UNITED STATES BANKRUPTCY COURT DISTRICT OF …€¦ · VENICE or the COSCO HAIFA. 21. OMS was aware...

UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT

In re O.W. Bunker Holding North America Inc., et al., Debtors.

: : : : : : :

Chapter 11 Case No. 14-51720 (JAM) Jointly Administered

AGREED STIPULATED FACTS CONCERNING

O’ROURKE MARINE SERVICES L.P., L.L.P.’S 503(B)(9) CLAIMS

The above-captioned debtors and debtors in possession (the “Debtors”) and O’Rourke

Marine Services L.P., L.L.P. (“OMS”) jointly stipulate to the following facts concerning OMS’s

asserted § 503(b)(9) claims and the Debtors’ objections thereto:

I. Claims Related to O.W. Bunker North America Inc. (“OWB NA”)

1. OWB NA submitted a purchase order to OMS requesting the physical supply of

approximately 800 to 1,200 metric tons of bunkers to the vessel tanker EVA SCHULTE. A true

and correct copy of OWB NA’s Purchase Confirmation is attached hereto as Exhibit A. Such

Purchase Confirmation was created by and maintained by OWB NA in the ordinary course of its

business.

2. On October 28, 2014, OMS provided 990.13 metric tons of bunkers to the vessel

tanker EVA SCHULTE valued at $806,833.43. A true and correct copy of the Bunker Delivery

Note is attached hereto as Exhibit B. Such Bunker Delivery Note was obtained by and

maintained by OMS in the ordinary course of its business.

3. On October 28, 2014, OMS provided an invoice to OWB NA totaling

$806,936.12 for the delivery of to the EVA SCHULTE. A true and correct copy of the Invoice is

Stipulation of Facts

Case 14-51720 Doc 1098 Filed 10/27/15 Entered 10/27/15 11:46:47 Desc Main Document Page 1 of 182

attached hereto as Exhibit C. Such Invoice was issued by OMS and maintained by OWB NA in

the ordinary course of their respective businesses.

4. OMS invoiced OWB NA on or about October 30, 2014 and payment was due on

November 4, 2014.

5. Pursuant to the Court’s December 17, 2014 Stipulation and Order “Facilitating

Implementation of the Provisions of the O’Rourke and NuStar Reclamation Orders (Docket Nos.

155 and 167 Respectively) as to Reclamation of Oil on the Vessels Eva and Elisalex Schulte”

[Dkt. No. 186], OMS reclaimed 758.776 metric tons of the EVA SCHULTE Bunkers valued at

$421,288.83.

II. Claims Related to O.W. Bunker USA Inc. (“OWB USA”)

COSCO VENICE

6. On October 21, 2014, OWB USA submitted a purchase order to OMS requesting

the physical supply of approximately 150 metric tons of bunkers to the vessel COSCO VENICE.

A true and correct copy of OWB USA’s Purchase Confirmation is attached hereto as Exhibit D.

Such Purchase Confirmation was created by and maintained by OWB USA in the ordinary

course of its business.


COSCO VENICE valued at $121,161.68. A true and correct copy of the Bunker Delivery Note

is attached hereto as Exhibit E. Such Bunker Delivery Note was obtained by and maintained by

OMS in the ordinary course of its business.

8. On October 31, 2014, OMS provided an invoice to OWB USA totaling

$121,296.68 for the delivery to the COSCO VENICE. A true and correct copy of the Invoice is



attached hereto as Exhibit F. Such Invoice was issued by OMS and maintained by OWB USA

in the ordinary course of their respective businesses.

COSCO HAIFA


the physical supply of approximately 150 metric tons of bunkers to the vessel COSCO HAIFA.

A true and correct copy of OWB USA’s Purchase Confirmation is attached hereto as Exhibit G.

Such Purchase Confirmation was created by and maintained by OWB USA in the ordinary

course of its business.


COSCO HAIFA valued at $122,323.46. A true and correct copy of the Bunker Delivery Note is

attached hereto as Exhibit H. Such Bunker Delivery Note was obtained by and maintained by


11. On October 31, 2014, OMS provided an invoice to OWB USA totaling

$122,457.85 for the delivery to the COSCO HAIFA. A true and correct copy of the Invoice is

attached hereto as Exhibit I. Such Invoice was issued by OMS and maintained by OWB USA in

the ordinary course of their respective businesses.

Stipulated Facts Common to the COSCO VENICE and COSCO HAIFA

12. Each of the contracts between OMS and the Debtors for the COSCO VENICE

and the COSCO HAIFA was governed by OMS’ General Terms and Conditions of Sale (the

“OMS Terms”). A true and correct copy of the OMS Terms is attached hereto as Exhibit J.

13. Upon information and belief, the owners (“COSCO”) of the M/V COSCO

VENICE and the M/V COSCO HAIFA had contracted with COSCO Petroleum Pte. Ltd.

(“COSCO Petroleum”) to arrange for the physical supply of bunkers to the vessels.



14. Upon information and belief, COSCO Petroleum contracted with Chimbusco

Americas, Inc. (“Chimbusco”) to arrange for the physical supply of the bunkers to the vessels.

15. Chimbusco contracted with OW Far East (S) Ptd., Ltd. East (“OW Far East”) to

arrange for the physical supply of the bunkers to the vessels.

16. The contract between Chimbusco and OW Far East was governed and controlled

by the OW Bunker Group Terms and Conditions of sale for Marine Bunkers, Edition 2013 (the

“OWB Terms”). A true and correct copy of the OWB Terms is attached hereto as Exhibit K.

17. OW Far East contracted with OWB USA to arrange for the physical supply of the

bunkers to the vessels.

18. The contract between OW Far East and OWB USA was governed and controlled

by the OW Terms.

19. Clause L.4 of the OW Terms provides as follows:

(a) These Terms and Conditions are subject to variation in circumstances where the physical supply of the Bunkers is being undertaken by a third party which insists that the Buyer is also bound by its own terms and conditions. In such circumstances, these Terms and Conditions shall be varied accordingly, and the Buyer shall be deemed to have read and accepted the terms and conditions imposed by the said third party. (b) Without prejudice or limitation to the generality of the foregoing, in the event that the third party terms include:

(i) A shorter time limit for the doing of any act, or the making of any claim, then such shorter time limit shall be incorporated into these terms and conditions. (ii) Any additional exclusion of liability clause, then same shall be incorporated mutatis mutandis into these. (iii) A different law and/or forum selection for disputes to be determined, then such law selection and/or forum shall be incorporated into these terms and conditions.



(c) It is acknowledged and agreed that the buyer shall not have any rights against the Seller which are greater or more extensive than the rights of the supplier against the aforesaid Third Party.

20. COSCO has never paid any entity for the bunkers provided to the COSCO

VENICE or the COSCO HAIFA.

21. OMS was aware that the COSCO VENICE and COSCO HAIFA would use the

Bunkers for propulsion.

22. At the time it entered into the Bunker contracts discussed above, OMS knew that

the COSCO VENICE and COSCO HAIFA were not owned or operated by OWB USA.

23. On April 16, 2015, OMS filed a Verified Complaint in Admiralty against the

COSCO HAIFA and COSCO VENICE with the United States District Court for the Southern

District of New York (the “OMS Arrest Complaint”) seeking to arrest certain funds escrowed by

the COSCO HAIFA and COSCO VENICE. A true and correct copy of the OMS Arrest

Complaint, taken from the Court’s CM/ECF system, is attached hereto as Exhibit L. As

evidenced by Exhibit A to the OMS Arrest Complaint, the COSCO HAIFA and COSCO

VENICE escrowed $243,754.12 with their counsel to stand as substitute security for the vessels.

24. Except as asserted in the OMS Arrest Complaint, none of the other above

exhibits, nor any other document, specifically identifies OWB USA as “agent” for the COSCO

HAIFA or COSCO VENICE.

25. OMS delivered the Bunkers to the COSCO HAIFA or COSCO VENICE within

the time period prescribed by section 503(b)(9) of the Bankruptcy Code.

26. OWB USA did not take physical possession of the Bunkers prior to delivery to

the COSCO HAIFA or the COSCO VENICE.



SYDNEY EXPRESS


the physical supply of approximately 170 metric tons of bunkers to the vessel SYDNEY

EXPRESS. A true and correct copy of OWB USA’s Purchase Confirmation is attached hereto as

Exhibit M. Such Purchase Confirmation was created by and maintained by OWB USA in the

ordinary course of its business.


SYDNEY EXPRESS valued at $140,090.20. A true and correct copy of the Bunker Delivery

Note is attached hereto as Exhibit N. Such Bunker Delivery Note was obtained by and

maintained by OMS in the ordinary course of its business.

29. On November 10, 2014, OMS provided an invoice to OWB USA totaling

$140,244.39 for the delivery to the SYDNEY EXPRESS. A true and correct copy of the Invoice

is attached hereto as Exhibit O. Such Invoice was issued by OMS and maintained by OWB

USA in the ordinary course of their respective businesses.

DERBY D


the physical supply of approximately 50 metric tons of bunkers to the vessel DERBY D. A true

and correct copy of OWB USA’s Purchase Confirmation is attached hereto as Exhibit P. Such

Purchase Confirmation was created by and maintained by OWB USA in the ordinary course of

its business.


DERBY D valued at $39,059.90. A true and correct copy of the Bunker Delivery Note is



attached hereto as Exhibit Q. Such Bunker Delivery Note was obtained by and maintained by


32. On November 10, 2014, OMS provided an invoice to OWB USA totaling

$39,102.90 for the delivery to the DERBY D. A true and correct copy of the Invoice is attached

hereto as Exhibit R. Such Invoice was issued by OMS and maintained by OWB USA in the

ordinary course of their respective businesses.

Stipulated Facts Common to the SYDNEY EXPRESS and DERBY D

33. The SYDNEY EXPRESS and the DERBY D were under charter to Hapag-Lloyd

Aktiengesellschaft (“Hapag-Lloyd”).

34. OMS was aware that the SYDNEY EXPRESS and DERBY D would use the

Bunkers for propulsion.

35. At the time it entered into the Bunker contracts discussed above, OMS knew that

the SYDNEY EXPRESS and DERBY D were not owned or operated by OWB USA.

36. Upon information and belief, Hapag-Lloyd had contracted with O.W. Bunker

Germany GmbH (“OW Germany”) to arrange for provision of bunkers to vessels which Hapag-

Lloyd had chartered, including the SYDNEY EXPRESS and the DERBY D.

37. The contract between Hapag-Lloyd and OW Germany was governed and

controlled by the OWB Terms.

38. OW Germany contracted with OWB USA to arrange the bunker provision to

physical supply of the SYDNEY EXPRESS and the DERBY D.

39. The contract between OW Germany and OWB USA was governed and controlled

by the OW Terms.

40. Clause L.4 of the OW Terms provides as follows:



(a) These Terms and Conditions are subject to variation in circumstances where the physical supply of the Bunkers is being undertaken by a third party which insists that the Buyer is also bound by its own terms and conditions. In such circumstances, these Terms and Conditions shall be varied accordingly, and the Buyer shall be deemed to have read and accepted the terms and conditions imposed by the said third party. (b) Without prejudice or limitation to the generality of the foregoing, in the event that the third party terms include:

(i) A shorter time limit for the doing of any act, or the making of any claim, then such shorter time limit shall be incorporated into these terms and conditions. (ii) Any additional exclusion of liability clause, then same shall be incorporated mutatis mutandis into these. (iii) A different law and/or forum selection for disputes to be determined, then such law selection and/or forum shall be incorporated into these terms and conditions.

(c) It is acknowledged and agreed that the buyer shall not have any rights against the Seller which are greater or more extensive than the rights of the supplier against the aforesaid Third Party.

41. Hapag-Lloyd has never paid any entity for the bunkers provided to the SYDNEY

EXPRESS or the DERBY D.

42. On December 19, 2014, Hapag-Lloyd filed a Complaint for Interpleader with the

United States District Court for the Southern District of New York, naming OMS, OW Germany,

OWB USA, and ING Bank N.V. as defendants. The case is presently pending before District

Judge Valerie Caproni and is captioned: Hapag-Lloyd Aktiengesellschaft v. O’Rourke Marine

Service L.P., L.L.P., et al., Case No. 14-10027 (S.D.N.Y.) (the “Hapag-Lloyd Interpleader”). A

true and correct copy of the Interpleader Complaint, taken from the Court’s CM/ECF system, is

attached hereto as Exhibit S.

43. Except as asserted in the Affidavit of Angela Dalcour in Support of Motion for

Summary Judgment, none of the other above exhibits, nor any other document, specifically



identifies OWB USA as “agent” for the SYDNEY EXPRESS or DERBY D. A true and correct

copy of the Affidavit is attached hereto to Exhibit T.

44. OMS delivered the Bunkers to the SYDNEY EXPRESS or DERBY D within the

time period prescribed by section 503(b)(9) of the Bankruptcy Code.

45. OWB USA did not take physical possession of the Bunkers prior to delivery to

the SYDNEY EXPRESS or the DERBY D.

46. A true and correct copy of OMS’s Responses to Debtors’ First Set of

Interrogatories, Requests for Production and Requests for Admissions Regarding Asserted

Section 503(b)(9) Claims is attached hereto as Exhibit U.

Dated: October 27, 2015.

Respectfully submitted,

/s/ J. Stephen Simms J. Stephen Simms (pro hac vice) SIMMS SHOWERS LLP 201 International Circle, Ste. 250 Baltimore, Maryland 21030 Telephone: 443-290-8704 Facsimile: 410-510-1789 [email protected] Counsel for O’Rourke Marine Services, L.P., L.L.P.

/s/ Michael R. Enright Michael R. Enright, Esq. (ct10286) Patrick M. Birney, Esq. (ct19875) ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT 06103 Telephone: (860) 275-8290 Facsimile: (860) 275-8299 [email protected] [email protected] - and - Natalie D. Ramsey, Esq. (pro hac vice) Davis Lee Wright, Esq. (pro hac vice) MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 437 Madison Avenue, 29th Floor New York, NY 10022 Telephone: (212) 867-9500 Facsimile: (212) 599-1759 [email protected] [email protected]



Counsel for the Debtors and Debtors in Possession



Exhibit A



PURCHASE CONFIRMATION

We are pleased to confirm the Seller and Buyer have agreed the sale and purchase of DMA (Marine Gas

Oil) based on the below terms.

1. Seller’s Name and Address

O’ Rourke Marine Services

P.O. Box 301457

Dallas Texas, 75303-1457

2. Buyer’s Name and Address

OW Bunker North America Inc

2 Stamford Plaza, 15th

Floor

281 Tresser Blvd

Stamford, CT, 06901

Email: [email protected]

3. Receiving Facility or Vessel Name: MV EVA SCHULTE which is acceptable to Seller.

4. Delivery Location: Delivered via barge to Texas City or other location by mutual agreement via

Sellers barge so as to minimize any vessel delays.

5. Date: October 23-28th

, 2014

6. Grade / Specifications: DMA

7. Quality: ISO 8217 2010 specs with sulphur max of 0.1% (1000ppm).

8. Quantity: 800- 1200MT

9. Price: USGC ULSD Waterborne Mean + 9cpg.

10. Pricing Period: Completion of load (hose-off) plus one day.

11. OWB North America will be the exporter of record

12. Credit: Open Credit

13. Payment terms:5 days after receipt of Invoice

14. Load Inspection: Shared 50-50 and to be mutually agreed (if required)

15. Quality Inspection: Seller to supply load tank(s) or barge certificate of analysis prior to loading

16. Operation Contacts: OW Bunker – Sebastian Vivanco Office: +203 7249748 / Cell: +203 8320251 /

Email: [email protected]

For and on behalf of

OW Bunker North America Inc.

Name: Keith Richardson – Senior Trader



Exhibit B



Exhibit C



O.W. BUNKER NORTH AMERICA

INC. TWO STAMFORD PLAZA 15TH

FLOOR 281 TRESSER BLVD STAMFORD,

CT 06901



Exhibit D



Exhibit E



Exhibit F



Exhibit G



Exhibit H



Exhibit I



Exhibit J



BUNKER DELIVERY NOTE

VESSEL NAME DATEEX WHARF � EX BARGE �

FLAG IMO # AGENT BARGE NAME

FOR ACCOUNT OF DELIVERY LOCATION

METRIC TONS TEMP °F. GRAVITY A.P.I. @ 60°F

DENSITY @ 60°F, Kg/m�

BARRELS PER MT NET VOLUME IN

BARRELS ORDERED DELIVEREDPRODUCT

PRODUCT

PRODUCT

PRODUCT PRODUCT PRODUCT ARRIVAL ALONGSIDE

20

TRUCK START 20

Cst VISCOSITY @ 50°C

TRUCK FINISH 20 FLASH °F min

TRUCK START 20 SULPHUR % (m/m)

TRUCK FINISH 20 WATER % (v/v)

DEPARTURE TIME 20

PR

OP

ER

TIE

S

Remarks:

Product Grade Marpol Sample # Vessel Sample # OMS/Retain Sample # Other

The fuel supplied in this delivery is in conformity with regulation 14(1) and regulation 18(1) of annex VI Marpol 73/78 effective May 19, 2005. The undersigned certifies that this property is for use solely in the operation of said vessel in foreign or interstate coastwise commerce. It is further certified that said vessel is engaged exclusively in foreign or interstate commerce. Any purchaser who fraudulently signs this certificate without intent to use the property purchased as above stated shall be subject to all penalties provided by law. The undersigned also certifies that the quantity/grade received is in accordance either the vessel's requirements, any advice from the owners/charterers to the contrary notwithstanding. No disclaimer stamp of any type or form will be accepted on the bunker receipt, nor should any stamp be applied, will it alter change or waive the sellers maritime lien against the vessel, or waive the vessel's ultimate responsibility for the debt incurred thru this transaction. Signing acknowledges that you received a copy of our General Terms and Conditions. ANY OFFER TO SELL TO CUSTOMER IS SUBJECT TO AND INCORPORATES BY REFERENCE ALL OF O’ROURKE MARINE SERVICES, LP, LLP’S CURRENT GENERAL TERMS AN CONDITIONS A COPY OF WHICH IS APPENDED HERETO OR AVAILABLE FROM O’ROURKE MARINE SERVICES, LP, LLPTHE FOREGOING DELIVERED TO VESSEL SIGNED TITLE DATE

THE FOREGOING RECEIVED ON BOARD VESSEL SIGNED TITLE DATE



INITIAL _________________

GENERAL TERMS AND CONDITIONS OF SALE

The parties agree, as of the date of each Sale Contract (hereinafter defined) by between Seller and each Buyer, that the Seller shall sell and deliver or arrange for delivery to the vessel nominated in such Sale Contract and the Buyer shall purchase, take delivery of and pay for the Marine Fuels (defined below) delivered pursuant to such Sale Contract in accordance with the following General Terms and Conditions (the "GTCs"). Headings in these GTCs are for identification purposes only and shall not be deemed to be part, or be taken into consideration in the interpretation or construction, of the GTCs. Unless the GTCs expressly require otherwise, any words denoting the singular shall include the plural and vice-versa. These GTCs shall supersede any earlier terms and conditions issued by the Seller and shall override and prevail over any other terms and conditions, including, without limitation, any terms and conditions stipulated, incorporated or referred to by the Broker (if any) and/or by the Buyer whether in its Order or with its signature/seal/stamp on documentation or anywhere else. 1 – DEFINITIONS - The following capitalized terms shall have the meanings ascribed to them below: "Marine Fuels" means products derived from crude oil, delivered or to be delivered to a Receiving Vessel for consumption.

"Seller" means O’Rourke Marine Services, L.P., L.L.P. or another party contracting to sell and deliver or to sell and to arrange to deliver Marine Fuels pursuant to a Sale Contract arising as contemplated herein. "Buyer" means a Receiving Vessel supplied and, jointly and severally, her master, owners, managers, operators, disponent owners, charterers and any person(s) who contract(s) to purchase, take delivery of and pay for the Marine Fuels. "Supplier" means a person engaged by the Seller to deliver Marine Fuels to a Receiving Vessel nominated by a Buyer. "Seller's Quotation" means the response of the Seller to a Buyer's invitation to tender for the sale, supply and delivery of Marine Fuels to the Receiving Vessel nominated by such Buyer. "Buyer's Order" or “Order” means an order for Marine Fuels placed by the Buyer based on the terms of the Seller's Quotation. "Seller's Written Acceptance" or “Written Acceptance” means the written acceptance by the Seller of the Buyer's Order. "Bunker Delivery Note" (BDN) means a document prepared by the Seller or a Supplier and signed and stamped after completion of delivery by the Master of the Receiving Vessel or his representative. "Declaration of Inspection" or “DOI” means the document signed and stamped by the Master of the Receiving Vessel before commencement of bunkering operations and by the Seller confirming that all the safety requirements have been met.

"Master of the Receiving Vessel" or “Receiving Vessel’s Master” means the individual authorized to represent the Receiving Vessel. "Receiving Vessel" means a vessel to which the Marine Fuels are physically delivered pursuant to a Sale Contract.

"Sale Contract" means the contract arising out of (i) Written Acceptance by the Seller of an Order for Marine Fuels placed by the Buyer; or (ii) delivery by the Seller or by its Supplier of Marine Fuels ordered by the Buyer, whichever occurs first. 2 - QUOTATION AND BINDING AGREEMENT In connection with any sale of Marine Fuels pursuant hereto, the Seller's Quotation shall set forth the price or price formula quoted by the Seller. The Buyer shall send an Order to the Seller containing or referencing such Seller’s Quotation or pricing terms and identifying the quantity and grade of Marine Fuels required, the port of delivery, the name of the Receiving

Vessel, her IMO number, the identity and contact details of the Receiving Vessel's Master, owners, managers, operators, disponent owners and charterers. No binding agreement shall arise until and unless either (i) the Seller sends a Written Acceptance of the Buyer's Order to the Buyer (directly or via brokers), or (ii) Marine Fuels are delivered to the Receiving Vessel, whichever takes place first. In either case, these GTCs shall apply to such transaction. 3 - CANCELLATION The Buyer shall be free to cancel its Order at no cost within three (3) calendar days of the date of its Order, provided that Seller's Written Acceptance has not been issued. If the Buyer cancels its Order after the Seller has issued its Written Acceptance, or more than three (3) calendar days after its Order, the Buyer shall be liable for any and all losses suffered and liabilities incurred by the Seller/Supplier as a result of the cancellation, including, without limitation, barge costs and hedging costs. Seller shall be indemnified in full for any costs and damages incurred by Seller as a result of any such late cancellation but in an amount not less than USD $4000.00 regardless of the amount of costs and damages incurred by Seller. 4 - GRADES/QUALITY AND LIMITATION OF LIABILITY (a) The Marine Fuels shall be described using ISO Standard 8217/2005 or

any subsequent amendment in force at the time of the Sale Contract. The Buyer shall have the sole responsibility for the identification of the grades of Marine Fuels suitable to the Vessel, including determination of compatibility with marine fuels already on board the Vessel. The Buyer shall accordingly state the grades required in its Order.

(b) The Seller warrants that the Marine Fuels will comply with the grades

quoted in the Seller's Written Acceptance. Failing a Written Acceptance by the Seller, and if Marine Fuels are delivered, the grades warranted will be those defined by the Buyer in its Order.

(c) THE SELLER DOES NOT PROVIDE ANY GUARANTEE OR

WARRANTY, WHETHER, EXPRESSED OR IMPLIED, AS TO THE MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS OR SUITABILITY OF THE MARINE FUELS FOR ANY PARTICULAR PURPOSE.

(d) The Buyer shall (i) take delivery of the Marine Fuels in segregated tanks

and shall not mix the same with any other marine fuels, and (ii) satisfy itself, through an independent laboratory analysis that the Marine Fuels delivered comply with the grade stipulated in the Order or Written Acceptance before burning the same. FAILURE BY THE BUYER TO COMPLY WITH THESE OBLIGATIONS, WHICH ARE CONDITIONS PRECEDENT TO ANY LIABILITY WHATSOEVER OF THE SELLER AND SUPPLIER ARISING OUT OF OR IN CONNECTION WITH THE SALE CONTRACT, OR OTHERWISE, WILL RESULT IN ANY AND ALL CLAIMS FROM THE BUYER BEING WAIVED AND ABSOLUTELY BARRED.

(e) If off specifications Marine Fuels are delivered, the Buyer shall not burn

the same and shall take all necessary steps to minimize the damage and losses arising from the same.

(f) Any claim as to the quality of the Marine Fuels must be made in writing to

the Seller with all supporting evidence as soon as possible and, in any event, within 30 calendar days of the date of delivery and failing which it shall be waived and absolutely barred.

(g) In the event of a quality claim, the parties shall have the quality of the

Marine Fuels analyzed by a mutually agreed, qualified and independent laboratory. The Seller shall provide this laboratory with the sample retained by it as per Clause 7. The analysis shall be established by tests in accordance with ISO 8217/2005 and ISO 4259 or subsequent amendments. Because of known poor reproducibility of some testing – e.g. TSP - in some cases, analyses shall be performed by more than one mutually agreed laboratory. The result of this joint quality inspection shall be final and binding as evidence of the quality of the product delivered, except in cases of manifest error or fraud. The expenses of the analysis shall be borne by the Buyer if the Marine Fuels are found to



INITIAL _________________

be within specifications and by the Seller if the Marine Fuels are found to be outside of specifications.

(h) The Seller's and the Supplier's liability (if any) arising out of delivery of off-

specification Marine Fuels shall be limited to the costs of (i) discharging the off-specification Marine Fuels delivered; and (ii) delivery of Marine Fuels which are within specifications.

(i) The Seller/Supplier shall have no liability whatsoever for any other loss or

damage including, without limitation, claims for delay, loss of hire, damage to the Receiving Vessel, her machinery or injury to her crew, loss of profit, loss of charter/contract, loss of opportunity.

(j) The Buyer's submission of a quality claim shall not relieve it of its

obligation to pay the Sale Contract price in full without set off, deduction or counterclaim, as per the invoice issued by the Seller pursuant to Clauses 10 and 11.

5 - QUANTITIES The quantities of Marine Fuels to be delivered by the Seller shall be as stated in the Seller's Written Acceptance, plus or minus 5% (five percent), at Seller's option, unless agreed otherwise. Failing a Written Acceptance by the Seller, the Seller will endeavor to deliver the quantity ordered by the Buyer in its Order but shall not be liable for any short delivery or delivery in excess of the quantity ordered, and the Buyer shall pay the quantity delivered measured according to clause 6 below. 6 - MEASUREMENTS (a) The Marine Fuels to be delivered under the Sale Contract shall be

measured and calculated in accordance with the ISO 91 -1/1992 and ISO 91-2/1991 Petroleum measurements tables.

(b) The quantity delivered shall be finally and conclusively determined on the

basis of the gauge/meter of the Seller's or Supplier's barge or shore-tank or road truck/rail car tank or on the basis of the Seller's/Supplier's oil meters, at Seller's option.

(c) The Buyer or its representative (including an independent surveyor

/inspector) is entitled to witness such measurements. 7 - SAMPLING (a) The Seller shall arrange for three (3) identical representative samples of

not less than 400 ml each for each grade of Marine Fuels to be drawn during the entire bunkering operation in the presence of both the Seller and the Buyer or their respective representatives. Two of these samples are taken for quality purposes (quality samples). The third sample is known as the MARPOL sample.

(b) The samples shall be securely sealed and seal numbers shall be written

on the BDN and witnessed by Buyer or by Buyer's representative. (c) One quality sample and the Marpol sample shall be handed to the Buyer

or to Buyer's representative. (d) The 2 other quality samples shall be retained by the Seller. (e) The Buyer and Seller shall each keep one quality sample for a period of

30 calendar days from the date of delivery. At the end of the said period these samples may be discarded unless the Buyer has made a complaint or claim under Clause 4 above.

(f) In case of road truck or rail car delivery, the 3 samples shall be drawn at the beginning of the delivery. 8 - DELIVERY (a) The Marine Fuels shall be delivered to the Receiving Vessel at the port or

place specified in the Seller's Written Acceptance. Absent a Written Acceptance by the Seller of the Buyer's Order, the port or place of delivery shall be that stated in the Buyer's Order.

(b) Delivery shall take place during working days and hours at the relevant

port of delivery. Any delivery outside of these periods, if permitted by port regulations, may give rise to additional charges which shall be for the Buyer's account. The Buyer shall advise Seller of the Vessel's estimated time of arrival ("ETA") in its Order; if the Buyer has not given

any ETA in its Order, it shall do so within 24 hours of receipt of the Seller's Written Acceptance of the Buyer's Order. The Seller/Supplier shall be under no obligation to deliver if the Vessel arrives outside the ETA and the Buyer shall reimburse to Seller any extra costs incurred by the Seller/Supplier in delivering outside of the ETA.

(c) The Buyer shall give the Seller, or its representatives at the port or place

of delivery, 48 hours written notice of the Vessel's arrival, indicating the exact location at the port of delivery, and the exact time at which delivery is required. The Seller/Supplier shall endeavor to deliver the Marine Fuels at the required time but shall, under no circumstance, be liable for any delay in the delivery of the Marine Fuels. The Buyer undertakes to accept delivery of the Marine Fuels at any time on

the day of requested delivery and to pay for any extra costs incurred by

the Seller/Supplier if the Vessel cannot take delivery of the Marine Fuels upon presentation of the Marine Fuels for delivery.

(d) The Marine Fuels shall, at Seller’s option, be delivered, by delivery hose,

from: (i) a storage tank or (ii) a tank truck(s) or rail car(s) or (iii) a bunkering barge(s).

(e) The Seller or Supplier shall procure and maintain all permits/licenses

required for delivery of Marine Fuels at the port or place of delivery. (f) The Buyer shall ensure that the Receiving Vessel has all certificates

required to comply with all regulations relating to delivery of the Marine Fuels at the port or place of delivery and shall instruct the Master of the Receiving Vessel to:

(i) advise the Seller in writing, prior to delivery, of the maximum

allowable pumping rate and pressure and to provide all emergency contact, details and the Receiving Vessel's emergency shut-down procedures;

(ii) notify the Seller in writing prior to delivery, of any special conditions,

difficulties, peculiarities, deficiencies or defects in respect of, and particular to, the Receiving Vessel, and which might affect the delivery of the Marine Fuels,

(iii) provide a free side to receive the Marine Fuels and to render all

necessary assistance which may reasonably be required to moor or unmoor the bunkering barge or to connect or disconnect the delivery hose(s).

(g) In the event of delivery by barge(s), the Buyer shall provide free of

expense to the Seller or Supplier a clean and safe berth for the barge(s) alongside the Receiving Vessel's intake pipe/receiving line(s).

(h) The Receiving Vessel will moor, unmoor, hoist, lower, bunkering hoses,

whenever required by Seller or Supplier free of charge and to assist Seller or Supplier in delivery operations.

(i) The Buyer and Receiving Vessel shall make and be solely responsible for

all connections and disconnections between the delivery hose(s) and the Receiving Vessel's intake pipe and shall ensure that the delivery hose(s) are properly secured and connected to the Receiving Vessel's manifold prior to the commencement of delivery of Marine Fuels to the Receiving Vessel.

(j) The Receiving Vessel shall provide sufficient segregated tankage to

receive the contracted quantity of Marine Fuels, plus or minus five (5) percent at Seller's option. The Buyer shall pay any cost or expense incurred by the Seller or Supplier resulting from the Buyer's failure to provide sufficient segregated tankage and/or to take delivery of the Sale Contract Quantity.

(k) If any delay in the delivery of the Marine Fuels is attributable to the Buyer

or the Receiving Vessel, the Seller shall be entitled to recover against the Buyer all losses and expenses, liabilities arising out of the said delay including, without limitation, any liability for demurrage on barges/trucks/rail cars (if any) and storage costs. The Seller or Supplier shall have no liability for any delay in the delivery of the Marine Fuels to the Receiving Vessel.



INITIAL _________________

(l) If the Buyer fails to take delivery, in whole or in part, of the quantity of

Marine Fuels specified in the Sale Contract, the Buyer shall pay the full Sale Contract price for the quantity ordered and the Buyer shall indemnify the Seller and hold the Seller harmless against any and all losses suffered and costs and liabilities incurred as a result of the Buyer's failure.

(m) The BDN evidencing such delivery shall be taken by the Seller or

Supplier who shall hand deliver one copy to the Buyer, one copy to the Master of the Receiving Vessel and one copy to the master of the ship or barge or to the driver of the truck or railcar delivering Marine Fuels as acknowledgement of the delivery of Marine Fuels

(n) Signature of the “DOI” by the Seller shall not relieve the Buyer from its

primary obligation to ensure the safety of Receiving Vessel. Safety on board the Receiving Vessel shall remain the responsibility of the Buyer.

9 - DOCUMENTATION (a) Before commencement of delivery, the Master of the Vessel shall sign a

“DOI” in the form presented by the Seller or Supplier and containing the quantities and the grades of the Marine Fuels to be delivered. In the applicable bunker requisition form, the Master of the Receiving Vessel shall confirm the name of the Receiving Vessel, her IMO number, the details of the Receiving Vessel's owners, her managers, her operators, her disponent owners and her charterers.

Before commencement of delivery operations, the Seller or its

representative shall also present to the Master of the Receiving Vessel or his representative, a “DOI” or similar document, which shall be signed by the Seller or its representative and by the Master of the Receiving Vessel or his representative, confirming that all the safety requirements have been met. Signature of this document by the Seller does not relieve the Buyer from its primary obligation and sole responsibility to ensure safety on board the Receiving Vessel.

(b) Once the delivery is completed and quantities measured as per Clause 6

and sampled per clause 7, a BDN shall be signed and stamped by the Master of the Receiving Vessel or his representative and by the Seller

or his representative, and returned to the Seller or its representative, as acknowledgement of the delivery. A BDN shall also be retained by the Master of the Receiving Vessel and kept on board the Receiving Vessel for a minimum of three (3) years from the date of delivery. In addition to the information in the bunker requisition form, the BDN shall contain the following information:

- The Receiving Vessel's name and her IMO number - Seal numbers of samples taken during delivery - Viscosity - Delivered quantity in volume units - Density in kg/m3 at 15°C or at ambient in conformity with local Port regulation - Delivered quantity in metric tons - Measured temperature before delivery - Flash point - Sulphur content.

10 - PRICE (a) The price of the Marine Fuels shall be that stated in the Seller's Quotation

or in the Seller's Written Acceptance, whichever is issued last. That price shall be either a fixed price per unit of Marine

Fuels delivered or a price calculated on the basis of a formula stated in the Seller's Quotation or in the Seller's Written Acceptance, whichever is issued last.

(b) The price shall be valid for the time range (the "price validity time range")

identified in the Seller's Quotation or in the Seller's Written Acceptance, whichever is issued last.

The Seller shall be under no obligation to deliver if the Receiving Vessel arrives outside of the price validity time range. If the Receiving Vessel does not arrive within the price validity time range, the Seller is entitled to terminate the Sale Contract forthwith and to claim damages as

describe in Clause 3 above as if the Sales Contract had been cancelled by the Buyer more than three [3] days after the Buyer's Order. The Seller is also entitled, at its sole discretion, to elect to deliver the Marine Fuels on new terms to be agreed between the Buyer and the Seller and without prejudice to the Seller's right to claim damages as if the Sales Contract had been cancelled by the Buyer more than three (3) days after the Buyer's Order.

(c) The price stated in the Seller's quotation is exclusive of all taxes and

charges that may be levied against the Seller/Supplier by the state of delivery and/or by any governmental/regional/local authorities in connection with the Sale Contract, including but not limited to:

(i) Wharfage charges, barging charges or other similar charges, (ii) Mooring charges or port duties incurred by the Seller, (iii) Duties, taxes, charges, freights or other costs in the country where delivery takes place,

(d) At ports where the Seller is not the direct Supplier, the Seller reserves the

right to invoice the Buyer for any additional charges/dues/taxes that the Supplier demands from the Seller after the Seller has issued its Written Acceptance of the Buyer's Order.

11 - PAYMENT (a) The Buyer shall pay for the Marine Fuels within 30 calendar days from the

date of delivery (electronic or telegraphic invoices may be sent, at the option of the Seller) unless otherwise agreed in the Sale Contract. If the Buyer has paid in advance of delivery, the sums due from Buyer shall be adjusted on the basis of the actual quantities of Marine Fuels delivered and any additional payment/refund, as the case may be, shall be made in accordance with this Clause 11.

(b) Payment shall be made in full, without set-off, counterclaim, deduction or

discount, free of bank charges and in the manner and at the place indicated on the invoice.

(c) Payment shall be deemed to have been made on the date the payment is

credited to the account of the bank designated by the Seller. If the payment date falls on a non-business day, the Buyer shall pay on or before the business day nearest to the due date. If the preceding and succeeding business days are equally near to the due date, then payment shall be made on or before the preceding business day.

(d) Any delay in payment shall entitle the Seller to interest and obligate Buyer

to pay interest on the past due amount at the rate of 1.5% (one and a half per cent) per month. Without prejudice to the foregoing, the Seller is entitled to suspend deliveries or to require prior payment in cash for any further deliveries as long as any amount remains overdue, regardless of the cause of the delay in payment.

12 - QUANTITY CLAIMS Provided the quantity delivered is measured in accordance with Clause 6(a), there shall be no claim regarding quantity save in case of fraud or manifest error. In case of alleged fraud on the Supplier's part or manifest error on the Supplier's or Seller's part, all quantity claims shall be barred and absolutely waived unless each of the following conditions are met: (a) the Master made a notation on the BDN disputing the quantity measured

as delivered, and providing the Buyer's case as to the actual quantity delivered;

(b) the Master issued a letter of protest and handed the same over to the

Seller or its representative on the day of the delivery; (c) the Buyer formally notifies its claim in writing to the Seller with evidence of

manifest error or fraud within 14 calendar days of the delivery date. ABSENT THESE THREE CONDITIONS BEING SATISFIED, ALL QUANTITY CLAIMS SHALL BE BARRED AND ABSOLUTELY WAIVED. 13 - RISK/TITLE Risk of loss in the Marine Fuels shall pass to the Buyer once the Marine Fuels have passed the flange connection between (a) the Receiving Vessel’s bunker manifold and (b) the delivery facilities provided by the Seller. Title to the Marine Fuels shall pass to the Buyer upon full payment for the value of the Marine Fuels delivered, pursuant to the terms of Clause 11. Until such



INITIAL _________________

full payment has been made, the Seller shall have a lien over the Receiving Vessel and her bunkers for the value of the Marine Fuels delivered. If the Marine Fuels have been commingled with other bunkers on board of the Receiving Vessel, the Seller shall have a lien over the Receiving Vessel and such part of the commingled bunkers as corresponds with the value of the quantity of the Marine Fuels delivered. 14 - TERMINATION The Seller shall be entitled to terminate the Sale Contract immediately in the event of: (a) breach of any provision of these GTCs or the Sale Contract by the

Buyer; (b) any application being made or any proceedings being commenced, or any

order or judgment being given by any court, for the liquidation, winding up, bankruptcy, insolvency, dissolution, administration or re-organization or similar of the Buyer;

(c) any suspension of payment, cessation to carry on business or

compounding or making any special arrangement with its creditors by the Buyer;

(d) any act being done or event occurring which, under the applicable law,

has a substantially similar effect to any of those acts or events. Termination by the Seller under this Clause 14 shall not affect any other rights or remedies of the Seller. 15 - COLLECTION AND LIEN Deliveries of Marine Fuels are made not only on the credit of the Buyer but also on the faith and credit of the Receiving Vessel, and the Seller shall have, and may assert a lien against the Receiving Vessel and her bunkers and against all assets, vessels and bunkers, in the same ownership, management, operation or control for all sums due and owing in connection with the Sale Contract, including interest and costs. It is expressly agreed between the Seller and the Buyer that Written Acceptance of the Buyer's Order or delivery of Marine Fuels following the Buyer's Order creates a maritime lien in accordance with article 46 U.S.C.§ 31342 (2013) of the United States Federal Maritime Liens Act. 16 - INDEMNITY AND EXCLUSION OF LIABILITY THE BUYER SHALL INDEMNIFY, DEFEND AND HOLD THE SELLER HARMLESS FROM AND AGAINST ANY CLAIMS, DEMANDS, PROCEEDINGS, DAMAGES AND LIABILITIES FOR LOSS OF, OR DAMAGE TO, PROPERTY OR FOR DEATH OF OR INJURY TO ANY PERSON AND AGAINST ALL ASSOCIATED COSTS (INCLUDING REASONABLE ATTORNEY'S FEES AND COURT COSTS), LOSSES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH THE SALE CONTRACT EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR THE WILLFUL MISCONDUCT OF THE SELLER. EXCEPT AS EXPRESSLY STATED AT CLAUSES 4 AND 12 ABOVE AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GTCS OR IN THE SALE CONTRACT, THE SELLER SHALL HAVE NO LIABILITY TO THE BUYER UNDER OR IN CONNECTION WITH THE SALE CONTRACT FOR ANY LOSS OR DAMAGE OF ANY KIND, WHETHER DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, NOR FOR LOSS OF PROFIT SUSTAINED BY THE BUYER. 17 - SUBSTITUTION The Seller reserves its right to substitute for itself a third party for the performance of all or part of its obligations under the Sale Contract. Notwithstanding, the Buyer shall retain the right to enforce the Sale Contract and the Seller shall remain responsible for the performance of the Sale Contract. 18 - FORCE MAJEURE The Seller/Supplier shall not be responsible for any loss, damage, delay or failure resulting from an act of God, or the port of delivery being affected by war, commotion, riot, quarantine, strike, stoppage, lock-out, arrest, restraint

of princes, rulers and people, or any other event whatsoever which cannot be avoided or guarded against by the exercise of due diligence. 19 - SAFETY AND ENVIRONMENT In the event of any spillage (which for the purpose of this Clause 18 shall mean any leakage, escape, or overflow of the Marine Fuels) causing or likely to cause pollution occurring at any stage of the bunkering operation, the Buyer and the Seller shall jointly, and regardless as to whether the Buyer or the Seller is responsible, immediately take such action as is necessary to clean up, which shall be conducted in accordance with such local laws and regulations that may apply. If the pollution is caused by an act or omission of the Buyer, its servant or agents, the Buyer shall indemnify the Seller for the cost incurred by the Seller in connection with it. 20 - MATERIAL SAFETY DATA SHEETS Material Safety Data Sheets (M.S.D.S.) are available on the websites http://www.orpp.com/site/products-and-services/lubricants/msds-technical-datasheets/, Seller will send a hard copy of the M.S.D.S. upon request. 21 - SECURITY FOR COSTS Notwithstanding anything to the contrary in the GTCs, in the Sale Contract or in any terms and conditions incorporated in the same (including the rules as to security for costs in the LMAA or FALCA terms which, if applicable, are hereby varied), any claim against the Seller/Supplier shall be deemed to be irrevocably abandoned if, within 14 calendar days of commencement of proceedings/arbitration, the Buyer has not arranged security for costs in favor of the Seller and in an amount at least equal to the quantum of the Buyer's claim by way of a bank Letter of Guarantee or a Standby Letter of Credit. This is without prejudice to the Seller's right to demand security for any claim/counterclaim against the Buyer. [CCJ Note: I’m not sure there is an applicable US equivalent for this.] 22 - LAW AND JURISDICTION Any dispute arising out of or in connection with the Sale Contract or these GTCs, including, without limitation, any dispute with multiple defendants/claimants and indemnity claims, shall be exclusively interpreted and construed in accordance with the laws of the State of Texas, U.S.A., excluding any choice of law rules that would otherwise require application of the laws of any other jurisdiction. Venue for any disputes arising from this Agreement shall be in the applicable state and/or federal courts of Houston, Harris County, Texas. BOTH PARTIES AGREE THAT, TO THE EXTENT ALLOWED BY THE GOVERNING LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A JURY TRIAL WITH REPSECT TO ANY LITIGATION INVOLVING THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Sale Convention) signed in Vienna on 11 April 1980 shall not apply to and shall be expressly excluded from the Sale Contract and these GTCs. 23- CONFIDENTIALITY All data and information acquired directly or indirectly by Buyer from Seller relating to this Sale Contract or these GTCs or in connection with the performance of this Agreement, excluding information or data in the public domain through no default of the Buyer, shall be held strictly confidential and not be reproduced or used for any purpose unrelated to the Agreement or disclosed to a third party without Seller’s express written consent. 24 – SAVINGS CLAUSE In the event any provision, clause, sentence or part of the Sale Contract or these GTCs is unenforceable under any applicable law, the same shall be deemed to be modified to the extent required to comply with said law (it being the intention of both Parties to enforce to the fullest extent, all terms of this Sale Contract or these GTCs) and as so modified, this Sale Contract or these GTCs shall continue in full force and effect. In the event any such provision, clause, sentence or part of this Sale Contract or these GTCs cannot be modified to comply with the law, then said provision, clause, sentence or portion of this Sale Contract or these GTCs cannot be modified to comply with the law, then said provision, clause, sentence or portion of the Sale Contract or these GTCs shall be deemed to be deleted from the agreement and the remaining terms and conditions shall remain in full force and effect.



Exhibit K



OW BUNKER GROUP

Terms and Conditions of sale for Marine

Bunkers

Edition 2013



A. GENERAL INTRODUCTION

A.1 This is a statement of the terms and conditions according to which the

International O.W. Bunker Group (hereinafter called “OWB”) will sell marine bunkers.

A.2 These conditions apply to all offers, quotations, orders, agreements, services and all subsequent

contracts of whatever nature, except where otherwise is expressly agreed in writing by OWB.

A.3 General trading conditions of another party will not apply, unless expressly accepted in writing by OWB.

A.4 In the case that, for whatever reason, one or more of the (sub)clauses of these general conditions are

invalid, the other (sub)clauses hereof shall remain valid and be binding upon the parties.

B. DEFINITIONS

B.1 Throughout this document the following definitions shall apply:

“Seller” means OWB; any office, branch office, affiliate or associate of the OWB

Group; being the legal entity within the OWB Group, whose name is

included in the Order Confirmation, sent to the Buyer.

“Buyer” means the vessel supplied and jointly and severally her Master, Owners,

Managers/Operators, Disponent Owners, Time Charterers, Bareboat

Charterers and Charterers or any party requesting offers or quotations for

or ordering Bunkers and/or Services and any party on whose behalf the

said offers, quotations, orders and subsequent agreements or contracts

have been made;

“Bunkers” means the commercial grades of bunker oils as generally offered to the

Seller’s customers for similar use at the time and place of delivery and/or

services connected thereto;

“Owner” means the registered Owner, Manager or Bareboat Charterer of the vessel;

“Vessel” means the Buyer’s Vessel, Ship, Barge or Off-Shore Unit that receives the

supply/bunkers; either as end-user or as transfer unit to a third party;

‘’Nomination’’ means the written request/requirement by the Buyer to the Seller, for the

supply of the Bunkers;

‘’Order Confirmation’’ means the written confirmation as issued by the Seller and forwarded to

the Buyer to conclude the conclusion of the negotiated sale/purchase of

the Bunkers. In case of conflict between the Nomination and the Order

Confirmation, unless the Seller otherwise agrees in writing, the wording and

content of the Order Confirmation is deemed contain the prevailing terms

of the Agreement;

‘’Agreement’’ means the concluded terms for the sale/purchase of the Bunkers;

‘’Supplier’’ means any party instructed by or on behalf of the Seller to supply or deliver

the Bunkers;

‘’GTC’’ means these General Terms and Conditions which shall govern the

contractual regulations between the Seller and the Buyer

‘’BDR’’ means the Bunker Delivery Receipt, being the document(s) which is/are

signed by the Buyer’s representative(s) at the place of the supply of the

Bunkers to the Vessel, evidencing the quality and quantity of the Bunkers

supplied to and received by the Vessel.

C. OFFERS, QUOTATIONS AND PRICES

C.1 An Agreement shall only be concluded and binding on the Seller when the Seller sends the Order

Confirmation to the Buyer. Each Order Confirmation shall incorporate these GTC by reference so that the

GTC are considered a part of the Confirmation.

C.2 Agreements entered into via brokers, or any other authorised representative on behalf of the Seller, shall

only bind the Seller upon the Sellers’ broker or other authorised representative sending the Order

Confirmation to the Buyer or the Buyer’s broker as the case may be.

C.3 The Seller’s offer is based on the applicable taxes, duties, costs, charges and price level of components

for Bunkers existing at the time of the conclusion of the Agreement. Any later or additional tax,

assessment, duty or other charge of whatever nature and however named, or any increase of

components for Bunkers or any additional costs borne by the Seller whatsoever caused by any change

in the Seller’s contemplated source of supply or otherwise, coming into existence after the Agreement

has been concluded, shall be added to the agreed purchase price, provided that the Seller shall give



the Buyer prior notice of this effect within a reasonable (under the prevailing circumstances) time after

the Seller becoming aware of the relevant circumstances.

C.4 All prices and/or tariffs are exclusive VAT, unless specifically stated otherwise. Any VAT or other charge

and/or tax applicable and whenever imposed, shall be promptly paid by the Buyer, and unless otherwise

agreed in writing all supplies are quoted and invoiced based on quantity calculated quantity in metric

tons in vacuum.

C.5 If the party requesting Bunkers is not the Owner of the Vessel, the Seller shall have the right (but will not be

obliged) to insist as a precondition of sale that a payment guarantee is provided by the Owner. The

Seller shall have the right (but will not be obliged) to cancel any agreement with the Buyer at any time, if

such payment guarantee is not received upon request thereof from the Seller to the Owner. The Seller’s

decision to forego obtaining a payment guarantee under this Clause C.5 shall have no effect on Seller’s

right to a lien on the Vessel for any Bunkers supplied under this Agreement.

C.6 The Buyer warrants that it is authorized as agent to order Bunkers for the Vessel, and that the Seller has a

lien on the Vessel for any Bunkers supplied under this Agreement. If the party requesting Bunkers is not the

Owner of the Vessel, Buyer assumes the sole responsibility for communicating the terms and conditions of

this Agreement to the Owner of the Vessel prior to the date of delivery.

C.7 If at any time before the delivery the financial standing of the Buyer appears to the Seller (in its absolute

discretion) to have become impaired or unsatisfactory, the Seller may require cash payment or security

to be provided by the Buyer prior to delivery, failing which the Seller may cancel the delivery without any

liability on the part of the latter or its subcontractors.

D. SPECIFICATIONS (QUALITY – QUANTITY)

D.1 The Buyer assumes the sole responsibility for the choice of nominating the quantity and quality of Bunkers

and determine (if applicable) potential compatibility with any Bunkers already on board the Vessel. The

Buyer also assumes sole responsibility for the selection and fitness of its choice of Bunkers for any

particular use or purpose, and the Seller shall assume no responsibility whatsoever for the compliance or

fitness of the Bunkers for a specific type of engine or equipment which the Buyer may or may not have

agreed upon in any C/P (Charterparty) term or otherwise. This includes but is not limited to the quality,

sulphur content and any other specific characteristics of the Bunkers whatsoever. Any and all warranties

regarding the satisfactory quality, merchantability, fitness for purpose, description or otherwise, are

hereby excluded and disclaimed.

Where specifications designate a maximum value, no minimum value is guaranteed unless expressly

stated in the Order Confirmation, and conversely where minimum values are provided in a specification,

no maximum values are guaranteed unless expressly stated in the Order Confirmation.

D.2 The quality and quantity shall be as agreed between the Seller and the Buyer and shall correspond to

the Seller’s Order Confirmation. Unless otherwise agreed in writing the Bunkers are delivered and sold

based on metric tons in vacuum.

D.3 Where standard specifications are being given or referred to, tolerances in accordance with ISO 4259 in

respect of Reproducibility/Repeatability in quality are to be accepted without compensation or other

consequences whatsoever.

D.4 In respect of the quantity agreed upon the Seller shall be at liberty to provide, and the Buyer shall

accept a variation of 5% from the agreed quantity, with no other consequence than a similar variation

to the corresponding invoice from the Seller.

D.5 Information regarding the typical characteristics of the Bunkers at any delivery location shall only be

indicative of the Bunkers that have been made available at that location and shall not form a part of the

specification of the Bunkers to be delivered. All grades of produce may contain petroleum industry

allowed bio-derived components.

E. MEASUREMENTS – NON CLAUSING OF THE BDR(S)

E.1 The quantities of bunkers shall be determined only from the official gauge or meter of the bunkering

barge, tank truck or of the shore tank in case of delivery ex wharf.

E.2 The Buyer’s representative shall together with the Seller’s representative measure and verify the quantities

of Bunkers delivered from the tank(s) from which the delivery is made. When supplied by bunkering

barge/tanker the particular barge/tanker will present its tank calibration and ullage sounding records,

which are agreed to be the sole valid and binding document(s) to determine the quantity or quantities

supplied. Quantities calculated from the Receiving Vessel’s soundings shall not be considered.



E.3 Should the Buyer’s representative fail or decline to verify the quantities, the measurements of quantities

made by the Seller or the Supplier shall be final, conclusive and binding and the Buyer shall be deemed

to have waived any and all claims in regard to any variance.

E.4 The Buyer expressly undertakes not to make any endorsement, complaint/ comment (including but

without limitation any ‘’No-lien’’ clausing) on the BDR when presented for signature by the Buyer’s

representative(s), any such insertion shall be invalid and of no effect whatsoever.

E.5 In the event of complaint/comment on the quantity of Bunkers delivered, the Buyer or the Master of the

Vessel shall give to the Seller/Supplier a letter of protest separately, followed by a complaint in detail to

the Seller, setting out the exact quantity(ies) claimed shortsupplied, and with full supporting vouchers, in

writing within 7 (seven) days thereof, failing which, any such claim by the Buyer shall be extinguished as

non existent, and the Buyer shall be deemed to have expressly waived any such claim against the

Seller/Supplier, the relevant claim being time barred, and the Seller/Supplier’s weight and measurements

shall be conclusive evidence of the quantity of Bunkers delivered.

F. SAMPLING

F.1 The Supplier shall arrange for four (4) representative samples of each grade of Bunkers to be drawn

throughout the entire bunkering operation. The Buyer’s representative has the responsibility to witness

that such samples are drawn correctly and shall confirm his witnessing thereof and also confirm the

proper and correct sealing by signing the labels of the sample bottles.

F.2 In case that dripsampling is not available onboard the barge, tanktruck or shore tank, samples shall be

taken as a composite of each tank from which supplies are made, onboard the barge (respectively at

the shore tank or tanktruck), divided with 1/3 from each the top, mid and bottom of the tanks.

F.3 The samples shall be securely sealed and provided with labels showing the Vessel’s name, identity of

delivery facility, product name, delivery date and place and seal number, authenticated with the

Vessel’s stamp and signed by the Seller’s representative and the Master of the Vessel or his

representative. The seal numbers shall be inserted into the BDR/Bunker Delivery Receipts, and by signing

the BDR both parties agrees to the fact that the samples referred to therein are deemed valid and taken

in accordance with the requirements as specified in this Chapter F.

F.4 Two (2) samples shall be retained by the Seller for ninety (90) days after delivery of the Bunkers, or if

requested by the Buyer in writing, for as long as the Buyer reasonably required. The other two (2) samples

shall be retained by the receiving Vessel, one of which being dedicated as the MARPOL sample.

F.5 In the event of a dispute in regard to the quality of the Bunkers delivered, the samples drawn pursuant to

this Chapter F, shall be conclusive and final evidence of the quality of the Bunkers delivered. One, and

only one, of the samples retained by the Sellers shall be forwarded to an independent laboratory to

perform a set of tests, the result of which is to be made available to both parties. Those test results shall

be final and binding upon both Buyer and Seller as to the parameters tested. The parties are to use best

endeavours to agree the independent laboratory to perform the tests. If, however, no agreement can

be reached on the choice of laboratory within 3 days of the Buyer being advised of the Seller opting to

have the sample tested, the Seller is at liberty to send the sample to a reputable and independent

laboratory of its choice for the tests to be conducted, and those test result will be final and binding upon

Buyer and Seller as set out above.

F.6 The seal must be breached only in presence of both parties unless one/both in writing have declared

that they will not be present, or fails to be present at the appropriate time and place; and both parties

shall have the right to appoint independent person(s) or surveyor(s) to witness the seal breaking.

F.7 No samples subsequently taken shall be allowed as (additional) evidence. If any of the seals have been

removed or tampered with by an unauthorised person, such sample(s) shall be deemed to have no

value as evidence.

F.8 Any eventual samples drawn by Buyer’s personnel either during bunkering or at any later date after

bunkering shall not be valid as indicator of the quality supplied. The fact that such samples may

eventually bear the signature of personnel on board the barge or tank truck or other delivery

conveyance shall have no legal significance as such local personnel have no authority to bind Seller to

different contractual terms. Seller shall have no liability for claims arising in circumstances where Buyer

may have commingled the products on board the Vessel with other fuels.



G. DELIVERY

G.1 The time of delivery, as given by the Seller, has been given as an approximate time, unless it has been

otherwise specifically agreed in writing between the parties.

G.2 The time of delivery will only be binding upon the Seller when all information necessary for the Seller to

comply with its obligations hereunder, have been properly delivered to the Seller in reasonable time

before the delivery. In the event the Nomination addresses a spread of dates for delivery, the Seller has

the sole discretion to commence the delivery within any time, day/night/sshinc of these dates, always

subject to the circumstances set out below in Clause G.3.

G.3 The Vessel shall under all circumstances be bunkered as promptly as the prevailing circumstances permit,

having regard to congestion affecting the delivery facilities of Seller, its Suppliers or Agents and to prior

commitments of barges or other delivery means. The Seller and/or the Supplier shall not be liable for any

consequences or any time lost due to the Vessel having to wait for berth for bunkering or for completion

of bunkering, and unless otherwise agreed in writing, the Seller shall not be obligated to deliver prior to

the nominated date or spread of dates. The Seller is not responsible for delays caused by local customs,

pilots, port- or other authorities.

G.4 In any case the Buyer, unless otherwise agreed in writing, must give not less than 72 (seventy two) hours

approximate notice of readiness of the Vessel for delivery, which is to be followed by 48 (forty eight)

hours and 24 (twenty four) hours such notices, where the last notice must also specify the exact place of

delivery. All these notices must be given to the Sellers and the Seller’s representatives/agents in writing.

G.5 The Seller shall be entitled to deliver the Bunkers by separate part deliveries, in which case each part

delivery shall be construed as a separate delivery.

G.6 The Seller shall not be required to deliver any Bunkers if any customs and/or other government permit

required for such purpose has not been obtained in due time before the delivery.

G.7 If the Seller at any time for any reason believes that there may be a shortage of supply at any place and

that as a result thereof it may be unable to meet the demands of all its customers, the Seller may

allocate its available and anticipated quantity/ies of Bunkers among its customers in such a manner as it

may determine appropriate in its sole discretion.

G.8 The Vessel shall be accessible at all times to Seller and Supplier and shall be bunkered as promptly as the

circumstances permit. The Seller and/or the Supplier shall not be liable for any demurrage paid or

incurred by the Buyer or for any loss, damage or delay of the Vessel (consequential and/or liquidating

damages included) of any nature whatsoever due to congestion at the loading terminal, prior

commitments of available barges or tank trucks or any other reason.

G.9 The Buyer shall ensure that the Vessel provides a free, safe and always afloat and accessible side for the

delivery of bunkers and that all necessary assistance as required by the Seller or the Seller’s

representative is rendered in connection with the delivery. If in the Supplier’s opinion clear and safe berth

is unavailable, delivery might be delayed or, in Seller’s option, cancelled and all costs related to above

will be on account of the Buyer.

G.10 The Vessel shall moor, unmoor, hoist and lower bunkering hose(s) from the barge(s) whenever required

by the Seller, Seller’s representative or Supplier, free of expenses and in any way as may be requested to

assist the barge equipment to a smooth supply. The Buyer shall make and be responsible for all

connections and disconnections between the delivery hose(s) and the Vessel’s bunker intake

manifold/pipe and ensure that the hose(s) are properly secured to the Vessel’s manifold prior to

commencement of delivery.

During bunkering the Vessel’s scuppers must be safely blocked, which blocking must be made by the

Vessel’s own crew. Furthermore the Vessel must ensure that all pipes and manifolds and receiving tanks

are properly checked and ready to receive the bunkers, including but not limited to ensuring proper

opening/closing of relevant valves, without any risk for spillages, etc, during the bunkering.

Local further special requirements for receiving bunkers must be followed strictly by the Vessel, whether

advised or not by the Seller or the Seller’s representative, as it is always the Vessel and the Buyer who

remains solely responsible for the knowledge and awareness of such eventual additional requirements

for safety reasons.

G.11 In the event that the Vessel is not able to receive the delivery promptly, the Buyer is thereby in default

and shall pay damages and/or any reasonable demurrage claim to the barging/supplying facilities and

shall indemnify the Seller in each and every respect as a result thereof.

G.12 Delivery shall be deemed completed and all risk and liabilities, including loss, damage, deterioration,

depreciation, contamination, evaporation or shrinkage to the Bunkers delivered and responsibility for

loss, damage and harm caused by pollution or in any other manner to third parties shall pass to the Buyer



from the time the Bunkers reach the flange/connecting pipe line(s)/delivery hoses provided by the Seller

on the barge/ tank truck/shore tank.

G.13 If the Buyer for whatever reason is unable or refuses to receive the full quantity ordered, the Seller shall

have the right to invoice the Buyer for the loss incurred by having to transport the undelivered Bunkers

back to the storage or by having to sell the Bunkers in a degraded form or at a lower price. The Seller

may exercise this right without prejudice to the Seller’s other rights for damages or otherwise pursuant to

these conditions.

G.14 The Vessel shall provide and have appropriate and segregated tanks to receive the contracted quantity

of Bunkers; and the Vessel shall always be able to perform its own blending on board if any blending is

deemed to be required by the Buyer. The Vessel shall upon delivery test the Bunkers supplied by running

her engines or auxiliaries or equipment, for which the Bunkers are supplied, for a minimum of 1 (one) hour

to determine that the Bunkers are satisfactory. In the event the Bunkers are not considered satisfactory,

the Seller and Supplier are to be notified in writing immediately after such test period has expired.

Otherwise, it shall be deemed that the Bunkers were satisfactory and that in any event the Buyer has

waived any right to claim in this regard.

G.15 If delivery is required outside normal business hours or on local weekends, Saturday, Sunday, national

religious or public holidays the extra expenses incidental to such delivery shall be reimbursed by the

Buyer as additional costs.

G.16 In the event the Bunker delivery is made by vessel or barge as a ship-to-ship transfer, any damage

caused by contact and/or collision and/or swell and/or other weather or sea related condition or

incident, is to be dealt with by the Owners directly with the owners of the units involved, and

Seller/Supplier shall not be held nor be responsible for any such damages. If, however, any of the

involved units choose to pursue Seller and/or Supplier, Buyer will fully indemnify and hold Seller harmless in

relation thereto.

G.17 For safety reasons it is agreed that it is solely the Master of the bunkering barge that determines whether

mooring alongside is safe, taking weather, swell and forecasts into consideration. Supplier/Seller not to

be held responsible for any delays, demurrages, liquidating damages or similar whatsoever as a result of

any eventual delays caused by any decision by the Master of the barge in this connection. Supplies

being always performed weather permitting.

G.18 Without prejudice to any other article(s) herein, any and all supply/ies will be based on as per best

endeavours only if the receiving Vessel arrives outside the originally agreed time split as per the Order

Confirmation forwarded.

H. TITLE

H.1 Title in and to the Bunkers delivered and/or property rights in and to such Bunkers shall remain vested in

the Seller until full payment has been received by the Seller of all amounts due in connection with the

respective delivery. The provisions in this section are without prejudice to such other rights as the Seller

may have under the laws of the governing jurisdiction against the Buyer or the Vessel in the event of non-

payment.

H.2 Until full payment of the full amount due to the Seller has been made and subject to Article G.14 hereof,

the Buyer agreed that it is in possession of the Bunkers solely as Bailee for the Seller, and shall not be

entitled to use the Bunkers other than for the propulsion of the Vessel, nor mix, blend, sell, encumber,

pledge, alienate, or surrender the Bunkers to any third party or other Vessel.

H.3 In case of non or short payment for the Bunkers by the Buyer, the Seller is entitled (but not obliged) to

repossess the Bunkers without prior juridical intervention, without prejudice to all other rights or remedies

available to the Seller.

H.4 In the event that the Bunkers have been mixed with other bunkers on board the Vessel, the Seller shall

have the right to trace its proprietary interest in the Bunkers into the mixed bunkers and/or a right of lien

to such part of the mixed bunkers as corresponds to the quantity or net value of the Bunkers delivered.

H.5 The provisions of this Chapter H do not prejudice or in any way limit the Seller’s right to arrest/attach the

Vessel and/or sister ship and/or any sister or associate ship and/or other assets of the Buyer (or the Owner

of the Vessel or any other party liable), wherever situated in the world, without prior notice.

H.6 Where, notwithstanding these conditions, title in and to the Bunkers delivered has passed to the Buyer

and/or any third party before full payment has been made to the Seller, the Buyer shall grant a pledge

over such Bunkers to the Seller. The Buyer shall furthermore grant a pledge over any other Bunkers present

in the respective Vessel, including any mixtures of the delivered Bunkers and other bunkers. Such pledge



will be deemed to have been given for any and all claims, of whatever origin and of whatever nature

that the Seller may have against the Buyer.

H.7 For the avoidance of doubt, where a mortgagee bank enforces any rights against the Vessel and

becomes a mortgagee in possession of the Bunkers then as bailee the mortgage bank is liable to the

Seller for fulfilment of the Agreement.

I. PAYMENT – MARITIME LIEN

I.1 Payment for the Bunkers and/or the relevant services and/or charges shall be made by the Buyer as

directed by the Seller within the period agreed in writing.

I.2 Payment shall be made in full, without any set-off, counterclaim, deduction and/or discount free of bank

charges to the bank account indicated by the Seller on the respective invoice(s).

I.3 (i) If at any time after delivery but before the due date the financial standing of the Buyer appears to the

Seller (in its sole discretion) to have become impaired or unsatisfying, the Seller may require immediate

full payment of all its invoices due and/or those not yet due, or such security as it shall deem to be

satisfactory.

(ii) In the event that the Buyer shall default in making any payment due, the Seller may suspend deliveries

of Bunkers until such payment has been made in full (together with default/delay compensation and

costs), or the Seller may, in its discretion, elect to treat such default as a serious breach of the Agreement

and thereupon terminate the Agreement on whole or in part without prejudice to any claim against the

Buyer for damages, including cancellation charges. Such termination or suspension shall not relieve the

Buyer of any obligation undertaken by virtue of an Agreement so terminated.

(iii) Where the Seller has extended any kind of credit facility to a group of companies or associated

companies, default by any one relevant Buyer in respect to any invoice of the Seller shall give the right to

the Seller to cancel all credit arrangements of the entire group or of all the associates, whereupon sub-

clauses I.3.(i) and I.3.(ii) shall apply as appropriate.

(iv) Where the Buyer fails to pay timely, the Seller has the right to (without prejudice to its rights to receive

default/delay compensation) take all appropriate steps to secure and enforce its claim; the Seller may

also unilaterally cancel any credit arrangements agreed with/extended to the Buyer.

(v) All judicial and extrajudicial costs and expenses, including pre-action costs, fees, expenses and

disbursements of the Seller’s lawyers/attorneys-at-law, incurred in connection with non payment or

delayed payment or by any other breach by the Buyer of these conditions, shall be for the Buyer’s

account, immediately payable by the latter to the Seller. In case of litigation, the Buyers shall also pay all

the relevant expenses to the Seller, including but without limitation all his reasonable attorneys/lawyers’

fees, costs and disbursements.

I.4 Payment shall be deemed to have been made on the date of which the Seller has received the full

payment and such is available to the Seller. If payment falls due on a non-business day, the payment

shall be made on or before the business day nearest to the due date. If the preceding and the

succeeding business days are equally near to the due date, then payment shall be made on or before

the preceding business day.

I.5 Any delay in payment of the full sum due shall entitle the Seller to interest at, the rate of 3 (three) per

cent per month (compounded monthly for each month [or part thereof] of non payment) without

prejudice to any rights or remedies available to the Seller. Furthermore the Seller is entitled to charge a

delayed payment administration fee of USD 1.50 per mton supplied, or the equivalent thereof in local

currency, with a minimum administration fee of USD 350.00 for each delivery made. All reasonable

attorneys’ fees incurred by Seller in connection with the collection of overdue payments shall be for the

sole account of the Buyer.

I.6 Payments made by the Buyer in respect of a supply of Bunkers shall at all times be credited in the

following order: (1) costs of any kind or nature, including but not limited to legal costs and attorneys’

fees, (2) interest and administrational fee, and (3) invoices in their order of age, also if not yet due, or in

Seller’s sole discretion to specify a payment to any such invoice Seller considers relevant.

I.7 All costs borne by the Seller in connection with the collection of overdue payments, including those of

the Seller’s own legal and credit department and, including but not limited to, reasonable attorneys’

fees, whether made in or out of court and in general all costs in connection with breach of any

agreement by the Buyer, including but not limited to reasonable attorneys’ fees, shall be for the sole

account of the Buyer.

I.8 The Seller shall at all times, in its absolute discretion, be entitled to require the Buyer to provide the Seller

what the Seller deems to be proper security for the performance of all of Buyer’s obligations under the

Agreement. Failing the immediate provision of such security upon Seller’s demand, the Seller shall be



entitled to stop any further execution of any agreement(s) between the parties until such time as the

Buyer has provided the required security.

I.9 Where Bunkers are supplied to a Vessel, in addition to any other security, the Agreement is entered into

and the Goods are supplied upon the faith and credit of the Vessel. It is agreed and acknowledged that

the sale of Bunkers to the Buyer and/or their acceptance on the Vessel create a maritime lien over the

Vessel for the price of the Bunkers (and all interest and costs payable in respect thereof; including but not

limited to the reasonable attorney’s fees), such maritime lien afforded to the Seller over the Vessel. In any

event any applicable Law shall not prejudice the right of the maritime lien of the Seller afforded

hereunder or by any other applicable Law, be it of the place of delivery, or the flag of the Vessel, or the

place of jurisdiction and/or an arrest of the Vessel, or otherwise howsoever.

I.10 It is mutually agreed that the Bunkers provided by the Seller to the Buyer under the terms of this

Agreement have been ordered by the Buyer in the ordinary course of business between Seller and Buyer.

All payments from Buyer to Seller for Bunkers supplied under this Agreement are deemed to have been

made in the ordinary course of business between Seller and Buyer, according to these ordinary business

terms agreed between them.

J. CLAIMS

J.1 In addition to the obligations referred to in Article E.4 and E.5 herein, any claim in connection with the

quantity of the Bunkers delivered must be notified by the Buyer, or the Master of the Vessel, to the Seller

or Supplier immediately after completion of delivery in the form of a letter of protest. If the Buyer or the

Vessel’s Master fails to present such immediate notice of protest to the Seller or Supplier, such claim shall

be deemed to have been waived and shall be absolutely barred for all purposes.

J.2 Always without prejudice to Article G.14 herein, any and all claims concerning the quality of the Bunkers

delivered or time consumed for the entire operation, shall be submitted to the Seller in writing within 15

(fifteen) days after delivery with a clear statement as to the nature or the claim(s) along with appropriate

supporting documentation, failing which any rights to complain or claim compensation of whatever

nature shall be deemed to have been waived and absolutely barred for all purposes.

J.3 The Buyer shall be obliged to make payment in full and fulfil all other obligations in accordance with the

terms of the Agreement and these conditions, whether or not it has any claims or complaints. If Buyer

submits a claim against Seller with respect to the quality or quantity of the products supplied, the Seller or

the Seller’s nominated representative shall be entitled to board the Vessel and investigate the Vessel’s

records, log books, engine logs, etc, and to make copies of any such document the Seller or the Seller’s

nominated representative may consider necessary for its investigations connected to the case. The Buyer

shall allow this, or where Buyer has chartered the Vessel then the Buyer shall obtain authorization from

Owner to allow the herein stated steps and to provide full assistance and support by the Vessel’s officers

and crew in any such manner the Seller or Seller’s nominated representative may require. Failure to allow

boarding and/or produce required copies of documents and/or lack of full cooperation by the Vessel’s

officers and crew shall constitute a waiver of the Buyer’s claim.

J.4 The Seller shall be allowed, and the Buyer, Owner, Officers and Crew onboard the receiving Vessel shall

agree and in any way support and cooperate with Seller’s representative, to draw samples from the

Vessel’s storage tanks, settling tanks and service tank and/or from before and after the Vessel’s

centrifuges to have extra tests carried out for such samples at independent laboratory.

J.5 In each and every case, any and all claims of the Buyer shall be timebarred unless arbitration/legal

proceedings have been commenced/issued at the competent tribunal/court set forth in Chapter P

hereof and served within 12 (twelve) months from the date of delivery of the Bunkers, or the date that

delivery should have commenced pursuant to the Order Confirmation from the Seller.

K. LIABILITY – LIMIT TO SELLER’S LIABILITY

K.1 The Seller and/or Supplier shall not be liable for damages of whatever nature, including physical injury,

nor for delay of delivery of Bunkers or services, no matter whether such damages or delay have been

caused by fault or negligence on the side of the Seller. The Seller shall furthermore not be liable for

damages or delay as described above when such damages or delay have been caused by the fault or

negligence of its personnel, representatives, Supplier or (sub)contractors.

K.2 Liabilities of the Seller for consequential and/or liquidated damages including but not limited to loss of

time, loss of cargo or charter cancelling date, loss of income or profit/earnings, are excluded. In any

event and notwithstanding anything to the contrary herein, liability of the Seller shall under no



circumstances exceed the invoice value of the Bunkers supplied under the relevant agreement to the

relevant Vessel.

K.3 The Buyer shall be liable towards the Seller and herewith undertakes to indemnify the Seller for any and

all damages and/or costs suffered or otherwise incurred on the Seller due to a breach of contract and/or

fault or neglect of the Buyers, its Supplier, agents, Servants, (sub)contractors, representatives, employees

and the officers, crews and/or other people whether or not on board of the Vessel(s). The Buyer

furthermore undertakes to hold the Seller harmless in case of any third party institutes a claim of whatever

kind against the Seller whether direct or indirect relation to any agreement regulated by these terms and

conditions. Third party shall mean any other (physical or legal) person/company than the Buyer.

K.4 No servant, supplier or agent of the Seller/Supplier (including independent (sub)contractors from time to

time employed by the Seller/Supplier) shall be liable to the Buyer for loss, damage or delay, while acting

in the course of or in connection with its employment and/or agency for the Seller. Without prejudice to

the above every exemption, limitation, condition and liberty herein contained, and every right,

exemption from or limit to liability, defence or immunity of whatever nature applicable to the Seller or to

which it is entitled hereunder shall also be available and shall extend to protect every such servant,

representative or agent of the Seller and/or the Supplier acting as aforesaid.

L. EXEMPTIONS AND FORCE MAJEURE

L.1 Neither the Seller nor the Seller’s Supplier shall be liable for any loss, claim, damage, delay or demurrage

due to any delay or failure in their performance under this Agreement (a) by reason of compliance with

any order or request of any government authority, or person purporting to act therefore, or (b) when

supply of the Bunkers or any facility of production, manufacture, storage, transportation, distribution or

delivery contemplated by the Seller or Supplier is interrupted, delayed by congestion or other event (also

see Article G.3 above), or by unavailability of product and/or barge equipment or by inadequate

resource for any cause whatsoever which interruption, delay, unavailability or inadequate resources is

not within the immediate control of the Seller or the Supplier, including (without limitation) if such is

caused wholly or partly by labour disputes, strikes, stoppages, lock-out, governmental intervention, wars,

civil commotion, riot, quarantine, fire flood, earthquake, accident, storm, swell, ice, adverse weather or

any act of God. Neither the Seller nor the Supplier shall be required to remove any such cause or replace

any affected source or supply or facility if doing so shall involve additional expense or a deviation from

the Seller’s or the Supplier’s normal practices. Neither the Seller, nor the Supplier shall be required to

make any deliveries which fail in whole or in part as a result of the causes set out in this Article at any later

time.

L.2 If the Buyer exercises reasonable diligence, the Buyer shall not be liable for failure to receive any

particular delivery if prevented therefrom by force majeure. The Buyer shall indemnify the Seller or the

Seller’s supplier for any damage caused by the Buyer, the Buyer’s agent or employees in connection with

deliveries hereunder.

L.3 Declaration of Force Majeure shall be given without unduly delay once such event(s) have come to the

knowledge of the respective party declaring same. However, under no circumstances and for no reason

whatsoever, can Force Majeure entitle the Buyer not to pay promptly any invoice of the Seller.

L.3 In the event that the Seller, as a result of force majeure, can only deliver a superior grade of bunkers, the

Seller is entitled to offer the said grade, and the Buyer must accept delivery thereof and pay the

applicable price.

L.4 (a) These Terms and Conditions are subject to variation in circumstances where the physical supply of

the Bunkers is being undertaken by a third party which insists that the Buyer is also bound by its own terms

and conditions. In such circumstances, these Terms and Conditions shall be varied accordingly, and the

Buyer shall be deemed to have read and accepted the terms and conditions imposed by the said third

party.

(b) Without prejudice or limitation to the generality of the foregoing, in the event that the third party

terms include:

(i) A shorter time limit for the doing of any act, or the making of any claim, then such shorter time limit

shall be incorporated into these terms and conditions.

(ii) Any additional exclusion of liability clause, then same shall be incorporated mutatis mutandis into

these.

(ii) A different law and/or forum selection for disputes to be determined, then such law selection and/or

forum shall be incorporated into these terms and conditions.



(c) It is acknowledged and agreed that the buyer shall not have any rights against the Seller which are

greater or more extensive than the rights of the supplier against the aforesaid Third Party.

M. BREACH/CANCELLATION

M.1 Without prejudice to any other remedies and rights, the Seller shall have the option immediately to

cancel the Agreement in full or in part, or to store or procure the storage of the Bunkers, in whole or in

part, for the account and risk of the Buyer and to charge the Buyer the expenses thereby incurred, or to

hold the Buyer fully to the agreement, or take any other measures which the Seller deems appropriate,

without prejudice to its rights of indemnification, without any liability on the side of the Seller, in any one

of (but not limited to) the following cases:

a) when the Buyer, for whatever reason, fails to accept the Bunkers

in part or in full at the place and time designated for delivery;

b) when the Buyer fails in part or in full to comply with its obligations

to pay any amount due to the Seller and/or provide security as

set out in these GTC;

c) when, before the date of delivery, it is apparent in the opinion

of the Seller that the financial position of the Buyer entails a risk

to the Seller;

d) when, in case of force majeure, the Seller is of the opinion that

the execution of the agreement should be cancelled.

M.2 The Seller may terminate any Agreement with the Buyer in whole or in part, in

its full discretion, upon the breach of any provisions hereof by the Buyer or in the event that the Buyer fails

to make or suspends payment, ceases to carry on business, makes an arrangement with its creditors or

undergoes any form of bankruptcy, administration, re-organisation or asset rearrangement.

M.3 The Seller has the option to immediately cancel the Agreement for the account and risk of the Buyer if at

any time the Seller, in its sole discretion, has reasonable grounds to believe that:

a) The Vessel; or

b) The Charterer of the Vessel; or

c) The fully or partly Owner(s) of the Vessel; or

d) Any officers of the Vessel; or

e) The Operator and/or Manager of the Vessel; or

f) Any other person or entity in any way related to the Agreement or delivery is/are

1) Iranian(s); or

2) Related in any way to Iran or Iranians; or

3) Listed on the US OFAC Specially Designated Nationals List; or

4) Covered by any US, UN- and/or EU sanctions; or

5) Covered by any sanctions of any other jurisdiction and/or administration.

Under no circumstances can the Seller be held liable for any loss, delays, claims or damages of whatever

kind suffered by the Buyer due to a cancellation under this Article.

The Buyer must inform the Seller immediately the Buyer becomes aware of or has reasons to believe that

any of the above items a) to f) in combination with any of the above items 1) to 5) are fulfilled/apply.

Should the Buyer breach its obligation to inform the Seller, the Buyer shall fully indemnify and keep the

Seller harmless for any damage or loss caused by such breach, including consequential or liquidated

damages.

M.4 The Buyer acknowledges that any agreements with the Seller and any actions related to such

agreements as well as any interaction with third parties related to such agreements are covered by

certain anticorruption laws and regulations which can include any anticorruption law, including but not

limited to the U.S. Foreign Corrupt Practices Act (“FCPA”), and the UK Bribery Act. Therefore, the Buyer

declare to comply with all applicable anticorruption laws and regulations and agrees that the Buyer has

not, and will not, offer, promise, pay, or authorize the payment of any money or anything of value, or

take any action in furtherance of such a payment, whether by direct or indirect means, to any public

official or private individual to influence the decision of such person in the performance of his duties to a

government or to his company. Any breach of this clause will void the related Agreement and in the sole

discretion of the Buyer any other Agreement between the parties, making any claims for payment,

delivery or any other obligation of the Seller under this Agreement void. The Buyer is liable for all and any

costs or losses incurred by the Seller due to such breach and/or an Agreement becoming void as a

consequence.

N. SPILLAGE, ENVIRONMENTAL PROTECTION

N.1 If a spill occurs while the Bunkers are being delivered, the Buyer shall promptly take such action as is

necessary to remove the spilled Bunkers and mitigate the effects of such spill. Without prejudice to the



generality of the foregoing the Seller is hereby authorised by the Buyer in the absolute discretion of the

Seller, but at the expense of the Buyer, to take such measures and incur such expenses (whether by

employing its own resources or by contraction with others) as are necessary in the judgment of the Seller

to remove the spilled Bunkers and mitigate the effects of such spill. The Buyer shall cooperate and render

such assistance as is required by the Seller in the course of the action. All expenses, claims, costs, losses,

damages, liability and penalties arising from spills shall be borne by the party that caused the spill by a

negligent act or omission. If both parties have acted negligently, all expenses, claims, losses, damages,

liability and penalties, shall be divided between the parties in accordance with the respective degree of

negligence. The burden of proof to show the Seller’s negligence shall be on the Buyer. The Buyer shall

give the Seller all documents and other information concerning any spill or any programme for the

prevention thereof that is required by the Seller, or is required by law or regulation applicable at the time

and place of delivery.

O. DELAYS AND CANCELLATIONS

O.1 Notwithstanding anything else to the contrary herein, and without prejudice to any rights or remedies

otherwise available to the Seller, the Buyer, by its acceptance of these conditions, expressly agrees that

Seller has the sole discretion to cancel or to adjust prices in the event the Vessel is suffering a delay

exceeding 24 hours from the (last) nomination date.

O.2 If the Buyer for whatever reason (including circumstances entirely outside Buyer’s control) cancels the

Agreement, where Order Confirmation has been sent by Seller, the Buyer shall be liable for any and all

losses suffered and liabilities incurred by the Seller and/or the Supplier as a result of such cancellation,

including, but not limited to, barge costs, re-storing of the Bunkers, and hedging costs, and also in Seller’s

sole option any difference between the contract price of the undelivered product and the amount

received by the Seller upon resale to another party or, if another buyer cannot be found, any market

diminution in the value of the product as reasonably determined from available market indexes. These

losses and liabilities shall be indemnified by a minimum amount of USD 4,000 by way of agreed minimum

liquidated damages, and shall be indemnified in full if they in total exceed USD 4,000.

P. LAW AND JURISDICTION

P.1 This Agreement shall be governed and construed in accordance with English law.

The 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not

apply.

Except for circumstance referred to in Clause P.5 below all disputes arising in connection with this

Agreement or any agreement relating hereto, save where the Seller decides otherwise in its sole

discretion, shall be finally settled by arbitration in London, England in accordance with the Arbitration Act

1996 (or any subsequent amendment).

P.2 In the event that the Seller determines to refer any dispute to arbitration it shall be referred to a tribunal

of three arbitrators consisting of one arbitrator to be appointed by the Seller, one by the Buyer, and one

by the two arbitrators already appointed. Each member of the tribunal shall be a full member of The

London Maritime Arbitrators Association (the ‘’LLMA’’). Either party may call for Arbitration by service of

written notice, specifying the name and address of the arbitrator appointed and a brief description of

the dispute(s) or difference(s) to be the subject or the Arbitration. If the other party does not within 14

days serve notice of appointment of an arbitrator to arbitrate the dispute(s) or difference(s), then the first

moving party shall have the right without further notice to appoint its own arbitrator as sole arbitrator and

shall subsequently advise the other party accordingly. The award of the sole arbitrator shall be binding

on both parties as if he had been appointed by agreement. Provided each party appointed their own

arbitrator then these two arbitrators shall jointly appoint the third arbitrator. In the event that the two

arbitrators fail to appoint a third arbitrator within twenty days of the appointment of the second

arbitrator, either party may apply to the English courts for the appointment of a third arbitrator.

Any disputes to be referred to Arbitration are to be determined in accordance with the current LMAA

terms unless the parties agree otherwise.

P.3 Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the

appointment of a sole arbitrator.

P.4 In cases where neither the claim nor any counterclaim exceeds the amount of USD 100,000 (or such

other sum as the parties may agree) the Arbitration shall be conducted in accordance with the LMAA

Small Claims Procedure current at the time when the arbitration proceedings are commenced.

P.5 The General Maritime Law of the United States shall always apply with respect to the existence of a

maritime lien, regardless of the country in which Seller takes legal action. Seller shall be entitled to assert



its rights of lien or attachment or other rights, whether in law, in equity or otherwise, in any jurisdiction

where the Vessel may be found.

Without prejudice to any other Clause herein any disputes and/or claims arising in connection with these

conditions and/or any Agreement governed by them, any dispute and/or claim arisen in connection

with a Vessel detained by Seller at any port, place or anchorage within the United States shall be

submitted to the United States District Court for the Southern District of New York.

P.6 If any procedure of any nature whatsoever is instituted under Clause P.5 above, in connection with any

controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, the

prevailing party shall have the right to recover from the losing party its reasonable costs and attorneys’

fees incurred in such proceeding.

Q. VALIDITY

Q.1 These terms and conditions shall be valid and binding for all offers, quotations, prices and deliveries

made by the O.W. Bunker Group, any associated company, representative or agent as of September 1,

2013, or at any later date.

Q.2 These terms and conditions are available at the website www.owbunker.com, on which site as well the

Sellers may notify amendments, alterations, changes or verifications to same. Such amendments,

alterations, changes or verifications are deemed to be a part of the entire terms once same have been

advised on the website.



http://www.owbunker.com/

Exhibit L



1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

O’ROURKE MARINE SERVICES L.P., L.L.P.

Plaintiff,

v.

M/V COSCO HAIFA, IMO NO. 9484338, her engines, apparel, furniture, equipment, appurtenances, tackle, etc., in rem;

and

M/V COSCO VENICE, IMO NO. 9484405, her engines, apparel, furniture, equipment, appurtenances, tackle, etc., in rem;

Defendants.

Civil Action No. __________

VERIFIED COMPLAINT

IN ADMIRALTY

NOW COMES Plaintiff, O’ROURKE MARINE SERVICES L.P., L.L.P. (hereinafter

“OMS” or “Plaintiff’), against the M/V COSCO HAIFA, IMO NO. 9484338, her engines, apparel,

furniture, equipment, appurtenances, tackle, etc., in rem; and M/V COSCO VENICE, IMO NO.

9484405, her engines, apparel, furniture, equipment, appurtenances, tackle, etc., in rem

(hereinafter collectively referred to as the “COSCO Vessels”); and alleges and pleads as follows:

Jurisdiction and Venue

1. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1333 and the

Commercial Instruments and Maritime Lien Act (“CIMLA”), 46 U.S.C. §§ 31301-31343.

2. Venue is proper in this Court pursuant to 28 U.S.C. §1391(b).

3. This is a case of admiralty and maritime jurisdiction as hereinafter more fully

1:15-cv-02992-SAS

Case 1:15-cv-02992-SAS Document 1 Filed 04/16/15 Page 1 of 8



2

appears, and is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal

Rules of Civil Procedure. Plaintiff invokes the maritime procedures and special relief provided in

Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules

of Civil Procedure for the arrest of certain funds described below relating to the COSCO Vessels.

4. The res for OMS’ Rule C claims against the COSCO Vessels consists of certain

funds (hereinafter the “Funds”) in the amount of USD 243,754.12 deposited pursuant to a security

agreement (hereinafter the “Security Agreement”) (Exhibit A hereto) into an escrow account

(hereinafter the “Escrow Account”) within this Court’s jurisdiction on or about January 30, 2015

by the COSCO Vessels’ authorized agent, Chimbusco Americas Inc. The Escrow Account is and

will be maintained by the COSCO Vessels’ counsel, Freehill Hogan & Mahar LLP, during the

pendency of this action in accordance with an escrow agreement (hereinafter the “Escrow

Agreement”) (Exhibit A hereto) between the parties.

5. OMS expressly incorporates and adopts each and every term referenced in the

Security Agreement as if repeated herein verbatim.

6. Pursuant to the Security Agreement, the COSCO Vessels agree to the in rem

jurisdiction of this Court, and their appearance is made whether the vessels are lost or not lost and

irrespective of the presence or absence of the vessels within the jurisdiction of the Court. See

Exhibit A. Furthermore, the parties agree that the Funds shall be treated in all respects as if

deposited into the registry of the Court of the Southern District of New York, and held in escrow to

satisfy any final judgment rendered by the Court, or settlement between the parties, in relation to

the claims at issue. Id. The parties further agree that OMS’ maritime liens attach to the

preliminary substitute security (i.e, the Security Agreement itself) and the monetary substitute

security (i.e, the Funds in the Escrow Account). Id.




3

Parties

7. At all times material hereto, Plaintiff OMS was and still is an entity organized and

existing under the laws of Texas with its principal place of business at 223 McCarty Drive,

Houston, Texas 77029.

8. Defendant M/V COSCO HAIFA, IMO No. 9484338, her engines, apparel,

furniture, equipment, appurtenances, tackle, etc., is a vessel registered under the laws of Hong

Kong.

9. Defendant M/V COSCO VENICE, IMO No. 9484405, her engines, apparel,

furniture, equipment, appurtenances, tackle, etc., is a vessel registered under the laws of Hong

Kong.

10. As noted above, the res for OMS’ Rule C claim consists of the Funds which are and

will be within the jurisdiction of the United States District Court for the Southern District of New

York during the pendency of this action.

Facts

11. OMS brings this action to recover amounts indisputably due and owing to it under

two separate maritime contracts (hereinafter the “Sales Agreements”) for the supply of marine fuel

bunkers to the COSCO Vessels. Copies of the Sales Agreements (and other related commercial

documents) for the COSCO Vessels are attached hereto as Exhibit B (M/V COSCO HAIFA) and

Exhibit C (M/V COSCO VENICE).

12. The Sales Agreements are between OMS and an entity named OW USA USA, Inc.

(hereinafter “OW USA”), which was acting as agent for the COSCO Vessels when it entered into

the Sales Agreements on their behalf. Id.

13. The Sales Agreements expressly incorporate OMS’ General Terms and Conditions




4

(attached hereto as Exhibit D), which define “Buyer” as “a Receiving Vessel supplied and, jointly

and severally, her master, owners, managers, operators, disponent owners, charterers and any

person(s) who contract(s) to purchase, take delivery of and pay for the Marine Fuels.” See

Exhibit D.

14. With respect to the M/V COSCO HAIFA, the Sales Agreement bearing Order No.

25467R and entered into on or about October 30, 2014 called for the delivery of 148.44 metric tons

of bunker fuel to the COSCO HAIFA on or about November 1, 2014 at Galveston, Texas. See

Exhibit B. OMS’ General Terms and Conditions required payment for the bunkers within thirty

(30) calendar days of delivery and provide for the accrual of interest on any late payments. See

Exhibit D.

15. In accordance with the Sales Agreement, OMS delivered bunkers to the COSCO

HAIFA on or about November 1, 2014, at Galveston, Texas. In connection with the delivery, a

Bunker Delivery Note was signed by the Vessel’s Chief Engineer and stamped with the COSCO

HAIFA’s stamp, acknowledging that the delivery was subject to OMS’ General Terms and

Conditions. See Exhibit B.

16. The total amount owed by the COSCO HAIFA and her agent, OW USA, to OMS

for this delivery is USD 122,457.85. Id.

17. Pursuant to the Sales Agreement and OMS’ General Terms and Conditions, the

payment deadline for the COSCO HAIFA bunker delivery was December 1, 2014. OMS has

never received any payment for its delivery to the COSCO HAIFA, and OW USA and the COSCO

HAIFA have therefore breached the Sales Agreement for the COSCO HAIFA.

18. With respect to the COSCO VENICE, the Sales Agreement bearing Order No.

25394R and entered into on or about October 31, 2014, called for the delivery of 150 metric tons of




5

bunker fuel to the COSCO VENICE on or about October 31, 2014 at Galveston, Texas. See

Exhibit E. OMS’ General Terms and Conditions required payment for the bunkers within thirty

(30) calendar days of delivery and provide for the accrual of interest on any late payments. See

Exhibit D.

19. In accordance with the Sales Agreement, OMS delivered bunkers to the COSCO

VENICE on or about October 31, 2014, at Galveston, Texas. In connection with the delivery, a

Bunker Delivery Note was signed by the Vessel’s Chief Engineer and stamped with the COSCO

VENICE’s stamp, acknowledging that the delivery was subject to OMS’ General Terms and

Conditions. See Exhibit E.

20. The total amount owed by the COSCO VENICE and her agent, OW USA, to OMS

for this delivery is USD 121,296.27. Id.

21. Pursuant to the Sales Agreement and OMS’ General Terms and Conditions, the

payment deadline for the COSCO VENICE bunker delivery was November 30, 2014. OMS has

never received any payment for its delivery to the COSCO VENICE, and OW USA and the

COSCO VENICE have therefore breached the Sales Agreement for the COSCO VENICE.

22. OW USA has advised OMS that it will not be making any of the abovementioned

required payments under the two Sales Agreements at issue. Additionally, OW USA has filed for

bankruptcy in Connecticut and has advised the Bankruptcy Court that liquidation is expected,

which is presumptively indicative of insolvency. OMS therefore has no expectation that it will

ever receive payment for the amounts due and owing from OW USA under the two Sales

Agreements at issue. OW USA and the COSCO Vessels have therefore breached the Sales

Agreements by failing to pay for the bunkers supplied by OMS to the COSCO Vessels.

23. By signing the Bunker Delivery Notes, the officers and representatives of the




6

COSCO Vessels acted on behalf of the Vessels and their Owners and/or Operators to procure

bunkers, and thereby accepted the bunkers on behalf of, inter alia, the COSCO Vessels in

accordance with CIMLA (46 U.S.C. §§ 31301- 31343).

24. The said bunkers delivered to the COSCO Vessels were necessary to the

accomplishment of her mission, to wit: commercial trade as merchant ships. The COSCO

Vessels’ representatives at the time of the bunker deliveries discussed herein were authorized to

order necessaries for the account, and on the credit, of the Vessels.

25. The COSCO Vessels have received the benefit of the aforementioned bunker

deliveries and are indebted to OMS and obligated to pay for the aforementioned bunkers.

26. OMS performed all conditions precedent to warrant full and complete payment for

the aforementioned bunkers under the terms of the Sales Agreements.

27. As a result of the foregoing, OMS possesses maritime liens on the COSCO Vessels

for the provision of necessaries, i.e. bunker fuel, enforceable in admiralty in accordance with the

provisions of Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims.

28. Additionally, Clause 15 of OMS’ General Terms and Conditions (Exhibit D),

incorporated into the Sales Agreements, provides that the “Buyer” (as defined therein) is liable

“for all sums due and owing in connection with the Sale Contract, including interest and costs.”

To date, OMS has incurred and continues to incur legal fees. OMS will supplement at a later date

with a full accounting of its legal fees for this matter.

29. Payment of all sums has been duly demanded by OMS from the Vessels and their

Owners. However, to date, the COSCO Vessels have neglected, failed or otherwise refused to

pay the outstanding aggregate sum of USD 243,754.12, plus interest and fees, which is

indisputably due and owing to OMS for the bunkers under the relevant Sales Agreements.




EXHIBIT A

Case 1:15-cv-02992-SAS Document 1-1 Filed 04/16/15 Page 1 of 17



Digitally signed by J. Stephen Simms DN: cn=J. Stephen Simms, o=Simms Showers LLP, ou, [email protected], c=US Date: 2015.02.03 15:01:14 -05'00'




Digitally signed by J. Stephen Simms DN: cn=J. Stephen Simms, o=Simms Showers LLP, ou, [email protected], c=US Date: 2015.02.03 15:02:22 -05'00'




EXHIBIT B




EXHIBIT C




EXHIBIT D





VESSEL NAME DATEEX WHARF � EX BARGE �

FLAG IMO # AGENT BARGE NAME

FOR ACCOUNT OF DELIVERY LOCATION

METRIC TONS TEMP °F. GRAVITY A.P.I. @ 60°F

DENSITY @ 60°F, Kg/m�


BARRELS ORDERED DELIVEREDPRODUCT

PRODUCT

PRODUCT

PRODUCT PRODUCT PRODUCT ARRIVAL ALONGSIDE

20

TRUCK START 20

Cst VISCOSITY @ 50°C

TRUCK FINISH 20 FLASH °F min

TRUCK START 20 SULPHUR % (m/m)

TRUCK FINISH 20 WATER % (v/v)

DEPARTURE TIME 20

PR

OP

ER

TIE

S

Remarks:

Product Grade Marpol Sample # Vessel Sample # OMS/Retain Sample # Other

The fuel supplied in this delivery is in conformity with regulation 14(1) and regulation 18(1) of annex VI Marpol 73/78 effective May 19, 2005. The undersigned certifies that this property is for use solely in the operation of said vessel in foreign or interstate coastwise commerce. It is further certified that said vessel is engaged exclusively in foreign or interstate commerce. Any purchaser who fraudulently signs this certificate without intent to use the property purchased as above stated shall be subject to all penalties provided by law. The undersigned also certifies that the quantity/grade received is in accordance either the vessel's requirements, any advice from the owners/charterers to the contrary notwithstanding. No disclaimer stamp of any type or form will be accepted on the bunker receipt, nor should any stamp be applied, will it alter change or waive the sellers maritime lien against the vessel, or waive the vessel's ultimate responsibility for the debt incurred thru this transaction. Signing acknowledges that you received a copy of our General Terms and Conditions. ANY OFFER TO SELL TO CUSTOMER IS SUBJECT TO AND INCORPORATES BY REFERENCE ALL OF O’ROURKE MARINE SERVICES, LP, LLP’S CURRENT GENERAL TERMS AN CONDITIONS A COPY OF WHICH IS APPENDED HERETO OR AVAILABLE FROM O’ROURKE MARINE SERVICES, LP, LLPTHE FOREGOING DELIVERED TO VESSEL SIGNED TITLE DATE

THE FOREGOING RECEIVED ON BOARD VESSEL SIGNED TITLE DATE




INITIAL _________________























Exhibit M



Exhibit N



Exhibit O



Exhibit P



Exhibit Q



Exhibit R



Exhibit S



482-14/MF/PlG FREEHlLL HOGAN & MAHAR, LLP Attorneyslor Plaintiff Hapag-Lloyd Aktiengcsellsohaft 80 Pine Street 14 --', ~ . ,- " . -, ,'" i'~~' ~

\: I "; 11:1 .'/ ,/ ,.,Vl.. \'. .. h \l.JI k.J Iilr

New York, NY 10005 .. (212) 425-1900 I (212) 425·1901 (Fax) Peter J, Gutowski, Esq. Michael Fernandez, Esq,

UNITED STATES DISTRICT COURT SOU'I1lERN DISTRICT OF NEW YORK

." •••••••••••• , ••• , •••••••••••••••••••••••••• , ........ """"""""""1

HAPAG·LLOYD AKTlENGESELLSCHAFT,

Plaintiff,

O'ROURIill MARINE SERVICES L.P" L.L.P" O,W, BUNIillR GERMANY GMBH, O,W, BUNKER USA, INC" ING BANK N,V,

Defendant!!.

/14CIV' __ COMPLAINT FOR INTERPLEADlCR

Plaintiff Hapag-Lloyd Aktlengesellschaft, by its attomcys Fl'eehill Hogan & Mahar LLP,

files its Complaint for Interpleader pursuant to 28 U,S,C, §§1335 and 2361 against O'Rourke

Madnc Services LoP" L.L.P" O.W. Bunker Germany GmbH, Q,W. Bunker USA) Inc" and ING

Bank N,V" and l'espectfully alleges upon information and belief as followa:

TIlE PARTIES

1, PLaintiff Hapag~Lloyd Aktiengcscllschaft (hereinafter IIHLAG1l) is an entity

organized and existing uncle1' the laws of a foreign country with its principal plaoe of business at

Ballindaum 25, D~20095 Hambul'g, Gennany,

426957.1

Case 1:14-cv-10027-VEC Document 1 Filed 12/19/14 Page 1 of 41



2, Defendant O'RoUl'ke Marine Sel'viees L.P" L,L.P, (hereinafter {'O'Rourke') is an

entity organized and existing under the laws of Texas with its principal place of business at 223

McCarty Dr" I-Iow;ton, Texas 77029.

3, Defendant O.W. Bunker Germany GmbH (hereinafter HOW Germany") is an

entity organized and existing under the laws of a foreIgn country with its principal place of

business at NeumUhlen 11, 22763 Hamburg, GOl'many.

4, Defendant O,W. Hunker USA, Ino. (hereinafter HOW USA") is an entity

organized and eXh'lting under the laws of a Texas with its principal place of business at 2603

Augusta Dr" Suite 440, Houston, Texas 77057.

5, Defendant ING Bank N,V, (hereinafter IIING") is an entity organized und oxisting

under the laws of a foreign CO\lUtl'y with its prine!1)!'!l place of business at Amsterdam Poort,

Bijlmel'plein 888, 1102 MG Amsterdum, The Netherlands, and does business in this jurisdiction,

JURlSDIC'l'lON AND VENDI';

6. This COUlt has jurisdiction avel' this action pursuant to 28 U.S.C, §133J, and this

aotion involves an admiralty and maritime claims under Fed, R, eiv. p, 9(h), inasmuch as this

action involves competing olaims to the payment for marine bunkers pl'Ovided to two oeean~

going vessels owned and/or operated by BLAG.

7. This CaUlt also has jUl'isdiction QVel' this interpleader action pursuant to 28 U.S.C,

§1335 in that: a) at least two of the claimants are of diverse citizenship; b) the dispute between

the olaimants involves funds in an amount exceeding $500,00, exclusive of interest and costs;

and c) lILAG is the stakeholder of the funds and is prepared to file the bond required by §1335,

covering amO\lllts claimed against I-nAG as more pal"ticulurly described below,

426957,1 2




8, This Court has personal jurisdiction ovcr Defendant O'Rourke pursuant to 28

U,S,C, §2361 and Rule 4(k) of the Federal Rules of Civil Pl'ocedme, Additionally, this Cm.ut

has jlU'isdiction over O'Rourke p"ll'SUant to the OW Bunker Group Terms and Conditions of sale

for Marine Bunkers (hereinafter ¢¢OW Terms and Conditions"),

9, This COUlt has porsonal jurisdiction ovor Defendant OW Germany pUl's1.mnt to the

OW TermR and Conditio"ns, Additionally, OW Germany conthmously and systematically

conducts bl.lSiness and/or transacts business in the United States as to the supply of marine

bunke1's to vessels for pmposcs ofjul'isdiction under Fed R, Civ, p, 4(k),

10. This Comt has personal jurisdiction ovcr Defendant OW USA pUl'spant to 28

U,S,C. §2361 and Rule 4(k) of the Federal Rules of Civil Procedure, Additionally, this Court

has jurisdiction over OW USA pursuant to the OW Terms and Conditions.

11, This Court has personal jurisdiction over Defendant ING to the extent that it is 01'

may be a thll'dwpal'ty beneficiat·y of the bunker supply contracts at issue in this dispute, and to the

extent that it is ,\11 alleged assignee of the receivables of OW Germany and OW USA.

Alternatively, this C01.1l't has personal jurisdiotion over ING pursuant to New YOl'k CPLR §301

as ING is engaged in continuous and systematic bmliness within the State of New YOl'k through

its New York subsidiaty at 1325 Avenue oftha Americas, New York, New York 10019.

12, Venue is pl'Opel' in this District under 28 U.S,C, §1397 andlor the OW Torms and

Conditioml,

FACnJAL BACKGROUND

13, HLAG is the time charterer/operator of the DERBY D and the manager/operator

of the SYDNEY EXPRESS (collectively the ''Vessels!~! and had all obUgauons with respect to

tho purchase and payment for the supply ofbunkel's to both of the Vessels.

426957.1 3




14, On 01' about Janua1'y 1, 2014, HLAG contracted with OW Germany for the supply

of marine bunkers C'bunkel's") to vessels dUl'ing the contract term of January 1, 2014, to

December 31, 2014, A copy of the contmct between HLAG and OW Germany (hereinafter

"ELAO Marine Puel Contl'flcf') and the OW Terms and Conditions as previously referenced are

attached hereto as Exhibit t

15, Thereafter, HLAG placed orders with OW Germany for the delivery of bunkers

to, inter alia, the Vessels,

16, In the normal com'so of businesfl, HLAG would remit payment to OW Germany

for bunkcrs supplied under the HLAG M~ll'ine Fuel Contract. Whatever payment arrangements

may have t>xisted downstream of OW Germany to its affiliates and/or subcontractors was

unknown to HLAG,

THE DRRBY D

17, In 01' about late October and/or early November 2014, HLAG submitted to OW

Germany an order for the supply ofhunkel'S to the MN DERBY D, and bunkers were·provided

at the Port of Houston, Texas, ostensibly by O'Rourke, (Copies of the relevant purchase, sale

and delivery documGnts are atmexecJ hel'eto as Exhihit 2,)

18. HLAG has not been invoiced by OW Gcrmany for the hunkers supplied to the

DERBYD.

19, HLAG has received notification from O'Ro\l1'ke that it invoiced OW USA

$39,102,90 for the bunkers supplied to the DERBY D but has not been paid and has therefore

demanded that HLAG remit payment in the aiol'esaid amount to 0 'ROlul:e,

20, ELAG has made no payment with respect to the supply of bunkers to thc DERBY

D, and competing claims have been or may be madc by Defendants against HLAG and/or that

426957,1 4




vessel assorting entitlement to the payment from HLAG. Threats have also been made to ancst

the vesseL

THl~ SYDNEY EXPRESS

21. In at' about late October andlor eady November 2014, HLAG submitted to OW

Germany an Ol'del' for the supply ofbunkcl's to the MfV SYDNEY EXPRESS, and bunkers wore

provided' at the Port of Houston, Texas, ostensibly by O'Rourke. (Copies of the l'clevant

purchase, sale and delivery docmnents are annexed hercto as ExhibIt 3,)

22. HLAG has bccn invoiced $136,000,00 by OW Germany fol' the blmkel's supplied

10 tho SYDNEY EXPRESS,

23, HLAG has received notification from O'Rourke that it invoiced OW USA

$140,224.39 for the bunk.ers supplied to the SYDNEY EXPRESS but has not been paid and has

thcrefore demanded that HLAG remit payment in the aforesaid amount to O'Roul'ke,

24. HLAG has made no payment with respect to the snpply of bunkers to the MlV

SYDNEY EXPRESS, and competing claims have been 01' may be made by Defendants against

HLAG andlor that vessel asserting entitlement to the payment from HLAG. Thl'eats havo also

been made to alTest the vessel.

CAUSE OF ACTION ~ INTEHPU~ADER WITH RESPECT TO THE MN DEnnY D AND MIV SYDNEY

}j',Xl'RESS

25. Plaintiff repeats and l'CaSselts each and every allegation set forth above in

pmugl'aphs 1·24, inclusive, as iffully set forth at length hel'<~in,

26, There are variOlls competing interests for tho amounts duo and owing by I-ILAG

for the bunkers supplied to the DERRY D and SYDNEY EXPRESS, including but not limited to

a claim by OW Germany and/or OW USA fol' payment under the HLAG Marine Fuel Contract

(Ex, 1), a claim by ING as PlltPOl'ted assignees and/or seoured parties, and a claim by O'Rourke,

426957.1 5




the purported physical supplier of the hunkers, asserting a maritime lien against these two

vessels,

27, HLAG is unsure of which party to pay for the bunkers supplied to these two

vessels and accordingly has not made any payments to anyone in response to the competing

demands,

28, Based on the foregoing, -HLAG, a disinterested stakeholder, has been and will be

subject to mult!ple claims fol' payment fol' the bunkers supplied to the DERBY D and !he

SYDNEY EXPRESS, and the Jntemsts of the defendants in the property suqject to this

interpkadcl' arc adverse as thore is a dispute as to which entity 01' entities are entitled to payment

from HLAG for the bunkers,

29, HLAG has a reasonable fOllt' of multiple liabilities because oftheso adverse claims

including, but not limited to, the threat of In rem seizure of the Vessels 01' other pl'ollel'ty owned

01' operated by HLAG,

30, In accordance with 28 U,S,C, §1335(a)(1) and 28 U,S,C, §2361, HLAG has 01'

wi!! post a bond covering and secul'ing the indebtedness to the appropriate party (once

dete1'mined by the ComO, and is therefore entitled to relief in the forID of: (a) an order

compelling any and ,,11 claimants, including Defendants, to file in this pl'oeeecllng theh' claims for

payment for the bunkers supplied; (b) an ardor) in accordance with 28 U,S,C, §1335(a)(1) and

§2361, prcchlding the commencement of 01' continuation of any action 01' proceeding anywhere

to recover payment relating to the supply of the bunkers, inoluding but not limited to urrest,

attachment 01' other restraint of the vessels 01' uny othOl' pl'Opelty of HLAG; and (e) ultimately, an

order determining the palty 01' entity to which payment should be made and discharging HLAG

426957,1 6




from any liability afiet' payment (as seemed by the bond) is effccted to the party or entity so

designated by the Court to receive the payment for the s1.1pply ofthe bunkers to the Vessek

PRAYER FonR"ELIEF

WHEREFORE, PlaintiffI-ILAG respectfully prays that:

1, Process in due fOl'n) be issued to the defendants citing them to appeal' and answer

the complaint, failing which a default can be taken;

2, Approve the bond tendcred by IILAG;

3, . Issue an immediate ol'dcr, in accordance with 28 U,S,C, §1335(a)(1) and §2361,

preoluding the commenoement of 01' the continuation of any action 01' proceeding anywhcre by

the defendants (01' any numbcl' of them) to reoove1' payment rolating to the supply of tho bunkers,

, including but not limited to an order precluding the arrest, attachment Qt' other restraint of the

vessels DERBY D and SYDNEY EXPRESS 01' any other property of HLAG 01' the owners of

the Vessels 01' any other entity within the same management;

4, Direct the defendants to file their claims for payment i'elated to the supply of

bunkers to these vessels in these pl'Oceedings fol' the Court to adjudicate the propel' entity to

which payment is due; and

5, Declare, upon such determination and payment, as secured by the bond, that

HLAG is discharged from all liability with respect to the supply of the bunkers as to all other

parties and entities; und

3, That HLAG be awarded such other and fm'tl101' l'cliefwhich this Court may deem

just and propel' including but not limited to the attorneys fees and cost'l to which HLAG is

entitled under the relevant statutes,

4?6957,1 7




Dated: New York, NY Deoember 19, 2014

426957,1

ittcd,

Peter J, G to ski Miohael Fel'11undez 80 Pine Street New York, NY 10005 (212) 425·1900 / (212) 425·1901 (Fax) Allol'ney" for Plaintiff, Hapag"Lloyd Akttengesellschaft

8




· ,

Exhibit 1

I




® Bunker

Seller

Port of delivery

contrnct term

-No; product

.---...

ARA M oontract

: ow Bunkor Germany GmbH

: Hapng Lloyd AG, Hamblin.!

: Antwerp (ANR) Rottl'lrdlltn (RTD)

-Antwerp Ilottcrdam Lot slle

min Lot Slw Formula m{lx---_.-

Low on Platts I'FOa ROAM 1 RMG 380, max.3,!iO% $ulfll~ 150,000 15,000 300 5,000 8ARGF.S, ,3,S peT HSFO" -_. -- --.-

2 RMK700 or RMK 500 or low Of) Platts "roa"RDAM" 25,000 35,000 200 ;woo

is-JiM~Jl'a)(, 1,00% sulfur

~ f---- nAHGE~ 1,0 PCT HSFOi'

HMK 50Q or RMG 3601 111/1)(, 50,006 10,000 200 2,000 low on Platts "FOB ROAM

100% sulfur MRGE.'!! l.O PCT HSFO II

~- f---6 RMG 380, max, 1,00%

140,000 20,000 200 2,000 Low on Platts "fOB ROAM 5ulphU( _~AI\GES, 1,0 rcr HSFO" ----- --

7 DMZ ma)(, 0,;1.0% sulphur or f----

Low on platts "FDa RDAM ;:0,000 20,000 SO 500

_ DMA maf,o,10li sulphur ---- BMGI:S, GASOI.L. 0,:1% "

Tho above mentioned quantities are Indlcatlve find the buyer Is allowed to Bl<ccod or reduco the quantftles alone with bUyers requlroments In the ~Rove m.el$]onnd ports by +/:W%,

Preplannlng

Nomlnutlon

Pricing

Quality

Quality !l\Hlr~ntee

: monthly IJropillnnlM schedule to /)a sen~!n advancl,'l (at least 5 days before the end of the month) fOI' the-follo,wlllB month

i minimum 7 working duys prior to f.TA,

: 1\ Wor~II\~ days priOf to ETA,

I Antwerp: Rotterda,ml

)SO 8217:2010 (E) ISO 32J:1:2010 (P.)

: Seller gua(~ntees n mllx clallY! rate ,of 3% 01 totel suppllod volume, In case seller exceed the maX claim rate lin additional dl~c()unt of 0,25 usd/mt to apply on ~!I,~u$pl1()d Volume, Th!swlll be cakulated on a qUllr.t~rly basl~, A, dalm Is determined as a supply <;ondllctod out;ldll th<l prociuct specification st'(lted In thli contract. Volume dlfferel\c!;lS due to densltyexclw;led,

Rebate I Premium FIXED

" 2,00 "-----"70/00 -~

. 2100

·2,00

" nloo




Contlllct I(PI's

sulphur level Confidante laveI97,50%

Max. CCAlllmlh

En~r!!y

Quality

SUJpllUl'

Pllymcnt T~rms

Mox, claim notlta perlod

Termination perlo'd

Term. und Conditions

Hapaglloyd AG (Buyer)

® B~.mker E~~h contract wI!! be OV<llva(ed on q\lllrterly Chmllty meetings' with Imtlclplltlon <,If the releyant st"k(li)olders from both the ,buyer and seller

I 3/50% ,1,00%, : 3,29% 0/9;1%

I IlMG 380. 1'1111)(, 85S RMK SOO maJ(, $70 "MI{.700 l'r'la)(, 870

: Specific EnsrBY as per ISO parameters (net calorific ElnElrgy) pf 40,00 MJ/Kg for all MilrlnEl FUElI Oils Is aimed but n'ot'gunf~nteed (espedally for RMI( products), '

! Seller hilS to ~nsllre the product' delivered 15 derived from petroleum crude,ol! end, must n,e)ther (;ontnlm contamlnflnts (1,1'3, chemical wilsto, poIYp(opyleh(J, us()d lubricantsl abrHslVa ll'lllterials) nor blending compoMnts' derived tram coal (lnd ~ha ~ dlstJ!I~ tlons proceSses, In ellse ilflllly~l~ lrollll!l3ai semple .hows any added sUbstanc\,,:$ IIko DC?D, StyfatlEl, Phenol, 1-8utanol, Indene,l PhenYI-athanol selle)' Is fully re$ponslble,fQ( aJi possible eonsequenc(Js Including but not Ilmltod to dll'(lct and Indirect dumas~s to the vessel's enghie,

: LSFo fitted for USe In SECA's, In ~tlS6 flr.st an\lly~ls exceeds 1,00 % level, the rbsult of the r6presellt~tlve snmple, sealed and shmed by bot~ parties will be final and binding for ~II parties,

: 30 doys after deUvery

160 CAL~NOAR DAYS OF TH1: LlATt; or DWVERY fOil T!:RM CONTRACTED LOW SUl.PHUR FU~l OILSUPPL1f!S IN ANTWERP OR ROn~R'oAM, 30 CALENDAR DAY~ oFTHe DATE OF DtLlVERY FOR SUPPLI!;S IN i\LL REMAINING PORTS WO!1lD,WIQ~

: 60 days from botll sides otherwise till end of 2014

: I1vpas Lloyd AG's stondard tIlrm;; and conditions version Z014 to apply, (version ·1.11,;1849,00 156Z3S34)




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page 2 of 5




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UN~!!,'l.~ 11,'11'1.1(:1')'1,\' lI(I)lliW> ul'(m IN IVllfTINd tllfl'IY!!I1N SIlLLRRS liN!) IlIJYtms PIInmNT IN UN 1)0I.l.M',~ 1'011 Tilli "I'\IJ'!I," DUI.!VIJIUm 11'11.1, Bli I\I'AII,lllll,I,( 'I~) 'nIH SJII.I,nll',~ ACCOUNT WITIIiN "IIIR1Y CIII.llNI)AIl PO) IM\,~' Al'l1m 'Ilill tOhll'l,lI'I'ION or DI:Ul'llnV Olll'WI'I!llN \ 1,1) IWNNINQ CALIlNI)M 1.11\\'11 Ai!'I'~1\ THllllilCIlIP-r or '1'1111 ,~II~l.!ms' INVOICE, WIIIL'IIHYlliI I,~ '1'111; 1.lI'l'fli\,

/\1'1'1' Illll,ilV IN I'll YMliNT SIIIIU. IlN'I'ITI,!l TII~ S61.1,r.Il,~ TO IN11!llr.~'I' 1I'I"I'IIP.I\A'fl! Ol' I~% ['!lIt I\NNIIM, SEI,I,HlI~ RIMI,I, INI'OIIM IIUi'HItS OP ANi' OUTm'ANt)lNO M \'MIlN1' \VITI'IIN ) WOllkIN(1 IMY~ /I),oW11 {)Uli 1,M'i1? (')1' INVClICIl

:lIiLl.lm~ ~I.J,\I.I, INI'{)IIM UU'I'lms 01' IINV ()1!'I'll'!'I\/oiDINO fA i'MBN'!' \VITI'IIN ,I WOIlKINt) 1M I's AFI:rm DUH I)ATI(oI' INV()ll.'li.

'I'WI INI'OI("P, IIA,~ TO 1f.'(:I,LiIJ[j rlllJ t-MMIl OF li-lll IIllCl!IV1N(I \%~Slll" 'fl'(!l !)IJNKrl.RIN(1 POIlT, Tilil IM'm 01' 1)!>1,II'URY, TIll! 1\1,11'IliliiNCIl nil '1'1·111 JlIIYIlIIS, MAltT I!IIO,,", 1)I!S(.'liII''I'ION OI/TIIU QUIIN'ITI'Y 1\1011) QlIAI~T\' ~tIl'PI,lIl1,l,

ANY I)lQI'UTII 'Tn 'II, 'II T , , 1)IH,IVIiRY I 1')1 'I II' , "

page30fB




TI'[1l IlUYIlI<~ IN WIUTINCI WITIlIN 16 Oi\l,11Nl)i\It IlII Y~ I'HOII-I TIll! DIITU Ol! ))BLIVllllY, I',\)I.IN("I WHICH ANY SUCH CI.AIM SIMI.L ijrr ))IWMP.P '\'0 HI! WAIVR)) ,\N)) A\'l~QW1'~I,y MRRllP.

ANY CL,\IM 1\11 TO 1'Hli (JIMI,)T\' on OHllGRiI'TION 01' TIIIl "11unl," MUST Illl N(YI'U'HlI) IN wnlTINa Nl0MI''j'k\' AII'I'llli '1'1·111 r;lI\Cl,IMWI'I\NCIl~ ClIVINQ nl,~1l TO SUCH OI,AIM 1-11\ Vil llil!iN !)!,%~OVllmm, III '1"!-lIllluYmi,~ PO NO')' NO·IWY 'nm ,~!ll.I,I:IlIiOI'M.Jt' I ClAIM WITHIN I . 60 C'/\I.JlNIMli I),WS OP TI·II!I)I\'j'r. ()It Plll,)vIlIIY l'OIl TIl.J.lliLJ'J2lf£lllIr,·Wn LQW IW).I'IIUg [/Iml, 011, ~urp),m~ IN AN'IWtlIi)' Oil RO'ITlmIMh·I, ,OCI\I,I!NDAI\ 1M I'll 1)1"fl·m j)j\'i'r, OF DI11,)V)lItV FOll SUI'PI,IIJ~ IN 1'11,1. IWMAININ() 1'()I1.']'!I WORI.I) W)I)I1, 'I'HEN THOSH CIIWUMSTANCli1l SHALl, llB P~IiSUMli() NO')' 'ro III1VlIllUIlN CAU~IlI) BY Ill'll' DIIFICIIlNt':Y IN TJ-!Il QUIII.!rY ol~ PIl;L'I\lrTIQN or 'rIUl 'PUIl!," SUl'pLIlm AND ANV SlI{'H t;:1.r\IM ,~IIIII,I. Ill! DI)"!lMm .I'Q flU WAIV")) IINll AIJ~O!,IJTlli. \' lliWRI!)),

IN Ti"lllllVIlNT 'll' A (,I,AIM liS ·1'0 QUAlJ'!'')' IINI) 1)I!st'llIl"I'I()N Tlllll'll)nlllS ilEliliTo SHIII,l, HAYIl 'frill Q\JIII.ITY Oil THE "1IUIl)"" MlAl.YSI1P Ill' II MlfrUAl.L\' 1I0IiI11(1), QI.iALII'IIH1 Mm INPIW~NPfil'lT I-ABOIVlTolli', TI·m ~IlI,I,llIl,~ 111'1)) 'I'HU BIJI'IlIiS lllillt.l, !'1I0VII)" '1'!lI} 1.1I1l()Ili\TOIt Y Willi ONI> Of/1HI! ~I\MPWS R!lmINm), II' ~~() \lI<AI)I!,~ 1-11\1'1\ ll~IlN SI')lCll'll,l) 'I'l-iJl 'INAIXSI~ ~Hi\I.l, Ill! HsrAllI,ISI·II:lD IlY ')'IlSTS IN ACCORDANCIl WI"!'I·I ISO Hll7i I.A'111WI'Il))I1'ION 10 AN))]SO <12$9 OR IINY fitHlSIIQU!lN"(" AtI"lflNPMIlN'I·s THL!I1.~OII, IINI.IiSS O'I'HIl~WWll M'1~t~ll() ,'H11 BXl'flNSI!S 01' TIIil ANAIS$ijS SHIII,I.IlIJ OOIlNIJ IlQIJJ\IM IlY 'rIm SIlI,I.I!RS ANI>TllIlll\lYIIII.,~,

IN 'I'HlliWHN'i'O]II\NY illll,I\Y I<Il~UI;r]N(lIII\oMi TI·iIlIWYlmS 1I,\II,UltI\ 'm (])VIJ PlmPI,I! NO'l'IC);1l M·m/ol\ '!"I,ll 1l\J'{HR~ VIlSIlI!I, )lllll,lNG TO ~liCfllYn "I'UIl!," NI' 'nl!! l'UMI'IN~II1.ATIl

t mu :-mW1l\,~ I'AI~\JIW T(! COMMI1NCil DBl.lVlJltV m' '1"1·111 "11\!I\l." 1'1I0M!,'!'j.\' IN At:<:olmliNCIl Wl'fIIl'llflllUYIlRll !\11QIlII\I"iP 1)11I,IVIlHY TIMIl ANI)fq1< '1'1·111 :ml,I.I!IlS I1AI),UItIlTO DIlI,IVllli Tim ")lllEl." IN IWCORPANCR WITH 1'1111 MINIil-IIJM !-IOUIll.Y 1'1JMI'IN(1 nll'l"li , Tl-IllN THr. PAR')'Y Sl.lFFflIliNO SUCII ,\ Im,Ai' SIMI,{. IJr' IJNTlTI.I1I) TO COMPllNM'l"It)N I'ROM '1'1011> OTHIlR I'AI\'rV FO~ 1'1-11\1' DIlLIl y,

1,1, HJfJl,Il'I'IU;

HI,~I{ IN 'filii o-l>ll\JNIi rUlli, ,~IIALI, I'A~~ TO TIJI.lIlUYllllS ONC!! ')"I 1(, "1101(1." 1·IAil M~Hlll) THI! I'LI\N(]1l (.'ONNIlC'j'IN(1 ')'ll!i VlmXI!!,'~ nUN"lill /l"II\NlFtlLD WITH 'nm I)HI,IV\!I\~' IW'ILITln~ j'IWVlrJlJI) f.\Y Trill Slll.Lll~~, TITI,(, TO TI·1Il MAII!Nfi 1'\)flL,~ 311AI,I, f'I\X.~"),(l HlllllllYliitS \II'ON 1'III'MI.'Nl' FOK TI!I; V,\~I)I! 1m 'Illlll<1AIIIN~ l'Ulil .. ~ Dlll,IVIHlI',)), UN'~I, ~\K'1"l )lOY/ylnNl' HM llimN MAD(J, '1'lIll SIlW211$ ~IIA(.!..IIAVI! 'l'I·II! IWIH'I' OIII,!!!N ()VIm 'I'l1ll h-IAUINIJ liUI!l.~nn.l mllm, . ,

I~, C,\i'iCI·:I.LNI'I(I""

J!l THu \'B,%l!I. )/,111$ TO ,\11111Ytl 11"1' '!"liB 1>!.lIel~ 'or ))1!I.lI'HRY WITHIN n HOURS l'I;oM 'rim IlATll NOh·IINt\'l'imllJ.~TIMAllm TIM[; 01' AI\I\II'/Il. 1\8 ,~'I'ATI\D IN rl-IB I)UVB!IS' rU!K:H,\sa 01101;11, l1I'IH(l!\ 1'111\'1'\' 1Ii\~ Tim OIlTION 'I'l) CANCUI, Tim 1)!!UVIlRY l)jl "1'11111,"IMMI1DI,\"j'III.Y II'ITIRWT IN~'U~I\INO AN~r l-irlBII,I1'Y WIIATSOIWRn,

NI!!'I"llllli i'III\T), ,~HAI,1. BIlI(H,WONSIIlLIl 1'011. IINY I,OSS, »AMA()j/, 1)Il1,AY ()II 1'i\I!.urm IN i'1l!lI'O~MANCr, UND!lI\ 'l'1·n;SII TWIMN IWSIII.TIN() l'nOM '!"HI! ACT 01' oop, Oli '1'1·111 I'OR'I' 01' 1)!!I,IVUJ1.Y IlI1INO i\WIlC'TIlO 11)' STOI\~'I~, FI,ll()l),~, \1'1\1\, CIVil, C'OMI<IO'j'ION, 1\10'1', 'mUl, SIIDO'j'i\(iU, QUAI\AN·I'IN~, srHIKIlS, STOI'I'1I0R,q, 1,Qr.:'I(,Oll'm, ARRr,S'l'~, DI!'I'AINMf;Nrs 011 I<IN<m, I'I\IN~~"S, nUL!!I\~ M·M 1'!lOP/.S, ACT,~ or 'l'Il!\«')II!~M OR IINY OTIJIlI\ lJV\JNT IHWONIl TI·mm (.'ONTI\Ol, AnlSlNO "!'lUIl. !l(IIU!!!INO ,1·lImu 'l'UI1.M~ IVllit';)l C,\NNOT fm AVOlorm Oil <IIJAI\I)IlD MlAINlil' UI' 'I"HR I1XIll\CISIl OJ! l)iJl1 1)i!.IOHNCI!. 01\ Tim Ct)NHt:QU[lNCIl3 01' WIlICII, !\II MAY Al'I'l!t:T Tim i;N.WW~~"'i~(,1l 011 'Hm})ll 'l'UI1.MS CIINNO'i" IlI1 III'Om!!!> OR 9UAI1D.IiJ) AOAIN~'I' IIY .1'I1fl IlXIlRCISli (II' {lUll

1'1, Srll'l~'I'I' tII"?u TIlI>I>'~'Vll\oNM"N'r

IN TI·m 11VIlN'I' OF ANV SI'ILI..A\ill, WHICI·I ~HAI.I. MUIIN flNY UM1{1I01l, !l8CAI'Il, SI'ILI,AOn .OR QVURPWW 01' THIi "I1UI11,", C'Al)SINQ 01\ I,)~m.,\' TO CAlIllH 1'00.I..U'I'ION OCGUI\RIN(J A"r I\NY s·I'AO~ (J!I·I'I·m.~l!NKm\INO OI'111\1\'i'ION, Hili ):lUYllliS lIND 'Ilia ~IlL)"JlIiS ~1·1i\l.1.. JOINTI,\'. ANI) RI;OAI\UI.l'B~ A~ ,0 WHim mil ,1 Illl)lI\'Ui,f,' 01\ nlR NIJI.I,lm,'>" I\Rr! H!lSI'ONSIIlI,Il, IMMi\I>IA'j'Gt.y TIIKI\ S\)(.'H ACTIONS AS Ali!; NHCI\~S!\~Y TO Br)l!!Cl' CLMN UP tlNI) WHIC!I SI-I,\I.l, AI,WAYS 1m CONll\.J(.'I'i(j) IN AGCOIIPANCll WI'f!I ~II(:H !..<lCIII, tAWS AND IUl(IUI.ATIONX II'HI('11 Mil\' 'COMPULSOI1.ILVAl>!'I.\',

Wllllnr, IT IS A (.'OMI'lILS{)I\Y 1\r,QUIIUJ/>:lHNT or 'nllll,I\W Or 'l"j·m I'ORTOlll'l,IICr; lW 1)1JI,]VIl!W 01' '11 IIi "I·'II!I," 11-11\1' TIIil ~I!\'\,BI\S ~Hi\I,L IIA\'IIIN rl.ACIl1)11!1R OWN 011, '111)1.1, (.'Qi'll"INOllN("Y ni\N,~, TIII~ SIJLLIlIIS SIlAI.I. IINSUlIfl

page 4 of (j




1'lirYl' VAI,II) ()II. SPit,!. CONTINOIlNCY rl,/INS 111'f'I\OVIJD IlY 'l'loiIlIHlLUVAN'I' AU'I'1I0111Tm,~ Ill\!! IN 'Wl'I!C'I' TO Tim BXTfiN1' 'l'IM'I' IS so !l1'QIIlI~IlD,

'!'I'll! SIH.I.rms 1111111)1)\' (]I!I\RANTlll.i I'll YMBI'IT 01' rll'Il;VOII rlmllill 1'0 INDIlMNIPV ,Ii'll) HOW 'I'!'iIl fHIYUI(,~ 1'lrll(M(,U~5 POR Ill'll' C!.I\IM~, 1.(),~S!lS, IMMII(lr,S, IJXPIlNSIlS, I'tiNAI;l'ms OR O'l'/illR 1,IAnII,j','IRS INel!IIRED rll' 'I'HII IIU)'IJRS \lNI)lm 1'IHI UNmm S'\',ITIlS Oil, l'OLWI'IQN ACT ()II 19QII, OR 01'HI!I\ POI,I.U'1'I0N 1.1l<lISLII'I'!ON'OI' ANY lITIITIl\)I' THII l.lN('!'IJD STA1'IiS 01' ,IMI\I1IC,I Oil Ill'll' O'I'I"llln C{)UI'I'J'nv OR JURISDICTION, liS A lillSlJI:I' Olt 111'1\' WILI,llon (K'CUIIIOH(] Wflll,S'l' TIW "FUW' IS IllllNo 'I'1l,\N~r'Oll'l'aD i)IIUlCTI')' 'm 011 PI\OM 'r!'HlIlUVIJ11S Vli@IH}S MANII'O/.!) SII VI, '1'0 'I'IJU liX'I'[lN1'Ti'ttlT suel! l!1%INIr. IS CAURHlJ In' AN\' MUI,'!' ONTH~ I'M'; Olf'l'I-IIl 11UYtll\I!, 'r1I1lIlU\'lmS SiIAI-!, ,'iIMIl",R!.\'INPI1MN]IIY THIl Sllhl.IJI\S WI-II!IU~ AN\' ql1 SUCH ~PII,I,Aaf! OCCUR.'! ONl'lllllmtlN 'rllll"I'IJllL" I'IAS PMiSHI)nm UlIYflHS V[lSSUl,'8 MIINIfIOI,I) RI\Vlll'O 'fHB f.\XTUN'I' 'H]A"IlUCH 1\ ,~rn,I,AClllll1 c.AU~UI) Il'I' AN\' I'/IUI,'I" ON Tim rA11'f 0/"1'1'''' ml!,I,I!I\~,

'rHH SIl!.!-,I!IIS ~'Hrll,1. 11N,'ilJIUl TIlIIT '1'/111 !JAHOI~ COMlll\NY IS IN~UIIllD I'QIl 011, SI'Il.!.II(l1l DAMMns UP '1'0 t. MINI~WM AMOUNT NUl INGIDIJN'I' ImQUIR(lD IlY THIl Ai'1'1,ICIIIII.ll I,octd, WI'I\'I'UWIt I' I\I)I.~,~ on RH(IU!.ATIONS, III SUCII ('(')VI1I\AOI1 0" lNI\UI\ANCfl III NO'!' OIlTAINUP [)Y '/111-1 IlIIlWB COMPilN'>' I'r SHA(..I, /lli' 'fUB ~OI.U IWHPONlllllll.I'I'I' OI''I'I'I!l SIlLWIIS TO llWI'MI.,11ll1 SUCH C()VHIWI1l FOil 'I'1-IllIR ACCOUNT, I'I\()()II AND (.'ONO!1'lONS Of SliCH (.'OVm\l\Wl; WHIl'l'I-m11 IlSTMl.ISi'lBD Il\' THP., IlARtl]; COMPANV Oll Ill' 1'1-11\ ,~Ii\,!.BR~ SHrll,l, Ill! !11MB A VAII.AIl!.!! TO THllllUYllM A'I'TI'mllt IlBQliJiS1"A11 ~OON 1\Ill'IIIICTICALLV POSSIIJ~n IINll 111ll'OIW THI! 1Jf1l.ll'llliV 9)''Il1H "rum,",

18, I"IW ,\I'I1l ,\I\IIITIlII'('ION

'I'Im 1111I1I'I'1\,ITION ~1!i\1,1, IlIJ (,ONI}I.1C'j')!I) IN ACCOfl.OANCIl WI'I'II TI'JIl I,ONl)QN ~1A[\ITlMIl MlllI'IM'I'ION I\S~()"IA'j'I(lN II,MAII) IW!,I;,~ IN FOlIC!! ATTIlI!"INm THAT'I'NI> III\Bl'fIlA'I'I{)N 1'llilCrlBDIN(13 MIll COMMP.NCIlD, TillS CONTRACT Sill'll,)' Ilil COVl1Imil Ill' ANO C~)N~'I'I\UnD IN AC:COHIMNCI! WI')'IIIlNOI,ISH I,ll\\' liN!) AN\' \l!~ru'l'B AIWiIN<I ~II1' OF 11M' mN'I1\J\cl.' ,\1-11\1.1< IIllltlll'IlRf\!lD 1'0 AIIIIl'fRII'1'I0N IN LONDON IN ilCCOHIMNCIl WITH TW! 1I1l1l1'j'B,\'I'ION M'T 1')116 on AN\, S'J'II'ru'I'O!IY MODIPICNm)N OIlIUl· nNACl'MIlN'I' 'I'I'IIlIlIlOI' f'OI\ Trill 'j'IMlllJlmm IN 1'()I\Cli, lINI.)l~S 'l'HIl f'/lIITIfW i\(11\"6 iJPON A ~OI,ll AIUlI'i'I\A'j'OR, ONI! ARlln'HA'I'{,)11 ~HAlL Ill! ArPOINTUI) Il\' AM'I! PAllT\' ANl> TIIil AHIlI'l'Ml'OllS ,~o 1IP!'OIN'I'1lI1 SlIII!.I, MP()Il'Il' ,I 'I"HlllD AIUI!'!'I!,,'I'O)l, 'nllll)I(~I~ION 0(1 '1'1111 TIJIlHll, Mill'! 'I'ltlUIJNr\1, '1'/1IIS ('ON,~'fI'l'llTm) Oil AN\' TWO Ol~ 'l'IIIlH SlIM,I, nil PIN'\!" ON Tllli,IU1CIlII"1' III' ONIlI'AI\'I'Y {W 'I'Hr; NOMINATION IN Wlll'I'INQ' 01' '1'111; OTHfJll I'ARTI"S AIUlI'I'RIITOll, '11·11\1' I'AII'!'I' SHAI,I, i\l'I'OIN'I' '11illlR ARIlI'J'lIA'I'OR II'ITI·IIN !lOUI\TlmN 1)/1 y~, rAII,INO WllieH '1'1'111 PEGlmON 01' 1'1-I1J SINaW ARlll'l'llA'1'01\ IIPI'QINTI<1) ~HA),I,llIll'INI\I" (jlm~-iI\N ["IIV mllll,I.IIP!'I,V ON 'I'Hfl "liUHl," CONTRACT WlfllNllVllH Till! SUi.I,liIlli I'IIIVU'I'HHIH PLACH OF I1USINliSS IN(Um~j,\Nl',

, 1/1< '1'1 liS L',\SIl 111,1, Dlsl'U'l'I1~ Al\WINIl ()UT 01' Oil IN coNNI!C'T[ON WITII 'l'I'II~ GONTIlIIC'l' Oil ('()N~'I!!\N[N{I Irs V,II,JI)fl'\' IiIlAl.I,llli FINALI.Y ~ll'ITI,I!I) By II)UlI'l'IIATION IN lIAMI11,JIW IN ,IC(;OI1DilNCl! 11'1'1'1-1 'l'j'lIl MIlI'I'I!,\TION 1\1,J1.Ji~ (W 'I'llii UltiUv/lli\' MAIII1'IMI! 1\IUlI'i'IlIl'I'ION ASNOL'IN['ION {OMAA),

H,\PM,tLOYIl AO

HAMU\!!(J

page50f5

JIJI,)'UII'I




OW BUNKER GROUP

Terms and Conditions of sale for Marine Bunkers Edition 2013




A.

A.I

A.2

A.3

A.4

B.

'.1

c.

C.I

C.2

C.3

GENERAL INTRODUCTION

This Is a sialamorlj of the terms and conditions according to which Ihe International O,W, Bunker Group (hereinafter called "OWB") wlll sell marIne bunkers,

Those condlHom apply 10 all offer~, quotatlons, orders, agreements, servIces and alisubsequt1nt confrac!; of whatever najure, excepl where olhofWisa Is expressly agreed In writing by OWB.

Genorallrodlng conditions 01 another parlywlll not apply, unloss expressly accepted In wIlting by OWB.

In the caso that, forwhaieYer reason, ano or more of the (sub)dau$O$ althase ganarel condillons are Invalid, the other (sub)dauses hereof shall remain valid and be bInding vponlho parHes.

DEFINITIONS

Throughout Ihls docum"mi the followIng doflnltlons shall apply; "Soller" medns OWB; any office, bronch oUlce, affiliate or msocla!e 01 lhtl OWB

"Suya!"

"sunkon"

"Owner" "Yossol"

"Nomination"

"Order Confirmaflon"

"A,gn;loment' , "Supplier"

"GTC"

"BDR"

Group; bel!ng th6 !6ga! enilty wlth!n the OWB Group, Whose name Is Included In Ihe Order Contlrrnatlon, sen! 10 the !luyar, means lhe vessel supplied and )olnlly and severally her Masler, OWners, Managers/Operators, Disponenl Ownors, Time chartorers, Bareboat Chaflerers and Chartorers or any pdlty requesllng oHers or quo!allons lor or ordorlng 8unker. and/or Sarvlce. and any parly on WhoSG behalf Ihe sold oHers, quolallons, orders and subsequenl agrGemenh or conlracl. have been made; means Iho commercial grados 01 bunker oils as genera~y oHafed to Ihe Seller's cuslomers for similar use althe lime and place oj delivery <md/or servlcss cQnnl'lcled thereto: means the reglslered Owner, Manager or Bar6boat Charlarer 01 fhe vessel: means jhe suyer's Yessel, Ship, Bargo or Off-Shoro Unit that receives the supply/bunkors; eilhor as end-user or as transfel unit 10 a third parly; means Ihe wrlttsn requeslfrequlrement by the Buyer to the Seller, for the supply af Ihe Bunkers; , means the written conllrmation as (ssued by Ihe Sellar and forwarded to the BUyer to conclude the conclusion of the negotiated sale/purchase 01 tho Bunkors.ln case of Gontllet between the Nomination and the order Confirmallon, unless the Sellor othe)wlse agroOloOls In writing, Iho ¥\,ordlng and conlen! of tho Order Conflrm.alton ts deomed contain the prevailing terms of Iho Agreementi means the concluded terms lor the sale/purchase 01 tho Bunkers; means any party ImtruGled by or on behalf ollhe Sellor to supply or deliver the Bunkers; means these General Terms and Condllions which shall govern the contractual regulations between the Seller and the BUyer

means the Bunker Dellvory Recetpl, being the document!.) which Is/are signed by the Buyer's reprosontattve(~) oj the placo of the supply of Ihe Bunkers!Q Ihe Yessel, evidencing Ihe quality and quanilly of the Bunkers $uppllod to and received by the Vessel.

OFFERS, QUOTATIONS AND PRICES.

An Agreement shall only be concludod and binding on the Seller when ths Sollor sends the Order ConHrmalion 10 the !luyer. each Order ConHrmalion shallincorpolale these GTe by referenco so that the GTC are considered a pari ot the Confirmation.

Agreemonls enterod Inlo via brokers, or any olhor author!sed reprewnlallv6 on behall of tho Seiter, sholl ontyblnd the Seller upon Iho Sellers' broksr or other authortsod mprosontaUve sending the Order Conllrmation 10 the Buyer or the Buyer's broker as the case may be.

The Ssller's offel Is based on the applicable taxes, dullos, cos!!, charges and prtce level 01 componenll tOf Bunkers existing at the flme 01 tha conclmton of tho AgreemenL Any lelier o[ additional tax, assossmonl, duty or other chargo of whatovor nalure and however named, or any Increase of components for Slmkers 01 any addilional costs bome by tho Seller whatsoever caused by any change In IIw Sollor's contemplated source of supply or otherwise, coming Into exl$lenco oller the Agreement has boon concluded, shall be addod jo the agroed purchase price, provided that the Seller shall give




-I

the Buyer prior notlce of Ihis effae! within a roasonable (under the prevailing circumstances) Hmo aHer the Seller becoming aware ollha relevant circumstances,

C.4 All prices and/or tatlffs are exclusive VAT. unloss specifically slaled otherwise. Any VAT or other chargo and/or lax applicable and whonover Imposed, sho!! bo promplly paid by Ihe Buyer, and unless olheJWlsB agreed In wrltlng all $Upplles are quoted and Invoiced based on quanll!y calculated quantity In metric tons In vacuum.

C.S If Ihe party requesting Bunkers Is nol the Owner of fhe Vessel, the Seller shall have Hm rlghl (but wlil not be obliged) 10 Insist as a precondillon at sale Ihat a paymenl guarantee Is provided by the Owner. The Sellor shall have Ihe right (bul will nol be obllgod) to cancel any agreement wlth the Buyer 01 any time, If such payment guarantee b not received upon request theroof from the Seller to thB Owner. Tho Seller's deciSion 10 forego obtalnhg a payment guarantee undor this Clause C.5 shall have no effect on Sellel's rlghl to d lien on tho Vossol tor any Bunkers supplied under this Agleemenl.

C.o The Buyer walronts thot Ills authorized as agent to order Bunkers for the Vessel, and tho! Ihe Seller has a lion on the VeSsel for any Bunkers suppllod undar this Agreement. It thE! party reques!!ng Bunkers Is nol ths Owner of the Vessel. Buyer assumos lhe sole responslblilly for communicating Ihe terms and condltlons of Ihls Agreement 10 the Owner of Ihe Vessel prior 10 the dole of delivery,

C.7 If at any time before the delivery the financial standing of the Buyor appeors to Ihe Seller (In Its absolvte discretion) to have become Impaired or unsatlstactory, Ihe Seller may require cash payment orsecvrlly 10 be provided by Ihe Buyer prior to dollvery, fciHng which the SeHer may cancel the dellvory without any liabIlity on tho part ot the lalter or lis subcontractors.

D. SPECIFICATIONS (QUAlITY - QUANTITY)

D.l The Buyer assumes Ihe sole rosponslblllty for the chalco of nomlnallng the quanllfy and qual!!y 01 Bunkers and delermlno (If applicable) polentlal compallbmty with any Bunkers already on board Ihe Yessel. lhe Buyer also aSSUtnes sale responsIbility for Ihe seledlon and fitness of Its choice of Bunkers for any parllcular use or purpose, and Ihe Seller shall assume no responsibility whatsoever for the compliance or fitness of the Bunkers tor a specific type of engine or equipment which the Buyer mayor may no.t have agreed upon In any e/p (eharlerparly) term 0( otherwlso. Thls Includes buj h not limited to the quallly, sulphur conlent and any olher specific characlerls!1cs of the Bunkers whatsoever. Any and all warranlles r(')gardlng tho salls/aclery quallly, merchantability, fitness for purpose, description or otherwlso, ore hereby excluded and disclaimed. Where speclffcallons designata Cl moxlmum value, no minimum value Is guaranteed unless expressly slated In Ihe Order Contlrmajjofl. and conversely where minimum values are provided In a specification, no maximum values oro guaranteed unless oxprossly stated In the Ordor Conflrmallon.

D.? The quality and qucmilty shall be as ogreed belween jha Sollor and jj)G Buyer and s11all correspond to the seller's Order ConflrrnaUon. Unless otherwise ogrood In writing tho Bunkers are delivered and sold based on metric Ions In vacuum.

D.3 Whew standard specifications ore being given or relerred to, tolerances In accordance wllh ISO 4259 In respect of ReproducibllJiy/Repsatablllty In quality O1elo be accoplod wlthout compensation or other consequencos whatsoQvor.

D.4 In raspect ot Ihe quantlly agroed upon the Sellershall bB atllberly to provldo, and Ihe Buyor shall accept d varlatlon of 5% from the agreed quanHly, wHh no olher consequence than a similar variation to the corresponding Involco from jhe Sellor.

1),5

E,

E,I

E,2

InformaHon rogardlng the typical chawclerisllcs of the Bunkers at qny delivery location shall only be IndlcaJlve ollhe Bunkers Ihat have been modo available 01 thallocailon and shall not torm a part ot Ihe specltlcallon of Jhe Bunkers to be dellvored. All gradel of produce may conjoin petroleum Industry allowed blo-derlv(')d components.

MEASUREMENTS - NON CLAUSING OF THE BDR(S)

lhe quantities ot bunkors shall be determlned only trom the olllclal gauge or molor of Ihe bunkering borge, lank truck or of Ihe shore lank In coso of dellvely ex whClfI.

The Buyer's repnlStmlotlve sholl together wllh Ihe Seller's representatlvo measure and verify illS quanlllles of Bunkers dsllvered lram Iha kmk(s) from which the de~very Is made. When supplied by bunkerng barge/tanker the parHcular barge/tanker will presBnt lis lank calibration and ullage sounding records, which are agreed 10 be 11'18 sola valid and binding document(s) to determino the quantity orqvantlHes svpplled. Quanlllias calculated from the Receiving Vessel's soundings .Ihall not be consIdered.




E,3 Should Ihe Buyer's represenlollve fall or decline 10 ver1lythe quanlilles, Ihe moosuremenls of qUQnlllle~ made by the Se~er or the Suppllorsholl be final, conclusive and binding and the Buyer sholl be deemed 10 hove waived any and all claims In regard 10 any variance,

E,4 Tho Buyer exprosslyunderlakos not to moke any endorsement, complalnt/ comment {InclUding but wilhouillmitation any "No-lion" clausing) on the BDR when presented 101 ligna lure by the Buyer's represenlatlve(s), any such Inserllol1 shalt be Invalid and 01 no effect whalsoever,

E,5 In the ovont of o;::omplainl/commenl on Ihe quanll\y of Bunkors del!vered, the !luyer or Ihe Masler 01 'hI'> Vessel sholl give 10 Ihe Seller/suppllora letter of protest soparately, followed by a complaint In delolllo Iho SeUer, setnng oullhe eXact quclnlltyl!es) claimed shorlsuppl1ed, and with lull supporHng vouchers,ln writing wllhln 7 (s6ven) days thereof, fal~ng which, any such claim by the Buyer shall be extinguished as non exlslent. and tho Buyer shaH be deemed to have exprossly waived Clny such clolm against Ihe Seiler/Supplier, the relevant claim being lime barred, and the Seiler/Supplier's weight and measuremenls shall be conclUsive evidence ollhe quanlltyot Bunkers dellverod,

p, SAMPLING

F,\ The Supplier shall arrange for lour (-1) reprosonlallve samples oJ each grade of Bunkers to be drawn throughout the ent\ro bUnkering operation, The Buyer's ropresflnlaHve has the rl;lsponllblllly to witness Ihal such samples oro drawn correctly and shall conllrm his witnessing Ihemof and also confirm Ihe proper ond carted sealing by ~Ignlng tho labels of Iho sample bottles,

F,2 In case that drlpsampling Is not avallable onboard the barge, tonklruck or shore lank, samples shall bo taken as a composite of each tank Irom which supplies are made, onboard the barge (respecfivaly 01 tho shore tank or lanktruck), divIded with 1/3 from oach the top, mid and bottom ollha tanks,

f.3 The samplos shall be securely sealed Clnd provided wlih labels showIng thl'> Vessel's name, idenHly of delivery facillty, product nama, delivery doto and place and seal number, Quthenllcotedwllh the Vessel's stamp and signed by tho Sollor'$ reprosentaHvo and the Mastor 01 the Vessel or his reprosenlat!vo. The $001 numbers shall be Inserted Into the !lOR/Bunker Delivery Receipts, and by signing Ihe BOR bolh parties aoreos to the tact that the samples referred 10 Iho.roln are deomed valid and laken In qco;::ordance with Ihe reqUirements as spocilled In tills Chapter F,

F,.f TWo (2) samples shall be retained by Ihe Soller for ninety (90) days after dollvery of the Bunkers, or I! requested by the Buyer In wrlllng, for as long os the Buyer reasonably requlrod, The other Iwo (2) samples shall be relalned by the receiving Vessel, one 01 Which being dedIcated as Ihe MARPOL sample.

P.5 In the event 01 a dlspufo In regmd to Iho quailly at tht';l Bunkers delivered, Ihe samples drawn pursuant fa Ihls Chapter p, shall be conclusive and final evldonce pllho quailly of the Bunkers delivered, One, and only ono, of Ihe samples retained by the Sellers shall be torwarded 10 an Independent laboratory 10 porform a set of tesls, the ((Hull of which Is to be made available to bolh parlles, Those test resu!ts sholl be tinaj and binding upon both Buyor and Seller os to the paramoters jested, The parll(;ls are to use best endeavours 10 ogree Iho Independent laboralory to perform the tests, It, however, no agreement can be roached on tho choice of (aborolory wlthln 3 days of Ihe Buyer b"lng advised of the Sollor opting to have the sample tosted, Iha Saller Is at liberty to sand Iho .ample 10 a reputable and Independent laboratory of Its chotco for the tests to be conducled, and those tost rOlull will be flnat and binding upon Buyer and Soller as set oul above,

r,6 The seal must be breached only In presence of both partlos unless one/both In Willing have declared Ihalthl;lywlll nol be present, or falls to be present at Ihe approprIate time and place; and both parties sholl have the rlghl to appoint Indepondent person(s) or surveyor{s) 10 wHness the seat breaking.

F.7 No samples subsequenlly taken shall be allowed as {addUlona)) evidence, If any ollhe seats havo been removed or tampered with by an unauthorised person, such sample(s) shall be deemed to have no value as evldonce,

f.B Any eventual samplos drawn by Buyer's personnel ellhor during bUnkering or at any leller dale ofter bunkering shall not be valid as Indicator 01 Iha quailly supplied. The fact Ihal such samples may eventually bear Iha slgnalure 01 personnol on board the barge or tank truck or other delivery conveyance shall have no legol slgnlHcance as such local personnol have no aulhorlty 10 bind Seller to dlfh7fl;lnl conlractuailerms, Seiter sholl have no liability lor claims allslng In clrcumslances where Buyer may 110ve commingled !hoproducls on board Iho Vessel with olher luols.




I ,

G, DElIVERY

G.l The time 01 de~vefY, 01 given by tho Seller, has been given as an approxlmale Hmo, unlossll has been othorwlse specifically agreed In wr!t!ng between Iho parties,

G,~ The time of deHvery will only be binding upon the Seller when allinlorma1l0n necessary for the Seller to comply wllh lis obllgallons hereunder, have been properly dollvered to Iho SOlitH In reasonable lime before tho dollvory, In the evenl the Nomination addresses a spread of dates lor delivery, Iho Soller h(ll the Sale dlscrellon 10 commence the dellverywllhln any time, day/night/sshlnc of these doies, always subject 10 Iho c!rcumslances sot out below In Clause G.3,

G,3 The Vessel ,hall under ail clrcumstancos bo bunkered as promptly as the prevailing circumstances parmi!. having regard 10 congesllon affoctlng Ihe delivery facllilies of Soller, Its Suppliers 0( Agenls and 10 prior commllmenls 01 barges or olher delivery moan!, The Seller and/or the Suppler shall nol be lIabl(l for any cOn!equenGes or any time losl due 10 the Vessel having to wall for berlh for bunkering or lor complellon of bunkering, and unles! olhelWlse agreed In wrHing, the Seller shall nol be obligated to dellv(;lr prior to lhe nominated date or sproad of dates, The Seller Is not responsible for delays ¢avs€ld by local Guslom., pilots, porl- or other au lhorl!les,

0,4 In any case the Buyer, unless olholWlse agreed in writing, must give not less lhan 72 (sevenly Iwo) hours approximate noHee of readiness 01 Iho V$$sol for delivery, whlGh Is 10 bo followod by 48 (forly olght) hours and 24 (twl;mly tour) hours such notlces, whore Ihe lost nollee must olIO specify the exact place of delivery, All these nolleos musl be given 10 Ihe Sellers and tho Soller's leprewnloHves/ag(lnt. In wrll1ng,

G,5 The Seller shall be enHtled to deliver Iho Bunkers by separate port dellvorlos, In which case each part dellvory sha\l bo construed as a separate delivery,

G.6 The Seller sholl nol be required to deliver any BunKers If any cuslom! and/or olher governmenl perml! required for such purpose has nol boen oblalned In due lime before Ihe delivery,

G,7 If the Seller al any lime for any reason bolloves that Ihere may be a shortage of supply at any place and that as a result thereot 11 may be unable 10 moet Ihe demands of all Its customers, Ihe Seller may allocate Its available and onllclpated quantlty/les 01 Bunkers among lis cuslomers In such a manner as I! may delermlne opproprlate In lis sole dlscrotion,

G,B lhe Vossel shall bo aCGesslble at all times to Seller and SUpplier and shall be bunkered as promplly as the clrcumskmce.' permit. The Seiler and/or 1110 Supplier shall not be liable lor any demurrage paid or Incurred by Ih'" Buyer or for any loss, damage or delay oj the Vessel (consequenllal and/or Ilquldaling damag!;ls Included) of any nature whalsoovor due 10 congeslion at tho loading terminal, prior commllments of available barges or lank trueks o( any other reason,

G,9 The Buyer shall ensure thai the Vessel provides a free, sale and always afloat and accessible side for the delivery of bunkers and that all necesoary asslslanc(l m required by Ihe SelJer or the Seller's represenlol1ve Is rendered in Gonnocllon with Ihe delivery. If In Ihe Supplier's opinion clear and sale berth Is unavailable, delivery might be delayed or, In Seller's option, cancelled and 0'11 cosis tebled to above wlll be on occount of lhe Buyer.

G,1O The Vessel sholl moor, unmoor, holsl and lower bunkering hose(s) from the borge(sj whonever required by the Seller, Selisr's representallve or Supplfer, free of expenses and !n any way as may be requested to assIst the barge eqlJlpmeni 10 a smooth supply, The Buyer shall make dnd be responsible lor all connections and dfwonnecjjons between fhe dellVfHY hose(s) and the Vessel's bunkerlntako manifold/pipe and ensure that the hOlO(S) ore properly secured t<) Iho Vessel's manifold prior to comm(mcement of do!lvary, During bunkering the VeS$01's scuppers must be safely blocked, whIch blocking must be mads by tho VtlSSelTI own crew, Furthermoro tho Vessel musl ensure thai all pipes and manifolds and receiving lanks are properly checked and leody to receive the bUnkors, tncludlng bvt not IImltod to ensuring proper opening/closing of relevant valves, wllhout any risk for spillages, etc, dlJrlng the blJnkerlng, Local fur thor speckllrequlrements for receiving bunkers must be followed slrlclly by the Vsssel, whether advised or nol by the Seller or the Sollor's representative, as It Is always the Vessel and the Iluyerwho remains $olely rosponslble jar the knowledge and aWdreness at such oventual addilional requlremenls for sofoly reasons,

G,11 in the event that tho Vmsel Is nol able 10 receive the delivery promptly, tho Buyer!s Ihereby In de!aul! and shall pay damages and/or any redsonabfe demurrage clalrnlo the barging/supplying !ac!Utles and shalllndomnlfy the Seller In ~ach ond every respect as a rosult thereof,

G,)2 Dellve/y shall be deemed completed dnd all risk and Ilabllltles. Including loss, damage, dolorloralio/l, depreclallon, eontamlnallon, evaporation or shrinkage to Iho Bunke($ dellverod and responslblllly for loss, damogo and harm caused by poilu lion or In dny other manner to third parlles $hall pass to the Buyer




Irom tho lime Iho Bunkers reach Ihe lIange/conneciing pipe Ilno(.J/dolivery hosos provldod by the Se"er on the barge/ lank truck/sham lank.

G.13 If the Buyer jor whatever reason Is unable or refusos to receive Jhe Ivll quan!lly ordered, Jho Sellor sholl hava lhe right to Involco tho [luyer for the loss incurred by having 10 transporllhe undelivered BunKers back 10 Ihe siordge or by having 10 sell the Bunkors In a dograded form 0(01 a lower prlco. The Seller may exercise Ihls right wlthoul prejudlco 10 the Seller's olher rights lor damages or olherwlse pur$,lanl to Ihese condillons.

G.loi The Vessel shall provide and have appropriate and segregaled lanks to receive the contracted quanlrly of Bunkers; and the VOlsol shall always be able 10 perform Its own blanding on board If any blending ls deemed 10 be roqulred by Ihe Buyor. The Vesse! sholl upon delIVery test the Bunkers $upplled by running her engines or auxiliaries o( eqUipment, fo( which the Bunkers ale supplied, lor a minimum of \ (one) hour 10 determine that the Bunkers we sot1sjaclory, In Ihe eV!5lnt the Bunkers ale not considered saH~factory, the Seller Qnd Supplier are to be notlfled In writing Immediately after such test period has expired. otherwise,!t shall be deemed that the Bunkers were sallsfaclory and thaI In any ovenl the Buyer has walvod any right \0 claim In this regard,

G.15 It delivery Is requlrod outside normal business hours or on local weekonds, Saturday, Sunday, national religious or public holidays the extra expensos Incidental to such delivery shall be reimbursed by Iho Buyer as addilional costs.

G.16 In Iha event the Bunker delivery Is made by vessel or barge as a shIp-la-ship transfer, any damage cau,ed by contacl and/or collision and/ol swell and/or olher weather or seq rslalod condillon or Incident, Is 10 be dealt with by the Owners dlrocttywllh Iho Owners ollhe unlls Involved, and Seller/Sllppller shall not be held nor be responsible for any such damages. It, howevor, any of Ih", Involved units choose 10 pursue Seller and/or Suppllor, BUYtJr will hJlly IndemnIty and hold Selier harmleHln wlatlon Ihoreto.

G,17 For safety roasono Ills agreed thalli Is Solely the Mosler 01 the bunkering barge Ihat determines wholhor mooring alongside Is safe, taking weather, swell and forecasts lnlo consideration, Supplier/Seiler not to be held rmpomlblo for any delays, demurrages, liquidating damagos or simllarwhatsoaver as a result of any evenlual delays caused by any decision by Ihe Master of the barge In this connecllon. Supplies being always performed wealher pflrmllilng. .

G.l(1 Without prejudice to any other OIII<:Io(s) heroin, any and all supply/les wl!l be based on as per basi endeavours only Iflhe Iscelvlng Vessel dlilves outsldo the originally agreed time split as per the Order Conllrmat!on 10JWardad.

H, TITLE

11.1 Tille In and to the Bunkers delivered and(orproperty rights In and 10 such Bunkers shall remain ve~ted In Ihe Seller untllfull payment hm been recolved by the Seilor of all amounts due In connection w!lh the respoc!lv0 d!;llivery, The proVisions In Ihls sedlon are wllhoul prejudice 10 such olher rights as tho Soller may have under the laws of the gov!;lrnlng jurisdiction aga1l1st the Buyer or the Vosselln tho event of nonpayment,

H.2 UnlU full paymenl of the full amount due to the Seller has been made and subjecl to Arllc1e G.]4 hereof, the !Juyer agreed thai II Is In possession of Ihe Bunkors sololy as Balloe for the Seiler, and sholl not be ont!lled to use Ihe Bunkers other Ihan for the propulsion of Ihe Vessel, nor mix, blond, sell, encumber, plodge, allenale, or 5urrendsr tho Bunkers to any third party or other Vessel.

H.3 In C<.1Se of non or $horf payment for thfl Bunkers by Ihe Buyer, the Seller Is ontliled (bul nol obliged) 10 repossess Ihe Bunkers wHhovl pilar jurldlcallnlorvenHon, without preJudlco to all other rights or remodles available 10 tho Seller.

H.4 In the event Ihal Ihe Bunkors have been m,'xod with oth6r bunkors on board the VeSSe~ the Sailor .hall have the right to Iroee lis proprlelary Inlemslln Ihe Bunkers Into Ihe mixed bunkers and/or a right of lien to such pori of Ihe mixed bunkers as corresponds to the quanilly ornet value ollhs Bunkers dollvered.

H,5 The provisions of this Chapler H do 1001 prejudIce or In any way limit the Seller's right to arrost/attach tho Vossel and/or sister ship and/or any sIster or ossoc1ale ship and/or other assets of the Buyer (or the Owner 01 tho Vessel or any olher parly liable), wherevO(sl\uajed In the world, wllhout prior notice.

H.6 Where, notwithstanding these condilions, 11118 In and to the Bunkers delivered hos passed 10 tho Buyer and/or any lhlrd party beforo lull payment has boon made \0 the Seller, fhe Buyer shall grant a pledge over such Bunkflrs 10 the S-eller. The Buyer shall furthermore granl a pledgo ovor any othor Bunkers present In the respecllve Ves~el, Including any mixtures of the delivered Bunkers and othor bunkers. Such pledge




will be doomed to have beon given for any and aU claims, ofwhalevor origin and of whatever nafure that the Sailor may have against tho Buyer.

H,7 for the avoidance of doubt, where a mortgagee bank enforces any rights against tho Vossel and becomes d morigagee In possession of the Ilunkors then as baUee tho mortgago bank Is liable to the S(Jller for lulfllmenl ollh(J Agreem(Jnt.

I. PAYMENT ~ MARITIME LIEN

1.1 Paymenl fOf th(J Bunkers and/or tho relevant services and/or charges shall be made by Ihe BUyer as dlroctod by the SetierwHhln Ih!;! p!;!tlod agreed In writing. .

I.? ['ayment sholl be mode In lull, wllhout any set-off, counterclaim, deduction and/or discount free 01 bank charges to the bonk accountlndlcaled by the Seller on Ihe respecHvo Involco(s),

1,3 (I) If at any Hmo aftor delivery but before 11"10 due date the financial standing 01 tho Buyer appears to th!;! Seller (In It. sole dlscret!on) fo hdve becomo ImpaIred or unsallsfylng, the Seller may require Immediate full payment of all lis Invoices due dnd/or thoso not yet duo, or such secur)ly as It shall doom to be sdtlsfaclory, (II) In the evant that the Buyor Shdll defaull In making any paymanl due, the Seller may suspend dellverles of Bunkois unlll sUGh payment has been made fn fl!lt (togetherwlth default/delay compensallon and costs), or the Seller may, In lis discretion, eled to treat such default m a sorfous breach of the Agreotnont and thereupon tormlnale the Agreement on Whole or In part wlthout prejudice to any claim against the 8uyer lor damages, Including cancellation charges, Such lermlnallon or suspension shall not rollovo th!;! Buyer 01 any obllgallon undertaken by virtue of an Agreement so tormlnated, (III) Whero the Ssllor hos extendad ony kind 01 credl! facliity to a group 01 companies or QSsociated companies, default by anyone relevant Buyer In respoct 10 any Invoice 01 the Soller shall gIve the ~ghllo the Seller \0 cancel all crodlt arrangements of the entire group or of all the associates, whereupon sub" clallses 1.3.(1) and 1.3,(11) shall apply as appropriate, {Iv) Where lhe Buyer tolls to pay timely, the Seller has the right to {without prejudice to Its rights to receive default/delay compensation) lake allapproprlalu stops to socure and enforce lis clalmj the Sellormay also unilaterally cancel any credll arrangemenls agro(ld wlth/extended 10 the Buyer. (v) All Judicial and extrajudiCial costs and expenses, Including pre·ac\lon costs, f(Jes, expenses and dtsburs$ments ollhe Sailor's lawyers/allorneys"at-taw, Incurred In connection wllh non payment or dolayed payment or by any olher broach by Ihe Buyer of these condlllom, shall bo for the Buyer's account, immedlatoly payable by the latter 10 the Sellor, In case ollltigallon, the Buyers shall also pay all the relevant expenses to tho $ollor, Including but wllhout limitation all his reasonable a!!orney's/laWY,ers' lees, costs (lnd disbursements,

1,4 Payment shall bo dee mod to have beon mado on Iho dal!;! of which the $eller has received tho full paym!;!nt and such Is avallablo to Ihe Sollor, If payment falls due on a non-business day, the poymenl shaH be made on or before the business day nearest to the due dale, If the procedlng and Ihe succeeding business days are oqually near to the due doto, then paymenl shalt be made on or beforo Ihe procedlng business doy,

1,5 Any delay In payment 01 the full sum due shall entitle the Seller 10 Interest at, the rata 0[3 (three) per cent per monlh (compoundod monthly lor each month [or part thoroot) of non payment) wl1hout prejudice to any rights or romedles available 10 the Sellm. Furthermore Ihe Seller Is enlltled to charge a delayed paymtmt administration feD of USD 1 ,50 per mton supplied, or the eqUivalent thoreot In local curr",ncy, wlJh a minimum admhlstrallon fee of USD 350.00 lor each dellvory mode. Ail reasonable allomeys' lees Incurrod by Sellar In connoctlon w1th the colloctlon of overdue payments shalt be lor the sole account of the Buyer,

1,6 paymonfs modo by the fluyerln respect 01 a suppty of Bunkors shall at alt times bo credlt",d In the following order: (1) costs 01 any kind or nature, Indudlng but nolllmited to legal costs and attorneys' fees, (2) Interest and odmlnlslrallonal foe, and (3) Invoices In their order at age, also If not yel duo, or In SeJler's sale dlscroHon to specify a payment 10 any such Invoice Seller consldors rel",vant.

1,7 All cosls borne by Ih!;! Sellar In connection with the colloctlon of oV"'rdue paymenls, Including those of the S!;Jller's own legal and credit departmenl and, Including but not limited 10, (eosonablo attorneys' foes, whether made In or oul 01 cour! ond In general ali costs In connecHon with bmoch 01 any agreement by tho Buyer, Including but not limited to remonablo attorneys' fees, shalt be for the solo account ollhe Buyer.

1,8 Tho Seller shall at all tImes, In lis absolule dlscretlQn, be enl!tlod to requlro the Buyor to provide Iho Seifer what the Seller deems to be propor ;ecurtty for llie performance 01 all of Buyer's obllga!Jon; under the Agreement. Failing Ihe Immediate provlslo{1 01 sl)ch securliy upon Seller'$ demand, the Seller sholl b(l




enHtlod to slop any furlher 6xecullon of ony agreemant(s) belwesn Ihe parties unlll such Ume Q) the Buyer has provided the requIred secur\!y,

1.9 Where Bunkers are supplied to 0 Ve,sel,in addlUon 10 qny olher secUrity, Iho Agreemontls enferedtnto and Ihe Goods are suppllod upon Ihe faith (md cred!! of Ihe Vossel, Ills agreed and acknowlodged Ihal Ihe sale of Bunkers to tha Buyer and/or tholr acceptanco on the Vessel croale a maritime lien over the Vessel for the price of the Bunkers (and allinteresl and cosls payable In respect thereof; Inc::iudlng but not limited 10 Ihe reasonable attorney's fees), such mmltlmo lion afforded 10 II-,e Seller over the Vessel. In any evenl any applicable taw shall nol prejudice the right 01 the mmlHmo lien 01 tho Seller afforded horounder orby any other appilcaplo law, bo 1I of Ihe place of delivery, or the !lag of the Vessel, or Ihe place ot )urlsdlctlon and/or an arresl of Iho Vossel, or otherwise howsoover.

1,10 It Is mulually agreed rho! fhe Bunkers provldod by the Seller to the Buyer under Iho lorms of this Agreemonf hove been ordered by the Buyer In the ordinary course 01 business between Seiler and Buyer, All payments from Buyer 10 Sellor for Bunhlfl supplied under ihls Agn~omen I Clre deeIT\6d 10 havo been mado In Ihe ordinary course of business belween Seller and Buyer, according 10 Ihase ordinary business terms ogreed between them,

J, CLAIMS

J,I In addl)(on to the obllgallons referred 10 In Article E,4 and E,5 herein, any clatm In connoctlon wUh the quonllty oflhe Bunkers delivered musl be nOl!lIed by tho Buyer, or thf.! Mastar of the Vessel, to the Seller or SIJPpllerlmmedlately allorcomplelion of delivery In Iho form 01 a lettor 01 protes!.1f tho Buyer or the Vessel's Masler falls to prasent such Immediate noHce 01 proles! 10 the Seller or Supplier, such claim shall be deomod 10 have been waived and shall be absolulely barred for 011 purposes,

J,2 Always without prejudice to Artlcl\'l G, 14 h~reln, any and all claims concomlng the qvailly of Ihe eunkor$ dellvored or lime consumed for tho enllre opera lion, shall be submitted 10 Ihe Seller In writing wtthln 15 (!!fteen) days atter delivery with a claar slatomen! as to Ihe nature or the clalm(s) along with appropriate supporting documentailon, failing Which any rights to complain or claim componsatlon of whatever natura shall bo deemed 10 have boen waiVed and absolutely barrod tor all purposes,

J,3 The Buyer shall be obllgOOld 10 make payment In full and fulfil all other obllgallons In accordance with the terms of Ihe Agreement and Ihese condlllens, whethor or noll! has any claims or complaints. It Iluyer submlls a claim agalnsl SeYerwllh respect 10 Ihe quailly or quanllty of Ihe products supplied, the Seiler'or the Sollor's nominated roprf;lsen\allve shall be enlll\ed 10 board the Vessel and investigate the Vessel'!> records, log books, engine logs, alc, and 10 mako copies of any such document the Sol!(lf orthe Seller's nominated reprosoniollve may consider necessary for Us Investlgallons connected to the case, The Buyer shall allow {his, or where Buyor has chartered tha Vessetlhen the Buyor shall oblaln aulhorlzatlon from Owner 10 allow the heroin ~Iated steps and to provide full asslslance and $Uppor! by the VO$sel's officers and crewln any such manner Ihe Soller orSeller'$ nominated fepresentallve may requIre. raliUfe to allow boarding and/or produce required caples of documents and/or lack of full cooperatton by the Vessel's oiftcefS and crew shall canstllule a wafyer of the Buyer's claim,

JA The Soller shall be allowed, and the Buyer, Owner, Officers and Crew OnbOdrd the roceivlng Vessel shall agree and In any way support and cooperale with Seller's representative, to draw samples from the Vessel's 510(ago tanks, settling lanks and service lank and/or from be tore and after the Vessel's contrlfuges \0 have extra 10sts carllod oul for such samples 01 Indopondenl laborafory,

J.S In each and avory cose, any and all claims of the BUyer shall be Umebarred unloss arbitration/legal procoedlngs have boen commencod/lssuod al the competent tribunal/court set forth In Chartaf P hereof and served wllhln 12 (twelve) months [rom the datI;! of delivery of the BlinKers, orthe dale thai delivery should have commenced pursuant to the Order Conllrmatlon from Ihe Seller,

K. LIABILITY - LIMIT TO SELLER'S LIABILITY.

K.l The Seiler and/or SUp pifer sholl not be Ilable for damages of Whatever natura, Including physical In)ury, nor for delay 01 delivery 01 Bunkers or services, no mditerwhother such damages or delay have bf;lsn caused by fault or negligence on the side at the 301l0(.111e Soller shall furlhermore not bo liable for damagos or delay as described obove when such damages or delay have been cousod by the fault or neglige nco of lis persormoi, ropresental!ve.l, Suppllor or (sub)contractors,

K,2 liabilities of the Seller for comequenllol ond/orllquldatod damages Including bvl not IImltod \0 Ims of time, loss 01 cqrgo or charier cdncelHng dale, Ims of Income or prom/earnings, dre oxclufl('Jd.ln dny aV\'lnt and notwithstanding anything to the contrary herein, liability of the Seller shdll under no




clrcumslances exceed tho Invoice valuo of the Bunkers supp~ed under the reltlvant agreement to the relevant Vessel.

K.3 lhe Buyer shall be Uable toward, the S(llisr and herewith underlakes to Indemnify the Seller lor any dnd aU damoges and/or cosls sulfered or otherwise Incurred on the Sollor due to d breoch 01 contract and/or lautt or neglect of Ihe Buyers, Its Supplier, agenls, Servanls, (sub)contractors, representatives, omployee.o; and the olf1c(lrs, crews and/or olh(l( people Whether or nolan board of the Vossel(s). The Buyer furthermore undertakes to hold lhe Seller harm1(lss In cose 01 ~my third parly Inslltules a claim of whatover kind against the Sell(lr whether direct or Indirect rolaHon to any agreement regulated by Ihese l(lrms and condlllan;. Third parly sholl m(lan any othor {physical or legal) person/company than the lluyor.

K.-1 No sarvant, supplier or ag(lnt of Ihe Se~er/Suppller (Including Indopendent (sub)conlractors from tlme 10 Ilms employed by the Seller/Supplier) lhall be Ilablo 10 the Buyor for loss, damage Of deloy, whllo acting In lhe course of or In connoctlon with Ils employment and/or agency for tho Seller. Without preludlce to the abOVe €Ivory 0xompHon, limitation, condition and IIbedy herein contalnod, and every right, exemption from or limit to Ilablmy, defence orlmmunlly 01 whatovor nature applicable to the Seller o{ to which Ills enlilled hereunder shall also bo avallablo and shall extend to protect ovary such sorvant, represental!ve or agent of the Seller and/or the Supplier ocling as aforesaid.

L. EXEMPTIONS AND ~ORCE MAJEURE

L.l Nellher the Soller nor Iho Sells('s Supplier shall be lIablo lor any los." claim, damage, delay or demurrage due 10 any delay or failure In their performance under this Agreoment (0) by reason of (;ompllance wllh any ordoror requast of dny government authority, or person purpor!1ng 10 dcl therefore, or (b) when supply of the Bunkers Of any facility of production, manufacture, slorags, IransportaHon, distribution or deUvery contemplated by Ihe Sellar or Supplier Is Interrupted, dslayed by congesllon or olherevenljalso soe Article G.3 above), or by unavoliabJIIly ot product and/or barge oqulpmenl or by Inadequate resource lor any cauS(-) whatsoever which Interruption, delay, un{Wallabl~ty or Inadequate resources Is nol wllhln thelmmedlale control of the Seller or Iha Supplier, Inctudlng (without limitation) I! such Is caused wholly or partly by labour disputes, strikes, sloppages, tack-out, governmental inlorven!1on, wars, civil commotion, riot, quarantine, fire lIood, earthquake, accident, slorm, swell, Ice, advorso weathor or any ael of God. Neither the Salter nor the Supplier shall be requlrod 10 romovo any such causa or replace any atfecled sOUfce or supply Of facUlty If doing so shall Involve addll10nal expense or a devtallon 110m the Seiter's or the Supplier'S normal pracUces. Nelthor the Saller, nor Ihe ·Suppllor shall be required 10 make dny dellverlos which fall In whole or In pari as a result of Ihe causes $aj out In Ihls Arllcle al any lalsf lime,

L.2 If the Buyer exerc1ses reasonable diligence, the Buyer shall not be liable for folium 10 receive any parHcular delivery If prevented Iharoffom by force majeure, The Buyer shotllndemnlfy Iha s('Ilior or the Sellor's supplier lor any damage caused by the Buyer, the Buyer's agenl or employeos In connection with deliveries hereunder,

L,3 Dectaratlon of Force Majeure shall be given without unduly delay once such evenl(s) have come to the knowledge ot the reSPr;lcllve parly declaring same. Howovor, undor no clrcumslances and lor no reason whatsoovor, can force Moleure enHlio Ihe Buyer nol /0 pay promplly any Involco of the Sollor,

L.3 In Ihe ovent thai 1M Seller, as a msul! of force ma!eure, con only deliver a superior grado of bunkers, the Seller Is onHiled to otter tho sold grade, and the Buyer musl accepl dol!vory thersof and pay Ihe appUcable price.

1..4 (a) These Torms and Conditions are subJeclto varla!1on In circumstances where the physIcal supply of Ihe Bunkers Is being undortaken by a third party which Insists Ihtlt Ihe Buyer Is also bound by Its own'lerms and conditions, In such clrcumslances, these Terms and Condlllons shall be varied accordingly, and Ihe Buyer shall be deemed to haYS road and accepled the terms and condl!1ons Imposed by the sold thIrd patly,

(b) Wilhout prejudice or IImlialion to tho genercrilly of tho foregOing, In Ihe event Ihot the Ihlrd parly torms Include:

(0 A shorter IIms IImll lor Ihe doing of any acl, or Ihe maKing 01 any claim, Ihon such shorler lime limit shall be Incorporated Inlo Ihe3e lerms and condlllon;.

(II) Any addlllonal exclusion ot liability clause, Ihen some shall be Incorporaled mutatis mutandis Into these. -

(II) A dltloronllaw and/or forum selec!!on for dlspules to be determIned, then such law selecllon and/or forum shail bo Incorporalod Into these terms and condillons.




(c) It Is acknowledged ond agreed thai the bUyer shail no! have any rlgl)l$ qgalnst Ihe seller which ore groater or more exlenslv$ than Ihe rlghls of Ihe 5uppMef against Ihe aloresald Third f'arty.

M, BREACH/CANCELLATION

M.I Wilhoul pr$jUdlce to any olhor remedies cmd rlghh, the Seller shall have the op!1on Immedlalely to cancellhe Agroement In lull or In parI, or 10 store or procure Iha storoge of the Bunkers, In whole or In pari, lor Ihe account and risk 01 the BUyerand to charge tho Buyer the expenses thereby tnculled, Of to IlOld the Buyer fully to the agreement, or lake anyolhor measuros which the Seller deems appropriate, wllhoul prejudice 10 lis rlghis of Indemnlflcallon, without any lIablHly on ihe side ot Ihe Sellel, In anyone of (but not limited 10) the lollowlng cast',s: 0) when tho Buyer, for whatever fElmon, falls to accopt the Bunkors

In part orin lull at the place and tlma designaled for delivery; b) when the Buyer lolls In part or In full 10 compty with lis obHga!lons

10 poy any amount due to the Sellor and/or provide security as set oulln Ihese GTe;

c) When, before the dote of dollve!y,1t I. opparf)nt In the opinion of the Seller thallhe tlncmclal posmon of the Buyer ontolls a rlsk to Ihe Seller;

d) when, In case 01 force ma)aure, the Seller Is of the opinion that Ihe execution 0 r Iho agreement should be cancelled,

M.2 The Seltor may tormlnate any Agreement wllh the Buyer In whote or In part. In 111 full discretIon, upon the brooch of any provisions hereof by the Buyer or In the ovent Ihat Ihe Buyer lalls 10 make or suspends payment, ceases 10 carry on business, makes an arrangement wlth Its creditors or undergoes any form of bankruptcy, administration, re-orgonlwllon or asset reauangemoni.

M.3 The Sollor has Ihe option 10 Immediately concellhe Agreement lor tho o(,:(,:ount and risk of the Buyer II 01 any Hmo the Seiler, In lis sole discretion, hm reasonable grounds 10 balleve thai: oj The Vessol; or b) The Charleror of the Veswl: or c) Tho fully or partty Owner(s) of the Vessel; or d) Any officers of Ihe Vessel; or e) The Opefator and/or Managor of Ihe Vessel; or I) Any other person Of enllly In any way rolated 10 the Agreemenl Of delivery Is/a(e I) Iranlan~s); or 2) Related In any way \0 Iran or Iranlam; 01 3) I.Isted on the US orAC Specially Deslgnatod Nationals List; or 4) Covered by any US, UN· and/or 1;11 sanctions; or 5) Covered by any sanctions 01 any olher Jurlsdlcllon and/or administration. Under no circumstances can the Seller be held I!ablo for any loss, dalays, claims o[ damages of whaloyer kind suffered by tho Buyer due to a cancellation under this Article. Tm Buyer musllnlonn the Seller Immediately Ihe Buyer becomes awar\;! 01 or has reasons to be~eve that any of the above Items a) 10 I) In combination wlth any of the above Items I) to 5) are fulfilled/applY, should tho Buyer breach lis obllgatton to Inform tho Seller, the Buyer sholilully Indemnify and keep the Seller harmless,for any damage or loss causod by such breach, Including consequential or Ilquldated damages.

M.~ The Buyer acknowledges Ihat any agrooments with Ihe Seller and any acllons relaled to .such agreement~ as well as any Inlemctlon with third parties rolated to such agreements are covemd by oertaln anllcorrupllon laws and rogulatlons which con Includo any ant!corrupt!on law,lncludlng but not limited to Ihe U.s. forolgn Corrupt PlQclices Act ("Fer' A"), and the UK Bribery Act. Therefore, tho Buyer declare 10 comply with all applicable anticorruption laws and regutatlons and agrees thol the Buyer has not, and will not, offer, promise, pay, or dulhorl7.e tha payment of any monoy or anything 01 valuo, or take any oc!lon In furtherance of such a payment, whelher by direct or Indirect means, to any public otlldal or private Ind!vldual to Influonce the decision of such person In the porformanco of hi, dulles to a govarnmeni or to his company. Any breach ollhls clause will voId the relaled Agreement and In Ihe sale discretion altho 8uyer any other Agreemenl botwef)n Ihe parHes, making any claims lorpaymfJnt, delivery or any other obligation of Ihe Seller under this Agreement void, The Buyer 1$ liable lor all and any cosls or losses Incurred by Iho Selier duo 10 such breach and/or an Agreemenl becoming void as a comequonce.

N,

N,'

SPILLAGE, ENVIRONMENTAl PROTECTtoN

II a spill occurs while the Bunkers are baing dollverad, Ihe Buyer shall promptly lake such action as Is necesldry 10 romove Ihe spflled Bunkors and mlilgale Iho effecls 01 such spill, Without preJudlcB to the




generonly ollhe foregoing the Seller 1.; hereby aulhor!~ed by the Buyer In fhe absolute discretion ollhe Seller, but at Ihe e:<panse of the Buyer, 10 lake such moasures and Incur such oxpenses (whelhor by employIng lis own resources or by contraction with others) os are necossary In the ludgment 01 the Seller to remove the spilled Bunkers and mltlgale tho effects of such spill. 1110 Buyer .hall (fooperate and render such assistance as Is required by the Sellor h Iha course of the aellon. All o:<penses, claims, cosls,iO$ses, damagos, Ilablilty and penaHies {'!flslng from spills shall be borne by Ihft parly that causod the spill by a negligent ael or omissIon, If both parlles hOVe acled negllgenlly, all oxpenses, claims, lossos, damages, lIablllly and penailles, shall be divided belween Ihe parlles In accordance with Ihe respec!lve degree of negilgonce, The burden of proof to show the Seller's negligence Iholl be on the Buyor,lhe Buyer shall give the Seller all documents and othor Informallon concornlng any spill or any programme tor the prevenllon thereof that Is required by the Seller, or Is required by law or regulation oppllcoble allhe time and ploco of delivery,

0, DElAYS AND CANCEllATIONS

0.1 Notwithstanding anything ei,le to the contrary herein, and without preludlce 10 any rights or remedios otherwise avaflahle 10 the Seller, Ihe !luyor, by Its acceptanca of these condlHons, expressly agrees Ihat Seller has Ihe $ole dlscrellon to concot or to ad!ust prlcos In Iho even! the Vessel Is suffering a delay (lxceedlng 24 hours from Ihe (last) nomInation dale,

0,2 If the BUyflr for whatever redson (Including clrcul11slunces entfrflly outside Iluyer's control) cancels the Agmoment, where Ordor ConJirmallon hm been sent by Seller, the Buyer shall bo ~ablo for any and all losses suffered dnd lIablntles Incurred by the Seiler and/or the Supplier us a result of such cancellation, Including, bul not IImlled 10, barge cNts, re-storlng of Ihe Bunkers, and hedging costs, and also In Seller's sole option ony dltference between the contract price of the undellvered product and the amount recolved by the Seller upon resale to another parly or, If another buyer cannot be found, any markot diminution In tho value of the product as re(l$onabty dotorrnlned from available markot Indexes, These losses and Ifabl\lH/;/s shall be Indemnlflod by a minimum amount of USD -1,000 by way of agreed minimum liquidated damages, and shall be IndemnIfied In lull if thoy In total exceed USD 4,000,

p, LAW AND JURISDICTION

P.l This Agreemenl sholl be governod and construed In accordance wllh English law, Tho 1980 United NaHons Convention on Contracts tor thl;! Internallonal Sale of Goods (CISG) shall 1'101 apply. Excopt for circumstance relerred 10 In Clouse P.5 below all dlsput('JS ariSing In connection with this Agreement or any agmemenl relal!ng hereto, save Where Iho Seller decides olherwlse In Its solo dlscrellon, ~holl be finally settled by arbllrallon In London, Englqnd In accordance with the Arbltrallon Acl 1996 (or any wbsequenl amendment).

P.2 Inlhe ovent thallhe Seller determines to refer any dlsputo to arbitration 11 shall be relerred to a tribunal ot Ihree arbitrators consIsting of one arbllrator to bo appolnled by tho Seller, one by Ihe Buyer, and one by tho two arbHraiors already appointed. Each member of the tribunal shall bo a futl member of The London Morll!me Arbllrators Association (Ihe "LLMA"). Either party may call for Arbl1rotlon by service ot wrllten noilce, specifying the name. and address of the arbltralor appOinted and a brlel descrlption of tho dlspute(s) or difference!!) to be the subJoct or Iho Arbllrallon.lf tho olher party does not within 14 days serve noHce of appointment of an arbitrator to arbltrata Iho dlspute!s) or dlfference!s), then the first moving parly shall have the right without furlher notice to appolntlh own arbitrator as sole arbitrator and shall subsequenlly advise Ihe other party accordingly, The award of Ihe sole arbltralor shall be binding on both partlas as If he had been appolnled by agreement. Provided each pally appointed their own arbitrator then these two arbitrators shall Jolnlly appoint the third arbitrator. In the ovent that iha Iwo arbitrators 101110 appoint a third arbllratorwl!hln twenly days 01 the appointment ot the sacond arbllra\or, ellllOr party may apply to Iho English courts for the appointment at a Ihlrd arbitrator. Any disputes to be relerred to Arbitration are 10 be determined In accordance with the current lMAA term! unless the parties agree otherwhe,

1'.3 Nothing herein shall prevenl the partlas agrMlng In wrlllng to vary those provIsions to provide for the appolnlment of a sola arbitrator.

P.4 In cmes where neither Ihe claim nor any counterclaim exceeds the amount 01 usp 100,000 (or ,uch other sum as Ihe parties may agree) Ihe Arbitration shall be conducted In accordance wllh Ihe LMAA Small Claims procodure current at the time when the arbltrallon proceedings Orf) commenced,

P,S The General Marlllmq Law of the United Slates sha~ always apply with respee! to the existence 01 a marltlme lien, regardless oj tho counlry In which Seller takes legal oelion, Selltlr shall be entitled to assert




Us rlghls 01 lion or oUachment or othor rtghts, whether tn law, In equity or othEIIWlso, In dny jurisdIctIon where the Yessel may bo found. Without prejudice to any other Clause herein any dlsputos and/of claims arising In connec!lon with Iholo condlUons and/or any Agreement governed by them, any dispute and/or claim arisen In connecllon wah a Vessel detained by Sellorat any pat, piQC6' 01 anchorage within the Unlled Statss shall be submilled to the Unttod Slates Dlstrld Cour! for the Southern District of Now York.

P.6 If any procedum of any nature whatsoover IslnsUluled under Clause 1'.5 Qbove, In connection with any controversy arising out of thl, Agr(;lomonl o[ 10 Interpret Of enforce any rights undorthJs Agreement, the prevailing party shall have tho right to recover Irom tho losIng party lis reasonable costs and aHornoy.' tees Incurred In such proceeding.

Q. VALIDITY

Q.l These, terms, and condljlon; s,hall be vall~ and binding for,all offers, quotation;, prices and deliveries made by the D.W. Bunker Group, any ossoclaled company, ropresentatlvo or agent as of September I, 201:), or at any laler dale.

Q.2 These tC:lrms and condlUons afe avallable at the website yYWW,Qwbunker,cam, on which site dS well Ihe Sellers may notlfy amendments, alterations, changes or verlflcatlons 10 same. S\Jch amendments, aitefCltlons, changes 0( verlflcal!ons afe deomed to bo a part of the entire lorms onco same have been advised on the website.




,. i

Exhibit2




-j • •

O.W. Bunker Germany GmbH WWDivision @)Bunker Hapa9"Lloyd AG BaWndamm 25 0·20095 Hamburg Germany

Sales Order Confirmation

SlIles Order No. 11n·2fl364

We are hereby pleased \0 acknowledge receipt of your ordor ll$ follows:

Vessel

PorI

Dallvery dato

Soller

Your raf,

Account

Quantity

60,00

DERBY D, (lMO; 9278117)

HOUSTON

5, November 2014

Q,W, Bunker Garmany GmbH

MASTERANO/OR OWNm AND/OR CIIARTERERS ANDIOR MV DERBY D, ANDIOR HI\PAG-LLOYD AG

Unit Product I Qual1ty curr

MT Gesoll 0,1% USD

Norian Llily

NeumOhlen 11 0-22763 Hamburg Germa.ny Phone: +49403256900 Fax; +49 40 330471 TilX No.1 Sleuer Nr, 411760/03458 EO-mall: lradlng@owblmkar,de Internel: htlp:flwww.owbunker.com Managing dlredor: G6tz Lahalen HR B 100089 INa Bank N,V. IBAN: NL261NGB 0020 1100 31 IBAN: Nt.. 10 INGB 0661 369681 SWlFT: INGBNL2A

Hamburg 28. october 2014

Prloll Unit Supplier

804,00 MT O'Ro\lfka Dollvary: Barga

Agent

Payment WITHIN 30 DAYS FROM DATE or DELIVERY UPON PRESE:NTATION OF INVOICE (ORIGINALrrnEXIFAX), COpy OF DELIVERY REOEIPT WILL BE FORWARDED Wl-lEN WE HAVE RECEIVED SAME,

Ramerl\:! all per 1808217 2005(E) HALO GT02005(E) !;lhall apply,

Wo thflnk you for thle nomination,

Kind Regards

Karl Heinz Selmer

Dlreot

Mobile

YllhoolD

E-Mail

OffIGl~ E-M~!I

+494032659012

+4915127627680

khss_owbunker

I<hsa@owbunker,de

tradlng@owbunker,do

S~I.1 ~.")




O.W. Bunker Germany GmbH WW Division

TERMS AND CONDITIONS.

SAMPLES;

® Bunker

Meilsurlng lind sampiJng to bEl done at bargoltanll\rucl(/shorasldll manifold, and receiving Vossels crow Is requested to witness and verify the mlHlllurlng of quantity lind the drawing lind s&alln9 of samples, These verified quantltles as noted In the BOR !lawell as these samplos tahan arQ the only CINS deemed represent~tlve, and any dlspula regarding qUllllty to be settlerJ by 10&l\n9 l!loaf) retained samples by 1111 Independent laboratory at port/place of dellvory, and result of 11118 tesUng Is deemed to be final and binding for both parthHi.

TERMS:

The sale and d\lllvery of tilO marino fuels described above IIro subject to tlw OW Elunlwr Group's Terms and Conditions of 9nlo(0) for Marins Bunlwrs. Tho ncceptanco of the marine bunkors by tho vessel name.d above shall be deemed to constltuto aoceptnnce of tho said general terms appl!cable to YOll as 'Suyor' and (0 O,W. BUnker Germany GmbH as 'Soller'. The flxed terms and conditions !Ira wolilmown to you end remain In your possession. If this Is not tho case, tho term!! can be found under the web address: http://owbunl(er.comlwp-contonUuploads/2013/12!OWB~GTO_ValldFrom01Q92013.pdf

oUIDEil..lNES FOR RECEIVING BUNKERS:

We strongly urgo YOIl to forward the Informatlon regarding: Genernllnstl'uctlons and Guidelines for BlInlwrlng, for Receiving Vessels, on page 3, soon!)st possible to your Ohlef Englnoer onboard.Followlng the suggested Guidelines should mlnlml:.:o rlsll of quanllty dlsputes.Plesse bear In mimi that bRrgo figures are the sole valid quantity detarmlnation, whorefore Chief Engineer's attendanoe onbo~rd tho barge Is Ilxtremely Import~nt.

OTHERWISE:

Any orrors or omissions In above Confirmation should be reporlod Immediately.

PLEASE INFORM US BY RETURN IF ABOVE NOMINATION DETAILS ARE NOT IN ACCORDANCE WITH YOUR UNDERSTANDING.




D.W. Buni<er Germany GmbH WWDivision ® Bunker GENERAl. INSTRUCTIONS AND GUIDELINES FOR BUNKERING, FOR RECEIVING VESSELS

BEFORE BUNKERING:

Please mnka sum to ohecl( allinformlltion glvtll1 by the sUpplier on Bunker Requisition Form or suoh slmll~r form as the supplier presents via the barga, If ),ou notloe oheng(ls In quantity or quality pleaso urgonUy contact the rslevant paraon In ohargo Itl your own operations to have sarno vorlfled.

Mako sum to witness and vorlfy 1I1ltiai measumments and ullaglng onboard the barga beforo. ALL !anllS to be ohooked and measured Including antuul tamperature of Ilargo - also Including thosl) {anlls said not to bo Inclmled lil tho partloular supply (Idle tanks). Compare measurements and verify the quantltles as por harge ullage tables. When In fullagre6ment phiaso sign tho ullage/sounding rttport for Before Supply figures, If any dlsagr6ements with the measurements, temperaturo and, thereby flguros ploallo advise this on the Sounding form or, If not allow\ld, on separate i.etter of Pro lest (make Sllro to obtain signature and stamp fr~m bargo M~stsr for rllcalpt}.

If surveyor attends please OnSUf\l Ihe surveyor aillo partlolpatell In measuring all barge tanks bofore supply and verify the figures,

DURING BUNKERING:

Always place II watohman to witness safe operation Including also preper I'md cerreot sampling. The watchman must ensure lila! sampling Is done properly, as continuous drip sampling throughout tho dollvary, and that clean devices are used for sampling. Also the watohman mUllt witness proper and correct division Into minimum 4 (four) clean and new IdallUeal sample boUlos, Including proper labelhlg lind seating of ALL samplcs, Make sure orlgirHlI samplo (cubltalnar) Is shakon vlgorollsly for 3 mlnutoB befora splitting Into the 4 sample noltlos and thai bottios 1lr&lIl1od In lIevernl passes. AU soal numbers to be Insorted Into tho aUnllor DaUvory Receipt (BDR). The MARPOL $ample must bo one of thoae samplea drawn undor witnessing.

The watchman mUst pay spsclal attention to the bunller hose, and ally un-agreed attompts to transfa!' air via same should cause Immedlata stoppage unlQss tile uBe' of air Is caused by strippIng of barge lanl(s, which stripping 10 bo Ilgreod In advaneo by beth parties, If air Is blown on oontlnued basis, (lnd stoppage on the supply not possible for any reason, tho IncIdent to be stated on a Leiter of Protest, which should also contain tho time (houra from/to) that alrblow was noUlled.

It Is known In some areas that tha so-called Cllppuclno !:ffect may be used or ottemptod to be usod during supply. Pay special uitenUon hereto and lake all necess~ry procautlons to observe, whIch Includes:

DurIng tonl( moasuremonts beforll It should bll noUllod whether there are sIgns of air on tho measuring tape used for ulla9lng. . Look caroful!y for any signs of bubbles or slmllsr on the sutiace ef the fuo! when It Is stili onboard Ihs hugo, Agree wIth tho barge when and If they aro going to make !ltrlpplng of their tanllS. Check and note Ihe dr~ft fore, mid (lnd aft on (he n(lrge baforo find after supply to compara. If any sIgns at all of cappucolno Qr sbnllar (oxcopt eventual atrlppln9', agreed In advanco), pillase stoplho supply Immediately and compare supply quantities made so far. Contact vessol operator In charg'" and roq\Jtt!lt notlHcotlon to the SalJor alld Supplier !mmodlately. If surveyor att6ndlng please ensure that the surveyor Signs a Llllter of Protost also. After stopping tho bunl\Cr supply ploas& walt minimum 1 hour \0 await bubb16s to dlsappaar and ro-maasurs the barge Jointly wl\h bergs Master.

AFTER COMPLETION:

Repeat the moasuremont, sounding and ullaglng of tllIl barge, IncludIng VerificatIon of temporature of each tanl(. Malw sure alao on Qompletlon to vorlfy contGtlta of ALI.- tanks, IncludIng those being Idle.

Report (ullage) must be slgnod by all parties Involvati, Including evantualnomlna\!ld surveyor. If disagreements with the figures (mm, tempsraturQ) II Lottor of Protest to be Issued, hut also SlIGh spoolflc dlsagreemen(s (0 be stated on the Ullage rsport covering "qftor" suppty.

QUANTITY COMPLAINTS:

Roclllv!ng Vessal to Inform dlscrepanclos In writing lateat lIpon completion of taking (he bunkers.




100894


FOR AccoUNT OF DELlVEA:' LOC1ATION I/,

I";·,,,.{? h ' f' A'

PRODUCT

AR~VAL ALONG.SIDE

;,,- ::I: C;' > TRUC~START

')I : I"

TRUOK FINISH

t);)' i'" DEPARTURE I1ME

Ie);;: ·\V

Remarlm:

G.RAVITY A.P,I. @60'r

DENSITY@ 16'0, Kg/ml

2D

20

20

2D

20

20


8AAREI~S"-_I-'0~R=D=ER=E=D~. +=D=EL='V~'=.R=E=iD METAICTONS

PRODUCT PROOliCT PRODUCT

,Mt:' ,

[{l Cal VISCOSITY@ 40"0 :J., C,:14 .

~ FLASH OF min : /47 OF

UJ 0. sULPHUR % (rnlm) in ,,~ 0 a: 0. WATER % (vtv) )/LU}

\-----_._._---------------------j

Product Grado 'Marpol Sample # Vessel Sample # OMSlnetal11 Sample II Other \-----:---+--

MGO _~~~oull~~,7~'b~Q"_4-2~~~{?L{q~O~~0~oUJI9~'))~~,~--------1

The luel 6uppllad In Ihls dollwry I~ In conformity with regulation 14(1) aod regulation 18(1) 01 lIone){ VI Marpol73(78 affeotlve M~"~Y'lo',-,2"O""C·_------l The underslgnad elso certillos thnllhe quantity/grade received Is In uccordallOe either tho wOllol'!} requirements, any advice from lha (lwn",ra/ohart",rara \0 the contr(l!y not withstanding. The l,mderslgnod canities that this property Is for tllIO sololy In the operation of !:laid vesae/ln foreign or Interstate cQuIIlwlse commWl6. It Is further <lortlfled that said vos3ells engaged sxcfuslvaly In foreign or Interstate comme1CO. /lny purchaser who fraudulen1!y signs this oortllkJale wllhoulInlent10 usa tho propa!1y purchased a6 above slaled shall be subjsot to aU pana\lIss provided by law. No dl~clalm(lr ~tamp 01 any type ctlorm will be accoptod on Ule bunlw rocolpt, nor ShCllld any stamp be aPPiTed, wI!! It alter ohsnga or waive the s",lIata marllfme lIan against the vassol, or waive the vassal's ultimata responsibility lor tho debllncurrotl thlu thlelranoo.cllol1.

SIGNATURt BELOW ACKNOWLEDGES THAT yOU HAVE RECEIVED A COPY OF OUR GENERAL TERMS AND OONDITIONS. ANY OFFEn TO SELL TO CUSTOMER IS SUSJECT TO AND INCORPORATES BT REFERENCE /ILL OF O'ROURKE MARINE SERVICES, L.P .. L.L.P CURRENT GENER/IL TERMS AND CONDITIONS. ACDrY or WHICH IS /lFPENDED Hel1ETO OR AVAILABLE mOM O'ROURK!' MARINE SERVices, L,P., L.L.P.

THE FOREGOING DELIVERED TO VESSEL DATE

DATE

11- 6 -1-'1 v




REMIT TO:

P,O, BOX 301457 DALLAS! TX 75303-1457 (281) 6~5·1 005

Invoice

Invoice Number: Invoice Date:

Irwolce Due Dale: ShIp Dalo:

Ordor NUlnber: Order Date:

Salesperson:

Page: 1

0026462 11/10/2014 11/15/2014

11/6/2014 0026462 10/27/2014

M104 Customer Numbor: OWB1QOM

www.orpp.com

Sold To: 'OW. BUNKER USA INC. 2603 AUGUSTA DR, STE 440 HOUSTON, TX 77057 (281) 946·2300

Confirm To:

Term:; customer P,O, 172-13225 ACH NET 5 DAYS

Item Number Description

03M MOO

ShIp To: Q,W. BUNKER USA INC. PORT OF HOUSTON HOUSTON, TX

ArQa & alock Rf~ Vossel Namo DERBY D.

UOM Qwmtltv Unit Price

Metlic Tons ·f(,23 1126.14

Dyed Diesel Fuel, Nontaxable Use Only, Penalty for Taxable UI '

pLAns CLOSE 2.5147 f {.12)::: 2.6347 FEDERAL LUST FEE FEDERAL OIL SPILL FEE

MT CONVERSION 7.4657 x 42"' 313.56 (GALS PER TON) x 2.6347 >< 826.14 ($ PER rON)

Always fulfilling our brand promise to you Safe. FAST. Efficient.

Invoice Total:

ACH/WIRE TRANSFER INFORMATION:

JP Morgan Chaso Bank, Houston, Texas 77002 ABA Routing #: 111000614 (ACH ONLY) ABA Roullng #; 021000021 (WIRE ONLY) Acoounl#: 00708101902

THANK YOU FOR YOUR RIISINESS

Motor Tloket No.

Ext Prlco

39,069.90

14.83 :::S.17

39,102.90

39,102.90




, , '

Exhibit 3




O.W. Bunker Germany GmbH WWDivision

Hapag-Uoyd AG !3alllnctamm 26 D-20095 Hamburg Germany

Sales Order Confirmation

Sales Order No.

We are hereby plaasad to acknowledge receipt of yo \If order a'3 follows:

Veasel

Port

Delivery date

Seiler

Your fllf.

Account

Quantity

170.00

SYDNEY EXPRESS (IMO: 9062984)

HOUSTON

3, Novembor 2014

D,W. Bunker Germl'lny GmbH

MASiERI\ND/OR OWNERANDIOH CHARTERERS AND/OR MV SYDNEY EXPRESS AND/OR HAPAG-LLOYD AG

UnIt Product / Qual1ty Curr

MT Gasoli 0,1% USD

NORTON l-ilLY

@)Sunker Netlmllhlon 11 0-22763 Hamburg Germany Phone: +49 40 3266900 Fax: +49 40 330471 Tax No, !Slouer Nr, 411768/03468 E-mail: [email protected] Interne!: htlp:/lwww.owbunker.com Managing director: GOIl! Lehsiell HR B 100089 ING Sank N.V. IBAN: NL2B INGB 0020 1180 31 lEAN: NL 10 INGB 0551389681 SWIFT: ING6Nl2A

Hamburg 28. Oclober 2014

Price Unit Supplier

600,00 MT O'Rourke

Agont

Payment WITHIN 30 DAYS FROM DATE OF DElIVERY UPON PRGSENTATION OF INVOICE (ORIGINAL/TELEX/FAX). COpy OF OELIV!':RY RECEIPT WILL BE FORWARD!':D WHfN WE HAVE RECEIVED SAME.

Rernml\$ Ill! per IS08217 2005(1;) HALO GTC2007 shall apply

We thanl! you for Ihlll nomination.

Kind Regards

Karl Helm; Selmer

Direct

Mobile

Yahoo 10

E·Ma\l

OrtlCle E·Mall

.. ·494032559012

+49151 2762713 80

khs8_0wbunker

khsa@owbunKer,do

lradlng@owbunker,do




Q,W, Bunker Germany GmbH WWDivision

TERMS AND CONDITIONS.

SAMPLES:

® Bunker

M!1!lsurlng and sampling to be dono at burgl'tltanktrucll/shoroslde Il1anllold, and rooelvlng Vessels orew [s requaated to wltneas and vorlfy the measuring ,of quantity and tho drawing and sealing of samplos. The!lll verified quantities as noted In the BOR Ilswell <IS thoso samples lallon ura the only Olles deemod fOI)feSenlflllvo, and nny dispute regarding qUllllty to be ,.elliod by tosting th()!le rotalned Mmplos by llnlndependent I!l.boratory at porUplalle of delivery, ~nd rosult of 1M Is testing Is deemed to be nnal and binding for bolh par!1t~s.

TERMS:

The 81110 and dellvory of lhe m~rlne fuels described above aro subject to tho OW Similar Group's Terms !lnd Condltlona of sale(s) for Marine BUnkors, Tho aoceptance of thlt marine hunkers by tho vessel ollmed above shall be deemed to oonstitute acceptance of the !!lIld general terms appUoab!o to you ae 'Buyer' and to O,W, Bunker Gcrmllny GmbH as 'Soller', The fixed term!! and oondltlon~ are well known to YOlland remain In your P0geosslon, If this Is not Ih(l csse, the terms csn be found (mder the w(lbaddress: http://owbunl(er.com/wp.contontJuploada/201 :;\112/0WB_ GIC~ Valldl"rom01 O~2013.pdf

GUIDELINES FOR RECEIVING BUNKERS:

We strongly urge you to forward th61nformat!on regarding: Gen(lrallnstruotlons and Guldellnee' for Bunkering, for R(lo(llvlng Vessels, on page 3, Boonest possible to your Chief Englnoor onboard.pollowlng tho sugg(lsted Guldellnos should mlnlmlz6 risk of quantlty dlspuje!!.Please bear III mind that barge figure!! are the sola valid quanuty dah"mlnaUon, w]wmforo ehlof Englneor's attBndanco onboard tho barge Is oxtromoly Important,

OTH~RW!SE:

Any orror1l or omissions In above Confirmation Ilhould be reported Immodlately.

PLEASE INFORM US BY RETURN IF ABOVE NOMINATION DETAILS ARE NOT IN ACCORDANOE WIIH YOUR UNDERSTANDING.




O.W. Bunker Germany GmbH WWDlvlslon @)Sunker GENERAL INSTRUCilONSAND GUIDELINES FOR BUNKERING, FOR RECEIVING VeSSEI,S

BEFORE BUNKERING:

Please maka lIure to chock a!llnformllt!on given by Iha ~uppllar on 8unkor HIl(:julsltlon Form Of suoh slmllllr form as tile SUppliSf prosants via the barge. If you notloe changes In quantity or quality pleaso urgontly conlM! the relevant person In charge In your own oporatlons to hava (lame verlflod.

Malle sure to wltnoss and vorlfy Initial mO!l9urornlmls flnd uUnging onboard Iha barge be(ont, ALL tanks to be checlwd and moasured Including actull! temperature of ourgo - also Inoludlng thoBe tanks said not to be Included In th!) particular supply (ldlo tanlls), Comp~ra me(lsuromonts (l11d verify the quantities as per barge uUage tablos. Whon In full agrooment ploaso sign the ullagel!loundlng roport for Before Supply figures. If any disagreements with tne measurements, temp?ratuF!.1 and theroby figures please advlso this on tho Sounding form or, If not allowed, on sepsmtQ Letter of Protest (make sure 10 obtain slgnfttllre and stamp from burge Master fo'r receipt).

If surveyor aUends pleaso onallre the survoyor also partlalpates In measuring all barge tanl(s bofore supply and vorlfy tho flgUfell,

DURING BUNKERING:

Always placa a watchman to witness safe operiltlon Inaludlng also propel' and correct sampllng. The watohman must ensure that sampling Ie dene propar!y, as oontlnuoua drip sampling throughout tha delivery, and that clean devlcas are used for sampling. Also the watohman must wUness propar and correct division Into minimum 4 (four) clol1l1 and new Idontlcal sample bottles, Including propor labeling and sealing of ALL samples, Malle slire original samplo (cubltalner) Is shaken vigorously for 3 mlnut{ls before spllttlng Into the 4 sClmple bottlos and tllftt bottles are !!lIed In sevoral passes. All soal numlMli to bo Insarted Into tho Sunker Dellvory Receipt (BDR), The MARPOL sample must be 0110 of them) s~mplos drawn under witnessing.

Tho watchman must p"y special attention to the buul(or hoslt,und any un-agreed uttempts to transfer air vlo Q(\Il1e should cause Immedl!\te stoppage unless Ihe USe of all' Is csu8{ld by stripping of bargll lanl(s, which stripping to be agrsad In advance by both partles. If air Is biowil on oontlnued basis, Md stoppage on the sllpply not possible for any reason, the Incident to be ststed on a Leiter of Protost, which sholiid also contain the time (hours fromlto) that alrblow was notified.

It Is known In some areas that tho so-called Cappuoino Effec! may be used or attempted to be uS{ld during supply. Pay speclaluttentlon hereto and take all necells~ry prooRutions to observo, which Includes;

During tunll measurements befora It !>hould be noUnod whether there are signs of air on the measuring tapa usod for ulla9lng. LQok carefully for any signs of bubbles or slmll~r all the surface of tho fue! when It Is stili ollboard Ihe barge. Agree with the barga when and If they are gOing to mfllm stripping of their {anlls, Chscl( and note the draft foro, mid and aft on the b!;lrge borore am) after supply to compare. If any signs at ali of cappuccino Of almllar (except eventual stripping, f1grood In advaMe), please stop the supply Immediately end oompllre Illipply quanUUes nlade so far, Contaot vessel operator In charge und request notlflclI\lon to the Sellor and Suppllar Immediately. If surveyor uttendlng pleaso anSllFe Ih<lt tho lIurveyer signs II Lottel' of Protest AhlO. After stopping the hUnl(er supply pleaao Willi mlnlmlilfl 1 hour to await bubbles to disappear and ro-measure the barge Jointly with bargo Master.

AFTER COMPLETION:

Repoat the measurement, sounding and ull!;lgln9 of the barge, Including verlfloatfon of tomper{lture of ouoh tank. Mul(e sure also on completion to verify contonts of ALL tanks, Including those being Idle.

Report (ulillgo) must be {llgned by ul! partial! InVolved, Including oventU!li nomll1!llsd surveyor, If dlsagroomonts wUI1 the flgurea (mm, (emporature) a Lotlvr of Proto at to \xl I~sued, but also auoh spoclflo dlsagraaments to be s(ated on the U!luge report covering "after" supply.

QUANTITY COMPLAINTS:

Receiving Ves~el to Inform discrepancies III wrillng latest upon oompletlon of taking the bunkers,




101026 BUNKER DELIVERY NOTE

5'3 17 I G ~.$; MEte\"0: $TOf> VESSEl. NAME

SYD~IE'( £XI'RE., $ DATE /1 ~ 1(- JL/ EX WHARr D EX BARGE 0 FLAG lMo#

'lOlc:l. '1 i5 '1 AGENT BN1GENAME

1'/ NoqroN /../ tI. Y eeL rOR ACCOUNT OF

'BON~<5R DELIVEHY LOCATION

CO ,.. ,"'" ~ O./.,..:) , U.!1 'E><lIZS.,",R5 TEMP of. GRAVITY DENSITY@

BARRELS PER MT NET VOLUME IN METR1CTQNS A.P,I. @ .60"P 16'O"I(gIm' !3ARRELS 9RDEI;l.ED DElIVERJ;:D

PRODUCT I:>IY1A M. '1 ,/5W 7. ~'17 /76 no

PRODUCT

PRODUCT

PRODUCT PRODUCT PRODUCT

ARRIVAL ALONGSIDE I f/,/ !'fPiS- 20 It{ 1:>1'111

TflUCI< START aMI! 20 Ili C~! VISCOSITY @ 4Q'C ¥.O88 "' w TI~UCK FINlfiH

~e,1 0 )I-I ~ FLASH OF min /70 20 TRlJCI( START

W "- sULPHUB % (m/m) 2O 0 0.09 :l.

TRUCK FINlSH a: "- WATER % (vlv) .

20 (\) I (..

DEPARTURE Td5d-~ () I~ Y~ , :;- 2Q I,XPRF.S

Remarks: \jC,L s" '" Ni!o" UM..."'i ~1-, n V6L , e0'c, !", tHf' "\ "wd ' <;'111/'

CHIEF ENGINEER

Produot Grade Malpol Sample # Vessel Sample # OMS/Retain Sample II Other

DMI1 I S'OO:;,,~ ::<'1'1 ~OO :)'o,Q ka.. ':;00 l '6'15'/

The fuel supplied In Ihle dellvory I~ In oonformlty with regulation 14(1) and regulation 18(1} of annex VI Marpol7SfiB ellaotlvo May 1S, 2008,

The unclorelgned alsO oertllfos thai tho quanlltytgmdo reoeived Ie In Uc¢orc!lInoe ellllN tho V638el'~ lequlr6ment~, Ilny tUNic", from lhu oWlloralci1arteretll to tho oontmry nol withstanding, The undalslguod oertilles Ihllt this property Is for lise solely In lh" op!,rntilm of said vassal In forelgl1 or Int!lrstale noaslwlse oommerce, It lalurthar o6lU!itld Ihllisaid vessel Is engaged oxcluslvely Inlololgl1 or Inlorstale oommerce, Any purchaser who Ir<luuulenlly signs this certiliollie wlthoullnlonl to uss Iha property purohased ~9 above alatod sht'll! bo ~I,lbleo\ to (\11 penalties provided by law,

No dlS<llalmer stamp 01 any typo Of form wlll be acr,epled on the bunker receipt, nor should any slamp be applied, will II alter Qhanga or wli\lve lh(;! ~e!lers maritime !len agalnsllhavcoeol, Of waive the vllseal'Q u)(!malo raspon~lblllty lor Ihe debllnaurred thru Ihl~ tratlSMlion,

SIGNATURF.IJELOW AOKNOWLEDGES THAT YOU HAVE REcEIVED'A COpy Of' OUR miNERAL TIiHM$ AND CONDITIONS, ANY OFFEn TO SEll TO CUSTOMER IS SU8JEOTTO AND INOORPORATCS OT REfERENOE ALL Of O'ROURKE MARINE SERVICES, L,P" L.L.P CunnENT GENEHAl TERMS AND CONDITIONS, AOGPY OF WHIOH IS API'I::NOED HERETO on AVAILABLE FROM O'ROURKE MARiNESEAVIGES, L.P" L.L,P,

THE FOREGOING DELIVERED TO VESSEL

"~~ .,L5. , ;. .-G «I c TITLE _/1-Tl1../frL iJ7C IDATE )t/ i/~'I-) THE POl-1EGOING RECEIVED ON BOARD VESSEL SIGNED~ '\ ~.

';,; TITLE:" "-1''''' 'tjrATE

1 "Ii;. " ,,-',1t i''- \',' o~, . \ \' "'" . , . . '




REMIT TO:

p,O, BOX 301457 DALLAS, TX 76303-1457 (281) 695-1005

www,orpp,Gom

Sold To: '-OW. BUNKER USA INc, 2603 AUGUSTA DR, an: 440 HOUSTON, TX 77057 (201) 946·2300

Conflrm To:

Terms CUstQm6r P,O, 172-13224 ACH NET 5 DAYS

Item Number Oescrlotlon

104 DMA-ISO 8217-2010 DIESEL FUEL

PLATTS CLOSE 10/29 2,5'147 + (,12) "2,6347 fEDERAL LUST FEE FEDERAL Oll. SPILL FEE

Invoice

Shit} To:

Page:

Invoice NumbEII': 0025463 Invoice Da!\J: 11110/20H

fr1Volo~ DUe Dato: 11/15/2014

Ship Date: 11/4/2014

Order Number: 0025463 Order Date: 10/27/2014

Sa]espersot1: M104

Customer Number: OWB100M

C.W. BUNKER USA INC. MIDSTREAM GALVESTON, TX

Area & BlooK Rill Vessal Name SYDNEY EXPRESS

Meter l'lckelNo.

UOM Quantltv Unit Price

Metric Tons 170.00 824.06

Ext Price

140,090.20

53,17 101,02

140,244,39

MT PRICING 70447 x 42 '" 312,17 (GALS PER TON) x 2.63470: 824,06 ($ PER TON)

Always fulfilling our brand promise to you Safe, FAST, Efficient,

Invoice Total:

ACH/WIRE TRANSFER INFORMATION:

JP Morgan Ch(l{l6 Banl(, HOl,.IlSton, Texas 77002 ABA ROI,.IHng It: 111000614 (ACH ONLY) ABA Routing #: 021000021 (WIRE ONLY) Accounl#: 00708101902

iHANK YOU FOR YOUR BUSINESS

140,244,39




::Z-2~J14 13:30 HAPA13-LLOYD RECHNUNGSW.

vIN SYDNBY EXPRESS ~ND!OR OWNIJRS!CHARTERER8

1apag~L1Clyd AG DATE OFINVorCE ~ 04, NQvemb~I'2014 1300 Accounting ~aUil1d(1mm 25 )<20095 Ham.bll1'g }el'nlfl.TJ..y

'ORT; HOUSTON (OUR REFERENCE: (l28/4S040S0277

~\I{\llUty ~upplied

[70,000 MT

YonrVA'l' No, Our VAT No,

Quality/description

GnsollO,l%

Nlohl ateufltbar/j Lieferunfl; irt'!' AU$lo.lld I Non-t!\xabl\l (lQliwry abrl)~(j

DE l!1396Q()1~ DES!4847065

Prlcwp~l'

800,00 MT

I11IIII1

VA'!' Amount Teflll

USD USD

119,·28363

136,000,00

0,00 136,000,00

TliiRMB ()l? PA YMli:NT30 dnysltom rlHtQ Qf~Ql[vQr)' Willi v~I\l~ dutQ MI l~\w Ih~n DUI! I}ATI'; ur pf~yflln~ \I'\"lrkilill ddY Wll\\llitis ahQUdfty, In CM6 Mdelnyslll paymeut InterMtwlll be ob~fp,OO htllCCol"dfitl~C with QllrYnlM Genoml "J'emlS alldCQndltiUl~1

HANK;

ACCO{IN'f:

XNO.l3MkN,V.

!nAN: "NL26INOB 0020 118031 !BAN: NT.,IO moa Ot5~ I $69681

SWIFT: INGDNL2A

mm fiM! all other Out'WnI)//lS EOR

O,W, 6UNRcR GERMANY NijumG

O-l,i~li,l~ HI

pilMa.' +49 40 3; falI:H040.

'I'MNI{,/SlewrNr.41IrM'

Il·mrul: Iflldln~@QWbu !IlMn~l: 1l\1Il:I/IWM'.Qwij1ln;

'::.:., '. '. .. .:."

. j:. i, ....

. \ '" , :.:: I' ~ i'

~ ..

: ..... :(, ... . ~1' :' ", '.' . ."'

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.'.' . , ;: .;.'

" .' . . .




Exhibit T



UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

HAPAG-LLOYD AKTIENGESELLSCHAFT, Plaintiff, -against- O’ROURKE MARINE SERVICES L.P., L.L.P., O.W. BUNKER GERMANY GMBH, O.W. BUNKER USA, INC., ING BANK N.V. Defendants.

14 Civ. 10027 (VEC) AFFIDAVIT OF ANGELA DALCOUR

IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

Angela Dalcour affirms under the penalty of perjury as follows:

1. I am the Credit Manager for Defendant O’Rourke Marine Services L.P., L.L.P.

(“OMS”) in the above-captioned proceeding.

2. I submit this Affidavit in support of OMS’ Motion for Summary Judgment.

3. Except where noted, this Affidavit is based on my personal knowledge of the facts

and circumstances set forth herein.

4. OMS is a distributor and physical supplier of, among other things, marine fuels.

5. On behalf and as agents of the owners and/or charterers and/or managers of the

M/V SYDNEY EXPRESS, O.W. Bunker USA Inc. (“OW USA”) placed an order for bunkers

(marine fuel) for the M/V SYDNEY EXPRESS. On or about November 4, 2014, OMS provided

bunkers to M/V SYDNEY EXPRESS Galveston, Texas. A copy of the bunker delivery receipt

(“BDR”), signed by the Master and/or Chief Engineer or Mate of the M/V SYDNEY EXPRESS,

is attached hereto as Exhibit 1. The BDR states in pertinent part:

SIGNATURE BELOW ACKNOWLEDGES THAT YOU HAVE RECEIVED A COPY OF OUR GENERAL TERMS AND CONDITIONS. ANY OFFER TO SELL TO




CUSTOMER IS SUBJECT TO AND INCORPORATES BT REFERENCE ALL OF O'ROURKE MARINE SERVICES, L.P, L.L.P CURRENT GENERAL TERMS AND CONDITIONS, A COPY OF WHICH IS APPENDED HERETO OR AVAILABLE FROM O'ROURKE MARINE SERVICES, L.P., L.L.P. 6. On or about November 10, 2014, OMS invoiced OW USA $140,244.39 for the

bunker provision to the M/V SYDNEY EXPRESS. A copy of OMS’ invoice is attached hereto

as Exhibit 2.

7. On behalf and as agents of the owners and/or charterers and/or managers of the

M/V DERBY D, OW USA placed an order for bunkers (marine fuel) for the M/V DERBY D.

On or about November 6, 2014, OMS provided bunkers to the M/V DERBY D at Houston. A

copy of the bunker delivery receipt (“BDR”), signed by the Master and/or Chief Engineer or

Mate of the M/V DERBY D, is attached hereto as Exhibit 3. The BDR states in pertinent part:

SIGNATURE BELOW ACKNOWLEDGES THAT YOU HAVE RECEIVED A COPY OF OUR GENERAL TERMS AND CONDITIONS. ANY OFFER TO SELL TO CUSTOMER IS SUBJECT TO AND INCORPORATES BT REFERENCE ALL OF O'ROURKE MARINE SERVICES, L.P., L.L.P CURRENT GENERAL TERMS AND CONDITIONS, A COPY OF WHICH IS APPENDED HERETO OR AVAILABLE FROM O'ROURKE MARINE SERVICES, L.P., L.L.P. 8. On or about November 10, 2014, OMS invoiced OW USA $39,102.90 for the

bunker provision to the M/V DERBY D. A copy of OMS’ invoice is attached hereto as Exhibit

4. The bunker delivery notes for both provisions specifically incorporate OMS’ General Terms

and Conditions. See Exhibits 1, 3.

9. Paragraph 13 of OMS’ General Terms and Conditions (attached hereto as Exhibit

5) contains a title retention provision pursuant to which OMS retains full legal title to the

bunkers until it has been paid in full:

13 - RISK/TITLE




EXHIBIT 1

Case 1:14-cv-10027-VEC Document 45-1 Filed 03/27/15 Page 1 of 2



EXHIBIT 2




EXHIBIT 3




EXHIBIT 4




EXHIBIT 5




INITIAL _________________























Exhibit U



UNITED STATES BANKRUPTCY COURT

DISTRICT OF CONNECTICUT

BRIDGEPORT DIVISION

: In re : Chapter 11 : O.W. Bunker Holding North America Inc., et al., : Case Nos. 14-51720 (AHWS) : 14-51722 Debtors. : Jointly Administered :

O’ROURKE MARINE SERVICES L.P., L.L.P.’S

RESPONSES TO DEBTORS’ FIRST SET OF INTERROGATORIES,

REQUESTS FOR PRODUCTION AND REQUESTS FOR ADMISSIONS

REGARDING ASSERTED SECTION 503(b)(9) CLAIMS

Plaintiff O’Rourke Marine Services (“OMS”) provides its responses and objections as

follows to O.W. Bunker Holding North America Inc., O.W. Bunker North America Inc., and

O.W. Bunker USA Inc. (collectively, the “Debtors”) First Set of Interrogatories, Requests for

Production of Documents, and Requests for Admission Regarding Asserted Section 503(b)(9)

Claims (the “Requests”).

GENERAL OBJECTIONS

The following General Objections apply to each of the Requests propounded by Debtors.

Unless otherwise stated, these General Objections shall have the same force and effect as if set

forth in full in response to each of the Requests. The assertion of the same, similar, or additional

objections in response to specific Requests does not waive any of the General Objections set

forth below. Likewise, failure to mention a General Objection in response to specific Requests

should not be construed as a waiver of any such objection.

1. OMS objects to each and every Request to the extent that it seeks to impose

obligations that are inconsistent with, or greater than, those imposed by the Federal Rules of



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Civil Procedure (“FRCP”), the Local Rules, any other applicable law, or any court order that has

been entered or may be entered governing discovery in this case.

2. OMS objects to each and every Request to the extent that it calls for the

production of documents that are protected by the attorney-client privilege, the attorney work

product doctrine, or any other applicable privilege or protection (“Privileged Information”). In

the event that Privileged Information is disclosed by OMS, the disclosure is inadvertent and will

not constitute a waiver of any privilege or protection associated therewith, a waiver of OMS’

right to object to the use of such material in any proceeding, or a waiver of OMS’ right to

demand that Debtors return such material.

3. OMS objects to each and every Request to the extent that it calls for the

production of documents that have been produced or provided to OMS on a confidential basis or

that are subject to the terms of any confidentiality order or agreement (“Confidential

Information”).

4. OMS objects to each and every Request to the extent that it is vague, ambiguous,

overbroad, unduly burdensome, oppressive, does not specify the information sought with

sufficient particularity and/or calls for the production of documents that are not relevant to the

subject matter of this action, not relevant to a claim or defense of any party to this action, or not

reasonably calculated to lead to the discovery of admissible evidence.

5. OMS objects to each and every Request to the extent that it purports to impose an

obligation on it to conduct anything beyond a reasonable search for responsive documents or to

produce “all” documents in a specified category on the grounds that such Requests impose an

excessive and undue discovery burden on OMS. OMS will use reasonable diligence to search



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for documents in those reasonably accessible locations and from those individuals who

reasonably may be expected to have responsive documents.

6. OMS objects to each and every Request to the extent that it is duplicative or

cumulative of any other discovery request propounded by Plaintiff. Subject to the objections and

responses set forth herein, OMS will produce information only once.

7. OMS objects to each and every Request to the extent that it purports to require

OMS to reach a legal conclusion. Nothing contained herein is intended as, or shall be deemed to

be, an admission or acceptance of, or agreement to, any factual or legal allegation or conclusion

in the Requests or any other document filed or served by Debtors in this action.

8. OMS objects to each and every Request to the extent that it purports to require

OMS to provide documents not within its possession, custody or control, or seeks documents not

maintained by OMS in its normal course of business. OMS objects to each and every Request to

the extent that it seeks documents already in Debtors’ possession, custody or control, seeks

documents that are available from public sources, or seeks documents to which Debtors have

equal access.

9. OMS objects to each and every Request to the extent that it does not include a

relevant time period as overly broad and not reasonably calculated to lead to the discovery of

admissible evidence, as they purport to require OMS to answer as to all times and as to events

outside periods relevant to the § 503(b)(9) Claim.

10. In providing responses to the Requests, OMS does not in any way waive or intend

to waive:

a. objections as to relevancy, materiality and/or admissibility;



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b. rights to object on any ground to the use of any of the responses herein, in any

subsequent proceeding, including the trial of this action;

c. objections as to vagueness or ambiguity;

d. rights to object on any ground to any further document requests or other

discovery requests involving or related to the Requests.

OMS’ responses which state that non-privileged documents will be produced do not constitute a

representation that such documents exist, but only that responsive documents will be produced if

they exist and can be located through a reasonable and diligent search of readily accessible files

where responsive documents would be expected to be found.

11. The objections and responses herein are based on OMS’ present knowledge,

information and belief. Without in any way obligating itself to do so, OMS expressly reserves

the right to supplement, amend, correct, clarify or modify the objections and responses herein as

necessary at a later date.

OBJECTIONS TO INSTRUCTIONS AND DEFINITIONS

12. OMS objects to each and every Instruction to the extent that it seeks to impose

obligations beyond those permitted by the FRCP, the Local Rules, any other applicable law, or

any court order that has been entered or may be entered governing discovery in this case.

13. OMS objects to each and every Instruction to the extent that it seeks Privileged or

Confidential Information.

14. OMS objects to each and every Instruction to the extent that it is vague,

overbroad, unduly burdensome, and calls for the production of documents not reasonably

calculated to lead to the discovery of admissible evidence in this action.



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15. OMS objects to each and every Instruction to the extent that it purports to impose

an obligation on OMS to conduct anything beyond a reasonable search for responsive documents

or information.

16. OMS objects to each and every Instruction to the extent that it purports to seek

information not within OMS’ possession, custody or control or not maintained by OMS in its

normal course of business.

RESPONSES AND SPECIFIC OBJECTIONS AS TO

REQUESTS FOR ADMISSION

Request for Admission No. 1: Admit that O’Rourke’s Claim for priority treatment

under 11 U.S.C. 503(b)(9) arises from the a bunkering transaction involving the following

vessels (the “Subject Transactions”):

EVA SCHULTE on or about October 28, 2014

COSCO VENICE on or about October 31, 2014

COSCO HAIFA on or about November 1, 2014

SYDNEY EXPRESS on or about November 4, 2014

DERBY D on or about November 6, 2014

Response: Admitted.

Request for Admission No. 2: Admit that: (a) Exhibit A is a copy of the Purchase

Order Confirmation issued by OWB USA to O’Rourke for each of the Subject Transactions and

is admissible as such; (b) Exhibit B is a copy of the Invoice issued by O’Rourke Marine Fuels to

OWB USA for each of the Subject Transactions and is admissible as such; (c) Exhibit C is a

copy of the Bunker Delivery Receipt signed by the vessel in each of the Subject Transactions and

provided to O’Rourke in each of the Subject Transactions and is admissible as such.



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Response: Objection. This Request purports to combine three (3) separate Requests into a

single Request in violation of FRCP 36(a)(2). Subject to and without waiving the foregoing

Specific and General Objections, OMS responds as follows: (a) Admitted that Exhibit A is a

copy of the Purchase Order Confirmation issued by OWB USA to OMS for the transactions

related to the COSCO VENICE, the COSCO HAIFA, the SYDNEY EXPRESS, and the DERBY

D. Denied that Exhibit A is a copy of the Purchase Order Confirmation issued by OWB USA to

OMS for the transactions related to the EVA SCHULTE. Admitted that Exhibit A is admissible

in accordance with the aforesaid admissions and denials. (b) Admitted that Exhibit B is a copy

of the Invoice issued by OMS to OWB USA for the transactions related to the COSCO VENICE,

the COSCO HAIFA, the SYDNEY EXPRESS, and the DERBY D. Denied that Exhibit B is a

copy of the Invoice issued by OMS to OWB USA for the transactions related to the EVA

SCHULTE. Admitted that Exhibit B is admissible in accordance with the aforesaid admissions

and denials. (c) Admitted.

Request for Admission No. 3: Admit that (a) Exhibit A, (b) Exhibit B, and (c)

Exhibit C are business records of Claimant.

Response: Admitted.

Request for Admission No. 4: Admit that each of the vessels in the Subject

Transactions is identified as the recipient of the bunkers in (a) Exhibit A, (b) Exhibit B and (c)

Exhibit C.

Response: Objection. This Request is vague and ambiguous to the extent the term

“recipient” is undefined. Subject to and without waiving the foregoing Specific and General

Objections, OMS responds as follows: Denied.



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Request for Admission No. 5: Admit that (a) The bunker delivery receipt for the

Subject Transactions was issued to O’Rourke; (b) Claimant has no knowledge or evidence that a

bunker delivery receipt for the Subject Transactions was ever issued to OWB USA.

Response: Objection. This Request purports to combine three (3) separate Requests into a

single Request in violation of FRCP 36(a)(2). Subject to and without waiving the foregoing

Specific and General Objections, OMS responds as follows: (a) Denied. (b) Denied.

Request for Admission No. 6: Admit that, except for the handwriting and stamps

placed thereon, Exhibit C is a business form prepared and used by O’Rourke when delivering

fuel to a vessel.

Response: Admitted.

Request for Admission No. 7: Admit that Exhibit C identifies that the bunkers

were delivered from O’Rourke’s storage facilities and not a facility of OWB USA.

Response: Denied.

Request for Admission No. 8: Admit that the chain of possession of the bunkers

was from O’Rourke’s storage facilities to a barge not owned or possessed by OWB USA to the

Vessel.

Response: Objection. This Request is vague and ambiguous to the extent the terms “owned”

and “possessed” are undefined. Subject to and without waiving the foregoing Specific and

General Objections, OMS responds as follows: Admitted as to the transactions related to the

COSCO VENICE, the COSCO HAIFA, the SYDNEY EXPRESS, and the DERBY D. Denied

as to the transactions related to the EVA SCHULTE.

Request for Admission No. 9: Admit that OWB USA did not take not take

physical delivery of the bunkers prior to delivery to the Vessel.



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Response: Objection. This Request is vague and ambiguous to the extent the phrase

“physical delivery” is undefined. Subject to the aforesaid objection, OMS responds as follows:

Admitted.

Request for Admission No. 10: Admit that that OWB USA never had physical

possession of the bunkers prior to delivery to the Vessel.

Response: Objection. This Request is vague and ambiguous to the extent the phrase

“physical possession” is undefined. Subject to and without waiving the foregoing Specific and

General Objections, OMS responds as follows: Admitted.

Request for Admission No. 11: Admit that O’Rourke issued no Bunker Delivery

Receipt for the Subject Transactions showing delivery to OWB USA.

Response: Denied.

Request for Admission No. 12: Admit that O’Rourke has no Bunker Delivery

Receipt for the Subject Transactions showing delivery to any person or entity other than the

vessels indicated in each of the Subject Transactions.

Response: Denied.

Request for Admission No. 13: Admit that O’Rourke knew that it was providing

bunkers to the Vessel which Vessel would begin to consume immediately upon delivery.

Response: Objection. This Request is vague and ambiguous to the extent the term

“immediately” is undefined. Subject to and without waiving the foregoing Specific and General

Objections, OMS responds as follows: Denied.

Request for Admission No. 14: Admit that delivery of the bunkers which are the

subject of the Claim were arranged directly between the O’Rourke and the Vessel.



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Response: Objection. This Request is vague and ambiguous to the extent the term “delivery”

is undefined. Subject to and without waiving the foregoing Specific and General Objections,

OMS responds as follows: Admitted.

Request for Admission No. 15: Admit that all Documents and Communications

produced by you in response to these discovery requests are admissible as evidence without

further foundation or proof.

Response: Admitted.


INTERROGATORIES

Interrogatory No. 1: Identify every person (including name, address, telephone number

and title) who participated in responding to these Discovery Requests.

Response: Undersigned counsel and Rosalyn Young, In-House Counsel, OMS, 223 McCarty

Street, Houston, TX 77029, 713.255.1739.

Interrogatory No. 2: Identify every person (including name, address, telephone number

and title) who or has knowledge or information concerning the Subject Transactions and any

pleadings filed with respect to the Subject Transactions (including any proof of claim, motion for

administrative expense allowance, or any other pleading).

Response: Undersigned counsel and Rosalyn Young, In-House Counsel, OMS, 223 McCarty

Street, Houston, TX 77029, 713.255.1739 and

Hermalinda Alvarado Credit Coordinator 4118 Cypress Hill Drive Spring, TX 77388 281-353-1207



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Angela B. Dalcour Credit Manager 10119 Sralla Rd Crosby, TX 77532 281-843-2797 Alan A. Cain Vice President 13515 Jessica Ln Houston, TX 77069 281-587-9120 Ashley P Files Marine Billing Administrator 16210 Cavendish Drive Houston, TX 77059 832-205-2665 John F Golike Marine Operations Supervisor 4419 Piney Creek Lane Spring, TX 77388 832-574-2533 Krista Gauer Credit Analyst 22318 Bridgestone Ridge Dr. Spring, TX 77388 281-660-0202 Antonia Brizolaki Assistant Controller 5210 Evergreen Valley Drive Kingwood, TX 77345 302-438-8033 Louis N Hill IV Bunkerman 5025 Schurmier Houston, TX 77048 832-890-4971 George Allen Voss Marine Sales Consultant 853 Crystal Bay Lane



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League City, TX 77573 713-876-9698 Sherman Damper Jr. Bunkerman 1702 Grand Park Dr Missouri City, TX 77489 (832) 359-6660 Tessa S. Lee Marine Billing Administrator 2718 Safe Harbour Circle Friendswood, TX 77546 832-466-9896 Sharnice Wilkinson Marine Sales Consultant 5902 Silent Oaks Dr Humble, TX 77346 832-445-9573 Jamie L. Yarbrough Marine Billing Administrator 1311 Clearlake Rd Highlands, TX 77562 281-777-1263

Interrogatory No. 3: Identify every person who may testify at the hearing on October

27, 2015 regarding the Claim. Include in your response dates on which such individual is

available to sit for deposition on or before October 12, 2015.

Response: Unknown at this time.

Interrogatory No. 4: Identify every expert witness who may testify at the hearing on

October 27, 2015 regarding the Claim. Include in your response dates on which such individual

is available to sit for deposition on or before October 22, 2015.

Response: Unknown at this time.



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Interrogatory No. 5: Identify every jurisdiction anywhere in the world in which

Claimant has attempted or threatened to enforce a right against a vessel in rem for payment of

delivered bunkers. For each such in rem action or agreement, identify the vessel owner, the

vessel name, case caption (including court name, presiding judge, and case number) the amount

of the security provided by the vessel, and the location of such security.

Response: Objection. This Request is overly broad and unduly burdensome in that it

exceeds the limited scope of discovery set forth in this Court’s Pretrial Order (Doc ID No. 974)

as it has no relationship to the § 503(b)(9) Claims or § 503(b)(9) Claims Objections.

Interrogatory No. 6: If your response to Request Nos. 1 through 15, inclusive, or any of

them, is anything but an unqualified admission, then for each Request, describe in detail each

and every fact, ground, theory, circumstance or item of information supporting, in whole or in

part, your denial and

a. Identify every Document, Correspondence or Communication supporting denial of

such request;

b. Identify each person having knowledge of the facts, grounds, theories, circumstances

or items of information supporting your denial of such request.

c. Identify every Document, Correspondence or Communication by Bates Number which

you claim is not admissible at trial without further foundation or proof and the basis for

claiming inadmissibility.



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Response: Objection. This Request violates FRCP 33(a)(1) to the extent that it, and its

discrete subparts, exceed the total number of interrogatories which may be served. Subject to

and without waiving the foregoing General and Specific Objections, OMS responds as follows:

Request for Admission No. 2: (a) The Purchase Order Confirmation for the transaction

related to the EVA SCHULTE appears to be issued by OW Bunker North America Inc, not

OWB USA. (b) The Invoice issued by OMS for the transaction related to the EVA SCHULTE

was issued to OWB USA and OW Bunker North America Inc.

Request for Admission No. 4: Exhibits A, B, and C do not contain any field specifically

identifying a recipient of the bunkers.

Request for Admission No. 5: (a) The Bunker Delivery Notes for the Subject

Transactions were issued by, not to, OMS. (b) The Bunker Delivery Notes for the Subject

Transactions were issued to OWB USA and, for the transaction related to the EVA SCHULTE,

to OW Bunker North America Inc.

Request for Admission No. 7: Exhibit C does not identify the location from where the

bunkers were delivered.

Request for Admission No. 8: The EVA SCHULTE was in the constructive control

and/or possession of OWB USA.

Request for Admission No. 11: Each delivery was a delivery to OWB USA (and, for the

transaction related to the EVA SCHULTE, to OW Bunker North America Inc) which held the

bunkers in bailment aboard each vessel.

Request for Admission No. 12: Each delivery was a delivery to OWB USA (and, for the

transaction related to the EVA SCHULTE, to OW Bunker North America Inc) which held the

bunkers in bailment aboard each vessel.



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Request for Admission No. 13: For the transactions related to the COSCO VENICE, the

COSCO HAIFA, the SYDNEY EXPRESS, and the DERBY D, OMS had no knowledge

concerning the time of consumption of the bunkers OMS supplied. For the transaction related to

the EVA SCHULTE, OMS had no knowledge that the EVA SCHULTE would consume the

bunkers supplied by OMS.

See also responses to Request for Production Nos. 1-4.

Interrogatory No. 7: If your response to Request Nos. 1 through 15, inclusive, or any of

them, is anything but an unqualified admission, set forth all details known to Claimant regarding

the circumstances in which the bunkers were delivered to OWB USA (including the precise time,

place and manner of such delivery, an identification of all witnesses to such delivery, and an

identification of all documents evidencing such delivery).

Response: See Response to Interrogatory No. 6.

AS TO ANSWERS: I certify under penalties of perjury that the foregoing is true and correct, to

the best of my information and belief.

/s/ Rosalyn Young

In-House Counsel OMS

AS TO OBJECTIONS:

/s/ J. Stephen Simms

J. Stephen Simms Simms Showers LLP 201 International Circle, Suite 250 Baltimore, Maryland 21030 Telephone: 410-783-5795 Counsel for OMS



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REQUESTS FOR PRODUCTION

Request No. 1: Provide all Documents, Correspondence and Communications

identified in response to the above Interrogatories.

Response: Subject to and without waiving the foregoing General Objections, OMS will

produce responsive, non-privileged documents, if any, located through a reasonable search of its

reasonably accessible files.

Request No. 2: Provide all Documents, Correspondence and Communications

regarding Respondents’ purported maritime liens resulting from its commercial relationship with

the Debtors or their affiliates, brokers, vendors, suppliers or customers.




Request No. 3: Provide all pleadings relating to an in rem actions described in

your response to Interrogatory No. 5.




Request No. 4: If your response to Request Nos. 1 through 15, inclusive, or any of

them, is anything but an unqualified admission, then produce the following documents:

a. Your bunkering plans for delivering the bunkers in the Claim;



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b. The vessels bunkering plans provided to you for delivering the bunkers in the Claim;

c. Bills of lading showing the origin of the bunker delivered to the vessel;

d. Any checklist or other set of procedures exchanged between the Claimant and the

vessel providing details for the bunker delivery; and

e. Any other Documents or Communications exchanged between the Claimant and the

Vessel.




Date: October 12, 2015.

/s/ J. Stephen Simms J. Stephen Simms Simms Showers, LLP 201 International Circle, Ste. 250 Baltimore, Maryland 21030 Ph: 443-290-8704 Fax: 410-510-1789 [email protected] Counsel for OMS

CERTIFICATE OF SERVICE

I hereby certify that on this October 12, 2015, I caused the foregoing to be served on

Davis Lee Wright and Patrick Birney via email at [email protected] and [email protected].

/s/ J. Stephen Simms



UNITED STATES BANKRUPTCY COURT DISTRICT OF …€¦ · VENICE or the COSCO HAIFA. 21. OMS was aware...

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