Waterkampioen watersport magazine

Fire damage winter storage.

Anyone who places their vessel in winter storage assumes that it will come back out in the same condition next season. However, Mr. Flesken’s ship was lost to fire. Who bore the brunt of that?

Mr. Fleskens offers his sailboat, to an operator for winter storage. A fire breaks out on the property where it is stored and the vessel is lost. Mr. Fleskens holds the operator liable and claims damages in court. He relies on the so-called contract of custody. However, the operator argued that the contract whereby a vessel is stored for the winter period is by its nature in principle a contract for the rental of space, without custody obligations. Mr. Fleskens, in turn, argued that the parties had not agreed on a fixed or specific place with the operator. He had no influence on where and how the vessel was stored. This situation is similar to offering your coat at a checkroom. According to Fleskens, the operator therefore did have a duty as a custodian to keep the property entrusted to it in good condition and to return it in the condition in which it had received it. The court was also quite clear: in a rental agreement it is a requirement that the property which the lessee is to use is properly determinable. This was not the case here. After all, the operator could store the boat in any place on its property, in a shed or outside. The court confirmed that there was custody and because the boat was lost in a fire, the operator did not comply with its custody obligation. Furthermore, because the operator had not insured the vessels stored with it against fire, the court held it liable for the damage. Mr. Fleskens was thus compensated for his loss.

This case is not an isolated one if you look at the HlSWA conditions ‘Rental and leasing of mooring and/or storage places’ which are listed on the standard ‘Stalling Reservation Form’. Many a winter stabler makes use of this. The form speaks of ‘tenant’ and ‘landlord’. When renting a summer berth in the harbor, this is correct. After all, you are renting a specific place that you can use and you pay a fee for that. However, in the case of storage it is not about the use of the thing (a mooring) but about the storage of it (the ship). Among other things, the form states that ‘lessor’ does not insure the alleged vessels, but the risk of insuring is placed on the ‘lessee’. Also, all risks to the vessel are placed on you. An operator might be able to get away with that for ‘real’ rental (i.e. summer mooring), but not for winter storage. With storage, a heavier liability, responsibility and duty of care applies to the operator.

The HISWA form therefore has a mixed character and you should pay attention to that! So when damage to your boat or accessories has occurred at the end of the winter in the situation of a ‘real’ winter storage, don’t be fobbed off with an appeal to the general conditions or a limitation of liability. Article 11 of the general terms and conditions also states that you agree to the naming of this agreement as that of a rental. It is also confirmed there that you have to insure the ship yourself. All provisions that are to your disadvantage. If the operator uses general conditions with an exclusion of liability, you can of course indicate that you do not agree with that provision. But then he might not want to take the ship into custody.

FINALLY A TIP: To avoid problems of proof it is important that you present your boat to the operator with someone present. Also take photographs of the vessel so that in the event of damage it can be shown that the damage did not already exist when the vessel was offered for sale.

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

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Frits Hommersom met groene bril

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