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New construction vessel contracts – the pros and cons

Competing in an increasingly crowded marketplace, prospective purchasers will find it more cost-effective to purchase new construction with warranties, as opposed to a comparably priced brokerage boat. As such, purchasing a newly constructed vessel has become an attractive option for both experienced boaters and first-timers. When constructing a new vessel, the shipyard will inevitably ask you to sign a purchase agreement detailing the build. Regardless of the nature of complexity or type of contract, purchasers should keep in mind three important factors prior to signing an agreement. First, where is the boat being delivered upon completion? Secondly, how will changes be handled and the progress of payments? And thirdly, how will  a default by the shipyard be handled?

In today’s global marketplace, boats may be purchased from all over the world. Oftentimes the shipyard is in a different location where the vessel is built, than where it will be delivered. In certain circumstances, the yard will ask the purchaser to take delivery at the yard and then would be the owner’s responsibility to move the boat to its ultimate destination. Whereas in other cases, the yard will agree to deliver the vessel to a point chosen by the purchaser. This can have major implications with regards to warranties and sales or value added tax.

The delivery point can have major influence on a purchaser’s decision making because, depending on the jurisdiction, it can add a significant amount to the cost of the vessel. It is best to consider the tax ramifications of delivery prior to signing the purchase agreement in order to provide the most favorable terms to the purchaser. If you have not had a chance to speak with a maritime lawyer or tax professional prior to signing the contract, you might consider leaving the delivery location as “to be determined” until you have had a chance to speak with a qualified professional.

The second point to consider with regards to delivery is when the warranties will begin to run. Typically, warranties on the vessel do not begin to run until the owner takes delivery of the vessel. It becomes important to know when and where that delivery will take place in order to know when the warranty period begins. As issues come up in your first year of ownership, as oftentimes happens, this date may become important in the future.

The second major issue we see in new construction is how to handle change orders and progress payments. Change orders are common in new construction agreements as owners continue to see the progress of their vessel and decide that they want to add or change features that they did not originally contemplate on. Shipyards would be happy to accommodate the purchaser but  at an added cost. It is important for the contract to specify which changes will be considered to be significant and which changes can be accomplished at no further charges. Depending on how change orders are handled, it can have substantial implication on the overall cost of the vessel.

Additionally any increases in the cost of the vessel, changes in orders can affect the amount of time it takes to complete the vessel. Prior to making a change order, the purchaser should request that the shipyard provide a clear estimate of the amount of time that will be assigned to each change. While it is expected and understandable that changes can add to the time it takes to complete a vessel, change orders should not give the shipyard a blank slate to complete the vessel whenever it wants to or drag out the construction. The contract should contemplate changes and assign reasonable amounts of time and cost for the changes to be completed.

The contract also needs to contemplate at what point progress payments will be due. This can sometimes be a set of defined milestones the shipyard must meet prior to the next or final payment being made. While in other contracts, it calls for every single milestone to be met in each stage of the construction prior to payment. There are benefits and drawbacks to each type of agreement. When it is necessary that 100 percent of milestones be reached prior to payment, the purchaser is guaranteed to have the entire stage completed before he makes a payment. The drawback is that if there is a delay or backorder on parts, a stage may be nearly completed but construction will have to stop until the part is received and installed and the next payment is tendered. On the other hand, if the purchaser can be satisfied that a predetermined certain percentage of a progress stage is complete in order to make the next payment, progress can continue on schedule without being delayed by back ordered materials or similar issues. The drawback of this type of agreement is that the purchaser may have made a progress payment while a significant part of the vessel remains unfinished while the shipyard waits for materials to arrive. A prospective purchaser should weigh the pros and cons of each option prior to purchase.

The final issue we see involving new construction contracts is how to deal with default by the shipyard. Default typically happens in two ways; either the shipyard goes bankrupt or the shipyard fails to complete the vessel in a timely manner in compliance with the agreement. Each purchaser should ensure that there are provisions in their purchase agreement that protect them in the event of default. The easiest way to accomplish this is to include a penalty clause for each day the completion date is pushed back because of a default by the yard. The total delay cost can then be subtracted from the final payment made by the purchaser. It is important to carefully define scenarios in which the shipyard will be penalized for their delay.

Another consideration to include in the contract is which party will retain possession of the vessel under construction and any materials purchased for the vessel in the event of a default or bankruptcy by the builder. Many purchasers may have an interest in retaining both the hull under construction and already purchased materials to take to another shipyard for completion. Oftentimes, if a shipyard reaches the point of bankruptcy, it will not have any other assets available for the purchaser to recover the purchaser’s costs already incurred. This means the vessel, as is, and any materials are the only way to recover for the purchaser.

The purchase and construction of a brand new vessel can be a very exciting time and one that the purchaser can easily get caught up in the excitement. New vessel construction contracts can be very complex agreements with a number of provisions that have serious monetary ramifications for the prospective purchaser. In spite of the excitement, purchasers would be well advised to enter the agreement with caution and to seek professional counsel before signing any shipyard agreement.

Contact our ASSET- V Team Today for more information.

 

Malta offers great diving, deep harbors

Malta offers great diving, deep harbors

 

 

Malta is a southern European island country comprising an archipelago in the Mediterranean Sea. It lies 50 miles (80 km) south of Italy, 176 miles (284 km) east of Tunisia, and 207 miles (333 km) north of Libya. The country covers just over 122 square miles (316 square kilometers) and has a population of just under 450,000, making it one of the world’s most densely populated countries.

The capital is Valletta, which, at 0.8 square kilometers, is the smallest national capital in the European Union.

Malta’s location has historically given it great strategic importance as a naval base, and a succession of powers, including the Phoenicians, Romans, Moors, Normans, Sicilians, Spanish, Knights of St. John, French and British. Malta was admitted to the United Nations in 1964 and to the European Union in 2004. In 2008, it became part of the Eurozone.

Malta is a popular tourist destination with its warm climate, numerous recreational areas, and architectural and historical monuments, including three Unesco World Heritage Sites, and seven Megalithic temples, which are some of the oldest free-standing structures in the world. If old churches are of interest, Malta has 365 of the most exquisite churches, one for each day of the year.

Malta has three large natural harbors on its main island:

  • The Grand Harbor at the eastern side of the capital city of Valletta, has been a harbor since Roman times. It has several extensive docks and wharves, a cruise liner terminal, as well as a number of marinas. Grand Harbor Marina accommodates the largest yachts. It also has a terminal that serves ferries that connect Malta to Pozzallo and Catania in Sicily.
  • Marsamxett Harbor on the western side of Valletta has a number of yacht marinas, Manoel Island Yacht Marina being the largest, able to accommodate yachts to 80m. It is centrally located in Gzira so chandlery shops, shopping malls, supermarkets and tourist services are all accessible within a short walking distance. In the vicinity, one also find numerous restaurants, bars and convenience shops.
  • Marsaxlokk Harbor (Malta Freeport) at Birżebbuġa on the southeastern side of Malta, is the island’s main cargo terminal. Malta Freeport is the 11th busiest container port in Europe and 46th busiest in the world.

There are also two manmade harbors that serve a passenger and car ferry service that connects Ċirkewwa Harbor on Malta and Mġarr Harbor on Gozo. There is a marina in Mgarr that accommodates smaller yachts to about 22m.

Depths are not an issue in and around Malta. Anchoring is difficult, though, as depths reach 40m and more just 4.5m from shore.

Malta is a huge dive destination for Europeans. There are many artificial reefs made by sunken ships and numerous cave dive sites. Although the waters are extremely clear, do not expect as much coral and sea life as one would see in the Caribbean. Many seaside resorts in crystal clear water-bays surround the islands.

The food generally has an Italian influence and in most places, one can order in Italian language, as it is the third unofficial language, after the official languages of Maltese and English.

Fishing is not one of the islands’ advantages, as we found out on our research. Most fresh fish is from multiple floating farms strategically placed around the islands. Beware of them as they are moved around and may cause navigation hazards.

There are plenty of other things to do and one should tour all three major Islands, as each has different things to offer.

Visitors total about 1.5 million a year, so traffic can be unpleasant. Local transportation, on the other hand, is organized and affordable.

Crew/Tutor roles and trends on a yacht

For some owners who wish to take extended trips over a number of months, having a tutor on board means that children can enjoy the experiences world-wide cruises can bring, while not negatively affecting their educational progress. There has been a growing trend where yacht owners are organizing cruises for their family – sometimes for over a year – and taking their children out of school. Not only do these trips offer the unique opportunity for children to live aboard a yacht, but also experience a non-traditional educational platform.

When bringing a new teacher on board the yacht, it can be difficult for a tutor to assimilate themselves into the existing crew dynamic. Of course, the tutor would not be seen as a member of the family, but also neither would they be a traditional crewmember.

Tips for tutors and yacht owners

 

  • Tutors are encouraged to become a multi-faceted member of the yacht’s crew. They should be able to offer a range of skills so they are a useful member of the team.
  • Hiring should only be to those who have trained professionally as teachers. For those that have actively chosen to teach children, this could be a way to combine their vocation with an unforgettable opportunity to travel the world.

The advantages of education on a yacht

The children’s education often surpasses any that they would have in schools. Whereas a round-the-world trip would have previously been seen as damaging to child’s schooling, a dedicated onboard tutor offering four hours of teaching per day is often more effective than a full day at a ‘normal’ school. There are a lot more people doing this, and a lot more people considering it. There’s a sense that it’s not detrimental to the child, it’s actually good for them. Schools are also supportive of that.

For many, the lessons learned on board, as well as the undivided attention of the tutor, means that the pupils often return from their voyages with superior knowledge to their classmates. The children usually come back ahead of where they left. By the time the child returns from that trip, they’ve not only had the life experience, the worldliness, but they also have all their academics fixed.

This career route could be an opportunity for teachers who wish to change their environment for something a little different, or for a crewmember looking to add another string to their bow.

The concept of education is becoming more fluid, with schools and parents moving away from the traditional regimes found in established institutions. If qualified teachers are looking for a change in environment, becoming a private tutor on board a superyacht could offer a once-in-a-lifetime experience. Similarly, if crew wish to pursue a career that ensures longevity, becoming a certified tutor is a way to stay in the yachting market and adopt new skills. The market may begin to see a crew/tutor role as a more viable option and common part of any yacht’s team.