- Introduction
The Captain’s role consists of running the crew, overseeing the technical conditions of the yacht, making sure that the yacht is secure and safe in compliance with the relevant international maritime regulations. In addition, pursuant to article 295 of the Italian Navigation Code and the 2006 Maritime Labor Convention, the Captain is the legal representative of the Owner and the person of trust in the construction, purchase & sale and refit phases. It is essential to establish a relationship of trust between the Captain and the project managers in order to build a yacht that meets the buyer’s expectations and the experience and knowledge of the Captain may be of utmost importance in such sense.
- What is the role of the Captain pursuant to Italian law and international regulations?
Pursuant to article 295 of the Italian Navigation Code, the Captain represents the crew, the passengers and the Owner. Specifically, the Captain represents the Owner in all dealings and negotiations if the Owner is not present or has not appointed his representative (the so-called absentia domini). The Captain also supervises the construction and the refit phases and he is liable for the performance of his activities in monitoring the works carried out by the shipyard or by any subcontractors. Moreover, he may also represent the Owner in courts for any disputes arising in connection with the yacht, the cargo, the crew or any other events occurred onboard.
It should be noted that the Captain has a vital role onboard the yacht and he is an advocate of both the Owner and the crew. In particular, in accordance with the International Safety Management Code (ISM), the International Ship and Port Facility Security Code (ISPS) and the 2006 Maritime Convention, the Captain is responsible for the overall technical and regulatory compliance of the yacht and, therefore, he shall oversee the construction and refits works on behalf of the Owner. As mentioned above, the Captain may also represent the Owner in the complaint-handling procedures submitted by a crew member.
- What is the role of the Captain in the construction and/or refit phase?
In addition to the obligations of the Captain set out by Italian and international law, the Captain has a relevant role in the construction of a yacht. In fact, the Captain is representative of the Owner at all times during the construction or refit phases and he has the authority to ensure that the shipyard and/or the project managers comply with the agreement and the specifications. Specifically:
- He assists the Owner in selecting the shipyard, maybe trough a bid process;
- He assists the Owner in selecting the project managers and other technical experts;
- He reviews and negotiates the technical specifications and the general arrangements of the yacht;
- He supervises the construction and/or refit works and keeps the Owner fully and constantly informed of any progress;
- He attends the sea-trials to make sure that all the performance levels are met;
- He assists in the delivery and re-delivery process by selecting the appropriate crew members.
It is recommended that the Captain is formally appointed by the Owner as his project manager or technical advisor in order to avoid any issues with the shipyard. In particular, if the Captain acts as the Owner’s representative or as project manager: i) he may refuse to sign the milestone certificate, ii) give notice of any defects or non-conformities to the shipyard. In those cases, the matter, pursuant to the construction agreement, shall be submitted to a technical expert or to the Classification Society or to Arbitration.
It should be again pointed out that the supervision of the Captain during construction is fundamental in order to avoid any legal issues regarding defects and non-conformities. The latter shall be distinguished from minor non-conformities, which are all the minor defect that do not impair the Class or affect the seaworthiness of the yacht. For example, with its decision no. 24725, the Italian Supreme Court condemned the shipyard to pay damages for the hull of a yacht damaged by osmosis. Such defect was discovered one year after her launch. In such case, the Court considered the shipyard liable of such damage, because the shipyard carried out some reparation works, which, actually, worsened the state of the hull and it was proved that the works were performed by using poor quality materials.
- What is the role of the Captain in sea trials and condition surveys?
As stated above, the Captain should attend the sea-trials, which are carried out before delivery. In particular, the Captain should make sure that the yacht is properly functioning and that she meets the performance requirements set out in the construction agreement. In addition, the Captain should also advise on the acceptance of the yacht based on the successful completion of such sea trials.
With reference to the purchase & sale process, pursuant to the MYBA MOAs, the yacht, before delivery, shall be placed ashore in order to carry out the condition survey. Therefore, the Captain should attend the condition survey and consequently advise the Buyer: (i) whether to give notice of any defects to the seller; and (ii) on the acceptance of the yacht.
Notwithstanding that the presence of defects may be detected during sea trials and condition surveys, so before delivery, it may often happen that defects are discovered after delivery. In such cases, Italian law (article 1495 of the Italian Civil Code) provides that the limitation period for claims for defects is one year after the delivery of the yacht. Italian courts have several times ruled that the limitation period of one year do not apply to the so-called hidden defects, i.e., defects that cannot be detected during sea trials, condition survey or delivery of a yacht. Such defects, if reported after their discovery and subsequently acknowledged by the shipyard, are subject to the standard limitation period of ten years. Examples of hidden defects are: corrosion of the exhaust pipes of the engine, leaks due to the poor assembly of the seals.
- What is the role of the Captain upon closing and delivery of a yacht?
In addition to the role of the Captain during construction, sea trials and condition surveys, the Captain may be extremely helpful upon closing and delivery of a yacht. In particular, the Captain shall make sure that all the technical documents required upon closing are onboard. He is responsible for sailing the yacht to the designated place of delivery and he shall sign the protocol of delivery and acceptance, which shall include the date, time and exact coordinates of delivery.
If the delivery is in international waters, the Captain shall sail the yacht 12 miles off the coast. Once international waters are reached, the Captain shall take appropriate evidence of the yacht’s location (pictures of GPS), fill out the log book with the relevant time and exact coordinates and sign the protocol of delivery and acceptance.
- Conclusions
As explained above, the Captain may play a fundamental role in the construction, purchase & sale and refit phases. In addition, the Captain, as an advocate of both the seller and the buyer, may be extremely helpful in order to avoid any legal issues that may arise. Therefore, it is suggested that Captains are assisted by an experienced legal team throughout all the phases of construction, purchase & sale and refit in order to ensure that the buyer is fully satisfied.