Are there any elements of the contract of custody in the marina operators’ contracts of berth?

• Are there any elements of the contract of custody in the marina operators’ contracts of berth?

  Authors: Dr. Vesna Skorupan Wolff, Dr. Adriana Vincenca Padovan

   

  Key words: contract of berth, marina operators’ general terms and conditions, nautical tourism port, marina operators’ liability, custody, yacht, boat, pleasurecraft

  The contracts of marina operators’ services, mainly the contracts of berth, but also those including the custody of pleasure craft, their maintenance and repair, are not regulated by any special legal provisions. These are atypical innominate contracts created through the marina operators’ business practice. The respective contract terms are usually prepared and proposed by the provider of the service of berth, i.e. the marina operator. The practice of concluding the contract and defining its scope and contents relies on the use of the marina operators’ general terms of business.  The title “contract of berth” frequently entails various contents, legal nature, scope of the parties’ obligations, extent of contractual liabilities. The preliminary analysis shows that the marina operators’ general terms and conditions are not uniform and standardised, and that the central problem of this matter is the lack of precision in the wordings and their frequent ambiguity.

  Subsequently, the relevant judicial practice is unconsolidated, which altogether leads to legal uncertainty. It is noted that the domestic courts do not seem to recognize the fact that the marina operators provide various ranges of services under their contracts of berth.

  Namely, these contracts can vary from the simple providing of the nautical berth to a complex combination of services that besides the berth itself include e.g. the custody of the vessel, its maintenance, repair, or similar. In addition, the legal framework applicable to these contracts is rather complex, as it includes the general provisions of the law of obligations and contracts, as well as the special provisions regulating those types of contracts whose elements may be contained in the respective contracts of berth, such as the provisions of the Obligations Act regulating the contracts of custody, rent, mandate, consumer contracts. As regards the maintenance and repair of the vessel, the provisions of the Croatian Maritime Code would be relevant, as lex specialis applicable to the respective segment of the contract. The Consumers’ Protection Act should also be kept in mind. One of the most important issues that arises in practice is whether the marina operator is liable as a custodian for the vessel on berth, and if so in which particular cases. The answer to that question requires a discussion on the contents of the contract of berth. The focus is on the so called permanent berth, as opposed to the transit berth. The main subject of analysis are the marina operators’ general terms of business. The question that must be answered is when and to what extent should the provisions of the Croatian Obligations Act relating to the contract of custody apply to the contract of berth in a marina. In practice, the parties may agree to apply the provisions on custody, expressly exclude the application of such provisions, or the contract may not even mention the custody, whilst at the same time include certain obligations that by its content represent the elements of the contract of custody. The authors analyse the legal consequences of the respective contractual dispositions.

  A developed nautical tourism market requires a balanced protection of interests of the stakeholders, in this context those are the marina operators and the owners or operators of the vessels. Such challenge is particularly reflected in the segment of the civil liability for damage under the contract of berth including the elements of custody of the vessel. In such contracts the extent of the marina operator’s liability for damage to the vessel on berth is much higher than in the case when the contract is merely for providing a nautical berth. Namely, the marina operator, under the contract of berth that contains the elements of custody, in addition to the liability for the suitability and propriety of the nautical berth itself, undertakes to take care of the vessel. The questions that arise in connection therewith require the prior understanding and knowledge of the marina operators’ economic role and the features of their entire professional activity. On the other hand, the fact that the financial values of the vessels berthed in the marinas are relatively high, logically reflects on the contractual expectations of the vessel owners and operators calling for a suitable legal protection of their material interests. Legal certainty is therefore, as in any other business, a decisive factor for both contractual parties relying on the predictability of their mutual legal expectations.

  The authors thoroughly analyse the contracts of berth containing the elements of custody as used in the practice of the Croatian marina operators. For a better understanding of the complexity of the legal relationships arising from these contracts, the special consideration is devoted to the legal nature of this type of contract. The paper studies the features and the contents of the contract of berth with the elements of custody. A detailed analyses and interpretation of the relevant provisions of the marina operators’ general terms and conditions is provided as well as of the legal framework within which this type of contract functions. The subject matter of the analysis is also the judicial practice entailing the cases of damage to or the loss of the vessels berthed in the marinas. The rights and obligations of the parties to the contract of berth with the elements of custody are thoroughly studied. The authors explain the meaning and the extent of the obligation to take care of the vessel and they interpret the standard of due diligence in this context analysing the consequences of the marina operator’s default in exercising that duty. It is also important to define the moment when the specific contractual obligations commence and end. The paper further deals with the duties of the vessel owner or operator as the client. A special question is to define the subject of custody, particularly whether the reserves of food, drinks, inventory and equipment of the vessel should also be considered a subject of custody.

  The main theses of this paper is that the qualification of the legal nature of the contract of berth and the choice of the relevant substantive law to be applied to the contract is closely linked with the precisely and exactly determined contents and cause of the contract, which necessarily entails a correct interpretation of the marina operator’s general terms and conditions on the basis of which the contract was concluded.

  It is submitted that the improvement of the legal framework applying to the marina operators’ contracts of berth, including in particular those with the elements of custody, should be directed towards the standardisation of the marina operators’ general terms of business and the creation of the set of models of the standard general terms of business for the Croatian nautical ports. This paper should serve as a basis for the creation of such general terms of contract containing the basic elements of the contract of  berth and the custody of the vessel.