KNMC watersport magazine

Damage caused by detached boat (II)

Last year’s first issue had the above theme. There it was described, among other things, that as the owner of a ship you have the responsibility to properly moor your ship so that it cannot cause damage to neighboring moored ships during a storm. In collision law, liability must be based on fault. By coincidence or force majeure, there is no liability and there really must be a fault by someone for which the owner of the ship is liable. Strict liability is not known here. Unfortunately, as a shipowner, you can only take precautions up to a certain point to prevent your ship from sustaining or causing damage. Sometimes fate cannot be avoided, as the sad case below will show.

In the infamous January storm of 2018, a so-called museum boat “Noah’s Ark” (hereafter The Ark) struck loose from its mooring. The Ark was nearly 70 meters long, about 13 meters high and 9.50 meters wide. It was an original steel barge on which a superstructure was made as a replica of the ancient Biblical Noah’s Ark. The gigantic ship went adrift and rammed into the harbor several pleasure boats that were moored there. Among other things, 14 pleasure boats were damaged and the total damage in Urk was over €600,000.00. That matter has now gone before the courts and has been finally settled. Hereafter the outcome.

The owner of the ark made use of the possibility to file a so-called request for limitation of liability with the Rotterdam District Court. The owner of a sea/barge vessel can request that a fund be set up to secure the presumed damage. The underlying consideration for such a request is the more general aim that it should be possible for a party causing damage to keep the extent of its liability somewhat transparent. A bank guarantee must then be provided immediately. Such a request does not mean that liability has already been acknowledged. However, if liability is established and the owner is ordered to pay damages, the maximum amount is therefore limited. The amount is determined by various factors, including size/water displacement and whether the vessel is intended, for example, for the transport of goods or passengers. That was the first point of contention in the court. It was disputed that this was only a barge (as claimed by the owner) but that it was a floating object and then the amount of the damage fund should be set at the value of the vessel just before the damage incident. A difference between roughly € 225.000 or € 500.000! This was important because ultimately the creditors have to share with each other what is set as collateral. In this case, it became the aforementioned € 225,000.

Then came the fight: when mapping out the creditors, the municipality of Urk also came forward with a very substantial claim. The owner of the ark (and some of the injured parties) took the position that the municipality of Urk was (partly) liable for the damage and therefore could not participate (fully) as a creditor. The municipality’s claims should be set off against the claims of the owner of the ark against the municipality. The importance of establishing the municipality’s liability (and thus disputing those claims) is obvious: a major creditor would be eliminated and thus there would be more to distribute for the other injured parties. In order to be able to proceed to the distribution, all claims must ultimately be verified (established) and therefore the liability of the owner and municipality respectively had to be litigated in so-called claim validation proceedings.

An expert eventually established in the proceedings that the bollards were unsuitable for the ark and therefore constituted a danger. The court ruled that not only the owner of the barge was liable because of insufficient precautions and failure to provide adequate supervision, but also the municipality by violating its duty of care and designating an unsafe berth with unsafe mooring facilities for the barge. The court found the latter to be the fault of the ark. The municipality was ultimately held 70% liable for the damage suffered by the owner of the ark and the owner in turn was held 30% liable for the damage suffered by the municipality. Because the claims were settled back and forth, the municipality’s claim was set at zero in the distribution of the damage fund. Good news, then, for all the other creditors! They got a bigger piece of the pie. Then it was a matter of waiting for a possible appeal by the municipality. If the municipality were to accept the verdict, the liability of the municipality towards the other creditors for the part not paid from the compensation fund would also become definitive. After all, even if the municipality had been dropped as a creditor, there was still a considerably higher amount of claims than the security of € 225,000.00 provided. The creditors therefore only received a partial compensation from the damage fund. The municipality did not appeal and this meant that the creditors, for the part that they were not paid from the damage fund of the ark, could submit their claim to the municipality, which also took its responsibility and paid out this part. All in all, a complex issue, which in the end did lead to a fair solution in which the owners (and insurers) were fully compensated for the damage caused.

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Frits Hommersom met groene bril

"You have the right to a lawyer who tells it like it is!"

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