The sun is shining, you rent a nice boat with your friends and set sail. But in all the merriment you do not pay attention and a serious collision follows. “Oh, your liability insurance will cover that!
The concept of liability has to do with fault. Fault does not necessarily mean intent. In principle, someone is liable if there is “culpable fault” in an act which causes damage. The law describes this as: “He who commits a wrongful act towards another which can be attributed to him, is obliged to compensate the damage which the other suffers as a result.” (Art. 6:162 BW)
Almost every Dutch person has a so-called liability insurance (AVP) – incorrectly called third-party liability insurance. The AVP is an insurance which protects you against the risk of liability and which usually compensates all damages caused to others. Intentionally caused damage is excluded. You have taken out this insurance for all ‘house, garden and kitchen’ matters. Knocking over a flower pot, tipping a glass of red wine over the neighbor’s couch, etc. But how does it work with damage on the water when you have rented a boat? Your AVP covers liability on the water when the damage is caused by canoes, rowing boats or sailing and surfboards. Limited coverage (only personal injury to others) also exists for damage caused by sailing boats with a sail area of up to 16 square meters or motor boats with less than 4 HP. For all other vessels, you need a so-called “real” third-party insurance, popularly called pleasure craft insurance. This insurance specifically covers the legal liability you cause to others with your boat. After all, a damage can be very high. What about when you do not cause damage with your own boat, but with the aforementioned rented motor sloop?
The AVP excludes damage coverage when it comes to renting. What does this mean concretely: You are not insured for damage you cause to the rented boat. Furthermore, you are not insured when you cause damage with a boat for which a boating license is required. In short, the damage you cause to someone else in such a case is for your account. The insurance conditions of the two major trade associations (HISWA and NJI) have similar provisions regarding the liability of the hirer. In short, these come down to the fact that the lessee is liable towards the lessor for all damage caused or arising from the use of the vessel. Also for damage to the vessel itself the lessee is liable. However, these conditions contain the additional clause that liability is limited as far as it is covered by the insurance that the lessor is supposed to have taken out.
So what does this mean in concrete terms?
If you are dealing with a reputable rental company, they will have properly insured their boats. This is the third party insurance as you would take out as the owner of a pleasure craft. Does this mean you can do whatever you want and run no risk at all? Certainly not! Collision liability is based on the so-called “fault of the ship”. Thus, the driver is abstracted from, but a shipowner/owner of the vessel is considered the liable party. This means that in the event of a collision damage the injured party must turn to the lessor. The lessor is insured and his insurer will make the payment. Case closed, you might say, or is it? Not quite, because the excess a lessor may have is passed on to you and you are not insured against that. More important, however, is the risk you run if you meet a landlord who does not use these specific conditions and does not include a limitation of liability for the tenant in the conditions. Or if the lessor is not insured for such damages at all. In the first case, it is possible that the lessor’s insurer, after having paid the injured party, may take recourse against you as tenant. If the landlord is not insured at all, then he will be sued in the first instance. But if no specific agreements were made in the lease, you run a good chance that the damage that has arisen will be recovered from you.
Tip: What can we learn from this story? always check that the rental company has taken out a watertight insurance policy and that the terms and conditions include a liability limitation. By the way, always make sure that you inform the landlord well in case of any damage and certainly do not acknowledge liability in advance. you will harm the landlord and run the risk that his insurance company will not pay out, so that the landlord will be on your doorstep.
More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief