Top Fenders STS Terms and Conditions
PARTIES
Top Fenders Ltd, a company organised and existing under the laws of England and Wales, having its registered office at Portland House, 69-71, Wembley Hill Road, Wembley, Middlesex, HA9 8BU, United Kingdom ("TFL"); and
The “Company”, means the recipient of the service and described as such on invoices, post operational reports, communications and any associated documents to which this Agreement applies.
The Company and TFL are each a “Party” and together referred to as “Parties”.
WHEREAS
The Parties wish to agree in advance the terms and conditions that will apply to any STS Transfer Services requested by the Company pursuant to the terms of this Agreement and agreed by TFL pursuant to the terms of this Agreement.
Now in consideration of each Party agreeing to be bound by the terms of this Agreement when concluding a contract for an STS transfer following the procedure in Clause 2, and in consideration of further and additional consideration, the receipt of which is hereby acknowledged, it is agreed as follows:
1. DEFINITIONS
1.1 Affiliate of the Company: “Affiliate of the Company" shall mean and include any company (other than the Company) which is include any company which is directly or indirectly associated with the Company by any means whatsoever – including but not limited to, agents, contractors, sub-contractors, subsidiaries or any other individual or organization’.
Agreement or STS Agreement: This Agreement includes Appendices A and B and any STS transfer agreement concluded pursuant hereto, as the context requires.
Cargo: Crude, petroleum and/or its products.
STS: Ship to ship.
STS Location: The location of any given STS transfer rendezvous area is as stated in the applicable STS Offer.
STS Offer: An offer by TFL to provide STS Transfer Services for any given STS transfer in the form of Appendix A (completed for the transfer in question).
Mooring Master: An employee or agent of, or a consultant or consultants engaged by TFL to assist in the provision of STS Transfer Services on behalf of TFL in connection with this Agreement and as provided for in Clause 13.7 and Appendix B Paragraph 3.
STS Transfer Guide: The latest edition at the time of the relevant STS Offer of the International Chamber of Shipping/Oil Companies International Marine Forum "Ship to Ship Transfer Guide for Petroleum, Chemicals and Liquefied Gases".
STS Transfer System: The STS transfer system which TFL proposes to operate at the STS location for any STS transfer consists of the equipment described in the STS Offer in question ("the STS Equipment") (or any substitution therefore made in good faith) and assistance with operation of such equipment as stated in the relevant STS Offer for transfer of Cargo between two ships made fast alongside each other at anchor or underway.
STS Transfer Services: The provision of the STS Transfer System together with associated planning, and co- ordination provided by or on behalf of TFL to utilise the STS Transfer System supplied by TFL and made available to the Masters of tankers engaged in any STS transfer, as stated in the relevant STS Offer.
Tanker(s): Cargo carrier(s) and smaller vessel(s) owned by or chartered to the Company, its Affiliates and/or Third Parties.
Transfer or STS Transfer: Any Cargo shipments from tanker(s) delivered into other tanker (s) made fast alongside each other for the purpose of STS operations.
1.2 Any reference in this Agreement to a day, month, quarter or year shall unless the context otherwise requires be to a calendar day, calendar month, calendar quarter or calendar year.
1.3 All terms defined in this Agreement shall have the same meaning in any Appendix to this Agreement.
2. SCOPE OF THIS AGREEMENT
2.1 This Agreement is the framework containing the general terms and conditions upon which TFL is willing to provide STS Transfer Services to the Company, but nothing in this Agreement constitutes an obligation to provide or receive STS Transfer Services until a contract for a particular transfer is concluded by following the procedure in this Clause 2.
2.2 The Company shall request STS Transfer Services for any proposed transfer by phoning or otherwise contacting TFL, stating the intended dates and location of the proposed transfer, together with identities (names, IMO numbers and call signs) of the intended tankers, and the intended Cargo (quantities and grade). If TFL is able and elects to perform the STS Transfer Services required, TFL will reply with an STS Offer in the form set out in Appendix “A” completed for the proposed transfer. If TFL is not able to perform the STS Transfer Services requested in respect of any proposed transfer, then TFL will so inform the Company and neither Party shall be under any further obligation. If the Company unconditionally agrees to the terms proposed in the STS Offer for any proposed STS Transfer, then it shall so notify TFL in writing or orally which shall be confirmed in writing.
2.3 The contract for any proposed STS Transfer Services shall comprise the exchange of communications in the form of an STS Offer in the form of Appendix A and the Company's unconditional acceptance of such STS Offer.
If, at the Company's request, TFL mobilises equipment or incurs any costs in anticipation of such a contract which is subsequently not concluded, or which is subsequently cancelled, then Company shall pay TFL for all such costs incurred pursuant to the Company's request.
2.4 The Company shall cause each Master of any tanker involved in a transfer to sign a letter in the form of Appendix B requesting STS Transfer Services for the transfer in question and confirm as part of the nomination agreement. The signature of the Master(s) of such letter(s) is a pre-condition to the performance of any of TFL's obligations in relation to the transfer, unless such pre-condition is waived by TFL.
For the avoidance of doubt neither TFL, the Mooring Master, nor their respective employees, agents or representatives ("TFL Personnel") shall be under any obligation to sign or otherwise accept any indemnity or other terms and conditions presented by any Master, owner, charterer or other third party prior to or in the course of the STS Transfer, nor shall any TFL Personnel be liable for any loss or expense arising as a result of any refusal on their part to sign or otherwise accept the same. The Company undertakes to ensure that third parties involved or otherwise interested in the transfer do not require any such indemnity or terms and conditions to be accepted by any TFL Personnel.
2.5 TFL will operate the STS Transfer System for the purpose of transferring Cargo (whether or not owned by the Company) from (a) tanker(s) for subsequent on-shipment in (an) other tanker(s).
2.6 TFL shall use all reasonable diligence to expedite, subject to all relevant safety considerations, each STS Transfer agreed upon pursuant to this Agreement
3. DURATION AND TERMINATION
3.1 Duration: This Agreement shall come into force once a nomination is issued by the Company, and a formal nomination response is issued by TFL and, unless terminated pursuant to any other provision of this Agreement, shall continue in force until either Party terminates it by not less than 30 days written notice to the other.
3.2 Effect of Termination: Termination of this Agreement shall have no effect on the Parties’ rights and obligations in respect of the period up to the date of termination. The giving of a notice of termination under Clause 3.1 shall have no effect on any transfers already agreed by the acceptance of STS Offers, but once such notice is given no transfers shall be proposed for the period after the date of termination.
3.3 Termination for Non-Payment: If at any time any sum due to TFL under this Agreement has not been paid within thirty days of the date on which it was due, then, without prejudice to any other remedies open to TFL, TFL may by written notice discontinue and terminate any transfers that have been agreed upon or may terminate this Agreement or may do both.
4. FEES AND FREETIME
4.1 Fee: The fee for any given STS Transfer shall be as set out in the applicable STS Offer which shall also detail which costs are for TFL account and which costs are for the Company's account. If TFL pays any costs (whether obliged to do so or not) which the STS Offer says is for the Company's account, then the Company shall reimburse TFL accordingly.
4.2 Government Fees and Taxes: The sums stated in the STS Offer are the net sums due to TFL in respect of a transfer and they do not include any government fees, levies or taxes (other than TFL liability for taxes on its income). If there are any government fees, taxes, or levies or other charges (other than taxes on TFL income), direct or indirect, upon the STS Transfer System or payments due to TFL under the Agreement, the Company shall be notified by TFL and shall either pay the amount of such sums to TFL or if any withholding tax is applicable then the sums in the STS Offer shall be increased to such amount as will yield TFL the net sums in the STS Offer after taking account of and providing for the withholding tax in question.
4.3 Free Time: The amount of time allowed for any given transfer ("free time") shall be specified in the STS Offer in question. Unless otherwise stated in an STS Offer, the time allowed for any transfer shall start to run from the time when all equipment is mobilised from the base from which the STS Transfer is supported, and notice has been given by TFL to this effect and shall end when such equipment returns to such base. Time shall run continuously and shall not be affected by any weather delays or any other event of any nature whatsoever, including one within Clause 12, except a breakdown of the STS Transfer System. If the free time allowance for any given transfer as stated in the STS Offer in question is exceeded then the Company shall pay TFL as demurrage the rate (per day or part of a day, pro rata) stated in the STS Offer for all time in excess of the free time allowance in the STS Offer in question.
5. INVOICES AND PAYMENTS
5.1 Promptly after each transfer TFL shall submit to the Company an invoice showing all the sums due to TFL both for the transfer and, if applicable, for any sums due pursuant to Clause 11 (Oil Pollution).
5.2 All payments due to TFL hereunder shall be paid in dollars US ($) to the account stated on the invoice, or to such other account as may be designated by in writing by TFL. Payments shall be made in full by the Company, without deduction, within 15 days of the date of receipt of the TFL invoice.
5.3 Should the Company fail to pay any sum when the same is due hereunder, then such unpaid sum shall bear interest at the rate of one per cent (2%) per month from the date when such payment falls due up to the date on which payment is made.
5.4 Sums due in respect of steps taken for prevention or mitigation of oil pollution damage or in respect of pollution damage which are paid by TFL on behalf of or for the account of the Company or its employee, agent or sub-contractor or to their order as per Clause 11 of this Agreement and any other sums expended or incurred by or otherwise due to TFL may be separately invoiced and payment shall be made by the Company to TFL within 30 days after receipt of an invoice for such sums.
6. RE-CONFIRMATION OF NOMINATION, ETA'S AND RELEASE OF TANKERS
6.1
(a) Nomination of each tanker which shall deliver or receive Cargo shall be re-confirmed by the Company to TFL, at the address in Clause 18, where practical, at least 7 days (or such other period agreed in writing for a particular transfer) prior to the expected date of arrival at the STS Location. Such notice shall specify:
the names of the tankers; the grade or grades of Cargo and the respective quantities to be transferred; the expected date of arrival of each of the Tankers at the STS Location; and that the tankers comply with the STS Transfer Guide Checklist No 1.
(b) The Company shall arrange for the Master of each tanker to notify their local agents (as stated in Appendix “A”) for the transfer in question by telex, fax or email her ETA at the STS Location. The notification should be 7 days, 72 hours and 36 hours before arrival stating the expected date and hour of arrival or to advise any variation of more than six hours until the final day when changes of more than 2 hours must be advised. When a 7-day advance period is not available the ETA should be advised at the earliest opportunity. All ETA messages should also be copied to TFL, at the address in Clause 18.
6.2 The completion of an STS Transfer shall be determined by the ships' Masters in consultation with the Mooring Master. The Master of the Tanker(s) shall be responsible for measuring the quantity of Cargo transferred, which figure will be inserted in the bills of lading. The Mooring Master shall have no responsibility for, and shall not be asked to undertake, any measurement of Cargo transferred/remaining or the completion of any Cargo or ship's documentation relating to a transfer or relating to Cargo on board a tanker.
7. TANKER REQUIREMENTS AND PERFORMANCE CRITERIA
7.1 Requirements: The Company shall nominate seaworthy tanker(s), fully classed and entered with a member of the International Group of P&I Clubs, in every way outfitted and capable of safely carrying out all procedures as set out in the STS Transfer Guide.
(a) cannot comply with the requirements of MARPOL Annex 1 Chapter 8; or
(b) are rejected by TFL as unsuitable, in their absolute discretion; or
(c) fail to complete or to comply with any documentation provided by the TFL, then TFL shall have the right to refuse such nominated ship(s); or
(d) may terminate the operation subject to considerations of safety and/or environmental awareness.
8. TERMINATION OF A TRANSFER
8.1 In addition to the provisions of Clause 7.2, TFL reserves the right to reject any transfer on the grounds of the Company’s and/ or either of the Tanker's non-compliance with (a) any applicable law, rule or regulation made by any governmental or other authorities regulating handling or transfer of Cargo or vessel safety, or (b) with any provision of this Agreement where in the opinion of TFL such non-compliance affects the ability of TFL to perform STS Transfer Services.
8.2 If TFL terminates or discontinues a transfer pursuant to either Clause 7.2 or 8.1 after the Mooring Master arrives at the transfer location, then ninety per cent of the sum that would have been payable to TFL had the full transfer been completed shall be payable to TFL by way of compensation for losses and expenses of TFL together with any sum that may be due for exceeding the free time allowance for the transfer in question.
9. SAFETY REGULATIONS
9.1 TFL and the Company and their agents shall follow, and the Company shall cause the Masters, officers and crews of the tankers to follow, best industry standard safety practices in relation to all aspects of the STS, including in particular, but not limited to, those described in the STS Transfer Guide.
10. OPERATIONS
10.1 All STS Transfers under this Agreement shall be conducted in strict compliance with MARPOL annex I chapter 8. Furthermore, Masters must be provided and familiar with the contents of the latest copies of the following publications as required by MARPOL annex 1 chapter 8 regulation 41.2.
1. IMO manual on oil pollution section 1 – Prevention; and
2. OCIMF “Ship to Ship Transfer Guide.
Masters must ensure that their crews are familiar with the requirements and guidance to safely execute the complete STS Transfer. Such advance information will allow sufficient time for the Master and crew to prepare all necessary lines, equipment and appurtenances for the STS Transfer and also to prepare to follow the operational/safety check lists outlined in the STS Transfer Guide.
10.2 The Mooring Master shall board one of the tankers for each STS Transfer to assist the Masters, officers and crew of the tankers in rigging installing the STS equipment and establishing satisfactory communications during the complete STS Transfer and assisting with the operation of the STS equipment.
10.3 The Mooring Master shall assist the Masters, officers and crews in the procedures for a safe and efficient STS Transfer. If at any time the Mooring Master decides that the operations taking place are not safe, he will suspend operations and advise the Masters of the tankers. The Masters shall take appropriate actions to safely resume the transfer. Such advice shall not preclude manoeuvres by the Masters of the vessels, at their own discretion, to discontinue the transfer, if possible, informing the Mooring Master in advance of such discretionary actions to be taken.
10.4 TFL shall supply the STS equipment or reasonable substitute for any given STS Transfer as is specified in the STS Offer in question.
10.5 All operations including embarkation and debarkation, delivery and collection of equipment, mooring and transfer, shall take place in areas designated by TFL, approved by local authorities if necessary, which the Company, for itself and on behalf of the Masters of both vessels agree is safe for the purpose of the intended STS Transfer and/or related operations.
10.6 The master of the receiving tanker shall arrive with segregated ballast in full accordance with current MARPOL regulations.
10.7 Making fast shall be carried out in accordance with the STS Transfer Guide and in accordance with the assistance of the Mooring Master. The mooring arrangement to be supplied by the Company / the Masters of the nominated Tankers shall consist of a minimum of four head ropes, four stern ropes, two forward and two back springs. Wire moorings may be used but these must be equipped with nylon pennants.
10.8 TFL cannot provide transport for Company personnel, stores, spares etc.
10.9 Hose Connection: The Master/crew of each vessel involved in the STS Transfer shall be responsible for the safe connection and subsequent handling of the hose during Cargo transfer, in accordance with the STS Transfer Guide and with the Mooring Master assistance.
11. OIL POLLUTION
11.1 The Company shall ascertain and ensure:
(a) the owners of oil tanker(s) nominated by the company for an STS Transfer under this Agreement are members of the International Tanker Pollution Federation ("ITOPF");
(b) all such vessel(s) have been entered with a member of the International Group of P&I Clubs, and additionally that such vessel(s) have full hull marine insurance cover, for any and all claims, arising directly and/or indirectly, in connection with oil pollution and/or the risk or the threat thereof;
(c) the charterers of all tanker(s) nominated by the company for an STS Transfer are entered with a member of the International Group of P&I Clubs or have other equivalent insurance cover for any and all claims, arising directly and/or indirectly, in connection with oil pollution and/or the risk or the threat thereof;
(d) that all vessels are fully classed and certified by an IACS classification society member and that the vessel(s) are presented for STS Transfer operations in a good operational state with no known defects that may interfere, hinder or disrupt the STS Transfer operation; and
(e) that all vessels comply with the International Safety Management Code (ISM) and associated International and flag state regulations and requirements as applicable to the vessel(s).
11.2 TFL is not obliged under the terms of this Agreement, and undertakes no liability with regard thereto, to provide any service(s) or take any measures in connection with prevention, mitigation or removal of any oil pollution or any other pollution arising in, out of, or in connection with an STS Transfer operation. Subject to the foregoing:
(a) When an escape or discharge of oil occurs from any tanker, at or in the vicinity of any STS Transfer and causes or threatens to cause pollution damage, or when there is a threat of an escape or discharge of oil from such tanker in such vicinity (i.e. a grave and imminent danger of the escape or discharge of oil which, if it occurred, would create a serious danger of pollution damage, whether or not an escape or discharge in fact subsequently occurs). TFL or such Party as TFL designates may, entirely at its discretion and option, with or without notice by TFL to the Company, its agent and the Master of the tanker, undertake measures to prevent or mitigate such pollution damage or to remove the threat, unless the Company, its agent or the Master of the tanker promptly undertakes the same. TFL shall keep the Company, its agent or the Master of the tanker advised of the nature and results of any such measures taken by it or its designee and, if time permits, the nature of measures intended to be taken. All of the measures actually taken by TFL or its servant, agent or sub-contractor (including without limitation paying third Parties to take such measures) shall be deemed taken on the authority of the Company, and for the account of the Company, its agent or the Master of the tanker. If the Company, its agent or the Master of the tanker considers that such measures should be discontinued the Company, its agent or the Master of the tanker shall so notify TFL, and thereafter neither TFL nor its servant, agent or sub-contractor shall have any right to continue such measures under the provisions of this Agreement,
(b) The provisions of this Clause are not in derogation of any other rights which TFL or the Company may have under any agreement between the Parties or may otherwise have or acquire by law or any international convention.
12. FORCE MAJEURE AND CAPABILITY RESTRICTIONS
12.1 Neither Party shall be liable to the other for non-performance of its obligations under this Agreement (other than an obligation to pay money), if and to the extent that such performance is or has been delayed, hindered, interfered with, curtailed or prevented by any circumstance beyond its control, or by fire, explosion, strikes or other labour disputes, riots, or other civil disturbances, or compliance with any law, regulations, order or request of any governmental authority or person purporting to be or to act for any such authority. No other event shall be considered to be Force Majeure, save as further provided for in 12.2.
12.2 If for any reason beyond the reasonable control of TFL there is a loss of capability in the STS Transfer System for any transfer and it is not possible to perform any transfer nominated and agreed by exchanges in the form of Appendix “A” and an acceptance, TFL shall make every endeavour to renew the capability as soon as practicable. Such circumstances shall constitute force majeure and the Company shall not make any claims whatsoever against TFL in respect of any delay in performing or inability to perform any transfer resulting there form.
13. LIABILITY AND INDEMNITY
13.1 Exclusion of Liability
I. Subject to Clause 13.4 below neither TFL nor any Affiliate of TFL nor the Mooring Master shall under any circumstances be liable in respect of any delay, loss or damage of whatsoever nature, including but not limited to loss of income/earnings, loss of production, loss of profit or loss of Cargo or other property including but not limited to loss of or damage to temporary or permanent third Party oil and gas production facilities andor any other direct or indirect or consequential loss or damage sustained by the Company (whether directly or by way of compensating others) howsoever such delay, loss or damage may be caused, including but not limited to where it is caused by or attributable to the negligence (other than recklessness or wilful default) of TFL, of any affiliate of TFL or of the Mooring Master or of any of their respective employees, agents or sub-contractors;
II. If, notwithstanding the foregoing, any liability to Company does arise then it shall be limited to an amount equivalent to a multiple of two times the fee for the transfer in respect of which the liability arose, whether or not caused by negligence of the TFL, its servants, agents sub- contractors or affiliates.
13.2 No Individuals to be Sued: Neither the Mooring Master nor any employee or agent of TFL or of any affiliate of TFL shall be liable to the Company for loss or damage of any nature whatsoever and howsoever the same may arise (including without limitation to the generality of the foregoing loss or damage arising from the negligence or default of such person), and the Company undertakes not to institute or maintain any proceedings against any such person in respect of the same.
13.3 General Indemnity: The Company undertakes to defend and indemnify TFL, any affiliate of TFL, the Mooring Master, all their respective employees and agents and each of them against all claims, demands, loss, costs (including costs as between attorney or solicitor and own client), damages, liabilities and expenses of whatsoever nature which they or any of them may suffer, incur or be put to arising out of or in connection with this Agreement whether TFL, affiliates of TFL, the Mooring Master and/or any of their respective employees and agents are passively, concurrently or actively negligent or at fault (other than recklessness or wilful default) and regardless of whether or not liability may be imposed on them without fault.
Further to the extent that TFL, any affiliate of TFL, or the Mooring Master, after consultation with the Company may in their discretion have indemnified any person whatsoever in respect of any claim or demand made by such person arising out of or in connection with this Agreement for which the Company is responsible by the terms of this Clause 13, then the Company shall thereupon be liable to Indemnify TFL, any affiliate of TFL or the Mooring Master, against the amount paid by them to such person in respect of such claim or demand and against all other loss, costs (including costs as between attorney or solicitor and own client) liabilities, damages and expenses which TFL, any affiliate of TFL or the Mooring Master suffer, incur or are put to in connection therewith.
The indemnity given by the Company hereunder shall apply without exception in all cases, including but not limited to those in which TFL are entitled to indemnification by their insurers.
In entering into the agreement contained in this Clause 13.3 TFL contracts both on its own behalf and as agent on behalf of those other persons, including but not limited to affiliates of TFL and the Mooring Master referred to in Clause 13.3 and also as trustee for the benefit of such persons.
13.4 Knock for knock on Property and Personnel: Notwithstanding Clauses 13.1 to 13.3 inclusive and any other provisions in this Agreement to the contrary, each Party ('the First Party") shall defend and indemnify the other Party against all claims, demands, loss, costs (including costs as between attorney or solicitor and own client), damages, liabilities and expenses which the other party may suffer, incur or be put to in respect of:
(a) loss or damage to the property of the first party and to the property of the first party's affiliated companies,
(b) personal injury, disease or death to any employee or agent of the first party or of any of its affiliated companies that directly or indirectly arises out of or in connection with performance of this Agreement regardless of whether the other party or its employees or agent is claimed to be passively, concurrently or actively negligent or at fault, and regardless of whether or not liability may be imposed on them without fault.
13.5 Pollution Indemnity and Wreck removal. The Company shall defend and indemnify TFL, affiliates of TFL, the Mooring Master and all of their respective employees and agents against all claims, demands, loss, costs (including costs as between attorney or solicitor and own client), damages, liabilities and expenses which they or any of them may suffer, incur or be put to claims, suits, liabilities, costs and expenses in respect of:
- personal injury or disease to or death of persons;
- damage to or destruction of property; or
- loss of income or amenity; or
- natural resource damage; or
- wreck removal,
arising from or connected with a threatened or actual discharge of oil from any tanker and /or any related wreck or wreckage involved in or arising from a transfer whether it is alleged that TFL, affiliates of TFL, the Mooring Master and/or any of their respective employees and agents are passively, concurrently or actively negligent or at fault (other than wilful or malicious default) and regardless of whether or not liability may be imposed on them without fault.
13.6 No Waiver of Liability: The Company hereby waives any rights to limit their liability that may exist in respect of any indemnities granted in Clause 13.
13.7 Mooring Master: For the purpose of this Clause 13 only, the Mooring Master shall be deemed to be an agent of TFL who shall be entitled to rely upon the provisions of this Clause 13 as if a Party to it. For all other purposes in relation to the STS services and STS Transfer agreement the Mooring Master shall be deemed to act in the capacity of employee or agent of the owners, operators, ship managers and demise charterers (if any) as applicable under the control of the Master or other person in charge of the vessel.
14. ASSIGNMENT
14.1 This Agreement or any right hereunder may not be assigned or transferred by either Party without the written consent of the other Party except that TFL may assign its rights and obligations hereunder to an affiliate of TFL without the Company's consent and except that the Company may from time to time assign all or part of its rights and obligations to an affiliate of the Company with TFL’s prior written consent, such consent not to be unreasonably refused.
15. BUSINESS ETHICS
15.1 No Director or employee or agent of one Party or its affiliates shall:
(a) give or receive any commission, fee, rebate, gift or entertainment of significant cost or value in connection with STS Transfers to any director, employee or agent of the other; nor
(b) enter into any business arrangement with any director, employee or agent of the other Party or its affiliates (other than normal inter-company business) without prior written notification to both Parties. A promotional gift with the logo of one Party of a value not exceeding fifty-pound sterling shall not contravene this Clause. Each Party shall promptly notify the other of any violation of this Clause that comes to its attention and any consideration given or received in violation shall be paid over or credited to the other Party. Each Party may at its own expense have the records of the other and its affiliates audited by a mutually agreeable independent audit agency for the sole purpose of determining compliance with this Clause.
16. ENTIRE AGREEMENTS AND CONTRACT AMENDMENTS
16.1 Save to the extent that STS agreements will be executed and performed pursuant hereto, this Agreement comprises the entire agreement between the Parties and supersedes all prior representations, agreements and understandings between the Company and TFL concerning the subject matter, or in consideration hereof.
16.2 This Agreement will be implemented by the exchange of messages in the form of Appendix “A” and an acceptance of Appendix “A” for any proposed transfer and shall remain confidential to the Parties hereto save to the extent it is necessary to communicate its terms to the Parties servants agents of sub- contractors for the purposes of the agreement.
16.3 This Agreement shall only be altered or varied in writing signed by both Parties and no third Party (other than the Mooring Master) shall be entitled to any benefit hereunder.
17. ARBITRATION
17.1 This Agreement shall be subject to English law. Any disputes arising out of or in connection with this Agreement including the interpretation thereof shall be resolved by arbitration before three arbitrators in London in accordance with the Arbitration Act 1996. Each Party shall appoint an arbitrator and the arbitrators so appointed shall appoint a third arbitrator. On receipt by one Party of the nomination in writing of the other Party's arbitrator, that Party shall appoint their arbitrator within 14 days, failing which the arbitrator appointed may be appointed as sole arbitrator.
18. ADDRESSES FOR REQUESTS FOR STS TRANSFER SERVICE AND OTHER NOTICES
18.1 Any request by the Company for STS Transfer Services and any notices or other communications to TFL shall be sent to the address shown below, or to such replacement address as TFL may from time to time by written notice communicate to the Company.
Top Fenders Ltd
7 Portman Mews South, London
W1H 6AY London
United Kingdom
Tel: +44 (0) 203 219 5780
Email: sts@topfenders.com
18.2 Every notice or communication under this Agreement shall be given in writing by email or registered mail.
Parties to this Agreement
APPENDIX A - EXAMPLE QUOTATION
PROPOSAL
Top Fenders Limited is to provide STS equipment inclusive of fenders, all fender mooring equipment, Cargo hoses, and support craft to rig/unrig the fenders along with one of our Mooring Master who will advise during the berthing and unberthing of the vessels and supervise the transfer.
Mother Vessel: TBA
Daughter Vessel: TBA
Cargo: XXXX
Quantity: XXXX
Location: Offshore Lomé, Togo.
STS Rate: XXXX USD per 24 hrs, pro rata thereafter
Agency Fee: XXXX USD
STS Time to Count: Our service charge starts counting from once our support craft commence the fendering of STS gears and will continue until ”Defendering completed” / All equipment and Mooring Master is taken off the performing vessel. If fendering is completed the night before the scheduled laycan, hire time will only start from 0500 hrs day after when vessels will proceed for STS.
Payment Terms: 30 days credit from invoice
BASE INFORMATION
Full details of the STS equipment to be used on this operation, the rendezvous co-ordinates and any additional requirements to operate in this location can be sent upon request.
AVAILABILITY
The above quote is applicable to the date range given, should for any reason your ETA change we will not be able to guarantee STS equipment availability therefore please check with us first.
TERMS AND CONDITIONS
The above quotation is in align with our standard ship-to-ship transfer service agreement, a copy of which will be forwarded to you should you wish to proceed.
If, for whatever reason, the ship-to-ship transfer agreement is not signed prior to commencement of the STS operation, the client by accepting the STS service, agrees to the provisions and conditions as if the agreement had been signed in full.
CANCELLATION OF OPERATION
Should the STS operation be cancelled after costs have been incurred for the mobilisation of equipment and personnel, a minimum 24 hour rate will be applied.
APPENDIX B - INDEMINITY AGREEMENT
| The Master | |||
|---|---|---|---|
| Discharging Vessel | Receiving Vessel | ||
| Location | Location | ||
| Date | Date | ||
Dear Sir
STANDARD INDEMNITY TERMS & CONDITIONS
I hereby request the services of an Mooring Master to be provided by Top Fenders Ltd. ("TFL") in accordance with the terms and conditions set out in the STS Transfer Services agreement with TFL (a copy of which is below) for the STS transfer in question, which I hereby accept on behalf of my owners and/or demise charterers.
CONDITIONS FOR STS TRANSFER SERVICES
This document sets out the terms and conditions on which Top Fenders Ltd. ("TFL") provides STS Transfer Services to any vessel. This document is incorporated by reference into a letter to be signed by the Master of each vessel involved in an STS Transfer who will thereby agree that this document applies to the STS Transfer in question.
1. By signing a letter incorporating this document or accepting the email agreement from the TFL Operations and Vetting Coordinator, the Master signs for himself and on behalf of the owners, operators, ship managers and demise charterers (if any) of the vessel concerned who are all bound by the provisions of this document
2. In all circumstances the Master of the vessel concerned shall remain solely responsible on behalf of the owners, operators, ship managers and demise charterers (if any) for the safety and proper navigation of such vessel and for all aspects of the Cargo transfer operations conducted by his ship.
3. The Mooring Master shall act solely to assist the Master as necessary in the mooring, Cargo transfer and unmooring operations related to the STS Transfer. The presence of the Mooring Master shall not relieve the Master of his responsibility as stated in Paragraph 2 above, and whilst performing STS Transfer Services the Mooring Master shall be deemed to be acting in the capacity of employee or agent of owners, operators, ship managers, and demise charterers (if any) as applicable under the control of the Master or other person in charge of the vessel.
If for any reasons whatsoever, the letter that should have incorporated this document is not, or cannot be signed by the Master, the Master by accepting STS Transfer Services from the TFL Operations and Vetting Coordinator nonetheless agrees to the provisions of this document on behalf of all the persons stated in Paragraph 1 as fully as if such letter has been signed.
4. Neither TFL nor the Mooring Master nor any other person employed or engaged by TFL in connection with the performance of STS Transfer Services shall be liable in any circumstance whatsoever to the Master, owners, operators, ship managers, and demise charterers (if any) or to any other party for any loss, damage, or delay to the vessel and/or her Cargo, even if such loss, damage or delay is caused by the negligence of TFL or the Mooring Master or any other such person.
The owners, operators, ship managers and demise charterers (if any) of the vessel shall jointly and severally defend and indemnify TFL, and the Mooring Master and any other person employed or engaged by TFL in connection with any STS Transfer Service against:
a. All claims whatsoever for personal injury, loss of life, loss or damage to any property whatsoever and other claims for delay and legal compensation,
b. All costs, and expenses which they or any of them reasonably incur in relation to such claims arising out of or connected with the performance of STS Transfer Services even if such claims are caused by the negligence of TFL, the Mooring Master or any other person. Further to the extent that TFL may indemnify the Mooring Master or any other such person against any claim that is the responsibility of the owners, operators, ship managers and demise charterers (if any) under this paragraph, which TFL shall be entitled to do at its sole discretion then owners, operators, ship managers and demise charterers (if any) shall jointly and severally indemnify TFL against the amount so paid out by TFL.
5. This agreement shall be subject to English Law and jurisdiction. Any disputes arising out of this Agreement including the interpretation thereof shall be resolved by arbitration before three arbitrators in London in accordance with the Arbitration Act 1996. Each Party shall appoint an arbitrator and the arbitrators so appointed shall appoint a third arbitrator. On receipt by one Party of the nomination in writing of the other Party's arbitrator, that Party shall appoint their arbitrator within 14 days, failing which the arbitrator appointed may be appointed sole arbitrator.
| Discharging vessel signature | Receiving vessel signature | ||
|---|---|---|---|
| Date | Date |
APPENDIX C - TFL CHECKLIST
Company Policy
It is company policy that all STS operations are conducted in strict compliance with the OCIMF/SIGTTO Ship to Ship Transfer Guide (Petroleum, Chemicals & Liquefied Gases) 1st Edition 2013.
The information provided below will be used by our operations department and forwarded to the Master of the vessels involved and to the Port Authority for their review (if applicable). We reserve the right to refuse an STS operation if deemed to be unsafe as a result of a wrong declaration by the vessels involved in the STS.
Please ensure that the following documents are sent WITH this checklist. We will not approve any operation to proceed until all documentation has been completed and reverted to the operations department.
| Document Required | Attached (please tick) | |
|---|---|---|
| 1. | General Arrangement Plan | |
| 2. | HVPQ or Recent Q88 (within 3 months) | |
| 3. | Mooring Arrangement | |
| 4. | Approval cover of your STS Plan | |
| 5. | MSDS (Discharging Vessel Only) |
| Vessel’s Details | ||
|---|---|---|
| 1. | Name | |
| 2. | IMO number | |
| 3. | Flag | |
| 4. | Call sign | |
| 5. | ||
| 6. | Mini M | |
| 7. | Name / Nationality of Master | |
| 8. | Number of STS Operations conducted by the Master year to date | |
| 9. | Total No. of crew / Nationality on board | |
| 10. | Common working Language on-board | |
| 11. | Name and contact no. of DPA and Assistant DPA | |
| 12. | Do you have an approved STS plan on-board? | |
| 13. | LOA / Beam / Depth | |
| 14. | Hull type (single/double) | |
| 15. | Your maximum parallel body length | |
| 16. | Pre STS displacement / Post STS displacement | |
| 17. | Pre STS draft/ Post STS draft | |
| 18. | Expected maximum/minimum height of manifold above sea level | |
THE INFORMATION SUPPLIED IN THIS QUESTIONNAIRE SHOULD REFLECT THE SUBJECT STS OPERATION.
THE STABILITY INFORMATION YOU PROVIDE SHOULD BE YOUR FIGURES BEFORE AND AFTER THE SUBJECT STS OPERATION.
| MARPOL regulation 42, notifying Port Authorities (48 hours prior to the STS) | ||
|---|---|---|
| When STS operations are performed within territorial waters, local/national regulations shall be checked and necessary approvals obtained. The responsible person(s) should inform Port Authorities in advance of the scheduled STS operation. Once the initial report of any ETA has been made, it should, if possible, be updated when a variance of more than two hours is expected from the time given in the latest report. | ||
| 1. | Identification of STS operations service provider or person in overall advisory control and contact information? | Top Fenders Limited |
| 2. | What is the planned geographical location of the STS operation? | |
| 3. | Are STS operations to be conducted at anchor or underway? | At the discretion of the Mooring Master |
| 4. | Oil type and quantity (including IMDG Code categorisation)? | |
| 5. | Planned duration of the STS operation(s)? | |
| 6. | Vessel’s ETA at the rendezvous position/ anchorage | |
| 7. | Do your owners instructions allow, and are you willing to undertake, the STS operation in the hours of darkness? | |
| 8. | You current position latitude / longitude | |
| 9. | What MARSEC level are you currently operating under? | |
| 10. | Have you agreed the STS transfer area? | |
| 11. | Confirm vessel has mooring plan / diagram (please send as Appendix). | |
| 12. | Are all mooring winches operational? If no please provide details | |
| 13. | Please confirm mooring winch brake capacity and date of last brake test. | |
| 14. | Are enclosed fairleads and mooring bitts in accordance with OCIMF Mooring Equipment Guidelines and are they of a sufficient number? | |
| 15. | What is the SWL of the mooring bitts? | |
| 16. | Are the vessel’s cranes certified for lifting personnel? If yes please send a copy of the certificate. | |
| 17. | Are your hose handling cranes fully operational? | |
| 18. | Number and Size (inches) of Cargo Manifolds | |
| 19. | Please confirm you have the reducers, correct nuts, bolts and gaskets for connecting 8’’ and/or 10’’ hoses. | |
| 20. | Do you have suitable hanging-off ropes or hose strops for supporting hoses (i.e. 4 pieces approx. 48 mm diameter 15 meter long)? | |
| 21. | What is the maximum loading / discharge rate (m3/hr) per manifold? | |
| 22. | Can the vessel load / discharge through two manifolds simultaneously? | |
| 23. | Will you complete emergency drills before you arrive at the STS location? | |
| 24. | Does your vessel have an STS contingency plan for emergencies and pollution? | |
| 25. | Are all items of navigational equipment fully operational? | |
| 26. | Are all items of main and auxiliary machinery fully operational? | |
| 27. | Have the main and emergency steering systems been tested before arrival? | |
| 28. | What is the speed of your vessel at Dead Slow Ahead in your current condition? | |
| 29. | If the transfer is to be conducted underway, can your vessel maintain a constant speed of 4.5 to 5 knots for a minimum period of 2 hours? | |
| 30. | What is the minimum speed and RPM to maintain steering? | |
| 31. | Will there be sufficient crew for each stage of the STS operation and will statutory work hours to be adhered to? | |
| 32. | Both sides of the vessel are clear of any overhanging projections including bridge wings? | |
| 33. | Are there any specific health hazards of Cargo to be transferred e.g. H2S or benzene? | |
| 34. | Confirm all your tanks are inerted (<8% oxygen)? | |
| 35. | Confirm last Cargo information, Including H2S content? | |
| 36. | Who has been nominated as your local agent? | |
| 37. | Do you have accommodation for our Mooring Master? | |
| Any additional information? (Please state below) |
|---|
| Submitted by | |
|---|---|
| Name | |
| Designation | |