This thread is becoming a bit technical, and since I live in wonderful Spain, I have had a nice dinner with a few glasses of wine and it is hard to really add something useful here.. The only thing that crossed my mind that if someone is shags the wife of the mechanic who works on his plane is either a thrill seeker or deserves to be liable for any damage to his plane.
I promise never to post anything more while under the influence, and will not fly within the next 8 hours
Peter,
I'd agree that "wilful act" is an odd term to use. It could imply that they are only liable in the event of criminal damage inflicted by them. However the words would be construed as the damage being caused by some negligence on their part. In any event contract clauses are always construed against the party that wrote the contract if there is any ambiguity. Clauses that attempt to avoid liability for negligence are normally unenforceable anyway.
The main point is that the clause is unnecessary as the law (see bailee) on this issue is quite clear, they are only liable if the damage is as a result of their negligence.
Ted
they are only liable if the damage is as a result of their negligence.
OK; a lot of stuff does hang on proving negligence. For example liability to passengers.
But that is why any "injured" party is going to work hard to prove negligence. "Negligence" is the key which unlocks the magic box with the money in it.
So the question moves to whether the following would be negligence:
A poorly maintained hangar; a piece of roof falls in (despite the hangar meeting the then current version of the UK Building Regulations when originally built)
Towing another aircraft into yours and making a dent
Dropping a tool onto your £3000 window
Operating the flaps with a toolbox underneath, which the flap stops against, bending the mechanism and/or damaging the motor+actuator
Putting a "mystery lube" into the elevator trim mechanism, causing it to freeze at FL140, not thawing before landing, and forcing you to having to land at a higher speed, causing damage
or any one of many cockups I have seen.
I think most courts, and any reasonable person, or their insurer, would agree that all the examples you cite there constitute negligence.
I would define negligence as "a f*ck up", and all those things are just that. The roof is the only one that might be contentious.
The mystery lube one, I would be going straight to the CAA and making sure that idiot felt the full force of the law.
Furthermore, to what extent is it you that's left holding the ball?
In my experience, when things are dubious, you inform your own insurance who will then pay out. Subsequently your insurance will try to reach a settlement with the maintenance firm insurance.
Yes, I actually don't think this is a big issue. The examples are clear cut. Even the roof falling in would likely fall on the building owner's insurance or that off the maintenance firm.
you inform your own insurance who will then pay out.
True, but you lose your no claim discount.
That is the usual situation following a prop strike in a pothole. The airfields put up a massive battle to avoid any liability that the pilot just claims from his own insurance.
Subsequently your insurance will try to reach a settlement with the maintenance firm insurance.
True, but I will have signed away their rights to do that. The insurer I spoke to confirmed that.
I think most courts, and any reasonable person, or their insurer, would agree that all the examples you cite there constitute negligence.
I think so, but why have that clause in there?
The mystery lube one, I would be going straight to the CAA and making sure that idiot felt the full force of the law.
The CAA is extremely unlikely to act against any maintenance company.
The stuff froze only below about -10C which 99% of UK GA (and certainly 99% of the customers of that firm) never see.
All recoveries against third parties for negligence are hard work. In practice you are against insurers but this is not an insurance claim, it is a legal action. Third party liability insurers owe you nothing, you do not have a contract with them and they will fight you. The only thing going for you is that insurers have the money and they are pragmatic. This is much better than dealing with the third party who will not be pragmatic and probably won't have any money either.
The answer is to be well insured yourself and accept the occasional loss of no claims discount and/or excess. Then your insurer will have the grief of trying to claim against the liability insurer and your excess will be included in that claim, don't hold your breath as these things can take years.
Be careful who you give your aircraft to.
The other option is to add another £5/h on your bill.
They actually said that?
Sorry for the late answer, been through rough times and did not spend long time on the net. Yes, one shop did say that but it was a shop that I have never worked with.
Ben
