LEGAL ADVICE ask a maritime attorney

By David Weil

Founded

Sherman Street, Suite 100 San Diego, CA 92110 (619) 313-4322

QUESTION:

I made an offer to purchase a boat through a yacht broker and the offer was accepted. The offer was contingent on a sea trial and survey, but I had to back out of the deal for personal reasons before the date of the survey. I sent the broker a written notice as required by the purchase agreement, advising that I was rejecting the vessel. The seller and his broker now claim that I did not reject the boat for a legitimate reason because I never did a sea trial or survey, and they are refusing to return my deposit. What are my rights in a case like this? Do I really need to do a sea trial or survey when I know I will be rejecting the boat? Can they keep my deposit?

David Weil is the managing attorney at Weil & Associates (www. weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com, or via email at dweil@weilmaritime.com.

ANSWER: Under the circumstances described by our reader, the broker and seller will probably be required to return his deposit. But the answer will ultimately depend on the language of his purchase agreement. Brokers in California use a variety of form contracts, but the agreements published by the California Yacht Brokers Association are the most widely used. Under the terms of the CYBA purchase agreement, the vessel is “deemed rejected” unless the buyer signs a final acceptance prior to a certain date. The agreement does not require the buyer to give a reason for the rejection.

This is the same approach used by the California Association of Realtors in their form agreements for residential real estate transactions, and it dramatically reduces the likelihood of a dispute involving a purchase deposit.

Our reader described a scenario where he gave the broker written no-

Please see ATTORNEY, PAGE 7

Is your pet as avid a boater as you? Send The Log pictures of your four-legged first mate. Email your photo, contact information and a description about your pet and boat to thelogeditor@thelog.com

Sadie Lives the Good Life

“This is Sadie the Shih Tzu she’s a 5 yr old rescue dog that is now living the good life, spending summers in Cherry Cove at Catalina Island,” said Sadie’s owner, John Weston in an email to the Log. “She is an expert dingy and paddle board rider and loves going to doggie beach and visiting fellow boater friends in the cove. She’s a perfect boat dog, small agile and doesn’t shed!”

EDITORIAL/CREATIVE

Publisher Dave Abrams dave@maritimepublishing.com

General Manager Tammy Poole tammy@maritimepublishing.com

Operations Manager Kathleen Ford Kathleen@maritimepublishing. com

Editor Katherine Clements Katherine@maritimepublishing. com

Design/Production Meredith V. Ewell

Contributors JR Johnson, Bob Vanian, Catherine French, David Weil, Capt. Pat Rains

ADVERTISING SALES Susanne Krikham-Diaz susanne@maritmepublishing. com

(714) 315-4171

CLASSIFIED SALES Jon Sorenson jon@maritmepublishing.com

(800) 887-1615

BUSINESS hello@maritimepublishing.com

(619) 313-4322

CIRCULATION / SUBSCRIPTIONS

(619) 313-4322 subscribe@maritimepublishing. com

THE LOG ONLINE AND NEWSLETTERS thelog.com

Newsletters To subscribe to the Log's Newsletter, go to thelog.com

The Log, San Diego Log and FishRap are registered trademarks of Maritime Publishing, Copyright 2023, all right reserved. No part may be reproduced in any form without the prior written permission of the publisher.

From page 6 tice of his rejection of the vessel. This would not have been necessary under the CYBA agreement - he would simply decline to execute the final acceptance, which would be deemed a timely rejection of the vessel, at which time he would be entitled to a return of the deposit.

The outcome may be different if your broker does not use the CYBA contract or a similar agreement drafted by an experienced attorney, which may have been the case for our reader. Many yacht purchase contracts are drafted by brokers w ho piece together various provisions from several different documents that they find online. These documents may be created without the benefit of any legal advice, and they may be very ambiguous. For example, many of the non-CYBA forms make no provision for the “signing off,” or acceptance of the survey or other contingency, or they fail to describe the circumstances in which the buyer’s deposit may be at risk.

The question of whether the sea trial and pre-purchase survey must be completed prior to rejecting the vessel may g ive rise to some confusion. After all, the seller and the seller’s broker have both invested time and resources into the transaction, and they may feel like that investment has been wasted if the vessel is rejected for a frivolous reason. But vessel purchase contracts - even when they a re drafted without the benefit of legal counsel - rarely (if ever) require the buyer to provide a reason for rejecting the vessel. And if the buyer already knows that he will reject the vessel there would simply be no reason to follow through with the pre-purchase inspections.

Regardless of the language of the contract, a buyer’s deposit will not be at risk u nless the buyer breaches the purchase

News Briefs

From page 5 contract. Problems arise when, due to ambiguous contract language, it may be difficult to determine whether the contract has been breached. Even in the event of a breach, the contract must include some language which ties the deposit into the seller’s remedy for a buyer’s breach of the agreement. If the language of the contract is so ambiguous that it is impossible for the parties to determine whether a breach has occurred or whether the deposit should be returned, the entire mess will end up in court.

• Provide continuity of public access to the shore.

• Promote awareness of transient boating opportunities.

Interested applicants are encouraged to review the federal guidelines to determine if they meet the necessary requirements. Grants are available to qualifying projects on a competitive basis. The USFWS ranks, and scores grant requests according to need, access, cost efficiency, matching funds, and innovations that improve user access to the waterways.

DBW, as the pass-through entity for the grant application process, reviews each application and sends the most eligible projects to the USFWS to compete against applicants from other states and territories. If awarded a USFWS grant, the DBW will manage the project through completion to ensure it meets federal requirements.

Marina operators eligible to compete in this program can receive an application packet by contacting Ethan Tratner at Ethan.Tratner@parks.ca.gov or (916) 902-8823.

The best advice that I can offer a buyer regarding the purchase deposit is to read the contract carefully and be sure that all of the buyer’s obligations in the contract and the disposition of the deposit are both clearly spelled out. A “form c ontract” published by an organization such as the CYBA will probably favor the broker, but it has been drafted by attorneys and vetted over time, so the ambiguity described above may be avoided. A lso, don’t be afraid of “legalese.” If the language of a contract is so convoluted that it is impossible to understand, a jury won’t understand it either. Ask the broker to explain your rights and obligations in plain English, or - better yet - talk to an attorney.

David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.

Killer Whale Seeks Revenge on Boaters, Scientists Say Orcas stay in the spotlight as they have repeated interactions with boaters. While orca interactions in the wild are typically harmless, there has been a spike in aggressive behavior towards boats since 2020, according to Alfredo Lopez Fernandez, a biologist at the University of Aveiro in Portugal. Reports of orcas dismantling boat parts off the coast of Spain and Scotland have been making the biggest headlines. Still, more recently, an orca called White Gladis is supposedly acting out of retaliation after being “traumatized” by a boater, and scientists believe the other orcas are learning from her aggressive behavior. Experts claim that White Gladis had a “critical moment of agony,” such as colliding with a vessel or being trapped in illegal fishing activities, LiveScience reported. An event of this nature is believed to make the whale unhappy, resulting in retaliation in the form of ramming boats. Because orcas are very social creatures, Fernandez believes she is teaching other whales to do the same attacks. The full report from LiveScience can be found at https://shorturl.at/ djoPR.

Point Loma Marina

Jimmy’s Famous American Tavern

Open for Brunch Saturday & Sunday

Pier 32 Marina

Pier 32 Waterfront Grill

Open for Brunch Friday, Saturday & Sunday