Mr. B. visited Mr. Hommersom regarding a defective yacht he had purchased new. “Had you looked at the yacht beforehand?” was the question. ‘I saw the prototype at the Hiswa and immediately fell in love with it. But when my yacht was delivered, it turned out to be defective in all kinds of ways. The hull is not tight at all. It looks like they pulled it out of the mold too fast!” Mr. Hommersom referred the matter to an expert with the request to make a report on the defects B. alleged.
B.’s remark that the show model was in impeccable condition, but the serial model differed in many respects, set Mr. Hommersom thinking. Would the shipyard have complied with all safety aspects? Would the vessel comply with the obligations laid down in the Dutch Pleasure Craft Safety Act? And would it comply with the mandatory CE inspection? B. reacted in surprise: “That CE-inspection is in order, isn’t it? The seller of the boat at the Hiswa explicitly stated that it complied with category B and it had a HIN code and CE marking. My ship also has that code and marking. “The surveyor then found 31 defects, ranging from a non-tight hull (checkerboard) to defects in the technical installation. So the yard had not delivered what B. as a buyer should have trusted. A breach of contract by the seller/importer. However, the importer denied any liability. On behalf of B., the importer was summoned to rescind the purchase agreement, reclaim the purchase price and was held liable for all damages. The importer argued that the defects were so minor that the dissolution demanded by B. would not be justified. The repair was only a fraction of the purchase price and would have no negative impact on the value.
The court ordered an expert opinion in which attention should be paid to the problems of meeting the CE standards. The expert endorsed 17 of the 31 defects found by B.’s expert. The repair costs: approximately € 10,000 (excl. VAT). According to the expert, the defects could be adequately and invisibly repaired. But the devil was in the tail. To questions of the court whether the vessel complied with the Germanischer Lloyd standard the expert answered in the affirmative, but in answer to the sub-question whether the vessel complied with the European Directive 94/25/EC, recreational craft, the expert concluded: “In view of the 36 (!) deficiencies found on the basis of the standards declared applicable by the shipyard, I conclude that the vessel does not comply with the European Directive in many essential respects”. And: “The vessel does not comply with the legal requirements.” This means that the vessel should not have been provided with a declaration of conformity and the CE marking and should not have been placed on the market.” No small reproaches!
According to the Pleasure Craft Act, yacht builders are not allowed to sell a non-compliant vessel, which is made visible by, among other things, the HIN number (Hull ldentifaction Number) and CE marking. All open and cabin boats from 2.5 to 24 meters fall under that law. Also imports from non-member states of the European Union. What had happened? The yard had built a neat prototype and provided it with a CE mark, HIN number and classification B. This CE mark then applied to all vessels of the same type. Apparently the yard felt that the series ships could be finished more easily. In its judgment the court concluded that the technical defects found in the first instance could be repaired for relatively little money and invisibly, but that this did not mean that the shortcoming was not attributable to the seller. Added to this were the 36 defects related to the CE standard. Several defects were complex and could certainly not be resolved invisibly. The dissolution was justified. The court ordered the seller to repay the purchase price with interest to B. and to compensate all damages suffered by B.
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