The work ordered on the vessel is done incorrectly, but the contractor keeps finding new excuses why he can’t make improvements? Then you need to keep your cool. Especially if subcontractors were involved.
Who is the contracting party for repairs to the ship?
Mr. Smits sails his mast off. A rigging company makes an offer for a new mast etc. which also includes polyester work. The rigging company engages an external party for this. The rigger invoices Mr. Smits for all the work. After the first sailing trip, cracks appear in the deck around the baby stay. After a complaint to the rigging firm, repair work is carried out. In the winter storage it turns out that there is leakage via the baby stay. The rigging firm refers the complainant to the polyester worker, who cannot be reached and does not answer the phone or send an e-mail. The rigging company wants to give the polyester worker they hired time to react, but the deck is becoming increasingly discolored and damaged due to the ingress of water.
What to do when the yacht service performs poorly?
Important in this case is that Mr. Smits has made an agreement with the rigging company, with whom an agreement has been made to do all necessary work/repair damage.
The rigging yard has expertise in rigging, but (not unusual) he engages a third party for the polyester work. The third party then carries out the work and invoices the rigger, who in turn invoices Mr. Smits for the work.
Just as in the case of the renovation of a house, where various technical disciplines take care of the various parts under the responsibility of the (main) contractor, here too there is a so-called main contractor (the rigging firm) and a subcontractor (the polyester worker).
The rigging company therefore makes use of a third party in the execution of Mr. Smits’ order and charges all work done in that context itself to Mr. Smits. This means that the rigging company counts as the contracting party of Mr. Smits and therefore the rigging company is also the main responsible for the proper execution of the order. Therefore, if the polyester worker makes a mistake, it is for the account and risk of the rigging company. Annoying for the latter, but he must therefore provide the solution!
Set the right deadlines!
Mr. Smits can limit himself to holding the rigging company liable/requiring the rigging company to repair and if the claim is justified, the rigging company can in turn recover from the polyester worker.
So Mr. Smits does not have to wait for the polyester workman to move, indeed here is talk of supposedly necessary damage control measures, because if nothing is done, the damage will only get worse.
Mr. Smits must therefore address the rigging firm and demand performance of the agreement, or at least repair of the damage, and in that context he must set a so-called deadline. This means that if the rigging firm does not take the opportunity to repair the shortcoming (for its account) within that term, Mr. Smits may, in principle, instruct a third party to have the work carried out and recover the costs involved from the rigging firm. An additional argument in this respect is that, if it were to sit still, the damage would be greater than if it were to be repaired, so that there is talk of so-called necessary damage control measures. A reasonable period of time in this context is about two weeks, depending of course on the amount of work.
File building is important!
Caution! If you then have to go to court because the rigging company denies that a mistake was made (because the polyester worker claims that) you have to make sure that evidence of the damage and evidence of the mistake is well documented, because if you have the damage repaired and the judge finds that an expert has to investigate, for example, whether or not a mistake was made, then the expert can no longer investigate and you run the risk that your claim will be rejected.
Litigation is expensive and in the Netherlands it is not the case that when Mr. Smits is proven right, he also gets a full refund of his lawyer’s fees. In the Netherlands there is a so called fixed system of compensation for legal costs, which is based on a fixed graduated scale, which rarely or never covers the actual costs of legal assistance.
It is therefore always advisable to try to reach a solution out of court, under the motto: a secure solution out of court is always preferable to an uncertain solution through the courts.
Tip: if a company is affiliated with the Hiswa, you can also appeal to the dispute resolution procedure of the Hiswa. This opinion is binding for Hiswa companies and you will save yourself a costly legal procedure.
Another extrajudicial solution may be that parties jointly appoint an expert, whose opinion is binding on both parties. This also saves on legal proceedings.