KNMC watersport magazine

The case of the scorcher

Mr. Smulders thought he had found the boat of his dreams, but instead turned out to have purchased a vessel involved in a fire. Mr. Frits Hommersom considers this case to be the most bizarre in his practice to date.

The following was the case: after a long search Hans Smulders found the ship of his dreams at a yard in central Brabant. It had a length of almost fourteen meters and a width of over four meters. The ship was built under CE category B and equipped with powerful engines. According to the shipyard, the original client had ordered this boat off the shelf and for that reason it was for sale for the 2006 season for €450,000. The ship was praised in glowing terms. Not a word was spoken about the disaster that had struck the ship on January 6, 2005 (more about this below). Hans Smulders was closely involved in the construction and completion of the vessel from the moment the contract was signed. After all, as a former offshore man, he had a technical background. However, even during construction he had to conclude that mistakes had been made by the shipyard in various areas. The installation of control panels was unacceptable according to him, as well as the installation of the marine telephone. Smulders began to feel that there was no previous experience of building yachts at this yard. Repairs resulted in ugly scars on the ship. Furthermore, it appeared that one railing at the rear of the boat had not been fitted, although this is required by the CE-B standard. In April 2006 a trial run was made with the ship during which photographs were also to be taken. One of the pumps was making a lot of noise.

When it was opened it was found to contain charcoal. Charcoal? The fact that the grease of the gears was saponified was proof of the fact that the pump had been under water and apparently sucked in charcoal. This was reason for Hans Smulders to smell trouble. To his surprise, he was informed shortly afterwards that the ship was involved in a fire at the shipyard in January 2005. From that moment on, Smulders did everything he could to find out what could have happened to his ship. He learned that there had been a survey by two companies, but neither of them wanted to make available the photos that had apparently been taken of the ship and referred him to the insurer.

The insurer, however, also refused to make the photos of the vessel available because, as it turned out, the shipyard was also insured by the same insurer. This insurer hid behind the argument that if the yard did not give permission to release the photos, they could not do so! In the course of 2006 more and more major and minor defects appeared on the ship, which Smulders tried to solve with the yard, while constantly trying to get further information about the fire. It remained a struggle: the shipyard could not or would not finish the list of defects and ignored the requests of Smulders to clarify what had happened to the ship.

In November 2006 the parties came together for a last attempt to find a solution and a so-called gentlemen’s agreement was drawn up, in which it is recorded what still had to be done by the shipyard to achieve an acceptable ship. This is one and a half A4 pages. Around this time the director of the shipyard acknowledges for the first time that there has been a small fire on the ship, namely in the toilet, where only the interior panelling is damaged. In the winter of 2006/2007 work on the ship is intensive, but upon delivery it appears that many things have not been finished as agreed. Hans Smulders had no choice but to carry out a large number of activities himself. Not easy, because the manual and the electrical diagram of the ship are missing. The yard then manages to send Mr Smulders an invoice for extra work that should have been carried out in the context of CE legislation! In 2007, things continued to go wrong, but Mr. Smulders persisted in his investigation into what had happened to his ship. Finally, Mr. Smulders had enough and in the beginning of 2008 he visited Mr. Hommersom who declared the yard to be in default and liable for all damages.

After numerous requests for information and repeatedly running up against a wall, Smulders finally received the photos of the fire, taken by the insurance experts, in early 2008. What Hans Smulders had already feared turned out to be true: there was no question of a minimal fire in the lavatory, but the entire ship had burned down to the steel. A few quotes from the expert report: “the paint system of the hull is seriously damaged by heat at approximately 1/3 from the bow”, “the hull of the foreship is deformed on both sides just above the waterline by heat”, “the entire interior is completely destroyed by fire from the wheelhouse up”, “after the vessel was cleared of fire debris, the roofs of the wheelhouse and saloon appeared to be distorted by heat”. Small fire in the toilet? The vessel has been so damaged by fire that even the steel hull has been distorted by the heat.

Now Mr. Smulders also understands why he has had constant leakage at the windows in recent years. It turns out that the shipyard sold him a completely burnt out wreck and slightly refurbished it! But it gets even crazier: Smulders sees documents that show that the yard, as a result of the fire, an insurance claim of over € 375,000 has submitted! So the yard collected twice for the ship, not only from Smulders for an amount of € 450,000, but also from the insurance company. For Hans Smulders it is now clear: he did not get what he was entitled to expect and he wants to dissolve the agreement. Smulders considers himself cheated and swindled by the shipyard. The shipyard has never told anything about the fire and has insisted that the ship was in order.

Mr. Hommersom writes to the yard based on these findings and to his surprise gets an answer from the lawyer of the yard that there is nothing wrong with the ship. He even receives a report from an expert, who claims that the ship complies with the CE-standards. After the expert is confronted with the real state of affairs and the condition of the vessel, it appears that the yard has enticed him to issue a report as a kind of favour based on false information, while he had not even seen the vessel!

Smulders obviously did not agree to this. The case was brought before the District Court of Breda and during the hearing of the parties it took an unexpected turn. The judge in charge asked how high the temperature had been in the sheds/on the ship at the time of the fire. Following the answer of the lawyer of the shipyard, the judge remarked that that was a temperature at which steel could become brittle. To the somewhat surprised looks from the courtroom, the judge mentioned that he had studied at Delft in a previous life. With that, the case was quickly done: the judge asked the other party, “Are you going to rescind the contract or do I have to do it for you!?”. Mr. Smulders got his money back and could still look for his new dream ship!


Frits Hommersom met groene bril

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

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