Insurance: Let-out clause? / Duty of care

[Krusty]

The Admiral affair has raised a fair head of steam, but a cooler look into the implications could benefit most of us.
Looking (on-line) at yacht insurance policy wording, all those I've seen have some clause requiring 'the Insured' (or 'You') to exercise due care and diligence in maintaining the vessel in seaworthy condition, including by adequate manning (or similar wording). Common practice and common sense suggests this means adequate in number, strength, knowledge and experience for the voyage intended in the conditions to be expected.
I cannot believe any sensible and responsible person could take issue with that unless they do not understand the basis of insurance.
However, when it comes to application of such terms in relation to a specific claim, who makes the judgments?
In the first instance the insurer: and to the client it can then look like the 'let-out clause'. But that can be contested, and the issue taken the FSA.
My concern is: what do the FSA know about the adequacy or otherwise of the manning of yachts, in the above terms?
Do they retain a 'Expert', or a panel of experts, and against what standards are these assessments made?
As far as I am aware, there are none.
Many owners sail with just their own 'SWMBO' and no other crew. I am lucky; mine has the capabilities and experience (>30K) to co-skipper, but I know many are far less so. How would they stand with insurers if caught out? And who decides the issue at the end of the procedures? Can anyone shed light?
Has anyone any knowledge of such a dispute being taken to the FSA? or the Court?
This could be a whole lot more important to a lot of us than whether we are incensed by Admiral.

 

[Guest]

I think that'll you'll find that there's a standard exclusion in insurance policies that they don't have to pay if you've been "grossly negligent".

You've got to behave pretty stupidly to be grossly negligent. It's something dumber than normal negligence that you can be sued for under civil law.

Insurance policies won't insure you for deliberate acts either - if you deliberately run your boat onto rocks for fun. Gross negligence is a step down from that, but the idea is the same.

Sorry, it's not a direct answer to your question, but relevant anyway, I think.

 

[Guest]

From the little I've read about the case of the guy who ran his boat onto rocks, I wouldn't expect the insurance company to pay.

To take an analogy of insurance of valuable items like (my area of interest) cameras. If I left my cameras unattended lying the in the middle of a railway station, if someone picked them up I wouldn't expect the insurance to pay.

If I was inexperienced and left an even more inexperienced girlfriend in charge and "nipped below" to check the position while we were so close to very obvious rocks that there was any chance of hitting while I was doing the nipping, I would think my insurance company even dumber than me if they paid out.

Of course, we don't know all the facts - how on earth did they get so close to a bloody great cliff without seeing it that you could hit it while "nipping below" beggars belief, but it must have happened somehow, so presumably there's some explanation. But the explanation might just include being grossly negligent. Just guessing.

 

[AliM]

When we first got a boat, we had plenty of dinghy experience, but very little more. Our insurance company asked us to take someone experienced along until we felt confident - we didn't, of course. I wonder if they would have paid out if we'd claimed in those first few months.

 

[DJE]

Ultimately if there is no agreement the dispute will end up in court with expert witnesses called.
What niggles me is the expression of these conditions as warranties. The insured warrants that he will do something and if he does not the entire policy will lapse. My last insurers had a warranty that the gas installation should comply with current regulations and any revisions to those regulations. That seemed to me to give them an excuse to refuse a claim for say a boat breaking its moorings if it was found that the gas installation was not up to scratch. Of course when I asked them they said that the warranty would not be used in that way. But when the [--word removed--] hits the fan it is the exact wording that will matter not what somebody told me on the telephone.

 

[Krusty]

Yes, of course, that is well understood. But many skippers do not think of under-manning as ordinary negligence, let alone gross. Yet some insurers, perhaps most, evidently do.
Perhaps we had better get used to reading the policy terms more intently before we sign up.
I'll bet that any Insurer who does not regard manning as part of seaworthiness, or a skippers obligations under the contract, has premiums with an extra zero on the end!
However, the purpose of my post is to see whether anyone has any relevant answer to the questions I posed, not to start another 'off-at-a-tangent' debate,
Sorry!

 

[Guest]

I rather doubt that manning was the issue in this case, though it could have been an added factor. Just reading the reports of the case, it sounds like the guy would have been grossly negligence hitting the cliff even if he had an army of Yachtmasters on board.

As far as manning is concerned, my old policy for example originally expressly said there should be 2 on board. When I took up singlehanding, the insurance company said yes OK no problem. This would override anything in the general conditions about manning.

To put it another way, I think you're asking the wrong question. It's not what would a court think was adequate manning, the question should rather be at what point would a court consider that negligence was so bad that it was gross.

They decide it by reference to whether a reasonable skipper with similar levels of experience to this guy have would have decided what this guy did was a reasonable course of action in the circumstances. That's gets you to negligence. Yes, the court could take evidence from expert witnesses. Then, assuming they decide the guy was negligent, they have to decide just how gross mistake was.

 

[MoodySabre]

There is always going to be a grey area of whether 'competent' was 'competent enough' when an accident ensues. If said gentleman is suing Admiral then maybe this will clarify the position for all of us. I watch this with (vested) interest.

 

[Parsonsheath]

Admiral sold a policy of insurance, they assessed the risk on the facts, the guy was apparently light on experience and no doubt this was reflected in the premium.

Can I use a legal reference, "the egg shell skull case", a guy had a very fine/thin skull, it was argued that had he had a normal skull the force used on him would not have caused the injuries this guy suffered, the law said "you take your victim as you find him", in other words you must take into account the individual, his strengths and weaknesses, so since Admiral took their premium they have to look at the incident in the light of this guy's experience and ability, and to show "gross negligence" they need show he just walked away from something he could not cope with.

I was not there, but how many of us remember times when boats did not respond as we expected them to do in such conditions, who remembers the magnetic effect of large anchored craft? etc., etc!

The insuruers have got a hell of a way to go before I would touch them with the appropriate barge pole.

 

[Guest]

[ QUOTE ]
they have to look at the incident in the light of this guy's experience and ability,

[/ QUOTE ]
Of course they have to take the guy's experience into account. That's why I said that the court would look at whether a reasonable skipper with similar levels of experience would in those circumstances have regarded what he did as a reasonable course of action (that also assumes of course that he correctly disclosed what his level of experience was on the application form - we don't know if he did)

On teh face of it, I don't think that passing a cliff that close that a gybe or whatever could cause a crunch could be regarded as reasonable, ESPECIALLY for someone of his level of experience. No insurance company could be expected to pay out, so don't touch any insurance company with a bargepole, if you like!

 

[Krusty]

I started this thread in attempt to shed light on the process and procedures for resolution of the issues raised by any Insurer's 'get-out ' clause on manning.
All I have done is to re-ignite the opinionated debate on that bloody Anvil Point yacht!
It's like those 'social gatherings' where everyone opens their mouth but keeps their ears shut.
I'm off to do better things with my time.

 

[Robin]

Simon

Without wishing to get dragged into this again after last tango in Paris had his ravings, you might like to see these pics of the area taken from the cliffs which were lifted from another post recently, courtesy of RustyKnight, I hope he doesn't mind.

For the record the boat was identified as a Fairview Sailing School boat and the wind appears to be dead on the tail but rather more of it than on the Admiral incident day. Would the insurer's have accepted Fairview's experience as adequate I wonder?

Not making excuses for said pillock you understand but by way of enlightening those not familiar with the area. My guess is that a 47ft Benny that had accidentally gybed but with the main up as well could hit 9-10kts maybe on the opposite (beam) reach, how long do you have to sort it out at that speed if it happened just as they passed at the nearest spot to the cliffs? The route is a recognised inshore passage noted and advised in the pilots BTW.

Robin

The full post is here

 

[duncan]

agreeing your structure of negligence, but keeping it distanced from this case for various reasons, I struggle to make the same leap you seem to make regarding gross negligence.

a (there are more) definition is - "Failure to use even the slightest amount of care in a way that shows Recklessness or willful disregard for the safety of (others/material/anything for which a duty of care exists)"

Now of course Recklessness has a definition.......that revolves around unreasonable/departure from normality etc

basically you have to forsee a danger, that you are capable of avoiding, understand the likely consequences and still go ahead preferably without taking any mitigating actions...........

the key issue seems to be recognising the threat and it's implications and choosing to ignore it

bringing it back briefly to this case and the specifics mentioned - going below to check the navigation, were this to have been the direct cause of course, would surely be an error of judgement and is certainly not gross negligence; you have pervieved a threat and taken positive action (right or wrong)

setting out at all in this vessel in those conditions (as reported) is hardly a reckless act as many others are doing it and, of course, you are only retracing your steps so you have 'done it already'.

none of the above likely to be relevant to the insurers repudiation IMHO

 

[tcm]

yeah ok - but isn't your dumbness or otherwise what they evaluate befoe insuring? Imean,there mite be lots of circumstances that really hot sailor or spannerman could handle but not you/him. Bear in mind he did get the boat all the way past the other rocks before he hit these, so can't be utterly useless, sort of...

 

[Rustyknight]

Robin, no worries about you reposting the pics, especially as you credited them to me! /forums/images/graemlins/smile.gif

They are a little deceptive though, in regards to the distance offshore the boat was, as they were taken with a telephoto lens and heavily cropped. The image below is the uncut original.

As per the thread the first appeared in, the yacht had come from well outside the St. Albans race, and was about 3 to 4 hundred yards out as he went round Durlston head.

As you rightly say though, if you take the inshore passage round St. Albans, you're more often than not only 50 to 100 yards off the cliffs........ depending on conditions!

I guess thats where the experience comes in........ knowing how far off is far enough!

Looks like Fairview got it about right!

 

[Rustyknight]

[ QUOTE ]
so can't be utterly useless, sort of...

[/ QUOTE ]

At the time, the was a post made by a user name "Chindit" (Although it was his one and only post, to be fair, so maybe complete rubbish)......... sort of.

I am not really surprised by this incident having been within milimeters of being hit by Wellworthy in Yarmouth harbour the previous weekend. There was a clearly incompetent male at the helm and a poor helpless female at the bow. They got caught cross-tide by trying to turn the 47ft boat in the narrow fairway. The skipper had clearly not taken the flooding tide into account correctly before starting the manoevre in a fairway not much longer that his boat. Having slammed the gear leaver into "full ahead" after being yelled at by me, he almost took out the Harbour Master's launch and got yelled at by him! The harbour master then tried to take their lines but the boat got swept upstream (going astern) by the tide and eventually colided with a section of pontoon that by a miracle was unoccupied which is most unusual for Yarmouth. I would be interested to see the Yarmouth Harbour Master's views on the incident. It must have ranked as one of the most incompetent bits of seamanship I have seen - and I felt terriblysorry for the lady at the bow who was completely helpless.

I said to my crew that it would not be long before the chap caused some serious damage – he clearly did not have a clue – and nine days later did not have a boat either!

 

[Robin]

[ QUOTE ]
As per the thread the first appeared in, the yacht had come from well outside the St. Albans race, and was about 3 to 4 hundred yards out as he went round Durlston head.

As you rightly say though, if you take the inshore passage round St. Albans, you're more often than not only 50 to 100 yards off the cliffs........ depending on conditions!

I guess thats where the experience comes in........ knowing how far off is far enough!

[/ QUOTE ]

Careful, experience is a dirty word to some I found...

I would probably have had the genoa only too like Fairview but sometimes by the time you think of dropping to main only it is too late to take it down, but a dead run isn't a good idea and gybing downwind in the seastate off there isn't fun either.

At say 10kts (47ft beam reach after a gybe maybe?) he would do 337yds in one minute..........

Like TCM says too, they were very nearly past the close part and clear away, shame really.

Robin

 

[duncan]

10yds at 20knots for me - although there is one large rock about 100yds before the point itself near where they do the climbing that is best given another couple of feet /forums/images/graemlins/smile.gif

for those interested there's a really pretty ballan wrasse about 5lbs, red and white spots, lives under that rock too

 

[charles_reed]

I too sympathise

with the insurers in this case.

The skipper of the vessel showed conspicuously little common-sense:

1. In leaving it until too late to check the position of the rocks
2. Setting a course into, not out of, danger
3. putting an inexperienced person, without adequate briefing, onto the helm.

 

[Norman_E]

Whilst not wanting to enter the controversy about Admiral's refusal to pay out, I think that criticism of the boat owner because he got into difficulties trying to manoeuvre a big boat in a confined space is irrelevant. Clearly he did not hit any other boat, and I would suggest that most of us who sail fair sized cruisers have had some "moments" where wind, tide and prop walk conspire against them. Add in the problem that most UK marinas have pontoons crammed in so that the fairways are little more than a boat length wide and you have a recipe for near misses.
For myself, even without tide to contend with there have been several occasions (particularly if I have to back the boat in to starboard against the prop walk) where I have had to make more than one attempt to line the boat up with a narrow berth.