Subordinate Application of the General Rules and Provisions of Mandatory Law to Nautical Berth Contracts in the Maritime Code

Abstract

The authors of this paper focus on the nautical berth contract prescribed by the Maritime Code (hereinafter: MC). Despite the extensive regulatory coverage of all economic and legal circumstances that may arise during the term of the nautical berth contract, there are practical, contractual, and consequently legal gaps that may occur when deciding on the rights and interests of the parties. It is important to note that the context of rights and obligations under the nautical berth contract is completely different from a nautical berth contract where the supervision of the vessel is agreed upon. Contracts covered by this research are contracts concluded under Article 673. j, paragraph 1, and Article 673.l of the MC, which regulate the obligation of the service provider to make available a berth at sea or on land to the user, to accommodate a specific yacht or boat together with persons staying on such vessel. The aim of this paper is to point out that, in cases of contractual gaps or uncertainties, the provisions of general rules of mandatory and contractual law can be applied in a subordinate manner. Thus, the paper analyses the application of the rules of the Civil Obligations Act (hereinafter: COA) to nautical berth contracts and other matters beyond the contracts regulated by the MC. Although the MC does not envisage the subordinate application of certain COA rules, their application arises from the traditional general and special legal regulation of contractual and non-contractual liability for damages, which is often the most common contentious relationship in nautical operations. Therefore, various COA rules can be applied when deciding on the rights and obligations arising from nautical transactions. Primarily, these are general mandatory law rules applicable to contractual and non-contractual relations and the general rules governing contractual relationships. In addition to these rules, which are the focus of this paper, other general non-contractual rules and the rules concerning specific contracts may also be the subject of further research and study.