Liability

[wheels 543]

Just a question.
If a Marina put a contract in front of you, (that you have to sign before they will lift the Boat) that said they cannot be held liable if they have a drama (like maybe a sling slips or breaks) and drop your Boat and damage it. Can that be the case. I am thinking of how Consumers Guarantee fits in here.

[wheels 543]

I had my hackles up a bit, as I feel I am being forced to have to use a monopoly and they are twice the price as the guys I normally use. But I sucked it up and got on with it and booked in Friday for the lift. Friday is the only day of calm, inbetween some nasty weather events we are having here. Plus the Tide is at the right time. I decided to take the lift and waterblast and splash option. $398 is the cost. But then I get an Email along with this Contract I have to sign before they will lift the boat. In the Email they say that if the Hull has fouling on it, then I also have to pay for them to clean it up and dump it. That is an extra charge on top of the 398. There is no cost apart from them saying the Minimum charge for that is $25. And I have to pay the Day before and leave them with my Credit Card details so they can add on whatever additionals there could be. So now I am annoyed and I decide I should read this Contract and this is where I come across the particular clause of all fun and no liability. In fact the contract pretty much is all in regards to them being clear of all and any issues and responsibilities. I know it is rare for things to go wrong, but it has happened and I was annoyed that I have absolutely no cover by them if they drop the Boat.

[ScottiE 174]

I think you'll find that is a standard clause in every boat yard. Certainly I've read it on contracts at Oram's, the landing, HMB marina.

The charging for work done without a cost estimate is no different to getting your mooring serviced. You just have to trust that they contractor is honest. I say that cause I just got my bill today - ouch - but then I did have to put another 300kg on it as decreed by Auckland Transport!

[Beccara 25]

First thing to always remember, You can't contract out of law. Next thing is a contract can't be grossly unbalanced - You cant go to a professional, Hire them for a task and them contract out themselves out of liability should they mess up.

 

Typically liability clauses are there to prevent 3rd parties causing one of the parties cost's i.e a yard will contract out liability of another user of the yard causing damage to your boat making your beef with the 3rd party rather than with the yard who would then go on to have a fight with the 3rd party. KN is right in that most contracts wouldn't stand up to a judge fully and in this case if you hire a lift operator/crane operator to come and do a lift and they damage it through their actions then you would win.

 

There was a recent example of lift damage up here i heard about 20th hand where the lift operator didn't strop at the right points and compromised the shaft's flooding sections of the boat. The boat owners insurance made quick work of their "all care no responsibility" clause, Worth checking with your insurance company what would happen if a lift damaged your boat with a no liability clause - They have deep pockets for lawyers and this is one of the rare cases where that can work for you

[tuffyluffy 76]

You cant contract out of the law no matter what you put in your contract and get the customer to sign.

 

It sounds like a standard 'try-on' that isn't enforceable - its common in a lot of contracts even though it wouldn't stand up in court.

 

As Knotty and his lawyer would have pointed to the lift company, if they are providing and charging for a service, even without a contact, they must provide a duty of care and not act negligently. If they damaged your boat it would be hard for them argue they'd done this.

[tuffyluffy 76]

You cant go to a professional, Hire them for a task and them contract out themselves out of liability should they mess up.

 

 

 

Unless they're an inspector for the local council 

[Beccara 25]

Even then the councils have been taken to task on that Just gotta have large pockets and rules are slightly different for CG/LG

[wheels 543]

I took a close look at the CGA this afternoon and it is very clearly spelt out that Port Marl is in the wrong with these clauses. Then not long after, I was talking the the Marl Council guy that wants me to get the Boat cleaned. I told him the issues I was not happy about and he said the same thing, they can't do that. Which is funny being that the Council own Port Marl. Then he said he would call them and discuss the other issues re cost and see if he could get them to bring the cost down a little, because he was very keen to see the Hull cleaned. He called me back again to say he had no luck. It was a complete brick wall with them. They said nope, that's the price and that is their T&C's. So I am kind of stuck between a Rock and a Port Company. I have already been told that under the Biosecurities act, I can't take the Boat anywhere else and that is fair enough. I don't want to see this pest spread either. But I am not sure what laws there are in regards to a time frame of getting the boat out and cleaned. I was going to dig my toes in and argue with the Port Company that no they are not getting my credit card details for them to tack on additional costs that they come up with afterward and that no I am not going to sign a waver re liability of Boat and tell them to go read the CGA. But I may just make things tougher for myself in the end perhaps. I am pretty sure Biosecurities act tends to use a Lead weighted Bat instead of stick to hit with.

[Black Panther 1,587]

Take it to the media?

[Rangi1 51]

Just pay it and get on with your life?

[Beccara 25]

Use a debit card on a separate account like some do where there is concern of other costs, If they dont accept that then a loaded travel card will work VISA. If they still refuse it then complain to VISA as they are breaching their merchant services agreement by refusing a valid VISA, They can refuse debit's if they are clued up but they can't reject a full VISA.

 

As for the liability, Would be best to suck it up - It not valid and by the sounds of it even if they did cross it off if anything happened you'll be bringing in suit's anyway. CGA has your back, Case history has your back and my bet is if anything actually happened either your own insurance would fight them for costs and your excess or a cheap legal letter from a suit would send them packing.

 

It's extremely rare for a company to fight their T's & C's in court, Many see testing them in court as too risky and will settle anyway. The only times i've personally seen it happen is when the company knows from the suits they have a water tight case AND a strong case for costs aswell 

[Beccara 25]

As another note, give comcom a call and pass them a copy of the terms, Quite often they will take a quick look and shot a note to the company giving them a warning. If it's not the first time they've come across them then they may issue fines and whatnot

[darkside 61]

You absolutely can contract out of a law, hiding behind a third party as councils do routinely, is an obvious example.

However in a routine operation like this you probably can't.

My guess is you are fine to just go ahead and sign.

 

However if you want to be prickly, take them a piece of paper along the lines.

Is your travel lift in current certification?

Is it well maintained?

Is the operator trained?

Is my boat within the safe loading specification of you travel lift?

and, here is the kicker:

Can you give any reason why you think you will damage my boat during the lift?

[ScottiE 174]

After which their just as likely to tell you to piss off!

[darkside 61]

Yeah probably, but then you really would have something for the media, worksafe and the council as it seems they own them.

[jay 3]

Personally I don't have a problem signing this type of clause, since my understanding is that my own insurance policy would cover if they damaged the boat. The way I see it, there are some very expensive boats out there, and if the yard dropped one and had to pay, haul-out rates for everyone would go up higher than they already are. I would rather absorb this risk thru my own insurance than pay higher rates to cover risk of damage to someone else's flash yacht. 

[wheels 543]

Jay, firstly you have to assume every boat is insured. Secondly, for those that are, you have an excess and it can be substantial in some cases. Thirdly, if you ever make a claim, it is likely that your premium is going to go up.
And most importantly, I have never checked on this myself, but what kind of clause could there be in ones policy in regards to liability when the boat is out of the water or transported on a lift/cradle. I may not even been written in to the Policy, it may in fact be not written in the "what is covered" section at all. This os going to depend on who you are insured with, what they cover and their wording etc.

But all that aside, it is just a case that I can get this job done for half the price else where, but because of the Bio security act, I am not allowed to travel around the the other yard. That's fair enough, I have nothing against that law, it's just that I don't like being forced to use an operation that is a monopoly and that attitude that goes with it.
But the biggy for me, I don't have $400, so putting yet more on the card makes things harder for me. I am not happy that I have this open ended possible and likely extra cost of disposing of what they clean off, not knowing what it could be. They say a minimum of $25 and that amount is not a problem. I expect I am going to have to pay that. But what if it becomes another $100 or maybe even more. That part I don't like. Last time that kind of thing happened (and it was in Waikawa), a $5K ball park became $18K and damn near buried us. OK that's an extreme, but it just makes me nervous.
And yes it is very very very rare for Boats to come off Travel lifts. But it has happened. And FC's biggest risk is out of the water and often when being lifted and if something happened, that is the end of a life on the water for us.

But anyway, I have no choice. Tomorrow at 11.30AM we get lifted and cleaned. I cant afford to Antifoul at this time and the weather is no good to do that anyway, so it is going to have to come out yet again sometime later for antifoul and so tomorrow is an annoying waste of money.

[Steve Pope 243]

Can't you dive and remove the Critter(s) putting them into a bag for shoreside removal?? Surely once they are no longer on the boat there should be no need to slip.

[wheels 543]

That has already been done Steve. Divers found two small ones and removed them. But they still want me to haul the boat and have it cleaned.

[wheels 543]

That has already been done Steve. Divers found two small ones and removed them. They were just 100mm in length. But they still want me to haul the boat and have it cleaned.

We have a small NZ native species. I would like to know the difference in looks. It is a smaller species than the invader, which can grow to half a metre. So when they are small like the ones on my Hull, how do they know the difference? I will be seeing the Council Pest Control guy today, so will ask him.