No matter how self-reliant, practical, and technically gifted the average boat owner may be, winterizing requires special care, which is why this article pays special attention to the subject. The following stories describe a number of pitfalls you may encounter and can avoid after reading this article.
Mr. De Wit owned a luxury sloop that he prepared for winter every year himself. He bled the hoses, drained the cooling systems, everything was in perfect order. In the spring, he was shocked to discover that the engine had suffered frost damage and would cost more than six thousand euros to repair. De Wit reported the damage to his insurance company, which replied coolly, “Winter preparation must be carried out by a recognized company, otherwise coverage for frost damage is excluded.” De Wit could get as angry as he wanted, but he wouldn’t get any money.
Mr. De Hond had read his insurance conditions carefully. When he turned his vessel over to a shipyard for maintenance at the end of the sailing season, he verbally agreed that the shipyard would also winterize the vessel. In the spring, the engine of his yacht only made a few noises, spewed black smoke and then gave up the ghost. Damage of several thousand euros. “Don’t panic,” De Hond thought, “after all, I had the boat winterized by a professional.” The insurer then demanded proof of this, whereupon De Hond dug up his invoice. It turned out that the exact location was not indicated on it. When asked, the shipyard categorically denied (how surprising) that winterization had been part of the contract. So De Bok could not prove that a professional had winterized his boat, and could therefore whistle for compensation.
Finally, the story of Mr. Van Lochem. He had done everything right for the winter: a professional company had taken care of the winterization, and he had a proper invoice on which everything was clearly described. He left his ship, a beautiful semi-open vlet, outside for the winter. The ship was covered with a tarp. When Van Lochem came into port in good spirits in the spring, he found that the ship was half filled with water, with disastrous consequences for some of the household goods and the engine. A reconstruction revealed that a lot of snow had fallen and that the tarpaulin had collapsed under the pressure of the many inches of snow. After the frost, the snow had turned to water and done its devastating work. The claim to the insurer was replied to icily on the grounds that it had been rejected for “insufficient care.” According to the insurer, Van Lochem had had the vessel professionally and properly winterized, but he also had a duty of care to inspect the vessel in the interim, certainly taking into account the extreme weather conditions. Nor was the author able to obtain a better result for his client in this case. Although the insurer made a partial goodwill payment in the end, most of the damage remained on Mr. Van Lochem’s account.
In a ruling issued this year, an insured sought to recover his freeze damage from his insurer through legal action, arguing that the policy’s exclusion clause for freeze damage was too broad. However, the court ruled that the clause was clearly worded and that an insurer is generally free to determine the coverage limitation.
The insured also accused the insurer of failing to inform him of the risks of frost damage or at least of the need to take action, but the court ruled that an insurer has no such duty of care under the insurance contract.
The court stated, “It is the owner’s responsibility to decide what measures are necessary. If he does not have sufficient expertise, he is obligated to seek help or obtain information about it.
In this context, the court also noted that an insured is generally obligated to limit its damage as much as possible.
What do we learn from these incidents?
(Almost) all insurers in the Netherlands have an “exculpation clause” for frost damage. As the insured, you must in any case be able to prove that you have taken sufficient precautions so that the damage cannot be blamed on you. If you have not had winter preparation done by a professional company, proving that you have taken adequate precautions is actually impossible.
No matter how good, skilled and careful you are, have it done by a professional! Make sure you also have an invoice to prove this work was done. Not only will this help you make your claim, but it will also help you hold the company in question accountable.
Don’t think you can sit back once you’ve winterized your vessel. Just like on the water, there is a duty of care in the winter to regularly inspect your vessel (or have it inspected) and protect it from damage. If (corona) circumstances make it difficult or burdensome to inspect your vessel in person, a virtue can be made of necessity by having a company in port perform the work and necessary inspection.
Specializing in legal issues related to water sports:
You can reach Frits Hommersom, who speaks fluent German, at www.hommersomadvocatuur.nl.