Mooring is not what it used to be.
Where and how your vessel is moored is a major concern for boat owners around the world, particularly as mooring costs do not reduce and competition for space increases. A common theme amongst boat owners is that they all want the peace of mind in knowing that their vessel is easily accessible, safe and covered by insurance. In response to these concerns Vaarzon-Morel Lawyers regularly receive enquiries relating to all these issues.
What are my rights and obligations as a holder of a mooring license or mooring authority?
The demand for moorings will only continue to grow, and the waiting lists for many areas are extraordinary. For example the longest waiting list that I am aware of in New South Wales, Australia is Winji, Jimmy Bay in Southern Pittwater. Where the waiting period is 27 years (this could be an excruciating waiting period for some, or a very nice 27th birthday present). It is therefore important to be aware of your rights and obligations as a license holder so you can hold on to your mooring with minimal interference from the authorities.
Generally speaking, all submerged land is classified as a type of crown land within a particular state’s territorial waters including rivers, ports and estuaries. As such a mooring license does not confer you with a proprietary right to the seabed or the area on which the vessel floats.
Furthermore your tenure of access to the mooring for which you hold a license is not guaranteed. Your rights to the mooring are conditional on you meeting the requirements set by the licensing authority, as well as annual servicing and renewal of your license.
The obligations imposed with respect to your mooring vary from state to state, and will be determined by the department, which grants you the license. The common kinds of obligations include:
- The mooring apparatus be suitable for the vessel and location
- The Mooring apparatus be kept in good condition
- Minimum length requirements for vessels
- Registration/certificate of operation requirements
- Restrictions on repair of the vessel at the mooring
- Requirements for the seaworthiness of the vessel
Generally speaking, the relevant department will have the power to move your mooring as part of a relocation process. However, depending on the arrangement with the mooring contractor, you will still own in the apparatus which is used to secure your vessel to the seabed, and so the Port Authority will be required to use your apparatus equipment at the new mooring site, as well as replace any damaged items.
In Australia, decisions to cancel or revoke mooring licenses must be made pursuant to the applicable legislation. The legislation will usually specify on what grounds a license can be terminated (the most frequently invoked ground will be breach of license conditions) as well as any procedural requirements such as the obligation for the giving of notice and the opportunity for the license holder to remedy any default or provide reasons why the license should not be revoked.
I have recently heard that a number of insurers are no longer insuring vessels which are secured at a swing mooring, Is this true and what does this mean for me when my insurance is up for renewal next?
Swing moorings are a quintessential and iconic feature of Australian waterways, and a large proportion of vessels use them. In the state of New South Wales for instance, 86% of Private Mooring Licenses are swing moorings.
We have started to see a move towards marina berths and post-to-post set ups in Australia. In Europe there has also been a decline in the usage of the swing mooring, as ports and harbors turn to the implementation of post-to-post moorings and marinas in an effort to make better use of available space.
In New South Wales post-to-post mooring, marinas and dry docking facilities are being touted as growth areas in the future. Unfortunately for private vessel owners, it is true that some insurers are avoiding vessels on swing moorings altogether.
Given the back log of demand that exists for moorings and berths in many areas, having your vessel moved to a marina or post-to-post type set up may not be feasible, or even desirable in the circumstances. It will therefore be necessary to change your insurer, however this may not be an easy process. What I understand to be the new position of some insurers is that they will require a statement from the mooring service provider, that the mooring meets certain engineering standards, the question is what are these?
From my own enquiries I have found only 3 consumer insurance companies that are willing to insure vessels on private swing moorings in New South Wales. I know of two large cruisers owned by a family in Lake Macquarie that are kept on swing moorings. Despite a relationship with the insurer of over 20 years, they were recently informed that their policies could not be renewed.
What this means for consumers is clear: less competition among insurers for swing mooring vessels means less-competitive prices. So aside from the difficulty in obtaining insurance in the first place, we may see increases in the cost of insuring vessels on swing moorings.
The other thing to be aware of once you manage to find an insurer willing to insure your boat is whether the extent of the cover they are providing is appropriate. I haven’t yet seen any contracts of insurance that differ greatly from the existing standard forms, but you should pour through the contract and/or product disclosure statement with care to make sure you are receiving the type of cover you are after. In particular what is the extent of the coverage, and what exclusions or exceptions to cover are imposed.
Is it true that if my mooring is not properly maintained, I am at risk of being uninsured? I have also heard some pretty horrible stories about insurance companies not paying claims for incidents that occurred on swing moorings. What can I do to protect myself and ensure that I am covered in case something goes wrong?
A common exception or ‘exclusion’ under a policy of insurance will relate to unsuitable or not adequately maintained moorings. So for example if your mooring apparatus is not of a suitable design or weight, not regularly maintained or licensed with the relevant authority or even not appropriately sited then chances are you will not be covered under your policy of insurance.
Even though the relevant department may have allocated a specific site/mooring for your vessel, the onus is still on you to ensure that is an‘appropriate’ site. This normally shouldn’t be a problem, but it may be worth obtaining the opinion of a mooring contractor, as well as written confirmation from your insurer as to the suitability of the mooring site.
In most areas in Australia, although annual service is stipulated as a requirement for holding a mooring license, it is only necessary to furnish a service report from a contractor if required by the relevant department. A recent topic of discussion has been the possibility of requiring a service report to be a condition of mooring license renewal- similar to a motor vehicle safety check or pink slip. This may be a good solution as it provides vessel owners with a greater degree of certainty as to their insurance cover.
Another commonly invoked exception is un-seaworthiness/lack of maintenance of a vessel. Owners and operators of vessels will know their vessels intimately, and although to you may have no doubt as to the seaworthiness and level of maintenance of your vessel, it pays to err on the site of caution. Survey requirements may be stipulated in insurance contracts for larger vessels, nevertheless you should make sure you keep up to date with service and repair and also keep good records of work completed.
I have seen claims denied for vessels that the majority of boat owners would say are perfectly seaworthy. However because of the presence of certain ‘symptoms’ of un-seaworthiness, such as wear and tear or unsightly marine growth the insurer has stood their ground in denying liability even though the particular ‘symptoms’ may not have actively contributed to the loss.
Growth on the hull is part and parcel of keeping any vessel in the water, and growth would be unlikely of itself to affect a vessel’s seaworthiness unless it restricted water pickups and engine functioning. Nevertheless if your vessel is sporting excessive growth this might be something that the insurer would take into account, or at the least prompt their assessor/investigator to take a harder line. It is important therefore that you don’t let your vessel go to long between antifouling and cleaning. Refer to the recommendations of your boatyard and the antifoul manufacturer, and remember to keep a record of all your receipts for work carried out.
The important point is to be vigilant in you maintenance and observations of the vessel’s condition, keep detailed records of any servicing work done on your vessel, and comply with any stipulations relating to regular surveys that are imposed by the insurer.