TERMS OF CARRIAGE
1) Defined Terms: Here is what the terms in this Passenger Agreement mean:
- “Cruise” means the specific cruise indicated in your ticket.
- “Us”, “We”, “Our” or “Carrier” means or refers to Mariposa Cruise Line Ltd. and for the purposes of the defenses, limitations of liability and rights in this Passenger Agreement only, it also includes the employees, officers, servants and agents of Mariposa Cruise Line Ltd. and the ship on which you have or will travel (the “Ship”), and the Ship’s managers, officers, staff, Master, crewmembers, employees and servants.
- “Carriage” means all times during which the Carrier legally owes a duty of care to passengers to take reasonable steps to ensure their safety and without limiting the generality of the foregoing, includes the period during which the passenger is on board the ship or in the course of embarkation or disembarkation.
- “Convention” means the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 as amended by the Protocol of 1990 and incorporated into the Marine Liability Act.
- “Passenger” refers to any and all persons traveling under the Passenger Agreement, including all of Your guests.
- “Unit of Account” is the special drawing right as defined by the International Monetary Fund and which varies from time to time. (The currency value approximately C$1.846 as of January 26, 2019)
- “Purchaser” refers to the Purchaser of the ticket which constitutes the Passenger Agreement.
- “Refund Amount” refers to the total payments we have received from You for the Cruise.
- “You” or “Your” refers to the Passenger and/or the Purchaser, including all of Your guests.
2) Change in Itinerary/Cancellation: Water travel involves uncertainties not present in land facilities. We may, in our discretion, remain dockside, substitute vessels, change the course or schedule of the Cruise, discontinue the Cruise, or cancel the Cruise for any reason. The cruise route will be determined by the Captain, at his or her sole discretion, for the maximum comfort and safety of the passengers and crew based on known or anticipated weather and water conditions. We shall have no liability arising from any such change of course or schedule, discontinuance, cancellation or other failure to depart from or arrive at any port at the scheduled or announced time. If a Cruise is cancelled before commencement, you will be entitled, as your exclusive remedy, to receive the applicable Refund Amount.
3) Passenger Condition / Guests with Disabilities: We welcome the opportunity to host and assist guests with disabilities wherever and whenever possible on our boats and will do what we can, to the best of our abilities, to assist those persons with disabilities on our boats. Please help us by telling us at the time you book your Cruise or as soon as possible, of any guest needing special assistance or accommodation during the Cruise. Please also let us know if a service animal is contemplated so we can be helpful. We may limit the availability of passage if unable to accomplish an accommodation consistent with passenger safety. Additional information about our accessibility standards can be found at https://mariposacruises.com/about-us/accessibility/.
4) Authority to Refuse Transport and Remove Passengers: We have the right to refuse to transport any Passenger, and to eject any Passenger at any port of call at the Passenger’s expense. If any Passenger shall be ill, injured, act in a disorderly manner, or fail to comply with the Laws and Regulations (as defined in Section 5 below) or any directive established during the Cruise for the general safety and comfort of others aboard the Ship, one of our employees (most likely the Captain or his/her designee) will be the sole reasonable judge of the condition of the Passenger and the appropriate measures to be taken.
5) Compliance with Laws and Regulations, Safety: You and your Passengers agree to observe and obey all Laws and Regulations. “Laws and Regulations” means all requirements of all laws, orders, ordinances and regulations of the federal and provincial authorities, the terms of this Passenger Agreement, and reasonable directives and orders from us and our employees, including the Captain and personnel of the Ship. You shall at all times follow and carry out all lawful directions of the Master and/or crewmembers of the Ship, particularly in relation to (but not limited to) personal safety of yourself, crew or other passengers. You are required at all times to take all reasonable precautions for your own safety and the safety of any person in your care (particularly children). This includes (but is not limited to) using hand and guard rails at all times as provided around the Ship, appropriately restraining children and ensuring that children are accompanied by a responsible adult at all times and paying attention to the safety briefing given by crewmembers at the commencement of voyage. Passengers are advised and required to take particular care in conditions of inclement, rough or heavy weather or as advised by the crew. Neither the Carrier, the Ship nor any crewmember shall be held responsible for any loss or damage (including personal injury) suffered by any person, as a result of breach of that person’s safety noted above), or their failure to comply with Laws and Regulations, or their failure to utilize all safety devices and precautions as provided and/or advised on board the Ship, or caused by any passenger acting in an unreasonable, unnecessary or unsafe manner.
6) Food and Beverages: No food or beverage may be brought onto the Ship without our prior written authorization, granted in our sole discretion, which may be unreasonably witheld. No food or beverage may be removed from the Ship.
7) Alcoholic Beverages: We reserve the right to deny or restrict the service of alcohol to any Passengers. You may not attempt to have us serve alcohol, or serve alcohol yourself to a minor or misrepresent the age of a Passenger, with the intention of causing consumption of alcohol on our Ship by a minor.
8) Cannabis, and Illegal and Controlled Substances: The use of illegal or controlled substances on the Ship is prohibited. The Cannabis Control Act of Ontario bans smoking or vaping cannabis, including the use medical marijuana, on any boat in Ontario, which includes all areas on the Ship. To operate in compliance with laws, we cannot allow the use of cannabis, in any form, onboard any of our vessels. For more information, please review: https://www.ontario.ca/page/cannabis-legalization. We reserve the right to discontinue the Cruise if Cannabis, or illegal or controlled substances are being consumed. No refunds or exchanges will be given.
9) Passenger Liability and Responsibility for your Guests: Please help us assure a safe and enjoyable time for all. (a) You are responsible for the conduct and supervision of the Passengers on the Ship who are members of your group, attending your function or party, including compliance with the terms of the Passenger Agreement. (b) You agree to promptly pay us for any and all loss of or damage to the Ship, any equipment, decoration or fixtures caused by you or any Passenger attending your event, including any damage or loss caused by the failure to act in accordance with the terms of this Passenger Agreement, or a directive of the Ship’s crew. (c) You will be required to reimburse us for the full replacement cost and/or any and all loss or damage to us or the Ship as a result of any material misrepresentation made by you, including but not limited to, any false statements concerning the intended activity of your group, and the falsely claimed need to provide you with medical services, or the unfounded claim of injury. (d) You will be required to reimburse us for the full replacement cost and/or any and all loss or damage to us as a result of any personal injury or damage caused by your negligent or wrongful acts or omissions or the negligent or wrongful acts or omissions of any Passenger in your group, including any minor traveling with you. Notwithstanding the foregoing, nothing herein shall be construed as requiring you or Passengers to be responsible for any loss or damage to the Ship, equipment, decoration or fixtures that result from any Passenger complying with any instruction or directive of the Ship’s crew or in accordance with the terms of this Passenger Agreement.
10) Indemnification: You agree to indemnify and hold us, our crew, master, directors, officers, employees, owners, affiliates and agents harmless for (a) any damages, liabilities, losses, penalties, fines, charges or other expense incurred by or imposed upon us, our crew, master, directors, officers, employees, owners, affiliates, or agents as a result of any negligent or wrongful act, omission or violation of Laws or Regulations by you or any minor Passenger for whom you are responsible; and (b) any liability, cost or expense (including all legal expenses) incurred by or imposed upon us, our crew, master, directors, officers, employees, owners, affiliates or agents associated with the defense or settlement of any claim, directly or indirectly related to personal injury, death or property damage relating to any negligent or wrongful act of you, or any Passengers traveling with you.
Further we agree to indemnify and hold you harmless, including all Directors, Officers, agents, owners, affiliates and independent contractors, from any liability or costs (including reasonable legal fees) incurred in defense of any claim made by any person (including members of your party) arising from injuries or death to persons or damage to property caused solely by the negligent acts or omissions of our Company and/or its employees.
11) LIMITATION OF LIABILITY: The terms and provisions of the Marine Liability Act and all schedules thereto (specifically including, but not limited to, the Convention) shall apply to this contract. Without limiting the generality of the foregoing and the applicability of the Convention in full, You should be aware that Our liability for death of or personal injury to a Passenger shall in no case exceed 175,000 Units of Account per carriage. Our liability for the loss or damage to luggage, personal effects or property shall in no case exceed 1,800 Units of Account per carriage. Any action for damages arising out of the death or personal injury to a Passenger or for the loss of or damage to luggage must be brought within two (2) years after which any claim shall be time barred.
13) Governing Law: The Passenger Agreement and its interpretation shall be governed by and construed in accordance with the laws of Canada and Canadian Maritime Law.
14) Jurisdiction: The parties expressly agree that any and all disputes and matters arising under or in connection with the Passenger Agreement or the Cruise shall be exclusively heard and determined by the Federal Court of Canada sitting at Toronto, or as otherwise provided by Article 17 of the Convention.
16) Transferability; Separability; Miscellaneous: This Passenger Agreement constitutes the entire understanding and agreement between you and us and supersedes any prior oral, or implied or other agreements between you and us and this Passenger Agreement can only be modified by a writing signed by you and us. The Passenger Agreement cannot be transferred by you. Any additions, deletions or other alterations to, or waivers of any term of, the Passenger Agreement which are purported to have been made by us and which have not been agreed to in writing by us will not be legally binding upon us. Any provision of the Passenger Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and the validity and enforceability of the remaining terms and conditions of the Passenger Agreement will not otherwise be affected, nor will the validity and enforceability of such provision be affected in any other jurisdiction.
17) Force Majeure: Neither you nor us shall be responsible for any loss, damage, delay or failure of performance hereunder arising or resulting from: war; riot, terrorism or threats of terrorism, natural disaster, perils of the sea; acts of pirates, strike or lockouts, or other circumstances beyond Our control. Should either party be unable to perform due to the above, all your deposits and payments will be refunded to you.
Addition to Mariposa Cruises’ Terms and Conditions
Limitation of Liability
We assume no liability or responsibility for any personal injury or property damage, of any nature whatsoever, resulting from your participation in a cruise (the “Service”).
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact.
In keeping with applicable guidelines, Mariposa Cruises by Hornblower has put in place comprehensive preventative measures aimed at preventing the introduction to and the spread of COVID-19 during your use of the Service; however, despite our mitigating efforts, we cannot guarantee that you or members of your party will not be exposed to COVID-19 during your use of the Service.
Therefore, without limiting the foregoing limitation of liability, the following terms and conditions are effective for the Service:
(1) GUEST ASSUMPTION OF RISK – You acknowledge the contagious nature of COVID-19 and that, despite Mariposa Cruises by Hornblower’s effort to mitigate such dangers, you may be exposed to or infected by COVID-19 during your participation in the Service, and that such exposure or infection may result in personal injury, illness, permanent disability, or death. You understand that the risk of becoming exposed to or infected by COVID-19 may result from the actions, omissions, or negligence of yourself and others. You assume all of the foregoing risks and are solely responsible for any resulting injury (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, related to COVID-19, that you may experience or incur in connection with the Service (“Claims”).
(2) GUEST WAIVER OF MARIPOSA CRUISES BY HORNBLOWER’S LIABILITY – You release, covenant not to sue, discharge, and hold harmless Mariposa Cruises by Hornblower, employees, agents, and representatives, of and from the Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. This release includes any Claims based on the actions, omissions, or negligence of Mariposa Cruises by Hornblower, its employees, agents, representatives, vendors, and independent contractors whether a COVID-19 infection occurs before, during, or after participation in the Service.
BY ENTERING THE FACILITIES AND OR BOARDING THE VESSEL(S), YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.