1. Adriana V. Padovan, Ph.D.
Adriatic Institute
Croatian Academy of Sciences and Arts
Marina Operator's Liability Insurance and its Impact on the Business Practices ROUND TABLE CURRENT LEGAL CHALLENGES OF SUSTAINABLE DEVELOPMENT OF THE ADRIATIC PORTS OF NAUTICAL TOURISM 22nd ESD CONFERENCE, 30th June 2017, SPLIT

2. This presentation is a result of the author’s research under the installation research project no. 3061:
Developing a Modern Legal and Insurance Regime for Croatian Marinas - Enhancing Competitiveness, Safety, Security and Marine Environmental Standards
The project is financed by the Croatian Science Foundation

3. INTRODUCTION
Marina operator’s liability insurance – insurance of liability of the marina operator (concessionary in the special purpose port) arising in relation to its business activities
Insurance pays the amounts that the insured marina operator is obliged to pay to compensate for damage caused to its clients (boat owners/operators/chartering agencies…) or third parties in the course of performing its regular business activities
Voluntary insurance (law, concession contract)?
Business standard (exposure to potentially high risks, normal running of business and financial risk management)
Governing acts under Croatian law – Obligations Act (lex generalis + lex specialis - arts. 921 etc.) / Maritime Code (lex specialis – arts. 684 etc.)

4. INSURANCE COVERAGE
Subject matter of insurance – marina operator’s liability related to its business activities:
Contractual liability – contracts of berth and contracts for services (vessel maintenance, servicing, repair, lifting and launching, supply…) – governed by the contract, GTCs, port rules
TPL (personal injury, damage to property), pollution liabilities
Focus: special cover for liabilities arising from the main business activities (separate cover for employer’s liability and general TPL insurance)
Insured sum, deductibles, exclusions
Insured risk – incurring legal liability for damage to persons and property
Loss occurrence – an incident related to an act or omission of the marina operator causing damage to the vessels on berth, tourists in the marina or their property, or others
Territorial limit
Time limit
Claim

5. RIGHT OF DIRECT ACTION? Obligations Act vs. Maritime Code
Obligations Act, art. 965, right of direct action from the moment of the loss occurrence
Insurer’s defences (Obligations Act, art. 945)?
Insured’s defences
Inusrer’s defences under the insurance contract (sum, deductibles, exclusions, but only those arising prior to loss occurrence)

6. COMMON EXCLUSIONS Wear and tear Latent defect
Act or omission of the owner, crew or other persons using the vessel
War, strikes, terrorism and similar risks
Loss of artefacts and valuables
Rodents
Ice
Extreme weather conditions
Loss of items not listed in the list of inventary

7. „PROBLEMATIC” EXCLUSIONS
Loss of income/profit/time
Wreck removal
Theft of the vessel
Burden of proving the cause of damage:
Negligence of the owner, crew, passengers on bord?
Gross negligence of the marina operator?
Weather conditions as force majeure

8. RISK ASSESSMENT insurance questionnaires, condition surveys
Scope of MO’s services
Locations and premises where the services are performed
Are the services outsourced
Condition of equipment, infrastructure, suprastructures
Figherfighting systems, protocols, implementation, training, maintenance
Access to the marina’s premisses, security systems…
Formal documentation, certification? Soft law standards?

9. IMPACT OF INSURANCE ON BUSINESS PRACTICES
Historically – origins and interconnection of the marina operators’ general terms and conditions and the standard marina operators’ liability insuranceterms and conditions
State of the art today (tendencies in the selfregulation, judicial practice)
Free competition amongst the insurers – market position changed
Hull and liability insurance of the vessels on berth
MO’s GTC’s approved by the insurers, technical and quality standards (safety, security, environmental standards) – how is it in reality (local vs. international markets; positive vs. negative aspects)?

10. CONCLUSIONS Diversity in MO’s GTC’s and in insurance terms
Judicial practice
Understanding of MO’s liability by the interested public, including insurers
Unconsolidated professional terminology
Safety, security, environmental and quality standards
Legal certainty?
Way forward?