Insurance: Let-out clause? / Duty of care

just out of curiosity do any of you think the insurance company would have taken a different view if a very experienced yacht master was at the helm at the time?

Not such a likely scenario I know but not impossible by any means.
 
Not the point I was making. My point is that there is a big difference between manoeuvring a boat under engine in the confined space of a marina, and what happens under sail outside.
 
You'll find I did say the comments were made by someone else, and I did say they might be rubbish...... and they were meant as a humerous repost to TCM's post.

Irrelevant? Well, you could possibly say that for a great many of the posts made on this subject in the last few days, and at the time of the incident itself.....

As for whether or not humerous posts should be made on the subject, I'm sure I, and many others, would post differently if any human casualties had occurred....... but they didn't, fortunately.
 
Well, it answered most of your question if you could have been bothered to read carefully: first, the court and the insurer are much more likely to decide it on the gross negligence point, so manning probably won't be the issue, and the question is pretty much academic. Second as I mentioned the insurance policies tend to specify the minimum number of crew anyway in the special conditions anyway. Third, yes, expert witnesses can be called by both sides.

As a final note, you can take some comfort from the rule of legal interpretation which says that where a clause is ambiguous, it is construed against the person who is "offering" the clause. In other words, if it is not clear what level of manning the insurance clause is requiring, then the interpretation of the clause least favourable to the insurance company is taken.
 
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As a final note, you can take some comfort from the rule of legal interpretation which says that where a clause is ambiguous, it is construed against the person who is "offering" the clause. In other words, if it is not clear what level of manning the insurance clause is requiring, then the interpretation of the clause least favourable to the insurance company is taken.

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That's one of the most positive points to have emerged from this debate. Thanks.
 
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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.

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...........

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I don't think that negligence requires that you identify the danger. Broadly speaking the danger must have been reasonably foreseeable by the reasonable skipper of similar experience "on the Clapham Omnibus". It doesn't matter here anyway because he (most likely/so far as we know) did know about the cliffs.

Negligence is fairly well defined in the caselaw. Gross negligence is a more fuzzy concept. It boils down to the idea of really serious negligence. Judges have tried to describe it in various ways, but that's about as far as they got. It's something a bit short of recklessness (the next step up the legal ladder of culpability). Like an elephant, you know it when you see it.

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setting out at all in this vessel in those conditions (as reported) is hardly a reckless act

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I'm not sure what the forecast was but I don't see either that setting off in itself is going to be gross negligence. Probably not negligent either.
 
Oh dear, I think I missed out on the ravings and can't go back through all the posts to find out who's offended whom and what the argument was about. So apologies to whomever I'm offending by supporting someone against someone else, it's not intentional. But it seems to me that even IF he was close enough to hit it within a minute doing 10 knots then a minute is plenty of time for g/f to shriek that they're heading straight for the cliffs at high velocity (she must have seen them? He must have felt the gybe if that's what happened?), so he could clamber up the steps and round into the wind.

If they're more like, say, within 10 seconds distance of hitting it, then it's not time to go below to start fiddling with the GPS. And as a beginner he shouldn't be anywhere near that close to a cliff. Not even a minute away.

Just a thought: he might have been that close in because he wanted to impress the girlfriend?

Sorry if that repeats (I'm sure it does) what someone else has said!
 
we seem to be going round in circles for reasons I can't discern (yet)

my first paragraph yo quote back agrees your point about negligence (not as applied to this case but a general definition)

my second goes on to outline the factors that law currently uses to 'up' it to gross negligence and is a commonly quoted working definition I believe.

for gross negligence to exist you must have percieved the threat and carried on regardless of the risk to life (or property)

turning back to this case specifically, however you interpet it, what I fail to understand is the specific act you consider 'gross negligence' and why?

you have kindly agreed setting out probably wasn't it - what was?
 
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my second goes on to outline the factors that law currently uses to 'up' it to gross negligence and is a commonly quoted working definition I believe.

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for gross negligence to exist you must have percieved the threat and carried on (or property).

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Your definition comes from the criminal law on manslaughter where it is one step down from recklessness (you can commit manslaughter either by being intending to kill, being reckless, or being grossly negligent as to causing death). You have also got the idea that the risk must have been foreseen from the criminal law on manslaughter - it is important to manslaughter that the risk must have been actually foreseen, whether death was caused by direct intent, recklessness or gross negligence.

An insurance case is a civil matter, and the court should come at it in a slightly different way. It will look first at the civil definition of negligence, and then decide whether it was "gross". One of the key characteristics of negligence is that the damage must have been reasonably foreseeable, not that it must actually have been foreseen.

It's a subtle but important nuance.

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turning back to this case specifically, however you interpet it, what I fail to understand is the specific act you consider 'gross negligence' and why?

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I find it difficult to imagine a situation where you go so close in to cliffs that you could hit them while you "nipped below" would not be pretty negligent. Maybe he had some justification, but on the face of it... Especially if the weather wasn't good. And especially if he wasn't experienced. And especially if he hadn't worked out his position, and safe clearing transits or similar beforehand so that he didn't have to go below. And if he HAD to go below due to ill preparation or whatever, then he should first have turned the boat so that it was going away from the cliffs. Obviously we don't know the actual facts, but from what we've heard it doesn't surprise me the insurance don't want to settle the claim.
 
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would not be pretty negligent

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glad we are close enoough on the key issue relating to gross negligence - if you break down 'reasonably' to all intents and purposes you would have to establish that the particular individual was in a position to forsee.

however you remain to convince me that on the facts being discussed (let alone what may have happened!) gross negligence was as clear cut as your opening salvo indicated.
 
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if you break down 'reasonably' to all intents and purposes you would have to establish that the particular individual was in a position to forsee

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I don't think that the foreseeability issue is actually relevant here: if you sail close past rocks clearly marked on the chart it is definitely foreseeable that there is a risk that you might hit them. Unless of course you want to argue that the skipper could not have foreseen his own lack of foresight /forums/images/graemlins/wink.gif So it was a bit of an interesting legal aside, but I guess not relevant here.

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on the facts being discussed (let alone what may have happened!) gross negligence was as clear cut as your opening salvo indicated

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Sorry, my opening salvo was just trying to emphasise what I thought that the manning question was most likely not the key. We'll wait for the court to decide whether he qualifies for a Darwin Award. But put in technical legal terms the root question is: would the reasonable, competent skipper on the Clapham omnibus sail his boat straight into the bottom of a bloody great big cliff? /forums/images/graemlins/wink.gif
 
excellent progress.............

1. all day long people sail close to hazards and clearly don't forsee they will actually end up hitting them so lets put that one to bed.

2. Your last paragraph gets to the crux of your thinking - ie in the absence of mechanical failure someone has to have done something very wrong to have achieved this result. Agreed.
How they managed it and whether it was gross negligence will, again as you highlight, have to wait..............if the case ever gets to court we may find out.
 
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1. all day long people sail close to hazards and clearly don't forsee they will actually end up hitting them so lets put that one to bed.

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Ouch! Of course you don't have to foresee that you will actually hit something to be negligent. You don't even have to foresee that there is a possibility that you might hit it.

All you have to prove is that a reasonable person could foresee that if you sail close to rocks there is a remote possibility that you might just hit them. Every sailor knows (I hope) that it's a bad idea to sail into the yellow bits on the chart, so the question doesn't even arise.

Agree to your No. 2 - we'll wait and see if he wins his case.
 
Simon/Duncan
I just luv it when two legal eagles get together in a "for room" and start to argue a case!

It seems to me that you have proved "beyond all reasonable doubt" what the original poster was trying to ascertain, and that is insurance companies would probably use all and every method to NOT pay out a claim fully or otherwise, should one arise and that it is reasonable to assume that it may well come down to the "definitions" of words used in the policy.

A test for you both /forums/images/graemlins/tongue.gif

The RYA/MCA etc often use the word "competent"

How would you describe the word competent - who is competent?

In sailing terms, is it the guy that has sailed for years but has no "official" qualifications or is it the guy that can produce a piece of paper saying he's qualified because he's been on an official recognised course?

Discuss!

Peter.
 
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How would you describe the word competent - who is competent?

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Someone who isn't incompetent!

Qualifications not definitive by any means. But they do give an indication that the person might be competent.
 
Well this debate is at last being held in a sensible and intelligent fashion.

So let me ask a question

One of the issues raised was the question of "accidental damage"

I was and still am unclear as to the precise meaning of this in an insurance policy.

Apart from being struck by lightning there must be some element of negligence in any "accident" either on the part of the insured or on the part of another party.

If I "accidentally" damage my boat parking against the pontoon is that accidental damage for which I am insured or is it negligence for which I might or might not be insured depending on how my insurer views it or is it gross negligence for which I am not insurred.

And more difficult how do I know which of these alternatives apply an any given circumstances.

Its one thing to debate what a court may or may not say. For the ordinary man in the boat to take an insurance company to court is a prohibitively expensive exercise, particularly when the outcome rests on something with such a wooly definition of "gross negligence".

This effectively means that in most cases the relationship between the insurer and insured is a most unequal one, allowing the insurer to exploit this imbalance to evade his responsibilities - which was the crux, I think, of the previous debate.

I was happy with boat insurance until this subject came up last week!
 
I had always understood that insurance covered for negligence (not recklessness). 3rd party has to, because without negligence the 3rd party wouldn't have a claim anyway.

This discussion is heading towards suggesting that insurance wouldn't cover the consequences of negligence. If that was the case, it wouldn't be worth having. Anything conceivably preventable would described as negligence (not covered). Anything else is an "Act of God" (not covered either).
 
The damage while mooring your boat would be accidental as you didn't directly mean to do it. It was an 'accident'.

However if you put the engine in full ahead as you were approaching the pontoon and then went below to make a cup of tea the resulting crunch would be grossly negligent even if you didn't actually mean to hit the pontoon!
 
Yes, but the policies I looked at do cover you for simple negligence. I don't know if they all do. It's certainly true that policies will always contain plenty of exclusions though! It's important to make an honest/full application - of course you're not covered for anything you fail to/wrongly disclose
 
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The damage while mooring your boat would be accidental as you didn't directly mean to do it. It was an 'accident'

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And this brings us back to the incident that started this whole debate. The skipper of that vessel clearly "didn't directly mean to do it". It was an 'accident'.

Your additional paragraph about the skipper aiming for a pontoon and then going down below to make tea could only be compared with the case of the Wellworthy had the skipper set his boat on a collision course with the rocks - which he clearly hadn't.
 
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