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GENERAL BERTHING CONDITIONS
1. DEFINITIONS
a. “Berth” means a berth, mooring, or other onshore storage;
b. “Company” means Manoel Island Marina Ltd, its officers, employees,
agents, representatives and mandatories;
c. “Facilities” means any buoys, mooring, wharves, jetties,
piers, pontoons, slip ways, pumps, walkways, boats and any fittings or
appurtenances connected therewith, and any property movable or immovable
provided at the marina;
d. “Licence” means a berth licence issued to the Owner for the
Vessel.
e. “Marina” means the yacht marina situated on Manoel Island,
Malta, including its berths, moorings, land, quays, pontoons, breakwaters,
buildings, movable and other items or things under the control of the
Company;
f. “Owner” shall include the captain, charterer, agent or other
person who acts in command of the Vessel, even if not its legal owner;
g. “Period” means the period of time during which this agreement
remains in force between the parties;
h. “Rules” means the norms contained in this document, and any
other reasonable norm duly communicated in writing to the Owner;
i. “User” shall include Owners and all other persons within
the marina who utilise the services provided at the marina;
j. “Vessel” means any vessel using the marina, including a yacht;
k. “Yacht” means a registered sea-going vessel used solely for
pleasure and accepted as such by the Executive Director responsible for
yachting centres of the Malta Maritime Authority.
2. RIGHT TO BERTH
2.1 The company hereby grants to the owner, who accepts, the licence to
berth the vessel at the marina, on the terms and conditions contained
in this agreement.
2.2 The licence is personal to the owner and is valid only for the vessel
named on it. The licence may not be assigned, nor may it be used for an
alternative vessel, unless the owner obtains the company’s prior
approval in writing. The company reserves the right to refuse an assignment
or the utilisation of the berth by an alternative vessel. An alternative
vessel may only berth when the company has issued a licence in writing.
2.3 The owner declares that the berth and all other relevant parts of
the marina, including the connections to the utility supplies, are in
all respects satisfactory and compatible with the vessel.
2.4 The right to berth at the marina does not include the right to lay-up
or store the vessel ashore, or vice-versa, and any such service will require
to form the object of a separate agreement between the parties.
2.5 The owner is entitled to the exclusive use of the berth for the period,
but the company may, if it deems reasonably appropriate, move or require
the owner to move the vessel from one berth to another. The owner will
not receive any compensation for such movement. The owner may not move
the vessel from one berth to another within the marina without the prior
written approval of the company.
2.6 The company may board, enter, move, or carry out emergency work on
an unattended vessel if this is necessary for safety or urgent operational
reasons. The owner shall be liable to pay the company reasonable costs
incurred in carrying out such work. The owner is hereby delivering to
the company a duplicate set of all the keys of the vessel and any written
instructions that may be needed, in order to enter the vessel safely and
move accordingly provided if same vessel is left unattended and owner
is not available in Malta.
2.7 The owner shall keep the company informed of the vessel’s movements,
and the company may utilise the berth if the vessel will leave it vacant
for at least 24 hours. The company will at all time use its best endeavours
to ensure that the vessel may use its usual berth, or an alternative berth
as the company may deem fit, until such time as the usual berth shall
be vacated. The owner may not request any compensation for movements nor
be entitled to retain any berthing fees in respect thereof. Vessel movements
are to be notified to the company 24 hours in advance.
2.8 Save with the prior written approval of the company, the right to
berth is limited to berthing of vessels or yachts intended for pleasure
purposes only, and excludes the berthing of vessels in commercial use,
or the use of the berth, vessel, marina or yacht for commercial purposes,
save that the charter for pleasure purposes of the vessel shall not constitute
commercial use thereof.
3. SERVICES AND UTILITIES
3.1 Water and electricity supplies provided by company for the use of
the vessel must not be shared with any other owner, user or vessel. The
owner recognises that the company cannot guarantee a constant supply of
electricity. Connection and re-connection will only be carried out during
office hours. Requests for re-connection are to be submitted on the company
forms, at least four hours prior to closing of the marina for the day.
3.2 The owner shall ensure that the vessel’s connections to the utility
supplies are properly designed, fitted and maintained. Electricity cables
must be disconnected from the supply point before being disconnected from
the vessel.
3.3 Water and electricity consumption is to be metered and the owner will
be charged at the company’s current tariff of charges, from time
to time. Non-payment will result in the supply being terminated and a
reconnection fee may be levied.
3.4 The provisions of clause 4.2 of these conditions will apply to the
current tariff of charges in so far as these concern the provisions of
water and electricity services.
3.5 All water hosepipes shall be fitted with a spring-loaded nozzle designed
to shut-off the water flow when the hose is unattended. Any damage arising
due to negligence will be debited to the owners account.
4. CONSIDERATION AND PAYMENT
4.1 In consideration of the licence to berth, the owner undertakes to
pay the company the berthing fees listed in the annex document ___, on
the terms and with the modalities listed therein. The said fees consist
in the fees due to the company by the owner according to its current tariff
of charges, also attached as annex _____.
4.2 The company reserves the right in its sole discretion to amend its
current tariff of charges at any time by giving the owner one month’s
advance written notice. During the said period of one month, the owner
may choose either to refuse the said amendment to the tariff of charges
and vacate the berth, or to accept the new tariff of charges and remain
in the berth. The continued use of the berth following the lapse of the
period of one month following notice shall be deemed to constitute acceptance
of the amended tariff.
4.3 The tariff then applicable shall be charged for water and electricity
provided by the company to the owner. An increase or reduction in the
rate of VAT or other tax payable on berthing fees and water and electricity
services, or other services provided, shall be charged or decreased from
the charges payable by the owner.
4.4 Delay in payment beyond the period established in the annex Doc. ___
will cause the owner to pay the company interest at the rate of eight
per cent (8%) per annum.
4.5 Without prejudice to any other right competent to it, the owner agrees
that the company is authorised to retain the vessel by way of a possessory
lien in consideration of any outstanding debts due to the company by the
owner for berthing of the vessel and other charges in terms hereof, and
to proceed in terms of law in order to extinguish the said debts due to
it.
5. PERIOD
5.1 The licence is being granted for the period stated in the annexed
document ____. The parties agree that the said period will be extended
automatically for further equivalent periods, unless terminated in writing
one month before the date upon which the period then current is due to
lapse.
5.2 Without prejudice to any other provision of this agreement, either
party may terminate the provisions hereof by giving the other notice in
writing.
5.3 Berthing fees paid in advance will not be refunded by the company.
6. INSURANCE
6.1 At all times throughout this agreement the owner shall keep in full
force and effect, at his sole expense, the following insurance policies
issued by insurance companies of repute:
i. A public liability insurance that shall have limits of liability of
at least … [say Lm500,000] for injury or death to any one person,
per occurrence and … [say Lm200,000] for damage to property, for
any one accident.
ii. A policy or policies of insurance covering loss or damage to the marina
(including all fixtures and fittings) in the amount of full replacement
value. Such policy shall provide protection against all perils included
with the classification of fire, extended coverage, vandalism, special
extended perils (all risk), sprinkler leakage, an inflation guard endorsement
and other coverage that the company may consider necessary. The company
shall have the right, from time to time, to obtain professional appraisal
of the marina as well as professional appraisals of the public liability
insurance limits, by an appraiser reasonably acceptable to the owner’s
insurer, and the owner will adjust the premium and coverage accordingly;
iii. [A policy against salvage claims]6.2 The owner shall furnish the
company immediately upon completion of the annex document ___ and thereafter
when reasonably required, with certificates or otherwise satisfactory
evidence of all insurance policies required to be procured by owner in
terms hereof. Each certificate shall state that the company shall be entitled
to at least thirty (30) days prior notice of any cancellation, material
change or non-renewal, and that the Insurers shall be bound to advise
the company accordingly. Should the owner fail to procure any insurance
required hereon the company may, in addition to any other remedies, procure
the same on behalf of the owner. The owner agrees to pay the premium due
therefore promptly on the company’s demand.
6.3 The owner shall indemnify the company and hold it harmless from and
against any and all claims arising from the owner’s or the vessel’s
use of the marina, or from any activity, work or thing done, permitted
or suffered by the owner in or about the marina. The owner shall furthermore
indemnify the company and hold it harmless from and against any and all
claims arising from any breach or default in the performance of any obligation
on the owner’s part to be performed in terms of this agreement, or
arising from any negligence of the owner’s principals, agents, contractors,
employees, and guests, and from and against all costs, advocates fees,
expenses and liabilities incurred in the defense of any such claim or
any action or proceeding brought thereon. If any action or proceeding
is brought against the company by reason of any such claim the owner,
upon notice from the company, shall defend the same, at the owner’s
expense, by advocates satisfactory to the company. As a material part
of the consideration to the company, the owner hereby assumes all risk
of damage to property or injury to persons in or about the marina arising
from any cause, and the owner hereby waives all claims in respect thereof
against the company, except from any claim arising out of the company’s
gross negligence or willful misconduct.
7. MAINTENANCE AND REPAIR OF VESSEL
7.1 The vessel shall be maintained in a good and clean condition, in good
order and properly in repair, in seaworthy condition. Repair and maintenance
work of a minor nature only may be carried out on a vessel on its berth.
Other work is to be carried out in the designated area or repair berth.
Such work may be carried out by the owner or by the vessel’s regular
crew.
7.2 The company may at any moment in its absolute discretion order that
any repair work then being carried out ceases immediately if it considers
that such work is or may cause damage, inconvenience, nuisance or constitutes
a health and safety risk to the marina, its users, or to persons or premises
nearby.
7.3 The owner undertakes to ensure that all work to be carried out on
the vessel at the marina will be effected solely by properly authorised,
qualified and experienced personnel.
8. GENERAL
8.1 Owners and users shall comply with all reasonable instructions given
by the company for the proper and efficient operation of the marina.
8.2 In the navigation of their vessels, owners will observe all speed
restrictions implemented by the harbour, marina, navigation or other authorities,
in a seamanlike manner such that other vessels and marina users are not
endangered or inconvenienced. Vessels shall not drop anchor in the marina
except in emergency or unless directed to do so by the Company.
8.3 The owner agrees not to allow anything to take place at the marina
or aboard the vessel that may annoy, cause nuisance or offence to any
marina user, or to persons or property therein or nearby. The owner shall
not keep engines running, loud audio equipment, outdoor cooking, unsecured
halyards and sail covers, and anti-social behaviour. All pets shall at
all times be kept under strict control, but the company may in its absolute
discretion order that any animal be removed immediately and thereafter
banned from the marina.
8.4 Waste and refuse must be placed in appropriate receptacles provided
by the company. No person shall discharge or allow to escape any oil,
garbage, or other refuse into the waters of the marina or left on pontoons
or jetties. The company reserves the right to charge the cleaning of the
waters from any pollution to any one or more owners that it deems responsible.
8.5 No washing lines shall be erected on board the vessel, nor shall washing
be dried on the exterior of the vessel.
8.6 No person is authorised to provide services or carry out works on
any vessel in the marina unless with the prior written approval of the
company.
8.7 No items will be left on the pontoons or quays or anywhere else on
the marina, unless the place has been designated by the company as a storage
place. Any items, including vehicles, which are left unattended at the
marina, on the pontoons, or quays or within the marina’s environs,
may be removed by the company at the owner’s expense
8.8 The marina shall not he used for swimming, fishing or other water
sports.
8.9 No person may live habitually or permanently aboard any vessel unless
the owner has obtained the written authorisation of the company.
8.10 Fuelling, refueling and maintenance services to the vessels shall
only be made at the designated points or as authorized by marina personnel.
9. RESPONSIBILITY
9.1 The owner shall at all times be responsible for the safety of the
vessel and shall be liable for any damage caused by the vessel or its
tender to the marina, its facilities, or other vessels therein situated.
9.2 Use of the marina shall be at the users own risk and the company shall
not be responsible for the death or injury of any user, nor for any loss,
theft or any other damage caused to any vessel, vehicle, or personal possessions,
except in the case of the company’s gross negligence. The company
shall not provide safety watch, weather watch, or security services to
prevent or reduce the likelihood of injury, theft or damage.
9.3 The company does not guarantee for the suitability of any berth, equipment,
gear or other facilities provided.
10. RESERVATIONS AND DEPARTURES
10.1 The company retains the right to reserve berthing space at the marina
for any vessel upon the payment of a non-refundable reservation fee. Until
such time as the reserved berth is utilised, the company may utilise the
said berth at its discretion.
10.2 Late departures following the lapse of the contractual or extended
period will cause the company to charge a penalty fee for each day or
part thereof of delay equivalent to double the daily berthing fee then
current according to the tariff of charges.
11. FIRE PREVENTION
11.1 Marina users in general shall take all reasonable precautions against
the outbreak of fire. Each vessel must keep adequate fire fighting equipment
on board of an approved or GSI stranded type, size and installation ready
for immediate use in the event of fire. Fire extinguishers are to be regularly
maintained and in good working order at all times.
11.2 No fuel, gas, or other highly inflammable or explosive substance
shall be brought onto the marina unless properly secured. Any such substance
kept aboard must be held in appropriate containers and be stowed in a
seamanlike manner. Gas bottles shall be turned off when not in use. Work
with hazardous or inflammable substances cannot be undertaken at the marina.
12. POLLUTION
12.1 Marina users shall take all reasonable precautions to prevent pollution.
No garbage, toilet effluent, dirty bilge water or other pollutant shall
be discharged or thrown overboard.
12.2 No pollutant shall be brought onto the marina unless properly secured.
Any such substance kept aboard must be held in appropriate containers
and be stowed in a seamanlike manner.
13. FORCE MAJEURE
13.1 If either party is effectively prevented from observing its obligations
by force majeure, it shall forthwith notify the other party of the nature
and expected extent thereof. Force majeure means, in relation to either
party, any circumstances beyond the reasonable control of that party,
such as acts of God, war, civil commotion, labour disputes, strikes, fire,
flood or other casualty.
13.2 Neither party shall be deemed to be in breach of this agreement,
or otherwise be liable to the other, by reason of any delay in performance,
or non-performance, of any of its obligations hereunder to the extent
that such delay or non-performance is due to any force majeure of which
it has notified the other party, and the time for performance of that
obligation shall be extended accordingly. The party effected by force
majeure shall however exercise its best endeavours to remedy and restrain
the effects thereof and render the non-performance of any obligation less
burdensome on the other party.
13.3 If the force majeure in question persists for a continuous period
in excess of seven (7) days, the parties shall enter into bona fide discussions
with a view to alleviating its effects, or to agreeing upon such alternative
arrangements as may be fair and reasonable.
14. TERMINATION
14.1 If the owner is in material breach of any of the conditions of this
agreement and remains so in default for a period of seven (7) days from
receipt of notice in writing indicating the breach and requesting its
remedy, the provisions of this agreement will be ipso jure terminated,
and the company will be authorised to terminate all supplies and services
to the vessel and the owner; Provided that if the nature of the breach
is such that more than seven (7) days are reasonably required for its
cure, the owner shall not be deemed to be in breach if during the said
period he commences such cure and diligently prosecutes it to completion.
14.2 Failure by the owner to vacate the berth upon termination in terms
of Clause 14.1 will authorise the company to charge the owner by way of
penalty due for each day or part thereof, berthing fees equivalent to
five times the then current tariff, and to take all measures to ensure
payment of all amounts due, including the enforcement in terms of law
of the possessory lien contemplated in Clause 4.5 of this agreement. The
company may move the vessel at the owners’ risk and expense out of
the marina on tow, and charge the owner for any subsequent berthing, storage
and other costs incurred.
15. JURISDICTION AND CHOICE OF LAW
15.1 This agreement is governed by the laws of Malta, and any dispute that
may arise shall be determined exclusively by the applicable court of law
or tribunal in Malta.
16. NOTICES
16.1 Notice on the owner shall be deemed to have been duly served when
attached to a conspicuous part of the vessel, while that on the company
when delivered during office hours to the company’s office at the
marina.
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