If the mast comes from above and then does not want to pay the insurance, the trouble is great
The case: In a gusty easterly wind - around 5 Beaufort - Michael Sanders is busy with his GPS device installed in the cockpit for a moment too long. There is a momentous patent neck. The aluminum mast breaks through almost at right angles just below the boom fitting. Before Sanders can recover the mainsail, the mast bends to port.
A few minutes ago he wanted to set the Bullentalje, but then first checked his position and course. It was too late now! After arriving at the home port, the skipper reports the incident to his comprehensive insurance immediately. He fears the objection of gross negligence and truthfully explains that his wife sat seasick on the companionway, so that he was on his own in the cockpit and a little overwhelmed. That was the only reason he had occupied himself with the navigation before the Bullentalje was set.
After a few days, the insurance company will inform you in writing that gross negligence will in fact not be accepted. At the time of the mast break, however, it should be assumed that the ship was unseaworthy, and that your serial ship of this size and design would have to withstand turning maneuvers in gusty winds of force 5 without any problems. There could also be no question of exceptional weather conditions.
In addition, so-called all-risk coverage has not been agreed. The insurance is therefore exempt from payment according to the agreed reasons for exclusion. Owner Sanders is shocked: "The broken mast was only three years old! Why do you have comprehensive insurance?"
ADDITIONAL LAWYER DR. HEYKO WYCHODIL
Owner Michael Sanders is right. He can demand that his comprehensive insurance cover the repair costs, even if no all-risk cover is agreed in his insurance contract. In principle, the legal concept applies that the comprehensive insurance is exempt from payment if the ship was unseaworthy at the time the damage occurred. Especially since unseaworthiness was defined as a reason for exclusion within the framework of the underlying insurance conditions.
Unseaworthiness means the inherent inability of the yacht to withstand the usual inevitable dangers of the sea. Corresponding exclusion clauses can be found regularly in comprehensive insurance contracts. Unseaworthiness can exist, for example, if a design or material defect results in damage, such as a breakage of the mast. Or if the ship is no longer able to withstand the stresses of the sea due to normal lack of wear and tear. Such deficiencies in wear and tear can occur if, for example, the standing item has not been serviced for 15 years.
The question therefore arises whether Sanders ’ship must be considered unseaworthy because the mast did not survive a patent jibe without damage. If the mast had broken during a normal tack or jibe, this would indicate that the ship or the mast was unable to withstand the usual dangers at sea. As intended, an ocean-going yacht must be able to turn and jibe under sail without the mast coming from above. Insofar, the insurance company is right.
Fair insurance covers the risk of design flaws
However, the objection of alleged unseaworthiness is often misused as a blanket argument to defend against claims. The situation is different with the patent neck. Due to the uncontrolled swinging of the main boom, this leads to an extraordinarily heavy load on the rig. Supported by swell, the calculated load limits of the mast can be exceeded. The insurance company makes it too easy for itself if it simply relies on the presumption of unseaworthiness. Because in the present case an external event caused the mast break.
Therefore: Whenever the own comprehensive insurance raises the objection that the ship is allegedly unseaworthy, the policyholder must first prove the involvement of an external event. In return, the insurance company must confirm that there is an exception such as construction or prove material defects. This proof will only have to be provided via an expert report
If the expert does not confirm a construction or material defect, the comprehensive insurance is obliged to pay. If, on the other hand, the insurance company succeeds in proving that a design fault was just one of several reasons for the material failure, its obligation to provide benefits is completely eliminated.
Since the exceptions in comprehensive insurance contracts are worded differently, it is advisable to carefully examine the "small print". There are insurance policies that also cover the risk of design, manufacturing and material defects.
published in YACHT 18/2004