Cooper Marine Barge Fleeting and Shifting
By using Cooper Marine, Inc. (“Company’s”) fleet and/or retaining Company’s barge shifting services, Customer hereby accepts the following terms and conditions:
TERMS AND CONDITIONS
1. APPLICABILITY: These terms and conditions are paramount and supersede any provisions to the contrary contained in any invitation to bid, instructions, purchase orders, or other documentation for fleeting services. Except as may be mutually agreed in writing by the Company and the Customer, these Terms and Conditions apply to all Contracts between the Company and the Customer for fleeting and shifting services (collectively “Fleeting Services) and shall be deemed acknowledged and accepted by the Customer or on its behalf. Agreements varying these Terms and Conditions must be in writing and signed by both parties.
2. RATES: Customer shall pay to the Company fees for Fleeting Services hereunder at the Company’s applicable rates in effect at the time the barge or other vessel is tendered for fleeting or as the parties may otherwise expressly agree in writing. The Company shall invoice Customer once per month for all Fleeting Services performed during the preceding month, and such invoice shall be due within thirty (30) days of receipt.
3. PAYMENT/LIEN: Except as otherwise specified in writing by the Company, all payment terms are net, due in full immediately upon completion of work and receipt of invoice. Past due charges are subject to a finance charge equal to the lesser of two percent (2.0%) per month or the then current maximum rate of interest allowed in the State of Alabama from date of completion of work until paid. Invoices are payable, in United States funds only, to the Company to the account information specified on the invoice. The Customer shall be responsible for applicable sales usage taxes. The Customer agrees that the services and any supplies/equipment provided hereunder are “necessaries” of the barge or other vessel, and that the Company shall have a lien on any barge or other vessel for all charges which may accrue for work done under these Terms and Conditions and/or any Contract. The Customer represents and warrants to the Company that it is either the owner of the barge or other vessel or is authorized to accept and/or approve these terms and conditions for and on behalf of the owner of the barge or other vessel, incur charges therefor, and to authorize a lien on the barge or other vessel on behalf of the owner of the barge or other vessel. In the event the charges hereunder shall not be paid in accordance with agreed upon terms, the Customer and/or owner of the barge or other vessel shall pay all expenses of collection, including reasonable attorney’s fees and interest. Nothing herein shall be deemed to constitute waiver of any maritime lien of the Company against a barge or other vessel.
4. SEAWORTHINESS: Customer represents and warrants that, when tendered to the Company for fleeting, each barge or other vessel shall be tight, staunch, and seaworthy, fully equipped and supplied. Customer further represents and warrants that Customer shall have exclusive control of, and be solely responsible for, the navigation of any towing vessel tendering each barge or other vessel for fleeting hereunder, that Customer shall ensure that such barge or other vessel is properly and securely moored at the fleet, and that Customer shall be solely responsible for stowing and securing the cargo, if any, (including protecting the cargo from the elements such as in the case of a hopper barge or deck cargo) and securing the barge’s or other vessel’s equipment.
5. INSPECTION: Any contract incorporating these terms and conditions are entered into without inspection by the Company of Customer’s barge or other vessel. If, in the judgment of the Company, the barge or other vessel or any part thereof is unseaworthy or for any reason would constitute a risk or hazard, or any misstatement has been made in giving a description of the barge or other vessel or its condition, the Company shall be under no obligation to accept a barge or other vessel for fleeting. Nothing in these Terms and Conditions shall impose any duty upon the Company, its agents, servants, or employees, to inspect the barge or other vessel, or make any one of them liable for damage resulting from failure to make an inspection or resulting from any error of judgment in making an inspection. The Company shall, however, have the right, but not the duty, at any time while a barge or other vessel is being tendered for fleeting hereunder or is moored in the fleet, to make such inspections of the barge or other vessel as the Company may deem necessary to ensure the safe fleeting of the barge or other vessel. Customer shall promptly provide the Company with all requested information and documentation and shall afford the Company all necessary cooperation for the completion of such inspections. If the Company, in its sole discretion, shall determine that the condition of a barge or other vessel renders it unsuitable for mooring at the fleet, then the Company shall so notify Customer in writing, and Customer shall immediately take action to safely remove the barge or other vessel from the fleet.
6. COMPLIANCE WITH LAW AND REGULATIONS: Customer represents and warrants that each barge or other vessel complies with all applicable federal, state and local laws and regulations including, as applicable, those with respect to pollution prevention and response, and shall remain compliant at all times while at the fleet. Further, Customer represents and warrants that, if the barge or other vessel is subject to the vessel response plan requirements of the Oil Pollution Act of 1990, (OPA 90) and/or the financial responsibility requirements of OPA 90 or the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), (i) Customer has a vessel response plan, approved by the United States Coast Guard, covering the barge or other vessel; and (ii) clear and complete copies of the following documents are contained in the documentation container aboard the barge or other vessel: current United States Coast Guard Certificate of Inspection; current United States Coast Guard and, where applicable, State Certificates of Financial Responsibility, vessel response plan Onboard Notification Checklists and Emergency Procedures, vessel response plan approval letters, and oil transfer procedures.
7. INDEMNITY AND LIMITATION OF LIABILITY: Customer expressly acknowledges and agrees that the fees incurred by Customer pursuant to Section 2 are solely in exchange for the Fleeting Services and that the fleeting of the barge or other vessel at the fleet does not create a bailment. The Customer agrees that it will not make a claim against the Company for damages to a barge or other vessel, its equipment, or other property, or any other property arising from a single incident unless the damage to such barge or other vessel, its equipment, or other property, or any other property exceeds $10,000.00. Further, the Company’s aggregate liability, directly or indirectly, to the Customer, Customer’s employees, invitees, its customers/consignees, contractors, subcontractors, or the employees of such subcontractors or invitees and/or any and all third parties, for any claims for personal injury, or death of an individual, or loss or damage to a barge or other vessel, its equipment, cargo damage or damage to other property or timeliness of completion of the work, howsoever caused, shall in no event exceed $50,000.00, with respect to any one barge or other vessel. THE CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD THE COMPANY HARMLESS WITH RESPECT TO ALL LIABILITIES OF EVERY KIND AND CHARACTER EXCEEDING $50,000.00, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OR FAULT (ACTIVE OR PASSIVE) OF ANY PERSON OR ENTITY (INCLUDING THE SOLE, JOINT OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, OR FAULT OF THE COMPANY, COMPANY’S EMPLOYEES, INVITEES, CONTRACTORS, SUBCONTRACTORS, OR THE EMPLOYEES OF SUCH CONTRACTORS OR INVITEES ON ANY THEORY), ANY THEORY OF STRICT LIABILITY, ANY DEFECT OF PREMISES, OR THE UNSEAWORTHINESS OF ANY BARGE OR OTHER VESSEL (WHETHER OR NOT PREEXISTING THE DATE OF THESE TERMS AND CONDITIONS), BROUGHT BY THE CUSTOMER, CUSTOMER’S EMPLOYEES, INVITEES, CONTRACTORS, SUBCONTRACTORS, OR THE EMPLOYEES OF SUCH SUBCONTRACTORS OR INVITEES AND/OR ANY AND ALL THIRD PARTIES.
The Company shall have no liability of any kind to the Customer, Customer’s employees, invitees, contractors, its customers/consignees, subcontractors, or the employees of such subcontractors or invitees for loss profits, salvage awards, consequential, economic, compensatory or punitive damages of any nature whatsoever, whether past, present or future.
8. (INSURANCE): Customer shall procure and keep in effect during the following minimum insurance: (a) Hull Insurance for the fair market value of the barge or vessel; (b) Comprehensive General Liability Insurance (including but not limited to Broad Form Contractual Liability, Products and Completed Operations, Sudden & Accidental Pollution, Care Custody and Control, Action over Indemnity Buy Back and In Rem Endorsements) in an amount not less than $1,000,000 per occurrence, with a deletion of all waterfront exclusions; (c) Workers’ Compensation Insurance (including Longshore and Harbor Workers’ Compensation) to the statutory limits as required by law, and Employers’ Liability Insurance (including Maritime Employer’s Liability) in the amount of $1,000,000, which policies shall contain the Alternate Employer/Borrowed Servant and In Rem Endorsements; (d) Excess Liability Insurance with a limit of not less than $9,000,000 per any one accident or occurrence in excess of primary limits for all the coverages set for in subsections (b) and (c) above. Customer shall be solely responsible for any deductible. The insurance policies listed above shall name Company and its affiliated companies as additional insured. The insurance policies required above shall be independent of the indemnity obligations herein and the scope of the indemnity assumed by Customer herein shall apply to the required insurance regardless of whether the indemnity provisions contained herein are enforceable. Customer represents, warrants and agrees that Customer’s liability insurance coverages shall provide coverage to Company for claims asserted by employees of Customer notwithstanding Company’s negligence, or the unseaworthiness, defect or negligence of any vessel. All policies of insurance procured hereunder shall contain a full waiver of subrogation by Customer and its insurers in favor of Company and its affiliated companies. The insurance policies required above shall each constitute primary insurance coverage to any insurance already in place by Company and shall be extended to Company on a noncontributory basis. Customer shall provide Company with certificates of insurance confirming that the foregoing insurance policies are in full force and effect upon request. Customer will immediately notify Company upon receiving notice of cancellation or upon any material change in its insurance. Customer shall ensure that any approved subcontractor will maintain in full force and effect, the liability insurance with limits at least equal to that set forth in this Section 8, inclusive of requiring additional assured and waiver of subrogation.
9. (FORCE MAJEURE): If, because of force majeure, either party hereto is unable to carry out any of the obligations under a Contract, other than the obligations to pay money due thereunder, and if such party promptly gives to the other party hereto written notice of such force majeure, then the obligations of the party giving such notice shall be suspended to the extent made necessary by such force majeure and during its continuance, provided that the party giving such notice shall use its best efforts to remedy such force majeure insofar as possible with all reasonable dispatch. The term "force majeure" as used herein shall mean acts of God, acts of public enemy, insurrections, riots, strikes, lockouts, labor disputes, accidents, fires, explosions, floods, breakdowns or damage to plants, equipment or facilities, pandemic, embargoes, orders, or acts of civil or military authority, or other causes of a similar nature which are beyond the reasonable control of the party affected thereby. Upon the cessation of the force majeure event, the party that had given original notice shall again promptly give notice to the other party of such cessation. In the event a tropical weather system approaches the Mobile, AL area, the Customer agrees to make diligent efforts to arrange for its barge(s) to be removed from the fleet and moved upriver, and Customer agrees that Company is not liable for Customer’s failure to make those efforts. Customer acknowledges that if landfall of a tropical system is imminent, Company may have to close the fleet.
10. CHOICE OF LAW AND JURISDICTION: These Terms and Conditions and/or any Contract shall be governed and construed in accordance with the General Maritime Law of the United States to the extent applicable and otherwise by the law of the State of Alabama, except the law of conflicts of such state. In the event that either party shall institute an action in connection with any claim against the other party arising under these Terms and Conditions and/or any Contract or to enforce any provision thereof, the parties hereby agree that the venue for such action shall be in a court of competent jurisdiction in Mobile County, Alabama, or in the United States District Court for the Southern District of Alabama, Mobile Division, and that each party waives any objections as to jurisdiction or venue of these courts. In any action to enforce any provision of these Terms and Conditions and/or any Contract, the prevailing party shall be entitled to recover reasonable attorneys’ fees and expenses from the non-prevailing party.
11. SPILL MITIGATION RESPONSIBILITY: When an escape or discharge of oil or any polluting substance occurs from or is caused by Customer’s barge or other vessel, which results in or threatens to cause pollution damage (without regard to whether the discharge was caused by a negligent act or omission by Company or its barge), Customer, upon becoming aware of the situation, shall promptly take whatever reasonable measures are necessary to prevent or mitigate the damage in accordance with all applicable law and regulation. Customer hereby authorizes “Company,” upon notice to Customer, to undertake measures as are reasonably necessary to prevent or mitigate pollution damage, unless Customer promptly undertakes the same; for avoidance of doubt, Company is not, however, required to step in on Customer’s behalf. Customer shall keep Company advised of the nature and results of any remediation or mitigation measure(s) taken (or to be taken) by Customer or its spill remediation contractor(s). Any of the aforementioned measures actually taken by Company shall be deemed taken on Customer’s authority and shall be at Customer’s expense (except to the extent the spill was caused by Company or its agents or employees), and upon Company’s demand, Customer will provide prompt reimbursement for the costs of measures taken pursuant to this Section.
12. POSSESSION OF THE BARGE DURING LOADING/UNLOADING: If Company is retained to shift barges into or out of its fleet for delivery to another location, Company shall deliver a barge to a dock or fleet designated by Customer for loading or unloading. Upon delivery of a barge, Customer is deemed to be in possession of the barge and responsible for the safety of the barge until Company regains actual possession of the barge. For the purpose of this section, the term “possession” shall mean the time commencing upon Company’s delivery of a barge for loading or unloading to any dock or fleet designated by Customer until the barge is removed by Company or its agents. Company has no obligation to monitor the barge or to check its mooring lines while at the location for unloading or unloading. Customer shall protect the barge, periodically inspect the mooring lines, and provide and maintain necessary lights and navigational aids on a barge while the barge is not in Company’s possession.
