Appendix C to Part 515 - Ocean Transportation Intermediary (OTI) Guaranty Form [Form 68]
46:9.0.1.2.10.7.1.1.10 : Appendix C
Appendix C to Part 515 - Ocean Transportation Intermediary (OTI)
Guaranty Form [Form 68]
Form FMC-68 Federal Maritime
Commission
Guaranty in Respect of Ocean Transportation Intermediary (OTI)
Liability for Damages, Reparations or Penalties Arising from
Transportation-Related Activities Under the Shipping Act of 1984
(46 U.S.C. 40101-41309) (Shipping Act).
1. Whereas __ (Name of Applicant [indicate whether NVOCC or
Freight Forwarder]) (hereinafter “Applicant”) is or may become an
Ocean Transportation Intermediary (“OTI”) subject to the Shipping
Act of 1984 (46 U.S.C. 40101-41309) and the rules and regulations
of the Federal Maritime Commission (FMC), or is or may become a
group or association of OTIs, and desires to establish its
financial responsibility in accordance with section 19 of the
Shipping Act (46 U.S.C. 41107-41109), then, provided that the FMC
shall have accepted, as sufficient for that purpose, the
Applicant's application, supported by evidence of a financial
rating for the Guarantor of Class V or higher under the Financial
Size Categories of A.M. Best & Company or equivalent from an
acceptable international rating organization on such rating
organization's letterhead or designated form, or, in the case of
Guaranty provided by Underwriters at Lloyd's, documentation
verifying membership in Lloyd's, or, in the case of surplus lines
insurers, documentation verifying inclusion on a current “white
list” issued by the Non-Admitted Insurers' Information Office of
the National Association of Insurance Commissioners, the
undersigned Guarantor certifies that it has sufficient and
acceptable assets located in the United States to cover all damages
arising from the transportation-related activities of the covered
OTI as specified under the Shipping Act.
2. Whereas, this Guaranty is written to ensure compliance by the
Applicant with section 19 of the Shipping Act (46 U.S.C.
40901-40904), and the rules and regulations of the Federal Maritime
Commission relating to evidence of financial responsibility for
OTIs (46 CFR part 515), this guaranty shall be available to pay any
judgment obtained or any settlement made pursuant to a claim under
46 CFR 515.23 for damages against the Applicant arising from the
Applicant's transportation-related activities under the Shipping
Act, or order for reparations issued pursuant to section 11 of the
Shipping Act (46 U.S.C. 41301-41302, 41305-41307(a)), or any
penalty assessed against the Applicant pursuant to section 13 of
the Shipping Act (46 U.S.C. 41107-41109).
3. Now, Therefore, The condition of this obligation is that the
penalty amount of this Guaranty shall be available to pay any
judgment obtained or any settlement made pursuant to a claim under
46 CFR 515.23 for damages against the Applicant arising from the
Applicant's transportation-related activities or order for
reparations issued pursuant to section 11 of the Shipping Act (46
U.S.C. 41301-41302, 41305-41307(a)), or any penalty assessed
against the Principal pursuant to section 13 of the Shipping Act
(46 U.S.C. 41107-41109).
4. The undersigned Guarantor hereby consents to be sued directly
in respect of any bona fide claim owed by Applicant for damages,
reparations or penalties arising from Applicant's
transportation-related activities under the Shipping Act, in the
event that such legal liability has not been discharged by the
Applicant after any such claimant has obtained a final judgment
(after appeal, if any) against the Applicant from a United States
Federal or State Court of competent jurisdiction and has complied
with the procedures for collecting on such a judgment pursuant to
46 CFR 515.23, the FMC, or where all parties and claimants
otherwise mutually consent, from a foreign court, or where such
claimant has become entitled to payment of a specified sum by
virtue of a compromise settlement agreement made with the Applicant
and/or Guarantor pursuant to 46 CFR 515.23, whereby, upon payment
of the agreed sum, the Guarantor is to be fully, irrevocably and
unconditionally discharged from all further liability to such
claimant. In the case of a guaranty covering the liability of a
group or association of OTIs, Guarantor's obligation extends only
to such damages, reparations or penalties described herein as are
not covered by another insurance policy, guaranty or surety bond
held by the OTI(s) against which a claim or final judgment has been
brought.
5. The Guarantor's liability under this Guaranty in respect to
any claimant shall not exceed the amount of the guaranty; and the
aggregate amount of the Guarantor's liability under this Guaranty
shall not exceed the amount per OTI set forth in 46 CFR 515.21, or
the amount per group or association of OTIs set forth in 46 CFR
515.21 in aggregate.
6. The Guarantor's liability under this Guaranty shall attach
only in respect of such activities giving rise to a cause of action
against the Applicant, in respect of any of its
transportation-related activities under the Shipping Act, occurring
after the Guaranty has become effective, and before the expiration
date of this Guaranty, which shall be the date thirty (30) days
after the date of receipt of mail or email ([email protected])
written notice to the Director, Bureau of Certification and
Licensing, Federal Maritime Commission, Washington, DC 20573, that
either Applicant or the Guarantor has elected to terminate this
Guaranty. The Guarantor and/or Applicant specifically agree to file
such written notice of cancellation.
7. Guarantor shall not be liable for payments of any of the
damages, reparations or penalties hereinbefore described which
arise as the result of any transportation-related activities of
Applicant after the cancellation of the Guaranty, as herein
provided, but such cancellation shall not affect the liability of
the Guarantor for the payment of any such damages, reparations or
penalties prior to the date such cancellation becomes
effective.
8. Guarantor shall pay, subject to the limit of the amount per
OTI set forth in 46 CFR 515.21, directly to a claimant any sum or
sums which Guarantor, in good faith, determines that the Applicant
has failed to pay and would be held legally liable by reason of
Applicant's transportation-related activities, or its legal
responsibilities under the Shipping Act and the rules and
regulations of the FMC, made by Applicant while this agreement is
in effect, regardless of the financial responsibility or lack
thereof, or the solvency or bankruptcy, of Applicant.
9. The Applicant or Guarantor will promptly notify the Director,
Bureau of Certification and Licensing, Federal Maritime Commission,
Washington, DC 20573, in writing by mail or email
([email protected]), of all claims made, lawsuits filed, judgments
rendered, and payments made under the Guaranty.
10. Applicant and Guarantor agree to handle the processing and
adjudication of claims by claimants under the Guaranty established
herein in the United States, unless by mutual consent of all
parties and claimants another country is agreed upon. Guarantor
agrees to appoint an agent for service of process in the United
States.
11. This Guaranty shall be governed by the laws in the State of
__ to the extent not inconsistent with the rules and regulations of
the FMC.
12. This Guaranty is effective the day of __, __, __ 12:01 a.m.,
standard time at the address of the Guarantor as stated herein and
shall continue in force until terminated as herein provided.
13. The Guarantor hereby designates as the Guarantor's legal
agent for service of process domiciled in the United States __,
with offices located in the United States at __, for the purposes
of enforcing the Guaranty described herein.
(Place and Date of Execution) (Type Name of Guarantor) (Type
Address of Guarantor) By (Signature and Title) [80 FR 68738, Nov.
5, 2015]