Frits Hommersom met groene bril

The case of storm damage

Now that a complete alphabet of storms is passing by, it seems good to think about where the responsibilities of boat owners lie in the event of an extreme weather event.

In the Drimmelen marina, Jaap Drost’s sailboat was moored next to Kees Flint’s ship. During a heavy storm the mooring lines of the Carnation, Flint’s ship, broke. The Carnation became loose and drifted against the moored Juno, Drost’s ship, causing damage to the Juno. Drost claimed the damage of 5,000 euros from Flint.

Drost claimed (through mr. Frits) that the damage was for the account of Flint on the basis of an unlawful act. This because Flint had taken insufficient care to prevent its ship from causing damage to third parties.

On behalf of Flint it was argued: “To the extent that a cause can be assigned, I consider it to be an ‘act of God.’ ‘ Our insured, in my view, cannot be held liable for the occurrence or raising of a storm.” Flint also argued that the storm was very extréme, bordering on hurricane force, and would have constituted force majeure. In doing so, Flint submitted reports from KNMI, which should have shown that there was such an extreme storm that no precaution would have helped. An analysis of those same reports showed that there had only been a few extreme wind gusts. Extreme wind gusts do not qualify as an extreme storm, for that there must be structural wind speeds above a certain strength. Force majeure did not apply in this case either, because the storm had been predicted well in advance.

The verdict was clear and unambiguous. Book 8 Title 11 of the Civil Code deals with the rules for inland navigation in the event of collisions. In the eyes of the subdistrict court, the Carnation was not moored in such a way “that by changing her position she could not pose a danger or hindrance to other vessels.” After all, her mooring lines were broken. Because mooring lines are part of the ship’s equipment, the ship was thus the cause of the ‘creation of a special danger to other ships’.

Judgment: unlawful act. Flint had acted contrary to the requirement of due care. The appeal to force majeure was rejected. Mooring ropes must have been designed even for gusts of wind and storm. Flint was charged that he could have been aware of the storm in time and should therefore have chosen mooring lines that were strong enough. Even though the Carnation had broken loose, owners of other, heavier vessels would have been able to moor their ships adequately. The Subdistrict Court also concluded that a very heavy storm, announced in time, does not constitute an exceptional situation resulting in force majeure.

The moral: no matter how well you think you have moored your ship, always check it yourself, prepare for extreme conditions and be on the safe side.

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Frits Hommersom met groene bril

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