- Application of conditions
- Provision of services
- Hazardous goods and waste
- Import and export goods
- User warranties
- User indemnities
- Miscellaneous provisions
- Use of facilities
means the Council of the Borough of Torbay as statutory and/or competent and/or designated harbour authority operating as Tor Bay Harbour Authority;
means the Brixham Harbour & Market Act 1837, Paignton Pier Act 1874, Torquay Harbour & District Act 1886, Torbay Order 1966, Tor Bay Harbour Act 1970, Paignton Pier Revision Order 1982, Tor Bay Harbour (Torquay Marina &c.) Act 1983, Berry Head and Berry Head (Southern Redoubt) (Areas of Special Protection) Order 1984 & Amendment Order 1988, Tor Bay Harbour (Oxen Cove & Coastal Footpath, Brixham) Act 1988, & Tor Bay Harbour Revision Order 2000;
means the Tor Bay Harbour Byelaws of 1994 and any other byelaws as made by THA from time to time;
means vessel and any other rates, dues, tolls, levy rents, fees and charges levied by THA in accordance with the current Tor Bay Harbour Authority Schedule of Charges, Dues & Fees and any other sum payable to THA;
means special, general or pilotage directions made by T.H.A and any port user handbook issued by THA;
means: at Torquay the area of water enclosed by an imaginary line drawn from the western end of Haldon Pier to the south eastern end of Princess Pier; at Paignton the area of water enclosed by an imaginary line drawn from the eastern end of North Quay to the northern end of Eastern Quay; and at Brixham the area of water enclosed by the Breakwater, an imaginary line from the northern end of the Breakwater to Battery Point and the shore;
means any plant, machinery, container, package, case, pallet, vehicle, trailer, truck, wagon or other piece of equipment of any nature whatsoever;
means any mooring, berth, boat-park space, tender rack, locker, store etc.;
means the person or persons allocated the use of a Facility by THA on completion of a Facility application agreement;
means cargo, livestock and all other goods of whatever nature (including any package or container whatsoever in which goods are packed or conveyed) and which may not be in the ownership of the User;
means any area of land, premises or water owned, leased or operated by Tor Bay Harbour Authority, including for the avoidance of doubt that area of water within the Harbour Limits, and includes the Harbour Estate;
means the piers, wharves, quays, jetties, stages, berths, pontoons, slipways, roads, sheds, and other works and conveniences and the lands, buildings and property of every description and of whatever nature which are for the time being vested in or occupied by THA and used for the purpose of the harbour undertaking;
means Tor Bay Harbour limits as defined in Parts I and II of the Schedule to the Tor Bay Harbour Act of 1970;
means the Harbour Master appointed by T.H.A, his deputy or any nominee of theirs and any other person authorised to act in that capacity;
means any harbour office in Tor Bay, Torquay, Brixham and Paignton;
means any persons other than THA with or claiming to have any proprietary or possessory interest in any Goods, Vessel or Equipment or other property and their assignees or successors in title - and in relation to Goods, includes any consignor, consignee, shipper, receiver or agent for the sale, receipt, custody, loading or unloading and clearance of those goods, and any other person in charge of the goods and his agent in relation thereto; in relation to a vessel, includes any part-owner, broker, charterer, sub-charterer agent or mortgagee in possession of the vessel or other person or persons entitled for the time being to possession of the vessel (and when used in relation to a vehicle or equipment, includes any part-owner or agent or person having charge of the vehicle or equipment for the time being); and in relation to other property includes lessors;
means any quay, wharf, pier, jetty, dolphin, landing stage or structure, pontoon, berth, mooring or other place at which Vessels can load or discharge or embark or disembark passengers or vehicles, and includes any pier, bridge, roadway or footway immediately adjacent and affording access thereto as well as the waters surrounding the same, all within the Harbour Limits;
means any employee, agent, driver, contractor, sub-contractor, master or any other person having command or crew of any Vessel;
means any private leisure or commercial service or facility that Tor Bay Harbour Authority provides to the User including the Facilities;
means these General Terms & Conditions;
means (a) any person who enters the Harbour Area; (b) any Facility Holder or any person who or by any Representative requests or receives the benefit of any Services; (c) any Owner or carrier of any Vessel, Goods or Equipment which may be on or come into the Harbour Area and (d) any representative or successor in title of the User;
means any vessel, ship, craft, boat, multihull, yacht, dinghy, jet ski, marine structure and includes watercraft of every description however propelled or moved including non-displacement craft and everything constructed or used to carry persons or goods by water.
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- Words importing the neuter gender only include the masculine and feminine genders, words importing the masculine gender only include the feminine gender and vice versa.
- Words importing the singular number only shall include the plural number and vice versa. Where there are two or more persons included in the expression “User” then obligations undertaken by the User shall be obligations undertaken by such persons jointly and severally.
- Any reference to an Act of Parliament or Statutory Instrument shall include any modification, extension or re-enactment thereof for the time being in force and shall also include all instruments, orders, plans, regulations, permissions and directions for the time being made, issued or given thereunder or deriving validity therefrom.
- Condition headings are for ease of reference and do not form part of or affect the interpretation of these Terms.
- Any phrase introduced by the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words following those terms.
- Any reference to “person” includes any natural person, company, body corporate or un-incorporate or other judicial person, partnership, firm, joint venture or trust.
- The rights of THA under these Terms are in addition to the rights and powers conferred by statute, statutory instrument, the Acts, the Byelaws and the Directions. In the event of any conflict between these Terms and any statute, statutory instrument, the Byelaws or the Directions (“legislation”) the legislation shall prevail. Nothing in these Terms shall prejudice the right of THA, in any circumstance, to rely on any statutory provision including the Merchant Shipping Acts, Harbours Act and any other statute.
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3. Application of Conditions
- These Terms shall apply:
- to all Services provided by THA whether directly or indirectly and whether within the Harbour Area or elsewhere, including the licence or use of a Facility;
- to all physical access by any Vessel, person, Goods or Equipment to or from the Harbour Area.
- In the absence of express acceptance of these Terms by the User, acceptance shall be constituted in the event of the entry of any Vessel, person, Goods or Equipment into or onto the Harbour Area or by application (oral or otherwise) to THA for entry to the Harbour Area, for any Services or the use of any Facility by or on behalf of any User.
- Subject to Condition 3.4, no terms or conditions whether express or implied which are at variance with these Terms shall apply unless and to the extent that they have been agreed in writing by THA.
- THA may issue special terms and conditions governing the provision of certain services. Such special terms and conditions shall apply in respect of those certain services. These Terms shall continue to apply to those certain services as well to the extent that they are not at odds with the special terms and conditions.
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4. Provision of Services
- Subject to any other provisions of these Terms, THA shall exercise reasonable skill and care in carrying out the Services. No greater obligation, express or implied, is accepted.
- THA reserves the right to appoint sub-contractors to perform all or any part of the Services. Any sub-contractor shall have the benefit of these Terms. THA shall have no greater obligation or liability in respect of any sub-contracted services than it would have had if the Services had been provided by them directly.
- Unless specifically otherwise agreed in writing with the User, where THA provides Services in respect of Goods or Equipment being loaded onto or unloaded from or passengers and their Goods or Equipment embarking or disembarking from any Vessel, it does so purely as an agent of the actual and/or contractual carrier.
- THA shall have absolute discretion in the handling, storage and transportation of any Vessel, Goods or Equipment and in the allocation of Facilities, Quays, plant, machinery, labour and storage space.
- Other than as provided for in section 33 of the Harbours, Docks, and Piers Clauses Act 1847, THA may in its absolute discretion:
- refuse to permit any User to enter the Harbour Area and refuse to accept any Vessel, Goods or Equipment on or into the Harbour Area;
- require any User, Vessel, Goods or Equipment who/which has entered the Harbour Area to leave it or require the same to be removed at any time;
- decline to undertake or suspend the performance of all or any part of the Services.
- In such event, THA shall not have any liability and shall not be liable to pay any compensation in respect thereof.
- Following any exercise of THA’s rights under Condition 4.5, the User shall remove the Vessel, Goods or Equipment from the Harbour Area within 48 hours, or sooner if required by the Harbourmaster. THA shall refund any Charges paid in advance in respect of Services not performed but may deduct any sums due to it as well as any loss, damage, liability, cost or expense incurred by or caused to THA by or in respect of such Vessel, Goods or Equipment.
- In the event that:
- the User fails to remove the Vessel, Goods or Equipment from the Harbour Area within 48 hours following the exercise of any of THA’s rights under Condition 4.5;
- any Goods or Equipment are not collected and removed from the Harbour Area by the User at the time of landing; or
- the User fails to remove any Goods or Equipment which are deemed to be an imminent threat to the safe operation of the harbour as contained within the Harbour Area
- THA shall be entitled at the expense and sole risk of the User to remove and place wherever THA (acting reasonably) deems appropriate such Vessel and/or Goods or Equipment. Charges for transit shed, Quay rental and any other storage will be made where appropriate.
- In the event of any Vessels, Goods or Equipment within the Harbour Area being or reasonably appearing to be in disrepair, sinking, neglected, abandoned or to pose a risk to safety or the environment or to be injurious to the amenity of the harbour, THA shall be entitled at the risk and expense of the User and Owner:
- immediately to remove to any place THA shall in its discretion consider fit and where necessary dispose of such Vessels, Goods or Equipment in the case of hazard or other emergency without prior notice; and
- generally to remove to any place THA shall in its discretion consider fit and dispose of or sell such Vessels Goods or Equipment on reasonable notice to the User (the length of such notice to be determined by THA in its sole discretion acting reasonably on a case by case basis).
- If the User’s contact details are not known to THA then THA shall be entitled to remove and dispose of or sell such Vessel, Goods or Equipment after leaving written notice on the Vessel, Goods or Equipment and in each case to charge for the reasonable costs incurred in respect of the removal, storage and disposal/sale of such Vessel, Goods or Equipment.
- The User shall notify the Harbour Master as soon as practicable after becoming aware of:
- any vessel that has sunk or grounded in the harbour or the occurrence of any accident within the Harbour Limits;
- any defect in the harbour infrastructure including breakwaters, Quays, mooring chains, ropes, buoys, pontoon berthing or water/electrical/safety appliances.
- If a Vessel sinks or partially sinks within the Harbour Limits, THA shall be entitled to raise and salvage the Vessel and to recover from the User reasonable charges, fees and expenses incurred in respect thereof. Where reasonably practicable the User will be given prior warning that THA is about to exercise its rights under this clause.
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- The User shall be liable for all Charges, payments, fines and expenses due in connection with any Vessel, Goods or Equipment and for any loss and/or damage suffered or incurred by THA in connection therewith.
- On the earlier of (i) request by the Harbour Master or THA and (ii) 24 hours of a Vessel entering the Harbour Area, the master/skipper, or Owner, or agent of such Vessel shall furnish, as appropriate:
- the gross value of any fish, fish products and shellfish landed direct from the sea (vessel’s own catch either fresh or frozen);
- the description of Goods or Equipment loaded and unloaded (or to be loaded and unloaded) including number of packages, gross weight and port to which the Goods or Equipment are to be shipped/port from which the Goods or Equipment have arrived,
- any passengers embarked and disembarked (or to be embarked or disembarked),
- the name of the Vessel,
- the name and address of the User or the User’s Representative to whom Charges are to be rendered;
- details of the length (measured to the next highest full metre) and draft of the Vessel;
- any other information requested by THA or required to be disclosed to THA under the Merchant Shipping (Vessel Traffic Monitoring and Reporting Requirements) Regulations 2004, prior to arrival.
- Unless otherwise stated (as for example in the T.H.A Schedule of Charges, Dues & Fees), all sums payable to THA are exclusive of value added tax and any other duty or tax, which shall (to the extent applicable) be payable by the User at the rate and in the manner from time to time prescribed by law.
- Other than as prescribed by the Tor Bay Harbour Act of 1970, payment of all sums due to THA shall be made within 30 calendar days of receipt of the Services or request for payment, whichever shall occur earlier. Payment shall be made without deduction, withholding, abatement, set-off, or any counterclaim whatsoever, save as may be required by law. All payments shall be made in cleared funds in GB pounds sterling. If THA agrees to accept payment in any other currency other than GB pounds sterling, the User shall be liable for an additional handling charge, which shall be calculated at the sole discretion of THA.
- Other than as prescribed by the Tor Bay Harbour Act of 1970, interest shall accrue to THA on any sums outstanding for the period from the due date to the date of payment (i) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or (ii) where the said Act is not applicable, at 4 per cent per annum above the base lending rate of the Bank of England. Notwithstanding any other provision within these Terms, if the User fails to pay any Charges due to THA, THA shall have the right to suspend provision of any and all Services without penalty, until such time as payment is made in full.
- Subject to all applicable laws and regulations, THA shall have a general and specific lien over any Vessel, Goods or Equipment and all documents relating thereto in respect of its Charges and in respect of any other indebtedness to THA of the User or the owner of such Vessel, Goods or Equipment. THA shall be entitled to refuse to deliver up any Vessel, Goods or Equipment until all such sums have been paid. Storage and other charges accruing shall continue to accrue during such period. If any sums remain unpaid for a period of 60 days from the invoice date, THA shall be entitled to take possession of any such Vessel, Goods or Equipment and to sell or otherwise dispose of them, reimbursing the User the sale proceeds less sums due to THA and the reasonable sale costs and expenses incurred by THA, who shall have no liability in this regard.
- In the exercise of its lien under Condition 5.6(a) THA reserves to itself absolute discretion as to the means and procedure to be followed in the handling, storage and transportation of any Vessel, Goods or Equipment notwithstanding any express instructions given by the User in relation thereto.
- If the User ceases to trade (either in whole, or as to any part or division involved in the performance of these Terms) or becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or agreement with its creditors or if an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or (being an individual) the User shall become bankrupt or make any composition or arrangement with its creditors, or anything analogous happens in any jurisdiction, then THA shall be entitled immediately to recover from the User or any other person liable for the Charges (notwithstanding that the periods stated above or any period of credit extended to the User may not have expired) all sums then due to THA (including any accrued interest and other Charges properly levied in accordance with these Terms) and all loss and expense incurred by THA as a result of such circumstances arising.
- Other than prescribed by the Tor Bay Harbour Act of 1970, any query to be raised by the User on any invoice issued by THA must be made in writing within 30 days of the invoice date failing which, the User shall be deemed to have accepted the invoice.
- Any Vessel loading and/or discharging personnel, Goods or Equipment and using onboard or off-board lifting equipment onto/off any pier will be deemed as having berthed alongside. This includes Vessels alongside but held in position by DP (dynamic positioning).
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6. Hazardous goods and waste
- The User shall remove from the Harbour Area and properly and safely dispose of all trade and other waste as often as necessary or as reasonably directed by THA Failure so to act will give THA the power to remove such trade or other waste at the User’s expense.
- No waste material or goods of a dangerous, hazardous or poisonous nature will be handled by THA except with prior approval of the Harbour Master and then only in accordance with conditions prescribed by them and all applicable laws, regulations, regulatory requirements and codes of practice.
- The User warrants that any approved waste material or goods of a dangerous, hazardous or poisonous nature are stored in suitable containers and properly marked with a warning as to the hazardous nature of any contents and the precautions to be taken in handling the same (in the event of the escape of anything injurious therefrom) as may be necessary to ensure the safety and health of all persons likely to handle or come into contact with the same.
- In addition to the powers as provided by the Tor Bay Harbour Act of 1970, THA shall be entitled to remove and dispose of any trade or other waste material or goods of a dangerous, hazardous or poisonous nature found within the Harbour Area in contravention of Conditions 6.1, 6.2 and/or 6.3 and recover their reasonable costs in respect thereof from the User. THA shall have no liability in respect thereof.
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7. Import And Export Goods
- Authorisation for the removal of imported Goods or Equipment shall not be granted by THA unless such Goods or Equipment are correctly released and cleared with no statutory or other holds.
- The User shall be responsible for all import duties, levies, fines and charges relating to the Vessel, Goods or Equipment.
- The User shall indemnify THA against any and all claims made against THA by H.M. Revenue & Customs and any other duties, levies, fines, charges and expenses in respect of such Vessel, Goods or Equipment.
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8. User Warranties
- The User warrants to THA that it is either the owner of the Vessel, Goods or Equipment or it has the authority and consent for itself and for and on behalf of all persons having any title to or interest in any Goods, Equipment or Vessel to accept these Terms and has specifically notified these Terms to such persons.
- Finance companies, lessors and others having or claiming to have title to or an interest in such Goods, Equipment or Vessel are advised that unless THA is notified in writing of their title or interest in any particular Goods, Equipment or Vessel prior to the commencement of/or during any relationship between THA and the User, these Terms shall be deemed to have been accepted with the authority of such persons. Such persons’ rights over and in respect of the Goods, Equipment or Vessel shall be subordinated to the rights of THA hereunder.
- The User warrants that its employees (and those of any agents or contractors it may engage including hauliers and stevedores) are properly trained and competent to carry out the tasks assigned to them at the time those tasks are assigned and undertaken including in relation to the giving of any instructions to THA or the inputting of any information into any electronic device or system operated or managed on behalf of THA The User warrants that such persons have the full authority to give such instructions or input such information.
- The User warrants that it and its Representatives shall at all times comply in all respects with all applicable laws, regulations, codes of practice and international conventions relating to the Harbour Area (including the Acts, Byelaws, Directions and requirements of THA) and to the Vessel, Goods or Equipment (including navigation, manning, carriage, packing, handling, storage and movement) and with all other statutory duties, requirements and obligations incumbent on the User. The User warrants that it shall at all times keep any Vessel, Goods or Equipment within the Harbour Area in a full and sufficient state of maintenance and repair and (in the case of any Vessel) in sound, watertight and seaworthy condition.
- The User warrants that it shall obtain and maintain at its own expense, all necessary permits, licences and authorisations relating to the carriage, handling, storage and movement of the Vessel, Goods or Equipment.
- The User warrants that it shall immediately inform the Harbour Master of any occurrence or incident which might affect the safe and efficient operation of the Harbour Area or other persons at the Harbour Area or result in adverse environmental impact and shall take, at its own cost, such reasonable steps to control or eliminate any danger or inconvenience arising as a result of the Vessel, Goods or Equipment, as may be required by THA.
- Save as otherwise agreed with THA and (if applicable) in accordance with Condition 6.3, the User warrants that while within the Harbour Area any Goods or Equipment or Vessel:
- are not dangerous, hazardous, poisonous, toxic, radioactive, flammable or injurious or liable to become so (other than distress signals/flares which are to be safely stowed);
- will not contaminate or cause danger, injury, pollution or damage to any person, the Harbour Area, any other Goods, Equipment or Vessel or the environment;
- are not rotten, infested, verminous or subject to fungal attack or liable to become so;
- do not require for their safekeeping, any special protection arising from vulnerability to heat, cold, natural or artificial light, moisture, salt, pilferage, vandalism or proximity to other goods or from their flammability but will remain safe if left standing in the open on the Harbour Area or in covered accommodation (if agreed with THA);
- contain no unauthorised or controlled substances, contraband, pornographic material, sanctioned or other illegal matter;
- are properly and sufficiently packed, documented and labelled in accordance with all applicable laws, regulations, regulatory requirements and codes of practice for all shipping, handling, storage, dispatch, customs and like purposes; and
- are in a safe, fit and proper condition to be handled or otherwise dealt with by THA, its equipment and its employees, agents and subcontractors.
- The User warrants that it shall not:
- use any devices which attempt to block radio signals (including without limitation G.P.S.) whilst on the Harbour Area;
- interfere with any systems, communication links and equipment or computer hardware and software whilst on the Harbour Area;
- use or attempt to use any devices or software to gain access to unauthorised data and information;
- use any devices which transmit radio signals without the prior written consent of THA save that the User may use marine band and radar radio frequencies and wi-fi.
- The User warrants the accuracy of all descriptions, weights, values and other particulars relating to Goods and Equipment furnished to THA for handling, customs and other purposes. THA shall not be responsible for checking the accuracy of any documentation handled by it.
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- Nothing in these Terms shall exclude or in any way limit THA’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent the same may not be excluded or limited by law.
- Any Vessel, Goods or Equipment, when located within the Harbour Area, are entirely at the User’s and Owner’s own risk. THA will not be responsible for the safe custody of any Vessel, Goods or Equipment entering the Harbour Area or for any damage to such Vessel, Goods or Equipment. THA has no custody of any Vessel, Goods or Equipment within the Harbour Area and the User must arrange to have them watched appropriately while they remain within the Harbour Area.
- THA shall have no liability whatsoever in respect of any of the following howsoever caused or arising and whether or not the same was foreseeable, known or otherwise: (a) any indirect, incidental, special or consequential loss or damage; (b) loss of actual or anticipated income, profits, contracts, licence, catch, goodwill, or business; (c) loss of anticipated savings; (d) loss which might reasonably have been avoided or minimised by the User; (e) betterment; and (f) any increased costs or expenses or both.
- THA shall have no liability for any loss, damage, cost, expense or delay caused by or arising directly or indirectly as a consequence of any of the following: (a) acts, events or omissions beyond its reasonable control; (b) force majeure (including adverse weather, storm, high winds, lightning, earthquake, tidal wave, storm surge, flood or disease); (c) strikes, lock-out or other industrial disputes (whether involving the workforce of THA or any other party); (d) interruption, disruption or failure of any utility service or transport network; (e) war, riot or civil commotion; (f) malicious damage, theft (unless proved to have been committed by an employee of THA) or piracy; (g) wear and tear, leakage, insufficient or unsuitable packaging or addressing or latent defect of Goods or Equipment; (h) compliance with any law or governmental or official order, rule, regulation, direction or guidance; (i) accident; (j) damage to or breakdown of plant or failure of Equipment including computer hardware, computer software, telephone, radio satellite or other communication systems, alarm, locking mechanisms, C.C.T.V. machinery (including computer hardware, computer software, telephone, radio satellite or other communication systems, alarm or C.C.T.V. or refrigeration equipment); (k) loss/deletion or unauthorised access of data; (l) fire (including steps to extinguish fire) heat or smoke; (m) temperature variation, mould or corrosion, exposure to heat or cold or light, vermin, mould, insects, rot or corrosion; (n) any Vessel, Goods or Equipment being in an unsuitable condition for the Service or any Vessel being unseaworthy; (o) acts or defaults of third parties (including suppliers and sub-contractors); (p) insufficient depth of water at any Quay or berth or its approaches; (q) voluntary use of a NAABSA berth; (r) scarcity of labour, equipment, storage areas or any other facilities; (s) acts by or on behalf of THA for the preservation of life or prevention of damage to the environment; (t) late receipt of Customs entries or landing orders, or other documents, disputes in respect of documents, or declarations made for entry purposes by or on behalf of any person, delay in passing Customs entries or obtaining clearance of the Goods or omission of information from, or a mis-statement in any statement or order to THA relating to the Goods; (u) the failure of the User or their Representative to comply with these Terms, the Byelaws or the Directions or a breach of any of the warranties or confirmations given by the User.
- The burden of proof that any loss or damage was caused by the actionable fault of THA shall be on the User. That such loss or damage occurred within the Harbour Area or under THA’s control shall not satisfy the User’s burden of proof.
- Subject to Condition 9.1, the total liability of THA (if any) for any loss, damage, liability, claim, cost and/or expense in respect of any one event or occurrence shall in no case be more than £1,000,000 and shall be the lowest of the following as applicable:
- the market value at the time of the damage or loss of that part or parts of the Vessel to which the claim relates (the value of any fish or other commercial licences associated with the Vessel shall not be included in any appraisal of the Vessel’s market value);
- the reasonable cost of repairs;
- the sum of £500,000.
- Equipment :
- the reasonable cost of repairs;
- the market value at the time of the damage or loss to which the claim relates;
- the sum of £3,000 per any unit of Equipment.
- the market value of the Goods lost or damaged and if any claims in respect of a part consignment, then the value only of the part consignment as a proportion of the whole consignment (to be calculated by weight in the absence of specific values for the damaged part);
- the cost of reasonable repairs;
- in any other case, the sum of £100 per tonne (pro rata for any part of a tonne) or any higher general limit of liability figure in the UK Warehouse Association’s standard Conditions applicable as at the date of the loss or damage unless the nature and value of the Goods have been declared to THA and THA has agreed a higher limit of liability with the User (as evidenced in writing) prior to such Goods arriving in the Harbour Area.
- Nothing in these Terms shall prejudice THA‘s right to rely on any contract, convention or statutory provision providing for limitation and/or exclusion of liability including the provisions of the Merchant Shipping Acts and subordinate legislation.
- It is a condition precedent to any liability of THA that THA is notified in writing in respect of:
- any damage alleged to have been caused to a Vessel (and to be permitted to inspect such damage) prior to sailing or the commencement of repairs;
- any alleged misdelivery or loss of or damage to Goods or any deficiency therein together with particulars of the nature and the amount of any claim to be made within 30 days of the Goods leaving the Harbour Area;
- any damage alleged to have been caused to Equipment prior to such Equipment leaving the Harbour Area (and to be permitted to inspect such damage).
- Failure to meet these requirements shall absolve THA of any liability whatsoever. In any event, THA shall be entitled (and the User hereby grants permission) to inspect any such Goods or Equipment prior to their disposal or destruction. The User shall not bring any claim in respect of any single incident below the de minimis limit of £200.
- Notwithstanding the provisions of Condition 9.8, THA shall, in any event, be discharged of all liability whatsoever and howsoever arising to any User or its Representative unless court proceedings are commenced against THA within 12 months from the date of the event or occurrence alleged to have given rise to a claim against THA.
- In particular, THA shall be exempt from all liability whatsoever for deficiency, loss, damage or misdelivery of or to the said Vessel Goods or Equipment or for delay arising out of, caused or contributed to by the handling by THA of the said Vessel, Goods or Equipment. The User shall be responsible for and shall indemnify THA against all injury (including fatal injury), loss or damage however caused and against all claims made against THA in respect of injury to persons (including fatal injury) or loss or damage to Goods or Equipment and against any failure of a load bearing part of any lifting appliance arising out of or caused or contributed to by the handling by THA of the said Vessel, Goods or Equipment.
- The User is under a duty to mitigate its losses, including for example, in obtaining salvage.
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10. User Indemnities
- The User shall be liable for and shall indemnify and hold THA harmless against any and all loss, damage, claims, (including claims for personal injury and/or death), actions, liabilities, fines, losses, damages and expenses (including legal expenses) incurred by THA, its employees, servants, agents or sub-contractors howsoever caused, which arise out of or in connection directly or indirectly with:
- any act, omission, instruction, misrepresentation, negligence, recklessness, fraud, wilful misconduct or breach of statutory duty of the User or the Owner or any other person interested in the Goods, Equipment or Vessel;
- the failure of the User to comply with the requirements of any authority, including THA;
- any inaccuracy (or omission) in any warranties, declarations, particulars or information (including gross weight) given to THA in respect of a Vessel, Goods or Equipment; and the failure of the User to comply with any of these Terms (or to take any step which THA shall consider to have been reasonably required to remedy such failure) or the breach by the User of any of the warranties or undertakings of the User; and
- the User’s occupation of any Facility or use of the Services where and to the extent not solely and exclusively directly caused by the actionable fault of THA.
- Any sums payable to THA under Condition 10 shall be chargeable to and payable by the User in addition to and subject to the same provisions as the Charges.
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- The User shall maintain comprehensive vessel insurance together with Public Liability insurance in respect of their vessel, activities, crew and guests to cover all risks including but not limited to damage by fire, impact, environmental damage, theft, removal of wreck, legal liability, whether due to the negligence of others or not and to the property of THA.
- The insurances under Condition 10.1 shall be in a minimum sum of £3,000,000 or such greater sum as may be required by THA and intimated to the User. Such insurances shall be maintained with a reputable insurance company and evidence that the Vessel is so insured shall be provided to THA upon request. Vessels found to be without such insurances may have any allocated berth cancelled immediately.
- THA has no responsibility to insure Vessel(s), Goods or Equipment.
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12. Miscellaneous Provisions
- If and in so far as any part or provision of the Terms is or becomes void or unenforceable, it shall be deemed not to be or never to have been or formed a part of the Terms and the remaining provisions of the Terms shall continue in full force and effect.
- The failure of a party to exercise or enforce any right conferred on that party by the Terms shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement thereof at any time or times thereafter.
- These Terms and in particular the limitations on liability are intended to inure for the benefit of THA and its employees, agents and contractors, to which end where THA contracts on its own behalf and as agent for and trustee for the benefit of those parties.
- All legal relationships and agreements between THA and the User shall be governed in all respects by English law and the User hereby submits to the exclusive jurisdiction of the English courts in connection therewith, save that THA shall be at liberty to seek any interim relief, arrest or secure property of the User or to take steps to enforce any obligation or judgement against the User in any jurisdiction.
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13. Use of Facilities
- THA shall be under no obligation to provide any Facility but in the event that it does so and in consideration for the payment of Charges, THA shall grant to the User a temporary licence to occupy whichever Facility may be allocated by THA for the Vessel on the following terms and conditions, in addition to Conditions 1 to 12 of these Terms and in addition to the Facility agreement form conditions (as set out in Appendix A to the THA Operational Moorings and Facility Policy). THA shall have the right to alter the location of the berth from time to time.
- Use of any Facility is strictly for the purpose set out in any booking form or Facility agreement application form completed by the User and in the Schedule of Charges, Dues & Fees.
- Visitor moorings are strictly for short-term leisure use by visitors only. Use of a Facility by a visitor leisure User shall be on the terms of the Yacht Harbour Association Berthing, Mooring and/or Storage Ashore Licence 2013 (or any later version in existence at the time of use), which terms are deemed to be incorporated herein, but these Terms shall prevail in the event of any inconsistency.
- THA shall allocate a Facility at a location to be determined at the sole discretion of the Harbour Master. A User shall not be entitled to exclusive use of any Facility. The Harbour Master may at any time require the User to move to an alternative Facility, whereupon the User shall forthwith move the Vessel and/or any associated gear or other possessions to the appointed new location.
- Vessels using Facilities must not be used for residential purposes. i.e. no living onboard is permitted and boats must not serve as the sole or main residence of any individual or group. Users are not expected to sleep onboard their craft, whilst berthed in the harbour, unless that vessel has a suitable manufacturer’s holding tank for greywater and sewage. Facilities will be withdrawn from Users who regularly breach this expectation. Privately owned vessels paying harbour charges as private craft must not operate their craft on a commercial basis. Any owner who changes the use of their craft from a private vessel to a commercial vessel (either by conversion or replacement) will have their Facility licence terminated.
- The licence to use a Facility is for a specific Vessel only and is personal to a particular Facility Holder. The licence may not be shared, assigned, transferred, sub-licenced or sublet, or succeeded or otherwise used or made available to anyone else other than the Facility Holder without the prior written consent of THA which T.H.A shall, in its absolute discretion, be entitled to withhold. In the event that it is discovered that a Facility Holder is sub-letting the Facility will be withdrawn with immediate effect (this includes the renting of beds/berths on board vessels whilst using harbour facilities. e.g. via websites such as www.bedsonboard.com and www.airbnb.co.uk).
- The licence to use a Facility shall be for the periods and at the rates published from time to time by THA in the current Schedule of Charges, Dues and Fees. If payment for a Facility is not received by the due date, THA reserves the right to cancel the licence to use that Facility.
- The User and all persons having control or having charge of or being aboard his/her Vessel shall observe and perform all statutory and other obligations relating to the harbour including all Byelaws and regulations made by THA or the Council of the Borough of Torbay and Directions given by the Harbour Master. In the event of the User their staff or crew failing to comply, THA may give notice terminating the Facility licence and to remove the Vessel.
- THA reserves the right to cancel an offer of a Facility if on inspection of the Vessel it is considered unsuitable for berthing in the Harbour Area because of its dimensions, weight, method of construction, state of repair, type of fendering or other reason. The Harbour Master’s decision in this regard will be final. In such circumstances a proportionate refund of any future berth rental charges already paid will be made, but any costs or expenses of removal or storage will be chargeable to the User.
- THA or the Harbour Master may terminate a Facility Holder’s licence at any time by giving 1 months’ notice in writing to the Facility Holder’s last known address, or may decline to invite a Facility Holder to renew their facility, for any reason including if the Facility Holder shall have failed to comply with harbour regulations, shall have been abusive towards harbour staff, shall have required repeated chasing for payment or owe the Council of the Borough of Torbay or T.H.A outstanding debts, or if the Vessel is in a poor state of repair, or if insurance documents are not provided upon request, or where a discretionary facility is being discontinued.
- If the Facility Holder does not have his/her own Vessel on the authorised Facility for a period of one year then the licence to use that Facility will be forfeit. If a commercial or passenger boat owner does not put a Vessel on the allocated mooring facility for two consecutive years, or in the view of the Harbour Master the commercial Vessel is only infrequently and irregularly operated, THA shall be entitled to terminate the licence for the Facility. In this context, a commercial Vessel operated for fewer than 10 days in a year would be considered to be infrequently or irregularly operated.
- THA shall have the power to move, enter or board any Vessel if in its opinion this is necessary for the safety of the Vessel and/or safety or convenience of other Harbour users and/or safety of THA’s premises, plant or equipment and/or any other reason determined by the Harbour Master acting reasonably. If required by THA, the User shall leave a duplicate set of their Vessel keys with the Harbour Master at all times. Keys will not be released to third parties without the User’s prior consent.
- Vessels are permitted to berth in the Harbour Area or anchor within the Harbour Limits only in accordance with the directions of the Harbour Master or other THA employee. Any mooring position and type shall be subject to the Harbour Master’s prior approval. Failure to obtain such approval will result in the Vessel being moved, at the User’s risk and expense, to a suitable location and the latter shall be at the sole discretion of the Harbour Master. The User shall not place a Vessel on a mooring prescribed in the mooring scheme as prepared by THA which is of a different size than that for which the application was made, unless with the prior written consent of the Harbour Master.
- The User must ensure that the name of the Vessel or a mooring number is clearly displayed on any mooring buoy not provided by THA. Vessels berthed in the Harbour Area must have their name clearly displayed. The User must ensure that any display sticker provided by THA as evidence of the relevant dues having been paid, is displayed in a conspicuous position on the Vessel.
- The User shall berth and leave the Vessel safely and securely moored and appropriately fendered and in such a manner, position and location as THA may require. Privately owned fenders must not be fixed to harbour authority property (other than by rope) without the prior consent of the harbour authority. Installation of owner’s ‘dock fenders’ may be permitted, subject to prior approval by THA. Any fixing that requires drilling into steel, stone or concrete must be undertaken by THA staff. Privately owned ‘dock boxes’ must not be fixed to THA property or the Harbour Estate without the prior consent of THA and a charge may be applicable.
- Any swivel, riser chain, mooring rope or buoy, not provided by the THA shall comply with THA’s specification in that behalf and shall only be fitted by a person licensed by THA to do such work or by the Facility Holder personally in respect of his/her allocated mooring. The Facility Holder shall as soon as any swivel, riser chain, mooring rope or buoy has become fitted, immediately notify the Harbour Master of the fact. The applicant shall also arrange for regular inspection and maintenance of such equipment not provided by the Council. No attachment whatsoever is to be affixed to any mooring chain provided by THA without the prior approval of the Harbour Master.
- All vessels must be monitored by the User or its Representative on a regular basis, particularly during periods of bad weather.
- No Vessel is to be launched, lifted into or out of the water at any Quay without prior permission of the Harbour Master.
- Users are not permitted to leave on the pontoon decks, walkways, access bridge or boat compound any equipment, fishing gear, ropes or personal belongings or any other thing whatsoever (save for brief but reasonable periods in the course of transporting the items to or from the Vessel. THA shall have the right to remove and dispose of any such items left on the Harbour Area without the prior consent of the User.
- Users are not permitted to load, land or store any creels or other fishing related equipment, with the exception of sea angling tackle.
- The User shall ensure that no damage, obstruction, nuisance or annoyance is caused to the Harbour Area and other harbour users.
- Electricity is available at most berths although the supply is not guaranteed. The User will be charged for the number of units consumed and shall pay at the current rate of charges in force at the Harbour Area from time to time. The use of power cables on pontoons is permitted provided the cable is within a protective cover to prevent a trip hazard and is not seen by THA as a permanent connection. Any cables presenting a hazard of any nature will be removed by THA and the credit on the meter will be cleared. Cable covers are available from the Harbour Office. Connectors and cables not supplied by THA shall only be used if they are of proper manufacture and comply with U.K. standards. The User will be liable for any damage to the electrical equipment incurred as a result of the acts or neglects of the User.
- All necessary warps and fenders shall be supplied by the User. In the event that the Vessel has sails, these are required to be removed and stored safely when not in use and all rigging safely secured.
- The User shall ensure that when not in use outboard motors are removed from the water and safely stored on the Vessel.
- The User shall ensure that the engines of any Vessel moored in the Harbour Area shall not be operated in such a manner so as to cause damage to the bed or banks of the harbour or to any other vessel or property.
- The User shall keep any Vessel in a sound watertight and seaworthy condition to the satisfaction of the Harbour Master at all times. THA shall have the right to carry out emergency work on the Vessel and the User shall be liable for all reasonable charges for such work.
- Other than minor running repairs or minor routine maintenance works, no work shall be carried out on the Vessel within the Harbour Area unless with the express written consent of the Harbourmaster. Such repairs shall be carried out in a safe manner so as not to cause or be likely to cause any damage or any danger, nuisance, disruption or annoyance to other marina or harbour users and local residents. THA reserves the right to terminate works in progress if it considers that these are being carried out or about to be carried out in breach of this regulation. No welding or hot work is permitted without prior written approval of the Harbour Master.
- Vessels entering, leaving or manoeuvring within an Enclosed Harbour shall do so with care and caution and at such speed and in such a manner so as not to damage, endanger or inconvenience other vessels, individuals, equipment or any part of the Harbour property. A speed limit of 5 knots is in force throughout the Enclosed Harbours. This remains at 5 knots within the breakwaters; during the months of October through to April there is a shoreline speed restriction in place throughout Tor Bay, whereby no vessels are to exceed 5 knots within 250 metres of the shoreline, other than in respect of use by the Harbour Master in the case of an emergency.
- No refuse is to be thrown overboard or left at any place within the Harbour Area except in the appropriate receptacles provided by THA. No effluent, detergent, fuel or other pollutants shall be spilled or dumped within the Harbour Limits. Oily rags, waste oil, used filters, etc. must be placed in the appropriate bin and must not be left lying around.
- No fuel or combustible material is permitted to be kept on or within the allocated facility save in authorised storage tanks and containers. Any flammable materials, fuel oil, gasses and warning flares stored onboard a Vessel shall be securely stored and contained in a safe and proper manner. The storage of petroleum spirit and/or flammable substances and/or toxic chemicals and/or corrosive substances and/or noxious substances in storage lockers is strictly prohibited.
- Other than for small outboard engines, no petrol refuelling from cans or containers is permitted on the harbourside, pontoons, steps, slipways, or moorings. Petrol refuelling is permitted at a licensed marine fuel station or when using an approved siphoning/pumping device agreed specifically with the Harbour Master or at Paignton Harbour from cans onto moored vessels when the harbour has dried. Any fuel spillage must be reported to the Harbour Master. Smoking is strictly prohibited in any fuelling areas.
- The User shall take all necessary precautions for the prevention of fire including providing at least one fire extinguisher on the Vessel suitable for the type of engines, fuel and equipment on the Vessel and shall comply with any requirements of the Harbour Master in this regard.
- THA may terminate any Facility licence by sending written notice to the last known address of the User by recorded delivery post or e-mail. If the identity of the User or User’s contact details are not known to THA, THA shall serve such written notice by leaving a copy on the Vessel. Should this notice not be complied with or the conditions of the Facility Form Agreement not met within 14 days of the sending of the notice, THA may at the User’s sole risk and expense remove the Vessel to any place where so ever and/or store it or berth it. The User shall pay the cost of such removal, storage, mooring or berthing and subsequent replacement to THA Such charges shall be a debt due to THA.
- THA and the Council of the Borough of Torbay will not be responsible for any loss and/or damage occasioned to any Vessel and/or property in the course of berthing, mooring, launching, moving or hauling out, unless as a direct consequence of THA’s negligence.
- All Users using the Facilities including but not limited to slipways, steps, jetties, pontoons and staging, for whatever purpose and whether or not by the THA’s or any other party’s invitation, are expected to have due regard for their own safety at all times and utilise these facilities entirely at their own risk, unless negligence can be proven against THA.
- THA has the right to exercise a general lien upon any Vessel, and/or gear and/or equipment and/or property, whilst in or upon the harbour premises, or afloat, until such time as the monies due to THA in respect of such Vessel and/or gear and/or equipment and/or property, whether on account of storage, mooring, berthing, slipping charges or otherwise, shall have been paid. Should these charges remain unpaid, THA reserves the right to dispose of the Vessel and/or gear and/or equipment and or property and pay to the applicant the funds net of any charges as due.
- The User shall at all times be responsible for the safety of his/her vessel and shall be strictly liable for any damage occasioned to THA’s property, or that of the Council of the Borough of Torbay howsoever caused, during the navigation of any Vessel by the User or his/her servant or agents, or whilst the Vessel is berthed, moored, or launched, or by the Vessel slipping her berth, mooring or being cast adrift and will pay to THA on demand any claim for reasonable compensation in respect of such damage.
- The Harbour Master and other authorised officers and servants of THA and/or the Council of the Borough of Torbay, whilst acting in the course of their duty, shall not be responsible for any loss or damage which may occur as a result of compliance, or attempted compliance, with any lawful order or directions given by the Harbour Master, or such other officers or servants, nor shall THA or the Council be liable for any loss or damage arising out of compliance, or attempted compliance, with the officers’ lawful orders. THA or the Council, its servants, agents or employees shall not be liable for injury to any person, except where such injury arises through the negligence of THA or the Council. This clause applies equally to visitors and temporary users of the harbour and Harbour Estate, whether using a vessel, vehicle or trailer.
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