Sobre el régimen del Chárter náutico (o arrendamiento de naves de recreo en la Comunidad Autónoma de las Islas Baleares)

Abstract

The regulation of the nautical lease contract by the LNM was without a doubt one of the great legislative innovations in the field of private maritime law. Within the recreational sector we must distinguish between the private and personal use of ships and boats, and nautical leasing, or nautical charter, an activity that is carried out for profit, this being the difference between the two. It is worth remembering that until 2013, draft laws and draft laws included the principles of maritime navigation law in the list of sources. The legal instrument that regulates these legal-commercial relationships would be the sports boat rental contract or nautical charter, which may include the contracting of transversal and/or complementary services, such as rental with or without skipper, including crew. In a first approximation, we can consider that the nautical charter is a contract for the temporary transfer of use of a vessel, in which the parties to the contract assume obligations. The result of the investigation is very relevant for practical purposes, as a contract differentiated from the vessel leasing contract, since the nautical charter has its own legal particularity. Failure to comply with the contract may generate its natural termination, compensation for damages and, where appropriate, consequences on the reservation. In the contractual document it can be agreed that if the lessor is the one who fails to comply, according to the doctrine, he must return the amount delivered as a reservation in duplicate. The art. 1124 of the CC. It does not operate if there is an agreement between the parties that regulates and conditions the exercise of the resolution power, and it does not apply if there are other special legal norms on the point. In short, the non-compliance must be partial or total and must have significantly frustrated the legitimate expectations of the contracting party demanding the resolution. Following the thread of the discourse of article 1124.2), the injured party may choose to demand compliance, in the event that this is possible, or failing that, the termination of the contract. The actions derived from the nautical lease contract expire within a period of one year, counted from the date of termination, resolution of the contract or the definitive disembarkation of the lessee and his companions, in the event that it is later (article 313 LNM ). Likewise, art. 213 LNM adds the requirement that the vessel meet the conditions established in the contract in terms of nationality, classification, speed, consumption, capacity and other characteristics. In the case of the tenant's claims in relation to the employer's alleged non-compliance, for not complying with the instructions and instructions given by the tenant, the latter must direct them against both, The figure of boat leasing or nautical charter, within the legal framework of the LNM, seems to constitute a separate piece that does not quite fit with the archetype of the general profile that the legislator intended at the time, producing confusion, some distortion and also contradictions. Furthermore, we cannot forget that the nautical charter contract is subject to the protective aegis of the LDCU when the lessee is, that is, a consumer, not a businessman and, of course, the lessor is a businessman. Therefore, it is advisable and necessary to carry out an exhaustive review of the preliminary rule, specifying, for the nautical charter, due to its quantitative and qualitative substance, a regulatory compendium that regulates the current factual reality, which right now does not do so. An example is the proliferation of megayachts in our marinas lacking specific regulations.