TERMS AND CONDITIONS
WESTERN PORT FERRIES PTY LTD
(ABN 33 619 267 248)
TERMS AND CONDITIONS OF CONTRACT
- “the Act” means the Competition and Consumer Act 2010 (Cth);
- “Carrier” means Western Port Ferries Pty Ltd, its agents, servants, representatives, contractors, subsidiaries or related bodies corporate and includes any successor, ship owner, disponent owner, charterer or sub-charterer of the Vessel;
- “Claim” means any action, claim, suit, demand, loss, liability, damage or Cost of whatsoever nature;
- “Cost” means any cost, expense, charge, payment or other expenditure of any nature whether direct, indirect or consequential and whether accrued or paid;
- “Dangerous Goods” means goods designated as dangerous by the Dangerous Goods Code of the International Maritime Organisation and includes but is not limited to goods that are or may become of a dangerous, flammable, radioactive, volatile, explosive, offensive or damaging nature;
- “Goods” includes all luggage, containers, parcels, packages, pallets, tanks, crates, cases, bundles, equipment for use in connection with storage, handling and/or carriage or otherwise and cargo, goods and items contained therein or thereon, brought or caused to be brought onto the Vessel by the Passenger;
- “Laws” means the laws of the Commonwealth of Australia and the State of Victoria;
- “Lost Property” means any property left behind on the Vessel by a Passenger that has disembarked from the Vessel, until such property claimed;
- “Master” means the appropriately Authorised person designated by the Operator as having command or charge of the Vessels.
- “Owner” means the owner of the Goods;
- “Passenger” means the person with whom the Carrier contracts to provide the Services and includes any representative, agent, employee or contractor of the Passenger;
- “Sea Carriage” means the carriage by the Vessel of the Passenger and any Goods at sea;
- “Services” means all services the Carrier provides to the Passenger under these Terms, being the carriage of Passengers and/or Goods by sea and all supplementary services provided by the Carrier in relation to the carriage of Passengers and/or Goods by sea;
- “Subcontractor” means any person with whom the Carrier arranges the provision of the Services or any part thereof;
- “Terms” means these Terms and Conditions of Contract;
- “Ticket” means a valid ticket issued by Western Port Ferries Pty Ltd or on its behalf by a duly appointed agent on prepayment of the scheduled fare or tariff and subject to these Terms for the carriage of passengers, luggage or Goods;
- “Vessel” means any catamaran or ship used in connection with the performance of the Services.
- Not Common Carrier
The Carrier is not a common carrier and will accept no liability as such.
- Provision of Services
The Carrier must supply the Services to the Passenger:
- in accordance with these Terms; and
- in compliance with all applicable standards, awards, laws and regulations including without limitation, awards and laws applicable to the Carrier’s employees.
- Subcontractors & Agents
The Carrier and any subcontractor or agent may arrange on any terms for the performance of any Services, or any part thereof, provided by the Carrier under these Terms.
- Refusal of Carriage
- The Carrier reserves the right to refuse the provision of Services to any person at its discretion and without assigning any reason; and
- If the Passenger is aboard the Vessel and:
- is suffering from any disease or affliction and is unfit to proceed to his or her port of destination or is likely to endanger the general health or safety of other persons aboard the vessel; or
- is suffering from any infectious or contagious disease; or
- is or is likely to prove undesirable to the Master or to the authorities at the port of his or her destination by reason of alcohol, drugs or otherwise; or
- is likely to conduct himself or herself in such a manner as to cause annoyance or injury to other persons on the vessel, the Passenger may be restrained or confined by the Master without notice and without liability to the Carrier or any consequential damage, loss, expense, loss of time or inconvenience and the Carrier shall not be required to repay any portion of the fare paid by any such Passenger.
- Passenger Obligations
The Passenger warrants:
- When on board the Vessel to comply fully with all reasonable requirements and/or directions of, or given by, the Carrier;
- That all other persons for whom that Passenger’s ticket is issued are correctly described as adult or child;
- With respect to any Goods:
- it has authorized any person who delivers any Goods to or collects any Goods from the Carrier for and on behalf of the Passenger to do so;
- it has the authority of the Owner and all persons having an interest in the Goods to agree to these Terms;
- it will comply with all applicable laws, regulations, orders and notifications in force relating to Sea Carriage and all conditions and instructions issued by the Carrier;
- the Carrier does not make any warranty or representation as to the physical or structural state and condition of the Goods or their fitness for the purpose for which they will be used;
- It is responsible for managing its own luggage throughout the Carrier’s provision of the Services;
- It will stow all luggage in accordance with the directions of the Vessel’s crew and should not restrict access to safety equipment or block aisles or emergency exits;
- The Passenger must:
- fully and accurately describe the Goods;
- give prior written notice to the Carrier if any of the Goods are Dangerous Goods, high value Goods or require special handling;
- comply with all applicable standards and Laws in relation to the Goods;
- ensure that the Goods are properly and safely packed; and
- ensure that the Goods are able to be stowed in a timely manner so that the Carrier is not delayed in performing the Services.
- If, in the sole opinion of the Carrier, Goods subsequently become Dangerous Goods, then the Carrier may, at the cost of the Passenger, destroy, dispose of or render harmless the Goods without prejudice to any of the Carrier’s rights under these Terms;
- The Carrier may at any time require the Passenger to remove the Goods at its own expense (whether in the case of non-shipment or otherwise) and if the Passenger fails to do so within 7 days of such notice, without limiting any other right of the Carrier, the Passenger shall be liable to pay the Carrier a fee for storage from the date of such notice until the date of removal;
- At all times the Goods are at the risk of the Passenger and not the Carrier and
- The Passenger must not make a Claim and must ensure that the Owner does not make a Claim against any person (other than the Carrier) by whom (whether as Subcontractor, employee, agent or otherwise) the Services or any part of the Services are provided, which imposes or seeks to impose upon such person any liability in connection with the Goods.
- Prohibited Items
- The Passenger must not carry, whether on their person or contained in any Goods, or otherwise try to bring on board the Vessel the following prohibited items:
- items which are prohibited by any applicable Australian law, regulation or order, whether from being carried on a sea vessel or otherwise;
- firearms and weapons of any type, including but not limited to knives, blades, or sharp items of any kind;
- items which are likely to endanger the Vessel, or persons or property aboard the Vessel, or items that may become or are Dangerous Goods; and
- items the Master reasonable determines are unsuitable for carriage because they are dangerous, unsafe, or because of their weight, size, shape or character, or which are fragile or perishable.
- If the Carrier discovers that the Passenger is carrying a prohibited item, the Carrier may do whatever it considers appropriate and reasonable in the circumstances, including disposing of the prohibited item without notifying you; and
- The Carrier will not be responsible for any loss or damage caused to any prohibited item if it is brought aboard the Vessel despite being a prohibited item.
The Passenger agrees that the:
- Sea Carriage may not be provided by the scheduled vessel;
- Vessel may not depart or arrive at the scheduled times;
- Services may be suspended or discontinued at the discretion of the Carrier; and
- Carrier is not liable for damage suffered as a result of the cancellation, suspension, diversion or delay in the departure or arrival of the Vessel.
The Carrier reserves the right to deviate from any advertised route and proceed, return to, or stay at any port for any purpose at its absolute discretion.
- Reservations and Cancellation Charges
The Passenger agrees that:
- A Ticket entitles the Passenger to the Services only at the time and date specified on the Ticket or, alternatively, at the time for which the Passenger has made a reservation with the Carrier;
- The Carrier reserves the right to refuse to provide the Services to the Passenger at a time and date that is not the subject of the Passenger’s Reservation;
- Reservations will be made upon request by the Passenger and are subject to availability; and
- A failure by the Passenger to check-in by the Carrier’s stated check-in time for a service may result in the Carrier issuing a cancellation charge to the Passenger.
- Cancelations made by the Passenger are inline with our Cancellation Policy, any cancellation made within 48 hours of the scheduled departure will not be refunded.
- Tickets and Refunds
The Passenger agrees that:
- Any Ticket issued to the Passenger is the property of the Passenger and is not transferable under any circumstances;
- The Carrier is not obliged to:
- Carry any person without a valid Ticket; or
- Replace or refund and issued ticket that is lost, stolen, damaged or destroyed.
- A Ticket is valid for the period stated on the Ticket.
- Unaccompanied Children
Children under the age of 12 years will not be carried unless accompanied by an adult.
- Hand Baggage
All hand baggage in excess of those personal items necessary for the duration of the voyage must remain in the Vessels Goods Storage area at all times throughout the voyage.
- Lost Property
The Passenger agrees that:
- The Carrier is not in any way liable for any loss or damage occasioned by the Passenger leaving any property on the Vessel after disembarkation;
- The Carrier reserves the right to seek reimbursement from the Passenger or Owner of any cost incurred for the return of Lost Property to its Owner;
- Any Lost Property that is not claimed within 1 month of the date on which the property was left on the Vessel will be considered by the Carrier to be abandoned and may be disposed of by the Carrier at its discretion;
- Should the Carrier elect to dispose of Lost Property by way of sale, the Carrier is entitled to retain any proceeds of such sale; and
- The Carrier may at its discretion dispose of Lost Property prior to the expiry or 1 month if such Lost Property:
- is of a perishable nature;
- may cause injury to the Carrier; or
- may inconvenience the Carrier.
- General Average
- General Average shall be adjusted according to the York-Antwerp Rules 1994 as amended, at any port or place at the Carrier’s option;
- The Passenger shall deliver such cash deposit and/or other security as the Carrier may deem sufficient to cover the estimated general average contribution of the Goods before delivery; and
- This Clause applies to all Goods and live animals.
- Live Animals
- The Carrier agrees to undertake at its published tariff Sea Carriage of live animals that are accompanied by a passenger, but only if the live animal is carried in a container which is acceptable to the Master (whose opinion shall be final) or a container issued by the Carrier;
- The Carrier will under no circumstances be responsible by any means for death, injury, loss or damage of or to any live animal, including consequential loss to such animal or for any claims for death, injury, loss or damage to person or property including consequential loss arising either directly or indirectly through negligence of the Carrier or otherwise howsoever and the accompanying Passenger undertakes to indemnify the Carrier accordingly;
- The Carrier is not obliged to provide food, water or attendants for any animal or bird carried; and
- If in the sole opinion of the Master a live animal carried in the Vessel endangers the safety of the Vessel, its cargo or any person the animal may be destroyed.
The Passenger agrees that:
- The Passenger, their Goods, luggage and effects are subject to search for, and seizure of, prohibited materials or substances; and
- The Passenger will not be permitted to travel if they refuse to be searched and/or refuse to allow their Goods to be searched.
- Limitation of Liability
In so far as the goods or services supplied by the carrier are not used for personal, domestic or household purposes, the Liability of the Carrier for failure to comply with a consumer guarantee shall be limited by the Act to:
- with respect to goods,
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- with respect to services,
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- Liability of the Carrier
Subject to the Act and Clause 20 of these Terms, the Carrier is not liable for any injury, fatal or otherwise, loss, damage, delay or detention of or to the Passenger, their Goods or any animal accompanied by the Passenger, from any cause, including:
- Negligence of the Carrier, its servants, employees or agents; and
- Unseaworthiness of the Vessel, any time prior to or after boarding and disembarkation.
- Insurance and Indemnity
- Insurance will not be arranged by the Carrier on behalf of the Passenger; and
- The Passenger indemnifies the Carrier, its employees, agents and Subcontractors against all losses, damages, expenses and Costs (on a full indemnity basis and whether incurred by or awarded against any of them) that any of them may sustain or incur as a result, whether directly or indirectly, of any Claim arising out of or in relation to the Goods, the Services or these Terms, even in circumstances where the Carrier has been negligent or breached these Terms.
- Extension of Limitations
Subject to the Act, every exemption, exclusion, or limitation in these Terms applicable to the Carrier or to which the Carrier is entitled also extends to protect:
- All employees or agents of the Carrier or of a Subcontractor;
- All Subcontractors engaged by the Carrier to perform the Services;
- Every other person or entity by whom the Services are performed or undertaken; and
- All persons who are or might be vicariously liable for the acts or omissions of any person falling within clauses 23(a), (b) or (c) of these Terms and the Carrier is or shall be deemed to be acting as an agent on behalf of and for the benefit of all and each such persons and all and each such persons shall to this extent be deemed to be parties to these Terms.
These Terms may only be altered, modified or waived by the express written consent of a director of the Carrier.
- Force Majeure
Failure or delay in performance of any obligation under these Terms by the Carrier shall be deemed not to be a breach of these Terms if that failure or delay is the result of any cause beyond its reasonable control and without fault or negligence of the Carrier and the obligations of the Carrier shall be suspended for the duration of the delay.
- Each clause of these Terms, and each part of each clause, must be read as a separate and severable provision; and
- If any provision is found to be void or unenforceable, that provision may be severed and the remainder of the Agreement must be interpreted as if the severed provision never existed.
This Agreement is governed by the laws of the Commonwealth of Australia and the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.