Marina Operator’s Liability
Author: Mićo Ljubenko
Key words: marina operator’s liability, marina, berthing contract, damage, vessel, liability insurance, rules of the profession
According to development of nautical tourism, the ports of nautical tourism have developed in short time period in previous decades in Croatia as well as in abroad. The specificity of our geographical position has caused very intensive development of the activities of the ports of nautical tourism in a significant extent, and therefore it was not possible to provide legal and scientific contribution in sufficient measure to adequately monitor this state.
In legal, but also in business aspect as well as in logical apprehension, it is not clear what exactly is to consider to be activity of the port of the nautical tourism, and in particular neither theoretical nor practical opinion on material responsibility of ports of nautical tourism are not compatible. The very term of the port of nautical tourism in the official communication often encourages a certain misunderstanding in it’s interpretation, given that it could be confused with the concept of the marina, which formally is not correct. This is because the ports of nautical tourism are mostly marinas, but according to the formal division they can be anchorages, landfill vessels and “dry” marinas. It is important to emphasize the collision in understanding term of “marina” in formal and practical sense. For better understanding this paper will bi directed to liability of marinas. Thereby, it should be noticed that term “marina” has twofold meaning: regardless of the formal determination as one of the ports of nautical tourism it is important to note that marina in business and organizational sense primarily represents – marinas and “dry” marinas. This means that in business sense activities of the marinas in principle are not the same as the activities of the anchorages and landfill vessels. It is possible that in future it will be useful to examine necessity of adjusting formal division and terminology with real division and terminology used in business. This paper analyses legal questions regarding the liability of nautical tourist ports from the aspect of the marinas as prevailing type of ports of the nautical tourism in general. The marinas in their composition have large number of different attractive and lucrative elements for all participants. Significance of these questions arise form the fact that systematic formal determination of the rights and obligations of the marinas does not exist. On the other hand, increasing of the scope of economic activities in this area indicates there is significant need of applying legal rules to this matter.
This paper will also analyse what are the all ports that provide service of berthing. Surely, all marinas have that kind of service as their main business activity. However, if we compare number of boats that are registered in RH to number of berth in marinas, we see that most of those boats use berths outside from marinas. Usually, this service is formal and it is lucrative. This issue is important in order to correctly and widely comprehend liability of the marina as one of the provider of the berths.
The current formal regulation does not direct this subject matter of liability of the ports of nautical tourism in any way suitable for taking certain legal opinions. Now there are numerous legal opinions that have been conditioned by a large number of different contractual arrangements, and thus they cause a certain legal uncertainty and inconsistency in the implementation for all relevant entities. In terms of introductory comparison it can be noted that the rights and obligations of ports are thoroughly and legally determined in a long period, while on the other hand, it is not the case for ports of nautical tourism. In assessing the liability of the ports of the nautical tourism author will focus his analyze exclusively on the Civil Aspects of the liability not analyzing the question of criminal or misdemeanor liability of the ports of nautical tourism.
Material liability will consider the questions of contractual and non-contractual liability. Thereby the contractual liability determines the complex legal aspect of contractual relationship, which usually extends through the form of general conditions of insurance. On the other hand, non-contractual liability is determined by several factors, where it is not possible to omit the determination of professional rules as the basic criteria for assessing the unlawfulness of the possible failure of the ports of nautical tourism. The rating of this liability requires complex application of different rules that each in certain segments regulate this area. Also, analytical review of our legal framework and comparative solutions will be given. Through this paper some propositions regarding to determination of general terms and conditions and sub-law acts connected with liability of the ports of the nautical tourism will be provided.
