bedouin
Well-Known Member
Absolutely standard - the same would apply to home insurance too. That is why you have insurance on your own boat.
Damage by boat drifting onto mooring in Tasmania
- Thread starter Vegable
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Neeves
Well-Known Member
Our moorings Sydney, NSW Maritime, expect owners to have insurance (but never actually check). If you try a legal route the fact the owners of the yacht did not have insurance is not going to be helpful (if rules in Tas are the same as NSW). You would need to prove that someone was negligent, again in NSW, we are expected to have our moorings serviced annually (if you can prove this has not been done it would be advantageous). Alternatively you have to prove (and this might be more difficult) that the mooring was inadequately laid, too small etc - (I doubt any mooring contractor would cut corners).
The situation is made more difficult as you have too many parties (who will each pass the buck).
But proving any of this will be difficult, Small Claims Court (not something I know anything about).
Your biggest issue is that the yacht was not insured and if this becomes evident (as someone said) you open a different can of worms.
Act of God suggests that no-one was negligent and that the situation was unusual.
Fibreglass repairs are not as expensive as you suggest - I'd canvas for quotes, quickly, and if they are 'large' then reconsider the Small Claims etc.
Lots of yachts round us, we are on a NSW Maritime mooring (or its our mooring and we lease the space) and I know many yachts round us are not insured - it is a major issue.
Jonathan
The situation is made more difficult as you have too many parties (who will each pass the buck).
But proving any of this will be difficult, Small Claims Court (not something I know anything about).
Your biggest issue is that the yacht was not insured and if this becomes evident (as someone said) you open a different can of worms.
Act of God suggests that no-one was negligent and that the situation was unusual.
Fibreglass repairs are not as expensive as you suggest - I'd canvas for quotes, quickly, and if they are 'large' then reconsider the Small Claims etc.
Lots of yachts round us, we are on a NSW Maritime mooring (or its our mooring and we lease the space) and I know many yachts round us are not insured - it is a major issue.
Jonathan
Seven Spades
Well-Known Member
If their laws are based upon ours you would need to show negligence by the owner. However their maybe local laws that give strict liability to the owner of the drifting vessel. From what you ave said he is unlikely to be able to prove any negligence on the owner of the other vessel so he will just have to make a claim on his own insurance.
Dan Tribe
Well-Known Member
You've got me worried now! I thought that I was well insured but I've read through my insurance policy & certificate etc and can see no reference to "all risks" or "act of God" exclusions.
But are you saying that if my boat causes damage to another through, say, strong wind, that I can just say "hard luck mate, Act of God, sort it out yourself".
Doesn't seem right.
guernseyman
Well-Known Member
Either the owner or the boat can be at fault. In the case of the boat it is theoretically impossible for it to be negligent.
Tranona
Well-Known Member
Why does it not feel right? Why should you be penalised for something that is not your fault? Your insurer is only covering you for insurable risks. The other party's claim is against you personally not your insurer so has to show you have been negligent and then your insurer will pay the claim. In practice however the insurer acts on your behalf as they are in a better position to protect your interests.
"All Risks" insurance is the cover for your boat - not third parties. So you have a contract with your insurer to repair/replace up to the limit of your agreed insured value for any damage however caused. The insurer may then try to recover the costs from the third party if there was negligence on their part.
Triassic
Well-Known Member
All this talk about acts of god and negligence is fascinating but to my rather simple mind it seems fairly straightforward.
Two boats are moored in the same location, a storm comes along (not exactly an unexpected event, especially in Tasmania) and one boat breaks it's mooring, the other one doesn't. It seems fairly obvious to me that one owner has a mooring adequate for the location and circumstances, the other hasn't. If as a result of having an inadequate mooring their vessel causes damage to another vessel, or vessels, then surely they would be liable? The poor guy caught in the middle I suspect would also have damage, and if it's anything like the way insurance works in the motor trade the liability just gets passed back up the chain until it stops with the vehicle/vessel responsible.
Two boats are moored in the same location, a storm comes along (not exactly an unexpected event, especially in Tasmania) and one boat breaks it's mooring, the other one doesn't. It seems fairly obvious to me that one owner has a mooring adequate for the location and circumstances, the other hasn't. If as a result of having an inadequate mooring their vessel causes damage to another vessel, or vessels, then surely they would be liable? The poor guy caught in the middle I suspect would also have damage, and if it's anything like the way insurance works in the motor trade the liability just gets passed back up the chain until it stops with the vehicle/vessel responsible.
Tranona
Well-Known Member
Not necessarily. It depends on the details. If the mooring is considered appropriate and is in good condition then how is it negligence. What happens with other boats is largely irrelevant.
You need to get back to the basic principles of the law of torts on which negligence is based. It is not an absolute liability - that is just because something went wrong somebody must be to blame. The tests are for reasonableness - could this have been forseen? or could the person have done something the prevent it, or done something that specifically caused the damage. If the answer to those questions is no, then it is probably an "Act of God" - in other words it was not preventable.
In some countries these principles are overruled by statute as in New Zealand where there is a "No Fault" law covering road traffic accidents. However in this country (and almost certainly Australia) the law of torts is used in these situations.
Triassic
Well-Known Member
If the mooring is appropriate and in good condition then why did it fail? If the mooring itself didn't fail then was it the way the vessel was secured to it? Either way if only one vessel amongst many came adrift that tends to suggest it is not unreasonable to have expected it not to do so.
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No marina where I've ever berthed for longer than a week, which includes Holyhead, has not requested proof of 3rd party insurance. Spanish and Portuguese marinas require it for overnight stops.
Tranona
Well-Known Member
"Expectations" do not lead to negligence.
As I said earlier it depends on the detail of the case. my boat in 1987 was on a perfectly suitable mooring that had been there (maintained of course) for decades. Still ended up on the beach in the storm as did several others, but not all, including boats adjacent to mine. The boat hit others on the way. A negligence claim would not have been successful against the yard as I would have been unable to show that they had failed to provide an appropriate mooring as nothing would have withstood reliably against such extreme weather. my insurance paid for my damage and I had no claims from the boats that were hit.
You have to recognise that sometimes s**t happens despite the boat owner's best endeavours. Remember it is not the boat that can be sued, but the owner, who may just as easily be you. Would you like to be liable for things that happen which are out of your control?
By not insuring All Risk it is the owner of the damaged boat who is assuming the risk of damage which is nobody's fault.
lw395
Well-Known Member
Exactly.
Choosing to leave your boat on a mooring during the winter, when common practice is to have the boat ashore, might be enough negligence for you to be liable for the consequences.
Storms happen. Not to be ready for a run-of-the-mill storm is negligence, being caught out by a once in a century freak storm might not be.
In my view, civil law is fickle.
Suing another boat owner for negligence, when you yourself have not taken the very basic precaution of getting insurance seems quite likely to end in tears.
After all, the other owner probalby has taken the same course of action as the boat that got hit, i.e. trusting a very similar mooring in the same circumstances.
OTOH, if the boats that broke free were on moorings which were underspecified, or not maintained for some years, that might make a difference.
The boat needs fixing.
Get it fixed, move on.
The system is:
We should all be insured, for events we can't take in our stride.
If it's clearly someone elses fault and I can keep my NCB, that's better, but there is an outside change of things going wrong which are not much of anyone's fault.
I insure my house with a fat excess, because I'll take ordinary setbacks on the chin, but if it gets struck by lightning, I'm covered.
Having said all that, marine insurers are often very reasonable with third party claims, so maybe it's worth trying one's luck.
I once had a 3rd party claim against me for a couple of hundred quid in a dinghy racing incident, my insurer paid up and my premium didn't go up significantly.
Not worth the cost and effort of arguing, and some goodwill is generated.
Bristolfashion
Well-Known Member
The whole "Act of God" thing is very popular on the TV, but is nothing to do with modern insurance.
When it comes to damage to your own yacht, the events that arè covered or excluded are clearly outlined in the policy document - and " Act of God" is not mentioned.
When it comes to damage that you do to someone else's property (3rd party or liability cover), this will cover your legal liability. Legal liability typically arises under a tort (negligence, nuisance) or some form of Act, Regulation etc made by (or under the authority of) parliament.
In this case, the question is, "was anyone negligent?". It could be the other owner, mooring contractor or someone else. If the event occurred without there being a legally liable party, there is no avenue of recovery.
It's a pretty important principal. Otherwise we might have to pay up for things where we have no responsibility.
Cheers
Bristol
P.s. We are currently cruising in Tasmania. Boy, it's a beautiful place, but do they have some weather!
When it comes to damage to your own yacht, the events that arè covered or excluded are clearly outlined in the policy document - and " Act of God" is not mentioned.
When it comes to damage that you do to someone else's property (3rd party or liability cover), this will cover your legal liability. Legal liability typically arises under a tort (negligence, nuisance) or some form of Act, Regulation etc made by (or under the authority of) parliament.
In this case, the question is, "was anyone negligent?". It could be the other owner, mooring contractor or someone else. If the event occurred without there being a legally liable party, there is no avenue of recovery.
It's a pretty important principal. Otherwise we might have to pay up for things where we have no responsibility.
Cheers
Bristol
P.s. We are currently cruising in Tasmania. Boy, it's a beautiful place, but do they have some weather!
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robertj
Well-Known Member
I think he has got away with it lightly really. If the boot was on the other foot and it was his yacht that did the damage to other boats, not having insurance could have possibly bankrupted him if claims were made against him.
Graham376
Well-Known Member
You're missing the point. Act of God is enshrined in law in some countries so, if the event was deemed Act of God, it's not an insured event so won't be mentioned in Risks Covered. Could possibly be listed under Exclusions though.
P.S. Just done a quick Google for Insurance & Act of God - Definition. An accident or event resulting from natural causes, without human intervention or agency, and one that could not have been prevented by reasonable foresight or care—for example, floods, lightning, earthquake, or storms. This is a peril terminology found in ocean and inland marine policies.
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Bristolfashion
Well-Known Member
I'm afraid that is misleading. All those events you mention that you claim are excluded from an insurance policy as "Acts of God" ARE covered in a standard insurance policy. Modern UK & Australian policies never use the expression "Act of God" in any context. Instead, there is a clear listing of what is covered and what is excluded.
As a double check I've pulled out my Australian marine policy.
As I said, it's a popular device on TV and in films, but is not relevant to modern insurance.
Where it might be confusing is the situation mentioned by the OP. If the damage caused is due to the exceptional storm, then there is no way to claim against anyone else. If it is caused by the negligence of someone else then a recovery may be possible. This brings into play the doctrine of "proximate cause" to decide the "legal" cause of the damage.
Cheers
Bristol
Graham376
Well-Known Member
It is not a popular TV device. Your policy and mine may not cover Act of God but I can assure you it was used as the reason for a Portuguese registered boat's insurance company not paying out when a mooring dragged in high winds and was later upheld in court action.
Here's one explanation - https://www.confused.com/home-insurance/guides/confused-com-explain-acts-of-god-in-home-insurance
P.S. Copied and pasted from a legal dictionary -
Act of God
An event that directly and exclusively results from the occurrence of natural causes that could not have been prevented by the exercise of foresight or caution; an inevitable accident.
Courts have recognized various events as acts of God—tornadoes, earthquakes, death, extraordinarily high tides, violent winds, and floods. Many insurance policies for property damage exclude from their protection damage caused by acts of God.
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Bristolfashion
Well-Known Member
Well, both my household and marine policies cover all those things. I'm only an expert in UK & Australian insurance and in neither of those jurisdictions is the expression "Act of God" used now. The OP is in Australia.
I have no expertise in Portuguese insurance, but it sounds like the court were deciding on legal liability NOT an insurance clause.
The explanation on "Confused" is just that - hopelessly confused - storm, tempest, hurricane, earthquake, tornado, these are the very things that ARE covered under normal property damage policies. Look in your own household policy.
The example they use of "your roof falling off" as an example of something that is covered is hopeless. It will be covered only if the cause of it falling off is covered. If it is a storm etc, it will be covered, if "wear & tear", not.
Cheers
Bristol
I have no expertise in Portuguese insurance, but it sounds like the court were deciding on legal liability NOT an insurance clause.
The explanation on "Confused" is just that - hopelessly confused - storm, tempest, hurricane, earthquake, tornado, these are the very things that ARE covered under normal property damage policies. Look in your own household policy.
The example they use of "your roof falling off" as an example of something that is covered is hopeless. It will be covered only if the cause of it falling off is covered. If it is a storm etc, it will be covered, if "wear & tear", not.
Cheers
Bristol
Tranona
Well-Known Member
You seem to be getting confused about what is in an all risks policy which does normally include those things that may damage your property and what is covered by your third party insurance. The latter only covers damage caused to others through your negligence.
That difference is at the centre of this discussion and. Graham is right a third party c!aim for damage not caused by negligence would be rejected and Act if God is a useful term to cover it.
That difference is at the centre of this discussion and. Graham is right a third party c!aim for damage not caused by negligence would be rejected and Act if God is a useful term to cover it.
