I.1 These General Terms and Conditions shall apply to all current and – without renewed express reference – also to future offers and services to the Customer if the Customer is an entrepreneur, a merchant, a legal entity – also under public law – or a public law special fund. Any terms and conditions of the Customer that deviate from or supplement these General Terms and Conditions shall not become part of the contract even if the Contractor does not expressly object to these terms and conditions or the Customer declares that he only wishes to place the order on his own terms and conditions. Deviations from these General Terms and Conditions shall only apply if the Contractor expressly accepted them in writing. The Customer shall be notified in writing of any amendments to these General Terms and Conditions. The amendments shall be deemed to have been approved if the Customer does not object to them in writing within four weeks upon notification of the amendments. The timely dispatch of the objection shall be decisive for compliance with the four-week period.
2. The Contractor shall provide employees with nautical knowledge who are in possession of, in particular, patents and navigating ability documents.
The Contractor shall ensure that the employee to be deployed has the necessary nautical knowledge, patents and navigating abilities required for the completion of the order.
The Customer shall check that the required evidence is available prior to handover of the respective vessel.
3. Orders from the Customer can be accepted within two weeks starting from receipt of the order by the Contractor.
Acceptance by the Contractor shall generally take place by means of an order confirmation. However, the Contractor may also accept the order by actually executing it.
4. By placing the order, the Customer undertakes that the vessel units to be operated are properly equipped, safe for traffic and expertly manned in accordance with the respective regulations to be observed, and that they have insurance which also includes the liability of the Contractor and its employees.
5. The Customer shall notify the Contractor or the employee provided by him of any deviation of the vessel and its instruments from the vessel’s certificate without being requested to do so prior to the commencement of the voyage. Furthermore, the Contractor or the employee provided by him shall be informed about the equipment of the vessel. In the event of justified doubts, the Contractor or the employee provided by him shall be entitled to inspect the vessel themselves or to have it inspected by an authority or an expert at the expense of the Customer.
6. The Contractor or the employee provided by him shall immediately inform himself about the draught and the sailing characteristics of the vessel as soon as he has boarded the vessel. The information required for this purpose shall be provided by the Customer to the Contractor or the employee provided by him or the employee shall be given the opportunity to obtain and check this information. The Customer shall be liable to third parties for any damage caused, in particular by incorrect information to whomsoever. The Contractor and the employee provided by him shall be indemnified against any claims by third parties.
7. The Customer shall in particular take care of any route permits and approvals that may need to be obtained.
8. The Contractor or the employee provided by him shall be entered in the vessel’s logbook with regard to the performance of the contractually owed activity. The employee provided shall be a member of the crew during the performance of the Contractor’s contractually owed activity.
9. The agreed remuneration shall be due after completion of the order unless advance payment has been expressly agreed. The Contractor shall accordingly submit an invoice after completion of the order stating a due date.
Waiting and lay days shall be remunerated by the Customer in the same way as sailing days. The same shall apply to locking times.
The days of embarkation and disembarkation shall be remunerated as full days unless expressly agreed otherwise.
10. The Customer shall also pay for the days and reimburse the expenses additionally incurred by the Contractor due to pandemics or epidemics.
The contracting parties understand a pandemic to mean the spread of an infectious disease across countries and continents. The WHO pandemic alert level 6 shall be decisive. The contracting parties shall understand an epidemic to mean the declaration of an epidemic situation of national scope (Section 5 (1) of the German Law on Prevention and Control of Infectious Diseases in Humans – IfSG). The date of the declaration of the pandemic or epidemic shall be decisive.
Included in the remuneration and reimbursement obligation are, in particular, quarantine days, times for health tests or entry or exit delays due to border closures as well as costs for health tests or overnight stays insofar as these necessarily arise during or directly following an assignment by the Customer.
During a pandemic or epidemic, the Customer shall be obliged to take all necessary and/or customary precautions affecting the health protection of the Contractor or the employee provided by him and to bear the costs thereof. In particular, the Customer shall be obliged to provide the Contractor or the employee provided by him with protective and hygienic articles, such as mouth/nose protection and disinfectants, sufficiently and free of charge.
11. The Customer shall also reimburse the Contractor for the costs of travel to and from the place of deployment (pier).
The Contractor or the employee provided by him shall be entitled to use the following means of transport:
– 1st or 2nd class trains at his discretion;
– taxis or other cars for journeys from the Contractor’s registered office to the railway station and vice versa at his discretion;
– taxis for journeys from the railway station to the pier and vice versa.
The costs for train and taxi journeys shall be reimbursed in the proven amount (invoices). Travel costs with another car shall be reimbursed at the respective legally permissible flat rates.
12. The Customer may – without prejudice to the prerequisites of a statutory right of withdrawal – cancel the contract or reduce the scope of the order before commencement of the agreed service. The cancellation or the reduction of the order must be declared to the Contractor in writing. If the Customer withdraws from the contract, the Contractor may demand reasonable compensation from the Customer for the contract-related arrangements made and expenses incurred to date, including loss of profit. Usually saved expenses on the part of the Contractor shall be taken into account when calculating the compensation.
The cancellation fees to be paid in the event of a cancellation or postponement of the commencement of service or a reduction in the scope of the order are as follows:
– up to 14 days before the originally agreed commencement of service: EUR 0.00;
– from the 13th day until the 7th day before the originally agreed commencement of service: 25 % of the agreed daily fee for each day booked;
– from the 6th day until the 3rd day before the originally agreed commencement of service: 50 % of the agreed daily fee for each day booked;
– from the 2nd day before the originally agreed commencement of service until the day of the originally agreed commencement of service: 75 % of the agreed daily fee for each day booked;
from the day of the originally agreed commencement of service,
97 % of the agreed daily fee for each day booked.
13. The Customer may – unless other orders of the Contractor conflict with this – postpone the commencement of the contractually agreed service after conclusion of the contract. The Customer shall notify the Contractor of the wish to postpone the commencement of service. The Contractor undertakes to examine the Customer’s request in this respect promptly and favourably in the interest of the Customer. The Contractor shall inform the Customer of the result of the examination as soon as possible. If the commencement of service is postponed by mutual agreement, the Customer shall be obliged to provide the Contractor with reasonable compensation for the contract-related arrangements made and expenses incurred by the Contractor to date, including the loss of profit due to the postponement. Usually saved expenses on the part of the Contractor shall be taken into account when calculating the compensation. The compensation lump sums to be paid are as follows:
– up to 14 days before the originally agreed commencement of service: EUR 0.00;
– from the 13th day to the 7th day before the originally agreed commencement of service: 25 % of the agreed daily fee for each day postponed;
– from the 6th day to the 3rd day before the originally agreed commencement of service: 50 % of the agreed daily fee for each day postponed;
– from the 2nd day before the originally agreed commencement of service until the day of the originally agreed commencement of service: 75 % of the agreed daily fee for each day postponed;
– from the day of the originally agreed commencement of service, 97 % of the agreed daily fee for each day booked.
A temporal reduction of the order after the commencement of the agreed service shall only be possible if the Contractor expressly agrees to the reduction. If the contracting parties agree on such a reduction, the Contractor or the employee provided by him can decide whether he remains on site or travels home and arrives again to provide the further contractual service. If the Contractor or the employee provided by him decides to travel home and then travels back to the place of performance of the contractual service, the travel costs incurred shall be borne by the Customer. The Contractor shall provide evidence of the travel expenses.
14. The employee provided by him shall be granted free overnight accommodation in an appropriate manner together with appropriate catering on board. If this does not happen or is not possible, the vessel must be moored overnight in reasonable proximity to a place where the skipper and/or pilot can find adequate overnight accommodation. The Customer shall bear the costs of the overnight accommodation and meals as well as any travel costs to the overnight accommodation.
Furthermore, the Customer shall be obliged to provide the Contractor or the employee provided by him with sufficient hygiene articles (soap, paper towels, toilet paper) free of charge during the entire travel period.
15. In the event of dangers arising from the weather situation, e.g. storm, thunderstorm, hail, fog, etc., the Contractor or the employee provided by him shall be entitled to cancel or interrupt the voyage at any time. If a storm warning is issued, the Contractor or the employee provided by him shall be entitled to immediately approach the next port or, at the discretion of the Contractor or the employee provided by him, a suitable berth.
If a storm warning is issued, it shall be the sole decision of the Contractor or the employee provided by him whether the voyage is cancelled, postponed to another date or terminated in agreement with the Customer.
The Contractor or the employee provided by him shall reserve the right to terminate the order – even during the voyage – if circumstances are ascertained or subsequently arise which call into question the safe performance of the voyage, such as excessive vessel loading with regard
to water levels or other circumstances affecting free navigation in the route to be travelled through or serious defects in the vessel or its equipment. In such cases, the Customer shall not be entitled to any claims for damages against the Contractor or the employee provided by him.
Unless otherwise stipulated in these General Terms and Conditions, the Contractor shall reserve the right to invoice the full remuneration in the event of cancellation or termination of the voyage, as long as the cancellation or termination is not caused by reasons that lie in the sphere of the Contractor or in the person of the employee provided by him or for which the Contractor is responsible.
16. If the Contractor or the employee provided by him cannot reach the place of embarkation in time due to a circumstance beyond his control, or if the employee is not available for the same reasons before the commencement of or during the voyage, this shall not give rise to any liability for damages on the part of the Contractor to whomsoever.
17. The Contractor or the employee provided by him shall be obliged to inform the shipowner if parts of the crew or the crew as a whole act against his will and/or advice. If parts of the crew or the crew as a whole act against the will and/or advice of the Contractor or the employee provided by him, the Contractor or the employee provided by him shall have the right to terminate the voyage immediately and to refuse to continue the voyage.
18. The entire crew of the vessel shall conduct themselves properly, in particular the legally permitted blood alcohol limits shall not be exceeded during the vessel’s operation. Furthermore, the rules of conduct prescribed by the shipowner and/or the shipping company shall to be strictly observed. In the event of violations of the aforementioned regulations, the vessel shall regularly be deemed to be unmanned. The Customer shall indemnify the Contractor and its employees against liability in this respect.
19. The Contractor or the employee provided by him shall be liable in accordance with the statutory provisions for damages of the Customer that were caused intentionally or by gross negligence, that are the consequence of the non-existence of a guaranteed quality of the object of performance, that are the consequence of culpable injury to health, body or life or for which liability is provided for under the Product Liability Act.
In the event of a breach of material contractual obligations (so-called cardinal obligations) due to simple negligence, liability – insofar as the damage does not affect life, limb or health or a promised guarantee – shall be limited to such damage as must typically and foreseeably be expected to occur within the scope of the provision of services such as the respective contractual services. Cardinal obligations shall be those contractual obligations the fulfilment of which enables the proper performance of the contract in the first place and the observance of which the contractual partner may regularly rely on and the breach of which endangers the achievement of the purpose of the contract on the other side.
In all other respects, liability of both the Contractor or the employee provided by him and its vicarious agents shall be excluded irrespective of the legal grounds.
The Customer undertakes to maintain a craft insurance which also includes the liability of the Contractor and its employees.
20. The Contractor has sold and assigned all receivables within the framework of a factoring agreement. All payments shall be made with debt-discharging effect exclusively to the factoring company named in the invoice.
21. Offsetting against counterclaims of the Customer shall only be permitted if and to the extent that the counterclaim is undisputed or has been legally established.
22. The law of the Federal Republic of Germany shall apply exclusively. Bayreuth shall be the place of jurisdiction for disputes arising from or in connection with this contract provided that the Customer is a merchant, a legal entity, a legal entity under public law or public law special fund or has no place of jurisdiction in Germany. The Contractor shall be entitled to bring an action against the Customer at the court having jurisdiction for the Customer’s registered office.
II. Special Terms and Conditions for Pilots
The pilot provided by the Contractor is a nautical advisor to the skipper but does not navigate the vessel himself. The pilot provided by the Contractor shall assist the skipper in navigating the vessel, draw the skipper’s attention to all relevant peculiarities of the route to be travelled through and recommend to the skipper any measures to be taken.
Dated: 04 February 2021