latter shall be distinguished from minor non-conformities, which are all the minor defect that do not impair the Class or affect the seaworthiness of the yacht. For example, with its decision no. 24725, the Italian Supreme Court condemned the shipyard to pay damages for the hull of a yacht damaged by osmosis. Such defect was discovered one year after her launch. In such case, the Court considered the shipyard liable of such damage, because the shipyard carried out some reparation works, which, actually, worsened the state of the hull and it was proved that the works were performed by using poor quality materials.
What is the role of the Captain in sea trials and condition surveys?
As stated above, the Captain should attend the sea-trials, which are carried out before delivery. In particular, the Captain should make sure that the yacht is properly functioning and that she meets the performance requirements set out in the construction agreement. In addition, the Captain should also advise on the acceptance of the yacht based on the successful completion of such sea trials.
With reference to the purchase & sale process, pursuant to the MYBA MOAs, the yacht, before delivery, shall be placed ashore in order to carry out the condition survey. Therefore, the Captain should attend the condition survey and consequently advise the Buyer: (i) whether to give notice of any defects to the seller; and (ii) on the acceptance of the yacht.
Notwithstanding that the presence of defects may be detected during sea trials and condition surveys, so before delivery, it may often happen that
defects are discovered after delivery. In such cases, Italian law (article 1495 of the Italian Civil Code) provides that the limitation period for claims for defects is one year after the delivery of the yacht. Italian courts have several times ruled that the limitation period of one year do not apply to the so-called hidden defects, i.e., defects that cannot be detected during sea trials, condition survey or delivery of a yacht. Such defects, if reported after their discovery and subsequently acknowledged by the shipyard, are subject to the standard limitation period of ten years. Examples of hidden defects are: corrosion of the exhaust pipes of the engine, leaks due to the poor assembly of the seals.
What is the role of the Captain upon closing and delivery of a yacht?
In addition to the role of the Captain during construction, sea trials and condition surveys, the Captain may be extremely helpful upon closing and delivery of a yacht. In particular, the Captain shall make sure that all the technical documents required upon closing are onboard. He is responsible for sailing the yacht to the designated place of delivery and he shall sign the protocol of delivery and acceptance, which shall include the date, time and exact coordinates of delivery.
If the delivery is in international waters, the Captain shall sail the yacht 12 miles off the coast. Once international waters are reached, the Captain shall take appropriate evidence of the yacht’s location (pictures of GPS), fill out the log book with the relevant time and
exact coordinates and sign the protocol of delivery and acceptance.
Conclusions
As explained above, the Captain may play a fundamental role in the construction, purchase and sale and refit phases. In addition, the Captain, as an advocate of both the seller and the buyer, may be extremely helpful in order to avoid any legal issues that may arise. Therefore, it is suggested that Captains are assisted by an experienced legal team throughout all the phases of construction, purchase & sale and refit in order to ensure that the buyer is fully satisfied.
About PG Legal
PG Legal has offices in Milan, Rome, Dublin and branches in Naples and Genoa. Our work is international by nature as our clients come from all over the world and their businesses require assistance and advice across several jurisdictions.
To better serve our international client basis we have developed strong best-friends relations with leading law firms across Europe, the US, the Middle East and Asia that specialize in the same sectors in which we operate.
PG Legal is member of Insurance Law Global (ILG), a multi- jurisdictional network of best- in-class law firms devoted to the insurance industry.
This article as first published on the PG Legal web site and is republished here with our thanks.
THE REPORT | SEP 2024 | ISSUE 109 | 91
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