Now that summer has started, we believe it appropriate, for once, to put aside for a while issues related to great port matters and deal instead with a topic concerning leisure boating, which exactly during this season lives its most intense months.
The topic we intend to deal with – as always in practical terms – is that relating to custody obligations that could or not be imposed on the facility where a boat is moored.
First of all, the problem arises in cases where a mooring agreement has not been undersigned or when it contains no provisions on a possible custody service. However, as we will see, in certain circumstances doubts may arise even where there is an agreement that expressly excludes the existence of a custody obligation for the port facility.
Starting to examine the regulatory framework, one immediately notices that – in our legal system – a mooring agreement is, at legislative level, a so-called "atypical" agreement, meaning that it is not subject to a specific regulatory framework, although on the contrary it is absolutely "typical" in the boating sector, due to its wide use.
So, in Italy, scholars and case law have worked, also examining practices and regulations adopted by operators, in order to define the mooring agreement and rebuild its legal framework.
Case law1 has thus identified the essential minimum content of the mooring agreement, represented by the availability of a dedicated stretch of water for the mooring of a boat, to which other provisions may also be added concerning further services, among which – in particular – the custody of the boat.
This case law position seems now prevail over a different case law position2, which tends to consider the mooring agreement as a lease or deposit, depending on the content of the agreement actually executed by the parties from time to time. Indeed, according to said view, the mooring agreement could be seen as lease whenever its scope is "limited" to the provision of a boat site (for the stop of the unit only, without further services), while it would be considered as deposit whenever it entails the custody of the boat by the personnel of the port facility.
Regardless of the agreement with one or the other of the aforementioned positions, it is, however, a fact that – in reality – the ship-owner is rarely interested only in using the sea stretch, but rather also in using facilities and equipment to shelter its boat, for its maintenance, for the supply of water and electricity and, above all, in having the guarantee that the port manager watches over the unit, or – in fact – guards it3.
But if no mooring agreement is undersigned or if the mooring agreement does not provide for the custody of the unit, should this obligation be considered as existing or not?
To answer this question, the prevailing case law4 seems to have developed some criteria on the basis of which it would be possible to infer whether or not the port facility has assumed the obligation of custody. Let's see, briefly, some of these criteria:
- firstly, there would be a duty of custody whenever a permanent guard service is provided at the port facility and when small boats, thus without crew on board, are involved;
- the obligation of custody could be considered "proven" also in the event that – as soon as an accident occurs – the staff of the port facility promptly intervenes to avoid damages to the boats (which, therefore, in this sense seems to be entrusted to the custody of the structure);
- given that in the winter season the boat site is generally used in a "static" way, that is in order to ensure the boat a stable shelter and allow the carrying out of the necessary maintenance works, during such season it would be legitimate to consider the unit entrusted to the custody of the port facility.
It should be noted that case law5 has also stated that – if a mooring agreement provides, on the one hand, a day and night surveillance service and, on the other hand, that this service does not imply the assumption of any obligation of custody – the contradiction between these two clauses must be resolved in the sense that the custody of the unit falls within the scope of the services offered.
So, in light of the above, the interpretation of a mooring agreement – in relation to the issue of custody, which normally represents its most critical aspect – seems not to be limited to the examination of the contractual clauses (provided that an agreement has been concluded), but requires on the contrary also an analysis of the factual current background.
We therefore suggest – both to operators and enthusiasts – to keep in mind the indications coming from case law in order to avoid unpleasant surprises in the unlikely event that an accident occurs while the unit is moored at the quay.
Footnotes1 See, in particular, Italian Supreme Court decision No. 10484 of 1 June 2004.
2 See, in particular, Italian Supreme Court decision No. 8224 of 3 April 2007.
3 Indeed, there have been decisions that considered the surveillance and safety of the mooring even coessential to the scope of the mooring agreement (see decision of the Court of Appeal of Trieste of 28 July 1999).
4 See, in particular, the above mentioned Italian Supreme Court decision No. 10484 of 1 June 2004.
5 See Court of Trieste, No. 357 of 5 April 2006.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.