Opinion
No. 8625.
December 13, 1977. Rehearing Denied January 11, 1978.
APPEAL FROM TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, STATE OF LOUISIANA, HONORABLE RICHARD H. GAUTHIER, J.
Hammett, Leake, Hammett, Hulse Nelson, Eldon T. Harvey, III, New Orleans, for plaintiff-appellant.
Terriberry, Carroll, Yancey Farrell, G. Edward Merritt, New Orleans, for defendants-appellees.
Before GULOTTA, STOULIG and DUPLANTIER, JJ.
We affirm the trial court's decision that a boat owner (or his subrogee) who pays a monthly fee for use of a boat slip in a marina cannot recover for the loss by theft of his boat moored in the slip, in the absence of proof of negligence on the part of the marina operator.
As did the trial judge, we reject appellant's contention that a depositary relationship existed between the marina operator and the boat owner; they were merely lessor and lessee. The boat owner paid a monthly fee for the privilege of mooring one or more boats in the space in the marina and for using electricity and water. He could remove his boat or boats as he wished and secure it or them as he wished. The boat was never delivered to the marina operator, an element essential for deposit. (Art. 2930, Civil Code).
See Richardson v. Port Vincent Boat Works, Inc., 284 F. Supp. 353 (E.D.La.)
The judgment of the district court dismissing plaintiff's suit at its cost is therefore affirmed.
AFFIRMED.