In this article we explore the legal and contractual implications if a boat is damaged whilst moored. Does liability lie with the boat owner or the mooring provider?
Terms and conditions for mooring
Usually, the position will be determined by the terms and conditions of the mooring provider (such as a harbour authority or local council). It is usual, and advisable, for the mooring provider to put in place terms and conditions and ensures that the boat owner agrees to them before being permitted to use the mooring.
The terms and conditions should contain a limitation of liability clause that seeks to limit and reduce the mooring provider's liability in the event damage.
The limitation of liability clause will usually expressly:
- Limit and remove any responsibility or liability for any loss or damage to the boat or any contents or equipment on the boat;
- Stipulate that the boat owner shall maintain an all risk and third-party insurance policy in respect of the boat (to be produced to the mooring provider on request). The insurance policy should also include adequate cover against salvage claims and claims for loss or damage (including damage to other vessels and personal injury) howsoever arising; and
- Include a provision that the boat owner shall indemnity the mooring provider against any claims made against the mooring provider in connection with the boat.
The mooring provider's terms and conditions may also expressly state that the mooring provider is not liable for natural and unforeseen events, such as adverse weather conditions. This is particularly important where the mooring position may be subjected to strong tidal flow or in an exposed position.
It is recommended that the mooring provider place the onus upon the boat owner to install (using an approved mooring contractor), service, and maintain all mooring tackle. As such, in the event the mooring tackle fails (due to a failure to maintain and service it or, for example, adverse weather conditions), the mooring provider ought to be entitled to rely upon its terms and conditions to avoid liability.
Mooring providers do need to be mindful of the requirement to ensure a contract term is considered to be fair and reasonable however. If it is considered to be unfair, the contract could be held to be unenforceable under the Consumer Rights Act 2015 and the Unfair Contract Terms Act 1977.
The Consumer Rights Act 2015 (CRA) was enacted to protect consumers against contractual wording that could give businesses an unfair advantage. It requires contract terms to be fair (so they are not unfairly weighted against the consumer or hidden away) and transparent (so they are written in clear language that consumers can understand).
The CRA only applies to business to consumer contracts and therefore only relevant where, for instance, the boat owner is classified as a consumer (as opposed to a business) and the mooring provider is a business within the definition of the CRA.
The Unfair Contract Terms Act 1977 (UCTA) applies to business-to-business contracts and consumer contracts. It renders certain terms unenforceable if they are deemed unfair. A term is likely to be considered unfair where it is deemed to be unreasonable, excessively limits liability, and is inaccessible and not sufficiently brought to the other party's attention.
Conclusion
It is important for mooring providers to ensure they have adequate terms and conditions in place to protect their position in the event of damage or loss.
The terms and conditions need to be brought to the attention of the boat owner before the mooring facilities are used (to ensure the terms are incorporated into the contractual relationship) and that any unusual or onerous terms are clear and easily identified. Where possible it is sensible to make the terms and conditions accessible at all times (such as including them on a website or near the mooring area).
The mooring provider should ensure the boat owner has adequate insurance before using the mooring and periodically request up to date copies of the policy if the boat owner remains on the mooring for a number of years.
By placing the burden upon the boat owner to ensure mooring tackle is installed correctly and annually serviced and maintained, the mooring provider's exposure to a potential claim or liability is greatly reduced.
With regards to boat owners, they must ensure that their insurance is adequate and up to date. Regular checks of the mooring tackle (where accessible) is sensible and it is recommended that they seek advice from a mooring contractor to ensure the correct rating mooring line is used for the boat and water conditions.
If there warning of a significant adverse weather front, the boat owner should consider taking steps to move the boat (when safe to do so) to a more sheltered location if possible as, if the mooring provider's terms and conditions restrict and limit liability as mentioned above, then any loss and damage will be borne by the boat owner and their insurance provider.
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.
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