New EUAEL Alliance Partner : Hey & Hey Attorneys At Law (LLC)

Hey & Hey Attorneys at Law was founded by Randy Hey and Polly Hey Panos, a father and daughter team who have committed their firm to offering a full range of equine legal services. While Randy has been practicing since 1971, the two formed the practice in the heart of horse country back in 2006. Together, they aim to provide counsel and assistance to anyone involved in the ownership, lease, or sale of a horse, involving all related legal matters.

National Federations agree with Schelstraete Equine Lawyers’ stance on the proposed FEI Blood Rule

In July this year the FEI proposed a change to the extensively discussed and disputed Blood Rule.

The proposed rules stated the following: blood on the horses flank caused by the athlete’s leg may lead to elimination (instead of disqualification) and (NB) minor cases of blood on the flank(s), as described in the Jumping Stewards Manual, will not incur elimination

Secondly, the proposal slightly amended the article on mandatory disqualification, which in the proposal stated that cases of marks and/or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalized with disqualification. The difference between elimination and disqualification appears to be the “excessive use of spur”, however, what defines “excessive use of spur” was not further clarified.

Schelstraete Equine Lawyers (SEL) were interviewed by Horse International regarding this proposal where we specified several legal concerns which arose and could become an issue would the rules come into force.

These concerns related mainly to the lack of legal certainty and the subjectivity the rules would allow for. You can find the full interview here.

National Federations agree with SEL´s urgings

Schelstraete Equine Lawyers is pleased to see that several National Federations have submitted analogous comments to the FEI and rejected a subjective component in the jumping sport.

The Spanish National Federation stated: “This rule, by definition, will be a judgement call. This situation will lead to many different possible problems because there is no clear guideline. “ as a comment to the elimination rule.

The Dutch National Federation commented the following in regard to the disqualification rule: “Art. 241.3.30: What are the criteria for a “minor” case of blood on the flank(s)? Art. 242.3: What are the criteria for “excessive” use of spurs/whip?
The criteria for these should be clear, transparent and objective. “

Final Proposal to the Blood Rule

After receiving comments from different stakeholders the final proposal to the Blood Rule now looks as following:

Article 241.3.30 concerning elimination proposes: The Ground Jury must enforce Elimination under the following circumstances: (…) blood on the Horse’s flank(s).

The proposed disqualification article, article 242.3.1, states: Disqualification is mandatory in the following cases: (…) marks indicating excessive use of spurs or of the whip anywhere on the Horse; additional sanctions may also apply (see JRs Art. 243);

Does the Final Proposal Provide a Satisfactory Change to the Blood Rule?

The FEI General Assembly is taking place this weekend (18th – 21st of November) in Montevideo, Uruguay where this final proposal will be discussed.

Schelstraete Equine Lawyers are positive to the National Federations due care in revising the earlier proposed rules and is confident this will continue throughout the General Assembly.

The question which remains is however if this latest proposal to the blood rule provides much change to the current blood rule which has been significantly disputed throughout the year.

Schelstraete Equine Lawyers look forward to the outcome of the General Assembly and hope for clear and objective rules, which provide legal certainty.

You can read more about this topic in our previous article for Horse international about ‘blood rules’.

Sources:

Comments Received from Stakeholders on First Draft of Proposed Modifications to the JRs : inside.fei.org

Final Proposal of the FEI Jumping Rules 2018: inside.fei.org

Sale of Goods Act applies to horse sales even when a trader sells and an individual buys

Horses sales between two individuals are governed by the Sale of Goods Act, while horse sales from a trader to an individual are governed by the Consumer Sales Act. But who is responsible for knowing which law applies to the sale of a horse? Is it reasonable to apply the Consumer Sales Act to a product subject to change? A recent judgment by the Court of Appeal for Western Sweden takes up the question of where to draw the line between individual and trader in the equine industry.

The case considered whether the person who sold the horse should be deemed a trader, and accordingly, which law should apply. The Court of Appeal for Western Sweden’s judgment found that the seller should be deemed to have sold the horse as an individual despite being a registered trader conducting business operations in the form of pony riding services. Therefore, the Sale of Goods Act (1990:931) was the applicable law in this case.

“The real question of interest here is whether it is reasonable in the first place to apply a law such as the Consumer Sales Act to a product subject to such great change, such as an animal. We now see a trend among horse owners who are also traders where they are becoming increasingly cautious about selling horses to consumers,” Gulliksson Partner Cecilia Tholse-Rogmark comments.

The Consumer Sales Act is clear: A trader is defined as a natural or legal person acting for purposes related to that person’s trade, business, craft or profession. The Consumer Sales Act should not apply when a trader sells a product under such conditions that the person can be considered as acting in the capacity of an individual. Professional riders or high-level riders who believe they are selling a horse privately will often be considered traders instead under the Consumer Sales Act because of sponsorships and competitions associated with economic benefits that have a direct connection with riding. This can lead to risks when selling to individuals who can assert the legal guarantee and proof rules for latent defects under the act.

Cecilia Tholse-Rogmark welcomes the ongoing reviews and proposed changes relating to the trading of live animals and highlights the risks to sellers posed by current practices.

“When a consumer can assert rights under the Consumer Sales Act when buying a horse, the worst-case scenario is not only that the horse can be returned, but also that the buyer can claim damages for costs resulting from the purchase such as stall rent, veterinarian bills and horse feed. The issue is complex, and trading in animals is particularly specialized. In a certain sense, a horse is a product subject to great change and a ‘used product’ regardless of age. Personally, I think it’s a sad state of affairs when horse breeders are unwilling to take the risk of selling to individuals not acting as traders.”

Cecilia Tholse-Rogmark plays a leading role on Gulliksson’s team for equine law, an area in which legal issues relating to sales and damages often are hot topics.

“A contract that’s good for both the buyer and seller stipulates the governing law. Most horse injuries occur within the first six months following the sale, and who is responsible for the costs and burden of proof largely depends on which law is applicable. However, it should be noted that the Consumer Sales Act is mandatory and cannot be contracted away, but the judgment referred to above demonstrates that you can sell a horse as an individual despite conducting horse-related business. This means that the reverse could also be true. In other words, you could also buy a horse as an individual, and the seller could fall under the scope of the Consumer Sales Act despite the buyer seemingly acting as a trader. The consequences of the act’s mandatory rules are currently a great burden for traders.”

Read the full judgement (in Swedish).

Equine Law covers also civil law governing legal issues regarding transactions and indemnity, and also other areas of general business law such as labour law, contract law, company law, mergers and acquisitions, property law, and construction law. We assist our clients in drawing up and reviewing commercial agreements and we also assist in a strategic advisory role for various types of business affected by Equine Law.
Gulliksson handles all kinds of business disputes – in general courts, administrative courts, authorities and arbitration tribunals. We represent clients in negotiations, court procedures, arbitration procedures, mediation, international dispute resolution and alternative dispute settlement. Our experience of processing also extends outside Sweden’s borders and our understanding and experience of equine law is extensive. Gulliksson has many employees who are active in sports in different ways, and within equine especially. Some as participants and others as board members or as representatives in reputable associations.

Contact:
Cecilia Tholse Rogmark, Partner
+ 46 (0)735 195 950
cecilia.tholse@gulliksson.se

Agent Could be Held Liable as Seller Although He´s Only Acting as Intermediary

Equine sales often occur with involvement of an agent (intermediary) or scout who presents the horse on behalf of the owner or who finds horses for a particular rider. In the first mentioned scenario the agent acts similar to a car dealer or garage who acts as intermediaries in car sales, selling cars belonging to other private persons. Intermediaries may put the buyer and seller in contact with each other but often the sale is fully taken care of by the agent. If this agent is a professional dealer and the buyer is a consumer, the agent may be perceived as the seller of the horse under certain circumstances.

 

Ruling of the European Court of Justice: Agent Liable in Order to Ensure a High Standard of Consumer Protection

The European Court of Justice includes intermediaries in the notion of “seller” if, under the circumstances, the consumer can easily be misled to believing the intermediary is in fact the owner and professional seller of the consumer good.

It was provided that in order to determine whether the intermediary may be regarded as the seller, the national courts will have to asses on basis of facts and circumstances of the case, of which the following may be of relevance: failure to inform about who is the actual owner of the good, the intermediaries behavior and the degree of contribution and effort employed in the sale. Thus could a party who is solely acting as the agent be perceived as the seller and therefore also be held accountable as such.

This is due to the considered imbalance between consumer and professional and in order to ensure a high level of consumer protection.

Schelstraete Equine Lawyers therefore advise agents to expressly state when an equine sale is between two consumers and when it is between a professional and a consumer and more importantly, who the seller is and in which capacity they act when selling the horse as this will influence protection, rules and remedies applicable to the contract.

Source: Sabrina Wathelet v Garage Biertheres & Fils SPRL, C-149/1

Read more details about this case HERE.

FEI reaching settlement in doping case after proposed change to the classification of Pramoxine

Positive Test Result at the Winter Equestrian Festival, FL

Paige Johnson´s horse Luke Skywalker 46 tested positive for the local anesthetic Pramoxine at the CSI2* in Wellington (USA) at the end of January 2017. In July 2017 the FEI Tribunal imposed a one-year suspension and a fine of 2,000 CHF and contribution of 3,000 CHF towards legal costs. As the athlete had been provisionally suspended from 5 April 2017 for three months, she would not have been eligible to compete until 4 April 2018.

 

Appeal Led To Settlement

However, the FEI recently announced that the Court of Arbitration for Sport (CAS) has approved a settlement between the FEI and athlete Paige Johnson.

As the substance Pramoxine is to be reclassified from a banned substance to controlled medication in the new 2018 Equine Prohibited Substances List, the parties eventually agreed on a settlement, which was approved by the CAS.

According to the settlement, the athlete’s period of ineligibility has been reduced from one year to three months and the athlete is therefore now cleared to compete again.

This was deemed more appropriate in accordance with the rule of fairness and principle of proportionality.

Doping cases are often decided on the basis of details in the facts where legal advice is highly recommended. Schelstraete Equine Lawyers have many years of experience with doping cases in the equestrian sport and invite you to take contact with us would you have any questions or issues you would like to discuss.

 

Source: FEI

Changes in the World Anti-Doping Agency Prohibited Substances List For Human Athletes and the FEI Equine Prohibited Substances List

WADA

The World Anti-Doping Agency (WADA) was founded with the aim of bringing consistency to anti-doping policies and regulations within sport organizations and governments across the world. They oversee compliance with the anti-doping code, complete research and provide education on the dangers and consequences of doping.

The FEI is a signatory of the World Anti-Doping Code and therefore their rules are also applied to the equestrian sport.

Changes to the WADA Prohibited Substances List

They recently published the 2018 List of Prohibited Substances and Methods (List) from which they have removed alcohol and cannabidiol  (a cannabis compound which has medical benefits). However, attention should paid as cannabidiol extracted from cannabis plants may also contain varying concentrations of THC, which remains a prohibited substance. This list will take effect on the 1st of January 2018.

Exceptions

It should also be noted that, for athletes who have a legitimate medical reason for using a prohibited substance or method that is on the list, they may be accommodated if they meet the criteria outlined in the International Standard for Therapeutic Use Exemptions (ISTUE).

FEI´S Proposed Changes to the Equine Prohibited Substances List

FEI´s changes to the 2017 FEI equine prohibited substances list (EPSL) for 2018 have also been published and have added substances such as: Clodronic Acid, Ethanol, Quietiapine, Potassium Bromide and Piper Methysticum (Kava) to the list. It has also reclassified certain substances from Banned Substance to Banned Substance and Specified Substance; from Banned Substance to Controlled Medication and Specified Substance; and from Controlled Medication to Controlled Medication and Specified Substance.

Schelstraete Equine Lawyers (SEL) advise athletes to read over and familiarize themselves with these two lists before they enter into force in January 2018.

SEL has many years of experience with doping cases in the equestrian sport and therefore ask you not to hesitate with contacting us would you have any questions or issues you would like to discuss.

Wrong Horse Put Down By Vet; Diligence Requirements For Vets To Avoid Law Suit

Schelstraete Equine Lawyers (SEL) have for a long time been cooperating with equine veterinarians in order to establish thorough protocols to assure comprehensiveness and to avoid possible legal complications.

As we all know, vets are only human and thus also capable of making mistakes. However, when it comes to the wellbeing of horses and even more so, when regarding life and death of horses, limiting the risk of mistakes is of outmost importance.

After reading about a recent case where the wrong horse was put down by the vet, SEL finds it to be of significance to discuss possible developments and improvements in order for these desolate situations not to arise again.

Wrong Horse Euthanized

Equnews.be and horseandhound.co.uk recently reported a case where a fully healthy horse was euthanized in place of another horse. The vet had been asked to come out to the farm and put down two horses. By accident, the wrong horse was brought to him and was consequently euthanized. This horse belonged to a third party who had her horse stabled at the farm.

The third party was devastated and was told that the wrong horse was brought to the vet and that the vet was not obliged to check the horse’s identity in these situations.

Improvements to Reassure Diligence

Not reassuring oneself as to the identity of the horse before treating it or especially before putting it down, may lead to an opening of a very costly law suit in tort against the vet.

Schelstraete Equine Lawyers therefore recommend veterinarians to introduce a standard protocol for these procedures. It is advised that the horse’s passport and chip number is checked and noted to verify identity and that a description is given of the treatment or procedure which is to be executed. Also, the owners permission should expressly be given, this could be done by having the owner present and signing the document, or having the owner mailing a signed copy or by having a person responsible signing the document in name of the owner after being authorized to do so.

These simple, straightforward steps provide diligence on the part of the vet and will result in fewer mistakes like the devastating one mentioned above.

Schelstraete Equine Lawyers have a long history of advising veterinarians and horse owners in equine legal matters so please do not hesitate to contact us would you have any questions or issues you would like to discuss.

Freestyle copyright violation at the `Pony´s Kür op Muziek´ in Geldrop, the Netherlands

Copyright laws

Copyright infringement laws are in place in order to protect the original works of a creator from being stolen and reproduced, sold or performed. Although copyright laws are in place for many different fields, may it be music, film, writings as well as dressage freestyle pieces, infringements occur frequently.

Copyrights in Dressage

The dressage sport is known for its very competitive freestyle classes and the work put behind to create the perfect performance piece to suit the horse and rider can be very costly. The freestyle music piece is a big part of the performance as a whole and is often tailored to perfectly suit the horse and rider combination at hand.

Copyright Violation in Geldrop, The Netherlands

Mr. Joost Peters is a well-known freestyle producer who has created freestyle music for amongst others Edward Gal and Totilas. These freestyle productions are protected by copyright laws, as originality is of the essence. Mr. Peters was therefore very surprised to find out that his freestyle piece, created for the horse TC Champ of Class DVB, was used by a different horse and rider combination during the Pony´s Kür op Muziek in Geldrop, without the consent of him or the owner of TC Champ of Class DVB. This type of theft of protected materials may bring upon tort claims, as this is an infringement of copyright laws. These violations may also have devastating consequences for the producer as both his image and the product related to him is at stake and can be damaged by this unlawful use. Not to mention that the hard work put in behind these productions is not compensated for in these situations.

Schelstraete Equine Lawyers view such copyright violations as grave and unwelcome as this may have harmful consequences for creative individuals who put a lot of hard work into their original pieces and creations.

Riders and trainers are advised to refrain from copying content form the internet and using it as their own without the permission of the owner or creator. This also holds true for pictures and video sharing.

Horse International: RISKS AND LIABILITIES

In this edition of Horse International we would like to discuss with our readership the risks and liabilities that may be triggered by your horses participation at equestrian events. Equestrian competitions, horse shows and other equestrian events are almost always events that attract large numbers of visitors that have come to enjoy the ambiance and the high calibre of horses being shown. Accidents do not occur often during these events, which as such is quite remarkable when taking into account that these events involve live animals with their own unpredictable energy and independent behaviour. But imagine you have to deal with that one unique situation when something does happen; an accident or an incident occurs. Have you ever thought about the rights and obligations arising in connection with such a situation?

 

Possible situations

In this article we would like to focus on various possible situations that may happen or occur during an equestrian event. We shall zoom in on the juridical position of the parties involved while
discussing those hypothetical situations.

Scenario 1: Your horse gets injured

Enthusiastic as you are about the horse you have bred, you decide to take part in a studbook or stallion show. Being presented to the jury, your horse makes an unfortunate move and steps on an iron pin that apparently found it’s way to the showground. The accident results in serious injury to the horse and the question is whether the horse will ever recover to full fitness. In the meantime, you have to pay colossal vet costs as the invoices from your vet keep on coming in.

The envisioned goal of your horse’s participation in the show has not been realized and has gone with the wind. No future proceeds out of a sale of the approved stallion. Nothing. Now, who is responsible for this situation and can we hold anybody liable for the damages you suffer? The first thought might be the organization of the event, as the showground they prepared for the show contained an iron pin and caused a dangerous situation, in particular to your horse that was injured, but also to other horses that participated in the event. In such a case, most likely the organization will try to invoke the so-called exoneration clause (exclusion and/or limitation of liability) that most probably was imposed on you via the general terms and conditions (the small print) of the event on the very moment you decided to register your horse for the event. By means of the exoneration clause, the organization of the event will try to evade all and any liability for any damages the participants may suffer due to their participation in the event.

-In such a case you might have to face the damages yourself. The bottom line is that you cannot recover the damages from the organization of the event for their liability is limited to a very small amount. It is important to note, though, that once confronted with such a clause you should not give up immediately. It may happen that the exoneration clause in the particular may not be invoked. In situations where intentional act and (gross) negligence are involved, it has been generally acknowledged that the exonerations cannot be relied upon. It may sound a bit like a cliché but the question whether or not an exoneration can be invoked depends on the individual facts and circumstances of the specific case. Important is inter alia the manner in which the exoneration clause has been agreed upon and whether you were aware of its existence in the contractual relation. Additionally, many other circumstances may play a role as well. A legal counsel could make an assessment on the enforceability of the exoneration clause in a specific case.

“Accidents do not occur often during events, which is quite remarkable when taking into account that the events involve live animals with their own behaviour.”

Scenario 2: Your horse causes damages

Let us imagine another case. During the same event your horse has not injured itself by stepping on an iron pin in the showground, but kicked one of the spectators and caused damage to a trailer of another participant. By operation of law the owner / possessor of the horse responsible for its behaviour and liable for the consequences hereof. This makes you – as the owner of the horse – liable for (material) damages that your horse may cause by kicking. This could be different, however, if your horse’s kicking was caused by somebody else’s behaviour. In this context you could think of a situation where in your horse gets scared by a rushing tractor that drives by recklessly fast. In such cases it is possible that the liability is shifted from you as the owner of the horse to the driver of the tractor because the latter was seriously incautious and careless. The liability and responsibility of the horse owner is far reaching. Your horse’s behaviour causing damages to third parties and someone else’s property may cost you a lot of money. In many cases you – as the owner – may not escape this
liability. On the other hand you may be able to mitigate this risk to a certain extent securing an insurance that provides for sufficient coverage. Furthermore, it is also advisable to arrange insurance to cover costs and expenses of legal aid in the event no compromise is possible with your counterpart and you are forced to litigate the case.

Conclusion

In this article we merely discussed the general principles of the liability laws to give you a good overview of how complex this matter is. It may again sound like a cliché, but your juridical position is shaped by the individual circumstances of your individual case. It is therefore advisable to timely seek legal advice on your juridical position.

Horse International: Legal and Veterinary Journal – Schelstraete Equine Lawyers Join Veterinarians at the 2017 European ISELP Module

In this issue of Horse International’s Legal and Veterinary Journal we would like to draw our readers attention to the lecture that was given by Schelstraete Equine Lawyers during the recent meeting of The International Society of Equine Locomotor Pathology (ISELP) in the Netherlands.

ISELP and SMDC

At the beginning of September the Sporthorse Medical Diagnostic Centre (SMDC) hosted veterinarians from all over the world who joined to partake in the European module of the International Society of Equine Locomotor Pathology. The event took place at SMDC´s brand new facility in Heesch, the Netherlands, and accommodated more than 135 Veterinarians for a three day long module.

SMDC´s newly established facility answers the need of the sport horse industry for a center of excellence where all orthopedic, diagnostic and treatment modalities can be utilized in combination with experience, specific knowledge and individual attention. It was therefore the ultimate location to hold such a prestigious module as the ISELP module. ISELP was formed in the United States under the direction of Dr. Jean-Marie Denoix and focuses on problems of lameness in the equine athlete with the goal to provide contemporary knowledge and techniques in the continually evolving field of equine locomotor analysis in order to better prepare the equine clinician to understand and manage lameness conditions in the equine athlete.

The organizers of the European ISELP Module invited Mr. Luc Schelstraete and Mr. Piotr Wawrzyniak of Schelstraete Equine Lawyers to speak to, and advice, their participants regarding legal complications in the veterinary field.

Presentation by Mr. Schelstraete and Mr. Wawrzyniak

Recent case law indicates that more and more veterinarians are being subjected to civil lawsuits. This occurs both jointly with, and separately from, the seller. It seems to be more common in certain countries to go after the veterinary than the seller when something goes wrong with the horse post purchase.

Conformity and Non-Conformity in Equine Sales

Mr. Schelstraete and Mr. Wawrzyniak held a lecture titled “Conformity and Non-Conformity in Equine Sales from a Legal and Veterinary Perspective”. Mr. Schelstraete commenced the lecture with introducing the concept of conformity and non-conformity stemming from European Union consumer protection laws. Following recent case law the notion of conformity and non-conformity has been applied more frequently to equine cases and sales disputes. The European Directive harmonizing these notions states that the supplied good (the horse) must be in conformity with the sales agreement. The conformity as such is further judged on the basis of the qualities that the buyer, given the nature of the good and the statements of the seller about it, could have expected on the basis of the agreement. The buyer may expect that the object has the qualities that are necessary to be able to use it in a normal way and of the presence of which he did not need to doubt as well as the qualities that are necessary to be able to use it in the particular way that the buyer intends to make of it as provided for in the agreement. In this regard Mr. Schelstraete pointed out the importance of the vet knowing what the purpose of the horse is and the expectations of the buyers, as this may influence the conformity with the agreement, regardless of the outcome of the pre-purchase examination.

Although the primary remedy of the buyer is for the seller to repair the non-conformity, many such equine legal disputes lead straight to the resolution of the contract where both the seller and the veterinarian may be held liable.

Documentation of the Pre-Purchase Examination

Mr. Schelstraete further advised the ISELP members to record a statement of the seller prior to the pre-purchase examination and provided examples of how this may look. It was emphasized that in order to avoid opening the possibility for a legal suit, it is of importance to document the history of the horse, both regarding health and performance. This will help the veterinarian to locate relevant areas of interest and to investigate them more in depth. Following case law it is seems that overlooking this step in the pre-purchase exam may, depending on the circumstances of the case, open the veterinarian up for a lawsuit on basis of professional negligence.

Conflicting obligations for vets

Moreover Mr. Schelstraete emphasized the risks of performing a pre-purchase exam of a horse, which the veterinarian already knows from earlier. In this case the veterinarian has two conflicting obligations arising: the duty to not reveal the information previously acquired and; and the duty to disclose important facts regarding the horse to the buyer. In this case it is advised that the vet reconsider his/her involvement in the pre purchase check. If the vet decides to go through with the examination then this should be with full transparency by asking the seller for the approval to release the horse’s previous medical documents to the buyer.

If this is not done, the vet risks being accused of misrepresentation or fraud.

Case law indicates

Case law discussed by Mr. Wawrzyniak pointed out relevant aspects which may be very influential in certain cases. Such as the significance of that each veterinary report produced by the vet has a date and is addressed to the person who has requested the examination. Non-addressed letters may end up in the wrong persons hands, creating the illusion that the report is made for them.

Case law has also presented situations where vets have been sued for treating a horse after the horse was already sold. It is therefore recommended to inquire who the owner is, especially if the horse comes back fro treatment shortly after a pre-purchase examination.

It was also advised that pre-purchase examinations be videotaped and that blood be drawn, preferably using the FEI doping kit. This kit has been developed in a way making it inherently difficult to interfere with the test, which provides security for both the buyer and the vet, would there be distrust in the handling of the blood test.

Conclusion

At the end of the lecture Mr. Schelstraete and Mr. Wawrzyniak answered questions asked by participants of the ISELP meeting and gave examples of does and don’ts.

Summarizing, this presentation and the event as such was a great opportunity to exchange information, expertise and to approach the activities of a vet both from the legal and the veterinary sciences´ point of view.

It was an honor to have been invited to this respected ISELP Module and Schelstarte Equine Lawyers look forward to future fruitful cooperation with ISELP and the international veterinary community.

Recognize signs of pain from a ridden horse’s facial expressions

New research by scientists at the Animal Health Trust Centre for Equine Studies (AHT), in Newmarket, U.K., aims at producing a practical tool to help owners, riders, trainers, and veterinarians recognize signs of pain from a ridden horse’s facial expressions. Owners and trainers do not widely understand facial expressions of pain in ridden horses. This means a horse’s health and welfare can be threatened, because veterinary assistance is not sought sufficiently early, if at all.

A recent video produced by AHT available online, provides individuals working with horses insight into how AHT researchers have developed and tested an ethogram, to ensure it could be applied by a broad range of people within the equine industry, and whether or not the ethogram is effective in not only helping differentiating a lame horse from a sound horse.

Anecdotal evidence appears to suggest that owners, riders, and trainers have a poor ability to recognise signs of pain seen when horses are ridden. As a result, problems are labeled as training-related, rider-related, behavioural, or considered “normal” for that horse because “that’s how he’s always been.” That could means pain-related problems can be disregarded, the horse continues in work, and the problem gets progressively worse. If pain goes unrecognised and is not referred to a lameness specialist at an early stage, problems may become too advanced to be resolved, or managed as well as they might have been if spotted sooner.

The recognition of facial expression changes could potentially save horses from suffering and from chronic injuries by enabling owners and trainers to recognise pain sooner, and ensure the horses are provided with the veterinary care that they require. Developing a practical tool for recognizing facial expressions, similar to that of a body condition score chart, could dramatically improve the health and welfare of all horses.

The ethogram is a catalogue of facial expressions including the ears, eyes, nose, muzzle, mouth, and head position. Each body part can display an expression which may be normal, or reflect pain, conflict behavior or distress.

Research shows in its first stage of testing, the ethogram was successfully applied by a variety of people from different backgrounds, to a selection of photographs of horses’ heads while they were ridden. Using the ethogram these individuals could identify different expressions in each horse, such as ear position, eye changes, and muzzle tightness. The results were highly repeatable among the analysts proving that, with guidance from the ethogram, owners could potentially reliably recognize different expressions in their horse’s face.

Interview with Dr Sue Dyson.

Source: Youtube channel AHT (AHTTV)

Horse International : BLOOD RULES

It is funny throughout sports horse magazines we discuss ‘blood’ and generally in a good way; “the horse had plenty of blood,” indicating the horse has thoroughbred in his genealogy. “I made the time cross country because he is a blood horse, three quarters thoroughbred.” We consider blood in a positive and practical way. The reader has a good feeling about the horse and his rider. But when we change the sentence slightly, we immediately have a flash of fury in front of us: “horse and rider were eliminated from the competition due to the presence of blood.” Rider and all associated parties are doomed to the judge and jury of keyboard warriors and our sport becomes threatened by animal activists.

Tough times

Our governing body the FEI are used to tough times, creating rules to manage fairness of sport and welfare of the horse. The new proposed so-called blood rule is a contentious issue and for those of you who have only had the rumour mill rather than the facts here is the proposal: Art 241 Elimination: Blood on the horse’s flank caused unintentionally by the athlete’s leg will be penalised by elimination; minor cases of blood on the flank will not incur elimination. Art. 242 Disqualification: Marks and/ or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalised by disqualification. There are two words which if the proposals went ahead could create a litigious mine field for each and every ‘Ground Jury’ who have ultimate responsibility for a competition: Elimination and Disqualification. Whilst we consider the ‘steward’ to be the ‘arena police’ it is actually the Ground Jury and the judges who make up this team who would be called upon to make decisions on whether a rider has deliberately injured a horse or accidently.

This decision has huge implications, be it because of the prize fund or prestige at a major championship.

For example, if you are in a jump off at a major competition and there are only three of riders in the jump off, a speck of blood caused by accident would mean elimination but will still win third place and the third place prize money whilst a construed deliberate spur mark for example would mean disqualification and removal from the class and loss of any earnings. Our esteemed expert for this issue explained succinctly top level horses are treated like royalty and the care and attention that is paid to these top jumping horses is second to none.

Mark Beever is right, I can not imagine an incident where a 5* rider would be deliberately harming a horse. Mark mentioned a horse bleeding from a self inflicted injury such as an overreach and I have been informed whilst the stewards and Ground Jury would expect the horse be declared fit to continue by the veterinarian present on the show ground with appropriate treatment the Ground Jury would not take action against any rider and would leave it to rider and vet’s discretion at the horse’s fitness to continue into the next round of a competition.

Pizza cutters

Whilst researching this topic I spoke to several officials who feel that the FEI are between a rock and a hard place with this rule. Judges could potentially be sued for defamatory behaviour in disqualifying a rider as it would indicate the rider was abusive to their horse. Judges could also be sued for loss of earnings. Perhaps rather than looking at the

presence of blood after a jumping round, we should look more practically as Mark Beever suggests. The grooms prepare the horses and the riders ride the horses and ride with hand, seat, legs and spurs. Some of the spurs are nicknamed ‘pizza cutters’ due to the serrated edges. The clue perhaps is in the name! Maybe it would solve much of the problem if the FEI just reviewed the spurs that were legal? We do have rules for pony riders on types of spurs available for competition use, perhaps it is time for all classes to use ‘kinder spurs’; no rowels and without sharp edges.

The legal aspect

The mine field of legality means we spoke to Luc Schelstraete, Nicol Dominiuk and Piotr Wawrzyniak of Schelstraete Equine Lawyers in The Netherlands: “The most disputed incidents have been in relation to spur marks, where discussions were raised in connection to the disqualifications of several respected riders, including Bertram Allen and Scott Brash in distinctive 5* shows and Stephan de Freitas Barcha and Nicola Philippaerts in the 2016 Olympic Games. However when riding a cold-blooded horse or when approaching a fence with a slightly long distance, adding leg is only natural. This can, in certain situations, result in a small rub on the horse’s flank.

The severity of the rub may also depend on the sensitive skin type of the horse or an earlier scratch in the same area. However, no matter the magnitude of the rub, the FEI has applied a strict approach to the blood rule and disqualified riders on this basis, with no exceptions in relation to size or amount of blood.

The FEI recently sent out a proposed amendment to the abovementioned rule for the coming 2018 FEI Jumping Rules. The Jumping Rules have undergone a full revision and there has been a significant change to the ‘blood rule’. The proposed rules are the following: blood on the horse’s flank caused by the athlete’s leg may lead to elimination (instead of disqualification) and (NB) minor cases of blood on the flank(s), as described in the Jumping Stewards Manual, will not incur elimination. This rule would be included under article 241 of the FEI Jumping Rules, which is the elimination rule.

Although this new paragraph refers to the Jumping Stewards Manual, the Jumping Stewards Manual does currently not define ‘minor cases of blood’ in relation to blood on the flank(s). At this moment the Jumping Stewards Manual only refers to minor cases of blood in the mouth where a horse appears to have bitten its tongue or lip. Secondly, the proposal slightly amends the article on mandatory disqualification, which in the proposal states that cases of marks and/or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalized with disqualification.

The difference between elimination and disqualification appears to be the ‘excessive use of spur’, however, what defines ‘excessive use of spur’ is also not further clarified. This is unlike the similar rule of ‘excessive use of whip’ which is clearly defined in the FEI Jumping Manual for Stewards as well as in Article 243 of the FEI Jumping Rules. Further it is not clear what kind of mark the FEI is referring to in these articles. It could be interpreted as anything from a swelling to bald spots to raw skin to rub to bleeding. We trust that the National Federations will approach this request with due care. Despite the fact that the FEI’s initiative is appreciated, there are serious legal concerns regarding the proposed changes. It appears in the proposal that the FEI will allow some discretion to the stewards in regard to the ‘blood rule’ in 2018.

The effort in trying to improve this rule is welcomed however, in order to obtain certainty, a clear understanding and equal, objective, application of these rules, further clarification to how and when they are intended to apply must be provided. This is particularly important when it comes to the vague and undefined terms ‘mark’, ‘excessive use of spur’ and ‘minor cases of blood’. If not, it runs the risk of diverse, arbitrary, application of the rules and unfair, deviating outcomes re no-consequences, elimination or disqualification in similar situations. These differences may have detrimental consequences on the riders results, ranking, earnings and reputation and should therefore be studied and improved with due diligence. Unlike the dressage sport in which especially judging as such was causing controversy due to risk of subjectivity, jumping has in its core been objective. This can however change if the ‘blood rule’ will be multi-interpretable, flexible and vague.”

Times have changed

Our sport titters on the edge of professionalism and amateurish approaches to managing itself. We rely on part-time officials, who historically came from a wealth of knowledge, practical horsemanship and mostly military and police backgrounds. Times have changed and just like we now have professional politicians who govern our countries but who have never managed a business before, many of our officials have never ridden or managed people at a very high level before. The riders and the sport continued to become more and more professional and prize money is very important for all parties. We should not blame our officials for the rules they have to follow but we need to be very aware of interpretation of rules that are neither practical or easily interpreted. Finally we should remember nobody here is the bad guy (well 99.9% are not) but let us campaign to look at the source of the problem not the result and sort the spur rule out!

” We trust that the National Federations will approach this request with due care.”

– Schelstraete Equine Lawyers –

Proof of ownership – How do you prove that your horse is actually yours?

Most riders, grooms and owners will be able to recognize and identify their horse from miles away. Not to mention that there is a multitude of identification methods for horses such as; microchipping, DNA, hot branding, freeze branding, iris scans as well as passports, which include a detailed description of the horse. However, none of the abovementioned methods will be able to prove who is the owner of a horse in a legal dispute of ownership, or in case the horse escapes, gets stolen or is stabled by someone else.

Equine passport not enough

The equine passport has become an obligatory document in the EU and is intended for registration and identification purposes and to track veterinary records. Apart from registering the horse, the owner is also required to register changes of ownership. Due to this, there have been attempts to use the equine passports as a proof of ownership in legal disputes. Though the equine passports, as well as registration, provide a name of an “owner”, the Courts dealing with legal disputes regarding ownership do not accept this as adequate proof since it does not indicate true legal ownership. This stance is also supported by the Dutch Enterprise Agency (RVO), the KWPN and the FEI who confirm this on their websites.

European Member States: A legal contract is key

National courts in diverse European Member States have stated that an equine passport is not to be confused with a legal document proving a transfer of ownership and that being identified as owner in the horse’s passport does not necessarily mean that this person is the legal owner. Apart from a contract of sale, one can further support ones ownership claim on basis of proof of boarding and feed payments and veterinary costs.

Need legal advice?

As each sale of a horse is different and may have significant legal consequences, we advise that a lawyer takes part in the drafting of a contract of sale. Schelstraete Equine Lawyers will be happy to assist you, you can contact us here, should you have any inquiries.

Four horses eliminated under the blood rule in the Dressage and Para-dressage Competitions during the European Championships in Gothenburg

The FEI dressage blood rule states, “If the Judge at C suspects fresh blood anywhere on the Horse during the test, he will stop the Horse to check for blood. If the Horse shows fresh blood, it will be eliminated. The elimination is final. If the Judge through examination clarifies that the Horse has no fresh blood, the Horse may resume and finish its test.” ( Article 430.7.6 FEI Dressage Rules)

Three horses were eliminated due to blood in their mouth and one due to a bleeding spur mark during the European Championships in Gothenburg. The blood rule, unlike the recently proposed jumping blood rule, is strict with no room left for interpretation.

The Swiss rider, Charlotte Lenherr, aboard Darko of de Niro ZS CH, was stopped midway in her Grand Prix performance when the judge at C saw pink colored foam in the horse’s mouth. Charlotte Lenherr later stated that the horse had a scratch on his bottom lip, which made him look pink around the mouth.

Darko of de Niro ZS CH was eliminated and was not allowed to resume and finish the test

The rule is clear and applied strictly, however, the situation in which a rider gets stopped midway their test and it´s proven that the horse has no fresh blood in the mouth but that the discoloration is, for example, from the horse feed or treats; this could prove to be very distracting and detrimental to both the horses and the riders performance throughout the rest of the test.

It is thus urged to keep this in mind when calling upon this rule, where waiting until after the test is recommended.

For more information and updates on the Blood Rule follow our website and check the upcoming edition of Horse International wherein we have been interviewed (View of the Expert page 42 and 43) on the implications of the proposed amendment of the Blood Rule that have recently been announced by the FEI.

Mr. Luc Schelstraete appointed as the Legal Advisor of VSN in the Netherlands

As per September 1st, Luc Schelstraete from Schelstraete Equine Lawyers and the EUAEL will be active as the legal advisor of the board of the VSN. This organisation unites the interests of the horse dealers in the Netherlands. His knowledge in the equine legal field together with his experience in the equine business for more than 30 years will contribute to the further development of VSN.

Luc Schelstraete will still be practising as an equine lawyer from Oisterwijk and Amsterdam, the Netherlands.

The Control of Horses Act 2015 (CHA 2015): Question and answer on UK equine queries

The Control of Horses Act 2015 (CHA 2015) received Royal Assent on 26 March 2015. It amends the Animals Act 1971 (AA 1971) to give local authorities, freeholders and occupiers of land in England the power to deal more efficiently with fly-grazing horses. The amendments came into force on 26 May 2015. The definition of Horses includes an ass, mule or hinny.

 The CHA 2015;

  1. Gives local authorities in England a power to detain horses which are in any public place, including common land, town or village greens as well as highway verges.
  2. In addition it gives freeholders and occupiers of land in England a power to detain horses which are on their land without lawful authority .
  3. The Act also introduces a new procedure for the detention or disposal of detained horses which can be disposed of by way of sale, humane destruction or disposal 96 hours after detention.

Question and answer on UK equine queries

What if somebody wishes to buy a plot of land from a local farmer to keep horses on. The field is currently used by the farmer to graze sheep. The buyer  intends to use the field to house, graze and exercise  horses. Will planning permission be required?

Answer

Planning permission will be required if the local planning authority consider there is a material change in use of the land from agriculture to the keeping of horses for recreational purposes.

Material change of use

Under the Town and Country planning Act (TCPA 1990), planning permission is required for the carrying out on land of any development

Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land”

As such, there is a basic requirement for planning permission to be obtained if there is a material change of use of any buildings or land.

The TCPA 1990 does not define “material change of use”. However, the use of land for the purposes of agriculture or forestry does not constitute development and therefore does not require planning permission. Agriculture includes the:

  • Breeding and keeping of livestock (including where kept for the production of food or using in the farming of land).
  • Use of land as grazing land.

In Belmont Farm Ltd v MHLG (1962) 13 P&CR the Court held that the term “breeding and keeping of livestock” in the statutory definition of agriculture did not apply to the breeding and keeping of horses (except in connection with any farming use).

If the buyer intends to use the field only as grazing land it will be an agricultural use and planning permission will not be required (even if the horses are recreational horses). However, the horses must only be on the land for the primary purpose of grazing. If the horses are given supplemental feed and kept in the field for exercise and accommodation the predominant use of the land may not be agricultural.

In Sykes v Secretary of State for the Environment (1981) 2 All ER 954 Donaldson LJ said that the question to ask is “what use is being made of the land?”

“If horses are simply turned out onto the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by some other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals.”

In determining the use of the field the local planning authority will look at factors such as:

  • Whether the land will be used permanently for horses.
  • Whether there will be any related structures in the land such as field shelters and jumps.
  • Whether the horses will be fed primarily from grazing or from imported food.
  • Whether the land will be used as a recreational or exercise area.

Horse related structures

Structures connected with the keeping of recreational horses do not enjoy permitted development rights associated with agricultural holdings under the Regulations.

Moveable structures such as field shelters may be chattels and therefore are not development requiring planning permission. However, this depends on their size, intended degree of permanence and physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd [1949] 1 Q.B. 385 and Skerritts of Nottingham Ltd v SSETR (No. 2) [2000] 2 PLR 102).

A horse shelter is likely to require planning permission if:

  • It requires dismantling or special lifting equipment to move it as one unit.
  • It is “essential” to the welfare of the horses (as this indicates permanence).
  • Although not fixed to the ground by any mechanical means, its weight provides sufficient affixation.

(John Bartlett v East Dorset DC [2011] JPL 978.)

Swedish VAT liability for equestrian sport prize money here to stay despite EU judgment

Strictly prize money or supply of services for consideration? That is the question in the EU judgment that came close to jeopardizing how the Swedish tax authorities see the VAT liability for prize money in equestrian sports.  

Since 1991, prize money won in the Swedish harness and thoroughbred racing industries was considered subject to VAT, which helped the equine industry develop into a business with correct accounting. For many horse owners in Sweden, the VAT system provides an opportunity to recover the VAT on expenses and fees related to their horse.

“In addition to the advantages for the government, the VAT liability has also made it possible to correctly and professionally account for all revenue and expenses. It’s positive that Skatteverket (the Swedish Tax Agency) has now discussed the judgment and found a solution to keep in place the VAT liability for prize money in Sweden,” says Cecilia Tholse-Rogmark, one of the Gulliksson partners actively engaged in Equine Law.

The case in question is a Czech case that has been ongoing for the last two years. The case raised the question of whether participating in thoroughbred races constitutes a business activity subject to VAT. When the case reached the European Court of Justice last autumn, it was determined that prize money with an amount that varies depending on the horse’s ranking in the race does not constitute consideration for the supply of services (Judgment C-432/15, Bastová).

Although the Court of Justice’s ruling must be followed by all EU countries, Skatteverket teamed up with equine industry representatives to find a solution: defining the race as the supply of services for consideration on the condition that the organizer pay the exact same consideration to everyone in the starting gate for participation.

“This way, the consideration is completely independent of the contest itself and the horse’s ranking in the race. For many horse owners, VAT liability and input VAT are a key financial factor. Essentially, it’s about giving the equine industry equal rights, obligations and business opportunities,” says Tholse-Rogmark.

Skatteverket issued an opinion on 12 July entitled “Omsättning mm vid idrottstävlingar, mervärdesskatt” [Revenue in sports competitions, VAT] (reference number 202294278-17/111). Read the full opinion (only available in Swedish).

Svensk Travsport has announced that all harness race starters will receive at least SEK 500 in starting pay beginning on 1 January 2018 and Svensk Galopp will look into the matter this autumn.

Source: Gulliksson

 

The Importation of Embryos, Ova and Semen in the UK

Under the Animal Health and Welfare Act 1984

The Importation of Embryos, Ova and Semen Order 1980 as amended it is unlawful to import equine semen without a qualifying health certificate. Notwithstanding the regulations UK veterinary surgeons are regularly being asked to break the law by inseminating imported equine semen that does not have an accompanying health certificate.

 

The current law

  • All consignments of equine semen sent to or received from (or traded with) other EU Member States must be accompanied to the place of destination by an original, valid health certificate (ITAHC), issued in the country of origin.
  • It is illegal for semen to be shipped to the UK without such original certification.
  • Anyone receiving such semen without the correct original certification should not use it for insemination and should immediately inform the authorities via their local animal health office.
  • The “place of destination” is the location mentioned on the health certificate.
  • The “importer” is the person named on the health certificate –whether the agent or the owner.
  • The “offence” is committed by the importer – but only if they fail to destroy the semen.
  • Insemination is evidence that the semen has not been destroyed and therefore (for practical purposes) the offence is committed by the act of insemination.
  • A photocopy will not suffice: the legislation states “certificate” not “Certificate or copy of certificate” or “certificate or authorised copy (ie signed and dated by the vet as an authorised copy) of certificate”.

The British Equine Veterinary Association (BEVA) has reported that its members are being regularly asked to break the law by inseminating imported equine semen that does not have an accompanying health certificate.

Such practice not only jeopardises the current high health status of the UK horse population, but also risks the professional status of the vets involved. Apparently thousands of shipments of equine germinal product (semen, ova or embryos) are imported into the UK every year.  It is a legal requirement that all imported equine semen to be accompanied to the place of destination (usually to the side of the mare) by an original, valid health certificate (ITAHC), issued in the country of origin.

It appears that recently, consignments of equine semen have been imported without the appropriate health certificates meaning that there is no guarantee that the semen is free from the stated diseases or even that it is from the chosen stallion. Evidence shows that well-known importing agents have advised mare owners that these certificates are unnecessary and these businesses have also even criticised vets who refuse to inseminate mares with uncertified imported semen.

The use of uncertified semen leads to the real risk of a recipient mare becoming infected with diseases such as CEM or EVA, the potentially rapid spread of disease in breeding stock and eventual restrictions being placed on breeding premises. Recent outbreaks of Equine Infectious Anaemia (EIA) in Europe have exacerbated such health threats to the UK herd.

The personal and professional reputation of any vet involved using uncertified semen is also in danger, with the RCVS likely to take a tough line with any vets who disregard animal health laws and the high health status of British horses with some import agencies placing additional pressure on vets to inseminate mares without the necessary paperwork, even though this action illegal and places recipient mares under a direct threat from a notifiable and incurable disease. This seems particularly cavalier given the recent outbreaks of EIA across Europe.”

BEVA is supporting its members with the following protective measures:

  • Notifying owners that they must tell the agent that they will not accept semen without a valid health certificate, in order to protect the health of their own horses.
  • Reassuring all vets performing stud duties that they are right to refuse to inseminate mares with semen that isn’t accompanied by a valid health certificate, in order to protect their professional status and safeguard the health status of the UK herd.
  • Making sure owners and vets are fully aware that if they receive imported semen that isn’t accompanied by a valid health certificate they must report it immediately to their local animal health office and arrange for the semen to be destroyed.
  • Reminding agents of the law and to make them aware that all BEVA members have been advised to report any indiscretions to their local animal health office.

Horse International: Equine cloning: the legal aspects

In this issue of Horse International’s Legal and Veterinary Journal we take a look with our readership into cloning of horses and its legal implications. This article provides useful overview on the approach adopted within various jurisdiction worldwide approach cloning.

In 2012 the FEI lifted the ban on cloned horses in international competition. Almost a decade after the first cloned horse was born in Italy, Promotea. As the FEI permits clones to compete, it is interesting to look at the legal aspects of cloning. Cloning opens new and unexplored possibilities for the equine businesses. So the questions raise which jurisdictions allow cloning and which jurisdictions not? Is it possible to register a cloned horse with the studbook or not?

The EU

In 2013 the European Commission finalized a draft directive in which cloning of five animal species for food, including horses, will be banned. According to the Parliament it should have the form of a regulation, directly applicable in all member states and not only cloning for food purposes should be banned, but cloning for all purposes and also the sale of cloned livestock, theirs offspring, and products derived from them. Despite the fact that the first cloned horse was born in Italy, this will mean the end of legal horse clones in the EU. As a result there is currently no European legislation on this subject, leaving the decision whether cloning of horses is allowed or not to the member states. How long this situation will last is unclear, as well it is unclear whether the view of the European Parliament will change throughout the years or not.

The Netherlands

According to Dutch legislation cloning of all animals, including horses, exclusively for sport purposes or leisure is not allowed (article 2.23 of the Law on Animals). When the cloning is not exclusively for this purpose one can try to obtain a license from the Minster of Economic Affairs. According to our information such a license request is not yet filed with or granted by the Minister of Economic Affairs.

The US

The US has a far more, if not the most, liberal view on cloning: in 2008 the FDA (US Food & Drug Administration) published an extensive research report on cloning animals. The main conclusion: cloning poses no unique risks to animal health. Reason why the federal government did not see a reason to impose federal legislation banning cloning. As a result cloning of horses is allowed in the US as we did not find any state banning the cloning of animals.

Other countries

According to our information cloning in France is still allowed. Also in Asian countries like China it seems there is no ban on cloning. Also the UK allows cloning for non-food purposes on a license basis. According to the information of legal experts in the UK when effectuating the Brexit the plan is to lift the restrictions on cloning fully, so no license is necessary.

Studbooks

The view of most studbooks on cloning evolved throughout the years, some of them triggered by the decision of the FEI. Studbooks which allow the registry of cloned horses include the KWPN (Dutch Warmblood), the BWP (Belgium Warmblood), Zangersheide, Holsteiner Verbands, World Breeding Federation of Sports Horses (WBFSH), and the Continental Studbook USA. The American Quarter Horse Association (AQHA) as well as the Pure Bred Arab Register do not allow the registry of clones. For several years it was uncertain whether the AQHA could upheld its refusal to register clones. The uncertainty ended when the U.S. Court of Appeals for the Fifth Circuit overturned an earlier ruling ordering the AQHA to immediately begin registering clones and their offspring, thus allowing the AQHA to refuse the registry of clones.

Conclusion

The view on cloning of animals differs substantially throughout the world. The EU tries to ban cloning completely while the United States and China are fully allowing it. The FEI and most studbooks have a liberate view on cloning as well, making it possible to register clones and to compete with them internationally. When the European Union will ban cloning as well as the import of cloned animals this will mean the end of legal cloned horses in the European Union. The future will need to learn if and when the European Union will ban cloning and what the impact of cloning will be on the horse sport.

 

Written by A. Brouwers, attorney-at-law at Schelstraete Equine Lawyers.

PRACTICAL TIPS – FEI DOPING CASES

The article below was published in Horse Times.

In this edition of HT our legal experts discuss some of their thoughts on doping cases. In their daily practice they often represent athletes and horse owners in doping cases, pending for instance, before the FÉDÉRATION EQUESTRE INTERNATIONALE (THE “FEI”). In this article the experts examine the unpredictability of some doping cases.

We illustrate this article with the example of trimacionlone acetonide as the usage of this specific medication very often leads to the violation of doping / controlled medication regulations. For the purpose of this article we refer to these violations as “doping cases”. Cases involving trimacionlone acetonide demonstrate the unpredictability of doping cases.

TRIAMCINOLONE ACETONIDE AND WITHDRAWAL TIMES

Triamcinolone acetonide is a synthetic corticosteroid with anti- inflammatory effects.This medication is very often used to treat joints when a horse is not comfortable and/ or lame. If the treatment is performed correctly in the joint and the athlete observes the advised withdrawal/ detection times, then usually there should not be any complications following such a treatment. For triamcinolone acetonide the FEI advises seven (7) days withdrawal time. This is based on a single joint treatment with 12 mg dosage. The place where the injection was administered can however have significant effects on the withdrawal times and therefore also on the detection of a substance in question. From the American studies with regards to trimacinoloneacetonide it appears that the withdrawal time of seven days can be deemed correct but only under very strict and ideal conditions (the injection performed correctly) like, for instance, at the university equine clinic. In practice, the withdrawal times can be much longer than earlier expected.

The Association of Racing Commissioners International in North America recommends withdrawal times for intra-articular (IA) of seven days for triamcinolone acetonide based on 9 mg dosage. However, the problem is that, as the FEI correctly recognized in its regulations, horses are athletes that cannot speak for themselves. They cannot inform the veterinarian in question whether the needle has been injected properly in the joint and not, for instance, in the muscle. If the latter the case, then the withdrawal times get considerably longer.

TO COMPETE OR NOT COMPETE AFTER A TREATMENT?

Many vets to whom we speak in our daily practice are very reluctant to advise on any withdrawal time when treating sport horses. Various factors may specifically influence the withdrawal times, so you really need to investigate the horse very well. The vet must be familiar with the physiology of the horse in question in order to make a correct assessment on the withdrawal times. It must be mentioned that the FEI recommendations have been based on a very limited number of horses so even though the withdrawal times are officially published they should be treated only as guidelines. Reportedly, there have been cases involving withdrawal times of trimacinolone acetonide being 30 and 40 days. If an athlete wants to compete with the horse after this treatment he should – together with his vet – consider the matter and take a safety margin into account. It is further advisable to well-document the treatment and the decision to be made as – if things go wrong – the athlete can provide evidence to the FEI in possible proceedings.

THINKTWICE BEFORE AGREEING TO “ADMINISTRATIVE TRACK” SETTLEMENT

Athletes sometimes agree to the so- called “administrative track” of the FEI in which they can pay a certain amount for the violation and then go on with competing. This seems tempting at first sight, but in reality only a few athletes realize what the consequences are. If for example you are charged with doping within four years after such admission, then this first violation “settled via the administrative track” will count as first violation and the new violation will be qualified as a second violation. The penalties may be then doubled by the FEI. By three violations within the period of four years the athlete in question has a problem with the FEI. We are not saying that choosing the “administrative track” is not correct, but it always good to consider which options one has in the case at hand. Sometimes, it might be better to enter into a voluntary suspension and sometimes to fight the case.

CONCLUSIONS: GUILTY UNTIL PROVEN OTHERWISE

Contrary to criminal proceedings the doping regulations worldwide assume that the “person responsible” (the term under the FEI jargon for the person accountable for the horse) is guilty until he proves otherwise. It is then up to him to prove otherwise. Talking specifically about the equestrian sport it comes down to the following. The person responsible accused of the violation needs to demonstrate that he can explain how a specific medication got into the horse’s system. Stating “I do not know” has no use. Under the doping regulations the strict liability principle applies. After proving how the medication got into the horse’s system, the person responsible has to prove that he did not have “significant fault” or “negligence” in the violation of the doping regulations. The factual circumstances of the specific case are here crucial.

Very important are:

  1. proof of the assessment of the withdrawal time;
  2. not competing during that period (no enhancement of the performance); and
  3. maintenance of veterinary records. The veterinarian who treated the horse must be a person reputable whom the person responsible could reasonably trust and not a random vet. All this together can play a role in the FEI Tribunal’s decision.

FEI_detection_times_lab_2015_2.pdf

Nancy S. Loving. DVM, Corticosteroid clearance following joint injections. See http://www.thehorse.com/articles/35746/corticosteroid-clearance-following-joint-injections

For more information please contact us.

The Control of Horses Act 2015 (CHA 2015): Question and answer on UK equine queries

The Control of Horses Act 2015 (CHA 2015) received Royal Assent on 26 March 2015. It amends the Animals Act 1971 (AA 1971) to give local authorities, freeholders and occupiers of land in England the power to deal more efficiently with fly-grazing horses. The amendments came into force on 26 May 2015. The definition of Horses includes an ass, mule or hinny.

The Control of Horses Act 2015 (CHA 2015)

 

 The CHA 2015;

  1. Gives local authorities in England a power to detain horses which are in any public place, including common land, town or village greens as well as highway verges.
  2. In addition it gives freeholders and occupiers of land in England a power to detain horses which are on their land without lawful authority .
  3. The Act also introduces a new procedure for the detention or disposal of detained horses which can be disposed of by way of sale, humane destruction or disposal 96 hours after detention.

Question and answer on UK equine queries

What if somebody wishes to buy a plot of land from a local farmer to keep horses on. The field is currently used by the farmer to graze sheep. The buyer  intends to use the field to house, graze and exercise  horses. Will planning permission be required?

Answer

Planning permission will be required if the local planning authority consider there is a material change in use of the land from agriculture to the keeping of horses for recreational purposes.

Material change of use

Under the Town and Country planning Act (TCPA 1990), planning permission is required for the carrying out on land of any development

Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land”

As such, there is a basic requirement for planning permission to be obtained if there is a material change of use of any buildings or land.

The TCPA 1990 does not define “material change of use”. However, the use of land for the purposes of agriculture or forestry does not constitute development and therefore does not require planning permission. Agriculture includes the:

  • Breeding and keeping of livestock (including where kept for the production of food or using in the farming of land).
  • Use of land as grazing land.

In Belmont Farm Ltd v MHLG (1962) 13 P&CR the Court held that the term “breeding and keeping of livestock” in the statutory definition of agriculture did not apply to the breeding and keeping of horses (except in connection with any farming use).

If the buyer intends to use the field only as grazing land it will be an agricultural use and planning permission will not be required (even if the horses are recreational horses). However, the horses must only be on the land for the primary purpose of grazing. If the horses are given supplemental feed and kept in the field for exercise and accommodation the predominant use of the land may not be agricultural.

In Sykes v Secretary of State for the Environment (1981) 2 All ER 954 Donaldson LJ said that the question to ask is “what use is being made of the land?”

“If horses are simply turned out onto the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by some other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals.”

In determining the use of the field the local planning authority will look at factors such as:

  • Whether the land will be used permanently for horses.
  • Whether there will be any related structures in the land such as field shelters and jumps.
  • Whether the horses will be fed primarily from grazing or from imported food.
  • Whether the land will be used as a recreational or exercise area.

Horse related structures

Structures connected with the keeping of recreational horses do not enjoy permitted development rights associated with agricultural holdings under the Regulations.

Moveable structures such as field shelters may be chattels and therefore are not development requiring planning permission. However, this depends on their size, intended degree of permanence and physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd [1949] 1 Q.B. 385 and Skerritts of Nottingham Ltd v SSETR (No. 2) [2000] 2 PLR 102).

A horse shelter is likely to require planning permission if:

  • It requires dismantling or special lifting equipment to move it as one unit.
  • It is “essential” to the welfare of the horses (as this indicates permanence).
  • Although not fixed to the ground by any mechanical means, its weight provides sufficient affixation.

(John Bartlett v East Dorset DC [2011] JPL 978.)

Health Certificate Cross Border Horse Transports No Longer Needed

The countries Belgium, the Netherlands, the Grand Duchy of Luxembourg and France signed on the 15th of May a memorandum of agreement concerning the transport of horses. This in consequence of a new initiative of the Federal Agency for the Safety of the Food-chain (FAVV in Belgium). The main idea behind this agreement is to simplify the transport on administrative and financial grounds. Moreover harmonises this memorandum the requirements relating to the transport of equine species.
As from the first of June 2017 equine species which are transported between these specific countries no longer need an inspection by an official veterinarian before their departure. Besides that they no longer need to have a health certificate with them during their transport.

The main reason the FAVV thought their initiative was appropriate is because of the similar high standard of health of these countries concerning animals. Furthermore there is no specific risk of health, which is the FAVV’s top priority. 

On the condition that the animals shall return to their land of departure when the transit has ended, this cancelation measure is related to the transportation of:
- Equine species who are ridden (or being guided) for sportive or recreational purposes (or are meant to).
- Equine species which take place in cultural demonstrations.
- Equine species which are destined for grazing or working activities, for a maximum term of 90 days.
- Equine species which are transported because of veterinary reasons (including actions focused on reproduction, in case these actions are carried in a veterinary clinic or by a veterinarian.

To benefit from this measure the Equidae must be identified according to the legislation. This means that they have to be in the possession of a passport which is in accordance with the European legislation and besides that they must be identified by a microchip (of which the barcode matches with the code in the passport). On top of that the animals need to be registered in the central database of the partner country where they usually stay.
The countries came also to an agreement regarding to the common interpretation of the types of transport of equine species which are not subject to the requirements of the legislation regarding to the transit of living horses. 

An equal memorandum of agreement applied to three of the four countries already. The range of transport has now expanded to France. This at the pleasure of the other countries and the FAVV.

A circular in multiple languages will be published by the FAVV as soon as possible.

Source: http://www.favv-afsca.fgov.be

 

Gattiker Rechtsanwälte (EUAEL’s Swiss Alliance Partner) Joined The Law Firm Lanter Attorneys & Tax Advisors In Zurich, Switzerland

Gattiker Law was founded in 2013 by Dr. Monika Gattiker, who has specialised in healthcare and life sciences as well as in equine law for the last 15 years. This law boutique was recently on the list of 600 top law offices in Switzerland (top 20 in Healthcare and Life Sciences) of the Swiss Financial Magazine, based on a rating by 6500 lawyers, approx. 400 inhouse lawyers, the head legal counsels of the 500 biggest companies in Switzerland and clients of law offices.

The clients highly appreciated the specialized services of this law boutique. Nevertheless, Dr. Monika Gattiker considered it important to offer to her clients legal services beyond the narrow legal spectrum of the law boutique.

Therefore, Dr. Monika Gattiker decided to join the Law Firm LANTER Attorneys & Tax Advisors (founded 25 years ago). LANTER provides advice and litigates in many legal areas such as commercial law, contracts, tax, art, inheritance, construction, healthcare and life sciences, and equine law.

This new structure allows the Swiss EUAEL-Partner to serve the clients in a strong partnership with specialized lawyers and to cover their clients’ legal needs in many legal areas.

Read more about Lanter Attorneys & Tax Advisors

New Alliance partners in Germany and Sweden

European US Asian Equine Lawyers proudly presents two new Alliance Partners in Europe.

The German law firm; Berner Fischer & Partner is located in Verden (in the North of Germany) and was founded in 1912. Our new Swedish partner; Gulliksson has branches in Malmö, Lund, Stockholm,  Göteborg and Helsingborg.

Both partners are very solid and respectable law firms with lots of experience in international Equine law. We are very excited these law firms joined our alliance, and we are looking forward to a fruitful cooperation.

Klick here for more information about: Berner Fischer & Partner.

If you like to read more about Gulliksson.

 

Amendment to law for horse sales highlights the importance of equine law knowledge – Gulliksson (EUAEL Alliance Partner)

The Swedish Parliament’s Committee on Civil Affairs has decided that the Consumer Sales Act must be amended regarding the sale of live animals.
“Trading in animals is always a specialised area, but with horses, you have the professional sports angle – where one animal could ruin an entire career if it fails to meet expectations. On the other hand, sellers need to be able to confidently sell to individual buyers without running the risk of severe economic consequences. These transactions may entail substantial investments in a product subject to change. In other words, a significant amount of money with a high level of complexity and risk,” says Cecilia Tholse-Rogmark, one of the Gulliksson partners actively engaged in equine law.

The proposal was put forward by a Member of Parliament from the Moderate Party along with the Alliance parties in the Committee on Civil Affairs and a majority was secured for the proposed revision of the law. The aim is to safeguard the horses and other animals that risk harm during the interim period when the processes between buyer and seller are ongoing. In brief, the Consumer Sales Act, which applies to transactions between businesses or sole traders and individuals, poses a risk to the seller because it stipulates that a product can be returned if it shows evidence of a latent defect within three years of purchase. For the first six months after the purchase, the burden of proof is on the seller to prove that the defect did not exist before the purchase was made. The seller may be liable for the buyer’s costs if they fail to prove that the product was free of defects when sold. The Consumer Sales Act is mandatory, which means that it cannot be contracted away between the buyer and seller to the detriment of the buyer. The Sale of Goods Act applies to sales between two equal parties, as in business to business or individual to individual transactions, and has a limitation period of two years for latent defects, but the buyer must prove that the defect existed prior to the sale. In contrast to the Consumer Sales Act, the Sale of Goods Act is non-mandatory and thus may be contracted away.

“Personally, I have sometimes felt that transactions related to equestrian sports and businesses have not been taken seriously enough, which is surprising considering their size. I welcome the revision of the law on trading in live animals. In addition to the health and wellbeing of the animals, this business involves substantially high values, greater complexity and an increasing number of international transactions,” says Cecilia Tholse-Rogmark, who recommends always seeking legal expertise when buying or selling a horse of substantial value.

Gulliksson provides advice in all areas of business law, including a team with vast equine industry knowledge who can provide advice and specialised expertise in equine law.
Equine law is not only part of the civil law governing issues relating to sales and damages, but also it encompasses areas such as labour law, contract law, company law, mergers and acquisitions, property law and construction law. Gulliksson handles all types of business disputes, from those settled in general and administrative courts to authorities and arbitration tribunals. We represent clients who are in negotiations, court procedures, arbitration procedures, mediation, international dispute resolution and alternative dispute settlement.

“We follow the legislative changes in equine law with great interest and are experienced in processes which extend beyond Sweden’s borders.”

More background information about the proposal can be found in Swedish on the Swedish Horse Industry Foundation (HNS) website. The proposal will be voted on in the near future.

Source: Gulliksson (EUAEL ALLIANCE PARTNER SWEDEN)

Introduction – European US Asian Equine Lawyers

I am honoured and pleased that so many outstanding Law Offices showed their interest in our new Alliance:  EUROPEAN-US-ASIAN EQUINE LAWYERS.

In the last decade the Equine Industry has been growing ever since. Also the International horse deals keep increasing annually.

My firm, Schelstraete Equine Lawyers, focuses her practice on the International clients as a result of which we have been working with cross border Equine Law Specialized Lawyers to whom we have introduced many clients and files.

The time has come that these International developments are to be formalized by means of creating an Alliance Group which has been set up in the beginning of 2017. Through this Alliance Group of independent partners we provide the Equine Industry knowledge, understanding and experience.


The alliance group at the first annual meeting – The Netherlands

Thanks to this Alliance we will be able to provide our clients with a thorough advice. This is not only the case when it comes to the sale and purchase of horses, but also in the event that a dispute arises after the sale and purchase and a civil litigation procedure, often taking place abroad, seems inevitable. As an Alliance Group we will also be able to provide support to our Partners with specific knowledge related to other areas of expertise such as International collaborations, FEI disciplinary cases, liability claims and veterinarian matters and so on.

Amsterdam – 1st of March 2017
Luc Schelstraete

Legal Rights of a buyer against a seller of a horse in England that goes lame

Under English law horses are treated as being goods and the law relating to the sale of goods applies to them.

The law regards the purchase of a horse as being a purchase of an unknown quantity. As a general rule the principle “caveat emptor” (“let the buyer beware”) will apply and, therefore, the buyer will ordinarily be responsible for checking the quality and suitability of the horse before purchasing it.

As to whether the seller of a lame horse is liable will largely depend on the terms of the contract and what was said at the time when the contract was entered into.

Under English law an agreement for the sale of a horse will include both “express terms” (those terms which were specifically agreed between the parties) and “implied terms” (terms implied by law or trade conduct).

It will be an express term of sale that the seller will sell to the buyer the horse and that the buyer will pay the seller an agreed amount for the horse. Frequently nothing more may have been said by the parties at the time when the agreement was made. However the law may imply terms into the contract, for example, by the Sale and Supply of Goods Act 1994. For B2B contracts and The Consumer Rights Act 2015 for consumer agreements

The Sale and Supply of Goods Act 1994 implies into a contract for the sale of goods in a B2B agreement certain terms as to the quality of the goods being sold where such goods are sold in the course of a business. However, in the case of the sale of a horse because the purchase of an animal is an unknown quality a Court may be reluctant to imply terms as to the quality of the horse, unless a defect is known to the seller or is very obvious to the seller.

Where a seller sells animals in the course of a business and if an animal is sold for a particular purpose and that purpose is made known to the seller before the agreement was made and the buyer relied on the skill and judgment of the seller, then it will be an implied term of the agreement that the animal was reasonably fit for that purpose. A lame horse is not fit for the purpose of being ridden and, therefore, if the buyer made it clear that they wanted a horse for riding purposes the seller may be liable.

If prior to a contract being made the seller makes representations or statements as to the temperament or condition of the horse, the seller will only be bound by statements that amount to a term of the contract and will not be bound by mere “puffs”. As to whether a statement amounts to a contractual term depends upon the specific facts of each case. If a great deal of importance has been placed on the statement by the buyer at the time of the contract, or if the buyer relied on the skill and judgment of the seller then the seller is more likely to be bound by the statement.

If the seller breaches one of the terms of the contract. What rights does this give the buyer?

The terms of a contract are classed as “conditions” and “warranties”. A condition is a term, which goes to the very root of a contract. Where a condition is breached the contract is said to have been “repudiated” (brought to an end) and the other party will be allowed to discharge the contract and, if appropriate, bring a claim for damages. A warranty is a more minor term and if breached will enable the other party simply to bring a claim for damages.

Whether a term amounts to a condition or a warranty will depend upon the facts of a particular case.

Under The Sale and Supply of Goods Act 1994 terms relating to quality are regarded as being conditions where goods are sold in the course of a business.

A seller is not liable for any “patent” defects. A patent defect is one which is so obvious that the purchaser should have seen the defect himself before the agreement was made. If therefore, it was obvious that the horse was lame when it was purchased the seller will not be liable for the lameness.

What rights does a buyer have if the seller misrepresents the condition of the horse?

If the seller makes a false statement of fact in relation to the horse and that statement induced the buyer to enter into the contract, then the buyer may have a claim for damages against the seller for misrepresentation. In such circumstances a Court may order the “rescission” of the contract. Rescission has the effect of unmaking the contract and thereby putting the parties back to the position in which they were before the contract was entered into. The Court has the discretion to order rescission and there is no automatic entitlement to it.

Schelstraete Lawyers receives invitation for Global Legal Alliance Conference

Schelstraete Advocaten, The Dutch member of the Global Legal Alliance (GLA), will participate in the annual conference in Hong Kong and Shenzhen from the 5th to the 7th of December 2016.

GLA is a not-for-Profit Organisation which commits to bring together the best of legal service providers for some roundtable discussions on the development of international business. The theme of the annual conference is “the Development of International Legal Business Under the “One Belt, One Road” Initiative.

The GLA has members in China, US and Europe.

US client wins case from Belgian horse dealer concerning the horse’s character

Our client, a consumer buyer from the US, purchased a showjumper from a Belgian horse dealer. Soon after the horse arrived in the US it started to misbehave and refused to jump. Because of this our client decided to start a legal procedure in front of the Belgian Court in Leuven in order to return the horse to the seller and to have the purchase price refunded to her.

On 27 January 2016 the Belgian Court stated that it was clear that the horse refused to jump within only a couple of days after the horse was delivered to the client. As the Belgian civil code rules that when the buyer is a consumer it is (legally) assumed that – when the ‘malfunctions’ develop within 6 months from delivery – the horse already did not meet the expectations of the buyer before the purchase.

Under these circumstances it is up to the professional dealer to hand over proof that there were no problems with the horse at the moment of delivery. Because the seller didn’t had this proof the Belgian Court decided to dissolve the purchase agreement between parties and condemned the horse dealer to refund the purchase price of € 42.000,00 plus interest to our client. Furthermore, the horse dealer has also been condemned to pay damages of € 2.500,- and he has to pick up the horse in the US within 6 months. If he refuses to pick up the horse he will also be obliged to pay an additional amount of € 20,- per day of delay.

Our client was assisted by EEL and our Alliance Partner in Leuven (Belgium), Beelen Lawyers.

Press release regarding the case of the Ukrainian judges Mrs Irina Shulga, Mrs Maria Dzhumadzuk and the National Equestrian Federation of Ukraine against the FEI

luc-en-piotrMessrs. Luc Schelstraete and Piotr Wawrzyniak of European Equine Lawyers, with the head office in the Netherlands, represent Mrs Irina Shulga, Mrs Maria Dzhumadzuk and the National Federation of Ukraine in the appeal proceedings against the FEI before the FEI Tribunal in Lausanne. Just to remind our  Mrs Shulga and Mrs Dzhumadzuk have been accused by the FEI of nationalistic judging during the CDI in Lier in March 2016 and were on these grounds suspended by the FEI.

Recently, whilst the abovementioned appeal proceedings have still been pending and were still considered to be “confidential and private” an article on this matter was published on Eurodressage website under the title “Ukrainian Judges Dzhumadzhuk and Shulga Suspended for Nationalistic Judging at 2016 CDI Lier”. Eurodressage confirmed later to the representatives of the National Federation of Ukraine that the source of this information was the FEI itself.

In the best interest of the dressage sport and the equestrian community Messrs. Schelstraete and Wawrzyniak consider it necessary to react – on a personal note and title –  regarding the matter. They express their concerns regarding the fundamental legal principles like fair trail and equality of arms that in their personal opinion are being violated not only in these particular proceedings but more generally in any kind of proceedings before the FEI.

“After another publication (read: the aforementioned article on Eurodressage) related to the matter we feel we need to defend our Client’s good name and reputation towards the equestrian community and public. Until now we have stuck to the procedural rules within the FEI and the requested confidentiality of the appeal proceedings but we must fairly state that the procedural rules have very little to do with modern fair trail principle. They are rather of autocratic nature and more importantly the FEI is not following them either see its press releases related to the matter. The procedures of the FEI and the material provisions of which the FEI takes disciplinary measures (not only when it comes to the suspension of our Clients that we are appealing from) are in our opinion extremely vague. We miss transparency on the decision making process (who does what within the FEI, no checks and balances and no trias politica). 

We note that the procedural rules are obscure. Paraphrasing Napoleon’s view on the constitution we could state that they are short and obscure so that the FEI can interpret them in any way they deem to find necessary. This is also what the FEI seems to do. The FEI acknowledges for instance that there is no definition of “nationalistic judging”. Yet Our Clients have been accused hereof and suspended on these grounds. According to the FEI they should have understood they were acting in any nationalistic way. The FEI investigated such and established – as they stated – proof of the nationalistic judging prior to informing Our Clients about those accusations. Later, they told Our Clients they were to defend themselves but none of the so-called evidence was presented to them until the FEI filed its response in appeal. They were found guilty before they were accused of the nationalistic judging. We also note that there were other reports and complaints about alleged “nationalistic judging” in the recent months. Some of the persons / institutions filing them did not receive any response of the FEI. The FEI seems to act in an arbitrary manner here.

The fair trial, the presumption of innocence, the equality of arms and the nulla poena sine lege principle on which modern legal systems of criminal and disciplinary proceedings are based these days do not seem to be applicable within the FEI. Since the CDI in Lier Our Clients have been media trialed without that the case has been decided on the merits. Already on 22 March 2016 the FEI judged that Our Clients were guilty of nationalistic judging. Officially, as late as 1 April 2016 they were addressed to react to the allegations of the FEI. Referring to the aforementioned FEI press communique of 22 March 2016: “This [Our Client’s judging] was a clear example of nationalistic judging and the FEI takes this very seriously”, FEI Secretary General Sabrina Ibáñez said. Opposite to modern legal systems Our Clients were found and have been considered guilty of nationalistic judging until they will prove otherwise. 

The FEI further tries to refuse Our Clients basic human rights during the process in terms of reacting to the FEI appeals, hearing of witnesses and the nature of the FEI Tribunal hearing itself. We requested a public hearing so that the press could attend too. Particularly in this case, the FEI refused to disclose the evidence regarding the alleged nationalistic judging arising of the throughout investigation to our clients. 

We would like though to appreciate the position of the FEI Tribunal that where is can do its best to take the fair trail principles into account within this very limited and obscure procedural framework. The FEI has so far acknowledged our Client’s legal interest in receiving the evidence of FEI, hearing their witnesses and reacting to the FEI appeal pleadings. The FEI Tribunal has still to decide on our request regarding the public hearing. 

Whatever the outcome of the appeal proceedings shall be, we call on the FEI and all its stakeholders to change and amend its procedural rules, judging system of the dressage events, its disciplinary rules and to update them in accordance with the 21st century standards. The current status quo will only further damage the image and the reputation of the equestrian sports and more particular dressage.

Article Horse International: Consumer protection in europe

LEGAL  AND VETERINARY JOURNAL: CONSUMER PROTECTION IN EUROPE

Mr. L.M. Schelstraete: Active in the fields of company law and equine law.  Within the equine law practice, Luc Schelstraete provides services to Dutch yet often also foreign equine businesses, riders, horse owners and equine authorities.

In this edition of Horse International we would like to discuss an interesting case of our client in Belgium, and recent case law of the European Court of Justice (the “ECJ”) that introduces, as it seems now, new possibilities for consumer buyers within the European Union. This case law is also applicable to agreements regarding horses and may lead to a significant relief of the burden of proof on the consumer’s side.

THE BELGIAN CASE OF MRS X

The EEL client from the USA, Mrs X, purchased a showjumper from a professional horse dealer in Belgium for an amount of more than EUR 40.000,-. Mrs X is an amateur rider and it was agreed between the parties that the horse had to be suitable for showjumping in amateur classes and for amateur riders. Further it was agreed between the parties that the horse that was a stallion would be castrated prior to the delivery and the transfer of ownership to Mrs X. The seller arranged for castration in a veterinary clinic in Belgium. Afterwards he collected the horse and sent it to the US. The horse arrived at Mrs X who established that the horse could not be ridden, became dangerous and was simply not rideable for an amateur. Mrs X asked a professional

rider in the US to try on the horse too. The professional rider experienced the same difficulties with the horse as Mrs X, the horse was unpredictable and dangerous for the rider. Mrs X was informing the seller accordingly about the established problem with the horse. Such appeared from among others Facebook messages exchanged between the parties. She stated that the horse would stop before an obstacle, also when ridden by a professional rider. The seller informed Mrs X that he would come to the US and try the horse himself and informed her that the reported problem would probably have something to do with the castration, the new rider, the new stables and  temperature. This all would be simply too much for the horse.

Afterwards Mrs X summoned the seller on many occasions as she could not use the horse for the intended goal of the purchase (the so-called non-conformity) and that the horse was dangerous and unpredictable.

CONSIDERATIONS OF THE COURT

The Court in Leuven considered in this case as follows. Reciting the EU Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees the  Court considered that according to the consumer law:

(1.) the seller must deliver goods to the consumer which are in conformity with the contract of sale; and

(2). Consumer goods are presumed to be in conformity with the contract if they:

(a) comply with the description given by the seller and possess the

qualities of the goods which the seller has held out to the consumer as a sample or model;

(b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;

(c) are fit for the purposes for which goods of the same type are normally used;

(d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.

The abovementioned considerations of the Court refer of course to goods and things. Animals like horses are not goods / things in terms of law and but are rather treated under the continental legal systems as things sui generis. The civil law provisions related to “goods” and “things” are however applicable on base of analogy to animals.

FACTS ESTABLISHED

On the abovementioned assumptions and considerations the Court investigated the case. Based on the correspondence the Court considered that it was agreed between the parties that the horse was meant for showjumping in the amateur classes. Further, the Court established that even though the seller said he would come to the US to visit Mrs X and to try the horse, he in the end failed to do so. The Court considered also the statement of the trainer in the US in whose perception the horse was unsuitable for the intended goal of the purchase agreement as descried above. It was also established that shortly after the arrival at Mrs X farm, the horse stopped jumping even the smallest obstacles. Even though, the Court could not establish based on the evidence in the case who initiated the castration, it considered that it was the seller who arranged for that, who brought the horse to the clinics and who subsequently collected the horse from there and sent it to the US. It was also established that the seller himself sent the horse directly afterwards to the US. Later in the proceedings, he exhibited a statement of veterinarian who adopted the point of view that horses after castration require at least 14 days of rest in the box after the surgery.

PRESUMPTION OF NON- CONFORMITY

Under the EU regime, there is a presumption of non-conformity if defect had materialized within 6 months after the delivery to the consumer. In other words the defects is deemed to be pre-existent to the purchase agreement. The seller can then try to agitate that such was not the case and that the defect is caused by the buyer, but in such situation he really needs to prove otherwise. In our case, the seller stated that the defect could have possible been caused by the castration of the horse. As said,

the Court could not establish who introduced the idea of castration, but given the established facts the Court stated the seller cannot defend him with the argument that the castration would cause the horse’s sudden change of behavior. In the end, the seller himself stated in the proceedings that after castration the horse requires rest. Something he failed to do himself.

Even if, what – nota bene – has not been established by the Court, Mrs X. would push towards a fast shipment to the US, he should have persuaded her to wait due to the horse’s best will. Such he did not do. The Court granted the claim of Mrs X and annulled the purchase agreement between the seller and Mrs X, awarding an additional amount of damages related to stalling, training and other further costs incurred by her.

RELEVANCE OF THE CASE Normally, in cases where buyers are confronted with similar problems (defects) of the horse like Mrs X was confronted with, the Courts are not easily granting the claims due to the fact that this type of defect is described as the so-called “character/ behavior problem”. It is further acknowledged that such problems can arise spontaneously and can be caused by various external circumstances. Most probably, the Court considered the seller’s conduct decisive as the seller knowing the risks of castration failed to prevent them from happening and against his better knowledge sent the horse to the US directly after the surgery and in this sense acted frivolously. Again, the circumstances of the specific

case turn to be decisive even though that at first sight Mrs X’s case could be considered very difficult.

FURTHER HELP TO CONSUMERS FROM THE EUROPEAN COURT OF JUSTICE

In the recent case (C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV) decided by the ECJ, the position

of consumers in terms of their burden of proof related to non-conformity and the described presumption of

non-conformity has been further relaxed.

The ECJ set the following conditions:

i.) the consumer must allege and furnish evidence that the goods sold are not in conformity with the contract in so far as, for example, they do not have the qualities agreed on or even are not fit for the purpose which that type of goods is normally expected to have;

ii.) the consumer is required to prove only that the lack of conformity exists; and

iii.) the consumer must prove that the lack of conformity in question became apparent, that is to say, became physically apparent, within six months of delivery of the goods. He is not required to prove the cause of that lack of conformity or to establish that its origin is attributable to the seller.  Once he has established those facts, the consumer is relieved of the obligation of establishing that the lack of conformity existed at the time of delivery of the goods. The ECJ stated that occurrence of that lack of conformity within the short period of six months makes it possible to assume that, although it became apparent only after the delivery of the goods, it already existed ‘in embryonic form’ in those goods at the time of delivery. The professional seller needs to provide, as the case may be, evidence that the lack of conformity did not exist at the time of delivery of the goods, by establishing that the cause or origin of that lack of conformity is to be found in an act or omission which took place after that delivery. It is further understood that the seller must deliver the evidence of the opposite and not just state that all problems are caused by the buyer. From our point of view this case law gives consumers in horse deals new legal also when it comes to difficult problems like character problems.

Piotr M. Wawrzyniak practicing lawyer at Schelstraete Business Lawyers and European US ASIAN Equine Lawyers in Oisterwijk and Amsterdam, the Netherlands.

If you have any questions and/or comments after reading this article, we would be happy to hear from you. You can also contact us for all equine-law related questions or matters. Please contact us via info@europeanequinelawyers.com or by telephone +31-(0)135114420.

Download the full pdf.

consumer-protection-in-europe-pdf

Article Horse International: Chinese Equestrianism leaping forward

Mr. L.M. Schelstraete

Active in the fields of company law and equine law. Within the equine law practice, Luc Schelstraete provides services to Dutch yet often also foreign equine businesses, riders, horse owners and equine authorities.

Mr Luc Schelstraete and Mr Piotr Wawrzyniak of European-US Asian Equine Lawyers attended the first Sino-European Exchange Seminar on equine industry that was organized on 28 April 2016 in Shanghai, China, and would like to report to our readership on its outcome. Usually in this column we write about legal and veterinary cases that we have been dealing with. In today’s column we will though present our readership with an article that goes beyond that. Our article refers to the aforementioned seminar. The seminar was organized parallel to and under the auspices the Longines Global Champions Tour. The seminar aimed to introduce top-level resources and experience in the equestrian industry from Europe through international equestrian events so as to establish a platform of exchange and interaction. The seminar gathered many interesting speakers and was titled “leaping forward”, a title that is very applicable to what China manifested in various fields during the recent decades. The Chinese wish to learn from the experiences of the well-established equine nations in Europe like among others the Dutch and the Germans. The seminar was organized by Cross China New Media (Beijing) Co. Ltd and hosted by Shanghai Juss Event Management Co. Ltd known among others for organizing of the Formula 1 UBS Chinese Grand Prix and the Global Champions Tour in Shanghai.

GROWING INTEREST

The seminar showed the growing interest of the Chinese in the equine business and sport. The equestrianism has been developing very fast in the recent years in China. China reported recently a growth of 30 percent when it comes to importing sport horses into China and this growth shall be sustainable. Not without a reason, jockey clubs are being established in many cities across the  ainland China. This growing interest was at the same time illustrated by the immense popularity and publicity that was given to the Global Champions Tour in Shanghai. Literally, the whole city of Shanghai lived with the event prior to the weekend on which the GCT event took place. The GCT event was held at the beautiful venue of China Art Museum, one of the landmarks of Shanghai, and attended a lot of visitors from all over China. Equestrianism is associated with luxury lifestyle in China which explains why one of the co-sponsors of the Longines Global Champions Tour in Shanghai was Noblesse, the leading luxury lifestyle magazine in China.

QUARANTINE ZONE

The seminar began with explanation of the Chinese entry and exit policies and the quarantine of sport horses in China that was given by Mr Liu Jinlong, deputy director of animal and plant quarantine division of the General Administration of Quality, Supervision, Inspection and Quarantine of the People’s Republic of China. In this respect it should be noted that the GCT event is very unique for China. The cooperation between the Chinese authorities and the GCT led to creating a special quarantine zone in Shanghai where the horses competing in the GCT were stalled and where any risks related to contacts of with the local horse population were prevented. Such allowed the horses to enter the mainland China prior to the GCT event and to leave such directly after the competition so that they could travel onwards to other GCT events held in other places all over the world. Summarizing the presentations of Mr Yao Congbin, the official veterinarian of the GCT event in Shanghai, and Mr Sin Bin, Deputy Director of Shanghai Animal Husbandry and Veterinary Office, it can be fairly stated that the cooperation between the organization of the event and the Chinese authorities is one of the key success factors of the GCT event in Shanghai. On his turn Mr Martin Atock of Peden Bloodstock explained the complicated logistic process behind the organization of the GCT events around the world and various factors (like for instance time zones, veterinary rules and schedules) that must be taken into account to ensure that the horses are delivered to the venues of the GCT timely and in top condition in order to compete.

GOOD INFRASTRUCTURE 

In his speech Mr Jan Tops, the founding father of the GCT, enthused the attendants of the conference talking about the basis of the equestrian sport in Europe. Mr Tops in his speech underlined the importance of a good infrastructure and the starting development from the very basis. According to Mr Tops the importance of the local pony clubs and riding school (as known in continental Europe, more in specific in the Netherlands and Germany) should not be underestimated. Developing the interest for the sport among children, letting them to enjoy themselves and to have fun while riding horses is crucial to achieve later successes in the sport. Hard work, dedication and discipline are important factors for a later equestrian career. Mr Tops also underlined the egalitarianism of the equine sport. In the end the equestrian sport is one of the few that lets men and women directly in the same classes.

EUROPEAN CONTINENTAL LAWS

Mr Luc Schelstraete and Mr Piotr Wawrzyniak set out the risk management of doing equine business in Europe discussing trade related issues such as pre-purchase examination, commission, the position of the trainer, disclosure of the seller and the conclusion of the purchase agreement. It must be noted in this respect that due to cultural and legal difference it may be

sometimes quite hard for the Chinese to understand the equine business in Europe, whereby as far as sport horses are concerned, Europe remains the main exporter of them to China. Additionally, the Chinese veterinary regulations make it in many cases – according to the Chinese attendants of the seminar – very difficult if not impossible to return horses back to Europe in the event of any defect or non-conformity of the horse in question. Mr Luc Schelstraete pointed out in his presentation that a possible solution for a such legal and factual problem could be for instance a claim aiming for the reduction of the purchase price or claiming damages. Next to the annulment of the purchase agreement these remedies are also available for a buyer under the European continental laws. Furthermore, Mr Luc Schelstraete pointed out in his presentation that it might be worth considering for the Chinese owners and investors to incorporate a company in Europe in order not only to mitigate the reported problems but also to have the horses bred, stabled, trained and competed in Europe. In this respect also the incorporation process of a legal entity and the VAT related issues were discussed.

FURTHER DEVELOPMENT

Mr Huang Zuping, the former coach of the national team and the competitor of the 2008 Olympic Games together Mr Chang Wei, former Secretary General of the Chinese Equestrian Association, explained the current standing of the equestrian sport in China and underlined the need for creating a pro-found basis for the further development of the sport in China and in order to allow Chinese riders to compete successfully at the very top level in international events. In this respect China needs to sustain

the growth, to invest in riding schools, clubs and to attract know-how by for instance increasing the number of European trainers and/or by sending Chinese riders for education in Europe.

LEAP FORWARD

The seminar ended with a panel discussion in which Mr Fred van Lierop, the GCT event director, Mr Chang Wei, Mr Huang Zuping and Mr Luc Schelstraete answered various questions of the attendants and discussed their experiences in the business. Concluding China is making a leap forward in the equestrian business and sport. With new jockey clubs, new venues and equestrian events across the country it is only a matter of time that China will belong to the top of the equestrian nations worldwide. The seminar is to be followed by the second edition next year during the GCT event and we are looking forward to learn and to see how much progress China will make within a year from now.

Piotr M. Wawrzyniak Practicing lawyer at Schelstraete Advocaten in Tilburg (Netherlands)

If you have any questions and/or comments after reading this article, we would be happy to hear from you. You can also contact us for all equine-law related questions or matters.

Please contact us by e-mail via info@ europeanequinelawyers.com or telephone on

+31-(0)135114420.

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2016 Shanghai Longines Global Champions Tour – Sino Europe Equine Industry Exchange Seminar

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On thursday the 28th of April, Mr. Luc Schelstraete and Mr. Piotr Wawrzyniak participated in the ‘2016 Shanghai Longines Global Champions Tour – Sino Europe Equine Industry Exchange Seminar’ in Shanghai China. Both equine lawyers were invited to speak about the do’s and dont’s of doing equine business in Europe. The conference was very successful and the input of both lawyers was highly appreciated by those present.

 

 

 


US client wins case from Belgian horse dealer concerning the horse’s character

Our client, a consumer buyer from the US, purchased a showjumper from a Belgian horse dealer. Soon after the horse arrived in the US it started to misbehave and refused to jump. Because of this our client decided to start a legal procedure in front of the Belgian Court in Leuven in order to return the horse to the seller and to have the purchase price refunded to her.

On 27 January 2016 the Belgian Court stated that it was clear that the horse refused to jump within only a couple of days after the horse was delivered to the client. As the Belgian civil code rules that when the buyer is a consumer it is (legally) assumed that – when the ‘malfunctions’ develop within 6 months from delivery – the horse already did not meet the expectations of the buyer before the purchase.

Under these circumstances it is up to the professional dealer to hand over proof that there were no problems with the horse at the moment of delivery. Because the seller didn’t had this proof the Belgian Court decided to dissolve the purchase agreement between parties and condemned the horse dealer to refund the purchase price of € 42.000,00 plus interest to our client. Furthermore, the horse dealer has also been condemned to pay damages of € 2.500,- and he has to pick up the horse in the US within 6 months. If he refuses to pick up the horse he will also be obliged to pay an additional amount of € 20,- per day of delay.

Our client was assisted by EEL and our Alliance Partner in Leuven (Belgium), Beelen Lawyers.

Horses' rights in sales

In our legal practice, which is focused completely on equine law, we are offered cases involving the purchase or sale of a horse or pony on a daily basis. In this type of disputes, often it turns out that especially consumer buyers are not always aware what they are getting into, and lack insight
in the adequate care and training of a horse. They also lack understanding of their own obligations towards the purchased horse.
Click here to read the full article: Horses-rights-in-sales

Positive drugtest caused by Luzerne?!

An interesting statement was recently placed on the website of the BHA (www. Britishhorseracing.com): ‘Regarding the finding of the Disciplinary Panel that seven horses which were found to have tested positive for morphine and oripavine should be disqualified from their respective races, but no action be taken against the trainers involved.

Jamie Stier, Director of Raceday Operations and Regulation for the British Horseracing Authority (BHA), said: “It was BHA’s position in the hearing that the source of the positive samples for morphine and oripavine was a contaminated batch of feed and that in the circumstances the trainers took all reasonable precautions to avoid breaching the Rules of Racing. As such BHA submitted that no penalty should be imposed on the trainers, however, in accordance with the Rules of Racing, the horses involved should be disqualified from the relevant races. The Disciplinary Panel today agreed this position.

“The Rules are clear on the matter of disqualification. Once a horse has been found to have had a prohibited substance in its system on raceday then disqualification of the horse must be the result. The administration of the substance was accidental and no fault of those connected to the horse but, while it is unfortunate for those involved, no other approach would be acceptable when the cornerstone of our policy is ensuring a level playing field for all participants.

“Instances of feed batches becoming contaminated are, thankfully, very rare. It has been an unfortunate situation for those involved, especially the connections of all the horses affected. BHA has worked with the trainers and NTF throughout, as well as the feed manufacturers and their representative body the British Equine Trade Association (BETA) to control and manage the consequences of this contamination as best as possible.” ’

At this very moment several FEI cases are pending in which horses were tested positive for Morphine and Oripavine. As soon as the outcome of these cases is known we will post an update on our website www.europeanequinelawyers.com. Horse owners all over the world should be aware of this issue so they can take the necessary precautions.

Horse seized?

Question

On account of a rent arrears the creditor has had my horse seized through a bailiff. As a result I, for example, cannot transport the horse without permission. Is this attachment valid? What measures can I take?

Answer European Equine Lawyers

When a debtor refuses to pay the rent on time and this creates a rent arrears, the creditor can impose an attachment, so that he increases the chance that his claim will be paid as much as possible. This is called a prejudgement attachment. In order to impose an attachment the creditor must first obtain a so-called ‘leave to attach’ from the court in preliminary relief proceedings. As soon as the court has granted the leave, the judgment creditor usually has 14 days to start legal proceedings. During these proceedings the claim of the creditor is further examined and it is assessed whether the attachment is valid.

As soon as a movable item, such as a horse, is attached, this means that the owner is not allowed to alienate (sell or encumber) the horse. However, this does not imply that the horse may not be transported.[1] This is different if the accompanying passport has also been attached. On the basis of the Identification and Registration legislation, which legislation is based on European regulations, a horse must always be accompanied by his passport.

Besides the payment of the rent arrears, there are two possibilities to lift the attachment. First of all, there are the so-called preliminary relief proceedings for lifting an attachment. With these proceedings the debtor can state at the court why the attachment should be lifted. The grounds on which the court can lift the attachment are stated in article 705 of the Code of Civil Procedure. The court can lift the attachment, for example, if the judgment creditor has not complied with all procedural requirements. If ‘prima facie evidence shows the invalidity and/or lack of necessity of the attachment’. The attachee has to prove that this is the case. In order to decide about this the interests will be mutually balanced. On the one hand there is the judgment creditor who runs the risk that he cannot recover his claim when the attachment is lifted and on the other hand there is the attachee who will incur a loss as a result of the attachment when the claim is defective. Furthermore, an attachment can be regarded as ‘unnecessary’ if the debtor provides sufficient opportunity for recovery and when there is no risk of embezzlement (in other words, the sale of the horse). When reading the case, I think that the rent arrears actually applies. It is for this reason that it is not automatically plausible that the court will proceed with lifting the attachment on account of the invalidity of the imposed attachment. However, the court will proceed with lifting the attachment if the attachee offers provides sufficient security.

Besides these so-called preliminary relief proceedings for lifting an attachment there is also the possibility – without the requirement of legal proceedings – to offer a bank guarantee to have the attachment lifted. Then the bank will provide security to the creditor that a certain sum, that is to say, the level of the rent arrears, will be paid when the judgment creditor is proved right in the proceedings on the merits. As soon as a bank guarantee is provided, the attachment must be lifted, see article 705, paragraph 2 Code of Civil Procedure.

When a horse owner is confronted with an attachment on his or her horse, this is obviously a very unpleasant situation. In these cases it is always advisable to consult a lawyer, who can examine the validity of the attachment together with you and, if necessary, can take the required legal steps on behalf of you.

This question has been answered by Mr Luc Schelstraete, LLM. and Mrs Nikki Hamers, LLB. of European Equine Lawyers.

Is a vet liable for an injury that happened in the clinic?

Question: I took my mare to the vet clinic for artificial insemination. In the stable my horse got clamped when lying down and due to this injured her leg. Who is liable in this case and will take over the costs?

Answer Schelstraete Lawyers:

Before taking a horse to a vet clinic, a treatment contract is signed with the clinic. Those contracts often refer to the general terms and conditions that apply to the signed treatment contract. These general conditions, often named small print, in some cases exclude the liability of the vet clinic and/or the vet.

The content of the treatment contract as well as possibly the general conditions in the special case are unknown, therefore we cannot refer to this.

However one can ask, if it is generally possible to let the clinic take over costs that were induced by the horse itself. In this case the horse got clamped during lying down. This is something that can easily happen at home in the stable too. The fact that from this a serious leg injury resulted does not change anything about this.
In this situation we can therefore give a short reply. The vet clinic can in principle not successfully be made liable by the owner of the mare. There is no sign that the clinic is to be blamed and/or that the clinic acted careless and therefore caused the injury. Possibly a different conclusion could be drawn if the stable was unsafe, putting the horses at an increased risk for clamping.

We have to come to the conclusion that the owner herself is responsible for the leg injury and has to take over the resulting costs in this case.

This question was answered by Mr. Luc Schelstraete and Ms. Nikki Hamers from European Equine Lawyers. For further information please mail to info@schelstraete.nl or give us a call via  +31 13 511 44 20.

Money back due to bad training?

Question:

I have put my four year old horse in training in order to “break” him. I got the affirmation that normally after a month the horse would control the basics (walk, trot, gallop, stop, left and right). After three weeks they still couldn’t really do anything with him so I extended the training period with three more weeks. After 6 weeks I decided to pick him up even though the horse was not really “broken”. Now I got it for two weeks at home and he takes on the work actually very easily. I have the idea that they have practically not trained him during the period my horse was at their place. Is there anything I can do to reimburse the training costs because I am dissatisfied with the quality of the training?

Answer of European Equine Lawyers:

First we need to see whether parties have signed a contract. With the abovementioned facts I cannot judge whether there is a training contract.

If there is a contract available it is important to see which ‘aim’ parties have agreed on. For instance, “break a horse”, prepare a horse for a test or train a horse to compete in competitions. With these types of contracts it is important to know that there is an obligation to make a serious effort for the trainer. This is contrary to the obligation to accomplish a certain result. People should understand that when you are working with an animal 100% guarantees to achieve a certain result cannot be given. There is a number of reasons which can prevent a certain goal from being reached. When the horse owner can prove that the horse was not trained properly or not at all the case could be different. The question is how you can prove a horse is not trained (properly).

Assuming there is no training contract the answer is as follows. When there is no written agreement it is very difficult to determine what the parties could be expecting from one another. When it is not clear what parties had agreed on it is very difficult to hold one liable due to ‘bad’ training. Based on the facts given the horse owner will not be able to reclaim the training costs she already paid to the trainingstable/trainer. The only thing that the horse owner could try is to get in contact with the trainer and discuss the matter in order to reach solution that will satisfy both parties.

This example shows once again how important it is to put your agreements in writing. Schelstraete can advise you with all kinds of contracts, such as purchase contracts, stabling – and training contracts. Putting agreements on paper can prevent problems afterwards.

This question is answered by mr. Luc Schelstraete and Ms. Nikki Hamers from Schelstraete Lawyers. 

Click here to read the article on the site of Horses International.

Competitions and Exonerations

Dutch equestrian competition organisers frequently use liability exclusions, or so-called exoneration clauses. Prior to competing, participants often are required to sign an exoneration clause, so the organising committee of the event cannot be held liable in case of an accident for any damages suffered by the competitor and/or their horse.  Read the full article here

Rider gets compensated for eventing accident

Organizing committees of Dutch equestrian competitions more than often use exclusions of liability; so-called exemption clauses. By using this, participants declare to agree to these exclusions when they sign up for a competition, so the organizing committee cannot be held liable for any damage that happens to the participant or his horse during the competition.

However, on 20 May 2014, the Court of ‘s-Hertogenbosch, rendered a decision from which it follows that invoking an exemption clause is not always successful; especially not when the organizing committee has failed to comply with applicable national and international regulations of the Royal Dutch Equestrian Federation (hereinafter called ‘KNHS’) and the Fédération Equestre Internationale (hereinafter called ‘FEI’).

The case was as follows:

Organizing committee X organized an eventing competition back in October 2010 under the auspices of the KNHS. An eventing competition consists of (1) a dressage test, (2) a show jumping class and (3) a cross-country. The cross-country takes place in a natural environment, such as forests and meadows. During a predetermined route rider and horse must jump various obstacles such as ramparts, water passages, ditches, structures with tree trunks and such kind of objects; but also so-called mobile obstacles. The cross country was built by very experienced course designer Y who held a KNHS license.

Competitor Z registered for this competition and accepted in this framework among others the applicability of an exemption clause. After competitor Z successfully finished the dressage test and the show jumping class, he started the concluding part of the competition; the cross-country. When riding to the final obstacle, the horse did not jump high enough and it came into contact with the obstacle. As a result of this, Z and his horse both fell. The horse was so badly injured that it had to be euthanized on the spot by a veterinarian and Z suffered injuries to his ribs.

The final obstacle was a so-called mobile obstacle in the form of a farm house.

This obstacle was put in place by a tractor and pushed from above into the ground. The obstacle, however, was not propped nor attached to the ground with any anchoring. After the collision with horse and rider, the obstacle tilted in the direction of the horse and rider and fell over.

In the applicable terms it was listed (1) that the competition would be held according to the rules and guidelines for the eventing competitions, held under the auspices of the KNHS, and (2) that the organizing committee, nor any other person concerning the competition, could be held liable or responsible regarding any damage to persons, horses and / or material. Both participants and visitors participated and / or were present at their own risk.

Rider Z started a legal procedure against organizing committee X and course designer Y, in which he claimed compensation for the damage he suffered. Organizing committee X and course designer Y defended themselves by invoking the exemption clause. Both the Court of first instance and the Court of Appeal judged that the exemption clause could not be invoked.

In Dutch law principles of reasonableness and fairness can prevent that one can invoke a contractual term.

Whether these principles are to be applied in a particular case depends, according to existing jurisprudence, on all relevant circumstances of the case, including the nature and the further content of the agreement in which the contractual term appears, the social position and relationship between all parties, the manner in which the contractual is established, the extent to which the other party has been aware of the scope of the contractual term and, with exemption clauses, the degree of fault in relation to the cause of the damage, also in connection with the nature and severity of the involved interests. An exemption clause should remain inapplicable if the damage is caused by intent or conscious recklessness of the party held liable.

In the opinion of the Court of first instance and the Court of Appeal organizing committee X and course designer Y made a serious mistake by not securing the obstacle causing rider Z and his horse to fall down, so that due to the principles of reasonableness and fairness the exemption clause could not be invoked.

The Court of Appeal motivated its decision as follows:

1) According to applicable national and international regulations of the KNHS and FEI, it is of the highest importance that all mobile obstacles will not fall down when touched by rider and horse. Even if from those regulations it cannot be inferred that the obstacle must always be anchored to the ground, the regulations say that knocking down an obstacle must be avoided at all time. This can possibly also be achieved with a sufficiently solid strut but this also was not the case.

2) For the organizing committee X and course designer Y it was not difficult to take precautions, such as anchoring the obstacle to the ground or strutting it with heavy beams.

3) When building loose obstacles, one must take into account that serious injuries and financial losses can be caused.

4) Rider Z did not have to be aware that the obstacle was loose.

5) Besides all above, both organizing committee X and course designer Y were insured against liability.

The Court of first instance sentenced organizing committee X and course designer Y to compensate all damages to the rider Z and the Court of Appeal confirmed this decision during the appeal.

However, this does not mean that organizing committees can never invoke an exemption clause. Every time, all relevant circumstances of the case are decisive. However, if the applicable national and international regulations of the KNHS and the FEI are not respected, then in most cases an organizing committee cannot invoke an exemption clause due to the principles of reasonableness and fairness.

The whole decision can be read on www.rechtspraak.nl and then by searching on: ECLI:NL:GHSHE:2014:1426. For more information about this subject please contact Mr. V. Zitman of Schelstraete Advocaten through email info@schelstraete.nl or +31 13 511 4420.

Why it is important to measure a pony

Pony or horse? That was the main question which the Judge of the District Court Zeeland-West Brabant was confronted with on February 7, 2014. An Austrian purchaser started this case against a Dutch seller who was represented by Mr. L. Schelstraete of European Equine Lawyers.
The issue involved the sale of a pony in mid November 2011. The buyer bought this pony for her daughter with the aim to participate in National and International Championships. Two years after the purchase, the buyer accused the seller that the height of the pony was more than the maximum height permitted by the FEI regulations. This means that participation in international competitions would not be allowed anymore. In support of the claim, purchaser submitted two results of measurements made late 2013, showing that the pony exceeds the maximum height for a pony.
Seller defended himself by arguing that the presentation of the results dating from the end of 2013 showed that the pony at the time of delivery in mid-November 2011 would be too tall. Indeed, the results of the end of 2013 say nothing about the height of the pony two years earlier. European Equine Lawyers defended the seller by concluding that the results of the measurements dating from the end of 2013, show no relation that the pony had the same height at the time of delivery in November 2011. Furthermore the seller reasoned, using statements made by a veterinarian and farrier that various circumstances such as the thickness of the horse shoes and the method of training, can influence the height of a pony.
The Court followed the defense of seller and dismissed the claims of the purchaser in a judgment dated 21 February 2014.

Is my vet liable for doping?

Question: My horse has tested positive for doping at an international jumping competition. Later it turned out that it was a medicine that my horse got six weeks before this competition. My vet said I could compete again after four weeks, is my vet liable?

Answer Schelstraete:
To hold a veterinarian liable is not easy. This is evident from the jurisprudence of the FEI. It is declared that the rider of the horse is classified as ‘Responsible Person’. As the rider of a horse, you are finally responsible for what the horse is given. Whether this for example is done by bad luck, a mistake by a groom, a veterinarian, etc., the rider is responsible. When you start a procedure for the FEI Tribunal considering that you have relied on the advice of the vet this will not have much effect.

Compensation could possibly be claimed If there is clear evidence that the vet actually said that you could compete again within four weeks. But you will have to have this written down by the vet, otherwise the vet will certainly deny. Besides that, you will also need to prove that the drug always is traceable after six weeks in the blood or urine, or that this happened because of the specific circumstances. In addition, it should be established what damage was suffered by the wrong advice, with the earlier named issues, it makes it hard to discuss the liability of a veterinarian. It is therefore important as a rider, to delve into what is or is not allowed and what is the detection times for the given medicine.

Who is responsibile for a pregnant mare

Question: Who is responsible when I buy a pregnant mare and something goes wrong what leads to the death of the foal? And what if I bought the mare, but the unborn embryo remains the property of the vendor? Or how about this when I only bought the embryo and the mare stays with the owner?
Answer Schelstraete: The main rule is that the owner of the horse is responsible for his animals and his animals causing any damage to property or third parties. This is called a liability. When you buy a pregnant mare, you are – unless you have agreed anything else with the seller – also automatically the owner of the foal that is still in the mare. If anything happens with mare or foal, it is for your own risk.
If you have purchased the mare but you have agreed that it is yet unborn foal remains the property of the seller, both sides can make agreements about the risks. Who would then be responsible (liable) in case the foal dies of course also depends on the cause of death. For example, if the mare in any way has caused the death of the foal or the owner of the mare has been negligent in the care for the foal, it could be argued that the owner of the mare (partly) is responsible or liable for the damage. If the foal dies without ant influence from the mare or the owner, it is obvious that the the risk is for the owner.
The situation is the same in the third case. If you only own the embryo, the cause of death and the influence of the owner and mare also have to be investigated. In such cases as described above, it is highly advisable that both parties agree about who is responsible in case of damage or death of mare and / or foal. To avoid discussions, write all agreements down on paper and have it signed by both parties.