General Berthing Terms & Conditions
Bembridge Harbour Authority General Terms and Conditions for vessels berthed on a Marina or Mooring
Bembridge Harbour Authority (BHA) is the trading name for Bembridge Harbour Improvements Company Limited. BHA reserves the right to update/amend these Terms and Conditions as deemed necessary. Additional Terms and Conditions apply to Premier Finger berths and also to pre-booked Duver visitor berths which should be read in conjunction with these T&Cs.
Where the following words appear in these Conditions, the licence and the Company’s Regulations they shall have these meanings:
Company shall mean the Company or any of its Agents to whom the application for berthing is made which may be one or more of its Associated Companies, Concessionaires, Tenants or Assignees.
Harbour shall include a Yacht Harbour, Marina, Mooring or any other facility for launching, navigating, mooring or berthing a vessel within the jurisdiction of Bembridge Harbour.
Premises means all the land, adjacent water and buildings occupied by or under the control of the Company, including docks, slipways, pontoons, jetties, quays, piers, mud berths, boat storage, sheds, lofts, workshops, hard standing, roadways and car parks.
Owner shall include any charterer, master, agent or other person for the time being in charge of the Vessel, excluding the Company.
Vessel shall include any form of craft, boat, ship, yacht, dinghy, multihull, or other marine structure which is in the care and control of the Owner.
Length Overall (LOA) means the overall length of the space occupied by the Vessel including any fore and aft projections, temporary or permanent, including for example overhanging anchors, davits and/or tenders stored in davits.
Berth means the space on water or land from time to time allocated to the Owner by the Company for the Vessel during the term of this licence.
Alongside Berth means a berth where a Vessel may be secured, with access to the shore without the need for a dinghy or tender.
Pontoon means a moored and decked floating structure providing landing or mooring facilities.
2. BERTHING LICENCE
2.1 Berths at the Harbour or Premises shall be licenced for the period as stated and at the rates of charge from time to time published by the Company at its Premises and in force at the commencement of the licence. Details of the charges applicable to the Berth at the beginning of the licence will be given to each licensee at the time that the licence is granted.
2.2 The licence shall not be automatically renewed but will end at the conclusion of the period agreed if not terminated sooner by the Company or by the Owner under the provisions of Clauses 8 or 10.
2.3 Payment of Berthing fees are to be made within 14 days of the commencement date of the licence or the date of invoice. Owners of vessels using the Harbour are responsible for payment of Harbour Dues.
3. LIABILITY, INDEMNITY AID INSURANCE
3.1 The Company shall not be liable for any loss or damage caused by any event or circumstance beyond its reasonable control (such as extreme weather conditions, the actions of third parties not employed by it or any defect in any part of a customer’s or third party’s Vessel) this extends to loss or damage to Vessels, gear, equipment or other goods left with it for repair or storage, and harm to persons entering the Premises or the Harbour and/or using any facilities or equipment.
3.1.1 The Company shall take all reasonable steps to maintain security at the Premises, and to maintain the facilities at the Premises and in the Harbour in reasonably good working order. Subject to this, and in the absence of negligence or breach of duty on the part of the Company, Vessels, gear, equipment or other goods are left with the Company at the Owner’s own risk and Owners should ensure that they have appropriate insurance against all relevant risks including public liability.
3.1.2 The Company shall not be under any duty to salvage or preserve an Owners Vessel or other property from the consequences of any defect in the Vessel or property concerned unless it shall have been expressly engaged to do so by the Owner on commercial terms. Similarly the Company shall not be under any duty to salvage or preserve an Owners Vessel or other property from the consequences of an accident for which the Company is not responsible. However the Company reserves the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. Where it does so it shall be entitled to charge the Owner concerned on a normal commercial charging basis. [and, where appropriate, to claim a salvage reward.]
3.1.3 Owners may themselves be liable for any loss or damage caused by them, their crew or their Vessels and they shall be obliged to maintain adequate insurance including wreck removal plus third party liability cover for not less than £2,000,000, and, where appropriate, Employers’ Liability cover to at least the statutory minimum. The Owner shall be obliged to produce evidence to the Company of such insurance within 7 days of being requested to do so by the Company.
4. CHANGE OF DETAILS
4.1 The Owner must notify the Company in writing, within 7 days, of the details of any change of name of the Vessel, or change of address, e-mail or telephone number of the Owner.
5. BERTH ALLOCATION
5.1 The physical layout of the Harbour and Premises and the varying needs and obligations of the Company and its customers requires that the Company retains absolute control of Berth allocation within the Harbour and Premises. Accordingly the Owner shall not be entitled to the exclusive use of any particular Berth but shall use such Berth as is from time to time allocated to him by the Company.
6. PERSONAL NATURE OF THE LICENCE
6.1 This licence is personal to the Owner and relates to the Vessel described in the application for berthing. It may not be transferred or assigned to a new Owner or to a different Vessel, either temporarily or permanently, without the express written consent of the Company.
6.2 Within 7 days of any agreement for the sale or transfer of a Vessel subject to this licence the Owner shall notify the Company in writing of the name, address, e-mail and telephone numbers of the Purchaser or Transferee as the case may be.
7. USE OF BERTH BY COMPANY WHEN VACANT
7.1 The Owner is to inform the Company if their Berth is to be unoccupied for more than 7 days. The Company reserves the right to use the Berth during any period of absence. No refund or payment will be made by the Company to the Owner in such circumstances.
8.1 The Company shall have the right (without prejudice to any other rights in respect of breaches of the terms of this licence by the Owner) to terminate this licence in the following manner in the event of any breach by the Owner of this licence;
8.1.1 Having regard to the nature and seriousness of the breach and the risk it poses for the financial or other security of the Company and/or of the Company’s customers, and if the breach is capable of remedy, the Company may serve notice on the Owner specifying the breach and requiring him to remedy the breach within a reasonable time specified by the Company. Where the breach is serious or poses an immediate risk or threat to the health, safety or welfare of any other person or property, the time specified for remedy may be immediate or extremely short. If the Owner fails to effect the remedy within that time, or if the breach is not capable of remedy, the Company may serve notice on the Owner requiring him to remove the Vessel from the Harbour or Premises immediately.
8.1.2 If the Owner fails to remove the Vessel on termination of this licence (whether under this Condition or otherwise), the Company shall be entitled:
126.96.36.199 to charge the Owner at the Company’s 24 hour rate for overnight visitors for each day between termination of this licence and the actual date of removal of the Vessel from the Harbour and Premises and/or
188.8.131.52 at the Owner’s risk (save in respect of loss or damage caused by the Company’s negligence or other breach of duty during such removal) to remove the Vessel from the Harbour and Premises and thereupon secure it elsewhere and charge the Owner with all costs reasonably arising out of such removal including alternative berthing fees.
8.1.3 Any notice of termination under this licence shall, in the case of the Owner, be served personally on the Owner, or sent in the first instance by e-mail, and then by registered post or recorded delivery service to the Owner’s last known address, and in the case of a company shall be served at its principal place of business or registered office.
9. RIGHTS OF SALE AND OF DETENTION
9.1 Where the Company accepts a Vessel, gear, equipment or other goods for repair, refit, maintenance or storage the Company does so subject to the provisions of the Torts (Interference with Goods) Act 1977. This Act confers a Right of Sale on the Company in circumstances where a customer fails to collect or accept re-delivery of the goods (which includes a Vessel and/or any other property). Such sale will not take place until the Company has given notice to the customer in accordance with the Act. For the purposes of the Act it is recorded that:
9.1.1 Goods for repair or other treatment are accepted by the Company on the basis that the customer is the Owner of the goods or the Owner’s authorised agent and that he will take delivery or arrange collection when the repair or treatment has been carried out.
9.1.2 The Company’s obligation as custodian of goods accepted for storage ends on its notice to the customer of termination of that obligation;
9.1.3 The place for delivery and collection of goods shall be at the Company’s Premises unless agreed otherwise. Advice regarding the Act may be obtained from the Citizens Advice Bureau, Law Centre or any firm of Solicitors.
9.2 Maritime Law entitles the Company to in certain circumstances bring action against a Vessel to recover debt or damages. Such action may involve the arrest of the Vessel through the Courts and its eventual sale by the Court. Sale of a Vessel may also occur through the ordinary enforcement of a judgment debt against the Owner of a Vessel or other property.
9.3 The Company reserves a general right (“a general lien”) to detain and hold onto the Owner’s Vessel or other property pending payment by the Owner of any sums due to the Company. If the licence is terminated or expires while the Company is exercising this right of detention it shall be entitled to charge the Owner at the Company’s 24 hour rate for overnight visitors for each day between termination or expiry of this licence and the actual date of payment (or provision of security) by the Owner and removal of the Vessel from the Harbour and Premises. The Owner shall at any time be entitled to remove the Vessel or other property upon providing proper security, for example a letter of guarantee from a Bank or a cash deposit, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for the Company’s prospective legal costs.
10. TERMINATION BY OWNER
10.1 This licence may be terminated on 16 weeks written notice by the Owner to the Company. Following such notice the Company shall prepare an account of;
10.1.1 all sums owed by the Owner in respect of services or facilities used up to the intended date of departure of the Vessel, on the basis that the stated berthing licence term is then re-assessed and charged on the summer tariff and
10.1.2 the charges that would have been payable by the Owner to the Company in respect of services or facilities used up to the intended date of expiry of the Notice of Termination, less
10.1.3 the sum actually paid by the Owner to the Company in respect of the licence. Where the balance is in favour of the Company the Owner shall be required to pay the balance on the date of the Notice of Termination and before removal of the Vessel from the Harbour or Premises. Where the balance is in favour of the Owner the Company shall pay any sum due to the Owner upon expiry of the Notice of Termination.
11. VESSEL MOVEMENTS
11.1 The Company reserves the right to move any Vessel, gear, equipment or other goods at any time for reasons of safety, security or good management of the Harbour and Premises.
11.2 A copy of the Company’s scale of charges for Vessel movements will be provided to the Owner before they enter into an Agreement with the Company. Where a specific date or tide range for relaunch of the Vessel has been agreed between the Owner and the Company at the time of slipping or lifting out (or arrival by land) this charge alone will be payable for the launch. However where the Owner requests a different date or tide range the Company reserves the right to charge the Owner for the cost of moving other vessels to gain access to the launch point and for any attendant expenses, such as crane hire. The Company will provide the Owner with an estimate of such costs and charges prior to incurring them.
11.3 Vessels shall be berthed or moored by the Owner in such a manner and position as the Company may require and unless otherwise agreed adequate warps and fenders for the Vessel shall be provided by the Owner.
11.4 No Vessel, when entering or leaving or manoeuvring in the Harbour, shall be navigated at such a speed or in such a manner as to endanger or inconvenience other vessels the Harbour.
11.5 Advisory note: Owners, their guests and crew are advised that Vessels are at all times subject to the speed restrictions and Byelaws of Harbour and navigation authorities and the requirements and powers of regulatory authorities, including but not limited to the Maritime and Coastguard Agency and the Health and Safety Executive; there are criminal penalties for the breach of such restrictions, requirements and Byelaws.
12. COMMERCIAL USAGE
12.1 No part of the Company’s Harbour or Premises or any Vessel or vehicle while situated therein or thereon shall be used by the Owner for any commercial purpose, except where the Owner has sought and obtained prior written agreement from the Company. Where this licence is granted to a commercial operator whose Vessel is operated for hire or reward in the course of trading, special conditions will apply to this licence, as appended.
13.1 Dinghies, tenders and rafts shall be stowed aboard the Vessel unless the Company allocates a separate berth for them which will be charged at the appropriate rate.
14.1 Owners are not granted the right to a parking space. Subject always to the availability of parking space, Owners and their crew may only park vehicles on the Premises in accordance with the directions of the Company. The car parking area may on occasion be unavailable eg due to an event on site.
15. MARINA and HARBOUR REGULATIONS
15.1 The Owner shall at all times observe the Company’s regulations and in particular;
15.1.1 The Owner shall provide and maintain at least one fire extinguisher, which is approved and manufactured to EN3 standards for portable fire extinguishers, and ensure it is fit for purpose for the Vessel and ready for immediate use in case of fire.
15.1.2 Where fuel is required to be transferred in portable containers, the Company reserves the right to refuse the use of any container deemed unfit for the purpose.
15.2 The Company shall make available on its website and on display in the Berthing Office the current Terms and Conditions (T&C). The Company reserves the right to introduce new T&Cs on grounds of legal requirement or for the safety or security of good management of the Harbour or Premises, and to amend such T&Cs as from time to time shall be necessary. Such T&Cs and any amendments to them shall become effective on being displayed on the Company’s website, public notice board or other prominent place at the Company’s Premises, and the Company shall have the same rights against the Owner for a breach Regulations as for a breach of the terms of this licence.
Advisory note: Owners, their guests and crew are advised that their conduct and that of their Vessel is likely to be regulated and governed at various times by statutory, local authority and harbour regulations which may be more extensive than those of the Company and the breach of which may result in criminal penalties.
16. ACCESS TO PREMISES/WORK ON THE VESSEL
16.1 Subject to Clause 16.2 no work shall be done on the Vessel, gear, equipment or other goods while on the Premises without the Company’s prior consent other then minor running repairs or minor maintenance of a routine nature by the Owner, his regular crew or members of his family whilst not causing nuisance, or annoyance to any other customer or person residing in the vicinity, nor interfering with the Company’s schedule of work, nor involving access to prohibited areas.
16.2 Prior written consent will not be unreasonably withheld where:
16.2.1 The work is of a type for which the Company would normally employ a specialist sub-contractor; or
16.2.2 The work is being carried out under warranty by the manufacturer and/or supplier of the Vessel or any part of the equipment to which the warranty relates.
16.2.3 Notwithstanding the foregoing, during periods of work by the Company on the Vessel, neither the Owner nor his invitees shall have access to the Vessel without the Company’s prior consent, which shall not be unreasonably withheld.
16.2.4 The Company operates a Permit to Work Scheme. All third party contractors should seek consent from the Company and obtain a BHA Permit to Work before any work commences. All third party contractors must hold current third party liability insurance and provide a copy of their certificate.
17. HEALTH, SAFETY AND THE ENVIRONMENT
17.1 The Company is committed to compliance with the Port Marine Safety Code and attention is drawn to our Statement of Commitment.
17.2 The Owner, his crew, members of his family and any person carrying out work on the Vessel is responsible for reporting to the Company all accidents involving injury to any person or damage to any public or private property that occur in the Harbour or on the Premises as soon as possible after they occur.
17.3 No noisy, noxious or objectionable engines, radio, or other apparatus or machinery shall be operated within the Harbour or Premises so as to case any nuisance or annoyance to any other users of the Harbour or Premises or to any person residing in the vicinity and the Owner undertakes for himself, his guests and all using the Vessel that they shall not behave in such a way as to offend as aforesaid; for example halyards and other rigging shall be secured so as not to cause such nuisance or annoyance.
17.4 Under health and safety legislation the Company must ensure that employees and visitors to their premises are not put at risk, and berth holders and visitors also have a responsibility to ensure they do not create health and safety risks. A number of freshwater taps are located on pontoons. Due to the potential for e-coli bacteria to grow inside hosepipes left in sunlight, hosepipes must not be left out on pontoons. Owners should supply their own hosepipe and store it accordingly. Any hosepipe left on a pontoon will be removed.
17.5 No refuse shall be thrown overboard or left on the pontoons or in the car parks or on any other part of the Premises, or disposed of in any way other than in the receptacles provided by the Company or by removal from the Company’s Harbour and Premises.
17.6 The Owner shall, and shall procure that his crew and members of his family comply with all applicable laws when using the Company’s Harbour and Premises.
17.7 The Company is on the Information Commissioner's Office Data Protection Register. The Company is required to comply with all aspects of the Data Protection Act (DPA) which includes the processing/use of personal information and the use of CCTV for crime prevention,
18 LAW & JURISDICTION
18.1 This Licence and any non-contractual obligations arising out of, or in connection with, this Licence shall be governed by and construed in accordance with English law.
18.2 Each of the parties irrevocably agree that any and every dispute (and any non contractual obligations, as aforesaid) arising out of or in connection with this Licence shall:
18.2.1 if one party acts as consumer (meaning a natural person acting for purposes outside of a trade, business or profession), be subject to the non-exclusive jurisdiction of the English courts; or
18.2.2 where no party acts as consumer, be subject to the exclusive jurisdiction of the English courts.