1.1 A reference to “Conditions” is a reference to these terms and conditions, as amended from time to time in accordance with Condition 13.2.
1.2 A reference to “Contract” is a reference to the contract between NPP and the Owner for the supply of berthing services, mooring services and/or Additional Services in accordance with these Conditions. It also applies to the owner of any vessel within the Newhaven Harbour Limits for whatever reason.
1.3 Where NPP has not previously provided berthing, mooring or any other services to the Owner, or the vessel is just visiting the Harbour, the Contract shall be referred to as a “One-Off Contract”.
1.4 A reference to “NPP” is a reference to Newhaven Port & Properties Ltd (company number 01923744) whose registered office address is at Port Administration Office, Commercial Freight Terminal, East Quay, Newhaven, East Sussex, BN9 0BN.
1.5 A reference to “Owner” includes a lawful owner, charterer, master or agency or any other person for the time being lawfully in charge (other than NPP) of the vessel, vehicle or goods. A reference to vessel includes any floating pontoons, barges or rigs.
2. BASIS OF CONTRACT
2.1 The Owner indicates its acceptance of these Conditions and a legally binding Contract is formed as follows:
2.1.1 The advance booking by an Owner of berthing, mooring or other services;
2.1.2 Entry into the area of the port by water or by land or use of a mooring buoy.
2.2 Upon formation of the Contract, NPP grants to the Owner a non-exclusive, revocable licence (such licence being by word, paper, virtual or assumed) to use such berth or such mooring as is allocated to it wheresoever in the harbour, or for use of the vessel within the harbour limits, pursuant to Condition 3.
2.3 The Owner acknowledges that nothing in these Conditions shall create a relationship of landlord and tenant between the Owner and NPP and the Owner shall have no rights of residency, or to exclusive use of a particular berth. The Owner may not, under any circumstances, provide the port address as its home address, nor may it register any personal documents including, but not limited to bank statements, drivers licence, or utility bills to the port address.
2.4 The Contract constitutes the whole agreement and understanding between the parties. The Owner acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of NPP which is not set out in the Contract. Nothing in this Condition shall limit or exclude any liability for fraud.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Owner seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. PROVISION OF BERTH AND MOORING
3.1 In consideration of the payment by the Owner of the relevant berthing fee (calculated in accordance with Condition 6) and subject to availability, NPP shall allocate to the Owner a berth of the type required by the Owner. These terms & conditions in whole or in part shall also apply to vessel owners allocated a berth or mooring by any other berth or mooring provider within the harbour limits.
3.2 The Owner acknowledges that NPP does not guarantee the Owner use of any particular berth and NPP shall be entitled to reallocate berths at its discretion. These terms & conditions in whole or in part shall also apply to vessel owners allocated a berth or mooring by any other berth or mooring provider within the harbour limits.
3.3 If at any time the berth allocated the Owner is vacant, NPP may use or reserve that berth for another vessel [and the Owner shall not be entitled to any refund of the berthing fees paid by it]. The Owner shall give NPP not less than 48 hours notice of its intention to return to the port to enable NPP to make arrangements to allocate a suitable alternative berth to the Owner. NPP accepts no responsibility should there be no suitable berth available for use by the Owner where the Owner has failed to give NPP the requisite notice of its return.
3.4 In consideration of payment by the Owner of the relevant mooring fee (calculated in accordance with Condition 6), where the Owner requires a mooring, the Owner shall be entitled to moor its vessel in the port in such a location and in such manner as shall be directed by the Harbour Master so as not to cause any obstruction to other users of the port. Regardless of payment made or not, all vessels within the harbour limits are subject to the Harbour Master’s directions or those of his nominated deputies.
3.5 The Owner may only moor its vessel to equipment provided for that purpose and the Owner is responsible for ensuring that its vessel is properly and safely secured to the mooring at all times.
3.6 NPP reserves the right at any time without prior notice, for its staff or agents to board the Owner’s vessel in order to move, moor (or re-moor) or re-berth the vessel for reasons of safety, security, an emergency, or to prevent or stop a nuisance. The Owner shall reimburse NPP in respect of any reasonable expenses incurred by it in connection with moving, re-mooring or re-berthing the Owner’s vessel.
4. ADDITIONAL SERVICES
4.1 In addition to providing the Owner with the berthing or mooring service in accordance with Condition 3, NPP may, at its discretion, provide the Owner with additional services from time to time (“Additional Services”), including, but not limited to (a) pilotage services; (b) the provision of a linesman; (c) the supply of fresh water; (d) the hire of a gangway; and (e) the hire of a crane, forklift or workboat. Full details of these Additional Services can be found on the website at www.newhavenportauthority.co.uk Entry into the harbour limits is an implied use of additional services.
4.2 If the Owner requires NPP to provide it with Additional Services, it shall order such services by confirming in writing using email or fax, setting out which of the Additional Services it requires. The order constitutes an offer by the Owner to purchase Additional Services from NPP in accordance with these Conditions. The order shall only be deemed to be accepted when NPP issues written acceptance of the order, at which point and on which date the contract for Additional Services shall come into existence.
4.3 NPP will provide the Additional Services using reasonable care and skill.
5. OWNER'S OBLIGATIONS
5.1 The Owner must:
5.1.1 co-operate with NPP in all matters relating to any services provided by NPP pursuant to these Conditions and shall provide NPP, its employees, agents, consultants and subcontractors, with access to the Owner’s vessel as reasonably required by NPP;
5.1.2 keep the berth which is allocated to it in a clean and tidy condition;
5.1.3 keep its vessel in a mobile, seaworthy and reasonably smart condition; and
5.1.4 provide NPP with a contact name and address to which NPP may send notices and other correspondence to the Owner, together with a telephone number which NPP may use in case of emergency.
5.1.5 The Owner shall comply with all applicable statutes, statutory instruments, rules, regulations directions and bye-laws and the Owner’s use of its vessel and/or vehicle within the area of the port is subject to NPP’s Harbour Bye-laws and Directions any other requirements imposed by NPP. A copy of the NPP Harbour Bye-laws and Directions can be found on NPP’s website at www.newhavenport.com Any changes to the Bye-laws, Directions or other rules and regulations will be notified to the Owner at this web address;
6. CHARGES AND PAYMENT
6.1 The Owner shall pay to NPP a deposit when booking an NPP berth. Subject to the Owner making payment to NPP of all sums due to NPP under the Contract, NPP shall return the deposit to the Owner upon termination of the Contract.
6.2 The fees for the berthing and mooring service and for the Additional Services and any relevant deposit shall be calculated in accordance with NPP’s standard rates in force from time to time, as set out at NPP’s website (www.newhavenport.com);
6.3 NPP reserves the right to increase its standard rates. NPP will give the Owner notice of any such increase by posting the updated rates on its website at least 1 month before the proposed date of the increase. If such increase is not acceptable to the Owner, it shall notify NPP in writing and NPP shall have the right, without limiting its other rights or remedies to terminate the Contract by giving 2 weeks’ written notice to the Owner.
6.4 Subject to Condition 6.6, NPP shall invoice the Owner in respect of the berthing and mooring fees (as applicable) in advance and shall invoice the Owner in respect of any Additional Services on completion of the Additional Services.
6.5 Subject to Condition 6.6, the Owner shall pay each invoice submitted by NPP in full and in cleared funds into a bank account nominated in writing by NPP, or by cheque payable to Newhaven Port & Properties Ltd, within 30 days of the date of the invoice.
6.6 In respect of One-Off Contracts, NPP may require the Owner to pay the relevant fees in advance or on delivery of the services.
6.7 All amounts payable by the Owner under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”).
6.8 Without limiting any other right or remedy of NPP, if the Owner fails to make any payment due to NPP under the Contract by the due date for payment, NPP shall have the right to charge interest on the overdue amount at the rate of 5% per cent per annum above the then current base lending rate of Natwest Bank accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
7. INDEMNITY AND INSURANCE
7.1 The Owner shall indemnify and keep indemnified NPP against all loss, claims, actions, proceedings and damage arising out of or in connection with the Contract (“Claims”), including, but not limited to Claims suffered by NPP which are caused directly or indirectly by the Owner’s vessel or other vehicle, or otherwise caused by the Owner, its employees, agents, crew members or guests, except where arising out of the act, negligence or default of NPP, its employees or agents.
7.2 The Owner agrees that it will fully compensate NPP for the cost of making good any such Claims and all consequential loss.
7.3 Without limiting its responsibilities under the Contract the Owner warrants to NPP that it has and will maintain at all times, a suitable policy of insurance with a reputable insurer in respect of third party (public liability) insurance for leisure and fishing vessels with a minimum level of cover of £3M per incident, and, in respect of Commercial vessels, adequate Protection & Indemnity Insurance, and to also include pollution and salvage insurance. The Owner shall, immediately upon request, supply NPP with copies of its insurance policies, cover notes, premium receipts and any other evidence that NPP reasonably requires as evidence of its compliance with this Condition. This condition applies to all vessels within the harbour limits. Failure to have in place adequate insurance as stated above will be treated as a breach of this contract.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions excludes or limits the liability of NPP for: (a) death or personal injury caused by NPP’s negligence; or (b) for fraud or fraudulent misrepresentation; or (c) for any matter in respect of which it would be illegal for NPP to exclude or attempt to exclude its liability.
8.2 Subject to Condition 8.1, NPP shall not be liable to the Owner whether in contract, tort (including, but not limited to negligence), breach of statutory duty, or otherwise for:
8.2.1 any loss or theft of, or damage of any nature to the Owner’s vessel or vehicle, or any other property of the Owner, or its employees, agents, crew members or guests; and
8.2.2 loss of profit, loss of business or depletion of goodwill, in each case, whether direct, indirect or consequential, arising under or in connection with the Contract.
8.2.3 NPP’s total liability to the Owner in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed £100,000.
8.2.4 The weight/package limitation of liability for NPP is 2 SDR’s per kilo or 667 SDR’s as a package with a 12 month time bar limit, applicable to all cargo, stores, commodity or object whatsoever.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This Condition 8 shall survive termination of the Contract.
9. DURATION AND TERMINATION
9.1 The Contract will commence on the date of acceptance of these Conditions in accordance with Condition 2.1 and will continue in full force and effect unless terminated in accordance with the provisions of this Condition 9.
9.2 Either party may terminate the Contract with immediate effect by giving notice to the other in writing if the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach.
9.3 NPP may revoke the Owner’s licence immediately upon notice to the Owner in its absolute discretion.
9.4 Without limiting its other rights or remedies, NPP may terminate the Contract with immediate effect by giving written notice to the Owner if:
9.4.1 the Owner fails to make payment of any amount due under the Contract by the due date or there is a breach of any of the terms and conditions detailed above.
9.4.2 the Owner (being a natural person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Owner or notice of intention to appoint an administrator is given by the Owner or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Owner or for the granting of an administration order in respect of the Owner, or any proceedings are commenced relating to the insolvency or possible insolvency of the Owner; or
9.4.3 the Owner ceases or threatens to cease to carry on its business.
9.5 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of NPP accrued prior to termination.
9.6 Without limiting its other rights or remedies, either party shall have the right to terminate the Contract by giving the other party not less than 3 months’ written notice.
10. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
10.1.1 the Owner shall immediately pay to NPP all of NPP's outstanding unpaid invoices and interest and, in respect of any Additional Services supplied but for which no invoice has been submitted, NPP shall submit an invoice, which shall be payable by the Owner immediately on receipt;
10.1.2 the licence to berth, or the licence to moor (as applicable) or the licence to use the harbour granted to the Owner pursuant to Condition 2.2 shall immediately terminate and the Owner shall be required to remove its vessel from the berth or mooring, (as applicable) within 7 days of the date set out in the notice of termination; and
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.2 If NPP terminates the Contract in accordance with Condition 9.6, NPP shall, subject to the Owner having paid all sums due to NPP pursuant to the Contract, return to NPP the unexpired portion of the berthing fees which the Owner has paid in advance to NPP.
10.3 Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
11. NPP’S POWER OF REMOVAL AND SALE
11.1 If, upon termination of the Contract for any reason, the Owner fails to remove its vessel from its berth or mooring or from the harbour limits as required pursuant to Condition 10.1.2, NPP shall be entitled to:
11.1.1 charge the Owner for the berthing/mooring of its vessel at NPP’s then current visitor rates for berthing and mooring; and/or
11.1.2 remove the vessel from the berth or mooring wheresoever that may be and store it ashore, in which case NPP shall be entitled to recover from the Owner, the reasonable costs incurred by NPP in so doing. NPP shall not be liable for any damage caused to the Owner’s vessel as a result of such removal and storage.
11.2 If, following removal and storage of the vessel by NPP in accordance with Condition 11.1.2, the Owner fails to take delivery of the vessel, NPP shall, pursuant to the provisions of the Tort (Interference with Goods) Act 1977, be entitled to dispose of or sell such vessel and apply the proceeds of sale against any sums owing to NPP and deduct from the balance, any costs incurred by NPP in connection with the sale.
12. MATTERS BEYOND NPP’S CONTROL
12.1 NPP shall not be liable to the Owner as a result of any delay or failure to perform its obligations under this Contract as a result of matters which are beyond its reasonable control, which for the purposes of this Contract includes but is not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of NPP or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, act of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, fog or bad weather, storm or default of suppliers or subcontractors.
12.2 If any of the events set out in Condition 12.1 prevents NPP from providing any of the services contemplated by these Conditions for more than eight weeks, NPP shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Owner.
13.1 NPP may assign the Contract or any part of it to any person, firm or company. The Owner shall not be entitled to assign the Contract or any part of it without the prior written consent of NPP.
13.2 NPP may from time to time amend or vary these Conditions for any reason by giving notice to the Owner by way of notification on the NPP website. NPP shall use its reasonable endeavours to give as much notice of any such amendment or variation as is reasonably practicable and, save for where an amendment or a variation is necessary to comply with law, such notice period shall be at least three (3) months. Any amendment or variation NPP makes shall take effect from either the date stated in the notice where such amendment or variation is necessary to comply with law, or in all other circumstances, from the 1 January of the following year.
13.3 If any court or competent authority finds that any provision of these conditions (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provision of the Contract shall not be affected.
13.4 Failure or delay by NPP in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract. Any waiver by NPP shall not be deemed a waiver of any subsequent breach.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 All notices between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post, or sent by fax to the relevant party’s registered office or such other address as it has previously notified to the other. Notices shall be deemed to have been received: (a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and public and bank holidays) after posting (exclusive of the day of posting); (b) if delivered by hand, on the day of delivery; or (c) if sent by fax on a working day prior to 4pm, at the time of transmission and otherwise on the next working day.
13.7 The Contract shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
13.8 Nothing contained in these terms and conditions shall prejudice or affect any of the statutory rights, powers, duties and obligations for the time being vested in NPP as the Statutory Harbour Authority for Newhaven. All powers granted by Ports, Harbours and Maritime legislation apply at all times.