CONTRACT OF AFFREIGHTMENT
entered into this 27th day of August, 2007
Between
VOYAGEUR MARINE TRANSPORT LIMITED
of 171 of Metler Rd. RR1, Ridgeville, Ontario, Canada, L0S 1M0
And
VOYAGEUR MARITIME TRADER INC.
of 171 of Metler Rd. RR1, Ridgeville, Ontario, Canada, L0S 1M0
(hereinafter the "Owners")
And
LOWER LAKES TOWING LTD.
of P.O Box 1149, 517 Main Street, Port Dover, Ontario, Canada, N0A 1N0,
(hereinafter the "Charterers")
WITNESSETH:
In consideration of the mutual promises contained herein, and subject to the
conditions and provisions hereinafter set forth, the parties agree as follows:
1. Contract Vessel:
Owners shall employ the "Maritime Trader" the details of which are
detailed in Schedule 1 for service under this Contract of Affreightment
("COA").
2. Term of COA:
The term of this Agreement shall begin on August 27, 2007 for the
transportation provided herein and terminate on December 31, 2011.
Thereafter, this agreement shall be renewed from year to year, unless the
Charterers provide Owners with a Cancellation Notice within six (6) months
of the end of the then current term.
3. Navigation Season:
Cargoes shall be shipped during the navigation season between April 15th
and December 20th. Cargoes shipped outside the navigation season between
December 20th and April 15th must be mutually agreed upon. Any late season
charges that Charterers obtain from its customer in this respect shall be
passed upon Owners.
4. Quantity/Number of Voyages:
From and after the date hereof, Charterers will have the sole and
exclusive right to use and employ the Vessel as Charterters, in their sole
discretion, may decide, subject to the provisions herein.
Owners acknowledge that the purpose of this COA is to provide Charterers
with additional tonnage to enable Charterers to service the contracts they
have entered or will enter with their various customers (the "Customer
Contracts"), in particular, but not exclusively, with Cargill Limited,
Bunge North America, Inc., ADM Agri-Industries Company and James
Richardson International Limited ("JRI"). In particular, Owners
acknowledge that it is the intention of Charterers to use the Vessel
primarily to service contract with JRI (the "JRI Contract") as same may be
amended from time to time.
During this Agreement, Charterers shall endeavour to provide for
transportation and Owners shall transport in each Navigation Year the
following quantities between various ports in the Great Lakes and the St.
Lawrence River ports:
2007 1st Navigation Season August 27 to December 20, 2007 -
approx. 300,000 metric tonnes
2008 2nd Navigation Season April 1 to December 20, 2008 - approx.
500,000 metric tonnes
2009 3rd Navigation Season April 1 to December 20, 2009 - approx.
500,000 metric tonnes
2010 4th Navigation Season April 1 to December 20, 2010 - approx.
500,000 metric tonnes +
2011 5th Navigation Season April 1 to December 20, 2011 - approx.
500,000 metric tonnes
The above quantities are estimates only and Charterers do not warrant
same. If JRI or some other customer fails to provide the quantity of cargo
it is committed to pursuant to its Customer Contract, Charterers shall
claim from the latter the cancellation fees agreed upon, if such fees have
been agreed, in which case, any such fees thereby collected shall be
passed on to Owners. The foregoing shall constitute the extent of any
obligation of Charterers to Owners, in case, the quantity carried for a
navigation season is less than the estimates provided herein and in no
event should Charterers be obliged to pay dead-freight or other
compensation for the failure to provide owners with the estimated
quantity.
5. Indemnity:
Owners agrees to indemnify, save and hold Charterers, free and harmless
from and against any and all claims, demands, liabilities, damages,
losses, judgments, awards, causes of action at law or in equity, including
reasonable attorney's fees, for death of or injury to persons or loss of
damage to property, by whomever owned or incurred, arising out of Owners'
performance of, or any breach of any term in, this Agreement.
Charterers agrees to indemnify, save and hold Owners free and harmless
from and against any and all claims, demands, liabilities, damages,
losses, judgments, awards, causes of action at law or inequity, including
reasonable attorney's fees, for death of or injury to persons or loss of
or damage to property, by whomever owned or incurred, arising out of any
breach by Charterers of any term in this Agreement.
Notwithstanding the foregoing, in no event will either party be liable to
the other for any incidental, consequential or special damages.
6. Load Port:
Charterers shall provide one safe berth at any ports located in the Great
Lakes or in the St. Lawrence River or at any other ports as may be agreed
upon by the parties, where cargo is to be loaded as per Charterers'
directions. Whenever possible, Charterers agree to provide the maximum
cargo that the vessel is able to lift at the applicable load line.
7. Discharge Ports:
Cargoes shall be discharged at Charterers' direction in a safe berth at a
port located in the Great Lakes or the St. Lawrence River one or at any
other ports as may be agreed upon by the parties.
8. Cargo:
(a) Charterers shall be at liberty to carry lawful cargoes in bulk,
excluding any goods of a dangerous, injurious, flammable or
corrosive nature unless carried in accordance with the requirements
or recommendations of the competent authorities of the country of
the Vessel's registry and of the ports of shipment and discharge and
of any intermediate countries or ports through whose waters the
Vessel must pass.
Owners agree not to assert any liens on Charterers' cargo.
(b) Charterers shall have the right to ship parcels of different
qualities and/or for different receivers in separate holds within
the Vessel's natural segregation and suitable for her trim provided
that such parcels can be loaded, carried and discharged without
affecting the Vessel's seaworthiness.
9. Determination of Cargo Quantity:
Cargo weight shall be determined at the Loading Port by the loader scale
weights and such weight shall be recorded on the Bill of Lading for each
shipment. If the scale weight is disputed, the parties shall employ an
independent surveyor, cost to be shared equally, to establish the correct
Cargo weight. Cargo weight determined by the surveyor will be final and
binding on both parties. All time used for third party survey shall not
count as laytime.
10. Shipment Schedule:
Charterers shall endeavor to provide cargoes fairly evenly spread
throughout the year. Charterers and Owners will work closely to coordinate
cargo shipments. At the start of each Navigation Season, Charterers shall
provide Owners with a tentative vessel schedule for the coming Navigation
Season. Charterers and Owners shall thereafter work closely together
regarding scheduling. The tentative schedule shall be considered a good
faith estimate only and may be changed from time to time in the reasonable
discretion of Charterers.
Throughout the navigation season, Master shall each day, prior to 0730
hours,complete and provide Charterers with a morning report substantially
in the form set out in Schedule 2.
11. Voyage:
The Vessel shall carry the cargo with due dispatch to the port(s)/berth(s)
of discharge designated by Charterers.
Within 48 hours of the completion of a voyage, Master shall complete and
provide Charterers with a trip summary report in the form and manner set
out in Schedule 3.
12. Loading and Discharge:
(a) Owners or the Master shall in due time prior to commencement of
loading submit to Charterers or their nominees at the loading port,
a loading plan which shall be based on a reasonable number of
shiftings between hatches and also meet applicable rules and
regulations, including IMO Code(s). Charterers shall inform
Owners/Master of any special composition of cargo required in
sufficient time to permit Owners/Master to work out and submit such
loading plan.
(b) Prior to loading, the Vessel's holds shall be adequately cleaned for
loading the contracted cargo.
(c) Charterers shall load and spout-trim the cargo as per the loading
plan, free of any risk, liability and expenses to the Vessel. Any
extra trimming and/or leveling required by the Master or Owners
shall be performed at Owners' expenses and any time lost thereby
shall not count as lay time/demurrage. Discharging, including shovel
cleaning, shall be effected by Charterers free of any risk,
liability and expense to the Vessel.
(d) The Vessel shall, at her own risk and expense, open and close
hatches prior to and after loading/discharging and also during
loading/discharging as may be required by Charterers to protect the
cargo, provided local shore regulations permit. If same, however, is
not permitted by local shore labour regulations, shore labour is to
be employed by Charterers at their risk, liability and expense. The
Vessel shall furnish and give free use of sufficient light for deck
and holds, as on board.
(e) In the event of loading/discharging being impossible due to
inefficiency or any other cause attributable to the Vessel, her
Master, her crew or Owners and such impossibility continuing for
more than three consecutive hours, Charterers shall have the right
to order the Vessel to vacate the bert and shifting from and back
the berth shall be at Owners' expense and time.
13. Freight Rates:
Freight payable under this COA for any given voyage shall depend on the
freight rate agreed upon with the particular customer under the applicable
Customer Contract. Accordingly, the applicable freight rate payable to
Owner for any given voyage shall be equal to the freight rate payable by
the customer to Charterers under the applicable Customer Contract minus
$0.10/MT.
Concomitantly with the execution of this Agreement, Charterers, subject to
the confidentiality terms set out hereunder (such terms to be supplemented
by a confidentiality agreement to be executed by the parties), shall
provide a copy of each of the Customer Contracts that are to be serviced,
in whole or in part, with the Vessel pursuant to the terms of the present
Agreement. In addition, Charterers shall provide a copy of any new
Customers Contracts entered into after the date hereof, that are to be
serviced, in whole or in part, with the Vessel.
Owners shall not use the Customer Contracts nor the information contained
therein (collectively the "Confidential Information") for any other
purposes than the present Agreement and they shall not disclose to any
person or entity other than Owners' representatives any portion of such
Confidential Information and only to the extent that is necessary under
the present Agreement.
14. Fuel Adjustment of Freight Rates:
Unless otherwise provided for under the terms of the relevant Customer
Contract, the freight rate set forth in clause 10 may be adjusted
throughout the Contract term. For this purpose, the rates shall be
comprised of the following components. The vessel component shall
represent eighty (80%) percent of the base freight rate and fuel component
shall represent twenty (20%) percent of the base freight. The fuel
component will remain a fixed amount representing 20% of the 2007 base
freight rate for the duration of the agreement.
The Fuel Component is based on the Posted Purchase Price of MDO per metric
tonne at Windsor, Ontario on first day of each calendar month. If the
Posted Purchase Price of MDO at Windsor is greater than or less than
$800.00 Cdn./MT, the Fuel Component shall be adjusted up or down by and
coincident with any increase or decrease in such posted purchase price.
The Fuel Component set forth is based upon a net purchase cost of eight
hundred ($800) dollars per metric tonne. Attached as Appendix "A" is an
agreed example of the manner in which the fuel component will be adjusted.
15. Additional Charges:
In addition to the freight payable in accordance with Clause 10 and 11
hereof, Charterers shall reimburse Owners for all taxes other than income
taxes and charges assessed against the vessel, charges, tolls, fees, and
tariffs of whatsoever nature assessed against the cargo, including without
limitation applicable tolls imposed by the St. Lawrence Seaway Authority,
during the term of this Contract while engaged in the Charterers trades by
any federal, state or local government or agency of government, provided
such taxes, charges, tolls, fees or tariffs are payable by the customer
under the terms of the applicable Customer Contract.
16. Laytime and Demurrage/Despatch
Charterers will make the designated dock at the loading port available for
the vessel to load upon arrival. Laytime and demurrage/dispatch to be
calculated as per the applicable Customer Contract. The demurrage rate
shall be $950 CDN per hour or part thereof. Despatch shall be payable at a
rate of $475 CDN per hour or part thereof. .
17. Marine Services Fee:
Unless otherwise provided for under the terms of the relevant Customer
Contract, the marine services fee is in addition to stated freight rates
and will be noted on all invoices and calculated from the following
formula: $0.007 per loaded kilometer per metric tonne (or current
applicable fee at time of loading). Attached as Appendix "B" is an agreed
example of the manner in which the Marine Services Fee will be calculated.
18. Vessel
(a) Owners shall exercise due diligence:
i. before and at the beginning of the loaded voyage to make the
Vessel seaworthy and in every way fit for the voyage and for
the trade for which the Vessel is employed;
ii. throughout the currency of this COA to ensure that the Vessel
and her Master and crew comply with all safety, health and
other applicable laws and regulations of Canada and of the
places where she trades necessary to secure the safe and
unhindered loading of the cargo, performance of the voyage and
discharging of the cargo.
(b) Owners shall carry and, on request, provide supporting evidence
thereof:
i. Workers' Compensation and Longshore and Harbor Workers
insurance as required by statute;
ii. Employer's Liability in an amount not less than $1,000,000 per
occurrence.
(c) Owners shall operate the Vessel in accordance with all applicable
law, regulations, in force in Canada and at the place where the
Vessel load or discharge a cargo.
(d) The Vessel shall be and Owners shall provide, on request, supporting
evidence :
i. classed as stated in Schedule 1 and Owners warrant that this
class shall be maintained throughout the currency of this COA;
ii. fully insured in respect of loss of or damage to the cargo by
a Protection and Indemnity Club or liability underwriter;
iii. insured for Hull and Machinery and basic War Risks purposes;
iv. Pollution Insurance in amounts required by statute, no less
than Water Quality Insurance Syndicate ("WQIS") terms and
conditions;
v. suitable for mechanical loading of the cargo
19. Bill of Lading:
Bill of lading, as between the parties, is to act as receipt only.
20. Payment Method and Terms:
Unless otherwise provided for under the terms of the applicable Customer
Contract, Charterers shall pay freight on the bill of lading quantity
within five (5) days of loading. Charterers shall pay all other charges
within five (5) days of invoicing. The payment of freight and other
charges shall be directed to Voyageur Marine Transport Limited and made by
cheque or bank transfer in Canadian dollars at the following bank account:
SWIFT BIC: CUCXCATTONTCredit Union Central of Ontario
2810 Matheson Blvd, East
Mississauga, Ontario, Canada
MCU (Fonthill) Transit: 837-62002
Meridian Credit Union
1401 Pelham Street
Fonthill, Ontario, Canada
Acc. No.: 6084511 (chequing)
21. Set-off:
Charterer shall have the right to set-off any amount payable under this
COA with any amounts due by Owners, whether pursuant to this COA or any
other agreement between the parties.
22. Force Majeure:
Neither Party shall be held responsible or liable, either directly or
indirectly, or be deemed in default or breach of this Contact for
(hereinafter "Force Majeure" or "Force Majeure Event") any loss, damage,
detention, delay, failure or inability to meet any of its commitments
hereunder caused by or arising from any cause whether foreseeable or
unforeseeable which is unavoidable or beyond its reasonable control,
including without limitation, war, Act of God, hostilities, invasion,
insurrection, riot, action taken or the order of any competent civil or
military Government, or any State of local Government, explosion, fire,
strikes, lockouts, labor disputes, perils of the sea and other waters,
dangers of navigation, ice, storms or other adverse weather conditions, or
other causes of a similar or dissimilar nature which wholly or partially
prevent the Parties or either of them from carrying out the terms of this
Contract (other than for the payment of monies already earned hereunder);
provided that the Party experiencing such Force Majeure promptly gives to
the other Party written notice of the nature of such Force Majeure and
that the disabling effect of such Force Majeure shall be eliminated as
soon as possible and to the extent reasonably possible and that either
Party shall have the right, in its sole discretion, to determine and
settle any strike, lockout or labor dispute in which that Party may be
involved. Without limiting the scope of the preceding sentence, any delay
in discharging the Vessel or inability to discharge the Vessel at a
discharge port due to a labor dispute involving the stevedores at such
port, including, but not limited to, a dispute involving a claim by such
stevedores of the right to operate the Vessel during such unloading
operations and the refusal of LLT to allow such Vessel operations by such
stevedores, shall constitute a Force Majeure Event.
In the event that one Party's performance is suspended by Force Majeure,
the other Party's obligations to perform hereunder shall be suspended for
the duration of the Force Majeure and for such additional reasonable
period as may be required because of the existence of the Force Majeure.
23. Hague-Visby Rules:
This COA shall be subject to the provisions of Part 5 of the Marine
Liability Act of Canada and the Hague-Visby Rules contained in Schedule 3
thereto as applied by such Act.
24. Liberty Clause:
The vessel shall have liberty to tow and to be towed and to assist vessels
under all conditions; to deviate for the purpose of making necessary
repairs, taking on fuel, ship's supplies or equipment, loading,
discharging cargo, crew, passengers or other persons having business with
the vessel' and any such deviation shall conclusively be deemed reasonable
and within the contemplation of the parties hereto and part of the
contract voyage; save that in connection with a deviation for the purpose
of loading or discharging cargo there shall be no unreasonable delay.
25. General Average:
General Average shall be adjusted, stated and settled in Toronto,
according to York-Antwerp Rules 1994, or any subsequent modification
thereof.
26. New Jason 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 consequence of which, 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 vessel is owned or operated by the Carrier, salvage shall be
paid for as fully as if the said salving vessel or vessels belonged to
strangers. Such deposit as the Carrier, or his agent, 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.
27. Both-to-Blame Collision Clause:
If the Vessel comes into collision with another vessel as a result of the
negligence of the other vessel 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
will indemnify the Carrier against all loss or liability to the other or
non-carrying vessel or her owners in so far as such loss or liability
represents loss of, or damage to, or any claim whatsoever of the owners of
the said cargo, paid or payable by the other or non-carrying vessel or her
owners to the owners of the said cargo and set-off, recouped or recovered
by the other or non-carrying vessel or her owners as part of their claim
against the carrying vessel or the Carrier.
28. COFR:
Owners warrant to have secured and carry on board the Vessel a US Coast
Guard Certificate of Financial Responsibility as required under the US
Water Quality Act of 1970 and amendments thereto. Owners also warrant to
have secured current certificates for other countries where similar
guarantees are required. In no case shall Charterers be liable for any
damages as a result of non-compliance with present or future Water
Pollution legislation enacted by individual US States or other countries.
Time lost as a result of non-compliance not to count as lay-time/demurrage
and Owners to hold Charterers harmless against any consequential loss,
damage or expense resulting from such non-compliance.
29. Automated Manifest System (AMS):
If the Vessel loads or carries Cargo destined for the United States or
passing through a port or ports in the United States in transit, the
Owners shall comply with the then-current United States Customs
regulations (19 CFR 4.7) and shall undertake the role of carrier for the
purposes of such regulations and shall, in its own name:
i. have in place a SCAC (Standard Carrier Alpha Code);
ii. have in place an ICB (International Carrier Bond; and
iii. submit a cargo declaration by AMS (Automated Manifest System)
to the United States Customs.
The Charterers shall provide all necessary information to the Owners in a
timely manner to enable the Owners to submit a timely and accurate
declaration with respect to the Cargo, provided that they be supplied with
a list of the required information at least five (5) business days prior
to being required to supply Owners with same.
The Owners and the Charterers shall be liable for and shall indemnify,
defend and hold the other Party and their agents harmless against any and
all costs, duties, penalties, fines, claims, fees, charges, whatsoever,
and/or any loss and/or damage whatsoever, including reasonable attorney's
fees, related to or arising from the their failure to comply with any of
their obligations under this Clause.
In addition to the foregoing, in the event such failure results in any
delay to a Vessel, notwithstanding anything contained herein to the
contrary, all time used or lost shall be for the Party in default's
account.
30. ISPS Code:
(a) (i) From the date of coming into force of the International Ship &
Port Facility Security Code ("ISPS Code") and the relevant
amendments to the Marine Transportation Security regulations, Owners
shall procure that the Vessel and "the Company" (as defined by the
ISPS Code) shall comply with the requirements of the ISPS Code
relating to the Vessel and "the Company". Upon request Owners shall
provide a copy of the relevant Ship Security Certificate as required
by the Maritime Transport Security Regulations to Charterers. Owners
shall provide Charterers with the full style contact details of the
Company Security Officer (CSO).
(ii) Except as otherwise provided in this Agreement, loss, damage,
expense or delay excluding consequential loss, caused by the failure
of Owners or "the Company" to comply with the requirements of the
ISPS Code shall be for Owners' account.
(b) (i) Charterers shall provide the CSO and the Ship Security Officer
(SSO) or Master and, where sub-letting is permitted under the terms
of this Charter Party, shall ensure the contact details of all
sub-charterers are likewise provided to the CSO and the SSO/Master.
Further more, the Charterers shall ensure that all sub-charter
parties they enter into during the period of this Charter Party
contain the following provisions:
"The Charterers shall provide the Owners with their full style
contact details and, where sub-letting is permitted under the terms
of the charter party, shall ensure that the contact details of all
sub-charterers are likewise provided to the Owners"
(ii) Except as otherwise provided in this Agreement, loss, damage,
expense or delay, excluding consequential loss, caused by failure on
the part of Charterers to comply with this Clause shall be for
Charterers' account.
(c) Notwithstanding anything to the contrary provided in this Charter
Party, all delay costs or expenses whatsoever arising out of or
related to security, regulations or measures required by a port
facility or any relevant authority in accordance with the ISPS Code
including, but not limited to, security guards, launch services, tug
escorts, port security fees or taxes and inspections, shall be for
Charterer's account, unless such costs or expenses result solely
from Owners' negligence. All measures required by Owners to comply
with the Ship Security Plan shall be for Owners' account.
(d) If either party makes any payment which is for the other party's
account according to this Clause, the other party shall on demand
indemnify the paying party.
31. Covenant Not to Compete.
Owners and each of the Intervenors severally agree that from and after the date
hereof until the end of this COA, neither Owners nor any Intervenor will,
directly or indirectly, anywhere in the Great Lakes area (in the United States
or in Canada), at any relevant time:
(a) own, manage, operate, join, control, be employed by, render services
to, or participate in the ownership, management, operation or
control of or serve as advisor or consultant to, or otherwise be
connected with in any manner, whether as an officer, director,
employee, partner, investor or otherwise, in a business entity or
undertaking which is engaged in any business that is the same or
similar to or competitive with the business of Charterers; or
(b) solicit or induce any employee of Charterers to leave his or her
employment with Charterers; or
(c) solicit or request orders of services which are competitive with any
services provided by Charterers from any person or entity which is a
customer of Charterers.
Nothing contained in this COA shall be deemed to prohibit Owners or any
Intervenor from becoming employed by Charterers or providing any consulting
services to Charterers, including entering into crewing agreement.
32. Applicable Law:
This Agreement shall be construed in accordance with the laws of Canada,
including Canadian Maritime Law.
33. Notices:
Every notice contemplated by this agreement shall be given by fax to:
TO OWNERS:
VOYAGEUR MARINE TRANSPORT LIMITED
Fax: ( 905) 892-8161
Attn: Fred Huneault
TO CHARTERERS
LOWER LAKES TOWING LTD.
Fax: (519) 583-1946
Attn: Scott Bravener
34. Assignment and Successors:
This Agreement may not be assigned without prior consent of the other
party. Such consent shall not be unreasonably withheld. This Agreement
shall be binding upon the parties hereto and their successors and
permitted assigns; provided, however, that Charterers shall have the right
to assign this Agreement, in whole or in part and without the consent of
Owners, to any parent, subsidiary, affiliate or any successor to all or
substantially all of its assets and to any of its lenders.
35. Entire Agreement:
This Agreement and the appendices attached hereto and incorporated by
reference herein constitutes the entire agreement between the parties and
supersedes all previous commitments, whether verbal or written between the
parties.
36. Confidentiality:
The terms and conditions of this Agreement are confidential and shall not
be disclosed to third parties except as required by law.
VOYAGEUR MARINE TRANSPORT LIMITED VOYAGEUR MARITIME TRADING INC.
Per: /s/ Fred Huneault Per: /s/ Fred Huneault
- ----------------------------------- -----------------------------------
Title: President Title: President
- ----------------------------------- -----------------------------------
Date: Date:
- ----------------------------------- -----------------------------------
LOWER LAKES TOWING LTD.
Per: /s/ Scott Bravener Per:
- ----------------------------------- -----------------------------------
Title: President Title:
- ----------------------------------- -----------------------------------
Date: Date:
- ----------------------------------- -----------------------------------
INTERVENTION
Voyageur Maritime Holdings Inc. and Fred Huneault (collectively, the
"Intervenors") hereby intervene to the Contract of Affreightment between
Voyageur Marine Transport Limited and Lower Lakes Towing Ltd. for the purpose of
acknowledging the content of clause 31 (Covenant not to compete) and agreeing to
be bound by same.
EXECUTED IN _______________, this 27th day of August 2007.
By: Fred Huneault
/s/ Fred Huneault
-----------------------------------------
By: Voyageur Maritime Holdings Inc.
By: /s/ Fred Huneault
-----------------------------------------
Fred Huneault