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Aleution Yacht's Polar Bear; Caught Fire

Discussion in 'General Yachting Discussion' started by travler, May 26, 2010.

  1. RER

    RER Senior Member

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    This is in the fine print on the back of a work order from another San Diego boatyard. I have one from Marine Group somewhere but can't find it right now - they all have something similar and you don't get hauled until somebody signs it.

    Attached Files:

  2. dennismc

    dennismc Senior Member

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    There are certain conditions in a contract that cannot be "written out" not sure about the negligence clause but would be surprised if that one would still stand in Court, I do not see an offsetting amount of "consideration" for the owner holding the yard clear of that one. The 33% percent of forgiveness in rates increase to keep that clause may not be considered as sufficient.
  3. dsharp

    dsharp Senior Member

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    I'm not sure the owner's insurance company would be bound by that agreement. I would think they would pay then go after any negligent parties.
  4. olderboater

    olderboater Senior Member

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    That is one possibility. The real problem becomes proving negligence. It's a pretty tough standard to show that it's far more than just screwing up. In some cases it would even have to be gross negligence to prevail. At this point we don't even know what took place.

    The other thing we don't know is were the people in the boat employees of the yard or not. If they were contractors then what kind of insurance did they have, if any.

    I've been in situations where welding was done in distribution centers or factories where there was some risk. Our insurer required, which we totally agreed with, that any time one welded indoors a second employee was standing beside them with a fire extinguisher. Were there any protective measures taken in this case? What is the norm or industry standard? Does the yard have any policies?
  5. Danvilletim

    Danvilletim Senior Member

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    That is crazy. They could kill you via neglect and not be held accountable.
    I'm sure there would be a way to write in a paragraph that would state the yard us responsible for delver by the boat with all work completed to specification. Which might offset an indemnification...
  6. olderboater

    olderboater Senior Member

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    No. Gross negligence still holds them responsible.


    Gross Negligence
    An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.

    Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care.

    Now each state defines it slightly different.
  7. ArielM

    ArielM Senior Member

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    Why would you have to prove negligence for the boat yard's insurance to pick up the tab? The boat yard carries general liability insurance which usually covers property damage. The owner's insurance will probably put responsibility on the boat yard, if the boat yard insurance doesn't accept responsibility, the boat owners insurance will cover the claim and file a suit against the boat yards insurance. I think the owner is safe.

    This is of course assuming the boat yard used their own welders and self performed all repairs.
  8. olderboater

    olderboater Senior Member

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    Because the owner probably signed a contract saying the yard would be held harmless and that he had insurance on his boat. If so, then that relieves the yard of responsibility other than negligence or gross negligence depending on the contract and jurisdiction.

    This is quite common in so many parts of your life. When you leave dry cleaning, do you read the signs on the wall and the fine print on your receipt? Look at household moving. Standard contract in the US limits the amount you can collect to 60 cents per pound. If you want more you have to get an additional policy.

    Every time you dock at a marina you probably agree to such a contract. If you rent an apartment you agree that the landlord isn't responsible for anything that happens to your belongings or property, that you are insuring it. Every time you park a car in a parking garage you agree not to hold them responsible if anything happens to it. Part of it makes sense that you don't end up with double insurance and that the responsible party is clearly spelled out. But then it does seem unfair when things happen that could have been prevented or avoided.
  9. chesapeake46

    chesapeake46 Senior Member

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    A fire watch.
    That is a requirement in any place I've ever worked.
    Common place event and second nature to any professional.
    I gotta believe anyone working on a vessel of that caliber is selling themselves as a professional.

    So, if he had a fire watch or even two and the accident still occurred, is it gross negligence ?
  10. olderboater

    olderboater Senior Member

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    In that case it would probably not be. One would say they took precautions and for whatever reason they failed.

    If on the other hand, a fire watch was their normal practice and that day they were short handed so the welder so they just directed the welder to proceed anyway, that could be gross negligence.

    But the burden on the plaintiff is to prove there was gross negligence and that often includes "experts" arguing back and forth and a long period of negotiation and litigation with perhaps a settlement immediately before the court case is scheduled. We also don't know what provisions are in their contract regarding perhaps mandatory arbitration as a means of settling any issues.
  11. ArielM

    ArielM Senior Member

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    I dont see why there has to be gross negligence oldboater. If the fire was a result of the boat yards work, then the boat yard was to some degree negligent and their insurance will be held liable. The plaintiff must prove that the fire was a result of negligence of the boat yard, but if the boat yard was the only one working on the boat then it shouldn't be hard to prove. There is always the possibility that there was some underlying circumstances which the boat yard was not aware of. For example the fuel tanks had a leak and the owner didn't tell the boat yard. The boat yard had proper welding protection but one spark was lit by the fuel. If a boat yard hauls a boat and drops it, they will be held liable right? If the boat yard was working on their own, and their actions caused a fire, then the boat yard insurance will ultimately have to pay. I dont see why you are making sound hard to do?
  12. olderboater

    olderboater Senior Member

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    Because it is very hard to do. There was a link in the thread to another yard's contract and it specifically used the term gross negligence. The fact there is a fire in no way indicates automatically it was gross negligence.

    Just because your actions cause a fire doesn't mean you're legally responsible. Understand the yard contracts are written by their lawyers to protect them. Most people glance at them and sign. Very few argue or send it to their lawyers for review.

    The reason I'm making it sound hard is that it typically is. Now we know nothing of what the circumstances here were. But the burden will be on the owner and their insurance to prove the yard is liable under whatever contract was signed.

    Next time you take your car for service read the entire front and back of the contract. You may be shocked. Some tell you that the car may be driven as part of the service and if there is an accident it will be under your insurance as the driver has your permission to drive. Now sometimes contracts can be too one sided and judges have been known to throw them out for that reason but that's rare.

    This isn't about right and wrong or what one would think should be, but about contract law. Now none of us have seen the contract in this instance, nor do we know what happened, so it's speculation.
  13. Danvilletim

    Danvilletim Senior Member

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    I just had the misery of trying to deal with this yard. I don't know what happened with the fire, but these guys just canceled a haul out that i had scheduled for a couple weeks after I asked if I could change some contract terms…

    I was going to even accept a hold harmless clause as my insurance did state they'd provide coverage (less deductible) but so much other stuff is unacceptable.. Work is warranted for only 30 days and claims have to made is 60 days. What motivation do they have to not cut corners? Can't sue 'em if the boat catches fire and you can't sue 'em if the boat sinks 2 months later.

    People are crazy to sign these contracts with the Marine Group. They're giving up their rights to their own assets as well as damage that could occur to other boats near your boat on fire..
  14. PacBlue

    PacBlue Senior Member

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    Go to boat yards that are recommended and it will usually save you the headaches.
  15. RER

    RER Senior Member

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    The work order I posted is from Shelter Island Boatyard. Driscoll's next door is basically the same. So is Nielsen-Beaumont. And so is Marine Group. They all are. In short they all say it's your boat and any claim for damage is on you and your insurance.

    Shelter Island and Driscolls have both dropped large boats in the past year and have actually broadened their liability waiver/disclaimer which has caused quite a kerfuffle around the bay. Boatyards are like dry cleaners - you really find out who you're doing business with when they wreck something.

    ...and unless you're going to spend enough money to maybe keep the place from going out of business, good luck finding a yard that's going to let you re-write their contract.
  16. Danvilletim

    Danvilletim Senior Member

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    The real trick is your insurance. About half the policies out there won't pay a dime if you sign away your rights w a hold harmless claim. Funny thing is they'd pay if you had nothing signed.
  17. NEO56

    NEO56 Member

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    I personally hate how litigious this society has become...I long for the old days, when a handshake and an Owner's pride dictated protocol. If the Owner of a yard screwed up, and knew it was his or his employee's fault...in order to maintain his good standing, it would come out of his pocket, knowing that he now had a customer for life....(sigh) those were the days. When and if I ever start dating again...I fully expect my date to show up with her attorney with God knows what kind of contracts I'll have to sign, just to buy her a drink! Don't laugh...it's coming to that.
  18. Capt J

    Capt J Senior Member

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    Read all of the fine print in the contract at the boat yard you take your boat to. You'll realize that you are basically signing away much of your legal rights.
  19. PacBlue

    PacBlue Senior Member

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    This reminds me of a 130' MY project I worked on with a very high net worth individual. It always surprised me that he was so willing to sign any contract without reading the details until he clarified the matter - essentially, he stated that contracts were meaningless, it is all meant to be worked out in the court system. He had absolutely no fear of taking on any entity in a legal battle, never let those mundane "details" bother him or lose a night's sleep over it.

    I also learned the difference between a $500/$1000/$1500+ per hour attorney and realized that these people are playing on a field that I'll never ever step foot upon.
  20. olderboater

    olderboater Senior Member

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    He has a point although I don't agree with doing things that way. But some people just are ready to litigate at any time. To me, I want a lawyer who will help me avoid litigation.

    Now as to some of the boatyard contracts. They reach a point that in having you sign away all your rights, they defeat themselves. They can end up being overridden in court. Courts ultimately will only let one sign away so many of their rights. In business, we had great lawyers, better than many of the small contractors we dealt with. But then we had a contract we used that protected them as much as us. Some used contracts that only protected them. Well there's a principal there that the courts often look at and that is not going to let you win simply because you were able to afford a better lawyer in writing the contract. Contracts written completely one sided sometimes get thrown out.

    I never sign any contract without reading every word and if it's a major contract it goes by my lawyer. She knows that I don't want to pick every word apart and make dozens of changes, but just don't want to sign something with major issues. She won't spend hours and bill thousands for a contract. She'll read it quickly and in an hour know what parts, if any, she finds objectionable.