Some readers will already have wondered what the legal situation would be if their boat was damaged during winter storage. Who, by whom, why - you know the drill! The pondering person will perhaps be thinking of the content of the contract already concluded with a winter storage operator, which may be headed with the word "rental contract". As the yacht owner generally has no possibility of wintering his boat on his private property, he has to make use of outside assistance.
However, yachts are not "beamed" perfectly clean into the winter storage facility like Scotty in the Starship Enterprise; rather, a lot of work precedes parking the ship on a trailer or a storage trestle in its storage area. Firstly, it is slipped onto a trailer or lifted out of the water by crane and brought ashore. The hull is cleaned underwater, attachments are unscrewed and maintenance work is carried out. There are probably still a few metres to cover on the way to the storage site. Once it arrives at the storage area or shed, it is manoeuvred and the ship is positioned between its "colleagues". And then it's back again in the spring. You don't even want to think about what can happen during all these processes. But who is actually liable if the boat is damaged?
Operators cannot pass on the risk indefinitely
The providers of winter storage services are aware of the risk of damage, usually have public liability insurance and are nevertheless usually very keen to pass on the liability risk to the yacht owner as far as possible. But there are limits to this.
More on the topic:
First of all, the principle applies that it does not matter what the contract is called, but what is written under the heading, i.e. what is agreed. The Latins among us call this "falsa demonstratio non nocet" ("An incorrect designation does no harm"). Therefore, if it can be inferred from the content of the contract below the heading that the winter storage operator takes the yacht into his care, he will not be able to convince the injured party in the event of a dispute with the argument that he has "only" rented an area for the storage of his yacht.
In this context, it is worth reading the reasons for the judgement of the Higher Regional Court of Schleswig dated 22/08/2022, file number 16 U 114/21, which can be found on the Internet, for example, at https://openjur.de/u/2450731.html. In the case decided there, the winter storage operator sued was unable to fall back on the more favourable position of the landlord under liability law. Rather, the ancillary services agreed in the contract favoured the assumption of a storage agreement, for which the legislator even has a special provision in Section 467 of the German Commercial Code. According to paragraph one of this provision, the commercial warehouse keeper is obliged by the storage contract to store and keep the goods - well, hopefully! - to store and keep the goods.
The legislator takes a critical view of exclusion clauses
And in terms of liability law? Well, in principle - some say "actually" - the person who breaches a contractual obligation is liable to the injured party for negligence and intent. Exceptions can arise from liability exclusion clauses, which are regularly found in the general terms and conditions of the winter storage operator, but are viewed very critically by legislators and case law. For example, clauses that provide for the unreasonable limitation or even exclusion of liability for contractually assumed primary performance obligations may be invalid. The owner may expect the warehouse keeper to handle the stored goods with due care.
You might say that's something for lawyers. That's right!
Let's all hope that everything goes well and that our ship not only survives the season but also the winter storage safely!
