LEGAL ASPECTS OF RECREATIONAL

MARINA OPERATIONS IN FLORIDA

by

Richard G. Hamann and Bram D. E. Canter

INTRODUCTION

This publication is the second of a pair intended to assistthe operators of recreational marinas in Florida. The firstreport entitled "Legal Aspects of Recreational Marina Siting inFl or ida" described the major environmental regul atory control sapplicable to the construction of a recreational marina inFlorida. This second report addresses legal considerationsaffecting the operation of a recreational marina.

A recreational marina, like any other business, is subject toa broad range of legal obligations. Emphasis is placed in thisreport on areas of law that are of particular relevance to marinaoperators, as opposed to more general businesses. The topicscovered are tort liability, bailments, admiralty law, charterservice, marine insurance, maritime liens, wrecked and derelictvessels, and oil spill and pollution control. An effort is madethroughout the text to give guidance to marina operators inrecognizing and avoiding potential legal difficulties.

A word of caution is in order. No document of this naturecan substitute for the professional advice of an attorney andthis report is not intended as a replacement for such personalservice. The intention, rather, is to provide a helpful supple-ment.

I - TORT LIABILITY

A. INTRODUCTION

B. NEGLIGENCE

Liabilitymarina ownersNegligence isperson would

for damage arising from the negligent acts ofor their employees is a common tort claim.

the failure to do what a reasonable and prudentordinarily have done under the circumstances.

Tort liability should be of major concern to recreationalmarina operators.> Tort liability results when people or theirproperty are wrongfully injured or damaged. It can be verycostly for a responsible party to compensate an injured person.Furthermore, determining issues of liability and compensation canbe complex, time-consuming and expensive. For these reasons, aswell as the desire to prevent injury no matter who is at fault,consider able attention should be devoted to ensuring safety inmarina operations. Also, sufficient liability insurance shouldbe maintained.

Broadly speaking, a tort is a civil wrong, other than breachof contract, for which courts provide remedies in the form of anaction for damages.~ The right to compensation for tortiousinjuries does not depend on deliberate infliction or theexistence of culpable intention. Nor is tort liabilitynecessarily predicated on the defendant's fault. The commonthread woven into all torts is the concept of unreasonable inter-ference with the interests of others.3

The essential elements of a cause of action for tort are theexistence of a legal right in the plaintiff, a correspondinglegal duty in the defendant, and a violation of that dutywhich results in injury or damage to the plaintiff.4 Theplaintiff's right and the defendant's duty are correlative - twosides of the same coin. For example, if the defendant carelesslyoperates a boat without looking ahead and runs over a swimmer, hehas breached his legal duty to proceed with care for the safetyof others. From the other perspective, the plaintiff's legalright not to be injured by the careless acts of another has beeninfringed.

Wrongful injury resulting in tort liability can occur in awide variety of factual settings' Intentional acts such astrespassing on another's property, seizing personal property,detaining, or making damaging statements about a person canresult in tort liability. Carelessly operating machinery, makingsubstandard repairs, selling defective products or failing torepair rotten docks or clean up spilled oil are examples of unin-tentional acts or omissions for which marina operators may beliable. A marina owner is usually responsible for the tortiousacts of employees. Much of the discussion that follows isintended to assist marina owners in recognizing and avoiding"wrongful" conduct that might result in tort liability.

Intent to commit a wrongful act is not necessary. "Wrongful" isdefined in terms of reasonable conduct as prescribed by law andsociety. Something is "wrongful" if in the context of a par-ticular situation it is unreasonable or less than a prudentexercise of care. Liability arises when the negligent andwrongful act causes injury or damage.

The following elements are requi red for a cause of actionin tort: 1! existence of a duty on the part of the defendant toprotect the plaintiff from the injury or damage of which hecomplains; �! failure of the defendant to perform that duty; �!a reasonably close causal connection between the conduct and theresulting injury, called "legal cause" or "proximate cause"; and�! actual injury or damage to the plaintiff.5

The duty of care that one person owes to another variesdepending upon the circumstances. It may depend upon the status,capacity, or condition of the person to whom the duty is owed.For example, whether a potential victim is an infant or physi-cally disabled bears upon the degree of care that must be exer-cised with respect to that person.

Even assuming a duty and a breach thereof, a defendant cannotbe liable for negligence unless the plaintiff shows that thedefendant.'s conduct was the proximate cause of the injurycomplained of. The proximate cause of an injury may be definedas that cause which, in natural and continuous sequence, unbrokenby a sufficient intervening cause, produces the injury, andwithout which the result would not have occurred. That is, itis the cause that leads to, produces, or contributes directly to,the injury.

Proximate cause is inextricably related to the concept offoreseeability. The fundamental question related to the proxi-mate cause of a negligently caused injury is whether it wasforeseeable. "Foreseeable" is not "what might possiblyoccur."~ A person's negligent conduct may in fact be the causeof injury, yet he will avoid liability if the chain of causationis so tenuous as to be unforeseeable. Conversely, the fact thata defendant did not foresee a certain event does not mean thatthe event was unforeseeable. For example, a marina operator maynot foresee that his failure to replace buoy ma~kers may lead toa vessel going off course and causing damage to another vessel.Yet, under the circumstances, a jury could find that such aresult was forseeable. The relevant determination is whether thedefendant should have foreseen the potential for injury and takensteps to avoid it.

An example of how negligence may operate to impose liabilityis negligent entrustment. A boat owner may be liable fornegligently allowing someone to operate the boat if the ownerknew or should have known that the entrusted person was incom-petant to handle the vessel safely. The following casesillustrate this type of negligence.

Pritchett v. Kimberling Cove, Inc.8A -year-o emp oyee a een entrusted with a key to a

dockhouse where the keys to approximately 175 boats were kept.The minor employee injured the plaintiff while using one of theboats that he had access to. The marina owner was held liab1e

for the injuries inflicted by the minor employee on the theory ofnegligent entrustment. The marina owner had entrusted the boatto an incompetent operator and was liable for the harm resultingfrom such negligence.

Cashell v. HartA boat owner's minor daughter permitted her friend, an

inexperienced and incompetent navigator, to operate the boat.The friend negligently injured the plaintiff by turning the boatin such a way as to throw the plaintiff out of it. The courtheld that the boat owner knew or should have known that hisdaughter would permit the friend to operate the boat and, there-fore the complaint alleging negligent entrustment stated a causeof action.

C. PRODUCTS LIABILITY

An important ar ea of tort 1 iabil ity for both sell ers andpleasure boat users is that of products liability. "Productsliability," in a broad sense, is a descriptive term which isapplied to a type of action brought to recover compensation forinjuries sustained as a result of product use. The term isapplied to the liability of a manufacturer, processor, or non-manutacturing seller for injury to the person or property of abuyer or third party caused by a product they sold.

There are various theories upon which a products liabilityaction may be brought. Traditionally, most cases were broughtalleging negligence, breach of warranty, or bothy However, inrecent years a new basis of liability has developed: the prin-ciple of strict liability in tort. All three theories arediscussed below.

Where recovery for injuries is sought on a negligence theory,it is necessary to show the elements of negliqence, previouslydiscussed, including duty, breach of duty, and proximate cause.For instance, if a manufacturer carelessly failed to tighten afuel line on a boat and it consequently exploded, the manufac-turer would have breached his duty and would be liable.Negligence can also arise from careless design of a product.

Liability under a warranty theory is similar to contractualliability. By law there are three different warranties that mayaccompany a sales transaction. A seller implicitly warrants tothe buyer that the goods are merchantible and fit for theirintended purpose. A seller may also make an express warrantyeither orally or in writing. And if the seller has reason toknow that the buyer is relying on the seller's judgment, animplied warranty may exist that the qoods are fit for the buyer' sparticular purpose which differs from the ordinary use of thegoods. Failure to meet these obligations constitutes a breach ofwarranty, and this theory of liability may be used instead of, orin addition to negligence. These warranties are codified by theUniform Commercial Code in the Florida Statutes. II

Under a warranty theory a different set of elements is neededto prove liability than those needed under negligence theory.The plaintiff must prove: 1! injury and damages; �! the pro-

duct was defective, and; �! the defect was the proximate causeof the injury.

While a seller's warranties normally run in favor of buyers,the Uniform Commercial Code, as adopted in Florida, extendsseller warranties in favor of any person who is in the family orhousehold of the buyer, or who is a guest in his home, or hisemployee, servant or agent, if it is reasonable to expect thatsuch person may use, consume or be affected by the goods.I2

The same warranties applicable to a manufacturer apply to aretail seller of a defective product, even though he may only bea conduit through which the product passes. This is becausespecific negligence has no relevance to a claim for breach ofwarranty.

The third and most important product liability theory is thatof strict liability, which is currently recognized in manyAmerican jurisdictions, including Florida. This doctrine isexpressed in 5402A of the Restatement of Tor ts 2d.I3 This formof liability is "strict" in the sense that it is unnecessary toprove the defendant's negligence and, since the liability is intort, defendants cannot avail themselves of the usual contract orwarranty defenses which might be used in an action for breach ofwarranty.>4

A plaintiff seeking to hold a defendant liable on the theoryof strict liability in tort must establish the defendant's rela-tionship to the product in question, the defective and unreason-ably dangerous condition of the product, and the existence of aproximate cause connection between that condition and theplaintiff's injuries or damages.>~ The doctrine of strict liabi-lity may be applied against persons engaged in the busines ofselling products, including manufacturers, wholesale and retaildealers or distributors, and operators of restaurants. I TheRestatement declares, however, that strict liability does notapply to the occasional seller who is not engaged in selling asa regular part of his business. I7

Although Florida was slow to allow strict liability in tortfor products liability cases, Section 402A was adopted by theSupreme Court, of Florida in 1976 in West v. Caterpillar TractorCo. Inc.I8 The West court also held t at ia » ty or e ectivepropructs extends to injured bystanders, in addition to purchasersand users of the product. The Restatement of Torts also recog-nizes this extension of liability. Some cases have held manufac-turers or sellers of boats liable for harm caused by their pro-ducts. An earlier Michigan case held that the manufacturer couldbe found guilty f' or the death of one who drowned when his boatbroke apart at the hull.

The case sketches that follow illustrate Florida's positionon products liability for boating injuries.

Duncan v. Monarch Boat Company, Inc.In t is case ece ent was rowned when thrown out of a boat.

The manufacturer of the boat had failed to attach a plate statingthe recommended safe number of persons or maximum weight load asrequired by Section 371.60, Florida Statutes now codified at5327.52!. Decedent's estate sued the manufacturer allegingwrongful death based on the failure to attach the plate. The

court held this sufficient to state a cause of action. This caseis illustrative of what kind of "defect" may render a manufac-turer 1 iabl e in tort for injuries to users of its products ~ Herethe defect was, in effect, statutorily created, in that thedefendant failed to pr ovide certain warning requirements on theproduct.

Outboar d Marine Corp. v. Apeco Corp.~Ie p ainti in t i s case was injured in a boating accident

and claimed the proximate cause of the accident was the failureof the steering mechanism which was par t of the engine. Thesupplier of the inboard-outboard engine was held liable upon theshowing of a defect and the demonstration of a causal link bet-ween defect and the injury. No proo f of negligence was necessaryfor pl ainti f f ' s recovery.

Young v. Wellcraft Marine Corp., et al .~~i s case a so invo ve a e ective steering mechanism. A

$1,150,000 settlement was sustained by the Circuit Court forinjuries resul ting from loss of control of the plainti ff ' spowerboat. In a suit based upon negl igence and breach of warran-ties brought against the boat manufacturer, the manufacturer ofthe engine ~ and the retailer of the boat, plainti ff alleged theaccident was the result of a steering failure caused by the lackof a proper grease fitting on the power control val ve whichcaused the valve to jam in an open position. All three defen-dants contributed to the settlement.

0. DVTY TO PERSONS ON THE PREMISES

A marina has particular legal duties with respect to personsentering upon the marina property. Accidents involving customersand other business patrons are a common source of liability and amarina owner should be keenly aware of his legal duties towardpersons on marina property.

One who enters the premises of another does so either asa trespasser, licensee, or invitee. The degree of care owed tothe entrant by the owner or occupant depends in large part on thestatus of the entrant.

A trespasser is one who enters or remains on another's landwithout permission or privilege. The general rule is that thelandowner owes no duty to a trespasser to make his land safe, towarn of dangers, or to protect the trespasser in any other way.~3However, once the landowner knows a trespasser is on his pro-perty, the landowner is under a duty to exercise reasonable carefor the trespasser's safety.~4 Intentionally harming atrespasser is also prohibited.

A licensee is one who has the landowner's permission to be onthe property but who does not have a business purpose for beingthere. The landowner's duty is to warn the licensee of any knowndangers. Howevers the landowner is under no duty to inspect thepremises to find hidden dangers and is not liable if the premises

Social guests were most frequently put within this

category until recent years. This category is now somewhat obso-lete.

Most persons on the premises of a marina will be there asinvitees. An invitee was traditionally considered to be one whoenters on the premises for a purpose connected with the businessof the owner or occupant of the premises, but the class ofinvitees has been expanded to include any member of the publicinvited on the premises by the purpose for which the land is opento the public.~ Invitee status has also been given to socialguests or "licensees by invitation" of the land owner.

An owner or occupant of property owes to an invitee a duty touse ordinary care to maintain the premises in a reasonably safecondition. The owner also has a duty to give the invitee timelynotice and warning of latent or concealed perils that are knownor should be known by the exercise of reasonable care.~8 Thus theowner has a duty to inspect his premises to discover possibledangers. For example, an owner would be liable for injuriessustained by a patron who fell as a result of a worn or rotteddock plank or rail collapsing which should have been detected bythe owner. Owners may also be liable for faulty construction,such as uneven floors, causing patron injuries.~g

There is no liability for injuries from dangers that areobvious, reasonably apparent, or as well known to the personinjured as they are to the owner or occupant. If the injuredpatron had or reasonably should have had knowledge of a spill onthe floor, the owner will not be charged with liability for thepatron's fall.

In Florida, however, an injured plaintiff may recover damagesfor injuries negligently inflicted even though he was also atfault. That is, one may negligently act or fail to discover aperil and still recover partial compensation if the defendant'snegligence proximately causes of the injury. Instead of com-pletely barring an injured plaintiff from recovery because of hisown contributory negligence, Florida has adopted the rule of com-parative negligence, which decreases a plaintiff's monetarydamages by the percentage his own negligence contributed to theinjury.3I

Although injuries can never be entirely prevented, theliklihood of their occurrence and the potential liability arisingtherefrom, can be diminished. This is particularly true withrespect to injuries caused by the condition of the marina premi-ses. Periodic inspection of potentially hazardous conditionsmay serve to preclude one of the elements of a plaintiff's case--that is, that the defendant knew or reasonably should have knownof the danger and breached his duty of care by not correcting thedanger. These principles are illustrated by the following tworeported decisions involving damage to boats at a marina.

John's Pass Seafood Company v. hleber3~ainti rente a s ip at e endant's dock. One night. a

fire that started aboard another vessel moored to the dock spreadto plaintiff's boat. The plaintiff sued the defendant allegingnegligence in that the defendant had failed to provide fireextingui shers and fi refighting equipment as required by a cityfire code. Although plaintiff had signed a slip lease containing

an exculpatory clause stating defendant would not be liable insuch a situation, the court held that violation of the fire codewas negligent per se. The defendant should have known of thepotentially dangerous condition and he breached his duty by notproviding firefighting equipment.

Bertram Yacht Yard v. Florida Wire 8 Rigging Works33e owner o a yac yar was oun ia e or damages to a

vessel which fell when a steel cable broke on a boat lift ownedand operated by the defendant. The yard owner was chargedwith negligence with respect to the condition of the wires andcables. The notion of superior landowner knowledge on the partof the landowner that creates a duty toward invitees was used inthis case. The defendant knew or should have known of thedangerous condition and was liable to the plaintiff for anydamages arising out of that condition.

Similarly, just as a marina owner owes a duty of care toinvitees, a boat owner owes a duty to those on board his boat.The owner of a vessel owes to every person lawfully on board byexpress or implied invitation the duty to provide reasonablesecurity and to exercise ordinary care to protect him frominjury.

Judy V. Belk34f

attempting to step from a houseboat to the dock. The court heldthat the plaintiff's status as a houseboat guest was that of aninvitee. As an invitee, the houseboat owner owed a duty to pro-vide reasonable security and exercise ordinary care to protectthe plaintiff from injury. The evidence conflicted over theadequacy of lighting and the houseboat had no guard rail organgplank, so the court remanded the case for jury determinationon the issue of whether the houseboat owner had fulfilled theduty owed to plaintiff invitee.

E. RESPONSIBILITY FOR EMPLOYEES

An empl oyer may be 1 i abl e to third persons for i njur i esinflicted by his employees. Where the injury is caused by an actof the employee, the employer may be vicariously liable on theprinciple of respondent superiors Under this rule, for example,the business proprietor may be found liable for falls on a floormade slippery by waxing or oiling by an employee, for injury dueto the presence of an obstacle, or for gn employee's negligentinspection of cables supporting a yacht.

Under the theory of respondent superior, the test foremployer liability for the tortious act of employees is whetherthe acts causing the injury to the third person were committed inthe scope or course of employment. Much litigation results frominterpretation of these terms, since they are often determinativeof liability. Generally, an employee acts within the scope ofhis employment when he is engaged in doing what the employerdirects him to do, or what he could be expected to do, from the

nature of his employment.36 Conduct of an employee is within thescope of his employment only if it is of the kind he is employedto perform, it occurs substantially within authorized time andspace limits, and it is activated at least in part by a purposeto serve the employer. For example, injuries resulting fromthe negligent operation of machinery by an employee will imposeliability on the employer. The purpose of the employee's act,rather than the method of performance, is the important con-sideration. The question of whether a tort committed by anemployee is within the scope of his employment is ordinarily onefor the jury.

F. LIABILITY FOR DEFECTIVE REPAIR WORK

Repairmen are subject to 1 iabil ity for harm caused by anegligently repaired item. The law is applied to boat repair-men in the same manner it is applied to aircraft and automechanics, carpenters, plumbers and all other types ofrepairmen. The repairman's duty is to exercise that degree ofskill which enables him to do a workmanlike job free of negli-gence ~nd the duty is the same whegQer the repairman is abailee or an independent contractor.4" Failure to meet thisduty makes repairmen liable for property damage and personalinjuries to those who may reasonably expect to be endangered byuse of the repaired item.~>

Contracts for pleasure boat repair are also governed by legalprinciples which generally apply to contracts. Thus, reasonablecharges will be imposed for repairs if specific charges were notset out in the contract,4~ and the reasonable value of beneficialrepairs must be paid for by the boatowner even when some of therepair work was defective.4~ Also, it should be noted that thescope of a repairman's liability can be expanded by what hecontracts to do. A repairman can expressly warrant certainresults and thus become liable if those results are notattained.44 A repairman is liable under contract theory indamages either for breach of contract or warranty.4~

Some legal commentators have suggested that the standard ofliability for people who provide services should be the same asthe standard imposed upon manufacturers of products.46 The so-called "products liability" standard, based on implied warrantiesunder contract theory and strict liability in tort, is discussedabove. Manufacturers are generally liable for harm caused bydefective products even if the manufacturer exercised the utmostcare to prevent the harm from occur ring. However, courts have sofar been unwilling to hold repairmen to this higher standard ofcare.

Many courts have declared there exists an implied warranty of"workmanlike performance" in a contract for repair.47 A closereview of these decisions, however, indicates that this impliedwarranty is treated as merely a duty not to be negligent. It isnot applied as a guarantee that the repairman will undertakeresponsibility for any harm that may result, in the absence of

negligence. Therefore, the test of liability under an impliedwarranty of workmanlike performance is simple due care.~

While the doctrine of strict liability in tort has beenapplied in a few instances to highly trained professionals, it hasnot been held applicable to general repairmen.SO The most com-monly used rationale 'or not applying this staridard to affectiverepair services is that strict liability was developea to appiyto the sale of goods and not to services.-"1 As the law standstoday, liability for defective repair requires proof otnegligence.52

G. INDEPENDENT CONTRACTORS

The types of repair facilities and exrrer ~i se ei.estuary .0meet the needs of modern pleasure boats have crianged aramaticailyin the last few decades. Many SO-foot yachts today coni.ain moresophisticated electronic and mechanical equipment ;hari largeships did thirty years ago. Few marinas can aftord to maintainstaff competent at servicing all of the -;ir conditioning,refrigeration, stabilizers, radar, 1 oran, aucomai.ic sceeen i ng,radios, automatic direction finders,:depth recorders aiid otner-equipment found on today s pleasure boats. Services ir~~y insteadbe offered to marina customers by employing a trained mechanic ortechnician as an indepenoent contractor . The legar significanceof such an arrangement is that, generairy, a marina is not liablefor the tortious acts or omissions of ari independent contractor,but is liable for those ot an ordinary emp!oyee.S3

An independent contractor is one who corirracts to do certainwork according to his own methods, wittrou c being subject to thecontrol of his empIoyer except for resurts."4 .he essential tac-tor that distinguishes an Independent contractor from an ordinaryemployer is the extent of controlr the eirrpioyer -xei~.usesover the work. :he work of an employee is usually .imosientirely controlled by his employer. n independeni..oi~iraiior,on the other hand, decides on his owri the ~iallflel '. i .'~f >orlllingthe contracted task.

The courts have considered a number ofactors wneri a:~aiyzingthe extent of control exercised by the employer."~ ine e~istenceof a performance contract at a fixed price and time period is anindication that a person has been employed as an independentcontractor. Ordinary employees normally are not employed undersuch a contract. An independent contractor is ikely to employhis own assistants and independently supervise their activity.He usually furnishes the tools and most of the materials andsupplies he and his assistants use. Independeni; corit.rari cotscommonly paid by assignment, while ordinary employees are usua"ilypaid an hourly wage. Whether the skill or car'iing ot a person isof an independent nature, and whether the work he does is part ofthe regular business of the employer are impi rtant con-siderations. The followinq is a list of other factors:

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a! existence of a contract to perform a certain piece of wortat a fixed price;

b! employment of assistants and the right to supe«vise theiractivities;

c! obligation to furnish tools, materials and othe« supplies;d! right to contral the progress of work except as to the

final results;e! time period for emplayment.These factors only tend to indicate the status of an indivi-

dual as an ordinary employer or independent contractor. Maceare determinative. The unique factual circumstances of each casewill ultimately determine what weight is assigned ta eachfactor.

Complicating matters somewhat is the fact that a person maybe an independent contractor for one phase of work and aNemployee far another,~ though this would be unusual. Am i@de-pendent contractor may also act as the agent of tie. employerunder some circumstances. Because an independent contractor isnot an ordinary employee, statutes that affect the rights ofemployees are not applicable to independent cont«acta«s. Thus.,independent contractors are generally not covered by workmen' scompensation or unemployment compensation laws.~~

The policy behind the legal principle that an employer is notliable for the tortious acts of an independent contractor is tWnotion that employers should not be liable for the wrongs ofsomeone over whom they exercise no control. However, a number ofexceptions have been carved out of the general rule. If an inde-pendent contractor's work is defective or otherwise negligentlyperformed and causes harm to someone, an employer may also beheld liable where it is shown that he knew or should have knownthat the independent contractor was inexperienced orincompetent.5B A marina owner, therefore, should make reasonableefforts ta insure, before he hires an independent contractor,that the individual is adequately skilled for the work ta bedone. The marina owner should also be sqre he provides theindependent contractor with a safe workplace.>~

An employer may also be liable for allowing an i~dependentcontractor ta create and maintain dangerous conditions onmarina premises known ta the employer.60 Far example,if the employer knew the independent contractor was creatinga fire hazard at his marina workplace which later caused a fire,the employer cauld be liable to anyone injured ar whose propertywas damaged by the fire.

Another important exception to the general rule that anemployer is not liable for the acts of an independent contractorarises when the employer retains control of the premises, inwhich case thy employer is responsible for the safe condition afthe premises.a> Thus, if the workshop roof falls in on the inde-pendent contractor or his assistants, the employer will be liablefor any resulting injuries. In a like fashion, the employe« willbe liable for defective materials or tools he furnishes ta theindependent contractor. The employer must notify the independentcontractor and his assistants of any dangerous conditions on thepremises the employer knows or should know exist which are notknown ta the independent contractor.6~ Warning the independent

contractor will usually take care of the employer's respon-sibility to warn persons employed by the independent contractorsince it is usually assumed that the independent contractor willpass the warning on to his employees.<> The employer owes noduty to warn of obviously dangerous conditions.

An employer may also be liable for meddling or otherwiseinterfering with the independent contractor's work in such away that property damage or personal injury results.6 Thisand the other exceptions to employer non-liability may be viewedas merely special applications of the fundamental legalprinciple that employers are liable for his own wrongfulconduct.

Once the independent contractor's work is complete andaccepted by the employer, thereafter the employer is generallyheld responsible for any defects causing harm. Thus, if a boatis delivered to the marina for repair and an independent contrac-tor does the actual work, the marina can be sued by the boatowner if the boat later sinks due to the defective repair work.Of course, the marina can sue the independent contractor torecover any money paM to the boat owner, but that is often anunsatisfactory process.

A better approach may be to have the boat owner deal directlywith the independent contractor for repair services. Themarina can merely rent space to an independent contractor whodeals directly with boat owners as to details of the work andcosts. It would be unlikely in that situation for the marina tobe held liable for the defective repair work. However, if amarina affirmatively advertises that it can provide certainrepair services in order to encourage business, the marina may beprohibited from claiming that it is not responsible for defectiverepair work. 7 Since the customer is induced by the marina tomake use of the services, a court may allow him to sue the marinaas if the independent contractor were an ordinary employee.

H. BOAT REGISTRATION AND SAFETY LAW

The operator of a pleasure craft owes to his passengers aduty to exercise reasonable care, and he may be liable fornegligent operation.6 The operation of pleasure boats is alsoregulated in the Florida Boat Registration and Safety Law,Chapter 327, Florida Statutes which proscribes and punishesreckless operation of vessels.6

Under the Boat Registration and Safety Law, all boats areconsidered to be dangerous instrumentalities, and operators areheld to the exercise of the highest degree of care to preventinjuries to others.7O This is a duty of care beyond that whichis generally imposed by the common law of negligence. Inaddition, it is unlawful for any person under the influence of analcoholic beverage or a controlled substance to operate avessel.7I

Any marine operation qualifying as a boat livery is alsoregulated by the Florida Boat Registration and Safety Law withrespect to loads, motors, equipment and seaworthiness. Fullcompliance with these requirements releases the livery from

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vicarious 1 iabi1 ity for acci dent or injury resul ting fromrental boat opera ti on. Al though not def i ned by statute, aboat livery is defined generally as one who keeps boats for rent.Boat 1iveries may not knowingly lease, hire or rent a boat to anyperson when the number of persons intending to use the boatexceeds the maximum safety 1oad for the boat. 2 A livery isalso prohibited from renting a boat if certain equipment require-ments are not met. These include horsepower of the motor, life-saving equipment, an anchor, appropriate paddies or oars, and ageneral requirement of seaworthiness.»

A boat livery may not close until the last boat has returned,and if a boat is unnecessarily overdue, the livery must notifythe proper authorities. When a livery has complied with theabove requirement, its liability is limited, and the personleasing the boat, not the livery, is liable for Chapter 327violations, and for accidents or injuries occurring while incontrol of the boat.7"

I - NOTES

See generally W. Prosser, Handbook of the Law of Tortsnnn: K'rrl ~

W. Prosser, note 1 supra, at 2.

Id. at 6.

32 Fla. Jur. Torts, 53.

Sl. presser, note 1 ~so ra, at 143.

23 Fla. Jur. Negligence, 526.

See Bryant V. Jax Liquors, 352 So.2d 542, 544 Fla. 1stKZ .A. 1977!.

568 F.2d 570 8th Cir. 1979!.

143 So.2d 559 Fla.2d D.C.A. 1962!.

10 See generally, 63 Am. Jur. 2d, Products Liability 52.

Fla. Stat. 55672.312-.318 �981!.

12 Id. 5672.318.

13 Restatement Second! of Torts 5402A 1965!.

63 Am. Jur. 2d, Products Liability 54.

15 Id. 5128.

16 Restatement Second! of Torts 5402A �965!.

17 Id., comnent f.

18 336 So.2d 80 Fiat 1976!.

State v. Garzell Plastics Industries Inc., 152 F.Supp. 483 E.D. Mich. 1957!.

20 281 So.2d 382 Fla. 1st D.C.A. 1973!.

21 348 So.2d 5 Fla. 3rd D.C.A. 1977!.

22 Dade County Circuit Court No. 75-34263, 1977.

23 W. Prosser note 1 supra at 357.

24 Restatement Second! of Torts 55335,336 �965!.

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26

28

29

30

31

32

33

35

37

38

39

40

Id., 5342.

Post v. Lunney, 261 So.Zd 146 Fla. 1972!.

Mood v. Camp, 284 So.2d 691 Fla. 1973!.

3~1.. ~gl

Heath v. First Baptist Church, 341 So.2d 265 Fla. Zd D.C.A.1977! .

See Rice v. Florida Power & Light Co., 363 So.2d 834 Fla. 3dKZ.A. 1978! uninsulated power lines in open field' !. cf.Metropolitan Dade County v. Velvington, 392 So.2d 911 FTa.3d D.C.A. 1980! algae condition on boat launching ramp wasnot so open and obvims as to relieve defendant of' liabilityas a matter of law!.

Hoffman v. Cones, 280 So.2d 431 Fla. 1978!.

369 So.2d 616 Fla. 2d D.C.A. 1979!.

177 So.2d 365 Fla. 3d D.C.A. 1965!. See also, Doca v.Marina Mercante Nicaraguense S.A., 474~Supp. 751 S.D.N.Y.1979!.

181 So.Zd 694 Fla. 3d D.C.A. 1966!.

Bertram Yacht Yard v. Florida Mire & Rigging Morks, 177 So.Zd 365 Fla. 2d D.C.A. 1978!.

EII.R",1.11

Hhetzel v. Metropolitan Life Ins. Co., 266 So.2d 89 Fla. 4thD.C.A. 1972!.

5323, and comments �965!. See9 ' ~ um ransp. Co. v. Robins Dry Dock~

Repair Co., Z81 F.97 �d Cir. 1922! wires were crossedduring repair of a ship's telegraph apparatus and caused afire!; Lancashire Shipping Co. v. Morse Dry Dock & RepairCo., 43 F.2d 750 E.D.N.Y. 1930! acetylene torch ignitedfuel fumes and boat exploded!; Bell v. Mutual Machine Co., 63S.E. 680 N.C. 1909! defective caulking of a hull causedleakage and damage!.

Am. Jur. 2d., Bailments, M325, 280.

Restatement Second! of Torts 5'nr403, 404 �965!.

See generally Annot., 44 A.t .R. 824 �926!.

Sturgeon Bay Shipbuilding & Dry Dock Co. v. The Nautilus, 166F.Supp. 187 E.D. 'His. 1958!.

See Dog River Boat Service, Inc. v. The Francis Dre 192F.Supp. 759, 761 S.D. Ala. 1961! .

44 Dierickx v. Vulcan Industries, 10 Mich. App. 67, 158 N.W. 2d778 �968! .

45 Miller v. American Insurance Company, 439 S.W. 2d 238 {Mo.App. 1969!.

See e.gre Greenfield, Consumer Protection in ServiceTransactions - Implie arantres an rect ia i sty in

ort, ta . ev.

47 Id. at 663-65, nn. 10-19.

48 See, e.g. Audlane Lumber 8 Builders Supply, Inc. v. D. E.Britt~ssociates, Inc. 168 So.2d 333 {Fla. 2d D.C.A. 1964!cert. denied, 173 So.2d 146 Fla. 1965!.

50 R. Hursh 8 H. Baile, American Law of Products Liabilit 2d~ ~

e es a emen o or s, prov> es a"LOjne who as an sn epen ent contractor negligently makes,rebuilds, or repairs chattel for another is subject to thesame liability as that imposed upon negligent manufacturersof' chattels." The Restatement does not suggest that a strict

51 See, e.g., White v. Sarasota Country Pub. Hosp. Bd., 206 So.~19~-22 Fla. 2d D.C.A. 1968! cert. denied, 211 So.2d215 Fla. 1968!; Greenfiel d, supra, note 65 at 683.

Myers v. Ranenna Motors, Inc. 468 P.2d 1012 Wash. App.1970!; Poston Steel Erection Corp. v. Saumenig, 132 So. 2d310 Fla. 2d D.C.A. 1961! duty of ordinary care in repairwork!.

53 Husselman Steel Fabricators, Inc. v. Channel, 208 So. 2d 639 Fla. 2d D.C.A. 1968!; Mount Dora v. Voorhees, 115 So.2d 586 Fla. 2d D.C.A. 1959!.

See Mumbry v. Bowden, 25 Fla. Rep. 454 6 So. 453 18S9!; Kingv. Young, 107 So. 2d 751 Fla. 2d D.C.A. 1958!. It is notthe act of cont~ol, but the authority to control that isdeterminative in this context. National Surety Corp. v.Windham, 74 So.2d 549, 550 Fla. 1954!.

-17-

Courts have refused to apply the stricter doctrine of impliedwarranty of fitness for a particular purpose, which isimposed upon manufacturers. See, e.g. Raritan Trucking Corp.v. Aero Commander, Inc. 458 F~ 1TUb, 1113-115 �d Cir.1972! strict liability not applicable to airplane services!;Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427P.2d 833, S39-42 Alaska 1967! no strict liability on thoseagreeing to furnish labor or services!.

56

57

58

59

60

62

65

67

See Margarian v. Southern Fruit Distributors, 1 So.2d 858,%0 Fla. 1941! relationship may exist whether or not theparties think it does!; Peterson v. Highland Crate Co-op, 23So.2d 716, 717 Fla. 1945! lack of control importantfactor!. See also 41 Am. Jur. 2d, Independent Contractors,555-23.

McKenzie v. Neale Constr. Co., 294 P.2d 355 Wyo. 1956!;Morrison v. National Life & Accident Ins. Co., 162 S.W. 2d497 Tenn. 1940!.

Justice v. Bel ford Trucking Company, Inc., 272 So.2d 131 Fla.1972! party held to be employee despite contract!.

Annot., 78 A.L.R. 3d 910 �977!.

Annot., 31 A.L.R. 2d 1375 �965!.

Modlin v. Washington Ave. Food Center, Inc., 178 So.2d 596 Fla. 3d D.C.A. 1965!, quashed, 205 So.2d 295 Fla. 1968!,conformed 208 So.2d 862 TFla. 3d D.C.A. 1968!; Maldonado v.isaac ~erry Grove corp., 351 So.2d 967 Fla. 1977!.

Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362 Pa. 1971!.

McCarty v. Dade Div. of American Hospital Supply, 360 So. 2d436 Fla. 3d D.C.A. 1978!.

Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 Fla. 2dD.C.A. 1976!; Delhi-Taylor Oil Corp. v. Henry, 416 S.W. 2d390 Tex. 1967!.

See Pence Construction Corp. v. Watson, 470 S.W. 2d 637, 638Telex. 1971!; see also Brletich v. U.S. Steel Corp., 285 A.2d133 Pa. 1971~no outy toward independent contractor'semployees when independent contractor has skill or knowledgesuch that the danger should be obvious to him.

Mount Dora v. Voorhees, 115 So.2d 586 Fla. 2d D.C.A. 1959!.

Baader v. Looby, 126 S0.2d 745 Fla. 3d D.C.A. 1961!.

68

69

70

71

See Gibboney v. Wright, 517 F.2d 1054, 1059 �th Cir. 1975!.

Fla. Stat. 5327.33 �981!

Id. 5327.32.

Id. 5327.35.

Id. 5327.54 I! a!.

Id. 5327e54.

Id. 5327.54�!

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II - BAILMENTS:

LIABILITY FOR THE MOORING OR STORAGE OF BOATS

A. INTRODUCTION

The law of bailments is relevant to four general categoriesof services recreational marinas normally provide: mooring,storage, boat repair and charter service. This report will beginwith an explanation of bailments and applicable legal principles.Three sections follow, treating mooring, storage and repairseparately and examining the legal responsibilities of marinaoperators in regard to each. The law applied to chartered boatsis discussed in the chapter on charter.

1. What is a bailment?A bailment is a legal relationship between persons arising

when one delivers personal property to anothe~ in trust for aspecif'ic purpose with the understanding the property is to bereturned or otherwise properly accounted for.~ The ownerdelivering the property is called the "bailor" and the personreceiv~ng temporary possession the "bailee." Any kind of per-sonal property, including pleasure boats, can be the subject of abailment. Since the primary function of a recreational marina isto provide a facility where pleasure boat owners can deliverboats for mooring, storage or repair for temporary periods whenthe boat is not being used, the law of bailments is crucial tounderstanding the legal obligations and potential liability ofrecreational marina operators.Z. Theories of liability

A bailee may be subject to liability under two basic legaltheories -- negligence and breach of the bailment contract.Either or both theories may apply at the same time. Under negli-gence theory, a bailee is generally liable for any loss or damageto bailed property in his possession if he fails to exerciseordinary care in handling or protecting the property. The dutyof ordinary care is not dependent upon the existence of anexpress contract, but ar~ses by operation of' law. However,formal written contracts are often used.

If a contract is entered into by the bailor and bailee, itsterms govern the rights and responsibilities of the parties inaccord with contract law. A failure by the bailee to carry outhis contractual obligations gives the bailor a ~ight to sue forboth breach of contract and negligence. Of course, when thebailor fails to comply with its terms, the bailee may sue underthe contract also'

The ordinary care sometimes referred to as "reasonablecare"! of a bailee is the standard of' care a prudent personhandling his own property under similar circumstances would ordi-narily exercise.~ If the bailment agreement. includes specialmatters, such as the repair of bailed property, the bailee mustuse ordinary care in rendering whatever skills are necessary toaccomplish the special task. The bailee is also liable for anynegligence on the part of employees causing harm to the bailed

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property if the harm occurs within the scope of their employment.Nevertheless, the bailee is not an insurer of the bailedproperty. If he and his employees are not at fault, he will notbe liable for damage or loss resulting from other causes.3

A plaintiff can usually establish negligence by proving thathe delivered his property to a bailee in a certain cond1tion andthe bailee returned it in a worse condition. If the baileeoffers no excuse in rebuttal, a court could hold the baileenegligent and liable for the difference ln value.4 On the otherhand, if the bailee shows that he exercised ordinary care, thebailor must prove additional facts establishing actual negligenceon the part of the bailee.~

If no bailment exists, a person has no duty of ordinary orreasonable care toward another's property. However, even a non-bailee will be liable for the consequences of gross negligence.Gross negligence has never been precisely defined by the courtsbut the concept can be described generally as conduct that isreckless and without consideration of possible harm.

Mhat has been stated concerning negligence theory must bequalif1ed if there is a contractual relationship between thebailor and bailee. A ba1lee can assume responsibilities goingbeyond the requirement to exercise ordinary care and refrain fromdoing negligent acts. He can, for example, agree to take specialprotective measures that would not usually be contemplated in abailment relationsh1p.6 Such additional obligations would haveto be carried out by the bailee to avoid liability for breach ofthe contract. In a more positive sense, a written bailmentcontract can be used to clarify responsibilities of the partiesand reduce the potential for controversy and litigation.

8. MOORING

Sl ip rental with nothing more, wil 1 rarely create abailment. 7 A bailment r el ati onshi p i s charac teri zed by theexclusive temporary relinquishment of possession to the bailee.Mhen the yacht or motorboat owner pays a monthly slip rental feeto moor his boat at a marina, he usually does not relinquishexclusive control and possession to the marina operator . Hemerely pays for the privilege to moor. It might appear theoperator has possession when the boat is at the marina and theowner is miles away, but the law of bailment focuses on thenot~on of exclusive possession and not physical proximity. Sincethe owner can return at any time, untie the lines to the boat andcast off, the mari na operator is not considered a bailee withexclusive possession and is under no obligation to exercise ordi-nary care for the boat. The brief case sketches that followwill illustrate the legal principles app11ed to simple moorings.

Blank v. Marine Basin Co.goat owner entered a marina, tied up his boat, and

padlocked the lines. He arranged to pay for mooring and forhauling the boat in and out of the water on request. The marinaowner, however, was never given a key to the padlocks. The owner

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and his friends used the boat from time to time without givingnotice to the marina owner. The boat was later found missing andpresumed stolen. The court dismissed the boat owner's claim ofnegligence because the boat had not been delivered to the marinaoperator's exclusive possession and thus, no bailment wascreated.

Richardson v. Port Vincent Boat Works, Inc. 10oatowner pa> mont y renta s to tie his 44-foot Chris

Craft in the defendant's floating boathouse. The boat sank andthe owner claimed the sinking was caused by the boathouseowner's negligent maintenance of the boathouse and failure toprotect the boat. The court held that the rental arrangementcreated only a lessor-lessee relationship between the parties andnot a bailment. The boathouse owner had no obligation to usereasonable care toward the boat and the fact that he neverchecked the premises or the boat did not make him negligent.

Florida Small Business Corp. v. Miami Shipyards Corp.>>e p ann i sue a oa yar owner ecause is boat sank

while moored to the dock. The boat was in the possession of theplaintiff's employee while being prepared to be sold. In addi-tion, the crew of a prospective purchaser had had control of theboat. Under these circumstances, the court determined that therehad not been a "complete delivery" to the boatyard owner.Therefore, the boatyard owner did not breach any duty owed to theplaintiff because no bailment existed.

Blair v. Saguaro Lake Development Co.12e owner o a ca s n cruiser a just completed refinishing

the hull. She asked the marina owner to check the boat forseepage while she went into town for several hours. The marinaowner inspected the boat but did not see enough water to justifypumping it out. The boat was later discovered to be on fire andthe marina owner and his employees were unable to put it out.The boat was dragged away from the dock, where it exploded. Thecabin cruiser owner sued the marina, claiming negligence for notpreventing the fire. The court found that the marina owner'sagreement to check for seepage created a bailment. ke had beenplaced in exclusive possession and control of the boat while theowner was absent. Nevertheless, the court found no basis forholding that the marina owner had breached his duty of ordinarycare. There was no evidence of how the fire was caused. Themarina owner's periodic inspection of the boat for seepage hadovercome any presumption of negligence. Therefore, without proofthat the fire was caused by the marina owner's negligence, hecould not be held liable.

A situation faced by many marina operators is where a boat isleft at the marina against the wishes of the marina operator orwithout his knowledge. Since a bailment is usually understood tobe an agreement for the mutual benefit of the bailor andbailee,13 a court is unlikely to find a bailment when the marinaoperator refuses the relationship or is without knowledge of it.A California case14 involved a boat owner who refused to removehis boat from the marina on request. When the boat was sub-

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sequently damaged, the owner claimed it was due to the marinaowner's negligence. The court, however, described the marinaowner as an "involuntary depository" of the boat and not a baileeowing a higher duty of ordinary care.

In a more recent case from Hew York,I~ the plaintiff hadtawed his disabled cabin cruiser to a marina and tied it to thedock. No one at the marina was informed of the boat's presenceor its condition. Water filled the boat thr ough an unstopperedopening in the hull exposed when the exhaust pipes andtransmission were removed, and the boat sank. In a suit by theboat owner against the mar1na, the court declared that nobailment had been created. The court went on to state that, evenif a "constructive bailment" were held to exist, the marina ownerfulfilled his obligation to exercise care and diligence in pro-tecting the unknown boat when he secured its mooring lines.

Whenever a boat is left for mooring or any other marinaservice, it cannot be handled in a manner not reasonably relatedto the service.> For example, if a boat owner has left his boatin a rental slip, the marina operator or his employees cannot usethe boat for business or pleasure without permission.I7 Shoulddamage occur to the boat that would not have occurred 1f the boathad been handled as agreed by the parties, the marina operatorcould be held liable even in the absence of negligence.I8

Since the law imposes greater responsibility upon a baileethan a non-bailee, a marina operator may reduce his liabilityexposure for damage to boats moored at the marina by notaccepting complete control and possess1on. This can beaccomplished most effectively by the terms of a written mooringcontract, executed by the boat owner and marina operator. Thecontract should state in unambiguous language the boat owner isonly paying for the privilege of mooring his boat at the marina,and nothing more. The following provision 1s offered as anexample:

The boatowner acknowledges that he has inspectedthe berthing space leased under this contract andis satisfied that the space is adequate for thesafe mooring of his vessel. This contract is not abailment of the boat owner's vessel but only thelease of a berthing space. The marina's respon-sibility is limited to supervision and maintenanceof the waterfront area. The marina's employeeswill make treasonable efforts to notify the boatowner of any dangerous conditions they are aware ofbut the marina assumes no responsibility fortending mooring lines, moving the boat from itsassigned berth or otherwise tending to the boat.The boat owner retains full control and possessionof the boat during the period of this lease.Ig

In order to attract customers, the marina owner or manager mightprefer to offer special services to boat owners who rent mooringspaces. The marina l ay for example, provide a night watchman,periodic inspection of boats, pump-outs, or other services topersons renting a slip. The intent of this report is not to

-22-

discourage such business practices. Marina owners and operatorsshould be aware, though, of the consequences of creating abailment relationship.

The distinction between renting a moo~ing space and agreeingto undertake additional responsibilities is often difficult todetermine, but critical to the question of potential liability.Also, the difference between "wet" and "dry" storage can he animportant factor as to whether a bailment ex1sts. Furthermore,a request for minor repair services can change simple rental intoa bailment even when the boat 1s not moved.

The next two sections explore the ki nds of s1tuations whichcreate ba1lments and the responsibil1ty imposed on the marina.

C. STORAGE

1. Gener al lyIn the preceding section it was concluded that renting a boat

slip will rarely create a bailment. Because the boat owner hasnot delivered exclusive possession and control of the boat to themarina operator, the law does not require the operator to protectthe boat as if it were his own. Often, however, the marina isasked to provide greater protection for the boat and a bailmentrelationship results' The key determinant is always the conceptof exclusive possession.

Exclusive possession in the context of marina operationsusually involves an understanding that the boat owner will not beavailable to look after the boat for the bailment period and pro-tection of the boat is left entirely to the mar1na operator. Inaddition, it usually means the owner does not have easy access tohis boat and must make arrangements with the marina operator forits use. These circumstances are typical of many boat storagesituations and, therefore, boat storage normally creates abailment between the boat owner and marina operator.

There are a number of factual settings that can be generallydescribed as storage and which bring into play the. legal prin-ciples of bailment law. Many owners of yachts and other largepleasure craft have their vessels winterized and stored at amarina. Storage, however, can be accomplished at any time of theyear and for any number of days. Storage bailments can alsooccur in conjunction with boat repairs and when a boat has beenleft with the marina operator to sell.2I Storage is notdependent upon any particular placement of the boat. Storage canoccur in the water, boathouse, or in the boatyard with the boaton blocks, on a trailer, or stacked in a buildings

A bailment, whether for boat storage or another purpose,creates a duty on the part of the bailee to exercise ordinarycare to protect the bailed property. The particular facts andci rcumstances of each case determine whether or not the baileefailed to exercise the requ1red standard or care. However, thecases that have been decided by the courts indicate a few generalpatterns.

First, if a written contract is used for the storageagreement, its terms will govern the rights and responsibilities

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of the parties unless it is ambiguous. 2 Second, the marinaoperator must take precautions to avoid forseeable mishaps suchas fire, theft and storms. For example, fires are foreseeableand the operator would be negligent not to have fire fightingequipment near stored boats.23 In addition, the marina should bein compliance with fire codes and employees should be briefed onthe measures to be taken in the event of a fire. Whetherextraordinary storms are foreseeable depends on surrounding cir-cumstances, hut, clearly, stored boats must be kept safe from thenormal @cather conditions of the particular location andseason.2" Third, when an accident occurs, the marina operatormust take reasonable steps to reduce the resulting damage. Whilehe may be free of negligence in regard to the outbreak of a fire,for example, he would be liable for failure to take action to putthe fi re out if it, was within his power to do so. These generalprinciples are illustrated in the following case sketches.

Chanler v. Wayfarer Narine Corp.2~e owner o a - oo cut er-rigged yacht stored it for the

winter. In the spring, the yacht was launched again and placedat its regular mooring offshore. When a violent storm came upone evening and wrecked the vessel, the owner sued the marina.The boat owner alleged that the marina operator was negligent forplacing the yacht at a mooring that was insufficient to ride outthe storm. The court disagreed. It found that the mooring wasadequate for normal conditions and that there had been no indica-tion in the latest United States Weather Bureau forecast that 70knot winds were coming. The court found that the marina operatorhad exercised reasonable care under the circumstances.

Pennington v. Styron2~e p ainti in this case left his 34-foot yacht for winter

storage as he had done the previous year. The vessel was kept inthe plaintiff's regular boat slip until a larger yacht asked forberthing at the marina. The marina operator put the larger yachtin the plaintiff's regular slip and moved the plaintiff's yachtto a smaller sheltered boat slip. Some time later, a heavy rain-fall caused the shelter to collapse onto the plaintiff's yachtand damage it. The court held the marina operator liable for thedamage, focusing primarily on the removal of the boat from itsregular slip. This created a breach of the bailment contract.The court stated:

It is generally held that if the bailee, withoutauthority, deviates from the contract as to theplace of storage or keeping of the property, and aloss occurs which would not have occurred had theproperty been stored or kept in the place agreedupon, he is liable, even though he is notnegligent.2"

The marina operator attempted to avoid the effect of thislegal principle by claiming that he often moved boats around inthe marina and that it was a customary practice to do so. Thecourt, however, was not peal uaued It declared that a custom

-24-

must be such that the plaintiff is presumed to know of it evenwithout evidence of his actual knowledged The court was not con-vinced that the practice of moving the boats from one slip toanother was commonly known to boat owners. Thus, the marinaoperator had a duty to obtain consent before moving theplaintiff's boat from its regular slip.

Wentz v. Kartge~81ig-

tion to inspect a boat that had been left for winter storage.The owner of a 44-foot cabin cruiser had winterized the vesselhimself before turning over control to the marina operator. Themarina operator inspected the boat on a regular basis each dayand never noticed any problem. The boat was last inspected atmidnight one evening and was found almost sunk the followingmorning.

The owner sued to recover damages to the boat, claiming thatthe marina operator should have noticed the unblocked exhaustpipes and realized that the condition might cause water to enterthe bilges 1f not corrected. Kowever, the court found theabsence of wooden plugs in the exhaust pipes to be of no par-ticular sign1ficance since there was no general custom to havesuch plugs. The evidence was not conclusive that the unpluggedpipes were the only cause of the s1nking, if any cause at all.The court did not think the mar1na operator's duty to inspect theboat included an obligation to open hatches and look for water inthe bilges if there was no outward indication that water wasaccumulating. The fault for the sinking was improper winterizingby the plaintiff and not negligence by the marina operator.

Gelb v. Minneford Yacht Yard~9A yac t owner in orme a marina operator that he was trying

to sell his yacht but if he was unsuccessful in getting a buyerhe wanted the boat placed in the marina yard for winter storage.The marina operator urged the owner to request storage soonbecause otherwise he would be far down the list of persons whoseboats were to be stored and would have a long delay before theyacht could be hauled out of the water.

The yacht owner subsequently requested that the boat bestored. Wh~le awaiting its turn for storage preparations, theboat was regularly inspected by marina employees, addit1onalmooring lines were added and on one occasion it was pumped out.The marina operator often made evening inspections of the boatsin the marina as well. The yacht was found one morning to havesunk for unknown reasons.

The owner sued the mar1na operator for the loss of his yacht,but the case was dism1ssed. The court held that the length oftime that the yacht remained in the water was reasonable and thatthe plaintiff had notice of the delay . It also held that theevidence showed diligent care by the marina operator in checkingthe boat, adding lines and pumping it out. These facts overcameany presumption that the sinking of the yacht was caused by themarina operator's negligence.

Fireman's Fund American, Inc. v. Capt. Fowler's Marina, Inc.30i' s yacht was stored outs> e in the e en ant's

boatyard. One evening, a fire broke out on a boat that wasstored beside the plaintiff's yacht and the fire soon engulfedboth vessels. The evidence showed the marina did not have anight watchman, there was no water on the premises, and therewere apparently few, if any, fire extinguishers available. Itshould be rather obvious that the marina owner did not exerciseordinary care toward the plaintiff's yacht under these cir-cumstances. The case is worth noting, nonetheless, for twopropositions utilized by the court.

First, the court found a bailment to exist despite the factthat the plaintiff was permitted to come onto the boatyardpremises at any time to work on his boat. The contract that wasused by the parties provided that the plaintiff could not bringothers onto the premmises without special permission, that allmaterials needed by the plaintiff would be purchased from theboatyard, and the boat could not be removed without thedefendant's permission. Under these circumstances, the court didnot consider free access to the yacht to affect its finding thatthe boatyard owner had sufficiently exclusive possession andcontrol to create a bailment.

The second proposition of importance was the court's use ofthe "Fire Protection Standards for Marinas and Boatyards"published by the National Fire Protection Association as ageneral guideline for judging the reasonableness of thedefendant's conduct. The court cited section 101 a! of thepublication which states that marina owners are expected to pro-vide "necessary equipment to control the spread of fire"; section102 which recommends "adequate water supply for fire fighting";and section 103 which instructs marina owners to locate "portablefire extinguishers of approved types and suitable to the hazardsand circumstances . . . so . . . that an extinguisher is within50 feet of any point."31

Empire Tool Co. v. Wells32oat owner a a marina take his boat out of the wate~ and

place it on a cradle for storage. The boat owner did some workon the boat for a while and made monthly visits to the marina tocheck on it. All the while, he paid storage fees to the marina.The marina was sold to another company but no notice of thechange in ownership was given to the boat owner and his storagepayment receipts continued to refer to the marina by the samename. When the boat owner finally took back possession of hisboat he discovered missing items and damage. The boat. owner suedboth the first and the second marina owners and a judgment wasawarded in his favor against both. The new owner of the marinabrought an appeal.

On appeal, the new marina owner claimed that he could not beheld liable for the boat's damaged condition because the boatowner had not proven that the boat was delivered to the new ownerin a better condition. The boat owner had only proven that hehad delivered the boat to the first owner in better condition.The appellate court was not persuaded and affirmed the lowercourt's judgment. The appellate court said that when the marina

-26-

was purchased, the new owne~ should have known about the boatsthat were on its property. When the new owner billed the boatowner for storage, that constituted a constructive or impliedacceptance of the bailment of the boat. Because he was thus abailee, the new owner had a duty to protect and account for theboat. He had the same obligations as the original bailee unlesshe terminated the bailment by notify1ng the boat owner and givingback possession of the boat. Since he did not notify the boatowner, he could not avoid liability for the harm done.

2. Applicability of the Uniform Commercial CodeIn most states, the general standard of care, burden of proof

and opportun1ty to limit liability in warehousing situations isgoverned by the Uniform Commercial Code UCC!. Florida hasadopted the UCC with only minor changes. Article 7, which dealswith warehousing, is codified in Chapter 677 of the FloridaStatutes. A marina operator who stores boats may not think ofhimself as a warehouse operator, but for UCC purposes he is.

A "warehouseman" is defined broadly in the UCC as "a personengaged in the business of storing goods for hire."33 In turn,"goods" are defined in such a way that yachts and other pleasureboats would be included.>< Storage does not have to be inside abuilding to make a warehouseman out of a marina operator. Evenoutdoor storage of boats is sufficient pince the definit1on ofwarehouseman does not mention warehouses.~5

It is well settled in the law that when goods are stored in awarehouse a bailment is created.> If there is any doubt aboutthe relationship, the test of exclus1ve possession and control isapplied. Florida's UCC defines a warehouseman's duty in regardto stored property in the same general way as a ba1lee's duty:

A warehouseman is liable for damages for loss of orinjury to the goods caused by his failure to exer-cise such care in regard to them as a reasonablycareful man would exercise under like circumstancesbut unless otherwise agreed upon he 1s not liablefor damges which could not have been avoided by theexercise of such care.3

Thus, the degree of care required of a marina operator is notenlarged by the UCC provis1ons as to warehousemen. Wis duty 1sstill one of ordinary care under the circumstances.

The applicability of Florida's UCC, however, would allow thecourt to draw upon prior decisions rendered in cases involv1ngmore traditional warehousing situations and apply their prin-ciples to boat storage cases. The following factors have beenimportant in UCC decisions examinino the sufficiency ofwarehousemens' protection of bailed goods against fire damage:38

a! construction materials used in the warehouse,b! type of construction,c! whether fireproof storage was promised,d! maintenance of the warehouse,e! methods of disposal of debris,f! proximity of stored goods to fire hazards,

-27-

g! availability of water supply,h! availability of fire extinguishers,i ! maintenance of f i re f i ghting equi pment,j! security precautions taken, such as use of night

watchmen,k! whether smoking was allowed nearby,1! what actions were taken to put out the fire.

Similar factors relating to construction and maintenance ofstorage facilities and security precautions would be applicableto cases involving storm damage~g and theft. O

Of perhaps greater significance to a marina's boat storageoperations would be the UCC provisions concerning limitation ofliabi'lfty for damage or loss of stored goods. It is common for abailment agreement to include a clause limiting the potentialliability of the bailee to an amount less than the true value ofthe bailed property. The Florida UCC allows the practice butrequires that the limited liability be specified by a particularsum for each article stored or per unit of weight.4I A baileecannot divest himself of all liability for damage or loss ofproperty in his possessions The courts usually find suchagreements to be against public policy and will hold the baileeliable despite the no-liability clause.42 In addition, the rightto limit liablity does not apply when goods are stolen by thebailee.4>

It should be noted that the courts will resolve any ambiguityin the bailment agreement against the party who drafted theagreement.44 In most situations, that will be the bailee. Thefollowing case sketches describe limitation of liability clauseswhich courts refused to enforce.

Harbor One, Inc. v. Preston4~e p ann i a e his boat with a marina to sell. The

consignment contract that was signed by both parties had a provi-sion that stated: "Due to limited physical facilities, the con-signee hereby waives all responsibility for theft or any othercasualty." When the boat was stolen, the marina relied upon thisexculpatory clause to refuse payment to the plaintiff. When theplaintiff sued the marina, the court found the contract languageambiguous and ineffective to relieve the marina from lfability.

The provision was ambiguous because it specified that the"consignee" was making the waiver. The court declared that anyexculpatory clause should be strictly construed to make itseffect as narrow as possibles The ambiguity was resolved in theplaintiff's favor by ignoring the provision altogether.

Fireman's Fund American Insurance Co. v. Boston Harbor Marina,nc.

A marina fire damaged many of the boats stored in one of thebuildings, including the plaintiff's yacht. The storage contracthad specified that the boat owner must carry his own insuranceand the marina "will not be liable for loss or for damageunder any circumstances . . . including fire, theft, vandalism,water damage and any negligent acts or omissions and not-withstanding any asser ted or actual breach of this contract."

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The marina refused to pay for the yacht's repair and theplaintiff sued.

The court observed that the United States Supreme Courtdisapproves of exculpatory clauses as generally contrary topublic policy in relationships between bailors and bailees.47Though the case had to be remanded to the lower court, this courtused strong language in its own disapproval of the contract inquestion and instructed the lower court to presume it to beagainst public policy unless further evidence proved otherwise.

Fireman's Fund American Ins. Co. v. Capt. Fowler's Marina,nc.

The owner of a yacht signed a contract with a marina to havehis boat stored for the winter. The contract provided that "theboat and all the property of the boat is at the sole risk of theboat owner while on the marina premises and [the marina]will not be liable for damage to or loss of said boat and allother property of any kind, no matter how occasioned." A firethat was clearly due to the lack of reasonable safeguards on thepart of the marina damaged the yacht. In the litigation thatfollowed, the court held the exculpatory clause violative of theUCC and against public policy.

3. Nonjudicial sale of stored boatsBecause it is not uncommon for a boatowner to def'ault on his

boat storage payments, many marina operators provide in theirwritten storage contracts that the boat will be sold if paymentsgo unpaid for a specified length of time. This practice isauthorized by Florida statute if several conditions are met.49First, the nonpayment period must be at least six months.Second, the contract must indicate where notice of the saleshould be mailed to the boatowner. Third, the boatowner must benotified by certified mail at least 30 days before the sale is tooccur. Fourth, written notice of the sale and a copy of thecontract must be sent to the Florida Department of NaturalResources in Tallahassee at least 30 days before the sale.Fifth, the marina must have a notice published in a newspaper inthe same county where the marina is located at least ten daysbefore the sale. The notice must indicate the time and place ofthe sale, a description of the boat and that the sale will be asale by public auction to the highest bidder.

The Florida Statutes also provide that the boat's sale pricemust be at least SO'X of its fair market value as determined bytwo independent licensed property appraisers.50 The marina musthire the appraisers and have their appraisals sent to theDepartment of Natural Resources at least 30 days before the sale.Any proceeds of the sale which exceed the unpaid storage cha~ges,newspaper publication costs and appraisers' fees must be turnedover to the court clerk. These provisions are designed to pro-tect the boat owner. With some inconvenience, they also providea legal process for the marina to obtain unpaid storage fees.Hopefully, the notice of public sale that must be sent to theboatowner will be all that is necessary in most cases to elicitthe desired response.

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When a boat is left with a marina for repairs, a bailmentalmost always results. A possible exception applies only whenthe marina does not have exclusive possession of the boat. Thatmight be that case, for example, when a boat owner works on hisboat with the assistance of a mechanic employed by the marina butdoes not relinquish control. In this situation, the line betweenbailments and non-bailments can be difficult to draw.

If the repair work agreement does not specify a date uponwhich the work is to begin or end, reasonable time limits will beassumed by a court if the issue is later raised in litigation.5IWhat constitutes reasonableness for time limits or other matterswill vary from one situation to another and may depend in part onthe customary practices of marinas in the region,5~

Whether specified by contract or not, it would be unusualfor the repairs to begin immediately after the boat is deliveredor be completed the same day. The boat will more likely spend afew days awaiting repair and awaiting redelivery to the owner.The law treats this time in the same manner as storage agreementsgenerally -- as a bailment. Therefore, the duty of the marinaoperator to protect a boat left for repairs is greater than hisduty toward a boat for which only slip rental is paid.

The legal principles discussed in the previous section in thecontext oF agreements for boat storage are equally applicable tothe standard of care required of a marina operator asked torepai r a boat. The following case sketches illustrate storageresponsibilities arising in conjunction with repair bailments.It should be noted that marina owners may not only be subject toliability under bailment theory, as illustrated by the followingcases, but also for negligently performed work on boats broughtin for repair. Only bailment liability is discussed in this sec-tion. Liability for defective work is covered in the section ontorts.

Erlbacher v. Republic Homes Corp.~3e p a n i s yac ran aground in the Mississippi River

and was towed to defendant's boatyard where the damage wasrepaired. Two days before plaintiff was to pick up the yacht,the defendant inspected it to determine what final cleaning wouldbe necessary. He had two employees begin scrubbing down thedecks. He did not check the engine compartment even though heknew that an open-face heater had been placed between the enginesto prevent them from freezing up and that the compartment hadbeen closed for a long .time.

Later, one of the laborers washing the decks heard the enginerunning, smelled strong fumes, and saw some liquid spewing in thevicinity of a small motor. The laborer left the yacht to tellthe foreman what he had seen. The foreman instructed the laborerto turn off the yacht's electrical power, but he did not accom-pany the labore~ even though he knew the man was inexperienced

with boats. While the laborer was searching for the shut-offswitch in the wheelhouse, the yacht exploded and burned.

In the litigation that followed, the cour t dismissed theboatyard's contention that the bailment created when the yachtwas delivered for repairs ended at the completion of the repairwork. The bailment continued and required the boatyard and itsemployees to exercise ordinary care in protecting the yacht. Thecourt found the boatyard negligent for its failure to adequatelyinspect the yacht under the circumstances, and for allowing aninexperienced employee to be responsible for an emergencysituation.

Aetna Life 8 Casualty Co. v. Stan-Craft Corp.~4a~n ~ s wen y-seven oo sai oa was delivered to a

marina for repairs. The sailboat was placed in the repair shopto await repairs and was destroyed hy a fire of unknown origin.The plaintiff sued the marina for negligence. The fire wasdiscovered a half hour after the last employee had gone home.The shop was left unattended and unlocked. In addition, therewas flammable gasoline and paint thinner in open cans in the workarea and a pile of swept-up wood chips, sawdust and greasy ragson the floor. Cigarette smoking was permitted in the repair shopas well. The court determined that these conditions created afire hazard and were sufficient to make the marina liable for thedestruction of the plaintiff's sailboat.

E. CONCLUSION

Marina operators may be subject to 1 iabil ity for damagesarising to property left on the marina premises. Whether or notthe operator or owner will be liable may depend on the standardof care imposed by the reviewing court. If a bailment arisesbetween the parties then the marina operator must exercise theordinary level of care a reasonable, prudent operator would exer-cise under the circumstances. In the absence of a bailment, theoperator owes the boat owner no duty to exercise ordinary carebut only a duty to refrain from doing any affirmative act whichcauses damage to the boat. Whether or not a bailment rela-tionship arises is significantly determined by whether the marinaoperator is given exclusive possession of the boat. While abailment relationship may be necessary or desirable for businessreasons in many situations, marina operators should be aware ofthe additional responsibilities that are imposed by law.

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I I - NOTES

M'aulding v. United States, 257 F.2d 56 9th Cir. 1958!;Dunham v. State, 192 So. 324 {Fla. 1939!.

Hollander v. Nolan Brown Motors, Inc., 272 So. 2d 9 Fla. 3rdD.C.A. 1973!.

See Freuhauf Corp v. Aetna: Ins. Co., 336 So. Zd' 457, 459Tea. 1st D.C.A. 1976!.

Stegemann v. Miami Beach Boat Slips, Inc., 213 F.Zd 561 �thCir . 1954 !; Marine Office-Appleton 5 Cox Corp. v. AquaDynamics, Inc., 295 Se. 2d 370 Fla. 3rd D.C.A. 1974!.

Gelb v. Minneford Yacht Yard, Inc ., 108 F.Supp. 21 S.D,N.Y.1952!.

See Noonan Constr. Co. v. Federal Barge Lines, Inc., 453 F.2dH7, 640-41 �th Cir. 1972!.

Moseley, Marina and Vessel Repair Facilities: Liability andInsurarrce, . r. . om.

Foremost Ins. Co. v. Blue Streak Enterprises, Inc., 353 So.2d 430 La. App. 1978!.

178 A.D. 666, 165 N.Y.S. 883 N.Y. App. 1917!. Similar factsand holdings may be found in Marino v. Gagliano, 50 Misc. 2d499, 270 N.Y.S. 2d 934 Sup ~ Ct. 1966!.

284 F. Supp. 353 E.D. La. 1968!.

175 So. 2d 46 Fla. 3rd D.C.A. 1965!.

495 P.2d 512 Ariz App. 1972!.

Bailments may also be undertaken for the benefit of one ofthe parties. See 5 Fla. Jur. Zd, Bailments 53 �978!.

Sellick v. Clipper Yacht Co., 386 F.2d 114 9th Cir . 1967!.

Mack v. Davidson, 55 A.D.2d 1027, 391 N.Y.S. 497 N.Y. App.1977!.

8 Am. Jur. Zd, Bailments 5171 �980!.

See Sellick v. Clipper Yacht Co., 386 F.2d 114, 116 9th Cir.TR7! .

See Pennington v. Styron, 153 S.E.2d 776, 779-80 N.C. 1967!.

19

20

21

22

26

27

28

30

31

32

33

34

35

3 Am. Jur. Le al Forms 2d, Boats and Boating, 677 �973!.

Moseley, supra note 7, at 628.

See e.g., Marine Office-Appleton & Cox Corp. V. AguaDynam>cs, Inc., 295 So. 2d 370, 370-71 Fla. 3d D.C.A. 1974!;Harbor One, Inc. v. Preston, 172 So. 2d 478, 478 Fla. 3dD.C.A. 1965!. Storage bailments as an aspect of a bailmentfor repair s is treated in Section D, infra.

See Harbor One, Inc. v. Preston, 172 So. 2d 478, 479 Fla. 3dKZ.A. 1965!.

See Employers Fire 1ns. Co. v. Laney 8 Duke Storage Warehouset.o., 392 F.2d 138, 139-40 �th Cir. 1968!; Fireman's FundAmerican Ins. Co. v. Captain Fowler's Marina, Inc. 343F.Supp. 347,350-51 D. Mass 1971!.

See Iron City Sand 8 Gravel Div. of McDonough Co. v. West~or Towing Corp., 440 F.2d 958 �th Cir. 1971!; Buntin v.Fletchas, 257 F.2d 512 �th CIr. 1958!.

302 F.Supp. 282 D. Maine 1969!.

153 S.E. 2d 776 N.C. 1967!.

Id., at 779, citing 8 Am. Jur. 2d, Bailments 5191.

132 F.Supp. 527 D.Md. 1955!.

108 F.Supp. 211 {S.D.N.Y. 1952!.

343 F.Supp. 347 D. Mass. 1971!.

Id., at 350. See also Employers Fire Ins. Co. v. Laney 8 Dukestorage Warehouse Co., 392 F.2d 138, 139-40 �th Cir. 1968! wher e the court took judicial notice of the FLorida FirePrevention Code and the City of Jacksonville Ordinance Codeto provide a standard for the defendant's conduct in a ware-house fire!.

227 So. 2d 76 Fla. 4th D.C.A. 1969!.

Fla. Stat. 5677.102 l! h! �981!.

Id., 5677.102�! f!.

"The fact that storage in the instant case was out-of-doorsrather than in a warehouse or similar structure does not meanthat the bailee was not a 'warehouseman' since, regardless ofwhere he keeps them, he is a person engaged in the businessof storing goods for hire." Fireman's Fund American Ins. Co.v. Capt. Fowler's Marina, Inc., 343 F.Supp. 347, 350 D.Mass.1971!.

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36

50

51

54

78 Am. Jur. 2d, Warehouses, 525 1975!.

$677.204�! �981!.

Annot., 2 A.L.R. 3d 908 �972!.

See Annot., 43 A.L.R. 3d 602 {{923{.

See Marine Office-Appleton S Cox Corp. v. Aqua Dynamics,Tncee 295 So. 2d 370 {IFla. 3d D.C.A. 1974!.

Fla. Stat. 5677.204�! �981!.

See Bisso v. Inland Waterways Corp., 349 U.S. 85,90 �955!;~reman's Fund American Ins. Co. v. Boston Harbor Marina,Incee 406 F.2d 917, 9PO-22 �st Cir. 1969!; Fireman's FundAmerican Ins. Co. v. Capt. Fowler's Marina, 1ncee 343 F.Supp.347, 349-50 D. Mass. 1971!.

~l. E«. n7.N ol Il ll.

See Harbor One, Inc. v. Preston, 172 So. 2d 478, 479 Fla. 3dKZ .A. 1965!.

172 So. 2d 478 Fla. 3d D.C'.A. 1965!.

406 F.2d 917 �st Cir. 1969!.

Id. at 920 citi.ng Bisso v. Inland Waterways Corp., 349 U.S.F5 �955!; S.!{l. Sugar 8 Molasses Co. v. River TerminalsCorp., 360 U.S. 411 �959!; Dixilyn Drilling Corp., 372 U.S.697 �963!!.

343 F.Supp. 347 D. Mass. 1971!.

Fla. Stat. 5328e17 �! �981!.

Id. 5328.17�!.

See Stovall Tire 8 Marine Inc., v. Fowler, 217 S.E. 2d 367~a. App. 1975!

Spe e.g., Niagra Fire Ins. Co. v. Dog River Boat Service,~nc.~ F.Supp. 528 S.D. Ala. 1960! fire precautionstaken by the defendant were compared to other boathouseoperations in the region!; Grabbert v. Marina Parks, Incee221 A.2d 455 R.I. 1966! continuation of a bailment afterthe repair of a boat was treated as a customary practice!.

263 F.2d 217 8th Cir. 1959!.

499 P.2d 776 Mont. 1972!.

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