Waterkampioen watersport magazine

Collision, your own fault?

The same applies on the water as on the road: we have rules to keep everything on track. (Almost) everyone has had a collision or damage incident, no matter how well you look after yourself. What about liability?

The law regulates collision and damage. These two terms refer to different situations: collision is the contact of two ships. When a ship causes damage without hitting another ship, it is called loss experience. First it must always be established whether someone is to blame for the incident and is therefore liable for the damage. The law says that if the collision was caused by the fault of a ship, the owner of that ship is obliged to compensate for the damage. So how can a ship, in fact nothing but a thing, be at fault for a collision? The highest court has given the answer to this. A ship is at fault if the damage results from (a) a fault of a person for whom the owner of the ship is liable; (b) a fault of a person who performs work for the benefit of the ship or of the cargo; or (c) the realization of a special danger to persons or property created by the fact that the ship did not comply with the requirements which one might have expected of it in the given circumstances. In short: there is fault on the part of the ship if there is a fault on the part of a person or a defect on the part of the ship.

Now what if a ship causes damage, but a fault of a person or a defect of the ship cannot be established, as Mr. Pietersen experienced? What was going on? Mr. Pietersen was moored at the passenger jetty of a Frisian water sports village. A little later Mr. Van Buuren moored next to him at the same jetty. In the evening the people on board had a nice dinner together. In the course of the evening the wind picked up and on his return it turned out that Mr. Van Buuren’s ship had broken loose from the jetty and had started to skim against Mr. Pietersen’s ship, causing damage. You might think, ‘It’s easy as pie’. The ship had capsized, so it was not properly secured, therefore a fault of Mr. Van Buuren, therefore Mr. Van Buuren is liable. However, it was not as simple as that. It turned out that the boat had indeed broken loose, but not because the mooring rope had slipped, but because the bollard to which the ship was moored had broken off from the moldy jetty. Then things got tricky. For liability there must be fault on the part of the ship. However, this was properly moored (no fault) and there was also no fault of the ship because the rope had not broken. The defect lay in the moldy jetty. This, of course, was also Van Buuren’s defense against the claim Mr. Pietersen filed against him. Mr. Van Buuren in turn challenged the municipality which, as the owner of the scaffolding, had the obligation to maintain it. He drew a parallel with the liability of the municipality of Utrecht for the demolition of a landing stage due to negligent maintenance and the court agreed. The municipality was liable because it had failed to comply with its maintenance obligation and replace the rotten part of the wharf in time. Fortunately for both skippers, because this way Mr. Pietersen was indemnified for his damage and Mr. Van Buuren was not only indemnified for the damage to Pietersen’s ship, but also for the damage to his own ship.
Conclusion: The operator/owner of water sports facilities is liable/responsible for the maintenance of these types of facilities, such as a jetty, for example, and must also ensure that mooring places are easily accessible and safe, e.g. free of moss. He has a duty of care, just like the road manager who must ensure that everything on the public road is properly maintained and when there are road works, for example, these are also properly indicated with warning signs.

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

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