Il contratto di ormeggio è una figura contrattuale di recente acquisizione. La sua affermazione nella prassi è strettamente connessa allo sviluppo impetuoso della nautica da diporto. Ed infatti, negli ultimi decenni si è potuto assistere al progressivo allargamento della cerchia di coloro che praticano tale attività.
Con la stipulazione del contratto Mooring owner or owner of the vessel will be awarded a special protected area and water in order to moor at the port or port with its own tourist boats. The dealer manager of the port or harbor tour will get in exchange for the consideration of the price. However, the benefits paid by the concessionaire are not limited only to the provision of port facilities, but often the conclusion of the mooring involves the creation of additional obligations: a) think the obligation of keeping the vessel moored in berth assigned as contract from the boat owner, b) incidental services provided by the company or association which manages the port or harbor tourism in favor of the boaters if they were required (electricity, fuel, telephone services, etc. ..)
Since the mooring agreement is governed neither by the civil code, or by Navigation Code is clear that we are in front of a hypothesis of atypical or unnamed. According to article 1322 of the Civil Code the parties may enter into contracts that do not belong to guys who have a particular discipline, provided they are aiming at meeting the interests worthy of protection under the laws. In the case of contract berthing there are doubts about the meritevolezza of interests that the parties intend achieve with its conclusion.
Both in doctrine that in law there has been a long debate in order to identify the rules applicable to the contract actually docking. Need has been growing due to the shortcomings of the legal system, despite the recent regulatory interventions that have affected the field of recreational boating, think of the law 172 of 2003 laying down provisions for the reorganization and revitalization of yachting and nautical tourism and the Legislative Decree no. 171 of 2005 amending Code of yachting. The latter has been achieved in implementing the authorization contained in Article 6 of Law 172 of 2003.
The aspects that have most captured the attention of case law and doctrine relating to the responsibility of the dealer in case of damage or theft of the boat moored to it, and / or property contained therein. And in fact, is not indifferent in terms of bringing the responsibility of the dealer agreement mooring within the scope of legal regulation of deposit, articles 1766 and following of the Civil Code, or within the scope of legal regulation of the lease, Section 1571 et seq. So as a first step the law, who worked to identify the rules applicable in practice mooring to the contract in order to decide whether or not to set up a bond for damages by the company or association which manages the port and tourist port in the event of damage to the craft moored has elected not to operation of a general nature resolving the dispute submitted to it by making exclusive reference to the specificity of the case. However, that it had reached a conceptual split. Two possible hypotheses for mooring contract: a) the case-berth storage, b) the case of mooring-location.
If so the boat was sailing in the possibility of providing evidence obligation on the assumption of custody by the dealer manager of the port or the tourist dock mooring contract was returned to within the scope of legal regulation of deposit, articles 1766 and following of the Civil Code. The practical result of this transaction consisted of the configurability of interpretative responsibility of the dealer if there were damage to or theft of the boat moored in the berth.
Conversely, if the boat owner was not in a position to provide evidence about the obligation of taking care of the dealer in the opinion of the Court there were no conditions to bring the contract within the scope of the mooring legal regulation of the deposit but must proceed by drawing on the legal regulation of the lease, Section 1571 et seq.
This approach could not be considered satisfactory in several respects. First, in so doing, the Court withdrew to a more long-term operation, namely the possibility of constructing a general framework applicable to the contract berth, especially in cases where the contract in question had not been concluded in writing. Furthermore, this conceptual split seemed artificial because it does not take into account the complexity and structure of content such a case the contract.
With the decision made 1 June 2004, the No 10484, the Court's legitimacy has changed its approach, opting for a solution more responsive to the characteristics of the mooring contract. Taking into account the complexity that characterizes the Supreme Court has passed the previous conceptual split and identified a minimal structure essential, without which it can not be said to be made that agreement negotiations, namely the mere provision and use of port facilities will be assigned a defined and protected water space. Its contents may, however, quite legitimately also extend to other performance-related consideration is reciprocal, such as the custody of the vessel and / or one of the things in it. It is up to him who builds a certain right or liability to the contractor, the structure of the contract, to provide evidence of the object and the content, ie, proof that the contract did not have concerned the simple utilization of facilities, and waiting for the berth, but also the custody of the boat. Since the contract or contracts for which no form is not required, the relevant evidence may be given through witnesses and may possibly be These suppositions, which shows the characteristics of gravity, precision and consistency (Article 2729, Civil Code).
The consistent performance delivered by the concessionaire in the provision and use of water in front of the berth, where access to certain aspects of the discipline of the lease, is the core, capable of bringing about the contract typologically moorings, around the whom gravitate other benefits: a) the obligations of care, access to which part of the discipline of the deposit, b) the disbursement of ancillary services such as water supply, electricity, services, safety control of the vessel and thus ; away, where access to the discipline of administration, Arts. 1559 et seq. Civil Code.
In order to identify the rules applicable to the contract should be made instead of docking with the method of subsumption with the mixed method using the technique of the combination. This approach allows definitely take them more responsive to the reality of the mooring agreement preserving the autonomy of the contractual parties.
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