TERMS AND CONDITIONS OF CARRIAGE OF
PASSENGER ON VESSEL “KERRA LYN” the company Geographe Maritime Pty Limited
1. DEFINITIONS & INTERPRETATION
(a) In these terms and conditions the following words and phrases shall have the following meanings:
“Agreement” shall mean the agreement comprised in the Ticket and these terms and conditions.
“the Company” shall mean GEOGRAPHE MARITIME Pty Ltd (ACN 106 185 933)
“Goods” shall mean any goods or equipment owned by or in the possession of the Passenger which the Passenger brings on board or causes to be brought on board the Vessel;
“Master” shall mean the master of the Vessel;
“Party or Parties” shall mean the Parties to this Agreement and may be used interchangeably;
“the Passenger” shall mean the person named as Passenger on the ticket which is on the reverse or attached to these terms and conditions;
“Services” shall mean all services provided by the Company to the Passenger including the carriage of the Passenger and the Goods;
“Sub-Contractor” shall include any person who pursuant to a contract or arrangement with any other person (whether or not the Company) performs or agrees to perform the Services or any part thereof;
“Ticket” shall mean the Passenger Ticket or the reverse hereof or attached hereto;
“Vessel” shall mean the Vessel “Kerra Lyn”.
(b) Words importing the singular include the plural and vice versa.
(c) Words importing a gender include any gender.
(d) An expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Governmental authority or agency.
(e) A reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued pursuant to that statute.
(f) A reference to a Party includes that Party’s executors, administrators, substitutes, successors and permitted assigns.
(g) A covenant or agreement on the part of two or more persons binds them jointly and severally.
2. NEGATION OF LIABILITY AS A COMMON CARRIER
The Company is not a common carrier and will accept no liability as such. All Services are provided by the Company subject to these terms and conditions and the Company reserves the right to refuse the provision of Services to any person or the carriage or transfer of any person or Goods at its discretion and without giving any reason therefor.
In purchasing the Ticket to be a passenger on the Vessel “the Kerra Lyn” the Passenger shall be deemed to represent to the Company that the Passenger is medically and physically fit to undertake the voyage and in the event that the Passenger has a medical condition or develops a medical condition that, in the opinion of the Company, may affect the enjoyment, health or safety of the Passenger or any other person onboard the Vessel then the Company shall have the right to disembark the Passenger forthwith or at the next convenient port. 2
(a) A child is considered to be between 4 to 16 years of age inclusive.
(b) Children under the age of 4 must be monitored by the parent of guardian at all times. The Kerra Lyn is extremely family friendly and safe but the responsibilty of your child is yours.
(c) Children and teenagers under the age of 16 are to be accompanied by an adult
A full refund will be offered if Geographe Maritime Pty Limited known as (Geographe Maritime Charters) cancels a tour or a next available tour will be offered to the passenger. A return ticket will be offered if your whale watch tour fails to sight a whale from SEPTEMBER to NOVEMBER only. Refunds provided by Geographe Maritime are for tickets purchased through Geographe Maritime only. All other refunds must be provided by the original seller of the ticket.
Seniors and pensioners must present an Australian or New Zealand Government issued Seniors Card at check in to receive the Pensioner/Senior ticket rate, otherwise full payment balance must be made before departure of tour.
8. TICKET COST & SERVICES
(a) The cost of the Ticket payable by the Passenger to the Company shall be the current amount published by the Company for the nominated voyage (“the Ticket cost”).
(b) Full payment with purchase of each ticket shall accompany each application for a Ticket.
(c) A ticket will be issued immediately on receipt of full payment.
(d) GROUP BOOKINGS of more than 10 passengers and/or ALL DAY TOUR BOOKINGS 50% deposit will be taken please phone on 0439 626383 for assistance. Balance of payment to be made 14 days prior to the tour, if this payment is not received the tour will be cancelled and there will be no refund. If the tour is cancelled by the passengers within the 14 days prior to the tour there will be no refund.
(a) The Passenger may at any time prior to commencement of the voyage cancel the Passenger’s booking in which case:
(i) For general bookings (not Private Charter) if the cancellation occurs 48 hours prior to the tour/voyage date the Company shall promptly refund all other moneys paid on account, less 20% administration fee, of the Ticket Cost; in the same manner in which the booking was made;
(ii) if the cancellation occurs within the 48 hour period prior to the tour/voyage no refund will be paid
(iii) if Geographe Maritime the Company cancels the tour/voyage due to inclement weather or insufficient numbers a full refund will be provided in the same manner in which the booking was paid for.
(iv) Private Charter booking cancellation - if the booking is cancelled prior to one month of Charter 50% of the deposit will be refunded, if the charter is cancelled within the month prior to departure date the 50% deposit of tour shall not be refunded.Balance of payment to be made 14 days prior to the departure date of tour, if this payment is not received the tour will be cancelled and there will be no refund If the tour is cancelled by within 14 days prior to the tour dpearture date there will be no refund.
10. OTHER EXPENSES
Any expenses not covered by the Ticket Cost which are reasonably incurred on board or at any port for and on behalf of the Passenger for (but not limited to) medical, hospital, surgical or similar treatment, hotel, transport and/or repatriation expenses shall be payable by the Passenger to the Company on demand.
11. DANGEROUS GOODS
The Passenger shall not bring on board the Vessel any goods or objects of a flammable or dangerous nature or alcohol or drugs of any kind (other than legally prescribed drugs for personal medication or the treatment or relief of personal ailments). 3
12. CHECK IN TIME
The Passenger is required to check in at the Place of Boarding referred to in the Ticket at least 30 minutes before the Time of Boarding referred to in the Ticket and in the event that the Passenger does not check in as required by this Clause then the Company shall have the right to refuse embarkation of the Passenger and no refund will be given if you miss tour/voyage departure.
Smoking is prohibited on the Vessel at all times.
14. SAFETY MATTERS
The Company shall have the right to refuse to carry the Passenger or any other person or cargo whatsoever on the Vessel in the event that the Company decides that:
(a) such action is necessary for reasons of safety; and/or
(b) the conduct, age, mental or physical state, nature or condition (including intoxication) of a Passenger may cause inconvenience, discomfort or objection to another passenger or crewmember or any other person whatsoever or involve any hazard or risk to any property or person in or proximate to the Vessel; and/or
(c) such action is necessary owing to the failure by a Passenger to observe any instructions given to the Passenger by the Company or the Master.
(a) Passengers are not permitted to bring Alcohol on board the Vessel unless embarking on the ECO Bay Cruise, Summer Sunset or Private Charter.
The Passenger and the Company agree that the Company and its authorised servants and agents may at any time and from time to time during the voyage search the Passenger and/or the Goods and in the event that the Passenger refuses or hinders such search then the Company shall be entitled forthwith or at the next convenient port or place to disembark the Passenger.
In the event that any Passenger is not self-sufficient and requires assistance in relation to mobility or personal care then such Passenger shall be entirely responsible for the provision of a carer and it is acknowledged by the Passenger that the crewmembers of the Vessel are unable to act as personal carers.
Wheel chair access is not available.
The Passenger acknowledges, undertakes, agrees and warrants to the Company that the Passenger will not enter the twenty fourth (24th) week of pregnancy at any time during the voyage and if required by the Company the Passenger shall supply a letter from a medical practitioner certifying such fact.
19. MASTERS DIRECTIONS
The Passenger shall comply with the directions of the Master during the course of the voyage and will perform and observe all lawful commands or directions of the Master or his delegate. If it appears to the Master that the Passenger is for any reason whatsoever unfit to undertake or continue the voyage or likely to endanger his or her health or safety or endanger the health and safety of others on board the Vessel then the Company and/or Master shall be entitled at any time to take any of the following courses as appear appropriate at the time namely:
(a) to refuse to embark the Passenger;
(b) to disembark the Passenger at any port; or
(c) to confine the Passenger to a cabin;
and in such circumstances neither the Master nor the Company shall be liable for any damage, loss or expense occasioned to the Passenger nor shall the Company be liable to make any refund of the Ticket Cost or any part thereof.
No insurance will be effected by the Company for the benefit of the Passenger and the Passenger shall make all necessary arrangements for insurance of the Passenger and the Goods.
21. RIGHT TO SUB-CONTRACT
(a) The Company and any Sub-contractor shall be entitled to sub-contract on any terms the whole or any part of the Services.
(b) The Passenger undertakes and warrants that no claim or allegation shall be made, whether by the Passenger or any other person whomsoever against any person (other than the Company) by whom (whether as Sub-contractor, principal, employer, servant, agent or otherwise) the Services or any part thereof are performed or undertaken which imposes or attempts to impose upon any such person any liability whatsoever whether or not arising out of negligence on the part of such person, and if such claim or allegation should nevertheless be made, then to indemnify keep indemnified and hold harmless the Company and the person against whom such claim or allegation is made against all the consequences thereof. Without prejudice to the foregoing and for the purpose of this Clause the Company is or shall be deemed to be acting as agent or trustee for and on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Agreement.
22. EXTENSION OF EXEMPTIONS TO SUB-CONTRACTORS
Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect:
(a) all Sub-contractors;
(b) every servant or agent of the Company or of a Sub-contractor;
(c) every other person (other than the Company) by whom the Services or any part thereof is performed or undertaken; and
(d) all persons who are or might be vicariously liable for the acts or omissions of any person falling 5
within Sub-clause (a), (b) or (c) hereof and for the purposes of this Clause the Company is or shall be deemed to be acting as agent and trustee for and on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be Parties to this Agreement.
23. RISK WARNING
The Company hereby gives to the Passenger a risk warning concerning activities on or associated with the Vessel as follows:
Whale Watching in open waters
Risk of falling overboard
Risk of drowning while swimming
Slipping or tripping while on vessel
Risk of being hurt while embarking/disembarking from tender and vessel
24. VOLUNTARY ASSUMPTION OF RISK
The Passenger acknowledges that all activities undertaken by the Passenger in connection with the Services or while the Passenger is on or involved in activities in connection with the Vessel or in recreational or other activities in relation thereto are undertaken of the Passenger’s own free will and at the Passenger’s own risk.
25. LIABILITY OF COMPANY
The Services and any activities undertaken by the Passenger in relation to the Services or whilst on or involved in activities in connection with the Vessel or any recreational or other activities in relation thereto shall in all respects be at the risk of the Passenger and not the Company and the Company shall not be liable in tort or contract or bailment or otherwise howsoever for any loss or damage of any nature or kind whatsoever including loss of or damage to any property whatsoever including the Goods and including personal injury to or the death of any person whomsoever including the Passenger caused by contributed to or arising out of or in the course of or in connection with the provision of the Services or whilst the Passenger is on or involved in activities in connection with the Vessel or any recreational or other activity in relation thereto and whether or not such loss damage injury or death is due to the negligence or breach of contract or breach of duty as bailee on the part of the Company or its servants agents or Sub-contractors and this Clause shall apply to all such loss or damage or injury or death whether or not the same occurs in the course of performance by or on behalf of the Company of the Agreement or from events which are in the contemplation of the Company and/or the Passenger or from events which are foreseeable by them or either of them or from events which could or do constitute a breach of the Agreement or a breach of a fundamental term thereof.
26. DEVIATION OR DELAY
Every reasonable effort will be made to adhere to the advertised route and timetable but any route or port may be altered or omitted or time or dates changed for any cause which the Company and/or Master in their 6
absolute discretion shall consider necessary and the Passenger hereby authorises any delay in the provision of the Services or diversion from the usual or planned route of any voyage included in the Services which the Company may in its absolute discretion deem desirable or necessary in the circumstances.
27. EARLY TERMINATION BY THE COMPANY
(a) At any time prior to the time that the Services are to be provided by the Company to the Customer pursuant to this Agreement the Company may give notice to the Customer that it will not provide the Services and in such event the Company shall not be under any liability whatsoever to the Customer to provide the Services and shall not be liable for any loss or damage suffered or incurred by the Customer as a result of the Services not being provided.
(b) In the event that the Company gives notice to the Customer pursuant to Sub-Clause (a) hereof the Company shall not be under any liability to provide to the Customer any reason why the Company will not provide the Services to the Customer.
The Passenger shall indemnify, keep indemnified and hold harmless the Company in respect of any suits claims demands damages losses costs expenses liabilities and causes of action brought or made by any person whomsoever in respect of any personal injury to or the death of any person whomsoever or loss of and/or damage to any property whatsoever (including the Goods) arising out of or as a consequence of any accident or circumstance involving the Services and/or the Vessel including loss or damage or injury or death caused by contributed to or arising out of the provision of the Services or the use or operation of the Vessel or while the Passenger is on or involved in activities in connection with the Vessel or in recreational or other activities in relation thereto and whether or not such loss or damage or injury or death arises out of breach of contract or negligence whether alleged or proven against the Company or its servants agents or Sub-contractors.
29. TERMS & CONDITIONS TO HAVE FULL FORCE IN ALL CIRCUMSTANCES
All the rights, immunities and limitations of liability in these terms and conditions shall continue to have full force and effect in all circumstances and notwithstanding any breach of the Agreement or any of the terms or conditions thereof by the Company or any other person entitled to the benefit of such provisions.
30. VARIATION OF TERMS
No servant or agent of the Company nor any other person has any power to waive or vary any of the terms hereof unless such waiver or variation is in writing and signed by the Company.
31. VALIDITY OF TERMS & SEVERABILITY
In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined invalid, unlawful or unenforceable to any extent, such term, condition or provision shall be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
32. COMPETITION & CONSUMER ACT AND FAIR TRADING ACT
(a) Notwithstanding anything herein contained the Company shall continue to be subject to any consumer guarantees provided by the Competition & Consumer Act, 2010 (Cth) (as amended) (“the CCA”) and the Fair Trading Act, 2010 (WA) (“the FTA”) (as amended) if and to the extent that 7
those Acts or either of them is or are applicable to this Agreement and prevents the exclusion, restriction or modification of any such consumer guarantee.
(b) Save for other conditions and warranties or consumer guarantees (if any) set out in these terms and conditions the only conditions and warranties or consumer guarantees which are binding on the Company in relation to its supply of the Services are those required by the CCA (if applicable) and the FTA (if applicable) and in the event that the Company is liable for breach of a consumer guarantee imposed by the CCA or the FTA the liability of the Company for a breach of such consumer guarantee shall be limited to supplying the Services again or the payment of the cost of having the Services supplied again and otherwise all conditions and warranties and all consumer guarantees whether express or implied by law and all representations, statements and obligations which would otherwise be binding upon the Company are hereby expressly excluded and negatived.
33. LIMITATION OF LIABILITY
If notwithstanding the other terms hereof the Company is found liable to the Passenger the liability of the Company shall not under any circumstances exceed the applicable limits of liability set out in any relevant legislation relating to the limitation of liability of owners of vessels or any other applicable legislation.
34. GOVERNING LAW & JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws for the time being of the State of Western Australia and the Parties hereby submit to the jurisdiction of the Courts of that State and all Courts which are competent to hear appeals therefrom.
No waiver of any provision of this Agreement nor consent to any departure therefrom by any of the Parties shall be effective unless the same shall be in writing and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given. No default or delay on the part of any of the Parties in exercising any rights powers or privileges hereunder shall operate as a waiver thereof or of any other right hereunder; nor shall a single or partial exercise thereof preclude any other or further exercise of any other right, power or privilege.