Marina Charges during Covid-19 lock down? A simple poll.

[Ian_Edwards]

There is a lot of confusing between the letter of the law and what the law actually says during a period when many boats are locked into Marinas or Yards.

My current understanding is that Marinas and Yards are not prohibited, in law, from being open. They are not listed in Part 2 of Schedule 1 of the Scottish Regulation:



The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 Which list categories of organisation which must close.



British Marine the trade association for the marine trade apparently has guidance which say that all marinas should close, the significant word is guidance.

This implies that Marinas and Yard must make their own decision as to whether they close or not.

The competition and Markets Authority Guidance (CMA).

The Coronavirus (COVID-19) pandemic, consumer contracts, cancellation and refunds

States that:

"The position in most cases:
Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

In particular, for most consumer contracts the CMA would expect a consumer to be offered a full refund where:
a business has cancelled a contract without providing any of the promised goods or services;
no service is provided by a business, for example because this is prevented by Government public health measures;
a consumer cancels, or is prevented from receiving any services, because Government public health measures mean they are not allowed to use the services."

If we assume that Marina and Yards offer a service, then it follows that the official guidance is that they should not charge storage fees when boats are locked in because of Government Health regulations.

The RYA stated on it's webpage:

Coronavirus - advice and information for recreational boaters
Guidance for boaters (updated 07/05/20) ....... which seems to have disappeared with the most recent update on the 13/05/20 ..... perhaps the RYA does not realise that Scotland, Wales and Northern Ireland are still in lockdown.

"There is no reference in the regulations to the closure of marinas and they do not give powers in this respect to trade bodies or any harbour authority or individual marina operators. This provides scope for limited and controlled access for owners to their boats whilst implementing hygiene and social distancing measures."

I think that there is guidance from 3 different sources which appear to me to provide contradicting advice.

I don't have problem with limiting travel and social contact in order to reduce the spread of Covid-19.

I do have problem with Marinas and Yards charging full storage charges whilst restricting access. I also think that here are subtle differences between being locked into a yard where a long term contract exists, i.e. and annual contract, and one where there is no contract in place i.e. the winter contract ran out at the end of March.

I do not know what the right answer is, but I feel strongly that it is unfair to charge storage fees when a boat is locked in and there is no legal basis.

I would like to conduct a straw poll to try and gauge how many forumites agree or disagree with me.

 

[Donal2020]

Posted this earlier in the Yachting Monthly's Scuttlebutt forum..

Being charged 100% and my boat is not even in the Marina.... So voted not happy with charges. If boat was there and being looked after, I would probably be happy.

Post copied below:
My position is that the Marina I keep my boat in works on a monthly, quarterly or annual licence basis. They have no provision to keep boats ashore so if work needs to be done, I have to move to (and pay) another boatyard. The annual licence starts on the 1st April and my boat has been in a local boatyard since the end of January. I expected to put her back in the water, and therefore back at the marina, in early April. In early march I signed the 2020/2021 licence application for another year as intended to have the boat back sometime in April. Full berthing charges are still being charged by the marina since they closed access in late March. If my boat was safely tucked away at the marina I would perfectly accept charges would carry on applying, even though the marina cannot fully comply with its own obligations under their terms of the licence. As my boat is not there, I do feel a little aggrieved that they are not providing some discount. I guess unless they have to by law, they won't even if some marinas are being more considerate.
Will be interesting to see if they respond to my request for a discount on the basis of my boat not actually being at the marina.. they are clearly taking my request very seriously as they have now been considering it without a response for 4 weeks... unless the invoice received on 1st May was confirmation of their position!

 

[superheat6k]

During the full lockdown businesses that closed would have seen at least some significant reduction in their running costs, but by no means a total reduction, and a boat has to be kept somewhere. So although access and use of marina or yard facilities has been withdrawn some significant aspect of the service has been provided.

So at least a partial refund should be due to berth holders and I would suggest 25 - 50% would not be unreasonable .

In my case this would amount to ~£125 - £250

In the grand scheme of things that sum isn't going to go to far in any sort of legal action, just goes to show what we already know that too many marine businesses are more than happy to fleece their customers. Notwithstanding I expect such businesses could simply state Force Majeure.

 

[Babylon]

Am being charged and NOT happy, so voted that way.

My boat was booked to be out for 3 weeks. Lockdown happened at end of 2nd week. Yard shut down completely and only re-opened for their own staff two weeks ago and to customers a week ago. Boat now re-launching this week. Yard saying the charge will be 80% of normal hardstanding cost for extra 8 weeks.

 

[greeny]

Am being charged and NOT happy, so voted that way.

My boat was booked to be out for 3 weeks. Lockdown happened at end of 2nd week. Yard shut down completely and only re-opened for their own staff two weeks ago and to customers a week ago. Boat now re-launching this week. Yard saying the charge will be 80% of normal hardstanding cost for extra 8 weeks.

I wouldn't be happy either especially if you're paying elsewhere as well. If the boat was due to be in the yard for the full period or longer then clearly there is reason for them charge and 80% seems reasonable. You weren't due to be there and were trapped. They failed to launch you. I would contest it.
If your car was stuck at an airport carpark due to CV then from what I see, they are cancelling the extra charges incurred. This is exactly the same in my mind. It cost them nothing for your boat to be there. You were not taking up space that another boat could have used because there was no boat coming in.
I think they are passing their losses in business onto you indirectly.

 

[[70521]]

How many days sailing have people actually lost?

 

[Babylon]

Greeny is spot on - its a naked money grab - and Sandy's point is neither here nor there. Its not a question of lost sailing days in the slightest. In my case its about being held to ransom (no pay no re-launch and the charges for hardstanding continue to rack up) for several hundred pounds of money they're simply not entitled to.

 

[RJJ]

This may help. My lot started off saying no refunds and any extension was at full whack; a reasonably officious letter from me and they came back with a very reasonable offer; honour and friendship maintained.

Note everyone's situation is different as regards the service rendered. If you originally wanted your boat in a cradle for a long time because it just suited you, you have got what you wanted and I wouldn't recommend arguing the toss. If you (as in my case) were specifically out in order to do some substantial works, and were prevented from doing so, and had another berth available elsewhere, then it doesn't work to say "ah but we have been keeping her safe and sound for you". That's not what you wanted. If you instead were ready for relaunch and the yard wouldn't / couldn't provide that service, it's again not acceptable for them just to whop on the continued rent.

Legal position is I believe (no I am not a lawyer but I am a bit anal about small print). you have a contract with them that allows you access - probably in the t and c otherwise certainly demonstrable by embedded practice (or some such term). You are also reasonably entitled to expect a relaunch on or very near your desired date, especially if you had agreed that date in advance. If the yard breaks those arrangements they are in breach. If they then fail to release your property by relaunching they are again breaking the law regardless of their purported claim for more rent. If they think you owe them money they must launch and separately invoice you and you then fight that out; nowhere have you given them lien on the boat as security for payment.

There is not nor was there at any stage a legal obligation for yards to close. V important. Refer them to the inclusion of marinas as caravan parks which was GUIDANCE and then to the coverage of caravan parks as LAW, listed as "accommodation" and explaining in LAW the rationale as "prolonged close social contact". Forget it. The yard changed their services to you without your agreement and had no obligation to do so.

Whether you needed or wanted to leave home during lockdown is a matter for you to judge not the yard as to whether it was a "reasonable excuse". Their ONLY legal obligation as a business was to ensure social distancing could be applied; apart from that they remain bound to you by a contract that they cannot unilaterally vary.

Think landlord and tenant. It's not legally acceptable for a tenant unilaterally to withhold final month's rent in lieu of deposit return, thus guarding themselves against deductions, nor (which is a closer parallel) to refuse to vacate until deposit is settled. The landlord is perfectly entitled to pursue tenant for rent plus costs and separately to settle the deposit in the official way.

If there were variable costs at stake it might be reasonable for the yard to expect them covered. But in respect of cradle space I don't reckon there is.

 

[awol]

How many days sailing have people actually lost?

With the weather we have had, about 47 and counting.

 

[cherod]

i am very happy with my port authority , ( present circumstances and my own personal situation considered )

 

[cherod]

There is a lot of confusing between the letter of the law and what the law actually says during a period when many boats are locked into Marinas or Yards.

My current understanding is that Marinas and Yards are not prohibited, in law, from being open. They are not listed in Part 2 of Schedule 1 of the Scottish Regulation:



The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 Which list categories of organisation which must close.



British Marine the trade association for the marine trade apparently has guidance which say that all marinas should close, the significant word is guidance.

This implies that Marinas and Yard must make their own decision as to whether they close or not.

The competition and Markets Authority Guidance (CMA).

The Coronavirus (COVID-19) pandemic, consumer contracts, cancellation and refunds

States that:

"The position in most cases:
Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

In particular, for most consumer contracts the CMA would expect a consumer to be offered a full refund where:
a business has cancelled a contract without providing any of the promised goods or services;
no service is provided by a business, for example because this is prevented by Government public health measures;
a consumer cancels, or is prevented from receiving any services, because Government public health measures mean they are not allowed to use the services."

If we assume that Marina and Yards offer a service, then it follows that the official guidance is that they should not charge storage fees when boats are locked in because of Government Health regulations.

The RYA stated on it's webpage:

Coronavirus - advice and information for recreational boaters
Guidance for boaters (updated 07/05/20) ....... which seems to have disappeared with the most recent update on the 13/05/20 ..... perhaps the RYA does not realise that Scotland, Wales and Northern Ireland are still in lockdown.

"There is no reference in the regulations to the closure of marinas and they do not give powers in this respect to trade bodies or any harbour authority or individual marina operators. This provides scope for limited and controlled access for owners to their boats whilst implementing hygiene and social distancing measures."

I think that there is guidance from 3 different sources which appear to me to provide contradicting advice.

I don't have problem with limiting travel and social contact in order to reduce the spread of Covid-19.

I do have problem with Marinas and Yards charging full storage charges whilst restricting access. I also think that here are subtle differences between being locked into a yard where a long term contract exists, i.e. and annual contract, and one where there is no contract in place i.e. the winter contract ran out at the end of March.

I do not know what the right answer is, but I feel strongly that it is unfair to charge storage fees when a boat is locked in and there is no legal basis.

I would like to conduct a straw poll to try and gauge how many forumites agree or disagree with me.

i would totally agree with you in most of that,, i really cannot understand how any company can force you to pay for a service which they are forcing upon you and which you have not accepted.

 

[Babylon]

This may help...

Thanks for that hugely useful post!

 

[Tomaret]

The boat went in a week before lockdown and has been occupying the berth I’m paying for. Staff remained at work, keeping an eye on the moorings, and sent the occasional photo. I’m happy.

 

[[70521]]

With the weather we have had, about 47 and counting.

Nice to see an honest answer. Thank you.

Year after year I see boats being launched and not used for weeks; until the better weather arrives.

Personally, I am afloat and have been all winter. Work, a major electrical refit, has been delayed but a few days solid graft will sort that out - if I can get the parts. Then the joy of taking her out for the first time in a few months and remembering all my drills.

 

[Elessar]

MDL gave 50 percent discount on account.
I thought that was erring to the generous side of fair.
So I’m happy.

 

[Ian_Edwards]

Thanks for all the input so far.
I have made an official complaint against Holt Leisure to the Competitions and Marketing Authority , which has been backed by my local MP.
The CMA have promised to respond by the 2nd June.
The Official guidance on the CMA's website says:

Introduction

There are a wide range of contracts that have been affected due to the Coronavirus (COVID-19) pandemic. The following sets out the CMA’s general views about how the law operates in this area, to help consumers understand their rights and to help businesses treat their customers fairly.

The position in most cases

Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

In particular, for most consumer contracts the CMA would expect a consumer to be offered a full refund where:

• a business has cancelled a contract without providing any of the promised goods or services;
• no service is provided by a business, for example because this is prevented by Government public health measures;
• a consumer cancels, or is prevented from receiving any services, because Government public health measures mean they are not allowed to use the services.

It'll be interesting to see the CMA's responce, if they standby their published guidance, then I hope Holt Leisure will back down. If not I'll take them to the small claims court.

Towards the end of the end of May, I'll forward the results of the poll to the CMA, which will give the CMA some indication of the way in which various Marinas are responding.

If you haven't voted, and you are being charged marina or yard fees during lockdown, then please vote, as they say every vote counts, it may even save you some money.

 

[Deleted member 36384]

Thanks Ian for your investigations and sharing the information on this forum.

The link below goes directly to the Government web site where you can "Report a business behaving unfairly during the Coronavirus (COVID-19) outbreak": -

GOV.UK - Report a business behaving unfairly during the Coronavirus (COVID-19) outbreak - GOV.UK

 

[Babylon]

Yes, thank you Ian for your work on this - and thx also BoB for the link above.

 

[scottie]

Thanks for all the input so far.
I have made an official complaint against Holt Leisure to the Competitions and Marketing Authority , which has been backed by my local MP.
The CMA have promised to respond by the 2nd June.
The Official guidance on the CMA's website says:

Introduction

There are a wide range of contracts that have been affected due to the Coronavirus (COVID-19) pandemic. The following sets out the CMA’s general views about how the law operates in this area, to help consumers understand their rights and to help businesses treat their customers fairly.

The position in most cases

Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

In particular, for most consumer contracts the CMA would expect a consumer to be offered a full refund where:

• a business has cancelled a contract without providing any of the promised goods or services;
• no service is provided by a business, for example because this is prevented by Government public health measures;
• a consumer cancels, or is prevented from receiving any services, because Government public health measures mean they are not allowed to use the services.

It'll be interesting to see the CMA's responce, if they standby their published guidance, then I hope Holt Leisure will back down. If not I'll take them to the small claims court.

Towards the end of the end of May, I'll forward the results of the poll to the CMA, which will give the CMA some indication of the way in which various Marinas are responding.

If you haven't voted, and you are being charged marina or yard fees during lockdown, then please vote, as they say every vote counts, it may even save you some money.

Holt leisure are /were primarily a caravan park businesses and do have a history of reverting to caravan park practices as I recall

 

[Ian_Edwards]

Thanks Ian for your investigations and sharing the information on this forum.

The link below goes directly to the Government web site where you can "Report a business behaving unfairly during the Coronavirus (COVID-19) outbreak": -

GOV.UK - Report a business behaving unfairly during the Coronavirus (COVID-19) outbreak - GOV.UK

I used this link initially, it takes you to a form which isn't that helpful. I found it hard to put all the information I had into the form, and the form is obviously designed to populate a database. Typical civil service and government thinking.
When you hit submit, you get the very unhelpful message that the CMA are no longer responding to individual submissions. They have been overwhelmed by complaints about bad practices in the wake of Covid-19 .
I felt like I'd just waisted my time. That's when I got my local MP and MSP involved. The CMA getting a letter from an MP woke them up.
So don't give up, summarise you grievance and write to your MP and MSP if you have one, and tell them that you are unhappy with CMA's approach. The more pressure applied to the CMA, the more likely the sailing community with get a determination.