Very few owners are lucky enough to live near a marina. On the contrary, many sailors travel hundreds of kilometres at the weekend to spend a few days on their own boat. On board, they enjoy the change of scenery: intensive days of pure sailing, without thinking about their job and all the things that dominate everyday life at home.
When it's time to go home again, it's the other way round. In the office and in the hustle and bustle of family and other leisure activities, there is often little time to think about the ship. This dreamland is far away in the truest sense of the word. Which is no bad thing, after all, you think you're in a safe harbour.
In fact, the dream remains a real world even in the absence of the owner. Seagulls sit on the Windex, water washes around the sea valves, salt nibbles at the iron ballast, wind tugs at tarpaulins, lines at cleats, pollen lands on the fittings, rain beats down on the teak deck. In short, it's not just when the crew returns to the jetty the next weekend that there's a ship waiting to be looked after.
The risk is particularly high in spring and autumn
Often nothing out of the ordinary happens during the owner's absence. But there are also other cases. It is mainly the marginal seasons in which strong winds that are not predicted in the medium term sometimes cause drastic changes in the water level in the harbour and cause the boats and their rigs to move quite a bit. The result: entire headsails unroll, blow out and tear to shreds. Fenders slip and hulls rub against each other without protection. Mooring lines break and bow baskets bend on the jetty. Railing supports are crushed at the pier. Equipment goes overboard.
Many an owner will therefore have asked themselves what they actually have to do before leaving their yacht in order to fulfil the much-cited duty of care. From both a nautical and legal point of view. And what happens if he ignores it? Or if he does comply with them and something happens anyway? For example, damage to their own yacht or even damage to another boat?
Worse still, what happens if a neighbour helping out at the mooring breaks something or is even injured? And vice versa: Is anyone who goes to the harbour to check that everything is in order also obliged to do the same for their neighbour's yacht? And what duties does the harbour master actually have? After all, he represents the landlord together with the operator of the harbour.
All of these questions must be considered in a differentiated manner. A distinction must be made between legally required behaviour and what is customary or desirable among sailors.
What is the owner's responsibility?
Legally, according to Hamburg lawyer and YACHT author Dr Heyko Wychodil, there are simple answers to most questions. Because: "The courts generally assume a very high level of personal responsibility on the part of the owner," says Wychodil about the underlying legal concept. "Personal deficits do not relieve him of this responsibility. Especially not if they are known to him beforehand."
This is the case with a long journey, for example. "If I live far from the coast or the nearest inland area and therefore can't reach the berth in the event of a sudden storm, then I have to consider whether the ship would be better off surviving the autumn storms in winter storage. Or create an appropriate infrastructure in good time."
In practice, this can take the form of an agreement with a sailor friend who will look after the boat during your absence. "The important thing is that it must be clear to both parties that this is more than just a favour," says Wychodil. In any case, the owner must make use of all available room for manoeuvre in the maintenance of his ship within the scope of his personal responsibility for it.
Clauses in the mooring contract
As a rule, the harbour operator will contractually exclude the assumption of traditional owner duties such as checking lines, fenders or the level of bilge water, for example through its harbour master. He rents out a defined water area, keeps it free for the tenant and provides the associated infrastructure, in short, he is responsible for the harbour facility. However, the contractually agreed obligations traditionally end where the tenant's ownership begins.
"A separate contract would have to be concluded for any further service," explains Wychodil. The ship is not, like a horse in a riding stable, kept by the harbour operator in the sense of a safekeeping relationship: "The use of the berth is the responsibility of the owner." And so the harbour master's services usually end on the jetty. Unless the protection of public safety requires a boat to be entered. For example, to deploy an oil boom, extinguish a fire or rescue a person who has fallen into the harbour basin.
While a contract for the safekeeping of a horse typically contains detailed agreements on the individual care services that can be expected for the agreed fee, there is no such information in a classic mooring contract.
"While the marina operator wants to take responsibility, the harbour operator usually excludes it," says Wychodil, summarising this situation. Due to the number of yachts that are usually moored in a marina, there is in fact no other option. It is not uncommon for there to be several hundred boats for one harbour master.
"Imagine that in an autumn storm, things go haywire and the port operator is held liable for all mistakes made by the owners when mooring. He would be broke overnight. And no company would insure such a risk."
Reliance on customs
But obligation or not, many harbour masters feel responsible for their unmanned permanent residents simply because of their professional ethos. They regularly walk the jetties with a watchful eye, checking not only the facilities but also the yachts, and they notify owners if they notice anything amiss.
If you are lucky enough to have your ship in the care of such a harbour master, this kindness does not give rise to any legal obligations. For example, if disaster has been averted several times because the harbour master has intervened, this does not give rise to any claim that he will do so again the next time. "The owner would be ill-advised to secure his ship himself," says Heyko Wychodil, "if he makes a mistake, he has to pay. So he says to himself: 'I'd rather stay at home, then the operator is liable' - that can't be the solution."
The same applies to the helpfulness of neighbouring permanent berth holders. Even if it is customary at the jetty for local sailors to keep an eye on the boats of neighbouring owners, this does not give rise to any legal claims.
Decay of morals
"Thou shalt help!" is the eleventh commandment on the water. It's not written in any code of law, but that doesn't affect its validity among sailors. And that should also be the case when the people concerned are not present.
Anyone who is bothered by the beating halyards of the abandoned neighbour will have no problem tying them off. Why shouldn't he also secure the furling jib with a zeising if he sees that it is necessary?
On the other hand, there are also limits to moral obligations. In the case of danger to life and limb, different rules apply than in the case of imminent damage to property. And the skills of the helper also have an influence on where this limit lies. An experienced sailor naturally has other ways of helping than a novice, a well-trained athlete more than a person with a handicap.
One thing is clear: Nobody has to put themselves in serious danger to secure someone else's boat - especially not if the owner has not taken care of it. Ergo: It is always important to weigh up each individual case.
Owners can take these precautions
Craft
Only leave your boat when it is moored in such a way that it is well moored at the berth even in strong winds, storms and water level fluctuations, is well fendered and tarpaulins, sails and equipment cannot come loose.
Support for
Ask your harbour whether you can conclude an all-round service contract with professional providers that also covers liability if the service is not carried out and this results in damage to property.
Commitment
Read your mooring contract and the associated agreements (harbour regulations, harbour usage regulations, general terms and conditions) carefully. Familiarise yourself with your rights and obligations.
Utilisation
Check your usage habits over the past few years to see whether the boat really needs to be moved and kept in the water during the off-peak seasons - or whether it would be better to keep it on land.
Information
Ask your neighbours and the harbour master whether someone regularly keeps an eye on the boats and, if so, whether they will inform the owners quickly and reliably if action is required.
Co-operation
Form alliances with your neighbours on the jetty. Help each other as much as possible, but also clarify where help is undesirable and - conversely - what should not be expected from others.
Helpfulness
If you realise that help is needed: only lend a hand if you see that you can help, are confident in doing so and know what to do. Otherwise, ask the harbour master to inform the owner.
Protection
Clarify with your insurance company what they expect from you so that you fulfil your contractual duty of care in case of doubt.
