|
G e n e r a l Te r m s o f B u s i n e s s
FAIRCharter 09
I. Charter price
The charter price includes use of the yacht (plus accessories) by
the Charteree, natural wear and tear (e.g. damage due to material
fatigue), support and duties, fees and taxes at the permanent
mooring (exception: transit log, permit) and liability insurance and
hull insurance for the yacht.
II. Charterer's duties
The Charterer undertakes towards the Charteree
1. that it shall furnish the chartered yacht on the agreed date following
full payment of the charter price in a seaworthy and adequate
condition of the technics and maintenance (note: maintenance
data, in particular, the inflatable life raft, emergency signals)
2. that it shall furnish the onboard documentation (important:
updated sea charts) that detail the ocean territory and sailing times
permitted and covered by the insurance policies
3. that it shall reimburse down time if the Charteree is no longer
able to use the yacht due to a defect (in whole or in part). There
shall be no reimbursement if the Charteree is himself responsible
for the down time (e.g. due to damage caused by him).
4. that it shall be available for the Charteree during the charter
period by telephone or radio at least during the usual office time.
The manual for the charter-yacht has to be on board in English or
in the language of the charteree.
III. Sailing licences, certificates of qualification
The Charteree warrants that he has the official recreational vessel
licence or that he will be accompanied by a crew member as skipper
who has the relevant certificate of qualification, and, moreover,
that he or his skipper has all necessary navigational and nautical
knowledge and experience in order to safely skipper the chartered
yacht for the planned journey (route) in open waters under sail
and/or motor taking responsibility for crew and materials into
account. Moreover, the Charteree agrees to treat the chartered
yacht as his own property in accordance with the rules of good
seamanship and to use it in compliance with the relevant statutory
provisions and regulations of the regions in which the yacht is
used.
Prior to handover of the chartered yacht, the Charterer may verify
the ability of the responsible skipper to skipper the boat. To this
end, it may already demand proof of previous sailing experience
prior to conclusion of the Agreement and request that it be presented
with the sailing licences or certificates of qualification necessary
for skippering the yacht in the agreed boat class and sailing
area. In the event of patent doubts concerning the qualification for
safe skippering of the chartered yacht and crew, the Charterer may
appoint or arrange for a skipper for the Charteree at the
Charteree's expense. Should this be impossible or should the
Charteree not agree thereto, the Charterer may refuse to hand
over the yacht; in this event, the charter price paid shall be reimbursed
at the originally agreed charter price only in the event of a
successful alternative charter. If an alternative charter is only possible
at a lower price, the Charterer shall be entitled to the relevant
difference.
Important: The Charteree/skipper shall bear full responsibility
therefor as well as for the crew, ship, equipment and inventory
as against the Charterer and insurer.
IV. Performance disruptions (CharterAgreement)
1) Charteree's rights
a) Should the Charterer fail to furnish the chartered yacht no later
than 4 hours following the contractually agreed time, the Charteree
may reduce the charter price on a pro rata basis for the down time
per day commenced. The same shall also apply for necessary
repairs, irrespective of the Charterer's fault. The Charteree may
also, at his choice, rescind the Agreement against full reimbursement
of payments made if more than 24 hours have elapsed since
the agreed handover time; in the event of a charter period of at
least 10 days, this deadline shall extend to 48 hours. The
Charterer may provide a reasonable substitute yacht that is objectively
of the same level and that also meets the Charteree's needs.
Should it already be clear before commencement of the charter
that the boat will not be available or may not be handed over at the
time agreed, the Charteree may rescind the Agreement even prior
to commencement of the charter.
b) Should the chartered yacht, its equipment or accessories deviate
in a negative manner from the contractually agreed condition
(defects), the Charteree may always demand an adaquate reduction
of the charter price, but may rescind the Agreement only if,
regarded objectively, the chartered yacht's seaworthiness is impaired
or correct navigation using common navigation methods is
made significantly more difficult and the risks to the safety of the
boat and crew increase significantly as a result.
c) Should the Charterer not be responsible for the performance
disruption, there shall be no further claims against the Charterer
with regard to indemnification of the Charteree for consequential
damage (e.g. travel/accommodation costs); however, the
Charterer hereby assigns to the Charteree any compensatory
damages claims against third parties. The Charterer shall without
undue delay notify the Charteree of any such events and possible
consequences in detail and in an appropriate manner. The
Charteree shall assert price reductions or rescind the Agreement
by way of unilateral declaration to the Charterer and provide relevant
grounds therefor.
2) Cancellation
Should the Charteree rescind the charter agreement,
the agreed cancellation costs shall be incurred. Should the
Charteree be unable to set out on the turn, he shall notify the
Charterer thereof in a binding manner without undue delay in writing
or by fax, in which respect, the time of receipt of the notice by
the Charterer shall govern. Should there be an alternative charter
at the same conditions, the Charteree shall be reimbursed his payments
made to such time less a processing fee of EUR 150. The
Charteree may provide a suitable substitute charteree who assumes
the Agreement only with the agreement or written consent of
the Charterer. In the event of an alternative charter at a reduced
price or for a shorter period, the relevant difference plus the processing
fee shall be due and payable. Should different handover
and return ports or foreign ports be contractually agreed, the compensation
shall be increased by 20% in a given case. The
Charterer may rescind the Agreement in the event of late settlement
of the costs incurred and expressly reserves the right to
assert additional compensatory damages claims for non-performance
of the Agreement. In all other cases, the Charterer shall be
entitled to the contractually agreed charter price. Taking out of
charter cancellation insurance is therefore expressly recommended.
3) Charterer's Rights: Should the boat not be returned no later than 2 hours after the time contractually agreed therefor, the
Charterer may demand from the Charteree pro rata ongoing payment
of the charter price for each day begun. The Charteree shall
warrant for punctual return. In this respect, he shall from the outset
take into account local wind and weather conditions, include
weather-related problems, in his plans and keep the yacht in sufficient
proximity to the place of return. In the event of fault or unilateral
actions, the Charterer may demand compensatory damages.
This shall not apply if timely return is not possible due to dangerous
weather/sea conditions (sudden deterioration) within the
meaning of a risk limitation. Should the Charteree leave the chartered
yacht at a location other than the agreed place of return, he
shall bear the costs of return to water or land if he is at fault. The
Charterer shall be notified without undue delay in all cases. In all
cases, the Charteree may prove that no or lesser damage occurred.
V. Cancellation
Should the Charteree rescind the Charter Agreement (see point
XVIII), the following cancellation costs shall be incurred based on
the charter price. For efforts, which are inapplicable because of the
omission of the charter, no cancelation fee willcharged as for
example for: cleaning, deposit fee, bed-linen, special equipment
etc.
Taking out of a travel/charter cancellation cost insurance policy
is already expressly recommended at the time of execution
of the Agreement.
VI. Payment method
Should the agreed payments not be made in good time, the
Charterer may, following a fruitless warning, rescind the Charter
Agreement and charter the yacht otherwise. The Charteree shall
provide compensation for any economic loss.
The Agreement shall enter into effect if a signed copy of the
Agreement is submitted to the Charterer or the agent within
10 days of the date of issue.
VII. Crew-list
By no later than 4 weeks prior to commencement of the charter,
the Charteree shall notify the Charterer of all travelling persons
(crew) based on the foregoing list.
VIII. Assumption of the chartered yacht
The Charteree shall assume the yacht at his own responsibility.
The Charterer or its appointed representative shall furnish the
Charteree the chartered yacht ready for sailing and in an otherwise
perfect condition, cleaned internally and externally, with attached
gas canister (and reserve canister), with a full tank of petrol
with a full replacement fuel canister. The boat's condition, all technical
functions (in particular, sail, lights and motor) and the completeness
of accessory and inventory shall be thoroughly inspected
using an equipment list and a checklist by both Contracting Parties
during the familiarisation procedure. The Charterer warrants that
the yacht and its equipment meet the requirements of the relevant
statutes and regulations in the agreed charter shipping route. The
seaworthiness of the chartered yacht and the equipment shall then
be confirmed by the parties in a binding manner prior to handover
by way of signature. After such time, no objections may successfully
be made. This shall not apply if and to the extent that there
were latent defects upon handover, even if the Charterer is not at
fault in this respect. The Charteree may refuse to take possession
of the yacht only if seaworthiness has been reduced to a significant
degree, and not in the event of immaterial deviations or
defects.
The charter company has to provide proof with the ship´s papers,
that the yacht is covered by liability insurance and the premium
has been paid.
IX. Charteree's duties
The Charteree shall have the following obligations towards the
Charterer:
1. all crew members must be designated by no later than 4 weeks
prior to commencement of the charter (preparation of a crew list).
2. the boat must already be made available at the agreed place of
return 1-2 hours before expiry of the Agreement for check out.
3. the agreed charter term shall not be unilaterally extended without
consultation with the Charterer.
4. the yacht shall be kept in sufficient proximity to the return port in
the last 24 hours prior to conclusion of the charter in order to ensure
timely arrival in the event of adverse conditions (poor weather,
strong winds etc.). Storms shall not affect the duty to return the
boat punctually, except in the case of force majeure. The Charterer
must be informed without undue delay in the event of foreseeable
late return.
5. the Charterer must be notified without undue delay if the turn
must be ended at a location other than the return port. In this
event, the Charteree shall be responsible for caring for the boat or
having it cared for by sufficiently qualified persons until the
Charterer is able to take possession of the boat. The charter shall
end only upon taking of possession, and the Charteree shall bear
any resultant costs.
6. the chartered yacht and equipment shall be treated with care
and in accordance with the rules of due and proper seamanship.
7. the Charteree shall familiarise himself prior to commencement
of the turn with the technical and all other systems of the yacht,
comply with the instructions located on board and inform himself
on the particularities of the shipping route (currents, changed
water levels in the event of strong winds, down winds, wind tunnel
effects etc.)
8. perform rotational control and maintenance measures, particularly
verifying the oil level and coolant level of the motor on a daily
basis, check bilge on a daily basis and, where applicable, perform
maintenance.
9. keep a log book in which the records on weather reports, all
damage discovered on the yacht and equipment, groundings and
other special events (ropes in the propeller etc.) must be entered
10. if and to the extent present, conscientiously keep a radio book
and, where applicable, a customs and an inventory, departure and
arrivals log.
11. report any grounding immediately and, in the event of suspected
damage to the chartered yacht, immediately head towards the
next port and arrange for an examination by a diver and, following
consultation with the Charterer and at its instruction, arrange for
craning or dry-dock.
12. pay attention to special wind and weather conditions, and to
take particular care during night travel.
13. only to enter and leave port under motor, but to travel under
motor only if and as long as necessary (and in no event under sail
commencing with 10 degrees heeling!).
14. to come aboard the yacht only with appropriate, clean boating
shoes whose colour does not rub off.
15. to give towing assistance only in an emergency, to have the
chartered yacht towed only in an emergency and to use own
ropes/lines, to attach lines (belegen) only to clamps, winches or
the foot of the mast, and not to make any agreements concerning
towing and recovery costs, unless the assisting party otherwise
refuses its aid.
16. to comply with the statutory provisions of countries in which the
Charteree stays, passes through or is a guest, and to enquire in
advance concerning any necessary licenses or travel permits
17. always to duly and properly pass the boat through port and
customs authorities and duly pay any port charges incurred.
18. to notify the nearest police station without undue delay of any
theft of the yacht or its accessories
19. not to furnish or sub-lease the chartered yacht to third parties.
20. not to allow on board more persons than permitted or agreed
(crew) or any animals
21. not to make any modifications to the boat and equipment.
22. It is not allowed without written consent by the charterer:
- to bring along any undeclared goods subject to custom duties or
dangerous goods or substances.
- to participate in regattas
-to exit from protected ports in the event of wind forces to constantly
7 Bft and higher
-to use the yacht for training purposes, transport for a fee, etc.
23. The Charterer may restrict the shipping route in the event of
unsafe/uncertain navigation conditions or prohibit night travel. The
routes specified in the Agreement may be left only with the
Charterer's express consent. The Charteree and the skipper and
crew shall be responsible for sailing the yacht and shall be liable to the Charterer or insurer for any damage resulting from abuse of
the required rules of conduct. In the context of this Agreement, the
crew members shall be deemed vicarious agents of the
Charteree/skipper.
X. Repossession of the chartered yacht
The Charteree shall hand over the chartered yacht to the
Charterer or its appointed representatives ready for sailing in a
stowed condition according to the checklist, cleaned internally and
externally, with attached gas canister (plus reserve canister) and
with a full tank of petrol (plus replacement fuel canister). The
Charterer may replace material that has been consumed and not
replenished (e.g. fuel) at the Charteree's expense and set a flat fee
for the costs, and may arrange for cleaning at the Charteree's
expense, if agreed. Cleaning may be contractually agreed against
a surcharge. The Charteree shall bring the chartered yacht to the
mooring in a timely manner (no less than 1-2 hours prior to the
handover time) such that detailed checkout and cleaning is possible.
Both parties shall jointly inspect the boat's condition and the
completeness of the equipment. The Charteree shall notify the
Charterer even in the event of suspicion of damage to the yacht
and shall immediately report any lost, damaged or no longer
functional equipment upon return. The Charteree and Charterer
shall prepare a list of defects and losses and shall then use this
and the checklist to prepare a protocol, which shall be binding
upon execution by both parties. Should the Charterer refuse to
prepare an acceptance protocol, the yacht shall be deemed returned
free and clear of defects. After this time, objections may no
longer be successfully made; this shall not apply if and to the
extent that there were latent defects upon repossession, for which
the Charteree is responsible as a result of wilful or grossly negligent
conduct. In particular, the Charterer may not retain the bond
for damage subsequently discovered. The type, scope and level of
damage that may and shall be rectified only at a later stage and,
where applicable, following further use of the chartered yacht,
shall be documented in detail and shall be binding to both parties.
XI. Damage (to the chartered yacht)
The Charteree shall notify the Charterer without undue delay of
any consequential damage, conduct obligations, liability damage,
collisions, accidents, disabling, operating breakdowns, seizure of
the yacht or other events. The Charteree and the Charterer must
always be available for instructions and questions. Damage based
on normal wear and tear or material fatigue may be rectified by the
Charteree up to an amount of EUR 150 without consultation and
the relevant expenses shall be reimbursed by the Charterer upon
presentation of receipts. The Charteree shall inform the Charterer
of expenses that exceed this amount (except in emergencies or in
cases of impending danger), shall document and monitor such
expenses and, if necessary, shall make the initial financial outlay.
Exchanged parts shall be kept. The Charteree shall undertake any
and all actions that reduce the damage and its consequences (e.g.
breakdown). Should damage be unable to be rectified onsite, the
Charteree may be obliged – following demand by the Charterer –
to return early (possibly 24 hours prior to transfer of possession) if
this is justifiable and reasonable under the circumstances. Should
the Charterer be responsible for the damage, the charter price
shall be reimbursed on a pro rata basis for each day commenced.
Should the Charterer not be responsible for the breakdown, any
additional compensatory damages claims on the part of the
Charteree shall be excluded.
The Charteree/Skipper/Crew shall bear up to an amount equivalent
to his bond the costs for rectification of defects or repair of
material damage on the chartered yacht or equipment.
Damage exceeding this amount shall be covered by the hull
underwriter, unless the skipper and/or crew act wilfully or in gross
negligence or breach the provisions of the Charter Agreement, and
these have a causal connection with the damage event that occurred.
This shall not apply to damage resulting from wear and tear
(e.g. opening of seams on sails) or damage for which the skipper
and his crew was not at fault.
XII. Other liability of the Charteree
The Charteree shall be liable for any and all damage culpably caused caused
by him or his crew to third parties or the chartered yacht, its
equipment or accessories, in particular, for damage attributable to
incorrect use or defective maintenance (if and to the extent this is
a duty of the Charteree) of the generators on board. In the event
of wilful or grossly negligent conduct, the Charteree shall also be
liable for claims asserted by the hull underwriter (recourse). If and
to the extent that he is at fault, the Charteree shall also be liable
for any and all consequential and economic loss (e.g. in the event
of seizure) according to the legal regulations of the country concerned.
Should the Charterer provide a professional skipper, he shall
be responsible for sailing the yacht and shall be liable for damage
caused by him, but not for damage (jointly) caused by the guests.
In the event of wilful or grossly negligent conduct on the part of the
Charteree or his crew for which the Charterer is made liable by a
third party without being (jointly) at fault in any manner, the
Charteree shall indemnify the Charterer against any and all consequences
under private and criminal law, any and all costs and any
legal prosecution, domestically and abroad. Where there is more
than one Charteree, these shall be jointly and severally liable. The
Charteree shall be fully liable for damage that has a causal connection
with misrepresentations concerning his ability to sail the
boat.
XIII. Charterer's liability
The Charterer shall itself be liable under the Charter Agreement for
loss or damage to the property of the Charteree or the crew or for
accidents only if it has acted wilfully or negligently, but not for
sovereign decrees, force majeure etc. The Charterer shall be liable
for damage caused by imprecision, changes or errors in the
nautical materials provided such as sea charts, handbooks, compass,
radio direction finders etc. only if it has not expressly notified
the Charteree or responsible skipper upon transfer of possession
of the yacht of this possibility and of his joint duty to inspect same.
However, compensatory damages claims based on liability for
damage based upon injury to life, limb or health due to a wilful or
negligent breach of duty and for other damage based on a wilful or
grossly negligent breach of duty by the Charterer shall remain
unaffected by any and all agreements.
XIV. Insurance (chartered yacht)
Hull insurance is in place for the chartered yacht for property
damage to the boat and equipment and flat liability insurance without
any excess for personal injury and property damage. The
amount covered of the liability is minimum one million Euro.
Personal injury as a result of accidents on board, damage to items
brought onto the boat by the skipper and crew and damage caused
by wilful or grossly negligent conduct shall not be covered by
such insurance, meaning that, generally speaking, the Charteree
rather than the Charterer shall be liable therefor in the event of
fault. Taking out of hull insurance shall not result in any liability
indemnity of the Charteree by the Charterer for damage that the
insurer does not assume due to wilful conduct, gross negligence
or abuse of the provisions of the Charter Agreement (e.g. deviating
from the agreed shipping route) or with respect to which the hull
underwriter may itself claim damages. The chartering shall take
place according to the legal provisions in place in the charter shipping
route.
XV. Bond (provisions, particularities)
Unless agreed otherwise, the Charteree shall deposit upon transfer
of possession onsite a bond pursuant to the charter-contract.
The bond shall be deposited in cash, by credit card or payment in
advance. He shall be liable for damages per charter-cruise up to a
maximum equivalent to this amount exclusively for property damage
to the chartered yacht and its accessories, lost equipment and
theft for which he or his crew have been found to be at fault; this
shall not apply to any decrease in value as a result of normal wear
and tear. In the event of force majeure and theft, this shall apply
only if and to the extent that the risk has been culpably increased
(e.g. going out during a storm warning). The bond shall be payable
in cash or by credit card upon transfer of possession of the yacht
or in advance by electronic transfer and shall be due for immediate
reimbursement upon repossession of the yacht if the charter
has taken place without any damage. If repairs may or should be
performed only at a later time and if it is foreseeable based on the assessment of the level of the damage that the expense will be
less than half of the amount deposited, then at least half shall be
immediately due for reimbursement.
XVI. Other agreements, miscellaneous, notices
1) Price list, deviations, modifications In the event of doubt or
uncertainties, the prices pursuant to the respective applicable
price list of the Charterer shall apply. In the event that taxes, fees
or duties included in the charter price are increased or reduced by
operation of law without the parties having any influence thereon,
the Charterer and the Charteree hereby declare that they agree to
a corresponding adjustment of the Agreement.
2) Differing charter agreements/second agreements to be executed
onsite Due to the provisions applicable in the Charterer's country,
it may be that the Charteree must have a charter agreement on
board drafted in the language of the guest country.
3) Legal categorisation / liability of the parties
(agent/Charterer/organiser): Should the Charter Agreement be
concluded via a charter agency, such charter agency shall act as
agent between the Charteree and Charterer. The brokering agency
shall be liable only in the context of the duties and responsibility
of an agent under the contractual relationship in place with the
Charteree. In this Agreement and in any future contractual modifications
and unilateral declarations by the Charteree to the
Charterer, the agent shall act as authorised representative in the
name and for the account of the respective Charterer and shall be
authorised to collect receivables.
XVII. Final provisions (applicable law, severability etc.)
The Charteree and Charterer declare in agreement with the agent
that any further agreement executed onsite between the Charterer
and Charteree shall have no effect for or against the agent as far
as its responsibility in relation to specific use of the chartered yacht
is concerned.
Oral commitments or ancillary agreements shall be applicable for
both parties only following written confirmation.
Should individual provisions of this Agreement be void, invalid or
of no legal effect, the validity of the
|