The role of the Captain in
the construction, purchase, sale and refit of a yacht
By Gianfranco Puopolo, PG Legal Introduction
The Captain’s role consists of running the crew, overseeing the technical conditions of the yacht, making sure that the yacht is secure and safe in compliance with the relevant international maritime regulations. In addition, pursuant to article 295 of the Italian Navigation Code and the 2006 Maritime Labor Convention, the Captain is the legal representative of the Owner and the person of trust in the construction, purchase & sale and refit phases. It is essential to establish a relationship of trust between the Captain and the project managers in order to build a yacht that meets the buyer’s expectations and the experience and knowledge of the Captain may be of utmost importance in such sense.
What is the role of the Captain pursuant to Italian law and international regulations?
Pursuant to article 295 of the Italian Navigation Code, the Captain represents the crew, the passengers and the Owner. Specifically, the Captain represents the Owner in all dealings and negotiations if the Owner is not present or has not appointed his representative (the so-called absentia domini). The Captain also supervises the construction and the refit phases and he is liable for the performance of his activities in monitoring the works carried out by the shipyard or by any subcontractors. Moreover, he may also represent the Owner in courts for any disputes arising in connection with the yacht, the cargo, the crew or any other events occurred onboard.
It should be noted that the Captain has a vital role onboard the yacht and he is an advocate of both the Owner and the crew. In particular, in accordance with the International Safety Management Code (ISM), the International Ship and Port Facility Security Code (ISPS) and the 2006 Maritime Convention, the Captain is responsible for the overall technical and regulatory compliance of the yacht and, therefore, he shall
oversee the construction and refits works on behalf of the Owner. As mentioned above, the Captain may also represent the Owner in the complaint-handling procedures submitted by a crew member.
What is the role of the Captain in the construction and/or refit phase?
In addition to the obligations of the Captain set out by Italian and international law, the Captain has a relevant role in the construction of a yacht. In fact, the Captain is representative of the Owner at all times during the construction or refit phases and he has the authority to ensure that the shipyard and/ or the project managers comply with the agreement and the specifications. Specifically:
He/She assists the Owner in selecting the shipyard, maybe through a bid process;
He/She assists the Owner in selecting the project managers and other technical experts;
He/She reviews and negotiates the technical specifications and the general arrangements of the yacht;
He/She supervises the construction and/or refit works and keeps the Owner fully and constantly informed of any progress;
He/She attends the sea-trials to make sure that all the performance levels are met;
He/She assists in the delivery and re-delivery process by selecting the appropriate crew members.
It is recommended that the Captain is formally appointed by the Owner as his project manager or technical advisor in order to avoid any issues with the shipyard. In particular, if the Captain acts as the Owner’s representative or as project manager: i) he may refuse to sign the milestone certificate, ii) give notice of any defects or non- conformities to the shipyard. In those cases, the matter, pursuant to the construction agreement, shall be submitted to a technical expert or to the Classification Society or to Arbitration.
It should be again pointed out that the supervision of the Captain during construction is fundamental in order to avoid any legal issues regarding defects and non-conformities. The
90 | ISSUE 109 | SEP 2024 | THE REPORT
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