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EXHIBIT 10.5
TIME CHARTER, AS AMENDED, DATED AUGUST 1, 1992
BETWEEN EXUMA SPIRIT INC. AND PALM SHIPPING INC.
IT IS THIS 1st DAY OF August 1992 mutually
agreed between Exuma Spirit Inc. a Bahamian
corporation, maintaining an office and place of
business at X.X. Xxx XX-0000, Xxxxxxxxxx Bldg., First
Floor, Xxxxxx Square, Bay Street, Nassau, Bahamas as
Owner (herein called "Owner") of the Bahamian flag
motor/tank/vessel to be built by Onomichi
Dockyard Co., Ltd. for delivery to Owner on or about
27 August 1992, named Leyte Spirit
(herein called "Vessel") and Palm Shipping Inc., a
Liberian corporation, maintaining an office and place
of business at x/x Xxxxxx Xxxxxxxx Xxxxxxx, X.X. Xxx
XX- 0000, Xxxxxxxxxx Bldg., First Floor Xxxxxx Square,
Bay Street, Nassau, Bahamas (herein called
"Charterer"), that the Owner lets and the Charterer
hires the use and service of the Vessel for a period
and on the terms and conditions hereinafter set forth.
TERM 1. (a) The term of this Charter shall be for a period
of about ten (10) consecutive years (herein
called "Original Period") plus any extensions thereof
as provided in paragraph (b)below. The Original Period
shall commence when the Vessel is placed at the
Charterer's disposal, as provided in Clause 3. The
word "about" as used above shall mean "thirty (30)
days more or less" at Charterer's option and shall
apply to the term of this Charter consisting of the
Original Period plus any extensions as hereinafter
provided.
(b) The term of this Charter may be extended by
Charterer for a period equal to all or any part of the
time Vessel is Off-Hire (herein called "Off-Hire
Extension"), when and if Charterer gives written
notice to Owner of such Off-Hire Extension (in no
particular form) at least three (3) months
before the expiration of the Original Period, or
Extended Period if Charterer has exercised the option
under Clause 2(b). Any Off-Hire incurred after the
above notice shall have been given, whether said
Off-Hire occurs within the Original Period, Extended
Period and/or Off-Hire Extension, shall without any
further written notice, be a further Off-Hire
Extension. Off-Hire, for the purposes of this Clause 2
(c) shall include incidents of Off-Hire specified in
Clause 7 as well as any other period(s) for which
cesser or suspension of the payment(s) of hire is
(are) allowed hereunder during the Original Period,
Extended Period, and, or Off-Hire Extension.
OWNER'S WARRANTIES 2. (a) Owner undertakes and warrants that, on the
date that the Vessel is placed at Charterer's
disposal, as provided in Clause 3, the following
representations are and will be the description of the
particulars and capacities of the Vessel and her
equipment.
(1) CARGO CARRYING CAPACITY
(i) Total cargo tank capacity
100% full 755,469 Bbls.*
98% full 740,360 Bbls.*
(ii) Weight of stores, etc., permanently
deducted from cargo carrying
capacity L.T.*
(iii) a. Fresh water consumption per day
Boilers 5 L.T.*
Potable 20 L.T.*
b. Capacity of evaporators per day
Boilers 40 L.T.*
Potable L.T.*
c. Normal quantity of fresh water
deductible from cargo carrying
capacity 250 L.T.*
(iv) Estimated loss of cargo carrying
capacity due to "sag" when fully
loaded with light, medium, heavy
cargo Light ( S.G.) N/A L.T.
Medium ( S.G.) N/A L.T.*
Heavy ( S.G.) N/A L.T.*
(v) The Vessel can carry ABT 97,000 L.T.***
(of 2,240 lbs.) total deadweight (as
certified by Classification Society) of
cargo, bunkers, water, and stores on an
assigned summer freeboard of ft. in * in
salt water equalling 47 ft. 04 in.**
summer mean draft
(2) OTHER TANK CAPACITIES
(i) Total capacity of fuel tanks
for propulsion
(98% full) Approx 65 Days at sea*
(ii) Total capacity of fresh water tanks
(100% full)
Boilers 315 M3*
Potable 97 M3*
(iii) Total capacity of permanent segregated
clean ballast tanks
(100% full) 39,418 M3*
(3) CAPACITY OF PUMPS
(i) Main Cargo Pumps
a. Number 3
b. Make Shinko
c. Type Steam Turbine Centrifugal
d. Design rated capacity of each
pump in cubic meters
per hour 2,700 M3/Hr.
and corresponding discharge head
in meters 150 Meters/Head
(ii) Stripping Pumps
a. Number 1
b. Make Shinko
c. Type Steam Driven Reciprocating
d. Design rated capacity of each
pump in cubic meters
per hour 200 M3/Hr.
and corresponding total discharge
head in meters 150 Meters/Head
(iii) Segregated Clean Ballast Pumps
a. Number 2
b. Make Shinko
c. Type Motor Driven Centrifugal
d. Design capacity each
pump 1,700 M3/Hr.
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(4) CARGO LOADING/DISCHARGE MANIFOLD
The whole manifold is made of steel or equivalent
material and is strengthened and supported to
avoid damage from loading and discharge equipment
and to withstand a maximum load from any direction
equivalent to the safe working load of the cargo
hose lifting equipment and will meet OCIMF
recommendations.
(i) a. Number of manifold connections 3
b. Diameter of manifold connections
inches 16 in.
c. Distance between centers of
manifold connections 8 ft. 02 in.
d. Distance from manifold connections
to ship's side 14 ft. 04 in.
e. Distance center of manifold
connections to deck 6 ft. 02 in.
f. Distance bow/center of
manifold 408 ft. 07 in.
(ii) Cargo Manifold Reducing Pieces Vessel is
equipped with a sufficient number of cargo
manifold reducing pieces of steel or
equivalent material to permit presenting
of flanges of
12 in. at 150 ASA
10 in. at 150 ASA
8 in. at 150 ASA
(5) HEATING COILS
(i) Type of coils Strait
Material of which
manufactured Copper Alloy
(ii) Ratio heating surface/volume
a. Slop Tanks 0.060 M2/M3
x. Xxxxxx Tanks Aft 0.060 M2/M3
Fore 0.060 M2/M3
c. Cargo Tanks Fore 0.0095 M2/M3
Wings 0.0166 M2/M3
Center 0.0083 M2/M3
(6) CARGO LOADING/PERFORMANCE
Vessel can load homogeneous cargo at
maximum rate of 12,000 M3/Hr.
(7) VESSEL PARTICULARS
(i) Length overall 803 ft. 02 in. *
(ii) Fully loaded summer draft
in salt water of a density
of 1.025 maximum 47 ft. 04 in.**
on an assigned
freeboard of 20 ft. 05 in. *
(iii) Fresh Water allowance ft. 12.8 in.*
(iv) Light ship draft Forward 2 ft. 00 in.*
Aft 15 ft. 03 in.*
Mean 8 ft. 00 in.*
(v) Moulded Depth 70 ft. 10 in.*
(vi) Light ship freeboard ft. in.*
(vii) TPI on light ship draft L.T.*
(viii) TPI on summer draft 220 L.T.*
(ix) Extreme beam 135' 02"*
(x) Gross Reg. Tons 57,448 Tons**
(xi) Net Reg. Tons 28,742 Tons**
(xii) Suez Canal tonnage 54,649 Tons**
Panama Canal tonnage Tons**
(xiii) Flag of Registry Bahamian
(xiv) Call letters C6LC6
(xv) Classification Society NK
(xvi) Type Engines Diesel
(xvii) Mooring winches
Number 6 Sets
Type Hydraulic
Capacity Tons pull 15 T x 15 M/Min
Placement 2 sets FOCSLE
2 Sets Midship
2 Sets AFT
(xviii) Trial Speed fully loaded ***
(xix) Fuel Rate at maximum power on trial **
(xx) Guaranteed speed in all weather
Loaded: 14 KT
Ballast: 14 KT
(xxi) Guaranteed fuel consumption in
all weather
Amount: 43 MT Laden/41.5 MT Ballast
Type:
HVF 000 XXX
Xxx. Xxxxxxx #0 at 100#F
0.5 MT Diesel Oil
(xxii) Tank cleaning system:
Fixed Portable
Type:
No:
Capacity:
(xxiii) Hose handling crane 1
SWL 15 Tons
(8) MISCELLANEOUS
Owner warrants the following:
(i) Vessel is equipped with communications
equipment to comply with International
Regulations to allow Vessel to
communicate with land stations. In this
respect, Vessel is equipped as follows:
HF Transmitter 36 DBW Output
MF Transmitter 800 W Output
SSB Transmitter Output
VHF Transreceivers Channel Nos Multi
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(ii) Vessel is constructed and equipped upon
delivery under this Charter in accordance
with regulations now existing as to enable
Vessel to transit Suez Canal/ Panama Canal
in accordance with respective latest
navigation regulations.
(iii) Vessel is equipped with a fresh water
evaporator which will be maintained in good
operating condition. Owner warrants that
this evaporator is capable of making
sufficient fresh water to supply Vessel's
daily needs as established in items (1)
(iii) a & b.
(iv) Vessel will meet all requirements of
SOLAS as amended.
(v) Vessel's slop retention system has a
capacity of 26,644 MT and is designed to
meet International Pollution Convention
standards as amended in 1969 or thereafter
revised. Oily water separator has a
capacity of tons/ hour with
discharge concentration in accordance with
1969 convention as amended.
(vi) Vessel is fitted with common type cargo
ventline system which has capacity to
permit loading of cargo at 10,000 M3/H.
(vii) Vessel is equipped with the following
cargo pipeline system:
Cargo Tank Suction Lines 550 MM Diameter
Discharge Lines 550 MM Diameter
Direct Filling Lines 550 MM Diameter
(viii) Vessel is equipped with hydraulic cargo
valve control system.
(ix) Vessel cargo deck pipeline system is
fitted with expansion bends or of dresser
type.
(x) Vessel's cargo segregation and pipeline
system to be designed to permit three (3)
port loading and three (3) port discharging
and to permit 39% of Vessel's deadweight in
clean/ballast to be discharged overboard
from cargo/ballast tanks simultaneously
with loading of cargo.
(xi) Vessel is equipped with float type cargo
tank measuring devices. Maximum rates at
which vessel's lines will receive Bunkers:
Fuel 600 M3/Hour
Diesel 100 M3/Hour
(b) Owner will, on Charterer's request,
supply Charterer with copies of Vessel's plans
provided that in the case of a new-building said
plans and said copies shall be supplied to Charterer
when they are made available to Owner by the New
Building Yard.
(c) Owner represents and warrants that no
other person or corporation has any right, title or
interest in the Vessel or any lien, mortgage or
encumbrance on the Vessel except as specifically
indicated, in writing, to Charterer when the Vessel
was offered to Charterer. Said written notice shall
be deemed to be a warranty by Owner to Charterer that
Vessel is not otherwise encumbered and if no such
notice was then received by Charterer it shall be
deemed to be a warranty by Owner that Vessel was not
then so encumbered. Owner further warrants that it
has not prior to execution of this Charter and will
not following execution of this Charter and during
the Term of this Charter, place any additional
mortgage, lien or encumbrance on the Vessel, without
the prior written consent of Charterer, other than
liens in favor of the crew or routine suppliers to
the Vessel.
(d) Owner warrants that the Vessel will
during the Original and Extended Periods as well as
any Off-Hire Extension of this Charter be manned by
Officers and Crew of European/Indian/PI and PI
nationality respectively.
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DELIVERY, 3. (a) Owner undertakes to maintain Vessel,
COMMENCEMENT OF during the period of service under this Charter,
HIRE, TRADE AND so that all the representations and warranties set
USE forth in Clause 2 shall, at all times, be true and
accurate. Owner further represents, undertakes
warrants that, on the date Vessel is placed at
Charterer's disposal, Vessel will then be ready
with holds and cargo tanks clear and clean and
in every way fitted for the service and carriage
of crude oil and/or dirty petroleum products
including crude condensates, dirty naphtha and carbon
black feedstock in bulk maximum three (3) grades
within Vessel's natural segregation and such other
dirty petroleum products and lawful merchandise as may
be suitable for a Vessel of her description and shall
then be tight, staunch and strong, with pipelines,
pumps and heating coils in cargo, slop and bunker
tanks in good working condition, and with a full
complement of properly certified Master, Officers and
Crew for a Vessel of her size and character.
(b) Vessel shall be placed at Charterer's
disposal in accordance with the provisions hereof no
later than 30Sep92 /and simultaneously with its
delivery to Owner from the New Building Yard and shall
in no event perform any voyage on behalf of the Owner
or any other person prior to its being so placed at
Charterer's disposal.
(c) Hire shall commence when the Vessel is so
placed at Charterer's disposal, which shall be
evidenced when Charterer, or its Agents, have received
from the Master written notice that Vessel is in all
respects ready for sea and is at Charterer's disposal
at Onomichi, Japan in or at such readily accessible
dock, wharf or place where she can always safely lie a
float, as Charter or its Agents may direct. However,
hire shall not, in any event, commence before 01Aug92
unless with Charterer's written consent and Charterer
shall have the option to cancel this Charter should
Vessel not be ready and placed at Charterer's disposal
in accordance with the provisions hereof, before
30Sep92. Said option to cancel shall be declared by
Charterer not later than the date on which Vessel is
placed at Charterer's disposal delivered to Owner by
New Building Yard, and shall be without prejudice to
any claim for damages Charterer may have for late
tender of Vessel's services.
(d) Vessel may be employed in any part of the
World, excluding those countries with which trading is
prohibited by vessel's flag, unless Owner gives
written consent, trading between safe ports in such
lawful trades as Charterer or its Agents may direct,
subject to Institute Warranties and Clauses, attached
hereto as Attachment A; but including ports on the
East Coast of Canada, St. Xxxxxxxx River, North
American Lakes, Greenland and Baltic Sea upon payment
by Charterer of any additional insurance premiums
required by Vessel's underwriters for such latter
trading. Charterer shall be entitled to send Vessel
through the Straits of Magellan at any time of the
year. In the event that the Vessel shall, for any
reason whatsoever, be unable to be employed or trade
in any port of the World (subject to the limitations
specifically set forth herein) Charterer, at its
option, may immediately terminate this Charter and
release the Vessel to the Owner's use pursuant to the
provisions of Clause 14. Charterer shall be permitted
to breach IWL reimbursing Owner for all additional
premiums incurred.
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(e) The whole reach and burden of Vessel (but
not more than she can reasonably stow and safely
carry) shall be at Charterer's disposal, reserving
appropriate space for Vessel's Master, Officers, Crew,
tackle, apparel, furniture, fuel, provisions and
stores. Charterer shall have the option of shipping
any lawful dry cargo in bulk for which the Vessel or
her tanks are suitable and lawful merchandise in cases
and/or cans and/or other packages in Vessel's
available, suitable space subject, however, to
Master's approval as to kind and character, amount and
stowage. All charges for dunnage, loading, stowing and
discharging so incurred shall be paid by Charterer.
(f) The Vessel shall be loaded, discharged, or
lightened, at any port, place, berth, dock, anchorage,
or submarine line or alongside lighters or vessels
whether in a port or not as Charterer may direct.
Notwithstanding anything contained in this Clause or
any other provisions of this Charter, Charterer shall
not be deemed to warrant the safety of any port,
berth, dock, anchorage, submarine line and/ or lighter
or lightening Vessel and shall not be liable for any
loss, damage, injury, or delay resulting from
conditions at or on such ports, place, berths, docks,
anchorages, submarine lines and/or lighter or
lightening Vessel whether in a port or not, not caused
by Charterer's fault or neglect or which could have
been avoided by the exercise of reasonable care on the
part of the Master or Owner.
(g) Charterer, at its risk and responsibility,
may send passengers and/ or super-cargo in available
accommodations in Vessel upon any voyage made under
this Charter, with Owner to provide provisions and all
requisites, except liquors, and Charterer to pay at
the rate of THREE UNITED STATES DOLLARS (U.S. $3.00)
per diem for each person during the time of such
travel.
HIRE AND 4. (a) Charterer shall pay hire for the use of
ADJUSTMENTS the Vessel at the rate of . Payments of
HIRE said hire shall be made monthly in advance in United
States Dollars, without any discount, adjustment or
deduction, except as specifically set forth in this
clause or otherwise in this Charter, at Chase
Manhattan Bank, New York, New York, Account of Willow
Limited 910-576825. Hire shall commence from the hour
(GMT) and day that the Vessel is placed at Charterer's
disposal, as provided for in Clause 3, and shall
continue until the hour (GMT) and date that the Vessel
is released to the Owner by the Charterer in
accordance with the provisions of this Charter unless
the Vessel is an actual or constructive total loss or
is Off-Hire in accordance with the terms of this
Charter. Any hire paid in advance and not earned
shall be refundable and payable to Charterer by Owner
and or by any party to whom Owner may have assigned
the hire; Owner at all times remaining ultimately
responsible therefor.
(b) Charterer shall be entitled to deduct from
the payments of hire due under paragraph (a) of this
Clause (i) any sums necessary to replenish the
revolving fund established herein and or actual or
estimated disbursements, if any, for Owner's account
and any advances to the Master or Owner's agents in
excess of the said revolving fund; (ii) lay-up savings
in accordance with Clause 12; (iii) any previous
overpayments of hire, including payments made with
respect to periods of Off-Hire and including any
overpayments of hire concerning which a bona fide
dispute may exist; (iv) Off-Hire anticipated to occur
during month for which payment of Hire is to be made;
(v) any sums due or estimated to be due under Clause 6
and (vi) any other sums to which Charterer is entitled
under this Charter.
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(c) Should the Vessel be on her final voyage
at the time a payment of hire becomes due, said
payment shall be made for the time estimated by
Charterer to be necessary to complete the voyage and
effect release of the Vessel to Owner, less all
deductions provided for in paragraph (b) of this
Clause which shall be estimated by Charterer if the
actual amounts have not been determined, and also less
the amount estimated by Charterer to become payable by
Owner for fuel and water on release of the Vessel to
Owner as provided in Clause 14. Upon release of the
Vessel any difference between the estimated and actual
amounts shall be refunded to or paid by the Charterer
as and to the extent that the case may require.
(d) Should the Vessel be lost, or if missing
and presumed lost, hire shall cease at the time of her
loss, or if such time is unknown, at the time when the
Vessel was last heard of. If the Vessel should become
a constructive total loss, hire shall cease at the
time of the casualty resulting in such loss. In either
or any case, hire paid in advance and not earned, plus
any other monies then owing to Charterer under the
provisions of this Charter, shall be immediately
returned to the Charterer. If the Vessel should be
Off-Hire or missing when a payment of hire would
otherwise be due, such payment shall be postponed
until the Off-Hire ceases or the safety of the Vessel
is ascertained, as the case may be.
(e) If the Vessel shall not fulfill the
Owner's warranties or any other part of her
description as warranted in Clause 2, Charterer shall
be entitled, without prejudice to any other rights the
Charterer may have, to a reduction in the hire to
correct (compensate) for such deficiency.
(f) In default of punctual and regular
payments of hire as herein specified Owner shall
notify Charterer at his Office and place of business
as specified in Clause 25 as to said default in
writing, cable or telex whereupon the Charterer shall
make payment of the amount due within ten (10) days of
receipt of said notification from the Owner, failing
which the Owner may have the right to withdraw the
Vessel from the service of the Charterer without
prejudice to any other claim the Owner may have
against the Charterer under this Charter.
(g) Should compliance with future legislation
or regulations of Classification Societies, or other
authorities, result in a loss of deadweight, the Hire
due hereunder shall be correspondingly decreased to
conform to the actual deadweight of the Vessel.
However, any increase in deadweight resulting from any
such future legislation or regulations shall not
result in a corresponding increase in Hire. Owner and
Charterer may agree upon a new rate of hire applicable
to said increase in deadweight and until an Addendum
to this Charter embodying such agreement is executed
by Owner and Charterer the said increase in deadweight
shall not be used by Charterer.
LIENS 5. The Owner shall have a lien on all cargoes for
all amounts due to them under this Charter and the
Charterer shall have a lien on the Vessel for (i) all
moneys paid in advance and not earned, (ii) all
disbursements and advances for the Owner's account not
compensated for by the revolving fund provided for
herein or otherwise, (iii) the value of any of
Charterer's fuel used or accepted for Owner's account,
(iv) all amounts due under other provisions of this
Charter, and (v) any damages sustained by Charterer as
a result of a breach of any provision of this Charter
by the Owner.
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OWNER'S 6. (a) In addition to the warranties set forth
GUARANTEES AND in this Charter, Owner stipulates, agrees and
ADJUSTMENTS guarantees, that Vessel will, throughout the term
OF HIRE of this Charter, maintain on all sea passages, from
sea buoy to sea buoy, a guaranteed average speed of
no less than 14.0 knots loaded and 14.0 knots in
ballast (which speed will be determined by taking the
total mileage of the actual course which Vessel has
travelled divided by the total hours at sea is shown
in the log books, excluding stops at sea which are
considered as periods of Off-Hire under the terms of
this Charter).
(b) Owner further stipulates, agrees and
guarantees that Vessel will, throughout the term of
this Charter, maintain the above guaranteed speeds on
a fuel consumption of not more than 43 MT Laden/41.5
MT Ballast 380 CST.
(c) Owner further stipulates, agrees and
guarantees that the cargo and stripping pumps will,
throughout the term of this Charter, discharge
Vessel's cargo within a maximum of twenty-four (24)
hours against a head pressure of one hundred and
twenty-five pounds per square inch at the
ship's manifold, and that Vessel is fitted with
sufficient block valves for complete segregation to
enable simultaneous loading and discharge from a
centralized manifold amidships of three (3) grades of
cargo.
(d) The speed, fuel consumption and pumping
performance which Owner, pursuant to this Clause 6,
has guaranteed, throughout the term of this Charter,
will be reviewed by Charterer six (6) calendar months
after the date Vessel is placed at Charterer's
disposal, and thereafter at the end of each subsequent
period of six (6) calendar months; provided, however,
that if there should be a period of less than six (6)
calendar months remaining prior to release of the
Vessel to Owner, then not later than the commencement
of the final month of this Charter. If, in respect of
any such period or prior period it is found that
Vessel has failed to maintain the speed and/or fuel
consumption and/or pumping performance guaranteed
pursuant to this Clause 6, Charterer shall be
compensated, including retroactive compensation, in
respect of each failing as follows: (i) SPEED---For
each knot, or pro rata for each part of a knot, below
the guaranteed speeds, a reduction in hire per
calendar month of per each DWT of Vessel's
capacity reflected in Clause 2; (ii) FUEL
CONSUMPTION--Owner to pay Charterer for each Metric
ton, or pro rata for each part of a Metric ton,
consumed in excess of the guaranteed daily consumption
for main engines and auxiliaries, at Charterer's
Actual average price for the particular grade of
bunkers at Ras Tanura during the particular period, or
prior period, under review; (iii) PUMPING---Vessel to
be considered Off-Hire for each hour, or part of an
hour, in excess of the maximum number of hours
guaranteed herein for completing pumping of a full
cargo or pro-rata for a part thereof against a head
pressure at Vessel's manifold of one hundred and
twenty-five pounds per square inch. Charterer shall
determine whether any delay in pumping is the result
of unique characteristics of the cargo being pumped or
of the receiving terminal, and, if so, shall consider
this factor in assessing the pumping performance.
(e) The provisions of this Clause 6, with
respect to speed and fuel consumption shall be
administered in accordance with Exhibit 1, attached
hereto, and entitled "Administration of Provisions of
Time-Charter All Weather Clause."
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OFF-HIRE 7. (a) In the event that a loss of time, not
caused by Charterer's fault, shall continue, (i) due
to repairs, breakdown, accident or damage to Vessel,
collision, stranding, fire, interference by
authorities or any other cause preventing the
efficient working of the Vessel, for more than twelve
(12) consecutive hours, whether at sea or in port
including but not limited to drydocking pursuant to
Clause 8 or for an accumulation of more than twelve
(12) hours during any voyage (a voyage to be
considered as a round voyage beginning at the time
Vessel tenders for loading at the first port under
the voyage in question until such time as it
completes the voyage and tenders for loading on the
subsequent voyage) or, (ii) for any number of hours
(including any part of an hour) due to deficiency of
personnel or stores, strike, boycotts (including
boycotts by persons or organizations other than
officers and/or members of the crew), refusal to
sail, breach of orders, or failure to have on board
Certificate required pursuant to Clause 21 or neglect
of duty on the part of the Master, Officers, or Crew,
or in order to render salvage services, obtain
medical aid or treatment, or for landing any sick or
injured person or the body of a deceased person
(other than a passenger carried under Clause 3 (g)
hereof), or due to any other deviation (including the
putting back or into any port other than that to
which Vessel is bound), then hire shall cease for all
time so lost until Vessel is again in an efficient
state to resume her service and has regained a point
of progress equivalent to that when hire ceased
hereunder.
(b) Cost of fuel, at Current Market Price, and
water, if a steamer, consumed while Vessel is
Off-Hire, pursuant to this Clause, as well as all port
charges, pilotage, towage and other expenses incurred
during such period and/or consequent upon putting into
any port or place other than to which Vessel is bound,
shall be borne by Owner.
(c) Any delay by ice or time spent in
quarantine shall be for Charterer's account, except
that delay in quarantine, resulting from the Master,
Officers or Crew having communication with the shore
at an infected port, where Charterer has given the
Master adequate notice of the infection, shall be for
Owner's account. Any loss of time through detention
by authorities, unless due to Charterer's fault,
shall be for Owner's account.
(d) In the event of a breakdown or delay from
any cause whatsoever, not otherwise covered by this
Clause, and Vessel remains on hire, it is mutually
understood and agreed that the cost of port charges,
tugs, pilots and all other expenses, incurred by
reason of such delay, shall be for Owner's account.
(e) In the event of detention of Vessel by
any governmental authority, or by any legal action
against Vessel or Owner, or by any strike or boycott
including a boycott by other than the Vessel's
officers or crew, whereby Vessel is rendered
unavailable for Charterer's service for a period of
thirty (30) days or more, unless brought about by act
or neglect of Charterer, Charterer may, by written
notice given before Vessel is free and ready to
resume service, elect to terminate this Charter, or
to suspend same until the service can again be
resumed, without prejudice to any other rights
Charterer may have under this Charter or to any claim
it may have for damages. Hire shall cease during the
entire time Vessel is out of Charterer's service due
to any such detention.
(f) Nothing in this Clause shall affect any
other provision in this Charter providing for cesser
or suspension of hire where specifically allowed.
DRY DOCKING 8. (a) Owner, at its expense, shall drydock,
clean and paint Vessel's bottom, and make all overhaul
and other necessary repairs, at approximately sixty
(60)/ ( ) month intervals, for which purpose
Charterer shall allow Vessel to proceed to an
appropriate port. Owner shall be solely responsible
therefor, and also for gasfreeing the Vessel, upon
each such occasion. All towage, pilotage, fuel, at
Current Market Price, water, if a steamer, and other
expenses incurred while proceeding to and from, and
while in, drydock, shall also be for Owner's account.
9
(b) In case of drydocking pursuant to this
Clause at a port where Vessel is to load, or
discharge under Charterer's orders, hire shall be
suspended from the time Vessel receives free pratique
on arrival, if in ballast, or upon completion of
discharge of cargo, if loaded, until Vessel is again
ready for service. In case of drydocking at a port
other than where Vessel loads, discharges or bunkers,
payment of hire shall cease from the time of
deviation until Vessel is again in the same or
equivalent position as though no deviation had
occurred.
(c) Nothing contained herein shall, however,
be interpreted to mean that Charterer agrees to
program (schedule) the Vessel to any port for
drydocking, repairing or crewchange. The timing of
such drydocking, repairing or crewchanging,
sixty (60) months after Vessel is placed
at Charterer's disposal and thereafter at least once
within every sixty (60) months, shall be at
Charterer's option.
OWNER OR 9. (a) Owner will provide and/or pay for (i)
CHARTERER TO provisions, supplies, deck and engine stores, galley
PROVIDE and cabin stores, all fresh water if a motor vessel,
all P.&I., Hull and other insurance on Vessel or
with respect to Vessel's liabilities, wages of
Master, Officers and Crew, consular fees pertaining to
the Master, Officers-and Crew, (ii) galley and crew
fuel at the monthly rate payable to Charterer of
( ), and (iii) the cost of all fuel oil, and/or diesel
oil and water, if a steamer, on board when Vessel is
released to Owner hereunder, not to exceed tons
fuel and tons water, respectively (costs for
fuel and/or diesel oil to be determined at the
current Market Prices at the port and date of
Vessel's release to Owner; or, if not available
there, at current Market Prices at the nearest
port where bunkers are available).
(b) Except when the Vessel is Off-Hire,
Charterer will provide and pay for (i) all fuel oil
and/or diesel oil and fresh water, if a steamer, and
all port charges, light dues, docking dues, Canal
dues, pilotages, Consular fees (except those
pertaining to the Master, Officers and Crew), tugs
necessary to assist Vessel in, about and out of port
(but only in the performance of this Charter),
Charterer's agency fees, and expenses of loading and
unloading cargoes, (ii) all telephone calls, radio
messages and telegrams sent at the request of
Charterer and extra victualling for Charterer's
account at the monthly rate of ; (iii) all
overtime of Officers and Crew worked at Charter's
request, at the monthly rate of , and
(iv) cost of fuel oil and/ or diesel oil and water, if
a steamer, on board when Vessel is placed at
Charterer's disposal, not to exceed tons fuel
and tons water, respectively (costs for
fuel and/or diesel oil to be determined at the current
Market Prices at the port and date the Vessel is
placed at Charterer's disposal where Hire begins; or,
if not available there, at current Market Prices at
the nearest port where bunkers are available.
(c) Notwithstanding the provisions of
paragraph (b) (i) of this Clause, Owner shall
reimburse Charterer for any fuel oil and/or diesel
oil and water, if a steamer, expended or consumed in
a General Average situation and also during a
consequent related drydocking or repair of the Vessel
and said reimbursement shall not thereafter be deemed
to be a General Average expenditure.
DUTIES OF 10. (a) Master shall prosecute his voyages with
MASTER utmost dispatch and render all reasonable
assistance with Vessel's crew and equipment,
including hoisting, connecting and disconnecting
hoses at ports or sea berths where requested or where
such assistance is a normal practice. Master and Chief
Engineer shall be required to be fluent in written and
oral English.
10
(b) Master, although appointed by, and in the
employ of Owner, and subject to Owner's direction and
control, shall observe the orders of Charterer as
regards employment of Vessel, Charterer's Agents or
other arrangements required to be made by Charterer
hereunder.
(c) If Charterer should be dissatisfied with
the conduct of Master or Officers, Owner shall, on
receiving particulars of the complaint, investigate it
and if necessary make a change in the appointments.
(d) Master shall be furnished by
Charterer, from time to time, with all requisite
instructions and sailing orders, and both he and the
Engineers shall keep full and correct logs of the
voyages, which shall at all times be available to
Charterer and its Agents, and abstracts thereof, or
such other forms or reports as Charterer may require,
shall be sent to Charterer from each port of call.
Failure of the Master to promptly forward the Vessel's
abstract and other forms and reports in compliance
with the above shall be adequate grounds for
Charterer's invoking the provisions of Clause 10 (c).
ADDITIONAL 11. Charterer, subject to Owner's approval,
EQUIPMENT which shall not be unreasonably withheld, shall be
at liberty to fit, at Charterer's expense if any,
additional pumps and/or gear for loading or
discharging cargo it may require beyond that which is
on board when Vessel is placed at Charterer's
disposal, and to make the necessary connections with
steam or water pipes, such work to be done at
Charterer's expense and time, and such pumps and/ or
gear so fitted to be considered Charterer's property,
and Charterer shall be at liberty to remove said
equipment at its expense and time during or at the
expiry of this Charter; the Vessel to be left in her
original condition to Owner's satisfaction except for
reasonable wear and tear. Owner shall, however,
provide normal maintenance for any equipment installed
by Charterer.
LAY-UP 12. Charterer shall have the option of laying up the
Vessel for all or any portion of the term of this
Charter, in which case hire hereunder shall continue
to be paid, but there shall be credited against such
hire the whole amount which Owner shall save (or
reasonably should save) during such period of lay-up.
Should Charterer, having exercised the option granted
hereunder, desire the Vessel again to be put into
service, Owner will, upon receipt of written notice
from Charterer to such effect, immediately take steps
to restore Vessel to service as promptly as possible.
The option granted to Charterer hereunder may be
exercised one or more times during the currency of
this Charter or any extension thereof.
REQUISITION 13. (a) In the event that title to the Vessel
shall be requisitioned or seized by any government
authority (or the Vessel shall be seized by any
person or government under circumstances which are
equivalent to requisition of title), this Charter
shall automatically terminate as of the effective
date of such requisition or seizure.
(b) In the event that the Vessel should be
requisitioned for use or seized by any government
authority (or any person) on any basis not involving,
or not equivalent to, requisition of title, she shall
be Off-Hire hereunder during the period of such
requisition, and any hire or any other compensation
paid in respect of such requisition shall be for
Owner's account, provided, however, that if such
requisition continues for a period in excess of
thirty (30) days, the Charterer shall have the option
to terminate this Charter upon written notice to the
Owner. Any periods of Off-Hire under this Clause
shall be subject to the Charterer's option for
Off-Hire extension set forth in Clause 1 hereof.
11
RELEASE OF VESSEL 14. Unless the employment of the Vessel under
TO OWNER this Charter shall previously have been terminated by
loss of the Vessel or otherwise, the Charterer shall
redeliver the Vessel to Owner (herein called "release
of the Vessel to the Owner's use"), free of cargo, at
the expiration of the term of this Charter stated in
Clause 1 (including any extension thereof provided in
said Clause or elsewhere in this Charter), at a port
World-Wide at Charterer's option (herein called "Port
of Release"). At the Charterer's option, the Vessel
may be released to the Owner with tanks in a clean or
dirty condition; and in no event shall Charterer be
required to so release the Vessel gas free.
BILLS OF LADING 15. (a) Bills of Lading shall be signed by the
Master as presented, the Master attending daily, if
required, at the offices of the Charterer or its
Agents. However, at Charterer's option, the Charterer
or its Agents may sign Bills of Lading on behalf of
the Master. All Bills of Lading shall be without
prejudice to this Charter and the Charterer shall
indemnify the Owner against all consequences or
liabilities which may arise from any inconsistency
between this Charter and any Bills of Lading or other
document relating to cargo signed by the Charterer or
its Agents or by the Master at their request or which
may arise from any irregularity in such documents
supplied by the Charterer or its Agents.
(b) The carriage of cargo under this Charter
and under Bills of Lading issued for the cargo shall
be subject to the statutory provisions and other terms
set forth or specified in the subparagraphs to this
paragraph (b) and such terms shall be incorporated
verbatim or be deemed incorporated by reference in any
such Xxxx of Lading. In the subparagraphs to this
paragraph (b) and in any Act referred to therein, the
word "Carrier" shall include the Owner of the Vessel.
(1) Clause Paramount. This Xxxx of
Lading shall have effect subject to the
provisions of the Carriage of Goods by Sea Act
of the United States, approved April 16, 1936,
except that if this Xxxx of Lading is issued
at a place where any other Act, ordinance, or
legislation gives statutory effect to the
International Convention for the Unification
of Certain Rules relating to Bills of Lading
at Brussels, August 1924, then this Xxxx of
Lading shall have effect subject to the
provisions of such Act, ordinance, or
legislation. The applicable Act, ordinance, or
legislation (hereinafter called "Act") shall
be deemed to be incorporated herein and
nothing herein contained shall be deemed a
surrender by the Owner or Carrier of any of
its rights or immunities or an increase of any
of its responsibilities or liabilities under
the Act. If any term of this Xxxx of Lading be
repugnant to the Act to any extent, such term
shall be void to that extent but no further.
(2) New Xxxxx Clause. In the event of
accident, danger, damage, or disaster before
or after the commencement of the voyage,
resulting from any cause whatsoever, whether
due to negligence or not, for which, or for
the consequences of which, the Carrier is not
responsible, by statute, contract or
otherwise, the cargo, shippers, consignees, or
owners of the cargo shall contribute with the
Carrier in General Average to the payment of
any sacrifices, losses, or expenses of a
General Average nature that may be made or
incurred and shall pay salvage and special
charges incurred in respect of the cargo. If a
salving ship is owned or operated by the
Carrier, salvage shall be paid for as fully as
if the said salving ship or ships belonged to
strangers. Such deposit as the Carrier or its
Agents may deem sufficient to cover the
estimated contribution of the cargo and any
salvage and special charges thereon shall, if
required, be made by the cargo, shippers,
consignees or owners of the cargo to the
Carrier before delivery.
12
(3) General Average. General Average
shall be adjusted, stated, and settled
according to York/Antwerp Rules 1974, as
amended, but subject to the provisions of
Clause 9 (c) of this Charter and, as to
matters not provided for by those rules,
according to the laws and usages at the Port
of New York (except that any payment made by
Carrier to Charterer under Clause 20(b) or to
a Government or others to "remove" oil, as
defined in the Tanker Owners Voluntary
Agreement Concerning Liability for Oil
Pollution (TOVALOP), as well as any other
payments, with respect to the Vessel or
Owner's Liability for Oil Pollution damages,
shall not be deemed to be General Average
sacrifices or expenditures). If a General
Average statement is required, it shall be
prepared at such port by an Adjuster at the
Port of New York appointed by the Charterer
of the Vessel and approved by the Carrier.
Such Adjuster shall attend to the settlement
and the collection of the General Average,
subject to customary charges. General Average
Agreements and/ or security shall be
furnished by Carrier and/or Charterer of the
Vessel, and/or Carrier and/or Consignee of
cargo, if requested. Any cash deposit being
made as security to pay General Average
and/or salvage shall be remitted to the
Average Adjuster and shall be held by him at
his risk in a special account in a duly
authorized and licensed bank at the place
where the General Average statement is
prepared.
(4) Both to Blame. If the Vessel comes
into collision with another ship as a result
of the negligence of the other ship and any
act, neglect or default of the Master,
mariner, pilot, or the servants of the
Carrier in the navigation or in the
management of the Vessel, the owners of the
cargo carried hereunder shall indemnify the
Carrier against all loss or liability to the
other or noncarrying ship or her owners
insofar as such loss or liability represents
loss of, or damage to, or any claim
whatsoever of the owners of said cargo, paid
or payable by the other or non-carrying ship
or her owners to the Owner of said cargo and
set-off, recouped or recovered by the other
or non-carrying ship or her owners as part of
their claim against the carrying ship or
Carrier. The foregoing provisions shall also
apply where the owners, operators, or those
in charge of any ships or objects other than,
or in addition to, the colliding ships or
object are at fault in respect of a collision
or contact.
(5) Limitation of Liability. Any
provision of this Charter to the contrary
notwithstanding, the Carrier shall have the
benefit of all limitations of, and exemptions
from, liability accorded to the Owner or
Chartered Owner of Vessels by any statute or
rule of law for the time being.
(6) Deviation Clause. The Vessel shall
have liberty to sail with or without pilots,
to tow or be towed, to go to the assistance
of Vessels in distress, to deviate for the
purpose of saving life or property or of
landing any ill or injured person on board,
and to call for fuel at any port or ports in
or out of the regular course of the voyage,
subject to the provisions of this Clause.
13
WAR CLAUSES 16. (a) No contraband of war shall be shipped,
AND RISKS but petroleum and/or its products shall not be deemed
contraband of war for the purposes of this Clause.
Vessel shall not, be required, without the consent of
Owner, which shall not be unreasonably withheld, to
enter any port of zone which is involved in a state of
war, warlike operations or hostilities, whether there
be a declaration of war or not, where it might
reasonably be expected to be subject to capture,
seizure or arrest, or to a hostile act by a
belligerent power (the term "power" meaning any de
jure or de facto authority or any other purported
governmental organization maintaining naval, military
or air forces).
(b) For the purposes of this Clause it shall
be unreasonable for Owner to withhold consent to any
voyage, route, or port of loading or discharge if
insurance against all risks defined in paragraph (a)
of this Clause is then available commercially or under
a Government program in respect of such voyage, route
or port of loading or discharge. If such consent is
given by Owner, Charterer will pay the provable
additional cost of insuring Vessel against all war
risks in an amount equal to (i) the value under her
ordinary marine policy but (ii) in no event exceeding
Seven billion six hundred million yen (Yen
7,600,000,000). If such insurance is not obtainable
commercially or through a Government program, Vessel
shall not be required to enter or remain at any such
port or zone.
(c) In the event of the existence of the
conditions described in paragraph (a) of this Clause
subsequent to the date of this Charter and while
Vessel is on-hire under this Charter, Charterer
shall, in respect of voyages to any such port or
zone, assume the provable additional cost of wages
and insurance properly incurred in connection with
Master, Officers and Crew as a consequence of such
war, warlike operations or hostilities.
(d) The provisions of this Clause shall apply
with the same manner and the same effect to the
consequences of civil war, revolution, rebellion,
insurrection, or civil strife arising therefrom, or
piracy.
(e) During the term of this Charter, Owner
shall bear all risk of loss or damage to the Vessel
and/or liabilities of the Vessel (except and to the
extent that it is otherwise specifically provided
herein) and Owner shall indemnify and hold Charterer
harmless with respect to such risks.
EXCEPTIONS 17. (a) Vessel, her Master and Owner, shall not,
unless otherwise in this Charter expressly provided,
be responsible to Charterer for any loss or damage
arising or resulting from: (i) any act, neglect,
default or barratry of Master, pilots, mariners or
other servants of Owner in the navigation or
management of Vessel; fire, unless caused by the
personal design or neglect of Owner; collision,
stranding or peril, danger or accident of the sea or
other navigable waters; saving or attempting to save
life or property; wastage in weight or bulk, or any
other loss or damage arising from inherent defect,
quality or inherent vice of the cargo; any act or
omission of Charterer or Shipper, Consignee or Owner
of the cargo, their Agents or representatives;
insufficiency of packing; insufficiency or inadequacy
of marks; (ii) explosion or bursting of boilers,
breakage of shafts or unseaworthiness of Vessel,
unless caused by want of due diligence on the part of
Owner to make Vessel seaworthy or to have her
properly manned, equipped and supplied; or from any
other cause of whatsoever kind arising without the
actual fault or privity of Owner.
(b) Neither Vessel, her Master or Owner, nor
Charterer, shall, unless otherwise in this Charter
expressly provided, be responsible for any loss,
damage, delay or failure in performing hereunder
arising or resulting from: act of God; act of War;
act of public enemies, pirates or assailing thieves;
arrest or restraint of princes, rulers or people, or
seizure under legal process provided bond or other
security is promptly furnished to release Vessel or
cargo; strike, lockout, stoppage or restraint of
labor, picketing, boycott, or other labor
disturbances or interruptions, from whatever cause,
either partial or general; or riot or civil
commotion.
14
(c) This Clause is not to be construed as in
any way affecting the provisions for Off-Hire,
cessation or suspension of hire, or Charterer's
option to cancel this Charter, as provided in this
Charter.
DAMAGES TO, OR 18. Owner guarantees and warrants that Vessel is
CLAIMS ON CARGO constructed and equipped to carry, without admixture,
at least three (3) qualities or descriptions of oil
but, subject to this, neither Owner nor Vessel shall
be responsible for any on Cargo admixture if more than
three (3) qualities of oil are shipped, nor for
leakage, contamination or deterioration in quality of
the cargo, unless the admixture, leakage,
contamination or deterioration results from (i)
unseaworthiness existing at the time of loading or at
the inception of the voyage which was discoverable by
the exercise of due diligence, or (ii) error or fault
of the servants of Owner in the loading, care or
discharge of the cargo or (iii) because of any breach
of warranty set forth in this Charter.
NEGLIGENCE OF 19. (a) Charterer shall not be held responsible
PILOTS, ETC. for losses sustained by Owner or Vessel through the
negligence of pilots, tugboats or stevedores, even
though Charterer and/ or its Agents engage or furnish
such services. Owner hereby authorizes Charterer and
its Agents to bind Vessel and its Owner to all the
terms and conditions of written or implied contracts
or agreements for pilotage, towing or stevedoring in
accordance with established local practice in the
ports where such services are engaged, and Owner shall
indemnify and hold Charterer and its Agents harmless
from all damages and expenses that may be sustained or
incurred in the event of Charterer and/or its Agents
engaging or furnishing such services.
(b) Charterer shall have the option of using
its own tugs or pilots, or tugs owned or pilots
employed by subsidiary or related companies, in the
towing, docking, undocking, piloting or other
assistance of Vessel. In this event, the terms and
conditions for such services prevailing in the port
where such services are rendered, and applied by
independent tugboat owners or pilots, shall be
applicable, and Charterer, its subsidiaries and their
pilots shall be entitled to all the exemptions from
and limitations of liability applicable to said
independent tugboat owners or pilots and their
published terms and conditions. The exemption from
and limitation of liability accorded Charterer, its
subsidiaries or related companies and their pilots
shall also include services rendered by pilots when
no tugboats are in attendance of Vessel.
OIL POLLUTION 20. (a) Owner undertakes and guarantees that
Master will, at all times, comply with Charterer's
requirements, which will from time to time be made
available to Master, for the Prevention of the
Pollution of the Sea by Oil and will retain on board
all oily residues at all times and be able to pump
such residues ashore either separately or commingled
with dirty ballast or cargo as Charterer may require.
Owner will also place on board the Vessel any
additional equipment Charterer might require to
further reduce the possibility or probability of
Pollution of the Sea by Oil, subject to the
provisions of Clause 11 except that such equipment
shall be at Owner's expense, if required by
applicable law or to otherwise meet the provisions of
this Charter.
(b) The obligations which Charterer has
assumed under this Clause may not be transferred,
sold or assigned by the Owner to any person or
persons or to a company related or affiliated to the
Owner without receipt of Charterer's prior written
consent. However, if Charterer shall assign the
Charter to any company related or affiliated to it,
it shall assign the obligations assumed hereunder,
without any prior written consent of the Owner,
provided that Charterer shall, until termination of
the Charter, also remain primarily liable for the
obligations it has assumed under this Clause.
15
WATER 21. (a) Owner warrants that the Vessel
QUALITY performing under this Charter shall carry onboard a
Certificate of Financial Responsibility meeting the
requirements of the U.S. Federal Maritime Commission
promulgated pursuant to the U.S. "Water Quality
Improvement Act of 1970."
(b) Owner further warrants that said
Certificate of Financial Responsibility will be
maintained throughout the Original or Extended Period
of this Charter.
(c) Charterer shall not be liable for any
delay as a result of Owner's failure to have onboard
the aforementioned Certificate, and Vessel shall be
Off-Hire as provided in Clause 7 (a).
SALVAGE 22. (a) All salvage moneys earned by Vessel
shall be divided equally between Owner and Charterer
after deducting Master's, Officers' and Crew's share,
legal expenses, hire of Vessel during time lost,
value of fuel consumed, repairs of damage, if any,
and any other extraordinary loss or expense sustained
as a result of salvage service.
(b) If a salving ship is owned or operated by
Owner, salvage shall be paid for as fully as if the
salving Vessel belonged to a stranger. Such deposit
as Owner or Agents may deem sufficient to cover the
estimated contribution of the cargo in General
Average, or salvage or special charges solely in
respect of the cargo, shall, if required, be made by
the Shippers, Consignees or Owners of the cargo to
Owner before delivery of the cargo. In lieu of said
deposit, Charterer may give Owner a written guarantee
to pay any contribution by the cargo or any salvage
or special charges thereon, as may ultimately be
required to be paid by the Shippers, Consignees or
Owners of the cargo.
MISCELLANEOUS 23. (a) Charterer may fly its house flag and
CLAUSES paint Vessel's funnel with its own colors or affix
thereto Charterer's stack insignia, if desired, at
Charterer's expense and time.
(b) Owner at its expense, throughout the
period of this Charter, shall have Vessel fully
entered in a Protection and Indemnity Association or
Club, in good standing, in both Protection and
Indemnity classes.
CHANGES OF 24. (a) Owner's rights and obligations under this
OWNERSHIP, Charter are not transferable by either sale or
ASSIGNMENT assignment, without Charterer's consent. ln the
event Vessel is so sold without Charterer's consent,
in addition to its other rights and Sub-letting
Charterer may at its absolute discretion, terminate
the Charter whereupon Owner shall immediately
reimburse Charterer for any and hire paid in advance
and not earned, the cost of bunkers, and any other
sums to which Charterer is entitled under this
Sub-letting Charter as well as damages which Charterer
may sustain.
(b) Charterer may sub-charter or assign this
Charter to another, but Charterer shall remain
responsible for the continued performance hereunder.
NOTICES 25. Any notices which Charterer is required to
give Owner hereunder shall be addressed (i) to Owner
at its place of business first designated in this
Charter or (ii) to Owner's Agent Teekay Shipping
Limited, P.O. Box SS-6293 at Scotiabank Building,
First Floor, Xxxxxx Square, Bay Street, Nassau,
Bahamas. Any notice which Owner is required to give to
Charterer hereunder shall be addressed to Charterer at
x/x Xxxxxx Xxxxxxxx, X.X. Xxx XX-0000, Xxxxxxxxxx
Bldg., 0xx Xxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxx,
Xxxxxxx. Any notices given by letter by either party
shall, irrespective of any provision of law otherwise
applicable, be deemed to have been given when such
notice, addressed to the other party, or to Owner's or
Charterer's Agent, at its place of business designated
in the Charter, is posted.
16
COMMISSION 26. Any Commission which may be payable as a
result of fixing or executing this Charter shall be
for the account of Owner.
LAWS AND 27. (a) All warranties in this Charter are to be
ARBITRATION regarded as essential parts of the Charter, which is
conditional on their truth or performance, so that
their breach entitles the Charterer to terminate the
Charter as well as to recover any damages allowable in
Law, Equity or Admiralty.
(b) The interpretation of this Charter and the
rights and obligations of the parties shall be
governed by the laws applicable to Charter Parties
made in New York. The headings of Clauses set forth
herein are for convenience of reference only and shall
not affect the interpretation of this Charter. No
modification, waiver or discharge of any term in this
Charter shall be valid unless it is reduced to writing
and executed by the party to be charged therewith.
(c) Any and all differences and disputes of
whatsoever nature arising out of this Charter shall be
put to arbitration in New York pursuant to the laws
related to arbitration there in force, before a Board
of three persons, consisting of one (1) arbitrator to
be appointed by Owner, one (1) by Charterer, and one
(1) by the two so chosen. In the event that either
Owner or Charterer shall state a dispute and designate
an arbitrator, in writing, the other party shall have
twenty (20) days, excluding Saturdays, Sundays and
legal holidays to designate his arbitrator failing
which the single arbitrator can render an award
hereunder. The decision of any two (2) of the three
(3) on any point or points shall be final. Until such
time as the arbitrators finally close the Hearings,
either party shall have the right by written notice
served on the arbitrators and on the other party to
specify further disputes or differences under this
Charter for hearing and determination. The arbitrators
may grant any relief, and render an award, which they
or a majority of them, deem just and equitable and
within the scope of the agreement of the parties,
including but not limited to, specific performance.
Awards pursuant to this Clause may include costs,
including a reasonable allowance for attorneys' fees,
and judgments may be entered upon any award made
herein in any court having jurisdiction.
IN WITNESS WHEREOF, the parties have caused
this Charter to be executed in duplicate the day and
year herein first above written. Clauses 28 through
54 as attached are hereby incorporated into this
Charter Party.
WITNESS OWNER EXUMA SPIRIT INC
________________________ By _________________________
WITNESS CHARTERER PALM SHIPPING INC
________________________ By _________________________
17
28. TOVALOP CLAUSE
A. Owner warrants that the Vessel is a participating tanker in
TOVALOP and will so remain during the currency of this Charter
provided, however, that if Owner acquires the right to
withdraw from TOVALOP under Clause Viii thereof nothing herein
shall prevent it from exercising that right provided Owner
notifies Charterer forthwith of its intention to withdraw.
B. Whenever within the meaning of TOVALOP there is a "Threat of
Discharge of Oil" or a "Discharge of Oil" from the Vessel
which threatens to cause or causes "Damage by Pollution",
Charterer or such person or company as Charterer designates
may at its option upon notice by Charterer to Owner or Master
undertake (a) with respect to a threatened discharge of oil,
such pollution damage likely to result from such a discharge,
and (b) with respect to a discharge of oil, such measures as
are reasonably necessary to "Remove" the oil or to prevent or
mitigate pollution damage, unless Owner promptly undertakes
same. Charterer shall keep Owner advised of the nature and
results of any such measures taken by it or its designee and
if time permits of the measures intended to be taken. Any of
the aforementioned measures actually taken by Charterer or its
designee shall be taken on Owner's authority and shall be at
Owner's expense (except to the extent that such escape or
discharge was caused or contributed to by Charterer), provided
that if Owner considers said measures should be discontinued,
Owner shall so notify Charterer and thereafter neither
Charterer nor its designee shall have any right to continue
said measure under the provisions of this clause.
C. Any dispute between Owner and Charterer as to the
reasonableness of the measures undertaken and/or the
expenditure incurred by Charterer hereunder, shall be referred
to arbitration or the competent Court as provided for in this
Charter.
D. The above provisions are not in derogation of such other
rights as Charterer or Owner may have under this Charter, or
may otherwise have or acquire by law or any international
convention.
29. FMC CLAUSE
Owner warrants that during the term of this Charter Party and any
extension thereto it will comply with the U.S. Federal water Pollution
Control Act, as amended, and any amendments or successors to said Act,
and will have secured and will carry onboard the Vessel a current U.S.
Federal Maritime Commission Certificate of Financial Responsibility
(Oil Pollution).
In no case shall Charterer be liable for hire or other expenses during
any time lost as a result of Owner's failure to obtain or maintain the
aforementioned Certificate.
30. U.S. COAST GUARD REGULATION CLAUSE
Owner warrants that during the term of this Charter Party and any
extension thereof, the Vessel will be in full compliance with U.S.
Coast Guard pollution prevention regulation as specifically described
in 33 CFR parts 154, 155, 156, 157, and 164, and any amendments
thereto, or will hold necessary waivers if not in compliance. In no
case shall Charterer be liable for hire or other expenses during any
time lost as a result of noncompliance.
31. IMCO CLAUSE
Owner warrants that during the term of this Charter Party and any
extension thereto Vessel will be in full compliance with: the
requirements of the United States Port and Tanker Safety Act of 1978
and any applicable regulations promulgated thereunder (hereinafter
called "U.S. Regulations"); the International Convention for the
Prevention of Pollution from Ships (MARPOL 1973) and the 1978 Protocol
thereto as applicable; and the International Convention for Safety of
Lives at Sea (SOLAS 1974) and the 1978 Protocol thereto as applicable
(the foregoing conventions and protocols hereinafter in this clause
called "IMCO Regulations"). Owner warrants that the Vessel shall carry
on board certifications of compliance with U.S. Regulations and IMCO
Regulations and any other records or documentations as may be required
by the U.S. Government authorities, Flay State authorities or port and
government authorities for any port within the trading areas described
in Clause 3 (d). Any delays, losses, expenses or damages arising as a
result of failure to comply with this clause shall be for Owner's
account and in no case shall Charterer be liable for hire or other
expenses during any time lost as a result of Vessel's failure to
comply with the foregoing U.S. Regulations and IMCO Regulations and/or
carry On board the necessary certification of compliance.
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32. CAST IRON CLAUSE
Owner warrants that all riser valves and fittings and reducer outboard
of the last fixed rigid support to the Vessel's deck that are used in
the transfer of cargo or ballast will be made of steel or nodular
iron, and that only one steel reducer or spacer will be used between
the Vessel's valve and the loading arm. The fixed rigid support must
be designed to prevent both lateral and vertical movement of the
transfer manifold.
33. IGS CLAUSE
Owner warrants that the Vessel is equipped with an Inert Gas System
which shall be maintained in good working order during the term of
this Charter party and any extension thereto and that the Vessel's
officers and crew shall be trained and experienced in the operation of
the Inert Gas System.
34. CRUDE OIL WASHING CLAUSE
Owner warrants that the Vessel is equipped for Crude Oil Washing and
that the equipment used for Crude Oil Washing shall be maintained in
good working order during the term of this Charter party and any
extension thereto and that the Vessel's officers shall have valid COW
certificates and that Vessel's officers and crew shall be trained and
experience in the operation of the Crude Oil Washing System.
35. ISGOTT CLAUSE
Owner warrants that during the term of this Charter party and any
extension thereto the Vessel shall be equipped and operated in
accordance with the most current applicable recommendations contained
in the International Safety Guide for Oil Tankers and Terminals.
36. CLC CERTIFICATE
Owner warrants to have received and to carry aboard the Vessel a Civil
Liability Convention Certificate to verify financial indemnification
against pollution.
37. SLOW STEAMING CLAUSE
Charterer shall have the right to order the Vessel to proceed at any
speed within the range of the Vessel's capabilities and Charterer
shall not submit speed and/or consumption claims for such periods
during which Vessel is operating at reduced speed in accordance with
Charterers instructions.
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38. SHIP-TO-SHIP TRANSFER CLAUSE
Charterer shall have the right to require Vessel to perform lighterage
operations and/or ship-to-ship transfer operations at anchor or
underweigh at on or off ports of loading and/or discharge or enroute
thereto and such ship-to-ship transfer operations shall be conducted
in accordance with the provisions of the latest ICS/OCIMF Ship-to-Ship
Transfer Guide (petroleum).
39. ELIGIBILITY CLAUSE
Owner warrants that during the term of this Charter party and any
extension thereto the Vessel shall be eligible for trading within the
trading areas described in Clause 3(d) and that the Vessel is not in
any way listed as unacceptable by any major oil company, government or
similar organization nor is she barred from any activity within any
port within the trading areas described in Clause 3(d).
40. EQUIPMENT CLAUSE
Owner warrants that during the term of this Charter Party and any
extension thereto:
1. The Vessel shall meet the Standards for Equipment Employed in
the Mooring of Ships at Single Point Moorings and the
Standards for Oil Tanker Manifolds and Associated Equipment as
contained in the most current OCIMF publications.
2. The Vessel's mooring, loading and discharging equipment and
fittings shall meet the requirements of all major oil
companies (e.g. Chevron, Exxon, Shell and Texaco) and port
authorities.
41. CARGO RETENTION CLAUSE
Charterer shall have the right to deduct from hire any amount withheld
from a Voyage Freight by a sub-charterer pursuant to a cargo retention
clause in a Voyage Charter Party between Charterer and that
subcharterer.
42. TELEX SYSTEM
If not already fitted, Owner shall equip Vessel with telex system of
the Marisat type at the first practical opportunity after delivery
under this Charter Party but not later than three (3) months after
delivery.
43. POLLUTIONS, STRANDINGS, INCIDENTS
Owner warrants that Vessel has had no groundings, strandings,
collisions, pollution incidents and/or other severe accidents within
two years prior to delivery under this Charter Party.
44. SURVEYS
On-hire survey shall be performed in Owner's time, offhire survey
shall be performed in Charterer's time. Costs shall be equally shared
between the two parties.
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45. BUNKERING CLAUSE
Charterer shall have the right to bunker the Vessel at a convenient
port prior to delivery and Owner shall have the right to bunker Vessel
at a convenient port prior to redelivery under this Charter Party. The
cost of any delays and/or other expenses incurred thereby shall be
borne by the party supplying bunkers.
46. REMEASUREMENT CLAUSE
Charterer shall have the option of remeasuring the Vessel to a lower
deadweight tonnage at any time during the term of this Charter Party
and any extension thereto. Time and cost of remeasurement to a lower
deadweight and subsequent remeasurement to original Charter Party
Summer Deadweight shall be for Charter's account and hire shall always
be paid basis Vessel's full Summer Deadweight as described herein.
47. CARGO HEATING CLAUSE
Owner warrants that the Vessel's cargo tanks are fully coiled and that
the Vessel shall be capable at all times of heating and maintaining
cargo at a temperature of at least 135 degrees Fahrenheit.
48. FINAL VOYAGE CLAUSE
Should the Vessel be on her voyage towards the port of redelivery at
the time a payment of hire is due, payment of hire shall be made for
such length of time as Owner and Charterer may agree upon as being the
estimated time necessary to complete the voyage, less any
disbursements made or expected to be made or expenses incurred or
expected to be incurred by Charterer for Owner's account less any
amounts that Charterer otherwise may be permitted to withhold or
deduct under the terms of this Charter, and less the estimated value
of bunker fuel remaining at the termination of the voyage; and when
the Vessel is redelivered, any overpayment shall be refunded by Owner
or underpayment paid by Charterer. Notwithstanding the provisions of
Clause 1 hereof, should the Vessel be upon a voyage at expiry of the
period of this Charter, Charterer shall have the use of the Vessel at
the same rate and conditions for such extended time as may be
necessary for the completion of the round voyage on which she is
engaged until her return to a port of redelivery as provided in this
Charter.
49. XXXX OF LADING/LETTER OF INDEMNITY CLAUSE
In the event, at any time during the term of this Charter Party and
any extension thereto, that Bills of Lading are not available at any
discharge port and/or the actual discharge port is different from the
destination appearing on the Bills of Lading, Owner shall nevertheless
discharge the cargo carried by the Vessel in compliance with
Charterer's instructions upon a consignee nominated by Charterer
presenting reasonable identification to the Master in consideration of
which the following Letter of Indemnity shall be deemed to have been
signed by Charterer and to be in full force and effect on each
occasion when discharged as aforesaid takes place.
(Insert here Owner's P and I Club word of Letter of Indemnity.)
50. COW/CBT CLAUSE
In the event Charterer requires to change the Vessel,s mode from COW
to CBT or vice versa, Charterer shall use its best endeavors to advise
Owner in advance of such change to enable Owner to arrange for class
surveyor promptly. Charterer shall pay any expenses arising from
change of mode including bunker consumption for tank cleaning and
surveyor's fees, hotel expense, cost of travelling, etc., and the
Vessel shall remain on-hire while changing mode.
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51. ITF CLAUSE
Owner warrants that the minimum terms and conditions of employment of
the crew of the Vessel are now or will be prior to delivery of the
Vessel and will remain for the term of this Charter Party and any
extension thereto covered by an ITF Agreement or a bona fide Trade
Union Agreement acceptable to the ITF.
If berthing, unberthing, loading or discharging of the Vessel is
prevented or delayed by or as a consequence of any industrial dispute
arising directly or indirectly from the terms and conditions or
employment of the crew, hire shall cease during the continuance of
such prevention or delay and the Owner shall reimburse the Charterer
for any expense whatsoever caused thereby.
52. ENGLISH LANGUAGE PROFICIENCY CLAUSE
Owner warrants that during the term of this Charter Party and any
extension thereto, the Master, Chief Engineer, Chief Officer, Radio
Officer and any officer designated to be in charge of cargo and/or
bunker fuel and/or ballast handling or mooring operations shall be
proficient in the use of spoken English language and, in addition,
that the Master, Chief Engineer, Chief Officer and Radio Officer shall
be proficient also in written English language.
53. RATE OF HIRE
Charterer shall pay hire at the rate determined, on each Determination
Date (as defined below), in accordance with the following formula:
(A + B + C) / 365
where A, B and C are defined as follows:
A = ((w * x) + y), where w, x, and y are defined follows:
w = the estimated interest rate for the 365 day period
subsequent to the Determination Date.
x = the projected weighted average principal balance of the
Notes outstanding during the 365 day period subsequent to the
Determination Date.
y = the principal repayment requirements during the 365 day
period subsequent to the Determination Date.
B = the budgeted operating expenses for the vessel (excluding
depreciation and amortization) for the 365 day period
subsequent to the Determination Date.
C = the budgeted cost of the next drydocking of the vessel, divided
by the number of years (and fractions thereof) between the
completion of the most recent drydocking of the vessel and the
commencement of that next drydocking.
The Determination Dates shall occur on January 10, 1994 and
annually thereafter. In addition, there shall be a
Determination Date upon the occurrence of any of the following:
a) Principal Repayment
b) The Company's annual operating expense and/or drydock
budgets as calculated above have been revised upwards.
54. COMMISSION CLAUSE
Owner shall pay a commission of one and one-quarter percent (1-1/4%)
on all hires to Teekay Shipping Limited in the Bahamas which
commission shall be deductible from hire as and when paid.
