Fenix Marine Services, Ltd
Marine Terminal Operator Schedule
Identification No. 012360
Effective Date: January 12th, 2020
FENIX MARINE SERVICES, LTD
PoLA PIER 300 MARINE TERMINAL OPERATOR SCHEDULE
This marine terminal operator rate schedule (“Schedule”) is issued by Fenix Marine Services, Ltd in accordance with section 8 (f) of the Shipping Act of 1984, as amended (46 U.S.C. § 40101 et seq.) (hereinafter, “the Shipping Act, as amended”), including 46 U.S.C. § 40501 (General rate and tariff requirements), and the regulations of the Federal Maritime Commission (Title 46 Code of Federal Regulations Subchapter B), including 46 C.F.R. Part 525 (Marine Terminal Operator Schedules).
The Effective Date of this Schedule unless otherwise indicated herein is January 12th, 2020. There is no expiration date.
Identification Number: 012360
Fenix Marine Services, Ltd
614 Terminal Way, Terminal Island, CA, 90731
Web Page Address: http://www.fenixmarineservices.com
Table of Contents
1. SCHEDULE 3
2. DEFINITIONS 4
3. LEGAL HOLIDAYS 7
4. OPERATOR’S RULES/OBLIGATIONS - STEVEDORING 8
5. CUSTOMER’S OBLIGATIONS - STEVEDORING OPERATIONS 20
6. EXTRA WORK/LABOR 25
7. TRAFFIC MITIGATION FEE 25
8. LABOR STANDBY, DETENTIONS AND DEADTIME 25
9. CONTAINER STACK TRAIN SERVICE - OPERATOR RESPONSIBILITIES 25
10. RAIL SERVICES - CUSTOMER'S OBLIGATIONS 30
11. SHORE POWER SERVICES - OPERATOR’S SERVICES AND OBLIGATIONS 33
12. SHORE POWER - CUSTOMER’S OBLIGATIONS 34
13. SAFETY - ALL OPERATIONS 37
14. LIEN PROVISIONS AND SECURITY INTEREST 38
15. INDEMNITY 41
16. INSURANCE 43
17. INDEPENDENT CONTRACTOR 45
18. APPLICABLE LAW 45
19. FORCE MAJEURE 45
20. ATTORNEY’S FEES AND COSTS 46
21. PARTIAL INVALIDITY; SEVERABILITY 46
22. LOSS/DAMAGE TO GOODS (CLAUSE PARAMOUNT) 46
23. UNCONTROLLABLE CAUSES OF LOSS/DAMAGE 47
24. NO CONSEQUENTIAL DAMAGES 47
25. LOSS/DAMAGE CLAIMS 47
26. CLAIM DOCUMENTATION 48
27. DUTY TO ACCEPT GOODS 49
28. REFUSED OR ABANDONED GOODS 49
29. ACCESS AND USE 49
30. EOC COMPLIANCE AND NON-DISCRIMINATION 52
31. ELECTRONIC DATA INTERCHANGE 52
32. CONSTRUCTION AND INTEGRATION 53
33. (RESERVED FOR FUTURE USE) 53
34. COMPENSATION 53
35. RATES 54
36. DOCKAGE 58
37. SCHEDULE OF RATES 58
In the event that an executed agreement for Rates does not exist between a CUSTOMER and OPERATOR for any specific item in this Schedule, or an executed agreement between a CUSTOMER and OPERATOR does not specifically address rules, regulations, charges, services and/or fees contained herein, the provisions of this Schedule shall apply, in accordance with Section 32 below.
Use of the Terminal, wharves, other facilities, or property of, or receipt of Services under the jurisdiction of or provided by, OPERATOR shall constitute a consent to and acceptance of the terms and conditions of this Schedule and shall evidence an agreement on the part of all vessels, their owners, charterers and agents, or other users or recipients of Services—including but not limited to Beneficial Cargo Owners (BCOs), Non-Vessel-Operating Common Carriers (NVOCCs), Rail Carriers, Intermodal Equipment Providers (IEPs), Truckers, and Chassis Providers—to pay all applicable charges and abide by all rules and regulations of OPERATOR and to abide by the rules and regulations of this Schedule.
Except as otherwise provided in this Schedule, the applicable Rates, charges and fees shall be those in effect at the time Services are rendered, plus any applicable interest or additional charges or fees.
Except as otherwise provided in this Schedule, the applicable rules and regulations shall be those in effect at the time the rule or regulation is applied and enforced.
OPERATOR reserves to itself the right to interpret and determine the applicability of any of the Rates, charges, or fees provided for in this Schedule and to assess charges or fees in accordance with any such interpretation and determination. OPERATOR reserves to itself the right to determine the applicability of any rule or regulation of this Schedule and to enforce any such rule or regulation in accordance with any such interpretation or determination.
This Schedule does not include an expiration date.
This Schedule is published and made available to the public pursuant to the Shipping Act, as amended, and shall at all times be legally enforceable as between CUSTOMER and OPERATOR. All references to a tariff, schedule, Service, etc. of OPERATOR not otherwise specified shall be deemed to refer to this Schedule and the Rates, regulations and practices, and terms and conditions, set forth herein.
This Schedule may be changed by OPERATOR from time to time without notice.
“CUSTOMER” means any alliance, alliance member, vessel, vessel owner, carrier, agent, vessel operator, vehicle, conveyance, consignor, consignee, beneficial Cargo owner, freight forwarder, NVOCC, person, Cargo, equipment, chassis, or any other person or entity, including but not limited to the agents, other providers, and other subcontractors (at any level) of any of the foregoing, who is provided with, benefits from, or receives any Services whatsoever, or person or business entity who owns or claims an interest in, right to, attachment, or lien regarding any vessel, vessel equipment, equipment, or Cargo.
“GOODS” or “CARGO” means all cargo, goods, and other personal property items, including any equipment associated with or utilized by the foregoing, with respect to which OPERATOR is requested to and/or does perform any Services, and all packing, packaging, crates, cradles, pallets, tanks, platforms, flatbeds, trailers, containers, chassis, other equipment, and other items, materials, and supplies associated therewith, and any goods or cargo that benefits from Services at the Terminal or utilizes the Terminal. The capitalized and non-capitalized words “Goods” and “Cargo”, as well as both the singular and plural versions of each, shall have the same meaning as Goods and Cargo in this definition.
“OPERATOR” means Fenix Marine Services, Ltd as applicable to the Service(s) to be provided. Fenix Marine Services, Ltd is a “Marine Terminal Operator” as defined by FMC Regulation, 46 C.F.R. § 525.1(13).
“HANDLING” means the Service of physically moving Goods at the Terminal.
“FMS” means Fenix Marine Services, Ltd.
“LOADING” or “DISCHARGING” means the service of loading or unloading Goods between a place of rest at the Terminal and any vessel, rail car, trucks/motor vehicle, or other Conveyance.
“PoLA” or “PORT” means Port of Los Angeles. All the navigable waters within the City of Los Angeles included within, or northerly of, the Los Angeles Harbor Breakwater and the easterly prolongation thereof in a straight line to its intersection with the easterly boundary line of the City of Los Angeles are herein designated
“PORT OF LOS ANGELES TARIFF” or “PORT TARIFF” means The Port of Los Angeles Tariff No. 4 or its successor.
“RATE” means a price that OPERATOR will charge for providing a Service in or around the Terminal.
“TERMINAL” means a facility with one or more structures comprising a terminal unit owned and/or operated by OPERATOR, including, but not limited to, docks, wharves, warehouses, covered and/or open storage spaces, cranes, buildings, other structures, property, and any equipment.
“SERVICE” or “SERVICES” means checking Cargo, dockage, free time, Handling, rehandling, loading and unloading, Storage, terminal usage, wharfage, and wharf demurrage, as defined herein, as well as any other providing of, use of and/or access to a Terminal whatsoever, including any providing of, use of and/or access to personnel, labor, services, materials, supplies, tools, equipment, personal property and real property, water, electricity, and other service, supplies, or materials, and whether provided at such Terminal or elsewhere.
“STORAGE” means the service of providing yard space, warehouse or other terminal facilities for the storage of inbound or outbound Cargo including related equipment after the expiration of free time, if applicable, including wharf storage, shipside storage, closed or covered storage, open or ground storage, and bonded storage.
“CITY” means the City of Los Angeles.
“CEO” means the Chief Executive Officer of Pier 300 and shall also include his duly authorized agent or representative.
“PRIVATE PREMISES” means and includes all premises, wharves, docks, or areas other than municipal.
“WHARF” means and includes any wharf, pier, quay, or other structure to which a vessel may make fast or which may be utilized in the transit or handling of goods and merchandise, and shall also include all of the area between pier head and bulkhead lines; excepting, however, such locations as may be designated and set apart as public landings or for private use.
“WHARF PREMISES” means and includes , in addition to the area included in the term “WHARF,” other port terminal facility areas, alongside of which vessels may lie or which are suitable for and are used in the direct loading, unloading, assembling, distribution or handling of merchandise under, over, or onto a wharf.
“VESSEL” means steam boats, motor boats, sailing vessels, barges, lighters, ferry boats, pleasure craft and any and all other water craft.
“MERCHANDISE” means and includes but is not limited to commodities, goods, wares, freight, liquids, articles and materials of every kind whatsoever, including bulk materials, cargo containers when empty, live animals, vessel’s stores and supplies.
“MERCHANDISE IN BULK” means merchandise which, by nature of its unsegregated mass, is usually handled by shovels, scoops, buckets, forks, or mechanical conveyors, and which is not loaded or unloaded and carried in a “Package”, as defined below, and is received and delivered by carrier without transportation mark or count. (Will not apply when subject to piece count.)
“DIRECT” means a continuous operation between barge, car, or truck and vessel when performed by vessel’s stevedores, pipeline, or any mechanical means.
“CARGO UNITS” mean, excluding “Merchandise in Bulk” as defined above, the package containing merchandise or the method of waterborne conveyance of such merchandise and are defined as follows:
(1) “PACKAGE” is defined as the producer’s or manufacturer’s type of packaging containing merchandise. The package may be a carton, bag, barrel, drum, crate, bale, box, bundle, pail, flask, or basket. Merchandise may be conveyed in its Package or Packages in a “Unitized Load,” “Cargo Van,” or “Container” as defined below.
(2) “UNITIZED LOADS” are defined as that merchandise which is secured to pallets or skids by banding or otherwise being securely held together to form a single shipping unit to permit handling by mechanical equipment. The term does not include merchandise temporarily palletized for the purpose of terminal handling or for loading or unloading vessels.
(3) “CARGO VAN” is defined as any type of cargo conveyance, which is non-disposable, having a cargo capacity of not less than 2 cubic meters and having dimensions smaller than those of a “Container”, defined below.
(4) “CONTAINER” is defined as any type of cargo conveyance which is non-disposable, having an outside length of not less than 6.04 meters, and which is primarily designed, constructed, certified and approved by an ocean carrier for the ongoing use and transport of commodities aboard its vessels.
“CONTAINER FREIGHT STATION (CFS)” means a location designated by the water carrier for receiving and delivery of merchandise in connection with the stuffing and unstuffing of containers.
“BUNKERS” means those petroleum products which are utilized by a vessel as fuel for its own power.
The following are legal holidays for purposes of this Schedule:
Unless designated as “Terminal Closed”, a Holiday that is listed above as “Limited” shall have limited operating hours and or charges for services will be on an overtime basis.
If any of the holidays listed in this item falls upon a Sunday, the Monday following shall be observed as a “LEGAL HOLIDAY”.
A. Provide and perform at its respective Terminal the Services as hereinafter
described for the CUSTOMER’S full and empty 20’, 40’ and 45’ sea freight
containers Loaded to or Discharged from container vessels with fitted
lashing equipment. Stevedoring Services for CUSTOMER’s full and empty
53’ or non-20’/40’ sea freight containers as well as non-containerized Cargo
shall be subject to a surcharge and, if necessary, Extra Labor per the
Schedule of Rates.
B. Supply all necessary employees, labor, supervision, and
necessary equipment based on I.S.O. standards and non-containerized
stevedoring and Terminal Services.
C. Perform stevedoring Services in accordance with the ILWU/PMA
Collective Bargaining Agreement. Third shift work will be performed only
if requested by CUSTOMER and accepted by OPERATOR, at
D. Perform yard and gate Services 0700-1200 and 1300-1700, Monday
through Friday and 1800-2200, 2300-0300 Monday through Thursday (exclusive of weekends/holidays). Yard and gate Services
outside these hours may be performed, if requested in writing by
CUSTOMER and accepted by OPERATOR, at CUSTOMER’s expense.
4.2 VESSEL STEVEDORING
A. Plan Discharging and Loading sequences of containers, as well as non-containerized
Cargo, in accordance with the inbound stowage plan and the pre-stow instructions of CUSTOMER.
All or part of CUSTOMER’s outbound containers may be mix-stowed with
any other containers, for the same discharging port.
For export receiving, gate cut-off for specific vessel will be 24 hours prior to vessel
arrival or last 2nd shift worked prior to vessel arrival, whichever is earliest.
Master or CUSTOMER’s agent shall approve the loading plan prior to
commencement of Loading.
B. Prepare and furnish to CUSTOMER appropriate outbound container
C. Lash or unlash containers, as well as non-containerized Cargo, stowed on
or under deck of vessels.
D. Discharge inbound containers from vessels and deck them in the Terminal
or keep them on wheels per OPERATOR’s operational requirements.
Inbound intermodal train containers may be decked or wheeled, at
OPERATOR’s discretion, at an area in the Terminal designated by
OPERATOR for special release.
E. Dray outbound containers from a point of rest in the Terminal to the berth,
load to and stow them onboard vessels.
F. Discharge non-containerized Cargo from vessels or load to and stow non-containerized
Cargo onboard vessels. Additional expenses related to such
Service shall be billed per the Schedule of Rates.
G. Shift containers from a cell to another cell or on-land containers and re-load
them on board vessels as per CUSTOMER’s instruction. A surcharge shall
apply for such activities.
Change of discharging port, optional stowage, etc., shall be for
CUSTOMER’s account. Expenses for shifting and/or rehandling, including but not limited to set-asides of each related container, shall be for CUSTOMER’s account.
H. Check and record the movement of containers and non-containerized Cargo
on and off vessels and shifted onboard vessels, taking damage exceptions
where apparent. When damage exceptions are noted, OPERATOR will notify CUSTOMER within a reasonable period of time.
4.3 GANG ORDERING AND BERTHING OF VESSELS
A. OPERATOR shall assign a berth as available upon the arrival of
CUSTOMER’S container vessel and, unless otherwise agreed between
OPERATOR and CUSTOMER, start vessel’s operation at the
commencement of the next 1st or 2nd shift succeeding the vessel’s arrival at
B. OPERATOR shall, unless otherwise agreed between OPERATOR and CUSTOMER, decide the number of gangs to order after consulting with CUSTOMER in advance.
C. Labor gang(s) will be ordered by OPERATOR on the basis of the latest
ETA given by CUSTOMER before closing time to file and/or cancel labor gang
orders for the anticipated working shift.
D. If requested by CUSTOMER, OPERATOR will order gangs for a vessel
known to be arriving after beginning the work shift, provided that
CUSTOMER is responsible for standby costs associated with a delayed
E. CUSTOMER may request OPERATOR to arrange gang(s) for 3rd shift. OPERATOR has the right to accept or refuse request at their discretion for any reason. Any labor standby, detentions (except those caused by OPERATOR or his equipment), and/or deadtime incurred on 3rd shifts, shall be for CUSTOMER’s account.
F. Extra labor will be for CUSTOMER’S account.
G. OPERATOR shall not be responsible for shortage of, or inability to obtain,
labor gang(s) or labor.
4.4 CONTAINER YARD ACTIVITY
A. OPERATOR shall:
A minimum of two (2) charges shall apply for each container. OPERATOR shall monitor temperatures and ventilation settings on the reefer units approximately every twelve (12) hours, and report to CUSTOMER any discrepancies found as soon as practicable. The documentation shall be kept by the OPERATOR and provided to the CUSTOMER upon request. OPERATOR shall check temperatures of export (outbound) reefer containers received through the gate per the receiving procedure as mutually agreed upon between OPERATOR and CUSTOMER.
B. Release of Local Delivery Containers. Containers will become available to pick up at the start of the next working shift subsequent to 3:00 a.m. after each container has been discharged from the working vessel, provided that all release criteria contained in the system of the OPERATOR have been met and import pick-up appointment has been secured.
C. Release of Empty Containers. Empty containers will be decked for delivery to truckers or for loading to vessels by container type and size. OPERATOR will not release empty containers by number for off-leasing or any other purpose.
In the event the release of specific empty container(s) is requested and granted by OPERATOR, CUSTOMER shall be accountable for all shifting and/or rehandling fees to/from for each related container to access target empty container(s).
D. Live Reefer Containers, Hazardous Containers, Over-Dimension Containers, Late and
Early Received Outbound Containers. Live reefer containers, containers with certain classes of hazardous materials, over-dimension containers, outbound containers received after cut-off and outbound containers received for other than the immediate vessel, may be kept on wheels on the Terminal per OPERATOR’s operational requirements.
If CUSTOMER’s reefers require halide testing per PMA/ILWU-established reefer halide testing procedures, CUSTOMER shall be responsible for all costs. Daily Storage fees for failed halide test container shall be applicable and for the account of CUSTOMER. In the event halide testing delays and causes standby and/or rehandling in the yard and/or against the vessel, CUSTOMER shall be accountable and billed at the Extra Labor Rate, in addition to the halide test and Storage fees, if any.
E. Receiving of Outbound (Export) Containers. In order for OPERATOR to receive an outbound loaded container prior to the free time for a scheduled vessel, CUSTOMER must consent to the applicable demurrage charges. Free time allowed and wharf demurrage charges are set forth in the Port of Los Angeles Tariff and may be changed from time to time at the discretion of the Port of Los Angeles.
Bare chassis drayed out of the Terminal after the decking of an outbound full or empty container are subject to the normal gate processing, equipment interchange receipt (“EIR”) issuing and fees, if applicable.
F. In Yard Shifting/Rehandling. If CUSTOMER requests that a container be shifted or rehandled for whatever reason, including but not limited to rolls, vessel change, or return to shipper, the applicable Rate shall be applied to the target container and each non-target container move to/from its location.
G. In-Yard Drayage of Container. OPERATOR will perform in-yard drayage of containers per CUSTOMER’s request, per the requirement of any government agency, or per maintenance and repair needs, at CUSTOMER’s expense. Charges for additional drayage regarding the same equipment shall be for CUSTOMER’s account.
H. Chassis Switch/Flip. OPERATOR will perform billable chassis switches for Terminal wheeled Cargo, including but not limited to out of gauge (“OOG”), hazardous, reefer, flat racks, tanks and trucker requested switches due to trucker owned chassis or CUSTOMER-owned or -leased chassis, damaged chassis or shortage of genset chassis. OPERATOR will bill CUSTOMER for all switches. CUSTOMER shall not be released of any chassis switch responsibility and fees due to the use of third-party chassis pools. Any chassis switch caused by the negligence/fault of OPERATOR or Terminal convenience shall be for OPERATOR’s account.
I. Storage of Containers and Chassis.
Inbound and outbound full containers shall be stored in the Terminal subject to the Rates, rules, and regulations of wharf demurrage, wharf Storage and free time in the Port of Long Angeles Tariff. If CUSTOMER requests OPERATOR to collect port demurrage above and beyond that specified in PoLA Tariff, OPERATOR shall forward CUSTOMER’s demurrage fees, less the Port Tariff fees and less 15% of CUSTOMER’s total demurrage collected. If CUSTOMER waives, guarantees, or extends demurrage, CUSTOMER remains responsible and will be invoiced the Port Tariff fee by OPERATOR.
CUSTOMER will work with OPERATOR in good faith to minimize empty container Storage at the Terminal. In the event that storage exceeds the allowance, OPERATOR shall invoice CUSTOMER per the Schedule of Rates. Once the allowance is exceeded, OPERATOR may ask the CUSTOMER to redirect empty containers to other facilities. OPERATOR will have the right to cut off empty returns if the allowance is exceeded after prior notification to CUSTOMER. In special circumstances, including but not limited to construction, crane moves, and when empty container volume is negatively impacting operation, OPERATOR may require CUSTOMER to mitigate empty container returns to the Terminal or redirect empty containers to other facilities.
CUSTOMER shall ensure that the third-party chassis provider will have the necessary quantity of chassis available for CUSTOMER’s Cargo and Cargo which is required to be on wheels, including but not limited to reefers, hazardous, non-containerized Cargo, flat racks, and tanks. In the event that the chassis provider does not supply the chassis and CUSTOMER Cargo is mounted on another chassis provider’s equipment, CUSTOMER shall be subject to any applicable daily fees. CUSTOMER will also be responsible for switching to the correct chassis as soon as possible and at CUSTOMER’s expense. In no case shall OPERATOR be responsible for any chassis usage fees.
Any unidentified chassis remaining on the Terminal and linked to CUSTOMER by yard and gate transaction history shall be the responsibility of CUSTOMER, regardless of chassis ownership.
Unless OPERATOR has a separate hosting agreement with an IEP, the following terms shall apply:
J. Government / Carrier Inspections
CUSTOMER shall be accountable for expenses related to inspections conducted by OPERATOR, including but not limited to Customs and Border Patrol (“CBP”) inspection guidelines and any inspections that CUSTOMER requests.
CUSTOMER guarantees all inspection fees, as stated in the Schedule of Rates, and will be invoiced directly by OPERATOR.
OPERATOR will make reasonable commercial efforts to notify the CUSTOMER of pre-notified CBP inspections, but, whether notified or not, CUSTOMER shall remain accountable for these inspection fees.
Government fees are based on straight time (ST). Any additional costs, including but not limited to CBP overtime differentials, additional manning, materials, or equipment required to complete the inspection to move CUSTOMER cargo, shall be for the account of the CUSTOMER.
4.5 GATE ACTIVITY
A. Receive full or empty containers on chassis, as well as bare chassis at in-gates, per
CUSTOMER’s instructions. No physical inspection of containers or chassis will be performed at in-gates. OPERATOR shall make a cursory remote visual inspection of appearance of the containers and chassis and shall take exception notations on the interchange receipt for obvious damages or defects found through such cursory visual inspection in accordance with the following criteria:
Whether noted or not, OPERATOR will not be responsible for damages or defects to containers or chassis.
B. In case of gate receipt of OOG containers, OPERATOR shall report discrepancies noted with respect to the CUSTOMER-provided booking information, such as:
C. OPERATOR shall take the following additional actions regarding OOG containers:
D. OPERATOR, however, shall not receive the following containers:
E. OPERATOR shall release full or empty containers at out-gates per CUSTOMER’s instructions, in accordance with the following guidelines:
G. OPERATOR shall weigh all export full containers received through Gate.
H. OPERATOR shall receive and deliver non-containerized Cargo at an area in the Terminal designated by OPERATOR. Charges shall be billed as Extra Labor to the CUSTOMER.
I. OPERATOR shall require full payment of the wharf demurrage/Storage for each inbound or outbound container, as applicable, prior to said container’s release from the Terminal.
J. OPERATOR shall offer voluntary roadability. In the event that roadability is regulated or mandated, OPERATOR shall promptly advise CUSTOMER of such changes and the applicable rates shall, by consequence, be established and assessed by OPERATOR, payment for which shall not be unreasonably withheld by CUSTOMER. CUSTOMER’s truck turn times will be impacted by these repairs. OPERATOR shall not be held responsible for any costs related to the Cargo delays resulting from roadability repairs.
K. OPERATOR shall identify all 3rd gate moves or non-vessel related gate moves, including but not limited to empty repositioning, gate to train, train to gate, gate in/out without vessel move. Such moves shall be for the account of the CUSTOMER and be invoiced periodically, per the Schedule of Rates.
4.6 MAINTENANCE AND REPAIR OF CUSTOMER’S EQUIPMENT
At OPERATOR’s discretion, OPERATOR may provide maintenance and repair services at the Terminal for CUSTOMER’S equipment, in accordance with the below.
A. CUSTOMER will pre-authorize OPERATOR an automatic repair limit of $500 per Container, Chassis or Genset (together, “Equipment” for purposes of Section 4.6). Repairs exceeding $500 shall require specific authorization from the CUSTOMER, excluding reefer live loads.
B. When CUSTOMER requests and OPERATOR agrees to perform maintenance and repair services at a cost in excess of Section 4.6.A. above, CUSTOMER shall make decisions on the repair status of equipment within 48 hours after CUSTOMER receipt of the estimate from OPERATOR. If authorization to repair is not received by the expiration of this time, CUSTOMER must immediately dray off dock the damaged equipment at CUSTOMER’s expense. Notwithstanding the aforementioned, any heavily damaged container or chassis exceeding 7 days within the Terminal shall be drayed off-dock immediately by and at the expense of CUSTOMER. OPERATOR shall not charge for estimates and drayage if CUSTOMER authorizes work. If estimated work is not authorized to be performed by OPERATOR, per the above conditions, OPERATOR shall charge CUSTOMER for the cost of estimates, any photos and drayage incurred.
C. If CUSTOMER utilizes roadability, an 8-point inspection shall be completed on the chassis and billed to the CUSTOMER. Any container repairs shall be for the account of the CUSTOMER.
D. Due to the significance and value of reefer live loads, repairs of such reefers shall be completed automatically regardless of automatic repair limits outlined in Section 4.6.A above.
E. When required by PMA/ILWU, halide testing shall be performed and billed to
CUSTOMER per the Schedule of Rates. In the event halide testing delays and causes standby in the yard and/or against the vessel, such costs and delay shall be for CUSTOMER’s account.
F. Any loading/unloading of CUSTOMER’S equipment to and from flatbeds shall be
for CUSTOMER’s account.
G. Mechanic hourly rate is based on 1st/2nd/1st&2nd OT shifts, excluding Shorepower or Cold
Ironing hourly rates. Repairs completed on third shift shall be billed per the Schedule of Rates.
H. All other maintenance or repairs not mentioned above or on the M&R Schedule of Rates
shall be billed at Extra Man Hour rates + equipment at scheduled rate and other materials at cost plus 30%.
4.7 ON-DOCK DST (DOUBLE STACK TRAIN)
OPERATOR, if requested by CUSTOMER, may provide on-dock train loading and discharging services for CUSTOMER’s dedicated on-dock train service, of which terms and conditions shall be set forth in this Schedule at Section 35.2.
4.8 SPECIAL CONTAINER SERVICE
Charges for Special Container Service shall be issued in accordance with those categories listed within the Schedule of Rates, inclusive of additional Services, including but not limited to inspections of containers and Cargo, except as otherwise provided, at Rates per the Schedule of Rates. The receiving and delivery of breakbulk Cargo, not directly discharged from a truck to the vessels or loaded directly to the vessel from a truck, shall be charged to CUSTOMER per the Schedule of Rates.
5.1 CUSTOMER shall provide OPERATOR with all information and instructions necessary to allow OPERATOR to provide efficient Services, including but not limited to:
A. Inbound (Import)
CUSTOMER shall transmit all U.S. import stowage plan data along with all container and U.S. import Cargo manifest data to OPERATOR via an EDI format acceptable to OPERATOR. Such transmission of data shall be received by OPERATOR no later than 72 hours prior to the ETA of each applicable arriving vessel.
B. Outbound (Export)
CUSTOMER and OPERATOR shall close-out all booking information on a weekday (Mondays through Fridays, exclusive of holidays) at the time mutually agreed to by OPERATOR and CUSTOMER. OPERATOR shall follow the agreed upon close-out times and will be advised of such by CUSTOMER.
A Vessel Operating CUSTOMER shall arrange for sufficient chassis to be provided for their cargo which requires chassis. OPERATOR shall not be held responsible for any costs incurred by Vessel Operators caused by inadequate chassis supply or OPERATOR’s use of chassis on the Terminal.
CUSTOMER shall be responsible and accountable for certain chassis-related Services provided by the OPERATOR, including:
5.3 ELECTRONIC DATA INTERCHANGE (EDI) for VOCCs
Each Vessel Operating Common Carrier CUSTOMER (“VOCC CUSTOMER”, for purposes of Section 5.3) shall establish EDI access to OPERATOR’s computer system for transmitting Outbound booking information and releases of inbound containers, as well as receiving gate activity data. OPERATOR and VOCC CUSTOMER agree to transmit activity messages, principally terminal operations activity messages, within two (2) hours of the occurrence of the event. This two-hour requirement is to be met by OPERATOR and VOCC CUSTOMER throughout the week including weekends and public holidays.
Computer services beyond normal terminal operator’s functions may be provided by OPERATOR at VOCC CUSTOMER’s expense.
5.4 GOVERNMENT REGULATIONS/REQUIREMENTS/PROGRAMS
CUSTOMER shall satisfy, abide and follow all applicable ocean vessel and/or container ship-related regulations, requirements and programs implemented by the Port, as well as City, State, and Federal regulatory agencies. Unless otherwise stated, such costs shall be the sole burden of CUSTOMER.
CUSTOMER shall also be responsible for any additional government costs assessed to the Terminal to clear the Cargo for out gate. In addition to inspections and exams, such costs could be for additional manning, government equipment leasing costs, overtime, etc. If billed to OPERATOR, OPERATOR shall pass through the costs to CUSTOMER unless special administrative steps are required, in which case, invoicing shall be completed on an Extra Labor basis.
5.5 HAZARDOUS SUBSTANCES
“Hazardous Substances”, as used in Section 5.5, shall mean any hazardous, toxic, dangerous, or extremely dangerous substance, material or waste which is or becomes regulated by the United States government, the State of California, or any local governmental authority. The term includes, without limitation, any substances containing constituents regulated as specified above.
CUSTOMER shall notify OPERATOR of any container with Cargo containing any Hazardous Substances and CUSTOMER shall be fully responsible for the proper and lawful transportation of said Cargo. CUSTOMER shall be responsible for misdeclarations of any cargo containing Hazardous Substances, and will be subject to a Misdeclared hazardous charge, as set forth in Schedule of Rates.
In the case of outbound containers, OPERATOR shall make commercially reasonable efforts to detect and reject receiving such containers with the presence or release (including the threatened release) of Hazardous Substances in violation of any laws, statutes, ordinances, regulations, rules and other governmental requirements.
5.6 HAZARDOUS AND NON-HAZARDOUS MATERIAL RESPONSE
CUSTOMER shall have the full and sole responsibility, at CUSTOMER’s expense, to manage and prepare all arrangements for the immediate remediation and removal of leaking, damaged or exposed hazardous or non-hazardous Cargo from the Terminal and for damaged (including leaking) non-hazardous Cargo remediation, transloading and/or removal from the Terminal. Such arrangements shall include but are not limited to discussions with shippers, consignees or other responsible parties; contracting with all required vendors to complete the process described above; providing consistent status updates to OPERATOR; and providing all applicable and/or required documentation of container and compensation to OPERATOR for all labor, equipment rental and materials provided during OPERATOR’s assistance with remediation efforts as may be agreed to by and at the sole discretion of OPERATOR.
While responsibility always remains with CUSTOMER, if and when OPERATOR detects and/or determines that (1) there is a leak or spill of a hazardous or non-hazardous chemical or substance; (2) a container is giving off a suspect or potentially problematic odor; or (3) a container has significant damage or has been involved in an incident that poses a risk or threat to the Terminal, environment, or employees, OPERATOR shall notify CUSTOMER and promptly take such action as is necessary and possible by OPERATOR to mitigate and correct the violation. CUSTOMER shall be solely responsible for the cost of these actions, plus 30% for OPERATOR’s administration.
CUSTOMER shall be fully responsible for the treatment, Handling and disposal of such hazardous and non-hazardous containers and shall indemnify and hold OPERATOR harmless from and against all liabilities, expenses, governmental agency fines, citations and/or violations, losses or claims resulting from the release and/or disposal of hazardous substances, except in any case whereby OPERATOR, or its employees, agents or sub-contractors, is deemed negligent by competent independent authority.
5.7 QUALITY / HAZARDOUS MATERIALS PROCEDURES / REQUIREMENTS
When requested by CUSTOMER, OPERATOR may perform extra work, including work at its CFS, not mentioned within this Schedule at terms and conditions acceptable to OPERATOR and in accordance with applicable union collective bargaining agreements, the ILWU/PMA rules and governing regulations, including the Port of Los Angeles Tariff. Extra Work or Extra Labor will be billed at Extra Man Hour rates + equipment at scheduled rate and other materials at cost, plus 30%.
Each piece of Equipment that enters or leaves the Terminal shall be subject to all of the Schedules published from time to time by West Coast MTO Agreement on behalf of its marine terminal operator members under authority of Federal Maritime Commission Agreement No. 201143, see https://www.pierpass-tmf.org/, including but not limited to the assessment, as applicable, of a traffic mitigation fee (the “TMF”) as per the Schedule of Rates. For purposes of this Section 7, “Equipment” is defined to include a container, laden or unladen, including dry cargo, ventilated, insulated, and refrigerated; flat racks; vehicle racks; liquid tanks; open top containers without chassis; vans; and any bare chassis.
Any labor standby, detention, and deadtime in vessel stevedoring shall be for the account of CUSTOMER, unless caused by specific fault or negligence of OPERATOR or separately agreed to between OPERATOR and CUSTOMER, per the Schedule of Rates.
9.2 RAIL SERVICES - OPERATOR’S RESPONSIBILITIES
Discharge full or empty containers from rail cars and dray them directly to pre-designated areas or rows within the Terminal.
OPERATOR shall not be responsible solely on the basis of missing or breached seals that are not detected at the time of discharge from or loading on rail cars. Seal numbers will not be recorded, but notations will be made if seals are noticed as not intact. In such cases, new standard seals will be applied, and the new seal numbers will be recorded at scheduled rate.
9.3 LABOR ASSIGNMENT
9.4 RECEIVING AND RELEASE OF THE TRAIN
The initial switching-in of rail cars shall be made by CUSTOMER’s contracted railroad and such rail cars shall be spotted per the requirements of OPERATOR. Operational delays resulting from failure of railroad to properly spot cars shall be for the account of CUSTOMER, provided the special conditions set forth within Section 9.3.B. and 9.3.C. are not achieved.
CUSTOMER shall provide OPERATOR with all necessary information and instructions, in order to allow OPERATOR to provide efficient services, as set forth below.
CUSTOMER shall notify OPERATOR of each container candidate to be discharged from each applicable vessel, calling the Terminal at least 48 hours prior to commencement of vessel’s discharge operations.
Any containers on governmental hold or not released for loading to trains on-dock shall be pre-advised by CUSTOMER to OPERATOR, of which such containers may be separated upon discharge from the vessel into a pending DST decking bay or remain wheeled, at the sole discretion of the OPERATOR.
CUSTOMER, and no other designated party, shall notify OPERATOR of the “released” status of any such containers originally discharged as “hold” or “not released” for loading.
CUSTOMER shall have the responsibility of authorizing and authority to authorize OPERATOR to cut or eliminate containers from planned train loading operations at the Terminal at scheduled fee.
B. WESTBOUND DATA
C. EASTBOUND DATA
10.2 EXTRA WORK AND OVERTIME WORK
Additional expenses incurred for performing any extra work and overtime ordered by CUSTOMER shall be paid by CUSTOMER on the basis of extra labor rates, plus rental of equipment and cost of material used at applicable markup, unless otherwise stipulated in this Schedule including the Schedule of Rates.
D. Have ultimate authority to initiate SPS upon vessel arrival.
11.3 LABOR ASSIGNMENT
Unless otherwise agreed, OPERATOR shall decide the number of personnel to use in the most economical manner to meet CUSTOMER’s Shore Power requirements.
12.1. CUSTOMER shall:
I. Assume financial responsibility for and reimburse OPERATOR on demand for any costs attributable to any operational delays resulting from failure of vessel personnel, employees, agents, vendors, subcontractors and/or vessel equipment to act or to provide service when required and any fines, penalties or assessments howsoever imposed upon OPERATOR for any such delays.
J. Comply with vessel commissioning requirements as set forth and required from time to time by the Port, AQMD and CARB and any other authority having jurisdiction therefore.
K. Advise OPERATOR of vessel ETA well in advance of vessel arrival and notify OPERATOR of any changes within sufficient time such that OPERATOR can properly arrange for labor and prepare wharf-side Shore Power equipment.
L. Notify OPERATOR of CUSTOMER’s Shore Power procedures and requirements, if different from the standard handling practices described above.
M. Designate as an Emergency Event, as defined in subsection (c)(14)(B) or (c)(14)(C) of 93118.3, title 17, chapter 1, subchapter 7.5, CCR, as amended, within CUSTOMER’s log book, any instance whereby SPS are not feasible due to inclement weather or the like. If CARB determines such event does not qualify as an “Emergency Event” as defined in the citation above, then any fines and/or penalties derived from such event will be for the account of CUSTOMER.
N. Have the ultimate authority to terminate SPS in order to secure the safety of the vessel crew and its assets.
CUSTOMER will prepare documents and reports required by CARB as applicable to the regulation described within section 12.1.A herein above.
Any and all exceptions to limits on hours of operation shall apply and are incorporated herein to this Schedule as referenced in section 93118.3, title 17, chapter 1, subchapter 7.5., CCR, as amended, or other regulations promulgated from time to time by CARB or any other governmental authority having jurisdiction over the subject matter hereof, shall also apply and relieve OPERATOR from any obligation hereunder to connect such Shore Power.
12.4 MAINTENANCE AND REPAIR OF SHORE POWER CONTAINER
CUSTOMER shall be solely responsible for the maintenance and repair (“M&R”) of the CUSTOMER SPC housed at Terminal. CUSTOMER shall dray the SPC off dock for all M&R related activities related thereto. OPERATOR assumes no responsibility for the condition, loss or damage of and safekeeping of the Shore Power container, chassis or SPC beyond providing storage space therefor. CUSTOMER shall be solely responsible for any action such as fines and/or penalties by the Port, CARB, AQMD, etc. imposed upon CUSTOMER or OPERATOR in the event that M&R work prevents CUSTOMER Shore Power-qualified ships from connecting to Shore Power at the Terminal and/or meeting any targets.
12.5 EXTRA WORK AND OVERTIME WORK
Additional expenses incurred for performing any extra work and overtime otherwise required or ordered by CUSTOMER shall be paid by CUSTOMER on the basis of extra labor rates, plus rental of equipment and cost of material used, plus 25% mark up, unless otherwise stipulated in this Schedule inclusive of its Schedule of Rates or unless mutually agreed to by OPERATOR and CUSTOMER.
Extra labor charges shall be determined by the applicable Man-Hour Billing Rates (as noted in the Schedule of Rates) per applicable working shift, plus cost of equipment rental, cost of materials, if applicable, and mark up.
13.1 OPERATOR’S RIGHTS
Prior to commencing, during and until the completion of its work, OPERATOR shall be allowed to inspect and determine the safety of all work areas and of all gear and equipment which will be utilized by OPERATOR.
13.2 CUSTOMER’S OBLIGATIONS
CUSTOMER shall immediately notify OPERATOR and OPERATOR shall immediately notify CUSTOMER of any property damaged and of any illness, injury or death of any person which occurs during OPERATOR’s and/or CUSTOMER’s operations. Each shall cooperate fully with the other in developing full and complete information about the facts and circumstances of the occurrence and the nature and extent of the damages or injuries which resulted therefrom.
CUSTOMER grants OPERATOR a lien on the Cargo while in the possession of OPERATOR and a lien against any vessel, container, chassis, Cargo, and any Equipment (individually and collectively, “Available Security” for purposes of Section 14.1) to provide security for the payment of amounts due OPERATOR hereunder. As additional security for said amounts due OPERATOR, CUSTOMER grants OPERATOR a consensual lien on all Available Security of CUSTOMER concurrently or subsequently in OPERATOR’s possession. OPERATOR may assert its lien rights at any time, and in furtherance thereof may hold and/or store such Available Security until payment is received and/or sell such Available Security publicly or privately; in the event of sale, proceeds shall first be applied to sale costs, then to amounts due to OPERATOR, with the balance, if any, to be remitted to CUSTOMER.
14.2 STORAGE AND WAREHOUSING
The following terms and conditions shall apply with respect to any storage or warehousing terminal services:
If the Charges and Costs are not fully settled by the time of the Cargo release, or if the Available Security is otherwise unclaimed, after a reasonable time not to exceed thirty (30) days after arrival at the Terminal, or the time set forth in any Applicable Rate provision, OPERATOR may sell the Available Security privately or by public auction, or otherwise dispose of such Available Security, ten (10) days after sending the owner of record notice, via letter (U.S. Mail, postage prepaid, return receipt requested) or by actual notice by any appropriate means, of the amount of Charges and Costs owed, the date of sale and a statement informing the registered owner that if the Charges and Costs are not fully settled by the date of sale any or all of the Available Security will be sold and the proceeds of such sale will be used to settle the Charges and Costs owed, plus the costs of the sale. If the owner of record does not fully settle the outstanding Charges and Costs within ten (10) days of the mailing of the notice letter or giving actual notice, the sale will proceed as described in the notice. If the sale proceeds fail to cover the outstanding Charges and Costs, OPERATOR may recover the deficit from the party responsible for such Charges and Costs, or its affiliates owing any unsatisfied portion thereof. Sale proceeds beyond the Charges and Costs owed will be returned to the registered owner if claimed within one (1) year of the mailed notice.
No provision contained in this schedule shall relieve OPERATOR from liability for its own negligence nor require any user to indemnify or hold harmless OPERATOR for liability for its own negligence.
OPERATOR shall be liable only for damage resulting from its failure to exercise due and proper care in performing the services provided for herein. In no case shall OPERATOR be liable for a sum in excess of $500.00 per package or per customary freight unit unless the trucker, shipper, Cargo owner or consignee or their representatives, prior to the commencement of such services, declares in writing a higher value and OPERATOR has agreed to accept such increased limits prior to OPERATOR taking custody of, or assuming responsibility for, the Cargo, or other arrangements are made in writing with OPERATOR prior to its taking custody of or assuming responsibility for, the Cargo.
In no event shall CUSTOMER be entitled to receive any special, incidental or consequential damages of any type or nature.
15.1 USE AT CUSTOMER’S RISK AND EXPENSE
CUSTOMER specifically understands, acknowledges and agrees that any and all providing of, access to and/or use of the Terminal and/or Services of OPERATOR by or on behalf of CUSTOMER shall be at CUSTOMER’s sole risk and expense. Aside from loss and/or damage to the Cargo itself, as addressed in Section 23 and elsewhere herein, CUSTOMER assumes sole responsibility for, and agrees to indemnify, defend, and hold OPERATOR, and its respective successors, assigns, parent companies, members, managers, officials, directors, officers, employees, agents, representatives, and other persons or entities acting for or on behalf of OPERATOR, harmless from and against all other loss, damage, expense, claim, liability, suit, fine and/or penalty of any type or nature whatsoever which in any way arises out of and/or relates to any providing of, access to and/or use of the Services, including attorney’s fees and legal costs of OPERATOR incurred by or on behalf of CUSTOMER, including, without limitation, those respecting any loss/damage to the property of OPERATOR, CUSTOMER or any other person or entity, including any other CUSTOMER of OPERATOR, as well as those respecting the personal injury, illness and/or death claims of any person, including without limitation of any agent, employee, representative, guest, invitee, vendor and/or subcontractor of OPERATOR, CUSTOMER or any other person, including any other CUSTOMER of OPERATOR, howsoever caused and even if resulting in whole or part from the negligence (active or passive) or fault of OPERATOR. The foregoing indemnification shall be deemed to include any claim or suit by any employee (present or former) of CUSTOMER, and in furtherance of the foregoing, CUSTOMER shall waive any immunity from suit, exclusivity of remedy and limitation upon liability which would have otherwise been afforded pursuant to any workers compensation act or similar law.
15.2 NOTIFICATION OF INJURY AND/OR DAMAGE
CUSTOMER shall notify OPERATOR immediately of any bodily and/or personal injury, illness and/or death, or of any property damage, related in any way to its access to or use of the Services. CUSTOMER shall promptly provide OPERATOR with written accident reports and shall cooperate fully with OPERATOR with respect to any investigation, including allowing inspection of personal property and access to personnel.
15.3 LIMITATION OF LIABILITY
CUSTOMER shall incorporate in any agreements entered into for OPERATOR’s provision of Services under this Schedule a provision extending to independent servants, agents and subcontractors of CUSTOMER (including OPERATOR and each of its subcontractors), the benefits and limitations upon liability of CUSTOMER thereunder. Any waiver by CUSTOMER of such limitation of liability provisions shall not be effective against OPERATOR.
For any Vessel Operating Common Carrier CUSTOMER (“VOCC CUSTOMER”, for purpose of Section 15.3), this includes, but is not limited to, the provisions of the U. S. Carriage of Goods by Sea Act (COGSA), incorporated and extended to apply throughout the time during which OPERATOR performs Services under this Schedule. It is expressly agreed by the VOCC CUSTOMER that, should a bill of lading provision not extend the application of the COGSA defenses to the OPERATOR, VOCC CUSTOMER shall indemnify OPERATOR for those sums that it is liable for over and above the COGSA limitation of liability defenses. When VOCC CUSTOMER accepts Cargo on an ad valorem basis, OPERATOR shall not be responsible for increased liability unless VOCC CUSTOMER gives written notice in advance to the OPERATOR in sufficient time for the OPERATOR to provide special Handling and/or supervision; and extra charges therefore shall be agreed upon between OPERATOR and VOCC CUSTOMER at the time such notice is given. Such confidential notice shall include a description of the quantity, nature and location of the Goods.
15.4 CAUSES OF ACTION FOR LOSS/DAMAGE
In order for CUSTOMER to bring a cause of action against OPERATOR arising out of Cargo loss/damage caused by OPERATOR, CUSTOMER must: (1) have given written notice to OPERATOR of any damage or loss within one year after the CUSTOMER first receives notice, written or otherwise, of the damage or loss; and (2) file suit within one year of the date of settlement by CUSTOMER of any claim for such Cargo loss or damage or the date a judgment is entered against CUSTOMER in any action for such Cargo loss or damage. Moreover, any unilateral waiver of rights or extension of obligations by CUSTOMER, including COGSA, shall result in the discharge of any obligation of OPERATOR to CUSTOMER to the extent of such waiver or extension.
15.5 CONCEALED DAMAGE/LOSS
OPERATOR will not accept any liability for concealed damage/loss or the condition of the contents of containers received in damaged condition from vessel or inland carrier.
16.1 OPERATOR does not provide any insurance whatsoever for the benefit of CUSTOMER, nor any insurance whatsoever covering CUSTOMER’S Cargo, property or personnel.
16.2 In addition to any legally mandated insurance, any Vessel Operating Common Carrier CUSTOMER (“VOCC CUSTOMER”, for purposes of Section 16.2) shall carry the following minimum insurance:
D. Heavy Lift Insurance, if applicable, while such heavy lift services are being provided:
E. VOCC CUSTOMER shall further indemnify, defend and hold OPERATOR harmless (including legal fees and costs) from and against any loss, damage, expense, claim, liability and/or suit resulting from VOCC CUSTOMER’s failure to provide any insurance as required and/or resulting from the failure of any such insurance, including without limitation exposure to loss, damage, expense, claim, liability and/or suit which would have been covered had insurances been procured and maintained as required.
16.3. In addition to any legally mandated insurance, any other CUSTOMER not subject to Section 16.2 above shall carry the following minimum insurance:
It is hereby understood that OPERATOR shall be an independent contractor and not an agent or employee of the CUSTOMER and all employees or laborers employed in the performance of Services under this Schedule shall be employees of the OPERATOR, or its subcontractors, at all times and not of CUSTOMER.
It is agreed by OPERATOR and CUSTOMER that this Schedule shall be governed by the federal laws and regulations of the United States, or in the event no federal laws or regulations apply, governed by the laws of the State of California as applied to contracts that are executed and performed entirely in California, and that, to the extent that the laws of the State of California are applicable, the Federal and State Courts located in the State of California shall have jurisdiction over all claims, disputes and actions arising under this Schedule, notwithstanding any conflicts of law principles under the laws of the State of California or any other state. Nothing herein contained shall be construed to deprive either OPERATOR or CUSTOMER of any rights which each party may have against the other or its property in law, in admiralty or in equity as a result of any breach of the respective obligations set forth in this Schedule.
Should unusual conditions occur, including without limitation, damage or destruction to premises or facilities (including vessels or containers) by fire, flood, riot, earthquakes, tidal wave, heavy rains, high wind or windstorm, severe storm or other weather conditions or circumstances creating unsafe work conditions, explosion, force majeure, acts of God, the public enemy or other casualty, or should the operation by OPERATOR be suspended, abated, prevented or impaired by reason of war, war-like operations, seizure, marine casualty, governmental decree or regulation, stoppage of public power supply, curtailment of fuel supply, strikes, picketing, slow-downs or other labor disputes or negotiations, lockout or other work stoppage, or by reasons of any other conditions or occurrences beyond the control of the OPERATOR (such condition being a “Force Majeure Event” for purposes of Section 19), including any such condition that may render the Terminal wholly or partially untenable, unsafe, or unfit for use, or so as to make it impractical for OPERATOR to make reasonable or full use thereof, then OPERATOR may be excused for its obligations without responsibility for any claim by another party to this Schedule arising out of such excused obligation, to the extent and duration of such Force Majeure Event.
If any action at law or in equity is necessary to enforce or interpret the terms of this Schedule, OPERATOR shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which it may be entitled.
If any provision of this Schedule is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in force without being impaired or invalidated in any way.
The Carriage of Goods At Sea (COGSA) (46 U.S.C. §1300 et seq.) is fully incorporated into this Schedule and shall be applicable at all times the Goods are, or are deemed, in the care, custody and/or control of OPERATOR. OPERATOR shall not be liable for any loss and/or damage to or in connection with the Goods in an amount exceeding $500 U.S. per package, or in the event of Goods not in such packages per customary freight unit, unless a higher value for the Goods has been declared in writing to OPERATOR prior to the commencement of any Services whatsoever and CUSTOMER has paid the increased Rates and/or charges resulting from such declaration of higher value. OPERATOR shall not be responsible in any event for any loss/damage to or in connection with the Goods if the nature or value thereof has been misstated. OPERATOR shall not be liable to CUSTOMER or any other respecting the Goods except as set forth in this Section 22, whether for loss, damage, delay, shortage, misdelivery, failure to deliver or otherwise, and/or in tort, contract or any other theory.
In the event any damage/loss could have occurred during some other mode of transportation or while in the care, custody, or control of any other provider, including CUSTOMER, such loss or damage shall be deemed to have occurred while in the care, custody, or control of CUSTOMER.
OPERATOR shall not be liable for any loss/damage to or in connection with the Goods which arises and/or results from any of the following: unseaworthiness, unless caused by want of due diligence; act, neglect or default of master, mariner or pilot in the navigation or management of a vessel; fire, unless caused by the actual fault and privity of OPERATOR; perils, dangers and accidents of the sea or other navigable waters; act of God; act of war; act of public enemies (including terrorism); arrest or restraint of princes, rulers or people, or seizure under legal process; quarantine restrictions; act or omission of CUSTOMER, its agent or representative; strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general; riots and civil commotions; saving or attempting to save life or property at sea; wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the Goods; insufficiency of packing; insufficiency or inadequacy of marks; latent defects not discoverable by due diligence; and any other cause arising without the actual fault and privity of OPERATOR.
OPERATOR shall not under any circumstances be liable to CUSTOMER or any other for any indirect, consequential, exemplary, or special damages of any type or nature whatsoever, including, without limitation, any damages consisting of lost profits, lost income, lost business, lost business opportunity, interruption of business, loss or use and/or loss of ability to use undamaged component or system parts, regardless of whether such damages may have been foreseeable.
The following are agreed to by OPERATOR and CUSTOMER to be conditions precedent to any recovery from CUSTOMER for loss/damage to or in connection with the Goods.
In any event, OPERATOR shall be forever discharged from liability for any loss/damage to or in connection with the Goods, unless suit is filed within one (1) year after the date of delivery from OPERATOR or the date on which the Goods should have been so delivered.
OPERATOR shall be entitled to set-off any amounts owed or due by CUSTOMER or Goods against any claim.
CUSTOMER’s written notice of loss/damage to or in connection with the Goods must include and attach copies of the following, as applicable: all bill(s) of lading, transportation agreement(s), receipt(s) and other document(s) identifying the Goods, consignor, consignee, vessel, voyage, shipping date, etc.; all manifests, packing lists, stow plans, loading/discharge reports, tally/count sheets, Cargo receipts, etc.; all agreements, invoices and receipts respecting any sale of the Goods; all correspondence respecting the Goods and/or their transportation; all inspections, surveys, photographs, claim bills, invoices and statement of losses respecting the Goods and/or the loss/damage being claimed, including documents supportive of any mitigation, salvage, market analysis and disposition efforts; and all other documents, instruments, records, data, drawings, photographs and information of any kind or nature whatsoever which may be pertinent or helpful to an understanding of the nature of the Goods, the particulars of their transportation and/or the loss/damage being claimed.
CUSTOMER shall be responsible for accepting the Goods, or having the Goods accepted, from OPERATOR upon completion of Services and any inspection thereof requested by OPERATOR, even if such Goods are claimed to have suffered loss/damage. CUSTOMER shall not abandon any Goods at the Terminal or otherwise with OPERATOR for any purpose or under any circumstances whatsoever.
OPERATOR reserves the right to hold, lien, store, warehouse, sell (publicly or privately) and/or dispose of any Goods which are abandoned and/or refused by CUSTOMER, or by any shippers, carriers, consignees, etc. relevant to the abandoned and/or refused Goods, after due notice has been sent to relevant persons known to OPERATOR and time for pick-up has passed, without further notice, at OPERATOR’s discretion and CUSTOMER’s sole risk and expense.
Any access to and/or use of the Terminal and/or the Services of OPERATOR whatsoever by or on behalf of CUSTOMER shall be deemed CUSTOMER’s express agreement with the provisions set forth in this Schedule, including without limitation the security provisions contained herein, and the access and use provisions of this Section. OPERATOR may request that CUSTOMER sign a separate, written Access Agreement, prior to such access/use or otherwise, in which event the signed, written agreement shall be deemed incorporated herein and applicable concurrently with this Schedule, with the provisions of the signed, written agreement to supersede the provisions of this Schedule to the extent of any direct conflict but no further.
OPERATOR does not discriminate based upon race, color, religion, sex, age, national origin or any sensory, mental or physical disability, or upon any other basis prohibited by applicable law.
OPERATOR and CUSTOMER agree to cooperate and use their reasonable commercial efforts to utilize electronic data, documentation and interchange to the extent feasible and allowable under law.
This Schedule shall be construed neutrally, and for the mutual benefit of OPERATOR and CUSTOMER, rather than for or against a party. If any provision of this Schedule is found to be legally unenforceable, it is agreed that such provision shall be deemed deleted from this Schedule as if never made a part hereof, with the remaining provisions of this Schedule to not be affected thereby and to remain in full force and effect.
Any failure of OPERATOR to enforce a provision of this Schedule shall not be deemed to waive such provision or any other provision in this Schedule.
OPERATOR may request that CUSTOMER sign a separate, written agreement for any one or more Services, in which event the signed, written agreement shall be deemed incorporated herein and applicable concurrently with this Schedule, with the provisions of the signed, written agreement to supersede the provisions of this Schedule to the extent of any direct conflict but no further.
This Schedule, together with OPERATOR’s written quotation and any separate, written agreements between OPERATOR and CUSTOMER as identified directly above, represents the entire agreement between OPERATOR and CUSTOMER and supersedes all prior and contemporaneous agreements, written or oral.
CUSTOMER shall compensate OPERATOR for the performance of the Services described herein in accordance with this Schedule and the Schedule of Rates attached hereto and will reimburse OPERATOR for documented charges paid on its behalf.
Payments shall be made in U.S. funds via wire transfer with advance notice of invoice details, not later than thirty (30) days after receiving the undisputed invoice. Invoices shall be forwarded to CUSTOMER via electronic mail. If CUSTOMER disputes any invoices, then CUSTOMER shall notify, in writing, OPERATOR within 15 days after receiving such invoices. While the disputed item is under review, CUSTOMER shall continue to pay the undisputed balance within the 30-day terms. In the event that payment against any undisputed invoice occurs after 30 days, CUSTOMER agrees to pay interest of 2% per month on any outstanding sums. Port of Los Angeles Tariff items, such as Wharf Storage and demurrage, are to be settled per Port of Los Angeles Tariff rules and regulations.
OPERATOR at its discretion, may temporarily discontinue or cut-off certain services, including withholding demurrage refunds or collections to the CUSTOMER, based on the age of unpaid invoices. In addition, OPERATOR at its discretion may require advance payment for all future services. OPERATOR may exercise these options if OPERATOR has forwarded multiple invoice copies to the appropriate CUSTOMER personnel with no progress made toward payment, if CUSTOMER has not disputed invoices in writing with specific details or if a balance remains over 30 days for two (2) consecutive months. Further, OPERATOR shall have the right to take or set-off any or all sums held on CUSTOMER’s behalf for direct, indirect and acquired obligations, including debts that CUSTOMER owes to OPERATOR, regardless of the source of funds held by OPERATOR on CUSTOMER’s behalf. OPERATOR shall not be required to provide CUSTOMER with any prior notice to exercise this right of set-off.
35.1 STEVEDORE RATES
B. The following items are expressly understood to be EXCLUDED from the Rate listed in the Schedule of Rates:
B. All charges contained herein shall be invoiced only to CUSTOMER, unless otherwise stated, shall be the sole responsibility of CUSTOMER and shall not be subject to pro ration or assignment, either all or in part, to any other party. Invoices shall be paid in full under the conditions set forth herein under Section 34 only by CUSTOMER.
B. The following items are not included within the Lift Charges in the Schedule of Rates:
5. Any additional charges assessed as cargo penalties to be billed at actual cost.
6. Extra work, not otherwise mentioned herein, to be billed to CUSTOMER in accordance with Section 10.2.
7. Labor standby and deadtime or guarantee time, if caused through no specific action or fault of OPERATOR, as reasonably determined by OPERATOR.
8. Materials, if furnished, such as lumber, shoring materials, IBC’s, etc. for rail services, to be invoiced to the CUSTOMER’s account at actual cost.
35.3 SHORE POWER SERVICES
The total monthly cost of electricity and all associated fees, taxes and charges of any kind as invoiced to OPERATOR by the local utility company shall be for the account of CUSTOMER as applicable, as reasonably determined by OPERATOR, plus 25% markup on said costs.