I spent some time chatting this morning with Gary P. Carroll, a marine insurance agent with Comprehensive Yacht Assurance in Fort Lauderdale, Florida. I called him because a line in his new monthly newsletter caught my attention. Writing to charter brokers, he stated that commonly used charter contracts “… contain hold harmless agreements that could place your charterer’s personal assets in peril–something your clients may not understand–while releasing the yacht owner from all liability.”
Apparently, he’s been getting a good number of calls from brokers lately about clauses in common charter contracts that contain these hold harmless agreements. They’re just what they sound like–stating that one party releases the other party from liability should anything go wrong. In this case, it’s you, the charterer, releasing the yacht’s owner and crew from any legal liability for anything.
“The way they’re applied in a charter agreement, even in a case of negligence, the yacht’s owner and crew still would have no responsibility,” Carroll told me. “I could be out on one of the yacht’s little sailing dinghies, and maybe the mast is cracked, and I don’t know it. Maybe the crew glued it back together, and I don’t know it. And maybe they did a bad job. And maybe it breaks all the way and falls over at the time I’m cruising by a billionaire’s yacht, causing damage. Basically, my life is over.”
According to Carroll, these hold harmless agreements even nullify personal liability insurance that you might have, because your insurance company will not pay for damages if you have agreed in writing to take full responsibility for anything that might go wrong.
Carroll told me these clauses have been in charter contracts for some time, and that the most reputable charter brokers work to negotiate them out. But recently, he said, even some of the world’s most elite brokers have been coming to him and asking how to handle hold harmless clauses because the companies that manage the charter yachts are beginning to insist on their inclusion in charter agreements. It’s a power play, really, being made by the multimillionaires who own the yachts. Sign your rights away or you can’t have my boat for the week.
“My advice in these cases is for the brokers to find another boat,” Carroll told me.
That sounds like good advice to me–and, unfortunately, I believe Carroll is right when he implies that it’s advice you won’t always get from your charter broker. As you know if you read CharterWave regularly, there are reputable brokers and not-so-reputable brokers out there. Some of them may not even know what these types of clauses mean. They may tell you the contract is standard in the industry, which it is, and then leave their advice-giving at that.
“My suggestion, if people want to be safe, is that you contact a marine insurance specialist or a maritime attorney directly,” Carroll says. “You can talk to your regular guy at State Farm or Allstate, but he’s not going to know about this. He’s going to find someone who does. The most important thing for the charter client is to know what you’re getting into before you sign. You wouldn’t drive a car without liability protection. Taking on a yacht is just stupid.”
Yes, he’s the guy who sells maritime insurance, but what he’s saying sure makes sense to me. At a minimum, ask your charter broker which maritime attorney or marine insurance specialist she works with. Ask specifically about hold harmless agreements and see if the broker is conversant in the subject.
Hopefully, the broker will have done her due diligence to protect you financially, and you’ll have the charter yacht vacation of your dreams. If not, you’ll know how to ask for help in the right places–and you’ll still have the charter yacht vacation of your dreams.