Maritime vessel Injuries Caused by Mooring Accidents: What is a mooring agreement in Italy?
To identify who is responsible for the damage suffered by boats in the port, we need to start with the mooring contract.
An atypical contract not included in the Navigation Code, nor in the Civil Code; the mooring contract finds its foundation in Article 1322 of the Civil Code, 2nd paragraph, and in subsequent sectoral regulatory interventions.
Specifically, through the mooring contract, the owner of a boat requests from the port concessionaire the recognition of a delimited water space for a predetermined period of time. In other words, a berth where the vessel can be moored, in exchange for payment.
Frequently, additional services and parallel contracts are associated with the main service, such as the provision and supply of water and electricity or custody obligations, along with associated economic charges to be paid, sometimes established as a lump sum equal to 20% of the total agreed upon for the boat berth rental.
The required form for concluding the contract is not necessarily written. Since it is an atypical contract, it is valid even if not drawn up in writing or perfected even if one of the contracting parties, although there is written form, has not signed it. In the latter case, the contract is perfected through a "conclusive behavior" carried out by one of the contracting parties, such as making payment of the monthly mooring fee.
Responsibilities of Port Manager for all damage caused by mooring accidents
Who is responsible for safeguarding a moored boat to prevent damage?
A debated topic regarding the mooring contract is precisely the issue of custody of the boat by the port facility.
On this point, the Court of Cassation has also ruled that the mooring contract, unless it includes a specific clause, does not include custody (judgment No. 27294/2022).
That being said, the question arises regarding the possibility of attributing damages to the port company.
The answer is affirmative but must be evaluated in relation to the contract that has been signed.
Usually, there are two types of contracts that can be entered into:
- A mooring lease contract, associated with a standard lease agreement where custody is inherently excluded. In this scenario, the contract concerns merely the provision of the water space.
- A mooring deposit contract, which includes the so-called "custody clause", whereby the port concessionaire is obligated to the custody and supervision of the boat, with the obligation to return the goods in the same condition as they were delivered.
From an evidentiary standpoint, if the boat owner needs to prove the object and content of the mooring contract, the yacht club manager must demonstrate that they fulfilled their obligation correctly or, at least, were prevented from doing so due to reasons beyond their control.
Maritime vessel Injuries Caused by Mooring Accidents: What is the difference between berthing and mooring?
When the subject of the contract is the provision of the water space, it constitutes a scenario of mooring more similar to a lease, with the concurrent application of the regulations that refer to this institution; conversely, when the subject of the contract includes the obligation of custody and supervision, incumbent upon the marina concessionaire, a scenario of mooring with the characteristics of a storage contract is found, with the application of Articles 1766 and following of the Civil Code.
If the mooring contract is associated with the lease, the requirement of written form is undisputed, with its nullity if lacking a signature.
Maritime vessel Injuries Caused by Mooring Accidents: Marina's responsibility for damage suffered by the boats because of bad weather conditions
In accordance with what has been stated so far, it is incumbent upon the boat owner to provide for the constant maintenance of the boat, with the consequence that they will be liable for damages caused by bad weather to their own vessel, whether attributable to their non-compliance or lack of caution in mooring execution.
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.