THE PROVISION OF SERVICES BY NORTHPORT WILL BE UPON THE FOLLOWING TERMS AND CONDITIONS. ANY USER TRANSACTING SUCH BUSINESS ORENTERING ON TO NORTHPORT'S PREMISES ARE DEEMED TO HAVE AGREED TO AND TO BE BOUND BY THESE TERMS
- Price Schedule
- Payment for Services
- Cargo Obligations
- Variation of Terms
- Contracts Act
- Standard Of Pilotage, Towage And Other Services
1.1 "cargo" means any goods, merchandise or other property whatsoever whether or not within a container in respect of which Northport provides or is requested to provide services pursuant to these terms.
1.2 "container" means any article of transport, equipment (including lift, movable tank, flat or otherwise similar structure constructed to the specifications of an international standards organisation and having standards ISO means of top corner lifting).
1.3 "dangerous cargo" means cargo of a dangerous, hazardous, noxious, inflammable, radioactive or damaging nature as defined from time to time in the General Harbour Regulations and/or in the International Maritime Organisation's Code of Dangerous Cargo and/or the Maritime Transport Act 1994 and/or any other relevant New Zealand legislation.
1.4 "day" means the 24 hour period between midnight and midnight or any part of such.
1.5 "Northport" means Northport Limited and includes its employees, agents and subcontractors.
1.6 "person" includes companies and any other corporate bodies.
1.7 "Port" means the wharves of Whangarei and Marsden Point and all of the associated facilities owned by Northport.
1.8 "Price Schedule" means Northport's price schedule of charges in force at the date of provision of the services by Northport.
1.9 "subcontractors" means direct or indirect subcontractors and their respective employees and agents.
1.10 "tonnage" in respect of vessels shall mean the tonnage according to a vessel's certificate of registration.
1.11 "User" means any person for whom Northport provides or is to provide services pursuant to these terms or any employees, subcontractor or a representative of any one or more of the foregoing who requests Northport to provide services, and the obligations and liabilities under these terms of all or any such persons, if there be more than one, will be joint and several. Without limiting the generality of this definition the "User" will include the owner, lessee, charterer, operator, Master or manager of any vessel, a road or rail carrier, a vessel, stevedore or a combination of any two or more of those parties or the agent of any of the above or any person holding himself out to be such agent.
2.1 Northport will provide berthage for the User's vessels at the Port.
2.2 Northport will provide services for the loading and/or discharging of vessels for the handling of cargo and containers, for the transport of cargo and containers between the wharf and the marshalling area and all other services referred to in the Price Schedule provided for in clause 3.
2.3 Berthage will be subject to the absolute right of Northport to require a vessel berthed at any wharf to be moved or relocated to another berth in the Port, or to vacate the allocated berth and to moor in the stream or harbour as directed and any such requirement will be carried out by the Master.
2.4 Northport will use its best endeavours to provide a berth for the User's vessel on a date convenient to the User's sailing schedules but Northport will be under no liability for the consequences direct or indirect, if any, if for any reason Northport is unable to provide berthage as requested by the User.
3.1 Unless otherwise agreed in writing, the charges for services provided will be in accordance with Northport's Price Schedule of charges in force at the time of actual provision of the services. Particulars of such Price Schedule are available upon request. Payment for all services shall fall due at the time such services are provided.
3.2 For the avoidance of doubt, Northport will utilise the gross registered tonnage of the User's vessel for the purposes of computing the marine service and berthage charges.
Unless otherwise agreed in writing prior to provision of the services requested:
4.1 The terms of payment for services will be cash in full prior to the time of departure of the vessels to which services have been provided; or,
4.2 Where services have not been provided in relation to a vessel, will be cash in full within 7 days of the date of Northport's invoice.
5.1 In addition to any other rights of lien or retention, Northport shall be entitled to have a lien on any cargo passing through or stored at the Port and any documents relating to such for all sums payable to Northport for provision of services and for the cost of recovering the same and for that purpose shall have the right to sell the cargo by public auction or private treaty without notice to the User. If on sale of the cargo the proceeds fail to cover the amount due and the costs incurred, Northport shall be entitled to recover the deficit from the User of all cargo and containers presented to Northport.
5.2 Northport shall be entitled to retain possession of and prohibit from leaving its wharves any vessel until payment of all charges in respect of such cargo or vessel, or any previous cargo or vessel owned by the same person has been paid. For the purposes of this clause, cargo or vessels owned by a receiver of the owner or an associated person of the owner (as defined in Section OD7 of the Income Tax Act 1994) shall be deemed to be owned by the User.
5.3 As between Northport and the persons liable to pay charges Northport's lien and right to detain cargo or vessels at law or pursuant to these terms shall apply notwithstanding that such cargo may have left or never have been in Northport's possession.
6.1 The User will ensure that all cargo and containers presented to Northport are properly packed and labelled, are in every way safe for carriage by sea or road or rail, do not exceed their rated gross capacity, are in a fit and proper condition to be handled or otherwise dealt with in the normal course of business by the equipment and operating procedures usually employed by Northport and comply with all applicable laws, orders, regulations or other requirements of the New Zealand government and all other local or government authorities whatsoever, and all requirements by any bills of lading applicable to any of the cargo and containers presented to Northport.
6.2 The User will comply with any rules and directions made from time to time by Northport in respect of the handling of dangerous cargo and will also comply with any statute, statutory regulations or other legal requirement that may be in force whether prescribed by the New Zealand government or any international agency or institution, and also with rules, requirements or procedures set by owners of cargo as appropriate and in addition comply with all such procedures and rules as are considered current good operating practice.
6.3 The User will comply with the documentation and procedures in respect of all operations as required from time to time by Northport.
6.4 The User undertakes not to arrive at the berth or wharf gate with any dangerous cargo without previously giving written notice of the nature to Northport and marking the cargo and the container or other covering on the outside as required by any laws or regulations which may be applicable indicating they require special care by Northport.
6.5 If Northport does not have knowledge of the arrival of dangerous cargo, Northport shall not be liable and such cargo can be destroyed or removed or rendered harmless without compensation and the User shall indemnify Northport against all loss, damage or expense arising out of such cargo being tendered for services to Northport.
6.6 If any User fails to remove any containers or cargo from the Port within the time allotted for free storage as detailed in Northport's applicable Price Schedule then Northport may at its sole and unfettered discretion handle, remove, store or otherwise deal with such containers and cargo at the entire risk and expense of the User. If such containers or cargo are unclaimed during a reasonable time, or whenever in Northport's opinion the cargo will become deteriorated, decayed or worthless, Northport may at its discretion and without notice to the User and without prejudice to any other rights which Northport may have pursuant to these terms and without any responsibility attaching to Northport, sell, abandon, or otherwise dispose of such cargo or containers solely at the risk and expense of the User.
7.1 Liabilities of Northport: Subject to the provisions of clause 7.2 (maximum liabilities for Northport), 7.4 (exclusions of liability) and 7.6 (notification of claims), Northport will be liable for physical loss or damage, but not for special consequential loss or damage, caused by the negligence of Northport, its employees, agents or subcontractors to:
7.1.1 The User's vessel and/or equipment;
7.1.4 Ancillary equipment (including clip-on refrigerator units, refrigeration towers, generators, trailers and chassis) owned by the User or any other persons,but excluding any loss caused by the actions of a pilot while piloting any vessel)
7.2 Maximum liabilities of Northport:
7.2.1 The maximum liability of Northport to the User or any person claiming through the User ("maximum liability"); and
7.2.2 The maximum aggregate liability of all claims for loss or damage by whomsoever made arising out of any one event ("maximum aggregate liability"); and
7.2.3 The excess of any claim (which sum will be deducted from the amount payable by Northport for any loss or damage) in accordance with the liability table below; and
7.2.4 All amounts of loss and damage referred to in this clause 7.2 including those referred to in the liability table are in New Zealand dollars and are GST inclusive.
|Loss/Damage||Maximum Liability||Maximum Aggregate Liability||Excess|
|User's vessels and equipment||Lesser of reasonable cost or repair or market value||$200,000||$1,000|
Less of reasonable cost of repair or market value or:
(ii) insulated $4,000
(iii) other $1,000
(i) in a closed or sealed container $5,000
(ii) on board a vessel $750 per manifest tonne or part thereof
(iii) elsewhere $1,000 per tonne or part thereof
|Ancillary Equipment (clause 9.1.4)||Lesser of reasonable cost or repair or market value of $7,000||$40,000||$300|
7.2.5 Overall limit on liability NZ$2,000,000.00. Northport will in no circumstances whatsoever be liable to pay any costs, charges, expenses, damages, compensation or any other moneys whatsoever for any injury or loss caused in any manner whatsoever to any person or property in respect of the sum claimed or the aggregate of sums claimed under whatsoever cause of action or entitlement including the negligence of Northport, its employees, agents or subcontractors in respect of any one of the inter connected series of events, beyond the maximum aggregate sum of NZ$2,000,000.00.
7.3 User's Liability: The User will be liable for loss or damage caused to Northport where such loss or damage is caused by the negligence of the User, its employees, agents or subcontractors.
7.4 Exclusions of Liability: Notwithstanding clauses 7.1 and 7.2 Northport will not be liable in any circumstances whatsoever:
7.4.1 Where any loss, damage, expense, accident or injury to any property or person has been caused wholly or principally by the failure of the User to comply with any of the conditions of these terms;
7.4.2 Where any loss, damage, expense, accident or injury to any property or person has arisen or resulted from unseaworthiness caused by want of due diligence on the part of the User to make the vessel seaworthy, and to secure that the vessel is properly manned, equipped and supplied, and to make the holds, refrigerating and all other parts of the vessel in which cargo is carried fit and safe for their reception, carriage and preservation in accordance with the provisions of the International Hague Rules;
7.4.3 For any demurrage, delay or other costs of transportation of any kind howsoever caused including the negligence of Northport, its employees, agents or subcontractors, but Northport will make every reasonable endeavour by liaison with the User, and its carriers and others to achieve the orderly transportation of cargo and containers to and from the Port;
7.4.4 To pay any costs, charges, expenses, damages, compensation or any other moneys whatsoever for any injury or loss arising out of a failure by any person, whether or not an agent, employee or subcontractor of Northport to properly and adequately secure any cargo or container on any rail or road vehicle, and on any other form of transport;
7.4.5 For any costs, charges, expenses, damages, compensation or any other moneys whatsoever for any injury or loss arising from any failure to inspect containers, any failure to note or report damage to containers, (whether apparent damage or not) or any failure to take steps necessary to protect the contents of any container and Northport undertakes no responsibility to inspect containers for damage or to report any damage to the User, but will make every reasonable endeavour to refer all apparent damage to containers to the User and to take any appropriate step necessary to protect the contents of any container noted to be damaged;
7.4.6 For indirect, special or consequential loss or damage howsoever caused including the negligence of Northport, its employees, agents or subcontractors.
7.5 User indemnifies Northport where liability excluded or liability is in excess of limits: The User hereby holds Northport, its employees, agents and subcontractors, free and indemnified from and against all claims, suits, costs, charges, expenses (including all legal and Court expenses), damages, compensation or other moneys whatsoever ("the amount") in respect of all loss, damage, expense, accident or injury (whether direct, indirect, special or consequential) to the extent of the liability of Northport, its employees, agents and subcontractors for the amount that has been excluded under clause 7.4 or any other clause hereof and to the extent that the amount exceeds the maximum liability, maximum aggregate liability or overall limit on liability under clause 7.2.
7.6 Notification of Claims:
7.6.1 For loss of or damage to cargo, Northport will be liable only if notice in writing of any loss or damage is given to Northport by the User at the time of the removal of the cargo to the custody of the person entitled to delivery of such cargo, or, if the loss or damage be not apparent, within 7 days, and such removal shall be prima facie evidence of the delivery by the carrier of the cargo as described in the bill of lading issued on such cargo.
7.6.2 For all other loss, damage, expense, or accident or injury Northport will be liable only if notice in writing is given to Northport by the User within 30 days after the date when the loss, damage, expense, accident or injury occurred.
7.6.3 If no such notice is given within the above period any claim will be deemed waived and absolutely barred.
7.7 Benefit of bill of lading and establishment of bills of lading:
7.7.1 Without prejudice in any matter to the provisions and limitations contained in these terms, the User will incorporate in its bills of lading or other contracts of carriage to be issued on cargo carried or to be carried on any of the User's vessels a clause to the effect that Northport, its employees, agents and subcontractors will have the benefit of the provisions of any bill of lading or other contract of carriage and any limitation of liability provided therein and Northport for itself, its employees, agents and subcontractors hereby accepts such benefit.
7.7.2 Where cargo or a container is received by Northport prior to the establishment of a bill of lading or other contract of carriage the benefit of the intended bill of lading or contract of carriage will apply in all respects (and in particular as set out in subclause 7.7.1 above) and will bind all persons interested in the cargo or container as though such bill of lading or contract of carriage had then been established.
7.8 User responsible for safe management:
7.8.1 Nothing in these terms contained or implied will affect the User's responsibility or duty to exercise due diligence for the safe navigation and proper management of the vessel including, without prejudice to the generality of the foregoing, stowage, trim and stability and operations of berthing, mooring, unmooring and unberthing. Any pilot on a vessel shall be the servant of the Master of the vessel while carrying out pilotage duties.
7.8.2 The User warrants to Northport that it will at all times comply with its duties and obligations under the Health & Safety in Employment Act 1992 and the Maritime Transport Act 1994 and that it will not do or omit to do anything which breaches it or is likely to breach any duty or obligation under such Acts which is likely to result in enforcement proceedings under the Health & Safety in Employment Act 1992 or Maritime Transport Act 1994.
7.8.3 The User undertakes and warrants to Northport that it will comply fully with all directions, requirements and instructions notified to it by Northport, in respect of health and safety or in respect of any duties or obligations of any person under the Health & Safety in Employment Act 1992 and the Maritime Transport Act 1994. The User acknowledges that this may include producing, on demand, evidence that it is satisfying its obligations under the said Acts.
7.8.4 If at any time the User becomes aware that it is in breach, or is likely to be in breach, of any such duty or obligation, the User agrees to immediately notify Northport and follow all directions to avoid, remedy, or mitigate any such breach or anticipated breach.
7.8.5 The User will ensure that its agents, subcontractors and employees are aware of these terms and will abide by them.
7.9 User Environmental Warranties:
7.9.1 The User warrants to Northport that it will not do or omit to do anything or to use materials, substances or processes which breach or is likely to breach any duty or obligation under the Resource Management Act 1991 and/or the Marine Pollution Act 1974 (including subsequent amendments) or which is likely to result in the issue of an abatement order or enforcement proceedings under the Resource Management Act 1991.
7.9.2 If at any time the User becomes aware that it is in breach, or is likely to be in breach, of any of the warranties in clause 7.9 the User agrees to immediately notify Northport and follow all directions to avoid, remedy, or mitigate any such breach or anticipated breach.
7.9.3 User will ensure that its agents, subcontractors and employees are aware of these terms and will abide by them.
7.9.4 The User warrants to Northport that it will comply with the Whangarei District Plan and the Northland Regional Plan, coastal and all other relevant plans and statutes with respect to noise.
7.9.5 User warrants to Northport that it will comply with all other relevant statutes, bylaws, local authority and other regulations and statutes including but not limited to regulations and statutes relating to sound environmental practices in the handling of dangerous cargo.
7.9.6 The User agrees to indemnify Northport from and against all losses, costs, expenses, claims, demands, liabilities, damages, actions and proceedings suffered by or commenced against Northport which arise out of or in connection with the failure of the User, its agents, subcontractors or employees to comply with the provisions of clause 7.8 and 7.9 (including without limitation, subclauses 7.8.2, 7.8.3, 7.9.1, 7.9.4 and 7.9.5).
7.9.7 The User acknowledges that the provisions of clauses 7.8 and 7.9 shall not cast on Northport any duty to supervise, check, or issue directions to the User and that the User is solely responsible for ensuring that the relevant laws are complied with.
8.1 The User will ensure that all subcontractors employed by it are licensed to operate at Northport and will co-operate with Northport and will comply with the safety precautions required by Northport at all times.
8.2 These terms will be governed and interpreted in all respects in accordance with the laws of New Zealand and the parties hereto submit themselves to the exclusive jurisdiction of the New Zealand High Court.
8.2.1 In the case of all other disputes whether involving a claim for any monetary sum or otherwise to the decision of the High Court of New Zealand.
8.3 All notices under these terms will be given by personal delivery or by ordinary mail or facsimile transmission:
8.3.1 To Northport at Whangarei:
Northport Limited (Marsden Point)
Ralph Trimmer Drive
PO Box 44
Fax: 64-9-432 8749
8.3.2 To the User at any of the User's last known places of business whether in New Zealand or elsewhere or at the address of the User's last known agent in New Zealand
and will be deemed to have been received two days after despatch by mail or on the day of despatch by facsimile.
8.4 If the User is carrying on business, the User represents and warrants that it is purchasing the services provided by Northport under these terms solely for business purposes and Northport and the User agree that nothing in the Consumer Guarantees Act 1993 shall apply to the provision of such services to the User.
If at any time the performance of the provision of services by Northport is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of whatsoever kind, whether or not the circumstances giving rise to such existed or were anticipated at the time the provision for services was entered into, which cannot be avoided by the exercise of reasonable endeavours, Northport, whether or not the services have commenced, may treat the performance of this contract as terminated or varied to such an extent as necessary to complete the services.
These terms may be varied by Northport from time to time. Such variations will be deemed effective and accepted by the User 30 days after they are publicly circulated by Northport (including their insertion on the Northport Website) irrespective of whether such notice is actually received.
For the purposes of Section 4 of the Contracts (Privity) Act 1982 all provisions in this standard conditions of provision of services providing for exemption from the liability for, and indemnities in favour of Northport, its employees, agents are intended to be for the benefit of and enforceable by the employees and agents of Northport, including any benefits imported into these terms pursuant to clause 7.7.
Pilotage, towage and other services shall be undertaken in accordance with the UK Standard Conditions for Towage and Other Services (Revised 1986). A copy of these conditions will be supplied to the User upon request.