Schedule Part 13 - CalMac Ferries Limited’s Obligations in Relation to the Vessels
- Interpretation
References herein to “the Vessel” apply to each and/or all of the Vessels, as appropriate. References herein to the Ship Charters apply to the Ship Charter entered into in respect of the relevant Vessel and/or to all of the Ship Charters, as appropriate.
- Information and Compliance Undertakings
CFL shall throughout the Grant Period and so long as any obligations are owing by CFL in terms of the Agreement or the GIA Letter:
comply with the provisions of the Ship Charters at all times;
comply with the terms of the Insurances at all times;
ensure that at all relevant times all licences, approvals, consents and permits required under Applicable Law which are (i) required for the use and operation of the Vessel, and (ii) the absence of which would either expose the Scottish Ministers to any risk of any liability or expose the Vessel to any material risk of arrest, detention or sale, are, in each case, obtained and maintained in full force and effect;
furnish the Scottish Ministers promptly with all such information as they may from time to time reasonably require regarding the Vessel, her insurance, condition, maintenance, particulars of all towages and salvages; and
comply with all undertakings given by it in the Ship Charters as if set out in full in this Schedule Part 13.
- Protection of Scottish Ministers' Rights
CFL shall throughout the Grant Period and so long as any obligations are owing by CFL in terms of the Agreement or the GIA Letter:
not sell or attempt to sell, agree to sell, transfer or otherwise dispose of or (except to avoid loss of life or personal injury) abandon the Vessel, or any share or interest therein;
promptly pay and discharge or procure that there are paid or discharged all debts, damages, liabilities and outgoings whatsoever which have given or may give rise to statutory, possessory or maritime liens on, or claims enforceable against, the Vessel or the Insurances or any part thereof and, in the event of the Vessel being arrested, seized or detained or the Insurances or any part thereof being arrested, attached or levied upon pursuant to legal process or purported legal process procure the release of the Vessel and the Insurances from such arrest, attachment or levy within 10 Business Days thereof; and
notify the Scottish Ministers promptly by email of any arrest, seizure or detention of the Vessel or any exercise or purported exercise of an arrest, attachment, lien or other claim on the Insurances or any part thereof.
- Possession
CFL shall not at any time without the prior consent of the Scottish Ministers and, if such consent is given, only subject to such conditions as the Scottish Ministers may impose, part with the possession or operational control of the Vessel (other than in accordance with the Ship Charters).
- Title, Registration and Name
CFL shall during the Grant Period do all that may be necessary on its part to maintain in force the registration of the Vessel as a British ship. CFL will not do, or knowingly or recklessly suffer to be done, anything whereby the registration of the Vessel will be forfeited or imperilled.
CFL shall not without the prior consent of the Scottish Ministers (and then only on and subject to such terms as the Scottish Ministers may agree) change the name of the Vessel.
Throughout the Grant Period CFL shall not create or agree or purport to create any encumbrance over the Vessel, any share or interest therein or in the Insurances or requisition compensation or any part thereof (other than with the prior consent of the Scottish Ministers and in respect of CMAL Vessels, CMAL).
- Maintenance and Operation
Without prejudice to the provisions of the Ship Charters (where appropriate) CFL shall throughout the Grant Period:
at its sole cost and expense maintain the Vessel and every part of the Vessel (which includes any Transferring Assets on or fixed to the Vessel) and keep it in a good and efficient state of repair and safe operating condition, seaworthy in all respects and in accordance with good maintenance practice (fair wear and tear excepted and having regard to the age and type of the Vessel) on a non-discriminatory basis with other vessels owned and/or operated by CFL and in accordance with good industry practice for United Kingdom ferry operators and procure that all repairs to, or replacement of, any damaged, worn or lost parts or equipment are effected in such a manner (both as regards workmanship and quality of materials) as not to diminish the value of the Vessel and (without prejudice to the generality of the foregoing) CFL shall ensure that at all times:
- the Vessel maintains the classification of the Vessel with the relevant Classification Society and to the extent any additional class notations are registered or proposed for registration with the Classification Society, CFL shall ensure that the Vessel maintains such additional class notations in compliance with the requirements of the Classification Society provided that any such additional class notations are consistent with the specification of the Vessel;
- the Vessel complies with all other regulations and requirements (statutory or otherwise) from time to time applicable to vessels registered in the Flag State or otherwise applicable to the Vessel, her Master, officers and crew (including in relation to the number of crew) wherever the Vessel may proceed or trade and (without prejudice to the generality of the foregoing) at its own expense maintain in force for the Vessel all safety, radio, loadline and other certificates whatsoever and all licences and permits which may from time to time be prescribed by any legislation in force in the Flag State, any relevant port state or other applicable jurisdiction;
- ensure CFL complies at all times with any terms of the Insurances relating to the condition or inspection of the Vessel;
permit the Scottish Ministers by surveyors or other persons appointed by them for such purpose to board the Vessel at all reasonable times (but no more than twice in any Financial Year other than in circumstances where an Event of Default has occurred) for the purpose of inspecting her, including giving access to such persons to the Master's Log and afford all proper facilities for such inspections and for this purpose give the Scottish Ministers reasonable advance notice of at least 30 days of any intended drydocking (or other underwater inspection of the Vessel) of the Vessel (whether for the purpose of classification, surveyor otherwise) and the Scottish Ministers will be entitled to be represented at such dry dock. The proper and reasonable costs of such inspections and surveys must be paid by CFL. All inspections and surveys of the Vessel will be carried out at such times and in such places and in such manner as to minimise delaying the use and operation of the Vessel, but the Scottish Ministers will not be obliged to carry out such inspections only during periods of drydocking;
notify the Scottish Ministers forthwith upon becoming aware of the same by email thereafter confirmed by letter and in reasonable detail of:
- the hijacking, confiscation, seizure, impounding, arrest, taking in execution, forfeiture or detention of the Vessel or any major part thereof or any requisition for hire at any time of the Vessel;
- any requirement or recommendation made by the Classification Society or by any insurer or any competent authority which is not, or cannot be, complied with in accordance with its terms;
- any death or serious or potentially serious injury to a third party or substantial damage to property, caused by, or in connection with, the Vessel;
- any single casualty or other accident or damage to the Vessel which may be or become a Total Loss (as that expression is defined in the relevant Ship Charter or which may involve repairs or maintenance costing more than £100,000;
- any assistance which has been given to the Vessel which has resulted or may result in a lien for salvage being acquired over the Vessel;
- any collision or other accident or incident involving damage to the Vessel the repair cost of which is likely to exceed £100,000 (or the then equivalent in any other currency);
- any other event which occurs in connection with the Vessel which affects or may reasonably be expected to affect the rights of the Scottish Ministers or involves or may reasonably be expected to involve any loss or liability;
- the occurrence of any litigation involving, or criminal proceedings against, CFL;
- any notices, requirements or recommendations made by or on behalf of a governmental or statutory body or agency. This includes, but is not limited to, notices, requirements or recommendations made by or on behalf of:
- an Inspector under the Welfare of Animals (Transport) Order 1997 or the Animal Health Act 1981;
- the Health and Safety Executive (HSE);
- the Scottish Environment Protection Agency (SEPA);
- Maritime and Coastguard Agency (MCA).
in the event of a casualty or maintenance referred to in paragraph (d) above, CFL will notify the Scottish Ministers orally within 48 hours of discovery and in writing within 72 hours after the discovery of the event. CFL shall notify the Scottish Ministers of the plan and time frame for rectification (if applicable) as soon as possible thereafter;
maintain all such records, logs, manuals, technical data and other materials and documents which are required to be maintained in respect of the Vessel to comply with any Applicable Laws or the requirement of the Classification Society and, on notice from the Scottish Ministers, permit the Scottish Ministers or their representatives at any time to examine and take copies of such logs and other records;
procure that the Scottish Ministers are not at any time represented by CFL, its contractors, agents, employees, representatives and/or subcontractors as carrying goods or passengers or providing any other service on or from the Vessel or as having any operational interest in, or responsibility for, the Vessel.
do or cause to be done all things necessary to comply with all national, international and state conventions and laws (and any rules and regulations thereunder) applicable to CFL and/or the Vessel including, without limitation, the Merchant Shipping Act 1995, the International Convention for the Safety of Life at Sea (SOLAS) 1974 as amended from time to time the IMO document International Convention for the Prevention of Pollution from Ships (MARPOL) and to the extent applicable, the Oil Pollution Act of 1990 of the United States of America (including, without limitation, the requirements thereunder relating to manning and the establishment of financial responsibility), the Comprehensive Environmental Response Compensation and Liability Act of the United States of America, other federal and state laws of the United States of America and international conventions, laws, rules and regulations relating to environmental matters, including those relating to discharges of oil, petroleum, petroleum products and distillates, chemicals, pollutants and other substances and the Terrorism Act 2000.
maintain an emergency response plan and undertake the appropriate exercises for training purposes.