Common use of Liability to Owners Clause in Contracts

Liability to Owners. Without prejudice to Sub-Clause 17(a), the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel), and howsoever arising in the course of performance of the Management Services UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remedied, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or wilful default of the Managers or its employees or agents, or sub-contractors employed by them in connection with the Vessel, (iii) in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or omission committed with the intent to cause the same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of (A) three (3) times the annual management fee payable hereunder with respect to such liability arising under the foregoing sub-clause (i) or (B) ten (10) times the annual management fee payable hereunder with respect to such liability arising under the foregoing sub-clause (ii).

Liability to Owners. (i) Without prejudice to Subsub-Clause 17(a)clause 11.1, the 457 Managers shall be under no liability whatsoever to the Owners for any 458 loss, damage, delay or expense of whatsoever nature, whether direct or indirect 459 indirect, (including but not limited to loss of profit arising out of or in 460 connection with detention of or delay to the Vessel), ) and howsoever 461 arising in the course of performance of the Management Services 462 UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remediednegligence, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the 463 gross negligence or wilful willful default of the Managers or its employees their employees, 464 or agents, agents or sub-contractors employed by them in connection with the 465 Vessel, (iii) , in which case (save where loss, damage, delay or expense has 466 resulted from the Managers’ personal act or omission committed with 467 the intent to cause the same or recklessly and with knowledge that such 468 loss, damage, delay or expense would probably result) the Managers’ 469 liability for each incident or series of incidents giving rise to a claim or claims 470 claims, shall never exceed a total of (A) three (3) ten times the annual management 471 fee payable hereunder with respect hereunder. 472 (ii) Notwithstanding anything that may appear to the contrary in 473 this Agreement, the Managers shall not be liable for any of 474 the actions of the Crew, even if such liability arising actions are negligent, 475 grossly negligent or willful, except only to the extent that 476 they are shown to have resulted from a failure by the 477 Managers to discharge their obligations under the foregoing sub-clause (i) or (B) ten (10) times 478 3.1, in which case their liability shall be limited in 479 accordance with the annual management fee payable hereunder with respect terms of this Clause 11. 480 11.3 Indemnity - Except to such liability arising the extent and solely for the amount herein 481 set out that the Managers would be liable under the foregoing sub-clause 11.2, the 482 Owners hereby undertake to keep the Managers and their employees, 483 agents and sub-contractors indemnified and to hold them harmless 484 against all actions, proceedings, claims, demands or liabilities 485 whatsoever or howsoever arising which may be brought against them or 486 incurred or suffered by them arising out of or in connection with the 487 performance of the Agreement, and against and in respect of all costs, 488 losses, damages and expenses (ii)including legal costs and expenses on 489 a full indemnity basis) which the Managers may suffer or incur (either 490 directly or indirectly) in the course of the performance of this Agreement. 491 11.4 “Himalaya” - It is hereby expressly agreed that no employee or 492 agent of the Managers (including every sub-contractor from time to time 493 employed by the Managers) shall in any circumstances whatsoever be 494 under any liability whatsoever to the Owners for any loss, damage or 495 delay of whatsoever kind arising or resulting directly or indirectly from 496 any act, neglect or default on his part while acting in the course of or in 497 connection with his employment and, without prejudice to the generality 498 of the foregoing provisions in this Clause 11, every exemption, 499 limitation, condition and liberty herein contained and every right, 500 exemption from liability, defense and immunity of whatsoever nature 501 applicable to the Managers or to which the Managers are entitled 502 hereunder shall also be available and shall extend to protect every such 503 employee or agent of the Managers acting as aforesaid and for the 504 purpose of all the foregoing provisions of this Clause 11 the Managers 505 are or shall be deemed to be acting as agent or trustee on behalf of and 506 for the benefit of all persons who are or might be their servants or 507 agents from time to time (including sub-contractors as aforesaid) and all 508 such persons shall to this extent be or be deemed to be parties to this 509 Agreement. 510 12. Documentation 511 Without prejudice to the relevant provisions of the Group Management 512 Agreement, Wwhere the Managers are providing Technical 513 Management in accordance with sub-clause 3.2 and/or Crew 514 Management in accordance with sub-clause 3.1, they shall make 515 available, upon Owners’ request, all documentation and records related 516 to the Safety Management System (SMS) and/or the Crew which the 517 Owners need in order to demonstrate compliance with the ISM Code 518 and STCW 95 or to defend a claim against a third party. 519 13. General Administration 520 13.1 Without prejudice to the provisions of Article V of the Group 521 Management Agreement, but subject to the provisions of Section 4.6 of 522 the Group Management Agreement, Tthe Managers shall handle and 523 settle all claims arising out of the Management Services hereunder and 524 keep the Owners informed regarding any incident of which the 525 Managers become aware which gives or may give rise to material 526 claims or disputes involving third parties. 527 13.2 The Managers shall, as instructed by the Owners under this 528 Agreement and/or, as the case may be, Section 4.6 of the Group 529 Management Agreement, bring or defend actions, suits or proceedings 530 in connection with matters entrusted to the Managers according to this 531 Agreement. 532 13.3 The Managers shall also have power to obtain legal or technical 533 or other outside expert advice in relation to the handling and settlement 534 of claims and disputes or all other matters affecting the interests of the 535 Owners in respect of the Vessel. 536 13.4 The Owners shall arrange for the provision of any necessary 537 guarantee bond or other security. 538 13.5 Any costs reasonably incurred by the Managers in carrying out 539 their obligations according to Clause 13 shall be reimbursed by the 540 Owners. 541 14. Auditing 542 The Managers shall at all times maintain and keep true and correct 543 accounts and shall make the same available for inspection and auditing 544 by the Owners at such times as may be mutually agreed. On the 545 termination, for whatever reasons, of this Agreement, the Managers 546 shall release to the Owners, if so requested, the originals where 547 possible, or otherwise certified copies, of all such accounts and all 548 documents specifically relating to the Vessel and her operation. For the 549 avoidance of any doubt, this Clause is in addition and not in substitution 550 of the relevant provisions of the Group Management Agreement. 551 15. Inspection of Vessel 552 The Owners shall have the right at any time after giving reasonable 553 notice to the Managers to inspect the Vessel for any reason they 554 consider necessary.

Liability to Owners. Without prejudice to Sub-Clause 17(a), the 10.2.1 [The Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense, whether direct or indirect, (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) in the course of performance of the Management Services UNLESS same is proved to have resulted from the breach of this Agreement, the negligence or wilful default of the Managers or their employees, or agents or sub-contractors employed by them in connection with the Vessel.] 10.2.2 [Notwithstanding anything herein contained in the contrary, the Managers shall not be liable for any of the actions of the Crew, even if such actions are negligent, except only (i) to the extent that they are shown to have resulted from a failure by the Managers to discharge their obligations under Clause 3.1 and/or (ii) on each and every occasion that there is loss of time (whether by way of interruption in the Vessel’s service or from reduction in the Vessel’s performance or in any other manner) or other loss, damage, delay, liability or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) due to industrial action, refusal to sail, breach of orders or neglect of duty on the part of the Master, officers or crew; and/or (iii) any loss, damage, delay, fine or expense of whatsoever nature, whether direct or indirect (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel)) arising out of or in connection with any smuggling incident by the Master, officers or crew.] 10.2.3 [Notwithstanding anything herein contained in the contrary, the Managers shall be liable for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) arising out of or in connection with the nationality of the crew.] 10.2.4 [without prejudice to sub-clause 10.1 the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) and howsoever arising in the course of performance of the Management Services UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remediednegligence, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or wilful willful default of the Managers or its employees their employees, or agents, agents or sub-contractors employed by them in connection with the Vessel, (iii) , in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or omission committed with the intent to cause the same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of ten times the annual management fee payable hereunder.] 10.2.5 [Without prejudice to Clause 10.1, the Managers shall be under no liability to the Owners for any loss, damage, delay or expense, whether direct or indirect (Aincluding but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) three arising in the course of performance of the Management Services UNLESS same is proved to have resulted from the negligence, gross negligence or wilful default of the Managers or their employees, or agents or sub-contractors employed by them in connection with the Vessel, in which case the Managers’ liability for each claim shall not exceed a total of ten times the annual management fee payable hereunder. For the avoidance of doubt, such limit of liability shall not apply in the event of loss, damage, delay or expense whether direct or indirect (3including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) which has been caused by or resulted from the Managers’ intentional act or omission or any act or omission committed recklessly and/or with knowledge that such loss, damage, delay or expense whether direct or indirect would probably result”.] Without prejudice to Clause 10.1, the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect, (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel) and howsoever arising in the course of performance of the Management Services.] [UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of the Managers or their employees or agents, or sub-contractors employed by them in connection with the Vessel, in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of ten times the annual management fee payable hereunder for Basic Services. [Notwithstanding anything that may appear to the contrary in this Agreement, the Managers shall not be responsible for any of the actions of the Crew even if such actions are negligent, grossly negligent or wilful, except only to the extent that they are shown to have resulted solely from a failure to discharge their obligations under Clause 3.1 in which case their liability shall be limited in accordance with respect the terms of this Clause 10.] 10.2.6 [Notwithstanding anything that may appear to the contrary in this Agreement, the Managers shall not be liable for any of the actions of the Crew, even if such liability arising actions are negligent, grossly negligent or willful, except only to the extent that they are shown to have resulted from a failure by the Managers to discharge their obligations under the foregoing sub-clause (i) 3.1, in which case their liability shall be limited in accordance with the terms of this Clause 10..] 10.2.7 [Notwithstanding anything herein contained in the contrary, the Managers shall not be liable for any of the actions of the crew, even if such actions are negligent, grossly negligent or (B) wilful, except to the extent that they are shown to have resulted from a failure by the Managers to discharge their obligations under Clause 3.1, in which case the Managers’ liability for each claim /series of claims arising from same incident shall not exceed a total of ten (10) times the annual management fee payable hereunder hereunder. For the avoidance of doubt, such limit of liability shall not apply in the event of loss, damage, delay or expense whether direct or indirect (including but not limited to loss of profit arising out of or in connection with respect detention of or delay to the Vessel) which has been caused by or resulted from the Managers’ intentional act or omission or any act or omission committed recklessly and/or with knowledge that such liability arising under the foregoing sub-clause (ii)loss, damage, delay or expense whether direct or indirect would probably result”.]

Liability to Owners. Without prejudice to Sub-Clause 17(a), the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel), and howsoever arising in the course of performance of the Management Services UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remedied, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker Technical Managers and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or wilful default of the Managers or its employees or agents, or sub-contractors employed by them in connection with the a Vessel, (iii) in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or omission committed with the intent to cause the same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of (A) three (3) times the annual management fee average monthly Commission payable hereunder with under clause 12(a) for the twelve (12) months preceding such incident(s) for claims made in respect to such liability arising under of the foregoing sub-clause circumstances described in (i) above or (B) ten (10) times the annual management fee average monthly Commission payable hereunder with under clause 12(a) for the twelve (12) months preceding such incident(s) for claims made in respect to such liability arising under of the foregoing sub-clause circumstances described in (ii)) above. (iv) Acts or omissions of the Crew – Deleted. N/A

Liability to Owners. (i) Without prejudice to Sub-Clause 17(a)sub- 504 (SMS) and/or the Crew which the Owners need in order to 435 clause 11.1, the Managers shall be under no liability 505 demonstrate compliance with the ISM Code and STCW 95 436 whatsoever to the Owners for any loss, damage, delay or 506 or to defend a claim against a third party. 437 expense of whatsoever nature, whether direct or indirect indirect, 507 438 (including but not limited to loss of profit arising out of or 508 13. General Administration 439 in connection with detention of or delay to the Vessel), ) and 509 13.1 The Managers shall in consultation with the Owners 440 howsoever arising in the course of performance of the 510 handle and settle all claims arising out of the Management 441 Management Services UNLESS the same is proved to have 511 Services hereunder and keep the Owners informed 442 resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remediednegligence, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or 512 regarding any incident of which the Managers become 443 wilful default of the Managers or its employees their employees, or agentsagents 513 aware, which gives or may give rise to claims or disputes 444 or sub-contractors employed by them in connection with the 514 involving third parties. 445 Vessel, (iii) , in which case (save where loss, damage, delay or 515 13.2 The Managers shall, as instructed by the Owners, 446 expense has resulted from the Managers’ personal act or 516 bring or defend actions, suits or proceedings in connection 447 omission committed with the intent to cause the same or 517 with matters entrusted to the Managers according to this 448 recklessly and with knowledge that such loss, damage, 518 Agreement. 449 delay or expense would probably result) the Managers’ 519 13.3 The Managers in consultation with the Owners shall 450 liability for each incident or series of incidents giving rise 520 also have power to obtain legal or technical or other outside 451 to a claim or claims shall never exceed a total of (A) three (3) ten times 521 expert advice in relation to the handling and settlement of 452 the annual management fee payable hereunder with respect to such liability arising under hereunder. 522 claims and disputes or all other matters affecting the foregoing sub-clause (i) or (B) ten (10) times the annual management fee payable hereunder with respect to such liability arising under the foregoing sub-clause 453 (ii).) Notwithstanding anything that may appear to the 523 interests of the Owners in respect of the Vessel. 454 contrary in this Agreement, the Managers shall not be liable 524 13.4 The Owners shall arrange for the provision of any 455 for any of the actions of the Crew, even if such actions are 525 necessary guarantee bond or other security. 456 negligent, grossly negligent or wilful, except only to the 526 13.5 Any costs reasonably incurred by the Managers in 457 extent that they are shown to have resulted from a failure by 527 carrying out their obligations according to Clause 13 shall 458 the Managers to discharge their obligations under sub- 528 be reimbursed by the Owners. 460 accordance with the terms of this Clause 11. 530 14. Auditing

Liability to Owners. Without prejudice to Sub-Clause 17(a), the Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel), and howsoever arising in the course of performance of the Management Services UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Managers due to such negligence and stating the deficiencies to be remedied, provided however, that the Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, the Exclusive Broker Technical Managers and TCMC, or if the Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or wilful default of the Managers or its employees or agents, or sub-contractors employed by them in connection with the a Vessel, (iii) in which case (save where loss, damage, delay or expense has resulted from the Managers’ personal act or omission committed with the intent to cause the same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of (A) three (3) times the annual management fee average monthly Commission payable hereunder with under clause 12(a) for the twelve (12) months preceding such incident(s) for claims made in respect to such liability arising under of the foregoing sub-clause circumstances described in (i) above or (B) ten (10) times the annual management fee average monthly Commission payable hereunder with under clause 12(a) for the twelve (12) months preceding such incident(s) for claims made in respect to such liability arising under of the foregoing sub-clause circumstances described in (ii)) above.

Liability to Owners. Without prejudice to Sub-Clause 17(a9(a), the Supervision Managers shall be under no liability whatsoever to the Owners for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect (including but not limited to loss of profit arising out of or in connection with detention of or delay to the Vessel), and howsoever arising in the course of performance of the Management Services UNLESS the same is proved to have resulted solely from: (i) the persistent and/or continuing negligence of the Supervision Managers which causes material losses and/or material additional expense to the Owners for a period of 3 (three) calendar months or more following a written notice from the Owners that it is dissatisfied with the performance of the Supervision Managers due to such negligence and stating the deficiencies to be remedied, provided however, that the Supervision Managers shall not be deemed to have acted negligently if the deficiencies arise or are continuing due to circumstances beyond the control of the Managers, Supervision Managers and the Exclusive Broker and TCMC, Commercial Managers or if the Supervision Managers are taking reasonable steps to remedy such deficiencies; or (ii) the gross negligence or wilful default of the Supervision Managers or its their employees or agents, or sub-contractors employed by them in connection with the Vessel, (iii) in which case (save where loss, damage, delay or expense has resulted from the Supervision Managers’ personal act or omission committed with the intent to cause the same or recklessly and with knowledge that such loss, damage, delay or expense would probably result) the Supervision Managers’ liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of (A) three (3) times the annual management fee Supervision Fee payable hereunder with respect to such liability arising under the foregoing sub-clause (i) or (B) ten (10) times the annual management fee Supervision Fee payable hereunder with respect to such liability arising under the foregoing sub-clause (ii).