STANDARD CONDITIONS OF SERVICE

PORT OF NAPIER LIMITED

The Port of Napier Limited operates and provides Services to Users at the Port pursuant to these Conditions and in accordance with the Port Regulations and the Tariff (which are incorporated into and form part of these Conditions) and not otherwise.

Each application for the provision of Services and the provision thereof by the Operator will be deemed to be a separate and distinct contract between the User and the Operator and will be subject to the Port Regulations and Tariff applicable at the time when such Services are provided. Each contract may be terminated by the Operator on 90 days notice in writing to the User unless a written contract arising from these Conditions provides otherwise. No servant or agent of the Operator has authority to waive or vary all or any part of these Conditions.

Where the User is an Agent, by applying for the Provision of Services, the User warrants that it has the actual authority of the Owner of the Ship (as defined herein) or the Owner of the Cargo and all other defined Users to enter into these Conditions on behalf of such Owner and where the User is an Agent it accepts these Conditions not only for and on behalf of each such Owner but also in its own right as principal.

 

part a - definitions

1.

Agent

means any person acting as shipping agent, cargo agent or forwarder orother intermediary.

2.

Ancillary Aquipment

includes clip-on refrigerator units, refrigerator towers , trailers and chassis.

3. 

Cargo 

means goods, merchandise or other property of every type, including Containers.

4. 

Claim 

means any demand, dispute, suit, proceeding or cause of action or asserted liability or loss.

5. 

Container means any container, tank, flat or pallet or like article used to consolidate goods for carriage, including any Ancillary Equipment.

6. 

Dangerous Cargo 

means goods defined as such in the IMDG Code or any other similar,equivalent or applicable laws or regulations relating to dangerous cargo.

7. 

Harbour Master 

means the appointed Harbour Master of the Port (or in his absence anyDeputy or Assistant Harbour Master).

8. 

Loss

includes all loss or damage or injury of every nature, including any loss by

demurrage or delay.

9. 

Owner 

means the User and any person for whom the Operator provides or is to provide Services hereunder or who requests the Operator to provide Services or any person who is or who appears on reasonable grounds to be an Agent, employee, subcontractor or a representative of any one or more of them. The obligations and liabilities under these Conditions of all or any of such persons will be joint and several. Without limiting the foregoing, Owner will include the Owner, Lessee, Charterer (of any description), Operator or Manager of any Ship, a shipper (or if the context requires an Owner of Cargo), stevedore or a combination of any two or more of those parties.

10. 

Port 

means the Port of Napier, including all lands, waters, wharves, channels and anchorages forming the Port.

11. 

Operator 

means Port of Napier Limited and includes, where the context requires, associated and subsidiary companies, and servants , agents and subcontractors of the Operator

12. 

Port Regulations 

means all statutes, laws, ordinances, regulations by-laws, rules and statutory instruments and operating procedures applicable to the Operator and the operations and business of the Port.

13. 

Services 

means the whole of the Services and facilities provided or to be provided by the Operator in or about the Port and includes the Cargo Services described in Part B and the General Services described in Part C.

14. Ship 

means any Ship, boat, vessel. lighter, barge or other craft in respect of which the Operator provides, or is to provide, Services under these Conditions.

15. 

Tariff 

means the published Tariff rate of the Operator as in force from time to time and includes all pricing schedules and other publications of the Operator listing prices, charges or rates in applicable from time to time for the provision of Services.

16. 

UKSTC 

means the United Kingdom Standard Conditions for Towage and Other Services (Revised 1986).

17. 

User 

User means any Agent, Owner or customer of the Operator to whom the Operator provides, or is to provide, Services under these Conditions and includes any servant, agent, subcontractor or invitee of the User.

Where the context requires, any reference to any person includes a company or firm (and vice versa), any reference to the singular includes the plural (and vice versa) and any reference to one gender includes the other sender. Headings are for convenience only. Any reference to a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, jointly and severally. Any reference to 'including" will be without limitation as to its effect.

 

part b - cargo services

1.

The Operator may agree to provide any of the Cargo Services listed in Schedule I in respect of Ships and shipping and Cargo suitable for the Port and in accordance with the Tariff.

2.

The User will accept or deliver Containers or Cargo to the limit of the capacity of the available handling equipment.

3.

Working hours will accord with the operating procedures in the Port Regulations. Subject thereto and to the Operator making available necessary facilities, the Operator will work Ships continuously seven days per week, excluding public holidays.

4.

All Bills of Lading or contracts of carriage signed by or on behalf of the User, or under which the User is liable, must include a clause conferring the benefit of all defences and limits of liability contained therein to the Operator, which benefit is hereby accepted.

5.

Instructions in the User's Bill of Lading, delivery order, or other documents entitles the Operator to deliver to the bearer thereof, even if such document provides for delivery to a named party or to its order. The Operator is entitled  to assume that the person presenting such document is the person lawfully entitled to take delivery. The Operator is not required to verify signatures appearing on any such document. The User will indemnify the Operator for any Claim  arising or resulting from the Operator delivering Cargo in accordance with this provision.

6.

The User undertakes to pay to the Operator on demand all amounts due for charges for Cargo Services in accordance with the Tariff or as may be agreed. Such charges will be due and shall incur such penalties as are set out in the Tariff or the Port Regulations.

 

part c - general services

1.

The Operator may agree to provide any of the General Services listed in Schedule 2 in respect of Ships and shipping and Cargo suitable for the Port and in accordance with the Tariff

2.

Where the Operator provides tugs, towage or lineboat or similar Services whether pursuant to Schedule 2 or otherwise, such Services will be subject to UKSTC and notwithstanding any other provision of these Conditions, any liability arising out of the provision of such Services will be determined in accordance with UKSTC and not otherwise.

3.

Working hours will accord with the operating procedures in the Port Regulations. Subject to this, the Operator will provide the General Services required by the User continuously seven days per week.

4.

Where the User hires equipment from the Operator, the User will promptly return the equipment so hired to the Operator in the same order and condition as when hired from the Operator, fair wear and tear excepted.

5.

The User undertakes to pay to the Operator all amounts due for charges for General Services in accordance with the Tariff or as may be agreed and to pay all wharfage, tonnage rates, shed rent, hire of equipment charges and Port charges, telephone, communications, lighting, water, electrical services and other charges for the provision of Services to the User and shall incur such penalties as are set out in the Tariff and/or Port Regulations.

 

part d - general terms and conditions

1.

The User undertakes that it will not make any Claim against any party other than the Operator (including any servant, agent or subcontractor of the Operator) arising directly or indirectly from Services provided under these Conditions. If, despite this undertaking any such Claim is brought by the User against any party other than the Operator,

 

(a)

all such servants, agents or subcontractors of the Operator will be entitled to the benefit of these Conditions to the same extent as the Operator and in entering into these Conditions the Operator does so not only on its own behalf but also as agent and trustee for all such servants, agents and subcontractors, each of whom will be deemed to be parties to these Conditions; and,

 

(b)

the User will indemnify the Operator against any Claim or Loss that the Operator may incur as a result of such Claim,

 

provided that this provision will not apply to, any Claim by the User against any pilot or the provision of pilotage services, to which Clause 2 of Part E applies.

2.

The User further undertakes that no Claim will be made by any person other than the ser that seeks to impose on the Operator or on any third party any liability whatsoever or howsoever arising directly or indirectly from Services provided under these Conditions and if notwithstanding this undertaking any such Claim is nevertheless made, the User will indemnify the Operator against any liability that the Operator may incur as a result of such Claim. 

3. 

The User undertakes to provide to the Operator, at least 24 hours before the arrival of the Ship, particulars of the movements of the Ship and its cargo, including Dangerous Cargo, valuable goods and goods requiring special care. The User will also comply with the operating procedures in the Port Regulations. 

4. 

The User will promptly comply with all directions given from time to time by the Harbour Master and will, if ordered by the Harbour Master and/or the Operator at their absolute discretion move any Ship to or from any berth to another or  to anchorage or as the Harbour Master or Operator may direct. 

5.

The User warrants that: 

 

(a) 

All particulars it provides relating to Cargo are accurate.

 

(b) 

All Cargo is properly packed and labeled and, if received already in Containers, is properly stowed and secured therein.

 

(c)

All Containers are fit for their intended purpose.

 

(d)

All Cargo (including Dangerous Cargo) complies with all regulations and requirements of all applicable  authorities.

6.

The User will indemnify the Operator without any limitation of liability against any liability or loss arising from:

 

(a)

Any breach of Clause 5 of this Part.

 

(b)

Provision of a Container for which, knowingly or otherwise, the gross weight of which exceeds the maximum appropriate gross weight or loaded with an incorrect centre of gravity.

 

(c) 

Any incorrect declaration or misdeclaration of the true nature or contents of any Dangerous Cargo.

7. 

The Operator may at any time refuse to accept or deal with Cargo if to do so would, in the opinion of the Operator, cause difficulty to the Operator's operations in general, or risk of damage to the Cargo, or other cargo. or property belonging to the Operator or a third parry, or risk of injury to any person.

8. 

The User will comply with all documentary requirements and operating procedures as required from time to time by the Operator.

9. 

Subject to Part E of these Conditions, the User will indemnify the Operator against any Loss howsoever arising from any failure by the User to observe these Conditions or the Port Regulations.

10. 

The Operator may at its sole discretion subcontract the whole or part of any Services provided under these conditions without notice to the User. Any subcontractor (and its employees) will have the benefit of the whole of these Conditions and the Operator enters into these Conditions on its own behalf and as trustee for any such subcontractor or employees, and to the extent required to give effect to these provisions, each such subcontractor or employee will be deemed to be a party to these Conditions. 

11. 

The User will forthwith remove any Cargo or equipment or other property as directed by the Operator. If the User fails to do so, the Operator will be entitled to arrange removal and storage thereof, at the User's sole risk and cost.  

12. 

The Operator will have a lien on Cargo, Containers and any documents relating thereto for all sums whatsoever due at any time to the Operator from the User and for the costs of recovering the same and the Carrier will have the right to sell. the same by public auction or Private treaty, without notice to the User and at the User's expense and without any liability towards the User.  

13. 

These Conditions are governed by the law specified in Schedule 3.8 and any Claim arising hereunder or in connection herewith must be determined by the Courts specified in Schedule 3.9 and by no other Court. No warranties are to be implied into these Conditions, other than those that cannot be excluded by the law specified in Schedule 3.8.  

14. 

If any part of these Conditions is held to be invalid or unenforceable, such part will be excised from and deemed not to form part of these Conditions but the remainder of these Conditions will remain in full force and effect and these Conditions will continue to apply as if the invalid or unenforceable parts had not been included. 

 

part e - responsibility

1.

The Operator will not be responsible to the User for any Claim or Loss arising directly or indirectly by reason of any:

 

(a)

 Insufficient depth of water; or,

 

(b)

 Inability to provide a safe berth or anchorag; or

 

(c)

Provision of information to User (including relating to weather, sea or tiday conditions, keel depths, dredging, advisory services, Notice(s) to Mariners and/or warnings as to navigation); or the

 

(d)

Actual or forecasted weather, sea or tidayl conditions; or the 

 

(e)

Condition of the Operator's quay, wharves, berths or th eapproaches tothe, or the 

 

(f) 

Condition of (or absence of) any lights, markers, beacons or other navigational aids or the inadequacy of any buoys, mooring lines or bollards. 

 

whether caused or arising in whole or in part from the negligence of the Operator or otherwise howsoever arising.  

2. 

Where the Operator provides pilotage services pursuant to Part C, nothing contained inthese Conditions will operate so as to affect any statutory right of limitation that the pilotmay have, but in no event will the Operator be under any liability to the User for anynegligent act or omission in the provision of pilotage services by the Operator or for anyloss suffered or incurred by the User howsoever arising.  

3. 

Nothing contained or implied by these Conditions will affect the User's absolute responsibility for the safe navigation and proper management of the Ship. including stowage, trim and stability and all berthing, unberthing, mooring and unmooring operations and the User will indemnify and keep indemnified the Operator from and against Claims howsoever arising relating to the navigation and management of the Ship. 

4. 

The Operator will not be liable or responsible to the User for any loss of market or consequential loss or indirect loss or pure economic loss that the User suffers by reason of the negligent performance of Services in whole or in part or otherwise howsoever arising. If, despite this provision, the Operator is held to be liable for such loss, its liability will be limited in accordance with Clauses 6 and 9 of this Part. 

5. 

If the User hires equipment from the Operator, the User undertakes to indemnify the Operator against all Claims, howsoever arising as a consequence of the hire of equipment to the User, provided that any such Claim has not arisen as a result of a want of reasonable care by the Operator to maintain such equipment in a safe and reasonable condition (the burden of proof of any failure to exercise such reasonable care being upon the User).  

6. 

If the User proves that any Loss it has sustained was caused by the negligence of the Operator, the Operator's liability, to the extent of such negligence, will be the lesser of:

 

(a) 

the market value of any property Loss; or,

 

(b) 

the reasonable costof repaqir of such property, subject to Schedule 3.7; or, 

 

(c) 

the limits set out in Schedule 3.1-3.4 provided that for loss to Cargo under the control of the User the Operator, if liable, will be liable for the amount paid by the User or the User's liability thereunder (whichever is the lesser) under the applicable Bill of Lading or other contract of carriage.

 

If through the User's negligence, limits of liability or defences that would customarily apply under such Bill of Lading or contract are not applied or can be avoided, the liability of the Operator will be limited as if such limits and defences did apply.

7. 

The User will indemnify the Operator from and against: 

 

(a) 

Any liability or loss exceeding the amount specified in Schedule 3.5 whether such loss is caused by the negligence of the Operator or otherwise howsoever arising. 

 

(b) 

Any loss to any property of the Operator (including any quays, wharves or berths, sheds, buildings or other installations, lights, markers, beacons or navigational aids or buoys, lines, moorings or bollards or plant, equipment and machinery) subject always to the provisions of Clause 5 applying to hired equipment and in respect of cranes not exceeding the amount specified in Schedule 3.6. 

 

(c) 

All costs or expenses or Loss sustained or incurred by the Operator arising from any pollution incident, including all costs or expenses incurred by the Operator or directed by the Harbour Master in the cleaning-up or removal of any pollution or reasonably incurred by the Operator in anticipation of any pollution arising from any User's Ship.

 

(d) 

All costs and expenses or Loss sustained or incurred by the Operator in the removal (in whole or in part) of any wreck or the making safe of any hazard to navigation arising from the presence of any User's Ship in the Port.

8. 

If the User is liable to the Operator, the User's liability will in no event exceed the greater of the Ship's tonnage limit of liability or the maximum specified in Schedule 3.5 unless such liability arose or resulted from the User's personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. Notwithstanding the foregoing, the limits contained in Schedule 3.5 will not apply:  

 

(a) 

If otherwise specifically excluded or limited by these Conditions; or,

 

(b) 

To any Claim to which UKSTC applies; or, 

 

(c) 

To the removal (in whole or in part) of any wreck or making safe any hazard tonavigation; or, 

 

(d) 

In respect of any pollution incident. 

9. 

Unless specifically excluded or limited by any other term of these Conditions, if the Operator is liable to the User, the Operator's liability will in no event exceed the maximum specified in Schedule 3.7, unless such liability arose or resulted from the Operator's personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. Schedule 3.7 limits will only apply to any loss to which Schedules 3.1-3.4 apply if the aggregate thereunder exceeds the limit provided for in Schedule 3.7.

10. 

Notice of any Claim for any Loss must be given in writing to the Operator within 30 days of the Loss, or within 30 days of when the Loss was or should have been ascertained, whichever earlier.

11. 

The Operator will be discharged from all liability and from any Claims the User has or might otherwise have against the Operator arising directly or indirectly from Services provided under these Conditions, unless proceedings are commenced by the User and served upon the Operator within one year of the User's cause of action against the Operator arising.  

12. 

Notwithstanding anything contained herein, the Operator will not be liable or responsible to the User for failure to perform or delay or Loss in performing any Services arising directly or indirectly as a consequence of any: 

 

(a) 

Interruption to the supply of electricity, gas or water to the Operator. The Operator will be under no obligation to have available any auxiliary supplies. 

 

(b) 

Strikes, riots, civil commotions, lockouts, stoppages or restraints of labour. whether or not involving the employees of the Operator.

 

(c) 

War, civil war, hostilities or the acts of terrorists, insurgents or similar disturbances. 

 

(d) 

Adverse or unusual conditions of sea or weather, earthquakes, flood or fire. 

 

(e) 

Acts, orders, regulations, or requirements of any lawful authority or any person purporting to act on behalf of any such authority.

 

(f) 

Any other cause that the Operator could not prevent or avoid by the exercise of reasonable diligence. 

13. 

The Operator will not be liable for any direct, indirect or consequential loss caused by the exercise of its right of cancellation of any contract to provide services. 

14. 

In any event, where applicable the liability of the Operator shall be governed by the provisions of the Carriage of Goods Act 1979. 

 

Schedule 1

Cargo Services that the Operator may provide in accordance with Part B may include (but will not be limited to):

  • Loading and discharging of Containers and Cargo.
  • Lashing and unlashing of Containers and Cargo.
  • Removal and replacement of Ship's hatch covers.
  • Handling heavy lifts, Ship's stores, passenger and crew baggage and breakbulk or other non-containerised Cargo.
  • Consolidation and deconsolidation, and reception, stowage and delivery of LCLCargo.
  • Handling refrigerated Containers.
  • Services in respect of Customs examination of Containerised Cargoes.
  • Cleaning Containers.¨ Repairing of Containers.
  • Storing Containers.
  • Pre Tripping of Refrigerated Containers.
  • Provision of out-turn reports or summaries for Services provided.
  • Preparation of Ship's stowage plans.
  • Receiving and Delivery of Cargo.
  • Marshalling of Cargo.
  • Monitoring/Plugging/Unplugging of Refrigerated Containers.
  • Storage of Cargo.
  • Container door stops and inspections.
  • Warehousing of Cargo.
  • Stevedoring.
  • Cargo consolidation.
  • Quayside crane operation.
  • EDI Messaging.

 

Schedule 2

General Services that the Operator may provide in accordance with Part C may include (but will not be limited to): 

  • Tugs, towage and mooring services
  • Electricity, gas, telephone and water.
  • Pilotage.
  • Emergency services (including fire fighting and pollution and environment controls).
  • Cranes, gantries, ladders, gangways, barges, lighters and like equipment.
  • Hire of equipment.
  • Watchmen, security services, gatekeepers and guards.
  • Cleaning, painting and waste disposal.
  • Navigational aids.
  • Port security.
  • CCTV Surveillance.

 

schedule 3

3.1

PHYSICAL LOSS OR DAMAGE TO CONTAINERS

 

i.

ii.

iii.

iv.

Refrigerated containers

Insulated containers

Other 20 ft containers

Other 40 ft containers

NZ$25,000.00

NZ$15,000.00

NZ$ 6,000.00

NZ$ 8,000.00

 

PROVIDED THAT the maximum aggregate liability shall not exceed NZ$250,000 inrespect of the total of all claims for loss or damage by whomsoever made arising out ofany one event or interconnected series of events and the user shall bear the firstNZ$300 of any claims.

 3.2

CONTAINER ANCILLARY EQUIPMENT

 

i.

ii.

iii.

Container clip-on units

Tower units

Generator

NZ$10,000.00

NZ$25,000.00

NZ$20,000.00 

 

PROVIDED THAT the maximum aggregate liability shall not exceed NZ$100,000 In  Respect of the total of all claims for loss or damage by whomsoever made arising out of any one of the interconnected series of events and the User shall bear the first $300 of any claim.   

3.3 

PHYSICAL LOSS OR DAMAGE TO CARGO   

 

i.

 

ii.

Cargo when in closed or sealed container – NZ$50,000 provided that themaximum aggregate liability shall not exceed NZ$250,000 in respect to the totalof all claims for loss and damage by whomsoever made arising out of any oneevent. 

All other cargo – NZ$1,500 per tonne or part thereof 

 

PROVIDED THAT the maximum aggregate liability shall not exceed NZ$50,000 in respect to the total of all claims for loss and damage by whomsoever made arising out of anyone event or interconnected series of events and the User shall bear the first NZ$300 ofany claim.

3.4 

PHYSICAL LOSS OR DAMAGE TO SHIPS AND EQUIPMENT   

 

The maximum aggregate liability shall not exceed NZ$15,000,000.00 in respect of the total of all claims for loss or damage by whomsoever made arising out of any one event or interconnected series of events and the User shall bear the first NZ$300 of any claim.

3.5 

USER'S MAXIMUM LIABILITY - PART E CLAUSE 8    

 

The sum of NZ$7,500,000 in respect of the total of all claims for loss or damage by whomsoever made arising out of any one event or interconnected series of events and any further limitation prescribed in the 1976 Convention on Limitation of Liability for Marine Claims in respect of any excess liability over that amount. 

3.6 

USER'S MAXIMUM LIABILITY - PART E CLAUSE 7(b) - CRANES   

 

The lesser of the reasonable cost to repair or market value of any container crane,

PROVIDED THAT that the maximum aggregate liability shall not exceed NZ$7,500,000 per crane in respect of the total of all claims for loss and damage by whomsoever made arising out of any one event or interconnected series of events and the Operator shall bear the first NZ$300 of any claim.   

3.7 

OPERATOR'S MAXIMUM LIABILITY - PART E CLAUSE 6   

 

The sum of NZ$7,500,000 in respect of the total of all claims for loss or damage by whomsoever made arising out of any one event or interconnected series of events and any further limitation prescribed in the 1976 Convention on Limitation of Liability for Marine Claims in respect of any excess liability over that amount.    

3.8 

GOVERNING LAWS   

 

The laws of New Zealand   

3.9 

AGREED JURISDICTION   

 

New Zealand