Agency Terms and Conditions for all vessels.

 

1. These Terms and Conditions ("T&C") govern the appointment of the Agent by the vessel Owner, Operators, Charterers, Master, Agents or Managers, or any entity or person in charge of the vessel, who hereby represent to the Agent that they have sufficient authority to bind the vessel.
    

2. The Agent is WILFORD & MCKAY, S.A., and/or its affiliated or subsidiary corporation Canal Transit Services, S.A. (herewith collectively referred to as "WILFORD & MCKAY"). It is understood and agreed that "WILFORD & MCKAY" acts always "as Agents only" for, and on behalf of, the vessel, her Owners, Operators, Charterers, Agents or Managers, and will render due and diligent port and/or Canal transit agency services, to avoid loss and/or damages to the best of the Agent’s ability.
    

3. Unless this agreement is terminated earlier, this Agreement shall commence on the appointment date as confirmed by email or other communication, and terminates automatically when the vessel leaves the port, or completes transit, as the case may be.
    

4. The Principal remains liable for any fines, penalties, charges, or any other costs related to the vessel’s port call to Panama, and/or the services provided under this Agreement, even after the termination of this Agreement. The Principal understands and agrees that after the termination of the Agreement, the Agent may receive notice of fines, penalties, sanctions, charges or other costs, by a government entity or other suppliers. The Principal agrees to reimburse the Agent immediately upon receiving notice from the Agent of these additional fines, expenses, charges, and/or sanctions.
    

5. The vessel, her Owners, Operators, Charterers, Agents and Managers shall, at all times, indemnify, hold harmless and defend "WILFORD & MCKAY" against any and all claims and demands (including costs and reasonable attorney’s fees in defending any such claim or demand whether or not such claim or demand be found to be valid) of whatever nature or kind, including, but not limited to, claims or demands or lawsuits relating to disputes, injury, or death alleged to arise out of operations or conditions connected with the vessel, the berths or places at which the vessel calls, her crew, owners, charterers or cargo, by whomsoever asserted, which "WILFORD & MCKAY" may incur or suffer by reason of our performance as port or Canal transit agents.
   
   The Principal shall pay all costs of collection, including reasonable attorney’s fees, and shall pay interest on all unpaid amounts outstanding sixty (60) days after accounts are rendered, at eighteen percent (18%), compounded annually.
   
   In the event of an oil spill, death, disease, accident or any situation requiring notice to government authorities under applicable law, the Agent is authorized by the Principal and the vessel to make such required notifications.
    

6. Inherent in the Principal-Agent relationship is the understanding that the Agent will act for and on behalf of an ascertained Principal and vessel with either the express or implied authority to do so and thus cannot, and shall not, be personally liable to pay any debts due to suppliers from the Principal.
    

7. Limitation of Liability. The Principal agrees that the maximum liability of "WILFORD & MCKAY" to the Principal (including Owners, Operators, Charterers, Agents and Managers) for any breach of contract, negligence, tort, or any act of negligence, error, or omission by "WILFORD & MCKAY" shall be limited to two and one half (2.5) times the amount of the specific agency fee agreed for that Canal transit or port call as determined by the Agent and the Principal. The Agent shall not be liable for consequential damages or loss of earnings suffered by the Principal arising out of the Agency Agreement.
    

8. A job order number will be assigned and, in the absence of a specific Principal-Agent agreement, a basic agency fee, plus ancillaries, assessed for each vessel Canal transit or port call, or out port location, at any one berth, place or anchorage, shall be assessed.
    

9. Funds requested to cover the vessel’s estimated port expenses, as determined by "WILFORD & MCKAY", will be transmitted by a pro-forma cost estimate of the anticipated Canal transit and/or port call and vessel related fees and expenses and must be electronically remitted, and received by our bank, prior the vessel’s arrival and the rendering of any services. "WILFORD & MCKAY" is not under any obligation to advance funds, but may at its sole discretion accept bank confirmation of remittance, as concerns Canal transit and port disbursement funds. However, "WILFORD & MCKAY" will not advance cash to Master unless funds are in our bank. Cash to Master requires full style of provider and a denomination breakdown. Additional fees apply and are based on type of service provided and total amount to be delivered to the Master.
    

10. Unless a specific Principal-Agent agreement is in place in connection with a customized port call funding procedure, failure of the Principal to advance funding to the Agent will be considered a material breach of contract by the Principal. The Agent may provide notice to terminate the Agreement and execute any and all of the following remedial measures:
    
    A) "WILFORD & MCKAY" shall have a valid and enforceable Maritime Lien against the vessel for all services and expenses incurred on behalf of the vessel.
    B) "WILFORD & MCKAY" shall be authorized to deduct from monies held by "WILFORD & MCKAY" for the Principal’s account, any amount due from the Principal or the vessel.      
    C) "WILFORD & MCKAY" may arrange to detain the vessel in port until such funds are received by the Agent.
     

11. The Agent’s pro-forma cost estimate is intended to be an estimate of the actual Disbursement Account ("DA") and is for guidance purposes only. The information provided by the Agent including the pro-forma DA and final DA is considered privileged between the Agent and the contracted Principal and is the intellectual property of the Agent. This information cannot be used for any purpose, other than settlement of a particular voyage disbursement account, without the Agent’s permission. 
     

12. The figures and information contained in the pro-forma Disbursement Account are estimates based on the Agent’s experience. The Principal understands and agrees that the final Disbursement Account may, and often does, vary from the pro-forma Disbursement Account. The Principal is liable and required to pay on demand the full amount described and shown in the actual Disbursement Account. This duty exists regardless of any difference between the figures in the pro-forma cost estimate and the final Disbursement Account. Any outstanding balance due "WILFORD & MCKAY" on the final Disbursement Account is payable immediately upon receipt.
     

13. Vessels consigned to "WILFORD & MCKAY" for Canal transit and/or port agency attendance by a voyage charterer or time charterer will be provided only with those services required by the charterer. Owners’ husbandry items or services are not included in charterer’s fees and will be invoiced separately along with an appropriate fee. 
     

14. Additional compensation, consistent with services rendered, will be charged for any extraordinary services such as General Average, stranding, collision, major repairs, etc., including all out of pocket expenses incurred for the account of the vessel.  In situations where the Principal has not fully funded a Canal transit or port call, and "WILFORD & MCKAY" advances the funds on behalf of that vessel, a twelve percent (12%) fee may be added to the unfunded amount, provided notice is given to the Principal in order to provide an opportunity for the Principal to advance the necessary balance to "WILFORD & MCKAY" for the Canal transit or port call. The Agent is not obligated under this contract to advance funds and the decision to do so for a particular case, does not affect the Principal’s obligations as stated in this Agreement.
       

15. Principals, including Charterers, Operators, Owners, Agents or Managers, understand and agree that the use of our Agency licenses, bonds and bank guarantees with the Panama Canal Authority (PCA), the Panama Maritime Authority (PMA), Immigration and Customs Authorities and other official government entities is provided as required by law and such use is tendered in good faith in order to permit vessels to transit the Panama Canal and/or engage in cargo and various other operations.
    
    The coverage of the bank guarantee extends to the vessel and any charge from the authorities directed to the vessel will get charged to the agency of record against the posted bank guarantee. The charge may be as a consequence of a deficiency or negligence on the part of the vessel and/or her Owner, and may not be the responsibility of a Charterer, Operator, Agent or Manager. The Principal (even if it is a Charterer, Operator, Agent or Manager) agrees to reimburse the Agent immediately upon receiving notice by the Agent of any amount invoiced and/or deducted from the Agent’s bank guarantee by any authority. This obligation extends to the Principal even after the termination of this Agreement.
    
    Any service charges and/or penalties from the Panama Canal Authority and/or local authorities directed at the vessel, and consequently collected through the Agent’s bank guarantee, are for the account of the Principal nominating our services, may it be the Charterer, Owner, Operator, Manager or an Agent of the vessel, as will the cost of any legal defense. 
    
    The Principal understands and agrees that the posting of a bank guarantee for account of the vessel implies that the nominating Principal, on whose behalf the guarantee is placed (Charterer, Operator, Owner, Agent or Manager), covers all charges made to the vessel by the Panama Canal Authority, port and government authorities, and authorizes "WILFORD & MCKAY" to pay any service charges and/or penalties made to the vessel by the authorities, and charged against the posted bank guarantee. The Principal agrees to pay and reimburse "WILFORD & MCKAY" for any such charges immediately upon presentation/submission of the supporting documents issued by the authorities. The charges include, but are not limited to, Panama Canal tolls and fees, Panama Canal disruption fees and charges (as per Advisory to Shipping No. A-38-2022 dated December 16, 2022:  https://pancanal.com/wp-content/uploads/2022/03/ADV38-2022-Additional-Information-Regarding-the-Complementary-Tariffs-Effective-January-1-2023.pdf ), change in booking date charge, substitution charge, swapping charge, "high demand" surcharge, pilotage delay charges, tugboat charges, inspection fees, penalties and fines from government entities, etc. Any delay in funding these expenses will generate interest charges at eighteen percent (18%), compounded annually.
     

16. Unless a valid and enforceable specific Principal-Agent agreement is in place between "WILFORD & MCKAY" and the Principal, standing provisions for agency acceptance and accounting matters are governed by the vessel agency Terms and Conditions above. Unless otherwise advised within forty-eight (48) hours of receipt, these appointment acceptance provisions are deemed to be understood and accepted.
     

17. If any provision in these Terms and Conditions is held invalid by a court of competent jurisdiction, the remaining provisions shall continue in force.
     

18. Any dispute arising from this Agency Agreement shall be governed by Republic of Panama Law. The parties agree that the competent court to decide any dispute is the Maritime Court of Panama.