Marina Operator Berthing Contracts from a Comparative Law Perspective
| Autor | María Victoria Petit Lavall y Daniele Casciano |
| Cargo | Ph. D., Assistant Professor, Research Associate, Adriatic Institute of the Croatian Academy of Sciences and Arts, Zagreb (Croatia). - Ph. D., Full Professor of Commercial Law, Director of the Institute for Transport Law, Jaume I University, Castellón (Spain). - LL. M. Ph. D., Lawyer in Trieste, Adjunct Professor of Insurance Law and Transport ... |
| Páginas | 39-97 |
39
Revista de Derecho del Transporte
N.º 23 (2019): 39-97
* Fecha de recepción del trabajo: 19/02/2019. Fecha de aceptación del trabajo: 20/05/2019.
** Acknowledgements: this paper has resulted from the research project of the Adriatic Institute of
the Croatian Academy of Sciences and Arts, funded by the Croatian Science Foundation, entitled «Devel-
oping a Modern Legal and Insurance Regime for Croatian Marinas - Enhancing Competitiveness, Safety,
Security and Marine Environmental Standards» (ref. DELICROMAR, UIP-2013-11-3061; principal re-
searcher: A. V. PadoVan; see www.delicromar.hazu.hr) and the research project financed by the Spanish
Ministry of Economy and Competitiveness and the European Regional Development Fund (ERDF), en-
titled «Transport as a Motor of Socio-Economic Development: Protection of the Weak Contracting Party
and Progress as regards Transport Sector Regulation» (ref. DER2015-65424-C4-3-P MINECO/FEDER;
principal researcher: M.ª V. Petit LaVaLL).
MARINA OPERATOR BERTHING CONTRACTS FROM
A COMPARATIVE LAW PERSPECTIVE *, **
Adriana Vincenca Padovan
Ph. D., Assistant Professor, Research Associate
Adriatic Institute of the Croatian Academy of Sciences and Arts, Zagreb (Croatia)
María Victoria Petit Lavall
Ph. D., Full Professor of Commercial Law, Director of the Institute for Transport Law,
Jaume I University, Castellón (Spain)
Daniele Casciano
LL. M. Ph. D., Lawyer in Trieste
Adjunct Professor of Insurance Law and Transport Law at the University of Udine (Italy)
ABSTRACT
This paper deals with the concept of marina operator berthing contracts
from the comparative perspectives of Spanish, Italian, Croatian and US law.
The focus is on the legal nature of the contracts and on the marina operator’s
liability arising from them. The authors analyse the relevant legal framework,
private regulation, judicial practice and legal doctrine, and discuss the salient
features of the contracts and the most prominent issues arising in relation to
their practical application. A comparative law analysis shows the similarity
of the questions raised in the judicial practice and legal doctrine in all four
observed jurisdictions. The discussion revolves around the central problem of
determining the legal nature of this innominate atypical contract. The positions
are divided into two main lines of argument: one treats the contract primarily
as a contract for the use of a safe berth (locatio conductio rei), while the other
is based on the concept that the contract contains vital elements of a contract
of deposit (depositum), whereby the vessel is entrusted to the marina for safe-
keeping.
Keywords: marina operator, berthing contract, liability.
ADRIANA VINCENCA PADOVAN / MARÍA VICTORIA PETIT LAVALL / DANIELE CASCIANO
40 Revista de Derecho del Transporte
N.º 23 (2019): 39-97
SUMMARY: I. INTRODUCTION.—II. MARINA OPERATOR BERTHING CONTRACTS UNDER SPANISH LAW:
1. General Considerations. 2. The Legal Nature of Berthing Contracts under Spanish Law. 3. Contracting Par-
ties: 3.1. The Marina Operator. 3.2. The Berth User. 4. Subject Matter of the Contract. 5. The Rights, Obligations
and Liabilities of the Parties: 5.1. Marina Operators. 5.2. Berth Users.—III. MARINA OPERATOR BERTHING
CONTRACTS UNDER ITALIAN LAW: 1. General Considerations. 2. The Legal Nature of Berthing Contracts
under Italian Law. 3. The Rights, Obligations and Liabilities of the Parties: 3.1. Marina Operators. 3.2. Berth Us-
ers.—IV. MARINA OPERATOR BERTHING CONTRACTS UNDER CROATIAN LAW: 1. General Considerations.
2. The Legal Nature of a Berthing Contract under Croatian Law. 3. The Rights, Obligations and Liabilities of
the Parties: 3.1. Marina Operators. 3.2. Berth Users. 4. De Lege Ferenda Proposals.—V. AN OVERVIEW OF
MARINA OPERATOR LIABILITY FOR DAMAGE TO VESSELS AT BERTH UNDER THE LAW OF THE UNITED
STATES: 1. General Considerations. 2. Wharfinger Liability. 3. Bailment vs. Berth (Slip) Rental. 4. Marina Opera-
tor Liability under Bailment Law. 5. Exculpatory Clauses.—VI. CONCLUSION.
I. INTRODUCTION
The tradition, culture and widespread diffusion of nautical tourism and plea-
sure navigation in Europe deserve the particular attention of policymakers and
legislators at the national and regional levels but also at the level of the EU.
This phenomenon is an important factor in terms of lifestyle and quality of life
for a large number of EU citizens 1. In addition, the economic sector of nautical
tourism has been recognised as one that can provide economic opportunities for
coastal communities and that has good potential for further growth, generating
a significant number of jobs and revenue 2. In this context, the marina industry
has an important role. The legal regime of nautical tourism, in particular the
marina business, should ensure legal certainty for all stakeholders and strike a
fair balance between the interests of all parties involved. From the private law
perspective, berthing contracts are probably amongst the most important topics
of interest in this sphere.
This paper presents a comparative legal analysis of marina operator berthing
contracts in the legal systems of three European Mediterranean countries with
a strong tradition and culture of pleasure navigation and a developed nautical
tourism sector: Spain, Italy and Croatia. In addition, a short overview of marina
operator liability related to berthing contracts under the law of the United States
of America is presented in the last part of the paper. Spain, Italy and Croatia
belong to the circle of civil law countries with very similar systems of contract
and tort law. Furthermore, the three jurisdictions in question apply a similar
public maritime domain legal regime to determine the legal status ofcoastal
zone areas and sea ports, which consequently affects the legal position of port
operators, and particularly marina operators. On the other hand, it seemed in-
1 About 48 million, i. e. one in ten, EU citizens participate regularly in water sports. 36 million
participate regularly in boating activities, keeping about 6 million boats in European waters. Cited from
eu coMMission, Commission Staff Working Document on Nautical Tourism, SWD (2017) 126 final, 30
March 2017, available from https://ec.europa.eu/maritimeaffairs/sites/maritimeaffairs/files/swd-2017-
126_en.pdf (retrieved on 17 December 2018).
2 Ibid. See also eu coMMission, Assessment of the Impact of Business Development Improvements
around Nautical Tourism, Final Report, written by ICF in association with Deloitte, Marine South East,
Sea Teach and IEEP, November 2016.
MARINA OPERATOR BERTHING CONTRACTS FROM A COMPARATIVE LAW PERSPECTIVE
41
Revista de Derecho del Transporte
N.º 23 (2019): 39-97
teresting and useful to draw a comparison with the legal concept of a marina
operator berthing contract as shaped in the common law system of a nation with
one of the largest and oldest traditions of pleasure navigation. Therefore, the
legal concepts of a berthing contract, berth lease or rental and deposit shaped
in the three European legal jurisdictions observed are compared with the con-
cepts of boat storage and slip rental agreements, bailment law and wharfinger’s
liability established under US law. In this way, the authors wish to contribute to
the global understanding and exchange of knowledge and experience of this in-
teresting and complex legal topic, which so far has attracted very little attention
in international legal literature. In fact, this paper presents a unique example
of a comparative legal analysis of marina operator berthing contracts and the
liability arising from them.
II. MARINA OPERATOR BERTHING CONTRACTS UNDER
SPANISH LAW *
1. General Considerations
Berthing contracts are directly linked to sports or recreational navigation.
This type of navigation constitutes a special part of maritime law, as it lacks the
professionalism and profit-making aspect that otherwise characterises this sector
of the legal system 3. This is clear from the definition of sports or recreational
navigation contained in Article 252(2), Paragraph 3 of the amended State Ports
and Merchant Navy Act (Ley de Puertos del Estado y de la Marina Mercante),
approved by Royal Legislative Decree 2/2011 of 5 September (SPMNA), accord-
ing to which «recreational or sports navigation» is a type of navigation «the ex-
clusive object of which is recreation, the practice of sports for non-profit-making
purposes, or non-professional fishing, performed by the vessel owner or by other
persons entitled to carry it out, through charter, contract of passage, assignment
or by any other title, provided that in these cases the vessel or craft is not used by
more than 12 people, excluding its crew».
It should be noted that even today Spain lacks a systematic body of rules gov-
erning pleasure navigation. Despite its undoubted economic importance and the
recent significant modification of Spanish maritime law by Act No. 14/2014 of
24 July on Maritime Navigation (MNA) 4 and by the SPMNA, both acts contain
only references to it. Spanish legal scholars have not shown much interest in this
* M.ª Victoria Petit LaVaLL, Ph. D., Full Professor of Commercial Law, Director of the Institute for
Transport Law, Jaume I University, Castellón (Spain).
3 i. arroyo Martínez, Curso de Derecho Marítimo, 3rd ed., Cizur Menor, Civitas-Thomson Reu-
ters, 2015, p. 881; for a detailed account of the situation in Italy, see a. antonini, «La legislazione sulla
navigazione da diporto», in coMenaLe Pinto and rosaFio (eds.), Il diporto come fenomeno diffuso.
Problemi e prospettive del diritto della navigazione, Rome, Aracne, 2015, pp. 19 et seq.
4 Most of its content applies to vessels and pleasure craft, and for the first time the craft charter party
is regulated.
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