Is it Legal?

[martinwoolwich]

My boat is moored at a marina on the Thames.

I am astounded at the amount of money the resident boatyard/chandlery wish to charge me to have work done on the boat.

I have been told that in my mooring contact it states that if I wish to bring another contractor to work on my boat I have to pay the resident company 10% of the invoice value.

Is this legal?

Can it be enforced? after all I did sign the contract!

Someone told me that a marina on the South Coast was taken to court over this and said Marina lost the case as the practice was in contrevention of European law. Anyone know of this?

I am so incensed by the charges proposed that I really think I wouldn't mind being a test case, if there was even a chance that I might win.

 

[jfm]

Re: Yup

Perfectly legal I would say, and fair in a free market

 

[Guest]

Yes I'm sure it's legal. In my contract too and I think it's fairly standard. On the odd occasion I've had someone do work on my boat, I told the marina it was a friend helping me and they were fine about it. Not sure how you'd go about say a Volvo dealer turning up in his nicely signwritten van though.

Depending on the type of work you need carried out, could you not moor the boat somehwere else (Byron's garden??) whilst the contractor does the work?

 

[markc]

I would say that it is probably a legal monopoly because you do have the choice to take the boat out of the marina and have the work done elsewhere (IMHO!). However you can always be sneaky - don't ask first!! Many local contractors know the score in their local marinas and will advise acordingly!

M

 

[DepSol]

Why dont you bring your boat to the CI have a weeks holiday have your boat fully serviced antifouled re-fueled etc etc and go back home. Just think all those bits and peices less 17.5% VAT and a full tank of cheap fuel. What a saving...actually all serious enquiries through me I'll organise it all for a small fee ahem! Boat lift over here is £22.50 out and £22.50 in.

Add that to parts, anti foul, labour etc, you'd save a fortune.

 

[byron]

Bring the boat up to me Martin, have the work done and take it back. If the work is servicing the engines I even know a 'tame' engineer I swear by.
Dunno if I have told the story before but here goes again. P&T Marine (now defunct) rang me and asked if they could bring a boat for the day. It appeared that they had quoted a Marina £400 to do a job, the Marina had re-quoted at £1,700 to the boat owner. Unfortunately for the Marina the boatowner knew P&T and had asked them for an estimate too.
It's about a 6 hour run from where you moor to my place.

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[Guest]

Re: Unfair contract terms Act

You might be able to challenge the marina under the above act. Schedule 2 lists as definitely unfair any condition
"irrevocably binding the consumer to terms which he had no real opportunity of becoming acquainted with before commencement of the contract"

If you were just given a piece of paper and told just sign here sir without being given a chance to review it or having its salient points drawn to your attention, you might have a claim.

If that does not work, there is a catch all section which says a condition of a contract is possibly unfair "if it imposes unreasonable ancilliary obligations"

Taking legal action, however, is always risky. If you raised such an action, you might find yourself against the combined might of the British Marine Federation as virtually all marinas have this sort of clause. The costs would be large and if you lose you would be severely out of pocket, to the tune of many thousands. I think the BMF would not just roll over as they have a lot to lose.
On the other hand, if you could interest the office of fair trading in championing your cause then they would pursue your action.

Have a look at www.oft.gov.uk. If nothing else, it would give you material to write to your marina about.

Good luck

Nick

 

[Guest]

Re: Unfair contract terms Act

More immediately, the contract might be in restraint of trade under the common law. It's likely to be void if it fails the reasonableness and fairness test ie. was it "no more than what was reasonably required to protect [the marina's] legitimate interest" (Lord Reid in the Schroeder case).

On the face of it, it might fail the reasonableness test (and therefore be invalid) since the contract is primarily one to hire out a pontoon, and the restriction on contractors is in effect just a nice optional extra for the marina company.

On the other hand, even if the provision is invalid, the contractor will have problems getting to your boat without walking across the marina's property without their permission (= trespassing).

The solution is to move to a marina that doesn't have these restrictions, or at least don't apply them. The only marina that I have noticed having/enforcing the restrictions is Berthon at Lymington and I avoid them for that reason. You should only accept such a restriction if the price of the berth is lower to compensate. Certainly two other Solent marinas I have been based at do not enforce such a restriction (they understandably do reserve the right to do so, but it's not their policy to refuse access).

 

[jfm]

amateur legal advice

Whoooaaaa Nick and Simon. I'm not arguing the theory but as a practical matter you have no real prospect at all of defeating these terms under either Unfair Contract Terms or common law restraint of trade.

Lots of reasons but include the following: on Nick's point about not brought to your attention etc there's no way that will stand up. It applies when you are irrevokably committed to something, in other words you are unfairly boxed in. With the marina fee you have ample time to see the clause after you sign the contract but before the clause takes effect, and if you dont like it you can leave your berth and go to a new marina, or you can avoid its effect by taking your boat to a public pontoon for service so you are never boxed in to the clause.

On Simon's point, you have to get over a massive hurdle to get a court to accept that this restrains trade; the marina incurs liability and cost if tradesmen come onto its premises and these charges reflect that

Simon, you are right that Berthon enforce these terms (I'm a berthholder) but stating that as a bare fact deals with the issue out of context. IMHO what you get from Berthon is overall a very fair package, I do not criticise them one bit, you pays your money and you takes your choice. Sorry that sounds a bit cryptic but it's praps inappropriate to elaborate on this comment in a public forum

 

[Guest]

Re: amateur legal advice

You're right, it is amateur advice but based on a recently attended seminar for insolvency bods (thats what they call corporate recovery outside the big 5). I think that the whole question of whether the marina is entitled to insist on extra charges is debateable. Its a bit akin to the story of caravan site owners who had very similar clauses and I believe that the consumer protection legislation was drafted with such situations in mind.

Like you, I have had no problem with the overall package from Kip which is reasonable compared to Solent berthing dues but I do think that what I pay for is a berth and it follows that I need access thereto. That is free for my guests so why should it not be free for tradesmen I may wish to use. I can certainly understand that if they do damage to the fabric of the marina I could be held liable, but why should I have to pay a 10% commission to the marina for something which IMHO I am already paying for i.e. access to my boat for me and those that I want to have access to it.

As I did point out, all legal action is risky in the extreme and much better to come to a negotiated settlement (compromise?).

As I say, there is nothing wrong with running the situation past the OFT whom, I agree, would be better placed to comment as would, of course a Garrets specialist.

Nick

 

[Guest]

Re: amateur legal advice???

Why do you assume it's amateur?

Your point about the Unfair Contract Terms Act only applying when you are "boxed in" is incorrect. I can only assume that you are thinking of cooling off periods for the provision of credit under the Consumer Credit Act.

In fact the Unfair Contract Terms Act doesn't apply to the provision because the Act only applies to exemption clauses, which this isn't.

Concerning the restraint of trade question - I don't agree that there is a hurdle to be got over with respect to the marina incurring charges or liability with respect to the contractors coming on to the premises. What charges and liability do you have in mind? So far as liability is concerned, the marina might be liable to the contractor if eg. it left a hole in a pontoon that the contractor fell through, but that applies to anyone walking along the pontoon, contractor or not.

The contractor might use some electricity, but don't you pay for that? If not, the electricity will be used by whoever ultimately does the job anyway.

As I mentioned before, what's in the contract is all a bit academic since the contractor will be trespassing if the marina refuse him access anyway whatever the contract says.

The more efective remedy therefore is to vote with one's keel.

If you get an overall fair package, that's great. What I was saying was that other bits of that package would have to be (much) more attractive (eg. lower price) to compensate for the restriction on contractors. From my point of view the restriction on contractors is a serious one and the reason why I didn't apply for a berth at Berthon.

 

[Guest]

Re: amateur legal advice???

Has anybody ever actually been charged by a marina for this?

The Scottish marina where I keep my boat, which I'm not gallus enough to name, has the same clause and I've ignored it over the years. One repairer took the boat off the water, did the work indoors at the marina then put the boat back on its berth with no problems.

Perhaps a way to challenge the system would be to get an insurance company to take the marina on in relation to an insurance repair. The cost of the court case would be set against savings on future claims.

 

[Guest]

Re: amateur legal advice???

I think the point you make is fair. I have used Scottish marinas for 20 years and although they have the clause, I have never known it to be enforced. They also have the usual clause about taking a commission if you sell your boat privately i.e. not through their brokerage operation and I have never known that enforced either.

Finally, you will have to explain the term "gallus" to this lot as they are all sassenachs.

Nick

 

[jfm]

Re: my amateur legal advice???

Simon, sorry, "amateur" was in the title of my post, it referred to what I wrote, in a self deprecating way, it didn't refer to what anyone else said. Though as it happens I do practise law, erm sometimes, though not consumer. But IMHO there is no restraint of trade going on here (inter alia because you can vote with your keel, as you say, and because the marina clearly "suffers" cost when contractors come onto its premises). So for a variety of reasons IMHO you wd not succeed in having these marina charges overturned by a Court.

And I really do stick up for Berthon, they sell a package and charge top rates but they give you in return something that other marinas (esp LYH) dont, so you have a free choice and a deal's a deal, customer is free to take it or leave it, LYH just up the road

 

[Guest]

Re: my amateur legal advice???

No offence!

It seems to me that: the "cost suffered" by the marina that you refer to is that it's less likely that you'll use their contractors. This isn't a protection of their "legitimate interests" since the subject of the contract is leasing pontoon space, and not the carrying out of work on the boat. It's just a nice extra benefit as far as the marina operator is concerned.

Practically, voting with your keel is fine, but you are locked into the contract for the year (or whatever the term of the contract is) and you have paid some or all of it in advance. Legally therefore the fact that you can vote with your keel doesn't change the fact that the clause may be in restraint of trade.

As for Berthon, I'm glad you're happy. I had some bad experiences laying up my boat there:

(1) they charged what I consider a fortune (£,000's) for what was IMHO some not very extensive work (winterising and recommissioning the engine, removing the mast etc.);

(2) I did most of the work on the boat over the winter myself. I needed the orginal builder of the boat to do some repair work. Berthon refused to let him go near the boat. As a result, I was unable to finish my winter repairs with considerable inconvenience to myself.

(3) they forgot to put my outboard on board and couldn't give me access to it, so I had to leave it in Lymington over the summer. I've got a lot fitter doing a lot of rowing as a result. There was no offer to deliver it to me, and eventually I had to go to Lymington specially to pick it up. When I did so, they had the cheek to insist on charging me for the 1.5hrs that I spent moored at their pontoon for the purpose! As far as I was concerned I was saving them courier fees and they are lucky that I did not demand a refund for not having the use of the outboard over the summer.

All in all, I was very unimpressed with their service.

 

[Guest]

p.s.

just to be strictly accurate: in the end Berthon didn't charge me for my 1.5hr stay on the pontoon to pick up the outboard. Only after I put a lot of pressure on them, though, and let them know that I would be claiming the money back!

 

[JohnR]

My guess is that the contract is in restraint of trade and therefore unenforceable.

 

[byron]

Slightly thread drifting but only slightly. Didn't part of a standard marina contract say that if you were away from your berth the marina could sub let it but would reserve for the berth holder a substantial portion of the fee collected? ALSO I believe the contract also said that if you sold the boat whilst it was on their berth you owed them 1%.
Can anyone tell me if these 'rules' still apply and if they are enforced.

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