Emergency Towage, Vessels Aground or in Distress: This Agreement, including this Schedule of Rates, Terms, and Conditions, does not apply to vessels aground or in distress. Such services will be performed pursuant to HD&T’s Emergency Services Contract. Rates quoted on request.
Excluded Services: This Schedule of Rates, Terms, and Conditions shall not apply to rescue towing, assisting Vessels aground or otherwise in peril, salvage and any other services not specified in herein. Such excluded services are subject to separate rates and terms and conditions to be mutually agreed by the parties.
Damage Claims: Customer shall notify HD&T of any damage to the vessel assisted that allegedly occurred during the performance of services hereunder. Such notice shall be in writing and shall be delivered as soon as is practicable, but in no case more than 48 hours following the occurrence. HD&T shall be afforded an opportunity to inspect or survey such damage before commencement of any repairs. Any action in any forum to recover damages from Tug Interests shall be commenced within one year after the occurrence giving rise to the claim, failing which said claim shall be deemed waived.
Customer acknowledges HD&T’s long term and substantial presence in the port and waives any right to demand that HD&T post security in connection with any claim by or on behalf of Customer or the vessel being assisted for any expense, loss or damage claimed to have arisen, in whole or in part, as a result of any service rendered in connection with this Agreement. Notwithstanding the foregoing, if any said claim, exclusive of interest, shall reasonably be expected to exceed two million dollars ($2,000,000.00) HD&T agrees, upon request, to post a security in customary insurance form.
Escalation: The published tariff rates will be reviewed annually and will be subject to an annual escalation increase based on the United States Consumer Price Index as published by the United States Labor Department, Bureau of Labor Statistics. HD&T reserves the right to adjust the rates above upon thirty (30) days’ notice, and if Vessel’s interests do not consent to such changes they may cancel this Agreement on fifteen (15) days’ written notice to HD&T.
Invoice / Payment Terms: The Captain’s log will prevail for billing purposes as collecting signed receipts from the vessel is no longer practicable. Invoices are due and payable within thirty (30) days from the invoice date. After thirty (30) days, invoices are overdue and contractual discounts are no longer valid. In addition, overdue invoices will be charged 1.5% interest per month from the invoice date. HD&T reserves the right at any time after thirty (30) days to turn unpaid invoices over to attorneys or professional collection agencies for collection and the invoiced Vessel shall be responsible for all expenses and collection fees, including court costs, attorney/agency fees, and all interest due. A maritime lien is reserved for all charges.
With respect to vessels that are not owned by the person or company ordering the tug service, it is understood a nd agreed that such person or company warrants that it has authority to bind the Vessel owners to all the provisions of this agreement and agrees to indemnify and hold Tug Interests harmless from all damages and expenses that may be sustained or incurred in the event and in consequence of such person or company not having such authority.
Force Majeure: HD&T, the tugs, their respective owners, affiliates, operators, charterers, managers, underwriters, masters, and crews (collectively, the “Tug Interests”), shall not be responsible or liable for any expense, loss, damage or claim whatsoever caused by or resulting from delays, failures or omissions hereunder in the performance of services due to strikes, lockouts, labor disturbances, riots, fire, earthquakes, storm, lightning, epidemics, war, disorders, acts of God, acts of the public enemy, port congestion, mechanical breakdowns, shortage of tugs, priorities in service, or any other cause whatsoever beyond their control.
Equipment: If at any time HD&T tugs are not conveniently available for the required services HD&T will endeavor to designate or engage other tugs to provide service, but HD&T shall not be liable for damages in case it is not able, at any time, for any reason, to furnish such service. Any tug designated or engaged by HD&T to perform services under this Agreement, and its owners, master and crews shall, while performing such services, have the benefit of all Agreement provisions herein. In agreeing to endeavor to provide this service, it is understood and agreed that HD&T does not either expressly or impliedly warrant the seaworthiness, power, equipment, or competency of the crew of the tug or tugs engaged by HD&T to supply services under this Agreement. Any such subcontractor shall be considered an independent contractor and not an agent, servant or employee of HD&T.
Pilotage: HD&T does not furnish pilots or pilotage so that whenever any licensed pilot, or a captain of any tug which is furnished to or is engaged in the service of assisting a vessel, participates in directing the navigation of such vessel, or in directing the assisting tugs, from on board such vessel or from elsewhere, it is agreed that he becomes the borrowed servant of the Vessel assisted and her owner or operator for all purposes and in every respect, his services while so engaged being the work of the Vessel assisted, her owner and operator, and being subject to the exclusive supervision and control of the Vessel’s personnel. Any such service performed by any such
person is beyond the scope of his employment, if any, for HD&T and Tug Interests shall not be liable for any act or omission of any such person.
In consideration of HD&T transporting a docking and/or state pilot without charge to and/or from the Vessel being assisted hereunder, Customer agrees that it shall indemnify, defend, and hold harmless Tug Interests from and against any and all claims, demands, causes of action, liabilities and costs (including attorney’s fees) incurred in connection with or arising out of any claim by or on behalf of a pilot for personal injury or death sustained while being transported by HD&T to or from the Vessel being assisted, excepting only any injury sustained by said pilot to the extent attributable to the gross or willful negligence of HD&T. As used herein, the term “being transported by HD&T” shall include, without limitation, all time when the pilot is (i) present on HD&T’s shore side premises enroute to or from the Vessel being assisted, and (ii) boarding or disembarking from a tug or other vessel supplied by or on behalf of HD&T. As used herein, the term “pilot” shall also include any assistant pilot, trainee, or other person who may accompany the pilot in any capacity.
Limitation of Liability: The furnishing of any service or anything done in connection therewith, shall not be construed to be or to give rise to a personal contract, and it is understood that Tug Interests shall have the benefit of all exemptions from, and limitations of, liability to which an owner of a vessel is entitled under the Limitation of Liability Statutes of the United States. HD&T WARRANTS THE EXERCISE OF REASONABLE CARE IN THE PERFORMANCE OF TUG SERVICES BUT DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF WORKMANLIKE SERVICE.
Unless entitled to immunity or to defenses to, exemptions from or limitations of liability provided under this Agreement, or under any applicable law, rule or regulation that would reduce their liability to an amount less than that hereinafter set forth, Tug Interests shall be liable only to the extent of their negligence, which negligence shall not be assumed but shall be affirmatively proven, for claims, demands, causes of action, liabilities and costs (including third party claims) arising out of or in connection with any occurrence or series of occurrences related to the provision of tug services pursuant to this Agreement up to a maximum aggregate amount of two hundred and fifty thousand dollars (U. S. $250,000.00). Customer understands and agrees that tug services provided hereunder are rendered at all times under the supervision and command of Customer’s servants (including the Master of the Vessel being assisted and docking pilots), or of State pilots, none of whose actions or inactions may be imputed to the Tug Interests. Customer further understands and agrees that the rates charged by or on behalf of HD&T for tug services are predicated upon the limitations of liability and the indemnities set forth in this Agreement. Should Customer desire that Tug Interests retain liability in excess of $250,000.00 they must notify HD&T in writing, whereupon HD&T will quote rates for tug services hereunder predicated on higher liability limits. Any such quote must be accepted by Customer in writing at least twenty-four (24) hours prior to commencement of tug services to the Vessel being assisted, failing which the rates and liability limitations otherwise provided herein shall prevail. Nothing herein shall be construed to waive or limit the right of Tug Interests to assert any defenses to liability available to them or to avail themselves of any rights of limitation or exemption from liability under any applicable law, rule or regulation.
Customer and any Vessel assisted hereunder assume all risk of, and shall indemnify Tug Interests from and against, any and all loss or damage sustained by Customer, Tug Interests or by any other vessel, property or person that results from the parting, heaving or sudden movement of any hawser or other line, by whomsoever furnished or howsoever caused.
Notwithstanding anything to the contrary in this Agreement or elsewhere, Customer understands and agrees that the rates charged hereunder are also predicated on agreement that the Tug Interests shall have no liability for any consequential, punitive, exemplary or special damages of any kind howsoever arising.
Customer agrees to indemnify, defend and hold harmless the Tug Interests from and against any and all claims, demands, causes of action, liabilities and costs (including attorneys’ fees, penalties, fines and third party claims of whatever nature) that are attributable to the acts or omissions, whether or not negligent, of the Tug Interests, or any of them, or to the unseaworthiness of any tug, and which arise out of or in connection with any occurrence or series of occurrences related to the provision of tug services pursuant to this Agreement to the extent that they exceed, in the aggregate, the applicable amounts set forth above. The parties intend for this indemnity to apply in all instances including, without limitation, allision, collision, personal injury, fire, explosion, grounding, oil spills and third party claims. Customer warrants that it possesses sufficient and adequate insurance on the Vessels assisted pursuant to this Agreement, including hull and machinery, P&I, cargo and pollution coverage, to comply with all applicable laws and to respond for any losses arising out of or connected in any way with the tug services provided hereunder, with all rights of subrogation for losses under said insurances waived as to Tug Interests and with Tug Interests entitled to all benefits under said insurances of a named assured or joint member, as applicable.
Nothing herein shall preclude HD&T from recovering from any responsible party for any damages sustained by any tugs providing service hereunder.
Severability: If any provision of this Contract is found void or unenforceable, the remaining terms and conditions shall remain in full force and effect.