Patrick Bracher, Norton Rose Fulbright
A US case between an insured and an insurer involved the tale of the unluckiest yacht and the series of unfortunate events that she encountered.
In January 2013 a new expertly designed custom built yacht Fearless was insured for a year. Two days later she struck a submerged rock in the US Virgin Islands. In April 2013, before being moved for repairs, her captain discovered a crack in her hull along the aft section of her keel. Despite the crack, Fearless set sail for Florida.
During this voyage, on 13 March 2013, her previously repaired rudder fell off. When the Fearless finally arrived at the Florida shipyard, repairers recommended a replacement of a portion of the hull because the rock encounter had caused water to seep into the inner balsa which could lead to long-term decay. The work was never performed. For reasons unrelated to the events, the insurers cancelled the policy on 6 September 2013 agreeing to remain responsible for the repairs from the rock incident.
In October of 2014, the unlucky Fearless was docked near New Brunswick, Georgia when she was struck by lightning and again suffered substantial damage. The new insurer paid for the repairs but the work took till early 2016 to complete.
In the early morning of 9 March 2016, Fearless set sail from Georgia heading for South Carolina. Early that afternoon Fearless began taking on water. All the electronics on Fearless failed and her interior was knee-deep with water that had a film of acid floating on it when the Coast Guard ordered the captain and his mate off the poor Fearless. Fearless sank into the water and was later found several nautical miles from where she had been anchored, with her massive keel missing.
Attempts by the owners to ascribe the loss of the vessel to the original rock event failed for some intricate procedural and legal grounds under US law.
We usually say whether on the same facts the same result would follow in South Africa. These facts will never be repeated. They do illustrate why assets should be insured.
D&B Marine, LLC v AIG Property Casualty Co. case no COA22-546 in the Court of Appeals of North Carolina.
First published by: Financial Institutions Legal Snapshot
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