Do you know what to do if you cause damage with a rented or your own boat? In this article we tell you more about the legal rules and insurance aspects that are involved in boating. We also tell you more about the rules for renting a boat (with and without license), we take a closer look at the relationship between the tenant and landlord, and we tell you about liability and excess.
For the record: this article deals with the situation of renting a pleasure craft in the Netherlands. If you rent a boat abroad, with which you will be sailing independently, the situation may be very different, for example because your AVP has limitations of a geographical nature or because things are regulated differently by law.
Renting a boat with or without a license.
Maybe it’s obvious, but for certain types of (rental) boats you need a license. A license is required when a boat sails faster than 20 km/h or is longer than 15 m. If you cause damage with such a boat without a license, you are not insured and you have to pay for the damage. Want to know if you need a boating license? Look at When do I need a boating license?
Renting a boat under the age of 18.
Even if you are younger than 18, you may (in very exceptional cases!) rent a pleasure boat. The law even stipulates that you can drive a boat independently from the age of 12, without supervision, provided that there is no need for a boating license (see also Children at the helm).
An accident can happen at any time, even to an experienced skipper. In the event of a collision, the question is always: who is to blame? Without fault, you cannot be held liable in collision law either. For fault, by the way, it is not necessary that there was intent.
Compensate for damages.
The basic principle is that someone is liable if there is ‘culpable fault in an act causing damage’. The law describes this as: “He who commits an unlawful act towards another which is imputable to him, is obliged to compensate the damage that the other suffers as a result.”
WA versus AVP insurance.
Almost every Dutch person has liability insurance (AVP), also (incorrectly) called third-party liability insurance (which applies to motor vehicles). The AVP is the insurance that protects you against the financial consequences of liability and that normally compensates all damage caused to others. Intentionally caused damage is excluded. You have taken out this insurance for all ‘around the house’ matters. For example, knocking over a flower pot or pouring a glass of red wine over the neighbor’s couch.
Liability per type of pleasure craft.
In principle your AVP covers (check before you leave) liability on the water when damage is caused by canoes, rowing boats and sailing and surfing boards. In addition, there is limited coverage (only personal injury to others) for damage caused by sailboats with a sail area of up to 16 squared or motorboats with less than 4 hp.
Pleasure Craft Insurance.
For all other vessels than sailboats with a sail area of up to 16 square meters or motorboats with less than 4 horsepower, you need a “real” third party liability insurance, popularly called pleasure craft insurance. This insurance specifically covers the legal liability you cause to others with your boat. A damage can be very high. You can also insure the damage to your own boat (Casco).
Damage with a rented pleasure craft.
But how does it work when you cause damage with a rented boat? That liability works two ways: towards the lessor under the rental agreement, and towards the party to whom damage is caused.
Relationship between lessee and lessor.
The main rule is that an AVP has an exclusion for the coverage of any damage when there is a rental. This means concretely: You are not insured for damage you cause to the rented sloop.
The law states that when a party fails to fulfill an obligation under the rental agreement, that party is obligated to compensate the other party for the damage suffered as a result. Unless the failure is not attributable to him.
Especially for the rental agreement, the law includes that all attributable damage (damage caused by your fault) to the rented property is for the account of the lessee.
Hiswa and NJI conditions.
The insurance conditions of the two major trade associations (HISWA and the Nederlandse Jachtbouw Industrie – NJI) have similar provisions regarding the liability of the lessee. In short, these come down to the lessee being liable (usually up to a certain maximum amount + excess) for the damage to the vessel, unless you as lessee can prove that the damage was not caused by you. Incidentally, these conditions contain an additional clause that limits liability to the extent covered by the insurance the lessor is supposed to have taken out.
Skipper is liable.
A rental company that has its affairs in order will have its boats insured ‘all around’. Such a company has to, because collision law stipulates that the owner of a boat is liable for damage caused by the boat. We call that ‘fault of the vessel’. So even if it is not the owner, but you as a tenant who is at the helm, the rental company/owner of the boat will still be held liable. So in the event of a collision, the injured party must sue the rental company. In such a situation, the damage to the other vessel is covered.
Own risk lessor.
Does the above mean that you can do whatever you want and run no risk at all as a lessee? Not quite, because the excess a lessor may have is passed on to you and you are not insured against that.
More important, however, is the risk you run when you meet a lessor who does not use the HISWA/NJI conditions mentioned above. In that situation, for example, there would be no limitation of liability for the lessee in the conditions. |
Landlord not insured.
Even worse, if the lessor is not insured at all for such damages. In the first case, after the landlord has paid the injured party, the insurer may take recourse. This means that the insurer recovers the loss amount from the tenant. If the lessor is not insured at all, he will be held liable in the first instance as the owner of the vessel.
It depends of course on the circumstances whether you as skipper in turn can be held liable towards the lessor for any damage caused to the other party.
Rental conditions larger ship.
We have already established that your AVP only offers limited protection, only for certain types of pleasure craft. So when you rent a heavier/larger boat, it is important to check the rental conditions very carefully to see how the liability insurance and limitation is regulated by the lessor.
Children at the helm.
Nothing is more fun for a child than being at the helm of a cool ship. Just be aware that although children up to 16 years generally fall under the AVP of their parents, the 16 and 17 year olds themselves are liable and not the parents. So always check whether the AVP provides for this.
Who is the skipper?
Bear in mind that in most cases the person whose name is on the rental agreement is also considered to be the skipper. This brings with it special responsibilities.
Shortlist boat rental:
Waterproof insurance: Always check that the rental company has taken out waterproof insurance and that the terms and conditions provide for a liability limitation.
Buy off excess: Sometimes you can buy off the excess. It is advisable to find out and consider this in any case.
Inform the rental company in case of damage: Always make sure you inform the rental company well in case of damage and certainly do not acknowledge liability in advance. By doing so, you disadvantage the landlord and run the risk that his insurance company will not pay out and the landlord will be back on your doorstep.
Check your AVP: Check how your own AVP deals with coverage in case of damage when renting a boat. If in doubt, do as you would with your usual travel and accident insurance and take out additional insurance for that particular period.
As is often the case, “trust is nice, control is better!”
The online article can be found at: https://vakantiesophetwater.nl/verhalen/boot-huren-regels-en-tips