SailNet Community banner

1 - 20 of 23 Posts

·
Registered
Joined
·
1,068 Posts
Discussion Starter #1 (Edited)
I agreed to help a captain deliver a sailboat for the owner, scheduled to depart this weekend. I made the arrangements with the captain two weeks ago. Today he apologized and said the owner wants the captain and crew to sign the contract I am pasting below. Captain said that he has never been asked to sign something like this in the 35 years he has been in business. I told him I might sign a release for injuries to me, but no way am I signing an indemnification agreement. I am volunteer crew for crying out loud. Can you believe it? Here is the contract:

INDEMNIFICATION AGREEMENT AND RELEASE

This Indemnification Agreement and Release is made as of this ____ day of October, 2014, by the undersigned (collectively, the “Occupants”), in favor of xxxxxxx, in his individual capacity and in his capacity as Trustee of the xxxxxxx Revocable Trust, as amended from time to time (the “Owner”).

In consideration for the grant by Owner to Occupants of the non-exclusive, temporary right to occupy and use the sailboat “xxxxxx”, (a xxxxxxx-built 42 foot Yawl of the “xxxxxxxxx” design), and the associated personal property, from October 10 through 13, 2014. The sole/only purpose of the occupancy of the sailboat is to deliver it over water safely from xxxxxxx boat yard in xxxxxxxxxx Maine to xxxxxxxxxxxxx Rhode Island. (Following safe shipment of xxxxxxxxxxxxxx Company in Rhode Island, the boat will be prepared for shipment then loaded on a ship for delivery to St Thomas US Virgin Islands.) Occupants hereby covenant and agree to indemnify Owner against, hold Owner harmless from, and reimburse Owner on demand for any and all demands, claims, causes of action, fines, penalties, damages, liabilities, judgments, and costs and expenses incurred by or asserted against Owner in connection with or arising from: the use or occupancy of the sailboat “Xxxxxx” and/or the Personal Property by Occupants or any permitted guests or invitees of Occupants (the “Permitted Invitees”) or anyone else gaining access thereto by or through a Permitted Invitee; any activity or action taken or permitted to be taken by Occupants or any Permitted Invitee or anyone else gaining access through a Permitted Invitee in or about the sailboat Xxxxxx, including, without limitation, any activities either carried out as part of the delivery mission or activity not associated with the delivery, or negligence by Occupants or any Permitted Invitee or anyone else gaining access to the sailboat Xxxxxx or Personal Property by or through a Permitted Invitee; any breach or violation by Occupants, any Permitted Invitee, or anyone else gaining access to the sailboat Xxxxxx or Personal Property by or through a Permitted Invitee of any law, ordinance or governmental requirement of any kind regulating or otherwise relating to the sailboat Xxxxxx or the Personal Property; and/or any injury or damage to the person, property, or business of any third party caused by or resulting from the Activities or from the negligence or deliberate act of Occupants or any Permitted Invitee or anyone else gaining access to the sailboat Xxxxxx or Personal Property by or through a Permitted Invitee. If any action or proceeding is brought against Owner by reason of any such claim for which Occupants have indemnified Owner hereunder, Occupants, upon notice from Owner, will defend the same at Occupants’ sole expense with counsel reasonably satisfactory to Owner.

Occupants hereby represent and warrant that they understand and are aware that physical injuries in the conduct of the Activities constitute a COMMON AND ORDINARY OCCURRENCE. Occupants, on behalf of themselves, any minors for whom they are parents or legal guardians, any Permitted Invitees, and anyone gaining access to the sailboat Xxxxxx or Personal Property through a Permitted Invitee, freely and voluntarily ACCEPT AND ASSUME ALL RISKS OF INJURY, LOSS OF LIFE, and DAMAGE TO PERSONS AND/OR PROPERTY that might be associated with the use the Premises or Personal Property and/or participation in the Activities.


Occupants, on behalf of themselves, all minors for whom they are parents or legal guardians, all Permitted Invitees, and anyone gaining access to the sailboat Xxxxxx by or through a Permitted Invitee, hereby waive and release all claims against Owner for any loss, injury, death, or damage to any person or property arising from or relating to the use and occupancy of the sailboat Xxxxxx or the Personal Property by the Occupants, the Permitted Invitees, or anyone gaining access to the sailboat Xxxxxx or Personal Property by or through Occupants or a Permitted Invitee, including any such loss, injury, death or damage arising from or relating to the conduct of the Activities on the sailboat Xxxxxx.

“Occupants” of the sailboat Xxxxxx,


______________________________________________
Print Name

______________________________________________
Signature

Additional Occupants of the sailboat Xxxxxx:


_____________________________________________
Print Name:

_____________________________________________
Signature:

List minor children, if any: ___________________________________________
 

·
Registered
Joined
·
795 Posts
Indemnification clauses are uninsurable risks...Over the years I have refused to sign dozens of them!

Just don't go!

Phil
 

·
Sailboat Reboot
Joined
·
652 Posts
I got lost in the detail but:

Hell no I would not sign it!

1) Presuming the Captain is getting paid I would expect he/she would carry insurance for anything that happened to the boat. You are doing someone a favor (or you are an employee of the Captain.) Now I am not a lawyer and this is not legal advice but the idea that you are going to be responsible strikes me as wrong.

2) When people crew on my boat (for passages, not day sailing with friends) I do require them to sign a release that states that they know sailing is dangerous and that they can get killed. It is a hold harmless clause - if they die they have no recourse to sue me. Also, I make sure that they have some form of medical insurance so that if they get sick I don't get stuck with the bills. I have (thankfully) never had the occasion (yet) to have to deal with the release. I have no idea if it is truly legal. But it makes me feel good that they have acknowledged the dangers of blue water sailing.

Fair winds and following seas :)
 

·
Registered
Joined
·
1,068 Posts
Discussion Starter #4
Let me be clear....I AM NOT SIGNING THIS!! I just posted it because I think it is ludicrous and was looking for reaction and/or comment. :)
 

·
Registered
Joined
·
5,180 Posts
I just did a quick look-up and found this:

Clarifying the Confusing World of Indemnification, Hold Harmless, and Defense Clauses

The owner has legitimate concerns.

If for example you pick-up a "friend" at a port en-route and she gets hit by the boom and dies. If you signed a simple release something to the effect that you knew sailing was dangerous that would not protect him from your friends family suing him.

This contract on the other hand goes too far. There is no language that requires gross negligence on your part. Anything that happens that would cause the owner to be sued you have to pick up the tab for.

Absolutely anything.
If the transmission shift gets stuck in gear as the paid captain is bringing the boat into the slip while you are sleeping below and the boat hits the slip and someone falls overboard and dies and the owner gets sued you pick up the tab.

What I would do is tell the guy I totally understand but that his lawyer didn't do him any favors by writing a contract that is 100% one-sided.

I would give him the name and phone number of my lawyer and tell him to have the two lawyers hash it out and create something fair that he can use again. He would have to pay my lawyer's fee of course.

I would sign an indemnification clause if it had a gross negligence test. If I get dead drunk and and get someone killed I expect to get sued. If anyone who we pick up for whatever reason has to sign a release have copies on board. I volunteer skipper for a handycap sailors group and everyone has to sign a release.

In short this guys lawyer didn't do him any favors. In fact in some cases if a contract is too obviously one-sided a court can nullify the whole thing. A more reasonable contract has a better chance of being enforced.
 

·
Registered
Joined
·
3,264 Posts
I am a lawyer, this is not legal advice...

I would never sign this. After seeing this I wouldn't even step on the boat in case it would be considered tacit agreement of this nonsense. Heck I may not even want to have drinks with the owner at the bar in case it was considered agreement.

Frankly this is so one sided I have to even question if it was drafted by an attorney. If a client came to me with this and asked my opinion I would recommend against using it because it is so one sided it starts to look like an adhesion contract, or that the other person couldn't possibly have been disclosed what was in it.
 

·
Administrator
Joined
·
7,533 Posts
reimburse Owner for any and all fines, penalties, damages, and costs and expenses incurred by Owner in connection with or arising from: the use or occupancy of the sailboat.
I am not a lawyer but I can get around most pieces of paper ok.
I find it useful to cut out the extra legal bull words and see what the line is left with. Heres a good one from your "contract".

That means you would be liable for anything that happens. Crazy, of course, and not enforceable at law (even in the USA) but they could drag you to court to try and scare you into paying them money, and that costs a lot of time, money and some amount of stress.

So with this bit of paper its better to tell them, forcefully, to shove it where the sun don't shine.

Its a joke, but a quite offensive joke imho.

I am glad you are not going.... But I hope you tell the owner exactly what you think. No use telling the Captain, he's the only one being paid!

Lol
 

·
Registered
Joined
·
5,180 Posts
If a client came to me with this and asked my opinion I would recommend against using it because it is so one sided it starts to look like an adhesion contract, or that the other person couldn't possibly have been disclosed what was in it.
Sweet, a new term.
 

·
Registered
Joined
·
1,068 Posts
Discussion Starter #9
I am not in contact with the owner so haven't spoken with him directly. I guess he dumped it on the captain last minute, and the captain doesn't seem too happy with it either. I told the captain that if I were in his shoes I would tell the owner to pound sand.

Oh yea, I get stuck with another one way plane ticket that I won't use at the cost of $165.
 

·
Registered
Joined
·
1,068 Posts
Discussion Starter #10
I would give him the name and phone number of my lawyer and tell him to have the two lawyers hash it out and create something fair that he can use again. He would have to pay my lawyer's fee of course.

I do this for fun. Should it come to this, it is not fun anymore, and I'm not doing it. :rolleyes:
 

·
Registered
Joined
·
3,264 Posts
I am not in contact with the owner so haven't spoken with him directly. I guess he dumped it on the captain last minute, and the captain doesn't seem too happy with it either. I told the captain that if I were in his shoes I would tell the owner to pound sand.

Oh yea, I get stuck with another one way plane ticket that I won't use at the cost of $165.
I would send the bill to the owner and demand reimbursement. He changed the terms of your contract and is responsible for the cost outlay you incurred as a result. Probably not worth using over, but I would at least send a bill.
 

·
Administrator
Joined
·
7,533 Posts
Oh yea, I get stuck with another one way plane ticket that I won't use at the cost of $165.
Ahhh, damn. Are you the dude that got stiffed with a one way ticket to Bahamas a few months ago?
And lost a weeks vacation time?

Sux
 

·
Administrator
Joined
·
7,533 Posts
I am trying to think of something to say to make you feel better.


:rolleyes:


Nup. Theres nothing I can think of. Some days are diamonds...



Mark
 
  • Like
Reactions: Slayer

·
Master Mariner
Joined
·
8,954 Posts
Simply put; do not sign that contract. Even the captain should not, but he should have his own contract that the owner should sign. I NEVER delivered a boat professionally without a contract that covered the owner for damages I could have avoided (groundings, damage docking, etc), but held me blameless for "acts of God" such as oil spills, hitting items in the dark, or lightning strikes. My crew were NOT involved in the contract between the owner and I, period. Any agreement between the crew and I was another matter, entirely. They were my employees, not the owner's. My copy of this contract was my proof that we were on the boat legally, somewhere between point A and point B (not half way around the world from the shortest distance between A & B), quite a nice piece of paper to have, especially if traveling internationally. Any delivery skipper that does not have his own contract is probably an amateur, not a professional and not somebody I would trust my boat to.
That contract is probably wholly unenforceable, but why even take the chance that you might end up in court? If this owner wants to make the schedule, he'll have to rethink this a bit.
 
  • Like
Reactions: davidpm and Slayer

·
Registered
Joined
·
23,429 Posts
.....1) Presuming the Captain is getting paid I would expect he/she would carry insurance for anything that happened to the boat.......
Ah, guess again. Almost no delivery captain carries insurance for the delivery. No doubt this is what motivated the owner to create this silly contract. No one on earth would sign it and the theory that it was written by an amateur is pretty likely.

The only way to insure the delivery is typically to have a rider added to the owner's policy for the exact trip in a defined window. I have done it many times. The premiums have not been too bad, especially against the actual cost of the delivery.

While the insurance provides some protection against property loss and liability, the real trouble comes with wear and tear. No way to really tell, for example, if the Captain over tightened the halyard or ran the motor at excessive rpms or started it with the thru hull closed and trashed the impeller. You just get the bill for the damage and insurance does not pay wear and tear. No delivery skipper is going to sign a contract indemnifying it either, as most wear and tear, is just that.

I have a buddy who hired the same skipper I use to deliver his boat from Annapolis to RI. After the delivery, he started having trouble with his furling mast. He blamed the skipper. After months of haggling, the local sail loft determined it was a combination of his 15 yr old stretched mainsail and the rigging of his recently stepped mast. Nevertheless, he still holds a grudge against the skipper. I don't get it.

I will acknowledge that the delivery business is pretty loosey goosey.
 
  • Like
Reactions: davidpm

·
Registered
Joined
·
1,782 Posts
My experience in hiring delivery skippers is the same as Mini's. You talk to your insurance company before you do it, and you hire someone you absolutely, positively trust. The insurance company never asked me to get the delivery crew to sign anything.

If the boat is headed for the Superservant or equivalent, he's not going cheap, and should be able to afford good legal counsel. Maybe he's got a senior partner, but they assigned this crazy task to the junior guy who didn't have a clue?
 

·
Registered
Joined
·
1,423 Posts
I NEVER delivered a boat professionally without a contract that covered the owner for damages I could have avoided (groundings, damage docking, etc), but held me blameless for "acts of God" such as oil spills, hitting items in the dark, or lightning strikes. My crew were NOT involved in the contract between the owner and I, period. Any agreement between the crew and I was another matter, entirely.
This is the way it should be done. Captain has a contract with the owner. Captain has a contract with whatever crew he hires/recruits. Captain is responsible for any dumb moves that he makes, but owner is responsible for all the many unforeseeable things that can happen on any voyage.

Capta, I don't suppose you'd be willing to share copies of the contracts that you used, would you?
 

·
Mermaid Hunter
Joined
·
5,689 Posts
1) Presuming the Captain is getting paid I would expect he/she would carry insurance for anything that happened to the boat.
None that I know. Some owners will get an explicit rider on their own policy to cover a delivery. I did have one customer who wanted me to pay for the rider premium. Thinking on my feet, I said I would be happy to pay for the rider but that it would be a billable expense. He agreed. I paid the insurance, listed it on the invoice, and the owner paid me. I'm not sure why that made him feel better but it did. *grin*

I used to have a delivery contract but it just got too hard. Lawyers got involved, owners wanted to quibble over terms and conditions, and it got expensive.

Now my proposal is my contract. If you accept my services you accept all the terms and conditions of the proposal: what I will do, what the owner will do, what the priorities are, and how expenses are accounted for. This has worked for me.
 
1 - 20 of 23 Posts
Top