I am in the middle of a dispute with a boatyard, my insurance company and my lawyer – all at the same time. My boat sank soon after a substantial amount of work was completed at a local boatyard. My insurance company paid the claim, but the boat was insured only for the purchase price, which was a lot less than my total investment in the boat after all the money I spent with the boatyard. To recover some of that loss, I looked into going after the yard for their negligence, but my attorney advised that the fine print on the back of the work order absolved the yard from any liability for negligence. My attorney also said that the language on the yard’s work order included a â subrogation waiver,â which could get me in trouble with my insurance company if I pursued the claim against the yard. Based on what he said, it looks like I have nowhere to go on this. Is he right?
Our reader’s attorney was probably right on this one (hard to believe, I know). Most shipyard work orders and repair estimates include two very powerful clauses that are designed to protect the yard from liability. These clauses are generally enforceable, and it is important for boat owners to understand the legal effect of these contractual provisions.
As noted by our reader, the first of these provisions is designed to relieve the yard of liability for their own negligence. These provisions are known as “”exculpatory clauses” or “red letter clauses,” and if they are properly worded they will absolve the yard from liability for everything short of a reckless or intentional act. Exculpatory clauses in marine contracts are seen in many transactions, ranging from yacht brokerage agreements to salvage contracts. We discussed these clauses in greater detail a few months ago in a previous installment of this column (see “Ask a Maritime Attorney; What Kind of Liability Release Is Required for a Raft-up?” The Log, March 18, 2010).
The other provision facing our reader is known as a “subrogation waiver.” These clauses are sneaky. They call for the boat owner to agree – on behalf of his or her own insurance company – that the insurance company will not pursue the boatyard for negligence after they pay a claim to the boat owner. The problem with this clause is that, if the boat owner agrees to this provision, he or she may be violating the terms of the insurance policy, which may lead to a denial of the insurance claim.
When an insurance company pays a claim to a boat owner, the company steps into the shoes of the boat owner with regard to any possible legal action against a third party who may have caused the loss. This process is known as “subrogation.” Since the insurer “steps into the shoes” of the owner, the insurer can have no greater rights than the owner, and the insurance company will probably be bound to an owner’s agreement to waive his or her claims against third parties. For this reason, most marine insurance policies include language that prevents the boat owner from waiving or otherwise interfering with the insurer’s subrogation rights.
We should note that our reader’s loss, in this case, was due primarily to the fact that his boat was under-insured. He had originally insured the boat for the purchase price, but he never thought to contact his insurance company after the work was done in the yard, to change the agreed value of the boat on the insurance policy. This may not have covered his entire loss, since his investment in the boat would probably exceed the boat’s actual market value after the job was completed, but it would certainly have covered a larger portion of the loss.
The main lesson to be learned from this case is the importance of keeping your insurance company informed about everything that may affect your boat’s insurance coverage. Here, our reader may have been fortunate to have received an insurance payoff after waiving his rights in a shipyard contract, but it would have been prudent for him to have contacted his insurance company for guidance before commencing the work at the yard. Similarly, he should have contacted his insurance company after the work was completed to update the insured value of the boat. And, as with any legal issue involving a boat, an experienced maritime attorney should be contacted for more specific information.
David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, is a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at (562) 438-8149 or at firstname.lastname@example.org.