SEASPAN ULC STANDARD TERMS AND CONDITIONS FOR TOWAGE AND RELATED SERVICES
(NOTE: THESE PROVISIONS CONTAIN TERMS THAT EXCLUDE AND LIMIT THE LIABILITY OF SEASPAN)
1. DEFINITIONS
“Cargo” means any goods or property of any description whatsoever that is on board or in a Tow.
“Customer” means the party requesting Seaspan to provide Towing Services and the owner of the Tow and Cargo (see cl.3 below).
“Dangerous Cargo” means any goods, article, substance or liquid specified in any applicable statute or regulation as a “dangerous good” or that is otherwise of a dangerous, inflammable, hazardous or noxious nature.
“Loss or Damage” means any physical, monetary or economic loss of any nature whatsoever, including without limiting the generality of foregoing: damages, awards and judgments for loss of or damage to Cargo or other property, personal or fatal injury, loss of use and lost profits; costs and expenses; and fines and penalties.
“Seaspan” means Seaspan ULC.
“Tow” means vessels, barges, logs and rafts and any floating object or structure of any description whatsoever, owned, chartered, leased or
operated by the Customer, in respect of which the Towing Services of Seaspan are being retained.
“Towing Vessel” means the vessel owned, chartered, leased or operated by Seaspan or its subcontractors, used to provide the Towing Services and if more than one vessel is used means all such vessels.
“Towage Conditions” means these Standard Terms and Conditions for Towage and Related Services.
“Towing Services” means the services Seaspan is requested to provide using a Towing Vessel and includes moving a Tow, assisting other vessels in the movement of a Tow, providing assistance to a Tow and all related services. Notwithstanding the foregoing, “Towage Services” does not include carriage of goods from one place to another in a Seaspan supplied vessel and does not include ship docking and ship undocking services.
2. TOWING SERVICES PROVIDED SUBJECT TO CONDITIONS
All Towing Services provided by Seaspan are subject to these Towage Conditions, the terms of which may not be varied or amended except by written agreement signed by an authorized representative of Seaspan.
3. CUSTOMER’S WARRANTY OF AUTHORITY
The Customer warrants that it is the owner of the Tow and Cargo or, if not the owner of the Tow and Cargo, the Customer warrants that it has the full authority of the respective owners of the Tow and Cargo to accept these Towage Conditions on their behalf and agrees that the Customer and owners of the Tow and Cargo are bound jointly and severally by these Towage Conditions. The Customer further warrants that it has authority to contract on the credit of the Tow.
4. SEAWORTHY TOW
The Customer warrants and represents that the Tow shall be seaworthy and in all respects ready for and capable of making the specified voyage including that: all Cargo has been carefully and properly loaded and stowed; the Tow is properly equipped in all respects; and the Tow is outfitted with proper navigation lights, towing bits and bridles. An inspection of, or a request for modification of, the Tow or Cargo by Seaspan shall not be deemed an approval of the condition or seaworthiness of the Tow or constitute a waiver of the Customer’s obligations herein.
5. DANGEROUS GOODS OR TOW
The Tow and Cargo shall not contain any Dangerous Cargo unless the Customer has advised Seaspan in advance, in writing, of the presence of the Dangerous Cargo and Seaspan agrees to accept the Dangerous Cargo. In any event, the Customer shall indemnify (including for costs on a solicitor and client basis), defend and hold harmless Seaspan and the Towing Vessel in respect of any Loss or Damage incurred or arising in respect of Dangerous Cargo, howsoever caused, including if caused by the unseaworthiness of the Towing Vessel or the negligence of Seaspan.
6. PORTS AND BERTHS
The Customer warrants that the Towing Vessel and Tow can get to and lie safely afloat at all stages of the tide at any port, berth, moorage, anchorage or place to which they are directed to proceed by the Customer.
7. DEVIATION/MULTIPLE TOWS/SUBSTITUTIONS
Seaspan may perform the Towing Services in any manner it deems proper and shall have the absolute right to deviate for any reason whatsoever and shall further have the right to tow other vessels or barges belonging to third parties together with the Tow. Seaspan shall further be at liberty to substitute a Towing Vessel with another.
8. CUSTOMER’S INSURANCE
The Customer shall, at its expense, obtain and maintain during the entire period of performance of the Towing Services the following insurance coverages, any deductibles of which shall be for the sole account of the Customer:
- (a) Hull and machinery insurance on the Tow in an amount equal to its full market value and on terms equivalent to Canadian Hulls Pacific Clauses (2005) with a waiver of subrogation against Seaspan;
- (b) All risks marine cargo insurance on any Cargo in an amount equal to the full market value of the Cargo with a waiver of subrogation against Seaspan; and
- (c) Protection and indemnity insurance coverage of at least $10 million on the Tow for, without limitation, wreck removal expenses, third party liability and full pollution liability;
9. RISK/EXCLUSION OF LIABILITY/INDEMNITY
- (a) The Towing Services are to be performed entirely at the risk of the Customer and without any liability on the part of Seaspan or the Towing Vessel.
- (b) Seaspan and the Towing Vessel shall not be liable to the Customer, or to any other party, for any Loss or Damage, howsoever caused, including if caused by the negligence of Seaspan or the unseaworthiness of a Towing Vessel.
- (c) In the event a claim is made against Seaspan by a third party for Loss or Damage arising out of or relating to the Towage Services and regardless of whether the Loss or Damage claimed was caused by the breach of contract or negligence of Seaspan or the unseaworthiness of a Towing Vessel, the Customer shall indemnify (including for costs on a solicitor and client basis), defend and hold harmless Seaspan and the Towing Vessel in respect of such claim.
10. LIMITATION OF LIABILITY
Should the Customer suffer Loss or Damage not covered by the insurance policies referenced in clause 8 or if the provisions of clause 9 are held to be inapplicable, inoperative or ineffective, or if Seaspan is otherwise liable to the Customer for breach of contract, negligence, failure to provide a seaworthy Towing Vessel or on any other legal basis, the collective liability of Seaspan and the Towing Vessel, shall be and is limited to Cdn.$1,000 (One Thousand Canadian Dollars).
11. HIMALAYA CLAUSE
Every exclusion from liability, limitation of liability, indemnity and defence applicable to Seaspan herein shall be available to and extend to its officers, directors, masters, crew, employees, servants, agents and sub-contractors and, for this purpose, Seaspan acts as agent and trustee for and on behalf of those persons.
12. WORKERS COMPENSATION AND PRIME CONTRACTOR
- (a) The Customer represents, warrants and agrees that all of its employees, servants, agents and subcontractors, who attend on board or nearby a Tow or Towing Vessel or are otherwise involved in the preparation of the Tow or the loading, unloading, stowing or securing of any Cargo, are “workers” within the meaning of the Workers Compensation Act, RSBC 1996 c.492 as amended, and that all such persons are covered by workers compensation in the event of personal injury or death.
- (b) Before the Tow has been taken under tow by the Towing Vessel and after the Tow has been released from the Towing Vessel, the Customer is the Prime Contractor within the meaning of the Workers Compensation Act, RSBC 1996 c.492 as amended.
13. TOWING CHARGES
The Customer shall pay towing charges to Seaspan as agreed plus applicable taxes, and shall pay all customs, port charges, pilotage fees, dockage, wharfage and similar fees, including agent’s fees. The towing charges shall be considered completely earned at the commencement of the Towing Service whether the Tow and/or Cargo is lost or not lost. If the Tow is not ready to be towed when the Towing Vessel arrives to commence towing, or if there is a delay in performing the Towing Services that is not due solely to the fault of Seaspan, the Customer shall pay to Seaspan an additional delay charge equal to the Towing Vessel’s hourly demurrage rate for each hour of delay or fraction thereof.
14. LIEN
Seaspan shall have a particular and general lien on the Tow for all sums due to Seaspan either in respect of such Tow or for any general balance or other monies due from the Customer to Seaspan. The lien shall include interest on overdue amounts and the costs of exercising the lien, including the costs of moving and mooring the Tow. The lien shall continue to exist notwithstanding that Seaspan has parted with possession of the Tow. For the purpose of enforcing the lien, Seaspan may without notice sell, or retake possession and sell, the Tow by public auction or private sale at its sole option. Should the sale of the Tow be insufficient to recover the full amount owing, the Customer remains liable for the deficiency.
15. FORUM SELECTION
Any legal proceedings arising out of or relating to the Towing Services or these Towage Conditions shall be brought before either the Supreme Court of British Columbia or the Federal Court of Canada situated in Vancouver, B.C., and no other court shall have any jurisdiction whatsoever.
16. CHOICE OF LAW
The law of British Columbia and Canadian Maritime Law shall apply to the interpretation and construction of these Towage Conditions and to any and all disputes, actions, causes of action, claims or demands arising out of or relating to the Towing Services.
17. NOTICE OF CLAIM AND TIME FOR SUIT
The Customer shall provide Seaspan with notice in writing of any claim or possible claim within seven (7) days of the events giving rise to the claim. Any Legal proceedings against Seaspan or a Towing Vessel arising out of or relating to these Towage Conditions or to the Towing Services must be commenced within One (1) year from the date that the Tow was delivered or ought to have been delivered, or the claim is extinguished.