What happened: A boat owner had his sailing yacht placed in outdoor storage by a winter storage operator. The storage operator took over the uncrating and also provided a storage trestle. He placed the boat in the tarmac yard of the business in such a way that it was well protected from the wind from the north-west, the main wind direction in the region, by the surrounding buildings.
Unlike other ships that were also parked in the yard, the mast was not additionally secured. The owner also attached a tarpaulin to protect the ship from the weather.
Hurricane from an unexpected direction
In February 2022, the low-pressure system Zeynap then moved across northern Germany from an atypical south-westerly direction. In gale-force winds of up to 120 km/h, the 6.5-tonne yacht fell off the trestle and damaged two neighbouring ships. The total damage exceeded 50,000 euros.
Fortunately, the boat owner had taken out hull insurance for the yacht. The insurance company reimbursed him for the damage. This saved the owner a lengthy legal dispute with the storage operator. When the insurance company demanded the money back from the storage operator, the latter refused to pay.
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He argued that he had concluded a rental agreement with the owner in which any liability for the stored boat was excluded except for intent and gross negligence. The insurance company took a different view and went to court.
Rental or storage contract?
On the one hand, the insurer complained that the bearing block was unsuitable for the weight of the ship and was also damaged. Furthermore, additional safety measures had been omitted despite the predicted storm. And finally, the ships had been parked too close together, so that the domino effect could have occurred in the first place.
The Hamburg Regional Court agreed with this view. More importantly, however, the judges clarified that the contract concluded between the owner and warehouse operator was not a rental contract at all, but rather a storage contract. The term "rental agreement" does not change this. The warehouse operator therefore not only had to provide a storage space, but was also responsible for the proper storage and security of the stored item.
This also includes further, independent safety measures if it is clear that, as in the present case, the parked ship covered with a tarpaulin would not withstand the forecast wind.
Warehouse operators have the burden of proof
According to Section 475 of the German Commercial Code, a warehouse keeper is liable for damage to stored goods unless it is unavoidable. However, the warehouse operator had to prove this, which he was unable to do. The regional court therefore ordered him to pay around 50,000 euros to the insurance company (Ref.: 417 HKO 47/23). The warehouse operator has lodged an appeal, meaning that the Hamburg Higher Regional Court will review the case again.
If the Higher Regional Court confirms the judgement, other boat owners whose boats suffer damage in winter storage will be able to invoke this in future, which the storage operator will have to take into account. What's more, contrary to some reports on the judgement, the judges did not fundamentally criticise the fact that the boat had been parked in the outdoor storage facility with its mast upright. They merely criticised the warehouse operator for not having additionally secured the rigging against the approaching storm.
Hull insurance protects against financial loss
Gunnar Brock, legal advisor at Hamburg-based yacht insurance broker Pantaenius, adds that boat owners need not worry about their insurance cover if the rig is left in winter storage. "Just because you don't lay the mast doesn't mean you jeopardise your hull cover," says Brock.
In general, the case shows how useful yacht hull insurance is for the time the ship is in winter storage. "Without insurance, you would have to take legal action against the storage operator yourself. That can be a lengthy process. And even if you win, in case of doubt you will only receive compensation within the scope of the storage operator's liability," explains Brock.
This means that, depending on the age of the ship, you may have to accept deductions when settling the claim. Brock: "A good hull insurance policy, on the other hand, does not provide for such age-related deductions."
