Liability - any experts?

[Sea-Fever]

Would anyone be able to give me a brief summary of a private yacht owner's liability for claims made by guests if something terrible, or even not so terrible were to happen aboard?

Assume perhaps that I invite a friend, give them a lifejacket that fails to inflate, or a guard wire breaks and they go for a swim but don't bob back up to the surface....etc....that sort of thing.

I asked a friend along the other day for a delivery trip of sorts...I said that I did not vouch for any equipment or the boat as I had no experience of it (in fact it was a new to me, but old, boat)....he seemed happy enough but I was a little embarrassed to have said it and I am interested to know the legal position.

 

[MoodySabre]

My GJW policy includes Third Party and Passenger Liability cover of £5m. Providing them with an unchecked and faulty lifejacket might leave you open a personal negligence claim. I usually wear my own lifejacket on other peoples boats. Provided boat equipment has been checked and maintained properly then the insurance should cover it. READ YOUR POLICY.

 

[[3889]]

My policy states:
What is covered. Cover is provided for any sums (up to the amount stated in the Certificate of Insurance) that You, or anyone in charge of the Vessel with Your consent, are legally liable to pay arising out of Your interest in the Vessel, resulting from: 1.1 damage to any other vessel or property; 1.2 death or injury; ( my bold)
However, on a recent thread I started regarding professional skipper's liabilty I was lead to believe that this clause did not exclude action against me for tortuous negligence. Unfortunately this concept was not explained in sufficient detail for me to understand so I've blundered on in blissful ignorance.

 

[Sea-Fever]

My GJW policy includes Third Party and Passenger Liability cover of £5m. Providing them with an unchecked and faulty lifejacket might leave you open a personal negligence claim. I usually wear my own lifejacket on other peoples boats. Provided boat equipment has been checked and maintained properly then the insurance should cover it. READ YOUR POLICY.

Thanks, I am also with GJW .... There's such myriad ways of hurting yourself on a boat that to check everything and maintain everything so that an accident can't happen is beyond what 95% of yacht owners do - or am I in the minority? Everybody checked the jubilee clips on their seacocks this week? No?

 

[johnalison]

I would hope that the legal position would be based on what a reasonably competent sailor would do. If a lifejacket has been checked that season and found in working order and necessary parts replaced, then I can't see that the owner would be found to be at fault.

The last guest injury I heard of was a crew member who helped a friend with a sound old boat to St Helier. As the owner steered into the pontoon berth the crew at the bow attempted to jump, unasked, over the pulpit, but caught his foot and broke his leg nastily. I think it was complicated by the owner of the broken leg getting a venous thrombosis when flown home. Moral, don't even think of asking your crew to jump ashore, as if you would.

 

[Sea-Fever]

My policy states:
What is covered. Cover is provided for any sums (up to the amount stated in the Certificate of Insurance) that You, or anyone in charge of the Vessel with Your consent, are legally liable to pay arising out of Your interest in the Vessel, resulting from: 1.1 damage to any other vessel or property; 1.2 death or injury; ( my bold)
However, on a recent thread I started regarding professional skipper's liabilty I was lead to believe that this clause did not exclude action against me for tortuous negligence. Unfortunately this concept was not explained in sufficient detail for me to understand so I've blundered on in blissful ignorance.

...and I suspect that is what i am going to do as well ;-)

 

[prv]

The fact that you're on a boat doesn't have any particular legal significance, so it would be like any other situation in life where something you do (or don't do) ends up hurting someone else.

This simple summary of tort law seems useful.

Pete

 

[scottie]

So you accidentally gybe and somebody get a serious head injury their dependents my hold you liable
Friendship often go out the window in these cases.

 

[dgadee]

The fact that you're on a boat doesn't have any particular legal significance, so it would be like any other situation in life where something you do (or don't do) ends up hurting someone else.

This simple summary of tort law seems useful.

Pete

Simplest statement is from the adverts: "Where there's blame there's a claim".

 

[[3889]]

So you accidentally gybe and somebody get a serious head injury their dependents my hold you liable
Friendship often go out the window in these cases.

Yes, which is why, ostensibly, the death and injury clause emboldened in post #3, or a variation of it, is in every yacht policy I have ever seen. Not really any different to car insurance covering claims from passangers or other 3rd parties, excepting that car insurance is a legal requirement.

 

[prv]

Simplest statement is from the adverts: "Where there's blame there's a claim".

Which is glib, but really only raises two questions -

1) Is there blame?
2) Is there a realistic prospect of this claim succeeding?

I can sue you for wearing green socks if I want to, but that doesn't mean I'll win.

Pete

 

[mainsail1]

If I was you I would relax and enjoy your sailing.
The chances of an serious accident happening are minimal if you are sensible and if you have a policy covering the boat that includes liability to third parties, which you say you have, the Insurer should take all the grief if someone claims against you whether rightly or wrongly. I would not dream of telling my crew that I somehow would not be liable for their accident because until it happens you don't know who is at fault. If you are at fault that is what you have insurance to cover.

 

[Sea-Fever]

If I was you I would relax and enjoy your sailing.
The chances of an serious accident happening are minimal if you are sensible and if you have a policy covering the boat that includes liability to third parties, which you say you have, the Insurer should take all the grief if someone claims against you whether rightly or wrongly. I would not dream of telling my crew that I somehow would not be liable for their accident because until it happens you don't know who is at fault. If you are at fault that is what you have insurance to cover.

It was more of a moral thing really, I felt like I should explain to him that I didn't really know the boat or the gear and therefore couldn't vouch for any of it. I know the square root of nothing when it comes to civil law....insurance deals with losses, or potential losses, but I find it interesting that any sort of liability can exist when not in the course of a business and not criminal in nature.....I don't lose sleep over it at all....was just interested.

 

[Sea-Fever]

The fact that you're on a boat doesn't have any particular legal significance, so it would be like any other situation in life where something you do (or don't do) ends up hurting someone else.

This simple summary of tort law seems useful.

Pete

Ah...this was very interesting and is exactly what i was talking about - a liability arising not from criminal or contractual conduct....I never knew that was, in essence, what tort was. You learn something new every day.

And it looks like this phrase is everybody's friend... Volenti non fit injuria !!!

I'll just get all my visiting mates to sign a disclaimer!

Thanks for the link.

 

[Tranona]

The argument it usually about duty of care and whether that has been breached. Normally it is difficult to show duty of care in social situations such as mates sailing with you unless you specifically ask somebody to do something that goes wrong - the jumping off the boat being a good example. It changes if there is a professional relationship such as under instruction where the instructor owes a duty of care.

In either case though that is what insurance is for - to protect you against such claims even if it is shown there is a breach. not that having insurance should change your behaviour and still makes sense to try and ensure you don't put your guests in positions that might cause them harm.

 

[prv]

Normally it is difficult to show duty of care in social situations such as mates sailing with you

I don't think I agree with this. The phrase does come up more often when there's some sort of professional or other structured relationship, but in law you can have a duty of care to other people in a far wider range of situations. Trimming your front hedge, for example, you might have a duty of care to people passing by on the pavement who you've never even met.

The reason it matters more for charter skippers, instructors, etc is that the duty of care is easier to breach, because they're held to a higher standard by virtue of their specialist skills. The OP would only breach his duty of care if he did something no reasonable amateur skipper would do, which had a forseeable risk of the accident in question happening as a result. Mistakes are allowed, he's not required to be perfect.

Pete

 

[dom]

FWIW I spoke to a lawyer with knowledge of this area about the possibility of taking a number of friends out for a day to Cowes. Seems like this is the usual grey area with aspects of both Civil and Criminal Law.

Advice was to give a comprehensive safety briefing before departure, to ensure boat was well maintained, to not take more people than it is coded to carry, to limit alcohol consumption to 'sensible' levels, and to avoid lending fast toys to anyone who has consumed alcohol and/or not sufficiently qualified/experienced to drive it. Apparently this area is light on case law, so definitives are hard to come by.

Seems like a bit of a stock answer, easy enough to comply with, but somewhat worrying nonetheless.

 

[Deleted member 36384]

The argument it usually about duty of care and whether that has been breached. Normally it is difficult to show duty of care in social situations such as mates sailing with you unless you specifically ask somebody to do something that goes wrong - the jumping off the boat being a good example. ...... .

The degree of Duty of Care in a leisure sailing situation could be demonstrated by comparing a skippers actions against the SOLAS requirements and the MCA guidelines on how they are applied e.g. planning and taking into consideration crew experience, weather, navigation and vessel capability etc. It is quite a neat way of eliminating ambiguity, follow the common sense guidelines and one should be performing a duty of care.

 

[Neil_Y]

I don't think I agree with this. The phrase does come up more often when there's some sort of professional or other structured relationship, but in law you can have a duty of care to other people in a far wider range of situations. Trimming your front hedge, for example, you might have a duty of care to people passing by on the pavement who you've never even met.

The reason it matters more for charter skippers, instructors, etc is that the duty of care is easier to breach, because they're held to a higher standard by virtue of their specialist skills. The OP would only breach his duty of care if he did something no reasonable amateur skipper would do, which had a forseeable risk of the accident in question happening as a result. Mistakes are allowed, he's not required to be perfect.

Pete

That makes sense.

I'd consider the fact that they were not forced to set foot on the boat in the first place, so they put themselves into danger by their actions. As a boat is or could be more dangerous than staying on the sofa. In contrast they stand to benefit from the exercise and fresh air.

In my view a deliberate act requires you too compensate a victim but an accident is an accident even if you've been a bit careless. As a commercial skipper I have insurance as I'm providing a service and as Pete said I would be held to a a higher standard. Question is do mates expect me to look after them? I have no idea but I'll ask them.

 

[Deleted member 36384]

.... I'd consider the fact that they were not forced to set foot on the boat in the first place, so they put themselves into danger by their actions. As a boat is or could be more dangerous than staying on the sofa. ......

The fact that they are ignorant of risk on a yacht actually makes the non professional skipper obliged to act to a higher standard to ensure that they do not harm their ignorant guests. I also don't think it is fair for your to ask your mates if they expect you to look after them, I think it is implicit and maybe a court would think so as well.