EXHIBIT 10.2
FORM OF COMMERCIAL MANAGEMENT AGREEMENT
between a vessel-owning subsidiary of the Copany and SCM
ORIGINAL | |||
1. | Date of Agreement | THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) STANDARD SHIP MANAGEMENT AGREEMENT CODE NAME: "SHIPMAN 98" PART I | |
2. | Owners (name, place of registered office and law of registry) (Cl. 1). | 3. | Managers (name, place of registered office and law of registry) (Cl. 1). |
Name | Name Scorpio Commercial Management sam | ||
Place of registered office Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands | Place of registered office 9 Blvd Charles III, MC98000 Monaco | ||
Law of Registry Marshall Islands | Law of Registry Principality of Monaco | ||
4. | Day and year of commencement of Agreement (Cl. 2). December 1, 2009 | ||
5. | Crew Management (state "yes" or "no" as agreed) (Cl. 3. 1). NO | 6. | Technical Management (state "yes" or "no" as agreed) (Cl. 3.2). NO |
7. | Commercial Management (state "yes" or "no" as agreed) (Cl. 3.3). YES | 8. | Insurance Arrangements (state "yes" or "no" as agreed) (Cl. 3.4). NO |
9. | Accounting Services (state "yes" or "no" as agreed) (Cl. 3.5). YES | 10. | Sale or purchase of the Vessel (state "yes" or "no" as agreed) (Cl. 3.6). NO |
11. | Provisions (state "yes" or "no" as agreed) (Cl. 3.7). NO | 12. | Bunkering (state "yes" or "no" as agreed) (Cl. 3.8). YES |
13. | Chartering Services Period (only to be filled in if "yes" stated in Box 7) (Cl. 3.3(i)). YES, up to twelve (12) months | 14. | Owners' insurance (state alternative (i), (ii) or (iii) of (Cl. 6.3)). Alternative 6.3(ii) to apply |
15. | Annual Management Fee (state annual amount) (Cl. 8.1). See clause 8.1 | 16. | Severance costs (state maximum amount) (Cl. 8.4(ii)). N/A |
17. | Day and year of termination of Agreement (Cl. 17). See Cl. 17 | 18. | 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 |
19. | Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Owners) (Cl. 20). c/o Scorpio Ship Management sam 9 blvd. Charles III MC98000 Monaco Phone: +377 97985700 Fax: +977 92057045 email: management@scorpio.mc | 20. | Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Managers)(Cl. 20). 9 blvd. Charles III MC98000 Monaco Phone: +377 97985850 Fax: +377 97985858 email:management@scorpiogroup.net |
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 contented 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.
Signature(s) (Owners) | Signature(s) (Managers) |
This document is a computer generated SHIPMAN 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.
"SHIPMAN 98" STANDARD SHIP MANAGEMENT AGREEMENT
1. Definitions | 1 | insurance, discipline and other requirements; | 63 |
In this Shipman 98 form (together with any Additional Clauses of | 2 | (iii) ensuring that all members of the Crew have passed a medical | 64 |
even date herewith and any Schedules thereto (the | examination with a qualified doctor certifying that they are fit | 65 | |
"Agreement")) save where the context otherwise requires, | for the duties for which they are engaged and are in possession | 66 | |
the following words and expressions shall have the meanings | 3 | of valid medical certificates issued in accordance with | 67 |
hereby assigned to them. | 4 | appropriate flag State requirements, in the absence of | 68 |
applicable flag State requirements the medical certificate shall | 69 | ||
"Owners" means the party identified in Box 2. | 5 | be dated not more than three months prior to the respective | 70 |
"Managers" means the party identified in Box 3. | 6 | Crew members leaving their country of domicile and | 71 |
"Vessel" means the vessel or vessels details of which are set | 7 | maintained for the duration of their service on board the Vessel; | 72 |
out in Annex "A" attached hereto. | 8 | (iv) ensuring that the Crew shall have a command of the English | 73 |
“Crew” means the Master, officers and ratings of the numbers, | 9 | language of a sufficient standard to enable them to perform | 74 |
rank and nationality specified in Annex "B" attached hereto. | 10 | their duties safely; | 75 |
"Crew Support Costs" means all expenses of a general nature | 11 | (v) arranging transportation of the Crew, including repatriation: | 76 |
which are not particularly referable to any Individual vessel for | 12 | (vi) training of the Crew and supervising their efficiency; | 77 |
the time being managed by the Managers and which are incurred | 13 | (vii) conducting union negotiations; | 78 |
by the Managers for the purpose of providing an efficient and | 14 | (viii) operating the Managers' drug and alcohol policy unless | 79 |
economic management service and, without prejudice to the | 15 | otherwise agreed. | 80 |
generality of the foregoing, shall include the cost of crew standby | 16 | ||
pay, training schemes for officers and ratings, cadet training | 17 | 3.2 Technical Management | 81 |
schemes, sick pay, study pay, recruitment and interviews. | 18 | (only applicable if agreed according to Box 6) | 82 |
"Severance Costs" means the costs which the employers are | 19 | The Managers shall provide technical management which | 83 |
legally obliged to pay to or in respect of the Crew as a result of | 20 | Includes, but is not limited to, the following functions: | 84 |
the early termination of any employment contract for service on | 21 | (i) provision of competent personnel to supervise the | 85 |
the Vessel. | 22 | maintenance and general efficiency of the Vessel; | 86 |
"Crew insurances" means insurances against crew risks which | 23 | (ii) arrangement and supervision of dry dockings, repairs, | 87 |
shall Include but not be limited to death, sickness, repatriation, | 24 | alterations and the upkeep of the Vessel to the standards | 88 |
injury, shipwreck unemployment indemnity and loss of personal | 25 | required by the Owners provided that the Managers shall | 89 |
effects. | 26 | be entitled to incur the necessary expenditure to ensure | 90 |
"Management Services" means the services specified in sub- | 27 | that the Vessel will comply with the law of the flag of the | 91 |
clauses 3.1 to 3.8 as indicated affirmatively in Boxes 5 to 12 | 28 | Vessel and of the places where she trades, and all | 92 |
"ISM Code" means the International Management Code for the | 29 | requirements and recommendations of the classification | 93 |
Safe Operation of Ships and for Pollution Prevention as adopted | 30 | Society; | 94 |
by the International Maritime Organization (IMO) by resolution | 31 | (iii) arrangement of the supply of necessary stores, spares and | 95 |
A.741(18) or any subsequent amendment thereto. | 32 | lubricating oil; | 96 |
"STCW 95" moans the International Convention on Standards | 33 | (iv) appointment of surveyors and technical consultants as the | 97 |
of Training, Certification and Watchkeeping for Seafarers, 1978, | 34 | Managers may consider from time to time to be necessary; | 98 |
as amended in 1995 or any subsequent amendment thereto. | 35 | (v) development, implementation and maintenance of a Safely | 99 |
Management System (SMS) in accordance with the ISM | 100 | ||
2. Appointment of Managers | 36 | Code (see sub-clauses 4.2 and 5.3) | 101 |
With effect from the day and year stated in Box 4 and continuing | 37 | ||
unless and until terminated as provided herein, the Owners | 38 | 3.3 Commercial Management | 102 |
hereby appoint the Managers and the Managers hereby agree | 39 | (only applicable if agreed according to Box 7) | 103 |
to act as the Managers of the Vessel in accordance with the | 40 | The Managers shall provide the commercial operation of the | 104 |
provisions and the recitals of this Agreement. | Vessel, as required by the Owners, which includes, but is not | 105 | |
limited to, the following functions: | 106 | ||
3. Basis of Agreement | 41 | (i) providing chartering services in accordance with the Owners' | 107 |
Subject to the terms and conditions herein provided, during the | 42 | instructions which include, but are not limited to, seeking | 108 |
period of this Agreement, the Managers shall carry out | 43 | and negotiating employment for the Vessel and the conclusion | 109 |
Management Services in respect of the Vessel as agents for | 44 | (including the execution thereof) of charter parties or other | 110 |
and on behalf of the Owners. The Managers shall have authority | 45 | contracts relating to the employment of the Vessel. If such a | 111 |
to take such actions as they may from time to time in their absolute | 46 | contract exceeds the period stated in Box 13, consent thereto | 112 |
discretion consider to be necessary to enable them to perform | 47 | in writing shall first be obtained from the Owners. | 113 |
this Agreement In accordance with sound ship management | 48 | (ii) arranging of the proper payment to Owners or their nominees | 114 |
practice. | 49 | of all hire and/or freight revenues or other moneys of | 115 |
whatsoever nature to which Owners may be entitled arising | 116 | ||
3.1 Crew Management | 50 | out of the employment of or otherwise in connection with the | 117 |
(only applicable if agreed according to Box 5) | 51 | Vessel. | 118 |
The Managers shall provide suitably qualified Crew for the Vessel | 52 | (iii) providing voyage estimates and accounts and calculating of | 119 |
as required by the Owners in accordance with the STCW 95 | 53 | hire, freights, demurrage and/or despatch moneys due from | 120 |
requirements, provision of which includes but is not limited to | 54 | or due to the charterers of the Vessel; | 121 |
the following functions. | 55 | (iv) issuing of voyage instructions, Including but not limited to, | 122 |
(i) selecting and engaging the Vessel's Crew, including payroll | 56 | authorizing the Master to release cargo; | |
arrangements, pension administration, and insurances for | 57 | (v) appointing agents; | 123 |
the Crew other than those mentioned in Clause 6; | 58 | (vi) appointing stevedores; | 124 |
(ii) ensuring that the applicable requirements of the law of the | 59 | (vii) arranging surveys associated with the commercial operation | 125 |
flag of the Vessel are satisfied in respect of manning levels. | 60 | of the Vessel. | 126 |
rank, qualification and certification of the Crew and | 61 | ||
employment regulations including Crew's tax, social | 62 | 3.4 Insurance Arrangements' | 127 |
(only applicable if agreed according to Box 8) | 128 |
This document is a computer generated SHIPMAN 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
"SHIPMAN 98" STANDARD SHIP MANAGEMENT AGREEMENT
The Managers shall arrange insurances in accordance with | 129 | responsibilities imposed by the ISM Code when applicable | 192 |
Clause 6, on such terms and conditions as the Owners shall | 130 | ||
have instructed or agreed, in particular regarding conditions, | 131 | ||
insured values, deductibles and franchises. | 132 | 6. Insurance Policies | 193 |
The Owners shall procure, whether by instructing the Managers | 194 | ||
3.5 Accounting Services | 133 | under sub clause 3.4 or otherwise, that throughout the period of | 195 |
(only applicable if agreed according to Box 9) | 134 | this Agreement. | 196 |
The Managers shall: | 135 | 6.1 at the Owners' expense, the Vessel is insured for not less | 197 |
(i) establish an accounting system which meets the | 136 | than her sound market value or entered for her full gross tonnage. | 198 |
requirements of the Owners and will provide for regular | 137 | as the case may be for: | 199 |
accounting | (i) usual hull and machinery marine risks (including crew | 200 | |
services, supply regular monthly reports and records, | 138 | negligence) and excess liabilities; | 201 |
(ii) maintain the records of all costs and expenditure incurred | 139 | (ii) protection and indemnity risks (including pollution risks and | 202 |
as well as data necessary or proper for the settlement of | 140 | Crew Insurances); and | 203 |
accounts between the parties. | 141 | (iii) war risks (including protection and indemnity and crew risks) | 204 |
in accordance with the best practice of prudent owners of | 205 | ||
3.6 Sale or Purchase of the Vessel | 142 | vessels of a similar type to the Vessel, with first class insurance | 206 |
(only applicable if agreed according to Box 10) | 143 | companies, underwriters or associations ("the Owners' | 207 |
The Managers shall, in accordance with the Owners' instructions, | 144 | Insurances"); | 208 |
supervise the sale or purchase of the Vessel, including the | 145 | 6.2 all premiums and calls on the owners' insurances are paid | 209 |
performance of any sale or purchase agreement, but not | 146 | promptly by their due date; | 210 |
negation of the same. | 147 | 6.3 the Owners' Insurances name the Managers and, subject | 211 |
to underwriters' agreement, any third party designated by the | 212 | ||
3.7 Provisions (only applicable if agreed according to Box 11) | 148 | Managers as a joint assured, with full cover, with the Owners | 213 |
The Managers shall arrange for the supply of provisions. | 149 | obtaining cover in respect of each of the insurance specified in | 214 |
sub-clause 6.1; | 215 | ||
3.8 Bunkering (only applicable if agreed according to Box 12) | 150 | (i) on terms whereby the Managers and any such third party | 216 |
The Managers shall arrange for the provision of bunker fuel of the | 151 | are liable in respect of premiums or calls arising in connection | 217 |
quality specified by the Owners as required for the Vessel's trade. | 152 | with the Owners' Insurances; or | 218 |
(ii) if reasonably obtainable, on terms such that neither the | 219 | ||
4. Managers' Obligations | 153 | Managers nor any such third party shall be under any | 220 |
4.1 The Managers undertake to use their best endeavours to | 154 | liability in respect of premiums or calls arising in connection | 221 |
provide the agreed Management Services as agents for and on | 155 | with the Owners' insurances; or | 222 |
behalf of the Owners in accordance with sound ship management | 156 | (iii) on such other terms as may be agreed in writing | 223 |
practice and to protect and promote the interests of the Owners in | 157 | Indicate alternative (i), (ii) or (iii) in Box 14, if Box 14 is left | 224 |
all matters relating to the provision of services hereunder. | 158 | blank then (i) applies. | 225 |
Provided, however, that the Managers in the performance of their | 159 | 6.4 written evidence is provided, to the reasonable satisfaction | 226 |
management responsibilities under this Agreement shall be entitled | 160 | of the Managers, of their compliance with their obligations under | 227 |
to have regard to their overall responsibility in relation to all vessels | 161 | Clause 6 within a reasonable time of the commencement of | 228 |
as may from time to time be entrusted to their management and | 162 | the Agreement, and of each renewal date and, if specifically | 229 |
in particular, but without prejudice to the generality of the foregoing, | 163 | requested, of each payment date of the Owners' Insurances. | 230 |
the Managers shall be entitled to allocate available supplies, | 164 | ||
manpower and services in such manner as in the prevailing | 165 | 7. Income Collected and Expenses Paid on Behalf of Owners | 231 |
circumstances the Managers in their absolute discretion consider | 166 | 7.1 All moneys, if any, collected by the Managers under the terms of | 232 |
to be fair and reasonable. | 167 | this Agreement (other than moneys payable by the Owners to | 233 |
4.2 Where the Managers are providing Technical Management | 168 | the Managers) and any interest thereon shall be held to the | 234 |
in accordance with sub clause 3.2, they shall procure that the | 169 | credit of the Owners in a separate bank account. | 235 |
requirements of the law of the flag of the Vessel are satisfied and | 170 | 7.2 All expenses, if any, incurred by the Managers under the terms | 236 |
rhey shall in particular be deemed to be the "Company" as defined | 171 | of this Agreement on behalf of the Owners (including expenses | 237 |
by the ISM Code, assuming the responsibility for the operation of | 172 | as provided in Clause 8) may be debited against the Owners | 238 |
the Vessel and taking over the duties and responsibilities imposed | 173 | in the account referred to under sub-clause 7.1 but shall in any | 239 |
by the ISM Code when applicable. | 174 | event remain payable by the Owners to the Managers on | 240 |
demand. | 241 | ||
5. Owners' Obligations | 175 | ||
5.1 The Owners shall pay all sums due to the Managers punctually | 176 | 8. Management Fee | 242 |
in accordance with the terms of this Agreement. | 177 | 8.1 When the Vessel is trading in the Scorpio Panamax Tanker | 243 |
5.2 Where the Managers are providing Technical Management | 178 | Pool, the Managers shall be remunerated in accordance with the | |
in accordance with sub clause 3.2, the Owners shall; | 179 | provisions of the governing pool agreement. Otherwise when | |
(i) procure that all officers and ratings supplied by them or on | 180 | the Vessel is not trading in the Pool, The Owners shall pay to the | |
their behalf comply with the requirements of STCW 95; | 181 | Managers for their services. | |
(ii) instruct such officers and ratings to obey all reasonable orders | 182 | as Managers under this Agreement. | 244 |
of the Managers in connection with the operation of the | 183 | (i) an annual flat management | |
Managers' safety management system. | 184 | fee of US$250 per day pro rata as stated in Box 15 which shall be | 245 |
5.3 Where the Managers are not providing Technical Management | 185 | payable by equal | |
in accordance with sub-clause 3.2, the Owners shall procure that | 186 | monthly instalments in advance; and the first installment being | 246 |
the requirements of the law of the flag of the Vessel are satisfied | 187 | payable on the commencement of this Agreement (see Clause | 247 |
and that they, or such other entity as may be appointed by them | 188 | 2 and Box 4) and subsequent installments being payable every | 248 |
and identified to the Managers, shall be deemed to be the | 189 | month. | 249 |
"Company" as defined by the ISM Code assuming the responsibility | 190 | 8.2 The management fee shall be subject to an annual review | 250 |
for the operation of the Vessel end taking over the duties and | 191 | on the anniversary date of the Agreement and the proposed | 251 |
This document is a computer generated SHIPMAN 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
"SHIPMAN 98" STANDARD SHIP MANAGEMENT AGREEMENT
fee shall be presented in the annual budget referred to in sub-clause | 252 | Management Services. | 317 |
9.1 | |||
(ii) for providing chartering services in accordance clause 3.3(i) a | 10. Managers' Right To Sub-Contract | 318 | |
commission of 1.25% on all monies earned by the Owners on each | The managers shall not have the right to sub-contract any of | 319 | |
Vessel fixture. | 253 | their obligations hereunder, including those mentioned in sub- | 320 |
clause 3.1, without the prior written consent of the Owners which | 321 | ||
8.3 The Managers shall, at no extra cost to the Owners, provide | 254 | shall not be unreasonably withheld. In the event of such a sub- | 322 |
their own office accommodation. Office, staff, facilities and | 255 | contract the Managers shall remain fully liable for the due | 323 |
stationery, Without limiting the generality of Clause 7 the Owners | 256 | performance of their obligations under this Agreement. | 324 |
shall reimburse the Managers for postage and communication | 257 | ||
expenses, travelling expenses, and other out of pocket | 258 | 11. Responsibilites | 325 |
expenses properly incurred by the Managers in pursuance of | 259 | 11.1 Force Majeure – Neither the Owners nor the Managers | 326 |
the Management Services. | 260 | shall be under any liability for any failure to perform any of their | 327 |
8.4 In the event of the appointment of the Managers being | 261 | obligations hereunder by reason of any cause whatsoever of | 328 |
terminated by the Owners or the Managers in accordance with | 262 | any nature or kind beyond their reasonable control. | 329 |
the provisions of Clauses 17 and 18 other than by reason of | 263 | 11.2 Liability to Owners - (i) Without prejudice to sub-clause | 330 |
default by the Managers, or if the Vessel is lost, sold or otherwise | 264 | 11.1, the Managers shall be under no liability whatsoever to the | 331 |
disposed of, the "management fee" payable to the Managers | 265 | Owners for any loss, damage, delay or expense of whatsoever | 332 |
according to the provisions of sub-clause 8.1 shall continue to | 266 | nature, whether direct or indirect, (including but not limited to | 333 |
be payable for a further period of three calendar months as | 267 | loss of profit arising out of or in connection with detention of or | 334 |
from the termination date. In addition, provided that the | 268 | delay to the Vessel) and howsoever arising in the course of | 335 |
Managers provide Crew for the Vessel in accordance with sub- | 269 | performance of the Management Services UNLESS same Is | 336 |
Clause 3.1; | 270 | proved to have resulted solely from the negligence, gross | 337 |
(i) the Owners shall continue to pay Crew Support Costs during | 271 | negligence or wilful default of the Managers or their employees, | 338 |
the said further period of three calendar months and | 272 | or agents or sub-contractors employed by them In connection | 339 |
(ii) the Owners shall pay an equitable proportion of any | 273 | with the Vessel, In which case (save where loss, damage, delay | 340 |
Severance Costs which may materialize, not exceeding | 274 | or expense has resulted from the Managers' personal act or | 341 |
The amount stated in Box 16. | 275 | omission committed with the intent to cause same or recklessly | 342 |
8.5 If the Owners decide to lay up the Vessel whilst this | 276 | and with knowledge that such loss, damage, delay or expense | 343 |
Agreement remains in force and such lay up lasts for more | 277 | would probably result) the Managers' liability for each Incident | 344 |
than three months, an appropriate reduction of the management | 278 | or series of incidents giving rise to a claim or claims shall never | 345 |
fee for the period exceeding three months until one month | 279 | exceed a total of ten-five times the annual management fee payable | 346 |
before the Vessel is again put into service shall be mutually | 280 | hereunder. | 347 |
agreed between the parties. | 281 | (ii) Notwithstanding anything that may appear to the contrary in | 348 |
8.6 Unless otherwise agreed in writing all discounts and | 282 | this Agreement, the Manager shall not be liable for any of the | 349 |
commissions obtained by the Managers in the course of the | 283 | actions of the Crew, even if such actions are negligent, grossly | 350 |
management of the Vessel shall be credited to the Owners. | 284 | 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 | ||
9. Budgets and Management of Funds | 285 | their obligations under sub-clause 3.1, in which case their liability | 353 |
9.1 The Managers shall present to the Owners annually a | 286 | shall be limited in accordance with the terms of this Clause 11. | 354 |
budget for the following twelve months in such form as the | 287 | 11.3 indemnity - Except to the extent and solely for the amount | 355 |
Owners require. The budget for the first year hereof is set out | 288 | therein set out that the Managers would be liable under sub- | 356 |
in Annex "C" hereto. Subsequent annual budgets shall be | 289 | clause 11.2, the Owners hereby undertake to keep the Managers | 357 |
prepared by the Managers and submitted to the Owners not | 290 | and their employees, agents and sub-contractors indemnified | 358 |
less than there months before the anniversary date of the | 291 | and to hold them harmless against all actions, proceedings, | 359 |
commencement of this Agreement (see Clause 2 and Box 4), | 292 | claims, demands or liabilities whatsoever or howsoever arising | 360 |
9.2 The Owners shall indicate to the Managers their acceptance | 293 | which may be brought against them or incurred or suffered by | 361 |
and approval of the annual budget within one month of | 294 | them arising out of or in connection with the performance of the | 362 |
presentation and in the absence of any such indication the | 295 | Agreement, and against and in respect of all costs, losses, | 363 |
Managers shall be entitle to assume that the Owners have | 296 | damages and expenses (including legal costs and expenses on | 364 |
accepted the proposed budget. | 297 | a full indemnity basis) which the Managers may suffer or incur | 365 |
9.3 Following the agreement of the budget, the Managers shall | 298 | (either directly or indirectly) in the course of the performance of | 366 |
prepare and present to the Onwers their estimate of the working | 299 | this Agreement. | 367 |
capital requirement of the Vessel and the Managers shall each | 300 | 11.4 "Himalaya" - It is hereby expressly agreed that no | 368 |
month up date this estimate. Based thereon, the Managers shall | 301 | employee or agent of the Managers (including every sub- | 369 |
each month request the Owners in writing for the funds required | 302 | contractor from time to time employed by the Managers) shall in | 370 |
to run the Vessel for the ensuing month, including the payment | 303 | any circumstances whatsoever be under any liability whatsoever | 371 |
of any occasional or extraordinary item of expenditure, such as | 304 | to the Owners for any loss, damage or delay of whatsoever kind | 372 |
emergency repair costs, additional insurance premiums, bunkers | 305 | arising or resulting directly or indirectly from any act, neglect or | 373 |
or provisions. Such funds shall be received by the Managers | 306 | default on his part while acting In the course of or in connection | 374 |
within ten running days after the receipt by the Owners of the | 307 | with his employment and, without prejudice to the generality of | 375 |
Managers' written request and shall be held to the credit of the | 308 | the foregoing provisions in this Clause 11, every exemption, | 376 |
Owners in a separate bank account.. | 309 | limitation, condition and liberty herein contained and every right, | 377 |
9.4 The Managers shall produce a comparison between | 310 | exemption from liability, defense and Immunity of whatsoever | 378 |
budgeted and actual income and expenditure of the Vessel in | 311 | nature applicable to the Managers or to which the Managers are | 379 |
such form as required by the Owners monthly or at such other | 312 | entitled hereunder shall also be available and shall extend to | 380 |
intervals as mutually agreed. | 313 | protect every such employee or agent of the Managers acting | 381 |
9.5 Notwithstanding anything contained herein to the contrary, | 314 | as aforesaid and for the purpose of all the foregoing provisions | 382 |
the Managers shall in no circumstances be required to use or | 315 | of this Clause 11 the Managers are or shall be deemed to be | 383 |
commit their own funds to finance the provision of the | 316 |
This document is a computer generated SHIPMAN 98 form printed by authority cf 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
"SHIPMAN 98" STANDARD SHIP MANAGEMENT AGREEMENT
acting as agent or trustee on behalf of and for the benefit of all | 384 | years from the | |
persons who are or might be their servants or agents from time | 385 | date upon which such notice was given, Clause 18.6 will apply. | 439 |
to time (Including sub-contractors as aforesaid) and all such | 386 | ||
persons shall to this extent be or be deemed to be parties to this | 387 | 18. Termination | 440 |
Agreement. | 388 | 18.1 Owners' default | 441 |
(i) The Managers shall be entitled to terminate the Agreement | 442 | ||
12.Documentation | 389 | with Immediate effect by notice in writing if any moneys | 443 |
Where the Managers are providing Technical Management in | 390 | payable by the Owners under this Agreement and/or the | 444 |
accordance with sub-clause 3.2 and/or Crew Management in | 391 | owners of any associated vessel, details of which are listed | 445 |
accordance with sub-clause 3.1, they shall make available, | 392 | in Annex "D" shall not have been received In the Managers' | 446 |
upon Owners' request, all documentation and records related | 393 | nominated account within ten running days of receipt by | 447 |
to the Safety Management System (SMS) and/or the Crew | 394 | the Owners of the Managers written request or if the Vessel | 448 |
which the Owners need in order to demonstrate compliance | 395 | is repossessed by the Mortgagees. | 449 |
with the ISM Code and STCW 95 or to defend a claim against | 396 | (ii) If the Owners: | 450 |
a third party. | 397 | (a) fail to meet their obligations under sub-clauses 5.2 | 451 |
and 5.3 of this Agreement for any reason within their | 452 | ||
13. General Administration | 398 | control, of | 453 |
13.1 The Managers shall handle and settle all claims arising | 399 | (b) proceed with the employment of or continue to employ | 454 |
out of the Management Services hereunder and keep the Owners | 400 | the Vessel In the carriage of contraband, blockade | 455 |
informed regarding any incident of which the Managers become | 401 | running, or in an unlawful trade, or on a voyage which | 456 |
aware which gives or may give rise to claims or disputes involving | 402 | in the reasonable opinion of the Managers is unduly | 457 |
third parties and Indlvitually are reasonably estimated to be In | 403 | hazardous or improper, | 458 |
excess of US$15,000. | the Managers may give notice of the default to the Owners, | 459 | |
13.2 The Managers shall, as instructed by the Owners, bring | 404 | requiring them to remedy It as soon as practically possible. | 460 |
or defend-actions, suits or proceedings in connection with matters | 405 | In the event that the Owners fail to remedy It within a | 461 |
entrusted to the Managers according to this Agreement and subject | 406 | reasonable time to the satisfaction of the Managers, the | 462 |
to the provisions of clause 13.1 hereto. | Managers shall be entitled to terminate the Agreement | 463 | |
13.3 The Managers shall also have power to obtain legal or | 407 | with Immediate effect by notice In writing, | 464 |
technical or other outside expert advice in relation to the handling | 408 | 18.2 Managers' Default | 465 |
and settlement of claims and disputes or all other matters | 409 | (i) If the Managers fail to meet their obligations under Clauses 3 | 466 |
affecting the interests of the Owners In respect of the Vessel, save | 410 | and 4 of this Agreement for any reason within the control of the | 467 |
Managers should obtain Owners approval prior to taking any | Managers, the Owners may give notice to the Managers of the | 468 | |
action If time permits. | default, requiring them to remedy It as soon as practically | 469 | |
13.4 The Owners shall arrange for the provision of any | 411 | possible. In the event that the Managers fail to remedy it within a | 470 |
necessary guarantee bond or other security. | 412 | reasonable time to the satisfaction of the Owners, the Owners | 471 |
13.5 Any costs reasonably incurred by the Managers in | 413 | shall be entitled to terminate the Agreement with immediate affect | 472 |
carrying out their obligations according to Clause 13 shall be | 414 | by notice in writing. | 473 |
reimbursed by the Owners. | 415 | (ii) if the Managers are convicted of, or admits guilt for, a crime, | |
then the Owners shall be entitled to terminate the Agreement | |||
14. Auditing | 416 | with Immediate effect by notice in writing. | |
The Managers shall at all times maintain and keep true and | 417 | 18.3 Extraordinary Termination | 474 |
correct accounts and shall make the same available for inspection | 418 | This Agreement shall be deemed to be terminated in the case of | 475 |
and auditing by the Owners at such times as may he mutually | 419 | the sale of the Vessel or if the-Vessel becomes a total loss or is | 476 |
agreed. On the termination, for whatever reasons, of this | 420 | declared as a constructive or compromised or arranged total | 477 |
Agreement, the Managers shall release to the Owners, if so | 421 | loss or is requisitioned. | 478 |
requested, the originals where possible, or otherwise certified | 422 | 18.4 For the purpose of sub-clause 18.3 hereof | 479 |
copies, of all such accounts and all documents specifically relating | 423 | (I) the date upon which the Vessel is to be treated as having | 480 |
to the Vessel and her operation. | 424 | been sold or otherwise disposed of shall be the date on | 481 |
which the Owners cease to be registered as Owners of | 482 | ||
15. Inspection of Vessel | 425 | the Vessel; | 483 |
The Owners shall have the right at any time after giving | 426 | (ii) The Vessel shall not be deemed to be lost unless either | 484 |
reasonable notice to the Managers to inspect the Vessel for any | 427 | she has become an actual total loss or agreement has | 485 |
reason they consider necessary. | 428 | been reached with her underwriters in respect of her | 486 |
constructive, compromised or arranged total loss or if such | 487 | ||
16. Compliance with Laws and Regulations | 429 | agreement with her underwriters is not reached it is | 488 |
The Managers will not do or permit to be done anything which | 430 | adjudged by a competent tribunal that a constructive loss | 489 |
might cause any breach or infringement of the laws and | 431 | of the Vessel has occurred. | 490 |
regulations of the Vessel's flag, or of the places where she trades. | 432 | 18.5 This Agreement shall terminate forthwith in the event of | 491 |
an order being made or resolution passed for the winding up | 492 | ||
17. Duration of the Agreement | 433 | dissolution, liquidation or bankruptcy of either party (otherwise | 493 |
This Agreement shall come into effect on the day and year stated | 434 | than for the purpose of reconstruction or amalgamation) or if a | 494 |
in Box 4 and shall remain in force and effect (unless earlier | 435 | receiver is appointed, or if it suspends payment, ceases to carry | 495 |
terminated in accordance with the terms of clause 18) for a | on business or makes any special arrangement or composition | 496 | |
minimum period of three (3) calendar years and thereafter shall | with its creditors, | 497 | |
continue indefinitely unless terminated in accordance with the | 18.6 The termination of this Agreement egad be without | 498 | |
provision hereof, continue until the date stated in Box 17 | prejudice to all rights accrued due between the parties prior to | 499 | |
Thereafter it shall continue until terminated by Upon the expiration | 436 | the date of termination. | 500 |
of the first calendar year either party giving may give | |||
to the other notice of termination in writing. In which event the | 437 | 19. Law and Arbitration | 501 |
Agreement shall | 19.1 This Agreement shall be governed by and construed in | 502 | |
terminate upon the expiration of a period of two months (2) calendar | 438 |
This document is a computer generated SHIPMAN 98 form printed by authority cf 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
"SHIPMAN 98" STANDARD SHIP MANAGEMENT AGREEMENT
accordance with English law and any dispute arising out of or | 503 | by each of the parties hereto, and the third by the two so | 541 |
in connection with this Agreement shall be referred to arbitration | 504 | chosen; their decision or that of any two of them shall be | 542 |
in London in accordance with the Arbitration Act 1996 or | 505 | final, and for the purposes of enforcing any award | 543 |
any statutory modification or re-enactment thereof save to | 506 | judgement may be entered on an award by any court of | 544 |
the extent necessary to give effect to the provisions of this | 507 | competent jurisdiction. The proceedings shall be conducted | 545 |
Clause. | 508 | in accordance with the rules of the Society of Maritime | 546 |
The arbitration shall be conducted in accordance with the | 509 | Arbitrators, Inc. | 547 |
London Maritime Arbitrators Association (LMAA) Terms | 510 | In cases where neither the claim nor any counterclaim | 548 |
current at the time when the arbitration proceedings are | 511 | exceeds the sum of USD60,000 ( or such other sum as the | 549 |
commenced. | 512 | parties may agree) the arbitration shall be conducted in | 550 |
The reference shall be to three arbitrators. A party wishing | 513 | accordance with the Shortened Arbitration Procedure of the | 551 |
to refer a dispute to arbitration shall appoint its arbitrator | 514 | Society of Maritime Arbitrators, Inc. current at the time when | 552 |
and send notice of such appointment In writing to the other | 515 | the arbitration proceedings are commenced. | 553 |
party requiring the other party to appoint its own arbitrator | 516 | 19.3 This Agreement shall be governed by and construed | 554 |
within 14 calendar days of that notice and stating that it will | 517 | in accordance with the laws of the place mutually agreed by | 555 |
appoint its arbitrator as sole arbitrator unless the other party | 518 | the parties and any dispute arising out of or in connection | 556 |
Appoints it own arbitrator and gives notice that it has done | 519 | with this Agreement shall be referred to arbitration at a | 557 |
so within the 14 days specified. If the other party does not | 520 | mutually agreed place, subject to the procedures applicable | 558 |
appoint Its own arbitrator and give notice that it has done so | 521 | there. | 559 |
within the 14 days specified, the party referring a dispute to | 522 | 19.4 If Box 18 in Part I is not appropriately filled in sub- | 560 |
arbitration may, without the requirement of any further prior | 523 | clause 19.1 of this Clause shall apply. | 561 |
notice to the other party, appoint its arbitrator as sole | 524 | ||
arbitrator and shall advise the other party accordingly. The | 525 | Note: 19.1, 19.2 and 19.3 are alternatives; indicate | 562 |
award of a sole arbitrator shall be binding on both parties | 526 | alternative agreed in Box 18. | 563 |
as If he had been appointed by agreement. | 527 | ||
Nothing herein shall prevent the parties agreeing in writing | 528 | 20. Notices | 564 |
to vary these provisions to provide for the appointment of a | 529 | 20.1 Any notice to be given by either party to the other | 565 |
sole arbitrator. | 530 | party shall be In writing and may be sent by fax, telex, | 566 |
In cases where neither the claim nor any counterclaim | 531 | registered or recorded ma) or by personal service. | 567 |
exceeds the sum of USD50,000 (or such other sum as the | 532 | 20.2 The address of the Parties for service of such | 568 |
parties may agree) the arbitration shall be conducted in | 533 | communication shall be as slated In Boxes 19 and 20, | 569 |
accordance with the LMAA Small Claims Procedure current | 534 | respectively. | 570 |
at the time when the arbitration proceedings are commenced. | 535 | ||
19.2 This Agreement shall be governed by and construed | 536 | Any Additional Clauses attached hereto together with any | |
In accordance with title 9 of the United States Code and | 537 | subsequent addenda, schedules, appendleles or otherwise, shall | |
The Maritime Law of the United States and any dispute | 538 | be construed as an integral part of this Agreement and shall be | |
arising out of or in connection with this Agreement shall be | 539 | interpreted accordingly. | |
referred to three persons at New York, one to be appointed | 540 | ||
This document is a computer generated SHIPMAN 98 form printed by authority cf 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.