Guide to Berthing at the Marina
All yachts arriving and berthing at Garden Yacht Marina must be pre-booked prior to arrival at the marina. Under no circumstance can any yacht or vessel enter the marina unnotified and without a tenants of marina personnel.
1. DEFINITIONS
1.1. ‘Alongside Berthing’ means a berth where the Vessel is secured along its side with access to a jetty or quay.
1.2. ‘Berth’ means a space on the water allocated to the Owner of a particular vessel from time to time by the Company for the mooring of a vessel during the term of the Berthing Agreement.
1.3. ‘Berthing Fees’ means the fees payable by the Owner to the Company as consideration for the granting of the Permit by the Company to the Owner, which fees are payable on the terms and with the modalities specified in ‘Annex II – Berthing Fees’
1.4. ‘Company’ means Garden Marina Ltd, its officers, employees, agents, representatives and mandatories.
1.5. ‘Facilities’ means any buoys, moorings, wharves, jetties, piers, pontoons, slipways, pumps, walkways, boats and fittings or appurtenances connected therewith, and any property movable or immovable provided at the Marina.
1.6. ‘Length Over All (LOA)’ means the overall length of the space occupied by the Vessel, including any fore and aft projections and tenders, temporary and/or permanent.
1.7. ‘Permit’ means the berthing permit issued by the Company to the Owner for the Vessel in terms of this Berthing Agreement.
1.8. ‘Marina’ means the Gzira Gardens Marina, including its berths, moorings, quays, pontoons, breakwaters, slipways, movable and immovable and other items or things under the control of the Company.
1.9. ‘Owner’ shall include the captain, charterer, agent or other person who acts in command of the Vessel, even if not its legal owner, and has been duly appointed by the individual having legal title as owner of the Vessel as his authorized agent.
1.10. ‘Period’ means the period of time during which the Berthing Agreement remains in force between the Parties.
1.11. ‘Rules’ means the rules contained in this ‘Annex I – Marina Rules and Regulations and by-Laws’, and any other reasonable rule duly communicated in writing by the Company to the Owner from time to time.
1.12. ‘User’ shall include the Owners and all other persons within the Marina, who utilises the services provided at the Marina.
1.13. ‘Vessel’ means any yacht using the Marina, whether registered as a commercial yacht or as a pleasure yacht.
2. RIGHT TO BERTH
2.1. The Company hereby grants to the Owner, who accepts, the Permit to berth the Vessel at the Marina, on the terms and conditions contained in this Berthing Agreement and Annexes.
2.2. The permit is personal to the Owner and is valid only for the vessel named on it. The permit may not be assigned, nor may be used for an alternative vessel by the owner.
2.3. The Owner declares that the Berth to which this Agreement applies and all other relevant parts of the Marina, including the connections to the utility supplies, are in all respects satisfactory and compatible with the Vessel.
2.4. The right to berth at the Marina does not include the right to lay-up or store the Vessel ashore, or vice-versa, and any such service shall form the object of a separate agreement between the Parties.
2.5. The Owner is entitled to the exclusive use of the Berth for the Period, but the Company may, if it deems reasonably appropriate, move or require the Owner to move the Vessel from one Berth to another. The Owner will not receive any compensation for such movement. The Owner may not move the Vessel from one berth to another within the Marina without the prior written approval of the Company. The Company reserves the right to temporarily relocate any vessels berthed in the Marina by providing at its own expense a berth of the same type, level and quality as the one being provided at the Marina, which berth may be located in an alternative Marina. Any form of compensation to the Owner for such relocation is hereby being excluded.
2.6. The Company may board, enter, move, or carry out any emergency work on an unattended Vessel if this is necessary for safety, emergency, or urgent operational reasons. The Owner shall be liable to pay the Company reasonable costs incurred in carrying out such work. If the Vessel is left unattended and the Owner is not available in Malta, the Owner shall deliver to the Company a duplicate set of all the keys of the Vessel and any written instructions that may be needed in order to enter the Vessel safely and move accordingly.
2.7. The Owner shall keep the Company informed of the Vessel’s movements, and the Company may utilize the Berth if the Vessel leaves the Berth vacant for at least forty eight (48) hours. The Company shall at all times use its best endeavours to ensure that the Vessel may use its usual Berth, or an alternative Berth as the Company may deem fit, until such time as the usual Berth shall be vacated.
The Owner may not request any compensation for movements nor be entitled to retain any Berthing Fees in respect thereof. Vessel movements involving the vacation of the Berth for forty eight (48) hours or more are to be notified to the Company at least twenty four (24) hours in advance.
2.8. Save with the prior written approval of the Company, the right to berth is limited to the berthing of Vessels as defined herein, and excludes the berthing of any other type of vessels.
2.9. Prior to entering or exiting the Marina, the Captain or the Owner of the Vessel shall contact __GARDENS YACHT MARIINA __ON vhf channel 13 for authorization for safe manoeuvring within Marina waters. The Captain or the Owner shall ensure that the maximum speed within the Marina area does not exceed three (3) knots. Standard VHF communication should be used at all times
2.10. The Owner shall not use the Marina or his Vessel for any commercial purpose without the Company’s prior approval which shall not be unreasonably withheld.
2.11. The Owner may sell his Vessel whilst it is at the Marina provided that he or his representative is present at all times when the Vessel is being viewed or inspected. “For Sale” notices shall not be displayed at any time. Transfer the berthing space with the sale of the boat is strictly prohibited and will not be recognised by the company. Should the Vessel be scheduled to depart from the Marina upon completion of a sale, the Owner shall, nevertheless, promptly notify the Company in writing. In such a case, no berthing fees will be refunded by the Company.
3. SERVICES AND UTILITIES
3.1. Water and electricity supplies provided by the Company for the use of the Vessel must not be shared with any other Owner, User or Vessel. The Owner recognizes that the Company cannot guarantee a constant supply of electricity and water. Connection and re-connection will only be carried out during office hours. Requests for re-connection are to be submitted by email, at least four (4) hours prior to closing of the Marina for the day.
3.2. The Owner shall ensure that the Vessel’s connections to the utility supplies are properly designed, fitted and maintained. Electricity cables must be disconnected from the supply point before being disconnected from the Vessel and no electricity cables and water hose pipes shall be left on the pontoons/quay when they are not in use. FOBs are to be used by the owner only and not to be handed out to third parties.
3.3. Water and electricity consumption is metered and the owner will be charged at the Company’s current tariff of charges, from time to time. Non-payment will result in the supply being terminated and re-connection fee will be charged to the Vessel.
Provided that in the event that water and electricity consumption cannot possible be metered by Gardens Marina Ltd, the Owner agrees to pay in advance Gardens Marina Ltd a fixed rate of €50 per month, irrespective of the consumption.
3.4. The provision of clause 4.2 of this Annex will apply to the current tariff of charges in so far as these concern the provisions of water and electricity services.
3.5. All water hose pipes shall be fitted with a spring loaded nozzle designed to shut off the water flow when the hose is unattended. Any damage arising due to negligence will be debited to the Owner’s account
3.6. The Marina may offer berthing assistance when requested, however it will not be held responsible in the event of any damages sustained by the Owner.
4. CONSIDERATION AND PAYMENT
4.1. In consideration of the right to berth, the Owner hereby agrees to pay the Company the Berthing Fees listed in ‘Annex II’, on the terms and with the modalities listed therein. The said fees consist in the fees due to the Company by the Owner according to its current tariff of charges, also as attached as ‘Annex II’.
4.2. Subject to the provisions of ‘Annex II’ the Company reserves the right in its sole discretion to amend its current tariff of charges at any time by giving the Owner one (1) month’s advance written notice. During the said period of one (1) month, the Owner may choose, either to refuse the said amendment to the tariff of charges and vacate the Berth, or to accept the new tariff of charges and remain in the Berth. The continued use of the Berth following the lapse of the period of one (1) month following notice shall be deemed to constitute acceptance of the amended tariff.
4.3. The tariff then applicable shall be charged for water and electricity provided by the Company to the Owner. An increase or reduction in the rate of VAT or other tax payable on Berthing Fees and water and electricity services, or other services provided, shall be charged or decreased from the charges payable by the Owner.
4.4. Delay in payment beyond the period established in ‘Annex II’ will cause the Owner to pay the Company interest at the rate of eight per cent (8%) per annum.
4.5. Without prejudice to any other right competent to it, the Owner agrees that the Company is authorised to retain the Vessel by way of a possessory lien in consideration of any outstanding debts due to the Company by the Owner for berthing of the Vessel and other charges in terms hereof, and to proceed in terms of law in order to extinguish the said debts due to it.
5. PERIOD
5.1. The License is being granted for the Period stated in the Berthing Agreement.
5.2. Without prejudice to any other provision, and subject to Rule 5.3 hereof, the Owner may terminate this Agreement by giving the Company one (1) month’s prior notice in writing.
5.3. Berthing Fees paid in advance will not be refunded by the Company to the Owner.
6. INSURANCE
6.1. At all times throughout this agreement the Owner shall keep in full force and effect, at his sole expense the following insurance policies issued by insurance companies of repute:
- 6.1.1.1. A public liability insurance that shall have limits of liability of at least one million Euro
(€1,000,000) for injury or death and/ or for damage to property, per occurrence and for any one
accident; - 6.1.1.2. A policy against salvage claims;
- 6.1.1.3. A policy or policies of insurance covering loss or damage to the Marina (including fixtures and
fittings) in the amount of full replacement value. Such policy shall provide protection against all
perils included with the classification of fire, extended coverage, vandalism, special extended perils
(all risks), sprinkler leakage, an inflation guard endorsement and other coverage that the Marina
may consider necessary. The Marina shall have the right, from time to time, to obtain professional
appraisal of the Marina as well as professional appraisals of the public liability insurance limits, by
an appraiser reasonably acceptable to the Owner’s insurer, and the Owner will adjust the premium
and coverage accordingly;
6.2. The Owner shall furnish the Marina immediately upon execution of the Berthing Agreement and thereafter when reasonably required, with certificates or otherwise satisfactory evidence of all insurance policies required to be procured by the Owner in terms hereof. Each certificate shall state that the Marina shall be entitled to at least thirty (30) days prior notice of any cancellation, material change or non-renewal, and that the Insurers shall be bound to advise the marina accordingly. Should the Owner fail to procure any insurance required hereon the Marina may, in addition to any other remedies, procure the same on behalf of the Owner. The Owner agrees to pay the premium due therefore promptly on the Marina’s demand.
6.3. The Owner shall indemnify the Company and hold it harmless from and against any and all claims arising from the Owner’s or the Vessel’s use of the Marina, or from any activity, work or thing done, permitted or suffered by the Owner in or about the Marina. The Owner shall furthermore indemnify the Company and hold it harmless from and against any and all claims arising from any breach or default in the performance of any obligation on the Owner’s part to be performed in terms of the Berthing Agreement, or arising from any negligence of the Owner’s principals, agents, contractors, employees, and guests, and from and against all
costs, advocate fees, expenses and liabilities incurred in the defence of any such claim or any action or proceeding brought thereon. If any action or proceeding is brought against the Company by reason of any such claim the Owner, upon notice from the Company, shall defend the same, at the Owner’s expense, by advocates satisfactory to the Company. As a material part of the consideration to the Company, the Owner hereby assumes all risk of damage to property or injury to persons in or about the Marina arising from any
cause, and the Owner hereby waives all claims in respect thereof against the Company, except from any claim arising out of the Company’s gross negligence or wilful misconduct
6.4. The Company shall not be held responsible or liable for the theft or damage to the Owner’s property, unless this is imputable to the fault of the Company or its officers.
6.5. The Owner shall notify the Company immediately on becoming aware of any damage to or inadequacy of any part of the Berth he makes use of in terms of this Berthing Agreement.
6.6. The Company shall not be responsible for any loss or damage caused to the Owner arising from a breach by the Owner of the terms of this Berthing Agreement. The Owner shall be solely and entirely responsible to ensure compliance with the same and undertakes to indemnify the Company accordingly.
7. MAINTENANCE AND REPAIR OF VESSEL
7.1. The Vessel shall be maintained in a good and clean condition, in good working order and properly in repair and in seaworthy condition. Repair and maintenance work of a minor nature only may be carried out on a Vessel on its Berth. Other work is to be carried out in such area or service berth as may be designated by the Company for such purposes from time to time. Such works may be carried out by the Owner or by the Vessel’s regular crew only.
7.2. The Company may at any moment in its absolute discretion order that any repair work being carried out ceases immediately if it considers that such work is or may cause damage, inconvenience, nuisance or that it constitutes a health and safety risk to the Marina, its Users or to persons or premises nearby.
7.3. Owners are prohibited from subcontracting any work to be carried out on the Vessel while berthed at the Marina by third parties, companies or sub contractors. Such work must be effected solely by authorized, qualified and experienced personnel approved by the company and marina personnel.
8. GENERAL
8.1. Owners and Users shall comply with all reasonable instructions given by the Company for the proper and
efficient operation of the Marina.
8.2. In the navigation of their Vessels, Owners will observe all speed restrictions implemented by the harbour,
marina, navigation or other authorities, in a seaman like manner such that other Vessels and Marina Users are
not endangered or inconvenienced. Vessels shall not drop anchor in the Marina except in emergencies or
unless directed to do so by the Company
8.3. The Owner agrees not to allow anything to take place at the Marina or aboard the Vessel that may annoy, cause nuisance or offend any Marina Users, or persons or property therein or nearby. The Owner shall not keep engines running, loud audio equipment, outdoor cooking, leave halyards and sail covers unsecured , and/or take part in any anti-social behaviour. All pets shall at all times be kept under strict control, but the Company may in its absolute discretion order that any animal be removed immediately and thereafter banned from the Marina.
8.4. Waste and refuse must be placed in appropriate receptacles provided by the Company. No person shall discharge or allow escape of any oil, garbage, or other refuse into the waters of the Marina or left on pontoons or jetties. The Company reserves the right to charge the cleaning of waters from any pollution to any one or more Owners that it deems responsible.
8.5. No washing lines shall be erected on-board the Vessel, nor shall washing be dried on the exterior of the vessel.
8.6. No person is authorized to provide services or carry out works on any Vessel in the Marina unless with prior written approval of the Company. Anybody working on yachts must posses a Yacht Trader Policy and a 3rd party liability policy with a minimum value of 2.5 million euros.
8.7. No items will be left on pontoons or quays or anywhere else in the Marina, unless the place has been designated by the company as a storage place. Any items, including vehicles, which are left unattended at the Marina, on the pontoons, or quays or within the Marina’s environs, may be removed by the Company at the Owner’s expense.
8.8. Stern mooring lines are to be provided and maintained by the Owner of the Vessel. All stern mooring lines are to be fitted with adequate springs which are to be installed with the required protection thus ensuring that no damage is to be caused to the Company’s property.
8.9. The Marina shall not be used for swimming, fishing or other water sports.
8.10. Diving services must only be acquired directly from the company and will be at the sole cost of the Owner of the Vessel requesting the service. While their vessel is berthed or in the Marina, owners are strictly prohibited from engaging directly the service of a diver.
8.11. No person may live habitually or permanently reside aboard any Vessel unless the Owner has obtained the written authorization of the Company.
8.12. Fuelling, re-fuelling and bunkering services to the Vessels shall only be made following the approval of the company and the service is to be acquired from a list of authorised service providers provided by the Company and at a designated point or as authorized by Marina Personnel.
9. RESPONSIBILITY
9.1. The Owner shall at all times be responsible for the safety of the Vessel and shall be liable for any damage caused by the Vessel or its tender to the Marina, its facilities, or other Vessels therein situated. Any maneuvers must be performed by a person who is a holder of a recognised nautical license.
9.2. Use of the Marina shall be at the User’s own risk and the Company shall not be responsible for the death or injury of any user, nor for any loss, theft or any other damage caused to any Vessel, vehicle, or personal possessions, except in the case of the Company’s gross negligence. The Company shall not provide safety watch, weather watch, or security services to prevent or reduce the likelihood of injury, theft or damage.
9.3. The Company does not guarantee the suitability of any Berth, equipment, gear or other facilities provided.
9.4. The Owner is obliged to fill in the Unattended Vessel Form – Annex III of this Agreement for periods during which the boat may be left unattended.
10. RESERVATIONS AND DEPARTURES
10.1. The Company retains the right to reserve berthing space at the Marina for any Vessel. In the case of reservation for daily, weekly and monthly berths, the Owner agrees to pay full Berthing Fees upon reservation. This fee shall not be refundable. Reservations for use of berths for periods of six (6) months and over shall only be accepted upon the payment of a non-refundable minimum reservation fee equivalent to thirty per cent (30%) of the applicable Berthing Fee. Until such time as the reserved Berth is utilized, the Company may utilize the said Berth at its discretion.
10.2. Late Departures following the lapse of the contractual or extended period hereof will cause the Company to charge a penalty fee for each day or part thereof of delay equivalent to double the daily Berthing Fees than current.
11. FIRE PREVENTION
11.1. Marina users in general shall take all reasonable precautions against the outbreak of fire. Each Vessel must keep adequate firefighting equipment on-board of an approved or GSI standard type, size and installation ready for immediate use in the event of fire. Fire extinguishers are to be regularly maintained and in good working order at all times.
11.2. No fuel, gas, or other highly inflammable or explosive substance shall be brought onto the Marina unless properly secured. Any such substance kept on-board must be held in appropriate containers and be stowed in a safe and seaman like manner. Gas bottles shall be turned off when not in use and stored in vented compartments. Any other liquid fuels must also be kept in vented compartments.
11.3. Work with hazardous or inflammable substances cannot be undertaken at the Marina unless such works are approved or are being carried out by the Company.
12. POLLUTION
12.1. Marina Users shall not discharge any black water holding tanks while in the marina;
12.2. Marina Users shall take all reasonable precautions to prevent pollution. No garbage, toilet effluent, dirty/oily bilge water or other pollutant shall be discharged or thrown overboard.
12.3. No pollutant shall be brought onto the Marina unless properly secured. Any such substances kept aboard must be held in appropriate containers and be stowed in a safe and seaman like manner
13. FORCE MAJEURE
13.1. If either Party is effectively prevented from observing its obligations by force majeure, it shall forthwith notify the other Party of the nature and expected extent thereof.
Force majeure means, in relation to either Party, any circumstances beyond the reasonable control of that Party, such as:
i. act of God and/or natural catastrophe (such as, but not limited to, fires, explosions, volcanic eruptions, earthquakes, seaquakes, landslides, named windstorms or other excessive weather events, including snow and hail, drought, tidal waves and floods, collapse of roads, bridges, tunnels, damage caused by a falling object);
ii. war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation,
requisition, or embargo;
iii. rebellion, revolution, insurrection, or military or usurped power, or civil war;
iv. 4 contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the
combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any
explosive nuclear assembly or nuclear component of such assembly;
v. 5 riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees
of the Supplier or of his Subcontractors;
vi. 6 acts or threats of terrorism or
vii. 7 robbery (whether armed or not), Hi-jacking, illegal seizure.
13.2. Neither Party shall be deemed to be in breach of the Berthing Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any force majeure of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly. The Party affected by force majeure shall however exercise its best endeavours to remedy and restrain the effects thereof and render the non-performance of any obligation less burdensome on the other Party.
13.3. If the force majeure in question persists for a continuous period in access of seven (7) days, the Parties shall enter into a bona fide discussion with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
14. TERMINATION
14.1. If the Owner is in material breach of any of the conditions of the Berthing Agreement, and remains so in default of a period of seven (7) working days from receipt of notice in writing indicating the breach and requesting its remedy, the provisions of the Berthing Agreement will be ipso jure terminated, and the Company will be authorized to terminate all supplies and services to the Vessel and the Owner.
14.1.1. Provided that if the nature of the breach is such that more than seven (7) working days are reasonably required for its cure, the Owner shall not be deemed to be in breach if during the said period he commences such cure and diligently prosecutes it to completion.
14.2. Failure by the Owner to vacate the Berth upon termination of the Berthing Agreement in terms of Rule 14.1 hereof will authorize the Company to charge the Owner by way of penalty due for each day or part thereof, Berthing Fees equivalent to five times the then current tariff, and to take all measures to ensure payment for all amounts due, including the enforcement in terms of law of the possessory lien contemplated in Rule 4.5 hereof. The Company may move the Vessel at the Owner’s risk and expense out of the Marina on tow, and
charge the Owner for any subsequent berthing, storage and other costs incurred.
15. JURISDICTION AND CHOICE OF LAW
15.1. The Berthing Agreement (including all matters relating to the formalities, construction, application and enforcement) is governed by the Laws of the Republic Malta, and any dispute that may arise in terms hereof shall be determined exclusively by arbitration proceedings contemplated by the Arbitration Act (Cap. 387 of the Laws of Malta).
16. NOTICES
16.1. Notice on the Owner and/or Captain shall be deemed to have been duly served when sent by registered letter to the address provided by the Owner and/or Captain and/or authorized representative as indicated in the Berthing Agreement, and in the event of such notice being unsuccessful, notice shall be needed to have been served when attached to a conspicuous part of the Vessel and documented by a dated photograph, whilst that on the Company when delivered during office hours to the Company’s offices by means of a registered letter.
