2024.06.04 Draft VISA T and Cs_Clean.pdf

DRAFT VISA T&Cs

4 June 2024

Voluntary Intermodal Sealift Agreement (VISA) Terms and Conditions

SECTION 1 CONTRACT SCOPE

1.1 Overview

1.2 Basic Services

SECTION 2 VISA CAPACITY ENROLLMENT TERMS

2.1 Background

2.2 Capacity Commitment

2.3 Intermodal Equipment

2.4 Business Rules to Transition from Peacetime through the Three Stages of VISA

SECTION 3 DRY CARGO (TIME)

3.1 Charter Hire

3.2 Mission

3.3 Reporting Requirements

3.4 Crew

3.5 Cargo Receipt

3.6 Loading and Discharging

3.7 Oil Pollution Spill

3.8 Safety in Loading and Discharging Cargo

3.9 Deck Cargo

3.10 Cleaning

SECTION 4 TIME CHARTER

4.1 Delivery

4.2 Redelivery

4.3 Ports/Places

4.4 Charter Period

4.5 Dry dock

4.6 Insurance

4.7 War

4.8 Readiness

4.9 Off-Hire

4.10 Supercargo and Government DESIGNATED Representatives

4.11 Time Lost

4.12 Negligence of Pilots

4.13 Port Charges and Expenses

4.14 Owner’s Obligation

4.15 Fuel

4.16 Reduced Operational Status (Lay-up)

4.17 Waiver of Claims

4.18 Charter Not a Demise

4.19 Salvage

4.20 Limitations

4.21 Alterations

4.22 Reimbursable Supplies and Services (charters)

4.23 Standards of Appearance

4.24 Savings

4.25 Substitution

4.26 Shipboard Antiterrorism/Force Protection Measures

4.27 Payment

4.28 Special Requirements

4.29 Statutory Employee

4.30 In-Transit Visibility

4.31 Security Threat

4.32 Immunizations (U.S. Flag Only)

4.33 Investigations

4.34 Military Extraterritorial Jurisdiction Act

SECTION 5 DRY CARGO TIME ADDITIONAL CONTRACT REQUIREMENTS (AS APPLICABLE)

5.1 Navigational Equipment

5.2 Time Charter War Risk Coverage

5.3 Automated External Defibrillator (AED)

5.4 Both to Blame

5.5 Tugs and Barges

5.6 Contractor Security (CS)

SECTION 6 CARGO PREFERENCE

SECTION 7 MARITIME CLAUSES

7.1 Regulatory Compliance/Applicable Documents

7.2 Hazardous Cargo

7.3 General Average

SECTION 8 JOINT PLANNING ADVISORY GROUP (JPAG)

SECTION 9 COMPANY COMMAND CENTER

9.1 Planning and Coordination

SECTION 10 QUALITY, CONTROL, REPORTING AND RECORDS

10.1 Quality Control

10.2 Retention of Records

SECTION 11 PRICING METHODOLOGY

11.1 Standard Negotiation Procedures

SECTION 12 INVOICING AND PAYMENTS

SECTION 13 SECURITY (Physical, Personnel, Information, Antiterrorism/Force Protection and Industrial)

13.1 General Security Information

13.2 Citizenship and Clearance Requirements

13.3 Additional Security Requirements (Transportation Security)

13.4 Security Clearance Requirements

13.5 Facilities Clearance Level (FCL)

13.6 Visits by Non-Assigned Contractors to USTRANSCOM/SDDC Buildings

13.7 Accessing NATO Information

13.8 Classified Information at Contractor Headquarters

13.9 Classified Meetings

13.10 Derogatory Information

13.11 Antiterrorism/Force Protection

13.12 Defense Transportation Regulation

13.13 Security Regulation Guidance

SECTION 14 SECURITY CLEARANCE

SECTION 15 CYBER SECURITY

15.1 General Cyber Security Requirements

15.2 Cybersecurity Incident Reporting

15.3 Cybersecurity Incident Reporting Timelines

15.4 Incident Reporting Coordination

SECTION 16 GOVERNING LAW

SECTION 17 ACTIVATION AGREEMENT

SF1449 Attachments

SECTION 1 CONTRACT SCOPE

1.1 Overview

This contingency contract implements the Voluntary Intermodal Sealift Agreement (VISA) as defined in the Federal

Register dated 29 October 2014 and provides for contingency sealift services that may arise in any part of the world.

The general scope of services under this contract includes the provision of ocean transportation charter for worldwide port-to-port ocean movements and related intermodal movements, infrastructure, services, and management expertise. This contract also is to provide such services on a bilateral basis prior to a contingency for the purpose of testing and exercising VISA.

1.2 Basic Services

1.2.1 The contractor shall provide basic services, as outlined in the following sections, including guaranteed capacity up to stage commitment levels and corresponding intermodal services and infrastructure supporting capacity commitments to DOD contingency operations. Such services and infrastructure include but are not limited to active tracking, port clearance, delivery of containers and shipments to and from CONUS and international locations, and reporting and command center interface. The contractor shall maintain the highest possible on-time performance rate.

1.2.2 VISA liner services terms for space are incorporated into the Universal Service Contract (USC-10 on-ward). During an activation of VISA, the USC contract shall be used to move liner DOD contingency cargo requirements using standard USC One-Time-Only (OTO) booking procedures. If pick-up/drop-off, intermodal equipment, and/or any inland transport is necessary under VISA, for contingency operations, these terms will be negotiated during activation, at the task order level and/or included as USC VISA OTO requirements, as needed.

SECTION 2 VISA CAPACITY ENROLLMENT TERMS

2.1 Background

2.1.1 Contractors are offered an opportunity to enroll specific vessel capacity and related resources (intermodal systems and equipment, terminal facilities, intermodal and management services, etc.) into the VISA program at any time throughout the year, as described in the Federal Register dated 31 January 2018. As in prior Department of

Defense (DOD) sealift readiness programs, contractors receiving certain subsidies from the Government must enroll specified capacity and related resources into Stage III of VISA. (For example, in accord with section VI.B.3.a of

VISA, as described within the Federal Register dated 29 October 2014, this contract obligates a contractor receiving payments under the Maritime Security Program (MSP) (46 U.S.C. § 53101-11) to make vessels covered by an MSP

Operating Agreement available during Stage III of VISA to DOD in accord with the MSP statutes and regulations.

According to the Maritime Administrator, such obligation shall satisfy MSP requirements for contractor enrollment in an Emergency Preparedness Program.) Contractors receiving payments under an MSP Operating Agreement may make a contract commitment only to Stage III of VISA or they may make a contract commitment to Stages I, II and

III of VISA. Similarly, other qualified contractors may make a contract commitment only to Stage III of VISA or may make a contract commitment to Stages I, II and III of VISA. Enrollment in Stage I, II and/or III of VISA involves two sequential steps: execution of the application Form MA-1020 (OMB Approval No. 2133-0532) with the Maritime Administration (MARAD) and execution of this contingency contract with USTRANSCOM.

2.1.2 Upon execution of this contingency contract, a contractor becomes a VISA “Participant” and receives a priority, as described in section III.A.3 of VISA, as a VISA “Participant” for award of DOD peacetime cargo for the forthcoming fiscal year. However, the priority of a “Participant” described in section III.A.3 of VISA has two tiers, a top tier and a bottom tier. Within the “Participant” priority, contractors in the top tier rank higher than contractors in the bottom tier for award of DOD peacetime cargo. As noted at section VI.B.3.b of VISA, contractors properly committing capacity to Stages I, II and III of VISA receive top tier priority as a “Participant”. In addition, certain offerors with a portion of their vessel capacity exclusively engaged in the domestic trades (coastwise-qualified capacity) or offerors for long-term charter to DOD receive top tier priority as a “Participant”, in accord with sections

VI.B.3.b and VI.B.4 of VISA, by properly committing some or all capacity to Stage III only. Specifically, an offeror that commits its coastwise-qualified capacity to Stage III only and its other capacity to Stages I, II and III receives the top tier priority, while an offeror for long-term charter to DOD receives the priority top tier if all of its vessel capacity is committed only to Stage III. Other contractors that properly commit capacity only to Stage Ill receive a priority as a “Participant”, in accord with section VI.B.3.a of VISA, but their priority is a bottom tier priority of lower rank for award of DOD peacetime cargo than the top tier priority.

2.1.3 The minimum Stage I/II commitment will be specified for each cycle of USTRANSCOM peacetime contracts. To the extent such peacetime contracts use commitments above the minimum as an evaluation factor in the award or allocation of peacetime business, a contractor’s annual commitment to Stages I/II could influence the amount of DOD business it receives through contracts awarded from the effective date of this contract through the end of the corresponding contract period.

2.1.4 Activation of any Stage of VISA shall be in accord with the provisions of VISA, particularly section V of

VISA. The decision to activate or deactivate any Stage of VISA will be made by USTRANSCOM Commander.

DOD’s primary goal in activating or deactivating VISA is to meet operational requirements, while facilitating the use of existing, commercial, intermodal/sealift resources and minimizing disruption to commercial operations whenever possible.

2.1.5 USTRANSCOM will request the Contractor to perform all or part of the Contractor’s commitment in this contract to any activated Stage of VISA through this contingency contract.

2.1.6 In furtherance of the Government’s minimum requirements for a sealift readiness program and in consideration of the Contractor’s commitment of specific capacity and related resources (as detailed herein), the

Contractor’s receipt of Government subsidy (if applicable), and the Contractor’s priority consideration for award of certain DOD contracts, the Government and the Contractor agree as follows:

2.2 Capacity Commitment

2.2.1 VISA defines a commitment of vessel capacity in terms of a percentage of a contractor’s U.S. Flag vessel capacity. The terms “vessel” or “ship” whenever used in this contract shall include U.S. Flag containerships, RO/RO ships, break-bulk/bulk ships, combination ships, barges and other dry cargo ships (tug/barge combinations) unless otherwise indicated. With respect to various ship types, the Contractor’s capacity commitment as set forth in

Attachment 1 of this contract was described in terms of “militarily planning capacity”, which was computed in the following manner:

2.2.1.1 Container ships: total TEU capacity (at any one time). Militarily planning capacity for containerships is determined by using vessel stowbooks or capacity plans with average military TEU weights of:

14 Measurement Tons (MT)/Sustainment 20ft

19 MT Sustainment 40ft

At least 1500 TEU militarily useful capacity

2.2.1.2 RO/RO ships: total square feet capacity (at any one time). Militarily planning capacity for RO/Ros is determined using the following criteria for deck strength and ceiling height:

Heavy Deck: 450 pounds per square feet (PSF) or above, 11 ft ceiling height or above

Medium Deck: 250 to 449 PSF, 9.5 ft ceiling height or above

Light Deck: 150 to 249 PSF, 7.5 ft ceiling height or above

Decks less than 150 PSF and 7.5 ft height are not considered militarily useful

2.2.1.3 Break-bulk/Bulk: deadweight (at any one time). Capacity is measured in MT.

2.2.1.4 Combination ships: calculated on applicable combination of above elements.

2.2.1.5 Barges: total square feet capacity (at any one time).

2.2.1.6 Other ships: - Integrated and articulated tug and barge combinations – Tug and towed or pushed barge combinations – total square feet capacity (at any one time).

2.2.2 Attachment 1 lists the Contractor’s U.S. Flag vessel capacity in which the Contractor hereby commits to

Stage III of VISA. In the event of any conflict between the procedures in this contract for computing and calculating a capacity commitment and the final Stage III commitment in Attachment 1, the Attachment 1 commitment shall control. Committed capacity is expected to be maintained for USTRANSCOM contingency planning purposes.

However, if any change in the Contractor’s U.S. Flag fleet is necessary during the period of this contract, a minimum 30-day notice shall be provided to USTRANSCOM identifying the change and a revised Attachment 1 indicating the new commitment will be issued via modification.

2.2.2.1 In calculating this Stage III commitment, the Government and the Contractor used the following business rules:

2.2.2.1.1 The Stage III commitment is 50% of a participant’s entire U.S. Flag vessel capacity or 100% of the capacity of subsidized vessels, whichever is greater.

2.2.2.1.2 100% of the capacity of a subsidized U.S. Flag vessel must be committed. For example, 100% of the capacity of U.S. Flag vessels receiving Maritime Security Program (MSP) subsidy must be committed to Stage III.

2.2.2.1.3 A contractor with no subsidized vessels must commit 50% of its U.S. Flag vessel capacity to Stage

III.

2.2.2.1.4 If a contractor has both subsidized and unsubsidized vessels, 100% of the capacity of the subsidized vessels must be committed. If that capacity is not 50% of its U.S. Flag vessel capacity, the contractor must commit unsubsidized capacity to reach that 50% level. If the subsidized capacity exceeds 50% of a contractor’s U.S. Flag vessel capacity, no commitment of unsubsidized vessels is necessary.

2.2.2.1.5 The capacity of a vessel under charter to DOD was not counted toward the contingency commitment during the period of the charter.

2.2.3 Attachment 1 lists the Contractor’s U.S. Flag vessel capacity in which the Contractor hereby commits to

Stage I/II of VISA. In the event of any conflict between the procedures in this contract for computing and calculating a capacity commitment and the final Stage I/II commitment in Attachment 1, the Attachment 1 commitment shall control. Committed capacity is expected to be maintained for USTRANSCOM contingency planning purposes. However, if any change in the Contractor’s U.S. Flag fleet is necessary during the period of this contract, a minimum 30-day notice shall be provided to USTRANSCOM identifying the change and a revised

Attachment 1 indicating the new commitment will be issued via modification. In calculating any Stage I/II commitment, the Government and the Contractor used the following percentages:

Stage Min Percentage Percentage Above Min Total Percentage

I 15% None 15%

II 40% None 40%

2.2.4 In addition, where applicable, the Government and the Contractor excluded vessel capacity exclusively engaged in domestic trades (coastwise-qualified capacity) from U.S. Flag vessel capacity only for the purpose of calculating the minimum commitment required for Stage I/II. The lack of commitment to Stages I/II of vessel capacity exclusively engaged in domestic trades (coastwise-qualified capacity) will not prevent a contractor otherwise properly committed to Stages I/II from receiving a top tier priority as a VISA Participant for award of

USTRANSCOM peacetime cargo from the effective date of this contract through fiscal year end.

2.2.5 The Stage I and Stage II minimum commitments for offerors seeking the top tier priority on charter contracts, exclusive of long-term (one year or longer) charter contracts, will be calculated using the minimum percentages listed in the table above.

2.3 Intermodal Equipment

The Contractor hereby commits to provide intermodal equipment (chassis, containers, etc.), terminal facilities, intermodal and management services, intermodal systems, and other related resources used in performance of its peacetime business (commercial and military) that the Contractor will need to utilize or to support the percentage of

U.S. Flag vessel capacity committed by the Contractor to any Stage of VISA in proper performance of the terms and conditions of USTRANSCOM contingency contracts. While this contract does not require the Contractor to maintain particular quantities or types of such related resources used in performance of its peacetime, commercial business, it does require the Contractor to maintain sufficient ownership, operation or control of any such related resources that the Contractor will need to properly perform its commitments in paragraph 2.2, Capacity

Commitment in accord with this contingency contract.

2.4 Business Rules to Transition from Peacetime through the Three Stages of VISA

(Nothing in the Business Rules shall be construed as a contractual obligation unless specified in the contract.)

2.4.1 Peacetime Contracts

2.4.1.1 Peacetime contracts will remain in effect during the stated contract period. These contracts will be used to move DOD cargo into a contingency theater during the volunteer stage and other delivery points outside the contingency theater during activation as defined in peacetime contracts.

2.4.1.2 During an activation of VISA, this USTRANSCOM VISA Contingency Contract shall be used to move only contingency cargo. Delivery orders/task orders shall contain a designation indicating that cargo is moving under VISA.

2.4.1.3 Before activation, DOD may use the rates, terms and conditions of peacetime contracts to support contingency operations.

2.4.2 Volunteer Stage Capacity

2.4.2.1 The DOD will use peacetime contracts to move contingency cargoes when they meet the capacity and delivery requirements. DOD may issue a request for volunteers to provide additional service when peacetime commitments cannot satisfy contingency capacity and delivery requirements.

2.4.2.2 Requests for volunteers may be issued to all potential offerors including non-participants and foreign flag operators. DOD selection of volunteers shall be based on operational requirements and the Secretary of Defense approved priorities for the award of sealift contracts, which are incorporated in VISA.

2.4.2.3 DOD may use the volunteer stage to obtain additional services to meet contingency operation requirements.

The volunteer stage shall not be used by contracting personnel to renegotiate existing peacetime or USTRANSCOM

VISA contingency contract rates. VISA participants with existing peacetime contracts that can satisfy DOD’s requirements shall receive priority over contractors without such contracts. New offers of service will be treated as late rates that receive last priority for use provided participant services meet DOD’s contingency requirements.

2.4.2.4 Where appropriate, DOD shall approve requests by VISA Participants to convert voluntary commitments to the USTRANSCOM VISA contingency contract rates, terms and conditions.

2.4.3 VISA Activation

2.4.3.1 VISA Stages may be activated by USTRANSCOM Commander, with the approval of SecDef, as required to support contingency operations.

2.4.3.2 DOD may activate all or part of VISA Program Participants, and all or part of each VISA Participant’s commitment to each stage. DOD will exercise best efforts to proportionately activate participants’ capacity to minimize commercial disruption.

2.4.3.3 Upon activation of any Stage, the voluntary commitments of Program Participants preceding such activation shall convert to the relevant Stage of commitment subject to the USTRANSCOM VISA contingency contract terms and conditions and pricing.

2.4.3.4 Compensation for commitments under VISA Stages I, II and III is cumulative. VISA Participants shall be compensated at the applicable USTRANSCOM VISA contingency contract rate during the duration of the activation. For example, using the VISA commitment requirement of 15%, 40% and 50%, the Stage I rate would apply to the first 15% of activated capacity (1 to 15), the Stage II rate would apply to the next 25% of capacity (16-

40), and the Stage III rate would apply to the remaining 10% of capacity (41 to 50), and beyond (51 to 100) for MSP participants.

2.4.3.5 The Government agrees to include in the Business Rules specific booking and billing procedures for activated capacity prior to an activation. The Government will examine the contractor’s Last In, First Out proposal.

2.4.3.6 DOD shall activate Stage III only after activating Stages I and II. However, the DOD is not restrained by time (hours, days, weeks, months, etc.) to advance from Stage I to Stage III of activation pending contingency requirements/charter shortfalls.

2.4.3.7 The decision to deactivate VISA stages and release Participants from activation commitments will be made by USTRANSCOM Commander based on the operational requirement. Deactivation considerations may also include costs to DOD and minimizing the contractor’s commercial disruption by returning commercial assets for use in peacetime business.

2.4.3.8 DOD may request VISA Participants voluntarily increase their commitments during Stage Activation and before proceeding to the next Stage of Activation. Also, DOD may request volunteer capacity from non-participants before proceeding to the next Stage of Activation.

2.4.4 Commitment Levels

The USTRANSCOM Commander may re-establish the minimum and maximum commitment levels for each VISA

Stage annually. Such minimums and the contractor’s commitment thereto shall be reflected in the contractor’s

VISA Capacity Commitment (Attachment 1) that is incorporated by reference herein.

2.4.5 Activation Procedures

When the Vessel Activation Notice is issued, if the Vessel is at sea, Vessel shall proceed to its next scheduled port-of-call, unless otherwise ordered by the Government. Upon arrival at the next scheduled, or otherwise ordered, port-of-call, Vessel shall offload all commercial cargo onboard. If the Vessel Activation Notice is issued when the

Vessel is in port, all commercial cargo onboard shall be offloaded, and the Vessel shall proceed as directed. To the extent that cargo is diverted from its intended transportation by activation of the Vessel, all reasonable costs and damages incurred by Owner as a result of such diversion shall be for the Government’s account.

SECTION 3 DRY CARGO (TIME)

3.1 Charter Hire

3.1.1 Hire Rates. Charter hire for services under this Charter Party shall be payable at the applicable rates stipulated in the VISA Carrier Vessel Information Sheet, Boxes 40-42, and shall be earned at the expiration of each fifteen (15) days of the charter period. Except as otherwise provided herein, said hire rates shall be considered payment in full for all services of the Vessel and Associated Equipment under this Charter including all overtime

(including but not limited to crew overtime/penalty time required for the opening and closing of hatches), penalty time, bonuses, payments, and emoluments payable to Master, Officers, and crew for services under this Charter, irrespective of the geographic scope of said service and including the carriage of ammunition and hazardous cargoes. Said hire rates are exclusive of the costs of fuel and port charges, which are addressed at paragraph 4.15

(Fuel) and paragraph 4.13 (Port Charges and Expenses) below, respectively, and other stevedoring costs such as loading, securing and discharging cargo, which are addressed in paragraph 3.6 (Loading and Discharging) below.

3.1.2 Loss of Vessel. Should the Vessel be either lost or missing and presumed lost, Charterer may, at its sole discretion, terminate this Charter, in which case hire shall cease to be payable at the time of the loss or, if said time is unknown, at the time of the Vessel’s last received communication. Similarly, should the Vessel become a constructive total loss, Charterer may, at its sole discretion, terminate this Charter, in which case hire shall cease to be payable at the time of the casualty resulting in the constructive loss. The Vessel shall be considered missing and presumed lost when, after a reasonable lapse of time, it fails to reach its next scheduled port and reasonable efforts to contact it fail.

3.2 Mission

The Vessel may be employed in worldwide trade for the following: transportation and/or prepositioning of cargo

(including but not limited to hazardous cargoes, explosives, ammunition, vehicular, containerized, and general cargoes) and military readiness, in accordance with the terms of this Charter.

3.3 Reporting Requirements

3.3.1 Charterer’s Instructions. The Charterer shall furnish the Master with all requisite instructions and sailing directions in writing, including the COMSC “Standard Operating Manual” (SOM) COMSCINST 3121.9 Series.

The Master shall exercise due diligence to observe all such orders and instructions of the Charterer with respect to the Charterer's employment of the Vessel's services. Vessel must meet all USTRANSCOM requirements for reporting. Reports required of the Vessel include, without limitation, the following:

(i) Movement reports (see SOM, section 2-4-1);

(ii) Pre-arrival reports (see SOM, section 2-7-3);

(iii) Casualty reports (see SOM, section 4-3);

(iv) Dry-cargo reports (see SOM, section 3-7);

(v) Defense Readiness Reporting System-Navy (see SOM, Section 4-1); and

(vi) Position Reports (see SOM, section 2-4-2). Vessel shall provide position/status reports in-port and at-sea every six (6) hours daily at 0000, 0600, 1200, and 1800 hours local Washington, DC time (GMT-5

EST/GMT-4 EDT). Position reports shall be issued by electronic mail to the addresses designated in the cargo orders as issued by the appropriate Program Office or Area Command.

USTRANSCOM may require additions or deletions to the addressees on the Position Reports and may also require additional reporting requirements.

These reports must include the Vessel’s Speed of Advance and the ETA to the next port.

3.4 Crew

3.4.1 Conduct of Master, Officers, and Crew. The Master, Officers, and crew shall be appointed or hired by the

Owner and shall be deemed to be the servants and agents of the Owner at all times except as otherwise specified in this Charter. The Master of the Vessel shall be under the Charterer’s direction with regard to the employment of the

Vessel, but shall not be under the Charterer's orders with regard to the navigation, care, and custody of the Vessel.

If the Charterer shall have reason to be dissatisfied with the conduct of the Master, Officers, or crew, the Owner shall, upon receiving the particulars of the complaint, investigate the matter and resolve the issue to the satisfaction of the charterer. Any and all additional costs including but not limited to attorney’s fees incurred as a result of removal of such personnel shall be for the Owner’s account.

3.4.2 Qualifications. The Master, Officers, and crew shall be U.S. citizens to the extent required by U.S. law (if

Vessel is U.S.-flag), and shall be conversant with English, and in possession of valid and current certificates, licenses, and documents.

3.4.3 Identification Cards. In the event Government identification cards are issued to Master, Officers and crew, the Contractor shall be responsible for tracking and, upon redelivery of the Vessel, returning all cards.

3.4.4 OCONUS Contractor Conduct. Upon award of this Contract, the Contractor shall immediately notify all contractor personnel, who are or who will be employed by, or who are or who will be accompanying, United States

Naval Forces outside the continental United States (OCONUS), and who are not a host country national ordinarily resident in the host country, that such personnel, and any dependents residing with such personnel, who engage in conduct OCONUS that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, may potentially be subject to the criminal jurisdiction of the United States as required by the Military Extraterritorial

Jurisdiction Act of 2000, Pub. L. 106-523, 114 Stat. 2488, codified at 18 U.S.C. 3261 – 3267, as implemented by

DoD Instruction 5525.11, “Criminal Jurisdiction over Civilians Employed by or accompanying the Armed Forces outside the United States.” Reference is made to Secretary of Defense memo dated 10 March 2008; "UCMJ

Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or

Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations.”

3.5 Cargo Receipt

3.5.1 Manifest/Bill of Lading. The Charterer or consignor of the cargo shall prepare a manifest and/or bill of lading, which shall list the cargo loaded on the Vessel. The Master shall sign said cargo receipt(s) in acknowledgment of the receipt of cargo said to have been loaded by the Charterer or the consignor of the cargo, without responsibility as to quantities, mixture, mark, number of packages, weights, etc., or the apparent condition of the cargo, it being understood that it is the Charterer's or the consignor's responsibility to tally the cargo and to check the condition thereof upon loading and discharging. The Contractor shall provide a copy of the signed manifest(s) upon request by the Government.

3.5.2 Charter Paramount. Any receipt signed by or on behalf of the Master or Agent shall be without prejudice to the terms, conditions, and exceptions of this Charter and subject to all of them. The terms of this Charter Party shall apply to any shipment made by the Government whether or not bills of lading are issued.

3.6 Loading and Discharging

3.6.1 General. The whole reach and burthen of the Vessel shall be at the disposal of the Charterer, reserving only proper and sufficient space for Vessel's Master, Officers, and crew, tackle, apparel, furniture, provisions, stores, and fuel. The Charterer shall have the use of all cargo handling equipment onboard and the Owner shall provide sufficient power to operate all the Vessel's cargo handling equipment simultaneously. The Vessel shall work night and day, if required by the Charterer. The Charterer shall have the use of any special gear or fittings actually aboard the Vessel, although said gear or fittings are not required by this Charter. Any material required for securing cargo is to be furnished by the Charterer and for its account, but the Charterer may have the free use of any lashings aboard the Vessel. The Charterer will be responsible for the replacement of lashing gear damaged by the Charterer or its servants. Such replacement shall be as original or equivalent.

3.6.2 Cargo Quantity Limitation. In no case shall the cargo exceed what the Vessel can reasonably stow and carry, in the judgment of the Master, over and above the space and burthen necessary for Vessel's Officers and crew, her cabin, tackle, apparel, furniture, provisions, fresh water, stores, necessary ballast and fuel. The amount of the deck cargo shall be at the discretion of the Master and the loading, carriage and discharge thereof shall be at the risk of the Charterer.

3.6.3 Detention or Standby. If by reason of the Owner's failure to use diligence to keep the Vessel in a thoroughly efficient state of hull, machinery, equipment, personnel, and other particulars relating to the seaworthiness of the Vessel, the Charterer incurs cost of stevedoring detention or standby time in connection with the loading or discharging of cargo, such costs shall be for the account of the Owner.

3.6.4 Lighterage. Lighterage, if any, will be at the risk and expense of the Charterer, except as otherwise provided herein.

3.6.5 Stevedore Damage. The Charterer is to be responsible for any physical damage done to the Vessel by

Government stevedores on loading and/or discharging only if such damage is occasioned by negligence, breach of warranty or breach of contract and the Master advises the Charterer, or the Charterer's representatives, in writing, within twenty-four hours after occurrence of the specific damage and the Master further notifies the parties who have caused this damage, in writing, and endeavors to obtain their admission of liability. As soon as practicable after such damage is sustained, the Owner is to have an independent survey made to define and estimate the damage;

a written copy of the survey report is to be promptly forwarded to the Charterer. All claims are to be settled directly between the Owner and the stevedores, with the Charterer being ultimately responsible.

3.6.6 Charterer's Responsibility. The Charterer shall load, stow, trim, secure, and discharge the cargo, all in compliance with applicable laws and regulations and the permit/waiver requirements there under; notwithstanding, however, that the Master shall supervise and be responsible for such actions as they concern the seaworthiness and stability of the Vessel. Upon request of the Charterer, the Owner shall arrange for stevedoring services at ports visited under this Charter, with reimbursement for all necessary and reasonable agency fees, all reasonable costs of loading and/or discharging, and port charges in accordance with paragraph 4.13 (Port Charges and Expenses) below, 52.212-4 (i)(Payment) above, and paragraph 4.22 (Reimbursable Supplies and Services) below.

3.6.7 Expenses. The Charterer shall pay all expenses directly connected with the loading and discharging of the cargo including stevedoring, wharfage, clerking and tallying, winchmen, heavy lifts, dumping, stowing, securing, lashing, sheathing, dunnaging, and trimming, and removal of strongbacks with shore equipment where the use of shore equipment is not necessitated by a structural or mechanical defect in the Vessel unless that defect is caused by the fault or negligence of the Charterer. Unless otherwise provided herein, the Charterer shall provide necessary dunnage and shifting boards, also any extra fittings or materials requisite for a special trade or unusual cargoes, but the Owner shall allow the Charterer the use of any dunnage, shifting boards and other fittings or materials already onboard the Vessel. The Charterer shall have the privilege of using shifting boards for dunnage, but if the Vessel's shifting boards are used as dunnage, the Charterer shall make good any damage to or shortage of such shifting boards on redelivery of the Vessel. If the Charterer elects or is required by the Owner to remove dunnage and fittings placed onboard by the Charterer, the cost of removal and discharge shall be borne by the Charterer. The

Charterer shall have free use of any lashing gear, dunnaging, shifting boards, and fittings aboard the Vessel.

3.7 Oil Pollution Spill

3.7.1 Pollution Damage. Where an escape or discharge of oil occurs from the Vessel and threatens to cause pollution damage to coastlines, Charterer may, at its option, and upon notice to Owner or Master, undertake such measures as are reasonably necessary to prevent or mitigate such damage, unless Owner promptly undertakes same.

Charterer shall keep Owner advised of the nature of the measures intended to be taken. Any of the aforementioned measures actually taken by Charterer shall be at Owner’s expense except to the extent that any such escape or discharge or threat was caused or contributed to by Charterer. If Owner considers such measures should be discontinued, Owner shall so notify the Charterer and thereafter neither the Charterer nor its nominee shall have any right to continue said measures under the provisions of this paragraph and all further liability to Charterer under this paragraph shall thereupon cease, except that Charterer may continue such measures at Owner’s expense if Owner does not undertake reasonable measures to prevent or mitigate damages.

3.7.2 Reservation. The above provisions are not in derogation of such other rights as Charterer or Owner may have under the provisions of this Charter including but not limited to 4.6 (Insurance) hereof, or may otherwise have or acquire by law or any international convention.

3.8 Safety in Loading and Discharging Cargo

Attention of the Owner is directed to the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., as amended, and to the standards promulgated there under by the Secretary of Labor.

3.9 Deck Cargo

Should deck cargo be carried, it shall be carried at the Charterer's risk, excepting cargo shipped in containers.

3.10 Cleaning

3.10.1 Delivery. Upon delivery in accordance with paragraph 4.1 (Delivery) below, all holds, containers, and spaces designated for cargo carriage shall be cleaned and ready to receive lawful cargo.

3.10.2 Redelivery. Upon redelivery of the Vessel in accordance with paragraph 4.2 (Redelivery) below, the holds and spaces of the Vessel (and those deep tanks the last use of which was made by the Charterer) shall be swept clean by the Charterer with refuse removed, unless during the period of this Charter the Vessel has carried in these spaces cargo with respect to which custom requires more complete cleaning, in which case the Charterer shall give such spaces the required cleaning.

SECTION 4 TIME CHARTER

4.1 Delivery

4.1.1 Laydays. The Vessel and all Associated Equipment shall be delivered to the Charterer at a port or place in accordance with the task order instructions upon activation, the Owner giving written notice of readiness during office hours to the appropriate Government representative at the port or place of delivery on a working day

(Saturdays, Sundays, or other recognized weekly days of rest, U.S. Government holidays, and holidays observed at the delivery port, whether national or local, shall not be considered working days). Government inspection of the

Vessel shall be completed within a reasonable amount of time thereafter, not exceeding twenty-four (24) hours after proper tender of the notice of readiness (Saturdays, Sundays, or other recognized weekly days of rest, U.S.

Government holidays, and holidays observed at the delivery port, whether national or local, excepted in the computation of said twenty-four hour period). Hire shall commence upon acceptance of the Vessel by the Charterer but not before the commencing date stated in the task order upon activation, unless approved in writing in advance by the Contracting Officer. The Charterer shall have the liberty to cancel this Charter at no cost to the Government should the Vessel or Associated Equipment not be ready in accordance with the provisions hereof by the canceling date stated in the task order upon activation, said cancellation to be declared not later than twenty-four (24) hours after 1600 hours local time at place of delivery on the canceling date stated in the task order upon activation, should the Vessel not be ready by that time. This paragraph shall not limit any right of the Government under this Charter

Party or any right to take any other action authorized by law.

4.1.2 Condition. The Vessel and all Associated Equipment shall be, insofar as due diligence can make them so, seaworthy, properly and efficiently manned and trained, equipped, supplied, and in every way suitable and adequately fitted for and in all respects ready for the service contemplated under this Charter Party. Any Associated

Equipment shall upon delivery be as described in this Charter Party and all cargo-handling equipment shall be rigged, secured, and operable. The Owner shall exercise due diligence to maintain the Vessel and Associated

Equipment in such state during the period of this Charter Party.

4.2 Redelivery

Unless lost, the Vessel shall be redelivered at a port or place in accordance with the awarded task order.

4.3 Ports/Places

4.3.1 Safety. The Charterer shall exercise due diligence to order the Vessel to safe berths or places (or alongside vessels or lighters reachable on her arrival and designated/procured by the Charterer) that the Vessel can approach, lie at, and depart from always accessible, always afloat. The Charterer shall not, however, be deemed to warrant the safety of any berth or place and shall not be liable or accountable for any loss, damage, injury, or delay resulting from any unsafe condition at any berth or place unless caused by the Charterer's failure to exercise due diligence as aforesaid. Any lightering will be at the expense of the Charterer; however, in the event the Charterer directs the

Owner to arrange for lighterage services, the Owner shall make all necessary arrangements therefore.

4.3.2 Ice. The Vessel shall not be ordered or bound to enter any port or place inaccessible due to ice or at which lights, lightships, markers, or buoys on Vessel's arrival are (or are likely to be) withdrawn by reason of ice. The

Vessel shall not be obliged to force ice. If a port or place to which the Vessel is ordered is inaccessible due to ice, the Master shall immediately notify the Charterer requesting revised orders and shall remain outside the ice-bound area. If there is danger of the Vessel being frozen in at any port or place, the Vessel shall, at Master's discretion, proceed to the nearest safe and ice-free position, at the same time requesting the Charterer's revised orders. Any delay or detention resulting from ice to be for the Charterer's account.

4.4 Charter Period

The Charter period, which shall be no less than six months in duration or as otherwise mutually agreed, shall commence upon the Vessel’s discharge of commercial cargo, if the Vessel is not diverted. If the Vessel is diverted prior to entry into the next scheduled port-of-call, the Charter period shall commence upon diversion and the

Government’s liability for charter hire herein shall be reduced by the cost savings, if any, realized by Owner in not completing its scheduled voyage. The Charter period shall continue until terminated in accordance with the provisions herein, but in no event shall it exceed five years. In the event that the Charter period exceeds the period of this contract, the period of this contract shall be extended until the date of redelivery of the Vessel. Any option periods shall be in direct continuation; shall be without guaranty at the Charterer's sole option; and shall be declared as specified in FAR 52.217-8. Optional periods may be declared at any time prior to redelivery of the Vessel.

4.5 Dry dock

4.5.1 General. The Owner, at its expense, shall dry dock, clean and maintain the Vessel's bottom and propeller, and make all overhaul and other necessary repairs properly to maintain the Vessel in class, maintain the Vessel in compliance with FAR 52.212-4(o) (Warranty), and otherwise to keep the Vessel tight, staunch, and strong, and in thoroughly efficient order and condition. For such purpose of dry dock, the Charterer shall allow Vessel to proceed to an appropriate port upon sixty days prior notice to the Contracting Officer. All towage, pilotage, fuel, gas-freeing if required, water, and other expenses incurred while proceeding to and from dry dock shall also be for the Owner's account.

4.5.2 Suspension of Hire. In case of dry docking at a port where Vessel is to load, discharge, or bunker under the

Charterer's orders, hire shall be suspended from the time the Vessel receives free pratique on arrival, if in ballast, or upon completion of discharge of cargo, if loaded, until Vessel is again ready for service. In case of dry docking at a port other than where Vessel loads, discharges or bunkers, payment of hire shall cease from the time of deviation until the Vessel is again ready and in a position not less favorable to the Charterer than that at which such deviation occurred.

4.6 Insurance

4.6.1 Requirement. During the period commencing with the first loading and terminating with the final discharge of the Vessel, the Owner shall have in place marine insurance coverage on the Vessel including Hull and

Machinery, Protection and Indemnity (P&I), War Risk Hull and Machinery including P&I and, if U.S.-flagged, Second Seamen's War Risk Policy. Owner shall, when requested, furnish a Certificate of Insurance evidencing required coverage. Except as otherwise provided in this Charter Party, the Owner shall be responsible for the cost of such insurance, including deductibles, premia, additional premia, calls, commissions, advancements, assessments, and overspill claims where applicable.

4.6.2 Trading Limits. Trading limits of the vessel shall be worldwide. If Vessel is sent beyond the limits of

American Institute Trade Warranties or Institute Warranties (as applicable to Owner's coverage) under this Charter

Party, Charterer agrees to reimburse Owner for the actual extra cost of additional premia and/or increased deductible levels, to the extent incurred, properly assessed by the Vessel's marine insurance underwriters and payable by the

Owner, which extra cost is occasioned by the Vessel's trading beyond such limits.

4.6.3 Limitation of Charterer's Liability. Except as otherwise specifically provided herein, the Charterer shall not be liable for any loss, damage, expense, cost, or liability whatsoever and howsoever incurred by the Owner or

Vessel or which are imposed upon Owner by operation of law. Any amount due Owner under paragraph 4.6

(Insurance) shall be subject to setoff by Charterer to the extent of any recovery under any insurance carried by the

Owner.

4.6.4 Notification to Charterer. Owner shall, to the maximum extent practicable, keep the Charterer, through the

Contracting Officer, currently informed in writing as to the potential vitiation, suspension, lapse, or termination of any of Vessel's insurance policies as a consequence of this Charter Party.

4.6.5 Charterer Named Assured. The United States of America shall be named as an additional assured with waiver of subrogation on all applicable insurance policies. All cost of such insurance, including but not limited to deductibles, premia, additional premia, calls, commissions, advancements, assessments, and overspill claims where applicable, shall be for Owner’s account. Owner agrees to make claims against insurers for losses or damages covered by insurance regardless of Charterer fault, action or omission, and Owner will pay all costs and deductibles associated with such claims.

4.7 War

4.7.1 Requirement. If Vessel is ordered under this Charter Party to any port, place, zone, or route involved in a state of war, warlike operations or hostilities, civil strife or piracy (whether there be a declaration of war or not) where it might reasonably be expected to be subject to capture, seizure, arrest, or hostile act by a belligerent power

(whether de facto or de jure), it shall be unreasonable for the Owner not to prosecute said voyage instructions if insurance against said risks is then available commercially or under a Government program, or if the Government offers the Owner an indemnity under Public Law 85-804 against losses that would be covered by such insurance. In the event of the existence of said risks, the Charterer shall, to the extent provided in this paragraph (h), assume provable additional costs of wages (including all additional bonuses and payments required) and insurance and all taxes associated therewith properly incurred by the Owner as a consequence of service under this Charter Party. No other additional costs shall be reimbursable except as is expressly provided for in this Charter.

4.7.2 Additional Wage Costs. Charterer shall reimburse Owner for provable additional costs (including taxes associated therewith) incurred pursuant to this Charter Party as a consequence of the risks identified in 4.7.1 above for (i) wages of Master, Officers, or crew and (ii) required payments or bonuses to Master, Officers, or crew.

However, any of said wages or payments shall not exceed in amount that which would be payable, under applicable laws and regulations, to U.S. Civil Service mariners in the employ of MSC in the same port, place, zone, or route.

4.7.3 Additional Insurance Costs. Charterer shall reimburse Owner for provable additional costs of premia and taxes associated therewith (over and above such costs in effect on the Charter Party date) reasonably incurred pursuant to this Charter Party as a consequence of the risks identified in 4.7.1 above in the Vessel's War Risk Hull &

Machinery policy, in the Vessel's War Risk Protection & Indemnity policy, and in any war risk policy on the lives of or for injuries to Officers and crew to the extent provided in section 4.7.5. Provided, however, that no proportion of additional premia allocable to insuring an amount in excess of the coverage in place as of the Charter Party date shall be reimbursable by Charterer in respect of any of the foregoing war risk policies. Provided further that Owner shall apply for and remit to Charterer as savings any rebates by reason of reductions in or rebates of premiums charged for entry into War, Piracy, Terrorism and Related Perils Listed Areas. Provided further that the United

States of America shall be named as an additional assured with waiver of subrogation noted under all of the foregoing war risk policies. Alternatively, with respect to any area(s) excluded by war risk trading warranties under

Owner’s commercial war risk insurance coverage, in Charterer's sole option and at no cost to the Government, Charterer may delete this subparagraph with twenty-four hours notice in which case Time Charter War Risk

Coverage shall automatically be effective in such area; or (ii) the Government shall offer an indemnity under Public

Law 85-804.

4.7.4 Insurance Nonavailability. If no commercial or Governmental insurance is available for service under this

Charter Party covering the risks identified in 4.7.1, Vessel shall not be required to enter or remain at any port, place, zone, or route subject to said risks; Charterer in such case shall have the right to order the Vessel to other port(s) or areas consistent with the task order upon activation.

4.7.5 Owner must immediately notify Charterer of any changes in the Vessel’s commercial war risk insurance, including but not limited to, changes to war, piracy, terrorism and related perils listed areas and/or increases in commercial war risk insurance premia. After giving notice, Owners must secure Charterer’s permission prior to entry into any commercial war risk Listed Areas before incurring liability for additional premia. Prior notice to

Charterer and Charterer’s permission are conditions precedent to reimbursement of additional premium costs and associated taxes.

4.8 Readiness

Readiness is a required service of the Vessel. Readiness shall be defined as the ability of a Vessel and Associated

Equipment to perform the function for which designed, built, or chartered, including the ability to deploy without delays, whether or not so ordered to perform.