Surveyor Liability?

[gman013]

I'm hoping someone could shed some light on our experience with a surveyor. In June, we purchased a 1998 330 Sundancer in Florida and had it transported, by truck, to our marina in Ottawa, Ontario. However, before we made the purchase, we had a marine survey done before we signed the deal. The survey came back acceptable with only minor issues identified. nothing mechanical. So, when we get the boat into the water when it arrives, it starts to squeal and there is tons of mechanical problems with it (like we had an oil leak, the props are bent, cutless bearing had to be replaced etc.) All things that the survey indicated were fine. Has anyone has this happen? Is there recourse against the surveyor... thanks for your time.

 

[Presentation]

I'm hoping someone could shed some light on our experience with a surveyor. In June, we purchased a 1998 330 Sundancer in Florida and had it transported, by truck, to our marina in Ottawa, Ontario. However, before we made the purchase, we had a marine survey done before we signed the deal. The survey came back acceptable with only minor issues identified. nothing mechanical. So, when we get the boat into the water when it arrives, it starts to squeal and there is tons of mechanical problems with it (like we had an oil leak, the props are bent, cutless bearing had to be replaced etc.) All things that the survey indicated were fine. Has anyone has this happen? Is there recourse against the surveyor... thanks for your time.

I’m going to be following this thread with interest.

Locally someone else had a similar situation with a Florida boat and Florida surveyor.
In the end both outdrives needed to be replaced due to corrosion issues that were checked by the surveyor.

They got nothing from the surveyor other than a response that the surveyor claimed they had never before had a complaint.

 

[Alex D]

Usually there is a big fat liability disclaimer in the survey agreement that you would have to challenge in court, so get ready for a prolonged legal battle.

 

[kpetry]

Usually there is a big fat liability disclaimer in the survey agreement that you would have to challenge in court, so get ready for a prolonged legal battle.

Sorry! +1

 

[Cincy Aquaholic]

I'm a lawyer and might consider looking into this for you. Obviously you contracted for a service and for the service to be done right regardless if there's a disclaimer. This could actually be an interesting area of law. I defend physicians in malpractices cases and I see no real significant difference here except the existence of a contract.

 

[fwebster]

But, you will most likely find that the surveyor has language in his contract limiting him to provide his best efforts. Also, most of the examples given are for mechanical defects and the surveyor was most probably a hull surveyor. His contract terms will state that he will check for operation of the mechanicals but will not render an opinion of their condition. This is the reason that you normally see recommendations here to do both a hull and a mechanical survey.

 

[nickysc]

I'm a lawyer and might consider looking into this for you. Obviously you contracted for a service and for the service to be done right regardless if there's a disclaimer. This could actually be an interesting area of law. I defend physicians in malpractices cases and I see no real significant difference here except the existence of a contract.

:smt038:smt038:smt038:smt038:smt038:smt038:thumbsup::thumbsup::thumbsup: There should be TEETH in everything!!!!!

 

[Presentation]

Thinking about this has me considering doing a 180 degree change on my opinion of getting a survey before buying a used boat.

I can turn on a switch and verify some item is functioning.

I would need a marine mechanic to do some very specific tasks such as a engine compression check, pulling the drives for inspection of the coupler, and a few other things.

I'm thinking a full blown survey may give no more reassurance of a quality used boat then doing a detailed self check complemented by a certified merc mechanic doing some specific checks that would vary depending on the boat and its options.

 

[JimT]

I had a survey done when I bought my 280 SA in July. There are more exclusions, disclaimers, limitations, etc. in that document than actual information. That's not to say the surveyor didn't do a good job because I think he did. He found a number of problems that the dealer corrected. I was there for the survey and I think that makes a difference. If your surveyor missed a problem that should have been discovered with a visual inspection you may have some recourse. Otherwise I think you will have a hard time due the numerous exclusions.

 

[Alex D]

For me the survey is only one of the many check marks. Here is my process:
- First get references on surveyors here or from some of the other reputable forums. The surveyor should be a member of SAMS or NAMS and there are often sources for how good they are.
- Then I ALWAYS take my sea ray dealer along. They have been selling and servicing sea rays from 18 to 60 ft. since 1966 and he is incredibly knowledgeable. I use him as my buying broker which causes the selling broker to have to split their commission with him, but I don;t care.
- We together do a thorough sea trial on a personal visit to the vessel after we made the offer w/earnest money and it was accepted.
- We specify that the engine, genny and all systems have to have been shut down for at least three days when we arrive so we can see how things start and warm up from dead cold. We inform them that if they cannot ensure this, we will immediately depart and reject the vessel acceptance by default.
- We check all fluids and electrical systems ourselves. Lastly I will be present at the time the survey is done and the boat is hauled to inspect it and if possible take my dealer along.

- On diesel powered vessel an engine survey by the engine manufacturer would be a must bar none. trouble with diesels will get very expensive in a hurry.

We use our own hauler that has worked with my dealer for a long time to ensure quality service.

 

[Turtlesboat]

let me guess. Repo'd boat?

 

[Henry Boyd]

A number of years ago the company I worked for tried to include one of the large classification societies as a defendant in a warranty action against a shipyard over defective construction practices and shoddy materials. Despite being contractually responsible for providing owner's quality assurance in these areas, the class society was protected by their disclaimers and limitations of liability.

Marine surveyors as an industry have had a couple centuries to perfect their contract language, so if the surveyor in question used industry standard language, it seems doubtful to me there is any recourse.

Henry

 

[fwebster]

Not so fast on the self survey idea...............most insurance companies will require a C & V survey on a newly purchased vessel more than a few years old (varies by carrier) before binding coverage.

 

[Alex D]

Not so fast on the self survey idea...............most insurance companies will require a C & V survey on a newly purchased vessel more than a few years old (varies by carrier) before binding coverage.

Absolutely ... and the financing institution will too!

 

[JediJD]

OK...my $.02 about suing surveyors...

A couple of practical issues beyond disclaimers...first, you have to (generally) sue them where they are. Often that is geographically inconvenient. Second, if they are geographically convenient, AND if you can get around disclaimers...what are your damages?

Often the damages are pretty speculative. It isn't as clear as "The surveyor didn't see the obvious damage on the outdrive, thus I get a new outdrive". You were buying a boat with a used outdrive to start with. Also, in the real world, if a surveyor finds a problem, the seller may/may not want to fix it to sell the boat. You may/may not accept the boat anyway. You purchased opinion information to help you evaluate and negotiate so often your damages are not the substantial amount of repair, but rather the much smaller difference in value of the boat with the problem identified vs. the value of the boat without the problem identified.

Third, cases like these are usually treated as "breach of contract" cases. In most jurisdictions, it is very difficult to get attorney's fees when you prevail. If the lawyers are paid by the hour, they are probably not going to lose, but either the plaintiff or defendant will. If you are suing, and your damages don't dramatically exceed your attorney's fees, you are in a tough position.

Fourth...ultimately its an opinion. How do you deal with "In my twenty five years of boating experience, and two years as a surveyor, the damage on that outdrive was consistent with normal wear and tear and the drive was no more likely to fail immediately than any other similarly used outdrive. I have heard outdrives make that level of rattling and continue to provide good service for years." Usually the way you have to deal with this is to have your own expert testify that it was as obvious as a the nose on your face that the drive was falling off, but ultimately your guy wasn't there at the time of inspection.

Finally...let's assume that the case is geographically convenient, the damages are substantial, the disclaimers don't apply (or can be avoided), that your brother (the good lawyer) is handling it for free, and that the oversight was blatant...how many surveyors have the resources to pay the damages? The term is "judgement proof". Ask any lawyer on this board and they will tell you about pyrrhic victories against defendants who were ultimately assetless.

The conclusion from these ramblings is that people who have lives usually realize that lawsuits over this stuff are a poor investment of resources. Some learn this before filing, some after. Should your circumstances be different, I applaud you and support you 100%.

PS...a quick thought on disclaimers. The guy you hired gave you an extensive document for you to read, agree to and sign before he would proceed...right? You read it, agreed to it and signed it...right? Now, you want a court to throw away the clear language that parties capable of contracting entered into freely and voluntarily...including a disclaimer of his liability for total incompetence. However you want the surveyor held to the breach of a pretty mushy common law standard of "like kind and quality of services in the industry". In short, you want to avoid his written contract, and enforce your oral one...tough row to hoe.

Everyone is free to disagree, of course, and I respect everyone's opinion on this. I respectfully submit that I probably heard 1000 cases over nearly four years (some surveyors, some mechanics, some real estate appraisers, inspectors...whatever...the cases are often similar) and have a pretty fair familiarity with these cases at trial. The moral of the story...the money you spend to get a good surveyor on an expensive transaction is far better money spent than the money to try and sue a bad surveyor.

 

[Southpaw II]

Don't waste your time and money chasing a surveyor. Mr. Robertson has it right on the money. Spend your efforts getting your boat fixed and enjoy it. A survey is not warranty or insurance...at least not that pays off. Next time witness everything. Survey, sea trial, haul out, and load out. I bought a boat 4 states away, and only got bit a little because I didn't witness the haul out and load.

 

[Mr Salt]

Let me take a different tack on this issue. You purchased a boat about 1,500 miles from where you live. You hired a surveyor to examine it for you. You were going to do a one time transaction with the surveyor. The surveyor is located in the general area of the dealer where you bought the boat. The surveyor likely works with the dealer often, you once. You did not have the surveyor take pictures for you at the time he examined the boat. If he did take pictures I bet there are none of the problem areas. You bought the boat so far away because it was cheaper than closer by similar boats. You did not spend $1,000 (or what ever) to fly down and see the boat yourself. You did not sea trial the boat yourself, did the surveyor? You were not at the closing. You hired a trucking company to move the boat for you. You did not know the condition of the boat when it was load onto the truck or any damage that may have occurred in transit.

I have learned over many years that cheap can be very expensive. On the other hand the lesson you have taught us and yourself though your use of this web site -----priceless

 

[chuck1]

....
I have learned over many years that cheap can be very expensive. On the other hand the lesson you have taught us and yourself though your use of this web site -----priceless

Ouch that hurt, but so true:thumbsup::grin:

 

[gman013]

Mr. Salt.. you are bang on. However, even if we had taken the time to fly down to Florida, the problems would have not been apparent. We would have still relied on the expertise of a marine surveyor, who is accredited, to make a decision. In the end, we basically shelled out $600 for some worthless advice..
I think the other lesson we learned was never go with a surveyor that the boat broker suggests, as in our case.
Many of our boating friends have bought boats sight unseen and have been really happy. I guess we are on of the unlucky ones. But in the end, the cost to repair the boat was not as bad as it could have been and if the surveyor would have pointed out those problems, I think we may have still purchased it.
thanks for everyone's advice.

 

[Alex F]

Mr Salt summarized it pretty well. It's very true that there's a lesson to be learned. I can understand that many people don't have expertise and rely on professionals like surveyors and mechanics. However, this is not like purchasing a laptop from a website. A boat of this size is a huge investment and the minimum effort one should do is to inspect the boat in person, go through everything that one knows how to, take lots of pictures and do basic visual inspection, just as you would when buying a house. This way you'd be covered at least with some physical damages having before and after pictures. Then, you can try to blame and have someone to take responsibility for the damages you can proof that occurred after the purchase. Relying 100% on the people that you don't know and they don't know you during this process is not wise at all.

I have purchased my 320 from FL and I'll tell you that despite me doing my own inspection, being on top and organizing everything there were still number of issues (poor surveyor was one of them), but knowing and seeing things for myself provided the opportunity to make my decisions accordingly. I simply cannot see this process work successfully from A to Z without personal do diligent and physical presents unless you're dealing with a person you can really trust.

You can hear many stories that people buy boats unseen, but chances are you don’t hear every single detail and issue they had. However, we can’t rule out that this is possible and there’re some people that you can rely on, but then you have to make sure you deal only with those people that were referred, not just using some good story as an example and go to any broker/surveyor with an assumption that it’ll be done the same.

In the end, I’m pretty sure that the $500-$800 you saved on tickets and hotel made you spend much more for the repairs of items you could have observed yourself.

Good luck with everything,
Alex.