Recent publicity of the court case earlier this year concerning responsibility for tragic capsizing of the ‘Cheeki Rafiki’ sent a stir through the marine industry and created heightened awareness of the inherent risks of vessels with defective keels. As a result, Verisona Law’s legal specialist, Tim Reynolds, is acting for an increasing number of clients who have discovered problems with their yacht keels.
In May 2014, a 40ft vessel named the ‘Cheeki Rafiki’ had been returning to Southampton from Antigua Sailing Week when it lost its keel 700 miles off Nova Scotia, capsized in the Atlantic Ocean and all four men aboard lost their lives.
Douglas Innes and his Southampton company ‘Stormforce Coaching’ were accused of cost cutting and failing to get the vessel checked before the voyage. Last July, after the jury at Winchester Crown Court heard how the vessel, which had grounded three times in three years, had an undetected fault with the bolts which held the keel to the hull, both were found guilty of failing to ensure the safety of a boat by a majority of 10-1.
Partly as a result of such a high profile and tragic loss of life, many boat owners have been paying considerably more attention to this vital part of their vessels’ structure, inspecting them for similar problems, with some alarming results. As the news spread of the judicial verdict over the summer, Reynolds is now receiving increasingly large numbers of enquiries including from concerned owners in Norway.
‘We are currently involved in a number of cases where owners have discovered defective keels on their new or recently purchased used vessels,’ says Verisona Law Director and Head of Marine Law, Tim Reynolds.
Two such cases involve clients who had each purchased their vessels with the benefit of a full professional survey, and in both instances the surveyor failed to spot clear signs of early failures in the all-important internal keel support structure. Having threatening to bring a claim for negligence against one of the marine surveyors concerned, a sensible agreement has been reached and the client is now awaiting settlement of the remaining balance of a six figure compensation claim. By contrast, in the second case, different insurers are resisting all sensible proposals for compensation and repair, making court proceedings increasingly likely.
The other cases relate to the increasingly common problems experienced by owners of comparatively new craft, who are experiencing significant leaking and failure of the keel hull joint.
As Tim explains ‘Both problems are the natural result of changes in modern yacht construction and design. Older vessels tend to be heavily built with shorter and wider keels, rely on multiple nonferrous (often bronze) keel bolt fastenings, and have a large number of structural frames intended to spread the keel loadings across the structure, or encapsulate the ballast within the hull moulding.’
‘By contrast, modern high performance yachts tend to be lightly constructed, have deeper and narrower keels often ballasted with lead and secured on using a smaller number of stainless steel stud fastenings. These impose very high loads on the fastenings, hull and support structures, and relying on their integrity to keep the keel attached.’
One of the prime causes of keel failure is the tendency of submerged stainless steel to develop swift and often unobservable crevice or static water corrosion when exposed to sea water in some conditions, as typically results when such keels suffer the impact of even a relatively minor strike or grounding event.
Whereas the removal or drawing of keel bolt fastening (or their x ray in situ) tended to be a standard survey item, practical difficulties have made this an increasingly rare occurrence in all but the most expensive transactions, as few buyers or sellers will wish to become involved in the removal of keels to view all the fastenings.
The problem is increasingly compounded by some volume manufacturer’s decision to replace traditional flexible bedding compounds with non-flexible glue to pack the keel/hull joint, so making the removal of keel so attached a potentially difficult task. At the same time such glues can readily crack under load, allow sea water to be drawn into the joint by capillary action and water pressure, and create perfect conditions for unseen corrosion to develop within multiple fastenings, leading to early, potentially catastrophic, failure in seemingly the best maintained of vessels.
As Tim points out, ‘Such is the concern following the Rafiki case and other similar keel failure incidents that many insurers, particularly of modern vessels employed in commercial charter operations, will increasingly be requiring owners to have vessels regularly lifted and examined for any such problems, particularly following any grounding - however minor.’
Both prospective buyers and charterers of such vessels will increasingly be demanding evidence of regular and thorough checks by owners, and walk away if there is any doubt.
Reynolds is now advising clients to conduct inspections of their keels and underwater mechanisms at every opportunity, as even boats supplied new within the past two years are beginning to exhibit signs of keel joint failure. He predicts that some may well find that they are now out of warranty, and will experience real problems with disposing of such craft unless they can demonstrate that the problems have been fully and professionally addressed –a process which is neither cheap nor quick.
‘The key to avoiding these situations arising is vigilance,’ he explains and offers the following tips:
- use a reputable, qualified and recommended surveyor who is an accredited expert in the construction method involved
- ask for and take up references and any offer of anonymised previous survey reports
- carefully check the terms and conditions to ensure that they do not seek to impose a time limit of less than five years on any claims for breach of contract or negligence on the surveyors part, or put some arbitrary financial limit on any claims
- be prepared to walk away if they try to impose and refuse to delete any of the above
- be present when the survey is carried out, asking questions
- read the report and any “let out" clauses carefully.
‘When buying new, either carry out a full pre-delivery inspection yourself or get a surveyor to do so on your behalf so you know that you are getting a boat in good order,’ Reynolds advises. ‘Note and diarise the duration of the warranties, raise any matters of concern with the suppliers immediately and resist any temptation to be fobbed off with common assurances that such matters can be left to be resolved at the end of the season, or are the natural consequences of a grounding event.’
In either event, Reynolds is clear that if there isn’t swift satisfaction, a solicitor with suitable expertise should be sought without delay. The sale of goods legislative changes introduced in the recent Consumer Rights act 2015 imposes clear obligations on yacht surveyors who provide expert services, as well as those who sell or supply vessels, to provide timely, informed expert advice and take action where necessary to solve any problems in a constructive manner.
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