Sailing, with the wind in your hair, the sun on your face, that’s freedom! It’s not for nothing that we call our passion pleasure boating. Unfortunately it happens (too) often that Mr. Hommersom has to be called in when boating has become unpleasant. Sometimes you don’t even get around to sailing!
Mr. Zwartjes knows all about this. Soon after he bought his boat, he had a problem with the drive. The yard insisted that the ticking of the drive was caused by the homokineet, which was replaced several times to no avail. The yard refused to do any research into another possible cause.
Mr. Zwartjes asked Mr. Hommersom for advice. Because the yard ‘dug in its heels’ and categorically refused to provide a definitive solution, Zwartjes had to go to court. The faithful reader of this column knows that the judicial mills sometimes grind slowly and that a lawsuit can take several years. When you then have a defect in your boat, which means you can’t actually sail it, it is obviously very frustrating. With your hard earned money you could finally buy your dream boat and then you can’t enjoy it!
Eventually the court (with Zwartjes) found that the yard was to blame for taking so long to solve the problem. It was possible to sail the boat, but not in the way Zwartjes had imagined because he had to return to the yard each time for repairs which turned out to be pointless. This meant that for three years he had very limited use of his boat. This also limited his travel destinations and thus the unrestricted use of his boat. The judge found the yard liable for this.
Reduction of enjoyment
For this situation, that you cannot sail your boat at all or only to a limited extent, because there is a defect that the yard does not want to take care of, there is a term: loss of enjoyment. When you have spent money but then have no fun, is it not reasonable that you receive some compensation?
From the practice of the water sports lawyer.
This falls under the category of immaterial damages and jurisprudence in the Netherlands is divided on this and struggles with the problem: how do you define loss of sailing enjoyment exactly and how can you put a price tag on it? In the case of Mr. Zwartjes the court said: “Whether compensation for financial loss as a result of reduced sailing enjoyment is admissible depends on the special circumstances of the case and in particular – in short – on the extent of the loss of enjoyment.”
The court also considered – in plain language: if you have spent money on something from which you hope to derive benefit (pleasure) (not expressed in money) and you miss this benefit, then when assessing this damage you must assume that the value of this missed benefit is set at the money that you initially spent on it.
If, subsequently, someone can be held liable for this damage, he must compensate the damage, unless this is unreasonable. The judge awarded Mr. Zwartjes an amount of 2,000 euros per sailing season. The verdict shows that with a larger ship (and therefore with a higher purchase price) a higher amount could be allocated. So in the end Mr. Zwartjes got a small plaster on the wound.
Even if a court does not award loss of enjoyment as such, there may still be a reason to order a shipyard to pay, for instance, the costs of the proceedings or the costs of legal assistance. In the case of Mr De Wit it became clear from the outset that his boat was hanging awry and that steering at top speed was heavy and difficult. After three expert reports the defect turned out to be simple to repair. But it took six years (!!) of litigation to do so. The shipyard had simply been obstructive.
Under these circumstances the court deemed it reasonable to order the yard to pay the costs of the proceedings, even though the main claim for loss of sailing enjoyment was rejected. The shipyard had to pay over €36,000 in costs. The difference in the situation between Mr. Zwartjes and Mr. De Wit: whereas Mr. Zwartjes couldn’t use his ship at all, Mr. De Wit could sail, just not at the top speed he wanted. And even though De Wit enjoyed sailing considerably less than he had hoped because of this, the judge did not consider this a loss of sailing pleasure.
In general, the judges in the Netherlands are fortunately becoming more aware of the stress and misery that spoil the pleasure in your boat and turn your passion into unpleasant sailing.
More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief