§ 390.12 Liquidated damages. ( a ) *Liquidated damages* — ( 1 ) *In general.* Each agreement entered into under Chapter 535 shall contain a liquidated damages provision for the purpose of placing the party into its prefund position for each day a qualified agreement vessel is operated in violation of the geographic trading restrictions contained in the Act and § 390.5. The liquidated damages provision requires that the party repay the time value of the deferral of Federal Income Tax which the party has received.
( 2 ) *Calculation of liquidated damages.* The liquidated damages specified in this paragraph shall be calculated as follows: ( i ) With respect to each vessel operated in violation of the applicable trading restrictions, add ( A ) the sum of qualified withdrawals for the vessel which have been made from the ordinary income and capital gain accounts to the date of breach, and
( B ) the amount of any unpaid principal on indebtedness for the vessel which may be paid from the fund less any portion of such amount which by operation of law must be withdrawn from the capital account balance on deposit in the fund on the date of the breach.
( ii ) Multiply the total derived in paragraph (a)(2)(i) of this section by an assumed effective Federal Income Tax rate of 30 percent;
( iii ) Compound the product derived in paragraph (a)(2)(ii) of this section at 8 percent annually ( A ) for 20 years, if the duration of the trading restrictions applicable to the vessel is 20 years in accordance with paragraph (b)(1)(i) of this section;
( B ) for 10 years, if the duration of the trading restrictions applicable to the vessel is 10 years in accordance with paragraphs (b)(1) (ii), (iii) or (iv) of this section; or
( C ) for 5 years, if the duration of the trading restrictions applicable to the vessel is 5 years in accordance with paragraph (b)(1)(iv) of this section.
( iv ) Subtract the amount calculated in paragraph (a)(2)(ii) of this section from the product derived in paragraph (a)(2)(iii) of this section;
( v ) Divide the result derived in paragraph (a)(2)(iv) of this section by 2; and
( vi ) Divide the result derived in paragraph (a)(2)(v) of this section ( A ) by 7300 (days) if the duration of the trading restrictions applicable to the vessel is 20 years;
( B ) by 3650 (days) if the duration of the trading restrictions applicable to the vessel is 10 years; or
( C ) by 1825 (days) if the duration of the trading restrictions applicable to the vessel is 5 years.
( 3 ) *Formula.* The calculation of the daily rate of liquidated damages may be reduced to the following formula: *X* = [*I*(*QT*)−*S*]/2*D* Where: *X* = Daily rate in dollars. *Q* = Summation of qualified withdrawals, other than withdrawals from the capital account, permitted from the fund. *T* = Assumed effective tax rate of 30 pct. *S* = Tax savings = (*Q*)(*T*). *I* = Discount factor to be applied for vessels subject to 20-yr trading restriction = 4.660957; for vessels subject to 10-yr trading restriction = 2.158925; for vessels subject to 5-yr trading restriction = 1.469328 (value of $1 compounded at 8 pct for 20, 10, and 5 yr respectively). *D* = 7,300 d for vessels subject to 20-yr trading restriction; 3,650 d for vessels subject to 10-yr trading restriction; 1,825 d for vessel subject to 5-yr trading restriction.
The formula may be further reduced to: *X* = 0.5491436*Q*/7,300 for vessels subject to 20 year trading restriction, *X* = 0.1738388*Q*/3,650 for vessels subject to 10 year trading restriction, *X* = 0.0703992*Q*/1,825 for vessels subject to 5 year trading restriction.
( 4 ) *Example.* The provisions of paragraphs (c)(2) and (c)(3) of this section may be illustrated by the following example: Assume that a qualified agreement vessel has been constructed with qualified withdrawals from a fund. The total cost was $20 million of which $6 million was withdrawn from the fund for a downpayment. Pursuant to the agreement, an additional $4 million may be withdrawn from the fund to pay principal on indebtedness. Thus, $10 million has been or may be withdrawn from the fund with respect to this vessel. The daily rate of liquidated damages would be: *X* = 0.5491436 (10,000,000)/7300 or *X* = $752.25
( 5 ) *Payment of liquidated damages.* The amount derived in paragraph (a)(2) of this section shall be the daily rate of liquidated damages and shall be paid to the Maritime Administrator, for deposit in the Treasury of the United States, within 30 days from the date the qualified agreement vessel first entered the prohibited geographic trade and shall be for all amounts owing from such date thereafter until the date payment is due. Payments, for continuing breaches, shall be made at 30 day intervals.
( 6 ) *Other remedies.* Nothing in this paragraph shall diminish the Maritime Administrator's other remedies for breach under the Act, the rules and regulations or the agreement.
( b ) *Duration of restrictions* — ( 1 ) *In general.* The geographic trading restrictions in the Act and § 390.5 and the liquidated damages provision shall apply for: ( i ) 20 years from the date of final delivery on qualified agreement vessels constructed or acquired within one year of final delivery from the shipyard with the aid of qualified withdrawals;
( ii ) 10 years from the date of completion of reconstruction for qualified agreement vessels reconstructed with the aid of qualified withdrawals;
( iii ) 10 years from the date of acquisition of qualified agreement vessels acquired with the aid of qualified withdrawals more than one year after final delivery of the vessel from the shipyard;
( iv ) 10 years from the date of the first qualified withdrawal from the fund to pay the existing indebtedness on a qualified agreement vessel which was included in Schedule B for that purpose unless the qualified vessel was more than fifteen years old on the date of the first qualified withdrawal in which case the period shall be five years.
( 2 ) *Transfer of qualified agreement vessel.* In the event a qualified agreement vessel is sold or transferred to another person (see paragraph (b)(3) of § 390.11 requiring prior permission), the transferor shall require in the bill of sale that the transferee agree with the Maritime Administrator to comply with the geographic trading restrictions and to pay liquidated damages for any breach of such agreement that occurs after the transfer. The transferor shall remain liable for any violations that occurred prior to the approved transfer. However, in the case of a like kind exchange which is governed by section 1031 of the Internal Revenue Code of 1986, as amended, if the vessel acquired by the party has an economic life equal to or greater than the length of the geographic trading restrictions that remain applicable to the transferred vessel, the acquired vessel shall be deemed to be a qualified agreement vessel and the geographic trading restrictions of the transferred vessel shall attach to the acquired vessel.
[41 FR 4265, Jan. 29, 1976, as amended at 42 FR 34283, July 5, 1977; 73 FR 56740, Sept. 30, 2008]