Question 1C - Exclusion Clauses

After the lease ended in 2020, Sam terminated his lease and returned the commercial fishing vessel to Gary.

And then the COVID lockdowns came.

Gary realised that as a commercial fisherman, he would be considered an essential worker. So, he decided to become a fisherman again instead of just a landlocked fishmonger.

After two weeks of going out to sea, the commercial fishing vessel had mechanical problems. It happened while still on the docks.

Gary telephoned his local boat repair shop, Port Adelaide Boat Motors, who agreed to send out Bert, a mechanic, to repair the vessel.

Bert arrived in a towboat. After diagnosing the problem, he told Gary that the vessel could not be repaired at the docks. Bert said that the vessel would have to be towed to the shipyard. Gary agreed to this.

Bert winched up Gary's commercial fishing vessel in order to tow it to the shipyard, but a worn clip on the towing gear being used by Bert slipped open, allowing the vessel to break free. The commercial fishing vessel drifted and crashed into the pylons. The bow of the ship and one of the outriggers was severely damaged in the crash. Displayed on the back of the towboat was a notice:

All towing takes place at customer's risk. Port Adelaide Boat Motors and their employees accept no liability for any damage, injury, or consequential loss, whatsoever caused, while a vessel is being towed.

Did Port Adelaide Boat Motors provide reasonable notice of the exemption clause? Can it be part of the contract with Gary?

ISSUE:

RULE:

APPLICATION:

CONCLUSION: