“Charterer” refers to the person named above who has full and complete responsibility for the safety of the vessel and its crew. “Charter Ready Condition” means the Yacht has properly cleared customs, free of all liens and encumbrances, and is in the same condition and clean state as when delivered. “NYCSS” is NANAIMO Yacht CHARTERS & SAILING SCHOOL LTD. “Yacht” refers to the bareboat charter vessel specified above.
2. Charter Fee Payment Terms
Charter fee amounts, including taxes, insurance, any other amounts owing will be issued by invoice per the invoice number referenced on page 1 of this Agreement. 35% of the charter fee is due upon booking. Final Payment is due 60 days prior to start date of the charter unless indicated in writing on an Invoice issued by NYCSS. A 1.5 % late fee will be applied to all charter fee balances not paid by the due date. All amounts are to be paid in Canadian Dollars by cheque, bank transfer or cash. Credit card use, including Security Deposits, incurs a processing fee of 4.00% of the amount due.
If a cancellation occurs more than 90 days before departure the deposit payment is returned to the Charterer less an administrative fee of $350 (plus applicable taxes). 89-60 days before departure: a charge of 25% of the total charter fee will apply (plus applicable taxes). If cancellation occurs less than 60 days before departure, we will make every effort to rebook another charter in the same boat for the same period and, where possible, issue a refund minus an administration fee of $350. NYCSS shall have the right to cancel the charter should all or any portion of the charter fee not be paid on time and any monies paid by the Charterer shall be surrendered to NYCSS not as penalty but as liquidated damages. All notice of cancellation must be given in writing. To change bookings, a re-booking fee of $250 will apply.
4. Obligations of NYCSS
NYCSS agrees to make available for the Charterer the Yacht and provide the services and supplies described herein and the Charterer agrees to charter the Yacht and pay for the services on the terms outlined in this agreement. Should the specified Yacht not be available NYCSS reserves the right to substitute with a similar Yacht. In the event that the substitute Yacht costs less or is smaller, NYCSS will refund the price difference, or alternatively, NYCSS has the option to return the full charter fee. In this case, the Charterer can have no claims against the owner of the Yacht or NYCSS for any loss, damage, expense or delay.
The Charterer must examine the Yacht prior to departure to determine whether the vessel and dinghy are in good working order, are properly outfitted with all Transport Canada standard safety equipment and accessories as well as any other requested items (inventory). Acceptance by the Charterer certifies that NYCSS has fulfilled its obligations.
5. Availability and Running Expenses
The Charterer takes possession of the Yacht when the following formalities have been completed and submitted to NYCSS: full payment of the charter; submission of the crew list; boating resume; and refundable Security Deposit is provided by a pre-authorized credit card imprint.
The Yacht is handed over with full fuel, water and one tank of cooking fuel. The Charterer agrees to pay any additional running expenses during the term of the charter, including, but not limited to: food and other consumable stores; fuel; pilotage; mooring and dockage fees; port charges; park permits; customs and provisions; and supplies for the Charterer and their crew.
6. Insurance & Charterer Liability ____ Initial ____ Initial
6 (a). Yacht Insurance Coverage
The insurance covers a hull and machinery and 3rd Party Liability up to $5,000,000
The Charterer is responsible for all insurance deductibles applied per occurrence of damage or loss, which may be taken from Charterer’s Security Deposit at NYCSS’s sole discretion. The Charterer shall be solely responsible for any loss or damage not covered by insurance, including, but not limited to, the failure to comply with the terms of this Agreement.
6 (b). Items Not Covered by Insurance
The Charterer shall be solely responsible for loss or damage arising from any of the following: negligent or willful misuse of the Yacht; violations of Use of the Yacht per Section 9 of this Agreement; lost or stolen equipment or inventory; operation of the Yacht under the influence of drugs or alcohol; and/or failing to adhere to the briefing and/or on-board instructions.
Additionally, the Charterer is solely responsible for loss, damage, and or repair resulting from any of the following:
i. Groundings or the Wrapping of a Rope around the Propeller “Prop Wrap”;
ii. Lost or Damaged Tender/Dinghy, Anchor and Ground Tackle, Electronics, Accessories, or Inventory
iii. Towing and/or Charter call-out expenses for repairs necessitated by the actions/inaction of the Charterer; and/or
iv. Necessary Haul-outs and Underwater inspections, at the sole discretion of NYCSS.
7. Accidents; Loss; Damage; Repairs
7 (a). Notice of Accident, Injury, or Loss
The Charterer shall immediately notify NYCSS of any accident involving the Yacht, any serious injury of any person aboard the Yacht, or any violation of any law rendering the Yacht liable to claim, penalty or detention. In the event of breakdown, Charterer is liability for aggravated damages resulting from continuing the voyage without consulting NYCSS. In the event of damage, collision, loss of equipment, and/or delay to Port of Return, reasonable steps must be taken to minimize further loss, including, but not limited to:
7 (b). Repairs
In the event of a breakdown, the Charterer will not attempt repairs without the authorization of NYCSS. All claims for NYCSS authorized reimbursement shall be supported with receipts from recognized marine repairers and suppliers. Failure to comply with these terms may void the insurance coverage.
7 (c). Fair Market Value for Repairs and Other Losses
Any losses, damages, or repairs that occur will be assessed at Fair Market Value and invoiced accordingly.
8. Security Deposit ____ Initial ____ Initial
8 (a). Credit Card
The Charterer must leave a Security Deposit in the form of a pre-authorized credit card imprint taken prior to departure, which will be charged after the Yacht is returned to the Port of Return and inspected by NYCSS (which may include underwater inspection and/or haul-out) to determine any and all reasonably necessary charges. A credit card processing fee of 4.00% of the amount due will be applied.
8 (b). Use of Security Deposit
The Security Deposit may be used to pay for any and all Charterer liabilities arising from this Agreement, including, but not limited to: insurance deductibles; repairs and services for loss or damage; refueling; damaged, lost, or stolen equipment or other inventory; lost Charter Revenue; aggravated or liquidated damages; costs associated with inspection of the Yacht upon its return and surrender in order to ensure that the Yacht is in Charter Ready Condition; cleaning; and/or other such charges as may be deemed reasonably necessary by NYCSS.
For any amounts owing in excess of the Security Deposit, any monies due shall be paid on demand; the failure to pay any amounts on demand shall bear interest of a rate equivalent to the current bank prime rate from time to time plus 3.00% per annum.
8 (c). Security Deposit Forfeiture
In the event of a grounding or prop wrap, however it may occur, the entire amount of the Security Deposit will be forfeited and Charterer will be responsible for any and all amounts that exceed the amount of the Security Deposit that arises from any and all damages, repairs, and/or losses under any Section of this Agreement, including, but not limited to, expenses related to ensuring the Yacht is in Charter Ready Condition.
9. Use of the Yacht
9 (a). Use of Yacht as Pleasure Vessel Only
The Charterer agrees to take on board only the number of crew as stated on the crew list. The Yacht shall be employed exclusively as a pleasure craft, engaged in lawful activities.
The Yacht shall not transport merchandise, carry passengers for pay, engage in any trade, nor in any way violate the laws of Canada or the United States or of any other government within the jurisdiction of which the Yacht may be at the time and shall comply with the law in all other respects.
9 (b). Cruising Area
The Charterer agrees to restrict use of the Yacht to the “cruising area” and not to navigate the West Coast of Vancouver Island (including inlets on the West Coast of Vancouver Island) without prior written approval of NYCSS and then completion of a WAIVER FORM. When sailing outside the cruising area, the Charterer is fully responsible for the maintenance and management of the Yacht and no support can be guaranteed.
9 (c). Prohibited Activities
Strictly prohibited activities include: single-handed operation of the Yacht; rafting to another vessel at anchor; and night sailing (between 30 minutes before sunset and 30 minutes after sunrise). The Yacht shall not be operated in fog; in the event that fog conditions occur, the
Charterer shall exercise all reasonable precautions to ensure the safety of all persons on board as well as the safety of the Yacht to travel to safe harbour. The Charterer shall stand well clear of any commercial shipping. Racing is not permitted, except with advance written approval by NYCSS.
9 (d). No Assignment or Sub-Charter
The Charterer shall neither assign this agreement nor sub-charter the Yacht without the prior written approval of NYCSS.
10 (a). Charterer’s Competency
The Charterer certifies that he/she is experienced and competent in the handling and operation of inboard auxiliary powered sailing craft of the general type and size as the Yacht herein chartered and that the Charterer has sufficient practical knowledge of seamanship, piloting and Rules of the Road. The Charterer shall not permit any person not equally qualified to operate the Yacht. The Charterer agrees not to operate the Yacht single-handed, and will ensure that at all times a competent skipper and/or leading crew member are aboard, except while safely moored. NYCSS may in its sole discretion verify the Charterer’s or leading crew’s competency at any time during the charter.
The Charterer acknowledges that NYCSS does not independently investigate the competency of any Charterer to operate the Yacht but relies solely and exclusively on the resumes provided. The Charterer further acknowledges that while NYCSS may refuse to release the Yacht to the Charterer in its sole discretion that this exercise of discretion shall in no way be construed as an acknowledgement or determination of the competency of the Charterer’s crew or the assumption of any liability for loss or damages incurred, for which the Charterer assumes sole responsibility.
10 (b). Instructional Skipper
At any time prior to or during the period of the charter, should NYCSS, in its sole discretion, determine that the Charterer and/or leading crew is less than fully competent, NYCSS may require the Charterer, at the Charterer’s expense, to pay for an Instructional Skipper/Captain to assist the Charterer in achieving competency. Should the Charterer choose not to hire an Instructional Skipper/Captain, or if the Instructional Skipper/Captain is unavailable, NYCSS may restrict the Charterer’s use of the Yacht by requiring that the Yacht remain at the dock until a qualified Skipper/Captain is available.
All Instructional Skippers/Captains hired by the Charterer shall be selected from the NYCSS pre-approved list of Instructional Skipper/Captains, who shall be hired by the Charterer as an independent contractor. The Instructional Skipper/Captain shall be the sole judge as to whether it is reasonable or prudent to operate the Yacht at a given time or place, having taken into account weather, anchorages, and pertinent matters. NYCSS shall not be responsible for any loss, damage, delay, or expense caused to the Charterer and/or crew by reason of an act or neglect of the Instructor.
Once hired, if the Yacht is no longer on the docks of NYCSS, the Charterer must immediately notify NYCSS of any decisions to discharge the Instructional Skipper/Captain and obtain instructions from NYCSS as to the proper procedures for securing the Yacht (should the Yacht be left at any other location). All responsibilities under Section 11 of this contract shall remain in effect and cannot be waived without written consent of NYCSS.
11. Return of the Yacht
11 (a). Surrender of the Yacht
The Charterer shall surrender the Yacht on time to the Port of Return Charter Ready Condition. The Charterer is responsible for allowing sufficient time for unforeseen contingencies to permit the return of the Yacht at the agreed upon time and place and in Charter Ready Condition.
11 (b). Cleaning & Re-Fueling
NYCSS has the right to charge a cleaning fee if deemed necessary. Fuel tanks for the vessel and the outboard must be filled by the Charterer. A refueling fee of $100 in addition to the cost of the fuel will be charged if vessel or outboard is not refueled prior to redelivery of vessel to NYCSS.
11 (c). Return to Port of Return
If at any time the Charterer requests assistance returning the Yacht to the Port of Return, or if in NYCSS’s sole discretion NYCSS determines it necessary, the Charterer is solely responsible for all expenses related to returning the Yacht to the Port of Return.
11 (d). Notice to NYCSS
Charterer must immediately notify NYCSS return the Yacht to the Port of Return will be delayed.
11 (e). Failure to Return Yacht on Time and in Charter Ready Condition
Should the Charterer not deliver the Yacht to the Port of Return in Charter Ready Condition for any cause, other than an occurrence beyond the Charterer’s control, NYCSS has the right to immediately charge the Charterer the following amount:
iii. All lost charter revenue if the delay in return causes cancellation of the succeeding charter.
Any charges under this section occur immediately and may or may not be deducted from the Security Deposit, at the sole discretion of NYCSS.
The Charterer accepts responsibility for the proper conduct of themselves and their crew. NYCSS reserves the right, in our absolute discretion, to terminate, without notice, this contract with any Charterer who refuses to comply with NYCSS instructions or orders and/or whose behavior or competence in NYCSS’s sole discretion is likely to cause distress, damage, danger or annoyance to their crew, other clients, staff, any third party, or property.
Upon such termination, NYCSS’s responsibility for the Charterer’s vacation ceases and shall not be liable for any costs incurred by the Charterer. Upon such termination, NYCSS may charge the Charterer immediately for all expenses involved in returning the Yacht to the Port of Return (should the Yacht be left at any other location).
13. Liability, Hold Harmless, and Indemnity It is understood that NYCSS is acting for and on behalf of the owner of the Yacht. Neither NYCSS nor the Owner will be liable to any person for any loss, damage, injury, or death that results from the Charterer’s use of the Yacht. NYCSS makes no representations other than those contained in this Contract, the rate sheet, and any written materials provided as part of the booking procedures. NYCSS will not be responsible for any fees, expenses, airline tickets, hotel rooms, food, phone calls, or other expenses incurred by the Charterer for any reason whatsoever.
The Charterer will indemnify and hold harmless NYCSS and the Owner of the Yacht, including reasonable attorney fees, against any and all claims for loss or damage to property or injury to persons (including loss of life) resulting from use, operation, or possession of the Yacht and related equipment or other Inventory by the Charterer or any crew, and from any claims whatsoever from loss or damage to personal property of the Charterer or any crew carried on the Yacht or dinghy. This Agreement shall be construed and interpreted in accordance with the laws of British Columbia with the exception of any admiralty or maritime claims which shall be construed under the maritime, admiralty laws of Canada or the United States including the International Convention on Limitation of Liability for Maritime Claims 1976 as in effect. The venue for any proceedings hereunder shall lie in Nanaimo, British Columbia, Canada.
14. Alcohol and Drug Use ____ Initial ____ Initial
14 (a). Alcohol and Drug Use
NYCSS strictly prohibits the use or consumption of illegal drugs on board. The Charterer and crew accept the risk that the consumption of alcohol or drugs may increase the risk of injury around the water and boats. NYCSS shall be held harmless from any and all claims or liability for property damage, personal injury, or death arising from or related to, directly or indirectly, the use or consumption of alcohol or drugs, even if the property damage, personal injury or death is caused in whole or in part by the negligence of NYCSS. This shall in no way limit or diminish NYCSS’s accountability for its negligence where the property damage, personal injury, or death does not arise from or relate to, directly or indirectly, the use or consumption of alcohol or drugs.
14 (b). Charterer & Crew Alcohol and Drug Testing
The Charterer specifically acknowledges for himself/herself and crew that NYCSS has the right to insist the skipper or any other crew member take a drug and/or alcohol test administered by the police or a doctor after any incident involving the Yacht or its auxiliary equipment.
15. Charter Guarantee
If during a sailing day (8 a.m. to 5 p.m.) the Yacht is out of commission for more than 6 hours after notifying the base, NYCSS will refund the lost charter time. The Guarantee covers engine, transmission, sails, rigging, battery, and alternator. Excluded from the Guarantee are refrigeration, heat, CD player, dinghy and outboard, and any other items that do not prevent Yacht usage.
The time of breakdown will commence from the point when direct contact is made with NYCSS. If NYCSS is unable to resolve the problem within 6 hours the guarantee comes into immediate effect. NYCSS and the Charterer must agree on the time lost, in a writing signed by both parties, prior to the Charterer’s departure from the NYCSS base.
All breakdowns occurring outside the agreed sailing area or due to user negligence and/or operation of the Yacht in bad weather are excluded from the Guarantee. Under the terms of this Agreement, there the defense for Force Majeure is prohibited.
16. Assignment of Payments
NYCSS may assign rights to payments under the charter.
17. Lien Prohibition
Neither the Charterer nor any of his/her passengers or agents shall have the right, power, or authority to create, incur, or permit to impose upon the Yacht any liens whatsoever.
NYCSS appreciates your business and continued friendship during this difficult time. Concerns about the spread COVID-19 and the availability of supplies and medical resources has caused some of our neighboring communities to restrict transient moorage and shore access and/or develop local protocols for visitors. CHARTERERS assume sole responsibility to ensure that all crew and persons aboard the Yacht conform to all applicable safety recommendations and honour local rules and customs encountered throughout the term of this Agreement.
18 (a). Personal Protective Equipment (“PPE”)
The Charterer is solely responsible for maintaining the safety of his/her crew and Yacht and should consult with Health Canada for guidance regarding COVID-19. The Charterer is solely responsible for providing any necessary PPE for all passengers aboard the Yacht. Charterer’s will respect all local rules and customs, including the wearing of masks or gloves when asked to do so. Charterer’s crew, and guests must wear masks during all briefings and interaction with our staff
18 (b). Quarantine Requirements; Border Restrictions
The Charterer is solely responsible for conforming to all rules and quarantine requirements under any local, provincial, and/or federal orders or regulations. The Charterer is solely responsible for monitoring these matters before and during the duration the charter and agrees that NYCSS is not responsible for any losses or expenses related to these matters.
18 (c). Marina and Park Closures; Preparing for Your Charter
Rules, regulations, and customs regarding the use of any parks or marinas, and/or going ashore is an evolving landscape. CHARTERERS must conduct their own research to ensure that the locations they plan to visit are open and understand local expectations, customs, and rules in order to ensure the health and safety of their crew and Yacht and respect the rights and safety of third parties.
NYCSS is not responsible for providing the Charterer or crew with information or guidance regarding COVID-19 related crew health and safety, the availability of transient moorage or shore access, or any rules regarding shore access to local, provincial, or federal park land.
Please educate yourself and remain diligent by updating information about local closures, border closures, local customs, ferry schedules, and regulations for all areas where you plan to visit throughout your charter.
Setting Sail While Staying Safe