If a ship casts off from its mooring and causes damage to another ship, the owner is responsible. A storm, even if it includes extreme gusts of wind, is not an ‘act of God’.
In the marina of Alphen aan de Maas the sailing boat of Dirk Zoontjes was moored next to the ship of Jan de Boer. During a heavy storm the mooring line of the Tulp, De Boer’s ship, broke. The Tulp became loose and drifted against the moored Argonaut, Zoontjes’ ship, causing damage to the Argonaut. Zoontjes was properly insured and he claimed the damage of approximately 5,000 euros from his insurance company, which also paid out the amount. The insurer then held De Boer liable for the damage that had occurred. Because De Boer was also insured, the correspondence was taken over by his insurer. Both insurers went to war with each other.
The insurer of Zoontjes called in Mr Hommersom. He argued that De Boer had strict liability for the damage because the ship that caused the damage was his property. Zoontjes argued that the damage was for De Boer’s account on the basis of an unlawful act because he had not taken sufficient care to prevent his ship from causing damage.
De Boer’s insurer, however, disputed the claim, stating, “To the extent that a cause can be assigned, I consider it an act of God. Our insured, in my view, cannot be held liable for the occurrence or raising of a storm.” Indeed, De Boer argued that there had been a very extréme storm, bordering on hurricane force, and that for that reason it would constitute a plea of force majeure. De Boer submitted reports of the Royal Netherlands Meteorological Institute (KNMI) showing that there had been such an extreme storm that no precaution would have served. However, Zoontjes’ insurer responded with an analysis of those same reports showing that there had only been a few extreme gusts of wind. And extreme gusts of wind do not qualify as an extreme storm, for that there must be structural wind speeds above a certain strength. An appeal to force majeure could not succeed either, because the deplorable storm had been predicted well in advance. The parties did not reach a solution and Mr. Hommersom summoned De Boer, who was represented by his insurer.
The Subdistrict Court was clear in its judgment. Book 8 Title 11 of the Civil Code deals with the rules for inland navigation in the event of collisions. In the opinion of the Subdistrict Court, the Tulip was not moored in such a way “that by changing her position she could not pose a danger or hindrance to other vessels.” After all, the mooring line had broken. And since mooring lines are part of the ship’s equipment, the ship was thus the cause of the realization of a special danger to other ships. Since De Boer acknowledged that he was aware of the approaching heavy storm, the lines he chose for mooring his ship should have been calculated accordingly.
The Subdistrict Court concluded that there was a wrongful act; De Boer had acted in violation of due care. The appeal to force majeure was rejected. Mooring ropes must be designed to withstand gusts of wind and storm. De Boer was blamed for being aware of the storm in time and therefore should and could have chosen mooring lines that were strong enough. The Subdistrict Court also took into consideration that the Tulp had broken loose, but that owners of other, heavier ships had been able to moor their ships adequately. The Subdistrict Court also concluded that a very heavy storm that was announced in good time is not an exceptional situation resulting in force majeure. De Boer’s insurer was ordered to pay compensation to Zoontjes.
The moral: even if you think you have your ship well registered, always check it yourself and be on the safe side.
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