Waterkampioen watersport magazine

Fire damage, who will pay for it?

Even if it is established that the fire started on the vessel next to you, the damage to your boat will not be paid for if it is not clear why the fire started there. How frustrating is that?

Everyone has an unfortunate moment. Didn’t keep starboard properly, the entry into the marina went somewhat awkwardly: BOOM! Damage. This is the classic collision. Boat to boat, filling in the damage report, the guilty party is (usually) the skipper who made the mistake and was at the helm, ‘alles klar’!
However, there are also damages where only one boat is involved, for example a collision with the boat on a trailer. In such a case we speak of damage experience (Article 8:1003 of the Dutch Civil Code), a damage in which a boat is involved but which does not involve a collision. even if the damage occurs on land, the liability rules of the collision law still apply. it concerns the so-called ‘fault of a ship’.

It is important to know that this is not a case of so-called strict liability (you own the ship, it causes damage, so you are liable). No, in collision law it is the fault of the ship that must be proven. The attacked, damaged ship has to prove that the damage was caused by a fault of the owner or a person working for the attacking ship, or an inherent defect of the ship. If the cause of the damage cannot be established, the damage is borne by the person who suffered it, according to the law.

Spillover fire.
If your boat suffers damage because the neighboring rebuilt ship catches fire, it is not a matter of course that your damage is compensated by the owner of the ship that caught fire, Mr. Ozinga experienced. What was the case? At some point, those present at the marina hear a thud. Then a fire breaks out on a large speedboat, a fire that damages four other vessels. Ozinga reports his damage to his insurer, but because he only has third-party insurance he is not reimbursed for his loss. No problem, thought Ozinga, it is clear on which ship the fire started, so I hold the owner liable. But that was not to be. The owner and a friend had indeed been on the ship and three minutes after they had gone out for coffee the boat had caught fire, but they kept their mouths shut about the reason why the fire had started. Also the fire department had not made any special notes about the cause, the boat had been taken away so it could not be investigated. The owner’s insurer then said that because no cause of the fire could be indicated, it could not be proved that the owner/the ship was at fault.

Then Mr. Ozinga had a problem. He had to investigate like a true detective to still try to find some evidence of the cause of the fire. Eventually he got hold of a police report in which a statement of the owner was recorded, that they had been busy starting the engine, which did not work, after which they had disconnected the fuel pump and put it back. Then the men went out for coffee. Moments later they saw the boat on fire.
In-depth inquiries with others who had been at the marina revealed that two people had heard the owner say that he had connected the fuel pump incorrectly and that that was probably what had started the fire. With that, Ozinga finally had his evidence. The judge found that there was sufficient reason to admit the evidence, after which his claim was eventually granted as well.

In another case, it could only be shown that the owner had vacuumed on board shortly before the fire broke out. The court found this insufficient to serve as a basis for the presumption that the fire was caused by the owner’s own fault. In short: the damaging ship cannot recover its damages from another ship if nothing concrete can be shown about the cause of the fire that points to fault on the part of that other ship.

Tip: If you receive a damage to your boat, caused for example by a raging fire, make sure that you immediately have all the facts in order and can at least indicate a cause, if possible with the help of the insurer and an expert. Even though you might be insured for the damage yourself, in that case you help the insurer to recover the damage from the other party.

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

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