Waterkampioen watersport magazine

Rattle the causal chain!

Mr. Plesman found out that a damage can sometimes have several causes. Finding out which one is the most likely cause can be rewarding.

A few years ago in November, Mr. Plesman bought a 42-foot sailing yacht of a renowned brand from an equally renowned importer/dealer. The dealer guaranteed him that all the equipment on board was delivered in working order. In January of the new year, Plesman found that his yacht was under water up to the deck hatches. It turned out that the cooling water in the air conditioning system had frozen and forced the supply hose off the grommet. The ball valve between the skin grommet and the air conditioning supply hose turned out not to be sealed, so that after thawing an open connection was created and water could flow freely into the ship. What did the insurer’s expert say, “Had the ball valve been sealed, there would have been no water entry through the air conditioning system and no damage.” Sounds logical, you think, but this was not the whole story. To make the disaster complete, the bilge pump had not been turned on. The ship filled up with disastrous consequences. This bilge pump turned out to be defective.
Here we have an outstanding situation where a chain of events led to the final damage. Each of these links played its own role. Had the air conditioning been properly winterized, there would have been no freezing and the hose could not have been pushed off the grommet. Had the shut-off valve been closed, no water could have entered after the frost. Finally, had the bilge pump been functioning properly, the water would have been pumped out and the ship would not have sunk.
Far removed In insurance law the doctrine of the furthest removed cause applies. The furthest away cause is sought which is considered to be the source of the chain of events leading to the damage. So what was the situation here? Plesman stated that when he was winterizing the yacht he had followed the manual. This stated that in freezing conditions the valves had to be open! A properly winterized air conditioning system has no residual water that can freeze. And with a non-defective bilge pump, the yacht would not have sunk. These last two causes were beyond Plesman’s control. After all, he had bought the ship in this condition with the guarantee that all the equipment would be delivered in proper working order. In a situation like this, it is obvious that a dealer and an insurer will start pointing at each other or at Mr. Plesman. In this case, Plesman would have had a good chance of success if he had held the dealer liable. Because in the chain of the so-called causal connection the failure to start the bilge pump can be regarded as the final cause and the conclusion is justified that if the bilge pump had worked properly the ship would not have sunk (or the damage would in any case have been considerably less) and if the air conditioning had been properly winterized nothing at all would have happened with the open valves, the dealer was logically the liable party. However, Plesman opted to claim his damages from his insurer, which ultimately paid out. This avoided a costly and complicated procedure with problems of proof. So, when you have a claim, always make sure you have a complete picture of how it occurred. Sometimes different parties are liable for different causes!

And then this something else.
Recently the highest court ruled that your legal expenses insurer is obliged to give you free choice of lawyer in all cases. Previously this only applied when ‘compulsory legal representation’ (i.e. a ‘real’ lawyer) was needed. Now it also applies to cases that are pending before the cantonal judge, for example, that the insurer may no longer fob you off with a lawyer of its own. This applies not only to nautical cases, but to all legal areas.

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

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