New moorage contract - liability waver, is it reasonable?

[Jd1]

So I got my new contract for my anual moorage. Pretty standad stuff really and all makes sense .... until I got to the section "Waiver of liability and release".
I would lke to quote this section in it's entirety and woul like to find out if this is standard.

Start quote:
xxx, its agents,servants, employees, directors, officers, shall not be liable for personal injury to or the death of the Owner or his servants, agents, guests, invitees or any other person or persons at the premises of the marina, or on the Vessel and xxx shall not be liable for any loss of or damage to the Vessel or to any other property of the Owner or any other person or persons by theft or otherwise, whether such personal injury, death, loss or damage is caused by the negligence of the Marina, its servants or agents, or otherwise, or is caused or contributed to by the nature, construction, design, condition or state of repair of the marina.
End quote.

xxx is the name of the marina.
There is a second paragraph that also prohibits any actions that are a result of 'the negligent act of omission of xxx or otherwise'.

I have a premo spot at the marina and the rates are competetive. I would really hate to move but the contract language scares me. More specifically the part of negligence or state of repair gives me real pause. Most everything else is pretty standard.

As far as I know a contract can't really be written that excludes negligence (I am in Canada) but I don't really want to try that out in court in case the brown stuff hits the ventilation device.

So, the question (finally) ..... especially if you are in Canada, is this kind of 'stuff' the new standard of things to come or is it wishful thinking of one marina company ?

[Downtime]

Pretty standard for what I signed here in the US

[Stumble]

JD,

Without giving legal advice since I am by no means familure with Canadian law, nor an attorney there...

Give your insurance company a call and ask them about it. At least in the US if thre was an accident caused by the poor repair of the dock or facilities if would be a legal battle between the marina and your insurance company to see who has to pay. They also see hundreds of these types of rental agreements a year so should be able to tell you if the clause is binding.

[denverd0n]

This is not legal advice. For that you need to talk to an attorney familiar with the law in your jurisdiction.

In the United States, though, even though waivers like this are extremely common, the part about negligence may well be unenforceable. That is, you are paying the marina for a certain product and/or service. They are expected to deliver it in a reasonable and useable manner. They cannot excuse their gross or willful negligence just by putting something like that in a contract.

Personally, I would sign the contract. Then I would keep a close eye on things. If you see something dangerous that they are failing to maintain, point it out to them. If they fail to fix it, and some injury results, there is a very good chance that you would be able to collect.

[HappyMdRSailor]

Originally Posted by denverd0n

Personally, I would sign the contract. Then I would keep a close eye on things. If you see something dangerous that they are failing to maintain, point it out to them. If they fail to fix it, and some injury results, there is a very good chance that you would be able to collect.

If anything should happen, they want your insurance to take care of it, or spend the time and money with their lawyers assessing liability to the marina...

There is a difference between negligence and "gross negligence"...

[jimking100]

What I have been told (by a lawyer friend) is that an organization cannot pre-emptively excuse themselves from liability for anything that is negligent on their part. If you stop and think about it, this makes sence. If one could pre-empt themselves for negligence, there would be no such think as a liability suit.

[bobofthenorth]

If its really bugging you, spend the 200 bucks to get a legal opinion. A bunch of nameless internet authorities would give me exactly zero assurance if I was really concerned. Even if its a 500 buck opinion, so what? We spend twice that and more on electronic gadgets at boat shows and never think twice about it so why would you worry about it when potentially 100s of thousands of liability is at stake?

[marlinmike]

Sign it: nothanks really sloppily, no one will notice!

[GordMay]

Originally Posted by HappyMdRSailor

... There is a difference between negligence and "gross negligence"...

Generally, in Canada, a contractual liability waiver clause can serve as a full defense to a “simple” negligence claim; but not to a “gross or willful” negligence claim.

[sailorboy1]

Does it really matter? Do you have a choice to find a marina that doesn't have the clause as they all follow each others leads and all have the clause.

The real people to ask is your insurance company because that is what you have to protect your boat.

[westwinds]

Originally Posted by GordMay

Generally, in Canada, a contractual liability waiver clause can serve as a full defense to a “simple” negligence claim; but not to a “gross or willful” negligence claim.

Someone please tell me the difference?

[Mike OReilly]

I agree with others; I don't believe this type of contract can pre-emptively insulate a company against clear negligence. That said, I would amend the contract by striking out the offending clauses.

A contract is an agreement between two agreeable parties. Just b/c you are presented with a contract does not mean you must sign it without changes. That said, they are not obligated to accept your changes. But you never know, they may recognize the unfairness of these clauses.

In all likelihood the owners went to their lawyers and said, give me a contract that protects me. The lawyer did what they were asked, and created a contract that tries to off-load all responsibility and potential liability onto someone else. It's typical these days; try to externalize all costs while reaping all benefits. What a wonderful world we live in .

[JK n Smitty]

Originally Posted by sailorboy1

Does it really matter? Do you have a choice to find a marina that doesn't have the clause as they all follow each others leads and all have the clause.

This type of apathy should be left to the dirt dwellers. We should not simply "accept" a screwing. There is always a choice. Tell them this is unacceptable. Cross it out and initial it and see how they respond. Ask them why they should be excused for their failure to do what you are paying them to do!

Sorry for preaching.

To the OP, as others have said I don't think this is enforceable, but I am not a Canadian lawyer and I don't play one on TV. I would start with my insurance company. Perhaps find a lawyer you can buy a beer. When they started putting that in contracts around here, that's what I did. The lawyer said it wasn't enforceable. When I remember, I cross it out on the agreement and write "not enforceable" next to it. I have never been challenged by the marina on it. But as shown by my above response to sailorboy, I don't mind being a trouble maker.

I have also dealt with a similar clause in my business. A guy I used to work for made us put similar language in all subcontractor agreements. We were challenged on this once when something did go wrong. The judge threw that clause out and didn't even consider it when rendering his decision.

[JK n Smitty]

Originally Posted by westwinds

Someone please tell me the difference?

From Legal Dictionary:

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.

[OldFrog75]

Originally Posted by bobofthenorth

If its really bugging you, spend the 200 bucks to get a legal opinion. A bunch of nameless internet authorities would give me exactly zero assurance if I was really concerned. Even if its a 500 buck opinion, so what? We spend twice that and more on electronic gadgets at boat shows and never think twice about it so why would you worry about it when potentially 100s of thousands of liability is at stake?

Yeah...what he said.