5/30/01

 

TOSCO CORPORATION

MARINE PROVISIONS FOR ALL TRANSACTIONS

OF ITS DIVISIONS AND AFFILIATES

June 2001

 

 

 

I.   General. - Except where specifically provided in the “Special Provisions,” these Marine Provisions including the Annexes and Appendices, shall govern.

 

II.  Definitions. - As used in these Marine Provisions:

 

     1.  “Agreement” means the entire contract between the parties, including the Special Provisions; as well as the General Provisions and these Marine Provisions, whether incorporated by reference, or otherwise agreed by the parties.

 

     2.  “Cargo” means any products, gas liquids, atmospheric residuum, crude oil and condensate described elsewhere in this Agreement.

 

     3.  “Cargo Transfer Point” means the place designated in the Agreement for delivery of the cargo by one party to the other.

 

     4.  “General Provisions” means the general terms and conditions of the Agreement.

 

     5.  “Open Period for Berthing” means a window for berthing, which either has not already been assigned by the terminal to some other Vessel, or for which some other Vessel cannot claim priority on the basis that her notice of readiness was given earlier than the notice of readiness of the Vessel performing under this Agreement.

 

     6.  “Special Provisions” means the specific transaction terms and conditions of the contract including provisions relating to quantity, quality, term, delivery and price.

 

     7.  “Terminal Party” means the party taking delivery from, or making delivery to, a Vessel.

 

     8.  “Vessel” means any barge, tow, ocean-going barge, tanker or ocean tanker.  The term “tow” means any combination of tug boat and barge(s) with the ability to function as a single unit.

 

     9.  “Vessel Party” means the party taking delivery on, or making delivery from, a Vessel.

 

III. Nominations and Pre-Arrival Conditions

     1.  Vessel Nomination.  Net less than four (4) days before a tow’s arrival at the Cargo Transfer Point, nor less than seven (7) days before arrival of any other Vessel at the Cargo Transfer Point, the Vessel Party shall nominate for acceptance by the Terminal Party a suitable Vessel which is proposed to perform under the Agreement.  The Vessel Party shall furnish, as required by the Terminal Party, data about the Vessel’s dimensions, equipment, winches and lines, as well as whether lightering is contemplated (for Vessel Party account) in order for the Vessel to reach a safe arrival draft, and such other data or documents as the Terminal Party may from time to time reasonably require.

 

    2.  Vessel Acceptance.  Acceptance of the Vessel nomination shall not be unreasonably refused.  Notice of acceptance or rejection of the nominated Vessel shall be communicated to the Vessel Party as soon as possible but always within forty-eight (48) hours, excluding Saturdays, Sundays and holidays at the Cargo Transfer Point, after receipt by the Terminal Party of the nomination and all of the required data.  Acceptance of any Vessel shall not constitute a continuing acceptance of such Vessel for any subsequent cargo delivery to or from the Vessel.  Each cargo delivery to or from a Vessel requires Vessel approval from the Terminal Party.  If the Cargo Transfer Point is a marine terminal with smaller berth(s) for barges, the Terminal Party may reject a nomination of a barge which does not meet the requirements of the barge berth(s) and would require space at an ocean vessel dock.

 

    3.  Vessel Substitution.  If a Vessel nomination is rejected by the Terminal Party, the Vessel Party must promptly nominate another, suitable Vessel for acceptance by the Terminal Party.  If a Vessel nomination is accepted by the Terminal Party, the Vessel Party may substitute another suitable Vessel, by nominating it for acceptance by the Terminal Party.  Nomination of a substitute Vessel shall not be made later than four (4) days before the Vessel’s arrival at the Cargo Transfer Point.  A Vessel nomination which has been accepted by the Terminal Party is not superseded until a substitute Vessel nomination has been accepted by the Terminal Party.

 

    4.  ETAs. 

 

     A.  The Vessel Party shall give notice in writing about the Vessel’s estimated time of arrival (“ETA”) at the Cargo Transfer Point, such notice to be actually received by the Terminal Party at least four (4) days in advance of such arrival by a tow, and at least seven (7) days in advance of such arrival by any other Vessel.

 

     B.  The Vessel Party shall also give notice in writing about ETA, such notice to be actually received by the Terminal Party 72, 48, 24 and 6 hours before Vessel’s expected arrival at the Cargo Transfer Point.

 

     C.  The Vessel Party shall promptly notify the Terminal Party in writing about a new ETA if the ETA advances or recedes by two (2) hours or more after the twenty-four (24) hour ETA notice has been given.

 

    5.  Pre-Arrival Information.  The Vessel Party shall furnish, as reasonably requested by the Terminal Party, additional data in writing, about the Vessel’s dimensions, seaworthiness, equipment, and certificates, as well as the nature and estimated duration of the Vessel’s anticipated cargo handling and other operations at the Cargo Transfer Point, such information to be actually received by the Terminal Party not later than forty-eight (48) hours before the Vessel’s arrival at the Cargo Transfer Point.

 

    6.  Terminal Regulations.  If the Cargo Transfer Point is a marine terminal, a Vessel must comply at all times with the applicable terminal regulations.  Copies of such regulations are available from the Terminal Party on request.

 

IV. Post-Arrival Events and Conditions

 

    1.  Laydays.  The laydays in the Special Provisions constitute a mandatory period for the Vessel to give NOR at the Cargo Transfer Point.  If the Vessel gives NOR within the laydays, it is anticipated that loading or discharging may not be completed before the laydays expire.

 

    2.  Late Arrival Outside Laydays.  Time is of the essence in this Agreement.

 

     A. Anything to the contrary notwithstanding, if the Vessel gives NOR at the Cargo Transfer Point after the laydays have expired, then the Terminal Party

 

          (i) When it is the receiving party, may reject any cargo on the Vessel; and

 

          (ii) When it is the delivering party, may refuse to load cargo on the Vessel,

 

all without prejudice to the other rights and remedies of the Terminal Party.

 

     B. Neither the acceptance by the Terminal Party of a Vessel or a substitute vessel nomination with an ETA beyond the laydays in the Special Provisions, nor the assignment by a terminal of a reservation window extending beyond such laydays, extends expiration of the laydays.

 

    3.  Priority in Berthing.

 

     A.  If the marine terminal operates a system of advance reservations for berthing, priority in berthing shall be given to each such Vessel which gives NOR within her reservation window.

 

     B.  In addition, whether or not Vessels are assigned reservation windows, all Vessels shall be accorded priority in berthing, after the commencement of the laydays (if any) in the Special Provisions, for Open Periods for Berthing which are available, or which become available by changes in reservation windows, in the order in which each Vessel’s valid NOR is received.

 


    4.  Anticipated or Actual Tardy Arrival Outside Reservation   Window.  If the marine terminal operates a system of advance reservations for berthing some or all types of Vessels, and the terminal has assigned a reservation window for the Vessel performing under this Agreement, she may lose her place in the queue and the terminal may assign her the next available Open Period for Berthing as a new reservation window, whenever the Vessel’s revised ETA or actual arrival is later than her assigned reservation window.

 

    5.  Non-Compliance with Terminal Regulations or Breakdown of Vessel Safety or Environmental Systems.  If the Cargo Transfer Point is a marine terminal, failure of a Vessel to comply with the terminal’s regulations, or deficiency in a Vessel’s safety or environmental systems, shall entitle the Terminal Party to order the Vessel to vacate her berth, with all expenses and time lost during the ensuing delay until the Vessel has reberthed, to be for the account of the Vessel Party; provided that after the Terminal Party has actually received the Vessel’s notice of readiness for reberthing, she will be assigned the next available Open Period for Berthing.

 

    6.  U.S. Coast Guard Compliance.  The Vessel Party warrants that, throughout the cargo transfer operation, the Vessel shall fully comply, or hold authorized waivers for non-compliance, with all applicable U.S. Coast Guard regulations in effect as of the date Vessel berths.  All expenses and time lost during any period when this warranty has been breached shall be for Vessel Party’s account.

 

    7.  Environmental Compliance.

 

     A.  The Vessel Party warrants that the Vessel shall comply with all local, state and Federal environmental laws and regulations covering water, air, and land pollution while at the place(s) of the Cargo Transfer Point.  If the Vessel fails to comply with such laws and regulations, the Vessel may be required to vacate her berth and even to proceed to sea.  All expenses and time lost during any period when this warranty has been breached and until the Vessel reberths shall be for Vessel Party’s account; provided that after the Terminal Party has actually received the Vessel’s notice of readiness for reberthing, she will be assigned the next available Open Period for Berthing.

 

     B.  The Vessel Party is responsible for providing safety equipment to the crew of the Vessel when the cargo is high sulphur or otherwise dangerous to health.

 

    8.  Oil Pollution Responsibility Certificate.  The Vessel Party warrants that the Vessel shall comply with the U.S. Federal Water Pollution Control Act, as amended, and shall have secured and carry onboard the Vessel a current U.S. Coast Guard Certificate of Financial Responsibility (Water Pollution).  Vessels shall also have onboard any other Federal and/or state Proof of Financial Responsibility Certificate which may be required at the Cargo Transfer Point.  All expenses, and time lost during any period when this warranty has been breached, shall be for Vessel Party’s account.

 

    9.  Pollution Prevention and Responsibility.  In the event an escape or discharge of cargo or bunkers occurs from the Vessel and causes or threatens to cause pollution damage, the Vessel will promptly take whatever measures are necessary to prevent or mitigate such damage.  The Vessel Party hereby authorizes the Terminal Party, at the Terminal Party’s option, upon notice to the Vessel Party, to undertake such measures as are reasonably necessary to prevent or mitigate the pollution damage.  The Terminal Party shall keep the Vessel advised of the nature and results of any such measures taken, and if time permits, the nature of the measures intended to be taken.  Any of the aforementioned measures shall be at the Vessel Party’s time and expense, provided that if the terminal caused or contributed to such escape or discharge, the expense, of the aforementioned measures shall be borne by the Terminal Party in proportion to its negligence in causing or contributing to the escape or discharge.  If the Vessel Party considers said measures should be discontinued, the Vessel Party shall so notify the Terminal Party and thereafter the Terminal Party shall have no right to continue said measures at the Vessel Party’s expense.  This provision shall be applicable only between the parties hereto and shall not affect any liability of the Vessel and the Vessel Party to third parties, including, but not limited to, governments.

 

    10.  P&I Insurance.  The Vessel Party warrants that throughout Vessel’s service under this Agreement, the Vessel shall have full and valid Protection and Indemnity Insurance from a P&I Club that is a member of the International Group of P&I Clubs.  The P&I Insurance shall be for Vessel Owner’s account and at no cost to the Terminal Party.  The P&I Insurance must include coverage of the Vessel against liability for pollution for an amount not less than 500 million U.S. dollars per incident, plus an additional 500 million U.S. dollars per incident for an ocean tanker.  If requested at any time during the term of this Agreement, the Vessel Party shall promptly furnish to the Terminal Party reasonable evidence of such P&I Insurance.  The warranty set forth above is an essential part of this Agreement, and the obligations of the Terminal Party under this Agreement are conditioned on the truth and performance of such warranty.  Any breach of the above warranty shall entitle the Terminal Party to terminate this Agreement without limiting its right to recover damages.

 

    11.  Drug and Alcohol.  The Vessel Party warrants that any Vessel (not otherwise subject to U.S. Department of Transportation Drug and Alcohol Regulations) which is nominated to the Terminal Party shall be operating under a drug and alcohol policy that meets or exceeds the standards in the Oil Companies International Marine Forum (“OCIMF”) then current Guidelines.

 

    12.  Inert Gas System.  A Vessel fitted with an inert gas system (“IGS”) will not be permitted to berth for loading or discharge of any cargo unless the IGS is fully operational and all cargo tanks are inerted with an oxygen level at or below eight (8) percent.  For a Vessel intending to handle products or chemicals which could be adversely affected by inert gas, or products or chemicals that do not require inert gas blanketing, the Vessel Party may request the Terminal Party for an exemption from this clause at least three (3) business days prior to the Vessel’s arrival at the Cargo Transfer Point.  For a Vessel engaged in crude oil trade operations, positive inert gas pressure shall be maintained on all cargo and slop tanks throughout the transfer and any Crude Oil Washing (“COW”) operation.  If the Terminal Party consents, manual gauging/sampling of Onboard Quantity (“OBQ”) or Retain on Board (“ROB”) may be accomplished per API MPMS chapter 17.2.  Should the IGS fail after the Vessel has berthed, cargo handling shall be terminated immediately and the Vessel may be ordered to vacate her berth until the IGS is fully operational and tanks are inerted to the requisite pre-arrival condition.  Temporary or substitute equipment or procedures to correct IGS malfunctions may not be used without the Terminal Party’s approval.  All expenses and time during IGS failure, and between berthings in connection with IGS failure, are for Vessel Party’s account; provided that after the Terminal Party has actually received the Vessel’s notice of readiness for reberthing, she will be assigned the next available Open Period for Berthing.

 


    13.  Vessel Connection Construction.  Vessel Party warrants that all piping, valves, spools, reducers and other fittings comprising that portion of the Vessel’s manifold system outboard of the last fixed rigid support to the Vessel’s deck and used in the transfer of cargo, bunkers or ballast, will be made of steel or nodular iron.  The fixed rigid support for the manifold system must be designed to prevent both lateral and vertical movement of the manifold.  Vessel Party further warrants that no more than one reducer or spool piece (each ANSI standard) will be used between the Vessel’s manifold valve and the terminal hose or loading arm connection.

 

    14.  Carrier Alpha Code.  Vessel Party warrants that the Bill of Lading issuer shall have and use a standard carrier alpha code required by the U.S. Customs regulations.

 

    15.  U.S. Customs Compliance.  The Vessel Party warrants that the Vessel shall fully comply or hold waivers for non-compliance with all applicable U.S. Customs regulations in effect as of the date Vessel berths.  The Vessel Party shall provide all required Customs information to the Terminal Party at least three (3) business days prior to Vessel arrival.

 

V.  Terminal-Related Conditions

 

    1.  Safe Berth Availability and Charges.

 

     A.  The Terminal Party shall exercise due diligence to provide a safe berth to which the Vessel may proceed to or depart from, and where the Vessel can always lie safety afloat.  However, if the Vessel cannot, in the Terminal Party’s sole discretion, maintain its moor safely at the dock, then the Terminal Party may order hold-in tugs in its sole discretion and such tugs shall be for Vessel Party’s account.  The Terminal Party shall provide a berth for the Vessel free of a wharfage fee for normal cargo transfer.  The Vessel shall vacate her berth promptly after hoses are disconnected.  A wharfage fee may be charged to the Vessel Party for discharge extended beyond thirty-six (36) hours or if the Vessel remains at her berth after hoses are disconnected.  Dockage and service fees, including mooring, booming, fresh water, steam and oily slops receipts will be charged to the Vessel Party.  In addition, all duties and other charges on the Vessel, including, without limitation, those incurred for tugs and pilots, and other port costs shall be for the Vessel Party’s account.

 

     B.  Notwithstanding anything contained in this clause, the Terminal Party shall not warrant the safety nor draft of public channels, fairways, approaches thereto, anchorages or other publicly-maintained areas either inside or outside the port area where the Vessel may be directed.

    2.  Vacating of Berth.  The Terminal Party may order the Vessel to vacate her berth if it appears that because of the Vessel’s disability the Vessel will not be able to complete loading or discharging of cargo within a period equal to laytime as calculated under Clause VI(2).  All expenses and time lost from disconnection of the hoses until reconnection of hoses, and between berthings shall be for the account of the Vessel Party; provided that after the Terminal Party has actually received the Vessel’s notice of readiness for reberthing, she will be assigned the next available Open Period for Berthing.

 

    3.  Shifting of Vessels.  In addition to the Terminal Party’s remedies elsewhere in these Marine Provisions, the Terminal Party may, at its option, warp or shift the Vessel within a berth or between berths, as well as to and from the anchorage.  Expenses and time lost during such activities shall be for the Terminal Party’s account.  Except as otherwise provided in this subclause, all expenses and time during any warping or shifting of the Vessel shall be for the Vessel Party’s account.

 

    4.  Ballasting and Cargo Slops.

 

     A.  If the Cargo Transfer Point has ballast water facilities, they shall receive Vessel’s ballast water and/or cargo slops up to the maximum capacity available, with all time used during deballasting and offloading slops (unless concurrent with cargo handling) and any charges for this service to be for the Vessel Party’s account.  Any delay in waiting for such facilities shall be for Vessel Party’s account.  If the Vessel must shift to and/or from such facilities, all time used by the Vessel in shifting, as well as the shifting expenses shall be for Vessel Party’s account. Expense and time used whenever a Vessel is taking on ballast (unless concurrent with cargo handling) shall be for the account of the Vessel Party.  The title to cargo slops shall pass to the Terminal Party at the first permanent flange on shore.  Vessel Party warrants that the cargo slops do not contain any Vessel-generated waste.

 

     B.  Vessel Party warrants Vessel will minimize the loading of ballast into cargo tanks previously containing crude oil (dirty ballasting) at discharge terminal.  Any required ballasting is to be conducted simultaneously with discharge operations while maintaining at least double valve segregation.  During dirty ballast operations, vapor balancing must be utilized between dirty ballast loading compartments and discharging cargo compartments, thereby eliminating emission of crude vapors to the atmosphere.  All delays, losses and expenses incurred due to tanker’s non-compliance will be for Vessel Party’s account.

 

 

    5.  Special Provisions for Foreign Cargo Slops.  Terminal Party shall be notified at least three (3) business days in advance of discharge when a Vessel has foreign cargo slops on board which Vessel desires to discharge.  Notification shall include the contents of the cargo slop material (what it is), country of origin, estimated value of the cargo slops, and an estimated quantity of the cargo slops.  If advance notification is not received by Terminal Party, any time lost in discharging the cargo slops from the Vessel because of a delay in clearing the cargo slops through U.S. Customs, shall be for Vessel Party’s account.  All expenses, including but not limited to customs fees, associated with the clearing of foreign cargo slops through U.S. Customs, the testing of the cargo slops materials, and the removal and proper disposal of the cargo slops shall also be for the account of the Vessel Party.

 

    6.  Vessel-Generated Waste.  Fees associated with the testing, removal or reception of Vessel-generated waste, including fuel and lube oil sludge and oil bilge water, shall be for the account of the Vessel Party.  Any waiting for reception facilities at a terminal for Vessel-generated waste shall be for Vessel Party’s account.  If the Vessel must shift to and/or from such facilities, all time consumed by the Vessel shifting, as well as shifting expenses such as for tugs, mooring, and pilots, shall be for Vessel Party’s account.  The Vessel Party shall retain title to the waste material until it is tested and commingled with terminal waste or, alternatively, delivered to a waste disposal company possessing a valid permit.

 

    7.  Pollution Control Representative.  Terminal Party may, at its option, place Pollution Control Representatives (“PCRs”) on board the Vessel to observe loading and/or discharging of cargo and related operations during the period after the Vessel has arrived at a loading or discharge port.  In addition, Terminal Party may, at its option, place a PCR on any Vessel(s) involved in a ship-to-ship loading/discharge operation.  PCRs will advise the Master about avoidance of pollution, unsafe act, or violation of terminal regulations.  The PCRs will not, however, under any circumstances, order or direct the taking of any particular action or interfere in any way with the Master’s exercise of his or her authority.  The responsibility and liability for any pollution, unsafe act or violation of terminal regulations remains with the Vessel Party, the Vessel(s), and their Master(s).

 

    8.  Hoses and Simultaneous Discharge.

 

     A.  Hoses between the tanker and the shore flanges shall be furnished by the Terminal Party.  Flanges for hose connections should be at or near the Vessel’s dock side rail.  Crossover hoses between barges, or hoses at crossover offshore manifolds of Vessels (i.e., “jumpers”), shall be furnished and connected by the Vessel at the risk and expense of the Vessel Party.

 

     B.  Vessel’s cargo hoses, including marine vapor recovery (“MVR”) and offshore manifold crossover hoses (or jumpers), must be tested annually and be in service for less than five years.  Documentation of annual hydrostatic testing and service age is required to be aboard the Vessel and must be made available to the Terminal Party on request.  Any lost time due to verification and compliance shall be for the account of Vessel Party.

 

     C.  If requested by the Terminal Party, Vessel shall discharge more than one grade simultaneously if Vessel is technically capable of doing so.

 

    9.  Damage to Terminal Party Property.  Vessel Party assumes full responsibility for any damage sustained by wharves, berths, docks, tugs, or vessels owned or maintained by the Terminal Party, or for which the Terminal Party is responsible, arising out of the negligent or improper operation of the Vessel or any other waterborne craft ordered by, or being operated for the account of the Vessel Party.  The Vessel Party will fully and completely indemnify the Terminal Party for any such damages.

 

    10.  Crude Oil Washing (“COW”).  If Vessel is equipped for crude oil wash, the Vessel Party warrants that the Vessel is capable of crude oil washing all cargo tanks.  The Vessel Party further warrants that the Vessel complies with all international, national and local requirements applicable to COW.  The Vessel must inform the Terminal Party of its intention to COW at least forty-eight (48) hours prior to berthing.  The number of tanks to be crude oil washed shall be limited to the minimum required by law, unless the Terminal Party agrees or orders otherwise.  In the event COW operations occur at the Terminal Party’s request, the maximum warranted pumping time shall be increased by six (6) hours if all cargo tanks are crude oil washed, or by the pro rata portion based on number of tanks thereof if fewer than all cargo tanks are crude oil washed.

 

    11.  Shore Lines.  If requested by the Vessel Party at least three (3) business days prior to the Vessel’s arrival, the Terminal Party shall use best efforts to perform a line press or line displacement prior to discharge to assure full shore lines.

 

    12.  In-Harbor Lightering.  In-harbor lightering shall not be permitted without prior approval of the Terminal Party.  In-harbor lightering shall be performed at Vessel Party’s sole expense, time and risk.  The Vessel Party shall indemnify and hold the Terminal Party harmless for any loss or liability resulting from in-harbor lightering.

 

    13.  Local Provisions.  Provisions applicable to just a particular area are contained in the Appendices.

 

VI.  Notice of Readiness, Lightering and Calculation of Laytime.

 

    1.  Notice of Readiness (“NOR”).

 

     A.  After the Vessel has arrived at the customary anchorage for the Cargo Transfer Point, and is in all respects ready to proceed to the berth or to commence loading or discharging the cargo, as appropriate, the Vessel Party shall give notice of readiness by fax, letter, telegraph, wireless, radio telephone or telephone, berth or no berth.

 

     B.  If notice is given verbally, confirmation in writing shall be made within twelve (12) hours.

 

     C.  NOR may not be given until the Vessel has a valid T.V.E. certificate.

 

     D.  If immediately prior to giving NOR, the Vessel is discharging or loading other cargo in a berth at the Cargo Transfer Point, or waiting at a layberth there, NOR may be given at such berth, but time used in shifting from such berth to the anchorage or to the loading berth shall not count as laytime or time on demurrage.

 

    2.  Laytime.

 

     A.  All Vessels.

 

         (i) Notwithstanding any other provisions for commencement of laytime, laytime shall not commence at the first loading port prior to 0600 on the first layday in the Special Provisions, except that if the Vessel is berthed prior to the first layday with the Terminal Party’s consent, laytime commences when Vessel is all fast to the dock and the period between all fast and 0600 on the first layday in the Special Provisions will be credited by the Vessel Party against any demurrage claim.

 

         (ii) Notwithstanding any other provisions for commencement of laytime, laytime for a Vessel which tenders NOR at the first loading port after expiration of the laydays in the Special Provisions, if she is not cancelled, shall commence only when the Vessel is all fast to the dock.

 

         (iii) If the marine terminal operates a system of advance reservations, and the Vessel gives NOR within the reservation window, laytime commences six (6) hours later or when the Vessel is all fast to the dock, whichever is earlier.

 

         (iv) If the marine terminal operates a system of advance reservations, and the Vessel gives NOR before the beginning of the reservation window, laytime for a tow commences six (6) hours after the beginning of the reservation window or when the Vessel is all fast to the dock, whichever is earlier; and for all other Vessels as provided in Subclause VI(2)(a)(iii) above.

 

         (v) If the marine terminal operates a system of advance reservations, and the Vessel gives NOR after the expiration of the reservation window, laytime commences when the Vessel is all fast to the dock.

 

         (vi) For Vessels not assigned a reservation window, laytime commences as provided in Subclause VI(2)(a)(iii) above.

 

     B.  Barges Under 16,000 DWT.  Laytime for barges under 16,000 DWT shall be calculated at the following minimum rates:

 

                          Loading     Discharging

        Total Barrels in Cargo   Barrels/Hour  Barrels/Hour

 

        50,000 barrels & over        3,000         5,000

        25,000-49,999 barrels        2,500         3,000

        under 25,000 barrels     1,500         2,000

 

     C.  Tankers and Barges Over 16,000 DWT.  Thirty-six (36) running hours shall be permitted to the Terminal Party as laytime at the Cargo Transfer Point(s), for a full cargo, and pro rata thereof for part cargo based on the total tonnage of cargo carried by the Vessel on that voyage.  However, the minimum laytime will be twelve (12) hours for a part cargo.  Vessel Party warrants that the vessel is capable of receiving or discharging its entire cargo at a marine terminal within twenty-four (24) hours, or maintaining 100 psi at the ship’s rail during discharge, provided the terminal’s facilities permit one or the other.  In the event the Vessel fails to meet the aforementioned criteria, any time consumed in receiving or pumping cargo in excess of twenty-four (24) hours (or pro rata), as adjusted for COW, shall not count as laytime or time on demurrage.  An additional three (3) hours shall be added to the pumping time warranty for each additional Cargo Transfer Point.

 

     D.  Part Cargo Apportionment.  Whenever this Agreement covers cargo which is among other cargoes to be loaded or discharged by the Vessel at the same port, and the Vessel is waiting to berth or is waiting in berth for cargo handling to commence or re-commence, or is diverted on account of ice or other risks for which diversion is authorized, then laytime and time on demurrage during the delay shall be apportioned on the basis of the ratio of the tonnage of this cargo to the total tonnage of all such affected cargoes.  All time used in loading or discharge of the other cargoes shall be excluded from laytime and time on demurrage under this Agreement.  Whenever this cargo and other cargo are being loaded or discharged simultaneously, laytime and time on demurrage during periods of concurrent cargo handling shall be apportioned based on the ratio of the tonnage of this cargo to the total tonnage of all such cargoes subject to concurrent cargo handling.

 

     E.  Loading Into and Discharging From Other Vessels  Ordered by the Terminal Party.  In the event loading into or discharging from other Vessels of part of the cargo is ordered by the Terminal Party, one or more times, anchored, adrift, or underway, at a Cargo Transfer Point in or near a port or at a customary lightering position or anchorage for a port, or otherwise at sea within 100 miles of a port where a Cargo Transfer Point ashore is located, the place of such operations shall not count as a separate port or separate berth, regardless of the origin or destination of the other vessels.  Laytime for the place of such operations shall commence upon receipt of NOR there and continue until hoses are disconnected.  After such operations have been completed, laytime or time on demurrage will recommence six (6) hours after NOR is tendered at the customary anchorage for cargo handling of the balance of the cargo at the terminal, or when the Vessel is all fast to the dock there, whichever is earlier.

 

     F.  Shared Delays.  Unless otherwise excluded, one-half of laytime or time on demurrage shall count for any time lost due to a force majeure event as described in the General Provisions, weather and/or sea conditions, acts of God, torts of third parties, fire, explosion or strike, lockout, restraint of labor, or breakdown of machinery or equipment in or about the installation, facility, terminal, or plant of charterer, supplier, shipper or consignee of the cargo.

 

     G.  Laytime Exclusions.  Time shall not count as laytime nor time on demurrage if lost:

 

         (i) Due to inability of the Vessel’s facilities to safely discharge or receive cargo within the time allowed.

 

         (ii) Due to the Vessel requiring separate and/or additional shore tank gauges for any reason or the Vessel’s failure to comply with terminal regulations, or interruption of transfer operations as a result of Vessel Party requests for line fill checks by comparing intermediate ship and shore gauges.

 

         (iii) Due to prohibition of cargo transfer at any time by the Vessel, or the Vessel Party or port authorities, unless such prohibition is caused by the Terminal Party’s failure to comply with applicable laws or regulations.

 

         (iv) Due to Vessel Party’s failure to have required documentation.

 

         (v) Awaiting Customs and Immigration clearance and pratique.

 

         (vi) By strike, lockout, stoppage or restraint of labor of the Master, officers and crew of the vessel or towboat or pilots.

 

         (vii) During any delay for which the Vessel Party, the Vessel, her Master or crew is responsible.

 

         (viii) During bunkering.

 

         (ix) In reaching a berth due to conditions not reasonably within the Terminal Party’s control, including but not limited to weather delays, fog, channel blockage, or awaiting daylight, pilots, tugs and tide.

 

         (x) In passage from a lightering place to customary anchorage or berth and in shifting from the customary anchorage to the berth.

 

         (xi) As a result of a boycott arising in connection with the business of Vessel or Vessel Party, the terms or conditions of employment of Vessel or Vessel Party’s servants, or employment, trades, or cargoes of the Vessel.

 

         (xii) Due to restraint or interference in the Vessel’s operation by any governmental authority in connection with the ownership, registration, or obligations of the Vessel Party or the Vessel, or in connection with stowaways or with smuggling or other prohibited activities of the Vessel’s or Vessel Party’s servants.

 

         (xiii) Due to cargo contamination or damage caused by unseaworthiness of the Vessel or negligence of Vessel or Vessel Party’s servants.

 

         (xiv) Due to Vessel’s unclean tanks, or inability to maintain its heating or pumping warranties, or the need for Vessel repairs.

 

In addition, if as a result of such causes and events the Vessel loses her turn to berth, laytime and demurrage shall be suspended until she berths all fast to the dock or alongside a lighter.  If such causes or events occur while the Vessel is in berth, extra expenses thereby incurred by the Terminal Party in connection with the Vessel remaining at the berth shall be for Vessel Party’s account and the Terminal Party shall also have the option to order the Vessel out of berth, with the cost of unberthing and reberthing for this purpose to be for Vessel Party’s account.  Time lost in between berthings shall not count as laytime or time on demurrage.

 

     H.  Berth Queue.  Barges are expected to use barge berths rather than ocean tanker dock berths, if the Cargo Transfer Point has special barge berths.  The Terminal Party reserves the right to take one or more later arriving vessels out of sequence, in the Terminal Party’s discretion, in which event all delay thereby caused in berthing the Vessel carrying this cargo shall count as laytime or time on demurrage.

 

     I.  Laytime Ends.  Laytime shall cease upon disconnection of hoses or one hour after all cargo has been offloaded or received on board, as the case may be, whichever occurs first.

 

VII.  Demurrage.

 

    1.  Rate Determination.  Demurrage shall be payable by the Terminal Party for each running hour and pro rata for each part of an hour, for all time that used laytime exceeds the allowed laytime at the following demurrage rates:

 

     A.  For a voyage chartered Vessel, the rate shall be based on the rate specified in the Vessel Party’s transportation contract.  For demurrage purposes, all barges or tows operating as a unit shall be considered collectively as one barge or tow.

 

     B.  For a Vessel owned, time chartered, or bareboat chartered by the Vessel Party, the rate shall be mutually agreed between the parties.  In the event the parties are unable to agree on a rate, then each party shall refer the matter to an independent broker.  Each independent broker so designated shall give a written opinion about the spot market level on the day the ship berthed, and the rate used shall be based on the arithmetic mean of the two levels, provided the two levels are not more than twenty (20) scale points different. In the event the two levels specified by the independent brokers are more than twenty (20) scale points different, each party shall refer the matter to another independent broker.  Each such additional broker shall give a written opinion on the spot market level, and the rate used shall be based on the arithmetic mean of the two new levels, provided the levels used are not more than twenty (20) scale points different.  In the event the new levels specified are more than twenty (20) scale points different, the arithmetic mean of the middle two of the four specified levels shall be used.

 

    2.  Documentation and Filing of Demurrage Claims.  Demurrage claims shall be accompanied by a copy of the Vessel’s pumping logs signed by the Master, a copy of the charter party, agent’s port log, NOR document, laytime statement, as well as such other supporting data as may be reasonably requested by the Terminal Party.  Any demurrage claim by the Vessel Party must be in writing, and actually received by the Terminal Party with all supporting documentation, within sixty (60) days from the time of completion of loading or discharging.  IF THE APPROPRIATE DOCUMENTATION IS NOT ACTUALLY RECEIVED BY THE TERMINAL PARTY WITHIN THE SPECIFIED TIME, THE CLAIM WILL BE DEEMED TO BE WAIVED.

 

VIII.  Quantity and Quality Determinations.

 

    1.  Independent Inspection.  The quantity and quality of the cargo delivered to or from Vessels shall be determined by an independent, licensed petroleum inspector.  The cost of the inspection service shall be shared equally between both parties.  All measurements must meet the guidelines set out in the American Petroleum Institute’s (“API’s”) Manual of Petroleum Measurement Standards Chapter 17 - Marine Measurement, and all applicable API Bulletins and standard publications.  The inspector’s determination as to quantity and quality shall be conclusive and binding upon both parties.

 

    2.  Notification of Quality/Quality Claims.  Any claim by the receiving party (buyer) for a shortage in quantity or defect in quality shall be made in writing and actually received by the delivering party (seller), within sixty (60) days from the time of disconnection of hoses at delivery of the cargo involved.  IF A WRITTEN CLAIM IS NOT ACTUALLY RECEIVED BY THE DELIVERING PARTY (SELLER) WITHIN THE SPECIFIED TIME, THE CLAIM WILL BE DEEMED TO BE WAIVED.

 

 

 


APPENDIX I

 

Particular Provisions for Tosco Terminals

in New York and Vicinity

 

 

 


    1. A pre-docking inspection by a Tosco Pollution Control Representative would normally be conducted at Stapleton anchorage; however, depending on a ship’s schedule within New York Harbor, the inspection may be arranged to be conducted at a prior berth to avoid anchoring.

 

    2. Barges at a barge berth or for barge connections at Tosco’s Linden, New Jersey No. 2 dock shall supply their own hoses.

 

    3. Unless otherwise agreed, the customary anchorages for the following terminals shall be deemed to be as indicated:

 


                                  Anchorage for Ocean-Going

    Terminal                          Vessels in New York Harbor

 

    Bayway Refinery/Linden, NJ        Stapleton/Bay Ridge/

                                      Gravesend Bay

 

    Port Jefferson Terminal/          Off Port Jefferson

      Port Jefferson, NY

 

    Riverhead Terminal/Riverhead, NY  Off Riverhead

 

    4. Laytime for cargoes subject to New York Mercantile Exchange Delivery Rules shall be calculated as provided in those Rules.

 

    5. At the Bayway Refinery in Linden, New Jersey:

 


     A. Tanker to utilize minimum twelve (12) winch mounted wires for mooring.  Brake band thickness on mooring winches to be minimum 5 millimeters.  Tails, if utilized, to be maximum 15.2 meters in length with breaking strength at least 125% of wire’s and connected with mandal-type shackles.

 


     B. Vessel Party warrants that the tanker can maintain maximum distance from manifold to waterline at 56 feet on arrival and throughout discharge.  If the tanker is required to take on ballast to maintain this distance, then always double valve segregation should be maintained between ballast and cargo.

 

    6. Pre-Docking Inspection.  A Vessel is subject to a pre-docking inspection by a Tosco Pollution Control Representative, as described in Clause V(7) of these Marine Provisions, to review and confirm compliance with Vessel Party obligations under this Agreement, as well as terminal regulations.

 

 


APPENDIX II

 

(Reserved for Tosco Terminals in Philadelphia and Vicinity)

 

 

 

 

 

 

 

 

 


APPENDIX III

 

(Reserved for Tosco Terminals

in the San Francisco Bay Area)

 

 

 

 

 

 


APPENDIX IV

(Reserved for Tosco Terminals

in Puget Sound)

 

 

 

 

 

 


 

APPENDIX V

(Reserved for Tosco Terminals in

Los Angeles/Long Beach, California)

 

 

 


 

 

 

 

 

 


APPENDIX VI

(Reserved for Tosco Terminals in

Portland, Oregon)

 

 

 

 

 

 

 

 



ANNEX A

 

ALL STORAGE AGREEMENTS AND CERTAIN EXCHANGE AND THROUGHPUT AGREEMENTS

 

 

 

    The following terms apply and take precedence over other Marine Provisions for all Storage Agreements.  In addition, these terms apply and take precedence over other Marine Provisions for Exchange or Throughput Agreements unless the Special Provisions of such Exchange or Throughput Agreements specify that tardy arrival of the Vessel at the Cargo Transfer Point entitles the Terminal Party to refuse to take or refuse to give delivery of the cargo.

 

    A. Clause III(3) is deleted.

 

    B. Clause IV(1) and IV(2) are deleted and in their place the following provisions are substituted.

 

    1. If the Special Provisions contain laydays or other time periods for delivery, tardy arrival of a Vessel at the Cargo Transfer Point does not entitle the Terminal Party to refuse to take or refuse to give delivery of the cargo.

 

    2. Not applicable.

 

    C. Clause VI(2)(A) is deleted and in its place the following provision is substituted:

 

     A. All Vessels.  Except as otherwise provided in Section VI(2)(H), laytime shall not commence until the Vessel is all fast in berth.

 

    D. Clause VI(2)(D).  Change first sentence to read:

 

     D. Part Cargo Apportionment.  Whenever this Agreement covers cargo which is among other cargoes to be loaded or discharged by the Vessel at the same berth, and Vessel is waiting to berth as provided in Clause VI(2)(H), or to reberth as provided in Clause V(3), or is waiting in berth for cargo handling to commence or re-commence, then laytime and time on demurrage during the delay shall be apportioned on the basis of the ratio of the tonnage of this cargo to the total tonnage of all such affected cargoes. 

 

    E. Clause VI(2)(E).  Delete last sentence.

 

    F. Clause VIII(3) is deleted.

 

 

 

 

 

ANNEX B

 

SALES BY TERMINAL PARTY

 

 

    The following terms supplement the Marine Provisions for sales by the Terminal Party.

 

    A. If Vessel is delayed in excess of two (2) hours after disconnection of cargo hoses waiting for documents, laytime or time on demurrage shall then resume until the documents are received on board.

 

    B. The independent, licensed petroleum inspector shall be appointed by the Vessel Party, subject to approval by the Terminal Party, which approval shall be deemed to have been given unless the Terminal Party objects on a reasonable basis within 48 hours of its actual receipt of notice from the Vessel Party about the identity of the inspector.

 


    C. The time lost waiting for the inspector to arrive at the Vessel shall not count as laytime or time on demurrage.

 

 


ANNEX C

 

SALES BY VESSEL PARTY

 

 

 

    The following terms supplement the Marine Provisions for sales by the Vessel Party.

 

    A. The independent, licensed petroleum inspector shall be appointed by the Terminal Party, subject to approval by the Vessel Party, which approval shall be deemed to have been given unless the Vessel Party objects on a reasonable basis within 48 hours of its actual receipt of notice from the Terminal Party about the identity of the inspector.

 

    B. Whenever the cargo sold by the Vessel Party has been shipped with other identical cargoes on the same Vessel, if the Vessel arrives at the Cargo Transfer Point or at a place for lightering, with a volume of cargo on board equal to the amount which the Terminal Party is entitled to receive, the Vessel Party shall not reduce such amount pro rata for losses en route but shall instead deliver such amount to the Terminal Party, unless the Terminal Party otherwise consents to receive less.