In the autumn and winter a storm sometimes rages over the Netherlands and usually a boat is damaged here and there in a marina, with usually (fortunately) only material damage. Sometimes the damage is caused by another ship coming into contact with yours. But how and from whom do you recover the damage in such a case? It is a horror scenario for many water sports enthusiasts: you have done everything to moor your boat safely and you suffer damage because someone else’s boat has run aground. But for those who are well insured, and that is most yacht owners, this does not have to turn into a financial drama.
There are two processes in the settlement of the claim by your insurance company. Firstly, the assessment and payment of the damage and secondly, the possible recovery of the damage from the liable party. After you have reported the damage to your insurer, they will usually send a damage expert to assess the damage and repair costs. This damage assessment may involve the so-called “new for old” deduction. For example, if your mast broke, but it was already fifteen years old, you would be ‘better off’ if you received money for a completely new one. So that age is taken into account, unless you have an insurance that pays out on the basis of new/purchased value. You have to check the policy conditions. The expert usually also investigates the cause of the damage. In the case mentioned above, it is a matter of an ‘external calamity’ and a collision caused by this is covered by the insurance. For the person affected the matter is thus settled. After the insurer has paid out, in this type of ‘collision damage’ case they would like to know whether they can recover the damage they have paid out from the party that caused it.
Collision law provides that for liability to exist there must be fault. By accident or force majeure, there is no liability. In case law, “fault of the ship” applies if a mistake has been made by a person for which the owner of the ship is liable, or because the ship under the given circumstances did not meet the requirements which one could expect from it (a defect). We do not know strict liability for experience of damage. Someone is not liable because he happens to be the owner of the ship that causes damage. A fault or defect really has to be demonstrated. An appeal to force majeure because of a storm will not succeed quickly, because there must have been wind force 12 or more.
It must therefore be investigated how the damaging ship could have broken loose, or has been able to “capsize”. If, for example, it turns out that insufficient precautions were taken when the ship was secured, then the conclusion can be drawn that the ship was at fault and the liability lies with the owner. He should have double secured or not moored crosswind. What is also possible is that the ship was properly moored, but that, for example, the mooring points on the jetty or the bollards appear to have broken down. In that case it must be investigated whether the jetty/bollards were suitable to hold the ship in place. It may turn out that the jetty/bollard did not meet the requirements that could reasonably be set for it and as a result the ship broke loose. In that situation there may be an error on the part of the port authority responsible for the quay, jetty or harbor. They should have checked or maintained the bollards better or assigned the ship another berth. That port authority, in turn, is usually the responsibility of a municipality.
The above situation occurred, for example, during the damage in the Urk marina in January 2018, when during a storm the so-called “Noah’s Ark” broke loose and damaged several yachts. The damage investigation will show what the so-called “furthest removed cause” was of the ship’s unloading. Based on that, an insurer will make a claim for liability against the owner of the boat and/or the municipality. If no amicable solution can be found, that party will be sued for compensation of the damage. But fortunately that is not something you have to worry about as an insured. Your damage will be compensated anyway, so you can enjoy sailing again next season.