AXIS GROUP, INC. TERMINAL TARIFF NO. 001 DEFINITIONS FMC ORG NUMBER: WT TON VALUE: 2000 WEIGHT UNIT: LBS

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1 AXIS GROUP, INC. TERMINAL TARIFF NO. 001 DEFINITIONS FMC ORG NUMBER: TYPE: MTO WT TON VALUE: 2000 WEIGHT UNIT: LBS VOLUME TON VALUE: 40 CURRENCY: USD VOLUME UNIT: CFT FILING CODES: I ISSUE DATE: 1 NOV 2011 EFFECTIVE DATE 1 NOV 2011 NAME: PHYSICAL ADDRESS CONTACT: AXIS GROUP, INC. SOUTH BROOKLYN MARINE TERMINAL th STREET, BROOKLYN NY DAVID ALVAREZ PHONE MAILING ADDRESS 165 COURT STREET, #113, BROOKLYN NY Axis Tariff South Brooklyn Marine Terminal Version November 2011

2 TABLE OF CONTENTS TERMINAL TARIFFS SCOPE ABBREVIATIONS AND SYMBOLS GENERAL RULES AD REGULATIONS DOCKAGE DEFINITION AND CHARGES WHARFAGE DEFINITION AND CHARGES WHARF DEMURAGE FREE TIME MISCELLANEOUS SERVICES PASSENGER WHARFAGE DEFINITION AND CHARGES 2

3 Terminal Tariff For application of individual charges, consult the subrules contained herein. Scope The rules, regulations, conditions, commodity rates and/or charges set forth in this Tariff apply to and/or for the following terminal(s): NAME ADDRESS South Brooklyn Marine Terminal ( SBMT ) th Street, Brooklyn NY Abbreviations and Symbols and Definitions Abbreviations AM Before Noon PM After Noon $ US Currency % Percent FMC Federal Maritime Commission GRT Gross Registered Ton LBS Pounds Symbols (A) (E) (C) (R) (N) (I) (G) Denotes Increase Expiration Denotes Change in wording which results in neither increase nor decrease Denotes Reduction Reissued Matter Denotes New or Initial Matter General Increase or Decrease The term Customer means any person or entity utilizing SBMT s facilities. The term includes stevedores, longshoremen, vessel owners, vessel charterers, contractors, agents, or any other person or entity utilizing SBMT s facilities for business purposes. Port Tariff Charges include wharfage, dockage, demurrage, security guard services and miscellaneous charges, including but limited to, water, electric and port security charges. General Rules and Regulations Application of Tariff 3

4 Axis Group, Inc. ( Axis ) is a wholly-owned subsidiary of Allied Systems Holdings, Inc. Radio call sign 39 th Street Pier West, and/or 39 th Street Pier North. The Maritime Security Act of 2002 ( Act - 33 CFR 101, 102, 103 ET AL) applies to this facility. Those vessels subject to the Act are required to interface with Axis. This port is a border entry point an all persons, effects, and vehicles are subject to search under Federal Statue 19 US Code Section 482. Axis is in a Foreign Trade Zone and all persons, goods, and conveyances are subject to search by US Customs and Border Protection Officers. The Act (33 CFR part 105) applies to SBMT. Except as otherwise provided herein, the rules, regulation, rates and charges in this tariff will apply on all cargo delivered to load on, or discharged from vessels at the SBMT Arrangements for Berths All vessels or their owners or agents desiring berths at the SBMT shall apply for a berth application at least five (5) days in advance of the vessel s arrival, furnishing Axis with the vessel s name, length overall ( LOA ), draft, docking and sailing dates, pier request, name of agent s company, and copy of the crew list. In addition, the quantity and nature of the cargo to be handled must be provided. The Terminal Manager retains the right, in his sole discretion, to authorize a vessel to use SBMT facilities with less than a 5 day notice. Responsibility For Loss or Damage All Customers agree and stipulate that Axis, its officers, agents or employees shall have no responsibility or liability for any loss or damage to vessels, merchandise or any other property handled at or upon SBMT, or stored thereon, except insofar as such damage is caused by Axis negligence. Any Customer with interest in such damaged vessel or merchandise shall indemnify and hold harmless Axis from any liability or litigation costs, including attorney fees, with respect to such damages, except that Axis shall not be indemnified for such damages insofar as they are caused by Axis negligence. Any damage done to the pier, buildings, utilities, other structures or equipment at the port by a vessel or otherwise, must be immediately reported to Axis, together with the name of the person or persons causing such damage and a description of the incident resulting in damage. Any Customer who causes damage to SBMT s facilities shall pay the full cost of repairing such damage without regard to fault, except where the damage was caused in part by Axis own negligence, in which case the Customer and Axis will contribute to the repair cost in proportion for their relative degrees to which their actions caused the damage Dangerous Cargo No gunpowder, explosives or other dangerous cargo may be placed upon the SBMT piers except by permission the Axis. Access to Shipping Records 4

5 Vessel owners, agents and masters will be required to permit Axis to have access to the cargo manifests and any other transportation documents for the purpose of obtaining the data necessary for the correct assessment of charges. Inspection of Cargo Axis is authorized to enter upon and inspect any vessel and its cargo in berth or at anchor in the harbor to ascertain the kind and quantity of merchandise of cargo thereon and no person or persons shall hinder, molest or refuse entrance upon such vessel for the purpose specified. Arrangements for Use of the Facilities Customers desiring use of SBMT s facilities for cargo operations or storage, reasonable advance arrangements must be made for use of facilities otherwise Axis retains the option to accept or reject the request for use of its facilities. The use of SBMT s facilities by any Customer constitutes a consent to the terms and conditions of this Tariff, and evidence a legally binding agreement on the part of all Customers Vessel owners or bareboat charterers who allow their vessel to berth at SBMT s facilities pledge the credit of the vessel as security for all charges incurred by Customers in any way relating to the use of SBMT s facilities, including, but not limited to, all charges specified in this Tariff. Therefore, until all charges specified in this Tariff are paid, Axis shall have a lien on any vessel using SBMT s facilities. Vessels will contact Axis by VHF Channel 13 prior to docking for current MARSEC information. A Declaration of Security ( DoS ) will be provided to any vessel using the terminal and the declaration shall be signed by the vessel s Security Officer ( VSO ) in accordance with 33 CFR The Vessel will comply with all items listed in the DoS while in port. The vessel will notify Axis if any crew or passengers intend to disembark. The vessel will provide Axis with the names of all personnel leaving the ship. The vessel is responsible for posting gangway watch and posting lookout while in port. The vessel is responsible for checking identification and screening of all personnel, hand carried items, baggage and ship s stores before boarding the ship. The vessel will provide advance notification of any visitors, stores, or goods to be delivered to the ship while in port. The vessel will contact Axis prior to getting underway. The vessel will notify Axis and the US Coast Guard of any maritime incidents while in port. Commercial Contractors 5

6 All outside maintenance contracted by lessees, vessels, vessel s owners or agents must receive clearance through Axis prior to entering into any work at SBMT. Failure to do say may result in the removal of said contractors from the facilities. Business Hours The hours of business are between 0800 hours and 1600 hours, exclusive of Saturdays, Sundays, and holidays. Services performed during other than business hours shall be subject to special agreement with Axis. Axis observes the following holidays: New Year s Day (January 1) Dr. Martin Luther King Jr. Day (third Monday in January) Memorial Day (last Monday in May) Independence Day (July 4) Labor Day (first Monday in September) Columbus Day (second Monday in October) Election Day Veteran s Day (November 11) Thanksgiving and the day after (fourth Thursday and Friday in November) Christmas and he day after (December 25 and 26) Capacity of Facility Axis does not obligate itself to provide berthage, storage, equipment, labor, or other form of service beyond the reasonable capacity of its facilities. Vessels Required to Use Berth Assigned All vessels are required to use berth assigned. Assignments of berth are not transferrable and in the event of failure to use berths as and when assigned, Axis reserves the right to use such unoccupied berth for other purposes. Movement of Vessels Vessels shall move from place to place or leave the piers controlled by Axis at the direction of Axis. Any vessel which is not moved promptly upon notice to so move may be shifted by Axis and any expense involved, damage to vessel or to other vessel or to the pier during such removal shall be charged to said vessel. (Subject to Limits of Liability Subrule) 6

7 Crew Aboard At All Times All vessels berthed at piers controlled by Axis shall at all times have sufficient crew to comply with orders issued by Axis and to observe all rules and regulations and to properly care for the vessel and her crew and to tend to lines as necessary. Removal of Refuse Material Rubbish, refuse, or other material must be removed from the pier, bulkhead, or other areas within the confines of SBMT or other property controlled by Axis, by the person placing it there, upon demand of Axis, otherwise it will be removed at the expense of the party responsible and liable party shall be liable to Axis for a liquidated damage in the amount of $ , which reasonably estimates the actual costs and damages for refuse removal and is not a penalty. Removal of Objectionable Cargo Axis reserves the right to move cargo or other material which in Axis judgment poses an unreasonable risk of causing damage to other goods or injuring personnel and Axis may, in its sole discretion, move such cargo or materials to a location on the piers or to private facilities, at the risk and expense of any Customer with an interest in the Cargo or materials. (Subject to Limits of Liability Subrule) Abandoned Cargo Unless otherwise agreed by Axis, Cargo left at SBMT s facilities for 45 days beyond free time shall be deemed abandoned. The delivering vessel, shipper, and consignee of abandoned cargo shall be jointly and severally liable for the cost of disposing of abandoned cargo as well as cost accrued for wharfage, storage and other accrued charges on such cargo. Axis shall have a lien on all abandoned cargo, which may be disposed of in accordance with the terms of this Tariff. Dumping of Oil or Refuse It shall be unlawful for any person to pump, discharge or deposit or to cause or permit to be pumped, discharged or deposited or to pass or allow to escape in or unto the waters of the harbor, any oil, spirits or flammable liquid or any coal, tar, or refuse, or residuary product of coal or any petroleum, asphalt, bitumen, or any other carbonaceous material or substance, or any product or compound thereof, or any bilge water containing any of said materials or substances. Responsibility for Demurrage or Detention Axis shall not be liable for delays of any nature, demurrage or detention for vessels, cargo containers or railroad cars arising from any cause whatsoever. 7

8 Stevedoring All stevedoring companies performing work at Axis piers shall be required to file with Axis a Certificate of Insurance showing proper coverage for the following: General Liability, including legal liability for bodily injury and property damage in the amount of $3,000,000. Automobile Liability in the amount not less than $3,000,000. Workers Compensation including Longshoremen s and Harbor Worker s Act and Employers Liability in the amount not less than $1,000,000. Umbrella coverage in the amount not less than $5,000,000. In addition, the Certificate of Insurance must include the following as Additional Insureds and waive any right of subrogation against the following: o Axis Group, Inc. o Allied Systems Holdings, Inc. o New York City Economic Development Corporation o Apple Industrial Development Corporation o City of New York Insurance Not Included The charges provided for herein do not include insurance of any kind nor will such insurance be covered by Axis under their policies Obstruction of Roadways, Rail The roadways, rail lines, and platforms on the property of the piers shall be kept clear for traffic. No materials, cars, or trucks shall be allowed to remain or be stowed thereon. Any property allowed to remain on said roadway or platforms may be removed by Axis at the expense and risk of the owner of the property so removed. (Subject to Limits of Liability Subrule) Parking Regulations It shall be unlawful to park vehicles in other than approved parking areas. All persons violating this restriction shall have the vehicles towed away at the sole expense and risk of owner or operator of vehicle. (Subject to Limits of Liability Subrule) Municipal Wharf Not Public Thoroughfare 8

9 The SBMT property controlled by Axis is not a public thoroughfare and all persons entering thereon do so at their own risk. Axis reserves the right to refuse admittance to the port/pier area and to require the removal from the premises of any person for any reason whatsoever. Smoking on Premises No person shall smoke or light any matches or use or carry any open flame or lighted lantern, or permit any smoking or the lighting of any match or the use or carrying of any open flame or lantern in the sheds or in the open storage areas. Cleaning of Operational Areas It will be the responsibility of the stevedore concerned to take such action as shall be deemed necessary to return all operational areas, including but not limited to, pier property, transit sheds or open storage areas to a condition considered acceptable to Axis. If such action is not completed within 24 hours after the completion of the vessel concerned, Axis will take appropriate action o accomplish whatever cleanup may be required. The stevedore will be billed by Axis upon completion of action. Standby Dockage The term standby dockage is used to define those vessels berthed at SBMT piers and not in the process of discharging or loading cargo. Berthing facilities will be allocated to vessels in this category based on an as available basis, and in all cases these vessels will carry a lesser priority than those destined to load or unload at SBMT piers. Vessels requesting standby dockage will be subject to the Movement of Vessels and Crew Aboard At All Times provisions of this tariff. Liquidated Damages Liquidated damages for non-compliance with the Movement of Vessel provision of this Tariff shall be $ per hour for each hour that a vessel remains on berth from the time specified by Axis, provided that the vessel or its agent has been given a minimum of 3 hours advance notice. Payment of Invoice Vessel owner, charterer, their appointed local husbanding agent, and the vessel in rem, shall be jointly and severally responsible for payment of Port Tariff Charges unless other arrangements have been made. The vessel s local husbanding agent s liability for payment of Port Tariff Charges for services provided to the vessel is in the agent s own capacity and not as an agent for a disclosed principal. 9

10 Customers shall be required to permit access to manifests, loading or discharge lists, rail or motor carrier freight bills or other pertinent documents for the purpose of audit to determine the correctness of reports filed or for securing data to permit correct billing of charges. Failure to furnish the required documents will result in waiver of free time and immediate assessment of Wharfage charges based on 110% of applicable charges. Invoices are due and payable within ten (10) days from date of invoice. Invoices not paid within thirty (30) days from date of invoice are subject to a one and one half percent (1.5%) service charge per month. Failure to pay within thirty (30) days may cause the named of the responsible party to be placed on a delinquent list and then such party may be denied further use of the facilities until all outstanding charges have been paid. Axis reserves the right to estimate and collect in advance all charges which may accrue against cargo or vessels if parties representing such cargo or vessels have habitually been on the delinquent list, subject to a final adjustment at the conclusion of the vessel s port call. 10

11 Limits of Liability No provision contained in this Tariff shall limit or relieve Axis from liability for its own negligence nor require any person, vessel, or lessee to indemnify or hold harmless Axis from liability for its own negligence. Axis does not provide a warranty of workmanlike performance to any Customer and Axis may not be held liable without fault. Under no circumstances shall Axis be held liable for the negligence of others. Dockage Definition and Charges Dockage Defined The term dockage refers to the charge assessed against a vessel for berthing at the facility or for mooring to a vessel so berthed. Dockage Charges Dockage will be assessed jointly and severally against the vessel in rem, its owners, charterers, agents, or operators for the period the vessel remains at the berth. The period of time for which dockage shall be assessed the vessel shall commence when such vessel is made fast to the pier, bulkhead or to another vessel so berthed and shall continue until such vessel has completely vacated such berth. The charges apply in full and cover dockage for a 24 hour period or any part of a 24 hour period (to illustrate, for a 400 foot vessel loading cargo, the charge is $1,880 whether the vessel is mored at the terminal for 6 hours or 24 hours). Dockage will be assessed against the vessel, its owners, agents, or operators at the following rates per foot of vessel length: Self Propelled Vessels Loading or Discharging: $ $ $ $ $ $ $11.29 Minimum charge $1, Not Loading or Discharging: $ $ $ $ $ $

12 900+ $4.39 Minimum charge $ Non-self propelled vessels Whether loading, discharging or in a tie-up or repair status shall be charged at the following rates: $ $ $ $ Cranes Floating Cranes, not engaged in loading or discharging cargo to and from vessels will be charged the following rates: $ $ $ Passenger Ship Dockage $0.20 per GRT per day or fraction thereof Wharfage Definition and Charges Wharfage Defined A charge assessed against all cargo passing or conveyed over, onto, or under the piers or between vessels (to or from barge, lighter or water) when berthed in a pier or when moored in slip adjacent to pier. Wharfage is solely the charge for use of the pier and does not include charges for any other service. Wharfage Charges All cargo, unless otherwise specifically provided for Automobiles, unboxed Bulk cargo Steel and incidental metals discharged at a designated steel berth Scrap metals in bulk, except stainless steel Stainless Steel Scrap metal in bulk Bananas Cocoa Coffee Cement in bulk Lumber Agricultural Equipment < 15,000 lbs. $1.10 per metric ton $1.08 per short ton $1.49 per metric ton $0.87 per metric ton $1.54 per metric ton $2.36 per metric ton $0.15 per metric ton $2.28 per metric ton $2.28 per metric ton $1.10 per metric ton $1.24 per 1000 BMF $3.00 per unit 12

13 Agricultural Equipment > 15,000 lbs. Container Cargo 40 Box (FEU) Container Cargo 20 Box (TEU) Empty Containers All $1.00 per lbs (min. $12) $24.00 per unit $19.00 per unit $10.00 per unit The following charge is assessed against vessels when cargo or merchandise is placed in a cargo shed incidental to loading or discharging operations. All cargo, except steel at designated berths Steel and incidental cargoes discharged at a designated steel berth $2.72 per metric ton $0.38 per metric ton The following charge will be made against all vessels (exclusive of excursion boats or sight-seeing yachts), operating in foreign, coastwise or inter-coastal service, which embarks or disembarks passengers over the mooring facilities at the terminal: For each passenger, on an intra-harbor commuter ferry For all other passengers $4.87 each $8.52 each Wharf Demurrage Wharf Demurrage Defined A charge assessed against cargo remaining in or on Axis property affiliated with the Port and not explicitly covered by tenant leased areas designated by Axis. Wharf Demurrage begins at the expiration of free time unless arrangements have been made for storage. Wharf Demurrage Automobiles, unboxed On all other cargo Covered Areas: First two (2) days Covered Areas: day three (3) through six (6) Covered Areas: after six (6) days Open Areas: First two (2) days Open Areas: day three (3) through six (6) Open Areas: after six (6) days $.81 per short ton $.70 per metric ton per day $3.00 per unit per day $5.00 per unit per day $10.00 per unit per day $2.00 per unit per day $4.00 per unit per day $8.00 per unit per day In the event of a strike or other uncontrollable occurrence, cargo already on demurrage will remain in that category of demurrage until the situation is resolved. Upon 13

14 termination of the situation, all cargo will revert to the first category of demurrage and proceed as noted in the schedule above. Security Guard Services The Facilities Security Officer is authorized to require any vessel using SBMT facilities to employ one or more guards to secure the vessel or prevent escape of detained crewmen or stowaways or to provide added security for the terminal if required as a result of the vessel berthing at SBMT s facilities. The cost of guards shall be for the account of the vessel in rem, owner, charterer, and vessel s agent, jointly and severally. Axis shall have a lien on the vessel as well as any cargo discharged form the vessel to secure payment for guard services. Guard services will be provided by an independent contractor retained by Axis at the following rates per guard. The rates are per hour or any part of an hour. Security Guard Services [straight time] $ Security Guard Services [overtime] $ Minimum charge [straight time] $ [8 hours] Guards are employed by an independent contractor and guards are not agents or employees of Axis. Any changes to a Berth Assignment Permit, within 24 hours of the estimated arrival of the watercraft, the person who received the Berth Assignment Permit will continue to be liable and billed for all necessary charges from the original permit, including but not limited to billings for security guard services. Axis may require that any vessel, which expects to have visitors of any kind, hire additional security guards. At elevated MARSEC levels, an additional security guard(s) would be required of all vessels and would serve as the escort. Free Time Free Time Defined The specified period during which cargo may occupy space assigned to it on the terminal property free of wharf demurrage or terminal storage charges immediately prior to the discharge of such cargo on or off the vessel. Loading: Cargo (except automobiles) may be assembled on Axis piers, without charge for seven (7) days, exclusive of Saturdays, Sundays, or legal holidays, before the arrival of vessel on which it is to be loaded. Loading: Automobiles may be assembled on Axis piers, without charge for four (4) days, exclusive of Saturdays, Sundays, or legal holidays, before the arrival of vessel on which it is to be loaded. 14

15 Discharging: Cargo (except automobiles) unloaded from a vessel may remain on Axis piers, without charge for four (4) days, exclusive of Saturdays, Sundays, or legal holidays, from the first 0700 hours after the vessel has completed discharging its cargo. Discharging: Automobiles unloaded from a vessel may remain on Axis piers, without charge for seven (7) days, exclusive of Saturdays, Sundays, or legal holidays, from the first 0700 hours after the vessel has completed discharging its cargo. In the event the consignee or owner of the cargo should make application for delivery of the cargo or portion thereof during the free time period and the terminal should be unable for any reason to make available to the consignee or owner such cargo or portion thereof, the free time shall be extended for a period equal to the terminal s inability to make the cargo available. Undelivered Cargo: Unless otherwise agreed by Axis, cargo which is undelivered and remains on SBMT property beyond the expiration of free time may be relocated within the facility or removed to a public warehouse with all expenses and risk of damage for the account of any Customer with an interest in the cargo.. Axis is to have a lien on all such cargo including that which may be placed in public storage for all terminal charges accrued. Cargo remaining on the terminal facility in excess of forty-five (45) days will be considered abandoned and sold to satisfy all terminal charges as well as all costs of disposing of the cargo, including but not limited to court costs, attorney fees, commissions, surveyor expenses, salvage costs, storage charges and taxes. Fifteen (15) days prior to such sale, a registered return receipt letter of notice will be mailed to the owner of record. Any amount received beyond the charges due the terminal operator will be forwarded to the owner of the cargo if claimed within one year of mailed notice. Miscellaneous Charges Port Security Charge A Port Security Surcharge shall be assessed against vessels or barges subject to 33 CFR Part 104 using the facility at SBMT or any other facility operated by Axis. Vessel owners and/or agents will be assessed a Port Security Surcharge based on the Rates plus twenty (20) percent, which may be changed from time to time by Axis. The surcharge provides a partial offset to increased maritime Security measures implemented by Axis included measures mandated but not compensated by the Maritime Security Act of Water Charges $4.08 per short ton When Axis labor is necessary for furnishing hook up and/or disconnect $ Minimum Charge $1, Electric Charges 15

16 Wharf or shed or portable lights for each 12 hour period or fraction thereof $2.44 per light When Axis labor is necessary for furnishing hook up and/or disconnect Tow Away Charges $78.36 per hour or part thereof Charges for towing vehicles parked in violation of posted signs and or the rules and regulations. This charge is in addition to traffic violation and or storage charges, etc. that may be charged. $62.69 per vehicle Truck Charges Loading or unloading of cargo manifested outside the State of New York shall be assessed $10.00 per trailer. Crane Service Not Available Payment of Bills All bills are due on receipt. Presentation of bills to vessels is done as a matter of accommodation and convenience and shall not constitute a waiver of Axis lien on the vessel for services or supplies furnished the vessel. Axis reserves the right to estimate and collect in advance all charges which may accrue against vessels or against cargo loaded or discharged by such vessel or from other users of waterways and port facilities whose credit has not been properly established with Axis. If Customer fails to make advance payment or otherwise fails to pay Port Tariff Charges when due, then Axis shall have a lien on any of Customer s cargo located at the SBMT facilities and Axis may hold the cargo to secure its lien rights pending settlement of pastdue accounts. Axis reserves the right to apply any payment received against the oldest outstanding invoice. Any Customer who fails to pay any bills when due shall be placed on the delinquent list, conditions of which are established in this Tariff. Delinquent List All Customers placed on the delinquent list, in accordance with the Payment of Bills section of this Tariff may be denied use of the facilities or the right to remove cargo from storage until all such charges, together with any interest and other charges due, shall have been paid. 16

17 Pier Master Fee Axis will collect from all vessels and barges subject to 33 CFR Part 104 that use any facility at SBMT or any other facility operated by Axis, a Pier Masters Fee in the amount of one hundred dollars ($100.00) per vessel call to pay for necessary services required of the Pier Master to defray the necessary expenses attendant upon the execution of the duties devolved upon it in relation to the regulations for safety and convenience of vessels entering said port and waters, or any of them. Safe Harbor Defined Vessels may request safe harbor from Axis but there will be a charge against the owner and or agent for the vessel. The charges are described within this tariff. Any vessels that are granted safe harbor must file a berthing application within twenty-four (24) hours of berthing. Amendments This Tariff may be amended or modified without notice to Customer other than the posting of the amended Tariff on Axis website and with the Federal Maritime Commission. It is the Customer s responsibility to check the terms of Axis current Tariff prior to using SBMT facilities. Damages and Dispute Resolution Notice of claim. If a Customer has a claim against Axis or any other person or entity that arises directly or indirectly out of Customer s use of SBMT facilities, then the Customer must notify Axis in writing of such claim within six months of the events that gave rise to the claim. This notice shall describe the event or incident giving rise to the claim and shall identify specifically the damages suffered or claimed if known. If the claim involves alleged damage to cargo, then Customer must also give Axis written notice within three days of discovering the damage and Customer shall make the cargo available promptly for a joint survey. If the Customer fails to give the notices required by this Tariff, the Customer s claim will be legally waived and barred. Forum clause. If Customer decides to file a legal action against Axis or any other person or entity, that is based in whole or in part, directly or indirectly, from the Customer s use of SBMT facilities, then the United States District Court in Atlanta, Georgia shall have exclusive jurisdiction over the case and Customer agrees not to file its lawsuit in any other court or tribunal, except that (1) the case can be filed in or transferred to the United States District Court for the Southern District of New York if the federal court in Atlanta dismisses the case for improper venue, and (2) the case may be filed in any court with jurisdiction over the case if the federal court lacks subject matter jurisdiction over the 17

18 case. Customer agrees to submit to the jurisdiction of the federal court in Atlanta whether or not that court would otherwise have personal jurisdiction over the Customer. Attorney fees and litigation costs. In any litigation between Customer and Axis, Customer shall pay all of Axis litigation costs, including attorney fees, unless Customer substantially prevails in the litigation. Limitation of damages. Axis shall not be liable for consequential damages for damage to property. --END OF TARIFF-- 18