CONFIRMATION OF FREIGHT SALE
STANDARD TERMS AND CONDITIONS
1. Purchaser warrants that it and/or its assignee will inspect each barge that is placed for loading and will not commence loading until satisfied that the barge is in a clean and seaworthy condition fit to receive cargo. Purchaser warrants that it and/or its assignee are solely responsible for loading cargo, and will do so in a safe, expeditious and workmanlike manner so as not to cause damage to the barge, cargo or other property, or injury or death, or violation of any law. If a barge is not loaded to ensure an even draft, Seller reserves the right to refuse to accept the barge for transport. Purchaser warrants that when loaded, the cargo will be in good condition, free from defect or inherent vice, and that all exterior barge surfaces will be clean. Purchaser warrants either that the cargo is not a hazardous material that requires a special permit to ship or, if it is, that Purchaser will supply its special permit number to the Seller and that all of the requirements of the special permit will be met. Quantities of cargo listed on the bill of lading shall be Buyer’s weight, load and count.
2. If Seller’s performance under this contract is interrupted due to strikes, lockouts, fire, acts of God, embargoes, governmental regulations or orders, mechanical failures, war, riots or other civil commotion, flood or high water, drought or low water, ice, or any other cause beyond the reasonable control of Seller, then this contract shall be deemed suspended so long as performance is interrupted by such causes. After termination of the interruption, Seller shall begin performing its obligations again as soon as reasonably possible, subject to mutually agreeable terms. In the event that movement of barges is delayed due to the suspension or limiting of operation of a lock, or any other suspension or limitation of vessel traffic as a result of a government agency mandate, Buyer shall pay all delay charges at $65.00 an hour per barge , as well as all reasonable and necessary charges imposed by third parties on a pass-through basis. For planned lock closures, Seller will endeavor to provide Buyer with notice for any such planned lock closure that is anticipated to cause significant delays as soon as reasonably possible after the delay is communicated to Seller.
3. If Seller finds that it will be unable to place barges within the prescribed time period, for reasons other than those set forth in the preceding paragraph, Seller will advise Purchaser and Purchaser shall elect at once whether to cancel the un-placed barge or barges or extend the placement time. If Purchaser elects to cancel, Purchaser may buy substitute freight and in that event Seller’s sole liability shall be to reimburse the Purchaser for such amount, if any, that the prevailing market price for freight, at the time substitute freight is purchased, exceeds the freight rate agreed to herein. Purchaser shall not buy substitute freight until Purchaser and Seller have reached mutual agreement pertaining to the then-prevailing market price, and the terms and conditions of the substitute purchase. If the prevailing market price for freight, at the time substitute freight is purchased, is less than the freight rate agreed to herein, Purchaser shall pay the difference to Seller.
4. Free Time (or laytime) will be calculated from 0700 Central Time of the day immediately following the constructive placement of Seller's barge at each of origin and destination designated by Buyer, and shall continue until the barge has been released to Seller. A barge shall be considered "released" to Seller and free time shall cease to run (i) at origin, 0700 Central Time on the day immediately after Buyer notifies Seller, in writing, that a barge is ready to be delivered or obtained by Seller for transportation; and (ii) at destination, 0700 Central Time on the day immediately after Buyer notifies Seller, in writing, that Seller’s barge is fully unloaded and ready to be returned to Seller. Once the allotment of free time expires, Seller will be responsible for demurrage, as provided in the agreement.
5. Freight for the shipment shall be considered as earned when the barge is placed for loading. Purchaser shall pay freight and demurrage in full notwithstanding any loss or damage to cargo or the barge, or any interruption or abandonment of the voyage. Purchaser shall pay Seller’s costs including attorney’s fees incurred in seeking collection of any unpaid freight or demurrage. Seller shall have the right to require at time of shipment the prepayment or guarantee of freight. If Seller waives prepayment then Seller may insist that payment of freight will be made on presentation of invoice and prior to release of cargo unless Seller is provided with an indemnity bond guaranteeing payment of freight. Seller has a maritime lien on all cargo that it may assert and enforce to ensure payment of the freight and demurrage on all current en-route shipments and any earlier completed shipments for which freight or demurrage are still owing. Waiver of such lien on prior shipments does not constitute a waiver as to the cargo covered by this agreement. In the event Seller delivers cargo before payment of freight and demurrage is made, such delivery shall be a conditional delivery and shall not extinguish Seller’s lien on the cargo.
6. Seller shall not be bound to transport said cargo by any particular towboat, or in time for any particular market, and shall not be liable for deviations or delays in shipment.
7. This is a contract of private carriage. Seller shall have no liability for loss or damage to cargo, or for direct or indirect expense or claim arising from or related to such loss or damage, until proper loading is complete and the barge has been removed from the loading facility and onto safely navigable water. Thereafter, Seller shall be liable for damage to cargo which occurs during the voyage if such damage is shown to have been caused as a direct result of Seller’s failure to properly maintain its barge in a reasonably fit condition. In such event, Seller shall pay for lost cargo based on actual value at time and place of loss, and damaged cargo based on actual loss in value measured at time and place such damage occurred, to a maximum limit of $500 per ton. Seller shall not be liable for any other items of loss, damage or expense arising from or related to such cargo loss or damage. In addition, Seller shall be sure that towers who move the barge carry protection and indemnity, and towers liability insurance, in an amount of at least $1 million. Seller shall have no liability beyond that specifically stated above even if caused by its neglect or fault. Without limiting the generality of the foregoing, Seller shall not be liable for any losses or damages resulting from or related to deviations or delays in shipment, long-term storage of the cargo, absence of ventilation, heating or freezing, moisture or other conditions in the cargo itself or such amount of condensation and moisture as is to be reasonably expected in steel river barges, deficiency in packaging or covering or dunnage, accidents resulting from negligent navigation, acts of war, terrorism or vandals, acts of God, pandemic, or other causes not related to deficiencies in the barge as described in the third sentence of this paragraph. Notwithstanding any other provisions of this contract, Seller shall not be liable for any loss or damage that might occur after the barge has been placed for unloading at destination.
8. Seller must be notified of cargo loss or damage immediately as a condition precedent to recovery on any claims. Documents requested by Seller mush be furnished promptly. Claims arising from loss or damage to cargo, or any other claims relating in any way to this contract or to the shipment of cargo that is the subject of this contract, shall be barred unless suit is instituted within nine months after such loss or damage occurred or such other claim arose.
9. Seller will carry legal liability insurance to cover all liability on its part that is described in paragraph 6 above. Seller does not carry all-risk insurance on the cargo although Purchaser may do so at its option and its cost. Seller’s legal liability insurance may carry a deductible of Seller’s choice. Neither the presence of such deductible regardless of amount, nor Seller’s reporting of shipments to its broker, nor Seller’s participation in processing or settling claims, nor any other circumstance, shall cause Seller to be deemed an insurer. Seller shall not be liable for (i) its handling of claims, whether based on allegations of bad faith or otherwise, (ii) delays in processing claims, or (iii) any losses for which Seller is not liable under paragraph 6 above.
10. Seller shall be free to “buy-in”, from some other carrier, some or all of the freight that Seller has agreed to provide herein. In the event Seller arranges for another carrier to carry some or all of the cargo, Purchaser agrees that Seller shall have no liability for any loss or damage to such cargo that might occur, or for other accidents or claims relating to the shipment of such cargo. Purchaser’s sole recourse to recover for any cargo loss or damage, or any other claims relating to the shipment, will be against the carrier that actually operates the barge(s) that carry the cargo and/or any third party that actually caused the loss/damage.
11. The rate for transportation of the cargo includes only one placement by Seller of barges at origin and destination. Seller will cooperate in switching and placement of barges when in its sole discretion it can do so conveniently. When Buyer arranges for shifts to be made by someone other than Seller, Buyer shall assume full responsibility for safety of barge and cargo thereof during such shifts, and further, Buyer shall defend, indemnify, and hold Seller harmless for any damage or loss of any nature which may occur during such movements.
12. Purchaser and consignee warrant that they and/or their assignee are solely responsible for unloading cargo at destination and will do so in a safe, expeditious and workmanlike manner so as not to cause damage to the barge, cargo, or other property, or injury or death, or violation of any law. Purchaser and consignee will pay for the cost of removing any cargo, material or other objects left in or on the barge after unloading, other than routine amounts of loose cargo residue.
13. Purchaser warrants that it has entered into this contract on its own behalf and not as agent for an undisclosed principal. Purchaser agrees that by accepting the barge(s) placed by Seller and/or Seller’s assignee, Purchaser has thereby agreed to be bound by all of the terms of this contract, whether signed by Purchaser or not. Any consignee to whom the cargo is sold, or the bill of lading is negotiated, shall likewise become bound by the terms hereof. It is agreed that this contract shall have priority over all other agreements, whether oral or written. The parties agree that Seller issued this contract in Mobile, Alabama and that any dispute arising between the parties that relates in any way to this contract, or Seller’s undertaking to transport the cargo that is the subject of this contract, or loss of or damage to the cargo, or any rights or obligations between Buyer or Seller regarding the cargo, will be resolved in the federal court located in Mobile unless otherwise agreed to in writing. The terms of this contract shall be governed by maritime law or as to any issue for which no maritime rule exists then by the law of the State of Alabama. If purchaser or consignee shall breach any warranty contained herein, the breaching party agrees to hold harmless and fully indemnify and defend Seller for any loss, damage, or additional expense resulting therefrom.
14. In the event that Buyer cancels a barge associated with this transportation agreement in the month scheduled for placement or anytime when Seller has begun transportation of the barge to Origin, there will be cancellation fees assessed per barge canceled. Fees will be assessed at the time of cancellation.
15. Pumping Barges: Following placement of a barge at origin or destination, Buyer shall be solely responsible for the accumulation of rainwater in the hopper, whether the barge is an open hopper or has stacked covers. Buyer is responsible for all barge pumping after placement. Buyer may not reject a barge as a result of rainwater in the hopper that occurs after placement. If Buyer rejects a barge due to rainwater in the hopper, the barge shall remain on placement uninterrupted. Buyer shall also be responsible for the costs associated with any such rejection, including without limitation, inspections, additional shifting, fleeting and pumping charges.
16. Accessorial Charges: Except as otherwise provided, Seller will not be liable for charges related to the following: ballasting, demurrage, dockage, drayage, elevation, loading or unloading of cargo, opening or closing of barge hatch covers, removal or replacement of barge covers, stacking or restacking of barge covers, switching tollage, wharfage, or any other terminal expense at either origin or destination. Notwithstanding anything contained herein, in the event that Buyer fails to perform any of the above and any cargo degradation or damage is reasonably related to such failure, Buyer shall release, defend, indemnify, and hold Seller harmless from any and all liabilities and/or losses related to such cargo damage.
