Bareboat charter boat collision

[sailingharry]

This is vastly different than the UPS truck hitting your car. That's an action the driver took. This is an act of God.



This is much more like your neighbor's tree falling on your car. If you don't have comprehensive, you don't have coverage. His insurance won't pay, because there is no legal obligation to pay (and even the best insurance companies don't pay "just because they feel they should.")



Here's a thought. All those people whose boats have been hit by a dragging boat and successfully got the other person's insurance to pay, speak up and tell us how it went. The damage happens often (in the realm of damages, anyway), so there ought to be a lot of experience to hear about.

[Dsanduril]

Originally Posted by redneckrob

Not sure why, after the OP mentioned it several times, everyone still seems unaware this happened in the United States and therefore the OP has full access to the US legal system and US officials. A company with whome you have no relationship who damages your property in the United States doesn't get to force you to settle in another country, or be relieved of liability because there was a hurricane, or most of the other pretty poor advice provided. This is no different from a UPS truck hitting your car in Topeka. You nicely ask them to pay to repair it, if they don't do so you hire an attorney and start a negative PR campaign. Neither will have "negative consequences" for you as a completely unrelated third party.

That's what I don't get either. Under some quirks of US and British maritime law the boat can be liable. To attach your lien you may attach your writ to the "mainmast" of the vessel. That is actually still part of the law surrounding vessel harm. The equivalent today is to notify the Coast Guard, who will investigate and has the power to seize the vessel for satisfaction of any award. All at zero cost to the injured party.

[redneckrob]

Originally Posted by sailingharry

This is vastly different than the UPS truck hitting your car. That's an action the driver took. This is an act of God.



This is much more like your neighbor's tree falling on your car. If you don't have comprehensive, you don't have coverage. His insurance won't pay, because there is no legal obligation to pay (and even the best insurance companies don't pay "just because they feel they should.")



Here's a thought. All those people whose boats have been hit by a dragging boat and successfully got the other person's insurance to pay, speak up and tell us how it went. The damage happens often (in the realm of damages, anyway), so there ought to be a lot of experience to hear about.

More like the UPS truck being parked without the parking brake and sliding into your car then; liability for negligence doesn't require positive action (driving into your car). It's nothing at all like a tree falling across property lines. And I race on a boat whose owner did successfully get the insurance of an anchor dragging boat to pay to fix the damages to his boat here in Annapolis. Second hand story except I saw the damages and got to hear the story unfold in real time every Friday for a couple months so I would bet a lot on the veracity of it. Except for the time it took it wasn't that difficult, the other insurance company certainly didn't try to pull the "act of God/tree falling" strategy.
Not to mention, the cost of bad publicity can greatly outweigh the cost of doing what you should regardless of liability. It's pretty clear that your average person would feel like big yacht charter company should pay for damages their big yachts cause regardless. That's a PR battle I'd take on any day and one I'd happily pay to avoid if I was DYC assuming the incident happened as conveyed here.

[wholybee]

There seems to be a large disagreement as to the extent of the damage. The charter company believes it to be cosmetic, which can be buffed out, and noted that a chip appeared to be older and there was an older epoxy repair in place.

The OP is talking about water ingress.

I don't the the OP has any action to take against the charter company unless/until a surveyor looks at the damage and can attribute it to the recent accident. The more time that passes the harder that will be to do.

[Carl-T705]

Well I feel boating has inherit dangers. You accepted all of them when you chose not to insure . I assume what you want is the boat fixed. It's difficult for me to understand you have cracked gel coat and ingress of water, there must be more damage . I would fix the boat after asking the liable party to suggest a repair facility . If they refuse to provide a repair place that suits you find your own , pay for it then move forward with seeking payment from them . In the end the boat will be fixed ,so why just wait on them to do something move forward on the repair and get past that phase of the issue.

[Lake-Effect]

The OP has long-since deserted the thread, but in true CF fashion we got 4+ pages of ruminating on what isn't very much information to begin with.

For me, I haven't seen much evidence to prove the OP's assertion that they blew them off. In fact, the one posted communication from DYC indicates that the OP was a no-show for an agreed-upon inspection...

But it was worthwhile to discuss the liability aspects, particularly that unless one can demonstrate negligence, dragging anchor in a storm is an act of God.

[redneckrob]

Originally Posted by Lake-Effect

But it was worthwhile to discuss the liability aspects, particularly that unless one can demonstrate negligence, dragging anchor in a storm is an act of God.

Is that spelled out in U.S. law or case law anywhere (citations required)? Or just armchair determination of how things "should be"? Like I said, I have witnessed someone get a payout without a lot of difficulty from a dragging anchor. Do you have any cases of a legal determination of "act of God therefore no liability" from an anchor drag? I think you're on pretty shaky legal ground if you think you're not entirely responsible for the damage your boat does to another boat, full stop.

[Cadence]

Originally Posted by diver14u

Hi, I'm not sure if I'm on the right thread, but wanted to know what others would do if a bareboat charter boat (from Dream Yacht Charter) dragged anchor, collided with your boat, cracked your gelcoat and you had water ingress. The company admitted to the accident in full on email and promised to repair the damage, but senior management tell you to go ahead and sue and say "our lawyers will have a field day".

And no, we don't have insurance - long story about being in the hurricane belt at the time - which is probably the reason for the brush-off, but I know as much as the next guy that the only people who win when you sue, are the lawyers.

Any advice?

I'm not sure your take on lawyers is correct. You are paying for their expertise. If they are working on a percentage above an offer or no offer, you both win. Here it is 1/3. 2/3 of something is better than nothing.

[Dsanduril]

Originally Posted by redneckrob

Is that spelled out in U.S. law or case law anywhere (citations required)? Or just armchair determination of how things "should be"? Like I said, I have witnessed someone get a payout without a lot of difficulty from a dragging anchor. Do you have any cases of a legal determination of "act of God therefore no liability" from an anchor drag? I think you're on pretty shaky legal ground if you think you're not entirely responsible for the damage your boat does to another boat, full stop.

Actually, it seems quite the opposite. Here's an article from nearly a century ago, and the way the legal system works overturning/overriding precedent (especially this much) takes some work.

From Motor Boating Magazine, October 1939, by Ridsdale Ellis

GENERAL PRINCIPLES GOVERNING LEGAL
LIABILITY IN THE CASE OF COLLISION DUE
TO YACHTS DRIFTING FROM THEIR MOORINGS

Legal Principle Relating to Liability Created by a Boat's Drifting Down on a Moored Boat

Statements of abstract legal principles are dangerous. Every reader clothes them with facts in his own way. The most satisfactory method seems to be to give illustrative cases with enough of the facts to show how the law may be applied. I use the term “may be" as almost every rule of law has exceptions to it based on unusual circumstances. It must be understood therefore that the particular facts in any case must be carefully studied to see if they parallel the facts in the court decisions relied upon. For example, what may be held entirely adequate precautions when anchoring in a very sheltered anchorage may be held wholly insufficient in an exposed roadstead.

In view of the foregoing I wish to emphasize the fact that when actual legal troubles arise or are anticipated, a lawyer should be consulted. This article is not intended to do more than point out to yachtsmen certain legal principles and general rules of conduct which will enable them to reduce greatly their chances of being required to pay damages, should their boats damage others.

Attention is also called to the fact that my discussion is confined to property injuries by boats dragging and/or breaking away from their moorings. Personal injury suits involve different principles. Likewise, cases involving collisions between moored vessels and those under way have not been considered.

Burden of Proof Is on Vessel Which Breaks or Drags Her Mooring to Show That She Used All Reasonable Precautions for Safe Mooring

This is a very well-established principle and I need cite only one typical case.
In Cornwall-Stella 1933 A.M.C. 161 the facts were that during a 45-53 mile wind the Cornwall went adrift and damaged the moored tug Stella.

Judge Campbell stated:
“In my opinion the Cornwall went adrift because of the improper way in which her lines were made fast. The Stella was a moored vessel and the presumption is that the drifting vessel was at fault.”

A vessel is under no legal obligation to use mooring tackle heavy enough to resist the impact of other vessels adrift coming down on her.

Sharpsburg Sand Co., v. Monongahela River Cons. Coal. Etc. Co.. 145 Fed. 424.
The Nora Costello, 46 Fed. 869.
Slover v. The Erie R. Car Float No. 4, 95 Fed. 495.

From the above-stated principle it follows that a vessel which breaks loose as the result of another colliding with her is not responsible for any damage she causes while adrift. In other words a boat owner is responsible only for injuries for which he is to blame as the result of his having failed to comply with his legal obligations i.e., the exercise of all reasonable precautions for safe mooring.

In Cecil County—Winnecone, I933 A.M.C. 170. 59 F. (2d) 660. the Cecil County dragged into and set the Winnecone adrift. It was held that the Winnecone was not at fault for collisions while adrift.

Acts of God

There is a widespread feeling that a hurricane is an Act of God and therefore no damages can be collected for injuries produced on other boats by a boat breaking her mooring or dragging her anchor. That is true only where all reasonable precautions were taken to prevent the breaking or dragging.

The Supreme Court of Alabama in Smith v. Western R. Co., 91 Ala. 455; 8 S. 754 in considering the liability of a railroad company for damages caused by heavy floods, said:

"While it is true that no human agency can prevent or stay an act of God the act itself being that of omnipotence and irresistible, it is frequently the case that the results or natural consequences of an act of God, by the exercise of reasonable foresight and prudence, may be foreseen and guarded against. When this can be done by the exercise of reasonable diligence and prudence, a failure to do so would be negligence, and subject the party upon whom this duty devolved to damages, although the original cause was an act of God."

While storms of sufficient severity to put a considerable percentage of the yachting fleets ashore do not occur every year they have occurred sufficiently often to constitute a known danger to be protected against.

William H. Koelbel in September 1939 Motorboating wrote:
“We need no expert meteorological advice now to appreciate that the West Indian tropical cyclone doesn’t always necessarily confine its activities solely to the West Indies or indeed to the tropics.

“As a matter of fact hurricanes have visited New York and surrounding areas before, as a survey of plotted records for nearly half a century clearly indicates.”

In Kulmis v. Lewis River Boom, etc. &. Co., 51 Wash 196, 201; 98 P. 655, the Court held that the fact that a flood does not occur every year does not render it “extraordinary” in the sense that it is to be deemed an act of God.

In Kansas Ciyy v. King, 65 Kan. 64, 66, 68 P. 1093, the Court said:
“It is true that the flood of 1892 may be said to have been an unusual one, but although unusual, it was such as had occasionally occurred, and which the city should have anticipated and provided against."

Hurricane Velocity of Wind no Defense When It Is Not Shown That Vessel Breaking or Dragging Her Mooring Was Adequately Moored

In Fulton Lighterage Co. v. Erie Railroad Co., 1934 A.M.C. 1388; 72 F. (2d) 283, Judge Chase stated that:
“(The wind) increased in velocity until by ten o’clock it was at gale force and continued to blow for some time at 72 miles per hour as shown by the three-cup anemometer at the Weather Bureau...A four-cup anemometer would have recorded it as a 94-mile wind which was nearly as high as any ever recorded in New York.

“In its effort to prove that the No. 231 was the victim of an inevitable accident in breaking adrift, its owner has as is entirely proper, made much of the exceedingly high wind which was blowing at the time but has failed to overcome the prima facie case against it since it failed to prove either that the boat was adequately moored or that, being made fast with due care, she broke away because the Loyal and Trenton drifted against her. . . . Other boats in the immediate vicinity whose lines were tended during the storm remained fast.”

Exceptional Care Required in Crowded Anchorage

In the William E. Refs, 152 Fed. 673, 676, the Court stated: “Sufficient warning (of the storm) was given and there was no justification for running the risk of allowing a large vessel like this to run amok where 50 or more were safely moored, yet liable to be cut down and sunk in case of disaster.”

[Lake-Effect]

I stand corrected, thanks - that the drifting boat's skipper has to prove that all reasonable precautions were taken.

[sailingharry]

Well, that's pretty clear.


Now, the drifting boat has to "prove" that all "reasonable precautions" have been taken. What are they?


My Saga 43 has a 55lb Rocna on 5/16 G4 chain. Is that reasonable? It is what Rocna recommends, but many on this forum would recommend at least on size larger.


I've always believe in 6-1 scope (including freeboard). I've seen many other recommended calculations, that depending on water can be more or less. Is 6-1 enough?


If the drifting boat has to prove that it was adequate -- well, the fact that it is drifting proves it was inadequate.


This has turned my understating of the world upside down.

[redneckrob]

Originally Posted by sailingharry

Well, that's pretty clear.


Now, the drifting boat has to "prove" that all "reasonable precautions" have been taken. What are they?


My Saga 43 has a 55lb Rocna on 5/16 G4 chain. Is that reasonable? It is what Rocna recommends, but many on this forum would recommend at least on size larger.


I've always believe in 6-1 scope (including freeboard). I've seen many other recommended calculations, that depending on water can be more or less. Is 6-1 enough?


If the drifting boat has to prove that it was adequate -- well, the fact that it is drifting proves it was inadequate.


This has turned my understating of the world upside down.

Kind of like when you run off the road in the snow you almost by definition qualify for the "Driving too fast for conditions" ticket right?

As a point of reference, there isn't a Coast Guard cutter that would ever even consider not having a live 24 hour anchor watch and engines ready to go within 60 seconds when at anchor, even small patrol boats. And if one ever dragged and damaged another boat, the CG would most certainly pay the claim and almost certainly relieve the skipper. I assume most merchant and Navy vessels use the same standard.

Obviously that's not really reasonable for us. But just because we can't reasonably do it doesn't mean the risk doesn't exist. The anchoring boat is accepting the risk that they might damage another boat, no matter if they realize it or not, every time they anchor. Which is why it would be crazy not to have liability insurance if you ever anchor and leave your boat, regardless of the value, condition, or replaceability of your own boat.

[sailingharry]

Originally Posted by redneckrob

Kind of like when you run off the road in the snow you almost by definition qualify for the "Driving too fast for conditions" ticket right?

As a point of reference, there isn't a Coast Guard cutter that would ever even consider not having a live 24 hour anchor watch and engines ready to go within 60 seconds when at anchor, even small patrol boats. And if one ever dragged and damaged another boat, the CG would most certainly pay the claim and almost certainly relieve the skipper. I assume most merchant and Navy vessels use the same standard.

Obviously that's not really reasonable for us. But just because we can't reasonably do it doesn't mean the risk doesn't exist. The anchoring boat is accepting the risk that they might damage another boat, no matter if they realize it or not, every time they anchor. Which is why it would be crazy not to have liability insurance if you ever anchor and leave your boat, regardless of the value, condition, or replaceability of your own boat.

Curiously, while I agree it is "not really reasonable for us," I think Newport has made it law (well, not a 24/7 watch, but 24/7 presence). So in their eyes, it is reasonable for us.

[Jim Cate]

Curiously, while I agree it is "not really reasonable for us," I think Newport has made it law (well, not a 24/7 watch, but 24/7 presence). So in their eyes, it is reasonable for us.

If such rules actually became universal, it would mean the end of cruising for most of us. The majority of serious cruising is done by couples, and requiring one to remain on board at all times would be completely untenable to most folks.

Let us hope that sanity (for once) rules, and this aberration does not become mainstream. We've managed to leave anchored boats untended for many years, as have all our cruising friends and acquaintances. There have been far more dragging events with folks on board than with unoccupied cruising boats... whatever t hat proves!

Jim

[diver14u]

Hello, please if you have Mr Loïc Bonnet email address could you forward it to me so I can correspond directly with him, your help with this would be very much appreciated.
Regards Shaun