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Federal Register / Vol. 86, No. 162 / Wednesday, August 25, 2021 / Proposed Rules
the obligations of Surety and financial ability to discharge them.
5. In subpart A of Part 540, revise Form FMC133A to read follows:
Form FMC133A to Subpart A of Part 540
FORM FMC133A
FEDERAL MARITIME COMMISSION
Guaranty in Respect of Liability for Nonperformance
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Guaranty No. lllll FMC Certificate No.lllll 1. Whereas ll Name of applicant Hereinafter referred to as the Applicant is the Owner or Charterer of the passenger Vessels specified in the annexed Schedule the Vessels, which are or may become engaged in voyages to or from United States ports, and the Applicant desires to establish its financial responsibility in accordance with 46 CFR part 540, subpart A, provided that the Federal Maritime Commission FMC shall have accepted, as sufficient for that purpose, the Applicants application, supported by this Guaranty, and provided that FMC shall issue to the Applicant a Certificate Performance Certificate, the undersigned Guarantor hereby guarantees to discharge the Applicants legal liability to indemnify the passengers of the Vessels for nonperformance of transportation within the meaning of 46
CFR part 540.2, in the event that:
1 The passenger makes a request for refund from the Principal in accordance with the ticket contract. If, the ticket contract refund procedure provides less than 180 days, this Guaranty shall be available after written notification to Principal.
2 If the passenger is unable to resolve the claim within 180 days after nonperformance, as defined in 46 CFR
540.2, occurs, the passenger may submit a claim against the Guaranty as per instructions on the Commission website. The claim must include a copy of the boarding pass, proof and amount of payment, cancellation notice, and dated proof of properly filed claim against the Principal. All documentation must clearly display the vessel and voyage with scheduled and actual date of sailing. And, Guarantor reserves the discretion to require a judgement prior to resolving the claim.
3 Valid claims must be paid within 90 days of submission to the Guarantor.
2. The Guarantors liability under this Guaranty in respect to any passenger shall not exceed the amount paid by such passenger; and the aggregate amount of the Guarantors liability
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under this Guaranty shall not exceed $ ll.
3. The Guarantors liability under this Guaranty shall attach only in respect of events giving rise to a cause of action against the Applicant, in respect of any of the Vessels, for nonperformance of transportation within the meaning of 46
CFR 540.2, occurring after the Certificate has been granted to the Applicant, and before the expiration date of this Guaranty, which shall be the earlier of the following dates:
a The date whereon the Certificate is withdrawn, or for any reason becomes invalid or ineffective; or b The date 30 days after the date of receipt by FMC of notice in writing delivered by certified mail, courier service or other electronic means such as email and fax, that the Guarantor has elected to terminate this Guaranty except that: i If, on the date which would otherwise have been the expiration date under the foregoing provisions a or b of this Clause 3, any of the Vessels is on a voyage whereon passengers have been embarked at a United States port, then the expiration date of this Guaranty shall, in respect of such Vessel, be postponed to the date on which the last passenger on such voyage shall have finally disembarked; and ii Such termination shall not affect the liability of the Guarantor for refunds arising from ticket contracts made by the Applicant for the supplying of transportation and other services prior to the date such termination becomes effective.
4. If, during the currency of this Guaranty, the Applicant requests that a vessel owned or operated by the Applicant, and not specified in the annexed Schedule, should become subject to this Guaranty, and if the Guarantor accedes to such request and so notifies FMC in writing or other electronic means such as email and fax, then, provided that within 30 days of receipt of such notice, FMC shall have granted a Certificate, such Vessel shall thereupon be deemed to be one of the Vessels included in the said Schedule and subject to this Guaranty.
5. The Guarantor hereby designates l l, with offices at ll, as the Guarantors legal agent for service of process for the purposes of the Rules of the Federal Maritime Commission, in accordance with 46 CFR part 540, subpart A
lllllllllllllllllll Place and Date of Execution lllllllllllllllllll Type Name of Guarantor lllllllllllllllllll Type Address of Guarantor
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By lllllllllllllllllll Signature and Title Schedule of Vessels Referred to in Clause 1
Vessels Added to This Schedule in Accordance With Clause 4
D 6. In Subpart A of Part 540, revise Appendix A to Subpart A of Part 540
Example of Escrow Agreement for Use Under 46 CFR 540.5b to read as follows:
Appendix A to Subpart A of Part 540
Example of Escrow Agreement for Use Under 46 CFR 540.5b Escrow Agreement This Escrow Agreement, made as of this llday of month & year, by and between Customer, a corporation/company having a place of business at Customer ll and Banking Institution name & address a banking corporation, having a place of business at Escrow Agent.
Witnesseth:
Whereas, Customer wishes to establish an escrow account in order to provide for the indemnification of passengers in the event of non-performance of water transportation to which such passengers would be entitled, and to establish Customers financial responsibility therefore; and Whereas, Escrow Agent wishes to act as Escrow Agent of the escrow account established hereunder;
Now, Therefore, in consideration of the premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Customer has established on month, &
year the Commencement Date an escrow account with the Escrow Agent which escrow account shall hereafter be governed by the terms of this Agreement the Escrow Account. Escrow Agent shall maintain the Escrow Account in its name, in its capacity as Escrow Agent.
2. Customer will determine, as of the date prior to the Commencement Date, the amount of unearned passenger revenue, including any funds to be transferred from any predecessor Escrow Agent. Escrow Agent shall have no duty to calculate the amount of unearned passenger revenue. Unearned Passenger Revenues are defined as that passenger revenue received for water transportation and all other accommodations, services and facilities relating thereto not yet performed. 46 CFR 540.2i.
3. Customer will deposit on the Commencement Date into the Escrow Account cash in an amount equal to the amount of Unearned Passenger Revenue determined under Paragraph 2 above plus a cash amount the Fixed Amount equal to 10 percent of the Customers highest Unearned Passenger Revenue for the prior two fiscal years. For periods on or after year of agreement 2009, the Fixed Amount shall be determined by the Commission on an
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