slow down. Regulatory burdens on owners do not override charterers’ contractual
rights unless performance becomes illegal. Carbon efficiency is not, of itself,
a lawful justification.
4. Narrow legal gateways for lawful slow
steaming
Absent
bespoke drafting, owners may slow down only where: safety requires it, the
charter expressly permits eco-measures, utmost despatch is recalibrated to due
despatch, charterers instruct slow steaming.
Even then,
additional contractual protection is often required.
5. BIMCO clauses as legal safe harbours
CII
Operations Clause (2022), ETS Allowances Clause (2022) and FuelEU Maritime
Clause (2024) provide structured frameworks allocating responsibility, cost and
risk, and protecting owners from deviation or despatch claims—provided they are
properly tailored.
6. The need for tailoring
These
clauses are frameworks, not plug-and-play solutions. Effective drafting must
recalibrate despatch, allocate off-hire and delay risk, define data
obligations, and align ETS/FuelEU mechanics with hire cycles.
7. Conclusion
Carbon
regulation has outpaced legacy charterparty language. Under English law, owners
cannot unilaterally slow down for eco-reasons without breaching charter
obligations. The solution is contractual, not implied.
Eco-measures
are lawful and workable—when the charterparty is engineered for them.