Common use of Preferential Berthing Clause in Contracts

Preferential Berthing. a. Carrier shall have the right to berth any of its vessels at a wharf named by PHA at Barbours Cut Terminal provided the wharf is fitted with neo-panamax cranes (the “Preferential Berth”), on the terms provided herein (the “Preferential Berth Rights”) and provided that the Carrier notifies the PHA’s Terminal Manager, or his designee, in writing of the schedule arrival time of such vessel (a “Preferential Vessel”) at least forty-eight (48) hours in advance of such arrival. Once the Preferential Berth is established, the berth will not change unless mutually agreed to by the parties. Whenever requested by Carrier, PHA shall also be required to provide the Preferential Berth Rights to any vessel operated by or on behalf of any of Carrier’s vessel sharing partners, where at least fifty percent (50%) on average of the containers to be loaded or discharged from such service vessels (individually, a “Shared Vessel”) at the Terminals are Carrier’s containers. Unless an alternate berth is mutually agreed upon, Carrier shall use the Preferential Berth any time a Preferential Vessel or a Shared Vessel arrives. b. Carrier shall use its best efforts to allow cargo operations of such Preferential Vessel to be completed in a prudent and timely manner after its arrival at the Preferential Berth, and shall cause such Preferential Vessel to vacate the Preferential Berth upon completion of such cargo operations. c. If such Preferential Vessel does not vacate the Preferential Berth upon completion of such cargo operation, PHA shall be entitled to cause it to so vacate in accordance with the Tariffs. d. PHA reserves the right to occupy and receive and discharge any cargo at the Preferential Berth when it is not occupied by Preferential Vessel in accordance with the terms of this Agreement. e. If any vessel other than a Preferential Vessel (a "Non-Preferential Vessel") occupies the Preferential Berth at a time when such berth is required for a Preferential Vessel, PHA will instruct the Non-Preferential Vessel to vacate the Preferential Berth forthwith. If the PHA is unable to make the Preferential Berth available for a Preferential Vessel following notice from Carrier as provided herein, it shall not be an Event of Default hereunder, but the PHA shall waive the first day's dockage charge for berth occupancy of such Preferential Vessel. Except during any time that the Preferential Berth is out of service, or damaged or destroyed by circumstances reasonably beyond the control of PHA, if the PHA is unable to make the Preferential Berth available following notice from Carrier as provided herein, for more than two percent (2%) of Carrier's Preferential Vessels calling at the Terminals during the previous six (6) months, it shall not be an Event of Default hereunder, but during the next six (6) months, if the PHA is unable to make the Preferential Berth available for a Preferential Vessel following notice from Carrier as provided herein, the PHA shall waive two days dockage charges for such Preferential Vessel. Except during any time that the Preferential Berth is out of service, or damaged or destroyed by circumstances reasonably beyond the control of PHA, if the PHA is unable to make the Preferential Berth available following notice from Carrier as provided herein, for more than fifteen (15) successive calls of Carrier's Preferential Vessels at the Terminals during the prior six (6) months, it shall be an Event of Default hereunder. f. The initial period of Preferential Berth Rights provided to Carrier and Shared Vessels under this Section 4 shall run from April 1, 2018 through June 30, 2019. g. The PHA shall thereafter review and adjust Carrier's Preferential Berth Rights, and notify Carrier thereof, no later than January l of each year for the prospective six-month period beginning July 1 of such year, and no later than July 1 of such year for the prospective six-month period beginning January 1 of the following year. Carrier shall continue to be eligible for Preferential Berth Rights provided the annualized number of loaded Containers handled through Barbours Cut Terminal by Carrier during the previous Determination Period exceeded the annualized number of loaded containers handled by each other carrier handled through the public wharves at Barbours Cut Terminal during the previous Determination Period. The Determination Period shall run from May through October 31 for the following July 1 through December 31; the Determination Period shall run from November 1 through April 30 for determining the Preferential Berth Rights in effect for the following January 1 through June 30. h. PHA guarantees that following arrival of a Preferential Vessel, upon commencement of operations of such Preferential Vessel, the Preferential Berth will be equipped with cranes as follows: Two neo-panamax cranes or any two cranes as mutually agreed upon between both parties. In the event that any wharf crane serving the Preferential Berth as specified in Section 4(h) is out of service, or damaged or destroyed by circumstances reasonably beyond the control of PHA, PHA’s obligations under this Section 4(h) shall be excused for such period. In such event, PHA shall continue to make two operable wharf cranes available at the Preferential Berth, provided that if any wharf crane serving a Preferential Berth becomes inoperable during operations of a Preferential Vessel, PHA shall not be required to interrupt loading and unloading of another vessel in order to make a replacement crane available at the Preferential Berth. PHA shall in addition diligently undertake to return such wharf crane specified in this Section 4(h) to service or repair or replace it as soon as reasonably possible. i. Carrier’s Preferential Berth Rights as provided herein shall not be available during the period any Event of Default by Carrier remains uncured.