“The management is not liable.” We all know that sign in the checkroom. But what if you go to get your boat out of winter storage and your mast turns out to be broken “just like that”?
Just imagine: the days are getting longer, the frost is out of the ground, the sun is shining, in short, it’s time to put the boat in the water. In good spirits you go to the marina where you have stored your boat and mast for the winter. In the mast shed it turns out, to your horror, that the mast has ‘apparently’ fallen out of the rack and is total loss. The culprit is of course ‘in the graveyard’.
It happened to Mr. Ter Veer when he visited the winter storage of the marina. His mast had fallen out of the rack and had a crack, the top fitting was damaged, top light and anchor light were broken and there were scratches across the mast. There were also cross scratches on the roll profile near the mast fittings. His damage was over 8,000 euros. The fun of the start of the new season was already gone. Fortunately, Mr. Ter Veer was well insured and was reimbursed for a new mast by his insurer. However, not everyone is so well insured. Who is liable in such a case and what can you do?
The contract between Mr. Ter Veer and the marina is a so-called contract of custody, specifically described in the law “The contract whereby one party, the custodian, binds himself towards the other party, the depositor, to keep and return an object that the depositor entrusts or will entrust to him.” The most telling example is the wardrobe at the theater. Another form is that of the storage agreement. Consider, for example, a bicycle storage facility. The law says that the custodian must exercise the care of a good custodian when storing.
How far that care goes depends on the type of agreement and the nature of the object. Under circumstances, for example, the custodian may be expected to insure against fire and theft.
Usually, however, there is a bump that must be taken in order to hold a custodian liable. (Almost) every custodian/shipyard where you give your ship or mast in custody nowadays uses general conditions containing a so-called exoneration clause. The rules concerning custody are of a regulatory nature and the depository may therefore limit its liability. See the familiar sign at the checkroom: “The management is not liable for damage/loss to the goods given in custody”. Will you always get away with that as a custodian? That depends on the case. When a fur coat was given for safekeeping, the exoneration clause did apply, but when a bicycle was given for safekeeping in a stationary bicycle shed, the appeal to exoneration was rejected. It will therefore have to be considered on a case-by-case basis how far the custodian’s duty of care extends and whether it is reasonable for him to exclude his liability for damage.
Is there nothing you can do? Well, there is.
The general terms and conditions must have been brought to the attention of the depositee, whether or not separately at the conclusion of the contract or, for example, by means of a large sign at the warehouse on the premises. If you could not know about an exoneration, you fall back on the general rule and a depository will be liable more quickly. It also plays a role to what extent the keeper is actively involved in the storage of the mast, for example, and to what extent this concerns a closed space that may only be visited by the harbour master, or that anyone can walk in and out.
In any case, make sure that you are always with one or two others when you offer your vessel or things to a custodian. Under all circumstances, make sure that the ship has been properly berthed and that it has been established that when you left, the ship was in undamaged condition and had been properly stored. In the case of mast storage: make sure that the mast is secured, for example by tying it up so that you are not dependent on the (in)attentiveness of others. If you do not agree with the exoneration clause, you can always indicate in writing that you are excluding it.
Practical problem might be that the depositary will not want to take the ship into custody.
Finally: Check whether your own insurance covers such damages and extend it if necessary. Also inquire with the depositary whether he is insured. In this way you may not be able to prevent a nasty surprise like that of Mr. Ter Veer, but at least the pain can be eased.
More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief