Mr. Dipper is having a repair done that every sailor cannot escape after a while: replacing the saildrive cuff. It’s a pretty major job that’s not for everyone. He therefore outsources this job to an experienced mechanic.
In April 2009 the work is done and on the first sailing day in May Mr. Dompelaar sets sail with his children and friends. To his horror, during the course of the day the engine suddenly makes a strange noise when shifting gears and no longer has any thrust. Dompelaar can no longer get any movement in the clutch and has to sail to port. Further investigation shows that the problem is in the reversing clutch. When the oil filler cap was opened, Dompelaar was surprised by a hissing sound, but not by oil. On the dipstick there are many bronze chips but again no oil. Dompelaar’s first conclusion is that the mechanic forgot to fill the clutch with oil after replacing the cuff, causing it to overheat and seize up. Upon complaint to the mechanic, he states that the oil probably leaked out because of sailing on a beam. Immerser cannot agree with the mechanic’s explanation and asks an expert to investigate.
However, to Dompelaar’s surprise, before the survey takes place and during his absence, the mechanic filled the coupling with oil and cleaned the dipstick. The expert then comes to the baffling conclusion that the clutch has gone into overdrive due to the incorrect reinsertion of the eccentric piston. To top it off, it turns out that the mechanic also put back the old saildrive cuff instead of replacing it, but charged for a new one! Dipper ran the risk of being confronted at sea with an outdated cuff that could tear. A very dangerous situation! Dipper claims his damages from his insurer. However, the insurer rejects the claim because the damage was caused by faulty assembly and not by an “external calamity”. Thus, the damage was not covered and Dippers is referred to the mechanic. In the meantime, Dompelaar had the damage repaired by a third party. After Dompelaar had the mechanic held liable for the faulty repair and claimed the repair costs, the mechanic responded by claiming that he was not liable since he had not been given the opportunity to repair the faulty repair. Because Dippers had had the damage repaired by a third party without informing the mechanic, the costs are for its account.
This state of affairs occurs more often. Disappointed in the quality of a repair or work, you no longer have confidence in the person/yard concerned and have the repair done elsewhere, but this time properly. However, you are taking a very big risk! The law states quite clearly that a party who performs inadequately must be given notice of default and a reasonable period for compliance. Only if that party fails to take advantage of this opportunity does the possibility arise of having the damage repaired by a third party and, if it is established that the damage was caused by a shortcoming of the original party, recovering the costs from that party. In this case, not only had Mr. Dompelaar not given the mechanic written notice of default, but it turned out afterwards that he had also not accepted an offer from the mechanic to repair the damage. So Mr. Dompelaar had bad luck twice! The insurer did not pay out and he could not recover the costs.
Tip: if you are confronted with a situation such as the one described here, always respond in writing to the party in question, declare them to be in default and demand compliance. Never just let a third party repair the damage!
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