Contract Legals in Boat Yards/Marinas

[savageseadog]

I've often seen various types of penalties and persuasion techniques built into berthing and yard contracts. I've seen something on another thread recently saying that penalty charges are unenforceable in law so what does the forum think of:

1) Billing in advance of berthing period, when is an owner in default?

2) When the owner wants to remove the vessel is the payment/repayment pro rata at a contract rate, daily rate or what?

3) If invoice is unpaid after so many days/weeks/months then the owner will be liable for a higher daily or weekly rate charge and an additional fixed amount.

4) Does consumer law apply and the concept reasonableness to the actions of yard/marina owner?

5) If the yard has undertaken and prepaid to lift said vessel onto transport what would be a reasonable period of delay between requesting such lift and it being done.

6) In relation to 5) can the yard apply penalties surcharges etc during that time period? In other words a ransom situation.

 

[Tranona]

The answer is very simple. It is the terms and conditions of the contract that apply and you are bound by what you sign. Whether the terms and conditions are "reasonable" is for you to decide before you sign.

What the marina canot do is vary those terms and conditions subsequently without your agreement - unless of course there is a term which allows them to do so and you agree to that term!.

Most of your examples should be covered by specific terms or as in your 5 and 6 not perhaps specifically covered would be subject to agreement at the time - so for example you would agree when the service would be provided and if they failed to provide it they have broken the contract. As to "surcharges" - once again they can only be applied if in the contract - which could either be in the written contract or in a contract agreed when you asked for the service.

Having said all that disputes do arise for all sorts of reasons and generally marinas have the upper hand because they have your boat on their premises and it is often difficult to move.

 

[nmeyrick]

The answer is very simple. It is the terms and conditions of the contract that apply and you are bound by what you sign. Whether the terms and conditions are "reasonable" is for you to decide before you sign.

What the marina canot do is vary those terms and conditions subsequently without your agreement - unless of course there is a term which allows them to do so and you agree to that term!.
QUOTE]

Simply not true I'm afraid. I can ask you to agree to anything in a contract, and you may agree to sign it - possibly without having bothered to read the small print - but that doesn't make it law. A contract is only worth the paper it is written on to the extent that it is legal and enforceable - so if for example I sneak into the small print a claim on your firstborn child, that probably wouldn't stand up. Statute and case law take precedence, and the contract must comply with them to have any value. Any clause which can be shown not to, will be considered to be either reworded to comply, or simply be struck out.

One of the key pieces of legislation here is the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) which were introduced to even up the playing field, some details are here:

http://www.oft.gov.uk/advice_and_resources/resource_base/legal/unfair-terms/

And a boaty example:

http://www.oft.gov.uk/advice_and_resources/resource_base/consumer-regulations/traders/2080/1/

Infact one of the specific terms mentioned here is one which give the marina the ability to amend the terms without consent and this was held to be unfair; instead the marina had to provide 14 days notice of the change during which time the consumer could cancel without penalty and receive any pre paid fees back.

I'm afraid I'm no expert on these matters and can't comment on any of the specific questions, and obviously the final decision as to whether a term is unfair is down to the courts to decide. Having said that it may not get that far and if you are able to quote this or involve OFT you may find that a marina will be less keen to try and enfore some of their more potentially iffy contract terms.