Maja Bosnić Tabain

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  Maja Bosnić Tabain, Director of the Department for Processing Vessel, Aviation, Transport and Loan Insurance Claims. She graduated from the Faculty of Law of the University of Split in 2004. She passed the bar exam in 2007. From 2004 until 2008, Ms. Bosnić Tabain worked at the Law Office of Dijana Vojković in Zagreb. She is a member of the Croatian Maritime Law Association and Croatian Association of Insurance Law. In 2013, she attended a professional advancement programme in London at the UK P&I Club, the Lockton brokerage firm and commercial law firm Hill Dickinson LLP. In 2017, Ms. Bosnić Tabain also attended the Residential Training Course organised by the NORTH of ENGLAND CLUB.

   

   

  Marina Operator Liability Insurance in Croatian Business Practice with a Focus on the Topical Legal Issues

   

  Key words: marina, nautical tourism port, liability insurance, berth agreement, marina operator’s liability

  Nautical Tourism Port Operator Liability Insurance is liability insurance intended for nautical tourism port concession holders, i.e. legal or natural persons who perform business activities and provide tourism services in nautical tourism as well as other services forming part of tourism consumption (trade, hospitality etc.) and who operate a port of nautical tourism. It is a type of voluntary insurance.

  Nautical tourism port operator liability insurance provides coverage for liability of the operator of a port of nautical tourism, i.e. its contractual (towards service users) and non-contractual liability (towards third parties). In the context of liability insurance, an insured event occurs when liability of the insured, i.e. of the nautical tourism port operator, for damage covered under the insurance is established. On the basis of the Nautical Tourism Port Operator Liability Insurance Agreement, the insurer therefore undertakes to compensate the insured for compensation amounts the insured is obligated to pay to third parties based on its liability for damage suffered by such third parties due to liability of nautical tourism port’s concession holder, up to the coverage limit however.

  The insurance agreement further provides coverage for civil liability of the nautical tourism port operator for actual damage and loss of profit in relation to its service users and third parties, while in certain cases the insurer may limit its obligation to bodily injury and property damage only. In any case, the insurer’s obligation will be limited by the total coverage amount. Furthermore, up to the coverage limit, the insurer will also bear lawsuit and other justified expenses incurred in determining the insured’s liability and the cost of measures undertaken at the insurer’s request or in agreement with the same for the purpose of preventing unjustified and exaggerated third party claims.

  Nautical tourism port operator liability insurance agreements first appeared at the beginning of the 1980s. The terms of the first nautical tourism port operator liability insurance agreements were derived from the first Berth Agreements and Maritime Casco Insurance Policies with the belonging conditions. Since then, the key provisions have remained the same and no significant amendments have been made in order to suit the needs of modern times. The insurers operating on the territory of the Republic of Croatia usually offer similar terms of insurance that do not differ in any important aspect.

  Liability for intentional wrongful acts or omissions on the part of the nautical tourism port operator are thus always excluded from the insurance coverage, and it is also common practice for insurers to exclude liability for damage caused by gross negligence on the part of the nautical tourism port operator, its employees or subcontractors from the coverage. Nautical tourism port operators liability insurance coverage also usually explicitly excludes damage caused by neglect, wear and tear of the berthed vessel, damage caused by latent vessel defects, damage caused by an act or omission on the part of the vessel owner, crew or other persons on-board the vessel, damage caused by war and similar events, damage resulting from the theft of works of art, items made from precious metals, money, securities and similar, damage caused by rodents, damage caused by freezing of the engine cooling system, damage caused by bad weather, or damage caused by theft of items that are not included on the inventory list.

  Furthermore, it’s common practice for the insurers to stipulate, as a precondition for arranging coverage, that the nautical tourism port operator complies with all the prescribed standards and that it offers its services in accordance with general operating terms and conditions pre-approved by the insurer. To arrange nautical tourism port operator liability insurance coverage under agreements that go beyond the limits of such pre-approved general operating terms and conditions usually requires special consent issued on a case by case basis.

  In domestic practice, liability of nautical tourism port operators and the related liability insurance represent a very complicated legal matter that causes a high level of legal insecurity. In determining whether an event is compensable or covered under the nautical tourism port operator liability insurance agreement, one should first consider the nautical tourism port operator’s civil liability. In order for an event to be compensable under the nautical tourism port operator liability insurance agreement, the nautical tourism port operator’s liability for damage suffered by the injured party must first be established. In cases where liability of the nautical tourism port operator is not established, the insurer will not be held liable either. More precisely, in determining liability for damage, it must be established whether the port operator complies with all the prescribed requirements and standards, i.e. whether it operates in compliance with the rules of professional conduct. One of the main criteria used in this type of assessment are the valid legal regulations and the berth agreement signed between the nautical tourism port operator and its service users. Therefore, liability must be determined primarily in accordance with the provisions of the relevant berth agreement. Such agreements are based on party autonomy and are not legally regulated under special statutory provisions. The General Operating Terms and Conditions constitute an integral part of the Berth Agreement, which is why liability of the operator of a port of nautical tourism is also to be determined in accordance with the General Operating Terms and Conditions. It is however important to note that berth agreements and general operating terms and conditions must be considered and interpreted pursuant to the Civil Obligations Act (hereinafter referred to as: COA), and its provisions pertaining to the right to damage compensation and remedy in particular.

  The question is which legal regulation is to be applied where liability of nautical tourism port operators and nautical tourism port operator liability insurance are concerned, i.e. are we to apply the provisions of the Civil Obligations Act or the Maritime Law Code considering the fact that the matter in question is associated with vessels and terms of insurance typical of marine insurance.

  The author will consider the most disputable judicial aspects of nautical tourism port operator liability insurance in domestic judicial and business practice, including the standard which is to be applied for the purpose of determining due care requirements the nautical tourism port operator must comply with as a provider of vessel accommodation and receiving services as well as the related and complementary services; exclusions of damage caused by intent or gross negligence on the part of the port operator, its employees or subcontractors from liability insurance coverage, and proper interpretation of other common exclusions; material law applied in connection with nautical tourism port operator liability insurance and admissibility of direct claims against the insurer by the injured party, and similar. The author will apply the comparative analysis method to give an overview of the relevant standard insurance clauses applied in foreign insurance markets and will present her view of the desirable further development of the nautical tourism port operator liability insurance model applicable in our market, taking into consideration the new needs associated with modern nautical tourism development in Croatia.