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  1. #31
    Join Date
    Nov 2007
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    31,636

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Quote Originally Posted by Triassic View Post
    If the mooring is appropriate and in good condition then why did it fail? If the mooring itself didn't fail then was it the way the vessel was secured to it? Either way if only one vessel amongst many came adrift that tends to suggest it is not unreasonable to have expected it not to do so.
    "Expectations" do not lead to negligence.

    As I said earlier it depends on the detail of the case. my boat in 1987 was on a perfectly suitable mooring that had been there (maintained of course) for decades. Still ended up on the beach in the storm as did several others, but not all, including boats adjacent to mine. The boat hit others on the way. A negligence claim would not have been successful against the yard as I would have been unable to show that they had failed to provide an appropriate mooring as nothing would have withstood reliably against such extreme weather. my insurance paid for my damage and I had no claims from the boats that were hit.

    You have to recognise that sometimes s**t happens despite the boat owner's best endeavours. Remember it is not the boat that can be sued, but the owner, who may just as easily be you. Would you like to be liable for things that happen which are out of your control?

    By not insuring All Risk it is the owner of the damaged boat who is assuming the risk of damage which is nobody's fault.

  2. #32
    Join Date
    May 2007
    Posts
    32,046

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Quote Originally Posted by Triassic View Post
    If the mooring is appropriate and in good condition then why did it fail? If the mooring itself didn't fail then was it the way the vessel was secured to it? Either way if only one vessel amongst many came adrift that tends to suggest it is not unreasonable to have expected it not to do so.
    Exactly.
    Choosing to leave your boat on a mooring during the winter, when common practice is to have the boat ashore, might be enough negligence for you to be liable for the consequences.
    Storms happen. Not to be ready for a run-of-the-mill storm is negligence, being caught out by a once in a century freak storm might not be.
    In my view, civil law is fickle.
    Suing another boat owner for negligence, when you yourself have not taken the very basic precaution of getting insurance seems quite likely to end in tears.
    After all, the other owner probalby has taken the same course of action as the boat that got hit, i.e. trusting a very similar mooring in the same circumstances.
    OTOH, if the boats that broke free were on moorings which were underspecified, or not maintained for some years, that might make a difference.

    The boat needs fixing.
    Get it fixed, move on.

    The system is:
    We should all be insured, for events we can't take in our stride.
    If it's clearly someone elses fault and I can keep my NCB, that's better, but there is an outside change of things going wrong which are not much of anyone's fault.
    I insure my house with a fat excess, because I'll take ordinary setbacks on the chin, but if it gets struck by lightning, I'm covered.

    Having said all that, marine insurers are often very reasonable with third party claims, so maybe it's worth trying one's luck.
    I once had a 3rd party claim against me for a couple of hundred quid in a dinghy racing incident, my insurer paid up and my premium didn't go up significantly.
    Not worth the cost and effort of arguing, and some goodwill is generated.

  3. #33
    Join Date
    May 2018
    Posts
    28

    Default Re: Damage by boat drifting onto mooring in Tasmania

    The whole "Act of God" thing is very popular on the TV, but is nothing to do with modern insurance.

    When it comes to damage to your own yacht, the events that arè covered or excluded are clearly outlined in the policy document - and " Act of God" is not mentioned.

    When it comes to damage that you do to someone else's property (3rd party or liability cover), this will cover your legal liability. Legal liability typically arises under a tort (negligence, nuisance) or some form of Act, Regulation etc made by (or under the authority of) parliament.

    In this case, the question is, "was anyone negligent?". It could be the other owner, mooring contractor or someone else. If the event occurred without there being a legally liable party, there is no avenue of recovery.

    It's a pretty important principal. Otherwise we might have to pay up for things where we have no responsibility.

    Cheers

    Bristol

    P.s. We are currently cruising in Tasmania. Boy, it's a beautiful place, but do they have some weather!
    Last edited by Bristolfashion; 19-05-18 at 23:11.

  4. #34
    Join Date
    May 2007
    Posts
    6,991

    Default Re: Damage by boat drifting onto mooring in Tasmania

    I think he has got away with it lightly really. If the boot was on the other foot and it was his yacht that did the damage to other boats, not having insurance could have possibly bankrupted him if claims were made against him.

  5. #35
    Join Date
    Apr 2018
    Location
    Mooring, Faro
    Posts
    424

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Quote Originally Posted by Bristolfashion View Post
    The whole "Act of God" thing is very popular on the TV, but is nothing to do with modern insurance.
    You're missing the point. Act of God is enshrined in law in some countries so, if the event was deemed Act of God, it's not an insured event so won't be mentioned in Risks Covered. Could possibly be listed under Exclusions though.

    P.S. Just done a quick Google for Insurance & Act of God - Definition. An accident or event resulting from natural causes, without human intervention or agency, and one that could not have been prevented by reasonable foresight or care—for example, floods, lightning, earthquake, or storms. This is a peril terminology found in ocean and inland marine policies.
    Last edited by Graham376; 24-05-18 at 08:24.

  6. #36
    Join Date
    May 2018
    Posts
    28

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Quote Originally Posted by Graham376 View Post
    You're missing the point. Act of God is enshrined in law in some countries so, if the event was deemed Act of God, it's not an insured event so won't be mentioned in Risks Covered. Could possibly be listed under Exclusions though.

    P.S. Just done a quick Google for Insurance & Act of God - Definition. An accident or event resulting from natural causes, without human intervention or agency, and one that could not have been prevented by reasonable foresight or care—for example, floods, lightning, earthquake, or storms. This is a peril terminology found in ocean and inland marine policies.
    I'm afraid that is misleading. All those events you mention that you claim are excluded from an insurance policy as "Acts of God" ARE covered in a standard insurance policy. Modern UK & Australian policies never use the expression "Act of God" in any context. Instead, there is a clear listing of what is covered and what is excluded.

    As a double check I've pulled out my Australian marine policy.

    As I said, it's a popular device on TV and in films, but is not relevant to modern insurance.

    Where it might be confusing is the situation mentioned by the OP. If the damage caused is due to the exceptional storm, then there is no way to claim against anyone else. If it is caused by the negligence of someone else then a recovery may be possible. This brings into play the doctrine of "proximate cause" to decide the "legal" cause of the damage.

    Cheers

    Bristol

  7. #37
    Join Date
    Apr 2018
    Location
    Mooring, Faro
    Posts
    424

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Quote Originally Posted by Bristolfashion View Post
    As I said, it's a popular device on TV and in films, but is not relevant to modern insurance.
    It is not a popular TV device. Your policy and mine may not cover Act of God but I can assure you it was used as the reason for a Portuguese registered boat's insurance company not paying out when a mooring dragged in high winds and was later upheld in court action.

    Here's one explanation - https://www.confused.com/home-insura...home-insurance

    P.S. Copied and pasted from a legal dictionary -

    Act of God
    An event that directly and exclusively results from the occurrence of natural causes that could not have been prevented by the exercise of foresight or caution; an inevitable accident.

    Courts have recognized various events as acts of God—tornadoes, earthquakes, death, extraordinarily high tides, violent winds, and floods. Many insurance policies for property damage exclude from their protection damage caused by acts of God.
    Last edited by Graham376; 25-05-18 at 00:41.

  8. #38
    Join Date
    May 2018
    Posts
    28

    Default Re: Damage by boat drifting onto mooring in Tasmania

    Well, both my household and marine policies cover all those things. I'm only an expert in UK & Australian insurance and in neither of those jurisdictions is the expression "Act of God" used now. The OP is in Australia.

    I have no expertise in Portuguese insurance, but it sounds like the court were deciding on legal liability NOT an insurance clause.

    The explanation on "Confused" is just that - hopelessly confused - storm, tempest, hurricane, earthquake, tornado, these are the very things that ARE covered under normal property damage policies. Look in your own household policy.

    The example they use of "your roof falling off" as an example of something that is covered is hopeless. It will be covered only if the cause of it falling off is covered. If it is a storm etc, it will be covered, if "wear & tear", not.

    Cheers

    Bristol

  9. #39
    Join Date
    Nov 2007
    Posts
    31,636

    Default Re: Damage by boat drifting onto mooring in Tasmania

    You seem to be getting confused about what is in an all risks policy which does normally include those things that may damage your property and what is covered by your third party insurance. The latter only covers damage caused to others through your negligence.

    That difference is at the centre of this discussion and. Graham is right a third party c!aim for damage not caused by negligence would be rejected and Act if God is a useful term to cover it.

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