Later, in Co-operative Retail Services v Taylor Young Partnership  UKHL 17, the then House of Lords upheld the view expressed in Hopewell Project Management, albeit obiter dictum. Nevertheless, the Court held that the explanation for the insurers` lack of standing was more likely to be found in the underlying contract. In other words, the House of Lords concluded that there was an implied clause in the main contract whereby the co-insurers waived the right to claim damages covered by the insurance policy against each other (Gürses, 2016). Thus, a third theory was born, that of the “construction of the main contract”. According to this theory, in order to decide whether or not the insurer can conclude the rights of the owner, it is necessary to analyze the provisions of the parties in the main contract or in the underlying contract, in this case in the bareboat charter contract. Where liability between the parties is expressly or implicitly excluded (Merkin and Stuart-Smith, 2004; Lowry et al., 2011), such an exclusion concerns the insurer, who then does not have standing. Conversely, if liability between the parties is not excluded, there is in principle no obstacle for the insurer to assert an assigned claim against the co-insured who caused the damage (Gürses, 2016; Ter Haar, et al., 2016). Fifthly, in bareboat charter contracts, it is provided for inspections on board the ship. This is called a “lease investigation” if it takes place at the time of delivery of the vessel, or a “non-rental survey” if it is carried out during the redelivery of the vessel. Through these inspections, the charterer or owner checks the condition of the vessel. These inspections are included in the BARECON forms. However, the new form introduces a relevant novelty.
The “BARECON 2017” allows underwater inspections to verify the good condition of the rudder, propeller, bottom and other underwater parts of the ship [kl. 7 (b)]. The new clause also appears to address the question of the insurer`s power to assert an assigned claim against subsequent charterers and sub-charterers, which would now be feasible. Thus, in bareboat charters where the parties are subject to the provisions of “BARECON 2017”, both owners and charterers and their insurers who pursue subrogation can, in the event of an accident, assert a claim against those who are third parties with regard to the sunset charter. Despite the importance of this treaty for the maritime industry, there is no bareboat charter agreement on uniform international regulations. Given the generally non-binding nature of the provisions of legal systems with specific provisions of the Charter of Misfortune, this has traditionally led parties to resort to internationally recognized forms. The best known is the “BARECON” type agreement (Petit Lavall Mª.V., 2015; Arroyo Martínez, 2015), as adopted by BIMCO in 1974 and amended in 1989, 2001 and finally in 2017. Gard again appealed the decision to the Supreme Court, asking whether section 12 of the Barecon 89 form, under which the owner and charterer act as co-insurers, implies a waiver of the insurer`s right to subrogation in the lawsuit against the charterer for violation of the safe port clause. The waiver of rights between the parties has always been a controversial issue due to the ambiguity of the word “waiver” and its different meanings. To this end, the concept of this concept has already been addressed by the House of Lords in Motor Oil Hellas (Corinth) Refineries S.A.
v Shipping Corporation of India (The Kanchenjunga) ( 1 Lloyd`s Rep 391). In that sense, the question arises in The Ocean Victory as to whether the fact that the shipowner and the charterer act as co-insurers under the same policy satisfies the conditions for a waiver of rights between them. Although there is no difference between bareboat charters and shipwreck charters under English, Spanish and Italian law, it is common knowledge that there are two types of ship rental: sink charter (or gross charter) and bareboat charter (SAP IB 679/2006; Petit Lavall Mª.V., 2015; Tullio, 2016). In both cases, the ship must be delivered seaworthy and be armed and equipped. .