According to Italian Law, the berthing agreement is an atypical contract established by the article. 1322 of the Civil Code. An atypical contract is an agreement that is not officially recognized by the Civil Code ( and in this case not even by the Navigation Code). Subsequently, the Law leaves individuals to arrange the contract they prefer under the definition of an atypical or unnamed contract.
The fact that the berth contract is not officially recognized by Italian law, does not imply that such agreement does not deserve legal protection by Courts. For instance, the Italian Court of Cassation and Livorno Court have already tackled some aspects connected to this agreement. Generally speaking, the berthing agreement grants the holder or owner of the vessel the right to moor the boat in a proprietary water space for economic consideration.
Based on this, what are the consequences connected with the theft of the vessel in presence of a regular berth contract? Is there any custody obligation for the provider of the water space? In other words, is the provider liable for the theft of the vessel? Shall the provider pay some sort of compensation for the theft of the vessel?
The legal dispute concerning the berthing agreement is thus connected to the obligations of the provider of the water space. Is the dock operator only required to provide the individuals with the mooring space? Or, on the contrary, has the operator also a custody obligation?
Given the broad set of services associated with the berth contract, the Judge will always analyze the agreement with the purpose to detect parties’ intention to establish a custodial duty. Therefore, the Judge will evaluate whether or not the parties have included the duty to preserve the vessel and redeliver it in the same conditions ( The same types of obligation you can find in the traditional Custodian Agreement). In this regard, there are a set of services and conducts that may let assume the presence of a custodial duty. For instance, the presence of surveillance personnel, a CCTV surveillance system, or fences and barriers are elements that let assume the presence of the custodial duty. In addition, it is plaintiff’s duty to present proofs that the mooring operator also had a custodial duty.
Should you need assistance in relation to your berth contract, please do not hesitate to contact us. VGS professionals will help you to negotiate the clauses that will protect your vessel and your vacation. Should you have any question, please contact us through the form you can find in this page, VGS professionals will get back to you by the next 24 hours.