'anchors , Insurers and the courts

[Sandyshore]

On all my insurances with many vessels over the years the claims condition is quite specific and infers,

If I am involved in an incident that could give rise to a claim that I must inform my insurers and or insurance representative within a reasonable time.

As most insurance policies have same sort of condition I assume your insurers advised pronto of your incident and confirmed they were happy for you to press on with potential legal action which is your right of course but rather strange without own insurers in the background.

As with most legal cases I am confident if the other side dragged to court they would have asked as to whom your insurers were and why they did not conclude the claim under own insurance in the first instance.
The question if you had gone to court and lost how would your insurers have viewed when you then looked to them to pay your repair costs with zero chance of them recovering any money as a result of your failed legal case?
Dangerous game that came off this time.

Must go along with those that say work with own insurer and let them take all the strain but more importantly get your boat repaired soonest and back on the water without adding pressure.

 

[Tranona]

Thanks for your responses, my reasoning for not claiming off my own policy rightly or wrongly were .................

I have seen so many "none fault " claims getting settled by own insurers and own insurers just don't have the resources or want to spend on thorough recoveries .
You mention for example that claim off your own insurer and just pay the excess then recover the excess.
In the real world I would have paid the excess and also the 20% loss of no claims bonus (NCB) for the next 4 years renewal on a sliding scale.
In the real world practicalities prevent recovery of NCB

In order to recover the excess I would have needed to claim off the TP and or TP Insurers so I took the attitude that I was halving my work load and halving time to settle to just claim the whole lot off the TP/TP Insurers

If my Insurers had paid my damages I would not have had freedom to take TP / TP Insurers to court - my insurers would have been too concerned about me prejudicing their position and would have wanted to handle it, time wise it would have been much easier for insurers to agree 50% / 50% fault , I would have almost certainly have lost 1/2 my excess and all of my NCB.

The bit that I am really unsure of is the Law applicable to an anchoring situation in UK inshore waters or marina bump , would the MCOL Judge be happy to rule on international Maritime law ?
If he had wanted this dealt with in the high court could costs have been in the thousands ?

Not my (limited) experience of insurers at all. They will seek to recover everything they can from the third party insurers including your excess - and probably do a better job than you could do on your own. Doubt in the very clear cut situation as you described it would ever have got anywhere near the courts. The third party insurers were "playing" you hoping you would give up.

Doubt your insurer would have penalised you on your NCB - did you ask them? However I note that insurers (N&G in my case) are now asking additional premium for NCB protection just like car. When I claimed recently on my car insurance (first time for over 30 years!) the claim handler talked me through the options and the impact different choices would have on my future premiums.

The law on anchoring is, from what you say about the incident is irrelevant. The other party damaged your boat through his admitted negligence and supported by witness statement. Does not matter if he broke the law or not. He owed you aa duty of care - that is not to snag your chain and consequently damage your boat.

Well done for seeing your claim through to the end, but pretty sure you would have got a similar result without all the hassle by using your own insurer - after all that is what you pay for. You have a contract with them to indemnify you for any of the losses on your boat whether they were caused by a third party or not (subject of course to any listed exclusions).

 

[Poecheng]

On all my insurances with many vessels over the years the claims condition is quite specific and infers,

If I am involved in an incident that could give rise to a claim that I must inform my insurers and or insurance representative within a reasonable time.

As most insurance policies have same sort of condition I assume your insurers advised pronto of your incident and confirmed they were happy for you to press on with potential legal action which is your right of course but rather strange without own insurers in the background.

As with most legal cases I am confident if the other side dragged to court they would have asked as to whom your insurers were and why they did not conclude the claim under own insurance in the first instance.
The question if you had gone to court and lost how would your insurers have viewed when you then looked to them to pay your repair costs with zero chance of them recovering any money as a result of your failed legal case?
Dangerous game that came off this time.

Must go along with those that say work with own insurer and let them take all the strain but more importantly get your boat repaired soonest and back on the water without adding pressure.

Whilst many (probably most) might take that course, it isn't mandatory and not everyone goes about things the same way.

Insurers are to be informed of any potential claim (I agree with you) but there was no potential claim against the OP (or not one that was other than fanciful). Where there's blame doesn't mean there is a claim both ways. So he was (a) properly entitled under the contract of insurance to keep them out of it and (b) was fully entitled to take the risk that if they later took a different view he wouldn't be covered.

Some are willing to approach things this way and likely I would too - why should my insurers be troubled with this clear-cut matter and why should I sacrifice my hard-earned excess and no-claims bonus. My limited experience of insurers is they cba to push for their full rights against other insured persons (and therefore other insurance companies). I might well take the view it is important that the other boat paid for his total negligence and that bringing a claim is the only way.

I do not believe it is strange not to have one's own insurers 'in the background' - I am not sure what they would be doing there and how it helps.

The other side are not entitled to know who the OP's insurers are - they wouldn't have a claim or counterclaim against him and it is therefore irrelevant. In any event, it is confidential; it is up to the OP if he wants to rely on his insurers but he doesn't have to and he is not required to reveal it.

If he had lost and then turned to his insurers to cover the damage to his boat, they may well have refused (because of delay in notification etc) but the failure to prove the negligence of another party does not affect the insurance contract, which is presumably fully comp. If the OP couldn't recover it in court, why would his insurers consider they could get it by the back door from the other side? If I were an insurance company (which I am not) I would be grateful the OP had tried.

Money Claim Online is an effective route to a remedy for many, many situations - it is cheap and the system works in that it brings you to the courts (which are an utter shambles in their own administration). It gets you before sensible judges appropriate for the level of claim (generally) who make sensible decisions (generally). Richard S, formerly of this parish, used to be very effective. If you are organised and in the right, it is nothing to be concerned about.

Civil Procedure Rules R61.2 provides that a claim for ' for damage done by a ship' must be started in the Admiralty Court (a Division of the High Court). CPR61.2(3) provides the Admiralty Court can transfer it to any appropriate court. I cannot find a monetary limit but something like this would rapidly be sent to the County Court (where the Small Claims Court is found). Therefore if a technical (and expensive !!!!) objection were taken that it should be in the Admiralty Court, it would boomerang back to where it started.

 

[Bigplumbs]

I wonder how much you claimed for the gell repairs and Polishing and whether you repair costs were reasonable

 

[Poecheng]

I wonder how much you claimed for the gell repairs and Polishing and whether you repair costs were reasonable

Done professionally and properly, it is an expensive operation requiring many visits.

 

[Elessar]

The first Anchor incident

It was a stunning sunny day in August so we decided to anchor in Priory Bay ( East Isle of Wight ).

We arrived before lunch , checked the depth, predicted fall and rise and let out 4 x depth of chain , hoisted the Anchor Ball (as you do) and went ashore to set up the BBQ / Beach Bar .
At that point there were no other boats anchored within ½ cable of us.




At about 15:00 we decided it was time to return to the boat to shower and find a berth for the night .



As we approached our boat we saw a Galeon sports boat had hooked up our anchor chain and was still winching in their chain colliding with us numerous times.
They winched in their chain until their their anchor roller hit our stern knocking chunks of fiberglass out and their bow rail hit our davit and bent it, they continued to winch in scratching all down the side of our boat.
.



I asked him to release his chain and instead of letting it go he let about 10 m out which allowed me to use my tender to release his anchor from our chain .



He had winched it so tight that the anchor had ridden all the way up our chain so that his anchor was clear of the water and visible.



The second anchor incident

I now had the anchor in my tender with the chain over my legs ready to drop it safely at our stern however he decided it was a good idea to winch his chain in and start towing me backwards with my legs trapped under the chain.



My crew screamed at him to stop winching me in and let 10 m out , at which point I powered astern in the tender and anchored him safely 20 m astern of our boat



I went aboard his boat and took his insurance details , it was a new boat to him and he said he didn't have any anchoring experience as he had previously owned RIBs



Just before we left I spoke briefly to a boat anchored close by to exchange tel numbers in case the third party insurers didn't cooperate



The Third Party's Insurers



I contacted his insurers and presented them with a comprehensive account / witness details along with an estimate for polishing the scratches , repairs to the stern and straightening the davits



The Third Party's Insurers response



“I can confirm that our enquiries are now complete. In an incident of this nature, the burden of proof lies with you to show that our assured has acted negligently. We have been provided with no evidence to suggest that this is the case and therefore cannot accept liability in this instance”







Witness

I contacted the witness for a written statement and this is where my luck changed , on receipt of the statement it was clear he wasn't just a witness, he was in fact an expert witness being a qualified power boat instructor .



The Courts



I issued proceedings on line “Money Claim on Line” MCOL against the anchor boat owner for damage caused during the collisions .



Once the anchor boat owner received the court papers they were handed to the Third Party Insurers and they initially offered me a conditional offer which I refused , they threatened that if I didn't accept it the courts would make me pay all costs including the third party . I said that IU was happy to risk this and the judge would more likely take the view that to stop the court action all they had to do was pay the itemised damages.

Insurers agreed to settle the damages including the court fee and actually included an extra amount that wasn't included in the MCOL for the salvage operation that followed .



The legal system for pleasure boaters



Alright I got paid eventually but I am not sure that MCOL would have helped at all as I don't think that English Law applies to this situation ?

Would this incident have needed to be heard by the high court under maritime law ?



If so it effectively means that any dodgy insurance company can avoid Third Party claims knowing that now one will afford to be able to pursue a claim for damages ?







Lessons to learn



For Cheapskates

If you don't want the embarrassment of having court papers landing on your doorstep and or CCJ against your name/household then choose a long established quality insurer like Haven Knox Johnston or Navigators & General .



For anchor dummies

Get some professional tuition.

Learn how to anchor in a safe place and check it is set

If you get hooked up just tie a fender to the end of the chain and let the chain go



For us all

If an anchor gets too close its a lot easier to move even if you were there first

Be wary of any questionable boat marks (edited following Alan's post) - greater chance the skipper is inexperienced / clueless .

Photographs and witnesses are essential following any incident ( by fluke I had taken a photo of the bay which showed our boat anchored with no other boats close by (we were there first).

Your questionable boat marks is way out of line and I’m glad you edited it.

If I was prepared to spend £1.3m on a boat galleon would actually be top of my list. My boat of the show at Southampton (for a UK kept boat). (The 53 sky deck FWIW).

I don’t see why his negligence or not had any bearing. His boat and his actions caused damage to you boat which they should put right. But you must know this better than anyone!

 

[Portofino]

We still haven’t determined if the op was actually covered for leaving his boat unattended.Or if all sat on a beach in sight he was covered .
This personal take the TP to court obviously worked in this instance in a U.K. system .

But the none U.K. guys need to reflect long and hard , indeed the U.K. guys too if they are actually covered should a mirror incident happens to them and they opt to throw it all @ there underwriters via the policy there forum favourite of the month broker which they used egged on by those vocal on here …….then find out they are not covered and are forced to look at alternatives.
I know with craft insure we are covered and despite the NCD risk / loss or what ever reasons personally I am too busy to be slaving away DIY ing this .

Again nice to see every way to skin a cat before considering which way one would do it .

 

[Tranona]

We still haven’t determined if the op was actually covered for leaving his boat unattended.Or if all sat on a beach in sight he was covered .
This personal take the TP to court obviously worked in this instance in a U.K. system .

See post#7. pretty sure the way he explains, he was covered. However it (like whether the third party was acting illegally) is totally irrelevant as the damage was caused by the third party's negligence so the claim is against him not the All Risks insurance contract.

One of the strengths of our Common Law system is the concept of tort with its basic tests of duty of care and negligence - even if sometimes it is difficult to collect the evidence to meet the tests. The direct system for small claims also makes it relatively easy for individuals to take on corporations if they follow the advice on preparing their case and the way they try and resolve the issue beforehand. I have done it successfully twice and in both cases, like this one the settlement was made before actually going to court. In my cases however they were both under contract rather than tort.

 

[Portofino]

See post#7. pretty sure the way he explains, he was covered. However it (like whether the third party was acting illegally) is totally irrelevant as the damage was caused by the third party's negligence so the claim is against him not the All Risks insurance contract.

One of the strengths of our Common Law system is the concept of tort with its basic tests of duty of care and negligence - even if sometimes it is difficult to collect the evidence to meet the tests. The direct system for small claims also makes it relatively easy for individuals to take on corporations if they follow the advice on preparing their case and the way they try and resolve the issue beforehand. I have done it successfully twice and in both cases, like this one the settlement was made before actually going to court. In my cases however they were both under contract rather than tort.

Yes but post #7 is a wishy washy answer because he hasn’t had a conversation with his underwriter nor can we see his policy T+C s weasels words . My first post naming names of the inc Co .Convenient we don’t know ?

Its why until proven different some like me might think the DIY route as successful it appears to have been was basically the only option open .Ie his underwriters simply weasel worded there way out of paying up ,even contemplating dealing getting a settlement off the TP.
eg not wanting to re open old wounds on here and get subsequent abuse, something like in exclusions “ we will not pay out in the event of lack of seamanship , poor seamanship “ or words to that effect . Unknowingly until some thing like this happens and you happily fess up ( another T+C = inform them of a incident that might lead to a claim ) ….they turn round and say ….” We think although the policy is full comp etc etc we decline to get involved because in our view you acted in a un seamanship way or reckless “ or what ever weasel words .

Agree you think you are covered leaving it unattended at anchor .The underwriters think a competent person left on board could have .
1- communicated with the TP asking them to anchor further away .
2- called back the owner s
3 - fended off
4 - moved it .

So you can sing if you think you were covered 9iss off …….well diplomatically better worded .

 

[Elessar]

?

 

[Tranona]

Yes but post #7 is a wishy washy answer because he hasn’t had a conversation with his underwriter nor can we see his policy T+C s weasels words . My first post naming names of the inc Co .Convenient we don’t know ?

Its why until proven different some like me might think the DIY route as successful it appears to have been was basically the only option open .Ie his underwriters simply weasel worded there way out of paying up ,even contemplating dealing getting a settlement off the TP.
eg not wanting to re open old wounds on here and get subsequent abuse, something like in exclusions “ we will not pay out in the event of lack of seamanship , poor seamanship “ or words to that effect . Unknowingly until some thing like this happens and you happily fess up ( another T+C = inform them of a incident that might lead to a claim ) ….they turn round and say ….” We think although the policy is full comp etc etc we decline to get involved because in our view you acted in a un seamanship way or reckless “ or what ever weasel words .

Agree you think you are covered leaving it unattended at anchor .The underwriters think a competent person left on board could have .
1- communicated with the TP asking them to anchor further away .
2- called back the owner s
3 - fended off
4 - moved it .

So you can sing if you think you were covered 9iss off …….well diplomatically better worded .

There is no mention that the boat should be manned at all times and doubt there is a specific term saying that other wise he would have said so - and it would be most unusual. The boat was not anchored off an "exposed beach" in bad weather, but in a quiet bay that is a recognised anchorage on a balmy summers day.

Anyway it is totally irrelevant as the damage was caused by a third party and unconnected with where it was anchored or the weather.

 

[Hooligan]

Thanks for your responses, my reasoning for not claiming off my own policy rightly or wrongly were .................

I have seen so many "none fault " claims getting settled by own insurers and own insurers just don't have the resources or want to spend on thorough recoveries .
You mention for example that claim off your own insurer and just pay the excess then recover the excess.
In the real world I would have paid the excess and also the 20% loss of no claims bonus (NCB) for the next 4 years renewal on a sliding scale.
In the real world practicalities prevent recovery of NCB

In order to recover the excess I would have needed to claim off the TP and or TP Insurers so I took the attitude that I was halving my work load and halving time to settle to just claim the whole lot off the TP/TP Insurers

If my Insurers had paid my damages I would not have had freedom to take TP / TP Insurers to court - my insurers would have been too concerned about me prejudicing their position and would have wanted to handle it, time wise it would have been much easier for insurers to agree 50% / 50% fault , I would have almost certainly have lost 1/2 my excess and all of my NCB.

The bit that I am really unsure of is the Law applicable to an anchoring situation in UK inshore waters or marina bump , would the MCOL Judge be happy to rule on international Maritime law ?
If he had wanted this dealt with in the high court could costs have been in the thousands ?

First of all thanks for sharing this event and subsequent actions. Secondly good for you for pursuing the way you did. While I agree that a more conventional route would be to go via your own insurer the simple fact is that your no claims is more important to you than to anyone else and so we should admire and respect the principles you upheld. Good for you.

 

[Sandyshore]

Always discuss with your insurer in the first instance.

If you have protected No Claims Bonus then a positive.
Ask how your insurers view if on paying a claim from a non fault as to projected increase at renewal you could be surprised in that there would be no loading if a reputable insurer

If thats the case then let them do the legwork.

In real time I would say check when purchasing your insurance that you have at least protected No Claims Bonus if not move on to an insurer that does offer.

You pays your money and takes your choice.

 

[DAKA]

The law on anchoring is, from what you say about the incident is irrelevant. The other party damaged your boat through his admitted negligence and supported by witness statement. Does not matter if he broke the law or not. He owed you aa duty of care - that is not to snag your chain and consequently damage your boat.

Money Claim Online is an effective route to a remedy for many, many situations - it is cheap and the system works in that it brings you to the courts (which are an utter shambles in their own administration). It gets you before sensible judges appropriate for the level of claim (generally) who make sensible decisions (generally).

Civil Procedure Rules R61.2 provides that a claim for ' for damage done by a ship' must be started in the Admiralty Court (a Division of the High Court). CPR61.2(3) provides the Admiralty Court can transfer it to any appropriate court. I cannot find a monetary limit but something like this would rapidly be sent to the County Court (where the Small Claims Court is found). Therefore if a technical (and expensive !!!!) objection were taken that it should be in the Admiralty Court, it would boomerang back to where it started.

Thank-you for your comprehensive responses, they have provided me with confidence that I will take the same approach next time should it occur.

I am confident that Poecheng and Tranona dont need any input from me but
For anyone else thinking of this it really was straight forward.
Keep emails to TP insurer factual , include photos, include estimates
Dont be drawn into nonsense TP Insurer procedures , you are now in Court procedures .
Give them 2 week warning to pay or you are going to issue court proceedings , copy TP into the trail of emails
diary on and complete Money Claim On Line form , there is less to it than any Insurer claim form
Evidence = emails to TP insurers and copied into TP plus photos
The emails already contain all the information for the courts
diary on to request judgment if the TP doesnt file a defense.

Dont let the TP Insurer bully you into accepting conditional offers

Insurers loose 90% of cases that go to court ( fact which could be out of date but taken from one of the top 5 composite insuers I used to work for.)
Insurers very rarely go to court , once you issue proceedings you have almost already won, Insurers are unlikely to defend ( this does rather assume that you are in the right , if you are wrong then pay the other guy and apologize).

As others have pointed out under duty of disclosure you should notify your underwriter that you have had a non fault incident (point out it is for notification only and it isnt a claim) and the TP has settled all damages in full.

I am some what surprised that so many appear happy to "spend" their NCB on a non fault claim
Premium of say £5 000 without NCB is £6 250
Over 4 years cost is £3 125
20% 1 250
15% 937.50
10% 625
5% 312.50

total (ignoring rate increases)

 

[Tranona]

Good summary of the process. I am currently potentially in dispute over work carried out (or not!) by a contractor. I have documented every exchange and offered to discuss a compromise or go to arbitration, but the other party has done nothing except make verbal threats, some in front of witnesses. Seems now he has recognised that he has no chance if he did take me to court as he has been silent for nearly 2 months. The court is potentially a great leveller which is why as you say bullying insurers rarely go there - just like my experience with Easyjet a few years ago.

Recognise your point about NCB if that is size of your premium, but my premium, even for my £100k Bavaria was only 10% of your example, and my stance was based on that. £300 odd to have somebody else fight your corner in a claim for £000s is of a different order. Is your premium really £5k?

 

[colhel]

The main issue I had with a large claim a few years ago was unlike a car insurance claim tge 3rd party aren't obliged to share or prove they have insurance.

 

[volvopaul]

Hi Daka a very interesting experience, as you were in the Insurance game at one time I’d doubted you would loose from the start .

Had you known there would have been a fight why didn’t you have one of your crew video the whole experience of you helping this so called professional skipper instructor? Most people video incidents these days .


On the subject of insurance companies I am finding that a few of my customers this year have had a real battle getting legitimate claims settled , one of which had his 50 hour old outdrive claim totally rejected on the wording of a so called appointed expert witness engineer that to my knowledge has gone bust more times than I can count over the years , he stated that this brand new drive had been stripped down and rebuilt prior to the incident because he stated some of the securing bolts were different, the fact lies in that this was the latest type DPH drive that had only just hit the market which had some new style bolts instead of the old style torx heads , on that statement the claim was rejected , case closed with no further negotiations allowed even though I wrote endless emails explaining the differences.

 

[dankilb]

Paul - I think the pb instructor was the witness, rather than the third party? Sounds like the tp was on his first outing on the boat.

 

[ylop]

DAKA - I think if your Jurisdiction concerns were definitely warranted the Insurer would have not settled and their solicitor would have enjoyed the day in court at your expense for raising an action in the wrong place and then left you with fear of high court costs (or even time barring before you can raise it in the correct place).

I wonder how much you claimed for the gell repairs and Polishing and whether you repair costs were reasonable

Presumably, if the costs were not reasonable the insurer would not have settled and would have preferred to go to court and argue that DAKA was taking the proverbial.

 

[ari]

I wonder how much you claimed for the gell repairs and Polishing and whether you repair costs were reasonable

Why do you wonder that? Do you have reason to believe that the OP is untrustworthy?