SeaHelp-Insurance simply explained: When is so-called gross negligence present?

As the leading European nautical breakdown service, SeaHelp also offers insurance for boats and yachts. Insured SeaHelp members asked when exactly gross negligence is involved – and what the consequences can be. Robert Perger, insurance expert at SeaHelp, answers.

Europe’s leading nautical breakdown service SeaHelp also offers yacht insurance via SeaHelp Insurance. Many SeaHelp members have already taken out insurance policies to cover themselves “just in case”.

SeaHelp has excellent expertise and a lot of experience in the insurance sector, “with us you can count on personal and competent service, especially when it comes to claims handling”, says SeaHelp insurance expert Robert Perger.

Insured persons are often not sure when so-called “gross negligence” exists in the (insurance) legal sense – with the result that the insurer can reduce the benefits, says Perger. For this reason, the insurance broker answers the most important questions on this topic today.

When does gross negligence actually exist in the legal sense?

The (German) law initially distinguishes between three levels of negligence: simple (slight), gross and breach of care in one’s own affairs. As a rule, liability is assumed for simple negligence, the term of which is defined in Section 276 II BGB. According to this, (slight) negligence is committed by anyone who disregards the care required in traffic. Gross negligence, on the other hand, exists (according to Palandt on Section 277 BGB) if the care required in traffic is violated to a particularly serious degree.

What does this mean in concrete terms?

Simply put, someone acts with gross negligence if the simplest, most obvious considerations are not made and what should have been obvious to everyone in the given case is not taken into account. In contrast to simple negligence, both objective and subjective circumstances relating to the individuality of the person acting must be taken into account, such as the fact that they are inexperienced and not an expert.

When, for example, was gross negligence affirmed?

In road traffic law, for example, gross negligence is committed by anyone who exceeds the speed limit by more than 100 percent or by more than 50 percent at night, anyone who enters a junction at a red light, anyone who drives a car after drinking heavily, anyone who runs a stop sign or anyone who violates accident prevention regulations if they contain elementary safety obligations.
Examples for the water sports (boating) sector: the skipper switches on the yacht’s autopilot and then does not take any further care of the ship’s navigation when a shoal is passed although it was clearly marked on the nautical chart or when cooking on board and forgetting to turn off the stove on which lunch is sizzling, resulting in fire damage.

What does gross negligence mean in relation to water sports?

The starting point for the assumption of gross negligence here is the gross disregard of the rules of good seamanship. Seamanship is understood to mean the skills that a seaman must master for the practical handling of a watercraft. The requirements for a seaman, and in particular for the skipper in charge, are very varied. They vary depending on the type of ship, the sailing area, the weather and sea conditions, the skills and number of crew and between commercial and pleasure craft.

What do the rules of good seamanship mean in the (insurance) legal sense?

This is a legal term that is used in court proceedings to assess responsible conduct, taking into account common practice to avoid damage and danger. It usually refers to the collision prevention regulations. It refers to precautionary measures that require general maritime practice or special circumstances of the case.
What is meant by this? It refers to precautionary measures that go beyond the legally prescribed rules, such as wearing a lifejacket and lifebelt in heavy seas or forward-looking trip planning that also takes possible weather changes into account, for example. Although these terms are only defined by case studies from practice, they almost have the character of law when it comes to decisions by maritime authorities.

What plays a role in the assessment In addition to common sense, safety recommendations such as the brochure “Safety on the water – Important rules and tips for water sports enthusiasts”, published by the Federal Ministry of Transport, play a role in assessing the rules of good seamanship. This also includes classic codes of conduct in emergencies, such as “Women and children first!” and “The captain is the last to disembark”.

What consequences does gross negligence have for insurance cover?

According to the German Insurance Contract Act (Versicherungsvertragsgesetz – VVG), in the event of a grossly negligent breach of obligations by the policyholder, the insurer is entitled to reduce its benefits in proportion to the severity of the policyholder’s fault (§ 26 I 2 VVG); the burden of proof for the absence of gross negligence lies with the policyholder.

Something different may apply in the case of liability insurance (intent, § 103 VVG, but then possibly recourse liability) or comprehensive insurance. In the latter case, gross negligence has usually been a reason for insurers to reduce or even exclude benefits in recent years.

Note: We make no claim to correctness and completeness with our explanations. You can find everything you need to know about insurance cover for boats, yachts and ships in our insurance conditions.