Marina charging fees for a yacht they impounded?

Chris_Robb said:
I cannot see how the owner can get out of paying the original costs.
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The new owner dis not have a contract from the marina at the time, did not use any of the services of the marina at the time and therefore cannot possibly owe the marina a penny. Can an inanimate object incur debts?

I think that the new owner should seriously get proper legal advice. His household insurance contract may well cover this, or even his yacht insurance.
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Absolutely.
 
orbister said:
The new owner dis not have a contract from the marina at the time, did not use any of the services of the marina at the time and therefore cannot possibly owe the marina a penny. Can an inanimate object incur debts?


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He does not necessarily have to have a written contract, performance of a contract is as good as a signed contract in many respects. So if he used the facilities.... I cannot fathom out why the marina would chase him, if they did not have some cause in the first place. Smoke and fires spring to mind, but we have no idea of the circumstances therefore all speculation.
 
orbister said:
It sounds potentially very dodgy that the marina would trespass against the property of person B in order to recover a debt owned by person A. I think the new owner should get onto a nasty solicitor asap.
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The debt is owed by the boat and is for the owner to pay. That's why you buy it "free from incumbrance" so you (the new owner) don't inherit the boat's debt.


Maritime liens

A maritime lien is a lien on a vessel, given to secure the claim of a creditor who provided maritime services to the vessel or who suffered an injury from the vessel's use. Maritime liens are sometimes referred to as tacit hypothecation. Maritime liens have little in common with other liens under the laws of most jurisdictions.

The maritime lien has been described as "one of the most striking peculiarities of Admiralty law".[16] A maritime lien constitutes a security interest upon ships of a nature otherwise unknown to the common law or equity. It arises purely by operation of law and exists as a claim upon the property concerned, both secret and invisible, often given priority by statute over other forms of registered security interest.[17] Although characteristics vary under the laws of different countries, it can be described as:

1. a privileged claim,
2. upon maritime property,
3. for service to it or damage done by it,
4. accruing from the moment that the claim attaches,
5. travelling with the property unconditionally,
6. enforced by an action in rem.[16]
 
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duncanmack said:
The debt is owed by the boat and is for the owner to pay. That's why you buy it "free from incumbrance" so you (the new owner) don't inherit the boat's debt.


Maritime liens

A maritime lien is a lien on a vessel, given to secure the claim of a creditor who provided maritime services to the vessel or who suffered an injury from the vessel's use. Maritime liens are sometimes referred to as tacit hypothecation. Maritime liens have little in common with other liens under the laws of most jurisdictions.

The maritime lien has been described as "one of the most striking peculiarities of Admiralty law".[16] A maritime lien constitutes a security interest upon ships of a nature otherwise unknown to the common law or equity. It arises purely by operation of law and exists as a claim upon the property concerned, both secret and invisible, often given priority by statute over other forms of registered security interest.[17] Although characteristics vary under the laws of different countries, it can be described as:

1. a privileged claim,
2. upon maritime property,
3. for service to it or damage done by it,
4. accruing from the moment that the claim attaches,
5. travelling with the property unconditionally,
6. enforced by an action in rem.[16]
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This of course in privided tha it is a Part 1 registered vessel is it not? I believe that SSR is just a chatel and these provisions don't apply.

Because these provisions are set in law, it is also very quick to get the courts to release a boat if the evidence is not forthcoming.

Perhaps the time for talking is over. However its bloody dufficult to find a lawyer who will actually cut to the chase.................
 
Reply to Orbister
QUOTE The debt is owed by the boat and is for the owner to pay. That's why you buy it "free from incumbrance" so you (the new owner) don't inherit the boat's debt.


That is of course if the debt is disclosed to you. A mortgage would be obvious as it would show i=on the registery. If this guy is in contact with the previous owner, then the previous owner would be in breach of his sale declaration. I would be expecting a lot more from him, if my first season sail had been totally buggered. As I said before, I can hardly imagine that he didn't know something........
 
I think the buyer has been too slow off the mark if he is six months down the road.

If it was me then I would have tried to negotiate to remove the boat on the day of purchase by offering to sign a side agreement the guaranteeing any money due to yard the date of sale if they could not recover them same from the seller. Provided that it is proven in a court judgement.

Any right thinking person would say that the debt is between the yard and the previous owner, and that is the case but they will have a lien against the boat.

I think that the broker should have obtained a letter from the marina setting out any money due before completion and ensuring that the outstanding debt is paid on completion.

If you go to court and the amount claimed is small I would think that the court would have to take into account the concept of proportionality. In other words the remedy cannot cannot be out of proportion to the original debt otherwise the marina will end up with the costs.

For example if you are a wholesaler and pursue a customer for a debt of say £400 and your solicitor spends 12 hours of chargeable time at say £250 per hour on the matter even you will be very unlikely to get costs of £3000 on a £400 debt. I would be surprised if the same principle is not applied to the marina. So if the boat has mooring debts of £400 it is not reasonable for them to incur berthing fees of £30/day for six months particularly if their bill is in dispute and unsubstantiated. I would have thought you would have a very good case for a counter claim for loss of use and amenity unreasonably denied to you particularly if you have offered to guarantee any claim.

The guarantee is neither here nor their as the debt would have been secured against the boat in any event.
 
Seven Spades said:
I think that the broker should have obtained a letter from the marina setting out any money due before completion and ensuring that the outstanding debt is paid on completion.
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Sadly the marina were not for a long time able to provide a figure that they felt was owed, when they did it was for more than the amount of time the boat was kept there multiplied by their monthly rate.

It was not possible to get anything in writing or otherwise in advance because the marina only started hinting at a lien when they were notified of the sale. By the time they quoted chapter and verse and came up with a single demand the ink was well and truly dry on the bill of sale (and then some!).

As for the other poster's comment about smoke and fire, as mentioned earlier the marina staff have been overhauled so it is not impossible that there were some serious issues going on in the background that may have influenced the decision to impound this boat. In any event "good practice" and "clear communications" have not been demonstrated by the marina. So perhaps the smoke is not a sign of fire, but rather steam escaping from an over stoked boiler.
 
lenseman said:
If you. like me, are a member of the RYA, get legal advice. ;)

http://www.rya.org.uk/infoadvice/legaladvice/Pages/default.aspx
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That is excellent advice, I know the current owner has sought legal advice but will point them in this direction.

I guess the crux of it is:

When does a lien become a ransom!...

"Pay 2k to get your boat back, no no hang on actually make it 3k... Oh and by the way, we have been charging all the time we have been ignoring you so that is another grand."
 
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Seanick said:
I suggest the new owner buys a nice pair of bolt croppers and removes the boat in the early hours, leaving a cheque for storage accrued since purchase.
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Would be my solution too, but during day time, just hope there isn't a lock gate or something in the way.

Pete
 
If I understand it correctly the boat was sold - then the marina demanded payments.

It sounds like a claim against the broker to me for not protecting the new owner from unpaid debts against the entity - the boat.

IF the broker can show that searches revealed that there was no money owed at the time of the sale then the marina have to back down.

IF that is the case then the new owner can claim that the boat is held by force maguer (not sure of the speling sorry) and not pay for "moorings or storage"


But it all becomes the brokers problem IMHO.
 
Malthouse said:
I am not at all sure how any broker can predict that a marina is going to make a demand and hold a boat in lien.

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Malthouse, Above is NOT what I said,

I said that the "failure" would be that the broker did not find out IF there was a charge unpaid against the boat BEFORE it was sold. The process that you have described that of asking the previous owner is the normal approach and I suspect will be part of a document to be completed and signed by the previous owner describing many aspects of the sale. Dates of this document and any invoices that may come to light will prove the integrity of all parties; it is an important document.

Obviously if the Marina were tardy in producing an invoice and it could be shown that they knew the boat was subject to a change of ownership then ULTIMATLEY the bill becomes the property of the person who gave the instructions to the Marina - the previous owner acting on behalf of the boat, this sounds and is perfectly reasonable, at first sight.

However this is where things get difficult for all concerned for several reasons,
Marinas usually have clauses relating to the sale of boats (they want a cut) so an invoice could appear if they find out the boat is to be sold from their establishment.

and

legally the boat is a legal entity (a person) in its own right so the boat has to pay any bill against it - who pays the boat is another matter and the Marina wont want to get involved with this so they put a Lien on the boat restraining it and preventing it from moving.

However once they do this the amount of the bill (Lien) has to be declared and is fixed, they cannot add more for berthing or storage as an ongoing "arrangement". IF they cant tell what the charge is then there is no legal Lein.

My understanding is that the solution requires in effect two things to happen, the Marina are paid by the boat or the boat wins a case to have the lien removed as unfair; that settles the lien and the boat is now free to move.

If money changed hands then the person who paid the boat (assuming its the agrieved party - new owner) now starts a new action against the person or persons thought to be responsible for that charge. This could be the past owner and/or the broker if it could be shown the broker was negligent in the way the sale was administered.

In any event accurate documentation with dates and signatures is vital so these matters can be resolved.

That said the remedy wont always turn out in your favour, even if you win all you get is a piece of paper saying you have won, IF the other side are nowhere to be seen you wont see any money. Over the years I have accumulated quite a few pieces of paper (not marine related) and very often, all to often, no money to go with them, the saying throwing good money after bad springs to mind when considering enforcing an order.

Good luck with this one!!
 
Malthouse,

I've got a feeling that this article relates although it is about cars and parking the principle is much the same. Read the section on Contract Element lower down, here: http://forums.pepipoo.com/index.php?autocom=ibwiki&cmd=article&id=56

There are also links to case law regarding detaining a vehicle or property, thus keeping it in the place where it should not have been in the first place until fees are paid. It is the legal aspects of detaining a piece of property and claiming for damages that apply. It appears that in law the legal basis is taken from a right to charge for damage caused originally by livestock trespassing onto land and eating crops, where the livestock could be held until the damages had been paid for. Anyway, read it, it is possibly enlightening in your situation.
 
From Marsuplial
legally the boat is a legal entity (a person) in its own right so the boat has to pay any bill against it -

I posted a coment on this before - surely this only applies to a british registered ship - ie with Part 1 registration. If its SSR then it will not apply - but a lien may still exist.

Any one know if this distinction is correct?
 
mY understanding is that a marine lien exists on the vessel irrespective of change of ownership. When purchasing it a good idea to ensure that the vessel is free of debt. And, of course, marina fees or harbour dues will continue to accrue whilst the vessel is there.

My understanding is that it is upon any vessel, and Part I registration is irrelevant
 
wotayottie said:
Doesnt the agent have some responsibility to pass good title? Seems to me that he has sold a boat but cant deliver. certainly when I bought a boat recently, the agent held back the consideration from his client until he was clear that all charges against the boat had been paid. He also gave me some week or two to make sure that everything listed in the inventory was there and everything said by the purchaser abnout the condition was correct.
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In ordinary circumstances, a broker (agent) has no contractual obliigation to the buyer with respect to title or any other matter (there is no contractual nexus between broker and buyer). He may, at most, have a duty to notify the buyer if he is aware of an actual defect in title (I would be interested to see other opinions on that point). Certainly, if he has acted in good faith, he would not have any liability for any defect in title.

If a broker withholds the purchase price from the seller pending production by the seller of title documentation, he is either doing so without express authority (which places him in breach of his duty as agent) or under specific authority from the seller in the brokerage agreement. That is possible but it goes further than the terms of the brokerage agreement I have to hand (standard terms of one of the major international brokers). That (the standard terms) authorises the broker to act as stakeholder, to deduct his own commission and to distribute the sale proceeds in accordance with the instructions of "all parties to ownership", which (I infer) is designed to permit settlement of outstanding finance to a mortgagee.

A broker who goes further than that, without express authority, may be acting in good faith to protect the interest of the buyer but, by acting as a self-appointed referee, he's opening himself up to possible claims over matters that he can't control.
 
Marsupial said:
If I understand it correctly the boat was sold - then the marina demanded payments.

It sounds like a claim against the broker to me for not protecting the new owner from unpaid debts against the entity - the boat.

IF the broker can show that searches revealed that there was no money owed at the time of the sale then the marina have to back down.

IF that is the case then the new owner can claim that the boat is held by force maguer (not sure of the speling sorry) and not pay for "moorings or storage"


But it all becomes the brokers problem IMHO.
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I'm afraid that is all utter tosh. Not one of these assertions is correct in law or has any validity whatsoever (barring exceptional and highly unlikely circumstances).
 
Chris_Robb said:
From Marsuplial
legally the boat is a legal entity (a person) in its own right so the boat has to pay any bill against it -

I posted a coment on this before - surely this only applies to a british registered ship - ie with Part 1 registration. If its SSR then it will not apply - but a lien may still exist.

Any one know if this distinction is correct?
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A boat/vessel/ship is most certainly NOT a legal entity/person. It is a piece of personal property. I believe that ships (whether there is a size/tonnage threshold I'm not sure) do have some special status that permits specific legal remedies (such as arrest), to be exercised (as do aircraft, I believe), but I am not sufficiently knowledgeable to advise exactly what they are or the scope of them. I doubt that there is any distinction on the grounds of Part I/Part IV (SSR) registration. Part I supports registration of ownership (including divided ownerhip) and charges/mortgages. It does not, AFAIK, have any bearing on the operation of liens etc.

Marsupial's comments should be disregarded. They are nearly all complete bo**ocks.

[edit]To clarify one point mentioned above:

- the 'maritime lien' that can be applied to vessels/ships arises under a distinct body of law - 'Admiralty law' or 'maritime law' - that has historical roots in international commerce and shipping. It includes, among other elements, the law relating to salvage rights

- the corresponding rights against aircraft do not arise under maritime law but under statute (Civil Aviation Act(s))
[/edit]
 
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