Has anyone reviewed the conditions setout by Mooring Service providers?
I have used the same provider for 15 years or more but now new owner who wants to put all responsibility on the customer.
The risk is almost fully transferred to the customer including any damage, injury etc to anyone.
I just find it unacceptable as most is way outside my control or expertise.
Does anyone else have this level of conditions imposed on them, in particulair in Lake Macquarie NSW or know of a more reasonable reliable service provider?
Interesting topic and good thing that you raised it.
With accidents and injuries, are you referring to events happening
a) WHILE the contractor is putting in and maintaining a mooring, or
b) when the boat drags the mooring in a storm?
If you are referring to the former (while he is doing his work), although not a lawyer, I would not think he can transfer responsibility to you for accidents caused by the use of HIS equipment, barge, hoist etc.
More interesting would be damage caused (to your boat and third parties' property) if your mooring dragged or broke, while in a periodic maintenance cycle prescribed by the contractor.
Is his company/insurance responsible? If you authorised him to set up your mooring with size and componentry as per his recommendation for your boat and the location, it would be tempting to think he should be responsible. But maritime law is often steeped in tradition and not always what you expect.
Any lawyers or legal minds reading this forum - now's the time we'd really love your input.
(PS: I have to say my contractor just gives me an invoice, and there's no fine print on it. So responsibilities in such a case could be implied, like consumer law).
I think any service provider has legal "duty of care" obligations and it is not possible to "contract" out of them.
Sounds to me like the mooring service provider's insurance company has dropped him.
I agree with Cisco its probably an insurance issue. In NSW you own the mooring equipment and rent the place so your insurance should cover the equipment. If that gear fails after a service then its still going to be your responsibility. The mooring contractor would have cover to handle damage caused by him while actually carrying out the service only.
Mooring contractors are only "approved" by local councils, they are not licensed as such, anyone can be a mooring contractor you just have to get your name on the list.
warwickl - Since I also have my yacht moored on Lake Macquarie and have only just had the mooring serviced I would be very interested to know which contractor you are speaking of. If you don't think it appropriate to name them in the public forum feel free to send me a PM.
Like Karsten the contractor I use simply sends an invoice and I have been using the same one for a number of years so the provision of any information about "conditions" would have been some time (years) ago.
I'll put my hand up as a lawyer. I'm not quite sure whether you are referring to incidents after the contractor's service or incidents during the service. You can message me with the copy of the contractor's terms.
In any event there is some basic terms implied into all contracts for the supply of goods and services that you cannot exclude (at least if the cost of the goods or services is less than $40,000 which should include all the usual mooring supply and servicing costs). The Competition and Consumer Act (formerly the Trade Practices Act) provides that there is implied into such contracts (regardless of whether it is in the written agreement/terms or not) a fitness for purpose term, namely if you have:
(i) made known to the provider the purpose; and
(ii) you rely on the providers skill and knowledge to provide goods and services to satisfy that purpose; and
(iii) it is in the usual business activities of that provider to supply goods and services of that type;
Then the goods and services that are supplied must be fit for the purpose.
I would think that would cover the issue and that the exclusion of liability clause would be attempting to cover events that intervene and I would expect to see a tag to their exclusion of liability clause such as "to the extent permissable by law". Because a business cannot exclude the statutory implied consumer protection provisions in the Competition and Consumer Act.
And everyone on Lake Macquarie, including the contractor, should thank Warwickl for pursuing this and pointing out to the contractor the absurdity of the conditions that they tried to impose.
