Who is responsible for my boat while in the hands of a boat yard?

[jaws]

It's worth checking this out before handing over the keys to your pride and joy!

This the letter I sent to MBM.

[ QUOTE ]
We recently purchased a Bavaria 32 Sport from a dealer in Levington on the East Coast. We moor in Teddington and when a warranty issue came up the dealer arranged for Linden Lewis Marine to carry out this work as it wasn't economical to send an engineer from Levington. The work being carried out was the fitting of new doors and a few minor electrical items.
When we dropped the boat off with Linden Lewis we, therefore, assumed there would be no requirement for the engine keys. We were told that they would need the engine keys to move the boat around the marina at various times as space was an issue. I, naturally, asked if they had insurance and was told that any damage would have to be covered by my insurance and that only incidents due to their negligence would be covered, i.e if their crane fell on the boat etc. I told them that I wasn't happy with them moving my boat around what is an extremely tight marina. I offered to come down and move the boat when required or if they found a permanent location I would happily move the boat there. They insisted they needed full control of the boat and to be able to drive her whenever they needed to. I wasn't even sure my insurance covered someone else driving my boat without me on board so I went away and called them. As it turns out they do cover this, but I still wasn't happy. Therefore, for peace of mind, we suggested that we both check the boat for damage and agree this before handing over the keys. We were promptly told that they no longer wanted to work on our boat. I've been boating for 6 years and never have I been asked by a boat yard if they can drive my boat whenever they feel like it. In the end it wouldn't be in their interest to own up if they damaged the boat and even if they saw someone else damage the boat there is no requirement for them to provide those details to me. Can you let me know what my rights are in this matter and if I was doing the right thing?

[/ QUOTE ]

This is the response from Gus Lewis, their Legal expert and is as I suspected a boatyard can't absolve themselves of responsibility for your boat.

[ QUOTE ]
In answer to the question, to a certain extent responsibility will
depend on the terms of the contract between the boat owner and the
boatyard. Where the boat owner is dealing with the boatyard as a
consumer, however, the terms of the contract will be subject to the
requirements of "reasonableness" (Unfair Contract Terms Act 1977) and
"fairness" (Unfair Terms in Consumer Contracts Regulations 1999).

It is quite common (and in my view not unreasonable) for marina
operators and boatyards to reserve the right in their service contracts
to move boats around their marina or yard at their discretion, to enable
them to make the best use of the available space and to ensure that
individual boats are in the most convenient location for works to be
carried out. That said, if the marina operator or boatyard were
negligently to damage a boat while they were moving it around the marina
or yard then the marina operator or boatyard would normally be liable -
and in my view a contract term seeking to exclude such liability would
be likely to be found to be unreasonable or unfair and consequently
unenforceable. Even if the damage were covered by the boat owner's
insurance, the boat insurer may well want to recover its outlay from the
marina operator or boatyard. The marina operator or boatyard's liability
in this regard should therefore be covered by the marina operator's or
boatyard's insurance policy.

If a boat owner is unhappy about the marina operator or boatyard moving
their boat then the owner would be right to seek to agree alternative
arrangements with the marina operator or boatyard but, in the absence of
agreement, the boat owner may simply have to consider taking the boat to
a different marina or boatyard.

[/ QUOTE ]

Before anyone asks I did check with Simon that it was ok to post this here.

 

[KevB]

To me it seems that Gus Lewis is just re stating what the boat yard have told you - if they are negligent then they are responsible. If when moving the boat they crash into something they're obviously negligent and therefore responsible.
I wouldn't expect the boat yard to pay if they moved my boat to another berth then someone on another boat at a later stage crashes into it, that's a issue for my insurance to take up, nothing to do with the boat yard.

 

[volvopaul]

I would be glad they refused to work on your boat, if they had told me that I could not of got away fast enough, surely they must feel competent to drive your or anyones boat without any misshaps, if not then whats there standard of work like?.

I would suggest you put it back in Bavarias hands as its there problem, I would feel gutted about having to have work done at this time of year, tell me why does a relatively new boat need new doors and other waranty issues? surely you would be better waiting for the winter to have this done, if the boat is not useable then I would be seeking some form of compensation from the dealer/builders.

As regards to terms and conditions, most marinas and yards have to adhere to the BMIF std terms etc, which covers them and you, however they all have a great get out clause which as a n engineer theoretically on the other side I think its a joke, it more or less reads as they dont really give a hoot what happens to your pride and hard earned joy when its in there hands, Im sure your not on your own but thats the way it is, good luck and get repair times and dates in writing if you can cos before you know it the summer will be gone, thats if it ever gets here!!!.

 

[jaws]

If only it was that clear cut. The point in this case is that if when I picked up my boat there was any damage that wasn't there when I dropped her off then I would have to claim off my insurance. There is no insentive for the boatyard to own up to any damage caused by their negligence. The crane example is a fairly obvious one, however. I also wasn't even being asked to sign a contract, just to hand over the keys.
Who's to say the person they get to move the boat is experienced. My boat has EVC controls and 210hp engines which, if your not used to it, can give quite a kick in close quarters manouvers.
When I asked to set up some kind of agreement about the current state of the boat they backed away.

 

[jaws]

I was glad they refused the work!
It is indeed Bavarias problem and to be fair they organised the work to be carried out by Linden Lewis as the nearest, supposedly, reputable boat yard near us. There was a design flaw with the doors which caused the laminate to crack slightly. This was there when I purchased the boat and was always going to be replaced with newly designed doors. All this work is just minor things and is being scheduled around my use of the boat. I won't let anything come between me and enjoying the short boating season!

 

[duncan]

both answers are the same and I believe correct but the latter one actually risks fudging the issue more than the boatyard!

the issue is of course in the word 'negligent'. as you highlight accidents happen, and not all of them as a result of negiligence. generally without proving negligence it is your insurance that will have to be utilised even if they are at the boats controls.

this is exactly the same as an incident out on the water - unless you can prove negligence that other boat crashing into yours and breaking something will be your problem - I think there was a note highlighting this in a response from Geoffrey Whelan at the RYA legal dept recently.

on a practical note I have seen a number of minor incidents resolved by boatyards - most have reputations to uphold.

finally were you to come back to your boat and find a score along the side it could as easiliy be another boat as the marina staff obviously; and their duty of care wouldn't extend that far in most circumstances.

 

[jaws]

In the end it's a judgement call. This guy didn't make us feel comfortable leaving our boat in his hands. The marina is very tight and I wasn't happy with the prospect of him moving the boat here there and everywhere. He was the one that said that he would have to move her around quite a bit and in the end the more times you move her the more likely you are to have an accident.
I've never felt this way the numerous times i've left my boat before with other yards as they generally have an allocated berth and she stays there.

 

[fireball]

We had our boat in the marina for replacement instruments (under insurance) ... yes, they needed the boat keys, but they never moved her under her own engine - they used their own workboat. I didn't check at the time, but I assumed that any damage caused by the marina staff would be covered by them.
Even when I had problems they came and collected the boat from her moorings using their own work boat again ... and put her back.

 

[vanoord]

I can understand entirely why they didn't want to work on your boat /forums/images/graemlins/wink.gif