Garibaldi Charters – Passenger Contract

THIS IS A CONTRACT. THE PASSENGER UNDERSTANDS THAT THESE TERMS AND CONDITIONS WILL APPLY ON EACH TRIP UNDERTAKEN DURING YEAR THE YEAR INDICATED ON THE SIGNATURE PAGE.  THE FOLLOWING TERMS AND CONDITIONS ARE THE ENTIRE AGREEMENT BETWEEN GARIBALDI CHARTERS (GC), AN OREGON SOLE PROPRIETORSHIP, AND THE PASSENGER. PLEASE READ THEM CAREFULLY. IN ACCEPTING THIS CONTRACT, THE PASSENGER AGREES THAT THE TRIP IS SUBJECT TO ALL OF THIS CONTRACT’S TERMS AND CONDITIONS.

IMPORTANT NOTICE: THE PASSENGER’S ATTENTION IS PARTICULARLY DIRECTED TO PARAGRAPH 11 OF THIS CONTRACT, WHICH CONTAINS LIMITATIONS OF LIABILITY AND TIME LIMITS FOR SUITS AND CLAIMS. THIS CONTRACT REQUIRES THE USE OF ARBITRATION FOR CERTAIN DISPUTES AND WAIVES ANY RIGHT TO TRIAL BY JURY TO RESOLVE THOSE DISPUTES. PARAGRAPH 11 AND ALL OTHER TERMS AND CONDITIONS AFFECT IMPORTANT LEGAL RIGHTS, AND THE PASSENGER IS ADVISED TO READ THEM CAREFULLY. WE RECOMMEND YOU DOWNLOAD A COPY OF THE CONTRACT FROM THE GC WEBSITE (https://garibaldicharters.com/) FOR FUTURE REFERENCE.

1. DEFINITIONS: The term “Passenger” includes every person named as a participant in your group; “Passenger” shall include the plural and the use of the masculine shall include the feminine and vice versa; The term “Vessel” includes the Norwester, D&D, Waterskipper, and Alaska Sunrise or any Vessel or any other means of conveyance controlled by GC, which is solely responsible for the maintenance, equipage and operation of said vessels; The term “Captain” means the Vessel master.
2. TRIP FARE: The Trip Fare includes all normal charter fishing vessel services and facilities. The vessel will supply pole, tackle, and bait. GC does not promise the fish will be biting during your trip. The Trip Fare does not include fishing license or gratuities. All advertised passenger fares are subject to change at any time.
3. NON-TRANSFERABILITY / BINDING EFFECT: This Contract is valid only for the Agreed Itinerary. It is not transferable to another itinerary. The Terms and Conditions on this Contract are binding on, and confer benefits to, the Passenger and his/her heirs, successors and assigns.
4. WEATHER: The duration and range of all fishing trips is based on weather and sea conditions. In inclement weather, the location, range, and/or target species of the trip may be modified at the sole discretion of the Captain. GC does not guarantee requests for specific captains and/or vessels by clients. GC reserves the right to switch vessels and/or captains for a confirmed charter for any reason we deem necessary including mechanical failure, injury, illness, and/or scheduling needs.
5. SAFETY: Passengers acknowledge that the weather can change quickly. Passenger acknowledges that he/she received safety warnings from the Captain at the commencement of the trip regarding the motion of boat, potentially rough conditions during bar crossing and on ocean, motion sickness, the danger of handling poles and hooks, the danger of slippery decks, prohibition on smoking except in designated areas, no pets, and what to do in event of emergency. Passengers acknowledge they will be in relatively close quarters with their party, the Vessel crew, and others on this Trip and accept these circumstances in light of current social distancing guidelines. GC cannot and does not guarantee all other Passengers and / or crew are not carriers of COVID-19 or any other infectious disease.
6. INABILITY TO ACCOMMODATE CERTAIN PASSENGERS: All children must be accompanied by a parent or guardian. We will try to reasonably accommodate passengers with special needs. To schedule such accommodation, Passengers agree to contact the GC office at least one week before the scheduled trip. Paid Passengers whose needs cannot be reasonably accommodated will receive a refund.
7. CANCELLATION PRIOR TO EMBARKATION: Passenger fare will be refunded upon Passengers’ cancellation if and only if the Passenger cancels at least 7 days prior to the vessel’s scheduled departure. Late cancellation or early disembarkation of the Passenger for any reason, including pursuant to any provision of this Contract, shall be without refund, compensation, or liability on the part of GC whatsoever.
8. PERSONAL EFFECTS: Each Passenger may bring aboard the Vessel a reasonable amount of personal effects such as a backpack or handbag without charge. GC shall not be responsible for the loss of or damage to such items. Under no circumstances may dangerous articles such as firearms, explosives, oxygen (without prior approval) or combustible substances be taken aboard the Vessel. GC reserves the right to refuse to permit any Passenger to take on board the Vessel any item the Captain deems inappropriate. Under no circumstances may any illegal controlled substances be brought on board the Vessel. Each Passenger understands and agrees that GC has a zero tolerance policy for illegal activity and shall report such activity to the appropriate authorities.
9. ITINERARY / RIGHT TO CHANGE / DETENTION: GC reserves the right at its sole option and discretion and that of the Captain of the Vessel, at any time and without prior notice and without liability for damages or refund of any kind, to deviate from the Vessel’s advertised or ordinary itinerary or route, to delay, advance or cancel any sailing, to omit or change ports of call, to arrange for substantially equivalent transportation by another vessel and / or by other means of transportation, to cause the Passenger to disembark from Vessel temporarily or permanently, to tow or to be towed or assist other vessels or to perform any similar act which, in its sole judgment and discretion, is justified for any reason. GC may for any reason whatsoever cancel any sailing at any time before departure of the Vessel. In such event, GC‘s only liability will be to refund the Passenger the amount it has received for the Trip fare. GC shall have the right to comply with any orders, recommendations, or directions whatsoever given by any governmental entity or by persons purporting to act with such authority and such compliance shall not be deemed a breach of this Contract entitling the Passenger to assert any claim for liability, compensation or refund.
10. NON-LIABILITY FOR MEDICAL TREATMENT: GC does not employ medical personnel or maintain health care facilities or a pharmacy on the Vessel. GC does not undertake to treat the Passenger medically, to advise the Passenger with respect to medical treatment, or to make referrals to health care providers. It is the responsibility of each Passenger to consider all medical conditions he or she may have and take into consideration the possibility of harsh weather, rough seas, strenuous activity, sea sickness, and the long distance vessels travel away from medical care to determine whether our Trip is suitable for you before booking.
11. CLAIMS AGAINST GC
12. LIABILITY LIMITATIONS:
13. LOSS OF OR DAMAGE TO PROPERTY: The total value of the Passenger personal belongings aboard the Vessel shall be no deemed to exceed the amount of U.S. $200 per Passenger, and GC liability, if any, for loss of or damage to such belongings is limited to a maximum of U.S. $200 per Passenger.
14. OTHER CLAIMS NOT INVOLVING BODILY INJURY OR LOSS OF LIFE. GC is not liable for consequential damages, or non-economic loss, such as emotional distress, mental suffering or psychological injury in connection with property damage or non-bodily injury or loss of life related claims. The limits of GC’s liability for property and non-bodily injury or loss of life related claims, whether arising in tort, contract or breach of warranty, shall not exceed the Trip Fare charged to and paid by the Passenger.
15. CLAIMS INVOLVING BODILY INJURY OR LOSS OF LIFE. The maximum total liability, if any, of GC resulting from Passenger loss of life or injury shall not exceed the amount permitted by law. GC shall not be liable for unintentional infliction of emotional distress, mental suffering, or psychological injury, unless such injury was the result of a physical injury, or risk of physical injury, caused by the negligence or fault of a crew member or manager, agent, master, owner or operator. In addition to all of the restrictions and exemptions from liability provided in this Contract, GC shall have the benefit of all Statutes of the United States of America providing for limitation and exoneration from liability and the procedures provided thereby, including but not limited to Statutes of the United States of America as set forth at 46 USC Sections 30501 through 30509 and 30511; nothing in this Contract is intended to nor shall operate to limit or deprive GC of any such statutory limitation of or exoneration from liability, or of the benefits of any statute or law of any country which might be applicable providing for exoneration from or limitation of liability.
16. Under no circumstances shall GC be liable for consequential, indirect or punitive damages. GC shall not be liable for property damage, bodily injury or loss of life caused by, without limitation, act of God, terrorism, civil commotion, labor trouble, government interference, perils of the sea, fire, theft, or any other cause beyond GC’s reasonable control or any act not shown to be caused by GC’s negligence.
17. NOTICE AND TIME FOR ASSERTING CLAIMS:
18. CLAIMS FOR LOSS OR DAMAGE TO PROPERTY: A written claim for loss of or damages to personal property and an explanation of the bases for the claim, must be submitted to GC before the Passenger leaves the vessel to enable GC to investigate any such loss or damage and to conduct a search for claimed lost property. The Passenger waives and releases his/her right to assert any such claim unless notice is given as provided in paragraph (B)(2) of this section and a demand for arbitration is made within six (6) months of debarkation.
19. OTHER NON-BODILY INJURY OR LOSS OF LIFE RELATED CLAIMS: Notice of intent to file paragraph (B)(1) and all other non-bodily injury or non-loss of life related claims, and an explanation of the bases for the claim, must be submitted to GC in writing as soon as they arise, but in no event later than 90 days following debarkation. The Passenger waives and releases his/her right to assert any such claim unless notice is given as provide in this section and a demand for arbitration is made within six (6) months of debarkation.
20. CLAIMS FOR BODILY INJURY OR LOSS OF LIFE: Any incident resulting in Passenger bodily injury or loss of life must be reported immediately to the Captain. Notice of intent to file a claim for bodily injury or loss of life, and an explanation of the bases for the claim, must be presented to GC in writing within 6 (six) months of incident. The Passenger waives and releases his/her right to assert any claim for bodily injury or loss of life unless notice is given as provided in this section and arbitration is demanded or suit filed in a court of competent jurisdiction within one (1) year from the date of the incident giving rise to the claim. If suit is filed, each party shall bear its own attorneys’ fees and costs, regardless of outcome.
21. ARBITRATION: The exclusive remedy for all claims against GC, disputes and matters whatsoever arising under, in connection with or incident to this Contract, other than claims for loss of life or bodily injury arising from the negligence or fault of GC or its servants, shall be binding arbitration in Tillamook County, Oregon under the Rules of the American Arbitration Assoc., which are deemed to be incorporated herein by reference. In any such proceeding, the costs of arbitration shall be borne equally by the parties, and the parties shall each pay their own attorney’s fees and costs, regardless of outcome.
22. FORUM SELECTION CLAUSE FOR ALL LAWSUITS: Except as provided in paragraph 11.C with regard to claims subject to binding arbitration, it is agreed between the Passenger and GC that all disputes and matters whatsoever arising under, in connection with or incident to this Contract shall be litigated, if at all, in and before the United States District Court for the District of Oregon located in Portland, Oregon, U.S.A. (or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Tillamook County, Oregon, U.S.A.) to the exclusion of the courts of any other state, territory or country. Passenger hereby consents to jurisdiction and waives any venue or other objection that he may have to any such action or proceeding being brought in the applicable court located in Oregon.
23. IN REM PROCEEDINGS: In the event of an in rem proceeding against the Vessel, Passenger hereby irrevocably agrees that the posting of a letter of undertaking from any of GC’s insurers shall constitute an adequate and appropriate form of security for the immediate release of the Vessel in lieu of arrest.
24. FORCE MAJEURE: GC shall not be liable in any way to the Passenger for loss of life, injury, illness, damage, delay or other loss or detriment to person or property or for GC’s failure to commence, perform and/or complete duty owed to the Passenger if such loss of life, injury, illness, damage delay or other loss or detriment to person or property is caused by Act of God, war or warlike operations, terrorist activities, civil commotion, labor difficulties, whether or not GC is party thereto, interference by authorities, requisitioning of the Vessel, political disturbance, inability to secure or failure of supplies, perils of the sea, collision, foundering of the Vessel, fire or any other cause whatsoever beyond the reasonable control of GC.
25. CHOICE OF LAW / LIMITATION OF LIABILITY: This agreement and all other rights and duties of Passengers and of GC will be construed in accordance with the general maritime law of the United States. GC shall be entitled to the maximum protection allowed by law, including any statutory protection as to the amount of damages recoverable. In no event, however, will GC be liable for any damage, loss, injury or loss of life not caused by negligence or fault of GC.
26. INTERPRETATION: Should any provision of this Contract be contrary to or invalid by virtue of the law of any jurisdiction or be so held by a court of competent jurisdiction, such provision shall be deemed to be severed from this Contract and of no force and effect and all remaining provisions herein shall continue to be in full force and effect. The headings of this Contract are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Whenever the context so requires, references to the singular shall include the plural and vice versa.
27. WRITTEN NOTICES: Except as otherwise expressly provided in this Agreement, all written notices required by this Contract must be mailed, postage paid, to Garibaldi Charters, PO Box 556, Garibaldi, OR 97118.
28. SEVERABILITY: Any provision of this Contract that is determined in any jurisdiction to be unenforceable for any reason shall be deemed severed from this Contract in that jurisdiction only and all remaining provisions shall remain in full force and effect.
29. THIS IS A CONTRACT / ENTIRE AGREEMENT: THE PROVISIONS OF THIS CONTRACT REPRESENT THE ENTIRE AGREEMENT AND A BINDING CONTRACT BETWEEN THE PASSENGER AND GC. THE PASSENGER’S BOARDING OF THE VESSEL CONSTITUTES THE PASSENGER’S ACCEPTANCE OF THIS CONTRACT AND CONSENT TO ALL ITS PROVISIONS. THESE PROVISIONS SUPERSEDE ANY ORAL OR WRITTEN REPRESENTATIONS. ANY CHANGE IN THESE PROVISIONS MUST BE IN WRITING AND SIGNED BY THE PRESIDENT OF GC AND MAY REQUIRE A COMMENSURATE INCREASE IN FARE.