MOVERS & SHAKERS BOAT DELIVERIES & LOGISTICS, LLC.
SECTION 1 – PREAMBLE AND ACKNOWLEDGEMENTS
The following document, and Exhibits referenced and incorporated therein (the “Estimate” and the Vessel Delivery Report), constitutes a binding Contract between Movers & Shakers Boat Deliveries & Logistics, a Florida Limited Liability Corporation, (hereafter “M&S” or “Contractor”) and the Client for the transport under its own power of the marine vessel named ___________________________________, a _____’ sailboat, powerboat, motor sailor (delete non-applicable descriptions) (hereinafter “Vessel”) currently located at ___________________________________________ (“Point of Departure”) for the movement of the Vessel from the point of departure to ______________________________ (the “Final Destination”). Unless otherwise detailed herein, the Contract does not include installation of new equipment, the repair of Vessel equipment that otherwise could interfere with the safe Passage of the Vessel, or otherwise making of the Vessel seaworthy to permit the safe Passage of the Vessel. Upon arrival at the Point of Departure Contractor will undertake to make a written Vessel Delivery Report (“VDR”) detailing the then current condition of the Vessel, and upon conclusion of the Passage M&S will detail material issues with the Vessel in the VDR.
SECTION II – DEFINITIONS
The following definitions apply to the Contract. When used in this instrument the defined terms will have the identified meanings and shall control, unless the context otherwise requires. The definition section is not intended to set forth all the terms. Common sense and common definitions of words (as used in the Maritime context) shall otherwise apply where the context requires. The definition also may include substantive rights of the Contractor and corresponding duties imposed upon the client and are integral parts of the Contract.
“Client” as used herein refers to the Owner(s) of the vessel, the Owner(s) Agent, and to any person assigned by the Owner(s) or the Owner(s) Agent to represent the Owner(s) interests. Any Owner, Owner(s) Agent, and any person assigned by the Owner(s) or Owner(s) Agent to represent the Owner(s) interest, shall legally bind all other Owners and by their signature to the Contract each such Owner, Agent, or other person represents and acknowledges that they have the consent, agreement and full legal authority of all Owners to act on behalf of each of them.
“Contract” refers to this document, and the Estimate pertaining to this Contract, the Vessel Delivery Report (“VDR”), or where appropriate the Invoice, all of which are incorporated into the Contract by reference as though set forth in full. The terms of any prior discussions, including writings (e-mails, texts or otherwise) that are not reflected herein or in the Estimate, or in a subsequent writing signed or otherwise acknowledged by the party to be charged shall not be considered part of the Contract, nor shall any representations in such a writing be binding.
“Contractor” shall mean Movers & Shakers Boat Deliveries & Logistics, Limited Liability Company, in its legal capacity as a Florida LLC (“M&S”, also referred to a “Contractor” herein). Actions on behalf of M&S shall be performed by the Captain, members of the Crew, and where appropriate, by third parties performing services in connection with the safe transport and delivery of the Vessel and the safety and security of the crew. Unless otherwise required by applicable law, “Contractor” shall not include individuals acting on behalf of Contractor.
“Costs and Charges” shall include any sales, use, or similar taxes or other charges imposed upon Contractor.
“Crew” shall refer to the personnel assigned by the Contractor to facilitate the delivery of the Vessel. The size of the crew is determined by Contractor (and where applicable by insurance requirements) based on the length of the Passage, as determine by the Contractor as needed to safely deliver the Vessel. As a general rule, Passages of less than 500 nautical miles require a captain and a mate, and Passages of longer duration require a minimum of a captain and two crew members. Contractor shall have complete control over the selection of crew, and may in its discretion decline to permit non-crew members on board the Vessel for all or any portion of the passage.
“Estimate” refers to a document entitled “Estimate” that references the Vessel to be transported or as to which services are to be performed using the information pertaining to the Passage as provided by the Client. At the outset of the Passage and before creation of the VDR, the Estimate represents a good faith and complete statement of the costs of the Passage based on initial working assumptions, including, but not limited to: (a) the Vessel has no issues whatsoever that impact upon the Vessel’s readiness to undertake the contemplated Passage; (b) that weather and/or conditions that develop en route remains as anticipated at the outset of the Passage throughout the Passage; and (c) that the condition of the Vessel, which prior to the conducting of the initial preparation of the VDR are assumed to be that the Vessel is in good seaworthy condition materially remains in such good condition throughout the Passage and that the Vessel is not in need of any additional repairs, or preparation. Labor involved in ordinary preparation such as fueling, taking on potable water, provisioning, and similar routine preparations for getting a sea going Vessel about to undertake a Passage underway are included in the Estimate, as are the services of the crew for the number of days of the anticipated duration of getting the Vessel from the Departure Point to the Final Destination. The Estimate shall include anticipated expenses, including fuel, marina charges, customs and immigration, and other governmental charges reasonably anticipated at the time the Estimate is prepared.
The actual costs for fuel, oil and other fluids and consumables required for use by the Vessel (including such items as spare parts, cost for water and any pumping of waste onboard the Vessel shall be documented and provided to the Contractor and presented in the Final Bill and shall be the responsibility of the Client. Airfare, including applicable taxes and other required charges imposed in connection therewith, ground transportation (including ground transportation that may be incurred en route while making stops that may be required during the Passage), from Contractor’s Home Base to the Point of Departure, and from the Final Destination to the Home Base, shall be initially included in the Estimate as estimated costs, and upon establishing actual costs, which costs shall be documented and provided to Client upon request shall be Client’s responsibility and charged to the Client as part of the Final Bill. Reasonable lodging accommodations on land shall be initially expressed as estimated costs, and upon Contractor obtaining actual costs for such accommodations (including applicable taxes and other required charges imposed in connection therewith), which costs shall be documented and provided to Client upon request, shall be the Client’s responsibility and charged to the Client as part of the Final Bill. Accommodations en route on the Passage, including prior to beginning actual travel and for a reasonable time thereafter, shall be onboard the Vessel at no charge to Contractor. Cost of provisioning for the Contractor (including crew) are expressed in the Estimate as anticipated charges, and the actual bills incurred shall be documented and provided upon request and shall be the final charges. Any additional actual charges (including marina fees, customs and immigration and other government imposed charges) shall be documented by Contractor upon request and shall be included in the Final Bill. Meals on land shall be based on a per diem basis and shall not be subject to revision.
While the Estimate is designed and intended to provide Client the best approximation of the charges likely to be incurred in connection with making the delivery, and Contractor shall endeavor to provide an Estimate as near as reasonably possible to the final charges and have the Estimate be as near to the Final Bill as possible, the Estimate nonetheless is not, and cannot under the circumstances of the undertaking be expected to be, a final statement of the bill. Any amounts charged in the Estimate that are not incurred as actual out of pocket charges shall be credited to the Client in a final written accounting. While Contractor shall endeavor to make their best efforts to obtain documentation of expenses incurred, and the obtaining of receipts for proof of payment cannot in all circumstances be guaranteed due to the involvement of third parties.
The Estimate will also include a “Float” that serves as a security deposit intended to cover additional charges that may occur, and is to be refunded in full upon Client’s full compliance with their payment obligations.
“Final Bill” shall be the amounts that may remain due on the Estimate, and the actual charges, documented by the Contractor, for airfare and lodging accommodations as detailed in the definition of “Estimate”, and the actual charges incurred by the Contractor, as documented to the Client, for any third party charges incurred in for the Vessel in connection with the undertaking addressed by the Contract (including any such third party charges that, in the opinion and discretion of the Contractor, are required to make, and maintain the Vessel in a seaworthy condition and/or consumables that are routinely and reasonably used in connection with the safe operation and proper maintenance of the Vessel that are obtained by the Contractor for the Vessel). Any excess consumables, maintenance items and spare parts obtained by the Contractor for the Vessel, and other essentials acquired by the Contractor for the Vessel, shall remain with the Vessel upon arrival at the Final Destination and shall be the property of the Client.
“Final Destination” shall mean the port at which the Vessel is being contracted to be delivered to. In the event that the Vessel becomes disabled en route and cannot safely (whether with respect to the Vessel or the crew) continue the Passage, Contractor is entitled to exercise sound discretion and bring the Vessel to the nearest Port, in the case of the security of the Vessel and/or crew being in peril, or to the nearest appropriate Port where the necessary or proper repairs can be made. In either such event, Client will be contacted as soon as may be reasonably practical and the Client shall then determine the subsequent course of action with regard to the Vessel. In no event shall the Client be empowered to make decisions that, in the Contractors opinion and exercise of professional discretion, believes will imperil the safety of the crew, or the safety of the Vessel. In the event that the circumstances that result in the Contractor aborting the delivery to the Final Destination are Contractor’s fault (including in cases of gross negligence or willful misconduct), Contractor shall be liable to the Client.
“Home Base” refers to Fort Lauderdale, Florida, U.S.A., which is the location of Contractor’s base of operations.
“Insurance” means the insurance policy that the owner (including any non-owner Client) has for the Vessel (including personal liability coverage if applicable). As part of the Contract the owner shall name M&S as an additional insured. To the extent the policy has a deductible, owner remains liable for the deductible. It shall be the onwer’s responsibility (including in the case of a non-owner Client) to name M&S as an additional insured, and any such failure to do so shall result in the owner taking full responsibility for failing to have done so. In the event the owner has no insurance, or inadequate insurance, any loss shall remain the responsibility of the owner.
“Passage” refers to the transportation of the Vessel from its Point of Departure to the Final Destination and includes any stops that may be necessary. Upon arrival at the Point of Departure the Vessel will be inspected by Movers & Shakers and its then current condition will be documented in a Vessel Description Report. At the conclusion of the Passage the Vessel Description Report will be updated to reflect any material changes occurring in connection with the Passage. If, at the outset of the contemplated Passage the Vessel is determined to not be in seaworthy condition to complete the Passage safely, the Client shall be notified, and advised of the corrective measures that should be undertaken in order to make the Vessel appropriately seaworthy, and it shall be the duty and responsibility of the Client to authorize such corrective measures and be responsible for the costs associated therewith.
“Point of Departure” refers to the location of the Vessel at the outset of the contemplated Passage.
“Portal to Portal” refers to Client being responsible for time incurred by a Contractor based in Fort Lauderdale, Florida and possible travel and time needed to arrive at a different Point of Departure. All transportation costs, including airfare, surface transportation, and reasonable lodging accommodations associated with going from the Home Base to the Point of Departure will be charged and be Client’s responsibility to pay. Client shall also be responsible for the costs associated with returning delivery personnel to the Home Base, whether or not such personnel actually return to such Base, and conversely, Client will not be responsible for costs associated with crew personnel getting to the Home Base, or returning to a different location other than the Home Base after arrival at the Final Destination and conclusion of the delivery Contract.
“Security Deposit/Float” refers to an overage included in the Estimate as a separate line item to cover possible time/crew cost overruns. The dollar amount of such Security Deposit/Float is expressed as 5% of the total Estimate amount to reflect the fact that time overruns, whether due to mechanical failure or the unpredictability of weather, are substantially related to the overall length of the contemplated time to make the Passage needed to complete the delivery. The Security Deposit/Float will be refunded in full within ten business days of Final Delivery and will likely often eliminate the need for any additional billing to and payment by Client above the Estimate amount, and will be accompanied by the accounting provided by the Contractor.
“Vessel” refers to the marine vessel, and all of its components, identified in the Preamble.
“Vessel Delivery Report” (“VDR”) refers to a written report, prepared in two stages. If the Vessel is a brand Vessel that has never previously been titled by the manufacturer or builder (in the case of “one off” Vessels), the initial VDR will detail any defects in the systems or components of the Vessel, including such things as lights not working, faucets leaking, electronic issues encountered or discovered, and any defects relating to the Vessel’s ability to function properly as a seaworthy Vessel and safe for the crew. If the Vessel has previously been titled, the initial VDR shall consist of an inspection of the Vessel to note any existing obvious damage, malfunction, or items in need of repair, and any issues that are obvious and impact on the Vessel being seaworthy and safe for the crew. Upon delivery to the Final Destination, or in the event of the delivery needing to be aborted en route, a final written VDR is completed noting the condition of the Vessel as delivered. Under no circumstances should the initial VDR be viewed as a substitute for a full Marine Survey report, and neither the initial VDR nor the final VDR are intended, nor should they be relied upon, as having undertaken a level of inspection of the Vessel that would be covered in a Marine Survey report.
SECTION III – CONTRACT FORMATION
SCOPE OF THE UNDERTAKING: This Contract is for the delivery of the Vessel from the Point of Departure to the Final Destination. Client is to provide the location of the Vessel and the delivery destination, and the most recent survey for the Vessel, including whether any work disclosed in the survey has been performed, and Client shall disclose the current condition of the Vessel, including the condition of the Vessel’s hull and any known defects. Upon receiving the information from Client, Contractor shall make preliminary suggestions and recommendations as to any work that should be performed prior to Contractor beginning the process of taking possession of the Vessel to make the contemplated passage. Upon Contractor being informed that the Vessel is deemed seaworthy by the Client and capable of making the contemplated Passage safely for the Vessel and the Crew, Contractor shall provide a written Estimate of the cost of the delivery, with such Estimate to include the contemplated dates of the delivery and break down the contemplated number of days required and prices for the Passage. Contractor shall submit the Estimate for the delivery of the Vessel in writing to Client. If Client approves of the Estimate to deliver the Vessel Client shall indicate acceptance by making payment in full as set forth in Section IV hereof. No other acknowledgement of acceptance of the Estimate shall be required, and such act of making payment of the Estimate in full shall constitute a fully executed written contract despite Client not having actually signed either the Estimate or any other specific document. The Estimate for making the delivery shall include a Security Deposit in an amount of 5% of the Estimate cost, shown as a separate line item in the Estimate, to cover additional Crew time that may be necessitated due to weather and/or mechanical issues extending the length of the Passage, delay due to the Vessel not being ready to begin the contemplated Passage. The Contractor and the Captain and Crew being made available for the contemplated Passage as set forth in the Estimate shall have committed the time, and may not be available should Client delay accepting the Estimate for more than three (3) business days after receiving the Estimate. In no event shall Contractor be bound to the Contract until the funds required to be paid in conjunction with acceptance of the Estimate and the Contract are deposited as required.
MODIFICATION OF THE ESTIMATE UPON CONTRACTOR TAKING POSSESSION: The Estimate is based upon the Vessel being seaworthy and in a condition to begin the Passage on the date set forth in the Estimate. It is understood and agreed that Contractor shall have set aside time for the Captain and necessary crew to be available at such times to complete the Passage, and that by the Crew having made such commitments, each is likely to have forgone other opportunities for employment. In the event that the Vessel is not seaworthy and available for Contractor’s Crew to take possession and begin to undertake the Passage on the date set forth in the Estimate for any reason whatsoever, any delay shall result in an additional charges for the Captain and Crew being unable to begin at a rate determined by prorating the daily charges for each day, or part of a day. In the event the Vessel is not at the Point of Departure Client shall also be responsible for any additional lodging and meals and any additional provisions required. Upon Contractor taking possession of the Vessel Contractor shall perform and initial Vessel Delivery Report. In the event the VDR discloses issues that impact on the Vessel being seaworthy, and/or on the Vessel is lacking proper equipment, in the sole discretion of the Contractor the Contractor may refuse to begin the delivery of the Vessel until and unless such issues are addressed by the Client. In the case of lacking equipment, Contractor is authorized to obtain such equipment and the costs will be charged to the client as additions to the Contract. Any delay in the date of departure due to issues disclosed in the initial VDR shall also incur additions to the Contract in the same manner as described with regard to the Vessel not being available.
In the event the VDR discloses issues pertaining to the seaworthiness of the Vessel, Contractor shall inform the Client and seek authorization to remedy the issue, and until such time as the condition is corrected, Contractor shall have the right to refuse to move the Vessel. While underway, and before delivery is complete, circumstances may arise (including but not limited to mechanical failure, boat systems being inoperable, the need for repairs, or other changes in assumed conditions of the boat, weather, destination, or otherwise) that require a modification to the Contract. In such event, and due to the likely inability of the Parties to readily obtain signed modifications to the contract, written communications such as texts, e-mails, facsimiles, or other communications (including verbal communications followed up as soon as practicable by a written communication expressing the material content of the verbal communication) shall serve as modifications to the Contract, and where appropriate as additions to the Contract, provided that unilateral communications not acknowledged by the party to be charged will not suffice, unless circumstances are such that action is immediately required to preserve the safety and security of either or both the vessel or the crew. In such event, reasonable attempts to reach agreement shall be after the fact, and if such agreement cannot be reached, Contractor shall be entitled to reasonable and customary compensation for any additional undertakings, in addition to all legal rights pertaining thereto. Should any such additional undertakings, whether before the outset of the Passage, en route, or upon reaching the Final Destination to properly secure the Vessel, involve services of a third party, the amounts billed by such third party for such services in an arms-length transaction shall be presumptively considered reasonable and the Contractor shall be entitled to additional compensation by the Client in such amounts (unless the Client undertakes to make arrangements with such third party to be directly responsible for any such charges, and when appropriate provide Contractor with proof of having undertaken such direct arrangements). In all cases, the Client (and/or the Vessel consistent with Contractor’s rights under Maritime Law), and not the Contractor, shall be responsible for all third party charges, except when the need for such services and charges is caused by and the fault of the Contractor. It is understood and agreed that due to the nature of the undertaking, events and circumstances may occur, including damage to the boat that necessitate repairs and/or replacements, and unless and except if a specific event or occurrence is due to the fault of the Contractor, it shall be the Client (or where appropriate, the Client’s insurer) who is fully responsible for any such circumstances.
This Contract is a “Portal to Portal” Contract.
The Contract as defined herein contains the full agreement between the Parties as of the beginning of the undertaking, and communications, whether written or oral, containing other or additional terms shall not be part of the Contract unless set forth in the Estimate or such writings are made pursuant to the Contract modifications provision hereof.
SECTION IV – CLIENT’S RESPONSIBILITIES AND OBLIGATIONS
REPRESENTATIONS AND DOCUMENTATION: The Client warrants and represents that the Vessel is currently in seaworthy condition (or detail in writing any issues that may be required to addressed to assure the Vessel can make the contemplated Passage) and that Insurance as provided in the Definition Section is in place and current, or alternatively that if Client is uninsured that the risk of loss and damage usually shall be Client’s responsibility. Client further represents that the Vessel has no fire arms or contraband on board and that the Vessel is not being used to violate any laws. Failure of any representation required to be true will result in termination of the Contract by Contractor, and any resulting liability or attempts to impose liability upon Contractor or crew shall be Client’s responsibility. Client is also to provide Contractor with a Certificate of Insurance complying with the Insurance provisions of the Definitions, current registration or documented Vessel documents, bill of sale, compliance with tax payments where applicable, any custom clearance documentation that may be required for the undertaking, ownership or other documentation demonstrating that the contracting Client is authorized to enter into the Contract and/or documents that demonstrate that, upon Contractor taking possession of the Vessel, that Contractor has authority to operate the Vessel on behalf of the owning entity, and any other documents that may be required to allow the delivery to occur. Where available Client is to provide the most recent Vessel survey to permit Contractor a reference point to assist in conducting the initial VDR checkout, along with an inventory of equipment, sails, tools and spare parts on board. Any failure to provide required documentation that results in delay will result in additional charges being incurred.
EQUIPMENT ON BOARD: The Vessel shall provide adequate berthing quarters for the required crew, properly functioning cooking equipment, sufficient dishes, utensils, and refrigeration for conducting the Passage, proper anchors, sufficient lines, functioning mechanical systems, be equipped with currently certified and dated lifesaving equipment prior to departure including SOLAS life raft (4 to 6 person capacity), EPIRB, VHF, proper type and number of fire extinguishers, and distress signal kit. In the event any items required are not provided as required, Client agrees that Contractor’s costs in obtaining any of the items addressed herein are additions to the Contract.
CONTACT INFORMATION: Client is to provide current contact information (telephone number, address, e-mail) of the person in charge and authority to deal with Contractor once the process of making the delivery is begun and until the Passage is completed.
PAYMENT: Prior to Contractor undertaking steps to begin the delivery process, Client shall make payment in full of the amount in the Estimate via ACH or wire transfer to Contractor’s account. Should additional expenditures be required as Contractor undertakes delivery, including payment for issues raised in the initial VDR, such payment is to be made as soon as possible in the same manner and upon request by Contractor proof of such payment shall be provided. Upon completion of the delivery Contractor shall prepare the Final Bill and accounting payment in full of any balance due shall be made upon presentation of the Final Bill. All funds are to be in U.S. Dollars unless otherwise agreed to in writing.
Contractor’s Account Information:
Bank: Suntrust Bank
Account Name: Movers & Shakers Boat Deliveries and Logistics, LLC
Account Number: 1000087900063
Routing Number: 061000104
Swift Code: SBTRUS3A
CANCELLATION BY CLIENT: In the event Client cancels the Contract for any reason, any out of pocket costs actually incurred will be forfeited. In addition, by entering into the Contract Crew have been committed to the undertaking, and they may not be able to able to obtain alternative employment after having set aside the time for the Passage. Therefore, should Client cancel the Contract, a refund of the payments anticipated to be made for Crew will be forfeited unless such Crew are able to obtain comparable alternative employment. In no event shall a refund be made for cancellation by Client occurring less than two weeks prior to the scheduled departure date.
ONWERS AND OTHERS ON BOARD DURING DELIVERIES: Owners and guests are required to adhere to the following rules: (1) no consumption of alcoholic beverages while the Vessel is underway and no alcohol is to be brought on board the Vessel; (2) no firearms on board; (3) no illegal drugs or mind altering substances on board or during the Passage, and any drug carried aboard is required to be prescribed by a licensed physician or be available over the counter in a pharmacy (keep in mind that certain drugs, whether prescribed or available over the counter in the U.S. may be illegal in foreign jurisdictions and are hereby excluded as being permitted if the Passage involves transit in such jurisdictions); and (4) adherence to any safety related directions given by the Captain, including but not limited to the wearing of life vests and remaining below decks during rough seas or conditions. Being aboard vessels undertaking sustained transits may involve ocean/water and weather conditions that present uncomfortable living conditions and risks to life, body and wellbeing. Should non-crew members be on board the Vessel Contractor cannot, and does not, assume responsibility for their safety or wellbeing due to such conditions, particular in regard to any refusal to follow instructions or engaging in behavior over which the Captain has no control, and no liability is assumed by the Contractor with regard to non-crew members accompanying Contractor on passages. Contractor reserves the right to require all non-crew personnel to disembark from the Vessel in the Captains sole discretion, and may require such person or persons to disembark at a port that was not part of either a planned or otherwise necessary stop. In such event, Client may be subject to additional charges for time diverted from otherwise continuing with the Passage and any additional costs associated with such diversion being deemed necessary or prudent by the Captain.
SECTION V – CONTRACTOR’S RESPONSIBILITIES
AND RIGHTS REGARDING THE DELIVERY AND PASSAGE
DELIVERY OF VESSEL: Contractor’s undertaking is to transport the Vessel from the Point of Departure to the Final Destination using qualified and licensed Captains licensed by the United States Coast Guard with an appropriate license to be in command of a marine vessel of the class and type of the Vessel that is the subject of the Contract and to provide the necessary competent crew required to accomplish the undertaking and safely deliver the Vessel and crew. The scope of the undertaking further includes inspecting the Vessel, using the experience of the personnel engaged and the information regarding the Vessel’s current condition as provided by the Client, and make a determination that the Vessel in its then condition, or in the condition after repairs and/or making the needed additions and or updates to the existing equipment on the Vessel is in a seaworthy condition to make the contemplated Passage. As part of the undertaking Contractor will prepare an initial Vessel Delivery Report (VDR) as defined herein, and provide a report to the Client regarding the identifiable issues that may exist with regard to repairs and/or modifications or additions to be made to the Vessel to safely make the Passage.
COMPENSATION FOR CREW AND EXPENSES ACTUALLY INCURRED: It is expressly understood and agreed that Crew have been committed based on being able to perform the contemplated work during the dates set aside in the Estimate, and that delay for any reason, or cancellation or termination of the undertaking by the Contractor because the Vessel is not in the condition represented or otherwise unavailable or unable to begin, or to complete the Passage once started, creates a situation in which Crew will forego earnings. Therefore, should the Vessel not be in a condition, or at the location contracted for, at the outset of the delivery and the Contract is terminated all compensation in the Estimate related to Crew is forfeited. Client shall also remain liable for any additional expenditures made to third parties in connection with efforts by Contractor to make the Vessel seaworthy even if, due to the condition of the Vessel, the Vessel is not delivered to the contemplated Final Destination.
CORDINATION WITH CLIENT TO MAKE REPAIRS OR OBTAIN REQIRED ADDITIONAL EQUIPMENT: Contractor shall document the current condition of the Vessel for purposes of assessing the ability of the Vessel to complete the contemplated Passage and shall coordinate with such third parties as necessary to bring the Vessel to a point where the Passage can proceed and to document the condition of the Vessel as Contractor took possession. Contractor shall coordinate and communicate with the Client in order to obtain and have necessary repairs or equipment procured, whether to commence the Passage on en route, or upon arrival at the Final Destination (but then only for purposes to secure the Vessel). Should Client refuse to authorize repairs and additional equipment, Contractor reserves the right to terminate the Contract prior to leaving the Point of Departure. Should Contractor determine that the amount of work required to bring the Vessel to a condition where the contemplated Passage can be made safely for Vessel and/or Crew within the time contemplated by the Contract, with a reasonable margin of error in time due to the unpredictability of weather and the current state of the Vessel, Contractor reserves the right to cancel the Contract prior to embarking from the Point of Departure.
COMPLETION OF CONTRACTOR’S OBLIGATION UNDER THE CONTRACT: Upon arrival at the Final Destination (including ending Passage at a location other than the initial final destination should circumstances warrant doing so), Contractor shall secure the Vessel and inform the Client of its arrival. Contractor shall further complete a VDR detailing any conditions of the Vessel that have changed from the initial VDR, and such final VDR shall include any issues encountered under way, whether as a result of not having been obvious at the time of the initial VDR, or due to equipment or mechanical failure en route. Upon leaving the Vessel secure at the Final Destination and completion of the final VDR and communicating the same to Client, all of Contractors obligations under the Contract shall have been completed. Any amounts that may be due to Client, including any return of the Security Deposit/Float that Client may be entitled to, shall be made within ten business days of the Contractor’s Crew returning to the Home Base.
CONTRACTOR’S RIGHT TO TERMINATE THE CONTRACT ONCE PASSAGE HAS BEGUN: If at any time Client fails to perform its obligations hereunder that arise after Passage has begun, including authorizing the making of any repairs or obtaining of equipment deemed necessary by the Captain of the crew once underway, Contractor reserves the right to terminate further performance under the agreement. In such event Client shall remain obligated to its obligations, and shall only be entitled to receive a refund on any portion of advanced funds, if any, remaining after deduction of any unpaid additions to the Contract, if any, and all other funds are forfeited.
RELEASE OF CONTRACTOR’S RESPONSIBIITY FOR THE VESSEL: Upon arrival at the Final Destination, or upon Contractor exercising its right to terminate the Contract and securely the Vessel in port, (if possible), Contractor shall be relieved of and released from all further responsibility and liability with regard to the Vessel, including for any damage that may occur to the Vessel for any reason. Under no circumstances shall this Contract be interpreted to create a bailment with respect to the Vessel and Contractor’s obligations are limited to those expressly undertaken herein.
CONTRACTOR’S LEGAL REMEDIES AND CHOICE OF LAW: Any additional funds not covered by the forfeiture of the Security Deposit/Float that would otherwise have been due had Client performed all its obligations under the Contract, any such money shall be paid to Contractor by Client upon receipt by Client of the Final Bill. In the event that funds due to Contractor are not timely paid, Contractor shall have all of the following remedies:
The right to initial a breach of contract claim against the Client, or if the Client is not the Owner of the Vessel, against the Owner for breach of contract;
The right to exercise all remedies available to Contractor under Maritime Law, including but not limited to the right to have the Vessel seized;
Any action may be brought by Contractor in either the Federal District Court in which the Vessel is located, or at Contractor’s discretion, in the State Court of the state of Florida serving Broward County, and the choice of law governing any claim based on state law shall be the civil law of the State of Florida, without regard to any conflict of law provisions; and
In addition to any funds due to Contractor, upon establishing a right to relief Contractor shall be entitled to interest on such amounts due at the rate of 18% per annum, or 1.5% per month for any portion of a month for which the outstanding Final Bill remains due; and
To the full extent permitted by law, any costs or fees incurred in connection with seeking collection of the debt, including but not limited to all reasonable attorney’s fees, any fees incurred to third parties in discovery, including court reporter fees, whether or not the matter proceeds to trial, any fees incurred by Contractor or its attorneys in connection with producing or securing witnesses (including any persons involved in the delivery of the Vessel or in performing unpaid work related to the Vessel in connection with the Contract, whether such witnesses are or were employed by Contractor or not, and regardless of whether witnesses were involved as independent contractors or as employees of the Contractor), and the costs of transportation and lodging incurred for any such witnesses, and compensation for such witnesses for lost earnings, should the matter proceed to trial or in connection with any discovery conducted in such action.
THIS DOCUMENT IS SUBJECT TO COPYRIGHT AND MAY NOT BE REPRODUCED WITHOUT PRIOR CONSENT.