FORM OF
EXHIBIT
10.3
FORM OF
| ORIGINAL | |||
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1.
|
Date of Agreement
December
1, 2009
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THE
BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO)
STANDARD
SHIP MANAGEMENT AGREEMENT
CODE
NAME: "XXXXXXX 98" PART
I
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2.
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Owners
(name, place of registered office and law of registry) (Cl.
1)
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3.
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Managers
(name, place of registered office and law of registry) (Cl.1)
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Name
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Name
Scorpio Ship Management
xxx
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||
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Place
of registration office
Ajeltake
Road, Ajeltake Island, Majuro, MH96960, Xxxxxxxx Islands
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Place
of registration xxxxxx
0 xxxx Xxxxxxx XXX, XX00000
Monaco
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||
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Law
of Registry
Xxxxxxxx
Islands
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Law
of Registry
Principality
of Monaco
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4.
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Day
and year of commencement of Agreement (Cl.
2)
December
1, 2009
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5.
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Crew
Management (state "yes" or "no" as agreed) (Cl.
3.1)
YES
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6.
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Technical
Management (state "yes" or "no" as agreed) (Cl.
3.2)
YES
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7.
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Commercial
Management (state "yes" or "no" as agreed) (Cl.
3.3)
NO
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8.
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Insurance
Arrangements (state "yes" or "no" as agreed) (Cl.
3.4)
YES
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9.
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Accounting
Services (state "yes" or "no" as agreed) (Cl.
3.5).
YES
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10.
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Sale
or purchase of the Vessel (state "yes" or "no" as agreed) (Cl.
3.6)
YES
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11.
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Provisions
(state "yes" or "no" as agreed) (Cl.
3.7)
YES
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12.
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Bunkering
(state "yes" or "no" as agreed) (Cl.
3.8)
NO
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13.
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Chartering
Services Period (only to be filled in if "yes" stated in Box 7) (Cl. 3.3(i))
NO
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14.
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Owners'
insurance (state alternative (i),
(ii)
or (iii)
of (Cl.
6.3)).
6.3(i)
to apply
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15.
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Annual
Management Fee (state annual amount) (Cl.
8.1)
US$200,000.
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16.
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Severance
costs (state
maximum amount) (Cl.
8.4(ii))
For
Owners' account: please see clause 8.4(ii)
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17.
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Day
and year of termination of Agreement (Cl.
17)
See
clause 17.
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18.
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Law
and Arbitration (state alternative 19.1,
19.2
or 19.3;
if 19.3
place of arbitration must be stated) (Cl.
19)
19.1
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19.
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Notices
(state postal and cable address, telex and telefax number for serving
notice and communication to the Owners) (Cl. 20)
c/o
Scorpio Commercial Management xxx
9
blvd Xxxxxxx XXX
MC98000
Monaco
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20.
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Notices
(state postal and cable address, telex and telefax number for serving
notice and communication to the
Managers)
(Cl.
20).
9
blvd. Xxxxxxx XXX
MC98000
Monaco
Phone:
x000
00000000
Fax:
x000 00000000
email:
xxxxxxxxx@xxxxxxx.xx
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It is
mutually agreed between the party stated in Box 2
and the party stated in Box 3
that this Agreement consisting of PART
I and PART
II as well as Annexes
"A" (Details of Vessel), "B"
(Details. of Crew), "C"
(Budget) and "D"
(Associated vessels) attached hereto, shall be performed subject to the
conditions contained herein. In the event of a conflict of
conditions, the provisions of PART
I and Annexes
"A", "B",
"C"
and "D"
shall prevail over those of PART
II to the extent of such conflict but no further.
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Signature(s)
(Owners)
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Signature(s)
(Managers)
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This
document is a computer generated XXXXXXX 98 form printed by authority of
BIMCO. Any insertion or deletion to the form must be clearly
visible. In the event of any modification made to the pre-printed
text of this document which is not clearly visible, the text of the original
BIMCO approved document shall apply. BIMCO assumes no responsibility
for any loss, damage or expense as a result of discrepancies between the
original BIMCO approved document and this computer generated
document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
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1.
Definitions
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1
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insurance,
discipline and other requirements;
|
63
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In
this Xxxxxxx 98 form (together with the Additional Clauses
of
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2
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(iii)
ensuring that all members of the Crew have passed a
medical
|
64
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even
date herewith and any Schedules thereto (the
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examination
with a qualified doctor certifying that they are fit
|
65
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"Agreement"))
save where the context otherwise requires,
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for
the duties for which they are engaged and are in
possession
|
66
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the
following words and expressions shall have the meanings
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3
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of
valid medical certificates issued in accordance with
|
67
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hereby
assigned to them.
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4
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appropriate flag State requirements, in
the absence of
|
68
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applicable
flag State requirements the medical certificate
shall
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69
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"Owners"
means the party identified in Box
2.
|
5
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be
dated not more than three months prior to the
respective
|
70
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"Managers"
means the party identified in Box
3.
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6
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Crew
members leaving their country of domicile and
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71
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"Vessel"
means the vessel or vessels details of which are set
|
7
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maintained
for the duration of their service on board the
Vessel;
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72
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out
in Annex "A" attached
hereto.
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8
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(iv)
ensuring that the Crew shall have a command of the English
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73
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"Crew" means the Master, officers and
ratings of the numbers,
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9
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language
of a sufficient standard to enable them to perform
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74
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rank
and nationality specified in Annex
"B" attached hereto.
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10
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their
duties safely;
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75
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"Crew Support
Costs" means all expenses of a general nature
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11
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(v)
arranging transportation of the Crew, including
repatriation;
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76
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which
are not particularly referable to any individual vessel
for
|
12
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(vi)
training of the Crew and supervising their efficiency;
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77
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the
time being managed by the Managers and which are incurred
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13
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(vii)
conducting union negotiations;
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78
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by
the Managers for the purpose of providing an efficient and
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14
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(viii)
operating the Managers' drug and alcohol policy unless
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79
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economic
management service and, without prejudice to the
|
15
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otherwise
agreed.
|
80
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generality
of the foregoing, shall include the cost of crew standby
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16
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pay,
training schemes for officers and ratings, cadet training
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17
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3.2
Technical Management
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81
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schemes,
sick pay, study pay, recruitment and interviews.
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18
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(only applicable if agreed according to Box
6)
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82
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"Severance
Costs" means the costs which the employers
are
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19
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The
Managers shall provide technical management which
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83
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legally
obliged to pay to or in respect of the Crew as a result of
|
20
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includes,
but is not limited to, the following functions:
|
84
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the
early termination of any employment contract for service
on
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21
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(i)
provision of competent personnel to supervise the
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85
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the
Vessel.
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22
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maintenance
and general efficiency of the Vessel;
|
86
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"Crew
insurances" means insurances against crew risks
which
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23
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(ii)
arrangement and supervision of dry dockings, repairs,
|
87
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shall
include but not be limited to death, sickness,
repatriation,
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24
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alterations
and the upkeep of the Vessel to the standards
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88
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injury,
shipwreck unemployment indemnity and loss of personal
|
25
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required
by the Owners provided that the Managers shall
|
89
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effects.
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26
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be
entitled to incur the necessary expenditure to ensure
|
90
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"Management
Services" means the services
specified in sub-
|
27
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that
the Vessel will comply with the law of the flag of the
|
91
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clauses
3.1 to 3.8 as indicated affirmatively in Boxes 5 to 12
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28
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Vessel
and of the places where she trades, and all
|
92
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"ISM
Code" means the International
Management Code for the
|
29
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requirements
and recommendations of the classification
|
93
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Safe
Operation of Ships and for Pollution Prevention as adopted
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30
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Society;
|
94
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by
the International Maritime Organization (IMO) by
resolution
|
31
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(iii)
arrangement of the supply of necessary victualling, stores, spares
and
|
95
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A.741(18)
or any subsequent amendment thereto.
|
32
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lubricating
oil and services for the Vessel;
|
96
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"STCW 95" means the International
Convention on Standards
|
33
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(iv)
appointment of surveyors and technical consultants as the
|
97
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of
Training, Certification and Watchkeeping for Seafarers,
1978,
|
34
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Managers
may consider from time to time to be necessary;
|
98
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as
amended in 1995 or any subsequent amendment thereto.
|
35
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(v)
development, implementation and maintenance of a Safety
|
99
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Management
System (SMS) in accordance with the ISM
|
100
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2.
Appointment of Managers
|
36
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Code
and an ISPS (see sub-clauses 4.2
and 5.3).
|
101
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With
effect from the day and year stated in Box
4 and continuing
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37
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unless
and until terminated as provided herein, the Owners
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38
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3.3
Commercial Management
|
102
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hereby
appoint the Managers and the Managers hereby agree
|
39
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(only
applicable if agreed according to Box 7)
|
103
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to
act as the Managers of the Vessel.
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40
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The
Managers shall provide the commercial operation of
the
|
104
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Vessel,
as required by the Owners, which includes, but is
not
|
105
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| 3. Basis of Agreement |
41
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limited
to, the following functions:
|
106
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Subject
to the terms and conditions herein provided, during
the
|
42
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(i)
providing chartering services in accordance with the
Owners'
|
107
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period
of this Agreement, the Managers shall carry out
|
43
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instructions
which include, but are not limited to, seeking
|
108
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and
negotiating employment for the Vessel and the
conclusion
|
109
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Management
Services in respect of the Vessel as agents for
|
44
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(including
the execution thereof) of charter parties or other
|
110
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and
on behalf of the Owners. The Managers shall have
authority
|
45
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contracts
relating to the employment of the Vessel. If such
a
|
111
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to
take such actions as they may from time to time in their
absolute
|
46
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contract
exceeds the period stated in Box 13,
consent thereto
|
112
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discretion
consider to be necessary to enable them to perform
|
47
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in
writing shall first be obtained from the Owners.
|
113
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this
Agreement in accordance with sound ship management
|
48
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(ii)
arranging of the proper payment to Owners or their
nominees
|
114
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practice.
|
49
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of
all hire and/or freight revenues or other moneys of
|
115
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|
whatsoever
nature to which Owners may be entitled arising
|
116
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||
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3.1
Crew Management
|
50
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out
of the employment of or otherwise in connection with
the
|
117
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(only
applicable if agreed according to Box 5)
|
51
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Vessel.
|
118
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The
Managers shall provide suitably qualified Crew for the
Vessel
|
52
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(iii)
providing voyage estimates and accounts and calculating
of
|
119
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as
required by the Owners in accordance with the STCW 95
|
53
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hire,
freights, demurrage and/or despatch moneys due from
|
120
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requirements,
provision of which includes but is not limited to
|
54
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or
due to the charterers of the Vessel;
|
121
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the
following functions:
|
55
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(iv)
issuing of voyage instructions,
|
122
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|
(i)
selecting and engaging the Vessel's Crew, including
payroll
|
56
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(v) appointing
agents;
|
123 |
|
arrangements,
pension administration, and insurances for
|
57
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(vi)
appointing stevedores;
|
124
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the
Crew other than those mentioned in Clause 6;
|
58
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(vii)
arranging surveys associated with the commercial
operation
|
125
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|
(ii)
ensuring that the applicable requirements of the law of
the
|
59
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of
the Vessel.
|
126
|
|
flag
of the Vessel are satisfied in respect of xxxxxxx levels,
|
60
|
|
|
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rank,
qualification and certification of the Crew and
|
61
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3.4 Insurance Arrangements' | 127 |
|
employment
regulations including Crew's tax, social
|
62
|
(only applicable if agreed according to Box
8)
|
128
|
This
document is a computer generated XXXXXXX 98 form printed by authority of
BIMCO. Any insertion or deletion to the form must be clearly
visible. In the event of any modification made to the pre-printed
text of this document which is not clearly visible, the text of the originally
BIMCO approved document shall apply. BIMCO assumes no responsibility
for any loss, damage or expense as a result of discrepancies between the
original BIMCO approved document and this computer generated
document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
The
Managers shall arrange insurances in accordance with
|
129
|
and
that they, or such other entity as may be appointed by
them
|
188
|
|
Clause
6, on such terms and conditions as the Owners shall
|
130
|
and
identified to the Managers, shall be deemed to be
the
|
189
|
|
have
instructed or agreed, in particular regarding conditions,
|
131
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"Company"
as defined by the ISM Code assuming the
responsibility
|
190
|
|
insured
values, deductibles and franchises.
|
132
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for
the operation of the Vessel end taking over the duties
and
|
191
|
|
responsibilities
imposed by the ISM Code when applicable
|
192
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||
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3.5
Accounting Services
|
133
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||
|
(only
applicable if agreed according to Box
9)
|
134
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6. Insurance
Policies
|
193
|
|
The
Managers shall:
|
135
|
The
Owners shall procure, whether by instructing the Managers
|
194
|
|
(i)
establish an accounting system which meets the
|
136
|
under
sub-clause 3.4
or otherwise, that throughout the period of
|
195
|
|
requirements
of the Owners and provide regular
|
137
|
this
Agreement:
|
196
|
|
accounting
|
6.1
at the Owners' expense, the Vessel is insured for not
less
|
197
|
|
|
services,
supply regular reports and records,
|
138
|
than
her sound market value or entered for her full gross
tonnage,
|
198
|
|
(ii)
maintain the records of all costs and expenditure incurred
|
139
|
as
the case may be for:
|
199
|
|
as
well as data necessary or proper for the settlement of
|
140
|
(i)
usual hull and machinery marine risks (including crew
|
200
|
|
accounts
between the parties.
|
141
|
negligence)
and excess liabilities;
|
201
|
|
(ii)
protection and indemnity risks (including pollution risks
and
|
202
|
||
|
3.6
Sale or Purchase of the Vessel
|
142
|
Crew
Insurances, FDD cover); and
|
203
|
|
(only
applicable if agreed according to Box
10)
|
143
|
(iii)
war risks (including protection and indemnity and crew
risks)
|
204
|
|
The
Managers shall, if so requested and in accordance with the Owners'
instructions,
|
144
|
(iv)
Loss of Hire (TBA)
|
|
|
provide
technical assistance in connection with any sale of the
Vessel,
supervise the sale or purchase of the Vessel, including the
performance
of any sale or purchase agreement, but not
|
145
146
|
in
accordance with the best practice of prudent owners of
|
205
|
|
negotiation
of the same. At any time lost by the Vessel and cost
associated with the
sale and purchase of the Vessel will be
|
147
|
vessels
of a similar type to the Vessel, with first class
insurance
|
206
|
|
considered as
contingency and out of budget (please refer to
clause 8.10
hereto).
|
|
companies,
underwriters or associations ("the Owners'
|
207
|
|
Insurances");
|
208
|
||
|
3.7
Provisions (only
applicable if agreed according to Box
11)
|
148
|
6.2 all
premiums and calls on the Owners' Insurances are
paid
|
209
|
|
The
Managers shall arrange for the supply of provisions.
|
149
|
promptly
by their due date;
|
210
|
|
6.3
the Owners' Insurances name the Managers and,
subject
|
211
|
||
|
3.8
Bunkering (only
applicable if agreed according to Box 12)
|
150
|
to
underwriters' agreement, any third party designated by the
|
212
|
|
The
Managers shall arrange for the provision of bunker fuel of
the
|
151
|
Managers
as a joint assured, with full cover, with the Owners
|
213
|
|
quality
specified by the Owners as required for the Vessel's
trade.
|
152
|
obtaining
cover in respect of each of the insurances specified in
|
214
|
|
sub-clause
6.1;
|
215
|
||
|
4. Managers'
Obligations
|
153
|
(i)
on terms whereby the Managers and any such third party
|
216
|
|
4.1
The Managers undertake to use their best endeavours
to
|
154
|
are
liable in respect of premiums or calls arising in
connection
|
217
|
|
provide
the agreed Management Services as agents for and on
|
155
|
with
the Owners' Insurances; or
|
218
|
|
behalf
of the Owners in accordance with sound ship management
|
156
|
(ii)
if reasonably obtainable, on terms such that neither
the
|
219
|
|
practice
and to protect and promote the interests of the Owners in
|
157
|
Managers
nor any such third party shall be under any
|
220
|
|
all
matters relating to the provision of services hereunder.
|
158
|
liability
in respect of premiums or calls arising in
connection
|
221
|
|
Provided,
however, that the Managers in the performance of their
|
159
|
with
the Owners' Insurances; or
|
222
|
|
management
responsibilities under this Agreement shall be entitled
|
160
|
(iii)
on such other terms as may be agreed in writing,
|
223
|
|
to
have regard to their overall responsibility in relation to all
vessels
|
161
|
Indicate
alternative (i), (ii) or (iii) in Xxx 00. If
Box 14
is left
|
224
|
|
as
may from time to time be entrusted to their management and
|
162
|
blank then (i)
applies.
|
225
|
|
in
particular, but without prejudice to the generality of the
foregoing,
|
163
|
6.4
written evidence is provided, to the reasonable
satisfaction
|
226
|
|
the
Managers shall be entitled to allocate available supplies,
|
164
|
of
the Managers, of their compliance with their obligations
under
|
227
|
|
manpower
and services in such manner as in the prevailing
|
165
|
Clause
6 within a reasonable time of the commencement
of
|
228
|
|
circumstances
the Managers in their absolute discretion consider
|
166
|
the
Agreement, and of each renewal date and, if specifically
|
229
|
|
to
be fair and reasonable.
|
167
|
requested,
of each payment date of the Owners' Insurances.
|
230
|
|
4.2
Where the Managers are providing Technical
Management
|
168
|
||
|
in
accordance with sub-clause 3.2, they shall procure
that the
|
169
|
7. Income
Collected and Expenses Paid on Behalf of Owners
|
231
|
|
requirements
of the law of the flag of the Vessel are satisfied and
|
170
|
7.1
All moneys, collected by the Managers under the terms
of
|
232
|
|
they
shall in particular be deemed to be the "Company" as
defined
|
171
|
this
Agreement (other than moneys payable by the Owners to
|
233
|
|
by
the ISM Code, assuming the responsibility for the operation
of
|
172
|
the
Managers) and any interest thereon shall be held to the
|
234
|
|
the
Vessel and taking over the duties and responsibilities
imposed
|
173
|
credit
of the Owners in a separate bank account.
|
235
|
|
by
the ISM Code when applicable.
|
174
|
7.2
All expenses, incurred by the Managers under the
terms
|
236
|
|
of
this Agreement on behalf of the Owners (including expenses
|
237
|
||
|
5.
Owners' Obligations
|
175
|
as
provided in Clause
8) may be debited against the Owners
|
238
|
|
5.1
The Owners shall pay all sums due to the Managers
punctually
|
176
|
in
the account referred to under sub-clause 7.1
but shall in any
|
239
|
|
in
accordance with the terms of this Agreement.
|
177
|
event
remain payable by the Owners to the Managers on
|
240
|
|
5.2
Where the Managers are providing Technical
Management
|
178
|
demand.
|
241
|
|
in
accordance with sub clause 3.2,
the Owners shall:
|
179
|
||
|
(i)
procure that all officers and ratings supplied by them or
on
|
180
|
8. Management
Fee – see also Additional Clause 24
|
242
|
|
their
behalf comply with the requirements of STCW 95;
|
181
|
8.1
The Owners shall pay to the Managers for their
services
|
243
|
|
(ii)
instruct such officers and ratings to obey all reasonable
orders
|
182
|
as
Managers under this Agreement an annual management
|
244
|
|
of
the Managers in connection with the operation of
the
|
183
|
fee
as stated in Box
15 which shall be payable by equal
|
245
|
|
Managers'
safety management system.
|
184
|
monthly
instalments in advance, the first instalment being
|
246
|
|
5.3 Where
the Managers are not providing Technical
Management
|
185
|
payable on the commencement of this Agreement (see
Clause
|
247
|
|
in
accordance with sub-clause 3.2, the
Owners shall procure that
|
186
|
2 and Box 6) and subsequent
instalments being payable every
|
248
|
|
the
requirements of the law of the flag of the Vessel are
satisfied
|
187
|
month.
|
249
|
|
188
|
8.2 The
management fee shall be subject to an annual review
|
250
|
|
|
on
the anniversary date of the Agreement and the proposed
|
251
|
This
document is a computer generated XXXXXXX 98 form printed by authority of BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which is not
clearly visible, the text
of the original BIMCO approved document shall apply. BIMCO
assumes no responsibility for any loss, damage or expense as a result of
discrepancies between the original BIMCO approved document and this computer
generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
fee
shall be presented in the annual budget referred to in
sub-
|
252
|
of
any occasional or extraordinary item of expenditure, such
as
|
304
|
|
clause 9.1
|
253
|
emergency
repair costs, additional insurance premiums, bunkers
|
305
|
|
8.3 The
Managers shall, at no extra cost to the Owners,
provide
|
254
|
or
provisions. Such funds shall be received by the
Managers
|
306
|
|
their
own office accommodation, office staff, facilities and
|
255
|
within
ten running days after the receipt by the Owners of the
|
307
|
|
stationery.
Without limiting the generality of Clause 7 the
Owners
|
256
|
Managers'
written request and shall be held to the credit of the
|
308
|
|
shall
reimburse the Managers for postage and communication
|
257
|
Owners
in a separate bank account.
|
309
|
|
expenses,
travelling expenses, and other out of pocket
|
258
|
9.4
The Managers shall produce a comparison between
|
310
|
|
expenses
properly incurred by the Managers in pursuance of
|
259
|
budgeted
and actual income and expenditure of the Vessel in
|
311
|
|
the
Management Services.
|
260
|
such
form as required by the Owners monthly
on a quartly basis
|
312
|
|
8.4
In the event of the appointment of the Managers
being
|
261
|
or
at such other
|
|
|
terminated
by the Owners or the Managers in accordance with
|
262
|
intervals
as mutually agreed
|
313
|
|
the
provisions of Clauses 17
and 18
other than by reason of
|
263
|
9.5
Notwithstanding anything contained herein to the
contrary,
|
314
|
|
default
by the Managers, or if the Vessel is lost, sold or
otherwise
|
264
|
the
Managers shall in no circumstances be required to use or
|
315
|
|
disposed
of, the "management fee" payable to the Managers
|
265
|
commit
their own funds to finance the provision of the
Management
Services.
|
316
317
|
|
according
to the provisions of sub-clause 8.1
shall continue to
|
266
|
||
|
be
payable for a further period of three calendar months as
|
267
|
10.
Managers' Right to Sub-Contract
|
318
|
|
from
the termination date. In addition, provided that
the
|
268
|
The
managers shall not have the right to sub-contract any of
|
319
|
|
Managers
provide Crew for the Vessel in accordance with sub-
|
269
|
their
obligations hereunder, including those mentioned in sub-
|
320
|
|
clause
3.1;
|
270
|
clause
3.1, without the
prior written consent of the Owners which
|
321
|
|
(i) the
Owners shall continue to pay Crew Support Costs during
|
271
|
shall
not be unreasonably withheld. In the event of such a
sub-
|
322
|
|
the
said further period of three calendar months and
|
272
|
contract
the Managers shall remain fully liable for the due
|
323
|
|
(ii) the
Owners shall pay an equitable
proportion of any
|
273
|
performance
of their obligations under this Agreement.
|
324
|
|
the Severance Costs which may
materialize, net
|
274
|
||
|
exceeding
the
amount stated in Box 16.
|
275
|
11.
Responsibilites
|
325
|
|
8.5
If the Owners decide to lay-up the Vessel whilst
this
|
276
|
11.1
Force Majeure –
Neither the Owners nor the Managers
|
326
|
|
Agreement
remains in force and such lay-up lasts for more
|
277
|
shall
be under any liability for any failure to perform any of
their
|
327
|
|
than
three months, an appropriate reduction of the management
|
278
|
obligations
hereunder by reason of any cause whatsoever of
|
328
|
|
fee
for the period exceeding three months until one month
|
279
|
any
nature or kind beyond their reasonable control.
|
329
|
|
before
the Vessel is again put into service shall be mutually
|
280
|
11.2
Liability to Owners - (i)
Without prejudice to sub-clause
|
330
|
|
agreed
between the parties.
|
281
|
11.1, the
Managers shall be under no liability whatsoever to
the
|
331
|
|
8.6
Unless otherwise agreed in writing all discounts
and
|
282
|
Owners
for any loss, damage, delay or expense of whatsoever
|
332
|
|
commissions
obtained by the Managers in the course of the
|
283
|
nature,
whether direct or indirect, (including but not limited
to
|
333
|
|
management
of the Vessel shall be credited to the Owners.
|
284
|
loss
of profit arising out of or in connection with detention of
or
|
334
|
|
8.7
Where a charterers vetting inspection may be required and
a
|
delay
to the Vessel) and howsoever arising in the course of
|
335
|
|
|
pre-inspection
is requested, the costs of such additional
|
performance
of the Management Services UNLESS
same Is
|
336
|
|
|
services
shall be charged to the Vessel's account (see cl. 23)
|
proved
to have resulted solely from the negligence, gross
|
337
|
|
|
8.8 If
the Vessel is placed on time starter, additional
expenses
|
negligence
or wilful default of the Managers or their employees,
|
338
|
|
|
incurred
in complying with charterers requirements (including,
|
or
agents or sub-contractors employed by them in connection
|
339
|
|
|
but
not limited to, additional reporting requirements and
visits
|
with
the Vessel, in which case (save where loss, damage, delay
|
340
|
|
|
to
the charterers) will be paid by the Owners.
|
or
expense has resulted from the Managers' personal act or
|
341
|
|
|
8.9
All fees are exclusive of Value Added Taxes or
other
|
omission
committed with the intent to cause same or recklessly
|
342
|
|
|
applicable
taxes, if any.
|
and
with knowledge that such loss, damage, delay or expense
|
343
|
|
|
8.10
If as a result of collision, accident, emergency, or
any
|
would
probably result) the Managers' liability for each Incident
|
344
|
|
|
other
extraordinary circumstances, the Managers' workload is
|
or
series of incidents giving rise to a claim or claims shall
never
|
345
|
|
|
increased
beyond that which the parties could reasonably have
|
exceed
a total of ten times the annual management fee payable
|
346
|
|
|
anticipated,
the Managers shall be entitled to reasonable
|
hereunder.
|
347
|
|
|
additional
remuneration having regard to the nature of the
|
(ii)
Notwithstanding anything that may appear to the contrary
in
|
348
|
|
|
incident,
the personnel and resources of the Managers
|
this
Agreement, the Manager shall not be liable for any of the
|
349
|
|
|
deployed,
and all other relevant circumstances including
|
actions
of the Crew, even if such actions are negligent, grossly
|
350
|
|
|
insurance
recoveries.
|
negligent
or wilful, except only to the extent that they are shown
|
351
|
|
|
to
have resulted from a failure by the Managers to discharge
|
352
|
||
|
their
obligations under sub-clause 3.1,
in which case their liability
|
353
|
||
|
9.
Budgets and Management of Funds
|
285
|
shall
be limited In accordance with the terms of this Clause 11.
|
354
|
|
9.1 The
Managers shall present to the Owners annually a
|
286
|
11.3
Indemnity - Except to
the extent and solely for the amount
|
355
|
|
budget
for the following twelve months in such form as the
|
287
|
therein
set out that the Managers would be liable under sub-
|
356
|
|
Owners
require. The budget for the first year hereof is set
out
|
288
|
clause
11.2, the Owners
hereby undertake to keep the Managers
|
357
|
|
in
Annex
"C" hereto. Subsequent annual budgets shall
be
|
289
|
and
their employees, agents and sub-contractors indemnified
|
358
|
|
prepared
by the Managers and submitted to the Owners not
|
290
|
and
to hold them harmless against all actions, proceedings,
|
359
|
|
less
than one month before the anniversary date of the
|
291
|
claims,
demands or liabilities whatsoever or howsoever arising
|
360
|
|
commencement
of this Agreement (see Clause 2
and Box
4).
|
292
|
which
may be brought against them or incurred or suffered by
|
361
|
|
9.2 The
Owners shall indicate to the Managers their
acceptance
|
293
|
them
arising out of or in connection with the performance of
the
|
362
|
|
and
approval of the annual budget within one month of
|
294
|
Agreement,
and against and in respect of all costs, losses,
|
363
|
|
presentation
and in the absence of any such indication the
|
295
|
damages
and expenses (including legal costs and expenses on
|
364
|
|
Managers
shall be entitled to assume that the Owners have
|
296
|
a
full indemnity basis) which the Managers may suffer or
incur
|
365
|
|
accepted
the proposed budget.
|
297
|
(either
directly or indirectly) in the course of the performance
of
|
366
|
|
9.3
Following the agreement of the budget, the Managers
shall
|
298
|
this
Agreement.
|
367
|
|
prepare
and present to the Onwers their estimate of the working
|
299
|
11.4
"Himalaya" - It is hereby expressly agreed that
no
|
368
|
|
capital
requirement of the Vessel and the Managers shall each
|
300
|
employee
or agent of the Managers (including every sub-
|
369
|
|
month
up-date this estimate. Based thereon, the Managers
shall
|
301
|
||
|
each
month request the Owners in writing for the funds required
|
302
|
||
|
to
run the Vessel for the ensuing month, including the
payment
|
303
|
||
This
document is a computer generated XXXXXXX 98 form printed by authority of BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expense as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
contractor
from time to time employed by the Managers) shall in
|
370
|
regulations
of the Vessel's flag, or of the places where she trades.
|
432
|
|
any
circumstances whatsoever be under any liability whatsoever
|
371
|
presently
in force. Any additional time and costs arising out
of
|
|
|
to
the Owners for any loss, damage or delay of whatsoever
kind
|
372
|
the
requirements for compliance with rules and regulations
|
|
|
arising
or resulting directly or indirectly from any act, neglect
or
|
373
|
(including
research expenses) which may become enforceable
|
|
|
default
on his part while acting in the course of or in connection
|
374
|
on
the Vessel shall be for Owners account.
|
|
|
with
his employment and, without prejudice to the generality of
|
375
|
||
|
the
foregoing provisions in this Clause 11, every
exemption,
|
376
|
17.
Duration of the Agreement
|
433
|
|
limitation,
condition and liberty herein contained and every right,
|
377
|
This
Agreement shall come into effect on the day and year
stated
|
434
|
|
exemption
from liability, defence and immunity of whatsoever
|
378
|
in
Box
4 and shall remain in force and effect (unless
earlier
|
435
|
|
nature
applicable to the Managers or to which the Managers are
|
379
|
terminated
in accordance with the terms of clause 18) for a
|
|
|
entitled
hereunder shall also be available and shall extend to
|
380
|
minimum
period of three (3) calendar years and thereafter shall
|
|
|
protect
every such employee or agent of the Managers acting
|
381
|
continue
indefinitely unless terminated in accordance with the
|
|
|
as
aforesaid and for the purpose of all the foregoing
provisions
|
382
|
provisions hereof continue
until the date stated in Xxx
00,
|
|
|
of
this Clause
11 the Managers are or shall be deemed to be
|
383
|
Thereafter
it shall continue until terminated by Upon the expiration
of
|
436
|
|
acting
as agent or trustee on behalf of and for the benefit of
all
|
384
|
the
first calendar year either party giving
may give
|
|
|
persons
who are or might be their servants or agents from time
|
385
|
to
the other notice of termination in writing, in which event
the
|
437 |
|
to
time (including sub-contractors as aforesaid) and all such
|
386
|
Agreement
shall
|
|
|
persons
shall to this extent be or be deemed to be parties to this
|
387
|
terminate
upon the expiration of a period of two months (2)
calendar
|
438
|
|
Agreement.
|
388
|
years
from the
|
|
|
date
upon which such notice was given. Clause 18.6 will apply.
|
439
|
||
|
12.
Documentation
|
389
|
||
|
Where
the Managers are providing Technical Management in
|
390
|
18.
Termination
|
440
|
|
accordance
with sub-clause 3.2
and/or Crew Management in
|
391
|
18.1
Owners'
default
|
441
|
|
accordance
with sub-clause 3.1,
they shall make available,
|
392
|
(i)
The Managers shall be entitled to terminate the Agreement
|
442
|
|
upon
Owners' request, all documentation and records related
|
393
|
with
immediate effect by notice in writing if any moneys
|
443
|
|
to
the Safety Management System (SMS) and/or the Crew
|
394
|
payable
by the Owners under this Agreement and/or the
|
444
|
|
which
the Owners need in order to demonstrate compliance
|
395
|
owners
of any associated vessel, details of which are listed
|
445
|
|
with
the ISM Code and STCW 95 or to defend a claim against
|
396
|
in
Annex
"D", shall not have been received in the
Managers'
|
446
|
|
a
third party.
|
397
|
nominated
account within ten running days of receipt by
|
447
|
|
the
Owners of the Managers written request or if the Vessel
|
448
|
||
|
13.
General Administration
|
398
|
is
repossessed by the Mortgagees.
|
449
|
|
13.1
The Managers shall handle and settle all claims
arising
|
399
|
(ii)
If the Owners:
|
450
|
|
out
of the Management Services hereunder and keep the Owners
|
400
|
(a) fail to meet their obligations under
sub-clauses u
|
451
|
|
informed
regarding any incident of which the Managers become
|
401
|
and
5.3
of this Agreement for any reason within their
|
452
|
|
aware
which gives or may give rise to claims or disputes
involving
|
402
|
control,
or
|
453
|
|
third
parties.
|
403
|
(b)
proceed with the employment of or continue to employ
|
454
|
|
|
the
Vessel in the carriage of contraband, blockade
|
455
|
|
|
13.2
The Managers shall, as instructed by the Owners,
bring
|
404
|
running,
or in an unlawful trade, or on a voyage which
|
456
|
|
or
defend-actions, suits or proceedings in connection with
matters
|
405
|
in
the reasonable opinion of the Managers is unduly
|
457
|
|
entrusted
to the Managers according to this Agreement.
|
406
|
hazardous
or improper,
|
458
|
|
the
Managers may give notice of the default to the Owners,
|
459
|
||
|
13.3
The Managers shall also have power to obtain legal
or
|
407
|
requiring
them to remedy it as soon as practically possible.
|
460
|
|
technical
or other outside expert advice in relation to the handling
|
408
|
In
the event that the Owners fail to remedy it within a
|
461
|
|
and
settlement of claims and disputes or all other matters
|
409
|
reasonable
time to the satisfaction of the Managers, the
|
462
|
|
affecting
the interests of the Owners in respect of the Vessel, save
|
410
|
Managers
shall be entitled to terminate the Agreement
|
463
|
|
Managers
should obtain Owners approval prior to taking any
|
with
Immediate effect by notice in writing.
|
464
|
|
|
action
if time permits.
|
18.2
Managers'
Default
|
465
|
|
|
13.4
The Owners shall arrange for the provision of
any
|
411
|
(i) If the Managers fail to meet their
obligations under Clauses
3
|
466
|
|
necessary
guarantee bond or other security.
|
412
|
and
4 of this Agreement for
any reason within the control of the
|
467
|
|
13.5
Any costs reasonably incurred by the Managers
in
|
413
|
Managers,
the Owners may give notice to the Managers of the
|
468
|
|
carrying
out their obligations according to Clause
13 shall be
|
414
|
default,
requiring them to remedy it as soon as practically
|
469
|
|
reimbursed
by the Owners.
|
415
|
possible.
In the event that the Managers fail to remedy it within a
|
470
|
|
reasonable
time to the satisfaction of the Owners, the Owners
|
471
|
||
|
14.
Auditing
|
416
|
shall
be entitled to terminate the Agreement with immediate
affect
|
472
|
|
The
Managers shall at all times maintain and keep true and
|
417
|
by
notice in writing.
|
473
|
|
correct
accounts and shall make the same available for inspection
|
418
|
(ii) If
the Managers are convicted of, or admits guilt for, a
crime,
|
|
|
and
auditing by the Owners at such times as may be mutually
|
419
|
then
the Owners shall be entitled to terminate the Agreement
|
|
|
agreed.
On the termination, for whatever reasons, of this
|
420
|
with
Immediate effect by notice in writing.
|
|
|
Agreement,
the Managers shall release to the Owners, if so
|
421
|
18.3
Extraordinary
Termination
|
474
|
|
requested,
the originals where possible, or otherwise certified
|
422
|
This
Agreement shall be deemed to be terminated in the case of
|
475
|
|
copies,
of all such accounts and all documents specifically
relating
|
423
|
the
sale of the Vessel or if the Vessel becomes a total loss or
is
|
476
|
|
to
the Vessel and her operation.
|
424
|
declared
as a constructive or compromised or arranged total
|
477
|
|
loss
or is requisitioned.
|
478
|
||
|
15.
Inspection of Vessel
|
425
|
18.4
For the purpose of sub-clause 18.3
hereof
|
479
|
|
The
Owners shall have the right at any time after giving
|
426
|
(i)
the date upon which the Vessel is to be treated as having
|
480
|
|
reasonable
notice to the Managers to inspect the Vessel for any
|
427
|
been
sold or otherwise disposed of shall be the date on
|
481
|
|
reason
they consider necessary.
|
428
|
which
the Owners cease to be registered as Owners of
|
482
|
|
the
Vessel;
|
483
|
||
|
16.
Compliance with Laws and Regulations
|
429
|
(ii)
The Vessel shall not be deemed to be lost unless either
|
484
|
|
The
Managers will not do or permit to be done anything which
|
430
|
she
has become an actual total loss or agreement has
|
485
|
|
might
cause any breach or infringement of the laws and
|
431
|
been
reached with her underwriters in respect of her
|
486
|
This
document is a computer generated XXXXXXX 98 form printed by authority of BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which Is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expenses as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
PART
II
"XXXXXXX
98" STANDARD SHIP MANAGEMENT AGREEMENT
|
constructive,
compromised or arranged total loss or if such
|
487
|
exceeds
the sum of USD50,000 (or such other sum as the
|
532
|
|
agreement
with her underwriters is not reached it is
|
488
|
parties
may agree) the arbitration shall be conducted in
|
533
|
|
adjudged
by a competent tribunal that a constructive loss
|
489
|
accordance
with the LMAA Small Claims Procedure current
|
534
|
|
of
the Vessel has occurred.
|
490
|
at
the time when the arbitration proceedings are commenced.
|
535
|
|
18.5 This
Agreement shall terminate forthwith in the event of
|
491
|
19.2 This
Agreement shall be governed by and construed
|
536
|
|
an
order being made or resolution passed for the winding up,
|
492
|
in
accordance with Title 9 of the United States Code
and
|
537
|
|
dissolution,
liquidation or bankruptcy of either party (otherwise
|
493
|
the
Maritime Law of the United States and any dispute
|
538
|
|
than
for the purpose of reconstruction or amalgamation) or if a
|
494
|
arising
out of or in connection with this Agreement shall be
|
539
|
|
receiver
is appointed, or if it suspends payment, ceases to carry
|
495
|
referred
to three persons at New York, one to be appointed
|
540
|
|
on
business or makes any special arrangement or composition
|
496
|
by
each of the parties hereto, and the third by the two
so
|
541
|
|
with
its creditors.
|
497
|
chosen;
their decision or that of any two of them shall be
|
542
|
|
18.6 The
termination of this Agreement shall be without
|
498
|
final,
and for the purposes of enforcing any award
|
543
|
|
prejudice
to all rights accrued due between the parties prior to
|
499
|
judgement
may be entered on an award by any court of
|
544
|
|
the
date of termination.
|
competent
jurisdiction. The proceedings shall be
conducted
|
545
|
|
|
in
accordance with the rules of the Society of
Maritime
|
546
|
||
|
19.
Law and Arbitration
|
501
|
Arbitrators,
Inc.
|
547
|
|
19.1 This
Agreement shall be governed by and construed in
|
502
|
In
cases where neither the claim nor any counterclaim
|
548
|
|
accordance
with English law and any dispute arising out of or
|
503
|
exceeds
the sum of USD50,000 (or such other sum as the
|
549
|
|
in
connection with this Agreement shall be referred to
arbitration
|
504
|
parties
may agree) the arbitration shall be conducted in
|
550
|
|
in
London in accordance with the Arbitration Acx 0000 xr
|
505
|
accordance
with the Shortened Arbitration Procedure of the
|
551
|
|
any
statutory modification or re-enactment thereof save to
|
506
|
Society
of Maritime Arbitrators, Inc. current at the time
when
|
552
|
|
the
extent necessary to give effect to the provisions of this
|
507
|
the
arbitration proceedings are commenced.
|
553
|
|
Clause.
|
508
|
19.3 This
Agreement shall be governed by and construed
|
554
|
|
The
arbitration shall be conducted in accordance with the
|
509
|
in
accordance with the laws of the place mutually agreed
by
|
555
|
|
London
Maritime Arbitrators Association (LMAA) Terms
|
510
|
the
parties and any dispute arising out of or in
connection
|
556
|
|
current
at the time when the arbitration proceedings are
|
511
|
with
this Agreement shall be referred to arbitration at
a
|
557
|
|
commenced.
|
512
|
mutually
agreed place, subject to the procedures applicable
|
558
|
|
The
reference shall be to three arbitrators. A party wishing
|
513
|
there.
|
559
|
|
to
refer a dispute to arbitration shall appoint its
arbitrator
|
514
|
19.4 If Box 18 in Part I is not
appropriately filled in, sub-
|
560
|
|
and
send notice of such appointment in writing to the other
|
515
|
clause
19.1 of this Clause shall
apply.
|
561
|
|
party
requiring the other party to appoint its own arbitrator
|
516
|
||
|
within
14 calendar days of that notice and stating that it will
|
517
|
Note: 19.1, 19.2 and 19.3
are alternatives;
indicate
|
562
|
|
appoint
its arbitrator as sole arbitrator unless the other party
|
518
|
alterative
agreed in Box 18..
|
563
|
|
appoints
its own arbitrator and gives notice that it has done
|
519
|
||
|
so
within the 14 days specified. If the other party does
not
|
520
|
20.
Notices
|
564
|
|
appoint
its own arbitrator and give notice that it has done so
|
521
|
20.1
Any notice to be given by either party to the
other
|
565
|
|
within
the 14 days specified, the party referring a dispute to
|
522
|
party
shall be in writing and may be sent by fax, telex,
|
566
|
|
arbitration
may, without the requirement of any further prior
|
523
|
registered
or recorded mail) or by personal service.
|
567
|
|
notice
to the other party, appoint its arbitrator as sole
|
524
|
20.2
The address of the Parties for service of
such
|
568
|
|
arbitrator
and shall advise the other party accordingly. The
|
525
|
communication
shall be as stated in Boxes
19 and 20,
|
569
|
|
award
of a sole arbitrator shall be binding on both parties
|
526
|
respectively.
|
570
|
|
as
if he had been appointed by agreement.
|
527
|
||
|
Nothing
herein shall prevent the parties agreeing in writing
|
528
|
The Additional
Clauses attached hereto together with any
|
|
|
to
vary these provisions to provide for the appointment of a
|
529
|
subsequent
addenda, schedules, appendices or otherwise, shall
|
|
|
sole
arbitrator.
|
530
|
be
construed as an integral part of this Agreement and shall
be
|
|
|
In
cases where neither the claim nor any counterclaim
|
531
|
interpreted
accordingly.
|
This
document is a computer generated XXXXXXX 98 form printed by authority of BIMCO.
Any insertion or deletion to the form must be clearly visible. In the event of
any modification made to the pre-printed text of this document which is not
clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or
expense as a result of discrepancies between the original BIMCO approved
document and this computer generated document.
SHIPMAN98
ADDITIONAL
CLAUSES TO THE MANAGEMENT AGREEMENT
MADE
BETWEEN:
(I) XXXXX
SHIPPING COMPANY LIMITED
AND
(II) SCORPIO
SHIP MANAGEMENT XXX
|
21.
|
OPA
|
|
21.1
|
The
Managers will:
|
|
(i)
|
arrange
for the preparation, filing and
updating of a contingency Vessel Response Plan in accordance with the
requirements of OPA and Instruct the Crew in all aspects of the operation
of such plan;
|
|
(ii)
|
identify
and ensure the availability by contract or otherwise of a Qualified
Individual, a Spill Management Team, an Oil Spill Removal Organisation,
resources having salvage, fire fighting, Iightering and, if applicable,
dispersant capabilities, and public relations/media personnel to assist
the Owners to deal with the media in the event of discharges of
oil.
|
|
21.2
|
The
Managers are expressly authorised as agents for the Owners to enter
into such arrangements by contract or otherwise as are required to ensure
the availability of the services outlined in Clause 21.1. The Managers are
further expressly authorised as agents for the Owners to enter into such
other arrangements as may from time to time be necessary to satisfy the
requirements of OPA or other US Federal or State
laws.
|
|
21.3
|
The
Owners will pay the fees due to third parties providing the services
described above together with a fee to the Managers for their services.
The level of fees will be included in the Vessel's running
costs.
|
|
21.4
|
On
termination of this Agreement, the Vessel Response Plan and all
documentation will be returned to the Managers at the expense of the
Owners.
|
|
22.
|
IT
Services
|
|
22.1
|
The
Managers will, subject to the remaining provisions of this Clause 22,
provide the Vessel with the Management System
Software.
|
|
22.2
|
The
main features of the Management System Software at the date of this
Agreement are:
|
|
(i)
|
comprehensive
management software providing single point of entry to the Vessel
incorporating crew management, defect and deficiency reporting and
performance monitoring;
|
|
(ii)
|
a
ship to shore and shore to ship e-mail package providing cost efficient
communications available to both Managers and their charterers;
and
|
|
(iii)
|
a
computerised maintenance system including inventory control and automated
purchase order handling.
|
|
22.3
|
The
costs for the Management System Software are set out in the Fee Schedule,
and are included in the Vessel's running costs, as
follows;
|
|
(i)
|
the
annual maintenance fee;
|
|
(ii)
|
maintenance
and upgrades;
|
|
(iii)
|
24
hour support;
|
|
(iv)
|
provision
of anti-virus software and regular
upgrades;
|
|
(v)
|
operational
manuals and regular updates;
|
|
(vi)
|
annual
audit on board the Vessel providing a system health
check;
|
|
(vii)
|
user
manuals and training of the Crew in the use of the Management System
Software; and
|
|
(viii)
|
e-mail
on board the Vessel.
|
|
22.4
|
Such
costs do not include the costs of appropriate hardware, licence fee and
installation/set-up on board the
Vessel.
|
|
22.5
|
Installation
and set-up of the Information System Software will be undertaken on a date
agreed between the Managers and the Owners having regard to the Vessel's
schedule and the availability of the Managers'
personnel.
|
|
22.6
|
The
Management System Software is owned by the Managers or its subsidiaries
and is protected by applicable copyright and patent
laws,
|
|
22.7
|
The
Managers do not warrant that the use or operation of the Information
System Software will be uninterrupted or error
free.
|
|
23.
|
Vetting
|
|
The
Managers shall undertake as soon as reasonably possible to have the Vessel
either inspected or screened by the following oil majors: BP, Shell,
Exxonmobil, ChevronTexaco and Total. The cost of such vetting process is
already included into the Vessel's budget. The Managers shall use their
best endeavors to accommodate the Owners requests for other/additional
vetting inspections or screening processes, the cost of which shall be,
however, considered out of budget.
|
|
24.
|
Management
Fee
|
|
24.1
|
Without
prejudice to the generality of clause 8.3 (Management Fee), it is agreed
that the remuneration provided for by that clause shall be deemed to cover
the Manager's administrative and general expenses and any other expenses
which are not directly and exclusively applicable to the operation or
conduct of the business of the Vessel and shall
include:
|
|
Salaries
of corporate officers, executives, department heads, administrative,
clerical and office employees, port engineers, port captain, port
stewards, paymaster and other employees of the shore side establishment,
payroll taxes, group insurance and pension annuity payments applicable to
personnel in the above named categories, office and administrative
expenses, including insurance, rent, heat, light, power, office
stationary, office services, depreciation and repair of office equipment,
janitor services and expenses, accounting expenses, the Managers' outside
auditing fees, dues and membership in trade associations, office
subscriptions, contributions and donations and franchise taxes, as well as
legal fees in connection with the Managers' corporate and management
functions, excluding all and any legal fees or other expenses incurred by
the Managers in connection with any claims arising out of any matter
related with the Vessel.
|
|
24.2
|
In
addition to the remuneration payable to the Managers under the provisions
of the first paragraph of this section, the Owners shall reimburse the
Managers for, inter alia, the amount of such necessary travelling expenses
(outside Monaco), seafarers interviewing costs, telephone calls,
communication, vessel's postage, freight and forwarding, warehousing,
agency services and fees which are not included in budget and will be
treated as contingency costs.
|
|
25.
|
Dry
docking
|
|
Dry
docking to be carried out with prior approval of costs by the Owners,
however the repair list to be at the discretion of the
Managers
|
|
26.
|
Benefit of Existing and Future
Contracts
|
|
Where
possible, the Owners shall (for the duration of this Agreement) have the
advantage of any existing or future contracts of the Managers for the
purchase or renewal of materials, facilities, services or equipment, by
way of the benefit of discounts (if
any).
|
|
27.
|
Passing of
Title
|
|
27.1
|
To
the extent already paid for by the Managers using funds specifically
provided by the Owners for such a purpose, title to any goods, materials
or supplies purchased by the Managers for use in the performance of this
Agreement shall belong to the
Owners.
|
|
27.2
|
Upon
termination of this Agreement all such goods, materials or supplies in the
hands of the Managers shall be delivered to the Vessel or If requested by
the Owners the Managers shall sell or dispose of such goods, materials or
supplies at such price, terms and conditions as may be approved by the
Owners and remit the proceeds thereof less any expenses Incurred in
selling or disposing of such goods to an account of the Owners, to be
advised separately in writing to the
Managers.
|
|
28.
|
Termination on Bareboat Charter of
Vessel
|
|
The
Managers shall be entitled to terminate this Agreement by notice in
writing in the event that the Vessel is bareboat chartered by the Owners.
The date upon which the Vessel Is to be treated as having been bareboat
chartered, shall be the date on which the Owners deliver the Vessel to
bareboat charterer, notwithstanding the fact that the Managers may learn
of the bareboat charter at a later
date.
|
|
29.
|
Slop and any other disposal
ashore
|
|
Disposal
of slop produced for whatever reason (including but not limited to tank
inspection, repairs, drydock preparation, tank cleaning) and any other
disposal ashore compulsory as per local regulation is considered out of
budget and the Owners shall provide the Managers with such additional
funds as may be required.
|
|
30.
|
ISPS
Code
|
|
30.1
|
The
Manager shall comply with the requirements of the International Code for
the Security of Ships and of Port Facilities and the relevant amendments
to Chapter XI of SOLAS (ISPS Code) relating to the Vessel and "the
Company" (as defined by the ISPS Code). If trading to or from the United
States or passing through United States waters, in addition to ensure that
the Vessel has
been issued with a COFR, the Manager shall also comply with the
requirements of the US Maritime Transportation Security Act 2002 (the
"MTSA") relating to the Vessel and the "Owner" (as defined by the
MTSA).
|
|
30.2
|
Where
sub-chartering, the Owner shall ensure that the contact details of all
sub-charterers are provided to the Managers and the Master. Furthermore,
the Owners shall ensure that all charter parties entered into during the
period of this Agreement contain the following
provision:
|
|
"The
Charterers shall provide the Owners with their full style contact details
and, where sub-chartering is permitted under the terms of the charter
party, shall ensure that the contact details of all sub-charterers are
likewise provided to the Owners".
|
|
30.3
|
Notwithstanding
anything else contained in this Agreement all costs or expenses whatsoever
arising out of or related to security regulations or measures
required by the port facility or any relevant authority in accordance with
the ISPS Code and/or the MTSA including, but not limited to, security
guards, launch services, vessel escorts, security fees, waiting costs and
associated expenses, taxes and inspections, shall be out of budget. All
measures required by the Manager to comply with the Ship Security Plan
shall be for the Manager's account excluding costs associated with calls
at non ISPS compliant port, facilities, installations, vessels or port,
facilities, installations, vessels included in any relevant authority
warning list (ie USCG Port Security Advisory) as applicable in which case
Owners shall provide Managers with such additional funds as may be
required.
|
|
31.
|
Additional
Costs
|
|
The
Owners' representative's meals and slop chest, charterers' meal and slop
chest, representation costs, gratuity (either official or not official)
provided with the aim to safeguard Vessel's operation and given in the
sole discretion of Master will be separately debited to the Owners at
cost. Any extraordinary trading cost (including but not limited to AMPD,
COFR, ENOA/D, ICB, EWR coverage, Xxxxxx and Kidnap coverage, security
guard, special arrangement for transiting pirate infested areas etc), will
be debited to Owners at cost, out of budget, under contingency accounting
code.
|
|
32.
|
Provision of
Information
|
|
The
Owners undertake to provide to the Managers directly or through the
charterers all information and instruction necessary for the Master to
efficiently perform his duties including but not limited to: charterers
name and full style, cargo information including MSDS, cargo carriage
instruction relevant to that particular cargo (loading, segregating,
carrying, heating, discharging, purging, ventilating, tank cleaning,
inerting, stripping, CO washing instruction), port and terminal
information and requirements, navigation instruction, speed to be
attained, notification requirement, agency full style, fuel MSDS, bunker
delivery notes, information necessary for AMS reporting, chartering
contracts the Owners will enter into, voyage instructions including
service speeds to attain.
|
|
33.
|
HSQE blanket approval
clause
|
|
The
Owner undertakes to provide full support for the implementation and approval
of the Managers' health, safety, quality and environmental policy
including extra costs which could be from time to time communicated to
Owners.
|
|
34.
|
Cabotage. storage and
STS
|
|
Cabotage,
storage and frequent STS are not considered normal operations and a
special evaluation of risk and extra costs will be provided on a case by
case basis by the Managers. The Owners shall make available to the
Managers such additional funds as may be required in order for such
additional duties to be carried
out.
|
|
35.
|
Payments
|
|
All
payments to the Managers shall be made in (i) full without any deductions,
withholdings and/or set-off and (ii) US Dollars, to the account of the
Managers from time to time advised to the Owners by the
Managers.
|
|
36.
|
Third Party
Rights
|
|
36.1
|
Any
person (other than parties to this Agreement) who is given any rights or
benefits under Clauses 10 or 11 (a "Third Party") shall be entitled to
enforce those rights or benefits against the parties in accordance with
the Contracts (Rights of Third Parties) Acx
0000.
|
|
36.2
|
Save
as provided in Clause 36.1 above the operation of the Contracts (Rights of
Third Parties) Acx 0000 xs hereby
excluded.
|
|
36.3
|
The
parties may amend vary or terminate this Agreement in such a way as may
affect any rights or benefits of any Third Party which are directly
enforceable against the parties under the Contracts (Rights of Third
Parties) Acx 0000 xithout the consent of any such Third
Party.
|
|
36.4
|
Any
Third Party entitled pursuant to the Contracts (Rights of Third Parties)
Acx 0000 xo enforce any rights or benefits conferred on it by this
Agreement may not veto any amendment, variation or termination of this
Agreement which is proposed by the parties and which may affect the rights
or benefits of any such Third
Party.
|
|
37.
|
Bunker
Quality
|
|
37.1
|
The
Owners shall provide that bunker supplied is of a quality suitable for
burning in the Vessel's engines and auxiliaries and which conform to the
specification(s) mutually agreed under this
contract.
|
|
37.2
|
At
the time of delivery of the Vessel the Owners shall place at the disposal
of the Managers, the bunker delivery note(s) and any samples relating to
the fuels existing on board. During the currency of the contract, the
Owner shall ensure that bunker delivery notes are presented to the Vessel
on the delivery of fuel(s) and that during bunkering representative
samples of the fuel(s) supplied shall be taken at the Vessel's bunkering
manifold and sealed in the presence of competent representatives of the
fuel supplier and the Vessel as foreseen by
Marpol.
|
|
37.3
|
Without
prejudice to anything else contained in this contract, the Owners shall
provide that fuel supplied is of such specifications and grades to permit
the Vessel, at all times, to comply with the maximum sulphur content
requirements of any emission control zone when the Vessel is ordered to
trade within that zone.
|
|
37.4
|
The
Owners also warrant that any bunker suppliers, bunker craft operators and
bunker surveyors used by the Owners to supply such fuels shall comply with
Regulations 14 and 18 of MARPOL Annex VI as applicable, including the
Guidelines in respect of sampling and the provision of bunker delivery
notes.
|
|
37.5
|
Owners
to provide as well that a bunker minimum quantity is always kept on board
corresponding to 10% of any type of bunker necessary for any particular
voyage or 3 days whichever is more. For vessel with a single boiler
system, minimum 30 tons of distillate to be always kept on board.
Commingling of bunker is not recommended and special manager permission to
be obtained on a case by case basis. Managers not to be held responsible
for any consequence of commingling.
|
|
38.
|
War, war risk areas
trading
|
|
38.1
|
Managers
prior assessment to be always sought before to order the vessel to trade
in any war, warlike area as defined by JWC and any cost directly or
indirectly incurred as a consequence to obey to said order will be out of
budget and debited to the Owners as
contingency.
|
|
38.2
|
For
the purpose of this clause, the words war risk shall include any actual,
threatened or reported war; act of war; civil war; hostilities;
revolution; rebellion; civil commotion; warlike operations; laying of
mines; acts of piracy; acts of terrorists; acts of hostility or malicious
damage; blockades (whether Imposed against all vessels or imposed
selectively against vessels of certain flags or ownership, or against
certain cargoes or crews or otherwise howsoever); by any person, body,
terrorist or political group, or the Government of any state whatsoever,
which, In the reasonable judgment of the Managers, may be dangerous or are
likely to be or to become dangerous to the Vessel, her cargo, crew or
other persons on board the Vessel.
|
|
39.
|
Ice
trading.
|
|
Manager
prior assessment to be always sought before to order the vessel to trade
in any ice bound area as defined by IWL or by prevailing local condition
and any cost directly or indirectly incurred as a consequence to obey to
said order xxxx be out of budget and debited to owner as
contingency.
|
|
40.
|
Sub-let.
|
|
Any
extra cost and expenses necessary for owner to perform any sub letting
charterer contract are excluded from budget. Take over cost are excluded
from budget and vessel is supposed to be fully stocked at
delivery
|
|
41.
|
Entire
Agreement.
|
|
41.1
|
This
Agreement constitutes the entire agreement and understanding between the
parties with respect to the subject matter of this Agreement; and in
relation to such subject matter) supersedes all prior discussions,
understandings and agreements between the parties and all prior
representations and expressions of opinion by the
parties.
|
|
41.2
|
Each
of the parties acknowledges that it is not relying on any statements,
warranties, representations or understandings (whether negligently or
innocently made) given or made by or on behalf of the other in relation to
the subject matter hereof and that it shall have no rights or remedies
with respect to such subject matter otherwise than under this Agreement.
The only remedy available shall be for breach of contract under the terms
of this Agreement. Nothing in this Clause shall, however, operate to limit
or exclude any liability or fraud.
|
|
Dated this 1st day of December 2009
|
|
|
|
|
||
|
For
the Owners:
By:
Its:
|
For
the Managers:
|
|
SK 99999
0010 1072828
