Insurance: Let-out clause? / Duty of care

"even IF he was close enough to hit it within a minute doing 10 knots"

"Close enough" using these parameters, being pedantic, boils down to :-
1 nautical mile in 6 minutes,
= 1.7 cables
= 308 meters
= 338 yards
= 1/5th of a statute mile

Close, but, not exactly scraping barnacles off.

" He must have felt the gybe if that's what happened?), so he could clamber up the steps and round into the wind."

If he was the only one with any 'experience', albeit apparently limited, he must now think about turning the boat back on course (is it/isn't it on/off autopilot?) & handling the mainsheet (on coachroof?) to again gybe (controlled this time). Not easy when the main was driving hard on the new course & perhaps a little panic setting in. Might have been easier to continue rounding up into wind perhaps. Again easy for us to cast judgement from luxury of perceived hindsight (self included).

At least he had enough 'sense' to save himself + crew, so relatively happy ending (until SWMBO found out about crew. /forums/images/graemlins/shocked.gif)
 
totally agree!

sticking with the pontoon/berthing incident - you make it into a new port and have the choice of 2 berths; one right up on the lovely town quay and the other on a pontoon that would require you to get your tender out.

As you approach the quay the HM pops out and draws your attention to a sign highlighting the dangers of a submerged hazard just where you wanted to go - then heads off. It doesn't say no mooring just beware etc. You decide to moor there anyway because SWMBO doesn't like the dingy etc etc
You damage the rudder.
Same as the above - but no sign/no HM.

In the first I would suggest most insurers faced with the full picture would be in a position (against standard wordings) to repudite a claim but in the latter they wouldn't.

It has been suggested that the insurers don't always get advised of all the facts - but that's a different matter!
 
We'll see! Sounds like he has enough dosh left to take them to court...
 
Yup, presumably it was an accident. The nuances of exactly what course you've set are fine ones. He was in a danger area by the sound of it. Obviously he didn't make tea, it was GPS, which is a but more understandable - I was just making up an extreme example. We'll see whether he wins his case. Maybe it's being decided on a completely different issue anyway. Like whether the premiums had been up to date. Or something declared on the insurance form. It just seems the most likely one.

Gorra dash to hospital now!
 
the RYA use the word in both legal and non legal contexts. For the non legal I find a dictionary usefull ( /forums/images/graemlins/grin.gif) equally there are legal definitions.

Interestingly there can all so be some circular issues eg to be considered competent to undertake a task or function may require that you have been assesed as competent by an appropriate board - on top of that you may have some general factors as well eg having passed your driving test you are considered competent to take a car out on the road unaccompanied but were you to loose your sight your competence for that function would cease.
 
To throw a pebble into the pond, having read the Admiral policy wording online, I can find no reference to "gross negligence" at all.

Neither can I find the term in my own GJW policy.

In both policies, there is a reference to "Wilful misconduct"..... but this seems only to apply to third party liability. In the GJW policy, wilful misconduct is defined as "including but is not limited to conduct when under the influence of alcohol or prohibited drugs."

The Admiral policy, under it's third party liability section, uses the term "wilful misconduct", but in addition to recklessness.

As no doubt many people have been reading through their own policies recently, has anyone else come across the term "gross negligence" ??
 
[ QUOTE ]
...most insurers faced with the full picture would be in a position (against standard wordings) to repudite a claim but in the latter they wouldn't.

[/ QUOTE ]

Agreed..and I wouldn't blame them either in that instance. He knew he was putting his vessel at risk by mooring there - that seems pretty clear cut.

But this sailing close to rocks and then going below is a much greyer area. Many is the time I have run along the outside edge of the Gunfleet sands fairly close to for ten miles or so - roughly two hours of sailing. I have certainly relinquished the helm to a less experienced person on more than one occasion when going below to check position. Hitting sand is like hitting rocks - equally unyielding and in any sort of weather might easily lead to the loss of the vessel.

This whole business is very worrying.
 
agreed Peter - which is why I keep going on in threads highlighting that nowhere has it been stated that the insurer in this case is repudiating the claim on that basis at all!

1. It is being reported that these were the events leading up to the loss
2. It is being reported that the insurer hasn't paid up yet

It is being suggested that on the basis of the events happening as reported the insured will be pursuing a claim (and I for one would be concerned if it wasn't succesfull on that basis alone).

It has also been suggested (in posts on here) that the basis for the insurers non payment is nothing to do with the negiligence/gross negligence/bad seamanship etc.

Unfortunately (for the Insurer now) the stronger more clear cut their case the less likely it is to go to court and therefore that we are made aware of the details.

We will see.
 
Quite

But if I understand the argument put by Simon they do not specifcaly need to.

Accidental damage will result in the insurer accepting liability unless in their opinion the "accident" was caused by "gross negligence" in which case they will decline to meet the claim.

If you disagree you must go to court to seek a ruling on whether or not there was negligence and if so whether or not it was "gross"

You will of course have to meet both sets of costs if the insurer wins, and thats as well as the cost of the damage to your boat.

I think
 
I am not surprised - it's more of a concept in marine insurance but I wouldn't be surprised to see it appear in due course.

Having said that I wouldn't be surprised not to see it either because the existing wordings cover pretty much all aspects already.

Still trying to remember the marine case that brought it in - something in Singapore/FE and a ships captain are lurking in the (very) little grey cells..........
 
Most, if not all, of my grey cells got blitzed by alcohol in my youth..... but looking back through Simon's posts, in the first on this thread he says 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".

To my mind, simple as it is, if GJW (or Admiral, or anyone else, come to that) are selling me a "Plain Language" insurance policy that doesn't mention that specific term, it would seem a little mean and downright "dishonest" not to pay out whilst citing that.

Many people jumped into the "I'll never use Admiral again" on that (as I see it) basis, and yet if every other insurance company can use the same defence........

Of course, the obvious answer is not to do anything that might be seen as gross negligence.... but wouldn't the definition of that be down to experience levels, and what one might or might not be expected to know? ie, an RYA yachtmaster of 30 years experience, as opposed to someone with Day skipper and 1 years experience.

If they had identical accidents, could the Yachtmaster be penalised for gross negligence, yet the Day skipper be excused?

Interesting........
 
Hi, I'm just rushing through, so a quick response!

First, have a look at Pantaenius wording on the 8th page (numbered P.7) at paragraph 8 headed "Negligence": "gross negligence and wilful acts of an Insured... are not covered". That I believe is pretty standard.

I had a quick glance through the Admiral wording here. They expressly say they don't cover recklessness and wilful misconduct so far as third party liability is concerned in para B.3

They don't expressly mention gross negligence, wilful act etc. so far as I see on a quick reading in the context of insuring the vessel, but I think they rather do it the other way round: as far as cover of the vessel is concerned they say that they DO cover negligence (Para A.3), which is fine, everyone does, but they don't say that they cover recklessness, gross negligence (the distinction between recklessness and gross negligence is fine), wilful act or intentional behaviour. They don't have to say they won't cover them because they don't say that they DO cover it.

Anyway, as a matter or general insurance law, it is not possible to cover yourself for your own wilful act anyway, so it doesn't have to be written. I suspect that the same applies to recklessness and/or gross negligence too, but don't have time to look into cases!
 
[ QUOTE ]
"Negligence": "gross negligence and wilful acts of an Insured... are not covered". That I believe is pretty standard

[/ QUOTE ] going to have to disagree with that. Gross negligence simpy doesn't appear in many policies today - as already explained.

Will absolutely agree with your last pargraph.

Hope this is seen as consistent!

ps happy to fly up to Edinburgh and have a beer and a chat about this if you can fit it in.
 
[ QUOTE ]
an RYA yachtmaster of 30 years experience, as opposed to someone with Day skipper and 1 years experience.


[/ QUOTE ]

Should that matter?

Surely the insurers would have asked for "details" before issuing a policy - if they issued a policy knowing that the policy holder had disclosed his/her experience levels, they shouldn't be able to use that against them in any future claim?

I.E. I'm a day skipper and I've had an incident and need to claim against the policy - sorry sir we won't pay out, but would have done if you had been a YM.

Nah, I don't think so!

Peter.
 
[ QUOTE ]
ps happy to fly up to Edinburgh and have a beer and a chat about this if you can fit it in.

[/ QUOTE ]
Beer sounds good! Only I'm in Poland...

About the gross negligence/recklessness/wilful misconduct exclusion - S 55(2) of the Marine Insurance Act 1906 say that the insurer isn't liable for wilful misconduct of the insured. There's a fair amount of caselaw that says that wilful misconduct includes recklessness, in other words: the insurer needn't pay if the insured was reckless.

An example is Standard Marine Insurance Co. v Nome Beach. It's a US case, but the law is similar. The master had persisted in making for his destination through an icefield as there had been reports of discoveries of gold. The vessel struck some ice and sank. McPherson J held that the essence of 'wilful misconduct' was "Reckless exposure of the vessel to the perils of navigation knowing that she was not in a condition to encounter them".

An English case decided by Lord Denning, Compania Maritima v Oceanus, was also decided on the assumption that wilful misconduct includes recklessness and therefore wasn't insured.

So don't expect to be insured against your own recklessness, even if your policy doesn't expressly exclude it! As mentioned in earlier posts, gross negligence is a (slightly vague) concept very close to reckessness. Pantaenius use the "gross negligence" wording rather than recklessness, but the idea behind it is similar.
 
Re: Duty of care

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

[/ QUOTE ]

Shifting the focus only slightly, I'd very much like to read a clear exposition from legally-qualified forumeers ( "M'learned friends" ) regarding the degree of Duty of Care a court would expect from the likes of some of us.

It is my understanding, from a barrister involved in this field, that a court would expect a very considerably higher Duty of Care to be discharged by someone with 'professional' experience and/or qualifications, compared with that expected of your 'ordinary family guy'.

That would seem to translate into a potentially-draconian responsibility - for those of us who hold RYA Yachtmaster-Offshore or Yachtmaster-Ocean, with Commercial Endorsement, and the likes of qualified Cruising Instructors - in club and ordinary social sailing.

And also those who teach Shorebased stuff at FE Colleges..... and those who do occasional deliveries.

The advice I was given was to ensure that the potential liability ( to the full extent of one's personal assets ) was covered by adequate liability insurance - which is far from cheap - or to refuse the responsibilities.

It was Lord Denning, I believe, with his famous 'Man on the Clapham Omnibus' judgement, that first defined this gulf in the degree of responsibility we thoughtlessly take when we take over the helm.

Some of us are, I fear, very exposed on occasion.



/forums/images/graemlins/frown.gif
 
Re: Duty of care

Yes, it got a bit more complicated than the original man on the Clapham omnibus concept. You start to get the would an Ocean-Yachtmaster-with-30-years-experience-but-only-one-leg-sitting-on-the Clapham-Omnibus-think-the-course-of-action-was-reasonable scenario.

A lot has been written trying to define it, but broadly speaking more is expected of you the more experienced you are. It really comes back to the original idea behind it all of whether or not you've been negligent. What might be reasonable behaviour for a beginner might be negligent for a professional who ought to know better.
 
[ QUOTE ]


I.E. I'm a day skipper and I've had an incident and need to claim against the policy - sorry sir we won't pay out, but would have done if you had been a YM.

Nah, I don't think so!

Peter.

[/ QUOTE ]

I thought my example was the suggesting the opposite of that..... but hey ho! /forums/images/graemlins/wink.gif It's early in the morning and I might have missed something...... though from reading Simons last post your "Nah. I don't think so" might come back to haunt you one day! Hopefully not thoigh!

As far as I know, the "ticket" and experience might give a reduced premium, but given the same insurance company, the policy schedule might read exactly the same....... barring individual endorsements.

It sounds like a real can of worms though; thinking back to some of the cock ups I've made, and seen others make........ even something as simple as an accident whilst leaving an alongside berth "down tide" could fall into the "gross negligence" trap.
 
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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.

[/ QUOTE ]

Ten years ago you would have been right, however these days, what you were told over the telephone would take precidence. Sadly of course, you can't prove what you were told.

No with regard to the gas bottle warranty, the FOS (Financial Ombudsman Service) will not uphold the repudiation of a claim on the basis of non-compliance with a warranty unless the non-compliance is material to the loss. Of course your insurers may or may not tell you this.

To give a very simple and hypothetical example. If your home insurance carries a minimum security requirement that your front door should have a five lever mortice deadlock and you don't have one, but the burglar comes through the window, the insurer must demonstrate how the absense of the five lever mortice deadlock is material to the theft.
 
[ QUOTE ]
Yup, presumably it was an accident. The nuances of exactly what course you've set are fine ones. He was in a danger area by the sound of it. Obviously he didn't make tea, it was GPS, which is a but more understandable - I was just making up an extreme example. We'll see whether he wins his case. Maybe it's being decided on a completely different issue anyway. Like whether the premiums had been up to date. Or something declared on the insurance form. It just seems the most likely one.

Gorra dash to hospital now!

[/ QUOTE ]

Finally! In all these threads it seems that nobody is willing to acknowledge that we do not know the reason for the repudiation. It is assumed that it is because of gross-negligence. If it is, then the insurer will struggle with the FOS (it will not go to court). The liklihood is that there is another reason entirely, be that a misrepresentation at proposal stage or something none of us have yet thought of.
 
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