CONTRACT FOR THE CARRIAGE OF PASSENGERS BY SEA, FOR THE COMPANY LAS PERLAS FERRY S.A.
ELSON MESQUITA DE ARAUJO JUNIOR, male, national of the Federative Republic Of Brazil, of legal age and with legal capacity to contract rights and obligations, bearer of the Passport N° FCO 527 16, married of civil status, and administrator of profession, who acts as representative specially empowered for purposes of the present act, of Las Perlas Ferry S.A., Sociedad Anónima corporation constituted according to the laws of the Republic Of Panama, and registered at File N° 755296, Document N? 2091928, of the Mercantile Section of the Public Registry of the Republic Of Panama, specially empowered for purposes of the rpesent act by means of Public Deed N° 10588 of 26-Apr-12 of the Tenth Notary of the First Notary Circuit of the Province of Panama, District of Panama, head of the Notary Circuit, registered at File N° 755296, Document N? 2171496, of the Mercantile Section of the Public Registry of the Republic Of Panama, which is attached to the present contract as integral part of it, and who hereinafter and for purposes of the present contract shall be referred as “The Carrier”.
As per information recorded at the Boarding Passage, who acts on his own behalf and representation, and who hereinafter and for purposes of the present contract shall be referred as “the passenger”.
Both, have jointly convened to carry out the present contract, according to the following Preliminary Declarations, Considerations and Clauses:
The Carrier declares to be a company dedicated to the business of carriage of passengers and cargo by sea, and other associated activities.
The Passenger, on its part, declares to be interested in hiring the services of The Carrier in accordance with the terms of the present agreement.
In lieu of the abovementioned Preliminary Declarations, the parties hereby agree to formalize the present contract, according to the following Clauses:
FIRST CLAUSE: OBJECT. By means of the present agreement, The Carrier is bound to provide service of carriage by sea to The Passenger, and to transport The Passenger in accordance to the carriage plan or package chosen among the ones listed in the website for The Carrier (http://www.ferrylasperlas.com/), in a healthy and safe fashion, in the conditions stipulated in the corresponding Boarding Passage, and in exchange of payment of the fare established in the Third Clause of the present agreement.
SECOND CLAUSE: THE PASSENGER. The parties of the present agreement convene and accept that any and all person transported from one place to another, or whose baggage, as defined in Clause Sixth of the present agreement, is transported, in both cases using the services of The Carrier, said persons and baggage shall be subjected to the terms of the present agreement.
THIRD CLAUSE: FARE. The consideration that The Passenger shall pay The Carrier for the service established in the First Clause, shall be the sum of money established in the boarding passage, pursuant to the fares and rates shown in the website for The Carrier (http://www.ferrylasperlas.com/); sum which shall be paid in advance (prior to the execution of the carriage), for purposes of reserving and conveying the carriage of The Passenger.
In any case, the parties agree and accept that the aforesaid sum in no case shall include any other service, whether prior to, during or after carriage by sea, such as telephone calls, medical treatment, land or air transportation, gratuities, hotels, tours of any kind, etc.
FOURTH CLAUSE: OBLIGATIONS FOR THE CARRIER.
FIFTH CLAUSE: OBLIGATIONS OF THE PASSENGER: Independently of whatever may have been established in the rest of the present agreement, The Passenger is hereby bound to the following obligations:
SIXTH CLAUSE: BAGGAGE. The parties convene and accept that for all purposes of this agreement, it shall be understood as baggage all types of containers or suitcases, trunks, bags, bundles, and any and all property, effects or goods carried by The Passenger, or that are accepted for storage by The Carrier, whether they are placed or not inside the aforementioned baggage all types of containers or suitcases, trunks, bags and bundles (hereinafter referred as “THE BAGGAGE”).
And specifically for purposes of the service that The Carrier provides in accordance with the present agreement, there shall be two (2) types of baggage: The checked and billed baggage or cargo, and hand baggage or luggage. Checked baggageis transportedinthe cargo hold, whileluggageistaken by and with The Passenger, withinthe main area of the vessel.
To take on board as luggage, The Passanger must use bagsor pouches, having care with their size, becausethesumofthedimensions(length,widthandheight) of the bag cannotbe over120 cm. Said bagsand pouches must be placedinthe frame under theseat, withinthemain chamber of thevessel, and thereforecannotbe over the previously established dimension.
Weight limitsfor luggageof The Passenger must also be taken into account. The Passenger is entitled tocarry up to9 kilosin theluggage.Above thatshall beconsideredas "checked and billed baggage or cargo", which shall be charged in accordance with the overweight,and even so, in this case there is maximum limit of 23kilosper passenger. For the transportation of this "checked and billed baggage", The Passenger shall be charged with and additional charge of ONE U.S. DOLLAR WITH 00/100 (U.S. $1.00) per KILOGRAN additional Bag.
In any case, regardless of the previous, The Passenger is allowed to check-in only the wearing apparel and personal effects reasonably necessary for the intended passage.
Polystyrene packaging, coolers, drinks and fish, can only be taken as"checked and billed baggage orcargo". Computers, cell phones, money, documentsandother valuables, must be taken with The Passenger as luggage.
If The Baggageis not properly packagedin accordance with theabove rules,The Carriershall be empowered torefuse its transportation.
Specifically for purposes of the dispatch ofchecked and billed baggage or cargo, The Passengermust be present at the depart terminal of The Carrier, with a minimum ofone (1) hour before thedeparturetimeof the vessel.
The Carrier, with no liability to his part for loss, damage or delay, may open or order the opening of The Baggage, and examine, remove, re-stack or, in any other way, manipulate and transport all of the afore said to any place or places, if it is so ordered by any authority, or directly, at the sole discretion of The Carrier, if deemed necessary. The aforesaid revision, manipulation and transport shall be carried out at the exclusive expense and risk of The Passenger. The Passenger convenes and accepts that any item not permitted on board will be removed from the vessel.
SEVENTH CLAUSE: PETS. Petssuch as dogsand cats can be carried, but not inthe passenger cabin. Unless it is the case ofa guide orhearing dog, that isaccompanying a passengerwithvisual or hearing impairments, dependent solely on the animal.
Regardless of the previous, only 2 pets per trip are allowed on board. Therefore, The Passenger must confirm to The Carrier at least 48 hours prior to the carriage, so that availability for transportation of the pet can be verified.
So that The Passenger can travel with his/her pet, the animal must be over 4 months old of age and be accommodated in aKennel(container), which can be purchased atpet stores or shops. Thekennelmust have enough spacefor the animalto make afull circle arounditself, be of a firm material, softand resistantto leakageandensure the safety of the animal duringthe trip. The package mustbe labeled withname,address and telephone numberof The Passenger.
It isimportant to rememberthat the dimensionsof thekennelcannot exceed86 cm(height) per (x) 122 cm(width) per (x)135 cm(length).
EIGHTH CLAUSE: FOOD AND PERISHABLES. All perishablesand food in general, such asfish, shellfish andother seafood, fresh or frozen, must be placed by The Passenger inleak-proof, accidentalopening-proofand smell-proofcontainers.
If The Passenger does carry with him/her such effects, The Passenger is hereby bound to put themina plastic bagthat’s leak-proof. Afterwards,the bagmustbe placed inside apolystyrenecontainerorcooleralsocoated with athick plasticbag.
In any case that The Passenger does carry with him/her such perishables, food, polystyrenecontainersorcoolers and drinks,The Passenger shall pay The Carrier an additional charge of ONE U.S. DOLLAR (U.S. $1.00) per KILOGRAN packaging, regardless of the weight of The Baggage.
NINTH CLAUSE: PROHIBITIONS WITH REGARDS TO BAGGAGE. The parties convene and accept that it will not be permitted on board the vessel any tools of trade, household goods, fireworks, animals, weapons, fragile items, artwork, jewelry, cash, documents, securities and negotiable instruments, or other valuables or any other items or substances prohibited by applicable law or policy of The Carrier. By these means, The Passenger hereby warrants that he/she has not brought any of these items onboard the vessel, and hereby releases and holds harmless The Carrier from all liability for loss of, or damage to, these items.
Tenth clause: LIMITATIONS OF LIABILITY WITH REGARDS TO THE BAGGAGE. The parties convene and accept that The Carrier shall not be liable, under any circumstances, for loss of, or damage to, cash, perishable items, eyewear, dental hardware, auditory equipment, wheelchairs or scooters, crutches, prosthetics, medications, photographic equipment, jewelry, irreplaceable items, memorabilia, antiques, personal or business documents, mobile phones, tablets, computers (hardware or software), electronic devices, negotiable instruments, or similar items. The Passenger, therefore, by these means waives any and all claim, judicial or extra-judicial, present or future, against The Carrier, for the loss or damage over these articles.
The parties convene and accept that The Carrier shall not be considered liable for damage due to inherent vice or misuse of The Baggage, or normal wear or tear. i.e. Scratches, dents, stains, dirt, tears, broken zippers, damage to the wheels, frame, protruding parts, or similar conditions). The Passenger, therefore, by these means waives any and all claim, judicial or extra-judicial, present or future, against The Carrier, for the loss or damage over these articles.
The parties convene and accept that The Carrier is not responsible for delays in the delivery of The Baggage or its contents including, without limitation, perishable items, medications, medical equipment, negotiable instruments, private or commercial documents, etc. The Passenger, therefore, by these means waives any and all claim, judicial or extra-judicial, present or future, against The Carrier, for the loss or damage over these articles.
The parties convene and accept, and The Passenger by these very means declares to understand so, that all disclaimers and limitations of liability contained herein shall apply to all valuables stored or accepted for storage by The Carrier. The Passenger understands and agrees that the Carrier does not accept responsibility or liability for the loss of, or damage to, any item left in the cabins.
The parties convene and accept that all lost or damaged items and/or baggage must be reported to The Carrier at the disembarkation port immediately after arrival. The Passenger understands and agrees that unless the loss or damage is reported in this manner, The Carrier shall not be responsible for any alleged loss or damage.
The parties convene and accept, and The Passenger by these very means declares to understand so, that unless there is proved negligence on the part of The Carrier, the latter is not liable for any loss or damage to The Baggage. The parties convene and accept, and The Passenger by these very means declares to understand so, that the total value of The Baggage does not exceed FIVE HUNDRED U.S. DOLLARS WITH 00/100 (U.S. $500.00). Furthermore, the parties agree that any liability of The Carrier or the vessel for any loss or damage in connection with The Baggage shall never exceed FIVE HUNDRED U.S. DOLLARS WITH 00/100 (U.S. $500.00).
If the total value of The Baggage exceeds FIVE HUNDRED U.S. DOLLARS WITH 00/100 (U.S. $500.00), The Passenger has the obligation to declare so, in writing, and pay The Carrier 25% of the excess of FIVE HUNDRED U.S. DOLLARS WITH 00/100 (U.S. $500.00). If The Passenger made such declaration and paid The Carrier the stipulated amount, the liability of The Carrier, if any, shall be limited to the actual damage sustained or ONE THOUSAND U.S. DOLLARS WITH 00/100 (U.S. $1,000.00), whichever is less.
The Baggage of dangerous nature absolutely under no circumstance shall be loaded or put on board the vessel. The Passenger is hereby bound to compensate The Carrier in lieu of any and all liabilities or consequences that may arise from the breach of the present provision. It shall be understood as dangerous baggage, among others, radioactive substances and materials, compressed gases, corrosive substances and materials, explosives, fire arms, munitions, fireworks, magnetic substances, irritating substances and illegal drugs.
ELEVENTH CLAUSE: BOARDING PASSAGE. The boarding passage is the document proving of the celebration of the contract for the carriage of passengers by sea. It has a validity of one (1) year starting from the scheduled date for the carriage; it’s personal and not transferrable; and in case of its loss there shall not be reimbursement of its cost, nor issuance of a new ticket.
The parties agree and accept that use of the ticket is evidence that the present agreement was read, that its terms were accepted and that said terms are applicable to both parties, whether the Agreement is signed or not. For these purposes, the present agreement shall be available for its consult on the website for The Carrier (http://www.ferrylasperlas.com/), in the kiosk of The Carrier located at the passenger boarding terminal, and at the office of The Carrier.
At the moment of issuing the boarding passage, it shall bear the following information:
TWELFTH CLAUSE: PASSENGER ARRIVAL FOR THE PROVISION OF THE SERVICE. The Passenger shall arrive to the respective passenger boarding terminal, located at the embarking zone of the Trump Ocean Club Panama, at least thirty (30) minutes before the carriage time indicated in the boarding passage.
THIRTEENTH CLAUSE: TRANSFER OF THE BOARDING PASSAGE. The boarding passage is of a nominal nature; that means, issued in the name of The Passenger, and therefore, not transferrable.
FOURTEENTH CLAUSE: PROHIBITIONS ON BOARD THE VESSEL. Independently of whatever may have been established in the rest of the present agreement, on board the vessel it is prohibited:
The parties convene and accept that The Passenger shall be liable for any and all damage that may come to The Carrier for breach of the obligations contained in the present clause on the part of The Passenger; being also bound to pay in favour of The Carrier a sum equal to thrice the amount of the damage caused by said breach, in concept of penalty for the breach of his/her obligation, plus whatever compensation for damages that may be in place according to applicable law.
FIFTEENTH CLAUSE: regarding The Passenger’s physical condition. The Passenger warrants that he/she, and those under his/her responsibility and supervision, is (are) fit for the intended carriage, and that he/she has brought onboard all medicines, medical equipment and instruments necessary for his/her health. The Passenger understands that due to the nature of the carriage by sea medical care onboard is limited and may be delayed.
Medical expenses and treatment are not included in the Fare.
SIXTEENTH CLAUSE: PERSONS WITH SPECIAL NEEDS ON BOARD. The Carrier offers assistance to passengers with special needs for mental health problems, for purposes of embarking, as well as disembarking. If The Passenger is accompanied by a person with mental disability, he/she can request special assistance at the terminal of The Carrier or directly with The Carrier.
If The Passenger depends on the help of others and cannot on his/her own secure his/her wellbeing and safety, he/she must have a medical authorization to travel or be accompanied by someone capable of helping him/her.
The Carrier offers access for wheel chairs to The Passenger with physical disability or with limited mobility. This, so that he/she can have a more easy and pleasant trip.
In any case that a person with disability buys a ticket, after the purchase he/she shall have the obligation to visit the Contact Us Section on the website for The Carrier (http://www.ferrylasperlas.com/), and send a message or mail to The Carrier for purposes of requesting the special assistance. Not doing so, may result in the likelihood that The Carrier may not be able to provide the aforementioned special assistance.
As long as The Passenger proceeds in accordance with the previous paragraph, once The Passenger reaches the passenger boarding terminal, located at the embarking zone of the Trump Ocean Club Panama, and carries out his/her check-in at the kiosk for The Carrier, the representatives for The Carrier shall be ready to help.
For purposes of the assistance offered by The Carrier pursuant to the terms of the present clause, The Passenger hereby declares to know that said assistance is not medical, but solely for purposes of embarking, disembarking and moving on board the vessel, and that in any case, in the event of any accident or injury where there is the intervention of the aforesaid assistance of The Carrier, The Passenger hereby releases from any and all liability and waives any type of claim against The Carrier for said accident or injury; given that it is clear that the service contracted from and for which The Carrier gets paid, is the one established in the First Clause of the present contract, not assistance for handicap or disabled people.
SEVENTEENTH CLAUSE: CANCELLATIONS AND RE-SCHEDULING. The parties agree and accept that The Carrier may cancel, postpone or deviate a schedule sailing without prior notice and for any reason. The Carrier will not be liable for any expenses, damages or claims by The Passenger caused by the cancelation, deviation or postponement of the scheduled sailing. In the event the scheduled sailing is cancelled, The Carrier will returned the fare paid by The Passenger, without any other compensation.
The parties agree and accept that The Passenger may cancel or re-schedule the agreed carriage according to the following cancelation policy:
In any case that the reservation made by The Passenger is cancelled or re-scheduled, The Passenger shall have a credit in his/her favour, to be used in other purchases; includind promotional rates, excess in The Baggage and completion of rates.
Every ticket has a validity of one year, starting from the moment of its purchase. As long as The Carrier is notified and the reservation is left open for use of the credit up until the term of one year; and as long as The Passenger buys the ticket through the website for The Carrier (http://www.ferrylasperlas.com/).
If The Passenger does not show up at the scheduled boarding time, the vessel will depart without him/her and he/she will not be entitled to any refund, damages or claims.
If The Passenger disembarks voluntarily, he/she is not entitled to any refund, damages or claims.
EIGHTEENTH CLAUSE: LIMITATION OF LIABILITY FOR PURPOSES OF PERSONAL INJURY OR DEATH. The parties agree to incorporate the text of the Athens Convention Relating To The Carriage Of Passengers And Their Luggage By Sea, of 1974, as well as the Protocol To The Athens Convention Relating To The Carriage Of Passengers And Their Luggage By Sea, of 1976 (hereinafter “THE ATHENS CONVENTION”) as it relates to limitation of liability of The Carrier in the event of personal injury or death onboard the vessel and/or during the execution of this Agreement, as follows:
Additionally, The Carrier may use any defense or limitation applicable by law.
The Carrier shall not be liable for any claim, damage, illness, accident, injury or death caused by act of God, Act of War, Act of Public Enemies, Arrest or Restrain of Princess, Riots or Civil commotions, Strikes, quarantine Restrictions, attempting to save life at sea, perils of the sea, fire, thefts, or any other cause arising without the actual fault or privity of The Carrier.
NINETEENTH CLAUSE: AUTONOMY AND INDEPENDENCE OF THE CARRIER WITH RELATION TO TRUMP OCEAN CLUB PANAMA. The Passenger hereby declares to acknowledge that there is no relation between The Carrier and Trump Ocean Club Panama.
And in any case, The Passenger hereby declares to waive any and all claim of any kind against Trump Ocean Club Panama, arising from or in relation to the provision of the services object of the present agreement or the execution of the present agreement.
TWENTIETH CLAUSE: PENALTY CLAUSE. Without prejudice of what’s established in the rest of the present contract, the parties hereto agree that in case of breach by The Passenger of any and all of the obligations derived from the present agreement, The Passenger shall be bound top pay in favor of The Carrier a sum equal to thrice the amount of the damage caused by said breach, in concept of penalty for the breach of his/her obligation, plus whatever compensation for damages that may be in place according to applicable law.
TWENTY FIRST CLAUSE: COMMUNICATIONS BETWEEN PARTIES. The parties of the present agreement hereby convene that any and all communications, notifications, payments and/or notices among them, shall be addressed and carried out exclusively as detailed below; meaning, any and all communications, notifications, payments and/or notices among them that is not carried out as detailed below shall be deemed null, with no effect whatsoever and shall be understood as not carried out:
|Trump Ocean Club Panamá - PB - local S04 - Punta Pacifica – Ciudad De Panamá.|
|In care of:||Las Perlas Ferry S.A.|
|Telephone number(s):||(+507) 6200-0080|
As per information recorded at the boarding passage.
TWENTY SECOND CLAUSE: APPLICABLE Legislation AND FORUM. The parties hereto agree that the present agreement shall be governed and construed according to the laws of the Republic Of Panama, and that any conflict or controversy caused by or related to the interpretation, application, execution and/or termination of the present contract shall be submitted to arbitration de jure before the Conciliation and Arbitration Centre of the Chamber of Commerce, Industry and Agriculture of the Republic of Panama, and pursuant to its rules of proceeding. Panamanian legislation shall be the applicable one in such conflict or controversy.
Once the Arbitration Court is installed, it shall dictate within a three (3) months term, the duly justified decision or finding. The decision so dictated, shall be of a mandatory and non-appealable character. For these purposes, the Arbitrators shall be fully authorized to order the execution of precautionary measures.
TWENTY THIRD CLAUSE: PERFECT AND COMPLETE FULFILLMENT OF THE OBLIGATIONS SET FORTH IN THE PRESENT AGREEMENT. The fact that one of the parties hereto allows one or more times for another one to not fulfill its obligations, or that it fulfills them in a non-perfect fashion, or in any other fashion than the one agreed upon, or does not insist in the fulfillment of said obligations, or does not exercises in a timely fashion its corresponding contractual or legal rights, this shall not mean or be understood as any type of modification of the present agreement, nor will it prevent in any case that in the future said party claims the perfect and complete fulfillment of the obligations of the other one, or exercises its contractual, legal or conventional rights.
TWENTY FOURTH CLAUSE: AUTONOMOUS VALIDITY OF THE PROVISIONS OF THE PRESENT CONTRACT. In any case that, for any reason, one or more of the provisions of the present contract may be considered null, illegal or non-executable in any sense, said nullity, illegality or impossibility to execute will not affect the validity of the rest of the provisions of the present contract; and for this purpose, it will be understood that said nullity, illegality or impossibility to execute does not constitute part of the present agreement.
TWENTY FIFTH CLAUSE: MODIFICATIONS to the present covenant. The present contract shall not be modifiable in any way, unless said modifications are expressly consented upon by the parties hereto, in writing.
TWENTY SIXTH CLAUSE: TITLES OR HEADINGS OF THE CLAUSES OF THE PRESENT CONTRACT. The legends that appear as titles or headings to the terms of the present contract have been inserted for the convenience and easy reference of the reader, hence they have no relevance for purposes of the interpretation of the content of the previously referred terms.
TWENTY SEVENTH CLAUSE: LANGUAGES. The present contract is executed both, in English and Castilian Spanish. The parties agree that, in case of any conflict or controversy caused by or related to the meaning and/or interpretation of both texts, the Castilian Spanish text will prevail.
TWENTY EIGHTH CLAUSE: ORIGINAL VERSIONS OF THE PRESENT CONTRACT. The present contract shall be available for its consult on the website for The Carrier (http://www.ferrylasperlas.com/), in the kiosk of The Carrier located at the passenger boarding terminal, and at the office of The Carrier, in both languages, English and Castilian Spanish. And for purposes of this contract, the aforesaid exposures shall be understood as original versions of the present agreement.
For purposes of certifying the date of signature of the contract, the prove provided by The Carrier with regards to the date in which The Passenger bought the Boarding Passage, whatever this may be, shall do; as well as the Boarding Passage, which shall contain the date of issuance of the ticket, according to the terms of the Eleventh Clause.
TWENTY NINTH CLAUSE: acceptance of the terms of the present agreement by all parties. The parties of the present agreement accept any and all of the terms herein contained, reason for which from the moment of its signing the parties shall be deemed bound by it according to its terms and conditions.
CERTIFYING THE PREVIOUSLY CONVENED, The Carrier hereunder signs the present contract, initializing it in the rest of its pages, today, fifteen the April (04), two thousand and thirteen (2013), at Panama City, Republic Of Panama.
|FOR LAS PERLAS FERRY S.A.:|| || |
| || ||ELSON MESQUITA DE ARAUJO JUNIOR |
Passport N° FCO 527 16
CERTIFYING THE PREVIOUSLY CONVENED, The Passenger hereby declares: