Waterkampioen watersport magazine

Being right …

Sometimes you feel cheated. You don’t get what you want, even though you had a guarantee. The fine print comes up and, with the terms and conditions in his hand, the salesman waves you goodbye. Does it stop there? Where are the chances? Frits Hommersom answers.

Sometimes warranty goes very far. Drying a freshly laundered dog in the microwave, that’s not what you do. But in an urban myth from the US it does happen. The dog explodes and the victim starts a lawsuit. Successfully, the supplier should have stated in the manual that a microwave oven is not intended for drying living things. Warranty up to the door then? That is the other extreme. Everything in between is the field of tension between consumer and supplier. Sometimes they are clear-cut, but sometimes they are extremely vague. But however vague they may sound, for us mere mortals ‘reasonableness’ and ‘fairness’ are terms to remember well. Since about twenty years ago, the New Civil Code replaced the then Code, these words have played a leading role. In other words: use your common sense and you will go a long way.

We all know that love is blind. Then we stink again: that beautiful boat turns out to be an ugly cat in a beautiful bag. Too much dreaming and too little in writing beforehand. How do we Dutch react at such a moment? Frits Hommersom: “Principally, justice must prevail.” It strikes Hommersom that even the most able-bodied among us make fat mistakes. If everything in their daily work is on paper, when it comes to the boat they too turn out to be as soft as a packet of butter in the bright summer sun. They do too much in good faith. Boats are magical. Examples of important papers: a purchase agreement, (policy) conditions and the CE declaration that a new boat complies with European law, the so-called declaration of conformity. The latter, together with the CE-board booklet, tells you what the vessel and its on-board equipment are intended for. Also for separate purchases such as a chart plotter or bilge pump it is indicated what you may do with them and how they should be installed.

Conditions.|
The policy conditions that come with insurance are notorious for being small print. But there are more conditions, for example those when renting or storing a ship. And as official as these may sometimes seem, do not declare them sacrosanct. After all, conditions can never overrule the rule book. If the small print on a contract for winter storage says that the yard “cannot be held liable for loss or theft”, then that is pure bluff. If it can be proven that there was negligence, for example, then you have plenty of chances. Moreover, whether or not you can be held liable is up to you. In principle, this also applies to the purchase and sale of a second-hand yacht.

Inspection.
If you are buying something, you would think that you first want to know what is being offered for sale. And if it is what you are looking for, you make an offer. With second-hand ships we often do things differently: whether the engine still works well, whether the expensive teak deck has to be replaced or whether the underwater hull shows osmotic bubbles, we often find out afterwards. We first buy a dream and then we check whether that dream is correct with a purchase inspection, if we have an inspection at all. It is therefore no surprise to lawyer Frits Hommersom that a lot of legal wrangling ensues. The chances of disappointment are high, for both buyer and seller. Hommersom is clear about this: survey in advance. Then you know if the boat meets your expectations, what you intend to do with it. In the conversation with the seller, be clear about your expectations of the ship, for example that you want to make distant sea voyages. Drafting resolutive conditions to be able to return to your steps later, that’s often asking for trouble. You first have to meet the resolutive conditions. Defects listed by a buyer can be regarded by the seller as regular maintenance or non-essential defects. Of course, inspections of older, cheaper boats are relatively expensive and they are often not inspected. Recognize then as seller and as buyer that the ship has more risks in it. And possibly include osmosis risks and engine wear in the price. In which case you are still taking a gamble, legally speaking. If it is going to be a legal challenge, first get informed about the chances of success and the costs. Frits Hommersom: “Many people think that if they are successful, all legal costs can be recovered from the other party. This is a misconception; there is a ceiling. In small cases you should first try to resolve the situation via your legal expenses insurance or mediation. But preferably first with a good conversation among yourself. Fair enough.

Wim H.: “With full throttle I drove my new motor yacht across the IJsselmeer. Two times 350 hp under the floor, fully in plané. Until one of the engines jammed. The other one turned out to be too hot as well. The engine head was as crooked as a hoop, the cooling water leaked out on all sides. Ship and engines were brand new and for two years I haven’t received a penny from my insurance company. The shipyard where I bought the boat is also shutting its door tight, just like the engine supplier I phoned recently. Reasons for letting me swim: I would be a bad owner, I had not filled in the warranty certificate and had not sent it. I had not heard the acoustic alarm, as I am deaf. Finally, the yard mechanic had installed a weed filter in the cooling water pressure pipes. That was fine, he said. By now I know that this is the wrong place. Yet all parties point to each other.”

Frits Hommersom: “Who is Wim actually doing business with here? Opportunities are in the deafness and the guarantee certificate. In short, we look for the weak spots in the story and drive a wedge into them. The defense around the guarantee certificate is the easiest to tackle. You have a warranty, even if you have not sent a warranty certificate. Hopefully Wim did not order the engine in his own name from the engine supplier. Ordering the ship and engine from the same counter – the shipyard – means Wim only has to deal with one party. By law, Wim’s insurer is not a party in this. However, the policy conditions usually require damage to be reported. And for a smooth settlement, a request for compensation can be submitted there. The insurer can then try to recover this from the yard. An appeal by the yard to Wim’s duty of care – to pay attention to the acoustic alarm – is not relevant here, because Wim is deaf. This is where the legal term error comes in: both parties have made wrong assumptions. Wim thought that the vessel had sufficient safety features, the yard thought that it had delivered an adequate alarm, also for Wim. Does that make the score 1-1? No, the yard is the expert. If the yard could have known about Wim’s deafness, they should have taken the lead in this. For Wim the case is clear: he holds the supplier liable and demands performance of the contract. He demands a ship with a faultless and safe engine installation, including the weed filters in the right place.

Joke ter W.: “Recently I bought a somewhat older polyester sailing yacht. The owner told me he had never had osmosis. And now, six months later: osmosis everywhere. With older polyester ships osmosis is part of the deal, says the yachtbroker from whom I bought the ship. But I think this whole thing stinks. Does litigation make sense here?”

Frits Hommersom: “The yachtbroker is your point of contact and therefore appears to be the seller. But he is not. Joke bought the boat from the previous owner, who is legally the seller. Of course it is important that the broker tells what he knows about the ship, but if he doesn’t want to know anything, he gets away with it. He acts for the seller, not for himself. The keywords ‘obligation to investigate’ and ‘obligation to report’ are leading in this case. The owner must tell what he knows and the estate agent must pass this on to the buyer before the sale. If they do not do this, it is wrong. However, if the seller says that he or she could not know about certain defects, then it is up to Joke to prove the opposite: that the seller did know about the defect beforehand. Sometimes that works, but often not. Perhaps the osmosis bladders are so large and deep that an expert would write down that they are older than six months. And that the owner knew about this, for example because repairs to the bladders are visible. Because: just showing the defect is not enough. If the concealment of information is also demonstrated, only then does the buyer’s obligation to investigate become subordinate to the seller’s obligation to report. If it is a small defect, for example a sail with loose stitching, the court can be asked to change the consequences of the contract. Compensation for the existence of the defect, or in plain English: have the stitching made at the seller’s expense. But the biggest fault here lies with Joke herself: she has neglected to have the ship inspected. With this it is already clear that she has not fulfilled her obligation to investigate. Knowledge of the facts turns out to be better than a presentation of the facts. Even if the osmosis bladders had been untraceable during a purchase inspection, Joke had in any case fulfilled her obligation to investigate. Suppose that a high moisture content had already been measured during the inspection – a requirement for blistering due to osmosis – Joke could have taken this into account when making an offer. In short: trust is nice, control is better.”

Hans T.: “The electronic engine controls of my new motor yacht stopped working. At breakneck speed and with great embarrassment I parked my new pride at right angles to the quay. The crowd, which was streaming in quickly, loved it. I already hated electronic, but now I know for sure. Totally top notch, said the yard. Not so! If I get them for my boat, I can guarantee that my rudder will also refuse spontaneously, you understand that. But actually, I don’t dare do it anymore with my electric motor controls. Who can guarantee me that this will not happen again? Actually, I don’t think the warranty on this part is enough anymore either. Is it reasonable for me to have the purchase cancelled?”

Frits Hommersom: “To start with the last one: fear of a so-called disappointed future is, legally speaking, no reason to rescind the contract. Only if Hans can demonstrate that the defect is structural does rescission stand a chance. Here it applies that whoever asserts, must also prove. And that can be tricky. The good news is that the builder/shipyard can probably be successfully held liable for the damage caused by this event. A ship has been delivered that does not meet the legitimate expectations of the buyer. After all: a proper engine control is missing. The yard must be given the opportunity to rectify the error. Do give him this chance to fulfill the contract, otherwise you forfeit your rights as a customer. If Hans is (again) on speaking terms with the yard and the engine can technically be fitted with mechanical engine controls, more may be possible, more than is strictly necessary from a legal point of view. Costs are incurred now anyway, perhaps the shipyard is prepared to supply an engine installation with mechanical engine control.”

Lennart van N.: “The warranty period on the purchase of my bilge pump had just expired. And now it doesn’t work anymore. Can I still call the supplier and perhaps the manufacturer to account for this? It is very silly to make the lifespan just a fraction longer than the warranty period of two years. What is the world coming to? What if my ship had sunk because of this? Would I have been able to recover this consequential damage from the supplier?”

Frits Hommersom: “The key words here are: reasonable expectations. Even after the warranty period, a product must have the properties that the buyer can reasonably expect from it. And in all reasonableness: a lifespan of two years is too short for a bilge pump. If the parties disagree about what is reasonable, the court can call in an expert to determine that. Possible referral to the manufacturer is not an issue. So-called indemnification of the supplier does not count, the supplier is Lennart’s only other party. If he gets a new pump and the problem repeats itself, then it has been made plausible that there is a structural defect. Dissolution of the agreement – money back – is then reasonable. If this pump was a one-time failure, then the supplier has done his job. Consequential damage due to a defective bilge pump can probably not be recovered from the supplier. Even if Lennart in that hypothetical case could show that the sinking was a result of the defective bilge pump – the so-called causal connection – and not by incorrect assembly of it or for example by a broken valve elsewhere in the ship, he would probably have had bad luck. Generally speaking, there is a good chance that consequential damage is excluded by the supplier’s general conditions. Perhaps the insurance company can do something here.”

Increase your chances.
Put as much as you can in writing, unambiguously, even beforehand, even if the atmosphere is fine. – Try to do business with one party, ‘from pillar to post’ is then excluded. – If you do not understand what has been agreed, then these are obviously not clear enough for you. Ask questions and do not think: it will work out. – If you are buying a boat, have it inspected beforehand. – First gather information and advice: where do you stand as a consumer? Then determine your strategy. – If there is a difference of opinion, keep talking to each other for as long as possible. Arguing costs time and therefore money. – Call in your legal assistance insurance and, if necessary, have it handle the correspondence. That deters. – Consider hiring a lawyer. Get advice on your chances, but also on your costs. And then make a choice.

More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief

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Frits Hommersom met groene bril

"You have the right to a lawyer who tells it like it is!"

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